U.P. LAW BOC
CIVIL LAW
U.P. LAW BOC
CIVIL LAW
U.P. LAW BOC
CIVIL LAW
U.P. LAW BOC
CIVIL LAW
TABLE OF CONTENTS
IN GENERAL ..........................................................1
A.
B.
C.
D.
E.
F.
G.
H.
WHEN LAW TAKES EFFECT ............................2
RETROACTIVITY OF LAWS ........................2
MANDATORY OR PROHIBITORY LAWS .....2
WAIVER OF RIGHTS ...................................2
REPEAL OF LAWS ......................................3
CONFLICT OF LAWS ..................................3
HUMAN RELATIONS ................................. 22
APPLICABILITY OF PENAL LAWS............. 28
PERSONS AND FAMILY RELATIONS .................. 29
A.
PERSONS................................................. 30
1. Kinds of Persons.................................... 30
2. Capacity to act ....................................... 33
3. Domicile and Residence of Persons ....... 37
B. RIGHTS AND OBLIGATIONS OF COUPLES IN
INTIMATE RELATIONSHIPS ......................... 38
C. MARRIAGE ............................................... 42
1. Requisites ............................................. 42
2. Marriages Celebrated Abroad................. 47
3. Foreign Divorce ..................................... 47
4. Void Marriages ...................................... 48
5. Voidable marriages ................................ 55
6. Unmarried Cohabitation ......................... 60
D. LEGAL SEPARATION................................ 60
1. Grounds for Legal Separation [Art. 55, FC]:
............................................................. 60
2. Defenses [Art. 56, FC]: ........................... 62
3. Procedure.............................................. 63
4. Effects of filing petition ........................... 64
5. Effects of pendency ............................... 64
6. Effects of decree of legal separation ....... 64
7. Reconciliation ........................................ 65
8. Effect of death of one of the parties ........ 65
E. RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE ................................... 69
F. PROPERTY RELATIONS OF THE SPOUSES
................................................................. 70
1. Marriage settlements.............................. 70
2. Donations by reason of marriage
(Donations Propter Nuptias) ................... 71
3. Void donations by the spouses ............... 73
4. Absolute Community of Property ............ 74
5. Conjugal Partnership of Gains ................ 74
6. Regime of separation of property............ 82
7. Judicial separation of property ................ 82
8. Property regime of unions without marriage
............................................................. 84
G. THE FAMILY ............................................. 85
1. Concept of family ................................... 85
2. Effects on legal disputes ........................ 86
3. Family home .............................................. 86
H.
PATERNITY AND FILIATION ..................... 88
1. Legitimate children ................................ 90
2. Proof of filiation ..................................... 91
3. Illegitimate children................................ 92
4. Impugned Legitimacy/Action to Impugn
Legitimacy ............................................... 95
5. Legitimated children .............................. 97
I.
ADOPTION ............................................... 98
1. RA 8552: Domestic Adoption Law .......... 98
2. RA 8043: Law on Inter-Country Adoption
105
J.
SUPPORT .............................................. 108
1. What it comprises ................................... 108
2. Who are obliged to give support ............... 108
3. Source of support ................................... 109
4. Order of support ..................................... 109
5. Amount of support .................................. 110
6. Manner and time of payment ................... 110
7. Renunciation and termination.................. 110
8. Support pendente lite.............................. 111
9. Procedure in applications for support........ 111
K. PARENTAL AUTHORITY ........................ 112
1. General Provisions .............................. 112
2. Substitute parental authority ................ 112
3. Special parental authority .................... 112
4. Effect of parental authority over the child’s
person ................................................ 113
5. Effects of parental authority over the child’s
property................................................. 114
6. Suspension or termination of parental
authority ................................................ 114
7. Solo parents (R.A. No. 8972) ............... 115
L. EMANCIPATION ..................................... 117
1. Cause of emancipation ........................ 117
2. Effect of emancipation ......................... 117
M. SUMMARY JUDICIAL PROCEEDINGS IN THE
FAMILY CODE ............................................ 117
N.
USE OF SURNAMES .......................... 121
O.
ABSENCE........................................... 122
1. Provisional measures in case of absence ...
........................................................... 122
2. Declaration of absence ........................ 122
3. Administration of the property of the
absentee ............................................... 123
4. Presumption of death........................... 123
P. CIVIL REGISTRAR .................................. 124
PROPERTY ........................................................ 127
A.
CLASSIFICATION OF PROPERTY .......... 128
1. Immovables [Art. 415, CC] ...................... 128
2. Movables [Art. 416, 417, CC] .................. 129
B. OWNERSHIP .......................................... 130
1. Bundle of rights ................................... 130
U.P. LAW BOC
2. Distinction between real and personal rights.
........................................................... 130
3. Modes of Acquiring Ownership ............. 131
4. Limitations of Ownership ...................... 131
C. ACCESSION ........................................... 132
1. Right to hidden treasure ....................... 132
2. Rules of accession............................... 132
D. QUIETING OF TITLE ............................... 142
1. Requisites ........................................... 142
2. Distinctions between quieting title and
removing/preventing a cloud ................... 142
3. Prescription/non-prescription of action .. 144
E. CO-OWNERSHIP .................................... 145
1. Characteristics of Co-ownership ........... 145
2. Sources of Co-ownership ..................... 146
3. Rights of Co-owners ............................ 147
4. Termination of Co-ownership................ 152
F. POSSESSION ......................................... 153
1. Characteristics ..................................... 153
2. Acquisition of Possession..................... 154
3. Effects of Possession ........................... 156
4. Loss of Movable or Unlawful Deprivation of
a Movable .............................................. 157
5. Possession in the Concept of Owner, Holder,
One’s Own Name, and in the Name of
Another .................................................. 158
6. Rights of the Possessor ....................... 160
7. Loss or Termination of Possession ....... 162
G. USUFRUCT ................................................ 162
1. Characteristics ..................................... 162
2. Classification ....................................... 163
3. Rights and Obligations of Usufructuary . 166
4. Rights of the Owner ............................. 170
5. Extinction, Termination, and Extinguishment
........................................................... 171
H. EASEMENTS............................................... 174
1. Characteristics ..................................... 174
2. Classification ....................................... 176
3. Modes of Acquiring Easements ............ 184
4. Rights and Obligations of the Owners of
Dominant and Servient Estates............... 186
5. Modes of Extinguishment ..................... 187
I.
NUISANCE.............................................. 188
1. Nuisance per se................................... 188
2. Nuisance per accidens ......................... 188
3. Liabilities ............................................. 190
4. No Prescription .................................... 190
5. Criminal prosecution as a remedy......... 190
6. Judgment with abatement as a remedy. 190
7. Extrajudicial abatement as a remedy .... 191
8. Special Injury to Individual .................... 191
9. Right of Individual to Abate Public Nuisance.
........................................................... 192
10.
Right to Damages ............................ 192
11.
Defenses to Action........................... 193
12.
Who May Sue on Private Nuisance... 193
CIVIL LAW
J.
MODES OF ACQUIRING OWNERSHIP ... 193
PRESCRIPTION ................................................. 205
A.
1.
2.
B.
C.
D.
TYPES OF PRESCRIPTION .................... 205
Acquisitive Prescription........................ 205
Extinctive Prescription ......................... 206
WHEN PRESCRIPTION IS INAPPLICABLE ...
............................................................... 207
PRESCRIPTION OR LIMITATION OF
ACTIONS................................................ 208
INTERRUPTION [ART. 1155, CC] ............ 209
SUCCESSION .................................................... 210
A.
GENERAL PROVISIONS ................................ 211
Definition ............................................. 211
Succession occurs at the moment of death
........................................................... 211
3. Kinds of successors............................. 212
B. TESTAMENTARY SUCCESSION ...................... 213
1. Wills .................................................... 213
2. Institution of heirs ................................ 221
3. Substitution of heirs ............................. 223
4. Conditional testamentary dispositions and
testamentary dispositions with a term ..... 224
5. Legitime .............................................. 226
C. LEGAL OR INTESTATE SUCCESSION ............ 238
1. General Provisions .............................. 238
2. Order of Intestate Succession ................. 241
D. PROVISIONS COMMON TO TESTATE AND INTESTATE
SUCCESSION ................................................. 243
1. Right of accretion ................................ 243
2. Capacity to Succeed by Will or Intestacy ....
........................................................... 244
3. Acceptance and repudiation of the
inheritance............................................. 245
4. Collation.............................................. 246
5. Partition and Distribution of Estate ....... 248
1.
2.
OBLIGATIONS AND CONTRACTS .................... 252
A.
1.
2.
3.
B.
1.
2.
3.
4.
5.
6.
C.
1.
2.
3.
GENERAL PROVISIONS......................... 253
Definition ............................................. 253
Elements of an obligation..................... 253
Sources of Obligations......................... 253
NATURE AND EFFECT OF OBLIGATIONS
254
Obligation to give................................. 254
Obligation to do or not to do ................. 255
Transmissibility of obligations............... 255
Performance of Obligations.................. 255
Breaches of Obligations....................... 256
Remedies available to creditor in cases of
breach................................................... 260
KINDS OF OBLIGATIONS ....................... 263
Pure.................................................... 263
Conditional .......................................... 263
Obligation with a period or a term ......... 267
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4.
5.
6.
D.
1.
2.
3.
4.
5.
6.
Alternative or facultative ....................... 268
Joint and Solidary Obligations .............. 270
Obligations with a penal clause ............ 274
EXTINGUISHMENT OF OBLIGATIONS.... 275
Payment or performance ...................... 275
Loss of determinate thing due or
impossibility or difficulty of performance .. 281
Condonation or remission of debt ......... 283
Confusion ............................................ 286
Compensation ..................................... 286
Novation .............................................. 289
CONTRACTS…………………………………………292
A.
1.
2.
3.
B.
C.
D.
E.
1.
2.
3.
4.
5.
GENERAL PROVISIONS ......................... 292
Stages of Contracts ............................. 292
Classification ....................................... 292
Essential requisites .............................. 293
FORMALITY ............................................ 302
REFORMATION OF INSTRUMENTS ....... 304
INTERPRETATION OF CONTRACTS ...... 307
DEFECTIVE CONTRACTS ...................... 310
Rescissible contracts ........................... 310
Voidable contracts ............................... 313
Unenforceable contracts ...................... 315
Void or inexistent contracts .................. 316
Distinguish: resolution and rescission of
contracts ................................................ 319
NATURAL OBLIGATIONS .................................. 320
A.
B.
C.
D.
E.
DEFINITION ................................................ 324
KINDS OF ESTOPPEL ................................... 324
PERSONS BOUND........................................ 324
CASES WHERE ESTOPPEL APPLIES ................. 324
LACHES .................................................... 325
SPECIAL CONTRACTS ...................................... 326
A.
SALES ...................................................... 327
1. General provisions ............................... 327
2. Parties................................................. 333
3. Obligations of the Vendor ..................... 335
4. Obligations of the Vendee .................... 342
5. Transfer of Ownership.......................... 344
6. Risk of Loss ......................................... 350
7. Documents of Title ............................... 352
8. Warranties ........................................... 354
9. Breach of Contract ............................... 360
10.
Performance of the Contract............. 368
11.
Extinguishment of Sales ................... 371
B. TRUSTS .................................................... 379
C. AGENCY .................................................... 383
1. Nature and form ................................... 383
2. Kinds ................................................... 385
D. COMPROMISE........................................ 388
E. LOAN ...................................................... 392
1. Loan .................................................... 392
2. Commodatum ...................................... 394
CIVIL LAW
3.
4.
Simple Loan (mutuum) ........................ 396
Interests On Loan ................................ 397
F. DEPOSIT ................................................ 401
1. Voluntary Deposit ................................ 401
2. Necessary Deposit .............................. 403
3. Judicial Deposit Or Sequestration ........ 404
G. LEASE ...................................................... 404
1. Definition ............................................. 404
2. Who are Qualified or Disqualified? ........... 405
3. Obligations of Parties.............................. 405
4. Payment................................................. 406
5. Termination ............................................ 407
6. Renewal ................................................. 407
7. Unlawful Detainer ................................ 407
8. Transfer of Lease ................................ 408
9. Sub-Lease.............................................. 408
10. Warranties............................................ 409
11. Special Provisions ................................ 409
QUASI-CONTRACTS ......................................... 411
A.
NEGOTIORUM GESTIO (UNAUTHORIZED
MANAGEMENT) .......................................... 411
SOLUTIO INDEBITI (UNDUE PAYMENT)............ 412
OTHER QUASI-CONTRACTS ......................... 414
B.
C.
LAND TITLES AND DEEDS................................ 415
A.
TORRENS SYSTEM................................... 416
1. Concept and Background .................... 416
2. Certificate of Title ................................ 419
B. AGRARIAN TITLES AND ANCESTRAL LANDS AND
DOMAINS ...................................................... 421
1. Concept and Registration of Agrarian Titles
........................................................... 422
2. Concept and Registration of Ancestral Lands
and Domains ......................................... 424
C. CITIZENSHIP REQUIREMENT ......................... 425
1. Individuals ........................................... 425
2. Corporations ....................................... 426
D. ORIGINAL REGISTRATION ............................ 427
1. Who May Apply ................................... 427
2. Registration Process and Requirements.....
........................................................... 429
3. Remedies............................................ 434
4. Cadastral Registration ......................... 438
E. SUBSEQUENT REGISTRATION ....................... 440
1. Voluntary Dealings .............................. 442
2. Involuntary Dealings ............................ 445
F. NON-REGISTRABLE PROPERTIES .................. 448
G. DEALINGS WITH UNREGISTERED LANDS ......... 450
TORTS ............................................................... 451
A.
1.
2.
3.
4.
PRINCIPLES ............................................... 452
Abuse of Right; elements ..................... 452
Unjust Enrichment ............................... 454
Liability without fault ............................ 454
Acts Contrary to Law ........................... 455
U.P. LAW BOC
5.
B.
1.
2.
C.
1.
2.
3.
D.
1.
2.
3.
4.
5.
E.
1.
2.
3.
4.
F.
1.
2.
3.
G.
1.
2.
3.
4.
5.
6.
7.
Acts Contrary to Morals........................ 455
CLASSIFICATION OF TORTS .......................... 457
According to Manner of Commission .... 457
According to Scope .............................. 458
THE TORTFEASOR ...................................... 459
Direct Tortfeasor .................................. 459
Persons made responsible for others.... 459
Joint tortfeasors ................................... 465
PROXIMATE CAUSE ..................................... 466
Concept............................................... 466
Cause in Fact ...................................... 467
Efficient Intervening Cause................... 467
Cause as distinguished from condition.. 467
Last Clear Chance ............................... 468
LEGAL INJURY ............................................ 468
Concept............................................... 468
Elements of right .................................. 469
Violation of right or legal injury.............. 469
Classes of injury .................................. 469
INTENTIONAL TORTS ................................... 470
General ............................................... 470
Interference with rights to persons and
property ................................................. 470
Interference with relations .................... 474
NEGLIGENCE ............................................. 477
Concept............................................... 477
Good father of a family or reasonably
prudent person....................................... 477
Standard of care; emergency rule ......... 478
Unreasonable risk of harm ................... 479
Evidence ............................................. 479
Presumption of negligence ................... 480
Defenses ............................................. 484
CIVIL LAW
H.
SPECIAL LIABILITY IN PARTICULAR ACTIVITIES . 487
1. In general; concept .............................. 487
2. Products liability; manufacturers or
processors............................................. 487
3. Nuisance............................................. 487
4. Violation of constitutional rights; violation of
civil liberties ........................................... 490
5. Violation of rights committed by public
officers .................................................. 491
6. Provinces, cities and municipalities ...... 492
7. Owner of motor vehicle ........................ 492
8. Proprietor of building or structure or thing ...
........................................................... 493
9. Head of family ..................................... 495
10.
Violations of data privacy ................. 495
I.
STRICT LIABILITY .................................. 501
1. Animals; possessor and user of an animal..
........................................................... 501
2. Attractive Nuisance.............................. 501
3. Products liability; Consumer Act ........... 502
A. GENERAL CONSIDERATIONS ............... 505
1. Classification ....................................... 505
2. Kinds of Damages ............................... 505
3. When damages may be recovered ....... 525
B. DAMAGES IN CASE OF DEATH....................... 526
C. GRADUATION OF DAMAGES .......................... 527
1. Duty of Injured Party ............................ 527
2. Rules .................................................. 527
U.P. LAW BOC
IN GENERAL
IN GENERAL
CIVIL LAW
Page 1 of 532
CIVIL LAW
U.P. LAW BOC
IN GENERAL
CIVIL LAW
A. WHEN LAW TAKES
EFFECT
B. RETROACTIVITY OF
LAWS
Art. 2, CC. 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
(As amended by E.O. 200).
Laws shall have no retroactive effect, unless
the contrary is provided. [Art. 4, CC]
General Rules
• The clause "unless it is otherwise
provided" refers to the date of effectivity
(i.e., as to when a law shall take effect) and
not to the requirement of publication itself,
which cannot, in any event, be omitted.
[Tañada v. Tuvera, G.R. No. L-63915
(1986)]
o 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. [Tañada v.
Tuvera, G.R. No. L-63915 (1986)]
• When, on the other hand, the
administrative rule goes beyond merely
providing for the means that can facilitate
or render least cumbersome the
implementation of the law but substantially
increases the burden of those governed, it
behooves the agency to accord at least to
those directly affected a chance to be
heard, and thereafter to be duly informed,
before that new issuance is given the force
and effect of law. [Commissioner v.
Hypermix, G.R. No. 179579 (2012)]
Exception: Interpretative [implementing] rules
and regulations and those internal in nature.
[Tañada v. Tuvera, G.R. No. L-63915 (1986)]
General Rule: All statutes are to be construed
as having only prospective operation.
Exceptions
a. When the law itself expressly provides
• Exceptions to Exception:
1. Ex post facto law
2. Impairment of contract
b. In case of remedial statutes
c. In case of curative statutes
d. In case of laws interpreting others
e. In case of laws creating new rights [Bona v.
Briones, G.R. No. L-10806 (1918)].
f. Penal Laws favorable to the accused [Art.
22, RPC].
C. MANDATORY OR
PROHIBITORY LAWS
Art. 5, CC. Acts executed against the
provisions of mandatory or prohibitory laws
shall be void, except when the law itself
authorizes their validity.
Par. 3, Art. 17, CC. Prohibitive laws
concerning persons, their acts or property,
and those which have for their object public
order, public policy and good customs shall
not be rendered ineffective by laws or
judgments
promulgated,
or
by
determinations or conventions agreed upon
in a foreign country.
D. WAIVER OF RIGHTS
Art. 6, CC. Rights may be waived, unless the
waiver is contrary to law, public order, public
policy, morals, or good customs, or
prejudicial to a third person with a right
recognized by law.
Page 2 of 532
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
Waiver
Voluntary and intentional relinquishment or
abandonment of a known legal right or
privilege. It has been ruled that a waiver to be
valid and effective must be couched in clear
and unequivocal terms which leave no doubt
as to the intention of a party to give up a right
or benefit which legally pertains to him. [RB
Michael Press v. Galit, G.R. No. 153510
(2008)]
The waiver should be made in a positive
manner [Dona Adela v. Tidcorp, G.R. No.
201931 (2015)].
Requisites of a Valid Waiver
a. Existence of a right
b. Knowledge of the existence thereof
c. An intention to relinquish the right. [Herrera
v. Borromeo, G.R. No. L-41171, (1987)]
General Rule: Rights may be waived.
Exceptions
a. If the waiver is contrary to law, public order,
public policy, morals or good customs
b. If the waiver prejudices a third person
c. If the alleged rights do not yet exist
d. If the right is a natural right
No compromise upon the following
questions shall be valid [Art. 2035, CC]:
a. The civil status of persons;
b. The validity of a marriage or a legal
separation;
c. Any ground for legal separation;
d. Future support;
e. The jurisdiction of courts;
f. Future legitime.
E. REPEAL OF LAWS
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.
CIVIL LAW
When the courts declare a law to be
inconsistent with the Constitution, the former
shall be void and the latter shall govern.
Administrative or executive acts, orders and
regulations shall be valid only when they are
not contrary to the laws or the Constitution. [Art.
7, CC]
TWO KINDS OF REPEAL [Tolentino]
a. Express or Declared: contained in a
special provision of a subsequent law;
names the law repealed.
b. Implied or Tacit: takes place when the
provisions of the subsequent law are
incompatible or inconsistent with those of
an earlier law.
The fundamental rule is that the legislature
should be presumed to have known the
existing laws on the subject and not have
enacted conflicting statutes. Hence, all doubts
must be resolved against any implied repeal,
and all efforts should be exerted in order to
harmonize and give effect to all laws on the
subject. [Republic v. Marcopper Mining, G.R.
No. 137174 (2000)]
F. CONFLICT OF LAWS
1. Introduction
The world is divided into many territorial units,
each imposing its own set of laws. With the
developed means of transportation and
communication, distances between these
nations have shortened allowing more and
more people to travel and enter into contracts.
These dynamics cause the occurrence of
events that contain elements significant to
more than one legal system which give rise to
problems that private international law seeks to
resolve. [Coquia and Aguiling-Pangalangan]
Its incorporation in municipal laws is based not
on extraterritorial validity of the foreign law but
on comity of nations.
Page 3 of 532
U.P. LAW BOC
CIVIL LAW
PERSONS AND FAMILY RELATIONS
“Comity,” in the legal sense, is neither a matter
of absolute obligation, on the one hand, nor of
mere courtesy and good will, upon the other.
But it is the recognition which one nation allows
within its territory to the legislative, executive or
judicial acts of another nation, 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. [Hilton v. Guyot, 159 US
113 (1895)]
Remedies
a. Definition
That part of municipal law which governs cases
involving a foreign element.
That part of law which comes into play when
the issue before the court affects some fact or
event, or transaction that is so closely
connected with a foreign system of law as to
necessitate recourse to that system. [Chesire]
The law concerning the rights of persons within
the territory and dominion of one nation by
reason of acts, private or public, done within
the dominion of another nation. [Hilton v.
Guyot]
Public International Law
International Law [Coquia
Pangalangan]
Public
Internatio
As to
nal Law
States and
Persons
internationall
y recognized
involved
organizations
States in their
relationships
amongst
Transactio
themselves
ns involved (Except
cases of
human rights
violations)
v. Private
and AguilingPrivate
International
Law
Individuals or
corporations
Private
transactions
between
private
individuals
which involve
a foreign
element
State may
resort to
diplomatic
protest,
peaceful
means of
settlement of
international
disputes such
as diplomatic
negotiations,
arbitration or
conciliation or
adjudication
by filing a
case before
international
tribunals
All remedies
provided by
municipal
laws of the
state
such as resort
to courts or
administrative
tribunals
b. Scope
1. Adjudicatory jurisdiction: Determines
the circumstances that allow for a legal
order to impose upon its judiciary the task
of deciding multi-state and multinational
disputes
2. Choice-of-law: Refers to the probable
sources from which the applicable law of
the controversy may be derived.
3. Recognition and enforcement of foreign
judgments: Deals with the study of
situations which justify recognition by the
forum court of a judgment rendered by a
foreign court or the enforcement of such
within the forum.
c. Sources
1. Codes and Statutes
2. Treaties and International Conventions
3. Treatises, Commentaries and Studies
of Learned Societies
4. Judicial Decisions
Page 4 of 532
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
2. Jurisdiction and Choice of
Law
Jurisdiction
[Coquia
Aguiling-Pangalangan]
Judicial
Jurisdiction
The
power
or
authority of a court
to try a case, render
judgment,
and
execute it in
accordance with law
i.
and
Legislative
Jurisdiction
The ability of the
state to promulgate
laws and enforce
them on all persons
and property within
its territory
Basis of Exercise of Judicial
Jurisdiction
Traditional Approach: Based on the state’s
physical power over persons and property
within its territory.
Modern Approach: Minimum contacts and
fundamental fairness test
Minimum contacts must exist between the
forum and defendant. Due process only
requires that a defendant, if not present within
the territory, should have certain minimum
contacts with it such that maintenance of the
suit does not offend traditional notions of fair
play and substantive justice. It includes
presence in the state through acts of
authorized agents. [International Shoe Co. v.
Washington, 326 US 310 (1945)]
Long-Arm Statutes – Municipal Laws that
specify the kinds of contacts upon which
jurisdiction will be asserted by the forum court.
These laws allow a court to obtain to obtain
personal jurisdiction over an out of-state
defendant who has sufficient connection with
the state, e.g. tortious act done within the state,
or a contract celebrated in the state.
ii.
CIVIL LAW
Types of Judicial Jurisdiction
JURISDICTION OVER THE PERSON
Competence or power of a court to render a
judgment that will bind the parties to a case.
Required in in personam proceedings.
Acquired by the voluntary appearance of a
party and his submission to authority.
How Acquired
a. Over the person of the PLAINTIFF –
acquired from the moment he invokes the
aid of the court by filing a suit.
b. Over the person of the DEFENDANT –
! When he enters his appearance
UNLESS appearance is for the sole
purpose of protesting the jurisdiction of
the court.
! When he is served with the legal
process within the state
○ Personal Service
○ Substituted Service
○ When subsequent proceedings
arise out of his original cause of
action including counterclaims
filed by the defendant
JURISDICTION OVER THE PROPERTY
Results either from:
a. Seizure of the property under a legal
process; or
b. Institution of legal proceedings wherein the
court’s power over the property is
recognized and made effective
Due process is satisfied by summons through
publication in these in rem and quasi in rem
proceedings
JURISDICTION OVER THE SUBJECT
MATTER
More than the general power conferred by law
to take cognizance of cases of a general class
to which the case belongs. The power of the
court must be properly invoked by filing a
petition. Jurisdiction over the subject matter
cannot be conferred by consent of the parties.
Page 5 of 532
U.P. LAW BOC
DIRECT VS. INDIRECT JURISDICTION
Indirect
Direct Jurisdiction
Jurisdiction
answers
the answers the question
question WON a WON a court can
court can try and recognize and/or
decide a case
enforce a judgment
iii.
CIVIL LAW
PERSONS AND FAMILY RELATIONS
Ways of Dealing with a Conflicts
Problem
DISMISS THE CASE
a) For Lack of Jurisdiction: Absent
jurisdiction over the person, property or
subject matter, the court should dismiss
the case.
b) Doctrine of Forum Non Conveniens:
Literally means “forum is inconvenient.”
Thus, even if the court assumes jurisdiction
over the parties and the subject matter, it
may decline to try the case on the ground
that the controversy may be more suitably
tried elsewhere.
●
●
●
●
●
●
●
●
When the foreign law is CONTRARY to an
important PUBLIC POLICY of the forum;
When the foreign law is PENAL in nature;
When the foreign law is PROCEDURAL in
nature;
When the foreign law is purely FISCAL OR
ADMINISTRATIVE in nature;
When the application of foreign law will
work UNDENIABLE INJUSTICE TO
CITIZENS of the forum;
When the case involves REAL OR
PERSONAL PROPERTY situated in the
forum;
When the application of the foreign law
might ENDANGER THE VITAL INTEREST
of the state;
When the foreign law is CONTRARY TO
GOOD MORALS.
Choice of Law
1. Approaches to Choice of Law
Traditional Approaches
ASSUME JURISDICTION
Courts may apply either:
a) Forum Law; or
b) Foreign Law
An act done in a foreign
jurisdiction gives rise to the
existence of a right if the laws
of that state provides so.
The presence of any one of the following
factors would justify the application of forum
law:
1. A specific law of the forum decrees that
internal law should apply
2. The proper foreign law was not
properly pleaded and proved
● Foreign law must be proved as
a fact through Rules of
Evidence
(e.g.
official
publication or a copy which has
been consularized)
● Doctrine
of
Processual
Presumption – absent contrary
proof, foreign law is presumed
to be the same as Philippine
law.
(Also known as the
Doctrine of Presumed Identity)
3. The case falls under any of the
exceptions to the application of foreign
law.
Vested
Rights
Theory
This right vests in the
plaintiffs and carry it with
them to be enforced in any
forum he chooses to bring
suit.
The forum refers to the law of
the place of occurrence of the
“last act” necessary to
complete the cause of action.
The court treats a case as
Local Law purely domestic case and
Theory
applies local law regardless
of foreign elements.
Made with reference to
principles
of
preference
Cavers’
based on considerations of
Principles
justice and social expediency
of
and should not be the result
Preference
of mechanical application of
the rule.
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PERSONS AND FAMILY RELATIONS
Traditional approaches are used for
simplicity, convenience, uniformity, and
predictability. At times, at the expense of just
results.
Modern Approaches
Place of Most Identifies a plurality of factors
Significant
and factual contacts in light
Relationship
of choice of law principles.
Looks at the policy behind
the laws of the involved state
Interest
Analysis
and the interest each state
had in applying its own law.
Weighs conflicting interests
and apply the law of the state
Comparative
whose interest would be
Impairment
more impaired if its laws
were not followed.
This approach looked into
the general policies of the
state beyond those reflected
Functional
in its substantive law and to
Analysis
policies and values “relating
to effective and harmonious
intercourse between states.”
Escape devices: The difficulty in following
territorially-oriented rules is the inherent rigidity
and unjust decisions that may result from their
application.
[Coquia
and
AguilingPangalangan]
To avoid this, courts have resorted to “escape
devices” such as:
a) Characterization
b) Renvoi
c) Dépeçage
d) Public policy exemption – the “ultimate
escape device”
CIVIL LAW
The Problem of Characterization
SINGLEMULTI-ASPECT
ASPECT
METHOD
METHOD
Traditional
Modern
All important factors of the
Concentrates
case are analyzed and the
on
one applicable law is arrived at
element of a by “rationally elaborating
situation
in and applying the policies
order
to and purposes underlying
connect
the the particular legal rules
case to a that come in question as
particular legal well as the needs of
community
interstate or international
intercourse”
The Philippines follows the single-aspect
method.
Examples
● Philippine law governs citizens of the
Philippines in matters relating to family
rights, duties, the status, condition and
legal capacity of persons. [Art. 15, CC]
● Real and personal property are governed
by the law of the country where they are
situated. [Art. 16, CC]
● National law of the deceased person
governs intestate and testamentary
succession both with respect to order of
succession, amount of successional rights
and intrinsic validity of testamentary
provisions regardless of where the
property may be found. [Art. 16, CC]
● Law of the place of execution governs the
forms and solemnities of wills and other
public instruments. [Art. 17, CC]
● When acts are executed before the
diplomatic or consular officials of the
Republic of the Philippines in a foreign
country, the solemnities established by
Philippine laws shall be observed in their
execution. [Art. 17, CC]
● Prohibitive laws concerning persons, acts
or property and those which have as their
object, public order, public policy, and good
customs are to be governed by Philippine
law, unaffected by laws, judgments and
determinations of foreign countries. [Art.
17, CC]
Page 7 of 532
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CIVIL LAW
PERSONS AND FAMILY RELATIONS
CHARACTERIZATION
Characterization is the process by which a
court at the beginning of the choice-of-law
process assigns a disputed question to an area
in substantive law.
It is an escape device because by
characterizing the problem differently, it can
produce results which the forum court
considers as just and sound.
the matter to the law of either the forum
(remission – 2a in figure below) or a third state
(transmission – 2b in figure below).
State
B
State
A
Internal
law
State
C
Internal
law
1
2b
SUBJECT-MATTER
CHARACTERIZATION
Classification by a court of a factual situation
into a legal category.
SUBSTANCE-PROCEDURE DICHOTOMY
Directs the court to the extent it will apply
foreign law
SUBSTANTIVE
PROCEDURAL
The Court MAY The Court SHALL apply
apply foreign law forum law
Statute of Frauds: May be substantive or
procedural:
• SUBSTANTIVE – if the words of the law
relate to forbidding the CREATION of
obligation.
• PROCEDURAL
–
one
that
forbids ENFORCEMENT of the obligation.
Statutes of Limitation and Borrowing
Statute
General Rule: Statutes of limitations were
classified as procedural because they barred
only the legal remedy without impairing the
substantive right involved.
Exception: If the statute provides a shorter
period for certain types of claims that fall within
a wider classification covered by a general
statute of limitations. (Specificity Test)
Borrowing statutes
Bars the filing of a suit in the forum if it is
already barred by the statute of limitations in
the place where the cause of action arose.
RENVOI
Procedure whereby a jural matter presented is
referred by the conflict of laws rules of the
forum to a foreign state (Step 1 in figure below),
the conflict of laws rule of which, in turn, refers
Conflict
of Law
Rule
2a
Conflict
of Law
Rule
Limitation of renvoi
The process of renvoi is not applicable in
instances where there is a FALSE CONFLICT.
There’s a false conflict when one of the states
does not have a real interest in applying its law
in the controversy.
Ways of Dealing with the Problem of
Renvoi
Forum conflict rules is deemed
to refer only to the internal law
Reject
of that state (i.e. that which
the
would apply to a domestic case
renvoi
with
no
conflict-of-laws
complications).
Looks into not just the internal
Accept
law of the foreign state, but also
the
the
choice-of-law
rules
renvoi
applicable in multi-state cases.
Desistan The
forum
court,
upon
ce/
reference to foreign law, sees
Mutual
that such law only applies to its
disclaim own nationals and has no
er of
provision for application to a
jurisdicti non-national.
on
The forum court would assume
Foreign
the same position that the
Court
foreign court would take were
Theory
the case litigated in the foreign
court.
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PERSONS AND FAMILY RELATIONS
DÉPEÇAGE
Phenomenon where “different aspects of a
case involving a foreign element may be
governed by different systems of laws.”
●
●
●
A case may be dissected into different
issues, each analyzed as to which law shall
apply.
When such issue by issue analysis results
in the application of different laws to
different issues, then dépeçage occurs.
Dépeçage is the effect of issue by issue
analysis.
PUBLIC POLICY EXEMPTION
The courts of the forum will not enforce any
foreign claim obnoxious to the forum’s public
policy. To enforce the one-year prescriptive
period of the law of Bahrain...would contravene
the public policy on the protection to
labor…[therefore], the applicable law on
prescription is the Philippine law [Cadalin v.
POEA Administrator, 238 SCRA 721 (1994)].
CIVIL LAW
with the law of evidence of the state where it is
presented.
Proof of Foreign Law
Methods to prove foreign law
a) Official publication of the law (and
consularized) [Rule 132, Section 24, Rules
of Court]
b) Copy of the law attested by the officer
having the legal custody of the record or by
his deputy. (and consularized) [Rule 132,
Section 24, Rules of Court]
c) Learned treatises and expert witness for
unwritten foreign law [Rule 130, Section
46, Rules of Court]
Effect of Failure to Plead and Prove Foreign
Law
a. Dismiss the case for inability to establish a
cause of action
b. Processual Presumption / Presumed
Identity – assume that the foreign law is
the same as the law of the forum
c. Apply the law of the forum
2. Notice and Proof of Foreign Law
Extent of Judicial Notice
General Rule: Judge is not authorized to take
judicial notice of foreign law and is presumed
to know only domestic law.
Exception: When judicial notice is allowed.
[Rule 129, Section 1, Rules of Court]
It is allowed when the court is evidently familiar
with such foreign law. [Delgado v. Republic,
G.R. No. L-2546 (1950)]
Familiarity with the foreign law may be because
Philippine law was derived therefrom or the
judge had previously ruled upon it in other
cases. [Coquia and Aguiling-Pangalangan]
Burden of Proof
The party whose cause of action or defense
depended upon the foreign law has the burden
of proving the foreign law. [“He who alleges
must prove”]
Such foreign law is treated as a question of fact
to be properly pleade and proved in conformity
Apostille Convention
The Apostille Convention on Authentication of
Documents took effect in the Philippines on
May 14, 2019. This means that the DFA will
no longer issue Authentication Certificates
and instead will affix an Apostille to public
documents for use abroad as proof of
authentication in Apostille-contracting parties.
An apostille certifies “the authenticity of the
signature, the capacity in which the person
signing the document has acted and, where
appropriate, the identity of the seal or stamp
which it bears.” [Art. 5, Apostille Convention]
Exceptions to the Application of Foreign
Law
a. A specific law of the forum decrees that
internal law should apply
Examples:
● Real and personal property are subject
to the law of the country where they are
situated. [Art. 16, CC]
● Revocation of a will done outside the
Philippines may be valid if done
according to the law of the place where
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PERSONS AND FAMILY RELATIONS
the will was made or lex domicilii. [Art.
829, CC]
● Filipinos are prohibited from making
joint wills even when done abroad. [Art.
819, CC]
b. The proper foreign law was not properly
pleaded and proved.
c. The case falls under any of the
exceptions to the application of foreign
law.
● When the foreign law is CONTRARY to
an important PUBLIC POLICY of the
forum;
● When the foreign law is PENAL in
nature;
● When
the
foreign
law
is
PROCEDURAL in nature;
● When the foreign law is purely FISCAL
OR ADMINISTRATIVE in nature;
● When the application of foreign law will
work UNDENIABLE INJUSTICE TO
CITIZENS of the forum;
● When the case involves REAL OR
PERSONAL PROPERTY situated in
the forum;
● When the application of the Foreign
law might ENDANGER THE VITAL
INTEREST of the state;
● When the foreign law is CONTRARY
TO GOOD MORALS
3. Personal Law
Importance of a Personal Law
An individual’s personal law follows him
wherever he is and governs those transactions
which affect him most closely.
a. Nationality
Importance of Nationality in the Philippines –
Regulates:
a) Civil status
b) Capacity
c) Condition
d) Family rights and duties
e) Laws on succession
f) Capacity to succeed
Determination of Nationality
According to Article IV of the 1987 Constitution,
the following are Filipino citizens:
CIVIL LAW
a. Those who are citizens of the Philippines at
the time of the adoption of the Constitution
(1987)
b. Those whose fathers or mothers are
citizens of the Philippines
c. Those born before January 17, 1973 of
Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority
d. Those who are naturalized in accordance
with law
NATURAL-BORN CITIZENS
Natural-born citizens are those who are
citizens of the Philippines without having to
perform any act to acquire or perfect
citizenship.
The Philippines follows the jus sanguinis
principle which means the rule of descent or
blood. This is in contrast with the jus soli
principle where nationality is determined by the
law of the place of one’s birth.
NATURALIZED CITIZENS
Naturalized citizens refer those who
underwent a procedure provided by law in
order to acquire or perfect citizenship.
Qualifications for Applicants [Sec. 3, RA
9139]
Place of
Must be born in the
birth
Philippines
Must have resided in the
Residence
Philippines since birth
At least 18 at the time of filing
Age
the petition
Must be of good moral
character
Character
Education
Page 10 of 532
Must believe in the underlying
principles of the Constitution
Must have conducted self in a
proper and irreproachable
manner during entire period
of residence
Must have received primary
and secondary education in
any
public
or
private
educational institution duly
U.P. LAW BOC
Children
Occupation
PERSONS AND FAMILY RELATIONS
CIVIL LAW
recognized by the DECS,
where Philippine history,
government and civics are
taught and prescribed as part
of the school curriculum
Should the applicant have
minor children of school age,
said children must be
enrolled
in
schools
mentioned above
Must have a known trade,
business, profession or lawful
occupation
assault, or assassination for the success
and predominance of their ideas
f) Polygamists or believers in the practice of
polygamy
g) Persons suffering from mental alienation or
incurable contagious diseases
h) Citizens or subjects of nations with whom
the United States and the Philippines are
at war, during the period of such war
Must derive income sufficient
to support self and family
Derivative Citizenship [Sec. 15, Com. Act No.
473]
a. Wife shall be deemed a citizen if she is:
o Any woman who is now or may
hereafter be married to a citizen of
the Philippines; and
o Might
herself
be
lawfully
naturalized.
b. Minor children born in the Philippines shall
be considered citizens
c. FOREIGN-BORN minor children:
o IN THE PHILIPPINES at the time
of
naturalization:
shall
automatically become Philippine
citizens;
o NOT IN THE PHILIPPINES at the
time of naturalization: deemed a
Filipino citizen only during his
minority. Unless, he begins to
reside
permanently
in
the
Philippines when still a minor.
d. FOREIGN-BORN
children
AFTER
NATURALIZATION
of
parent
are
considered citizens if:
o He registers himself as a Philippine
citizen; and
o Take the necessary oath of
allegiance;
o Within 1 year from reaching the age
of majority
NOT
APPLICABLE
to
applicants who are college
degree holders but are
unable to practice because of
their citizenship
Must be able to read, write,
Language
AND speak Filipino or any of
the dialects
Must have mingled with
Filipinos; evinced a sincere
Conduct
desire to learn and embrace
custom traditions and ideals
of the Filipino people
Disqualification
The following cannot be naturalized [Sec. 4,
Commonwealth Act No. 473]:
a) Commission of a crime involving moral
turpitude
b) Not receiving and dealing with Filipinos in
his home or visiting Filipino homes in the
community in a spirit of friendship,
friendliness and equality without any
discrimination
c) Applicant’s country does not grant
reciprocal rights to Filipino citizens at the
time of the hearing of his application.
d) Persons
opposed
to
organized
government or affiliated with any
association or group of persons who
uphold and teach doctrines opposing all
organized governments
e) Persons defending or teaching the
necessity or propriety of violence, personal
Rationale: Naturalization is a privilege and not
a right. The law must be strictly construed
against the applicant.
Loss of Citizenship
a. By naturalization in foreign countries;
b. By express renunciation of citizenship;
c. By subscribing to an oath of allegiance to
support the constitution or laws of a foreign
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PERSONS AND FAMILY RELATIONS
country upon attaining 21 years of age or
more, subject to certain exceptions;
d. By rendering service to, or accepting
commission in the armed forces of a
foreign country, subject to certain
exceptions;
e. By having been declared by competent
authority, a deserter of the Philippine
armed forces in time of war, unless
pardoned;
f. By marriage of a woman to a foreigner, if
by virtue of the laws of her husband’s
country, she acquires nationality;
g. By cancellation of the certificate of
naturalization
1) It was obtained fraudulently or illegally;
2) Person naturalized shall return to his
native country or to some foreign
country and establish his permanent
residence therein within 5 years from
the issuance of the certificate;
3) Petition was made on an invalid
declaration of intention;
4) Minor children failed to graduate from
the schools required through the fault
of their parents either by neglect to
support them or by transfer to another
school;
5) Naturalized citizen allowed himself to
be used as a dummy.
Methods of reacquiring Philippine citizenship
[Frivaldo v. COMELEC, G.R. No. 87193
(1989)]
a. By direct act of Congress;
b. By naturalization;
c. By repatriation.
PROBLEMS IN APPLYING NATIONALITY
PRINCIPLE
Dual or Multiple Citizenship
An individual can be claimed as a national of 2
or more states pursuant to the rule that each
State determine who its own nationals are.
[Hague Convention on Conflict of National
Laws]
Examples
• Child born of parents who are nationals of
a country applying jus sanguinis in a
country applying jus soli principle;
• Citizen who marries an alien may acquire
the citizenship of his/her spouse if the
spouse’s national law allows.
Effective nationality
In the determination of the rights of an
individual who may claim multiple nationality in
a third state, the ICJ applied the principle of
“effective nationality,” i.e. that based on
stronger factual ties between the person
concerned and one of the States whose
nationality is involved. [Nottebohm Case
(Liechtenstein v. Guatemala [1955] ICJ Rep 4)]
Statelessness
Types
De Jure
An individual who
has been stripped
of his nationality
by his own former
government
without having an
opportunity
to
acquire another.
De Facto
An
individual
possessed
of
a
nationality but whose
country does not give
them
protection
outsider their own
territory. Commonly
known as refugees.
Remedies :
a. Convention on the Status of Refugees
provided some basic rights of stateless
persons.
b. Convention on the Reduction on
Statelessness
enumerates
certain
conditions such as marriage, divorce,
adoption,
naturalization,
expatriation,
under which an individual would not lose
nationality at the risk of becoming
stateless, unless a new nationality is
provided. Also prohibits states from
depriving their nationals of their identity as
punishment or a discriminatory instrument
for political, religious or ethnic reasons
b. Domicile
Domicile is defined by municipal law (Philippine
Law) and private international law.
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Under municipal law
For the exercise of civil rights and the fulfillment
of civil obligations, the domicile of natural
persons is the place of their habitual residence.
[Art. 50, CC]
Kinds of Domicile
Refers to a person’s
domicile at birth
Legitimate child: domicile of
Domicile of
father
origin
For juridical persons: domicile is determined by
the law creating or recognizing it. In the
absence thereof it shall be understood to be the
place where their legal representation or place
of business is.
Illegitimate child: domicile of
mother
Freely chosen by a person
sui juris
Acquired
by
the
concurrence of physical
presence in the new place
and unqualified intention to
make that place one’s home
Domicile assigned to a
person legally incapable of
choosing their own domicile
Minors: follow the domicile
of the parents
Under private international law
The place with which a person has a settled
connection for certain legal purposes, either
because his home is there or because that
place is assigned to him by law. [Restatement
(First) of Conflict of Laws]
To acquire a domicile, there must be
concurrence of intention to make it one’s
domicile and physical presence.
General Rules on Domicile
a. No person shall be without a domicile.
b. A person’s domicile of origin prevails until
he acquires a new domicile.
c. A person can have only one domicile for a
given purpose or a given time under the law
of a particular State.
General Rule: A person cannot have two
simultaneous domiciles.
Exception: Domicile may vary depending on
the purpose (e.g. domicile for divorce will be
different from domicile for the purpose of
running for public office.)
d. It establishes a connection between a
person and a particular territorial unit.
e. The burden of proving a change of domicile
is upon whoever alleges that a change has
been secured.
Without overwhelming evidence to show a
change of domicile, the court will decide in
favor of the continuance of an existing
domicile.
Domicile of
Choice
(Voluntary
Domicile)
Constructive
Domicile
Those
with
mental
disabilities:
GR: inherent inability to
decide where to make his
home
EXN: If it is shown that the
person is capable of
understanding his act and
its consequences
How one’s domicile of origin is lost
a. Actual removal or change of domicile
b. A bona fide intention of abandoning the
former residence and establishing a new
one
c. Acts which correspond with the purpose
In the absence of concurrence of all these, the
domicile of origin is deemed to continue.
[Pundaodaya v. COMELEC, G.R. No. 179313
(2009)]
c. Principles on Personal Status
And Capacity
Personal status
Includes both condition and capacity.
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Embraces such matters as:
a. The beginning and end of human
personality
b. Capacity to have rights in general
c. Capacity to engage in legal transactions
d. Protection of personal interests
e. Family relations, particularly the relations
between:
1. Husband wife
2. Parent and child
3. Guardian and ward
f. Transactions of family law, especially:
1. Marriage
2. Divorce
3. Separation
4. Adoption
5. Legitimation
6. Emancipation
g. Succession (both testate and intestate)
Capacity
The union of juridical capacity and capacity to
act PRODUCES complete civil capacity.
Juridical Capacity
the fitness of a man
to be the subject of
legal relations
Capacity to Act
the power to do acts
with juridical effects
Legislative Jurisdiction Distinguished from
Judicial Jurisdiction
Status, once established by the personal law of
the
party,
is
given
UNIVERSAL
RECOGNITION.
Beginning and End of Personality
The determination of the exact moment
personality begins is referred to the individual’s
personal law.
A declaration of death issued by a competent
court is considered valid for all purposes. Upon
the death of a person, some of his rights and
obligations are totally extinguished while others
are passed on to his successors.
Absence
Three ways of addressing conflict of laws
problem regarding absence:
a. There is a rebuttable presumption that a
person is dead when he has been absent
CIVIL LAW
for a number of years (followed by the
Philippines)
b. A person’s unexplained absence is
judicially investigated and established
which results in legal effects similar to
those of death
c. A judicial decree shall have to be issued
declaring the person dead before the legal
effects of death take place.
Name
General Rule: No person can change his
name or surname without judicial authority.
Exceptions (according to Jurisprudence):
a. That the name is ridiculous or tainted with
dishonor or extremely difficult to
pronounce.
b. When the change is necessary to avoid
confusion
c. When the right to a new name is a
consequence of a change in status
d. A sincere desire to adopt a Filipino name to
erase signs of a former alien nationality
which unduly hamper social and business
life.
Whether an alien’s change of name is valid
DEPENDS SOLELY ON HIS PERSONAL
LAW.
Age of Majority
Age of majority is determined
individual’s personal law.
by
the
Capacity
Capacity to act is governed by his personal
law.
The incapacities attached to his legal status go
with him wherever he is.
3. Choice of Law Problems
a. CHOICE-OF-LAW
RELATIONS
IN
FAMILY
Art. 15, CC. Laws relating to family rights and
duties, or to the status, condition and legal
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capacity of persons are binding upon citizens
of the Philippines, even though living abroad.
Governing Law: Lex Nationalii.
i.
Marriage
Philippine Policy on Marriage and the
Family
In case of doubt, courts will apply FORUM law
because marriage is greatly influenced by the
values of society. [Prof. Aguiling-Pangalangan]
Examples:
Sec. 2, Art. XV, 1987 Constitution. Marriage,
as an inviolable social institution, is the
foundation of the family and shall be protected
by the State.
Art. 220, CC. In case of doubt, all
presumptions favor the solidarity of the family.
Thus, every intendment of law or facts leans
toward the validity of the marriage , the
indissolubility of the marriage bonds, the
legitimacy of children, the community of
property during the marriage, the authority of
parents over their children, and the validity of
defense for any member of the family in case
of unlawful aggression.
EXTRINSIC Validity of Marriage: Lex Loci
Celebrationis
Covers questions relating to formalities or
“external conduct required of the parties or of
third persons especially of public officers,
necessary to the formation of a legally valid
marriage.”
All States recognize as valid marriages
celebrated in foreign countries if they complied
with the formalities prescribed therein [The
Hague Convention].
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. [par. 1, Art. 26, FC]
CIVIL LAW
Exceptions to the rule of lex loci
celebrationis: Lex nationalii
a. Either/both parties are below 18 years old
b. Bigamous or polygamous marriages
c. Subsequent marriage without recording:
1. The judgment of nullity of the first
marriage
2. Partition and distribution of the
properties of the spouses
3. Delivery of the children’s presumptive
legitimes
d. Mistake as to identity of the contracting
party
e. One of the parties was psychologically
incapacitated to comply with the essential
marital obligations
f. Incestuous marriages
g. Void by reason of public policy
The abovementioned involve the question
capacity to marry, which is a substantive
requirement for marriage. Since personal law
governs questions of intrinsic validity, the
above are exceptions to lex loci celebrationis
because they are controlled by lex nationalii.
INTRINSIC Validity of Marriage: Personal
Law of the Parties – Lex Nationalii or Lex
Domicilii
Refers to the capacity or general ability of a
person to marry (e.g. age requirement and
parental consent).
Governing Law: Personal Law, either Lex
Nationalii or Lex Domicilii
Note: In the Philippines: Lex Nationalii
Consular marriages
Marriage celebrated by a diplomatic agent or
consular official in accordance with his state
law shall be considered valid as long as it is not
prohibited by the state of celebration. [Art. 9,
Hague Convention on Validity of Marriages]
Under Philippine law, marriage between
spouses with at least one Filipino officiated by
the Philippine consul general, consul or vice
consul must comply with the
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CIVIL LAW
FORMAL AND INTRINSIC REQUIREMENTS
under Philippine law:
a. Valid marriage license and due publication
and registration
b. Alien must comply with marriage requisites
under his or her national law and submit a
certificate of legal capacity to contract
marriage issued by his diplomatic or
consular office
c. Stateless persons or refugees shall submit
an affidavit in lieu of the certificate of legal
capacity.
Exceptions
a. Both spouses are aliens
b. With respect to extrinsic validity of
contracts affecting property not situated in
the Philippines and executed in the country
where property is located
c. With respect to extrinsic validity of
contracts entered into in the Philippines but
affecting property situated in a foreign
country requiring different formalities
Effects of Marriage
Refers to personal relations between spouses
and property relations of the spouses
Divorce may be either:
a. Absolute – termination of legal relationship
between spouses by an act of law
b. Relative or Legal Separation – separation
from bed and board
Governing Law on Personal Relations
Between the Spouses: Lex Nationalii
If the spouses are of different nationalities,
generally, the national law of the husband may
prevail if not contrary to law, customs and good
morals of the form.
Under Philippine law, both husband and wife
have the right to fix the family domicile. [Art. 69,
FC]
ii.
Divorce and Separation
Rules
a. Bases of obtaining jurisdiction over divorce
proceedings:
1. Domicile of one of the parties; or
2. Marital domicile
b. On grant of divorce:
1. Lex nationalii;
2. Lex Fori (law of the country in which an
action is brought)
Property Relations of Spouses
According to The Hague Convention on the
Law applicable to Matrimonial Property
Regimes, the governing law is:
a. Internal law designated by the spouses
before the marriage; or
b. In the absence thereof, the internal law of
the state in which both spouses fix their
habitual residence.
Divorce Decrees Obtained by Filipinos
In the case of Republic v. Tanedo-Manalo
[G.R. No. 221029 (2018)], the Supreme Court
declared that “the foreign divorce secured by a
Filipino against a foreign spouse is also
considered valid in the Philippines.”
Principle of Immutability
The applicable law continues notwithstanding
any change of their nationality or habitual
residence. [Art. 7, The Hague Convention on
Matrimonial Property Regime]
Governing Law
Traditional approach: LEX
CELEBRATIONIS
Governing Law for Filipinos: Philippine Law
Under Philippine law, absent a contrary
stipulation in a marriage settlement, property
relations are governed by Philippine law [Art.
80, FC]
iii.
Annulment and Declaration of
Nullity
LOCI
Modern Approach: LAW OF THE MARITAL
DOMICILE because it is considered to have
the most significant interest in the status of the
spouses.
Note: In both choice of law approaches, since
the action turns on the validity of the marriage,
lex fori, which is crucial in divorce, plays no
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substantial role in annulment and declaration of
nullity.
Bases of Jurisdiction
a. Lex loci celebrationis,
b. Law of marital domicile,
c. Any court which acquires
jurisdiction over the parties.
iv.
personal
Bases of Adoption Jurisdiction
General Rule: Child’s personal law, if the
adopter and adoptee have different domiciles
Exception: Adopter’s personal law is
considered, if the child’s domicile is merely
constructive
Governing law on the process of adoption: LEX
DOMICILII
Parental Relations
Includes paternity which is the civil status of the
father or mother with respect to the child and
filiation which is the status of the child in
relation to his parents.
b. CHOICE OF LAW IN PROPERTY
1. The Controlling Law
a. Immovables: LEX SITUS
1. Determined by the law of the place
where the land is situated
2. Connecting factor is immovable
itself and not the parties
Governing Law
Legitimacy of the child is submitted to the
personal law of the parents which is either: 1)
Lex nationalii; or 2) Lex domicilii.
Note: In the Philippines, it is determined by the
national law of the parents. If the parents
belong to different nationalities, it is determined
by the national law of the father.
Determination of Legitimacy of a Child
Kinds of filiations
a. Natural
1. Legitimate – governed by the personal
law of the father
2. Illegitimate – governed by the personal
law of the mother
b. Adopted
Parental Authority over the Child
Most countries follow the personal law of the
father.
In the Philippines, joint exercise of parental
authority by the father and mother [Art. 211,
FC]
v.
CIVIL LAW
PERSONS AND FAMILY RELATIONS
b. Movables:
i.
Lex Domicilii
Rights over movables are governed by the law
of owner’s domicile. For simplicity and
convenience because it is difficult to anticipate
where they may be situated at a given time.
ii.
Lex Situs
Based on the state’s power over its territory.
State where property is located has the sole
power to decide the validity and effects of
transfer of the property.
iii.
Lex Loci Actus
Law of the place where the transaction was
completed.
iv.
Proper Law of The Forum
Law of the state having the most real
connection with the transfer.
Adoption
An act by which relations of paternity and
affiliation are recognized as legally existing
between persons not so related by nature.
Note: In the Philippines however, in light of
Article 16 of the CC, one need not classify the
subject property, as the aforementioned
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provision expressly provides that, “real and
personal property are subject to the law of the
country where they are situated (LEX SITUS).”
Traditional approach – physically part of the
country and subject to the laws
Modern approach – situs is the place most
closely and significantly related to the issue
Thus, the only time the court has to classify the
subject property is when it is located in a
foreign country WHICH HAS A LAW THAT
DISTINGUISHES BETWEEN REAL AND
PERSONAL PROPERTY. [Coquia and
Aguiling-Pangalangan]
2. Capacity
Property
to
Transfer
or
Acquire
Real property – governed by the law of the
place where the property is located (LEX
SITUS)
3. Extrinsic and
Conveyances
Intrinsic
Validity
of
Formalities, essential validity, and effects of
conveyance – governed by LEX SITUS.
Rationale: The validity and effect of
conveyance of property are treated as a
question of property rather than contract.
4. Exception to Lex Situs Rule
a. The transaction does not affect transfer
of title to/ownership of the land – LEX
INTENTIONIS or LEX VOLUNTATIS
b. Contracts where real property is
offered by way of a security for the
performance of an obligation such as a
loan.
1. LOAN – covered by rules on
ordinary contracts
2. MORTGAGE – LEX SITUS
c. Testate or intestate succession and
capacity
to
succeed
–
LEX
NATIONALII
CIVIL LAW
5. Situs of Certain Properties
Situs of Personal Property for Tax
Purposes
The maxim mobilia sequuntur personam has
been viewed as a mere fiction of law having its
origins
in
considerations
of
general
convenience and public policy. It cannot be
applied to limit the right of the state to tax
property within its jurisdiction. It yields to
established facts of legal ownership, actual
presence, and control elsewhere, and cannot
be applied if it would result in inescapable and
patent injustice. [Wells Fargo Bank and Union
Trust Compny v. Collector, G.R. No. 46720
(1940)]
Situs of Money
Where such funds are located physically or
where the institution holding such funds is
located.
Situs of Debts
Unsettled in Philippine jurisdiction, however,
Prof. Aguiling-Pangalangan suggests that the
law which governs the contract from which the
debt arises shall also govern the transfer of the
debt.
Corporate Shares of Stock
i.
For tax purposes – domicile of the
corporation
ii.
For sale – place where the title to
the goods passes from the seller to
the buyer
c. CHOICE
OF
CONTRACTS
LAW
IN
1. Extrinsic Validity of Contracts
LEX LOCI CELEBRATIONIS
Art. 17, CC. 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.
When the acts referred to are executed before
the diplomatic or consular officials of the
Republic of the Philippines in a foreign country,
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the solemnities established by Philippine laws
shall be observed in their execution.
This principle is derived from a broader
proposition that the place governs the act
(locus regit actum).
CIVIL LAW
Contracts with Arbitration Clause
Arbitration clause – a provision in a contract
stipulating that any dispute arising from the
contract shall be submitted to a particular body
for arbitration.
An arbitration clause, stipulating
arbitral award is final and binding,
oust our courts of jurisdiction
international arbitral award, is still
reviewable under certain conditions.
2. Intrinsic Validity of Contracts
LEX LOCI CONTRACTUS
Law of the place of making. Looks into where
“the last act is done which is necessary to bring
the binding agreement into being so far as the
acts of the parties are concerned.”
LEX LOCI SOLUTIONIS
Law of the place of performance governs all
matters relating to the:
a. Time
b. Place and manner of performance
c. Sufficiency of performance
d. Valid excuses for non-performance
that the
does not
as the
judicially
The pertinent features of R.A. 9285 applying
and incorporating the UNCITRAL Model Law
are the following: (1) the RTC must refer to
arbitration in proper cases; (2) foreign arbitral
awards must be confirmed by the RTC; (3) the
RTC has jurisdiction to review foreign arbitral
awards; (4) grounds for judicial review different
in domestic and foreign arbitral awards; (5)
RTC decision of assailed foreign arbitral award
appealable. [Korea Technologies v. Lerma,
G.R. No. 143581, 2008]
5. Adhesion Contracts
LEX LOCI INTENTIONIS
Law intended by the parties. Intent may be
expressed in a choice-of-law provision, unless
contrary to law, morals, good customs, public
order or public policy of the Philippines [Art.
1306, CC]; or may be implied from the parties’
contemporaneous and subsequent acts.
3. Capacity to Enter into Contracts
Governed by the personal law of the parties –
a. LEX NATIONALII; or
b. LEX DOMICILII
Contracts that are not negotiated by the parties
and drafted by only one dominant party. The
only participation of the other party would be to
affix his signature.
General Rule: Not void per se.
Exception: The court may not recognize the
law stipulated and invoke public interest or
public policy, when there is an undue
advantage made by a dominant party.
6. Special Contracts
4. Choice of Law Issues in Conflicts
Contracts Cases
Choice of Forum Clause
Under the principle of freedom of contract,
parties may stipulate the law to govern their
contract.
● Questions of venue, not jurisdiction
● Includes arbitration, not only choice of
court.
a. Carriage of Goods by Sea
b. Contracts
for
International
Air
Transportation
1. The
Warsaw
Convention
was
concluded in order to establish uniform
rules and regulations on the liability of
international airline carriers in cases of
death, injuries of passengers, or loss or
damage of cargo.
2. Any action for damages may be
brought either:
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a. In the court of the domicile of
the carrier; OR
b. In the principal place of
business of the carrier; OR
c. In the place of business of the
carrier through which the
contract has been made; OR
d. Before the court at the place of
destination.
c. The procedural rules of the forum shall
apply.
7. Limitations to Choice of Law
a. Parties may not select a law that has no
connection at all with the transaction or the
parties.
b. If the law selected should change, the law
as changed will govern.
Exception: If the change is so
revolutionary
that
it
was
never
contemplated by the parties.
c. Should not be interpreted to oust the
jurisdiction court already acquired over the
parties and the subject matter
d. Public policy deemed written into contracts
impressed with public interest
e. Cognovit Clauses / Confession of
Judgment Clauses – debtor may agree to
be subject to the jurisdiction of a specific
court in case of breach or default in
payment.
d. CHOICE OF LAW IN WILLS,
SUCCESSION
AND
ADMINISTRATION
OF
ESTATES
1. Extrinsic Validity of Wills
Includes age, testamentary capacity of the
testator, and the form of the will.
Art. 17, CC. 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.
CIVIL LAW
Art. 815, CC. When a Filipino is in a foreign
country, he is authorized to make a will in any
of the forms established by the law of the
country in which he may be. Such will may be
probated in the Philippines.
Art. 816, CC. 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.
Art. 817, CC. 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.
Filipino nationals
a. LEX LOCI CELEBRATIONIS – formalities
established by the law of the country where
the will is executed [Art. 17 and 815, CC]
b. LEX NATIONALII – formalities prescribed
under Philippine law
Note: There is no express provision, only by
analogy with rules applicable to aliens. The
ratio is that it cannot be assumed that the Code
places the Filipino citizen in a worse position
that the alien in relation to our law
For Aliens
a. LEX NATIONALII [Art. 816 and 817, CC]
b. LEX DOMICILII
c. LEX LOCI CELEBRATIONIS
With Regard to Joint Wills
a. By Filipinos: VOID under Philippine law on
the ground of public policy. [Art. 818, CC]
b. By Foreigners: VALID UNLESS it affects
heirs in the Philippines.
2. Intrinsic Validity of Wills
Governed by the national law of the decedent
[Art. 16, CC]
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Includes issues of substance such as order of
succession, amount of successional rights and
intrinsic validity of testamentary provisions [Art.
16, CC]
GR:
Lex
Loci
Celebrationis
EXN: Art. 35(1), (4), (5),
(6), FC; Art. 36-38, FC.
Intrinsic
Validity:
Personal law
Personal
relations
between
spouses:
Personal Law
Property relations: see
Art. 80, FC
3. Interpretation of Wills
Governed by the rules of interpretation of the
national law of the decedent [Art. 16, CC]
4. Revocation
When done in the Philippines
Philippine Law applies
Done outside the Philippines, by a person
domiciled in the Philippines
a. LEX DOMICILII – Philippine Law
b. LEX LOCI ACTUS – Law of the place of
revocation
c. LEX LOCI CELEBRATIONIS – Law of the
place where the will was made [Balane]
Done outside the Philippines, by a nondomiciliary
a. LEX LOCI CELEBRATIONIS – Law of the
place where the will was made
b. LEX DOMICILII – Law of the place where
testator was domiciled at the time of
revocation
5. Probate
FORUM LAW governs because disallowance
is essentially procedural in character.
However, the court will look into the law of the
foreign state where the will was made as to
whether the extrinsic requirements in the
execution of the will have been complied with.
SUMMARY OF CHOICE OF LAW RULES
Art. 15, CC and Art. 16,
CC
Art. 50, CC and Art. 51,
Domicile
CC
Personal Status Personal Law (either
and Capacity
Nationality or Domicile)
FAMILY RELATIONS
Marriage
Extrinsic Validity:
Nationality
CIVIL LAW
Generally, lex rei sitae
Divorce
and Lex fori for grounds of
Separation;
divorce
Grounds
for
legal separation
Traditional
Approach:
Annulment and Lex loci celebrationis
Declaration
of Modern Approach: Lex
Nullity
domicilii
(marital
domicile)
Determination
of
legitimacy: personal law
Parental
authority:
Parental
personal law of the father
relations
Adoption: personal law of
the child if adopter and
adoptee have different
nationalities
PROPERTY
Immovables
Lex situs
Lex domicilii
Movables
Lex situs
Lex loci actus
Property in the Lex situs, WON real or
Philippines
personal
Extrinsic validity: Lex
situs
Intrinsic validity: Lex situs
Conveyances
UNLESS Lex intentionis
is different and is
PROVED
CONTRACTS
Lex Loci Celebrationis
Extrinsic Validity UNLESS clear that the
intention was otherwise
Lex contractus
Intrinsic Validity Lex solutionis
Lex intentionis
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Capacity
to Personal law
enter
into
contract
Interpretation of Lex intentionis
Contract
WILLS, SUCCESSIONS,
ADMINISTRATION OF ESTATES
FILIPINO who makes a
will ABROAD:
Lex Nationalii
Lex Loci Celebrationis
Extrinsic Validity ALIEN who makes a will
IN THE PHILIPPINES:
Lex nationalii
Lex domicilii
Lex loci celebrationis
Intrinsic validity
Lex nationalii
Lex nationalii
Interpretation of
Wills
Revocation
Probate
Trusts
If
clear
and
unambiguous,
Lex
intentionis
DONE ABROAD BY
ONE NOT DOMICILED
IN THE PHILIPPINES:
Lex loci celebrationis
Lex domicilii
DONE ABROAD BY
ONE DOMICILED IN
THE PHILIPPINES:
Lex loci actus
Lex domicilii
Lex loci celebrationis
DONE WITHIN THE
PHILIPPINES:
Lex loci actus (Hence,
Philippine law)
Lex fori
Lex loci celebrationis
If there is an effective
choice of law: courts of
the place where the trust
is being administered
If there is no effective
choice of law: law that
will sustain the validity of
the trust (place of
administration
or
domicile)
CIVIL LAW
G. HUMAN RELATIONS
[See XII. Torts, Section A; Principles. This
section is a continuation of Section A.]
1. Violation of Human Dignity
Art. 26, CC. Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following and
similar acts, though they may not constitute a
criminal offense, shall produce a cause of action for
damages, prevention and other relief:
(1)
Prying into the privacy of another’s
residence;
(2)
Meddling with or disturbing the private life
or family relations of another;
(3)
Intriguing to cause another to be alienated
from his friends;
Vexing or humiliating another on account of his
religious beliefs, lowly station in life, place of birth,
physical defect, or other personal condition.
Article 26 specifically applies to intentional acts
which fall short of being criminal offenses. It
itself expressly refers to tortious conduct which
"may not constitute criminal offenses." The
purpose is precisely to fill a gap or lacuna in the
law where a person who suffers injury because
of a wrongful act not constituting a crime is left
without any redress. Under Article 26, the
person responsible for such act becomes liable
for "damages, prevention and other relief." In
short, to preserve peace and harmony in the
family and in the community, Article 26 seeks
to eliminate cases of damnum absque injuria in
human relations [MVRS Publications v. Islamic
Da'wah Council, G.R. No. 135306 (2003)].
The principal rights protected under this
provision are the following:
1. The right to personal dignity
2. The right to personal security
3. The right to family relations
4. The right to social intercourse
5. The right to privacy
6. The right to peace of mind
Note: Coverage of Art. 26 is not limited to those
enumerated therein, the enumeration being
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merely examples of acts violative of a person’s
rights to dignity, personality, privacy and peace
of mind. Other “similar acts” are also covered
within the scope of the article.
a. Violation of personal dignity
In order to be actionable it is not necessary that
the act constitutes a criminal offense. The
remedy afforded by the law is not only the
recovery of damages. Injunction and other
appropriate reliefs may also be obtained by the
aggrieved party.
b. Violation of Privacy
Privacy is the right to be let alone, or to be free
from unwarranted publicity, or to live without
unwarranted interference by the public in
matters in which the public is not necessarily
concerned. This right is purely personal in
nature, such that it can be invoked only by the
person actually injured, it is subject to a proper
waiver, and it ceases upon death. However,
the privilege may be given to heirs of a
deceased to protect his memory, to protect the
feelings of the living heirs.
Reasonableness of Expectation of Privacy
Test: [Ople v. Torres, G.R. No. 127685 (1998)]
a. Whether by one’s conduct, the individual
has exhibited an expectation of privacy
b. Whether this expectation is one that
society recognizes and accepts as
reasonable
c. Interference with relations
An interference with the continuance of
unimpaired interests founded upon the relation
in which the plaintiff stands toward one or more
third persons [Prosser and Keeton].
Kinds
1. Family relations
2. Social relations
3. Economic relations
4. Political relations
CIVIL LAW
1. Family Relations
Alienation of affection
Elements:
1. Wrongful conduct of the defendant:
intentional and malicious enticing of a
spouse away from the other spouse
2. Loss of affection or consortium (Note:
Complete absence of affection
between the spouses is not a defense.)
3. Causal connection between such
conduct and loss
Liability of Parents, Guardians or Kin
The law distinguishes between the right of a
parent to interest himself in the marital affairs
of his child and the absence of rights in a
stranger to meddle in such affairs.
1. Such distinction between the liability of
parents and that of strangers is only in
regard to what will justify interference.
2. A parent is liable for alienation of
affections resulting from his own malicious
conduct, as where he wrongfully entices
his son or daughter to leave his or her
spouse, but he is not liable unless he acts
maliciously, without justification and from
unworthy motives.
3. He is not liable where he acts and
advises his child in good faith with
respect to his child's marital relations in
the interest of his child as he sees it…
4. He may in good faith take his child into his
home and afford him or her protection and
support, so long as he has not maliciously
enticed his child away or does not
maliciously entice or cause him or her to
stay away from his or her spouse. This rule
has more frequently been applied in the
case of advice given to a married daughter,
but it is equally applicable in the case of
advice given to a son. [Tenchavez v.
Escaño, G.R. No. L-19671 (1965)].
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CIVIL LAW
2. Social Relations
Meddling with or disturbing family relations
Art. 26, CC. Every person shall respect the
dignity, personality, privacy and peace of
mind of his neighbors and other persons.
The following and similar acts, though they
may not constitute a criminal offense, shall
produce a cause of action for damages,
prevention and other relief;
xxx
(2) Meddling with or disturbing the private life
or family relations of another;
3. Economic Relations
Art. 1314, CC. Any person who induces
another to violate his contract with another
person shall be liable for damages to the
other contracting party.
Elements of tort interference: [So Ping Bun
v. CA, G.R. No. 120554 (1999)]
1. Existence of a valid contract
2. Knowledge on the part of the third person
of the existence of contract; and
3. Interference of the third person is without
legal justification or excuse.
Everyone has a right to enjoy the fruits and
advantages of his own enterprise, industry, skill
and credit. He has no right to be protected
against competition; but he has a right to be
free from malicious and wanton interference,
disturbance or annoyance. If disturbance or
loss comes as a result of competition, or the
exercise of like rights by others, it is damnum
absque injuria, unless some superior right by
contract or otherwise is interfered with. Thus, a
plaintiff loses his cause of action if the
defendant provides a sufficient justification for
such interference, which must be an equal or
superior right in themselves. The defendant
may not legally excuse himself on the ground
that he acted on a wrong understanding of his
own rights, or without malice, or bona fide, or
in the best interests of himself [Gilchrist v.
Cuddy, G.R. No. 9356 (1915)].
Bad faith/Malice is required to make the
defendant liable for damages in cases of
tortuous interference [So Ping Bun v. CA,
supra].
4. Dereliction of Duty
Art. 27, CC. Any person suffering material or
moral loss because a public servant or
employee refuses or neglects, without just
cause, to perform his official duty may file an
action for damages and other relief against
the latter, without prejudice to any
disciplinary administrative action that may be
taken.
This applies only to acts of nonfeasance or the
nonperformance of some acts which a person
is obliged or has responsibility to perform. The
duty of the public servant must be ministerial in
character. If the duty is discretionary, he is not
liable unless he acted in a notoriously arbitrary
manner.
The defense of good faith is not available
because an officer is under constant obligation
to discharge the duties of his office, and it is not
necessary to show that his failure to act was
due to malice or willfulness.
Requisites: [Amaro v. Sumanguit, G.R. No. L14986 (1962)]
1. Defendant is a public officer charged
with a performance of a duty in favor of
the plaintiff;
2. He refused or neglected without just
cause to perform the duty;
3. Plaintiff sustained material or moral
loss as a consequence of such nonperformance;
4. The amount of such damages, if
material.
Art. 32, CC. Any public officer or employee,
or any private individual, who directly or
indirectly obstructs, defeats, violates or in
any manner impedes or impairs any of the
following rights and liberties of another
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person shall be liable to the latter for
damages:
(1) Freedom of religion;
CIVIL LAW
nature and cause of the accusation against
him, to have a speedy and public trial, to
meet the witnesses face to face, and to have
compulsory process to secure the
attendance of witness in his behalf;
(2) Freedom of speech;
(3) Freedom to write for the press or to
maintain a periodical publication;
(4) Freedom
detention;
from
arbitrary
or
illegal
(5) Freedom of suffrage;
(6) The right against deprivation of property
without due process of law;
(7) The right to a just compensation when
private property is taken for public use;
(8) The right to the equal protection of the
laws;
(9) The right to be secure in one's person,
house, papers, and effects against
unreasonable searches and seizures;
(10) The liberty of abode and of changing
the same;
(11) The privacy of communication and
correspondence;
(12) The right to become a member of
associations or societies for purposes not
contrary to law;
(13) The right to take part in a peaceable
assembly to petition the government for
redress of grievances;
(14) The right to be free from involuntary
servitude in any form;
(15) The right of the accused against
excessive bail;
(16) The right of the accused to be heard by
himself and counsel, to be informed of the
(17) Freedom from being compelled to be a
witness against one's self, or from being
forced to confess guilt, or from being induced
by a promise of immunity or reward to make
such confession, except when the person
confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel
and unusual punishment, unless the same is
imposed or inflicted in accordance with a
statute which has not been judicially
declared unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article,
whether or not the defendant's act or
omission constitutes a criminal offense, the
aggrieved party has a right to commence an
entirely separate and distinct civil action for
damages, and for other relief. Such civil
action shall proceed independently of any
criminal prosecution (if the latter be
instituted), and mat be proved by a
preponderance of evidence.
The indemnity shall include moral damages.
Exemplary damages may also be
adjudicated.
The responsibility herein set forth is not
demandable from a judge unless his act or
omission constitutes a violation of the Penal
Code or other penal statute.
Violation of Civil and Political Rights
Both private individuals and public officers can
be held liable under this provision.
This article further implements the civil liberties
guaranteed by the Constitution and creates an
absolutely separate and independent civil
action for the violation of these civil liberties.
Malice not required, to require that a person act
with malice before he is held liable under this
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article would defeat the purpose to protect
individual rights. The object of the article is to
put an end to official abuse under the guise of
being done in good faith.
Liability for violation or obstruction of civil
liberties
Any person, whether public officer/employee or
private individual, who directly or indirectly
obstructs, violates or in any manner impede or
impair the rights of a person as enumerated
(these are actually rights under the Bill of
Rights) shall be liable to the latter for damages.
Separate and distinct civil action; quantum
of evidence
The aggrieved party has the right to commence
a civil action for damages separate, distinct
and independent of any criminal action that
may arise from the same violation of right. Only
preponderance of evidence is required.
Type of damages
Indemnity shall include moral damages.
Exemplary damages for also be awarded.
Limited liability for judges
Persons are liable under this provision whether
or not their act or omission constitutes a
criminal offense. But Judges can only be held
liable only when their act or omission in
violation of civil liberties of others also
constitutes a criminal offense.
Art. 34, CC. When a member of a city or
municipal police force refuses or fails to
render aid or protection to any person in case
of danger to life or property, such peace
officer shall be primarily liable for damages,
and the city or municipality shall be
subsidiarily responsible therefor. The civil
action
herein recognized shall
be
independent of any criminal proceedings,
and a preponderance of evidence shall
suffice to support such action.
The primary liability upon a member of a local
police force is already covered by Article 27.
However, Article 34 creates a separate civil
CIVIL LAW
action to enforce that liability, independent of
any criminal proceedings.
Article 34 makes the city or municipality
subsidiarily liable for the omission of its police
officers to render aid or protection to anyone.
This liability, therefore, can be enforced against
the city or municipality only when the guilty
police officer is insolvent. However, it cannot
be avoided by proving that the city or
municipality has exercised due diligence in the
selection and supervision of its policemen.
[Tolentino]
5. Civil Action
Art. 29, CC. When the accused in a criminal
prosecution is acquitted on the ground that
his guilt has not been proved beyond
reasonable doubt, a civil action for damages
for the same act or omission may be
instituted. Such action requires only a
preponderance of evidence. Upon motion of
the defendant, the court may require the
plaintiff to file a bond to answer for damages
in case the complaint should be found to be
malicious.
If in a criminal case the judgment of acquittal
is based upon reasonable doubt, the court
shall so declare. In the absence of any
declaration to that effect, it may be inferred
from the text of the decision whether or not
the acquittal is due to that ground.
Acquittal predicated on the conclusion “that the
guilt of the defendant has not been
satisfactorily established” is equivalent to one
on reasonable doubt, and a suit to enforce civil
liability for the same act or omission lies. [PNB
v. Catipon, G.R. No. L-6662 (1956)]
The accused once found by the court not to
have been the author of an offense and being
acquitted of the accusation under no condition
can he be made civilly responsible for the harm
caused and for the damages and losses
suffered by reason of the criminal act. [Almeida
v. Abaroa, G.R. No. L-2993 (1907)]
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Art. 30, CC. When a separate civil action is
brought to demand civil liability arising from
a criminal offense, and no criminal
proceedings are instituted during the
pendency of the civil case, a preponderance
of evidence shall likewise be sufficient to
prove the act complained of.
Under Art. 100 of the Civil Code, “every person
criminally liable for a felony is also civilly liable”.
Civil Liability is dependent upon facts, if true,
would constitute a crime.
The civil liability is a necessary consequence of
criminal responsibility and is to be declared and
enforced in the criminal proceeding. The Final
Judgement rendered in the case constitutes a
bar to the subsequent civil action for damages
based upon the same case. [Tolentino]
Art. 31, CC. When the civil action is based
on an obligation not arising from the act or
omission complained of as a felony, such
civil action may proceed independently of the
criminal proceedings and regardless of the
result of the latter.
This article is intended to cover cases where
the civil action can be based on an act or
omission distinct from that which is complained
of as a felony. [Tolentino]
Art. 33, CC. In cases of defamation, fraud,
and physical injuries a civil action for
damages, entirely separate and distinct from
the criminal action, may be brought by the
injured party. Such civil action shall proceed
independently of the criminal prosecution,
and shall require only a preponderance of
evidence.
In these cases, a civil action may be filed
independently of the criminal action, even if
there has been no reservation made by the
injured party; the law in itself makes such
reservation. The result of the civil action is thus
independent of the result of the criminal action.
CIVIL LAW
The underlying purpose for this independent
civil action (also in Articles 32 and 34) is to
allow the citizen to enforce his rights in a
private action brought by him, regardless of the
action of the State attorney.
The term “physical injuries” mean bodily
injuries, not the crime of physical injuries
defined in the Revised Penal Code, whether
inflicted with intent to kill or not. [Tolentino]
Art. 35, CC. When a person, claiming to be
injured by a criminal offense, charges
another with the same, for which no
independent civil action is granted in this
Code or any special law, but the justice of the
peace finds no reasonable grounds to
believe that a crime has been committed, or
the prosecuting attorney refuses or fails to
institute criminal proceedings, the complaint
may bring a civil action for damages against
the alleged offender. Such civil action may
be supported by a preponderance of
evidence. Upon the defendant's motion, the
court may require the plaintiff to file a bond
to indemnify the defendant in case the
complaint should be found to be malicious.
If during the pendency of the civil action, an
information should be presented by the
prosecuting attorney, the civil action shall be
suspended until the termination of the
criminal proceedings.
The right to file a civil action provided in the first
paragraph also exists with respect to offenses
for which the law expressly provides a separate
civil action independent of the criminal
prosecution.
However, the second paragraph only applies to
offenses for which no independent civil action
is provided. The filing of a criminal case
suspends the civil case, inasmuch as the
decision in the civil case would generally
depend upon the judgment in the criminal case.
But if the offense is one for which an
independent civil action is provided by law
(Articles 32-34), the filing of the criminal action
will not suspend the civil action.
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Art. 36, CC. Pre-judicial questions which
must be decided before any criminal
prosecution may be instituted or may
proceed, shall be governed by rules of court
which the Supreme Court shall promulgate
and which shall not be in conflict with the
provisions of this Code.
A pre-judicial question is one raised in a
criminal case by the accused, which is of such
a nature that, if decided favorably to the
accused in a civil case, will cause the supposed
crime to disappear; the prejudicial question
must be determinative of the case before the
court, and, that jurisdiction to try said question
must be lodged in another tribunal.
H. APPLICABILITY OF
PENAL LAWS
Territoriality Principle
Penal laws and those of public security and
safety shall be obligatory upon all who live or
sojourn in the Philippine territory, subject to the
principles of public international law and to
treaty stipulations. [Art. 14, CC]
Exemptions to the Territoriality Principle
under International Law (Theory of
Extraterritoriality):
1. When the offense is committed by a
foreign sovereign while in Philippine
territory
2. When the offense is committed by
diplomatic representatives
3. When the offense is committed in a
public or armed vessel of a foreign
country.
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PERSONS AND
FAMILY RELATIONS
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Capacity and incapacity depends on the law,
therefore it cannot be modified by agreements.
It is a matter of public interest. [Tolentino]
A. PERSONS
Persons
Any being, physical, moral, real, juridical and
legal susceptible of rights and obligations or
being the subject of legal relations. [Tolentino,
citing Sanchez Roman and Planio and Ripert]
Personality
The aptitude of a person of becoming the
subject of legal relations, inherent in every
natural person and is lost only through death.
[Tolentino]
Status
The legal condition or class to which one
belongs in society or the legal and juridical
position of the individual in society, which
determines the nature and number of rights of
an individual. [Tolentino]
Status can be political and civil, and civil status
may be grouped into three classes.
1. As a member of society
a. Resident or non-resident
b. Citizen or alien
2. As a member of family
a. Single, married, widowed, divorced
b. Parent, child, brother or sister
c. Legitimate, illegitimate, adopted
3. As himself
a. Age, whether minor or major
b. Sex, whether male or female
c. Mental condition, whether sane or
insane
Juridical Capacity
Capacity to Act
Fitness of a person Power to do acts with
to be the subject of legal effect
legal relations
Passive
Active
Aptitude
for
the Aptitude to exercise
holding
and rights
enjoyment of rights
Inherent in natural Must be acquired
persons
Lost upon death
Lost through death
and other causes
Can exist without Must
exist
with
capacity to act
juridical capacity
Cannot be limited or May be restricted or
restricted
limited
1. Kinds of Persons
Persons could be natural or juridical.
1. Natural persons refer to individuals or
human beings who are created by
procreation.
2. Juridical persons are artificial, abstract
entities created through laws [Tolentino].
a. Natural Persons
Art. 37, CC. Juridical capacity, which is the
fitness to be the subject of legal relations, is
inherent in every natural person and is lost
only through death. Capacity to act, which is
the power to do acts with legal effect, is
acquired and may be lost.
Juridical capacity can exist even without
capacity to act; the existence of the latter
implies that of the former. Full civil capacity is
the existence of both capacity to act and
juridical capacity.
Article 40 provides that "the conceived child
shall be considered born for all purposes that
are favorable to it, provided it be born later with
the conditions specified in the following article"
(i.e., that the fetus be alive at the time it is
completely delivered from the mother's womb
as defined under Art. 41, CC). This proviso,
however, is not a condition precedent to the
right of the conceived child; for if it were, the
first part of Article 40 would become entirely
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useless and ineffective. [Quimiging v. Icao,
GR. No. L-26795 (1970)]
Characteristics of fetal personality
1. Limited – because it only has rights for
purposes favorable to it
2. Provisional/conditional – because it should
be born alive later before the rights can be
claimed
3. Can enjoy rights – inherit from will or
intestacy and be given donations even
before birth
A conceived child has a provisional personality
for all purposes favorable to it.
1. It is entitled to support [Quimiging v. Icao,
GR. No. L-26795 (1970)]
2. It may inherit or succeed [Art. 1025, CC]
3. It may receive donations [Art. 742, CC]
Period of Conception: the first 120 days of the
300 days preceding the birth of the child.
[Tolentino]
Art. 41, CC. For civil purposes, the fetus is
considered born if it is alive at the time it is
completely delivered from the mother’s
womb. However, if the fetus had an
intrauterine life of less than seven months, it
is not deemed born if it dies within twentyfour hours after its complete delivery from
the maternal womb.
Birth
The removal of the fetus from the mother’s
womb, which may be done naturally or
artificially by surgery. Before birth, the fetus is
not a person but merely a part of the internal
organs of the mother. But because of the
expectancy that it may be born, the law
protects it and reserves its rights, making its
legal existence, if born alive, retroact to the
moment of its conception. [Tolentino]
The presumption is that the baby was born
alive, and the burden of proof lies on those who
allege the contrary.
Intrauterine Life
7 months or more
Less than 7 months
CIVIL LAW
When Considered
Born
If alive (e.g.
breathe
independently,
upon delivery)
can
etc.
If
alive
after
completion of 24
hours from delivery
Since birth determines personality, an aborted
fetus never acquired legal rights or civil
personality because it was not alive at the time
of delivery from the mother’s womb. No
damages can be claimed in behalf of the
unborn child since an action for pecuniary
damages on account of personal injury or
death pertains primarily to the one injured. This
is not to say that the parents [of an aborted
fetus] are not entitled to collect any damages at
all. But such damages must be those inflicted
directly upon them as distinguished from the
injury or violation of the rights of the [aborted
fetus]” e.g. moral damages for their loss and
the disappointment of their parental
expectations (Art. 2217, CC). [Geluz v. CA,
G.R. No. L-16439 (1961)]
Death
Art. 42, CC. Civil personality is extinguished
by death. The effect of death upon the rights
and obligations of the deceased is
determined by law, by contract and by will.
Only natural or physical death. The law does
not recognize “civil death,” (i.e. death due to
conviction or a religious profession). [Tolentino]
For certain purposes, after the death of a
person, his personality continues in his
estate—the estate of a deceased person is
also considered as having legal personality
independent of the heirs, wherein the mass of
property, rights, and assets left by the decent
becomes directly vested and charged with his
rights and obligations. [Tolentino]
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Criminal liability ends with death but civil
liability may be charged against the estate
[People v. Tirol, G.R. No. L-30538 (1981)].
Art. 43, CC. If there is a doubt, as between
two or more persons who are called to
succeed each other, as to which of them died
first, whoever alleges the death of one prior
to the other, shall prove the same; in the
absence of proof, it is presumed that they
died at the same time and there shall be no
transmission of rights from one to the other.
The statutory presumption provided by Article
43 of CC applies only when there is doubt on
the order of death between persons who are
called to succeed each other. It does not apply
when there is credible eyewitness as to who
died first [Joaquin v. Navarro, G.R. No. 5426
(1953)].
Art. 43, CC v. Sec. 3(jj), Rule 131, Rules of
Court (hereinafter, ROC)
Art. 43, CC
Sec. 3(jj), Rule 131
Only use the presumptions when there are
no facts to get inferences from.
Only
used
for Cannot be used for
succession purposes succession purposes
In any circumstance
CIVIL LAW
PERSONS AND FAMILY RELATIONS
Only during death in
calamities,
wreck,
battle
or
conflagration
Rule 131, Section 3(jj) provides that if there
are no inferential/circumstantial evidences to
be inferred from, it can be presumed that when
two persons perish in the same calamity, and it
is not shown who died first, the survivorship is
determined from the probabilities resulting from
the strength and the age of the sexes.
[Tolentino]
Sec. 3(jj), Rule 131, ROC: Presumption of
Survivorship
Deceased A
Deceased B
Presumed
to have
survived
Under 15
Under 15
Older
Above 60
Above 60
Younger
Under 15
Above 60
Under 15
Above 15 but under 60, Male
different sex
Above 15 but under 60, Older
same sex
Under 15 but Between 15 Between 15
over 60
and 60
and 60
b. Juridical Persons
A juridical person is an abstract being, formed
for the realization of collective purposes, to
which the law has granted capacity for rights
and obligations. The entity must be recognized
as having its own rights and obligations which
are not that of its component members. Its
personality is manifested only in the realm of
patrimonial relations—it has no family and
personal rights. [Tolentino]
The following are juridical persons [Art. 44,
CC]:
1. The State and its political subdivisions;
2. Other corporations, institutions and
entities for public interest or purpose,
created by law; their personality begins as
soon as they have been constituted
according to law:
a. These are governed by the laws
creating or recognizing them. [par. 1,
Art. 45, CC]
b. Upon the dissolution of corporations,
institutions and other entities for public
interest or purpose their property and
other assets shall be disposed of in
pursuance of law or the charter
creating them. If nothing has been
specified on this point, the property and
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other assets shall be applied to similar
purposes for the benefit of the region,
province, city or municipality which
during the existence of the institution
derived the principal benefits from the
same. [Art. 47, CC]
3. Corporations,
partnerships
and
associations for private interest or
purpose to which the law grants a juridical
personality, separate and distinct from that
of each shareholder, partner or member.
a. Private corporations are regulated by
laws of general application on the
subject.
b. Partnerships and associations for
private interest or purpose are
governed by the provisions of this
Code concerning partnerships [pars. 2
and 3, Art. 45, CC].
Juridical persons may:
1. Acquire and possess property of all kinds.
2. Incur obligations.
3. Bring civil or criminal actions. [Tolentino]
Juridical persons are not completely at par with
natural persons as to capacity because it
cannot exercise rights which presuppose
physical existence, such as family rights,
making of wills, etc. But like natural persons, it
can have a nationality, a domicile, a name, and
a right to reputation. It can own and possess
property, dispose such property, enter into
contracts, and inherit by will. It can also incur
obligations. [Tolentino]
2. Capacity to act
Art. 37, CC. Juridical capacity, which is the
fitness to be the subject of legal relations, is
inherent in every natural person and is lost
only through death. Capacity to act, which is
the power to do acts with legal effect, is
acquired and may be lost.
Presumption of capacity: Capacity to act
must be supposed to attach to a person who
has not previously been declared incapable,
and such capacity is presumed to continue for
CIVIL LAW
so long as the contrary is not proved [Standard
Oil Co. v. Aranas (1911)]
Restrictions on Capacity to Act
Art. 38, CC. Minority, insanity or imbecility,
the state of being a deaf-mute, prodigality
and civil interdiction are mere restrictions on
capacity to act, and do not exempt the
incapacitated
person
from
certain
obligations, as when the latter arise from his
acts or from property relations, such as
easements.
Circumstances which modify, limit, or restrict
capacity to act:
1. Minority
2. Insanity or imbecility
3. Deaf-mutism
4. Civil Interdiction (Penalty)
5. Prodigality
6. Family relations
7. Alienage
8. Absence
9. Insolvency and trusteeship
Only religious belief and political opinion are
the circumstances which do not limit capacity
to act according to CC. [Art. 39, CC]
General Rule: Incapacitated persons are not
exempt from certain obligations arising from his
acts or property relations. Restrictions in
capacity to act generally affect obligations
arising from contracts only. As a rule, they do
not affect those arising from law, quasi-delicts,
etc. Also, certain rights are not affected by
incapacity, such as right to inherit or to support.
[Perez]
a. Minority
Article 234 of the Family Code (hereinafter FC)
is
amended,
lowering
the
age
of
emancipation/majority from 21 to 18 years.
Articles 235 and 237 of FC are repealed.
Who are minors?
Those whose age are below the age of
majority.
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Effects on Contracts
1. They cannot give consent to a contract [Art.
1327 (1), CC]
2. Minority cannot be asserted by the other
party in an action for annulment [Art. 1397,
CC]
3. Not obliged to make restitution except
insofar as he has been benefited [Art.
1399, CC]
4. Minor has no right to demand the
thing/price voluntarily returned by him [Art.
1426, CC]
5. Minor has no right to recover voluntarily
paid sum or delivered thing, if consumed in
good faith [Art. 1427, CC]
6. Must pay reasonable amount for
necessaries delivered to him [Art. 1489,
CC]
7. A contract where one of the parties is a
minor is voidable [Art. 1390(1), CC]
8. A contract is unenforceable when both of
the parties are minors (incapable of giving
consent) [Art. 1403(3), CC]
Estoppel works against minors who
misrepresent their ages in a contract and are
compelled to comply with its terms. [Mercado
v. Espiritu, G.R. No. L-11872 (1917)]
However, when a minor made no active
misrepresentation as to his minority and such
minority is known to the other party, the
contract may be annulled by the minor upon
attaining the age of majority. [Bambalan v.
Maramba, G.R. No. L-277710 (1928)]
Failure of the minors to disclose their age does
not constitute fraud. Because it was merely a
passive misrepresentation, they were not
estopped and cannot be legally bound by their
signatures in the contract. They do not have to
pay the interest, they may just return their
portion of the loan. However, the minors are
obliged to make restitution insofar as they have
been benefited from what they received [Art.
1399, CC; Braganza v. Villa Abrille, G.R. No. L12471 (1959)].
CIVIL LAW
Effects on Marriage
1. May not yet contract marriage [Art. 5, FC].
2. Marriages, where one of the parties is
below 18, even with the consent of
parents/guardians, are void [Art. 35, FC].
Effect on Crimes [RA 9344: Juvenile Justice
and
Welfare
Act
of
2006]
General Rule: EXEMPTED from criminal
liability
Exception: Acted with discernment, and the
minor is between 15 and 18 years of age.
Section 6 states that a child fifteen (15) years
of age or under at the time of the commission
of the offense shall be exempt from criminal
liability but will be subject to an intervention
program.
• A child above 15 but below 18 shall also be
exempted from criminal liability and be
subjected to an intervention program,
unless the child has acted with
discernment.
• Exemption from criminal liability does not
include exemption from civil liability.
Section 7 states that a child in conflict with the
law shall enjoy the presumption of minority and
shall enjoy all the rights until he or she is
proven to be 18 years old or older.
Section 20 states that if the child taken into
custody is 15 years old or below, the authority
which had the initial contact with the child has
the duty to immediately release the child to the
custody of his/her parents, guardians, or
nearest relatives.
• If those cannot be located, the child
may be released to a duly registered
NGO or religious organization, a
barangay official or member of the
Barangay Council for the Protection of
Children, or to the DSWD.
Section 57 states that any conduct not
considered an offense or not penalized if
committed by an adult shall not be considered
an offense and shall not be punished if
committed by a child.
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Section 58 states that persons below 18 years
of age shall be exempt from prosecution for the
crime
of
vagrancy
and
prostitution,
mendicancy, and sniffing of rugby, as such are
inconsistent with the United Nations
Convention on the Rights of the Child.
Section 59 states that no death penalty shall
be imposed upon children in conflict with the
law.
b. Insanity
Insanity includes many forms of mental
disease, either inherited or acquired. A person
may not be insane but only mentally deficient
(idiocy,
imbecility,
feeble-mindedness).
Insanity is the complete deprivation of reason
or intelligence or power to discern [People v.
Austria].
On the other hand, imbecility is the weakness
of mind which, without depriving the person
entirely of the use of his reason, leaves only the
faculty of conceiving the most common and
ordinary ideas and such as relate almost
always to physical wants and habits. [Black’s
Law Dictionary, 2nd Edition]
Prevailing Presumption: Every person is of
sound mind, in the absence of proof to the
contrary. [par. 1, Art. 800, CC]
It is presumed that a person who enters into a
contract is of sound mind. The burden of proof
of insanity rests upon him who alleges insanity.
[Engle v. Doe, G.R. No. L-23317 (1925)] (see
Exception below)
Effect on Contracts
1. Incapacity to give consent to a contract
[Art. 1327(2), CC]
2. Contracts entered into during lucid
intervals are valid [Art. 1328, CC]. Burden
of proof lies with party asserting the
contract was entered into by the insane
during a lucid interval.
3. Restitution of benefits [Art. 1399, CC]
4. Voidable if one of the parties is insane [Art.
1390, CC]
CIVIL LAW
5. Unenforceable if both of the parties are
insane [Art. 1403 (3), CC]
Effect on Crimes
General rule: EXEMPTED from criminal liability
[Art. 12(1), RPC]
Exception: Acted during lucid interval [Art.
1328, CC].
Effect on Marriage
May be annulled if either party was of unsound
mind unless such party, after coming to reason,
freely cohabited with the other. [Art. 45(2), FC]
Action for annulment of marriage must be filed
by the sane spouse who had no knowledge of
the other’s insanity, or by any relative/guardian
of the insane before the death of either party;
or by the insane spouse during a lucid interval
or after regaining sanity. [Art. 47(2), FC]
In the absence of proof that the defendant had
lost his reason or became demented a few
moments prior to or during the perpetration of
the crime, it is presumed that he was in a
normal condition of mind. [USA v. Vaguilar,
G.R. No. L-9471 (1914)]
c. Deaf-Mutism
Effect on Contracts
1. Cannot give consent to a contract if
he/she also does not know how to write
[Art. 1327(2), CC]
2. Can make a valid WILL, provided: he
must personally read the will. The
contents of the same have either been
read personally by him or otherwise
communicated to him by 2 persons
[Art. 807, CC]
3. Cannot be a witness to the execution of
a will [Art. 820, CC]
4. Voidable if one of the parties is a deafmute who does not know how to write
[Art. 1390, CC]
5. Unenforceable if both of the parties are
deaf-mutes and do not know how to
write [Art. 1403(3), CC]
Page 35 of 532
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d. Prodigality
CIVIL LAW
f. Family Relations
Incompetent includes prodigals [Sec. 2, Rule
92, ROC]
Prodigality may be inferred but must show a
morbid state of mind and a disposition to
spend, waste, and lessen the estate to such an
extent as is likely to expose the family to want
of support, or to deprive the forced heirs of their
undisposable part of the estate. [Martinez v.
Martinez, G.R. No. 445 (1902)]
Note: It is not the circumstance of prodigality,
but the fact of being under guardianship that
restricts capacity to act.
e. Civil Interdiction
It is an accessory penalty imposed upon
persons who are sentenced to a principal
penalty not lower than reclusion temporal [Art.
41, RPC].
Effect on Parental/Marital Authority
Offender is deprived of the rights of parental
authority, or guardianship, of marital authority,
of the right to manage his property and of the
right to dispose of such by any act inter vivos
[Art. 34, RPC].
Effect on Marriage and Property
1. For
the
validity
of
marriage
settlements, the participation of the
guardian shall be indispensable [Art.
123, FC]
2. Sentence of one’s spouse to a penalty
which carries with it civil interdiction is
sufficient cause for judicial separation
of property [Art. 135 (1), FC]
3. The administration of exclusive
property of either spouse may be
transferred by the court to the other
spouse when one of them is sentenced
to civil interdiction [Art. 142 (3), FC]
Effect on Crimes
1. Justifying circumstance if acted in
defense of person/rights of spouse,
ascendants,
descendants,
brothers/sisters, and other relatives up
to the 4th civil degree [Art. 11(2), RPC]
2. Mitigating circumstance if acted in the
immediate vindication of a grave
offense/felony committed against his
spouse, ascendants or relatives of the
same civil degree [Art. 13(5), RPC]
3. Descendants cannot be compelled to
testify in a criminal case, against his
parents and grandparents.
• Unless: the crime was against the
descendant OR by one parent against
the other [Art. 215, FC]
Effect on Marriages
Incestuous and void marriages:
1. Between ascendants and descendants
of any degree;
2. Between brothers and sisters, whether
full or half-blood. [Art. 37, FC]
Effect on Contracts
1. Donations/grants
of
gratuitous
advantage between spouses during
the marriage shall be VOID, except
moderate gifts during family occasions
[Art. 87, FC]
2. Prescription does not run between
spouses, parent and child, guardian
and ward [Art. 1109, CC]
3. Spouses cannot sell property to each
other, EXCEPT:
a. Absolute separation is agreed
upon
in
the
marriage
settlements
b. Judicial separation of property
[Art. 1490, CC]
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g. Alienage
Dual Citizenship v. Dual Allegiance [Cordora
v. COMELEC, G.R. No.176947 (2009)]
Dual Citizenship
Dual Allegiance
Arises when, as a
result
of
the
concurrent
application of the
different laws of two
or more states, a
person
is
simultaneously
considered
a
national by said
states
Refers
to
the
situation in which a
person
simultaneously
owes,
by
some
positive act, loyalty
to two or more states
Involuntary
Result of individual’s
volition
For candidates with dual citizenship, it should
suffice if, upon the filing of their certificates of
candidacy, they elect Philippine citizenship to
terminate their status as persons with dual
citizenship considering that their condition is
the unavoidable consequence of conflicting
laws of different states. [Cordora v. COMELEC,
G.R. No. 176947 (2009)]
Effect on Property
Aliens cannot own or operate public utilities.
Corporations should be at least 40% Filipino,
and their managing or executive officials
should be Filipinos. Furthermore, alien
Corporations cannot operate for more than 50
years. [Sec. 11, Art. XII, 1987 Constitution]
h. Absence
Note: More thorough discussion under “Rules
Governing Absent Persons”
Absence is a limitation because it is a ground
for the judicial appointment of a representative
[Art. 381, FC]
Art. 390, CC. After an absence of seven
years, it being unknown whether or not the
CIVIL LAW
absentee still lives, he shall be presumed
dead for all purposes, except for those of
succession.
The absentee shall not be presumed dead
for the purpose of opening his succession till
after an absence of ten years. 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.
The following, after being missing for four
years, shall be presumed dead for all purposes
including the division of the estate among
the heirs [Art. 391, CC.]:
1. A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for four
years since the loss of the vessel or
aeroplane;
2. A person in the armed forces who has
taken part in war, and has been missing for
four years;
3. A person who has been in danger of death
under other circumstances and his
existence has not been known for four
years.
The 4-year period provided by Art. 391 is
shorter than that of Art. 390 (7 and 10 years)
because it involves situations where the
absentee’s life is in danger.
i. Insolvency and Trusteeship
Under the Insolvency Law, a debtor who has
been found insolvent cannot dispose of his
property or receive payments. [Perez citing Act
No. 1956, Rules on Corporate Rehabilitation]
3. Domicile and Residence of
Persons
Domicile of Natural Persons
The place of their habitual residence [Art. 50,
CC]
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Domicile of Juridical Persons
The place where their legal representation is
established, or where they exercise their
primary functions, unless there is a law or other
provision that fixes the domicile [Art. 51, CC]
Domicile v. Residence
While domicile is permanent (there is intent to
remain), residence is temporary and may be
changed anytime (there is no necessary intent
to remain).
Requisites of Domicile
1. Residence or bodily appearance in a new
locality;
2. Intention to permanently remain there
(animus manendi); and
3. An intention to abandon the old domicile
(animus non revertendi).
There must be animus manendi coupled with
animus non revertendi. One must have actual
change of domicile and a bona fide intention to
establish a new residence. [Poe Llamanzares
v. COMELEC, G.R. No. 221697 (2016)]
Kinds of Domicile
1. Domicile of Origin: Domicile of parents of
a person at the time he was born.
2. Domicile of Choice: Domicile chosen by a
person, changing his domicile of origin.
Domicile where he intends to remain
(animus revertendi).
3. Domicile by Operation of Law (i.e. Art.
69, domicile of minor).
A married woman does not lose her domicile to
her husband. Unless there is a clear proof of
abandonment, domicile of origin subsists
[Romualdez-Marcos v. COMELEC, G.R. No.
119976 (1995)].
B. RIGHTS AND OBLIGATIONS OF
COUPLES IN INTIMATE
RELATIONSHIPS
(R.A. NO. 9262)
1. Obligation not to commit acts
of VAWC
Sec. 3(a) of R.A. No. 9262, otherwise known
as “An Act Defining Violence Against Women
and their Children, Providing for Protective
Measures for Victims, Prescribing Penalties
Therefore, and for Other Purposes,” elucidates
that violence against women and their
children may be committed by any person
against a woman with whom the person has
or had a sexual or dating relationship.
! Sec.
3(e)
defines
a
dating
relationship to contemplate a situation
wherein the parties live as husband
and wife without the benefit of
marriage or are romantically involved
over time and on a continuing basis
during the course of the relationship.
○ A casual acquaintance or
ordinary socialization between
two individuals in a business or
social context is not a dating
relationship.
! Sec. 3(f), on the other hand, defines
“sexual relations” to contemplate a
single sexual act which may or may
not result in the bearing of a common
child.
Principle
RA 9262 does not violate the
equal protection clause. The
unequal power relationship between
women and men; the fact that
women are more likely than men to
be victims of violence; and the
widespread gender bias and
prejudice against women all make
for real differences justifying the
classification as allowed by the
equal protection clause of the 1987
Philippine Constitution [Garcia v.
Drilon (2006)].
Concept
The prohibited acts under this law
are in the nature of “public crime,”
Foundlings cannot be considered stateless and
citizenship is not required for domicile [PoeLlamanzares v. COMELEC, G.R. No. 221697
(2016)]
A house is not necessary to establish domicile
[Jalosjos v. COMELEC, G.R. No. 193237
(2012)].
Page 38 of 532
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PERSONS AND FAMILY RELATIONS
which means they may be
prosecuted upon the filing of a
complaint by any citizen having
personal
knowledge
of
the
circumstances
involving
the
commission of the crime [Sec. 25,
RA 9262].
Prohibited a. Causing physical harm to the
woman or her child;
Acts
b.
c.
d.
The prohibited acts shall likewise
constitute grounds for legal
separation under Art. 55(1) of the
Family Code.
! In which case, the coolingoff period under Art. 58 of
the Family Code shall not
apply [Sec. 19, RA 9262].
Scope
e.
Unmarried
Cohabitants
(i.e.,
couples in intimate relationships),
wherein the parties live as husband
and wife without the benefit of
marriage.
! However, in the case of
Garcia v. Drilon (2006),
the Supreme Court held
that “there is likewise no
merit to the contention that
R.A. 9262 singles out the
husband or father as the
culprit.” As defined above,
VAWC may likewise be
committed
“against
a
woman with whom the
person has or had a sexual
or dating relationship.”
This
effectively
contemplates a scenario
where one of the parties
is a lesbian.
Violence, as prohibited under this
Act, includes, but is not limited to:
1. Physical Violence or acts that
include bodily or physical harm;
2. Sexual Violence or acts which
is sexual in nature, committed
against a woman or her child;
3. Psychological Violence or
acts or omissions causing or
likely to cause mental or
emotional suffering of the
victim; and
4. Economic Abuse or acts that
make or attempt to make a
woman financially dependent
[Sec. 3(a), RA 9262].
f.
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Threatening to cause the
woman or her child physical
harm;
Attempting to cause the woman
or her child physical harm;
Placing the woman or her child
in fear of imminent physical
harm;
Attempting to compel or
compelling the woman or her
child to engage in conduct
which the woman or her child
has the right to desist from or
desist from conduct which the
woman or her child has the right
to engage in, or attempting to
restrict or restricting the
woman's or her child's freedom
of movement or conduct by
force or threat of force, physical
or other harm or threat of
physical or other harm, or
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:
i. Threatening to deprive or
actually
depriving the
woman or her child of
custody to her/his family;
ii. 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;
iii. Depriving or threatening to
deprive the woman or her
child of a legal right;
iv. 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
U.P. LAW BOC
g.
h.
i.
PERSONS AND FAMILY RELATIONS
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 force or threat of force,
physical harm, or through
intimidation directed against the
woman or her child or her/his
immediate family;
Engaging
in
purposeful,
knowing, or reckless conduct,
personally or through another,
that
alarms
or
causes
substantial
emotional
or
psychological distress to the
woman or her child. This shall
include, but not be limited to,
the following acts:
i. Stalking or following the
woman or her child in
public or private places;
ii. Peering in the window or
lingering
outside
the
residence of the woman or
her child;
iii. Entering or remaining in
the dwelling or on the
property of the woman or
her child against her/his
will;
iv. Destroying the property
and personal belongings or
inflicting harm to animals
or pets of the woman or her
child; and
v. 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.
CIVIL LAW
2. Right to be protected against
acts of VAWC
RULE ON VIOLENCE AGAINST WOMEN
AND THEIR CHILDREN [A.M. No. 04-10-11SC]
Who may file a petition for a protection
order?
a. The offended party
b. Parents or guardians of the offended
party
c. Ascendants, descendants or collateral
relatives of the offended party, within the
fourth civil degree of consanguinity or
affinity
d. Officers or social workers of the DSWD
or social workers of LGUs
e. Police officers, preferably those in charge
of women and children's desks
f. Punong
Barangay
or
Barangay
Kagawad
g. Lawyer,
counselor,
therapist
or
healthcare provider of the petitioner; or
h. At least two concerned, responsible
citizens of the place where the violence
against women and their children occurred
and who have personal knowledge of the
offense committed. [Sec. 8]
Where to File the Petition
The petition may be filed with the Family Court
of the place where the offended party
resides. If there is no existing Family Court, it
may be filed with the Regional Trial Court,
Metropolitan Trial Court, Municipal Trial Court
in Cities, Municipal Trial Court or Municipal
Circuit Trial Court with territorial jurisdiction
over the place of residence of the offended
party. [Sec. 9]
What Reliefs are Available?
The protection order shall include any, some or
all of the following reliefs:
a. Prohibiting
the
respondent
from
threatening to commit or committing,
personally or through another, acts of
violence against the offended party
b. Prohibiting
the
respondent
from
harassing,
annoying,
telephoning,
Page 40 of 532
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c.
d.
e.
f.
g.
h.
i.
PERSONS AND FAMILY RELATIONS
contacting or otherwise communicating in
any form with the offended party, either
directly or indirectly;
Removing
and
excluding
the
respondent from the residence of the
offended party, regardless of ownership
of the residence, either temporarily or
permanently where no property rights are
violated;
Requiring the respondent to stay away
from the offended party and any
designated
family
or
household
member at a distance specified by the
court;
Requiring the respondent to stay away
from the residence, school, place of
employment or any specified place
frequented regularly by the offended
party and any designated family or
household member;
Directing lawful possession and use by
the offended party of an automobile and
other essential personal effects,
regardless of ownership, and directing the
appropriate law enforcement officer to
accompany the offended party to the
residence of the parties to ensure that the
offended party is safely restored to the
possession of the automobile and other
essential personal effects;
Ordering temporary or permanent
custody of the child/children with the
offended party, taking into consideration
the best interests of the child. An offended
party suffering from Battered Woman
Syndrome shall not be disqualified. In no
case shall custody of minor children be
given to the batterer;
Directing the respondent to provide
support to the woman and/or her child,
if entitled to legal import;
Prohibiting the respondent from carrying
or possessing any firearm or deadly
weapon and ordering him to surrender
the same to the court for appropriate
disposition, including revocation of
license and disqualification to apply for
any license to carry or possess a
firearm;
CIVIL LAW
j.
Directing the DSWD or any appropriate
agency to prepare a program of
intervention for the offended party;
k. Requiring the respondent to receive
professional counseling from agencies
or persons who have demonstrated
expertise and experience in anger control,
management of alcohol, substance abuse
and other forms of intervention to stop
violence;
l. Awarding the offended party actual
damages caused by the violence
inflicted, including, but not limited to,
property damage, medical expenses,
childcare expenses and loss of income;
and compensatory, moral, and exemplary
damages.
The court may grant such other forms of relief.
[Sec. 11]
3. Other rights and obligations
Unmarried cohabitants
• Are NOT considered next of kin
• Are NOT extended visitation rights
• Have NO right to make medical
decisions on behalf of their partner
• Do NOT automatically enjoy welfare
benefits or dependent status arising
from partner’s employment
• However, in case of life insurance, if
the partner is validly designated as
the beneficiary by the other, he/she is
entitled to the insurance proceeds
arising from the life insurance of the
other.
• Have NO right to use the surname of
the other partner [Silva v. Peralta
(1960)].
• Have NO right to make funeral
arrangements for the deceased
• The
right
to
make
funeral
arrangements for the deceased
remains with the surviving legal
wife, notwithstanding their 30 year
separation [Valino v. Adriano (2014)].
• Are NOT allowed to adopt jointly
• CAN NOT exercise parental authority
over the child of the other
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Effect of Absence or Defect/Irregularity of
the Requisites on the Marriage [Art. 4, FC]
C. MARRIAGE
Absence
Marriage
a. A special contract of permanent union;
b. Between a man and a woman;
c. Entered into in accordance with law;
d. For the establishment of conjugal and
family life.
e. It is the foundation of the family and an
inviolable social institution;
f. Its nature, consequences, and incidents
are governed by law and not subject to
stipulation,
Essential
Formal
1. Requisites
Essential Requisites [Art. 2, FC]
2. Legal capacity of the contracting parties,
who must be a male and a female; and
3. Consent (of the contracting parties) freely
given in the presence of a solemnizing
officer.
Formal Requisites [Art. 3, FC]
1. Authority of solemnizing officer (subject
to Art. 35(2), FC)
2. A valid marriage license (subject to
exceptions)
3. Marriage ceremony
Void
Voidable
Void
No effect, but makes
the party responsible
for such irregularity
civilly, criminally or
administratively
liable
Note: The term “defect” is used for essential
requisites while “irregularity” is used for formal
requisites.
Exception: Marriage settlements may fix the
property relations during the marriage, within
the limits provided by this Code. [Art. 1, FC.]
Marriage is an institution, the maintenance of
which the public is deeply interested. It is a
relation for life and the parties cannot terminate
it at any shorter period by virtue of any contract
they may make. The reciprocal rights arising
from this relation, so long as it continues, are
such as the law determines from time to time,
and none other. [Goitia v. Campos Rueda,
G.R. No. 11263 (1916)]
Defect or
Irregularity
a. Essential Requisites
1. Gender
N.B. The best source for citing the requirement
of male/female is still statutory, as provided
explicitly in the Family Code: Art. 1, FC.
Marriage is a special contract of permanent
union between a man and a woman…
Sex is determined at birth; marriage between
two people who had the same sex at birth is
invalid even if one changes sex by law.
[Republic v. Cagandahan, G.R. No. 166676
(2008)]
Changing of sex in one’s birth certificate on the
basis of sex reassignment shall be denied;
otherwise, it would result in confusion and
would allow marriage between persons of the
same sex which is in defiance of the law, as
marriage is a union between a man and a
woman. [Silverio v. Republic, G.R. No. 174689
(2007)]
But when the change in sex happens naturally,
as when the person has Congenital Adrenal
Hyperplasia (CAH) or is “biologically or
naturally intersex,” the determining factor in
their gender classification would be what they,
having reached the age of majority, with good
reason thinks is their sex. Change in name and
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sex as registered is here allowed. [Republic v.
Cagandahan, G.R. No. 166676 (2008)]
b. Parental Advice: Needed for parties 21 to
below 25 years old.
2. Age
However, absence of such does not make the
marriage void or voidable. Absence will merely
delay the issuance of the marriage license by
three months [Art 15, FC].
Legal Capacity
Art. 5, FC. Any male or female of the age of
eighteen years or upwards not under any of
the impediments mentioned in Articles 37 and
38, may contract marriage.
OTHER IMPEDIMENTS REFERENCED:
Art. 37, FC: Incestuous marriages
a. Between ascendants and descendants of
any degree; and
b. Between brothers and sisters, whether of
the full or half blood.
Art. 38, FC: Void for public policy
a. Between collateral blood relatives, whether
legitimate or illegitimate, up to the fourth
civil degree;
b. Between step-parents and step-children;
c. Between parents-in-law and children-inlaw;
d. Between the adopting parent and the
adopted child;
e. Between the surviving spouse of the
adopting parent and the adopted child;
f. Between the surviving spouse of the
adopted child and the adopter;
g. Between an adopted child and a legitimate
child of the adopter;
h. Between adopted children of the same
adopter; and
i. Between parties where one, with the
intention to marry the other, killed that other
person's spouse or his or her own spouse.
LIMITED EMANCIPATION:
a. Parental Consent: Needed for parties
between 18 to below 21 years old, given by
their father, mother, surviving parent or
guardian, or persons having legal charge of
them, in the order mentioned. [Art. 14, FC]
If no parental consent is obtained, it makes the
marriage voidable [Art. 45, FC].
3. Consent Freely Given
Consent here refers to the consent of the
contracting parties. The consent must refer to
the contracting parties’ bona fide intention to be
married to the other. i.e. to make the woman
his wife. [People v. Santiago, G.R. No. 27972
(1927)]
In People v. Santiago, it was held that the
marriage entered into by a person whose real
intent is to avoid prosecution for rape is void for
total lack of consent. Here, it was the intent
of the accused—not the victim of rape, whom
he married under
duress—that was
considered. The accused did not intend to
make the victim his wife. He merely used such
marriage to escape criminal liability. [G.R. No.
27972 (1927)]
Absence of consent renders the marriage void
while defective consent makes it voidable [Art.
4, FC].
Situation
Either party was of
unsound mind [Art. 45 (2),
FC]
Consent
Status
of
Marriage
Vitiated/
Defective
Voidable
Mistake as to the identity of
the other party [Art. 35 (5),
FC]
Absent
e.g. if one mistakenly
marries his fiancee's twin
[Tolentino]
Void
Mistake as to the legal
consequences and nature
of the marriage ceremony
e.g. thinking the ceremony
is a joke, pretend, or playacting [Tolentino]
Void
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Absent
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Consent was obtained by
fraud:
1. Non-disclosure of
previous
conviction of crime
of moral turpitude
2. Concealment of
pregnancy by
another man
Vitiated/
3. Concealment of
Defective
STD
4. Concealment of
drug addiction,
habitual
alcoholism,
homosexuality, or
lesbianism [Art.
46, FC]
Consent was obtained by
1. Force
2. Intimidation
3. Undue Influence
[Art. 45 (4), FC]
Vitiated/
Defective
Marriage entered into by a
person whose real intent is
to avoid prosecution for
Absent
rape [People v. Santiago,
G.R. No. 27972 (1927)]
Voidable
Voidable
Void
Note: Defects in consent are discussed further
in “Voidable or Annullable Marriages.”
4. No Subsisting Marriage
A judicial decree terminating the previous
marriage is required for remarriage.
b. Formal Requisites
1.
CIVIL LAW
Minimum Requirements Prescribed by Law:
a. Appearance of contracting parties
personally before the solemnizing officer.
[Art. 3, FC]
b. Personal declaration that they take each
other as husband and wife. [Art. 3, FC]
c. Presence of at least two witnesses of
legal age. [Art. 3, FC]
d. The declaration shall be contained in the
Marriage Certificate. [Art. 6, FC]
e. Marriage certificate shall be signed by the
contracting parties and their witnesses and
attested by the solemnizing officer. [Art. 6,
FC]
N.B. In a marriage in articulo mortis, when one
or both parties are unable to sign the marriage
certificate, it shall be sufficient for one of the
witnesses to write the name of said party,
which shall be attested by the solemnizing
officer. [par. 2, Art. 6. FC]
Places where marriage shall be publicly
solemnized:
a. Chambers of the judge or in open court
b. Church, chapel, or temple
c. Office of the consul-general, consul, or
vice-consul [Art. 8, FC]
Exceptions
to
public
solemnization
requirement
a. Marriages performed in articulo mortis
or in remote places. [Art. 29, FC]
b. Where both parties request in writing
that marriage be solemnized at a place
designated by them.
Marriage Ceremony
No prescribed form or religious rite for the
solemnization of marriage is required. [Art. 6,
FC]
The couple's written agreement where they
declare themselves as husband and wife,
signed by them before a judge and two capable
witnesses, even though it was independently
made by them, still counts as a valid ceremony.
[Martinez v. Tan, G.R. No. L-4904 (1909)]
Note: Non-compliance with this requirement
does not invalidate the marriage (premise:
more witnesses = more people can notify
officer of impediments to marriage).
2.
Authority of Solemnizing Officer
Who May Solemnize Marriage:
Normal Circumstances
Incumbent member of the Judiciary, within
his jurisdiction. [Art. 7, FC]
Priest, Rabbi, Imam or Minister of any
Church or Religious Sect who must be:
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a. Duly authorized by his church or
religious sect;
b. Registered with the civil registrar
general;
c. Acting within the limits of the written
authority granted to him by his
church or religious sect;
d. At least one of the contracting
parties belongs to the solemnizing
officer’s church or religious sect. [Art.
7, FC]
Municipal and City Mayors [Secs. 444-445,
Local Government Code]
Articulo Mortis
(in addition to those above mentioned)
Ship Captain or Airplane Chief may
solemnize a marriage in articulo mortis
between passengers or crew members
[Arts. 7 and 31, FC]
A Military Commander of a unit may
solemnize marriages in articulo mortis
between persons within the zone of military
operation in the absence of a chaplain [Arts.
7 and 32, FC]
Marriages Abroad
Consul-general, consul or vice-consul may
solemnize marriages between Filipino
citizens abroad [Arts. 7 and 10, FC]
General rule: Those solemnized by any
person not legally authorized to perform
marriages are void.
Exception: 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. [Art. 35(2), FC]
Good faith refers to questions of fact, not
ignorance of the law (e.g. they did not know the
priest’s license expired vs. thinking a Senator
could solemnize their marriage). [Legarda,
Deriquito-Mawis, and Vargas]
Note: An irregularity in a formal requisite will
not affect the validity of the marriage but those
responsible may be held criminally, civilly,
and administratively liable [Art. 4 & 7, FC]
3.
CIVIL LAW
Marriage License
General rule: The license required is that
which is issued by local registrar of city or
municipality where either contracting party
habitually resides [Art. 9, FC].
Note: No marriage license shall be issued by
the Local Civil Registrar unless the applicants
present a Certificate of Compliance issued for
free by the local Family Planning Office
certifying that they had duly received adequate
instructions and information on responsible
parenthood, family planning, breastfeeding
and infant nutrition [RA 10354, Sec. 15].
Determination of Age
General rule: The local civil registrar shall
require presentation of:
a. Original birth certificates, or
b. Baptismal certificates
Exception: If parents appear personally or
when the local civil registrar is convinced that
the parties are of the required age.
Where Valid: License valid in any part of the
Philippines
Period of Validity: It will be valid for 120 days
from date of issue, automatically cancelled at
the expiration of such period.
Marriages celebrated without a marriage
license before the effectivity of the Family Code
are void ab initio as marriage license was an
essential requisite in the CC. [Kho v. Republic,
G.R. No. 147862 (2016)]
A marriage which preceded the issuance of the
marriage license is void and the subsequent
issuance of such license cannot render valid
the marriage. Except in cases provided by law,
it is the marriage license that gives the
solemnizing officer the authority to solemnize a
marriage. [Aranes v. Occiano, MTJ-02-1390
(2002)].
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Special Situations
If the party has been previously married, s/he
shall furnish, instead of birth or baptismal
certificate:
a. Death certificate of deceased spouse (if
cannot be obtained, the party shall make
an affidavit setting forth this circumstance,
his/her actual civil status and name and
date of death of deceased spouse), or
b. Judicial decree of the absolute divorce, or
c. Judicial decree of annulment, or
d. Declaration of nullity of previous marriage
[Art. 13, FC]
Foreign National
a. When either or both parties are foreign
nationals: Certificate of legal capacity to
contract marriage issued by a diplomatic
or consular official, shall be submitted
before a marriage license can be obtained
[Art. 21, FC]
b. Stateless persons or refugees from other
countries:
Affidavit
stating
circumstances showing capacity to
contract marriage, instead of certificate of
legal capacity [Art. 21, FC]
Note: The Apostille Convention, which took
effect in the PH on 14 May 2019, simplifies the
authentication of foreign documents. Public
documents executed in Apostille-contracting
countries, once Apostillized, no longer need
authentication from the Philippine embassy or
consulate general. In the same way, PH
documents Apostillized by the DFA need not
be authenticated by Foreign embassies or
consulate generals if the country is a member
of the convention. [DFA Public Advisory]
Exceptions to the Marriage License
Requirement
a. Marriage in articulo mortis [Art. 27, FC]
The marriage may be solemnized without
the necessity of a marriage license. It
remains valid even if ailing party survives.
1. Between passengers or crew members
in a ship or airplane [Art. 31, FC]
2. Persons within a military zone [Art. 32,
FC]
3. Other situations in articulo mortis
CIVIL LAW
b. Marriage in remote and inaccessible
places [Art. 28, FC]
c. Marriages by Muslims and Ethnic
cultural minorities provided they are
solemnized in accordance with their
customs, rites or practices. [Art. 33, FC]
d. Marriage by parties who have cohabited
for at least 5 years without any legal
impediment to marry each other. [Art. 34,
FC; Ninal v. Badayog, G.R. No. 133778
(2000)]
Note: A false affidavit of having lived together
for 5 years as husband and wife cannot be
considered as a mere irregularity in the formal
requisites of marriage but a complete absence,
rendering their marriage void ab initio. [De
Castro v. Assidao-De Castro, G.R. No. 160172
(2008)]
Requisites for the 5-year cohabitation to be
valid for the exemption from acquiring a
marriage license
a. The man and woman must have been
living together as husband and wife for at
least five years before the marriage;
b. The parties must have no legal
impediment to marry each other;
c. The fact of absence of legal impediment
between the parties must be present at the
time of marriage;
d. The parties must execute an affidavit
stating that they have lived together for at
least five years [and are without legal
impediment to marry each other]; and
e. The solemnizing officer must execute a
sworn statement that he had ascertained
the qualifications of the parties and that he
had found no legal impediment to their
marriage [Borja-Manzano v. Judge
Sanchez, A.M. MTJ-00-1329 (2001)].
4.
Marriage Certificate
Where parties declare that they take each
other as husband and wife; contains the
following:
a. Full name, sex, age of party;
b. Citizenship,
religion,
habitual
residence;
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c. Date and precise time of celebration of
marriage;
d. That marriage license was properly
issued (except in marriages of
exceptional character);
e. That parental consent was secured,
when required;
f. That requirement as to parental advice
was complied with, when required;
g. That parties have entered into
marriage settlements, if any [Art. 22,
FC]
N.B. Not an essential or formal requisite
without which the marriage will be void
[Madridejo v. de Leon, G.R. No. L-32473
(1930)]. It is the best evidence that a marriage
does exist. [Tenebro v. CA, G.R. No. 150758
(2004)]
Non-existence of a marriage contract will not
overthrow the presumption of a valid marriage
where all the requisites for its validity have
been complied with. [People v. Borromeo, G.R.
No. L-61873 (1984)]
2. Marriages Celebrated Abroad
General Rule: Marriages solemnized abroad
in accordance with the laws in force in that
country shall be valid in the Philippines. [par. 1,
Art 26, FC]
Exceptions
1. Marriage where one or both parties are
below 18 years old [Art. 35(1), FC]
2. Bigamous or polygamous marriage [Art.
35(4), FC]
3. Mistake in identity [Art. 35 (5), FC]
4. Marriages void under Article 53 [Art. 35 (6),
FC]
5. Psychological incapacity [Art. 36, FC]
6. Incestuous marriages [Art. 37, FC]
7. Marriage void for reasons of public policy
[Art. 38, FC]
Note: This means that the foreign marriage
may still be recognized as valid in the
Philippines even if it would have fallen under
Art. 35 (2 and 3) of the FC so long as it is valid
under the law of the country in which it was
solemnized.
Essential
Requisites
Inherent in the
parties,
carried
everywhere
Lex Nationalii –
Laws relating to
family rights and
duties, or to the
status, condition,
and legal capacity
of persons are
binding upon PH
citizens
even
though
living
abroad [Art. 15,
CC]
Foreign marriages
void under PH law
due to lack of an
essential requisite,
even if valid under
foreign laws, will
not be recognized.
Formal Requisites
Requirements
independent of
parties
the
Lex
loci
celebrationis – If
valid
where
celebrated, then valid
everywhere; forms of
contracting marriage
are to be regulated by
the law where it is
celebrated. [Art. 2,
CC]
Foreign
marriages
may be void under PH
law due to absence of
a formal requisite
under foreign laws.
Proof of Foreign Marriage in order that it may
be upheld:
1. Provisions of the foreign law, and
2. Celebration of the marriage in
accordance with said provisions
3. Foreign Divorce
If the foreign spouse obtains a valid divorce
decree abroad capacitating him/her to remarry,
the Filipino spouse shall have capacity to
remarry under Philippine law. [Art. 26(2), FC]
The citizenship of the spouses at the time of
the divorce determines their capacity to obtain
a valid divorce. [Quita v. Dandan, G.R. No.
124862 (1998)]
A marriage between two Filipinos cannot be
dissolved even by a divorce obtained abroad,
because of Articles 15 and 17 of the CC [Garcia
v. Recio, G.R. No. 138322 (2001)].
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Question: Since it is the citizenship at the time
of the divorce that determines capacity to
obtain a valid divorce, can spouses who are
both dual citizens (Filipino & Alien) get
divorced? What about if both spouses were
originally Filipino, were later naturalized (i.e.
lost their Filipino citizenship), and even later
regained their Filipino citizenship and are now
dual citizens?
Aliens may obtain divorces abroad, which may
be recognized in the Philippines, provided they
are valid according to their national law. The
marriage tie when thus severed as to one party,
ceases to bind either. [Van Dorn v. Romillo,
G.R. No. L-68470 (1985)]
A divorce obtained abroad by a couple, who
are both aliens, may be recognized in the
Philippines, provided it is consistent with their
respective national laws. [Garcia v. Recio, G.R.
No. 138322 (2001)]
Note: Divorces obtained abroad by Filipino
citizens may now be validly recognized in the
Philippines but only in cases of mixed
marriages involving a Filipino and a foreigner.
[Republic of the Philippines v. Manalo, G.R.
No. 221029 (2018)]
In mixed marriages involving a Filipino and a
foreigner, Article 26 of the Family Code allows
the former to contract a subsequent marriage
in case the divorce is (1) “validly obtained
abroad by the alien spouse and (2) is of the
type that legally dissolves the marriage and
capacitating him or her to remarry.” [Garcia v.
Recio, G.R. No. 138322 (2001)]
Note: Following the ruling of Republic of the
Philippines v. Manalo, the divorce may now be
one that was validly obtained by the Filipino
spouse against the foreigner spouse. This is
because Art. 26(2), FC makes no distinction as
to who obtains the divorce. All that is required
is that it is validly obtained abroad. A Filipino
who initiates the divorce proceeding against a
foreign spouse still ends up in the same
position as one whose foreign spouse initiated
proceedings: they both no longer have
spouses. There should be no distinction
CIVIL LAW
between the two cases in order to avoid the
absurd situation where a Filipino spouse is still
married to the alien spouse even though the
latter is capacitated by his own laws to remarry
and is no longer married to the Filipino. [G.R.
No. 221029 (2018)].
Courts will only determine (1) whether the
foreign judgment is inconsistent with an
overriding public policy in the Philippines; and
(2) whether any alleging party is able to prove
an extrinsic ground to repel the foreign
judgment, i.e. want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
mistake of law or fact. If there is neither
inconsistency with public policy nor adequate
proof to repel the judgment, Philippine courts
should, by default, recognize the foreign
judgment as part of the comity of nations.
[Fujiki v. Marinay, G.R. No. 1196049 (2013)]
4. Void Marriages
Types of void marriages
1. Absence
of
any
formal/essential
requisites [Art. 35, FC]
2. Bigamous and polygamous marriages
[Art. 35, (4)]
3. Subsequent
marriage,
upon
reappearance of spouse [Art. 42, FC]
4. Bad faith of both spouses in the
subsequent marriage under Art. 41, FC
5. Psychologically Incapacitated spouse
[Art. 36, FC]
6. Void subsequent marriages [Art. 35(6),
FC]
7. Incestuous Marriages [Art. 37, FC]
8. Void by reasons of public policy [Art. 38,
FC]
Art. 39, FC. The action or defense for the
declaration of absolute nullity shall not
prescribe. (as amended by RA 8533)
a. Absence of Requisites
Void from the Beginning [Art. 35, FC]
a. Marriage where any party is below
eighteen years of age even with the
consent of parents or guardians
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b. Marriage solemnized by any person not
legally authorized to perform marriages
unless such marriages were contracted
with either or both parties believing in good
faith that the solemnizing officer had legal
authority to do so.
Note: One’s belief in good faith that the
solemnizing officer has the required
authority is a mistake of fact, and not of
law.
c. Marriage solemnized without a valid
marriage license, except in marriages
under exceptional circumstances
d. Bigamous or polygamous marriages not
falling under Article 41 (Art. 41:
Subsequent marriage by present spouse
who obtained a declaration of presumptive
death for absent spouse prior to the
subsequent marriage)
e. There is a mistake as to the identity of the
other contracting party
f.
Subsequent marriages that are void
under Article 53 (Non-compliance with
Art. 52)
To be considered void on the ground of
absence of a marriage license, the law requires
that the absence of such marriage license must
be apparent on the marriage contract, or at the
very least, supported by a certification from the
local civil registrar that no such marriage
license was issued to the parties. [Alcantara v.
Alcantara, G.R. No. 167746 (2007)]
b. Bigamous and Polygamous
Marriages
Elements of a Bigamous Marriage
a. Offender legally married
b. Marriage not legally dissolved
c. Offender
contracts
a
subsequent
marriage
d. Subsequent marriage has all the
essential requisites for validity, except
legal capacity [Capili v. People, G.R. No.
183805, (2013)]
CIVIL LAW
No judicial declaration of nullity
A person entered into a subsequent marriage
WITHOUT first getting a judicial declaration
of nullity of the first void marriage. [Art. 40, FC]
Presumptive death
Failure of the spouse present to obtain a
judicial declaration of presumptive death
before entering a subsequent marriage. [Art.
41, FC]
Bad faith of both spouses
Both spouses entering a subsequent marriage
after presumptive death, who acted in bad
faith. [Art. 44, FC]
It is now settled that the fact that the first
marriage is void from the beginning is not a
defense in a bigamy charge. As with a
voidable marriage, there must be a judicial
declaration of the nullity of a marriage before
contracting the second marriage. [Mercado v.
Tan, G.R. No. 137110 (2000)]
The accused may still be charged with the
crime of bigamy, even if there is a subsequent
declaration of the nullity of the second
marriage, so long as the first marriage was still
subsisting when the second marriage was
celebrated. [Capili v. People, G.R. No. 183805
(2013)]
c. Subsequent Marriage When
One Spouse is Absent
Requirements for Subsequent Marriage to
be Valid When Prior Spouse is Absent [Art.
41, FC]
a. Subsequent marriage due to ordinary
absence where:
1. Absent spouse had been absent for 4
consecutive years;
2. The spouse present had a wellfounded belief that the absent
spouse is dead; and
3. Judicial declaration of presumptive
death was secured (no prejudice to the
effect of the reappearance of the
absent spouse).
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CIVIL LAW
b. Subsequent
marriage
due
to
extraordinary absence where:
1. Absent spouse had been missing for 2
consecutive years;
2. There is danger of death under the
circumstances set forth in Art. 391, CC
attendant to the disappearance;
o Onboard vessel lost at sea
voyage, airplane,
o Armed forces in war, or
o Danger of death under other
circumstances, existence not
known
3. The spouse present had a wellfounded belief that the missing person
is dead; and
4. Judicial declaration of presumptive
death was secured (no prejudice to the
effect of the reappearance of the
absent spouse).
Exception to the Exception: If there is a
judgment annulling the previous marriage or
declaring it void ab initio. [Art. 42, FC]
The belief of the present spouse must be the
result of proper and honest to goodness
inquiries and efforts to ascertain the
whereabouts of the absent spouse and
whether the absent spouse is still alive or is
already dead. This is drawn from
circumstances
before
and
after
the
disappearance and the nature and extent of
inquiries made. [Republic v. Granada, G.R. No.
187592 (2012)]
Declaration of
presumptive
death is not
necessary
Effect of Reappearance of Absent Spouse
General rule: The subsequent marriage
remains valid.
Exception: It is automatically terminated by
the recording of the affidavit of reappearance
of the absent spouse at the instance of any
interested person, with due notice to the
spouses of the subsequent marriage. [Art. 42,
FC]
Note: It is the recording of the affidavit of
reappearance that automatically terminates the
subsequent marriage. Hence, if absentee
spouse reappears without recording affidavit of
reappearance, then there is no legal effect.
Meanwhile, absentee spouse cannot remarry.
[Tolentino]
Good faith: Period of absence for presumptive
death is MANDATORY and thus cannot be
shortened by good faith and if done so, will be
void. This period is counted from when the
party last heard from his/her absentee spouse.
[Jones v. Hortiguela, G.R. No. 43701 (1937)]
Difference between Absence
Family Code
Family Code
[Art. 41]
4 years under
normal
As
to circumstances
period
2 years under
extraordinary
circumstances
In order to
remarry,
As
to
summary
remarriage
proceeding is
necessary
Can
be
instituted by
As to who the
spouse
can
present, any
institute the interested
action
party, and the
subsequent
spouse
Subsequent
marriage
is
automatically
As to effect terminated by
on
the recording
subsequent of an affidavit
marriage
of
reappearance
of the absent
spouse
Well-founded
belief that the
As
to
absent
ground
spouse
is
dead
Page 50 of 532
in the CC and
CC [Art. 390]
Absent for at
least 7 years
Absent for at
least 4 years
The spouses
themselves
Upon
reappearance,
judicial
proceeding is
necessary to
declare
marriage null
and void
Generally
believed to be
dead
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
Related Provisions
Art. 390, CC. After an absence of 7 years, it
being unknown whether or not the absentee
still lives, he shall be presumed dead for all
purposes, except for those of succession.
The absentee shall not be presumed dead
for the purpose of opening his succession till
after an absence of 10 years. If he
disappeared after the age of 75 years, an
absence of 5 years shall be sufficient in
order that his succession may be opened.
The following shall be presumed dead for all
purposes, including the division of the estate
among the heirs:
a. A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
four years since the loss of the vessel or
aeroplane;
b. A person in the armed forces who has
taken part in war, and has been missing for
four years;
c. A person who has been in danger of
death under other circumstances and
his existence has not been known for four
years. [Art. 391, CC]
N.B. Although 7 years is required for the
presumption of death of an absentee in the CC,
the FC makes an exception for the purpose of
remarriage by limiting such requirement to 4
years.
d. Bad Faith of Both Spouses
Art. 44, FC. If both spouses of the
subsequent marriage acted in bad faith, said
marriage shall be void ab initio and all
donations by reason of marriage and
testamentary dispositions made by one in
favor of the other are revoked by operation
of law.
e. Psychological Incapacity
Art. 36, FC. A marriage contracted by any
party who, at the time of the celebration, was
psychologically incapacitated to comply with
CIVIL LAW
the essential marital obligations of marriage,
shall likewise be void even if such incapacity
becomes
manifest
only
after
its
solemnization.
Psychological
Vice of
Incapacity
Consent
Has nothing to do with
consent, but the incapacity The consent
to comply with the essential itself is
marital
obligations
of defective
marriage
Psychological
Incapacity
Consent might be valid,
but the party is unable
to
assume
essential
marital obligations
Ground for nullity
Insanity
Vice of consent
Ground
annulment
for
The application of Art. 36 is confined to the
most serious cases of personality disorders
clearly demonstrative of an utter insensitivity or
inability to give meaning and significance to the
marriage. [Santos v. CA, G.R. No. 112019
(1995)]
The psychological illness that must have
afflicted a party at the inception of the
marriage should be a malady so grave and
permanent as to deprive one of awareness
of the duties and responsibilities of the
matrimonial bond he or she is about to assume.
[Marcos v. Marcos, G.R. No. 136490 (2000)]
There are 3 characteristics for determining
psychological incapacity:
a. Gravity - grave or serious such that the
party cannot carry out normal and ordinary
duties of marriage under ordinary
circumstances;
b. Juridical Antecedence - it must be rooted in
the history of the party before the marriage;
and
c. Incurability - must be incurable OR the cure
is beyond the means of the party [Santos v.
Bedia-Santos, G.R. No. 112019 (1995)]
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Molina Doctrine in Psychological Incapacity
a. The burden of proof to show the nullity of
the marriage belongs to the plaintiff. This is
to be investigated by the OSG for collusion.
b. The root cause of the psychological
incapacity must be:
1. Medically or clinically identified;
2. Alleged in the complaint;
3. Sufficiently proven by the experts; and
4. Clearly explained in the decision.
c. The incapacity must be proven to be
existing at “the time of the celebration”
of the marriage.
d. Such incapacity must also be shown to be
medically or clinically permanent or
incurable.
e. Such illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of
marriage.
f. The essential marital obligations must
be those embraced by Articles 68 up to 71
of the Family Code as regards the husband
and wife as well as Articles 220, 221, and
225 of the same Code in regard to parents
and their children.
g. Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while
not controlling/decisive, should be given
great respect by our courts.
h. The trial court must order the prosecuting
attorney or fiscal and the Solicitor
General to appear as counsel for the
state. No decision shall be handed down
unless the Solicitor General issues a
certification. [Republic v. Molina, G.R. No.
108763 (1997)]
Psychological incapacity may be established
by the totality of the evidence presented.
Personal medical examination could be
dispensed with. [Marcos v. Marcos, G.R. No.
136490 (2000)]
There is no requirement that the respondent be
medically examined first. [Republic v. San
Jose, G.R. No. 168328 (2007)]
The stringent requirements set forth by Molina
should be relaxed and applied case-to-case.
To require the allegation of the root cause of
psychological incapacity by an accredited
psychologist may prove too expensive for the
parties. But where the parties had full
opportunity to present expert opinions, such
will be weighed by the Court in its decision.
[Ting v. Velez-Ting, G.R. No. 166562, (2009)]
Examples of Psychological Incapacity
The senseless and protracted refusal of one of
the parties to fulfill the marital obligation "to
procreate children based on the universal
principle that procreation of children through
sexual cooperation is the basic end of
marriage," is equivalent to psychological
incapacity. “A man who can but won’t is
psychologically incapacitated.” [Tsoi v. CA,
G.R. No. 119190 (1997)]
“Pathological liar” considered as psychological
incapacity; Molina guidelines met. [Antonio v.
Reyes, G.R. No. 155800 (2006)]
Note: This case also gave weight to the fact
that the Church annulled the marriage.
Marriages where both parties are afflicted with
grave, severe, and incurable psychological
incapacity shall likewise be void [Te v. Te, G.R.
No. 161793 (2009)].
Note: Both
disorders.
spouses
have
personality
f. Incestuous Marriage
Marriages between the following are
considered incestuous, and are therefore
void ab initio:
a. Between ascendants and descendants
of any degree, legitimate or illegitimate
b. Between brothers and sisters, whether
full or half blood, legitimate or illegitimate
[Art. 37, FC]
g. Against Public Policy
Marriages between the following are
considered against public policy, and are
therefore void ab initio:
Page 52 of 532
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
a. Between
collateral blood relatives,
legitimate or illegitimate, up to the fourth
civil degree;
CIVIL LAW
Subsequent marriage of spouses, where the
requirements of recording under Art. 52 have
not been complied with, shall be null and void.
[Art. 53, FC]
b. Between step-parents and step-children;
N.B. Stepbrothers and stepsisters can
marry because marriages between them
are not among those enumerated in Article
38.
c. Between parents-in-law and children-inlaw;
d. Between adopting parent and adopted
child;
e. Between the surviving spouse of the
adopting parent and the adopted child;
f.
Between the surviving spouse of the
adopted child and the adopter;
g. Between an adopted child and a legitimate
child of the adopter;
h. Between adopted children of the same
adopter; and
i.
Between parties where one, with the
intention to marry the other, killed that other
person's spouse, or his or her own spouse
[Art. 38, FC]
Note: The following relationships are outside of
Articles 37 and 38, and are therefore not
impediments to marriage:
a. Brother-in-law with sister-in-law;
b. Stepbrother with stepsister;
c. Guardian with ward;
d. Adopted with illegitimate child of the
adopter;
e. Adopted son of the husband with
adopted daughter of the wife.
h. Non-Compliance
with
Recording
Requirement
after Declaration of Nullity
The judgment of annulment or of absolute
nullity of the marriage, the partition and
distribution of the properties of the spouses
and the delivery of the children's presumptive
legitimes shall be recorded in the appropriate
civil registry and registries of property;
otherwise, the same shall not affect third
persons. [Art. 52, FC]
Under the CC, no judicial declaration for nullity
of previous marriage was required to contract
a subsequent marriage. [People v. Mendoza,
G.R. No. L-5877 (1954)]
EFFECTS
OF
TERMINATION
OF
SUBSEQUENT MARRIAGE UNDER ART. 42
[Art. 43, FC]
a. Children of subsequent marriage:
conceived prior to its termination
considered legitimate; custody and support
decided by court in a proper proceeding.
b. Property
Regime:
dissolved
and
liquidated (party in bad faith shall forfeit
his/her share in favor of the common
children or if there are none, children of the
guilty spouse by a previous marriage, and
in case there are none, to the innocent
spouse).
c. Donation propter nuptias: remains valid,
(but if the donee contracted marriage in
bad faith, donations are revoked by
operation of law)
d. Insurance benefits: innocent spouse may
revoke designation of guilty party as
beneficiary, even if such designation is
stipulated as irrevocable.
e. Succession Rights: party in bad faith shall
be disqualified to inherit from the innocent
spouse, whether testate or intestate.
Both spouses guilty of bad faith
If both spouses of the subsequent marriage
acted in bad faith, all donations by reason of
marriage and testamentary dispositions made
by one party in favor of the other are revoked
by operation of law. [Art. 44, FC]
Page 53 of 532
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Who may file the petition for nullity of void
marriages?
General Rule: Only the husband or wife may
file the petition. [AM No. 02-11-10 SC, Sec. 2]
Specifically, A.M. No. 02-11-10-SC extends
only to marriages covered by the Family Code,
which took effect on August 3, 1988, but, being
a procedural rule that is prospective in
application, is confined only to proceedings
commenced after March 15, 2003. [Ablaza v.
Republic, G.R. No 158298 (2010)]
Exceptions
a. Nullity of marriage cases commenced
before effectivity of A.M. No. 02-11-10-SC
b. Marriages celebrated during the effectivity
of the CC. [Carlos v. Sandoval, G.R. No
179922 (2008)]
Procedure in Attacking a Void Marriage
General Rule: Void Marriages may be
attacked collaterally or directly.
Exception: A person in a void marriage must
first file for a declaration of nullity in order to
subsequently marry.
Requisites for Valid Remarriage
a. The previous marriage should be judicially
declared void or annulled (final judgment)
[Terre v. Terre, A.M. No. 2349 (1992),
Atienza v. Brillantes, A.M. No. MTJ-92-706
(1995)]; Wiegel v. Sempio-Dy, G.R. No. L53703 (1986)].
b. Must comply with the requirements of Art.
52, FC.
Art. 52, FC. The judgment of annulment or
of absolute nullity of the marriage the
partition and distribution of the properties of
the spouses and the delivery of the
children's presumptive legitimes shall be
recorded in the appropriate civil registry and
registries of property; otherwise the same
shall not affect third persons.
Safeguard Against Collusion and No
Confession of Judgment
In the cases referred to in the preceding
paragraph, no judgment shall be based upon a
CIVIL LAW
stipulation of facts or confession of judgment.
[Art. 48 (2), FC]
Stipulation of Facts
An admission by both parties after agreeing to
the existence of any of the grounds or facts that
would constitute a void/voidable marriage.
Confession of Judgment
The admission by one party admitting his/her
fault to cause the invalidity of the marriage.
Although the admission of guilt of the wife
constitutes a confession of judgment, the
husband was also able to present other
evidence to support the allegation. Hence,
there was no collusion. [Ocampo v.
Florenciano, G.R. No. L-13553 (1960)]
Participation of the OSG
The obvious intent of the AM 02-11-10-SC was
to require the OSG to appear as counsel for the
State in the capacity of a defensor vinculi (i.e.,
defender of the marital bond) to oppose
petitions for, and to appeal judgments in favor
of declarations of nullity of marriage under
Article 36 of the Family Code, thereby ensuring
that only the meritorious cases for the
declaration of nullity of marriages based on
psychological incapacity-those sufficiently
evidenced by gravity, incurability and juridical
antecedence-would succeed. [Mendoza v.
Republic, G.R. No. 157649 (2012)]
No Motion to Dismiss
AM 02-11-10-SC Sec. 7 prohibits the filing of a
motion to dismiss in actions for annulment of
marriage. [Aurelio v. Aurelio, G.R. No. 175367
(2011)]
Effect of pendency of action for declaration
of nullity:
a. The court shall provide for the support of
the spouses.
b. The custody and support of the common
children, giving paramount consideration to
their moral and material welfare, their
choice of parent with whom they wish to
remain.
c. The court shall also provide for visitation
rights of the other parent. [Art. 49, FC]
Page 54 of 532
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Effect of Res Judicata
Suffice it to state that parties are bound not only
as regards every matter offered and received
to sustain or defeat their claims or demand but
as to any other admissible matter which might
have been offered for that purpose and of all
other matters that could have been adjudged in
that case. [Mallion v. Alcantara, G.R. No.
141528 (2006)]
Effect of Final Judgment Declaring Nullity
The effects provided for by paragraphs (2), (3),
(4) and (5) of Article 43 and by Article 44 shall
also apply in the proper cases to marriages
which are declared void ab initio or annulled by
final judgment under Articles 40 and 45 [Art.
50(1), FC].
Final judgment in such cases shall provide for:
a. Liquidation, partition, and distribution of the
properties of the spouses
b. Custody and support of the common
children
c. Delivery of their presumptive legitimes
UNLESS: such matters had been adjudicated
in previous judicial proceedings. [Art. 50(2),
FC]
All creditors of the spouses/property regime
shall be notified of the proceedings for
liquidation [Art. 50(2 and 3), FC]
In the partition, the conjugal dwelling and lot
shall be adjudicated to the spouse with whom
majority of the common children remain [Art.
102 and 129, Art. 50(4), FC]
Generally, children born or conceived within
void marriages are illegitimate.
Exceptions
a. Children conceived or born before the
judgment under Article 36 has become final
and executory [Art. 54, FC]
b. Children conceived or born of subsequent
marriages under Article 53 [Art. 54, FC]
CIVIL LAW
5. Voidable marriages
Art. 4, FC states that “xxx A defect in any of
the essential requisites shall render the
marriage voidable as provided in Article 45.”
Grounds for annulment that must exist at
the time of the marriage [Art. 45, FC]
a. The party in whose behalf it is sought to
have the marriage annulled was eighteen
years of age or over but below twentyone, and the marriage was solemnized
without the consent of the parents,
guardian or person having substitute
parental authority over the party, in that
order, UNLESS after attaining the age of
twenty-one, such party freely cohabited
with the other and both lived together as
husband and wife;
b. Either party was of unsound mind,
UNLESS such party after coming to
reason, freely cohabited with the other as
husband and wife;
c. The consent of either party was obtained
by fraud, UNLESS such party afterwards,
with full knowledge of the facts constituting
the fraud, freely cohabited with the other as
husband and wife;
d. The consent of either party was obtained
by force, intimidation or undue
influence, UNLESS the same having
disappeared or ceased, such party
thereafter freely cohabited with the other as
husband and wife;
e. Either party was physically incapable of
consummating the marriage with the
other, and such incapacity continues and
appears to be incurable; or
f. Either party was afflicted with a sexually
transmissible disease found to be
serious and appears to be incurable.
Nature of an Action for Annulment
Action in rem, concerns status of parties; res is
relation between parties or marriage tie;
jurisdiction depends on nationality or domicile
not the place of celebration.
Page 55 of 532
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a. Lack of Parental Consent
Article 45(1) provides the first ground for a
voidable marriage, which is the solemnization
of a marriage of a party between 18-21 years
of age without the consent of their parents.
Note: Art. 14, FC states that in case either or
both of the contracting parties, not having been
emancipated by a previous marriage, are
between the ages of eighteen and twenty-one,
THEY SHALL, in addition to the requirements
of the preceding articles:
a. Exhibit to the local civil registrar the
consent to their marriage of their father,
mother, surviving parent or guardian, or
persons having legal charge of them, in the
order mentioned
1. Manifested in writing by the interested
party, who personally appears before
the proper local civil registrar, or
2. In the form of an affidavit made in the
presence of two witnesses and
attested before any official authorized
by law to administer oaths
b. Record such personal manifestation in
both applications for marriage license, and
the affidavit, if one is executed instead,
shall be attached to said applications.
May be ratified by the party 18 or above but
below 21 upon free cohabitation upon reaching
21.
b. Insanity
Article 45(2) provides the second ground for a
voidable marriage, which is a marriage entered
into by an insane party or a person of unsound
mind.
Test of Insanity: Whether the party at the time
of marriage was capable of understanding the
nature and consequences of marriage itself
[Sempio-Diy]
Mental incapacity or insanity is a vice of
consent. It can be ratified by cohabitation after
insanity is cured or during a lucid interval.
CIVIL LAW
Mere mental weakness is not a ground for
annulment, but if found grave enough, it may
amount to psychological incapacity.
Intoxication amounting to lack of mental
capacity as well as somnambulism are
considered unsoundness of mind, as there was
no knowledge of what he or she was giving
consent to. [Tolentino]
Must exist at the time of the celebration of the
marriage. Insanity that occurs after the
celebration of marriage does not constitute a
cause for nullity [Katipunan v. Tenorio, G.R.
No. 43442 (1937)]
c. Fraud
Article 45(3) provides the third ground for a
voidable marriage, wherein consent to the
marriage was obtained through fraud. The
party who was the victim of the fraud may,
however, ratify the detect in the marriage by
voluntarily cohabiting with the party after
knowledge of the facts constituting the fraud.
Art. 46, FC. Any of the following
circumstances shall constitute fraud referred
to in No. 3 of the preceding Article:
1. Non-disclosure of a previous
conviction by final judgment of the
other party of a crime involving moral
turpitude;
2. Concealment by the wife of the fact
that at the time of marriage, she was
pregnant by a man other than her
husband;
3. Concealment
of
sexually
transmissible disease, regardless of
its nature, existing at the time of
marriage; or
4. Concealment of drug addiction,
habitual
alcoholism
or
homosexuality or lesbianism existing
at the time of marriage.
No other misrepresentation or deceit as to
character, health, rank, fortune or chastity
shall constitute such fraud as will give
grounds for the action of annulment of
marriage.
Page 56 of 532
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Note: The enumeration of the grounds for
annulment under Art. 46 for reasons of fraud or
vice of consent is exclusive. No other
misrepresentation or deceit of character,
health, rank, fortune or chastity shall constitute
fraud.
Non-disclosure of conviction of crime
involving moral turpitude
1. The crime must involve moral
turpitude, or “Conduct that is contrary
to justice, honesty, and morality”
[Black’s Law Dictionary].
2. Must be convicted by final judgment
3. Conviction must be prior to marriage
A crime involves moral turpitude when it
pertains to an act of “baseness, vileness,
depravity in the private and social duties which
a man owes to his fellow man or to society in
general, contrary to the accepted and
customary rules of right and duty between man
and man.” [Teves v. COMELEC (2009)]
Concealment of pregnancy by another man
Wife must have:
a. Concealed her pregnancy AND
b. Pregnancy is by another man other
than her husband
If the husband knew of pregnancy, the
marriage cannot be annulled on the ground of
concealment.
The woman was 7 months pregnant at the time
she met petitioner. He cannot claim that the
pregnancy was concealed from him and that he
was defrauded into marrying her. [Buccat v.
Buccat, G.R. No 47101 (1941)]
But where the wife concealed the fact that she
was 4 months pregnant during the time of the
marriage and was “naturally plump,” Delizo
could hardly be expected to know, by mere
looking, whether or not she was pregnant at the
time of the marriage. [Aquino v. Delizo, G.R.
No. L-15853 (1960)]
Note: May be ratified upon free cohabitation
after knowledge of fraud.
CIVIL LAW
Concealment of sexually transmissible
disease
The STD that was concealed from the other
spouse need not be serious and incurable.
When the ground for annulment falls under
Article 46(3) vis-à-vis Article 45(3), the healthy
spouse through cohabitation can still ratify the
marriage because the defect is in the fact of the
concealment and not the gravity of the disease.
Hence, even if the STD is treatable, the fraud
gives the unsuspecting spouse the right to file
for annulment.
Concealment of drug addiction, habitual
alcoholism, homosexuality or lesbianism
The non-disclosure of the drug addiction,
habitual
alcoholism,
homosexuality
or
lesbianism must have been done prior to the
marriage. Recovery or rehabilitation from STD,
drug addiction, and habitual alcoholism will
NOT bar action for annulment; the defect is not
the disease, but the fraud which vitiated
consent. [Tolentino]
It is the concealment of homosexuality, and not
homosexuality per se, that vitiates the consent
of the innocent party. Such concealment
presupposes bad faith and intent to defraud the
other party in giving consent to the marriage.
[Almelor v. RTC, G.R. No. 179620 (2008)]
Any other misrepresentation
Article 46 categorically states that any other
misrepresentation as to character, health, rank,
fortune, or chastity shall not be a manifestation
of fraud sufficient to be a ground for annulment
of marriage.
The non-disclosure of a husband’s premarital
relationship with another woman does not
constitute fraud. It was expressly stated in
Article 46 that misrepresentation or deceit as to
one’s chastity shall not be a basis for an action
to annul a marriage. [Anaya v. Palaroan
(1970)]
d. Force, Intimidation, Undue
Influence
Article 45(4) provides the fourth ground for a
voidable marriage, wherein the consent of one
Page 57 of 532
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
party was obtained by violence, intimidation, or
undue influence.
CIVIL LAW
Force must be one to prevent the party from
acting as a free agent; will be destroyed by
fear/compulsion.
To constitute fraud, the concealed impotency
must exist at time of marriage, and be
continuous and incurable. If incapacity can be
remedied or is removable by operation, not
annullable [Sarao v. Guevarra, G.R. No. 47063
(1940)].
There is violence when in order to wrest
consent, serious or irresistible force is
employed. [Art. 1335, CC]
If the potent spouse was aware, it is implied
that he/she renounced copulation by
consenting to the marriage. [Tolentino]
Intimidation must be one as to compel the
party by a reasonable and well-grounded
fear of an imminent and grave evil upon his
person/properties [Art. 1335, CC]
a. Degree of intimidation: age, sex,
condition of person borne in mind
b. Threat or intimidation as not to act as
free agent
When both spouses are impotent, marriage
cannot be annulled because neither spouse is
aggrieved. [Sempio-Dy]
REFUSAL of wife to be examined DOES NOT
PRESUME impotency [Jimenez v. Canizares,
G.R. No. L-12790 (1960)].
f. Sexually-Transmissible
Disease
Serious
And
Incurable
Note: A threat to enforce one’s claim through
competent authority, if one’s claim is just and
legal, does not vitiate consent [Art. 1335, CC]
There is undue influence when a person
takes improper advantage of his power or
position over the will of another, depriving the
latter of a reasonable freedom of choice.
Among the circumstances that define improper
advantage are the (1) confidential, (2) family,
(3) spiritual, (4) professional or other
relationship between the parties, or the fact
that the person alleged to have been unduly
influenced was suffering from (5) mental
weakness, (6) ignorance, or (7) was in financial
or emotional distress. [Art. 1337, CC]
May be ratified upon voluntary cohabitation
after force, intimidation, or undue influence has
ceased or disappeared.
e. Impotency
Impotency refers to the person’s physical
condition where sexual intercourse with a
person of the opposite sex is impossible. It
does not refer to mere sterility.
Refers to the inability to copulate, not
procreate.
Affliction of STD is unknown to the other
spouse. The other spouse must also be free
from a similar STD. [Balane]
Requisites
a. Should exist at the time of the marriage
b. Should be found serious
c. Should appear to be incurable
Not subject to ratification: cannot be ratified
or validated by cohabitation.
Who may file, prescription, ratification
Who
Ground
PrescripRatificacan file
(Art.
tion (art.
tion (Art.
(Art. 47,
45, FC)
47, FC)
45, FC)
FC)
Party 18 Within
5 Free
or above years after cohabitati
but
attaining
on of the
Lack of below 21 age of 21
party who
Parenta
entered
l
the
Parent or
Before
Consen guardian
marriage
party below
t
without
who did
21 reaches
parental
not give
21
consent
consent
after
Page 58 of 532
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Sane
spouse
with no
knowled
ge of the
other’s
insanity
Insanity
Force,
Intimida
-tion,
undue
influence
Impoten
ce
Any
time
before the
death
of
either party
attaining
age of 21
Free
cohabitati
on
of
insane
party
after
insane
party
comes to
reason
Legal
guardian
of insane
party
Insane
party
Fraud
PERSONS AND FAMILY RELATIONS
Injured
(defraud
ed) party
Injured
party
Potent
spouse
STD
Healthy
party
CIVIL LAW
Within
5
years after
marriage
prescribe
s
Cannot
be ratified
by action;
prescribe
s
Marriages not subject to ratification
a. One spouse is incurably impotent
b. One spouse has incurable STD
Reason: Public policy and health.
Note: Though these marriages cannot be
ratified, the petition for annulment will prescribe
within 5 years.
During
lucid
interval or
after
regaining
sanity, and
before
death
Within
5
years after
discovery
of fraud
Within
5
years after
disappeara
nce
of
force,
undue
influence,
or
intimidation
Within
5
years after
marriage
Presence of Prosecutor
To prevent collusion between the parties,
fabrication or suppression of evidence, the
prosecuting attorney or fiscal shall appear on
behalf of the State. [Art. 48, FC]
Free
cohabitati
on of the
defraude
d
party
after
having
full
knowledg
e of fraud
Free
cohabitati
on of the
injured
party
after the
force or
intimidati
on
or
undue
influence
has
ceased or
disappea
red
Cannot
be ratified
by action;
In a legal separation or annulment case, the
prosecuting attorney must first rule out
collusion as a condition sine qua non for further
proceedings. A certification by the prosecutor
that he was present during the hearing and
even cross-examined the plaintiff does not
suffice to comply with the mandatory
requirement. [Corpuz v. Ochoterena, A.M. No.
RTJ- 04-1861 (2004)]
Effects of Pending Decree of Annulment
The Court shall provide for the support of
spouses and support and custody of common
children [Art. 49, FC]. In determining which
parent should have custody of them, their
moral and material welfare shall be given
paramount consideration. [Art. 49, FC; Luna
and Luna v. IAC, G.R. No. L-68374 (1985)]
Effects of Decree of Annulment
(Same as Decree of Nullity)
The effects provided for by paragraphs (2), (3),
(4) and (5) of Article 43 and by Article 44 shall
also apply in the proper cases to marriages
which are declared void ab initio or annulled by
final judgment under Articles 40 and 45 [Art.
50(1), FC].
Page 59 of 532
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CIVIL LAW
PERSONS AND FAMILY RELATIONS
Comparative Table on Void and Voidable
Marriages
Void
Voidable
No
validity
from the time
of
Valid until
Nature
performance;
annulled
inexistent
from the very
beginning
Can
be
Susceptible
Cannot
be ratified,
to
ratified
subject to 2
Ratification
exceptions
Only
coACP or any
ownership
other
[Art. 147, FC] ;
property
No ACP or
Property
regime in
CPG despite
Relation
accordance
having
with
the
entered into a
marriage
marriage
settlement
settlement
Illegitimate
Children
under
Art.
are
165, FC (with
legitimate if
Status
of Arts. 36 and
conceived
Children
53, FC as
or
born
exceptions
prior to the
under Art. 54,
decree
FC)
May
be
attacked
directly
or
collaterally,
but for the
Cannot be
purpose
of
attacked
remarriage, a
collaterally
judicial
How
declaration of
Cannot be
Impugned
nullity
is
impugned
required [Art.
after death
40, FC]
of one of
the parties
Can
be
impugned
even
after
death of the
parties
Who
May
Challenge
Validity
A
proper
interested
person
(depending on
the dates of
marriage and
of filing of
proceeding)
A party to
the
marriage
Susceptible
to
Prescription
Does
not
prescribe
Prescribes
6. Unmarried Cohabitation
Though there is no technical marital
partnership between persons living as husband
and wife, without being lawfully married,
nevertheless there is between them an
informal civil partnership which would entitle
the parties to an equal interest in property
acquired by their joint efforts [Lesaca v.
Lesaca, G.R. No. L-3605 (1952)]
Property regimes for common-law marriages
are provided for in Art. 147 and 148 of the
Family Code (Refer to “Property Regime of
Unions without Marriage” for further
discussion).
D. LEGAL SEPARATION
An action for legal separation involves nothing
more than the bed-and-board separation of the
spouses. It is purely personal in nature. [Lapuz
Sy v. Eufenio, G.R. No. L-30977 (1972)]
1. Grounds for Legal Separation
[Art. 55, FC]:
a. 1st Ground: Repeated physical
violence or grossly abusive conduct
directed against the petitioner, a
common child, or a child of the
petitioner;
For the purposes of Art. 55, the term “child”
shall include a child by nature or by adoption.
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Acts of Violence according to the “AntiViolence Against Women and Their
Children Act of 2004” [R.A. No. 9262] (as
grounds for legal separation under Art.
55(1), FC)
1. Causing 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 engage in conduct
which the woman or her child has the right
to desist from or desist from conduct which
the woman or her child has the right to
engage in, or attempting to restrict or
restricting the woman's or her child's
freedom of movement or conduct by force
or threat of force, physical or other harm or
threat of physical or other harm, or
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. Threatening to deprive or actually
depriving the woman or her child of
custody to her/his family;
b. 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;
c. Depriving or threatening to deprive the
woman or her child of a legal right;
d. 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;
6. Inflicting or threatening to inflict physical
harm on oneself for the purpose of
controlling her actions or decisions;
7. Causing or attempting to cause the woman
or her child to engage in any sexual activity
which does not constitute rape, by force or
CIVIL LAW
threat of force, physical harm, or through
intimidation directed against the woman or
her child or her/his immediate family;
8. 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:
i.
Stalking or following the woman or
her child in public or private places;
ii.
Peering in the window or lingering
outside the residence of the
woman or her child;
iii.
Entering or remaining in the
dwelling or on the property of the
woman or her child against her/his
will;
iv.
Destroying the property and
personal belongings or inflicting
harm to animals or pets of the
woman or her child; and
v.
Engaging in any form of
harassment or violence.
9. 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.
b. 2nd Ground: Physical violence or
moral pressure to compel the
petitioner to change religious or
political affiliation;
The law does not require the violence or moral
pressure to be repeated. A single act of
violence is sufficient to be a ground since
religious and political belief are human rights.
[Tolentino]
Page 61 of 532
c. 3rd Ground: Attempt of respondent
to corrupt or induce the petitioner, a
common child, or a child of the
petitioner, to engage in prostitution,
or connivance in such corruption or
inducement;
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Only the respondent spouse must be guilty of
corrupting or inducing the petitioner, a common
child or a child of the petitioner to engage in
prostitution.
d. 4th
Ground:
Final
judgment
sentencing the respondent to
imprisonment of more than six
years, even if pardoned;
e. 5th Ground: Drug addiction or
habitual
alcoholism
of
the
respondent
f.
6th
Ground:
Lesbianism
or
homosexuality of the respondent;
h. 8th Ground: Sexual infidelity or
perversion;
Adultery is not a continuing crime; it is
consummated at every moment of carnal
knowledge. Thus, every sexual act is a ground
for legal separation. [People v. Zapata and
Bondoc, G.R. No. L-3047 (1951)]
A civil action for legal separation based on
concubinage may proceed ahead of, or
simultaneously with, a criminal action for
concubinage; conviction is not a prerequisite
[Gandionco v. Penaranda, G.R. No. 79284
(1987)].
To constitute grounds for legal separation, the
cause (i.e., drug addiction, habitual alcoholism,
lesbianism or homosexuality) does not have to
be existing at the time of the celebration of
marriage; it is enough that it arises during the
existence of the marriage. Otherwise, it will be
a ground for annulment under Art. 46(4), FC in
relation to Art. 45(3), FC.
g. 7th Ground: Contracting by the
respondent
of
a
subsequent
bigamous marriage, whether in the
Philippines or abroad;
The elements for bigamy to be prosecuted in
the Philippines are:
1. Offender has been legally married
2. The marriage has not been legally
dissolved or, in case his or her
spouse is absent, the absent
spouse could not yet be presumed
dead
3. Offender contracts a subsequent
marriage
4. Subsequent marriage has all the
essential requisites for validity,
except legal capacity. [Capili v.
People, G.R. No. 183805 (2013)]
As a ground for legal separation however,
there is no need for a criminal conviction for
bigamy.
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i.
9th Ground: Attempt by the
respondent against the life of the
petitioner; or
j.
10th Ground: Abandonment of
petitioner by respondent without
justifiable cause for more than one
year.
Abandonment
is
not
mere
physical
estrangement but also financial and moral
desertion. There must be an absolute
cessation of marital relations, duties, and rights
with the intention of perpetual separation. [Dela
Cruz. v. Dela Cruz, G.R. No. L-19565 (1968)]
To be a ground for legal separation,
abandonment must be without just cause.
[Ong Eng Kiam v. Ong, G.R. No. 153206
(2006)]
2. Defenses [Art. 56, FC]:
a. Condonation by aggrieved party –
after the commission of the offense;
may be expressed or implied.
Condonation may be given expressly or
impliedly. An example of an implied
condonation is when a husband repeatedly has
intercourse with the wife despite the wife’s
cruelty. “Although he did not wish it, [he did it]
eventually for the sake of peace.” [Willan v.
Willan, G.R. No. L-13553 (1960)]
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b. Consent by aggrieved party to the
commission of the offense – before
the commission of the offense; may
be express (e.g. written agreement,
[Matubis v. Praxedes, G.R. No. L11766 (1960)] or implied
A written agreement between the spouses,
which provided that they were “free to get any
mate and live with as husband and wife without
any interference by any of us, nor either of us
can prosecute the other for adultery or
concubinage or any other crime or suit arising
from our separation” amounted to express
condonation of and consent to the adulterous
acts of wife. [Matubis v. Praxedes, G.R. No. L11766 (1960)]
The non-interference of the husband with
regard to the amorous relations between his
wife and Ramos constitutes consent. [People
v. Sensano and Ramos, G.R. No. L-37720
(1933)]
c. Connivance between parties in the
commission of the offense
Connivance is present when the husband
throws no protection around his wife nor warns
her against intimacy with the driver. A husband
who had reliable reports for two months that
gave him reason to suspect that his wife was
having an affair with her driver yet did nothing
to keep the latter away is guilty of connivance.
[Sargent v. Sargent, 114 A. 428 (1920)]
f.
Collusion in matrimonial cases is the act of
married persons in procuring a divorce by
mutual consent, whether by preconcerted
commission by one of a matrimonial offense, or
by failure, in pursuance of agreement, to
defend divorce proceedings. [Brown v.
Yambao, G.R. No. L-10699 (1957)]
Prescription of action for legal
separation
Art. 57, FC. An action for legal separation
shall be filed within five years from the time
of the occurrence of the cause.
g. Reconciliation of parties during
pendency of action [Art. 66(1), FC]
Art. 65, FC. 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.
Art 66, FC. The reconciliation referred to in
the preceding Articles shall have the
following consequences:
1. The legal separation proceedings, if still
pending, shall thereby be terminated at
whatever stage; and
2. The final decree of legal separation shall
be set aside, but the separation of property
and any forfeiture of the share of the guilty
spouse already effected shall subsist, unless
the spouses agree to revive their former
property regime.
The court’s order containing the foregoing
shall be recorded in the proper civil
registries.
d. Mutual guilt or recrimination
between spouses in the commission
of any ground for legal separation
e. Collusion between parties to obtain
decree of legal separation
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h. Death of either
pendency of action
party
during
Death of plaintiff before decree of legal
separation abates the action. There is no more
need for legal separation because the marriage
is already dissolved by the death of one of the
parties. [Lapuz Sy v. Eufemio, G.R. No. L30977 (1972)].
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The case should be heard as soon as possible
by the court.
3. Procedure
Who may file the action
A petition for legal separation may be filed only
by the husband or the wife. [Sec. 2, A.M. No.
02-11- 11-SC (Rule on Legal Separation)]
Where to file the action
The petition shall be filed in the Family Court of
the province or city where the petitioner or the
respondent has been residing for at least six
months prior to the date of filing “or in the case
of a non-resident respondent, where he may be
found in the Philippines, at the election of the
petitioner.” [Sec. 2, A.M. No. 02-11-11-SC]
When to File Action
An action for legal separation shall be filed
within five years from the time of the
occurrence of the cause. [Art. 57, FC and A.M.
No. 02-11-11-SC]
Cooling-off and Reconciliation Effects
An action for legal separation shall in no case
be tried before six months shall have elapsed
since the filing of the petition. [Art. 58, FC]
Actions cannot be tried unless the court has
attempted to reconcile the spouses, and
determined that despite such efforts,
reconciliation is highly improbable. [Art. 59]
N.B. This is without prejudice to judicial
determination of custody of children, alimony,
and support pendente lite.
Courts can still resolve other issues, pending
the waiting period or cooling off period. In
resolving other issues, courts should try not to
touch, as much as possible, on the main issue
(i.e. adultery if that is the ground used).
However, Court must still receive evidence if
just to settle incidental issues of support and
custody. [Araneta v. Concepcion, G.R. No. L9667 (1956)]
Contents and Form of the Petition [Sec. 2,
A.M. No. 02-11-11-SC]
a. Allege the complete facts constituting the
cause of action;
b. Names and ages of the common children
of the parties, specify the regime governing
their property relations, the properties
involved, and creditors, if any;
c. Be verified and accompanied by a
certification against forum shoppin;
d. Be filed in six copies.
4. Effects of filing petition
a. The spouses are entitled to live separately,
but the marital bond is not severed. [Art. 61
(1), FC]
b. Administration of community or conjugal
property – If there is no written agreement
between the parties, the court shall
designate one of them or a third person to
administer the ACP or CPG. [Art. 61, par.
2, FC]
Note: No motion to dismiss the petition shall be
allowed except on the ground of lack of
jurisdiction over the subject matter or over the
parties; provided, however, that any other
ground that might warrant a dismissal of the
case may be raised as an affirmative defense
in an answer. [Sec. 4, A.M. No. 02-11-11-SC]
5. Effects of pendency
The Court shall provide for: [Art. 62, cf. Art. 49,
FC]
a. Support of spouses
b. Custody of children: The court shall give
custody of children to one of them, if there
is no written agreement between the
spouses.
c. Visitation rights of the other spouse
N.B. This provision of the Family Code
dictating a mandatory 6-month cooling-off
period does not apply in cases where violence,
as used in R.A. No. 9262 (Anti-Violence
Against Women and their Children), is alleged.
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6. Effects of decree of legal
separation
a. The spouses can live separately [Art. 63,
FC] but the marriage bonds are not
severed.
b. The ACP or CPG shall be dissolved and
liquidated, and the share of the guilty
spouse shall be forfeited in favor of the
common children, previous children, or
innocent spouse, in that order [Art. 63, FC;
cf. Art. 43(2), FC]
c. Custody of the minor children shall be
awarded to the innocent spouse [Art. 63,
FC; cf. Art 213, FC]
d. Guilty spouse shall be disqualified from
inheriting from the innocent spouse by
intestate succession. The provisions in
favor of the guilty party in the will of the
innocent spouse shall also be revoked by
operation of law. [Art. 63, FC]
e. Donations in favor of the guilty spouse may
be revoked [Art. 64, FC] but this action
prescribes after 5 years from the decree of
legal separation.
f. Innocent spouse may also revoke
designation of guilty spouse as beneficiary
in an Insurance policy, even if such
stipulations are irrevocable. [Art. 64. FC; cf.
Sec. 11, P.D. 612]
g. Obligation for mutual support ceases, but
the court may order the guilty spouse to
support the innocent spouse. [Art. 198, FC]
h. The wife shall continue to use the surname
of the husband even after the decree for
legal separation. [Laperal v. Republic, G.R.
No. L-18008 (1992)]
CIVIL LAW
7. Reconciliation
Art. 65, FC. 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.
Effects of Reconciliation:
a. Proceedings for legal separation shall be
terminated at whatever stage [Art. 66(1),
FC].
b. If there is a final decree of legal separation,
it shall be set aside [Art. 66(2), FC].
c. The separation of property and forfeiture of
share of guilty spouse shall subsist, unless
the spouses agree to revive their former
property regime or to institute another
property regime [Art. 66 cf. Art. 67, FC].
d. Joint custody of children is restored.
e. The right to intestate succession by guilty
spouse from innocent spouse is restored.
f. The right to testamentary succession
depends on the will of the innocent spouse.
8. Effect of death of one of the
parties
The death of either party to a legal separation
proceeding, before final decree, abates the
action. There is no more need for legal
separation because the marriage is already
dissolved by the death of one of the parties. An
action for legal separation is also purely
personal between the spouses. [Lapuz Sy v.
Eufemio]
Page 65 of 532
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PERSONS AND FAMILY RELATIONS
Void Marriages, Voidable Marriages and Legal Separation
Void Marriages
Voidable Marriages
Grounds
1. Absence of essential
or formal requisites
a. One is a minor
b. No authority to
marry
c. No valid
marriage
license
d. Bigamous and
polygamous
marriages
e. Mistake of
identity
f. Void
subsequent
marriages
2. Psychological
incapacity
3. Incestuous marriages
4. Marriages against
public policy
5. Subsequent
marriages which did
not comply with Art.
52
Defenses
None
Prescription No Prescription
Defect in any of the
essential requisites:
1. Lack of parental
consent,
2. Insanity,
3. Fraud,
4. Force,
intimidation,
undue influence,
5. Impotence,
6. Serious and
incurable STD
Legal Separation
Grounds not relating to any
of the essential or formal
requisites:
1. Repeated physical
violence
2. Pressure to compel to
change religious/political
affiliation
3. Corruption/ inducement
to engage in prostitution
4. Final judgment with
sentence of more than 6
years
5. Drug addiction/ habitual
alcoholism
6. Homosexuality/
lesbianism
7. Bigamous marriage
8. Sexual infidelity or
perversion
9. Attempts against the life
of petitioner
10. Abandonment without
just cause for more than
1 year
1.
2.
3.
4.
5.
6.
1. Lack of parental
consent
a. Spouses 5 years
after
turning 21
b. Parents before the
spouses
turn 21
2. Insanity
a. Insane
spouse during
Page 66 of 532
Condonation
Consent
Connivance
Collusion
Recrimination
Prescription
Within 5 years from the
occurrence of the cause
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lucid
intervals
b. Sane
spouse/
guardian lifetime
3. Fraud - 5 years
after the discovery
of the fraud
4. Force,
intimidation,
undue influence 5 years after
cessation
5. Impotence/STD 5 years from
marriage
Who can
file
According to A.M. No. 0211-10-SC:
1. Before March 18,
2003 (petition for
nullity or celebration
of marriage) - any
party
2. On and after March
18, 2003 (petition for
nullity or celebration
of marriage) - only the
spouses
Only the spouses
(cannot survive the
death of the plaintiff)
Effects of
Pendency
In the absence of adequate provisions in a written
agreement:
1. Support of spouses
2. Support and custody of children
3. Visitation rights
Effects of
Decree
1. Properties [Art. 147 148, FC]
a. Art. 147
(equal shares)
governs
property
relations of
Only the spouses (cannot
survive the death of the
plaintiff)
1. Live separately
2. Designate either of them
or a third person as
administrator of property
3. Support of spouses
4. Support and custody of
children
5. Visitation rights
1. Properties [Art. 50, 1. Properties [Art. 63(2),
FC]
FC]
a. ACP/CPG
a. Dissolution and
dissolved,
Liquidation of
share
ACP/CPG
forfeited to
heirs if bad 2. Support and Custody
faith
[Art. 213, FC]
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void
marriages
b. Art. 148 (in
proportion)
governs
property
relations of
bigamous
adulterous
relationships
2. Status of Children
[Art. 54, FC]
General Rule: Conceived
or born before the
judgment of absolute
nullity, illegitimate
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b. Donations
a. Parental authority
valid,
to the parent
except if
designated by
bad faith
Court after all
c. Insurance
relevant
may be
consideration
revoked if
b. Tender years
bad faith
presumption for
d. No
Child under 7 y.o.
succession
[Art 213(2), FC]
for spouse
in bad faith 3. Inheritance, Donations
and Designation in
2. Status of Children
Insurance Policies [Sec.
[Art. 54, FC]
22, rules on Legal
a. Conceived
Separation]
or born
before
4. Continued Use of
judgment,
Surname [Art. 372, CC]
legitimate.
Exceptions: Conceived
or born
a. Before the
judgment of
3. Continued Use of
annulment;
Surname [Art.
b. Before the
371, CC]
judgment of
a. Dependent
absolute
on her
nullity under
being the
Art. 36
innocent
(Psychological
or guilty
Incapacity)
party
c. Of the
subsequent
marriage
under Art. 53
(Failure to
Record the
Decree of
Nullity of
Annulment);
d. Prior to the
termination of
the
subsequent
marriage
under Art. 42
(when the
absent
spouse files
an affidavit of
reappearance)
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E. RIGHTS AND OBLIGATIONS
BETWEEN HUSBAND AND WIFE
These rights and duties are not subject to
stipulation between the spouses; and though
they may voluntarily agree to any change in
their personal relations, this agreement will be
void and have no legal effect.
1. Live Together
The right to live together refers to the right of
consortium which is not susceptible of precise
or complete definition but, broadly speaking,
companionship, love, affection, comfort,
mutual services, sexual intercourse—all
belonging to the marriage state—taken
together make up what we refer to as
consortium.
Art. 68, FC. The husband and wife are
obliged to live together, observe mutual love,
respect and fidelity, and render mutual help
and support.
Exception: One spouse living abroad or there
are valid and compelling reasons [Art. 69(2),
FC] - at the discretion of the court.
Exception to the Exception: Incompatibility
with the solidarity of the family [Art. 69(2), FC].
If the wife abandons the family domicile with
justifiable cause (i.e. being forced to perform
lewd sexual acts), the husband’s obligation to
support her is not terminated. The law will not
permit the husband to terminate the obligation
to support his wife by his own wrongful acts
driving the wife to seek protection in her
parents’ home [Goitia v. Campos Rueda, G.R.
No. 11263 (1916)].
2. Family Domicile
Art. 69(1), FC. The husband and wife shall
fix the family domicile. In case of
disagreement, the court shall decide.
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3. Support
The spouses are jointly responsible for the
support of the family. The expenses for such
support and other conjugal properties shall be
paid:
a. From the conjugal property;
b. If none, income or the fruits of their
separate properties;
c. If none, from their separate properties,
wherein they shall be liable in proportion to
their properties [Art. 70, FC].
Support is not just limited to financial support includes emotional and moral support.
In case of a de facto separation, if it is proved
that the husband and wife were still living
together at the time of his death, it would be
safe to presume that she was dependent on
the husband for support, unless it is shown that
she is capable of providing for herself [SSS v.
Aguas, G.R. No. 165546 (2006)].
4. Management of Family Life
Art. 71, FC. The management of the
household shall be the right and duty of both
spouses.
The
expenses
for
such
management shall be paid in accordance
with the provisions of Article 70.
5. Effect of Neglect of Duty
Art. 72, FC. When one of the spouses
neglects his or her duties or commits acts
which tend to bring danger, dishonor or injury
to the other or to the family, the aggrieved
party may apply to the court for relief.
Note: Injury contemplated here is physical,
moral, emotional or psychological, not
financial.
6. Exercise of Profession
Either spouse may exercise any legitimate
profession, without need for consent of the
other [Art. 73, FC].
The other spouse may only object on valid,
serious and moral grounds.
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In case of disagreement, the Court shall decide
whether:
a. The objection is proper, and
b. Benefit has accrued to the family
i. If benefit accrued before the objection:
enforce against community property
ii. If benefit accrued after the objection:
enforce against separate property of
spouse who has not obtained consent
[Art. 73, FC, as amended by RA
10572].
CIVIL LAW
Note: From the foregoing provisions, it can be
gleaned that a woman is not mandated by law
to adopt her husband’s surname after
marriage. Art. 370, CC is merely directory,
since it provides that a woman may choose any
of the options provided.
F. PROPERTY RELATIONS
OF THE SPOUSES
1. Marriage settlements
7. Use of Surname
For Married Women
A woman may use [Art. 370, CC]:
1. Her maiden first name and surname and
add her husband’s surname; or
2. Her maiden first name and her husband’s
surname; or
3. Her husband’s full name, but prefixing a
word indicating that she is his wife, such as
Mrs.
For Widows
A widow may use the deceased husband’s
surname as though he were still living, in
accordance with Art. 370 [Art. 373, CC].
In case of Annulment [Art. 371, CC]
1. If the wife is the guilty party, she shall
resume her maiden name and surname
2. If the wife is innocent
a. She may resume her maiden name
and surname; or
b. She may choose to continue employing
her former husband’s surname, unless:
i.
The court decrees otherwise; or
ii.
She or the former husband is
married again to another person.
For Legally Separated Spouses
The wife shall continue using her name and
surname employed before the legal separation
[Art. 372, CC].
In case of absolute divorce, the effect of
divorce is more akin to the death of the spouse
where the widow can continue using the
surname or be referred as Mrs. of her husband
[Tolentino v. CA, G.R. No. L-41427 (1988)].
Art. 74, FC. The property relationship
between husband and wife shall be
governed in the following order:
1. By marriage settlements executed
before the marriage;
2. By the provisions of this Code; and
3. By the local custom.
Requisites for Validity [Art. 75, FC]
1. Future spouses agree upon the regime of
absolute community, conjugal partnership
of gains, complete separation of property,
or any other regime.
2. In the absence of marriage settlement, or
when the regime agreed upon is void, the
system of absolute community property as
established in this Code shall govern.
Requirements for marriage settlements and
any modification thereof [Art. 77, FC]
1. Must be made in writing
2. Signed by the parties
3. Executed before the marriage celebration
4. If executed by a person below 21 years,
valid only when persons required to give
consent to the marriage (father, mother, or
guardian, respectively) are made parties to
the agreement [Art. 78, FC]
The parties have the freedom to stipulate
regarding their property relations in their
marriage settlements in which the lex
intentionis of the parties governs the contract.
When the couple agrees on a property regime
in their marriage settlement, the provisions of
the Code are merely suppletory.
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govern the property relations of the subsequent
marriage [Art. 103(3), FC]
When modifications can be made
For modification to be valid, it must be
determined before the celebration of
marriage [Art. 76, FC]
Upon finality of legal separation, the property
regime is dissolved and liquidated, subject to
forfeiture for the guilty spouse [Art, 63(2),
FC]
In case of reconciliation, the separation of
property subsists unless the parties agree to
revive their former property regime. [Arts. 66
and 67, FC]
For judicial separation of property, the
following are sufficient causes:
1. The spouse of the petitioner has
been sentenced to a penalty which
carries with it civil interdiction;
2. The spouse of the petitioner has
been
judicially
declared
an
absentee;
3. Loss of parental authority of the
spouse of petitioner has been
decreed by the court;
4. The spouse of the petitioner has
abandoned or failed to comply with
his or her obligations to the family
5. That the spouse granted the power
of administration in the marriage
settlements has abused that power;
and
6. That at the time of the petition, the
spouses have been separated in fact
for at least one year and
reconciliation is highly improbable.
N.B. Marriage settlements are considered
accessory to the marriage, therefore as per Art.
81, stipulations in consideration of future
marriage and donations will be void if the
marriage does not take place.
Should the surviving spouse contract a
subsequent marriage without compliance with
the foregoing requirements, a mandatory
regime of complete separation of property shall
2. Donations by reason of
marriage (Donations Propter
Nuptias)
Art. 82, FC. Donations by reason of marriage
are those which are made before its
celebration, in consideration of the same, and
in favor of one or both of the future spouses.
Donations propter nuptias are made in
consideration of marriage. There can be a valid
donation even if the marriage never took place,
but the absence of marriage is a ground for the
revocation of the donation. [Solis v. Barroso,
G.R. No. 27939 (1928)]
Donations propter nuptias are without onerous
consideration, marriage being merely the
occasion or motive for the donation, not its
cause. Being liberalities, they remain subject to
reduction for inofficiousness upon the donor’s
death, if they should infringe the legitime of a
forced heir. [Mateo v. Lagua, G.R. No. L-26270
(1969)]
Requisites of donation propter nuptias
1. Made before the celebration of marriage
2. Made in consideration of marriage
3. Made in favor of one or both of the future
spouses
4. In a public document and not merely
privately stipulated [Solis v. Barroso, supra]
Who may donate
1. Spouses to each other
2. Parents of one or both spouses
3. Third persons to either or both spouses
Donations excluded are:
1. Ordinary wedding gifts given after the
celebration of marriage
2. Donations in favor of future spouses made
before marriage but not in consideration
thereof
3. Donations made in favor of persons other
than the spouses even if founded on the
intended marriage
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Distinguished from Ordinary Donations
B. Void marriage
Donations propter Ordinary Donations
nuptias
Does not require Express acceptance
express acceptance required
General rule: There must be a judicial
declaration of nullity for the void marriage.
May include future Cannot
include
property (subject to future property
formalities of wills)
If present property is
donated
and
property regime is
not
absolute
community, limited to
1/5 [Art. 84, FC]
No limit to donation
of present property
provided legitimes
are not impaired
1. Art 40, in
rel. to Art
52 and 53
(subseque
nt
marriage
before
securing
judicial
declaratio
n of nullity)
If doneespouse
contracted
the
second
marriage
in
bad
faith
(knowing
that it was
void),
donations
in favor of
the
second
marriage
are
revoked
by
operation
of law.
2. Art 44 (bad
faith
in
securing
declaratio
n
of
presumpti
ve death)
If either or
both
spouses in
the
subseque
nt
marriage
acted
in
bad faith
(knowing
that
the
person
was
still
alive),
donations
in favor of
the
subseque
nt
marriage
is revoked
by
Grounds
for Grounds
for
revocation found in revocation found in
Art. 86, FC
donation laws CC
provisions
Donations
of
property
subject
to
encumbrances
a. Are considered valid.
b. In case of foreclosure:
i.
If property value < obligation,
donee shall not be liable for the
deficiency
ii.
If property value > obligation,
donee shall be entitled to the
excess [Art. 85, FC]
Grounds for Revocation of
Propter Nuptias [Art. 86, FC]
Donation
A. Marriage not celebrated
Donation
contained
marriage
settlement
CIVIL LAW
PERSONS AND FAMILY RELATIONS
Revoked by operation of
in law
Does not prescribe
Donation
Donor’s choice
contained in a
separate
Prescribes within 5
instrument
years from supposed
date of marriage
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If
both
parties
acted in
good
faith,
revocatio
n will be
by
donor’s
choice;
within 5
years
from date
of finality
of
the
judicial
declaratio
n
of
nullity.
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
operation
of law.
CIVIL LAW
G. Acts of ingratitude [Art. 765, CC]
General rule: Revocation is by donor’s
choice and done within 1 year from
knowledge of fact of ingratitude with donor
being capable of bringing suit.
3. All other Donor’s
void
choice,
marriages regardless
of
good/bad
faith of the
donee.
3. Void
donations
spouses
C. No consent of parents or guardian
General rule: Does not require final decree
of annulment
Revocation will be by donor’s choice and
done within 5 years from discovery that
consent was not obtained
D. Other cause of annulment
Revoked by operation of law if donee is the
guilty spouse who acted in bad faith
E. No consent of parents or guardian
General rule: Revocation is by donor’s
choice and done within 5 years from finality
of decree of legal separation
Exception: If cause is adultery or
concubinage, revoked by operation of law
F. Resolutory condition complied
with
General rule: Revocation is by donor’s
choice and done within 5 years from finality
of decree of legal separation
Exception: If the other spouse is the donor,
action does not prescribe
by
the
Donations Before Marriage
General rule: Future spouses who agree upon
a regime other than ACP cannot donate to
each other more than 1/5 of their present
property (excess shall be considered void).
[Art. 84, FC]
Reason for excluding ACP: All property will
again be shared by both spouses after the
marriage.
Exception: The limit of 1/5 only applies when
the donation is contained in the marriage
settlements. If it is contained in another
instrument, the general rules on inofficious
donations shall apply.
Donations
During
Marriage
General rule: Spouses cannot donate to each
other, directly or indirectly; donations made by
spouses to each other during the marriage are
void. [Art. 87, FC] These donations refer to
donations inter vivos. [Tolentino]
Exception: Moderate gifts on the occasion of
any family rejoicing.
A spouse cannot donate to persons which the
other spouse may inherit from as it constitutes
an indirect donation. [Nazareno v. Birog, 45
O.G. No. 5 (1947)]
Donations Between Common-law Spouses
The donation between common-law spouses
falls within the provision prohibiting donations
between
spouses
during
marriage.
[Matabuena v. Cervantes, G.R. No. L-2877
(1971)]
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In order to fall under the prohibition, it must be
proved that they were living in a common-law
relationship at the time of the donation.
[Sumbad v. CA, G.R. No. 106060 (1999)]
4. Absolute
Property
Community
of
Definition
The community property consists of all the
property owned by the spouses at the time of
the celebration of the marriage, and those
either one or both of them acquired during the
marriage. There is a presumption provided in
the Family Code that properties acquired
during the marriage belong to the community,
unless it is proved that it is one of those
excluded therefrom. [Tolentino]
Governing law
Art. 80, FC. In absence of a contrary stipulation
in a marriage settlement, the property relations
of the spouses shall be governed by Philippine
laws, regardless of the place of the celebration
of the marriage and their residence.
By the Nationality Rule [Art. 15, CC], the rule
that Absolute Community Property (ACP) is the
default mode of property relations absent any
marriage settlement applies to all Filipinos,
regardless of the place of the marriage and
their residence. [N.B.]
Exceptions
1. Where both spouses are aliens
2. 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
3. With respect to the 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 [Art. 80, FC]
If marriage does not take place
Art. 81, FC. Everything stipulated in the
settlements or contracts referred to in the
CIVIL LAW
preceding articles in consideration of a future
marriage, including donations between the
prospective spouses made therein, shall be
rendered void if the marriage does not take
place. However, stipulations that do not
depend upon the celebration of the marriages
shall be valid.
Waiver Not Allowed
General Rule: No waiver of rights, shares and
effects of the absolute community of property
during the marriage can be made
Exception: In case of judicial separation of
property.
When the waiver takes place upon a judicial
separation of property, or after the marriage
has been dissolved or annulled, the same shall
appear in a public instrument and shall be
recorded as provided in Article 77. The
creditors of the spouse who made such waiver
may petition the court to rescind the waiver to
the extent of the amount sufficient to cover the
amount of their credits. [Art. 89, FC.]
Provisions on Co-ownership Apply
The provisions on co-ownership shall apply to
the absolute community of property between
the spouses in all matters not provided for in
this Chapter. [Art. 90, FC]
N.B. The creditors of the spouse who made
such waiver may petition the court to rescind
the waiver to the extent of the amount sufficient
to cover the amount of their credits.
5. Conjugal
Gains
Partnership
of
This property regime was formerly the default
regime under the CC.
In this regime, the spouses retain ownership of
their separate property. However, the spouses
also place in a common fund the proceeds,
products, fruits and income of their separate
property and those acquired by either or both
spouses through their efforts or by chance.
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The presumption applies that all properties
acquired during the marriage belong to the
CPG. There are 3 distinct patrimonies in this
CIVIL LAW
system, the husband’s capital property, the
wife’s paraphernal property, and the conjugal
property.
Comparison of ACP and CPG
Absolute Community of
Property (ACP)
Conjugal Partnership of Gains (CPG)
When
it At the precise moment of the For marriages after the Family Code, CPG
commences
celebration of the marriage [Art. 88, becomes the property regime only if agreed
FC]
to by the parties through a marriage
settlement.
What
consists of
it All the properties owned by the Proceeds, products, fruits, and income of
spouses at the time of the their separate properties
celebration of the marriage or
Everything acquired by them during
acquired thereafter [Art. 91, FC]
marriage through their own efforts
Under the ACP, spouses cannot Everything acquired through their efforts or
exclude specific properties from by chance.
the regime unless done in
settlement.
Winnings from gambling shall Specific properties [Art. 117, FC]
accrue to the community property
1. Acquired by onerous title during
but obligations from gambling shall
the marriage at the expense of the
not. [Art. 95, FC]
Common Fund;
2. Acquired through the labor,
Property acquired during marriage
industry, work, or profession of
is presumed to have been obtained
either or both spouses
through joint efforts of parties, even
3. Fruits from common property and
though one did not actually
net fruits of the exclusive property of
participate in the acquisition. This
each spouse
is true for a party whose efforts
4. Share of either spouse in hidden
consisted in the care and
treasure, whether as finder or
maintenance
of
the
family
owner of property where treasure
household. Such is regarded as
was found
contributions to the acquisition of
5. Acquired through occupation such
common property by one who has
as fishing or hunting
no salary, income, work or
6. Livestock existing at dissolution of
industry. [Ocampo v. Ocampo,
partnership in excess of what is
G.R. No. 198908 (2015)]
brought by either spouse to the
marriage
7. Acquired by chance, such as
winnings from gambling or betting
Moral damages arising from a contract paid
from the CPG [Zulueta v. Pan American
World Airways, G.R. No. L-28589 (1973)]
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Loans contracted during the marriage are
conjugal, and so is any property acquired
therefrom [Mendoza v. Reyes, G.R. No. L31625 (1983)]
Property purchased by installment, paid
partly with conjugal funds and partly with
exclusive funds, if full ownership was
vested during the marriage; the CPG shall
reimburse the owner-spouse [Art. 118, FC]
If a winning ticket is bought by conjugal
funds, the prize is conjugal (otherwise, the
prize is exclusive property of the spouse
who owns the ticket)
Improvement on exclusive property: if
original value is less than new value (where
new value = value of land + value of
improvements + net change in value), then
land becomes conjugal property, subject to
the reimbursement of the value of the
property of the owner-spouse at the
dissolution of the CPG
Property belonging to one spouse
converted into another kind totally different
in nature from its original form during
marriage becomes conjugal in the absence
of proof that the expenses of the conversion
were exclusively for the account of the
original
owner-spouse,
subject
to
reimbursement of the value of the original
property from the conjugal partnership
What remains
exclusive
property [Art.
92, FC]
Properties acquired before the Property brought into the marriage by
marriage, for those with legitimate each spouse as his/her own
descendants
by
a
former
marriage (to protect rights of
children by a former marriage)
Properties acquired during the
marriage by a gratuitous title, i.e.
donation, inheritance by testate
and intestate succession, including
the fruits of such properties
Properties acquired during the marriage
by a gratuitous title, i.e. donation,
inheritance by testate and intestate
succession (but the fruits of such properties
form part of the CPG)
Except: When expressly provided Except: When expressly provided by the
by the donor or testator that the donor or testator that the property shall form
property shall form part of the ACP part of the CPG
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Properties for personal use i.e. Property acquired by right of redemption, by
wearing apparel, toilet articles, barter, or by exchange with property
eyeglasses
belonging to either spouse
Except:
1. Luxurious jewelry and
those of special value that
increase in value over time
(partakes of the nature of
an investment)
Plata v. Yatco, G.R. No. L-20825 (1964):
Plata purchased property when she was
single. When married, she and her husband
Bergosa co-signed a mortgage on the
property. Upon foreclosure, Bergosa was
sued for illegal detainer. A writ of execution
on the property was carried out but Plata
refused to leave the premises. SC ruled that
Plata cannot be held in contempt. Property
is not conjugal.
Her husband signing as co-mortgagor does
not convert it to CPG. She could ignore
execution because the decision was for her
husband alone.
Property purchased with exclusive money
of either spouse
Property purchased by installment, paid
partly with conjugal funds and partly with
exclusive funds, if full ownership was
vested before the marriage [Art. 118, FC].
Even if the installment is completed after
the marriage, the property is exclusive if
ownership was vested in one spouse before
the marriage [Lorenzo v. Nicolas, G.R. No.
L-4085 (1952)].
Presumption
All properties acquired during the
marriage form part of the ACP,
unless it be proven that they are
excluded. [Art. 93, FC]
All property acquired during the marriage,
whether made, contracted, or registered in
the name of one spouse, are presumed
conjugal unless the contrary is proven. [Art.
116, FC]
Charges and Art. 94, 121-123 FC
Obligations
1. Support of the following:
a. Spouses;
b. Common children;
c. Legitimate children of previous marriage;
d. Illegitimate children – follow the provisions on Support; common
property liable in case of absence or insufficiency of the exclusive
property of the debtor-spouse, but the payment shall be
considered as an advance on the share of the debtor-spouse.
2. Expenses to enable either spouse to commence/complete a
professional/vocational course or activity for self-improvement;
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3. Value donated or promised by both spouses in favor of common
legitimate children for the exclusive purpose of commencing/ completing
a professional/ vocational course or activity for self-improvement;
4. Generally: all expenses incurred with the consent to the spouses or for
the benefit of the family.
If
community
property
is
insufficient, the spouses are
solidarily liable for the unpaid
balance from their separate
properties except for:
1. Debts contracted by either
spouse before marriage
which have not redounded
to the benefit of the family;
2. Support of illegitimate
children; and
3. Liabilities incurred by either
spouse arising from crime
or quasi-delict.
If conjugal partnership property is
insufficient, the spouses are solidarily liable
for the unpaid balance from their separate
properties. Gambling losses of any kind (i.e.
legal or illegal) shall be borne by the losing
spouse’s separate property [Art. 123, FC]
DBP v. Adil, G.R. No. L-4085 (1988): Loan
contracts signed by both spouses are
conjugal, and they are jointly liable for
payment, even if only one spouse signs a
subsequent promissory note.
Ayala Investment v. Ching, G.R. No.
118305 (1998): The Supreme Court ruled
Gambling losses of any kind (i.e. that the indirect benefits that might accrue
legal or illegal) shall be borne by to a husband in signing as a surety or
the losing spouse’s separate guarantee in an agreement not in favor of
property [Art. 95, FC]
the family but in favor of his employer
corporation are not benefits that can be
considered as giving a direct advantage
accruing to the family. Hence, the creditors
cannot go against the conjugal partnership
property in satisfying the obligation subject
of the surety agreement. A contrary view
would put in peril the conjugal partnership
by allowing it to be given gratuitously as in
cases of donation of conjugal partnership
property, which is prohibited.
Ownership,
administration,
enjoyment,
and
disposition of
property
The administration and enjoyment of the community/conjugal property shall
belong to both spouses jointly.
In case of disagreement, the husband’s decision shall prevail, subject to
recourse to the court by the wife for a proper remedy, within 5 years from the date
of contract [Art. 96, 124 FC].
De Ansaldo v. Sheriff of Manila, G.R. No. L43257 (1937): Spouses are not co-owners
of CPG during the marriage and cannot
alienate the supposed 1/2 interest of each
in the said properties. The interest of the
spouses in the CPG is only inchoate or a
mere expectancy and does not ripen into
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title until it appears after the dissolution and
liquidation of the partnership that there are
net assets.
Either spouse may, through a will, Disposition or encumbrance of conjugal
dispose of his or her interest in the property requires the following: Authority of
community property. [Art. 97, FC]
the court or written consent of the other
spouse. The absence of such will render
However, the will should refer only such encumbrance void. [Art. 124, par. 2,
to his or her share in the FC]
community property.
Donation of one spouse without the consent of the other is not allowed. [Art. 98,
125 FC]
Exception:
Moderate donations to charity or on occasion of family rejoicing or distress
Jader-Manalo v. Camaisa, G.R. No. 147978 (2002): Mere awareness of a
transaction is NOT consent.
Homeowner’s Savings & Loan Bank v. Dailo, G.R. No. 153802 (2005): In the
absence of (court) authority or written consent of the other spouse, any
disposition or encumbrance of the conjugal property shall be void.
Cheeseman v. IAC, G.R. No. 7483 (1991): If, however, one of the spouses is an
alien, the Filipino spouse may encumber or dispose of the property w/o the
consent of the former. The property is presumed to be owned exclusively by the
Filipino spouse.
Dissolution of Terminates upon [Art. 99, 126 FC]:
the regime
1. Death of either spouse – follow rules in Art. 103
2. Legal separation – follow rules in Arts. 63 and 64
3. Annulment or judicial declaration of nullity – follow rules in Arts. 50 and
52
Judicial separation of property during marriage – follow rules in Arts. 134 to 138
Rules on de General rule: De facto separation does NOT affect the ACP/CPG.
facto
separation
Exceptions:
1. Spouse who leaves the conjugal home without just cause shall not be
entitled to support; however, he/she is still required to support the other
spouse and the family
2. If consent is necessary for transaction but is withheld or otherwise
unobtainable, authorization may be obtained from the court
3. Support for family will be taken from the ACP/CPG
4. If ACP/CPG is insufficient, spouses shall be solidarily liable
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Effect of de If it is necessary to administer or encumber separate property of spouse who left,
facto
spouse present may ask for judicial authority to do this.
separation
If ACP/CPG is not enough and one spouse has no separate property, spouse
who has property is liable for support, according to provisions on support.
Rules
on Abandonment [Art. 101, 128 FC]
Abandonment Present/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, subject
to precautionary conditions that the court may impose
A spouse is deemed to have abandoned the other when he or she has left the
conjugal dwelling without any intention of returning.
Spouse is prima facie considered to have abandoned the other spouse and the
family if he or she has:
1. Left for a period of 3 months
2. Failed to inform the other spouse of his or her whereabouts for a period
of 3 months
Partosa-Jo v. CA, G.R. No. 82606 (1992):
Physical separation of the spouses,
coupled with the husband’s refusal to give
support to the wife, sufficed to constitute
abandonment as a ground for an action for
the judicial separation of their conjugal
property.
Liquidation of Procedure [Art. 102, FC]
Procedure [Art. 129, FC]
assets
and
1. Prepare an inventory of
1. Prepare an inventory of all
liabilities
assets of ACP and of
properties
spouses
with
market
2. Amounts advanced by CPG in
values
payment of personal debts and
2. Debts and obligations
obligations shall be credited to the
are paid with community
CPG
property, and separate
3. Reimburse each spouse for the use
debts and obligations not
of his/her exclusive funds in the
charged to ACP paid by
acquisition of property or for the
respective
assets
of
value of his or her exclusive
spouses
property, the ownership of which
a. If
obligations
has been vested by law in the
exceed the assets
conjugal partnership
of the ACP, nothing
4. Debts and obligations of CPG
is
divided.
shall be paid out of the conjugal
Creditors can go
assets, otherwise both spouses are
after the separate
solidarily liable with their exclusive
properties of the
property
spouses, which are
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3.
4.
5.
6.
7.
8.
solidarily liable for
the deficiency
Delivery
of
whatever
remains in their exclusive
property
The balance, or net
remainder, is divided
equally
between
the
spouses, or in accordance
to the proportion agreed
upon in the marriage
settlement, irrespective of
how much each brought
into the community
If personal obligations of
a spouse exceed his/her
separate property, creditor
can go after the share of
the spouse on the net
remainder of the ACP,
without prejudice to the
provisions of law on
forfeitures and delivery of
presumptive legitimes
After
covering
all
community obligations
and
obligations
of
spouses,
balance
of
separate properties shall
be delivered to respective
spouses or their heirs, and
they will also divide into
two equal shares whatever
is left of the community
assets, without prejudice to
the provisions of law on
forfeitures and delivery of
presumptive legitimes
Presumptive legitimes are
delivered
to
common
children
Conjugal dwelling goes to:
a. Spouse with whom
majority
of
common children
choose to remain
(below 7 y.o., =
deemed to have
chosen the mother
based
on
the
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CIVIL LAW
5. Remains of the exclusive properties
shall be delivered to respective
owner-spouses.
6. Indemnification
for
loss/deterioration of movables
belonging to either spouse, even
due to fortuitous event, used for the
benefit of the family
7. Net remainder of CPG shall
constitute the profits which shall be
divided equally between husband
and wife except when:
a. A different proportion or
division was agreed upon in
the marriage settlements
b. There has been a voluntary
waiver or forfeiture of such
share as provided in the FC
c. Presumptive legitimes are
delivered
to
common
children
d. Conjugal dwelling goes to:
i.
Spouse with whom
majority of common
children choose to
remain (below 7 y.o.
= deemed to have
chosen the mother
based on the tender
years presumption)
ii.
Whoever the court
chooses in case of
lack of majority
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
CIVIL LAW
tender
years
presumption)
b. Whoever the court
chooses in case of
lack of majority
Rules in case of termination of marriage by death of one of the spouses [Art.
104, FC]:
1. The community property shall be liquidated in the same proceeding for
the settlement of the estate of the deceased spouse.
2. If no such judicial settlement proceeding is instituted, surviving spouse
shall liquidate the community property either judicially or extra-judicially,
within one year from the death of the deceased spouse.
a. If no liquidation is made within the period, any disposition or
encumbrance involving community property of the terminated
marriage shall be void.
b. Non-compliance with liquidation procedures would mean that a
subsequently contracted marriage will follow a regime of
complete separation of property.
Procedure for liquidation of properties of two marriages [Art. 104, FC]:
1. Determine the capital, fruits, and income of each community upon such
proof as may be considered according to the rules of evidence.
2. In case of doubt as to which community the existing properties belong,
they shall be divided between two communities in proportion to the capital
and duration of each.
6. Regime of
property
separation
of
Each spouse has complete control and
ownership of his or her own properties which
will include “all earnings from his or her
profession, business or industry and all fruits,
natural, industrial or civil, due or received
during the marriage form his or her separate
property.” Expenses of the family shall be
shouldered by the spouses in proportion to
their income, or, in case of insufficiency or
default thereof, to the current market value of
their separate properties.
7. Judicial
property
separation
of
Art. 134, FC. In the absence of an express
declaration in the marriage settlements. The
separation of property between spouses
during the marriage shall not take place
except by judicial order. Such judicial
separation of property may either be
voluntary or for sufficient cause.
If the spouses did not execute a written
agreement regarding their property regime
prior to the marriage, they can no longer
change it after the marriage ceremony has
taken place unless they have secured judicial
approval.
Sufficient Causes and Grounds for Return
to Previous Regime
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Sufficient Causes
for Judicial
Separation of
Property [Art. 135,
FC]
When after voluntary
dissolution of the ACP
or CPG has been
judicially
decreed
upon the joint petition
of the spouses, they
agree to the revival of
the former property
regime. No voluntary
separation of property
may thereafter be
granted.
Grounds for Return
to Previous Regime
[Art. 141, FC]
Spouse of petitioner Termination of the civil
has been sentenced interdiction
to a penalty which
carries with it the
penalty
of
civil
interdiction
Spouse of petitioner Reappearance
is judicially declared absentee spouse
an absentee
of
Separation of Property
Loss of parental
authority
of
the
spouse of petitioner
has been decreed by
the court
Restoration
of
parental authority to
the spouse previously
deprived of it
Spouse of petitioner
has abandoned the
latter or failed to
comply with his or
her obligations to the
family
When the spouse who
left the conjugal home
without
legal
separation resumes
common life with the
other
The spouse granted
the
power
of
administration in the
marriage
settlements
has
abused that power
When the court, being
satisfied
that
the
spouse granted the
power
of
administration will not
again
abuse that
power, authorizes the
resumption of said
administration
At the time of the
petition, the spouses
have
been
separated in fact for
at least 1 year and
reconciliation
is
highly improbable.
CIVIL LAW
PERSONS AND FAMILY RELATIONS
When it
applies
Agreed upon in the
marriage settlements by
the spouses
Mandatory under Arts. 103
& 130, FC (subsequent
marriages contracted by a
surviving spouse without
judicial
settlement
of
previous property regime)
Judicial separation of
property (Voluntary or just
cause)
Default property regime
when
there
is
reconciliation
between
spouses after judicial
separation of property
What it
consists of
Reconciliation
and
resumption
of
common life of the
spouses who had
been separated in fact
for at least 1 year
Present or future property
or both
Each spouse’s earnings
from his or her own
profession, business, or
industry
Natural, industrial or civil
fruits of spouse’s separate
properties
May be total or partial. If
partial,
property
not
considered separate is
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U.P. LAW BOC
presumed to pertain to the
ACP
Liabilities
Family expenses: Both
spouses are liable in
proportion to their income;
if insufficient, based on the
current value of their
separate properties
Creditors
for
family
expenses:
Spouses
solidarily liable
Ownership,
administration,
enjoyment,
and
disposition
CIVIL LAW
PERSONS AND FAMILY RELATIONS
Maquilan v. Maquilan, G.R. No. 155409
(2007): A compromise agreement with judicial
recognition is valid, pending petition for
declaration of nullity of marriage.
8. Property regime of unions
without marriage
Applicabil
ity
Spouses
may
own,
dispose, possess, and
administer
separate
estates
without
the
consent of the other
Administration
of
exclusive properties may
be transferred between
spouses when:
1. One
spouse
becomes the other
spouse’s guardian
2. One spouse is
judicially declared
an absentee
3. One spouse is
given the penalty
of civil interdiction
4. One
spouse
becomes a fugitive
Conveyance between the
spouses is allowed under
Art. 1490, NCC.
In Re: voluntary dissolution of CPG of Sps.
Bermas, G.R. No. L-20379 (1965): A voluntary
separation of properties is not perfected by
mere consent but upon the decree of the court
approving the same. The petition for voluntary
separation of property was denied because the
children of the 1st and 2nd marriages were not
informed; the separation of property may
prejudice the rights and shares of the children.
Art. 147, FC
Art. 148, FC
Man
and
woman living
together as
husband and
wife,
with
capacity to
marry (Art. 5,
without any
legal
impediment)
1. at least
18 years
old
2. not
violative
of Art.
37
(incestu
ous void
marriag
e)
3. not
violative
of Art.
38 (void
marriag
e
by
reason
of public
policy)
4. not
bigamo
us
Man and woman living
together as husband
and
wife,
NOT
capacitated to marry:
1. Under 18 years
old
2. Adulterous
relationship
3. Bigamous/polyga
mous marriage
4. Incestuous
marriages under
Art. 37
5. Void marriages
by reason of
public
policy
under Art. 38
Other void
marriages
due
to
absence of
formal
requisite
Salaries
and
Wages
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Owned
in
equal shares
Separately owned by
parties
U.P. LAW BOC
Propertie
s
acquired
through
exclusive
funds
Remains
exclusive,
provided
there is proof
Remains exclusive
Propertie
s
acquired
by
both
through
work and
industry
Governed by
rules on coownership
Owned in common in
proportion
to
respective
contribution
Propertie
s
acquired
while
living
together
Owned
in
equal shares
since it is
presumed to
have been
acquired
through joint
efforts
Forfeiture
Where only
one party to
a
void
marriage is
in good faith,
share
of
party in bad
faith
is
forfeited:
In favor of
their
common
children
In case of
default of or
waiver
by
any or all of
the common
children or
their
descendants
,
each
vacant share
shall belong
to
the
respective
surviving
descendants
No presumption of
joint acquisition. When
there is evidence of
joint acquisition but
none as to the extent
of actual contribution,
there is a presumption
of equal sharing.
If one party
did
not
participate in
acquisition,
presumed to
have
contributed
jointly, if the
former’s
effort
consisted in
the care and
maintenance
of family and
household
N.B. Neither
party
can
encumber or
dispose by
acts
inter
vivos
his
share in coowned
property
without the
consent of
the
other
party
until
cohabitation
is
terminated.
CIVIL LAW
PERSONS AND FAMILY RELATIONS
If one party is validly
married to another,
his/her share in the
co-owned properties
will accrue to the
ACP/CPG of his/her
existing
valid
marriage.
If the party who acted
in bad faith is not
validly married to
another, his/her share
shall be forfeited in the
same manner as that
provided in Art 147.
The same rules on
forfeiture shall apply if
both parties are in bad
faith.
In
the
absence of
such
descendants
, such share
belongs to
the innocent
party
G. THE FAMILY
1. Concept of family
Art. 149, FC. The family being the
foundation of the nation is a basic social
institution which public policy cherishes and
protects. Consequently, family relations are
governed by law and no custom practice or
agreement destructive of the family shall be
recognized or given effect.
Art. 150, FC. Family relations include those:
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PERSONS AND FAMILY RELATIONS
a. Between husband and wife
b. Between parents and children
c.
Among
other
ascendants
and
descendants
d. Among brothers and sisters, full or half
blood
The family is an institution that is governed by
law. The internal aspect of the family is sacred
and inaccessible to law because law must
respect the freedom of action of man.
f.
CIVIL LAW
Future legitime.
Note: In case of doubt, all presumptions favor
the solidarity of the family. [Art. 220, CC]
Art. 151, FC only applies when the case is
exclusively
among
family
members.
Whenever a stranger is included as a party to
the case, Art. 151 does not apply. [Hontiveros
v. RTC, G.R. No. 125465 (1999)]
Suits between brothers-in-law can prosper
even without a verified complaint or petition.
[Guerrero v. RTC, G.R. No 109068 (1994)]
2. Effects on legal disputes
Art. 151, FC. No suit between members of
the same family shall prosper unless it
should appear from the verified complaint or
petition that earnest efforts toward a
compromise have been made but that the
same have failed. If it is shown that no such
efforts were in fact made, the case must be
dismissed.
General Rule: No suit between members of
the same family shall prosper. [Art. 151, FC]
Exception: Suits between members of the
same family shall prosper only if it shall appear
in a verified complaint or petition that:
a. Earnest efforts towards a compromise
have been made;
b. Such efforts have failed; and
c. Such earnest efforts and the fact of
failure must be alleged.
The case will be dismissed if it is shown that no
such efforts were made. [Art. 151, FC]
Exception to the Exception
A verified complaint or petition is not needed
for matters not subject to compromise.
Under Art. 2035, CC, the following cannot be
subject of compromise:
a. Civil status of persons,
b. Validity of marriage or a legal separation,
c. Any ground for legal separation,
d. Future support (as it is presumed to be
needed for the survival of the one receiving
support),
e. Jurisdiction of courts,
The enumeration of brothers and sisters as
members of the same family does not
comprehend sisters-in-law and brothers-inlaw. [Gayon v. Gayon, G.R. No. L-28394
(1970)].
3. Family home
What Constitutes the Family Home
The family home is the dwelling house where
family resides and the land on which it is
sustained. [Art. 152]
Limitations on the Family Home
The family home must be part of the properties
of the absolute community or the conjugal
partnership, or of the exclusive properties of
either spouse with the other’s consent. It may
also be constituted by an unmarried head of a
family in his or her own property. [Art. 156, FC]
The actual value of the family home 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. [Art. 157, FC]
A person may constitute, or be the beneficiary
of, only one home. [Art. 161, FC]
Who May Constitute the Family Home
The family home may be constituted
a. Jointly by the husband and wife; or
b. An unmarried head of the family [Art. 152,
FC]
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Note: A person may constitute and be the
beneficiary of only one family home [Art. 161,
FC]
Beneficiaries of the Family Home
a. The husband and wife, or an unmarried
person who is the head of a family; and
b. Their parents, ascendants, descendants,
brothers, and sisters whether relationship
be legitimate or illegitimate, who are living
in the family home and who depend on the
head of the family for support. [Art. 154,
FC]
Requisites to be a Beneficiary of the Family
Home:
a. The
relationship
is
within
those
enumerated in Art. 150, FC.
b. They live in the family home
c. They are dependent for legal support on
the head of the family
Occupancy of a family home must be “actual”
in order for one to be a beneficiary. Actual
occupancy, need not be by the owner of the
house specifically. Rather, the property may be
occupied by the “beneficiaries” enumerated in
Art. 154, FC, which may include the in-laws
where the family home is constituted jointly by
the husband and wife. But the law definitely
excludes maids and overseers. They are not
the beneficiaries contemplated by the Code.
[Patricio v. Dario, G.R. No. 170829 (2006)]
The term "descendants" contemplates all
descendants of the person or persons who
constituted the family home without distinction;
hence, it must necessarily include the
grandchildren and great grandchildren of the
spouses who constitute a family home.
However descendants cannot be considered
beneficiaries if they are supported by their own
parents and not by the ascendants who
constituted the family home. [Patricio v. Dario,
G.R. No. 170829 (2006)]
When Deemed Instituted
The family home is deemed constituted on a
house and lot from the time it is occupied as a
family residence. [Art. 153, FC]
CIVIL LAW
Exemption from Forced Sale, Execution,
Attachment
General Rule: The family home is exempt from
the following from the time of its constitution
and so long as any of its beneficiaries actually
resides therein:
a. Execution;
b. Forced sale;
c. Attachment [Art. 153].
Exceptions in the exemption of the family
home from execution
a. Nonpayment of taxes.
b. Debts incurred prior to the constitution of
the family home.
c. Debts secured by mortgages on the
premises before or after such constitution.
d. Debts due to laborers, mechanics,
architects, builders, materialmen and
others who have rendered service or
furnished material for the construction of
the building. [Art. 155, FC]
Re: Claims Not Among Those in Art. 155
When a creditor whose claim is not among
those mentioned in Art. 155, obtains a
judgment in his favor, and he has reasonable
grounds to believe that the family home is
actually worth more than the maximum amount
fixed in Art. 157, he may apply to the court
which rendered the judgment for an order
directing the sale of the property under
execution. [Art. 160, par. 1, FC]
To warrant the execution of sale of the family
home under Art 160, the following facts need to
be established:
a. there was an increase in actual value,
b. the increase resulted from voluntary
improvements,
c. the increase in actual value exceeded the
maximum limit allowed by Art 157
[Eulogio vs. Bell, G.R. No. 186322 (2015)]
The actual value of the family home shall not
exceed at the time of its constitution the
amount of three hundred thousand pesos in
urban areas and two hundred thousand
pesos in rural areas or such amounts as may
hereafter be fixed by law.
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In any event, if the value of the currency
changes after the adoption of this Code, the
value most favorable for the constitution of
a family home shall be the basis of
evaluation.
Urban areas include chartered cities and
municipalities. All others are deemed to be
rural areas. [Art. 157, FC]
Procedure to avail of right under Art. 160
a. The creditor must file a motion in the court
proceeding where he obtained a favorable
decision for a writ of execution against the
family home.
b. There will be a hearing on the motion
where the creditor must prove that the
actual value of the family home exceeds
the maximum amount fixed by the FC
either at the time of its constitution or as a
result
of
improvements
introduced
thereafter.
c. If the creditor proves that the actual value
exceeds the maximum amount the court
will order its sale in execution.
d. If the family home is sold for more than the
value allowed, the proceeds shall be
applied as follows:
1. First, the obligation enumerated in
Article 157 must be paid
2. Then the judgment in favor of the
creditor will be paid, plus all the
costs of execution
3. The excess, if any, shall be
delivered to the judgment debtor
General Rule
The proof that the house is the family home
must be alleged against creditors; Applied the
rule in Art. 160, FC. [Versola v. Mandolaria,
G.R. No. 164740 (2006)]
Note: The provisions of this Chapter shall also
govern existing family residences insofar as
said provisions are applicable. [Art. 162, FC]
When the Family Home may be Sold
The family home may be sold alienated,
donated, assigned, or encumbered by the
owner or owners thereof with the written
consent of the person constituting the
CIVIL LAW
same the latter’s spouse and a majority of
the beneficiaries of legal age. In case of
conflict, the court shall decide. [Art. 158, FC]
Requirements for the sale, alienation,
donation, assignment, or encumbrance of
the family home
a. The written consent of the following:
1. the person constituting it;
2. the spouse of the person
constituting it; and
3. the majority of the beneficiaries
who are of legal age [Art. 158, FC].
When Terminated
The family home shall continue despite the
death of one or both of the spouses or of the
unmarried head of the family:
a. for a period of ten years; or
b. for as long as there is a minor beneficiary.
And the heirs cannot partition the same unless
the court finds compelling reasons therefor.
The rule shall apply regardless of whoever
owns the property or constituted the family
home [Art. 159, FC]
Article 159 imposes the proscription
against the immediate partition of the family
home regardless of its ownership. This
signifies that even if the family home has
passed by succession to the co-ownership of
the heirs, or has been willed to any one of
them, this fact alone cannot transform the
family home into an ordinary property, much
less dispel the protection cast upon it by the
law. The rights of the individual co-owner or
owner of the family home cannot subjugate the
rights granted under Article 159 to the
beneficiaries of the family home. [Arriola v.
Arriola, G.R. No. 177703 (2008)]
H. PATERNITY
FILIATION
AND
The filiation of children may be by nature or by
adoption. Natural filiation may be legitimate
or illegitimate. [Art. 163, FC]
See table below.
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Status
PERSONS AND FAMILY RELATIONS
CIVIL LAW
Children Who Have this
Status
Rights
Effects on
Succession
Legitimate
a. Conceived OR born during
the valid marriage of the
parents [Art. 164, FC]
b. Conceived through artificial
insemination [Art. 164, FC]
c. Children of a subsequent
marriage (after declaration of
presumptive
death)
conceived prior to its
termination [Art. 43, FC]
d. Conceived or born before the
final judgement of annulment
under Art. 45 or absolute
nullity under Art. 36 [Art. 54,
FC]
e. Conceived or born of the
subsequent marriage under
Art. 53 [Art. 54, FC]
f. Legitimated children* [Art.
177, FC]
g. Adopted Children** [RA
8552]
a. Bear the surnames
of the father and
the mother
b. Receive support
from
parents,
ascendants, and
brothers/sisters in
proper cases
c. Entitled
to
legitimate
and
other successional
rights [Art. 174,
FC]
d. Claim legitimacy
[Art. 173, FC]
Legitimate children are
entitled to 1/2 of the
estate of the parent
divided
amongst
themselves [Art. 888,
CC]
Illegitimate
Conceived AND born outside a a. Bear the surname
valid marriage [Art. 165, FC]
of the mother
b. Bear the surname
of the father if
filiation has been
expressly
recognized by the
father
through:
record of birth,
public document,
or
private
handwritten
instrument
c. Receive support
d. Entitled
to
successional
rights [Art 176, FC]
e. Establish
illegitimate filiation
[Art 175, FC]
Each illegitimate child
is entitled to an amount
1/2 the share of a
legitimate child [Art.
176, FC]
Legitimated* Conceived AND born outside a Same as Legitimate Same as Legitimate
valid marriage provided that:
Child [Art. 179, FC]
Child
a. At the time of conception: the
parents
were
NOT
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disqualified to marry each
other (unless the impediment
was minority of either or both
of them) [Art. 177, FC] AND
b. The parents subsequently
enter into a valid marriage
[Art. 178, FC]
Adopted**
Those
adopted
through From the Domestic From
Domestic
Domestic
[RA
8552]
or Adoption Act:
Adoption Act:
Intercountry Adoption [RA 8043] a. Same as Legitimate a. Same
as
Child [Sec. 17, RA
Legitimate Child
8552]
[Sec. 18, RA 8552]
b. Right to rescind
BUT the adopted
adoption
under
child cannot inherit
specific cases [Sec.
by representation
19, RA 8552]
because
the
relationship is only
between adopter
and
adoptee
[Sayson v. CA,
G.R. No. 89224-25
(1992)]
b. May also inherit
from
biological
parents if they left
a will [Sec. 18, RA
8552]
The time of birth is the criterion of
legitimacy. [Tolentino]
1. Legitimate children
Art. 164, FC. Children conceived or born
during the marriage of the parents are
legitimate.
Children conceived as a result of artificial
insemination of the wife with the sperm of the
husband or that of a donor or both are
likewise legitimate children of the husband
and his wife, provided, that both of them
authorized or ratified such insemination in a
written instrument executed and signed by
them before the birth of the child. The
instrument shall be recorded in the civil
registry together with the birth certificate of
the child.
WHO ARE LEGITIMATE CHILDREN?
1. Children conceived OR born during the
valid marriage of the parents [Art. 164,
FC]
2. Children conceived through artificial
insemination [Art. 164, FC]
3. Children of a subsequent marriage
conceived prior to its termination [Art.
43, FC]
A legitimate child is one that is born in lawful
wedlock or within a competent time afterwards.
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This refers to those subsequent
marriages which were terminated after
the reappearance of the spouse
presumed dead.
4. Children conceived or born before the
judgement of annulment under Art. 45
or absolute nullity under Art. 36 has
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
become final and executory [Art. 54,
FC]
5. Children conceived or born of the
subsequent marriage under Art. 53
[Art. 54, FC]
6. Legitimated children [Art. 177, FC]
7. Adopted Children [RA 8552]
NATURAL/BIOLOGICAL
A child conceived or born during a valid
marriage is presumed to belong to that
marriage, regardless of the existence of
extramarital relationships. [Liyao v. Liyao, G.R.
No. 138969 (2002)]
ARTIFICIAL INSEMINATION [Art. 164, FC]
Artificial insemination is the impregnation of a
female with the semen from male without
sexual intercourse.
The child conceived through artificial
insemination with the consent of both husband
and wife is legitimate.
The FC does not require, as a condition for
the legitimacy of the child, the impotence of
the husband.
Even without the initial consent, the child can
still be legitimated so long as the husband
subsequently gives his consent before the child
is born through AI.
Requisites to be considered legitimate:
a. Artificial insemination made on wife
b. Sperm comes from any of the following:
1. Husband
2. Third Person Donor
3. Husband and third
person donor
c. In case of donor sperm, husband and
wife must authorize/ratify insemination
in a written instrument.
1. Executed & signed by husband and
wife before the birth of the child.
2. Recorded in the civil registry together
with the birth certificate of the child.
[Art. 164, FC]
CIVIL LAW
Dual consent is required whether the semen
used comes from the husband or a third person
donor. [Tolentino]
Common children born before the annulment
are legitimate, and therefore entitled to support
from each of the spouses. [De Castro v.
Assidao-De Castro, G.R. No. 160172 (2008)]
2. Proof of filiation
Proof of filiation is necessary:
1. Where the child is born after 300 days
following the termination of the marriage →
child has no status, and whoever alleges
legitimacy must prove it.
2. If the legitimacy of a child conceived or
born in wedlock is impugned and the
plaintiff has presented evidence to prove
any of the grounds provided in Article 166
→ proof of filiation may be used as a
defense. [Tolentino]
Legitimate children may establish their
filiation by any of the following [Art. 172,
FC]:
a. Primary
Evidence
(for
voluntary
recognition)
1. Their record of birth appearing in
the civil registry or a final
judgement.
2. An admission of his filiation by his
parent in a public document or a
private handwritten instrument and
signed by said parent.
b. Secondary Evidence (for involuntary
recognition)
1. Proof of open and continuous
possession of status as legitimate
child.
2. Any other means stated by the
rules of court or special laws.
Note: Only in the absence of primary evidence
can secondary evidence be admitted
Action for Claiming Filiation (Legitimate
Children) [Art. 173, FC]:
a. The child can bring the action during his or
her lifetime.
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b. If the child dies during minority or in a state
of insanity, such action shall be transmitted
to his heirs, who shall have a period of five
years within which to institute the action.
c. The action commenced by the child shall
survive notwithstanding the death of either
or both of the parties.
Rights of Legitimate Children [Art. 174, FC]
3S → Support, Surname, Succession
a. To bear the Surnames of the father and the
mother, in conformity with the provisions of
the CC on surnames.
b. To receive Support from their parents, their
ascendants, and in proper cases, their
brothers and sisters, in conformity with the
provisions of the Code on Support.
c. To be entitled to the legitimate and other
Successional rights granted to them by the
CC.
CIVIL LAW
ACTION FOR CLAIMING ILLEGITIMATE
FILIATION
Illegitimate children may establish their
illegitimate filiation in the same way and on the
same evidence as legitimate children. [Art.
175, FC]
a. For actions based on primary evidence,
the same periods stated in Art. 173 of FC
apply - lifetime of the child, will not be
extinguished by death of either parties
b. For actions based on secondary
evidence, the action may only be brought
during the lifetime of the alleged parent.
The same kind of evidence provided in Art. 172
for establishing legitimate filiation may be used
to prove the filiation of illegitimate children, and
the action for this purpose must be brought
within the same period and by the same parties
as provided in Article 173. [Art. 175, FC]
Future support cannot be the subject of a
compromise, pursuant to Article 2035 of CC.
The reason behind this prohibition is because
the right to support is founded upon the need
of the recipient to maintain his existence, and
thus the renunciation of such will be
tantamount to allowing the suicide of the
person or his conversion to a public burden,
which is contrary to public policy. [De Asis v.
CA, G.R. No. 127578 (1999)]
However, if the evidence to prove the filiation is
secondary, the action must be brought within
the lifetime of the alleged parent. [Art. 175, FC]
3. Illegitimate children
Signature of the father on the birth certificate is
considered as an acknowledgement of
paternity and mere presentation of a duly
authenticated copy of such certificate will
successfully establish filiation. [Eceta v. Eceta,
G.R. 157037 (2004)]
Art. 165, FC. Children conceived and born
outside a valid marriage are illegitimate,
unless otherwise provided in this Code.
WHO ARE ILLEGITIMATE CHILDREN?
General rule: Those conceived and born
outside of a valid marriage. [Art. 165, FC]
Exceptions
a. Children of marriages void under Art. 36
(psychological incapacity); and
b. Under Art. 53 (subsequent marriages
which did not comply with Art. 52) [SempioDy]
Primary evidence
Baptismal certificates are given probative value
only for births before 1930. Birth certificates
must be signed by the parents and sworn for it
to be admitted as evidence. [Mendoza v. Mella,
G.R. No. L-18752 (1966)]
Unsigned birth certificates are not evidence of
recognized filiation. [Baluyut v. Baluyut, G.R.
No. L-33659 (1990)]
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 acknowledgement of the
child, and no further court action is required.
[De Jesus v. Estate of Decedent Juan Gamboa
Dizon, G.R. No. 142877 (2001)]
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CIVIL LAW
Secondary evidence
Rule 130, Sec. 40 is limited to objects
commonly known as family possessions
reflective of a family's reputation or tradition
regarding pedigree like inscriptions on
tombstones, monuments, or coffin plates.
[Jison v. CA, G.R. No. 124853 (1998)]
parents. [De Jesus v. Syquia, G.R. No. L39110 (1933)]
"Su padre [Your father]" ending in a letter is
only proof of paternal solicitude and not of
actual paternity. Signature on a report card
under the entry of "Parent/Guardian" is likewise
inconclusive of open admission. [Heirs of
Rodolfo Bañas v. Heirs of Bibiano Bañas, G.R.
No. L-25715 (1985)]
DNA evidence can still be used even after the
death of the parent. [Estate of Rogelio Ong v.
Diaz, G.R. No. 171713 (2007)]
Mere possession of status as an illegitimate
child does not make an illegitimate child
recognized but is only a ground for bringing an
action to compel judicial recognition by the
assumed parent. [Gono-Javier v. CA, G.R. No.
111994 (1994)]
There are four significant procedural aspects of
a traditional paternity action that parties have
to face: a prima facie case, affirmative
defenses, presumption of legitimacy, and
physical resemblance between the putative
father and the child. 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. [Gotardo
v. Buling, G.R. No. 165166 (2012)]
To prove open and continuous possession of
the status of an illegitimate child, there must be
evidence of the 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.
[Perla v. Baring, G.R. No. 172471 (2012)]
Meanwhile, the lack of participation of the
supposed father in the preparation of a
baptismal certificate renders this document
incompetent to prove paternity. 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. [Perla v. Baring, supra]
By "open and continuous possession of the
status of a legitimate child" is meant the
enjoyment by the child of the position and
privileges usually attached to the status of a
legitimate child, like bearing the paternal
surname, treatment by the parents and family
of the child as legitimate, constant attendance
to the child's support and education, and giving
the child the reputation of being a child of his
Other evidence
DNA evidence can be used as proof of
paternity. [Agustin v. CA, G.R. No. 162571
(2005)]
Marriage certificates cannot be used as proof
of filiation. [Lim v. CA, G.R. No. L-39381
(1975)]
RIGHTS OF ILLEGITIMATE CHILDREN
Art. 176, FC. Illegitimate children shall use
the surname and shall be under the parental
authority of their mother, and shall be
entitled to support in conformity with this
Code. However, illegitimate children may
use the surname of their father if their filiation
has been expressly recognized by the father
through the record of birth appearing in the
civil register, or when an admission in a
public document or private handwritten
instrument is made by the father. Provided,
the father has the right to institute an action
before the regular courts to prove nonfiliation during his lifetime. The legitime of
each illegitimate child shall consist of one-
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half of the legitime of a legitimate child (as
amended by RA No. 9255 in 2004).
Illegitimate children shall use the surname and
shall be under the parental authority of their
mother, and shall be entitled to support in
conformity with this Code. The legitime of each
illegitimate child shall consist of one-half of the
legitime of a legitimate child. [Art. 176, FC]
Rights of Illegitimate Children [Art. 176, FC]
a. Use the surname and be under the parental
authority of the mother
b. However, may use the surname of father if:
1. Their filiation has been expressly
recognized by the father through the
record of birth appearing in the civil
register; or
2. There is an admission in a public
document or private handwritten
instrument made by the father.
3. Provided, the father has the right to
institute an action before the regular
courts to prove non-filiation during his
lifetime [RA 9255]
4. The use of the word “may” in Art. 176
readily shows that an acknowledged
illegitimate child is under no
compulsion to use the surname of his
illegitimate father. The word “may” is
permissive and operates to confer
discretion
upon
the illegitimate
children. [Grande v. Antonio, G.R. No.
206248 (2014)]
c. Shall be entitled to support in conformity
with the FC.
d. Legitime shall consist of one-half of the
legitime of a legitimate child.
The writ of habeas corpus does not distinguish
between a mother of a legitimate and a mother
of an illegitimate child who is deprived of
rightful custody of her child. [David v. CA, G.R.
No. 111180 (1995)]
The order of payment of allowance need not be
conditioned on the grant of custody of the
child., since under Art. 204 of FC, a parent may
fulfill his obligation to support by paying the
allowance fixed by the court. [David v. CA,
supra]
CIVIL LAW
Compulsory acknowledgment and support of
the child are proper as there is no legal
impediment in doing so. The crime of rape
carries with it the obligations to acknowledge
the child if the character of its origin does not
prevent it, and to support the same. [People v.
Namayan, G.R. No. 106539 (1995)]
Criminal liability for neglect of a child under PD
603 does not depend on whether the other
parent is also guilty of neglect. The
irresponsible parent cannot exculpate himself
from the consequences of his neglect by
invoking the other parent’s faithful compliance
with his or her own parental duties because to
allow such defeats the prescription that in all
questions regarding the care, custody,
education and property of the child, his welfare
shall be the paramount consideration. [De
Guzman v. Perez, G.R. No. 156013 (2006)]
Although the issuance of TPO under RA 9262
may include the grant of legal support for the
wife and the child, this assumes that both are
entitled to a protection order and to legal
support. Illegitimate children are entitled to
support and successional rights, but their
filiation must be duly proved through a judicial
action for compulsory recognition or a direct
action for support where the issue of
compulsory recognition may be integrated and
resolved. [Dolina v. Vallecera, G.R. No.
182367 (2010)]
Summary proceedings under Rule 108 of RC
and Art. 412 of CC may be used only to correct
clerical or innocuous errors, not to alter or
increase substantive rights, such as those
involving the legitimacy or illegitimacy of a
child. Where the effect of a correction in a civil
registry will change the civil status of a child
from legitimate to illegitimate, the same cannot
be granted except only in an adversarial
proceeding. Moreover, a petition for substantial
change in the civil registry should implead not
only the civil registrar, but also all other persons
who have or claim to have any interest that
would be affected thereby. [Republic v.
Labrador, G.R. No. 132980 (1999)]
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The use of the word “may” in Art. 176 of FC, as
amended by RA 9255, shows that an
acknowledged illegitimate child is not
compelled to use the surname of his
illegitimate father. Illegitimate children shall use
the surname of their mother, and the discretion
on the part of the illegitimate child to use the
surname of his father is conditional upon proof
of compliance with the IRR of RA 9255,
including the execution of an Affidavit to Use
the Surname of the Father. [Barcelote v.
Republic and Tinitigan, G.R. No. 22095 (2017)]
4. Impugned Legitimacy/Action
to Impugn Legitimacy
Legitimacy of a child may be impugned only
on the following grounds: [Art. 166, FC]
a. 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 child's birth due
to:
1. Physical incapacity of the husband
to have sexual intercourse with his
wife
2. Husband and wife were living
separately as to make sexual
intercourse impossible
3. Serious illness of the husband
absolutely
preventing
sexual
intercourse
b. Other biological or scientific reasons,
except Artificial Insemination.
c. And in case of Artificial Insemination,
the written consent of either parent was
vitiated through fraud, violence, mistake,
intimidation, or undue influence.
Physical impossibility of access
To overthrow the presumption of legitimacy, it
must be shown beyond all reasonable doubt
that there was no access as could have
enabled the husband to be the father of the
child. Moral impossibility of access, such as
when the wife is in open adultery, or there is
bitter hatred between the spouses, cannot
defeat the presumption of legitimacy.
[Tolentino]
CIVIL LAW
Impotence of husband
Impotence is the inability of the male organ of
copulation to perform its proper function. It
does not include sterility, which refers to the
inability to procreate. [Tolentino]
Spouses living separately
The separation between the spouses must be
such as to make sexual access impossible.
This may take place when they reside in
different countries or provinces, and they have
never been together during the period of
conception. [Tolentino]
Serious illness of husband
The illness must be of such a nature as to
exclude the possibility of his having sexual
intercourse with his wife. [Tolentino]
Mere proximate separation between the
spouses is not sufficient physical separation to
constitute as ground for impugning legitimacy.
[Macadangdang v. CA, G.R. No. L-49542
(1980)]
Serious illness of the husband which absolutely
prevented him from having sexual intercourse
with his wife, like if the husband was already in
comatose or in a vegetative state, or sick with
syphilis in the tertiary stage so that copulation
was not possible. But tuberculosis, even in its
most crucial stage, does not preclude
copulation between the sick husband and his
wife. [Andal v. Macaraig, G.R. No. 2474
(1951)]
Blood-type matching is an acceptable means
of impugning legitimacy, covered by Art.
166(2), under "biological or other scientific
reasons." But this is only conclusive of the fact
of non-paternity. [Jao v. CA, G.R. No. L-49162
(1987)]
Art. 167, FC. The child shall be considered
legitimate although the mother may have
declared against its legitimacy or may have
been sentenced as an adulteress.
Legitimacy with Regard to the Mother:
a. Child considered legitimate although [Art.
167, FC]:
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1. Mother may have declared against
its legitimacy
2. Mother may have been sentenced
as an adulteress (also applies to
wife who was raped)
b. If the marriage is terminated and the
mother contracted another marriage within
300 days after the termination of the former
marriage, the following rules shall govern in
the absence of proof to the contrary [Art
168, FC]:
1. If born before 180 days after the
solemnization of the subsequent
marriage – child is considered
conceived during the former
marriage, provided it be born within
300 days after termination of the
former marriage
2. If born after 180 days following the
celebration of the subsequent
marriage – child is considered
conceived during such marriage,
even if it be born within 300 days
after the termination of the former
marriage
CIVIL LAW
Day of Birth of the Child Status of
Relative to the 2 Marriages
the Child
[Art 168,
FC]
1st marriage: within 300 days Legitimate
of termination
to
1st
AND
Marriage
2nd marriage: before 180
days after solemnization
1st marriage: within 300 days Legitimate
of termination
to
2nd
AND
Marriage
2nd marriage: after 180 days
following solemnization
Art. 169, FC. The legitimacy or illegitimacy
of a child born after three hundred days
following the termination of the marriage
shall be proved by whoever alleges such
legitimacy or illegitimacy.
The legitimacy or illegitimacy of a child born
after 300 days following the termination of the
marriage – burden of proof upon whoever
alleges the status. [Art. 169, FC]
If nobody asserts the legitimacy or illegitimacy
of the child described in Art. 169, the child
should be considered illegitimate unless
legitimacy is proved. Legitimacy cannot be
presumed here since the birth was beyond the
300-day period of gestation. While it goes
against the policy of law to lean in favor of
legitimacy, this interpretation is better than the
anomalous situation created by Art. 169, which
is a child without a status. [Tolentino]
ACTION FOR IMPUGNING LEGITIMACY
An action to impugn legitimacy may be brought
within 1, 2, or 3 years from the knowledge of
the birth or of registration of birth. [Arts. 170
and 171, FC]
a. Within 1 year - If the husband or any heirs
reside in the same city or municipality
where the child was born or his birth was
recorded.
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b. Within 2 years - If the husband or all heirs
live in the Philippines but do not reside in
the same city or municipality where the
child's birth took place or was recorded.
c. Within 3 years - if the husband or all heirs
live outside the Philippines when the child's
birth took place or was recorded in the
Philippines.
If the birth of the child has been concealed or
was unknown to the husband, the above
periods shall be counted:
a. From the discovery or knowledge of the
birth of the child, or
b. From the discovery or knowledge of its
registration, whichever is earlier.
General rule: Only the husband can impugn
the legitimacy of a child. If he does not bring an
action within the prescribed periods, he cannot
file such action anymore thereafter, and this is
also true with his heirs.
Exception: That the heirs of the husband
may file the action or continue the same within
the periods prescribed in Art. 170 [Art. 171,
FC]:
a. If the husband died before the expiration of
the period fixed for bringing his action
b. If he should die after the filing of the
complaint
without
having
desisted
therefrom
c. If the child was born after the death of the
husband.
Example: If the husband was living in Dubai
and the child was born in Quezon City, and he
had older children (heirs) also living in Quezon
City, the period for impugning legitimacy would
be within 1 year from knowledge of birth or
registration. Although the husband resided
abroad, he still had heirs residing in the same
city.
Legitimacy can only be attacked directly.
[Sayson v. CA, G.R. No. 89224-25 (1992)]
CIVIL LAW
5. Legitimated children
Art. 177, FC. Children conceived and born
outside of wedlock of parents who, at the time
of conception of the former, were not
disqualified by any impediment to marry each
other, or were so disqualified only because
either or both of them were below eighteen (18)
years of age, may be legitimated (as amended
by RA No. 9858, 2009).
General rule: "Legitimated" children are
illegitimate children who because of the
subsequent marriage of their parents are, by
legal fiction, considered legitimate.
Requisites for Legitimation:
a. The child must have been conceived and
born outside of wedlock; and
b. The parents, at the time of the child's
conception, were not disqualified by any
impediment to marry each other, or
disqualified only because either or both of
them were below 18 years old. [Art. 177, as
amended by RA 9858, FC]
Procedure and Effects:
a. Legitimation shall take place by a
subsequent valid marriage between the
parents. The annulment of a voidable
marriage shall not affect the legitimation.
[Art. 178, FC]
b. Effects of legitimation shall retroact to the
time of the child’s birth [Art. 180, FC]
c. Legitimation of children who died before
the celebration of the marriage shall benefit
their descendants [Art. 181, FC]
Grounds for Impugning Legitimation:
a. The subsequent marriage of the child's
parents is void.
b. Those born under these circumstances:
1. There was an impediment to the
marriage at the time of conception AND
2. The subsequent marriage of the
parents is valid
c. The child is not really the child of the
alleged parents. [Sempio-Dy]
Legitimation may be impugned only by those
who are prejudiced in their rights, within five
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years from the time their cause of action
accrues. [Art. 182, FC]
2.
Rights of legitimated children
Legitimated children have the same rights as
those of legitimate children. [Art. 179, FC]
When an illegitimate child is subsequently
legitimated by reason of marriage, he shall be
allowed to use his mother’s surname as his
middle name and his father’s surname as his
surname. Thus, as a legitimated child, Julian
shall use the surnames of both his mother and
father. [In Re: Petition for Change of Name of
Julian Lin Carulasan Wang, G.R. No. 159966
(2005)
I. ADOPTION
Adoption 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. [Lazatin v.
Campos, G. R. No. L-43955-56 (1979)]
Since adoption is wholly and entirely artificial,
to establish the relation the statutory
requirements must be strictly carried out;
otherwise, the adoption is an absolute nullity.
[Republic v. CA and Caranto, G.R. No. 103695
(1996)]
LEGITIMATION
ADOPTION
Legal effect
The law merely
makes
legal
what exists by
nature.
The law creates
by
fiction
a
relation which did
not in fact exist.
Persons
affected
Natural children
Strangers
(generally)
Procedure
Extrajudicial
acts of parents
Always judicial
Who
should
apply
Both parents
Both
parents,
except:
1. One spouse
seeks
to
adopt
the
3.
Effect on
parentchild
relationship
Same
status
and rights with
that
of
a
legitimate child
not
only
in
relation to the
legitimizing
parents but also
to
other
relatives.
legitimate
child of the
other
One spouse
seeks
to
adopt
his
own
illegitimate
child,
provided that
the
other
spouse has
signified
their consent
thereto
Spouses are
legally
separated
from
each
other
Creates
a
relationship only
between the child
and the adopting
parents [Sayson
v. CA, G.R. No.
89224-25 (1992)]
1. RA 8552: Domestic Adoption
Law
a. Who can adopt
1. Filipino Citizens [Sec. 7(a), RA 8552]
a. Of legal age
b. With full civil capacity and legal
rights
c. Of good moral character and has
not been convicted of any crime
involving moral turpitude
d. Emotionally and psychologically
capable of caring for children
e. At least sixteen (16) years older
than adoptee, except when adopter
is biological parent of the adoptee
or is the spouse of the adoptee’s
parent
f. In a position to support and care for
his/her children in keeping with the
means of the family
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g. Has
undergone
pre-adoption
services
2. Aliens [Sec. 7(b), RA 8552]
Same for Filipinos provided further that:
a. His/her country has diplomatic
relations with the Philippines
b. Has been living in the Philippines
for 3 continuous years prior to the
filing of application and maintains
such residence until the decree is
entered
! Note:
absences
not
exceeding 60 days per 1
year
for
professional,
business, or emergency
reasons are allowed
c. Has been certified by his/her
diplomatic or consular office or any
appropriate government agency
that he/she has the legal capacity
to adopt in his/her country
d. His/her government allows the
adoptee to enter his/her country as
his/her adoptee and reside there
permanently as an adopted child
e. Has submitted all the necessary
clearances and such certifications
as may be required
Requirements of residency and certification
of legal capacity may be waived under the
following circumstances:
a. Adopter is a former Filipino Citizen who
seeks to adopt a relative within the 4th
degree of consanguinity or affinity.
b. Adopter seeks to adopt the legitimate child
of his/her Filipino spouse
c. Adopter is married to a Filipino Citizen and
seeks to adopt jointly with his/her spouse a
relative within the 4th degree of
consanguinity or affinity of the Filipino
spouse
● Note: Requirements may not be
waived for an alien married to a
former Filipino
3. Guardians [Sec. 7(c), RA 8552]
With respect to their wards, after the
termination of the guardianship and clearance
of his/her accountabilities.
General Rule: Husband and wife must jointly
adopt
Exception [Sec. 7]:
CIVIL LAW
a. One spouse seeks to adopt the legitimate
child of the other
b. One spouse seeks to adopt his own
illegitimate child, provided that the other
spouse has signified their consent thereto
c. Spouses are legally separated from each
other
b. Who can be adopted
Those who can be adopted [Sec. 8, RA
8552]:
1. Minor (below 18) who has been
administratively or judicially declared
available for adoption
2. Legitimate son/daughter of one spouse by
another
3. Illegitimate son/daughter by a qualified
adopter to improve the child’s status to that
of legitimacy
4. 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 child since minority
5. A child whose previous adoption has been
rescinded
6. A child whose biological or adoptive
parent(s) has died, provided that no
proceedings shall be initiated within 6
months from the time of death of said
parent(s)
Exceptions to the Requirement of a
Certification that the Child is Available for
Adoption [Sec. 4, RA 8552]:
1. Adoption of an illegitimate child by his/her
biological parent;
2. Adoption of a child by his/her stepparent;
3. Adoption by a relative within the 4th civil
degree by consanguinity or affinity
Persons whose written consent is
necessary for adoption [Sec. 9, RA 8552]
1. The prospective adoptee if 10 years or
older
2. The prospective adoptee’s biological
parents, legal guardian or the government
instrumentality or institution that has
custody of the child
3. The prospective adopters’ legitimate and
adopted children who are 10 years or older
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4. The prospective adopters’ illegitimate
children, if any, who are 10 years or older
and living with them
5. The spouse, if any, of the person adopting
or to be adopted.
Note: A decree of adoption shall be effective as
of the date the original petition was filed. It also
applies in case the petitioner dies before the
issuance of the decree of adoption to protect
the interest of the adoptee. [Sec. 13, RA 8552]
c. Foundlings
Foundling shall refer to a deserted or
abandoned infant or a child found, with
parents, guardian, or relatives being unknown,
or a child committed in an orphanage or
charitable or similar institution with unknown
facts of birth and parentage and registered in
the Civil Register as a foundling. [Sec. 3(h),
Rules And Regulations To Implement The
Domestic Adoption Act Of 1998]
When is a child considered a foundling?
It shall be the duty of the DSWD or the childplacing or child-caring agency which has
custody of the child to exert all efforts to locate
his/her unknown biological parent(s). If such
efforts fail, the child shall be registered as a
foundling and subsequently be the subject of
legal proceedings where he/she shall be
declared abandoned. [Sec. 5, RA 8552]
If efforts to locate the child's parent/s fail, the
child shall be registered as a foundling and
within three (3) months from the time he/she is
found, be the subject of legal proceedings
where he/she shall be declared abandoned.
[Sec. 5, Rules And Regulations To Implement
The Domestic Adoption Act Of 1998]
Domestic laws on adoption also support the
principle that foundlings are Filipinos. These
laws do not provide that adoption confers
citizenship upon the adoptee. Rather, the
adoptee must be a Filipino in the first place to
be adopted. The Inter-Country Adoption Act
(R.A. No. 8043), the Domestic Adoption Act
(R.A. No. 8552) and the Court's A.M. No. 026-02-SC or the "Rule on Adoption," all
expressly refer to "Filipino children" and
include foundlings as among Filipino children
CIVIL LAW
who may be adopted. [Poe-Llamanzares v.
COMELEC, G.R. No. 221697 (2016)]
d. Pre-Adoption Procedures
a. Voluntary commitment by biological
parent(s) wanting to put their child up
for adoption
1. Counseling on their options other than
adoption
2. Explaining to them the implications of
losing their parental authority over the
child
3. Continuing services shall be provided
after relinquishment to cope with
feelings of loss, etc. and other services
for the reintegration to the community
of the biological parent(s)
4. Biological parent(s) who decided to put
the child for adoption shall sign the
Deed of Voluntary Commitment (DVC),
which shall be rescissible within 3
months from signing of the same
b. Involuntary
commitment
of
abandoned/neglected child
1. Filing of a petition at Regional DSWD
in the form of an affidavit and with the
required supporting documents
2. Posting
of
the
petition,
then
recommendation by the Regional
Director of the DSWD (5 days each)
3. Issuance of certification by DSWD
Secretary declaring the child legally
available for adoption within 3 months
following involuntary commitment
c. Required supporting documents for a
petition
for
the
declaration
of
involuntary commitment:
1. Social Case Study Report by DSWD /
LGU / institution charged with child’s
custody
2. Proof of efforts to locate the child’s
parents/known relatives
a. Written certification that a
local/national radio/TV case
was aired on 3 different
occasions
b. Publication in 1 newspaper of
general circulation
c. Police
report/barangay
certification of due diligence
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d. Returned registered mail to last
known address of parents
3. Birth certificate, if available
4. Recent photo and photo upon
abandonment of child
e. Adoption Procedures
Note: DSWD must certify the child as legally
available for adoption as a prerequisite for
adoption proceedings. [RA 9253]
After the decree of adoption, the court may also
issue a travel authority, if needed.
The case study report by the DSWD/LGU is
indispensable. Without it, the adoption decree
shall be void. [DSWD v. Judge Belen, RTJ-961362 (1997)]
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CIVIL LAW
f. Who may not adopt
3. Succession [Sec. 18, RA 8552]
Those who may not adopt [Art. 184, FC,
amended by RA 8552]:
1. The guardian, with respect to the ward,
prior to the approval of the final accounts
rendered upon the termination of the
guardianship
2. Any person convicted of a crime of moral
turpitude
In legal and intestate succession, the adopter
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.
g. Rights of an Adopted Child
1. Parental Authority [Sec. 16, RA 8552]
Except in cases where the biological parent is
the adopter’s spouse, all legal ties between
biological parent and adoptee shall be severed,
and the same shall then be vested on the
adopters.
The general effect of the adoption decree is to
transfer to the adopting parents the parental
authority of the parents by nature, as if the child
had been born in lawful wedlock. [Tolentino]
The relationship established by adoption is
limited to the adopting parent and does not
extend to his other relatives, except as
expressly provided by law. [Tolentino]
The law does not prohibit the biological
parent(s) from entering an agreement with the
adopters on post adoption visitation. Neither do
our laws compel the adopters to grant visitation
rights if such is not beneficial to the child.
[Aguiling-Pangalangan]
2. Legitimacy [Sec. 17, RA 8552]
The adoptee shall be considered the legitimate
son/daughter of the adopters for all intents and
purposes, and as such is entitled to all rights
and obligations provided by law to legitimate
children born to them without discrimination of
any kind. The adoptee is entitled to love,
guidance, and support in keeping with the
means of the family.
Legal or intestate succession to the estate of
the adopted shall be governed by the following
rules:
a. Legitimate and illegitimate children,
descendants and the surviving spouse of
the adoptee shall inherit in accordance with
the ordinary rules
of legal/intestate
succession.
b. When the surviving spouse OR illegitimate
children AND adopters concur, they shall
inherit on a 50-50 basis.
c. When the surviving spouse AND
illegitimate children AND adopters concur,
they shall inherit on a 1/3-/1/3-1/3 basis.
d. When only adopters survive, they shall
inherit 100% of the estate.
e. When only collateral blood relatives
survive, ordinary rules of legal or intestate
succession shall apply. [Art. 190 (as
amended), FC]
Between adoptee and adopter
The adopter and adoptee have reciprocal
rights of succession without distinction from
legitimate children in legal and intestate
succession. [Sec. 18, RA 8552]
Between adoptee and adopter’s relatives
The relationship created by adoption is
exclusively between the adopter and the
adopted. Hence, the adopted child has no right
to inherit from the relatives of his adopted
parents. [Aguiling-Pangalangan]
While an adopted child has the same rights as
a legitimate child, these rights do not include
the right of representation. The relationship
created by the adoption is between only the
adopting parents and the adopted child and
does not extend to the blood relatives of either
party. [Sayson v. CA, supra]
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Between adoptee and biological parents
One effect of adoption is that the adopted shall
remain an intestate heir of his parents and
other blood relatives. [Art. 189, FC]
Since many biological parents relinquish their
child for adoption by reason of poverty or
emotional unpreparedness, their biological
child should not be prevented from inheriting if
they were able to improve their lot. There is
nothing that precludes the biological parents to
give their biological child his or her rightful
share in their last will and testament. [AguilingPangalangan]
4. Name [Art. 365, CC.]
An adopted child shall bear the surname of
the adopter.
While an effect of adoption is that the adoptee
shall bear the surname of the adopter, the
change of surname of the adopted child is more
an incident rather than the object of adoption
proceedings. The purpose of adoption is to
effect a new status of relationship between the
child and his or her adoptive parents, and the
change of name is more of an incident only
than the object of the proceeding. [Republic v.
CA and Wong, G.R. No. 97906 (1992)]
Sec. 13 of RA 8552 allows the change of first
name to be instituted in the same
proceeding as the adoption: “the decree of
adoption shall state the name by which the
child is to be known.”
The law is silent as to what middle name the
adoptee may use but the SC has held that an
adoptee is entitled to all the rights provided by
law to a legitimate child, including the right to
bear the surname of her father and mother.
[In re: Adoption of Stephanie Nathy Astorga
Garcia, G.R. No. 148311 (2005)]
5. Nationality
Adoption does not confer citizenship of the
adopter to the adopted. Under Sec. 3, Art. IV of
the Constitution, Philippine citizenship may be
lost/acquired [only] in the manner provided by
law. The adoption of an alien is not a means of
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acquiring Philippine citizenship. A Filipino
adopted by an alien does not lose his
Philippine citizenship.
The right to confer citizenship belongs to the
State (political) and cannot be granted by a
citizen through adoption. Adoption creates a
relationship between the adopter and adoptee,
not between the State and the adoptee.
[Tolentino]
h. Rescission of Adoption
Adoptee may file action for rescission, with
the assistance of DSWD if he/she is a minor or
over 18 but incapacitated, based on the
following grounds [Sec. 19, RA 8552]:
1. Repeated
physical
and
verbal
maltreatment by adopters despite having
undergone counseling
2. Attempt on life of adoptee
3. Sexual assault or violence
4. Abandonment or failure to comply with
parental obligations
Adoption is a privilege that is governed by the
state’s determination on what it may deem to
be for the best interest and welfare of the child,
and as a corollary, a right of action given by
statute may be taken away any time before it
has been exercised. [Lahom v. Sibulo, G.R.
No. 143989 (1992)]
Adoption, being in the best interest of the child,
shall not be subject to rescission by the
adopter. However, the adopter may disinherit
the child based on causes enumerated in Art.
919 of CC:
1. Conviction of an attempt on the life of the
adopter
2. Having accused, without grounds, the
adopter of a crime punishable by
imprisonment for more than 6 years
3. Conviction of adultery/concubinage with
the adopter’s spouse
4. Having caused the adopter to make or
change a will by force, intimidation or
undue influence
5. Refusal without just cause to support the
adopter
6. Maltreatment of the adopter by word/deed
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7. Living a dishonorable/disgraceful life
8. Conviction of a crime which carries with it
the penalty of civil interdiction
Effects of Rescission [Sec. 20, RA 8552]:
1. Restoration of parental authority of the
adoptee’s biological parent(s) OR the legal
custody of the Department if the adoptee is
a minor or incapacitated.
2. Extinguishing of the reciprocal rights and
obligations of the adopters and adoptee.
3. Cancellation of the new birth certificate of
the adoptee as ordered by the court and
restoration of the adoptee’s original birth
certificate.
4. Reverting successional rights to its status
prior to adoption but not only as of the date
of judgment of judicial rescission.
5. Vested rights acquired prior to judicial
rescission shall be respected.
Note: Rescission contemplates a situation
where the adoption decree remains valid until
its termination.
i. Rectification of Simulated Birth
Simulation of birth is the tampering of the civil
registry making it appear in the birth records
that a certain child was born to a person who is
not his or her biological mother, causing such
child to lose his or her true identity and status.
[Sec. 3(j), RA 8552]
Any person who shall cause the fictitious
registration of the birth of a child under the
name(s) of a person who is not his or her
biological parents shall be penalized for
simulation of birth with the penalty of prision
mayor in its medium period and a fine not
exceeding
Fifty
thousand
pesos
(P50,000.00). [Sec. 21(b), RA 8552]
Three-in-one Procedure
• Correction of entries in birth certificate
• Deed of Voluntary Commitment
Declaration of abandonment
• Adoption decree
or
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Sec. 8 of the SC Rule on Adoption requires that
the petition that seeks to rectify a simulated
birth allege that:
1. Petitioner is applying for rectification of a
simulated birth;
2. The simulation of birth was made prior to
the date of effectivity of RA 8552 and the
application for rectification of the birth
registration and the petition for adoption
were filed within five years from said date;
3. The petitioner made the simulation of birth
for the best interests of the adoptee; and
4. The adoptee has been consistently
considered and treated by the petitioner as
his own child.
2. RA 8043: Law on
Country Adoption
Inter-
Inter-Country Adoption refers to the sociolegal 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.
When Allowed
No child shall be matched to a foreign adoptive
family unless it can be satisfactorily shown that
the child cannot be adopted locally [Sec. 11,
RA 8043].
Who Can Adopt
Sec. 9, RA 8043. Any alien or Filipino citizen
permanently residing abroad may file an
application for inter-country adoption of a
Filipino child if he/she:
(a) Is at least twenty-seven (27) years of
age and 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;
(b) If married, his/her spouse must
jointly file for the adoption;
(c) Has the capacity to act and assume
all rights and responsibilities of
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(d)
(e)
(f)
(g)
(h)
(i)
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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 eligible to adopt under his/her
national law;
Is in a position to provide the proper
care and support and to give the
necessary
moral values
and
example to all his children, including
the child to be adopted;
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 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.
Who Can be Adopted
1. Only a legally-free child may be the
subject of inter-country adoption [Sec.
8].
! A legally-free child is one who
has been voluntarily or
involuntarily committed to the
DSWD of the Philippines, in
accordance with the Child and
Youth Welfare Code [Sec. 3(f)].
2. A Filipino child [Sec. 3(a)]
3. Below 15 years old [Sec. 3(b)]
In order that such child may be considered for
placement, the following documents must be
submitted to the Board:
1. Child study
2. Birth Certificate / Foundling Certificate
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3. Deed of Voluntary Commitment /
Decree of Abandonment / Death
Certificate of parents
4. Medical Evaluation / History
5. Psychological Evaluation, if necessary
6. Recent photo of the child [Sec. 8]
Inter-Country Adoption Procedure
1. Pre-Adoptive Placement Costs
i.
Sec. 12, RA 8043. The
applicant(s) shall bear the
following costs incidental to
the placement of the child;
(a) The cost of bringing the child from
the Philippines to the residence of
the applicant(s) abroad, including all
travel
expenses
within
the
Philippines and abroad; and
(b) The cost of passport, visa, medical
examination
and
psychological
evaluation required, and other
related expenses.
The Inter-Country Adoption Board shall also
collect fees, charges, and assessments [Sec.
13].
2. Venue for Filing Applications
Applications shall be filed either with:
a. The Philippine Regional Trial Court
having jurisdiction over the child, or
with
b. The Board, through an intermediate
agency (governmental or accredited
agency)
in the country of the
prospective adoptive parents [Sec. 10].
3. Family Selection / Matching Process
The Board shall ensure that inter-country
adoption is done in the best interest of the child
[Sec. 7].
The matching of the child with an applicant
involves three stages: (1) pre-matching, (2)
matching conference, and (3) post-matching
conference [Sec. 37, RA 8043 Amended IRR].
Before the Board approves the matching
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proposal, no matching arrangement shall be
made between the applicant and the child’s
parents/guardians or custodians concerning a
particular child, except in cases of adoption of
a relative or in cases where the child’s best
interests is at stake [Sec. 38, RA 8043
Amended IRR]. This is to preserve the integrity
of the adoption proceedings.
shall exercise substitute parental authority over
the child. [Sec. 44, RA 8043 Amended IRR]
4. Applicant’s Acceptance
Once the matching proposal is approved, a
notice of matching shall be sent to the
concerned Central Authority or foreign
adoption agency within five (5) days.
Any serious ailment, injury or abuse of the child
from the adoptive parent(s) or from other
household members or the adoptive parent(s)
suffer from any serious ailment or injury that will
make the adoption untenable shall be reported
to the Board. In the event that all efforts to
restore the parent-child relationship between
the child and applicant/s fail, the placement
may be terminated and the child may be given
a new placement or repatriated. [Secs. 46, 48,
49, RA 8043 Amended IRR]
The applicant/s shall notify the Central
Authority or Foreign Adoption Agency (FAA) in
writing of their decision on the matching
proposal within fifteen (15) working days from
receipt of said proposal.
If the applicant/s needs additional information
about the child and/or they need more time to
make a decision, an extension of thirty (30)
working days may be granted. [Sec. 37, RA
8043 Amended IRR]
5. Pre-Departure Preparation of the Child
The concerned Child Placing Agency shall
prepare the child for his/her placement to
minimize the anxiety and trauma due to
separation from persons with whom the child
may have formed attachments. [Sec. 41, RA
8043 Amended IRR]
6. Physical Transfer of the Child
For not later than twenty (20) working days
after the issuance of the child’s visa, the
adoptive parents or anyone of them shall
personally fetch the child from the Philippines.
The applicant shall stay in the country with the
child for at least five (5) days to allow bonding
among them.
The unauthorized failure to do so may result in
the cancellation of the Placement Authority.
[Sec. 42, RA 8043 Amended IRR]
7. Trial Custody
Trial custody begins upon the physical transfer
of the child to the applicant who, as custodian,
The trial custody shall last for six (6) months
during which the Central Authority and/or the
FAA shall be responsible for the pre-adoptive
placement, care and family counseling of the
child. [Sec. 45, RA 8043 Amended IRR]
8. Petition for Adoption
If a satisfactory pre-adoptive relationship is
formed between the applicant/s and the child,
the Board shall transmit an Affidavit of Consent
to the Adoption. The Central Authority and/or
the FAA shall file the petition for adoption of the
child to the proper court or agency in
accordance with their national law. [Secs. 50
and 51, RA 8043 Amended IRR]
9. Decree of Adoption
A copy of the final Decree of Adoption or its
equivalent shall be transmitted by the Central
Authority and/or the FAA to the Board within
one (1) month after its issuance. [Sec. 52, RA
8043 Amended IRR]
Where the petition for adoption was granted
after the child had shot and killed a girl, the
Supreme Court did not consider the retroactive
effect given to the decree of adoption so as to
impose a liability upon the adopting parents at
a time when the adopting parents had no actual
or physical custody over the child. Retroactive
effect may perhaps be given where such is
essential to permit the accrual of some benefit
or advantage in favor of the adopted child. In
the instant case, however, to hold that parental
authority had been retroactively lodged in the
adopting parents so as to burden them with
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liability for a tortious act that
have foreseen and which they
prevented
would
be
unconscionable. [Tamargo v.
85044 (1992)]
they could not
could not have
unfair
and
CA, G.R. No.
Adoption is a juridical act, proceeding in rem.
Because it is artificial, the statutory
requirements in order to prove it must be strictly
carried out. Petition must be announced in
publications and only those proclaimed by the
court are valid. Adoption is never presumed.
[Lazatin v. Campos, G.R. No. L-54955-54
(1979)]
Validity of facts behind a final adoption decree
cannot be collaterally attacked without
impinging on that court’s jurisdiction. [Santos v.
Aranzanso, G.R. No. L-23828 (1966)]
Participation of the appropriate government
instrumentality in performing the necessary
studies and precautions is important and is
indispensable to assure the child’s welfare.
[DSWD v. Belen, GRTJ-96-1362 (1997)]
Consent for adoption must be written and
notarized. [Landingin v. Republic, G.R. No.
164948 (2006)]
Although an adopted child is deemed to be a
legitimate child and have the same rights as the
latter, these rights do not include the right of
representation (because the adopted child has
no right to inherit from the grandparent). The
relationship created by the adoption is between
only the adopting parents and the adopted
child. It does not extend to the blood relatives
of either party. [Sayson v. CA, G.R. No. 8922425 (1992)]
J. SUPPORT
1. What it comprises
Support consists of everything indispensable
for sustenance, dwelling, clothing, medical
attendance, education and transportation, in
CIVIL LAW
keeping with the financial capacity of the family
[Art. 194(1), FC].
a. Education includes a person’s schooling or
training for some profession, trade or
vocation, the right to which shall subsist
beyond the age of majority [Art. 194, FC].
b. Transportation includes expenses in going
to and from school, or to and from place of
work [Art. 194, FC].
2. Who are obliged to give
support
Those obliged to support each other are:
a. Spouses,
b. Legitimate ascendants and descendants,
c. Parents and their children (legitimate and
illegitimate) and the children of the latter
(legitimate and illegitimate),
d. Legitimate brothers and sisters, whether of
full or half-blood; [Art. 195, FC]
e. Illegitimate brothers and sisters, whether of
full or half-blood
! Except when the need for support of
one (who is of age) is due to a cause
imputable to his/her fault or negligence
[Art. 196, FC]
Mutual Obligation to Support of Spouses
[Arts. 142, 143, FC]
! A wife’s right to support depends upon her
status as such.
! A wife is entitled to expenses of the
litigation, including attorney’s fees.
! If a wife is forced to leave the conjugal
home for a justifiable cause, she is entitled
to separate maintenance.
! In an action by the wife against the
husband, the court may grant alimony
pendente lite.
Note: Both legitimate and illegitimate children
are entitled to support. The only difference is
the source of support which, for illegitimate
children, is the parent’s separate properties.
Where the illegitimate parent is legally married
to another person, their CPG or ACP cannot
answer for support for the illegitimate child of
one of them unless the parent has no adequate
separate property, in which case, support will
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be taken from the CPG or ACP subject to
reimbursement [Arts. 122, 197, FC].
due to the physician [Pelayo v. Lauron, G.R.
No. L-4089 (1909)].
3. Source of support
In Case of Multiple Obligors
When the obligation to give support falls upon
two or more persons, the payment of the same
shall be divided between them in proportion to
their resources [Art. 200(1), FC].
CPG or ACP shall answer for the support of
the:
(1) spouse,
(2) their common children, and
(3) the legitimate children of their spouse
[Arts. 94 and 121, FC].
The separate property of the obligor shall
answer for the support of the:
(1) Legitimate ascendants,
(2) (all other) descendants, whether
legitimate or illegitimate, and
(3) Brothers
and
sisters,
whether
legitimate or illegitimately related.
If no separate property, the ACP/CPG (if
financially capable) shall advance the support,
to be deducted from the obligor’s share upon
liquidation of such regime [Art. 197, FC].
4. Order of support
Art. 199, FC. Whenever two or more
persons are obliged to give support, the
liability shall devolve upon the following
persons in the order herein provided:
1. The spouse;
2. The descendants in the nearest
degree;
3. The ascendants in the nearest
degree; and
4. The brothers and sisters.
The order of liability among ascendants and
descendants would be:
(1) Legitimate children and descendants,
(2) Legitimate parents and ascendants, and
(3) Illegitimate children and their descendants
[Tolentino].
Example: Even if the parents-in-law were the
ones who called for the physician’s services for
the childbirth of their daughter-in-law, it is the
woman’s husband who is bound to pay the fees
Also, in case of urgent need and by special
circumstance, the judge may order only one
obligor to furnish support without prejudice to
reimbursement from other obligors of the share
due from them [Art. 200(2), FC].
In Case of Multiple Recipients
If there are multiple recipients and only one
obligor, and the latter has no sufficient means
to satisfy all claims:
a. Observe order in Art. 199 as to whose
claim shall be satisfied first;
b. But if the concurrent obligees are the
spouse and a child subject to parental
authority, the child shall be preferred [Art.
200(3), FC].
The above preference given to a child under
parental authority over the spouse should
prevail only if the person obliged to support
pays it out his separate property. So if the
support comes from ACP or CPG, the above
rule of preference for the child does not apply
[Tolentino].
Support Given by a Stranger
Art. 206, FC. When, without the knowledge
of the person obliged to give support, it is
given by a stranger, the latter shall have a
right to claim the same from the former,
unless it appears that he gave it without
intention of being reimbursed.
The stranger contemplated in this provision is
one who does not have any obligation to
support the recipient.
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Person Obliged Refuses or Fails to Give
Support
Art. 207, FC. When 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 the right of
reimbursement from the person obliged to
give support. This Article shall particularly
apply when the father or mother of a child
under the age of majority unjustly refuses to
support or fails to give support to the child
when urgently needed.
Example: The father who abandoned his two
daughters in their tender years, was ordered by
the Court to pay support in arrears. The Court
said that the father could not plausibly expect
his children of tender years to demand support
from him. In like manner, the uncle who lent
money for the education and support of the two
sisters, may exact reimbursement from the
father [Lacson v. Lacson, G.R. No. 150644
(2006)].
5. Amount of support
The amount of support is in proportion to the
means of the provider and the needs of the
receiver, and can be reduced or increased if
such circumstances change [Arts. 201 and
202, FC].
The amount of support is variable and, for this
reason, no final judgment on the amount of
support is made as the amount shall be in
proportion to the resources or means of the
giver and the necessities of the recipient
[Gotardo v. Buling, G.R. No. 165166 (2012)].
Contractual Support or That Given By Will
The excess in amount beyond that required for
legal support shall be subject to levy on
attachment or execution [Art. 208, FC].
Reason: The amount of support agreed upon
in the contract or given in the will can be more
than what the recipient needs [Sempio-Diy].
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Furthermore, contractual support shall be
subject to adjustment whenever modification is
necessary due to changes in circumstances
manifestly beyond the contemplation of the
parties [Art. 208, FC].
6. Manner and time of payment
Art. 203, FC. The obligation to give support
shall be demandable from the time the
person who has a right to receive the same
needs it for maintenance, but it shall not be
paid except from the date of judicial or
extrajudicial demand.
Support pendente lite may be claimed in
accordance with the Rules of Court.
Payment shall be made within the first five
days of each corresponding month or when
the recipient dies, his heirs shall not be
obliged to return what he has received in
advance.
Payment of alimony is demandable from the
moment the necessity for it arises and is
payable from the time of extrajudicial demand.
Unless support is demanded, it is presumed
that such necessity does not exist.
Support in arrears may be subject to
compromise. The Court may consider whether
the support is no longer indispensable for the
recipient's sustenance [Tolentino].
Two Options to Fulfill Obligation to Give
Support
a. Payment of the amount; or
b. Receiving and maintaining the recipient in
the home of the provider
Requisites:
1. The obligor has his own home or domicile,
and
2. There is no moral or legal reason which
prevents the recipient from living in the
obligor’s home or domicile [Art. 204, FC].
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7. Renunciation and termination
The obligation of spouses to mutual support
lies on the existence of marriage bonds. Once
the marriage has been declared null, this
obligation ceases.
The Court held that the validity of marriage can
be collaterally attacked in an action for support.
Although the suit is not instituted to directly
address the issue of validity, the Court deems
it essential to the determination of the issue on
support. [De Castro v. Assidao-De Castro,
G.R. No. 170172 (2008)]
In case of separation in fact between husband
and wife, the spouse who leaves the conjugal
home or refuses to live therein, without just
cause, shall not have the right to be supported
[Art. 100(1), FC].
Under Art. 194, FC, the obligation to support a
recipient’s education may continue even after
the person entitled has reached the age of
majority.
However, the Court recognizes that although
the duty to support is a continuing one, the
child’s right to support and the parent’s right to
custody and services are reciprocal: the father,
in return for maintenance and support may
establish and impose reasonable regulations
for his child. In case a child voluntarily
abandons the parent’s home for the purpose of
avoiding parental discipline and restraint, that
child forfeits the claim to support. [Roe v. Doe,
324 N.Y.S. 2d 71 (1971)]
8. Support pendente lite
Pending legal separation or annulment, and for
declaration of nullity, support pendente lite for
spouses and children will come from the
ACP/CPG. After final judgment granting the
petition, mutual support obligation between
spouses ceases. However, in legal separation,
the court may order the guilty spouse to give
support to the innocent spouse. [Art. 198, FC]
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Note: In Art. 100(1), FC, de facto separation
does not affect the ACP and the CPG, except
that the spouse who leaves the conjugal home
without just cause shall not be entitled to
support.
9. Procedure in applications for
support
Petitions for support and/or acknowledgement
may be filed with Family Courts which have
original jurisdiction over such cases [Sec. 5,
RA 8369].
In cases involving violence among immediate
family members living in the same household,
the court may order the temporary custody of
children in all civil actions for their custody. The
court may also order support pendente lite,
including deduction from the salary and use of
conjugal home and other properties in all civil
actions for support. [Sec. 7, RA 8369]
A woman or her child experiencing violence
may also be granted a protection order which
may include directing the respondent to
provide support to the women and/or her child
if entitled to legal support. An appropriate
percentage of the income or salary of the
respondent shall be withheld regularly by the
respondent’s employer for it to be automatically
remitted to the woman. Failure to remit and/or
withhold or any delay in the remittance of
support without justifiable cause shall render
the respondent or his employer liable for
indirect contempt of court. [Sec. 8(g), RA 9262]
In case the filiation of a child claiming for
support is disputed, the rules on proving
filiation apply. An order for support must be
issued only if paternity or filiation is established
by clear and convincing evidence; the reason
being that such order may create an
unwholesome situation in the lives of the
parties. [Perla v. Baring, G.R. No. 172471
(2012)]
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o
K. PARENTAL AUTHORITY
o
1. General Provisions
o
What Comprises Parental Authority [Art.
209, FC]
• Caring for and rearing of children for civic
consciousness and efficiency, and;
• Development of the moral, mental, and
physical character and well-being of
children.
What Characterizes Parental Authority [Art.
210, FC]
General Rule: Parental authority is not
renounceable and nontransferable.
Exception: In cases provided by law.
When Substitute Parental Authority is
Exercised [Art. 214, FC]
In case of death, absence, or unsuitability of
the parents
Who
Exercises
Substitute
Parental
Authority (in order)
• The surviving grandparent [Art. 214, FC].
Exception: When several survive, the one
designated by the court, taking into
account all relevant considerations [Art.
214, FC].
General Rule: Joint exercise by the father and
the mother of a child [par. 1, Art. 211, FC].
When Terminated [Art. 228, FC]
• Art. 228, FC
o Upon the death of the parents;
o Upon the death of the child;
o Upon the emancipation of the child;
• Art. 229, FC
o Upon adoption of the child;
o Upon appointment of a general
guardian;
Upon judicial declaration of
abandonment of the child, in a case
filed for the purpose;
Upon the final judgment of a
competent court divesting the party
concerned of parental authority, or;
Upon judicial declaration of
absence or incapacity of the
person
exercising
parental
authority
2. Substitute parental authority
Who Exercises Parental Authority [Arts.
211-213, FC]
Exceptions:
• In case of disagreement, the father’s
decision prevails [par. 2, Art. 211, FC].
o Exception to the exception: If
there is judicial order to the
contrary.
• In case of absence or death of either
parent, the parent present or alive [Art. 212,
FC].
• In case of separation of the parents, the
parent designated by the court [Art. 213,
FC].
CIVIL LAW
•
•
The oldest brother or sister, over 21 years
of age [Art. 216, FC].
The child’s actual custodian, over 21 years
of age [Art. 216, FC].
3. Special parental authority
Who Exercises Special Parental Authority
[Art. 218, FC]
• The school (its administrators and
teachers), or;
• The individual, entity, or institution
engaged in child care
When is Special Parental Authority
Exercised [Art. 218, FC]
• While the child is under their supervision,
instruction, or custody
• During all authorized activities, whether
inside or outside the premises of the
school, entity, or institution
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Substitute parental authority and special
parental authority, distinguished
4.
DIFFERENCE
SUBSTITUTE
Who
Grandparents
Exercises ,
oldest
sibling,
or
courtappointed
guardian
When
Exercise
d
How
Liable
Only in case
of
death,
absence, or
unsuitability of
parents
Subsidiarily
liable
for
damages
caused by the
minor
SPECIAL
Schools
(administrator
s
and
teachers)
or
individuals,
entities
engaged
in
child care
5.
Concurrent
with parental
authority
or
substitute
parental
authority
7.
Principally and
solidarily liable
for damages
caused
the
minor’s acts or
omissions
while
under
their custody,
supervision, or
instruction
4. Effect of parental authority
over the child’s person
Rights and Duties of Persons Exercising
Parental Authority upon the Person of a
Child [Art. 220, FC].
1. To keep the children in their company, to
support, educate and instruct them by right
precept and good example, and to provide
for their upbringing in keeping with their
means;
2. To give the children love and affection,
advice and counsel, companionship and
understanding;
3. To provide the children with moral and
spiritual guidance, inculcate in them
honesty, integrity, self-discipline, selfreliance, industry and thrift, stimulate their
6.
8.
9.
CIVIL LAW
interest in civic affairs, and inspire in them
compliance with the duties of citizenship;
To enhance, protect, preserve, and
maintain the children’s physical and mental
health at all times;
To furnish the children with good and
wholesome
educational
materials,
supervise their activities, recreation and
association with others, protect them from
bad company, and prevent them from
having habits detrimental to their health,
studies, and morals;
To represent the children in all matter
affecting their interests;
To demand from the children respect and
obedience;
To impose discipline on the children as
may be required under the circumstances,
and;
To perform such other duties as are
imposed by law upon parents and
guardians.
Civil Liability [Art. 221, FC]
Parents and other persons exercising parental
authority shall be civilly liable for the injuries
and damages caused by the acts or omissions
of their unemancipated children living in their
company and under their personal authority
subject to the appropriate defenses provided
by law.
Disciplinary Measures over the Child [Art.
223, FC]
Persons exercising parental authority over a
child may petition the proper court of the place
where the child resides for an order providing
for disciplinary measures over the child.
Note: The child shall be entitled to the
assistance of counsel, either of his choice or
appointed by the court, and a summary hearing
shall be conducted wherein the petition and the
child shall be heard.
However, if in the same proceeding the court
finds the petitioner at fault, irrespective of the
merits of the petition, or when the
circumstances so warrant, the court may also
order the deprivation or suspension of parental
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authority or adopt such other measures as it
may deem just and proper.
For Persons Exercising Substitute Parental
Authority [Art. 233, par. 1, FC]
The person exercising substitute parental
authority shall have the same authority over the
person of the child as the parents.
5. Effects of parental authority
over the child’s property
Joint Legal Guardianship [Art. 225, par. 1,
FC].
The father and the mother shall jointly exercise
legal guardianship over the property of their
unemancipated child without the necessity of a
court appointment.
In case of disagreement, the father’s decision
shall prevail.
Exception: Unless there is judicial order to the
contrary.
Nature of Administration
The property of the unemancipated child
earned or acquired with his work or industry or
by onerous or gratuitous title shall belong the
child in owner and shall be devoted exclusively
to the latter’s support and education, unless the
title or transfer provides otherwise.
The right of the parents over the fruits and
incomes of the child’s property shall be limited
primarily to the child’s support and secondarily
to the collective daily needs of the family [Art.
226, FC].
Bonds
Where the market value of the property or the
annual income of the child exceeds P50,000,
the parent concerned shall be required to
furnish a bond in such amount as the court may
determine, but not less than ten per centum
(10%) of the value of the property or annual
income, to guarantee the performance of the
obligations prescribed for general guardians
[Art. 225, par. 2, FC].
CIVIL LAW
The petition shall be considered as a summary
special proceeding, with the ordinary rules on
guardianship being merely suppletory.
Except the following, in which case the ordinary
rules on guardianship shall apply:
1. When the child is under substitute parental
authority;
2. When the guardian is a stranger, or;
3. A parent has remarried.
Trusts
If the parents entrust the management or
administration of any of their properties to an
unemancipated child, the net proceeds of such
property shall belong to the owner.
The child shall be given a reasonably monthly
allowance in an amount not less than that
which the owner would have paid if the
administrator were a stranger, unless the
owner grants the entire proceeds to the child.
In any case, the proceeds thus given in whole
or in part shall not be charged to the child’s
legitime.
6. Suspension or termination of
parental authority
When Permanently Terminated [Arts. 228229, FC].
1. Upon the death of the parents;
2. Upon the death of the child, or;
3. Upon the emancipation of the child.
Unless subsequently revived by final judgment,
there is permanent termination [Art. 229, FC]:
1. Upon adoption of the child;
2. Upon appointment of a general guardian;
3. Upon judicial declaration of abandonment
of the child in a case filed for the purpose;
4. Upon final judgment of a competent court
divesting the party concerned of parental
authority, or;
a. Also mandatory if the person
exercising parental authority has
subjected the child or allowed him
to be subjected to sexual abuse
[Art. 232, FC].
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5. Upon judicial declaration of absence or
incapacity of the person exercising
parental authority.
When Suspended [Arts. 230-231, FC].
1. Upon conviction of the parent or the person
exercising the same of a crime which
carries with it the penalty of civil
interdiction;
2. Upon final judgment of a competent court
in an action filed for the purpose or in a
related case, if the parent or the person
exercising the same:
a. Treats the child with excessive
harshness or cruelty;
b. Gives the child corrupting orders,
counsel or example;
c. Compels the child to beg, or;
d. Subjects the child or allows him to
be
subjected
to
acts
of
lasciviousness
e. Is culpably negligent [Art. 231, par.
2, FC].
When Reinstated [Arts. 230-231, FC].
1. Automatically upon service of penalty (civil
interdiction).
2. Automatically upon pardon or amnesty of
the offender.
3. By judicial order, if the court finds that the
cause therefore has ceased and will not be
repeated [Art. 231, par. 4, FC].
CIVIL LAW
7. Solo parents (R.A. No. 8972)
RA 8972 Solo Parents' Welfare Act
Principle
It is the policy of the State to promote
the family as the foundation of the
nation, strengthen its solidarity and
ensure its total development. Towards
this end, it
shall develop a
comprehensive program of services
for solo parents and their children.
[Sec. 2, RA 8972]
Concept
"Solo parent" - any individual who falls
under any of the following categories:
(1) A woman who gives birth as a result
of rape and other crimes against
chastity even without a final
conviction
of
the
offender:
Provided, That the mother keeps
and raises the child;
(2) Parent left solo or alone with the
responsibility of parenthood due to
death of spouse;
(3) Parent left solo or alone with the
responsibility of parenthood while
the spouse is detained or is serving
sentence for a criminal conviction
for at least one (1) year;
(4) Parent left solo or alone with the
responsibility of parenthood due to
physical and/or mental incapacity of
spouse as certified by a public
medical practitioner;
(5) Parent left solo or alone with the
responsibility of parenthood due to
legal separation or de facto
separation from spouse for at least
one (1) year, as long as he/she is
entrusted with the custody of the
children;
(6) Parent left solo or alone with the
responsibility of parenthood due to
declaration of nullity or annulment
of marriage as decreed by a court
or by a church as long as he/she is
entrusted with the custody of the
children;
(7) Parent left solo or alone with the
responsibility of parenthood due to
abandonment of spouse for at least
one (1) year;
(8) Unmarried mother/father who has
preferred to keep and rear her/his
child/children instead of having
others care for them or give them up
to a welfare institution;
Prohibition for Persons Exercising Special
Parental Authority [Art. 233, FC].
In no case shall the school administrator,
teacher or individual engaged in child care and
exercising special parental authority inflict
corporal punishment upon the child.
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(9) Any other person who solely
provides parental care and support
to a child or children;
(10) Any family member who assumes
the responsibility of head of family
as a result of the death,
abandonment, disappearance or
prolonged absence of the parents
or solo parent.
A change in the status or circumstance
of the parent claiming benefits under this
Act, such that he/she is no longer left
alone with the responsibility of
parenthood, shall terminate his/her
eligibility for these benefits.
Scope
Benefits granted to solo parents:
1. Any solo parent whose income in
the place of domicile falls below the
poverty threshold as set by the
National
Economic
and
Development Authority (NEDA) and
subject to the assessment of the
DSWD worker in the area shall be
eligible for the following assistance:
a. Comprehensive
Package
of
Social
Development and Welfare
Services, consisting of:
i.
Livelihood
development
services;
ii.
Counseling
services;
iii.
Parent
effectiveness
services;
iv.
Critical incidence
stress debriefing;
v.
Special projects
for individuals in
need
of
protection [Sec.
5, RA 8972]
b. Flexible work schedule
or the right granted to a
solo parent employee to
vary his/her arrival and
departure time without
affecting the core work
hours as defined by the
employer [Sec. 6, RA
8972]
c. Right to be protected
against
work
discrimination
with
respect to terms and
Page 116 of 532
2.
CIVIL LAW
conditions of employment
[Sec. 7, RA 8972]
d. Parental leave of not
more than seven (7)
working days every year,
in addition to current leave
privileges, provided the
solo parent employee has
already rendered service
of at least one (1) year
[Sec. 8, RA 8972]
e. Educational
benefits,
consisting of:
i.
Scholarship
programs
for
qualified
solo
parents and their
children
in
institutions
of
basic,
tertiary
and
technical/skills
education; and
ii.
Nonformal
education
programs
appropriate for
solo parents and
their
children
[Sec. 9, RA 8972]
f. Housing benefits [Sec.
10, RA 8972]
g. Medical assistance [Sec.
11, RA 8972]
Any solo parent whose income is
above the poverty threshold shall
enjoy only the following benefits:
a. Flexible work schedule
[Sec. 6, RA 8972]
b. Right to be protected
against
work
discrimination
with
respect to terms and
conditions of employment
[Sec. 7, RA 8972]
c. Parental leave of not
more than seven (7)
working days every year,
in addition to current leave
privileges, provided the
solo parent employee has
already rendered service
of at least one (1) year
[Sec. 8, RA 8972]
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
CIVIL LAW
1. Separation in Fact Between
Husband and Wife
L. EMANCIPATION
Petition [Art. 239, FC]
1. Cause of emancipation
When Emancipation Takes Place [Art. 234,
FC, as amended by R.A. No. 6089]
By attainment of majority, at the age of
eighteen years
2. Effect of emancipation
Effects of Emancipation
General:
• Termination of parental authority over the
person and property of the child
emancipated [Art. 228 [3], FC]
• The person emancipated becomes
qualified and responsible for all acts of civil
life.
Exception:
• Persons possessing parental authority
over the emancipated individual are
needed to give their respective parental
consent until the emancipated individual is
at the age of twenty-one.
• Nothing shall be construed to derogate the
duty and responsibility of parents and
guardians for children and wards below
twenty-one years of age mentioned in the
second and third paragraphs of Article
2180 of the Civil Code.
• Other exceptions established by existing
laws in special cases.
•
M.SUMMARY JUDICIAL PROCEEDINGS
IN THE FAMILY CODE
Art. 238, FC. Until modified by the Supreme
Court, the procedural rules in this Title shall
apply in all cases provided for in this Code
requiring summary court proceedings. Such
cases shall be decided in an expeditious
manner without regard to technical rules.
A verified petition alleging the following facts is
required when:
• A husband and wife are separated in fact,
or, one has abandoned the other, and;
• One of them seeks judicial authorization for
a transaction where the consent of the
other spouse is required by law but the
same is withheld or cannot be obtained
The petition shall attach the proposed deed, if
any, embodying the transaction, if none, shall
describe in detail the said transaction and state
the reason why the required consent thereto
cannot be secured.
The final deed duly executed by the parties
shall be submitted to and approved by the
court.
Separate claim for damages [Art. 240, FC].
Claims for damages by either spouse, except
costs of the proceedings, may be litigated only
in a separate action.
Jurisdiction
Jurisdiction over the petition shall, upon proof
of notice to the other spouse, be exercised by
the proper court authorized to hear family
cases, if one exists, or in the regional trial court
or its equivalent sitting in the place where either
of the spouses resides. [Art. 241, FC]
There shall be established a Family Court in
every province and city in the country. In case
where the city is the capital of the province, the
Family Court shall be established in the
municipality which has the highest population.
[Sec. 3, R.A. 8069 [Family Courts Act of 1997]]
The Family Courts shall have exclusive original
jurisdiction to hear and decide the following
cases:
(f). Summary judicial proceedings brought
under the provisions of Executive Order No.
209, otherwise known as the "Family Code of
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the Philippines". [Sec. 5[f], R.A. 8069 [Family
Courts Act of 1997]]
Notification of the other spouse
Upon filing of the petition, the court shall notify
the other spouse, whose consent to the
transaction is required, of said petition,
ordering said spouse to show cause why the
petition should not be granted, on or before the
date set in said notice for the initial conference.
The notice shall be accompanied by a copy of
the petition and shall be served at the last
known address of the spouse concerned. [Art.
242, FC].
Procedure
A preliminary conference shall be conducted
by the judge personally without the parties
being assisted by counsel. After the court
deems it useful, the parties may be assisted by
counsel at the succeeding conferences and
hearings. [Art. 243, FC].
If the petition is not resolved at the initial
conference, said petition shall be decided in a
summary on the basis of affidavits,
documentary evidence or oral testimonies at
the sound discretion of the court. If testimony is
needed, the court shall specify the witnesses to
be heard and the subject-matter of their
testimonies, directing the parties to present
said witnesses [Art. 246, FC].
When appearance of spouses is required
In case of non-appearance of the spouse
whose consent is sought, the court shall inquire
into the reasons for his or her failure, and shall
require such appearance, if possible [Art. 244,
FC].
Note: If, despite all efforts, the attendance of
the non-consenting spouse is not secured, the
court may proceed ex parte and render
judgment as the facts and circumstances may
warrant. In any case, the judge shall endeavor
to protect the interests of the non-appearing
spouse [Art. 245, FC].
Nature of judgment
The judgment of the court shall be immediately
final and executory [Art. 247, FC].
CIVIL LAW
2. Incidents Involving Parental
Authority
Verified petitions are needed in the
following situations [Art. 249, FC]
! For an order providing for disciplinary
measures over the child [Art. 223, FC].
! For the approval of the bond in the
exercise of the parents’ joint legal
guardianship over the property of their
unemancipated common child where
the market value of the property or the
annual income of the child exceeds
P50,000.00 [Art. 225, FC].
! For the approval of a deed or
transaction where the required consent
of the other spouse is withheld or
cannot be obtained [Art. 239, FC].
Jurisdiction
In the proper court of the place where the child
resides [Art. 250, FC].
Procedure
The rules governing Chapter 2 (summary
judicial proceedings for when there is
separation in fact between husband and wife,
Arts. 239-248, FC) shall govern herein as they
are applicable [Art. 252, FC].
3. Other Matters
Art. 248, FC
The petition for judicial authority to administer
or encumber specific separate property of the
abandoning spouse and to use the fruits or
proceeds thereof for the support of the family
shall also be governed by the procedural rules
requiring summary court proceedings in the
Family Code.
RA 8369 Family Courts Act
The State recognizes the
sanctity of family life and shall
protect and strengthen the family
Principle as a basic autonomous social
institution. The courts shall
preserve the solidarity of the
family, provide procedures for
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the reconciliation of spouses and
the amicable settlement of family
controversy.
Note:
All
hearings
and
conciliation of the child and
family cases shall be treated in a
manner consistent with the
promotion of the child's and the
family's dignity and worth, and
shall respect their privacy at all
stages of the proceedings.
Records of the cases shall be
dealt
with
utmost
confidentiality and the identity
of parties shall not be
divulged unless necessary and
with authority of the judge. [Sec.
12, RA 8369]
The State shall likewise provide
a system of adjudication for
youthful offenders which takes
into account their peculiar
circumstances. [Sec. 2, RA
8369]
Concept
The following are the powers
granted to the family courts:
1. In cases of violence
among immediate family
members living in the
same
domicile
or
household, the Family
Court may issue a
restraining
order
against the accused or
defendant upon verified
application
by
the
complainant or the victim
for relief from abuse
[Sec. 7, RA 8369];
2. The court may order the
temporary custody of
children in all civil
actions for their custody
[Sec. 7, RA 8369];
3. The court may also
order
support
pendente lite, including
deduction
from
the
salary and use of
conjugal home and
other properties in all
civil actions for support
[Sec. 7, RA 8369];
4. Direct control and
supervision of the
youth detention home
which
the
local
government unit shall
establish to separate the
youth offenders from
adult criminals; [Sec. 8,
RA 8369]
CIVIL LAW
Scope
Page 119 of 532
The Family Courts shall have
exclusive original jurisdiction
to hear and decide the following
cases:
a) Criminal cases where
one or more of the
accused
is
below
eighteen (18) years of
age but not less than
nine (9) years of age but
not less than nine (9)
years of age or where
one or more of the
victims is a minor at the
time of the commission
of the offense: Provided,
That if the minor is found
guilty, the court shall
promulgate
sentence
and ascertain any civil
liability
which
the
accused
may
have
incurred.
The sentence, however, shall be
suspended without need of
application
pursuant
to
Presidential Decree No. 603,
otherwise known as the "Child
and Youth Welfare Code";
b) Petitions
for
guardianship, custody of
U.P. LAW BOC
CIVIL LAW
PERSONS AND FAMILY RELATIONS
children, habeas corpus
in relation to the latter;
c) Petitions for adoption of
children
and
the
revocation thereof;
d) Complaints
for
annulment of marriage,
declaration of nullity of
marriage and those
relating to marital status
and property relations of
husband and wife or
those living together
under different status
and agreements, and
petitions for dissolution
of conjugal partnership
of gains;
e) Petitions for support
and/or acknowledgment;
f)
Summary
judicial
proceedings brought
under the provisions of
Executive Order No.
209, otherwise known
as the "Family Code of
the Philippines";
g) Petitions for declaration
of status of children as
abandoned, dependent
o neglected children,
petitions for voluntary or
involuntary commitment
of
children;
the
suspension, termination,
or restoration of parental
authority
and
other
cases cognizable under
Presidential Decree No.
603, Executive Order
No. 56, (Series of 1986),
and other related laws;
Page 120 of 532
h) Petitions
for
the
constitution of the family
home;
i)
Cases against minors
cognizable under the
Dangerous Drugs Act,
as amended;
j)
Violations of Republic
Act No. 7610, otherwise
known as the "Special
Protection of Children
Against Child Abuse,
Exploitation
and
Discrimination Act," as
amended by Republic
Act No. 7658; and
k) Cases
of
domestic
violence against:
i)
Women - which
are
acts
of
gender
based
violence
that
results, or are
likely to result in
physical, sexual
or psychological
harm or suffering
to women; and
other forms of
physical abuse
such as battering
or threats and
coercion which
violate
a
woman's
personhood,
integrity
and
freedom
movement; and
ii)
Children - which
include
the
commission of
all
forms
of
abuse, neglect,
cruelty,
exploitation,
violence,
and
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
discrimination
and all other
conditions
prejudicial
to
their
development.
If an act constitutes a criminal
offense, the accused or batterer
shall be subject to criminal
proceedings
and
the
corresponding penalties.
If any question involving any of
the above matters should arise
as an incident in any case
pending in the regular courts,
said incident shall be determined
in that court. [Sec. 5, RA 8369]
Note: In areas where no Family
Court has been established or
no Regional Trial Court was
designated by the Supreme
Court due to the limited number
of cases, the DSWD shall
designate and assign qualified,
trained, and DSWD accredited
social workers of the local
government units to handle
juvenile and family cases filed
in the designated Regional Trial
Court of the place. [Sec. 11, RA
8369]
CIVIL LAW
Natural child:
A natural child acknowledged by both parents
shall principally use the surname of the father.
[Art. 366, CC].
Illegitimate child
Illegitimate children shall use the surname of
their mother. [Art. 176, FC].
2. Surname of Wife After and
During Marriage
During Marriage
A married woman may use:
1) Her maiden first name and surname and
add her husband’s surname, or;
2) Her maiden first name and her husband’s
surname, or;
3) Her husband’s full name, but prefixing a
word indicating that she is his wife, such as
“Mrs.”. [Art. 370, CC]
After Marriage
Annulment [Art. 371, CC]:
In case of annulment of marriage and the wife
is the guilty party, she shall resume her maiden
name and signature.
In case of annulment of marriage and the wife
is the innocent party, she may choose to
continue employing her former husband’s
surname, unless:
1) The court decrees otherwise, or;
2) She or the former husband is married again
to another person
Legal Separation [Art. 373, CC]
When legal separation has been granted, the
wife shall continue using her name and
surname employed before the legal separation.
N. USE OF SURNAMES
1. Surname of Children
Legitimate and legitimated children:
Legitimate and legitimated children shall
principally use the surname of the father. [Art.
364, CC; Article 174 [1], FC].
Adopted child:
An adopted child shall bear the surname of the
adopter. [Art. 365, CC; Art. 189 [1], FC].
Note: Before the legal separation, not before
the marriage.
Death of Husband [Art. 373, CC]
A widow may use the deceased husband’s
surname as though he were still living, in
accordance with Article 370.
Page 121 of 532
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PERSONS AND FAMILY RELATIONS
3. Confusion of Names
CIVIL LAW
O. ABSENCE
General Rule [Art. 374, CC]:
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.
1. Provisional measures in case
of absence
Special Rules [Art. 375, CC]:
In case of identity of names and surnames
between ascendants and descendants, the
word “Junior” can only be used by a son.
General Rule [Art. 381, CC]: A judge, at the
instance of an interested party, a relative, or a
friend, may appoint a person to represent the
absentee in all that may be necessary.
Grandsons and other direct male descendants
shall either:
1) Add a middle name or the mother’s
surname, or
2) Add the Roman numerals II, III, and so
on.
Note: The same shall be observed when under
similar circumstances the power conferred by
the absentee has expired.
Usurpation and Unauthorized or Unlawful
Use of Name [Arts. 377-378, CC].
Usurpation of a name and surname may be the
subject of an action for damages and other
relief [Art. 377, CC].
The unauthorized or unlawful use of another
person’s surname gives a right of action to the
latter [Art. 378, CC].
4. Change of Names
General Rule [Art. 376, CC]: No person can
change his name or surname without judicial
authority.
Exception [Arts. 379-380, CC]: The
employment of pen names or stage names is
permitted, provided it is done in good faith and
there is no injury to third persons. Pen names
and stage names cannot be usurped. [Art. 379,
CC]
Except as provided in the preceding article, no
person shall use different names and
surnames. [Art. 380, CC]
Requisites
1. A person disappears from his domicile.
2. His whereabouts are unknown.
3. He did not leave an agent to administer his
property.
Who May Be Appointed [Art. 383, CC]
General Rule: The spouse present shall be
preferred, when there is no legal separation.
Exception: If there is no spouse, any
competent person may be appointed by the
court.
Safeguarding the Absentee’s Rights and
Properties [Art. 382, CC]
The judge shall specify the powers, obligations,
and remuneration of the absentee’s
representative, regulating them, according to
the circumstances, by the rules concerning
guardians.
2. Declaration of absence
When Absence May Be Declared [Art. 384,
CC]
A person’s absence may be declared
1. After two years have elapsed without any
news about the absentee or since the
receipt of the last news, or;
2. After five years have elapsed, in case the
absentee left a person in charge of the
administration of his property
Page 122 of 532
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PERSONS AND FAMILY RELATIONS
Who May Ask for the Declaration of
Absence [Art. 385, CC]
1. The spouse present;
2. The heirs instituted in a will, who may
present an authentic copy of the same;
3. The relatives who may succeed by the law
of intestacy;
4. Those who may have, over the property of
the absentee, some right subordinated to
the condition of his death.
Effectivity of the Judicial Declaration of
Absence [Art. 386, CC]
The judicial declaration of absence shall not
take effect until six months after its publication
in a newspaper of general circulation.
3. Administration
of
the
property of the absentee
Appointment of Administrator [Art. 387, CC]
An administrator of the absentee’s property
shall be appointed in accordance with Article
383.
On Alienation or Encumbrance of the
Property Administered [Art. 388, CC]
The wife who is appointed as an administratrix
of the husband’s property cannot alienate or
encumber the husband’s property; or that of
the conjugal partnership, without judicial
authority.
Cessation of Administration [Art. 389, CC]
When Administration Ceases
1. When the absentee appears personally or
by means of an agent;
2. When the death of the absentee is proved
and his testate or intestate heirs appear;
3. When a third person appears, showing by
a proper document that he has acquired
the absentee’s property by purchase or
other title.
Effects of Cessation
1. The administrator shall cease in the
performance of his office, and;
2. The property shall be at the disposal of
those who may have a right thereto.
CIVIL LAW
4. Presumption of death
General Rule [Art. 390, CC]
1. Seven years, for all purposes, except
succession.
2. Ten years, for the purpose of opening his
succession.
Exception [Art. 390, CC]
If the absentee disappeared at the age of
seventy-five years, an absence of five years
shall be sufficient to open his succession.
Where Disappearance is Attendant with
Dangerous Circumstances [Art. 391, CC]
The absentee shall be presumed dead for all
purposes, if he were absent under the following
circumstances:
1. Where the absentee is on board a vessel
lost during a sea voyage, or an aeroplane
which is missing, who has not been heard
of for four years since the loss of the vessel
or aeroplane;
2. Where the absentee is in the armed forces
who has taken part in war, and has been
missing for four years;
3. Where the absentee has been in danger of
death under other circumstances and his
existence has not been known for four
years.
In Case of the Absentee’s Reappearance or
Proof of Existence [Art. 392, CC]
If the absentee appears, or without appearing,
his existence is proved, he shall recover his
property 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.
Statutory Presumption on the Order of
Death Between Persons Who Are Called to
Succeed Each Other [Art. 43, CC]
If there is a doubt, as between two or more
persons who are called to succeed each other,
as to which of them died first, whoever alleges
the death of one prior to the other, shall prove
the same; in the absence of proof, it is
presumed that they died at the same time and
there shall be no transmission of rights from
one to the other.
Page 123 of 532
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PERSONS AND FAMILY RELATIONS
Disputable Presumption from the Rules of
Court [Rule 131, Sec. 3 [jj]]
The following presumptions are satisfactory if
uncontradicted, but may be contradicted and
overcome by other evidence:
(jj). That except for purposes of succession,
when two persons perish in the same calamity,
such as wreck, battle of conflagration, and it is
not shown who died first, and there are no
particular circumstances from which it can be
inferred, the survivorship is determined from
the probabilities resulting from the strength and
age of the sexes, according to the following
rules:
Age
1. The prior spouse had been absent for
two consecutive years.
2. There is danger of death attendant to
the disappearance as provided in
Article 391 of the Civil Code:
a. A person on board a vessel lost
during a sea voyage, or an
aeroplane which is missing,
and has not been heard of.
b. A person in the armed forces
who has taken part in war and
has been missing.
c. A person who has been in
danger of death under other
circumstances
and
his
existence has not been known.
3. The surviving spouse had a wellfounded belief that the absent spouse
was already dead.
Presumed Survivor
Both under 15
Older
Both above 60
Younger
CIVIL LAW
P. CIVIL REGISTRAR
One under 15, the The one under 15
other above 60
Both over 15 and Male
under 60; different
sexes
RA 9048 Correction of Error in Name
Both over 15 and Older
under 60; same sex
Principle
The State created an exception to the
general rules provided by Article 376
and 412 of the Civil Code, i.e.
“No personal can change his name or
surname without judicial authority”,
and;
“No entry in a civil register shall be
changed or corrected without a
judicial order”, respectively.
Concept
Sec. 3, RA 9048. Any person having
direct and personal interest in the
correction
of
a
clerical
or
typographical error in an entry and/or
change of first name or nickname in
the civil register may file, in person, a
verified petition with the local civil
registry office of the city or
municipality where the record being
sought to be corrected or changed in
kept, or with the nearest Philippine
Consulates for citizens who are
presently residing or domiciled in
foreign countries.
Scope
Exceptions to the General Rule as
Provided by Articles 376 and 412 of
the Civil Code
One under 15 or One between 15 and
over 60, the other 60
between those ages
Rule on Subsequent Marriages
General Rule [Art. 41, FC]
Marriage contracted by any person during the
subsistence of a previous marriage is void.
Exceptions [Art. 41, FC]
When there is a subsequent marriage due to
ordinary absence, where:
1. The prior spouse had been absent for
four consecutive years;
2. The surviving spouse had a wellfounded belief that the absent spouse
was already dead.
When there is a subsequent marriage due to
extraordinary absence, where:
Page 124 of 532
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1.
2.
PERSONS AND FAMILY RELATIONS
Correction of a clerical or
typographical error
a. Defined as “a mistake
committed
in
the
performance of clerical
work in writing, copying,
transcribing or typing an
entry in the civil register
that is harmless and
innocuous, such as
misspelled name or
misspelled place of birth
or the like, which is
visible to the eyes or
obvious
to
the
understanding and can
be corrected or changed
only by reference to
other existing record or
records:
Provided,
however,
That
no
correction must involve
the
change
of
nationality, age, status
or sex of the petitioner
[Sec. 2(3)]
Change of first name or nickname
a. Grounds [Sec. 4, RA
9048]
o The petitioner finds the
first name or nickname
to be ridiculous, tainted
with
dishonor
or
extremely difficult to
write or pronounce;
o The new first name or
nickname has been
habitually
and
continuously used by
the petitioner and he
has been publicly known
by the first name or
nickname
in
the
community, or;
o The change will avoid
confusion
Petition [Sec. 5, RA 9048].
The petition shall be in the form of an
affidavit, subscribed and sworn to
before any person authorized by law
to administer oaths, setting forth the
facts necessary to establish the merits
of the petition, the petitioner’s
competence to testify to the matters
states, and the particularly erroneous
entry or entries which are sought to be
Page 125 of 532
CIVIL LAW
correct and/or the change sought to
be made, in three copies.
Documentary Attachments:
1. A certified true machine copy of
the certificate or of the page of the
registry book containing the entry
or entries sought to be corrected
or changed;
2. At least two public or private
documents showing the correct
entry or entries upon which the
correction or change shall be
based, and;
3. Other documents which the
petitioner or the city or municipal
civil registrar, or the consul
general may consider relevant
and necessary for the approval of
the provision
Procedure [Secs. 6-7, RA 9048]
1. Petition is filed before the
civil registrar or the consul
general.
2. The petition is placed in a
conspicuous place for 10
consecutive
days
after
finding it sufficient in form
and substance.
3. The civil registrar/consul
general shall act on the
petition and render a
decision not later than five
working days after the
completion of the publication
requirement.
a. If the petition were
denied,
the
petitioner
may
appeal the decision
to
the
Civil
Registrar General
or
file
the
appropriate petition
before the proper
court.
4. The civil registrar/consul
general shall transmit a copy
of the decision with records
of the proceedings to the
Office of the Civil Registrar
General within five working
days from the date of the
decision.
5. The civil registrar general
shall exercise the power to
U.P. LAW BOC
PERSONS AND FAMILY RELATIONS
6.
7.
Prohibited
Acts
Penalties
impugn such a decision by
objection on the ff grounds
within 10 working days.
a. Where the error is
not
clerical
or
typographical;
b. Where
the
correction of an
entry or entries is
substantial
or
controversial as it
affects the civil
status of a person,
or;
c. The basis used in
changing the first
name or nickname
of a person does
not fall under Sec.
4.
If there were no objection,
the decision shall become
final and executory.
If there were objection, the
petitioner
may
seek
reconsideration or file the
appropriate petition with the
proper court.
the day and month in the date of
birth or sex of a person appearing
in the civil register to entries that
do not need a judicial order to be
changed or corrected.
Concept
Violation of any provision of the act
[Sec. 9].
Sec. 9, RA 9048.
Generally
! Imprisonment of not less
than six years but not more
than twelve years, or;
! A fine of not less than Ten
thousand
pesos
(P10,000.00) but not more
than One hundred thousand
pesos (P100,000.00), or;
! Both
Scope
Principle
The
State
expanded
the
exception
by
including
typographical or clerical error in
New Exceptions Created
1. Correction of the day
and month in the date of
birth
2. Correction of the sex of a
person
Additional
Documentary
Attachments
Generally:
1. Certification
from
appropriate
law
enforcement agencies
that petitioner has no
pending case or no
criminal record.
For Day and Month in Date of
Birth and Sex:
1. Earliest school record or
earliest
school
documents.
2. Medical records.
3. Other documents issued
by religious authorities.
For Sex:
1. Certification
by
an
accredited government
physician attesting to the
fact that petitioner did
not undergo sex change
or sex transplant.
Changes in Procedure
1. The petition shall be
published at least once a
week
for
two
consecutive weeks in a
newspaper of general
circulation.
If the offender were a government
official or employee, he shall suffer the
penalties provided under civil service
laws, rules, and regulations.
RA 10172 Correction of Error in Birthday
and Sex
CIVIL LAW
Prohibited Similar to RA 9048.
Acts
Penalties
Page 126 of 532
Similar to RA 9048.
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PROPERTY
PROPERTY
CIVIL LAW
Page 127 of 532
CIVIL LAW
U.P. LAW BOC
PROPERTY
CIVIL LAW
crops are to be attached in the same
manner as realty. [Sec. 7, Rule 59]
A. CLASSIFICATION OF
PROPERTY
2. 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.
1. Immovables [Art. 415, CC]
a. IMMOVABLES
BY
NATURE:
cannot be moved from place to
place; their intrinsic qualities have
no utility except in a fixed place.
[pars. 1 & 8]
Note: Whether attached by the owner
himself or some other person. (e.g.
Canals, walls, aqueducts)
3.
1. Land,
buildings,
roads,
and
constructions of all kinds adhered to
the soil [415 (1)]
Note: When a building is sold to be
demolished
immediately,
it
is
considered a movable [Bicerra v.
Teneza, G.R. No. L-16219 (1962)].
Fertilizer actually used on a piece of
land
c. IMMOVABLES BY DESTINATION:
essentially movables but by the
purpose for which they have been
placed in an immovable, partake of
the nature of an immovable [Pars.
4, 5, 6 & 9]
Note: A building is immovable whether
erected by the owner of the land or by
a usufructuary or by a lessee subject to
provisions of the chattel mortgage law
or the PPSA.
2. Mines, quarries, and slag dumps, while
the matter thereof forms part of the
bed, and waters either running or
stagnant. [415 (8)]
b. IMMOVABLES
BY
INCORPORATION: movables but
are attached to an immovable in such
a way as to be an integral part [Pars.
2, 3, & 7]
1. Trees and plants and growing fruits:
only immovables when they are
attached to the land or form an
integral part of an immovable.
Note: By special treatment of Act 1508
(Chattel Mortgage Law), growing crops
may be subject of a Chattel Mortgage.
For the purpose of attachment: growing
Page 128 of 532
1. Statues, reliefs, paintings etc.
[415 (4)]
Requisites
a. Placed by the owner or by the
tenant (as agent);
b. With intention of attaching
them
permanently
even
if adherence will not involve
breakage or injury.
c. Where the improvement or
ornaments placed by the
lessee are not to pass to the
owner at the expiration of the
lease, they remain movables
for chattel mortgage purposes.
[Davao Sawmill v. Castillo,
G.R. No. L-40411 (1935)]
2. Machinery,
receptacles,
instruments or
implements
INTENDED by the OWNER of the
tenement which tend directly to
meet the needs of the said industry
or works [415 (5)] (e.g. Sewing
U.P. LAW BOC
PROPERTY
machines owned by the owner of a
garment factory)
Note: Vessels are considered as
movables, although they partake the
nature of real property, in view of its
importance in the world of commerce
[Rubiso v. Rivera, G.R. No. L-11407
(1917)].)
Requisites
a. Must be machinery, receptacles,
instruments, or implements
b. Placed by the owner or the tenant
(as agent);
c. The
machine,
receptacle,
instrument, implement must also
be essential to the business (tend
directly to meet the needs of
industry or work) in order to be
considered realty. [Mindanao Bus
Co. v City Assessor, G.R. No. L17870 (1962)]
CIVIL LAW
d. BY ANALOGY [Par. 10]: Contracts
for public works, servitudes, other
real
rights
over
immovable
property e.g. usufruct and lease of
real property for a period of 1 year,
and registered.
2. Movables [Art. 416, 417, CC]
Examples:
Gasoline
station
equipment and machinery, for
without them, the gas station would
be useless [Caltex Phils. v. Central
Board of Assessment Appeals, 114
SCRA
296];
machines
for
chocolate-making industry [Serg
Product, Inc v. PCI Leasing and
Finance Inc., 338 SCRA 499];
sawmill machineries in a sawmill
company [Ago v. Court of Appeals,
6 SCRA 1962].
Note: The moment they are separated,
(from the immovable or from the
industry or work in which they are
utilized) they revert to being movables.
3. Animal houses, etc. [415 (6)]
Requisites
a. Placed by the owner or the
tenant (as agent);
b. With the intention of permanent
attachment;
c. Forming a permanent part of
the immovable.
4. Docks and structures which, though
floating, are intended by their nature
and object to remain at a fixed place on
a river, lake, or coast (need not be
placed by owner of land) [415 (9)]
Page 129 of 532
a. Everything not included in Art. 415
(by exclusion);
b. All things that can be transported
from one place to another without
substantial injury to the immovable to
which it is attached (by description)
Unless expressly included in Art. 415
(Test by Exclusion is Superior)
c. Real property which by any special
provision of law is considered as a
movable
d. FORCES OF NATURE brought under
the control of science (e.g. electricity,
gas, heat, oxygen)
e. OBLIGATIONS AND ACTIONS which
have for their object movables or
demandable sums (i.e. any credit)
f. SHARES OF STOCK of agricultural,
commercial and industrial entities,
although they may have real estate
(e.g. stock certificates of a corporation)
g. OTHER MOVABLES:
1. Cultural properties under R.A.
9846 as amended by P.D. 374, like
old buildings, shrines, documents
considered antiques, relics, or
artifacts etc.
2. A concession granted to a private
person with the right of usufruct in
a building erected on a lot
belonging to the municipality is a
personal property [Tufexis v.
U.P. LAW BOC
PROPERTY
Olaguera and Municipal Council of
Guinobatan, 32 Phil. 654]
B. OWNERSHIP
RIGHTS OF AN OWNER IN GENERAL
1. Jus Possidendi – the right to possess
2. Jus Fruendi – the right to enjoy the fruits
(natural, industrial, and civil)
3. Jus Utendi – the right to use and enjoy
4. Jus Acessiones – the right to accessories
5. Jus Abutendi – the right to abuse or to
consume
6. Jus Disponendi – the right to dispose
SUMMARY OF LIMITATIONS ON OWNER
3. Imposed by the state – Eminent domain,
taxation, and police power
4. Imposed by the owner himself
5. Other limitations like nuisance, easements,
state of necessity, mortgages, and other
security arrangements
6. Cannot make use of the thing in such
manner as to injure the rights of a third
person [Art. 431, CC]
7. Doctrine of state of necessity [Art. 432, CC]
CIVIL LAW
E incumbit probatio qui dicit, non qui negat:
“He who asserts, not he who denies, must
prove.”
Accion Publiciana
An action for the recovery of real right of
possession of real property (possession de
jure).
Note: Actions for ejectment not filed within one
year must be filed as accion publiciana.
Accion Interdictal - Action for Ejectment
A summary action for recovery of actual,
material or de facto physical possession
through an action for forcible entry or unlawful
detainer. It must be filed in the MTC or MeTC.
Lawful
deprived
FISTS:
a.
b.
c.
d.
e.
1. Bundle of rights
a. Actions to recover ownership and
possession of real property and its
distinctions
Accion Reivindicatoria
• An action to recover ownership of and
dominion over real property. It includes, but
is not limited to, possession.
• It must be filed in the RTC or the MTC,
depending on the assessed value (RTC, if
the value is more than P20,000 and is
outside Metro Manila; or the property is
within Metro Manila and its assessed value
exceeds P50,000. If the aforementioned
conditions are not met, then at the MTC.).
Unlawful
Detainer
Possessor refused
possessor to vacate upon
through demand by owner
Forcible Entry
Force
Intimidation
Strategy
Threats, and
Stealth
Period to Bring Action:
1
year
from
dispossession (force,
intimidation, threats) or
from knowledge of
dispossession
(strategy, stealth)
Note:
Legal
possession
(by
permission/
tolerance)
becomes unlawful
upon failure to
vacate
Period to Bring
Action: 1 year
from last demand
to vacate.
b. Actions for recovery of possession
of movable property
Replevin For manual delivery of movable
property, for either ownership or possession
Requisites [Art. 434, CC]
a. Property must be identified; and
b. Plaintiff must rely on the strength of his title
Page 130 of 532
U.P. LAW BOC
PROPERTY
CIVIL LAW
2. Distinction between real and
personal rights
3. Modes
of
Ownership
a. Real rights
See Section J. Modes of Acquiring Ownership.
Rights that confer upon its holder an
autonomous power to derive directly from a
thing
certain
economic
advantages
independently of whoever the possessor of the
thing.
In real rights, (1) there is a definite subject who
has a right against persons as an indefinite
passive subject, (2) directed against the whole
world, (3) the object is a corporeal thing in most
instances, and (4) it is extinguished by
destruction or loss of the thing.
The number of real rights is an open
classification:
a. Ownership
b. Real right of Possession
c. Usufruct
d. Easement
e. Recorded lease
f. Real Estate Mortgage
g. Chattel Mortgage
h. Pledge
i. Antichresis
j. Retention
k. Pre-emption
l. Redemption
m. Stewardship
n. Certificate of Ancestral Domain Title;
Certificate of Ancestral Domain Claims in
the IPRA Law
b. Personal rights
Rights of a person to demand from another as
a definite passive subject, the fulfillment of a
prestation to give, to do or not to do.
Acquiring
4. Limitations of Ownership
a. General Limitations
1. Taxation
2. Eminent domain
3. Police power
b. Specific Limitations
1. Legal Servitudes [Arts. 2191, 677-679,
670, 644, 666, 684-687, 676, 649, 637,
652, CC]
Once requisites are satisfied, the servient
owner may ask the Court to declare the
existence of an easement. (e.g. Easement
of Right of Way, Easement of Light and
View etc.)
2. Must not injure the rights of a third
person (Sic Utere Tuo Ut Alienum Non
Laedas) [Art. 431, CC]
3. Actions in a 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. [Art. 432, CC]
4. Nuisance
A nuisance is any act, omission,
establishment, business, condition of
property, or anything else which: (1) injures
or endangers the health or safety of others;
(2) annoys or offends the senses; (3)
shocks, defies or disregards decency or
morality; (4) obstructs or interferes with the
free passage of any public highway or
street, or any body of water; or (5) hinders
Page 131 of 532
U.P. LAW BOC
PROPERTY
or impairs the use of property. [Art. 694,
CC]
2. Rules of accession
a. FOR IMMOVABLES
5. Limitations imposed by the owner
himself (e.g. voluntary easements)
Valid, provided they are not contrary to law.
6. Limitations imposed by the party
transmitting the property either by the
contract or will (e.g. onerous donations or
easement constituted when dividing one
property)
C. ACCESSION
Accession – the right by virtue of which the
owner of a thing becomes the owner of
everything that is produced thereby, or which is
incorporated or attached thereto, either
naturally or artificially. [Art. 440, CC]
Not a mode of acquiring property; it does not
depend upon a new title.
1. Right to hidden treasure
Definition: Any hidden and unknown deposit
of money, jewelry, or other precious objects,
the lawful ownership of which does not appear.
[Art. 439, CC]
General Rule: Belongs to the owner of the
land, building, or other property on which it is
found. [Art. 438, CC]
Exceptions
• If discovery made on property of
another, the State, or any of its
subdivisions AND by chance: one-half
shall be allowed to the finder
• If finder is a trespasser: he shall not be
entitled to any
• If the things found be of interest to
science or the arts: State may acquire
them at their just price, which shall be
divided in conformity with rule stated
CIVIL LAW
i.
ACCESSION DISCRETA
To the owner belongs:
(1) The natural fruits;
(2) The industrial fruits;
(3) The Civil fruits. [Art. 441, CC]
General Rule and Exceptions
General Rule: To the owner of the principal
belongs the natural, industrial, and civil fruits.
Exceptions:
• Possession in good faith: the possessor
is entitled to the fruits received before the
possession is legally interrupted [Art. 526,
CC]
• Usufruct, fruits belong to the usufructuary.
[Art. 556, CC]
• Lease, fruits belong to the lessee in civil
law lease of agricultural land; lessor gets
rentals as civil fruits
• Antichresis [Art. 2132, CC]
Kinds of fruits
1. Natural – spontaneous products of the soil
and the young, and other products of
animals. [Art. 442(1), CC]
Partus sequitur ventrem: To the owner of
female animals would also belong the
young of such animals although this cannot
apply when the owner mixes his cattle with
those of another and they interbreed, thus
co-ownership is applied. [Siari Valley
Estate v. Lucasan, G.R. No. L-13281
(1960)].
2. Industrial – Fruits produced by the lands
of any kind through cultivation of labor [Art.
442 (2), CC]
3. Civil – Rents of buildings, price of leases
of lands and other property and the amount
of perpetual or life annuities or other similar
income [Art. 442 (3), CC]
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Principles Applicable to Accession Discreta
a. Time of Accrual depending on kind:
i. Annuals: from the time seedlings
appear on the ground.
ii. Perennials: from the time fruits
actually appear on the plants.
iii. Young of animals: from the time they
are in the womb, although unborn –
beginning of maximum ordinary
period of gestation.
iv. Fowls: from the time of incubation.
b. Pay expenses to third person possessor in
good faith - He who receives the fruits has
the obligation to pay the expenses incurred
by a third person in the production,
gathering and preservation of the fruits.
[Art. 443, CC]
i. Exception: Owner does not have to
pay if land is recovered before
gathering from a possessor in bad
faith.
ii. But if owner recovers land from
possessor in bad faith, he may choose
to acquire the land and he can make
the possessor, builder, planter, sower
account for the fruits that have been
gathered, with the obligation to deduct
the
expenses
for
producing,
harvesting and preservation of the
fruits.
ii.
CIVIL LAW
Presumptions
• All works, sowing and planting are
presumed made by the owner and at his
expense, unless the contrary is proved.
[Art. 446, CC]
● The incorporation must be done in such a
manner that to separate the principal from
the accessory would result in injury to both
principal and accessory.
● The party in bad faith is always liable for
damages.
● When both parties are in bad faith, they are
considered to be in good faith.
● The owner of the principal thing owns the
natural, industrial and civil fruits, except
when the following persons exist:
a. Possessor in Good Faith
b. Usufructuary
c. Lessee
d. Antichretic creditor
Bad Faith
On the part of the landowner
Whenever the building, planting or sowing was
done with his knowledge and without
opposition on his part. [Art. 453(2), CC]
On the part of the owner of materials
Allows the use of his materials without protest.
On the part of the builder, planter and sower
One who has knowledge of any flaw or defect
in his title or mode of acquisition [Art. 526, CC]
ACCESSION CONTINUA
Right pertaining to the owner of a thing over
everything that is incorporated or attached
thereto either naturally or artificially (by
external forces). [Art. 440, CC]
ARTIFICIALLY/INDUSTRIALLY
INCORPORATED [Arts. 445-456, CC]
Building, planting or sowing on land owned by
another (over immovables).
General rule: Whatever is built, planted or
sown on the land of another and the
improvements or repairs made thereon, belong
to the owner of the land, subject to the rules on
BPS. [Art. 445, CC]
He is a possessor in bad faith at the time of
BPS if he knows that:
a. He does not have title to the land, and
thus, has no right to build thereon; or
b. He has no permission to build, plant, or
sow on the land which he possesses
but does not own.
Note: Bad faith leads to liability for damages
and the loss of the works or the improvement
without right to indemnity. [Art. 449, CC]
If both parties are in bad faith, then treat
them as if they are both in good faith. [Art.
453(1), CC]
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U.P. LAW BOC
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Rules (see end of Section for Summary of
Rules)
1. Case where the landowner differs
from the owner of materials [Art.
447, CC]
Situation #1: Both the landowner (LO) and
the owner of materials (OM) are in GF
Rights: Shall own what is built,
planted,
sown
(materials/improvements).
[Accessio cedit principali]
LO in GF
Liabilities: shall pay for the
value of the materials (no one
shall be unjustly enriched at
the expense of another)
Rights:
a. Limited right of removal
(can only be resorted to if
no injury can be inflicted
OM in GF
on the work constructed);
or
b. Right to reimbursement
for the value of materials.
Situation #2: Both the LO and OM are in BF
Parties will be treated as
Both LO and though both acted in GF.
OM in BF
[Art. 453, CC]
Situation #3: LO in BF, while OM in GF
Rights: To own what is built,
planted,
sown
(materials/improvements).
LO in BF
Liabilities: shall pay for the
value of the materials, as well
as pay OM indemnity for
damages.
Note: Subject to OM’s
absolute right of removal.
CIVIL LAW
OM in GF
Rights:
a. Absolute right of removal
+ Right to indemnification
for damages; OR
b. Right to reimbursement
for the value of materials +
Right to indemnification
for damages.
Situation #4: LO in GF, while OM in BF
Rights:
a. Right to acquire the
improvements
without
paying indemnity.
LO in GF
b. Right to acquire indemnity
for damages if there are
hidden defects known to
OM.
Lose materials without right to
OM in BF
indemnity
(no
right
of
removal).
2. Cases where one builds, plants, or
sows on land owned by another
(BPS v. LO) [Arts. 448-454, CC]
Situation #1: BPS in GF [Art. 448, CC]
Options:
a. Acquire
improvements
after paying BPS for their
value; or
b. Oblige the one who built
Landowner
or planted to pay the price
[Art. 446,
of the land unless its
CC]
value is considerably
more than that of the
Note:
building or trees, and the
Option is
one who sowed, the
given
proper rent.
solely
to c. If
the
value
is
LO, GF of
considerably more, then
BPS
is
the court can force the
immaterial
parties to enter into a
forced lease. [Art. 448,
CC]
Note: The difference between
a BUILDER and a SOWER.
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●
●
●
BPS in GF
Generally, has right to
reimbursement for the
improvement.
Pending LO’s payment,
has right to retention of
the land (during this
period, BPS is not
required to pay rent).
Whatever fruits (rents) he
receives during the period
of retention must be
deducted from whatever
indemnity is due to him;
and in case it exceeds the
value of the indemnity, the
excess shall be returned
to the owner of the land.
[de Leon, citing Mendoza
v. De Guzman, G.R. No.
L-28721 (1928)]
Note: Landowner can be forced to choose
under pain of direct contempt, or court can
choose for him.
Note: In every case, the BPS is entitled to
reimbursement of necessary expenses for the
preservation of the land. [Art. 452, CC]
CIVIL LAW
BPS in GF
Situation #4: LO in GF, while BPS in BF
[Arts. 449-451, CC]
Right to collect damages in
any case AND option to:
a. Acquire
improvements
without paying indemnity if
the improvements are still
standing on the land;
b. Sell the land to BP or
collect rent from the sower
unless value of the
improvements in which
LO in GF
case there will be a forced
lease; or
c. Order
demolition
of
improvements
or
restoration of land to its
former condition at the
expense of the BPS.
Situation #2: Both the LO and BPS are in BF
Parties will be treated as
Both
LO
though both acted in GF, so
and BPS in
apply Art. 446. [Art. 453, CC]
BF
Situation #3: LO in BF, while BPS in GF
a. Must indemnify BPS for
the improvements AND
pay damages as if he
himself did the BPS.
LO in BF
b. Has no option to sell the
land and cannot compel
BPS to buy the land
without
the
latter’s
consent.
Rights:
a. Absolute right of removal
+ Right to indemnification
for damages; OR
b. Right to reimbursement
for the value of materials +
Right to indemnification
for damages.
BPS in BF
Landowner must STILL pay
for necessary expenses for
preservation.
a. Pay
damages
to
landowner.
b. Lose materials without
right to indemnity.
c. No right to refuse to buy
the land.
d. Recover
necessary
expenses for preservation
of land.
3. Case where LO, BPS, and OM are
different persons [Art. 455, CC]
Note: If there are 3 parties in BPS, solve the
problem by considering the options open to the
landowner vis-à-vis BPS depending on their
good faith or bad faith; apply Art. 455 re: one
who acted in good faith. Art. 455 shall not apply
Page 135 of 532
U.P. LAW BOC
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CIVIL LAW
if the owner makes use of the right granted by
Art. 450.
NATURALLY INCORPORATED [Arts. 457465, CC]
GENERAL RULES [de Leon]
a. OM in GF entitled to reimbursement for the
value of the materials used (regardless of
the GF or BF of the LO and/or the BPS).
a. Alluvium [Art. 457, CC]
PRIMARILY, from the BPS. If the BPS be
insolvent, then the LO shall be subsidiarily
liable to the OM. [Art. 455(1), CC]
Requisites for the LO’s subsidiary
liability
• The OM acted in GF;
• BPS is insolvent; and
• The LO appropriates the accession to
himself.
b. The BPS who has paid the OM may seek
reimbursement from the LO (value of
materials + labor). [Art. 455(2), CC]
Requisites
• The BPS acted in GF; and
• The LO appropriates the improvement
to himself.
c. if only the OM is in BF, he loses his
materials, as well as his right to indemnity.
He also becomes liable for damages. [Arts.
449, 451, CC]
d. If only the BPS acted in BF, he becomes
liable to the OM for the value of the
materials + damages. Should he become
insolvent, the LO shall pay for the value of
the materials but he will not be liable for
damages. Additionally, he shall still be
liable to the LO. [Arts. 450-451, CC]
e. If only the LO acted in GF, he can exercise
any of his options under Arts. 449 and 450,
both having an additional right to ask for
damages [Art. 451, CC]. He shall also not
be subsidiarily liable to the OM.
f.
If ALL acted in BF, they shall be treated as
though all of them acted in GF. [Art. 453,
CC]
Soil is gradually deposited on banks adjoining
the river.
Requisites [GAC – Gradual, Adjacent,
Currents]
1. Deposit of soil or sediment is gradual and
imperceptible;
2. As a result of the action of the currents of
the waters of the river and should have no
human intervention;
3. Land where the accretion takes place is
adjacent to the banks of the rivers
(RIPARIAN LAND); and
4. Deemed to Exist: When the deposit of the
sediment has reached a level higher than
the highest level of the water during the
year, i.e. higher than the riverbank.
[Meneses v. CA, G.R. No. 82220 (1995)]
Effect: The riparian owner automatically owns
the alluvion but it does not automatically
become registered property in his name.
[Grande v. CA, G.R. No. L-17652 (1962)]
Rationale: To compensate the owners of the
land from forces of nature and to encourage
riparian owners to cultivate and enrich the land.
Exception: Deposits due to human action or
intervention and abrupt or unanticipated
flooding brought about by extreme weather
conditions.
Note: Action of the sea over the estate because
of the tide and which results to a strip of land
becomes foreshore land and passes to the
realm of the public domain. [Republic v. Court
of Appeals, 281 SCRA 639]
b. Avulsion [Art. 459, CC]
A known portion of land is segregated from one
estate by the forceful current of a river, creek
or torrent and transferred to another.
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U.P. LAW BOC
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Requisites: [ACFI – Abrupt, caused by Current
or other Forces of nature, Identifiable]
1. Segregation and transfer of land is sudden
and abrupt;
2. Caused by the current of the river, creek or
torrent; and
3. The portion of land transported must be
known and identifiable; or
Effect: The ownership of the detached
property is retained by the owner provided that
he removes the same within 2 years from the
detachment. [Art. 459, CC]
c. Uprooted Trees [Art. 460, CC]
In case of uprooted trees, the owner retains
ownership if he makes a claim within 6 months.
This refers only to uprooted trees and does not
include trees which remain planted on a known
portion of land carried by the force of the
waters. In this latter case, the trees are
regarded as accessions of the land through
gradual changes in the course of adjoining
stream. [Payatas v. Tuazon, G.R. No. L-30067
(1929)]
d. Change Of Course Of River [Arts. 461462, CC]
Requisites:
1. Change in the natural course of the waters
of the river;
2. Such change causes the abandonment of
the riverbeds;
“Natural Bed”: ground covered by its
waters during the highest floods. [Binalay
v. Manalo, G.R. No. 92161 (1991)]
3. Such change is sudden or abrupt; and
4. Change is permanent.
bed (the old property of the owner) [Art.
461, CC]
c. The new bed opened by the river on a
private estate shall become of public
dominion. [Art. 462, CC]
Exceptions:
a. Where the river simply dries up, the
abandoned riverbed belongs to the State
because there are no persons whose lands
are occupied by the waters of the river. It is
still public dominion.
b. Where the government reverts back the
course of the river, there is no
compensation.
Note: Sec. 58 of the Water Code (PD 1067)
provides that when a river or stream suddenly
changes its course to traverse private lands,
the owners of the affected lands may not
compel the government to restore the river to
its former river bed, nor can they restrain the
government from taking steps to revert the river
or stream to its former course. The owners of
the land thus affected are not entitled to
compensation for any damage sustained
thereby. However, the former owners of the
new bed shall be the owners of the abandoned
bed in proportion to the area lost by it.
e. Division of River into Branches [Art.
463, CC]
Whenever the current of a river divides itself
into branches, leaving a piece of land or part
thereof isolated, the owner of the land retains
his ownership and there is no accession. He
also retains it if a portion of land is separated
from the estate by the current.
f.
Effects
a. Owners whose lands are occupied by the
new course of the river automatically (ipso
facto) become owners of the old bed, in
proportion to the area they lost [Art. 461,
CC]
b. Owners of the lands adjoining the old bed
are given the right to acquire the same by
paying the value of the land. Not exceeding
the value of the land invaded by the new
CIVIL LAW
Formation of Islands [Arts. 464-465, CC]
They belong to the State if [Art. 464]:
a. Formed on the seas within the jurisdiction
of the Philippines;
b. Formed on lakes; or
c. Formed on navigable or floatable rivers:
• Capable of affording a channel or
passage for ships and vessels;
Page 137 of 532
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•
•
PROPERTY
Must be sufficient not only to float
bancas and light boats, but also bigger
watercraft;
Deep enough to allow unobstructed
movements of ships and vessels.
Test of whether river is navigable: Whether it
can be used as a highway of commerce, trade
and travel.
They belong to the private owner of the
separated land if [Art. 463]:
The island is formed in a place not mentioned
in Art. 464.
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.
They belong to the owners of the nearest
margins or banks if [Art. 465]:
a. Formed through successive accumulation
of alluvial deposits; and
b. On non-navigable and non-floatable rivers.
1. Adjunction
Process by virtue of which 2 movable things
belonging to different owners are united in such
a way that they form a single object.
Requisites
1. There are 2 movables belonging to 2
different owners;
2. They are united in such a way that they
form single object; and
3. They are so inseparable that their
separation would impair their nature or
result in substantial injury to either
component.
Kinds
a. Inclusion (engraftment)
b. Soldering (adjoining two or more metals)
c. Ferruminatio (same metals)
d. Plumbatura (different metals)
e. Escritura (writing)
f. Pintura (painting)
g. Weaving
2. Ownership of New
Formed by Adjunction
Note: If island is in the middle of the river, divide
longitudinally in half. If nearer to one margin or
bank, to the nearer riparian owner.
Note: If a landowner allows the sea or a lake to
eat up his land completely, it is a case of
natural expropriation and if the land later
reappears, he does not regain ownership
thereof. [Republic v. Cabangis, G.R. No. L28379 (1929)]
b. FOR MOVABLES
i.
Conjunction/Adjunction
[Arts. 466-471, 475, CC]
Definition: There is adjunction or conjunction
when 2 movables belonging to different owners
are attached to each other such that separation
is without injury.
General Rule: Accession only exists only if
separation is not feasible. Otherwise,
separation may be demanded (Civil Code Art
469)
CIVIL LAW
Object
Owner of Principal Object
Good Faith: Acquires the thing but with the duty
to indemnify the owner of the accessory [Article
466].
Owner of Accessory
Good Faith: Has a right to demand separation
even though there may be damage if the
accessory is more valuable.
If Owner of Principal Object in Bad Faith
Demand value of the accessory plus damages,
OR Demand separation even if the principal
will be destroyed plus damages [par. 2,
Art.470]
If Owner of Accessory in Bad Faith
Loses the thing plus is liable for damages
[Article 470]If both are in bad faith, treat as if
both are in good faith [Article 453 by analogy].
Page 138 of 532
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Rules in Determination of the Principal
Thing [Art. 467-468, CC]
In the order of application, the principal thing is:
● That to which the other has been united as
an ornament or for its use or perfection
(“Rule of importance and purpose”)
● The thing of greater value.
● The thing of greater volume.
● The that of greater merits, taking into
consideration all the pertinent legal
provisions, as well as the comparative
merits, utility and volume of their respective
things. [Manresa]
Exception: In painting and sculpture, writings,
printed matter, engraving and lithographs the
MATERIAL (board, metal, stone, canvas,
paper or parchment) which the writer/artist
used SHALL BE DEEMED THE ACCESSORY
THING in all cases. [Art. 468, CC]
When separation allowed
• When separation will not cause any injury,
the respective owners can demand
separation [Art. 469, CC]; or
• When the accessory is more precious:
1. Owner of accessory may demand
separationeven
though
the
principal thing may suffer [Art. 469,
CC].
2. Owner who caused the union shall
bear the expenses for separation
even if he acted in good faith.
● When the any of the owners are in bad
faith:
1. If owner of accessory in BF, then
he shall lose the accessory and pay
damages to owner of principal.
2. If owner of principal in BF, then the
owner of the accessory shall
choose between paying the value
of the principal or have the
accessory separated from the
principal even if the principal thing
is destroyed and be paid damages.
ii.
CIVIL LAW
1. Definition
•
•
•
Mixture: the union of materials belonging
to different owners where the components
lose their identity
Commixtion: mixture of solid things
Confusion: mixture of liquid things or
mixture of gases
2. Rules [Arts. 472 – 473, CC]:
a. If caused by the will of the parties or by
chance, or by the will of one party but is in
good faith, then there will be a coownership based on proportional value (not
volume).
b. If caused by the will of one party in bad
faith, then the party in bad faith loses the
entire thing and must pay indemnity for
damages.
Notes:
• Good faith in accession does not
necessarily exclude negligence, which
gives rise to damages. [Art. 456, CC by
analogy]
• Also, there is a co-ownership.
iii.
Specification [NCC 474-475]
1. Definition [Art. 474, CC]
Takes place when the work of a person is done
on the material of another, and such material,
in consequence of the work itself, undergoes a
transformation.
It is the transformation of another’s material by
the application of labor, into a thing of a
different kind.
Examples: Turning grapes into wine, flour into
bread
2. Rules
Commixtion/Confusion
[Arts. 427-423. 475, CC]
a. Worker/Maker in Good Faith [Art.
474, CC]
General Rule: Worker becomes the owner but
must indemnify the owner (who was also in
Page 139 of 532
U.P. LAW BOC
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good faith) for the value of the material. [Art.
474 (1), CC]
General Rule: Owner has two options
• Owner may appropriate the new thing to
himself without paying the maker
Exception: If the material is more valuable
than the new thing, the owner of the material
may choose [Art. 474 (2), CC]:
● To take the new thing but must pay for the
value of the work; or
● To demand indemnity for the value of the
material.
•
If the owner was in bad faith, the maker
may appropriate the new thing without
paying the owner, or require the owner to
pay him the value of the thing or his work,
with right to indemnity.
b. Worker/Maker in bad faith [Art. 474
(3), CC]
CIVIL LAW
Exception: This option is not available in
case the value of the work, for artistic or
scientific reasons, is considerably more
than that of the material, in which case the
owner of the material can ask for the
payment of the material and damages.
Owner may demand the value of the
material plus damages
c. Worker/Maker made use of material
with consent and without objection
of owner
Rights shall be determined as though both
acted in good faith. [Apply Art. 474 (1), CC]
Note: For the right of accession with regards to
moveable property, sentimental value is duly
appreciated. [Art. 476, CC]
SUMMARY OF BPS/LO/OM RULES
Landowner
a. Right to acquire
improvements and pay
indemnity to BPS; subsidiary
liability to OM
b. Sell the land to BP except if
the value of the land is
considerably more; or
c. Rent to S
LO in GF
a. Right to acquire
improvements and pay
indemnity to BPS;
b. Sell land to BP except if the
value of the land is
considerably more; or
c. Rent to S
LO in GF
Builder/Planter/Sower
ALL Acted in Good Faith
a. Right of retention until
necessary and useful
expenses are paid
b. To pay value of materials
to OM
BPS in GF
a. Right of retention until
necessary and useful
expenses are paid
b. Keep improvements
without indemnity to OM
and collect damages from
him
BPS in BF
Page 140 of 532
Owner of Materials
a. Collect value of material
primarily from BPS and
subsidiarily to landowner
if BPS is insolvent; and
b. Limited right of removal
(if the removal will not
cause any injury)
OM in BF
a. Lose the material
without right to indemnity
b. Must pay for damages to
BPS
OM in BF
U.P. LAW BOC
PROPERTY
a. Right to collect damages from
BPS in any case and the
option to either
1. Acquire improvements w/o
paying for indemnity;
2. Demolition or restoration; or
3. Sell to BP, or to rent to
sower
b. Pay necessary expenses to
BPS
Recover necessary expenses
for preservation of land from
LO unless LO sells land
CIVIL LAW
a. Recover from BPS (as if
both are in GF)
b. If BPS acquires
improvements, remove
materials if feasible w/o
injury
c. No action against LO but
may be liable to LO for
consequential damages
ALL Acted in Bad Faith
Same as when all acted in GF under Art. 453
a.
b.
a.
b.
LO in BF
Acquire improvement after
paying indemnity and
damages to BPS unless the
latter decides to remove
Subsidiarily liable to OM for
value of materials if he
acquires improvements and
pays damages to BPS; no
subsidiary liability if BPS
chooses removal in any
event.
LO in BF
Right to acquire
improvements and pay
indemnity to BPS; subsidiarily
liable to OM
Has option to:
1. Sell the land to BP except
if the value of the land is
considerably more; or
2. Rent to S
LO in GF
LO has right to collect damages
from BPS in any case and the
option to either:
a. Acquire improvements w/o
paying for indemnity;
b. Demolition or restoration; or
c. Sell to BP or rent to S
Pay necessary expenses to BPS
BPS in GF
a. May remove
improvements
b. Be indemnified for
damages in any event
c. Pay OM the value of the
materials
OM in GF
a. Remove materials at any
event
b. Collect value of
materials from BPS;
subsidiarily from LO, if
LO is made to pay for
improvements and
damages
BPS in BF
a. No right of retention
b. Pay value of materials to
OM and pay him damages
OM in GF
a. Collect value of
materials primarily from
BPS and subsidiarily
from LO if LO acquires
the improvements
b. Collect damages from
BPS
c. Absolute right to remove
materials in any event (if
BPS acquires
improvements)
BPS in BF
a. Right to necessary
expenses
b. Pay value of materials to
OM
c. Pay damages to OM/LO
OM in GF
a. Collect value of
materials primarily from
BPS and subsidiarily
from LO
b. Collect damages from
BPS
c. If BPS acquires
improvements, absolute
right of removal in any
event
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LO in BF
Acquire improvements and pay
indemnity and damages to BPS
unless the latter decides to
remove materials
PROPERTY
BPS in GF
b. Receive indemnity for
damages
c. Absolute right of
removal of
improvements in any
event
D. QUIETING OF TITLE
Quieting of Title – remedy for the removal of
anycloud of doubt or uncertainty with respect to
real property
1. Requisites
a. Plaintiff or complainant has a legal or an
equitable title to or interest in the real
property subject of the action; and [Art.
477, CC]
b. The deed, claim, encumbrance or
proceeding claimed to be casting a cloud
on his title must be shown to be in fact
invalid or inoperative despite its prima facie
appearance of validity or legal efficacy.
Such cloud must be due to some instrument,
record, claim, encumbrance or proceeding
which is apparently valid but is in truth invalid,
ineffective, voidable or unenforceable, and is
prejudicial to the plaintiff’s title. Plaintiff must
return to the defendant all benefits he may
have received from the latter, or reimburse him
for expenses that may have redounded to his
benefit. [Art. 479, CC]
Note: An action to quiet title applies only to real
property; except to some personal properties
like vessels or stock certificates which partake
of the nature of real property, or when they are
considered as real property because of special
registration requirements [De Leon].
Who may file [Sec. 1, Rule 63, ROC]
Any person interested under a deed, will,
contract or other written instrument, or whose
rights are affected by a statute, executive order
or regulation, ordinance, or any other
CIVIL LAW
OM in BF
a. Right to indemnity
b. Loses right to the
materials
governmental regulation may, before breach or
violation thereof, bring an action in the
appropriate Regional Trial Court to determine
any question of construction or validity arising,
and for a declaration of his rights or duties,
thereunder. [Bar Matter No. 803, 17 February
1998]
An action for the reformation of an instrument,
to quiet title to real property or remove clouds
therefrom, or to consolidate ownership under
Article 1607 of the Civil Code, may be brought
under this Rule. [Sec. 1, Rule 63, ROC]
2. Distinctions between quieting
title and removing/preventing
a cloud
Action to quiet title
A common law remedy for the removal of any
cloud upon a doubt or uncertainty with respect
to title to real property [Paras]
● A cloud on title is a semblance of title
(legal or equitable) which legally appears
valid but is, in fact, unfounded.
o Legal title: the party is the
registered owner of the property
o Equitable title: the person has the
beneficial ownership of the
property
● It is in the nature of a quasi in rem action.
Note: Some commentaries provide that an
action to quiet title is different from removing a
cloud.
The purpose of quieting is to put a stop to
vexatious litigation in relation to the property.
Removing a cloud pertains to the cancellation,
delivery, removal or release of an
encumbrance which can be considered a claim
re: plaintiff’s title.
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CIVIL LAW
ACTION TO QUIET TITLE
In General
Applicable to real property, subject to certain exceptions
a. To declare the invalidity of a claim on a title or the invalidity of an interest
in property
b. To free the plaintiff and all those claiming under him from any hostile
claim on the property
Purpose
Requisites
When
Not
Applicable:
Notes:
● To prevent multiplicity of suits, an action for quieting of title takes
precedence over an ejectment case. [Luzuriaga v. Adil, G.R. No. L-58912
(1985)]
● Pending an action for quieting of title, possession of actual possessor must
be respected until the case is decided on the merits. [Balbecino v. Judge
Ortega, G.R. No. L-14231 (1962)]
a. Claimant must show that there is an:
1.
Instrument;
2. record;
3. Claim;
4. encumbrance; or
5. proceeding,
b.
Which constitutes or casts a
1. cloud;
2. doubt;
3. question; or
4. shadow,
c. upon the owner's title to or interest in real property [Art. 476, CC]
a.
To questions involving interpretation of documents;
b. To mere written or oral assertions of claim
● UNLESS made in a legal proceeding, or asserts that an instrument or
entry in plaintiff’s favor is not what it purports to be;
c. To boundary disputes;
d. To deeds by strangers to the title;
● UNLESS purporting to convey the property of the plaintiff;
e. To instruments invalid on their face; or
f. Where the validity of the instrument involves a pure question of law.
ACTION TO PREVENT A CLOUD
“Cloud on title” means a semblance of title, either legal or equitable, or a claim or a right in
real property, appearing in some legal form but which is, in fact, invalid or which would be
inequitable to enforce.
Legal title: the party is the registered owner of the property.
Legal Title v. Equitable Title Equitable title: the person has the beneficial ownership of the
property.
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CIVIL LAW
a.
There is a claim emerging by reason of:
1.
Any instrument e.g. a contract, or any deed of conveyance,
mortgage, assignment, waiver, etc. covering the property
concerned;
2.
Any record, claim, encumbrance e.g. an attachment, lien,
inscription, adverse claim, lis pendens, on a title; or
3.
Any proceeding e.g. an extrajudicial partition of property.
A Cloud Exists If [Art. 476]:
b.
The claim should appear valid or effective and extraneous
evidence is needed to prove their validity or invalidity;
Test: Would the owner of the property in an action for ejectment
brought by the adverse party be required to offer evidence to defeat
a recovery?
As a general rule, a cloud is not created by mere verbal or parole
assertion of ownership or an interest in property.
c.
Such instrument, etc. is, in truth and in fact, invalid,
ineffective, voidable, or unenforceable, or has been extinguished or
terminated, or has been barred by extinctive prescription; and
d.
Such instrument, etc. may be prejudicial to the true owner
or possessor.
a.
To questions involving interpretation of documents;
b.
To mere written or oral assertions of claim, EXCEPT IF
made in a legal proceeding or asserts that an instrument or entry in
plaintiff’s favor is not what it purports to be;
Does Not Cover and Is Not c.
To boundary disputes;
Applicable To:
d.
To deeds by strangers to the title UNLESS purporting to
convey the property of the plaintiff;
e.
To instruments invalid on their face; or
f.
Where the validity of the instrument involves a pure question
of law
Requisites
a. Plaintiff has a title to a real property or interest therein;
b. Defendant is bent on creating a cloud on the title or interest
therein. The danger must not be merely speculative or
imaginary but imminent; and
c. Unless the defendant is restrained or stopped, the title or
interest of the plaintiff will be prejudiced or adversely
affected.
3. Prescription/non-prescription
of action
a. When the plaintiff is in possession of the
property, the action to quiet title does not
prescribe.
b. When the plaintiff is NOT in possession of
the real property, the action to quiet title
may prescribe depending upon the right of
action filed by the plaintiff:
1. 10 years – if plaintiff is a possessor
with a real right, i.e. accion
publiciana, or if action is for
reconveyance on the basis of a
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constructive trust under Art. 1456,
CC
2. 30 years – if plaintiff is the owner of
real property
•
Note: An action to quiet title may be defeated
by a claim of ordinary or extraordinary
acquisitive prescription by the defendant.
•
E. CO-OWNERSHIP
1. Characteristics
ownership
of
Co-ownership is governed by:
• Contracts;
• Special laws; and
• In default of the above, the provisions of the
Civil Code [Art. 484 (2), CC]
Summary of Characteristics
1. There are 2 or more co-owners.
2. There is a single object which is not
materially or physically divided and his
ideal share of the whole.
3. There is no mutual representation by the
co-owners.
4. It exists for the common enjoyment of the
co-owners.
5. It has no distinct legal personality.
6. It is a trust and every co-owner is a trustee
for the rest.
7. 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 on
Co-Ownership.
Limitation
• Each co-owner of realty held pro indiviso
exercises his rights over the whole property
and may use and enjoy the same with no
other limitation than that he shall not
injure the interests of his co-owners.
[Pardell v. Bartolome, G.R. No. L-4656
(1912)]
Rationale: Until a division is actually made,
the respective share of each cannot be
determined, and every co-owner exercises
joint ownership of the pro indiviso property.
[Coja v. CA, 539 SCRA 517]
Use should be in accordance with the
purpose for which it was created or
intended.
Note: The law discourages co-ownerships
among individuals as oftentimes, it results
in inequitable situations. No co-owner can
be compelled to stay in a co-ownership
indefinitely and may insist on a partition of
the common property [Patricio v. Dario,
507 SCRA 438, 2006].
Co-
Definition
There is co-ownership whenever the
ownership of an undivided thing or right
belongs to different persons [Art. 484 (1),
CC]
CIVIL LAW
Co-ownership
Distinguished
from
Partnership
Co-Ownership
Partnership
As to creation
Can be created Can be created only
without formalities of by contract, express
a contract
or implied
As to Juridical Personality
Has
juridical
Has no juridical or
personality distinct
legal personality
from partners
As to Purpose
Purpose is collective
Purpose is to obtain
enjoyment of the
profits
thing
As to Disposition of Shares
Consent of other co- Partner needs to be
owners not needed; authorized;
he
transferee
cannot
substitute
automatically
another as a partner
becomes co-owner
in his place
As to Existence of Mutual Agency
A
partner
can
There is no mutual
generally bind the
representation
partnership
As to Effect of Death or Incapacity
Does not result in
Results in dissolution
dissolution
As to Formal Requisites
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PROPERTY
No public instrument
May be made in any
is needed even if the
form except when
object of the coreal
property
is
ownership is a real
contributed
property
As to Agreement on the Period
An agreement to
There
may
be
keep
the
thing
agreement as to a
undivided for
a
definite term without
period of more than
limit set by law
10 years is void
CIVIL LAW
their work or industry shall be governed by
the rules on co-ownership. [Art. 147, FC]
c. Joint Purchase
If two or more persons agree to purchase
property and by common consent the legal title
is taken in the name of one of them for the
benefit of all, a trust is created by force of law
in favor of the others in proportion to the
interest of each. [Art.1452, CC]
2. Sources of Co-ownership
d. Succession
a. Marriage
Where there are two or more heirs, the whole
estate of the decedent is, before its partition,
owned in common by such heirs, subject to
the payment of debts of the deceased. [Art.
1078, CC]
i.
•
•
ii.
•
•
System of Absolute Community
Unless otherwise provided in this
Chapter or in the marriage settlements,
the community property shall consist of
all the property owned by the
spouses at the time of the
celebration of the marriage or
acquired thereafter. [Art, 91, FC]
The administration and enjoyment of
the community property shall belong to
both the spouses jointly. [Art. 96 (1),
FC]
Conjugal Partnership of Gains
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 unless the contrary is proved.
[Art. 116, FC]
The administration and enjoyment of
the conjugal property shall belong to
both spouses jointly. [Art. 124 (1), FC]
b. Cohabitation
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
e. Donation
When a donation is made to several persons
jointly, it is understood to be in equal shares,
and there shall be no right of accretion among
them, unless the donor has otherwise
provided. [Art. 753 (1), CC]
f. Chance
If by the will of the owners two things of the
same or different kinds are mixed, or if the
mixture occurs by chance, and in the latter
case things are not separable without injury,
each owner shall acquire a right
proportional to the part belonging to him,
bearing in mind the value of the things mixed
or confused. [Art. 472, CC]
g. Hidden Treasure
When the discovery is made on the property of
another, or of the State or any of its
subdivisions, and by chance, one-half thereof
shall be allowed to the finder [Art. 438, CC]
h. Easement of Party Wall
The easement of party wall shall be governed
by the provisions of this Title, by the local
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ordinances and customs insofar as they do
not conflict with the same, and by the rules
of co-ownership [Art. 658, CC]
Easement of party ditches in Art. 661:
Ditches or drains opened between two
estates are also presumed as common to
both, if there is no title or sign showing the
contrary.
i. Contract
a. In General
• By agreement of two or more
persons [Art. 494, CC]
b. Universal Partnership
• The property which belonged to
each of their partners at the time of
the constitution of the partnership,
becomes the common property
of all partners, as well as all the
profit which they may acquire
therewith [Art. 1779, CC]
c. Associations
• Associations and societies, whose
articles are kept secret among
members, and wherein any one of
the members may contract in his
own name with third persons, shall
have no juridical personality, and
shall be governed by the
provisions relating to coownership [Art. 1775, CC]
CIVIL LAW
interest in the land on which it is located
and in other common areas of the building.
2. Effect of transfer of a condominium unit:
a. it
shall
include
the
transfer/conveyance
of
the
undivided interest in the common
area or in the membership or
shareholdings in the condominium
corporation
b. With the unit comess an exclusive
easement for the use of the air
space encompassed by the
boundaries of the unit
c. Common areas are held in
common by the unit owners in
equal shares; one for each unit
3. Rights of a condominium owner (subject to
master deed’s limitations):
a. Non-exclusive
easement
for
ingress, egress, and support
through the common areas
b. Right to paint, repaint, tile, wax,
paper or refinish and decorate the
inner surface of the walls, ceilings,
floors,
windows
and
doors
bounding his/her own unit
c. Exclusive right to mortgage,
pledge, or encumber
d. Absolute right to sell or dispose of
his condominium
4. Common areas shall remain undivided and
there shall be no judicial partition subject to
Sec. 8 of the Condominium Law
j. Occupation
3. Rights of Co-owners
Harvesting and fishing: co-ownership by two or
more persons who have seized a res nullius
thing [Art. 713, CC]
a. Right to Share in the Benefits as
Well As the Charges [Art. 485, CC]
i.
k. Condominium (RA 4726)
Condominium Law: co-ownership of the
common areas by holders of units [Sec. 6, RA
4726]
1. Definition of a condominium: Interest in a
real property consisting of a separate
interest in a unit in a residential, industrial
or commercial building and an undivided
Page 147 of 532
Proportionality – The share of the
co-owners shall be proportional to
their respective interests. Any
stipulation to the contrary is void. [Art.
485, par. 1, CC]
ii. Presumption of Equal share – The
portions belonging to the co-owners in
the co-ownership shall be presumed
equal, unless the contrary is proved.
[Art. 485, par. 2, CC]
U.P. LAW BOC
PROPERTY
b. Right to Use the Thing Owned In
Common [Art. 486, CC]
Limitations
1. In accordance with the purpose for which
the co-ownership is intended.
a. The purpose for which the coownership may be changed by
agreement, express or implied
2. In such a way as to not injure the interest
of the co-ownership
3. In such a way as not to prevent the other
co-owners from using it according to their
right.
c. Right to Bring an Action
Ejectment [Art. 487, CC]
in
Actions contemplated: Covers all cases for
recovery of possession (forcible entry, unlawful
detainer, accion publiciana, replevin, accion
reinvidicatoria). Action is considered to be filed
to benefit all the co-owners.
A co-owner may bring such an action without
joining all the other co-owners as co-plaintiffs
because the suit is presumed to have been
filed to benefit his co-owners. If the plaintiff/coowner claims to be the sole owner, the action
should be dismissed. [Adlawan v. Adlawan,
G.R. No. 161919, (2006)]
d. Right to Compel Other Co-Owners
to Contribute to the Expenses of
Preservation and to the Taxes [Art.
488, CC]
General Rule: Each co-owner shall have a
right to compel the other co-owners to
contribute:
1. To the necessary expenses (incurred for
preservation of the thing or right). If
practicable, he must first notify his coowners of the necessity for such repairs.
[Art. 489, CC]
2. To the taxes [Art. 488, CC]
Exception to paying necessary expenses
and taxes: Co-owner no longer has to pay if he
renounces his undivided interest as equivalent
CIVIL LAW
to his share of expenses and taxes. [Art. 488,
CC] This means that his/her renunciation does
not cover all of his/her interest in the property
co-owned.
Exception to Exception: No waiver shall be
made if prejudicial to co-ownership. [Art. 488,
CC]
1. Expenses to improve or embellish the thing
shall be decided upon by a majority as
determined in Art. 492, NCC.
2. As for the expenses for pure luxury or mere
pleasure, these are not refundable for not
serving purposes of preservation. [Art. 548,
CC]
e. Right to Reimbursement for
Necessary Repairs [Art. 488-489,
CC]
General rule: A co-owner has the right to
compel the other co-owners to contribute to the
expenses of preservation, maintenance, or
necessary repairs of the thing or right owned in
common and to the taxes. [Art. 488, CC]
Requirement of notice: If practicable, the coowner must first notify the co-owners of the
necessity for the repairs. [Art. 489, CC]
Exception to the requirement of notice: If
impracticable or where the repairs are very
urgent, and the other co-owners are in remote
places and cannot be reached by an ordinary
means of communication. This means that
his/her renunciation does not cover all of
his/her interest in the property co-owned.
Lack of notice even if practicable: Does not
exempt other co-owners to contribute. The coowner who advanced them has the burden of
proving that they were properly incurred.
When Majority opposes repairs: If necessary,
repairs insisted by once were not done and it
resulted to damages those who made the
opposition shall be responsible for damages.
[Paras quoting 3 Manresa 448].
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f. Right to Oppose Alternations [Art.
491, CC]
General Rule: Unanimous Consent: None of
the co-owners shall, without the consent of the
others, make alterations in the thing owned in
common, even though benefits for all would
result therefrom.
CIVIL LAW
Exception
1. When personal rights are involved; and
2. Effect of alienation or mortgage, with
respect to co-owners shall be limited to the
portion which may be allotted to him in the
division upon the termination of the coownership
h. Right to Partition [Art. 494, CC]
Rationale: Alteration is an act of ownership.
Alteration – a change in the nature or use of a
thing; it contemplates a PERMANENT
CHANGE. Examples:
• Change of the thing from the state or
essence in which the others believe it
should remain
• Withdrawal of the thing from the use to
which they wish it to be intended
• Any other transformation which prejudices
the condition or substance of the thing or
its enjoyment by the others. [Manresa]
Examples of alterations
• The construction of a house on the coowned property is an act of dominion. It is
an alteration of the property owned in
common. [Cruz v. Catapang, 544 SCRA
2008]
• Mortgage, donation, or sale of a portion or
the whole of the property co-owned
• Allowing or entering into an easement
Exception: If the withholding of the consent by
one or more of the co-owners is clearly
prejudicial to the common interest, the
courts may afford adequate relief.
g. Right to Full Ownership of His Part
and of the Fruits and Benefits
Pertaining Thereto [Art. 493, CC]
As a result, the co-owner has a right to:
1. Alienate;
2. Assign;
3. Mortgage; and
4. Substitute another person in its enjoyment.
Note: Actions above can only pertain to the coowner’s ideal share prior to partition.
Definition of Partition: Separation, division
and assignment of a thing held in common
among those to whom it may belong. Partition
may be inferred from circumstances sufficiently
strong to support the presumption. [Maestrado
v. Court of Appeals, 327 SCRA 678 (2000)]
General Rule
1. No co-owner shall be obliged to remain in
the co-ownership; and
2. Each co-owner may demand at any time
the partition of the thing owned in common,
insofar as his share is concerned. [Art. 494
par.1, CC]
Note: An assignee of a co-owner may take part
in the division of the thing owned in common
and object to its being effected without their
concurrence. But they cannot impugn any
partition already executed unless there has
been fraud or in case it was made
notwithstanding a formal opposition to prevent
it. [Budlong v. Pondoc, 79 SCRA 24 (1977)]
Limitations
• An agreement to keep the thing undivided
for a certain period of time, not exceeding
10 years, shall be valid. [Art. 494, CC]
• A donor or testator may prohibit partition for
a period which shall not exceed 20 years.
[Art. 494, CC]
• Neither shall there be any partition when it
is prohibited by law. [Art. 494, CC]
• When physical partition would render the
thing unserviceable for the use for which it
is intended. [Art. 495, CC]
Exception: If it is indivisible (physical partition
not possible), allot to one of the co-owners who
shall indemnify others, or have it sold and
divide the process from the sale. [Art. 498, CC]
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•
PROPERTY
When another co-owner has possessed
the property as exclusive owner and for a
period sufficient to acquire it by
prescription.
Note: No prescription shall run in favor of a coowner or co-heir against his co-owners or coheirs so long as he expressly or impliedly
recognizes the co-ownership. [Art. 494, CC]
For prescription to run in favor of a co-owner,
the following elements must concur to show
adverse possession of a co-owner:
1. He has performed unequivocal acts of
repudiation amounting to an ouster of the
other co-owners;
2. Such positive acts of repudiation have
been made known to the other co-owners;
and
3. The evidence thereon must be clear and
convincing. [Salvador v. CA, supra]
Sample of Acts of Repudiation
1. Filing of actions in court like quieting of title,
accion reinvidicatoria and other similar suit
2. Co-owner who causes cancellation of the
existing title and petitions for an issuance
of a new title in his favor
3. Co-owner who permanently fences the
property and hires security personnel to
prevent other co-owners from entering the
property
i. Right to Redemption [Art. 1619,
CC]
Definition
Legal redemption – the right to be
subrogated, upon the same terms and
conditions stipulated in the contract, in the
place of one who acquires a thing by purchase
or dation in payment, or by any other
transaction whereby ownership is transmitted
by onerous title [Art. 1619, CC].
General Rule: A co-owner of a thing may
exercise the right of redemption in case the
shares of all the other co-owners or of any of
them are sold to third person. [Art. 1620, CC]
CIVIL LAW
As legal redemption is intended to minimize coownership, once a 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. Every act intended to put an end
to indivision among co-heirs is deemed to be a
partition. [Avila vs. Sps. Barabat, supra]
j. Right
to
Participate
in
Administration of Property Owned
In Common [Art. 492, CC]
General Rule
a. For the administration and better
enjoyment of the thing owned in common,
the resolutions of the majority of the coowners shall be binding. [Art. 492 par. 1,
CC]
b. There shall be no majority unless the
resolution is approved by the co-owners
who represent the controlling interest in the
object of the co-ownership. [Art. 492 par. 2,
CC]
Exceptions to acts of administration only
by majority
• If there be no majority; or
• If the resolution of the majority is seriously
prejudicial to those interested in the
property owned in common.
• In which case, the court will intervene: the
court, at the instance of an interested party,
shall order such measures as it may deem
proper, including the appointment of an
administrator.
Examples of acts seriously prejudicial
• Call for a substantial change of the thing
• Authorizing leases, loans, and other
contracts without the necessary security,
thereby exposing the property to serious
danger
• Continued employment of an administrator
who is guilty of fraud or negligence in his
management [Manresa]
Note: A co-owner is entitled to a written notice
from a selling co-owner in order to remove all
uncertainties about the sale, its terms and
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conditions, as well as its efficacy and status.
[Verdad v. Court of Appeals, 256 SCRA 593
(2000)]
k. Other Rules
1. Renunciation of Share
General Rule: A co-owner may exempt
himself from the payment of expenses of
preservation by renouncing his undivided
interest in the co-ownership as may be
equivalent to his share in the necessary
expenses and taxes. [Art. 488, CC]
A co-owner who has not waived his share in
the co-ownership may be compelled to pay his
share in the cost of its maintenance, but he
may not be compelled to renounce.
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Consensus of all coLease for more owners (considered an act
than 1 year
of
alteration,
see
Tolentino)
Acts of
administration
(ex. Payment of Majority of co-owners [Art.
taxes/association
dues,
hiring 492, CC]
contractors to do
minor repairs)
Improvement/
Embellishing
the
Thing/
Useful
Majority of co-owners
expenses (ex. [Arts. 489 and 492, CC]
Swimming pool,
CCTV,
landscaped
gardens, etc.)
Waiver of renunciation is not allowed if it is
prejudicial to the co-ownership. [Art. 488, CC]
2. Repairs
for
Preservation,
Embellishment, or Improvements
General rule: Requires consent of majority of
co-owners representing the controlling interest
in the undivided thing. [Art. 489 and 492, CC]
Note: The rules under Art. 492 are
applicable, so judicial intervention may be
resorted to.
Summary
Act of CoOwner
Preservation
(ex.
Critical
maintenance
work – roof leaks,
cracks in the
walls,
electrical
wiring
system
which
renders
property
unsafe/unhealthy
to live in)
Alterations (ex.
Sale, mortgage,
assignment)
Consent Needed
May be made at will by
any
co-owner,
but
preferably notice is given
to others. [Arts. 488 and
489, CC]
3. Multi-Story House [Art. 490, CC]
Applies when:
• The different stories of a house belong to
different owners;
• The titles of ownership do not specify the
terms under which they should contribute
to the necessary expenses; and
• There exists no agreement on the subject.
Part of
House
the
Main and party
walls, the roof,
and the other
things used in
common
Floor of the
entrance, front
door, common
yard, and
sanitary works
common to all
The floor of
each coowner’s story
Consensus of all coowners [Art. 491, CC]
Page 151 of 532
Manner of Contribution
All owners contribute in
proportion to the value of
the story belonging to each
All owners contribute pro
rata or equally
Each owner bears the cost
of maintaining the floor of
his story
U.P. LAW BOC
Stairs
PROPERTY
Stairs from the first
entrance to the first story –
pro rata sharing of all
owners except the owner of
the ground floor
Stairs from the first to the
second story - pro rata
sharing of all owners
except the owner of the
ground floor and that of the
first story; and so on.
4. Termination of Co-ownership
Means of Termination
a. Total Destruction of the Thing Owned in
Common
b. Merger of All Interests in One Person
c. Acquisitive Prescription
d. Partition
e. Sale of Property Co-Owned
f. Termination of Period Agreed upon in Coownership
a. Total Destruction of Thing or Loss
of the Property Co-Owned
Exception: If a building is destroyed, there is
still co-ownership over the land and the debris.
[Tolentino]
b. Merger of All Interests in One
Person
This may take place by any of the causes which
are sufficient to transmit title to an obligation,
either by assignment, subrogation, and sale of
inheritance.
c. Acquisitive Prescription
This is a mode of acquiring ownership by a
possessor through the requisite lapse of time.
It may be ordinary or extraordinary. [Art. 1117,
CC]
Ordinary Acquisitive prescription requires
possession of things in GOOD FAITH and with
a just title for the time fixed by the law [De
CIVIL LAW
Leon]. Extraordinary Prescription is the
opposite. No good faith or just title is required,
but long possession under Art. 1132 , par. 2
[De Leon].
d. Partition or Division
May be judicial or extrajudicial:
• Extrajudicial partition – The agreement
may be oral or written, done outside of
court.
• Judicial partition – Governed by the
Rules of Court insofar as they are
consistent with the CC. [Art. 496, CC]
Action for partition will determine:
• Whether or not the plaintiff is indeed a coowner of the property
• How the property will be divided between
the plaintiff and defendant
Incidents of Partition
• Mutual accounting for benefits received
and reimbursement for expenses made
[Art. 500, CC]
• Payment of damages by each co-owner
caused by reason of his negligence or
fraud. [Art. 500, CC]
• Liability of each co-owner for defects of title
and quality of the portion assigned to each
of the co-owners. [Art. 501, CC]
Effects of Partition
• Confers exclusive ownership of the
property adjudicated to a co-heir. [Art.
1091, CC]
• Co-heirs shall be reciprocally bound to
warrant the title to, and the quality of each
property adjudicated. [Art. 1092, CC]
• Reciprocal obligation of warranty shall be
proportionate to the respective hereditary
shares of co-heirs. [Art. 1093, CC]
• An action to enforce the warranty must be
brought within 10 years from the date the
right of action accrues. [Art. 1094, CC]
• The co-heirs shall not be liable for the
subsequent insolvency of the debtor of the
estate, but only for his insolvency at the
time the partition is made. [Art. 1095, CC]
Page 152 of 532
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Rights of Third Parties in Partition
1. The partition of a thing owned in common
shall not prejudice third persons, who shall
retain the rights of mortgage, servitude, or
any real rights belonging to them before the
division was made. [Art. 499, CC]
Note: A “third person” is defined as all
those who did not in any way participate or
intervene in the partition [Paras citing 3
Manresa 54 and Gonzaga v. Martinez, 9
Phil. 489].
2. The creditors or assignees of the coowners may take part in the division of the
thing owned in common and object to its
being effected without their concurrence.
[Art. 497, CC]
Note: All kinds of creditors whether
preferred or ordinary are included within
the scope of creditors; but they must have
become creditors during the existence of
the co-ownership and not before or after
[Paras citing 3 Manresa 528-529].
Exception: If the partition was already
executed, the creditors/assignees cannot
impugn the same.
Exception to the exception: There was fraud
or a previous formal opposition against the
partition, without prejudice to the right of the
debtor or assignor to maintain its validity. [Art.
497, CC]
CIVIL LAW
Partition of an indivisible thing [Art. 498, CC]
1st option: The co-owners can agree that one
of them shall be the sole owner by paying the
value of the other co-owners’ shares.
2nd option: If they cannot agree who among
them shall be the sole owner, the property will
be sold to a 3rd person and the proceeds will be
distributed among them.
e. Sale of Property Co-Owned [Art.
498, CC]
The sale shall be resorted to only if:
• The property is essentially indivisible.
• The co-owners cannot agree that the entire
property be allotted or assigned to one of
them, who shall reimburse the other coowners of their shares.
f. Termination of Period Agreed
Upon by the Co-Owners [Art. 494.
CC]
An agreement to keep the thing undivided for a
certain period of time, not exceeding 10 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 20 years.
F. POSSESSION
The law does not expressly require previous
notice to the creditors and assignees before a
partition. [Tolentino]
1. Characteristics
If notice is not given, the partition is not binding
on the creditors and assignees.
Definition
Possession is the holding of a thing or the
enjoyment of a right. [Art. 523, CC]
But once notice has been given, it is the duty of
creditors and assignees to intervene and make
known their stand. If they fail to do so, they
cannot question the division made, EXCEPT in
cases of fraud.
It includes the idea of occupation – i.e. the
person exercises control over the object. It
cannot exist without it.
Page 153 of 532
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○
Right of possession
(jus possessionis)
Right to possess
(jus possidendi)
Incident
to
Independent right (ex: ownership
(ex:
Lessee possessing a person A lives in a
property)
house that he
owns)
Possession may be exercised in one’s own
name or in that of another. [Art. 524, CC]
Possession is not a definitive proof of
ownership nor is non-possession inconsistent
therewith. [Heirs of G. Bofill v. CA, G.R. No.
107930 (1994)]
Essential Requisites of Possession
• Material occupation – There must be
holding or control of a thing or right. Also
known as possession in fact.
• Intent to possess (animus possidendi) –
The holding must be with intention to
possess which reflects the state of mind of
the possessor.
Object of Possession [Art. 530, CC]
• Must be susceptible of being appropriated
• Abandoned or property with no owner may
be possessed but cannot be acquired by
prescription.
• Things must be within the commerce of
men
What May Not Be Possessed
• Res communes
• Property of public dominion
• Right under discontinuous and/or nonapparent easement
Extent of Possession
• Actual – consists in manifestation of acts
of dominion over the thing of such a nature
as a party would naturally exercise over his
own property.
• Constructive – possession of a portion of
the thing under claim of ownership is a
constructive possession of the whole of
such thing, if the remainder is not in the
adverse possession of another.
CIVIL LAW
Possession in the eyes of the law
does not mean that a man has to
have his feet on every square
meter of ground before it can be
said that he is in possession.
[Ramos vs. Director of Lands, G.R.
No. 13298, (1918)]
2. Acquisition of Possession
Ways of Acquiring Possession [Art. 531,
CC]
a. By material occupation of a thing or the
exercise of a right
b. By the fact that it is subject to the action of
our will
c. By the proper acts and legal formalities for
acquiring possession
a. By the material occupation of a
thing or the exercise of a right
Possession is acquired through the following
modes of constructive delivery:
• Traditio
brevi manu
–
If
the
transferee/buyer already had possession
of the object under a different title even
before the sale (e.g., lessee, depositary
subsequently buys the property)
• Traditio constitutum possessorium –
the transferor/seller continues in the
possession of the object, but not in the
concept of an owner (e.g., owner sells the
property and becomes lessee)
For constructive possession, see
discussion
under
Characteristics
Possession.
the
of
b. By the fact that the thing is subject
to the action of our will
Possession is acquired through the following
modes of constructive delivery:
• Traditio simbolica – delivering an object
or symbol, and placing the thing under the
control of the transferee (ex. Giving a key
where the thing or object is stored, kept or
under custody. Since the key is with the
Page 154 of 532
U.P. LAW BOC
•
PROPERTY
vendee, then it means that the latter can
gain access to the object)
Traditio longa manu – the transferor
points out to the transferee the things
which are being transferred, or they merely
agree or consent that delivery has been
effected
c. By the proper acts and legal
formalities
established
for
acquiring such right
Acquisition by virtue of a just title such as when
property is transmitted by succession,
donation, contract, or execution of a public
instrument, etc.
Who Acquires Possession [Arts. 532-534,
CC]
a. The same person who is to enjoy it
b. His legal representative
c. His agent
d. Any person without any power whatsoever
General rule: Only acquired upon
ratification
Exception: In cases of negotiorum gestio
(Person who voluntarily manages the
property or business of another. In this
case, the stanger’s possession takes effect
even without ratification by the property
owner)
e. His heirs
• If there is bad faith on the part of the
decedent: The effects of the
decedent’s wrongful possession will
not affect his heirs. The heir suffers the
consequences of such possession only
from the moment he becomes aware of
the flaws affecting the decedent’s title
[Art. 528 as cited in De Leon].
• If there is good faith on the part of the
decedent: The effects of the
decedent’s possession will benefit the
heirs only from the date of his death.
Legal Capacity to Acquire Possession [Art.
535, CC]
Minors and incapacitated persons may acquire
possession BUT they need the assistance of
CIVIL LAW
their legal representatives to exercise their
rights arising from such possession.
Preference of Possession [Art. 538, CC]
General Rule: Possession as a fact cannot be
recognized at the same time in two different
personalities
Exception: Co-possession
In case a dispute arises, the order of
preference is as follows:
a. The present possessor shall be preferred
b. If there are two possessors, the one longer
in possession is preferred
c. If the dates of the possession are the same,
the one who presents a title is preferred
d. If all the foregoing conditions are equal, the
thing shall be placed in judicial deposit
pending determination of its possession or
ownership through proper proceedings.
What Does Not Affect Possession
a. Acts merely tolerated [Art. 537, CC]
• Those
which
because
of
neighborliness or familiarity, the owner
of property allows another person to do
on the property [Tolentino]
• Permissive use merely tolerated by the
possessor cannot affect possession
and cannot be the basis of acquisitive
prescription. [Art. 1119, CC]
o Possession to constitute the
foundation of prescriptive right
must be possession under
claim of title; it must be
adverse.
[Cuaycong
v.
Benedicto, G.R. No. L-9989
(1918)]
• A possessor
by tolerance is
necessarily bound by an implied
promise to vacate upon demand, failing
which a summary action for ejectment
is the proper remedy against him.
[Peran vs. CFI, G.R. No. L-57259,
(1983)]
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CIVIL LAW
b. Acts executed clandestinely and
without the knowledge of the
possessor [Art. 537, CC]
•
●
•
of a competent court, if the holder
refuses to deliver the thing.
Possession by the possessor is not
affected as long as it remains
clandestine and unknown.
“Clandestine possession” is secret
possession or possession by stealth.
The possession here must be unknown
to the owner. [Paras quoting 4 Manresa
199]
Possession has to be in the concept of
an owner, public, peaceful and
uninterrupted. [Art. 1120, CC]
c. Acts of violence as long as the
possessor objects thereto [Art. 536, CC]
• Possession cannot be acquired
through force or intimidation as long as
there is a possessor who objects
thereto.
o This includes forcibly taking
away the property from
another, and also when one
occupies the property in the
absence of another, and repels
the latter upon his return.
[Tolentino]
o Force may be: 1) actual or
threatened; 2) done by
possessor or agent, 3) done
against the owner or any other
possessor or the owner’s
representative; 4) done to oust
the possessor [Paras].
o Art. 536 applies to one who
believes himself the owner of
real property.
If he takes
justice into his own hands, he is
a mere intruder and he can be
compelled to return the
property and must suffer the
NECESSARY and NATURAL
consequences
of
his
lawlessness. [De Leon citing
Santiago v. Cruz, 54 Phil. 640]
• He who believes that he has an action
or a right to deprive another of the
holding of a thing must invoke the aid
3. Effects of Possession
a. Possession in the concept of
owner is converted into ownership
after the required lapse of time
necessary of prescription [Art. 540,
CC]
•
•
•
To consolidate title by prescription, the
possession must be under claim of
ownership, and it must be peaceful, public,
and uninterrupted [Art. 1118, CC].
Acts of possessory character done by
virtue of a license or mere tolerance on the
part of the real owner do not apply for
purposes of acquisitive prescription. [Art.
1119, CC]
The following cannot acquire title by
prescription (i.e. they are not adversely
possessing the property)
1. Lessees, trustees, pledges, tenants
on shares or planters and all those
who hold in the name or in
representation of another.
2. Mere holders placed in possession of
the property by the owner, such as
agents, employees.
3. Those holding in a fiduciary character
like receivers, attorneys, depositaries
and antichretic creditors.
4. Co-owner, with regard to common
property, EXCEPT: when he holds
the same adversely against all of
them with notice to them the
exclusive claim of ownership.
b. Entitlement to fruits/expenses
POSSESSOR IN GOOD FAITH – Arts. 544,
526-527, CC
Page 156 of 532
1. As to the Fruits
•
Fruits already received [Art. 544(1),
CC]
o Entitled to all the fruits until
possession is legally interrupted
U.P. LAW BOC
•
PROPERTY
(i.e. before summons, or demand;
see Art. 528 for when possession
in good faith is interrupted)
Fruits still pending [Art. 545, CC]
o Entitled pro-rata to the fruits
already
growing
when
his
possession is legally interrupted.
CIVIL LAW
4. As to Ornamental Expenses or
Expenses for Pure Luxury [Art. 548,
CC]
The possessor in good faith is not
entitled to a refund for ornamental
expenses. But he may remove the
ornamental improvements if they do
not cause damage to the principal
thing.
2. As to the Necessary Expenses [Art.
546, (1), CC]
Exception: The one who recovers
possession decides to refund the
ornamental expenses/ expenses for
pure luxury.
Definition:
necessary
for
the
preservation of the thing [Art. 452, CC
by analogy]. The possessor in good
faith may retain the thing until he is
reimbursed for necessary expenses.
POSSESSOR IN BAD FAITH
3. As to the Useful Expenses [Arts. 546
(2) and 547, CC]
•
Definition: incurred to give greater
utility or productivity to the thing
o They are reimbursed only to the
possessor
in
GF
as
a
compensation or reward for him.
Possessor in BF cannot recover
such expenses.
o The possessor in good faith may
retain the thing until he is
reimbursed for useful expenses.
o The person who defeats the
possessor in possession has the
option to:
o Refund the amount of
expenses; or
o Pay the increase in value
which the thing may have
acquired.
o The possessor has the option of
removing the useful improvements,
provided there is no damage to the
principal thing. [Art. 547, CC]
o Exception:
When
the
option to pay for the value
of the expenses or the
increase in value of the
thing is exercised by the
person who recovered
possession.
1. Possessor in Bad Faith
• One who is aware that there exists in
his title or mode of acquisition a flaw
which invalidates it. [Art. 526, CC]
2. Rights of a possessor in bad faith
• Right to be respected in possession;
[Art. 539, CC]
• Right to necessary expenses and the
expenses for production, gathering,
and preservation of fruits [Arts. 545 and
546; Art. 443, CC]
• Does not have right to reimbursement
of expenses for luxury but may remove
them as long as the principal thing
suffers no injury or may sell them to the
owner who opts to buy the removable
ornaments. [Art. 549, CC]
• No right to reimbursement for useful
improvements and no limited right of
removal.
4. Loss of Movable or Unlawful
Deprivation of a Movable
One who has lost any movable or has been
unlawfully deprived thereof, may recover it
from the person in possession of the same.
[Art. 559, CC]
Note: Relate this to Art. 556 which states that
the possession of movables is not deemed
LOST so long as they remain under the control
Page 157 of 532
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of the possessor even though FOR THE TIME
BEING he may not know their whereabouts
(e.g. A ring misplaced or just lost in a particular
place or vicinity). The possessor has not lost
his legal right to the object. He retains his
juridical control of the thing which remains in
his, and not another’s patrimony [De Leon
citing 4 Manresa 323].
Possession of Movable Acquired in Good
Faith (in Concept of Owner) is Equivalent to
Title [Art. 559, CC]
Doctrine of Irrevindicability: Possession in
good faith of a movable is a presumed
ownership. It is equivalent to a title. However, it
is merely presumptive because it can be
defeated by the true owner.
Requisites
of
the
doctrine
of
Irrevindicability
1. The possession should be in good faith;
2. The former owner voluntarily parted with
the possession of the thing; and
3. The possession is in the concept of
owner.
Exception: One who has lost or has been
unlawfully deprived of a movable may recover
it from whoever possesses it without
reimbursement
The owner of the thing must prove:
(a) ownership of the thing, and
(b) loss or unlawful deprivation; or bad faith of
the possessor
Exception to the Exception
• Where the owner acts negligently or
voluntarily parts with the thing owned, he
cannot recover it from the possessor
• If the possessor of the movable acquired it
in good faith at a public sale, the owner
cannot obtain its return without first
reimbursing the price paid therefore by the
keeper [Art 559. Par 2, CC]
Period to Recover Movable Property [NCC
Arts. 1140, 1132, 1133]
• 8 years – from the time the possession of
the movable is lost, for uninterrupted
•
•
CIVIL LAW
possession (whether in bad faith or good
faith). [Art. 1140, CC] Subject to Article
1505 and Article 559.
4 years – action to recover prescribes if
there is uninterrupted possession in good
faith, subject to Article 1505 and Article
559. [Art. 1132, CC]
No prescription – if possessed through a
crime. [Art. 1133, CC]
Finder of Lost Movable [Arts. 719-720, CC]
a. Whoever finds a movable, which is not a
treasure, must return it to its previous
possessor.
b. If the previous possessor is unknown, the
finder shall immediately deposit it with
the mayor of the city or municipality
where the finding has taken place.
c. The finding shall be publicly announced
by the mayor for two consecutive weeks
in the way he deems best.
d. If the movable cannot be kept without
deterioration, or without expenses which
considerably diminish its value, it shall be
sold at public auction 8 days after the
publication.
e. Six (6) months from the publication
having elapsed without the owner having
appeared, the thing found, or its value,
shall be awarded to the finder. The finder
and the owner shall be obliged, as the
case may be, to reimburse the expenses.
f. If the owner should appear in time, he
shall be obliged to pay, as a reward to the
finder, 1/10 of the sum or of the price of
the thing found.
5. Possession in the Concept of
Owner, Holder, One’s Own
Name, and in the Name of
Another
The possession of things or rights may be had
in one of two concepts: either in the concept of
owner, or in that of the holder of the thing or
right to keep or enjoy it, the ownership
pertaining to another person [Art. 525, CC].
Classifications of Possession
a. In one’s own name or in that of another
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b. In the concept of holder
c. In the concept of owner
d. In good faith or in bad faith
Possession for Oneself, or
Possession Exercised in One’s
Own Name and Possession in
the Name of Another [Art. 524,
CC]
CIVIL LAW
b. Trustees, including: parents over the
properties of their children; and husband
and wife over each other’s property
c. Antichretic Creditors
d. Agents
e. Attorneys regarding their client’s properties
f. Depositaries
g. Co-Owners
1. In one’s own name – the fact of
possession and the right to such
possession is found in the same
person.
2. In the name of another – the one in
actual possession is without any right
of his own, but is merely an instrument
of another in the exercise of the latter’s
possession. It can either be:
● Voluntary – when exercised by
virtue of an agreement, e.g. agents or
administrators appointed by the
owner or possessor. Third person
may also voluntarily exercise
possession in the name of another,
but it does not become effective
unless ratified by the person in
whose name it is exercised.
● Necessary or legal – when
exercised by virtue of law, e.g.
representatives
who
exercise
possession in behalf of a conceived
child, juridical persons, persons not
sui juris, and the CPG.
Possession in the Concept of
Holder with the Ownership
Belonging to Another [Art. 525,
CC]
One who possesses as a mere holder, not in
the concept of owner, acknowledges in another
a superior right which he believes to be
ownership, whether his belief is right or wrong,
e.g. tenant, usufructuary, borrower in
commodatum.
Examples of Possession in Concept of Holder
a. Lessees
Page 159 of 532
Possession in the Concept of
an Owner
i.
Concept of ‘Owner’
• Other people believe through one’s
actions, that he or she is the owner
of the property and is considered in
the opinion of others as owner
• Regardless of good faith or bad
faith
• Contrary to concept of holder
wherein one recognizes another to
be the owner of the property
• May be exercised by the owner
himself or one who claims to be so.
• DOES
NOT
refer
to
the
possessor‘s
inner
belief
or
disposition regarding the property
in his possession.
ii. Possession in the Concept of Owner
• Possession in the concept of an
owner refers to his overt acts which
tend to induce the belief on the part
of others that he is the owner.
• Possession in the concept of an
owner is ius possidendi.
• If a person possesses in the
concept of owner—he may
eventually become the owner by
prescription
○ Thus, a possessor merely in
the concept of holder cannot
acquire property by acquisitive
prescription—one
cannot
recognize the right of another
and at the same time claim
adverse possession.
U.P. LAW BOC
PROPERTY
6. Rights of the Possessor
Possessor In Good Faith [Arts.
526-527, 544, 546-547, 548, 552,
1132, 1134, CC]
i.
Possessor in Good Faith
One who is unaware that there exists a flaw
which invalidates his acquisition of the thing.
He believes that the person from whom he
received a thing was the owner of the same
and that therefore he is now the owner based
upon ostensible title or mode of acquisition,
e.g. sale, donation, inheritance, or other means
of transmitting ownership. [Art. 526, CC]
ii. Rights of a Possessor in Good Faith:
1. Fruits [Art. 544, CC]
2. Refund of necessary expenses [Art. 546,
CC]
3. Refund of useful expenses [Art. 546, CC]
4. Right of retention when there are unpaid
necessary or useful expenses [Art. 546,
CC]
5. Removal
of
useful/ornamental
improvements without damage to the
principal thing [Arts. 546-547, CC]
6. No liability for deterioration or loss, except
in cases of fraudulent intent or negligence
[Art. 552, CC]
7. May acquire full ownership by prescription
[Arts. 1117-1138, CC]
8. Presumption of just title [Art. 541, CC]
9. Can ask for the inscription of possession in
the Registry of Property [Art 708, CC]
10. Generally, he/she can do on the things
possessed everything that the law
authorizes an owner to do until he/she is
ousted by one who has a better right
11. Can exercise the right of pre-emption and
is entitled to indemnity in case of
appropriation
12. Has presumption of continuity of good faith
[Arts. 528-529, CC]
13. Non-interruption
of
possession
(possession during intermediate period)
[Arts. 554 and 561, CC]
CIVIL LAW
14. Right
to
be
respected
and
protected/restored in his/her possession by
the means established by the laws and the
Rules of Court. [Art. 539, CC]. These
include summary actions (forcible entry
and unlawful detainer), accion publiciana,
and
action
for
replevin.
Accion
reivindicatoria is not included. “Every
possessor” – includes all kinds of
possession, from that of an owner to that of
a mere holder, except that which
constitutes a crime.
15. Lawful possessor can employ self-help
[Art. 429, CC]
16. Possession of an immovable extends to
the movables within or inside [Arts. 542
and 426, CC]
Exception: When it is shown or proven that
such movables should be excluded
iii. Other Consequences:
1. Possession is converted into ownership
after the required lapse of time necessary
of prescription [Art. 540, CC]
● To consolidate title by prescription,
the possession must be under claim
of ownership, and it must be
peaceful, public and uninterrupted.
[Art. 1118, CC]
● Acts of possessory character done
by virtue of a license or mere
tolerance on the part of the real
owner are not sufficient and will not
confer title by prescription or adverse
possession. [Art. 1119, CC]
● The following cannot acquire title by
prescription:
○ Lessees, trustees, pledges,
tenants on shares or planters,
and all those who hold in the
name or in representation of
another.
○ Mere
holders
placed
in
possession of the property by the
owner such as agents and
employees.
○ Those holding the title in a
fiduciary character such as
receivers,
attorneys,
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○
PROPERTY
depositaries, and antichretic
creditors.
Co-owner, with regard to
common property:
Exception: When he/she holds the
same adversely against all of the other
co-owners with notice to them of the
exclusive claim of ownership.
As to ornamental expenses or expenses for
pure luxury [Art. 548, CC]
• The possessor in good faith is not entitled
to a refund for ornamental improvements
but such improvements may be removed if
they do not cause damage to the principal
thing.
Possessor in Bad Faith
2. Entitlement to fruits/expenses: Possessor
in Good Faith [Arts. 544, 526-527, CC]
As to the fruits
• Fruits already received [Art. 544(1), CC]:
Entitled to all the fruits received before
possession is legally interrupted. (i.e.
before summons)
• Fruits still pending [Art. 545, CC]: Entitled
to prorate the fruits already growing when
possession is legally interrupted.
As to necessary expenses [Art. 546(1), CC]
• Imposed by the thing itself and have no
relation to the desire or purpose of the
possessor; hence they are reimbursed,
whatever may be the juridical character of
the person who advanced them.
• The possessor in good faith may retain the
thing until he/she is reimbursed for
necessary expenses.
CIVIL LAW
i.
Definition
One who is aware that there exists in his/her
title or mode of acquisition any flaw which
invalidates it. [Art. 526, CC]
ii. Requisites:
1. Possessor has a title or mode of
acquisition;
2. There is a flaw or defect in said title or
mode;
3. Examples of vice or defect in title:
● Grantor was not the owner.
● Requirements for transmission were not
complied with.
● Mistake in the identity of the person.
● Property was not really res nullius.
4. The possessor is aware of the flaw or
defect in the title.
iii. Rights of a Possessor in Bad Faith:
As to useful expenses [Arts. 546 (2) and
547, CC]
• Incurred to give greater utility or
productivity to the thing.
• They are reimbursed only to the possessor
in good faith as a compensation or reward.
A possessor in bad faith cannot recover
such expenses.
• The possessor in good faith may retain the
thing until he/she is reimbursed for useful
expenses.
• The other party has the option to:
○ Refund
the
amount
of
expenses; or
○ Pay the increase in value which
the thing may have acquired.
1. Right to be respected in possession. [Art.
539, CC]
2. Right to necessary expenses and the
expenses for production, gathering, and
preservation of fruits. [Arts. 545-546, CC]
3. Does not have right to reimbursement of
expenses for luxury but may remove them
as long as the principal thing suffers no
injury or may sell them to the owner who
opts to buy the removable ornaments. [Art.
549, CC]
4. No right to reimbursement for useful
improvements and no limited right of
removal. [Art. 546, CC]
5. Right to remove ornamental improvements
or be paid the value of such at the time of
recovery but at the owner’s option.
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CIVIL LAW
PROPERTY
iv. Obligations of a Possessor in Bad
Faith:
1. Reimburse the value of fruits received and
which the legitimate possessor could have
received. [Art. 549, CC]
2. Pay in proportion to the charges, expenses
of cultivation and the net proceeds upon
cessation of good faith. [Art. 545, CC]
3. Bear the costs of litigation. [Art. 550, CC]
4. Liability to the deterioration/loss of a thing
possessed in every case, including
fortuitous events. [Art. 552, CC]
7. Loss or Termination
Possession
of
A possessor may lose his possession [Art.
555, CC]:
1. By the abandonment of the thing;
Note: The one who abandons must have
been a possessor in the concept of an
owner [Paras quoting 4 Manresa 315].
2. By an assignment made to another either
by onerous or gratuitous title;
Note: There should be complete
transmission of ownership to another
person [Paras].
3. By the destruction or total loss of the thing,
or because it goes out of commerce;
4. By the possession of another for more than
one year, subject to the provisions of Art.
537 (acts merely tolerated, clandestine
acts and violence). But the real right of
possession is not lost till after the lapse of
10 years.
Other Causes for loss of possession:
1. Acquisitive prescription;
2. Recovery by another lawfully entitled
person/entity.
G. USUFRUCT
1. Characteristics
Usufruct is a temporary real right which gives a
right to enjoy the property as well as its fruits of
another with the obligation of preserving its
form and substance, unless the title
constituting it or the law otherwise provides.
[Art. 562, CC]
Constituted by: [PILL: Prescription, Inter vivos
acts, Law, Last Will]
1. Law
2. Will of private persons expressed in acts
inter vivos
3. Will of private persons expressed in a last
will
4. Prescription [Art. 563, CC]
Can be constituted over:
1. The whole or part of the fruits of the thing
2. A right, provided it is not strictly personal or
intransmissible. [Art. 564, CC]
General Characteristics
• Nature: It is a real right of the use and
enjoyment of the property, whether or not
the same be registered in the Registry of
Property;
Note: It must be registered in the Registry of
Property to prejudice third persons (Art 709,
CC)
o It is transmissible
• Term: Of temporary duration;
• Purpose: To enjoy the benefits and derive
all advantages from the thing due to normal
exploitation;
• Scope: May be constituted on real or
personal property, consumable or nonconsumable, tangible or intangible, the
ownership of which is vested upon another.
Natural Characteristics
• Includes jus abutendi, jus utendi, jus
fruendi and jus possidendi and jus
vindicandi. The only thing left with the
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U.P. LAW BOC
•
•
•
•
PROPERTY
grantor of the usufruct is the jus
disponendi.
Usufructuary must preserve the form or
substance of the thing. (ex: Usufruct over a
house to be used as a dwelling by the
usufructuary cannot be transformed into a
boarding house where other people can
occupy the same – akin to De Leon’s
comments, p. 413)
Preservation is a natural requisite, not
essential because the title constituting it,
the will of the parties, or the law may
provide otherwise.
Usufruct is extinguished by the death of the
usufructuary.
A person cannot create a usufruct over his
own property and retain it at the same time.
[De Leon quoting Gaboya v. Cui, 38 SCRA
85 (1981)]
Reasons for preserving form and
substance
• To prevent extraordinary exploitation;
• To prevent abuse, which is frequent;
• To prevent impairment.
Exception: In an abnormal usufruct, alteration
is allowed.
2. Classification
Voluntary: created by the
will of private persons
• By act inter vivos – such
as
contracts
and
donations:
• By donation of the
usufruct;
As to Manner • By retention of the
of Creation
usufruct by donor;
• Where a usufruct is
constituted inter vivos and
for valuable consideration,
the
contract
is
unenforceable unless in
writing;
• By act mortis causa –
such as testament
CIVIL LAW
Legal: as provided by law.
Usufruct of parents over
the
property
of
unemancipated children.
(now limited to the
collective daily needs of the
family) [Art. 226, CC]
Mixed: created both by law
and the acts of persons, i.e.
by acquisitive prescription.
The rights and duties of the
usufructuary provided by
law may be modified or
eliminated by the parties. If
the
usufructuary
is
authorized to alienate the
thing in case of necessity, it
is the usufructuary who
determines the question of
necessity
Simple:
only
one
usufructuary enjoys the
property.
Multiple:
several
usufructuaries enjoy the
property
as
cousufructuaries.
Simultaneous: at the
same time.
Successive: one after the
other.
As
to Limitations
Number of • If by donation, ALL
Beneficiaries donees must be alive. [Art.
756, CC]
• Fiduciary and the second
heir must be alive at the
time of the death of the
testator. [Art. 863, CC]
• If by testamentary
succession, there must be
only
2
successive
usufructuaries, and both
must be alive or at least
already conceived at the
time of the testator’s death
and later born alive. [Art.
869, CC]
As to Object Rights: Must not be strictly
of Usufruct
personal
or
intransmissible.
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Normal: involves nonconsumable things which
the usufructuary can enjoy
without altering their form
or substance (e.g. form and
substance are preserved).
CIVIL LAW
i.e. over an entire
patrimony, a while
inheritance of a
compulsory heir, a
dowry;
SPECIAL CASES OF USUFRUCT
Abnormal or irregular:
when the usufruct includes
things which cannot be
used
in
a
manner
appropriate to its nature
without being consumed,
and if not consumed, may
be useless. (ex: money,
grain, liquors, per De Leon
p. 414).
Quasi-usufruct [Art. 574,
CC] Includes things which
cannot be used without
being consumed. Money
may be the object of
usufruct.
Pure – without term or
condition
With a term – with a period,
which may either be
As
to suspensive (from a certain
Effectivity
day) or resolutory (to a
certain day)
Conditional – subject to a
condition which may either
be suspensive (from a
certain event) or resolutory
(until a certain event)
Total:
all
consumed by the
usufruct.
As to Partial:
Fruits constituted only on
a part or certain
aspects of the
As to Extent
usufruct’s fruits.
of
the
Usufruct
Singular: only on
particular property
As to of the owner.
the
Universal:
object pertains to the
usufruct
over
universal property,
a. Usufruct over a Pension or a Periodical
Income [Art. 570, CC]
Covers the right to receive: 1) rent or periodical
pensions in money or fruit; 2) interest on bonds
or securities; and 3) enjoyment of benefits from
an industrial/commercial enterprise.
Each payment/benefit shall be considered a
civil fruit. Being a civil fruit, the usufructuary is
entitled to it in proportion to the time the
usufruct lasts. The date when the benefits
accrue determines whether they should belong
to the usufructuary or to the owner. [De Leon,
p. 423]
b. Usufruct of Property Owned in Common
[Art. 582, CC]
The usufructuary takes the place of the coowner as to:
1. Management;
2. Fruits; and
3. Interest.
Rationale: A co-owner has full ownership of his
part and he may alienate, assign, mortgage or
give it in usufruct without the consent of the
others [Art. 489, CC]
Note: If a co-owner gives the usufruct of his
share to a person, the usufructuary shall
exercise all the rights pertaining to the coowner regarding the administration and the
collection of fruits.
Effect of partition:
1. The right of the usufructuary is not
affected by the division of the property
in usufruct among the co-owners but
he is considered bound by such
partition made by the owners of the
property.
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U.P. LAW BOC
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2. After partition, the usufruct is
transferred to the part allotted to the coowner.
c. Usufruct Constituted on a Flock or Herd
of Livestock [Art. 591, CC]
! On sterile stock: same rules on fungible
property govern. (i.e. it is an abnormal
usufruct – may dispose of or consume
the animal [Art. 574, CC]
! ON FRUITFUL STOCK: Must replace
ordinary losses of the stock with the
young if:
1. Some animals die from natural
causes; or;
2. Some animals are lost due to
rapacity of beasts of prey.
Note: If the number of the young
produced is less than the animals that
died from natural causes or due to
beasts of prey, then the usufructuary
does not have to replace those which
are in excess of the young that he
currently has.
!
No obligation to replace if:
1. There is a total loss of animals
because of some unexpected or
unnatural loss (like contagious
disease or any other uncommon
event, provided the usufructuary
has no fault); or
2. All perish, the usufructuary should
deliver the remains to the owner. If
there is partial loss, the usufruct
subsists on the remainder.
CIVIL LAW
ensure that the remaining trees may properly
grow.
e. Usufruct on a Right of Action to Recover
Property or Real Rights Over Property
[Art. 578, CC]
● The action may be brought in the name
of the usufructuary.
● If the purpose is the recovery of the
property or right, he also has the right
to oblige the owner to give the authority
for such purpose, as well as to furnish
him whatever pieces of evidence he
may have.
● Relate to Rule 3, Sec. 2 of the Rules of
Court or any amendments in relation
thereto as usufructuary being a real
party in interest.
f.
Usufruct on Mortgaged Property [Art.
600, CC]
• If the usufruct is over the entire
patrimony of the owner, Art. 598, CC
should apply. If the usufructuary
mortgaged the usufruct himself, he is
liable to pay his own debt.
g. Usufruct over an Entire Patrimony [Art.
598, CC]
Applies when:
1. The usufruct is a universal one;
2. The naked owner has debts or is
obliged to make periodical payments
General Rule: The usufructuary is NOT
liable for the owner’s debts.
d. Usufruct over Fruit Bearing Trees and
Shrubs and Woodlands [Arts. 575-577,
CC]
The usufructuary may fell or cut trees in
accordance to the following:
1. Habitual felling or cutting of the owner;
2. Customs of the place as to manner,
amount, and season
Exceptions:
1. When stipulated, in which case the
usufructuary shall be liable for the debt
specified
2. If there is no specification, he is liable
only for debts incurred by the owner
before the usufruct was constituted
3. When the usufruct is constituted in fraud
of creditors
Note: The rule in accession if a tree falls on
another’s land - he cannot fell or cut trees in a
manner that will prejudice the land. The
usufructuary may make necessary thinnings to
h. Usufruct over Property that Deteriorates
[Art. 573, CC]
• Definition of Deteriorates: Without
being consumed, gradually deteriorate
Page 165 of 532
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through wear and tear (e.g. House,
furniture, drapes, equipment). The
usufructuary
is
not
liable
for
deterioration due to fortuitous event. [De
Leon, p. 426]
• Right of Usufructuary: To make use of
it in accordance with the purpose for
which they are intended.
• Obligation of Usufructuary: Returns
the things in the condition in which they
may have been found at the time of the
expiration of the usufruct despite
ordinary defects caused by use and
deterioration produced by age and time.
○ Exception: When it is caused by the
usufructuary’s fraud and negligence
(His obligation can be set off against
improvements made on the property
under art. 580)
• If usufructuary does not return the
things upon the expiration of the
usufruct, he should pay an indemnity
equivalent to the value of the things at
the time of such expiration.
i.
Usufruct over Consumable Property
[Art. 574, CC]
• Consumable: Cannot be used without
being consumed; example: food.
• Right of Usufructuary: To make use
of them Obligation of Usufructuary
upon return:
1. If they were appraised at the time
of delivery, pay their appraised
value.
2. If they were not appraised at time
of delivery, either return the same
goods in the same quality and
quantity, or pay the current price at
time of cessation of usufruct.
! Usufruct over hidden treasure: The
usufructuary, not being the landowner,
is not entitled as owner but is entitled
as finder to one half of the treasure. If
somebody else is the finder, the
usufructuary gets nothing. [4 Manresa,
p. 386-387]
! Rights of the Usufructuary as to the
usufruct itself:
CIVIL LAW
1. To mortgage the right of
usufruct
except
parental
usufruct
2. To alienate the usufructuary
right [Paras, pp. 589-590]
3. To bring action and oblige
owner to give him proper
authority and necessary proof
in a usufruct to recover
property or a real right under
Art. 578
3. Rights and Obligations of
Usufructuary
Rights
1. Right to the thing
2. Right to the fruits
3. Right to lease the thing
4. Right to improve the thing
5. Right of retention
6. Right to mortgage or alienate the right of
usufruct
7. Right to bring action [Art. 579, CC]
8. Right to set off improvements [Art. 580, CC]
9. Right to use/leave dead trunks [Art. 575576, CC]
10. Right to return but indemnify owner if there
is deterioration [Art. 573, CC]
11. Right to exercise rights of co-owner [Art.
582, CC]
Obligations:
1. To make inventory
2. To give a bond for faithful performance of
duties as usufructuary
3. To take care of the thing
4. To undertake ordinary repairs
5. To notify owner of need to undertake
extraordinary repairs
6. To pay annual charges and taxes on the
fruits.
7. To shoulder costs of litigation
8. To deliver the thing in usufruct to the owner
in the condition received.
9. To pay debts
10. To replace animals that die
11. To make inventory and give security
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RIGHTS OF USUFRUCTUARY
a. Rights as to the Thing and its Fruits
[SER3IAL: Set-off, Enjoy, Receive, Remove,
Retain, Improve, Accession, Lease]
a. To enjoy the property personally [Art. 572,
CC]
b. To receive the fruits of the property [Art.
567, CC]
b. Right to natural and industrial fruits
pending at the beginning of usufruct
Fruits
pending at
the
beginning of
the usufruct
Belong to the
usufructuary
Without need
to reimburse
the expenses
to the owners
Fruits pending at the
termination of the
usufruct
Belong to the naked owner
The owner shall reimburse
to the usufructuary ordinary
cultivation expenses from
the proceeds of the fruits
(not to exceed the value of
the fruits)
Fruits pending
at the
termination of
the
usufruct
Without prejudice to the Rights of innocent
right of 3rd persons e.g. 3rd parties should
if the fruits arose by not be
building,
planting, prejudiced.
sowing by a possessor
in good faith, the
pending crop expenses
of cultivation and of the
net
harvest
and
charges
shall
be
prorated between said
possessor and the
usufructuary
in
proportion to the time of
possession [Art. 545,
CC]
Fruits pending at the
beginning of the
usufruct
CIVIL LAW
N.B. In the case of civil
fruits, no need to
prorate,
as civil fruits accrue
daily [Art. 544, CC]
Right to Civil Fruits – deemed to accrue daily
and belong to the usufructuary in proportion to
the time the usufruct may last. [Art. 569, CC]
Special Rule as to Usufruct on Rent,
Pension or Interest
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 or
fruits of such right. [Art. 570 par. 1, CC]
Special Rule as to benefits from enterprise
with no date fixed for distribution:
Whenever it consists in the enjoyment of
benefits accruing from a participation in any
industrial or commercial enterprise, the date of
the distribution of which is not fixed, such
benefits shall have the same character. [Art.
570 par. 2, CC]
Special Rule for a Usufruct over a co-owned
property:
To exercise all rights of the particular co-owner
with respect to the administration and
collection of fruits/interests from the aliquot
share of property [Art. 582, CC]
Should co-ownership cease by reason of
partition, the usufruct of the part allotted to the
co-owner shall still belong to the usufructuary.
Page 167 of 532
c. Right to lease the thing in usufruct
[Art. 572, CC]
i.
Can be leased without consent
of owner.
Exceptions:
• Caucion Juratoria, wherein the lease
would show that the property is not
needed by the usufructuary and
therefore the use for which the usufruct
was constituted is changed.
U.P. LAW BOC
•
•
PROPERTY
e. Right to make improvements on the
property as he may deem proper
[Art. 579, CC]
Condition imposed by naked owner i.e.
Usufruct is purely personal, e.g. title
creating
usufruct provides
that
usufructuary shall personally use and
enjoy the property given in usufruct.
Legal usufructs cannot be leased.
i.
He may improve the thing without
altering its form and substance.
ii. He is not entitled to indemnification.
iii. He may also remove improvements
made by him if it is possible to do so
without damage to property.
ii. The period of the lease is coextensive with the period of
usufruct.
Note: The option to remove improvements
belongs to the usufructuary, and the naked
owner cannot compel him to do so, neither
can the owner compel the usufructuary to
leave the improvements and just pay for
their value.
Exception: Lease of rural lands will subsist
during the agricultural year despite
expiration of the usufruct [Art. 572, CC]
Rules as to Lease:
• A lease executed by the usufructuary
before the termination of the usufruct and
subsisting after the termination of the
usufruct must be respected, but the rents
for the remaining period will belong to the
owner.
• If the usufructuary has leased the lands or
tenements given in usufruct, and the
usufruct should expire before the
termination of the lease, he or his heirs and
successors shall receive only the
proportionate share of the rent that must be
paid by the lessee. [Art. 568, CC]
• A lease executed by the owner before the
creation of the usufruct is not extinguished
by such usufruct.
Notes:
• Future crops may be sold but such sale
would be void if usufruct terminates prior to
harvest of future fruits. The buyer’s remedy
is to recover from the usufructuary.
• The usufructuary-lessor is liable for the act
of the substitute.
• A usufructuary who alienates or leases his
right of usufruct shall answer for any
damage which the things in usufruct may
suffer through the fault or negligence of the
person who substitutes him. [Art. 590, CC]
d. Right to enjoy any increase which
the thing may acquire through
accession [Art. 571, CC]
CIVIL LAW
iv. The usufructuary has the right to set-off
the improvements on the property
against any damage to the same [Art.
580]
Note: Registration of improvements – to
protect usufructuary against 3rd persons
f.
Right of retention: to retain the
thing/property
until
he
is
reimbursed for taxes on the capital
and advances for extraordinary
expenses [Art. 612, CC]
The usufructuary has the right of retention until
he is reimbursed of the amount he paid for
taxes and the increase in value caused by the
extraordinary repairs he made.
RIGHTS AS TO THE LEGAL RIGHT OF
USUFRUCT ITSELF
[ABE – Alienate, Bring action, Exercise all
rights]
i.
To alienate or mortgage the right
itself [Art. 572, CC]
The usufructuary may alienate his right of
usufruct, even by a gratuitous title (e.g.
donation); but all the contracts he may enter
into as such usufructuary shall terminate upon
the expiration of the usufruct. [Art. 572, CC]
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Except
1. Parental usufruct [Arts. 225 and 226, FC]
2. Usufruct given in consideration of the
person of the usufructuary intended to
last during his lifetime
3. Gratitude on the donee’s part demands
that the donor be excused from filing
the bond.
4. Title constituting usufruct excused
usufructuary.
5. A usufructuary may take possession
under a caucion juratoria (bond by
oath) [Art. 587, CC]
6. When there is waiver by the naked
owner [Paras (Property), p. 612].
7. When the usufructuary is the donor of
the property who has reserved the
usufruct [Art. 584, CC].
8. When there is a parental usufruct
under the Family Code [Art. 225, CC].
ii. To bring action and oblige the owner
to give him proper authority and
necessary proof in cases of usufruct
to recover real property, real right,
or movable property [Art. 578, CC]
The action may be brought in the name of the
usufructuary.
If a favorable judgement is obtained, the
usufruct shall be limited to the fruits, and the
naked ownership shall belong to the owner.
[Art. 578, CC]
Requisites of Caucion juratoria:
1. Proper court petition;
2. Usufruct is over a house, furniture or
tools of a trade and the necessity for
delivery of furniture, implements or
house included in the usufruct;
3. Approval of the court; and
4. Sworn promise.
OBLIGATIONS OF USUFRUCTUARY
i.
•
Obligations at the beginning of the
usufruct or before exercising the
usufruct
To make, after notice to the owner or his
legitimate representative, an inventory of
all the property, which shall contain an
appraisal of the movables and a
description of the condition of the
immovables [Art. 583 (1), CC]
Exceptions to making inventory
a. No one will be injured thereby [Art. 585,
CC]
b. Title constituting usufruct excused the
making of inventory.
c. Title constituting the usufruct already
made the inventory.
•
To give security, binding himself to fulfill
the obligations imposed upon him in
accordance with this Chapter. [Art. 583 (2),
CC]
Exceptions to Giving Security
1. No prejudice would result; [Art. 585,
CC]
2. Usufruct is reserved by a donor; [Art.
584, CC]
CIVIL LAW
Note: These requirements are not conditions
precedent to the commencement of the right of
the usufruct but merely to the entry upon the
possession and enjoyment of the property.
Effect of failure to give bond: [Art. 586, CC]
a. The owner may demand that the
immovable properties be placed under
administration;
b. That the movable properties be sold and
the proceeds of the sale be the property
held in usufruct – legal interest of 6% shall
be the fruits;
c. That the public bonds, instruments of credit
payable to order or to bearer be converted
into registered certificates or deposited in a
bank or public institution; and
d. That the capital or sums in cash and the
proceeds of the sale of the movable
property be invested in safe securities.
e. The owner may, until the usufructuary
gives security, retain in his possession the
property in usufruct as administrator,
subject to the obligation to deliver to the
usufructuary the net proceeds, after
deducting the sums, which may be agreed
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upon or judicially allowed him for such
administration.
usufruct or the fault or negligence of the
usufructuary’s agent. [Art. 590, CC]
ii. Obligations during the usufruct
iii. Obligations at the Time of the
Termination of the Usufruct
[CAPCORN – Care, Allow improvements, Pay
AIDE (Annual taxes, Interest, Debts, Expenses
for litigation), Collect credit, Ordinary repairs,
Replace animals, Notify UP (Urgent repairs,
Prejudicial act)]
a. To take Care of the property as a good
father of the family [Art. 589]
b. To make Ordinary repairs – required by the
wear and tear due to the natural use of the
thing and are indispensable for its
preservation. [Art. 592, CC]
c. To inform/Notify the owner of urgent
extraordinary repairs [Art. 593, CC]
d. To Allow the naked owner to make works
and improvements of which the immovable
in usufruct is susceptible, or plantings, if
rural [Art. 595, CC].
Provided:
1. The works or improvements are not
prejudicial to the usufructuary’s
rights.
2. No diminution in the value of the
object in usufruct.
e. To pay Annual taxes and charges on the
fruits for the time the usufruct lasts. [Art.
596, CC]
f. To pay Interest on taxes on capital paid by
the naked owner. [Art. 597, CC]
g. To pay Debts if the usufruct is over the
entirety of a patrimony [Art. 598, CC]
h. To Secure the approval of the owner or the
court to collect credit which form part of the
usufruct, if he has not given proper security
or has been excused from giving security.
[Art. 599, CC]
i. To notify owner of any Prejudicial act to the
rights of ownership over the usufruct, by a
third person. [Art. 601, CC]
j.
CIVIL LAW
Consequence: He is liable for damages if
he fails to give notice.
To pay Expenses and costs for litigation if
incurred because of the usufruct. [Art. 602,
CC] To answer for fault or negligence of the
one he alienated, leased to the object of the
[RIP – Return, Indemnify, Pay interest]
a. To return the thing upon termination.
b. To pay legal interest for the duration of the
usufruct on the expenses for extraordinary
repairs, if naked owner made the repairs
[Art. 594, CC]
c. To pay proper interest on sums paid as
taxes by the owner
d. To indemnify the naked owner for any loss
caused by the negligence of the
usufructuary or his transferees
4. Rights of the Owner
a. At the Beginning of the Usufruct
See obligations of usufructuary at the
beginning of the usufruct discussed above.
b. During the Usufruct
1. The owner retains title to the thing or
property.
2. He may alienate the property. [Art. 581,
CC] He may not alter the form or substance
of the thing, nor do anything prejudicial to
the usufructuary.
3. He may construct buildings, make
improvements and plantings, provided:
● The value of the usufruct is not
impaired; and
● The rights of the usufructuary are not
prejudiced. [Art. 595, CC]
4. He can constitute a voluntary easement
over land/building held in usufruct without
the usufructuary’s consent. But if it affects
the usufructuary’s right, the latter must give
his consent. [Art. 689, CC]
! If the easement is perpetual, the
consent of both must be obtained. [Art.
690, CC]
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●
5. Extinction, Termination, and
Extinguishment
HOW EXTINGUISHED; TERMINATED
a. By the death of the usufructuary
Usufruct is personal and it cannot be extended
beyond the lifetime of the usufructuary.
[Eleizegui v. Lawn Tennis Club, 2 Phil 309
(1903)].
This is true even if a resolutory period or
condition has been stipulated and the
usufructuary dies before the expiration of the
period or the fulfillment of the condition. [De
Leon]
Exceptions
1. When a contrary intention clearly appears
[Art. 603, CC]
● The parties may expressly stipulate
that the usufruct shall continue even
after the death of the usufructuary until
the arrival of a period or the happening
of a certain event. [Paras]
2. In cases of multiple usufructs, the usufruct
ends at the death of the last survivor [Art.
611, CC]
● If constituted simultaneously: ALL
USUFRUCTUARIES must be alive or
at least conceived at the time of the
constitution [Art. 863, CC] [Paras]
● If constituted successively [Paras]:
○ By virtue of a donation: ALL
DONEES - USUFRUCTUARIES
must be alive at the time of
donation [Art. 756, CC]
○ By virtue of a will: there should
only
be
2
successive
usufructuaries’, and both must
have been alive at the time of
testator’s death [Same rule as in
fideicommissary substitution in
Art. 863 and 869, CC]
3. If the period is fixed using the life of another
person as reference or there is a resolutory
condition
In this case, the death of the
usufructuary would not affect the
usufruct and the right is instead
transmitted to the heirs of the
usufructuary until the expiration of the
term or the fulfillment of the condition.
b. By the expiration of the period for
which it was constituted
Special Cases of Period:
1. Special case of juridical persons [Art. 605,
CC]
● Usufruct cannot be constituted in favor
of a town, corporation, or association
for more than 50 years.
● If before the expiration of such period
the town is abandoned, or the
corporation or association is dissolved,
the usufruct shall be extinguished.
2. Special case of third person attaining a
certain age [Art. 606, CC]
● Subsists for the period specified (until
the birthday at which the person
would’ve attained that age)
○ Exception: The usufruct has
been expressly granted only in
consideration of the existence
of such person.
c. By the fulfillment of any resolutory
condition provided in the title
creating the usufruct
d. By merger of the usufruct and
ownership in the same person
e. By
renunciation
usufructuary
of
the
Limitations [De Leon]
1. May be made expressly or impliedly,
but must comply with the forms of
donation
2. Does not require the consent of the
naked owner
3. If made in fraud of creditors, they may
rescind the waiver through an action
under Art. 1381, CC (accion pauliana).
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the
usufructuary
refuses
to
contribute to
the premium
(Par. 2)
f. By the total loss of the thing in
usufruct
Total loss: when the thing in usufruct is
completely destroyed, or perishes, or
disappears in such a way that its existence is
unknown or it cannot be recovered, or it goes
out of commerce [Art. 1189, CC]
If the owner does not
rebuild: Usufruct continues
over the remaining land and
materials (plus interests)
If the owner rebuilds:
Usufruct does not continue
on the new building, but
owner should pay interest
on the value of the land and
materials.
Situation
Effect
Art. 607, CC
If destroyed property is not insured
If usufruct is
If the owner does not
on
the
rebuild: Usufruct continues
building and
over the land and materials
the land (Par.
(plus interests).
1)
If the owner does not
rebuild: Usufruct continues
over the land and materials
(plus interests).
If the owner rebuilds:
If usufruct is Owner can occupy the land
on
the and use the materials.
building only
(Par. 2)
If the owner occupies the
land and uses the materials,
he
must
pay
the
usufructuary during the
continuance of the usufruct
the interest on the value of
the land and materials.
Art. 608, CC
If destroyed property is insured before
termination of the usufruct
If the owner rebuilds:
When
Usufructuary can continue
insurance
enjoying the new building.
premium paid
by owner and If the owner does not
usufructuary
rebuild: Usufructuary shall
(Par. 1)
receive interest on the
insurance indemnity.
When
the
Owner shall receive the full
insurance is
amount of the insurance
taken by the
indemnity in case of loss,
naked owner
and either of the following,
only because
depending on the case
(apply Art. 607, CC):
When
insurance
taken
by
usufructuary
only depends
on value of
usufructuary’s
insurable
interest
[Labitag
Diagrams]
Insurance proceeds go to
the usufructuary.
No obligation to rebuild.
Usufruct continues on the
land.
Owner has no share in
insurance proceeds.
g. By the termination of the right of
the person constituting the
usufruct
Example: A usufruct constituted by a vendee a
retro terminates upon redemption.
h. By prescription
•
•
•
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This refers to acquisitive prescription by a
stranger. [Paras]
It is not the non-use which extinguishes the
usufruct by prescription, but the use by a
3rd person. [Tolentino]
There can be no prescription as long as the
usufructuary receives the rents from the
lease of the property, or he enjoys the price
of the sale of his right. [Tolentino]
U.P. LAW BOC
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EFFECT OF TERMINATION [ART. 612,
CC]
a. Obligations and Rights of the
Usufructuary [Paras]
●
●
●
Must return the property to the naked
owner [Art. 612, CC]
Right to retain the property till he is
reimbursed
○ For taxes on the capital which had been
advanced by him [Art. 597(2), CC]; and
○ Indispensable extraordinary repairs or
expenses insofar as there has been an
increase in the value [Art. 594(2), CC]
Right to remove removable improvements
[Art. 579, CC] or set them off against
damages he has caused [Art. 580, CC].
b. Obligations of the Owner [Paras]
•
•
•
given to him, the usufruct being totally
extinguished.
2. If both the naked owner and the
usufructuary were separately given
indemnity [Paras]
● Each owns the indemnity given to him,
the usufruct being totally extinguished.
3. If usufructuary alone was given the
indemnity [Paras]
● He must give it to the naked owner and
compel the naked owner to return
either the interest or to replace the
property.
● He may even deduct the interest
himself, if the naked owner fails to
object.
b. Bad Use of Thing in Usufruct [Art.
610, CC]
●
Must cancel the security or mortgage
after delivery is made [Art. 612, CC]
Must in case of rural leases, respect
leases made by the usufructuary, till
the end of the agricultural year [Art.
572, CC]
Must make reimbursements to the
usufructuary in the proper cases. [Arts.
597 and 594, CC]
●
ACTS WHICH DO NOT EXTINGUISH
THE USUFRUCT
a. Expropriation of Thing in Usufruct
[Art. 609, CC]
1. If the naked owner alone was given the
indemnity
• General Rule: The naked owner has
the option
○ To replace it with an equivalent
thing; or
○ To pay to the usufructuary legal
interest on the indemnity. This
requires a security to be given by
the naked owner for the payment of
the interest.
• Exception: If both the naked owner and
the usufructuary were separately given
indemnity, each owns the indemnity
CIVIL LAW
●
Bad use of the thing in usufruct does
not extinguish the right of the
usufructuary whether there is security
or not.
If bad use causes considerable injury
to the owner:
○ It does not extinguish the
usufruct but the owner is
entitled to demand delivery and
administration of the thing with
the obligation to pay annually
the net proceeds.
The usufructuary is liable for damages
caused to property.
c. Usufruct over a Building of Thing
in Usufruct [Art. 607 and 608, CC]
[See table above for the application.]
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incorporation, by destination or by
analogy. Also, it cannot be established
on things beyond the commerce of
man, (i.e. property of public dominion).
H. EASEMENTS
1. Characteristics
a. It is a real right.
• It gives rise to an action in rem or real
action against any possessor of the
servient estate. It is enforceable
against the whole world. The owner of
the dominant estate can file a real
action for enforcement of right to an
easement.
Note: Being a real right, an easement is
constituted on corporeal immovable property of
another by virtue of which the owner has to
refrain from doing, or must allow someone to
do something on his property for the benefit of
another thing or person. It exists only when the
servient and dominant estates belong to two
different owners. It gives the holder of the land
but grants no title thereto. Therefore, an
acknowledgment of the easement is an
admission that the property belongs to another.
Having held the property by virtue of an
easement, petitioner cannot assert that its
occupancy since 1929 was in the concept of an
owner. [Cuaycong v. Benedicto, 37 Phil. 781]
e. It limits the servient owner’s right of
ownership for the benefit of the
dominant estate.
• There exists a limitation on ownership:
the dominant owner is allowed to enjoy
or use part of the servient estate, and
owner of the servient estate is
restricted in his enjoyment of his
property. The right given is right of
limited use, but no right to possess
servient estate.
• It is essential that there be a benefit
though it is not essential that it be great
in character or actually exercised. The
benefit goes to the dominant estate,
not necessarily to the owner of said
estate. [Paras, p. 653]
• The right given is the right of limited
use, but no right to possess servient
estate.
• Being an abnormal limitation of
ownership, it cannot be presumed.
f.
b. It is a right enjoyed over another’s
property (jus in re aliena).
• When the dominant and the servient
estates have the same owner, the
easement is extinguished. Separate
ownership is a prerequisite to an
easement. The acknowledgment of an
easement is an admission that the
property belongs to another.
c. It can only exist between neighboring
estates in case of real easements.
d. It is a right constituted only over an
immovable by nature (land and
buildings). [Art. 613, CC]
• It cannot be constituted over movable
properties or even immovable by
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It creates a relation between tenements.
• There is no transfer of ownership but a
relationship is created, depending on
the type of easement.
• General Rule: It may consist in the
owner of the dominant estate
demanding that the owner of the
servient estate refrain from doing
something (servitus in non faciendo) or
that the latter permit that something be
done over the servient property
(servitus in patendo), but not in the
right to demand that the owner of the
servient do something (servitus in
faciendo), except if such act is an
accessory obligation to a praedial
servitude (obligation propter rem). The
servient
owner
merely
allows
something to be done to his estate.
• Praedial servitudes
○ Right to place beams in an
adjoining wall to support a
structure.
U.P. LAW BOC
○
PROPERTY
Right to use another’s wall to
support a building.
g. It is inherent or inseparable from estate
to which they actively or passively
belong. [Art. 617, CC]
• Easements are merely accessory to
the tenements, and a “quality thereof.”
They cannot exist without tenements.
However, they may exist even if they
are not expressly stated or annotated
as an encumbrance on the titles.
h. It is intransmissible.
• It cannot be alienated separately from
the tenement affected or benefited.
Any alienation of the property covered
carries with it the servitudes affecting
said property. However, this affects
only the portion of the tenement with
the easement, meaning that the
portions unaffected can be alienated
without the servitude.
i.
j.
CIVIL LAW
It is indivisible. [Art. 618, CC]
• If the servient estate is divided between
two or more persons, the easement is
not modified, and each of them must
bear it on the part that corresponds to
him.
• If the dominant estate is divided
between two or more persons, each of
them may use the easement in its
entirety, without changing the place of
its use, or making it more burdensome
in any other way.
It has permanence or is perpetual.
• Once it attaches, whether used or not,
it continues and may be used anytime
• Perpetual: Exists as long as property
exists, unless it is extinguished.
EASEMENTS V. OTHERS
Easement Distinguished from Lease
Easement
Lease
Real right, whether
Real right only when
registered or not.
it is registered, or
when its subject
matter is real
May be constituted
only on an
immovable by
nature.
Limited to use of
real property of
another but without
the right to possess.
property and the
duration exceeds
one year.
May be constituted
on real or personal
property unless a
contrary intention
appears.
Limited right to both
the use and
possession of the
property of another.
Easement Distinguished from Usufruct
Easement
Usufruct
May be constituted
May be constituted on
only
on
an
either movable or
immovable
by
immovable property.
nature.
Not extinguished by
Extinguished by the
the
death
of
death of usufructuary.
dominant owner.
Non-possessory
Involves a right of
right
over
an possession over an
immovable.
immovable.
Limited to particular Includes all the uses
or specific use of and the fruits of the
the servient estate. property.
Note:
1. 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.
2. 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. An easement cannot be the
object of a usufruct because it has no
existence independent of the property to
which it attaches.
3. There can be no easement over another
easement for the same reason as in no. 1
above.
General Rules
1. Nulli res sua servi: No one can have a
servitude over one’s own property.
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2. Servitus in faciendo consistere nequit: A
servitude cannot consist in doing. Although
some easements seem to impose a
positive prestation upon the owner of the
servient estate, in reality, the primary
obligation is still negative.
Illustration: The owner of a tree whose
branches extend over to a neighboring
property is required to cut off the extended
branches, but the real essence of the
easement is the obligation not to allow the
branches of the tree to extend beyond the
land.
Exception: Praedial servitude, where the
positive obligation is an accessory to the
negative easement. [Art. 680, CC]
3. Servitus servitutes esse non potest: There
can be no servitude over another servitude.
4. A servitude must be exercised civiliter, or in
a way least burdensome to the owner of the
servient estate.
5. A servitude must have a perpetual cause.
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[Art. 616, Negative: Prohibits the owner
CC]
of the servient estate from
doing something that he could
lawfully do if the easement did
not exist
Legal [Art. 619 and 634, CC]:
created by law, whether for
public use or for the interest of
private persons.
Example: Natural drainage of
waters, Abutment of land,
Aqueduct, etc.
Voluntary [Art. 619, CC]:
created by the will of the
owners of the estate through
contract, last will or donation.
These must be recorded in the
As to its
Registry of Property
to
cause or
prejudice third persons.
origin
Mixed: created partly by will or
agreement and partly by law.
Note: There is no such thing as
a JUDICIAL EASEMENT. The
Courts
cannot
create
easements, they can only
declare the existence of one, if
it exists by virtue of the law or
will of the parties. [Castro v.
Monsod, G.R. No. 183719
(2011)]
2. Classification
Real or Praedial: exists for the
benefit
of
a
particular
tenement. [Art. 613, CC]
Personal: exists for the benefit
of persons without a dominant
tenement [Art. 614, CC]
Continuous: Use is or may be
without
the
As to its incessant,
intervention of any act of man
exercise
[Art. 615, Discontinuous:
Used
at
CC]
intervals, and dependent upon
the acts of man.
Apparent: Made known and
As
indication continually kept in view by
of
its external signs that reveal the
existence use and enjoyment of the same
[Art. 615, Non-apparent: No external
CC]
indication of their existence.
Positive: Imposes upon the
As to the
owner of the servient estate the
object or
obligation
of
allowing
obligation
something to be done, or of
imposed
doing it himself.
As
to
recipient
of
benefits
Relevance of Classifications
1. Determines whether or not the easement
can be acquired by prescription of ten
years or by title. [Art. 620 and 622, CC]
2. Determines how to compute the
prescriptive period in case it can be
acquired by prescription. [Art. 621, CC]
3. Determines how easement is lost by
prescription [Art. 631(2), CC]
LAW GOVERNING LEGAL EASEMENTS
For public easements
• Special laws and regulations relating
thereto. (e.g. PD 1067 (Water Code) and
PD 705 (Forestry Code))
• By the provisions of Chapter 2, Title VII,
Book II, CC.
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For private legal easements
• By agreement of the interested parties
whenever the law does not prohibit it and
no injury is suffered by a 3rd person.
• By the provisions of Chapter 2, title VII,
Book II.
KINDS OF PRIVATE LEGAL EASEMENTS
PROVIDED BY THE NEW CIVIL CODE
1. THOSE ESTABLISHED FOR THE
USE OF WATERS OR RELATING TO
WATERS
1. Natural Drainage [Art. 637, CC]
Lower estates are obliged to receive the waters
which naturally and without the intervention of
man descend from the higher estates (as well
as the stones or earth which they carry with
them).
The owner of the lower estate cannot construct
works which will impede this easement; neither
can the owner of the higher estate make works
which will increase the burden.
Refer to Art. 456 of the Water Code which
states that “when artificial means are employed
to drain water from higher to lower land, the
owner of the highest land shall select the routes
and methods of drainage that will cause the
minimum damage to the lower lands, subject to
the requirements of just compensation.” [P.D.
1067, Water Code]
2. Riparian Banks [Art. 638, CC]
The banks of rivers and streams, even in case
they are of private ownership, are subject
throughout their entire length and within a zone
of 3 meters for urban areas, 20 meters for
agricultural areas and 40 meters for forest
areas (PD 1067, Water Code as amended by
PD 1067) along their margins, to the easement
of public use in the general interest of
navigation, floatage, fishing, recreation and
salvage.
Estates adjoining the banks of navigable or
floatable rivers are subject to the easement of
towpath for the exclusive service of river
navigation and floatage. If it be necessary to
CIVIL LAW
occupy lands of private ownership, the proper
indemnity shall first be paid.
3. Abutment of a Dam [Art. 639, CC]
Whenever for the diversion or taking of water
from a river or brook, or for the use of any other
continuous or discontinuous stream, it should
be necessary to build a dam, and the person
who is to construct it is not the owner of the
banks, or lands which must support it, he may
establish the easement of abutment of a dam,
after payment of the proper indemnity.
4. Drawing Water and Watering Animals
[Arts. 640-641, CC]
Compulsory easements for drawing water or
for watering animals can be imposed only for
reasons of public use in favor of a town or
village, after payment of the proper indemnity.
[Art. 640, CC]
Easements for drawing water and for watering
animals carry with them the obligation of the
owners of the servient estates to allow passage
to persons and animals to the place where
such easements are to be used, and the
indemnity shall include this service. [Art. 641,
CC]
The width of the easement must not exceed 10
meters. [Art. 657, CC]
5. Aqueduct [Arts. 642-646, CC]
Any person who may wish to use upon his own
estate any water of which he can dispose shall
have the right to make it flow through the
intervening estates, with the obligation to
indemnify their owners, as well as the owners
of the lower estates upon which the waters may
filter or descend. [Art. 642, CC]
Requisites to establish easement of Aqueduct
[Art. 643, CC]:
• To prove that he can dispose of the
water and that it is sufficient for the use
for which it is intended;
• To show that the proposed right of way
is the most convenient and the least
onerous to third persons;
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To indemnify the owner of the servient
estate in the manner determined by the
laws and regulations.
What it cannot be imposed on: Easement of
aqueduct for private interest cannot be
imposed on buildings, courtyards, annexes, or
outhouses, or on orchards or gardens already
existing. [Art. 644, CC]
CIVIL LAW
to be taken, for the purpose of improving an
estate.
Such person may demand that the owners of
the banks permit its construction, after
payment of damages, including those caused
by the new easement to such owners and to
the other irrigators.
2. RIGHT OF WAY [Arts. 649-657, CC]
Right of servient estate owner: This easement
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 latter any damage, or render
necessary repairs and cleanings impossible.
[Art. 645, CC]
Treatment under law: This easement is
considered as continuous and apparent, even
though the flow of the 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. [Art. 646, CC]
In the appropriation of water, there is a need to
apply for water rights.
Any person having an easement for an
aqueduct may enter upon the servient land for
the purpose of cleaning, repairing or replacing
the aqueduct or the removal of obstructions
therefrom [P.D. 1067, Water Code]
Easements for aqueduct and of right of way
cannot be acquired by prescription because
although it may be apparent, it is discontinuous
in character. Under the Water Code of the
Philippines, all waters belong to the state.
Water legally appropriated shall be subject to
the control of the appropriator from the moment
it reaches the appropriator from the moment it
reaches the appropriator’s canal or aqueduct
leading to the place where the water will be
used or stored and, thereafter, so long as it is
being beneficially used for the purposes for
which it was appropriated. [Art. 8, Water Code]
6. Stop Lock or Sluice Gate [Art. 647, CC]
The construction of a stop lock or sluice gate in
the bed of the stream from which the water is
Who may demand [Art. 649, CC]
1. The owner of the dominant estate; or
2. Any person with the real right to
cultivate or use the dominant estate
e.g. a usufructuary, a de jure
possessor.
Note: A lessee cannot demand such
easement, because the lessor is the one bound
to maintain him in the enjoyment of the
property.
Note: A right of way can be established through
the will of parties as well, and the provisions on
the legal easement of right of way will not
govern.
Requisites for legal demand to establish the
easement of right of way [Art. 649, CC and
Floro v. Llenado, G.R. No. 75723, 1995]]
The dominant estate is surrounded by other
immovables owned by other persons;
1. There must absolutely be no access
i.e. means of entrance or exit/egress
to a public highway;
2. Even if there is access, it is difficult or
dangerous to use, or grossly
insufficient;
• Mere inconvenience in the use of
an outlet does not render the
easement a necessity.
• An adequate outlet is one that is
sufficient for the purpose and
needs of the dominant owner, and
can be established at a reasonable
expense.
• Does not necessarily have to be by
land – an outlet through a
navigable river or a lake or the sea
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if suitable to the needs of the
tenement is sufficient.
3. The isolation of the immovable is not
due to the dominant owner’s own acts
e.g. if he constructs building to others
obstructing the old way; and
4. There is payment of indemnity.
If right of way is permanent and continuous for
the needs of the dominant estate = value of the
land + amount of damage caused to the
servient estate.
If right of way is limited to necessary passage
for cultivation of the estate and for gathering
crops, without permanent way = damage
caused by encumbrance.
Rules for establishing Right of Way
The easement of right of way shall be
established at the point least prejudicial to the
servient estate, and, insofar as consistent with
this rule, where the distance from the dominant
estate to a public highway may be the shortest.
[Art. 650, CC]
The criterion of least prejudice to the servient
estate must prevail over the criterion of
shortest distance although this is a matter of
judicial appreciation. While shortest distance
may ordinarily imply least prejudice, it is not
always so as when there are permanent
structures obstructing the shortest distance;
while on the other hand, the longest distance
may be free of obstructions and the easiest or
most convenient to pass through. [Quimen v.
CA, G.R. No. 112331 (1996)]
The fact that LGV had other means of egress
to the public highway cannot extinguish the
said easement, being voluntary and not
compulsory. The free ingress and egress along
Mangyan Road created by the voluntary
agreement between the parties is thus legally
demandable with the corresponding duty on
the servient estate not to obstruct the same. [La
Vista Association v. CA, G.R. No. 95252
(1997)]
The width of the easement of right of way shall
be that which is sufficient for the needs of the
CIVIL LAW
dominant estate, and may accordingly be
changed from time to time. Art. 651, CC]
Who has the burden of proof in an action for
right of way? The burden of proving the
existence of the prerequisites to validly claim a
compulsory right of way lies on the owner of the
dominant estate.
Obligations in Permanent and Temporary
Easements of Right of Way
Permanent right of Temporary right of
way
way
Indemnity
Consists
of
the
Consists
of
the
damages and the
damages only.
value of the land.
Necessary repairs
Dominant owner to Servient owner to
spend.
spend.
Share in taxes
The dominant owner
shall reimburse a
proportionate share Servient owner to
of taxes to the spend on such.
proprietor of the
servient estate.
Rules on Indemnity for Estates Enclosed
Through a Sale, Exchange, Partition or
Donation.
Sale, exchange or
Donation
partition
Buyer, grantee or done as dominant
owners
The buyer or grantee
shall grant the right The donee shall pay
of
way
without the donor indemnity.
indemnity.
Seller, grantor or donor as dominant
owners
The donee shall
The seller or grantor
grant the right of way
shall pay indemnity.
without indemnity.
Notes on extinguishment
• Extinguishment is not automatic. The
owner of the servient estate must ask for
such extinguishment.
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Indemnity paid to the servient owner must
be returned without interest. Interest on
account of indemnity is deemed to be rent
for use of easement.
Special Rights of Way
a. Right of way to carry materials for the
construction,
repair,
improvement,
alteration or beautification of a building
through the estate of another; or
b. Right of way to raise on another’s land
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. [Art. 656, CC]
c. Right of way for the passage of livestock
known as animal path, animal trail, watering
places, resting places, animal folds:
Governed by the ordinances and
regulations relating thereto, and, in the
absence thereof, by the usages and
customs of the place. [Art. 657, CC]
Limitations as to measurements:
• Animal path - max width of 75 meters.
• Animal trail - max width of 37 meters and
50 centimeters.
• Watering place for animals - max width of
10 meters.
3. PARTY WALL [Arts. 658-666, CC]
Definition
A common wall which separates two estates,
built by common agreement at the dividing line
such that it occupies a portion of both estates
on equal parts.
A party wall is a special form of co-ownership
(see Art. 658, CC).
• Each owner owns part of the wall but it
cannot be separated from the other
portions belonging to the others. A party
wall has a special characteristic that makes
it more of an easement as it is called by
law.
• An owner may use a party wall to the extent
of the ½ portion on his property.
CIVIL LAW
Party Wall
Shares of the coowners cannot be
physically
segregated but they
can be physically
identified.
Co-Ownership
Before division of
shares, a co-owner
cannot point to any
definite portion of the
property
as
belonging to him.
None of the coowners may use the
community property
There is no such for his exclusive
limitation.
benefit because he
would be invading
the rights of the
others.
Any owner may free
himself
from
contributing to the
In a co-ownership,
cost of repairs and
partial renunciation
construction of a
is allowed.
party
wall
by
renouncing all his
rights thereto.
When Existence of Easement of Party Wall
is Presumed [Art. 659, CC]
• In dividing walls of adjoining buildings up to
the point of common elevation;
• In dividing walls of gardens or yards
situated in cities, or towns, or in rural
communities;
• In fences, walls and live hedges dividing
rural lands.
Note: A title or an exterior sign, or any other
proof showing that the entire wall in
controversy belongs exclusively to one of the
adjoining property owners may rebut these
presumptions.
Question: In an easement of party wall, what
estate is dominant and what is servient? The
party wall itself is servient, while the adjoining
estates belonging to the co-owners of the party
wall are dominant. Refer to Arts. 613 and 614
of the Civil Code.
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CIVIL LAW
When Existence of An Exterior Sign Is
Presumed [Art. 660, CC]
1. Whenever in the dividing wall of buildings
there is a window or opening;
2. Whenever the dividing wall is, on one side,
straight and plumb on all its facement, and
on the other, it has similar conditions on the
upper part, but the lower part slants or
projects outward;
3. Whenever the entire wall is built within the
boundaries of one of the estates;
4. Whenever 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;
5. Whenever the dividing wall between
courtyards, gardens, and tenements is
constructed in such a way that the coping
sheds the water upon only one of the
estates;
6. Whenever the dividing wall, being built of
masonry, has stepping stones, which at
certain intervals project from the surface on
one side only, but not on the other;
7. Whenever lands enclosed by fences or live
hedges adjoin others that are not enclosed.
3. To acquire a half-interest in any increase in
height or thickness of the wall, paying a
proportionate share in the cost of the work
and the value of the land covered [Art. 665,
CC].
4. To renounce his part ownership of a party
wall if he desires to demolish his building
supported by the wall. [Art. 663, CC] He
shall bear all the expenses of repairs and
work necessary to prevent any damage
which the demolition may cause to the
party wall.
Note: The deposit of earth or debris on one side
alone is an exterior sign that the owner of that
side is the owner of the ditch or drain. The
presumption is an addition to those
enumerated in Art. 660, CC. [Art. 661, CC]
2. If he raises the height of the wall, he must:
• Bear the cost of maintenance of the
additions;
• Bear the cost of construction, if the wall
cannot support the additional height;
• Give additional land, if necessary to
thicken the wall;
• Pay for damages, if necessary, even if
temporary; and
• Bear the increased expenses for
preservation. [Art. 664, CC]
Rights of Owners of a Party Wall
1. Generally, part-owners may use the wall in
proportion to their respective interests [Art.
666, CC], provided that:
• The right to use by the other party is not
interfered with;
• The consent by the other owner is
needed if a party wants to open a
window; and
• The condition of the building is
determined by experts.
2. To increase the height of the wall [Art. 664,
CC].
• He does this at his expense, including
the thickening of the wall on his land.
• He shall indemnify the other party for
any damages.
Obligations of Owners of a Party Wall
1. To contribute proportionately to the repair
and maintenance of the party wall [Art. 662,
CC].
Exception:
He renounces his partownership, and this includes the
renunciation of the share in the wall and the
land.
Exception to exception: He cannot
renounce his part if his building is being
supported by the party wall.
4. EASEMENT OF LIGHT AND VIEW
[ARTS. 667-673, CC]
Easement of light (jus luminum)
The right to admit light from the neighboring
estate by virtue of the opening of a window or
the making of certain openings.
Easement of view (jus prospectus)
The right to make openings or windows, to
enjoy the view through the estate of another
and the power to prevent all constructions or
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works which would obstruct such view or make
the same difficult.
•
The easement of view necessarily includes the
easement of light, because It is impossible to
have a view only without a light. However, it is
possible to have light without a view.
How acquired
Through a period of prescription of 10 years,
counted depending on whether it was positive
or negative in nature.
Nature [Art. 668, CC]
1. Positive: Opening a window through a
party wall.
• Period of prescription begins upon the
opening being made through the wall of
another.
o When a part owner of a party wall
opens a window therein, such act
implies the exercise of the right of
ownership by the use of the entire
thickness of the wall.
• The easement is created only after the
lapse of the prescriptive period.
2. Negative: Opening a window through a wall
on the dominant estate.
• Period of prescription begins upon the
formal prohibition upon the owner of the
adjoining land or tenement.
o Formal means that the prohibition
has been notarized. Meaning
notice and demand was given to
the owner of the possible servient
estate [Cortes v Yu-Tibo, G.R. No.
911 (1903)]
o When a person opens a window on
his own building, he is exercising
his right of ownership on his
property, which does not establish
an easement.
• Coexistent is the right of the owner of the
adjacent property to build or plant on his
own land, even if such structures or
planting cover the window.
• If the adjacent owner does not build
structures to obstruct the window, such is
considered mere tolerance and NOT a
waiver of the right to build.
CIVIL LAW
An easement is created only when the
owner opens up a window and
subsequently prohibits or restrains the
adjacent owner from doing anything that
may tend to cut off or interrupt the light and
the 10-year prescriptive period has lapsed
by a notarial prohibition.
Note: What is the reason why the easement of
light and view and the easement not to build a
higher easement (altius non tollendi) cannot go
together? The reason is because an easement
of light and view requires that the owner of the
servient estate shall not build to a height that
will obstruct the window. They are, as it were,
the two sides of the same coin. While an
easement of light and view is positive, that of
altius non tollendi is negative. [Amor v.
Florentino, 74 Phil. 403 (1943)]
Limitations as to measurements
No windows, apertures, balconies, or other
similar projections which afford a direct view
upon or towards an adjoining land or tenement
can be made, without leaving a distance of two
meters between the wall in which they are
made and such contiguous property. Neither
can side or oblique views upon or towards such
conterminous property be had, unless there be
a distance of sixty centimeters. [Art. 670, CC]
In cases of direct views from the outer line of
the wall when the openings do not project, the
distance shall be measured from the outer line
of the latter when they do, and in cases of
oblique view from the dividing line between the
two properties. [Art. 671, CC]
Exception: In buildings separated by a public
way or alley, not less than 3 meters wide, the
distances required do not apply [Art. 672, CC].
Exception: The distances may be stipulated
by the parties, provided that the distance
should not be less than what is prescribed by
the law (2 meters and 60 centimeters). [Art.
673, CC]
Whenever by any title a right has been
acquired to have direct views, balconies or
belvederes overlooking an adjoining property,
the owner of the servient estate cannot build
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thereon at less than a distance of three meters
to be measured in the manner provided in
Article 671. [Art. 673, CC]
Note: Breach of the required distances results
into the prescriptive period not running. [Art.
670, CC]
Notes on the Acquisition of the Easement
• Period of acquisitive prescription depends
upon whether the easement of light and
view is positive or negative.
o If positive, then the prescription
period is counted from the day the
window is opened.
o If negative, then the prescription
period is counted from the formal
prohibition made on the owner of
the servient estate. [Art. 668, CC]
5. DRAINAGE OF BUILDINGS [Art. 674,
CC]
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. [Art. 674, CC]
The true easement is where the adjacent
estate has the obligation of receiving the
rainwater falling from a neighboring roof and
giving it an outlet on his own lot so as not to
cause damage to the dominant estate. [Art.
675, CC]
Whenever the yard or court of a house is
surrounded by other houses, and it is not
possible to give an outlet through the house
itself to the rain water collected thereon, the
establishment of an easement of drainage can
be demanded, giving an outlet to the water at
the point of the contiguous lands or tenements
where its egress may be easiest, and
CIVIL LAW
establishing a conduit for the drainage in such
manner as to cause the least damage to the
servient estate, after payment of the property
indemnity. [Art. 676, CC]
Note: When is there a violation of easement of
drainage? Refer to Purugganan v. Paredes, 69
SCRA 69: When the roof of the appellants
protrudes by 98 centimeters over the property
of the appellee, so that during a heavy rainfall,
the propulsion of the water would go as far as
one meter over the property of the latter. Also
check on Sec. 8.01.05 (d) (1) of the National
Building Code.
6. INTERMEDIATE DISTANCES [Arts.
677-681, CC]
Prohibiting the construction and plantings near
fortified places or fortresses without complying
with special laws, ordinances and regulations
relative hereto, Art. 677 of the Civil Code, in
effect, establishes an easement in favor of the
State. The general prohibition is dictated by the
demands of national security.
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.
These prohibitions cannot be altered or
renounced by stipulation on the part of the
adjoining proprietors.
In the absence of regulations, such precautions
shall be taken as may be considered
necessary, in order to avoid any damage to the
neighboring lands or tenements. [Art. 678, CC]
Note: For definition of dangerous buildings,
please refer to Sec. 1.01.08 (b), R.A. 6541, The
National Building Code. Cases applicable are
De la Torre v. Bicol University, 468 SCRA 542
and Tague v. Fernandez, 51 SCRA 181.
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Planting of trees [Art. 679, CC]
No trees shall be planted near a tenement or
piece of land belonging to another except at the
distance authorized by the ordinances or
customs of the place. In the absence thereof:
• At least 2 meters from the dividing line of
the estates if tall trees are planted.
• At least 50 centimeters if shrubs or small
trees are planted.
In case of a violation, a landowner shall have
the right to demand the uprooting of the plant
even if it has grown spontaneously.
Branches, Roots and Fruits [Art. 680, CC]
If the branches of any tree should extend over
a neighboring estate, tenement, garden or
yard, the owner of the latter shall have the right
to demand that they be cut off. If it be the roots
of a neighboring tree, which should penetrate
into the land of another, the latter may cut them
off himself within his property.
Fruits naturally falling upon adjacent land
belong to the owner of said land. [Art. 681, CC]
7. LATERAL
AND
SUBJACENT
SUPPORT [Arts. 684-687, CC]
The proprietor is prohibited from making
dangerous excavations upon his land as to
deprive any adjacent land or building of
sufficient lateral or subjacent support. [Art. 684,
CC]
Any stipulation or testamentary provision
allowing excavations that cause danger to an
adjacent land or building shall be void. [Art.
685, CC]
The legal easement of lateral and subjacent
support is not only for buildings standing at the
time the excavations are made but also for
constructions that may be erected. [Art. 686,
CC]
• Easement of lateral and subjacent support
is deemed essential to the stability of
buildings.
• Lateral: When a vertical plane divides the
supported and supporting lands.
CIVIL LAW
•
Subjacent: When the supported land is
above the supporting land.
Any proprietor intending to make any
excavation contemplated in Arts. 684-686, CC
shall notify all owners of adjacent lands. [Art.
687, CC]
Note: Refer to Castro v. Monsod, 641 SCRA
486 (2011) on the need to annotate an
easement of lateral support at the back of the
land title of the servient estate where there is
judicial recognition existing.
8. EASEMENT AGAINST NUISANCE
[Arts. 682-683, CC]
Every building or piece of land is subject to the
easement which prohibits the proprietor or
possessor from committing nuisance through
noise, jarring, offensive odor, smoke, heat,
dust, water, glare and other causes. [Art. 682,
CC].
Subject to zoning, health, police and other laws
and regulations, factories and shops may be
maintained provided the least possible
annoyance is caused to the neighborhood. [Art.
683, CC]
3. Modes
of
Easements
Acquiring
An easement is either acquired through a
title/juridical act or by prescription. [Art. 620
and 622, CC]
Kind of
Easement
Continuous and
apparent (CA)
Continuous Nonapparent (CNA)
Discontinuous
and non-apparent
(DA)
Discontinuous
Non-apparent
(DNA)
Page 184 of 532
How acquired
Title
Prescription
YES
YES
YES
NO
YES
NO
YES
NO
U.P. LAW BOC
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When an easement is established, all rights
necessary for its use are considered granted.
[Art. 625, CC]
negative easement of light and view (altius non
tollendi) i.e. not to build a structure that will
cover the windows. [Amor v. Florentino, G.R.
No. L-48384 (1943)].
a. By Title (or by Something Equivalent
to a Title)
Something Equivalent to a Title: Refers to law
or juridical acts such as donations, contracts,
or wills.
• Continuous and apparent easements may
be acquired by virtue of a title. [Art. 620,
CC]
• Continuous non-apparent easements, and
discontinuous ones, whether apparent or
not, are acquired only by virtue of a title.
[Art. 622, CC]
• The absence of a document or proof
showing the origin of an easement which
cannot be acquired by prescription may be
cured by a deed of recognition by the
owner of the servient estate or by a final
judgment. [Art. 623, CC]
Deed of recognition: By an affidavit or a formal
deed acknowledging the servitude.
Final judgment: Owner of the dominant estate
must file a case in court to have the easement
declared by proving its existence through other
evidence.
The existence of an apparent sign of easement
between two estates, established or
maintained by the owner of both, shall be
considered, should either of them be alienated,
as a title in order that the easement may
continue actively and passively. This is also
applicable to cases of co-ownership. [Art. 624,
CC]
Exception: At the time the ownership of the
two estates is divided, the title of conveyance
of either of the two estates provides for the
contrary (says the easement will not continue)
or the apparent sign of easement is removed
before the execution of the deed of
conveyance. [Art. 624, CC]
CIVIL LAW
b. By Law (Legal Easements)
Easements imposed by law have for their
object either public use or the interest of private
persons. [Art. 634, CC]
These easements may be modified by
agreement of the interested parties, whenever
the law does not prohibit it, or no injury is
suffered by a third person. [Art. 636, CC]
c. By Will of the Owner (Voluntary
Easements)
Every owner of a tenement or piece of land
may establish thereon the easements which he
may deem suitable, and in the manner and
form which he may deem best, provided he
does not contravene the laws, public policy or
public order. [Art. 688, CC]
Note: If an owner constitutes an easement over
his own property and makes such easement
available to the general public, said owner may
not arbitrarily discriminate against certain
persons by not letting them use the easement.
[Negros Sugar Company v Hidalgo, G.R. No.
L-42334 (1936)]
When the property subject of the easement is
also in usufruct, the owner of the property may
establish an easement on the property, without
consent of the usufructuary; provided, the right
of the usufructuary is not injured. [Art. 689, CC]
Whenever the naked ownership belongs to one
person and the beneficial ownership to
another, no perpetual voluntary easement may
be established thereon without the consent of
both owners. [Art. 690, CC]
When the property is co-owned, consent of all
co-owners is required to impose an easement.
[Art. 691, CC]
Illustration: The presence of 4 windows was
considered an apparent sign that created a
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d. By Prescription
Example: Easement of drawing water
carries with it the easement of right of way
to the place where water is drawn.
Continuous and apparent easements may be
acquired by prescription of 10 years. [Art. 620,
CC]
Requisites:
1. The easement must be continuous and
apparent;
2. The easement must have been used for 10
years; and
3. There is no need for good faith or just title.
Computation of time of possession [Art.
621, CC]
1. Positive easements: From the day on
which the owner of the dominant estate, or
the person who may have made use of the
easement, commenced to exercise it upon
the servient estate
2. Negative easements: From the day on
which the owner of the dominant estate
forbade, by an instrument acknowledged
before a notary public, the owner of the
servient estate, from executing an act
which would be lawful without the
easement.
Note: Example of a continuous and apparent
easement is of light and view, as opposed to a
right of way which is discontinuous but
apparent, and thus cannot be acquired by
prescription.
Limitation: Only for the original immovable
and the original purpose.
3. To make, at his own expense, on the
servient estate, any works necessary for
the use and preservation of the servitude,
but without altering it or rendering it more
burdensome. [Art. 627(1), CC]
4. In a right of way, to ask for change in width
of easement sufficient for the needs of the
dominant estate. [Art. 651, CC]
The needs of the dominant property
ultimately determine the width of the
passage. And these needs may vary from
time to time. [Encarnacion v. CA, G.R. No.
77628 (1991)]
5. To renounce totally the easement, if he
desires to be exempt from contributing to
the expenses. [Art. 628, CC]
b. Obligations
Owner
a. Rights of Dominant Estate Owner
1. To use the easement and exercise all
rights necessary for it [Art. 625, CC].
2. The owner of the dominant estate is
granted the right to use the principal
easement, and all accessory servitudes.
Dominant
Estate
1. To use the easement for the benefit of
immovable and in the manner originally
established [Art. 626, CC]
Mere passage which was permitted and is
under an implied license cannot be the basis of
prescription. [Archbishop of Manila v. Roxas,
G.R. No. L-7386 (1912)]
4. Rights and Obligations of the
Owners of Dominant and
Servient Estates
of
If established for a particular purpose, the
easement cannot be used for a different
one. However, if established in a general
way, without specific purpose, the
easement can be used for all the needs of
the dominant estate.
2. To notify the owner of the servient estate
before making repairs and to make repairs
in a manner least inconvenient to the
servient estate [Art. 627(2), CC]
3. Not to alter the easement or render it more
burdensome. [Art. 627, CC]
Page 186 of 532
In an easement of a right of way, widening
the road means making the easement
more burdensome. [Valderrama v. North
U.P. LAW BOC
PROPERTY
CIVIL LAW
Negros Sugar Co., G.R. No. L-23810
(1925)]
Exception: Unless there is an agreement to
the contrary.
4. To contribute to expenses of works
necessary for use and preservation of
servitude, if there are several dominant
estates. [Art. 628, CC]
3. To pay for the expenses incurred for the
change of location or form of the easement
The contribution is in proportion to the
benefits which each may derive from the
work.
Ways by which an easement may be
extinguished: [Art. 631, CC] [MINERRO –
Merger, Impossibility, Non-use, Expiration,
Renunciation, Redemption, Other causes]
c. Rights of the Servient Estate Owner
1. To retain the ownership of the portion of the
estate on which the easement is
established [Art. 630, CC]
2. To use the easement, provided he shall
also be obliged to pay the expenses
necessary for the preservation and use of
the servitude. [par. 2, Art. 628, CC]
Exception to paying expenses: There is an
agreement to the contrary.
3. To change the place or manner of the use
of the easement, provided it be equally
convenient [par. 2, Art. 629, CC]
In case the easement becomes very
inconvenient for the servient estate owner,
or if it prevents him from making any
important works, repairs, or improvements,
the easement MAY BE CHANGED,
provided:
1. He offers another place/manner
equally convenient.
2. Does not cause injury to the dominant
estate owner.
3. Does not cause injury to those who
have a right to use the easement, if
any.
d. Obligations
Owner
of
Servient
Estate
1. Not to impair the use of the easement [Art.
629(1), CC]
2. To contribute proportionately to expenses
if he uses the easement [Art. 628(2), CC]
5. Modes of Extinguishment
1. By merger in the same person of the
ownership of the dominant and servient
estates – must be absolute, perfect and
definite, and not merely temporary. If the
merger is temporary, there is at most a
suspension of the easement, but no
extinguishment.
2. By non-user for ten years – there is
inaction, and not outright renunciation. This
is due to the voluntary abstention by the
dominant owner, and not due to a fortuitous
event.
• If discontinuous easement, period is
counted from day it ceased to be used.
If continuous easement, counted from
the day an act adverse to the exercise
of the right of easement took place.
• Note use by a co-owner bars
prescription as to others as well. [Art.
633, CC]
3. Impossibility of use – impossibility
referred to must render the entire
easement unusable for
all
time.
Impossibility of using the easement due to
the condition of the tenements (e.g.
flooding) only suspends the servitude until
it can be used again.
• Exception: If the suspension exceeds
10 years, the easement is deemed
extinguished by non-use.
4. By the expiration of the term or the
fulfillment of the resolutory condition applies only to voluntary easements.
5. By the renunciation of the owner of the
dominant estate – must be specific, clear,
express (distinguished from non-user); or
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6. By the redemption agreed upon
between the owners of the dominant
and servient estates.
Other Causes Not Mentioned in Art. 631, CC
1. Annulment and rescission of the title
constituting the voluntary easement;
2. Termination of the right of grantor of the
voluntary easement;
3. Abandonment of the servient estate;
Owner of the servient estate gives up
ownership of the easement (e.g. the strip of
land where the right of way is constituted)
in favor of the dominant estate. The
easement is extinguished because
ownership is transferred to the dominant
owner, who now owns both properties.
4. Eminent domain;
The government’s power to expropriate
property for public use, subject to the
payment of just compensation.
5. Special cause for extinction of legal
rights of way: if right of way no longer
necessary. [Art. 655, CC]
Right of way ceases to be necessary [Art. 655,
CC]:
• Owner of the dominant estate has joined to
another abutting on a public road.
• A new road is opened giving access to the
isolated estate.
• Owner of the servient estate must return
indemnity he received (value of the land)
with interest deemed as rent.
• Requisite: the public highway must
substantially meet the needs of the
dominant estate.
Note: The Owner of the servient estate
burdened by the right of way may demand that
the easement be extinguished when it is shown
that the easement ceases to be necessary [Art.
655, CC]
CIVIL LAW
I. NUISANCE
1. Nuisance per se
2. Nuisance per accidens
“Nuisances have been divided into two
classes: Nuisances per se, and nuisances per
accidens” [Iloilo Cold Storage v. Municipal
Council, 24 Phil 471]
Definition
A nuisance is any act, omission, establishment,
condition of property, or anything else which:
(1) Injures or endangers the health or
safety of others; or others (Ex. House
in danger of falling, fireworks or
explosives factory, houses without
building permits and without provisions
for disposal of waste matter [Ayala v.
Baretto, 33 Phil. 538]); or
(2) Annoys or offends the senses; (Ex.
leather factory, garbage cans, pumping
station with a high chimney, smoke,
noise [Bengzon v. Prov.
of
Pangasinan, 62 Phil. 816]; or
(3) Shocks, defies, or disregards decency
or morality; (Ex. Movie actress strips
nude in the lobby of a movie house for
sake of publicity for a movie, citing
Paras, p. 748); or
(4) Obstructs or interferes with the free
passage of any public highway or
street, or any body of water; (Ex.
Houses or flea market stalls
constructed in public streets); or
(5) Hinders or impairs the use of property
[Art. 694, CC] (Ex. Illegal constructions
or activities on another person or
entity’s land).
Differentiate Nuisance from Negligence:
Negligence is penalized because of lack of
proper care but a nuisance is wrong not
because of the presence or absence of care,
but because of the injury caused. [Paras
quoting 39 AmJur 282]
Page 188 of 532
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Nuisance
Definition
Abatement
PROPERTY
Nuisance per se
Those
which
are
unquestionably and under all
circumstances
nuisances,
such as gambling houses,
houses of ill fame, etc. [Iloilo
Cold Storage v. Municipal
Council, 24 Phil 471]
● Generally defined as an act,
occupation, or structure,
which is a nuisance at all
times
and
under
any
circumstances, regardless of
location
or
surrounding.
[Aquino v. Municipality of
Malay, GR 211356, 29
September 2014]
Since they affect the immediate
safety of persons and property,
they may be summarily abated
under the undefined law of
necessity.
[Monteverde
v.
Generoso, 52 Phil 123]
●
a. Public v. Private Nuisance
Public Nuisance
Nuisance that affects a community or
neighborhood or any considerable number of
persons [Art. 695, CC]. (Ex. A noisy or
dangerous factory in a residential district; a
karaoke bar inside a subdivision)
Private Nuisance
One that is not included in the foregoing (Public
nuisance) definition. [Art. 695, CC]
One which violates only private rights and
produces damages to but one or a few specific
persons.
b. Doctrine of Attractive Nuisance
One who maintains on his premises dangerous
instrumentalities or appliances of a character
likely to attract children at play, and who fails to
CIVIL LAW
Nuisance per accidens
Those that are nuisances because of
particular
facts
and
circumstances
surrounding the otherwise harmless cause
of the nuisance [Iloilo Cold Storage v.
Municipal Council, 24 Phil 471]
● Generally a question of fact, to be
determined in the first instance before the
term nuisance can be applied to it. [Ibid.]
● That which depends upon certain conditions
and circumstances, and its existence being
a question of fact, it cannot be abated
without due hearing thereon in a tribunal
authorized to decide whether such a thing
does in law constitute a nuisance. [Aquino v.
Municipality of Malay, GR 211356, 29
September 2014]
No authority has the right to compel the
abatement of a particular thing or act as a
nuisance without reasonable notice to the
person alleged to be maintaining or doing the
same of the time and place of hearing before a
tribunal authorized to decide whether such a
thing or act does in law constitute a nuisance.
[Monteverde v. Generoso, 52 Phil 123]
●
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 (1999)]
Reason for doctrine: Although the danger is
apparent to those of age, it is so enticing or
alluring to children of tender years as to induce
them to approach [Ibid].
Note: The attractive nuisance doctrine is
generally not applicable to bodies of water in
the absence of some unusual condition or
artificial feature. A swimming pool is not an
attractive nuisance, for while it is attractive, it is
merely a duplication of a work of nature
[Hidalgo Enterprises v. Balandan, G.R. L-3422,
(1952)]
Page 189 of 532
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3. Liabilities
a. Who are Liable
1. Person responsible for creating the
nuisance; If the prejudice exceeds the
inconveniences that such proximity
habitually brings, the neighbor who
causes such disturbance is held
responsible for the resulting damage, 1
being guilty of causing nuisance.
[Velasco v. Manila Electric Co., 40
SCRA 342]
2. 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. [Art.
696, CC];
• Provided that he knew of the
nuisance and must knowingly
fail or refuse to abate the
nuisance [Lambs v. Roberts,
196 Ala. 679, quoted by Paras].
• “To render the new owner or
possessor
liable,
it
is
necessary that he has actual
knowledge of the existence of
the nuisance, and that it is
within his power to abate the
same.”
• “If he cannot physically abate
the nuisance without legal
action against another person,
then he shall not be liable for
such nuisance.”
3. A private person or public official
shall be liable for damages if:
a. In an extrajudicial abatement;
b. He causes unnecessary injury; or
c. An alleged nuisance is later declared
by the courts to be not a real nuisance.
[Art. 707, CC]
4. No Prescription
a. General Rule
Lapse of time cannot legalize any nuisance,
whether public or private. [Art. 698, CC]
CIVIL LAW
Note: Art. 698 and 1143(2) does not apply to
easements which are extinguished by
obstruction or non-use for ten years under Art.
631 [Ongsiako v. Ongsiako, G.R. No. L-7510,
(1957)]
The abatement of a nuisance does not
preclude the right of any person injured to
recover damages for its past existence. [Art.
697, CC]
Note: Remedies of abatement and damages
are cumulative and may both be demanded.
b. Extinctive Prescription – No Extinctive
Prescription to abate a nuisance or
Acquisitive Prescription for the right to use
of the property that creates such nuisance.
The action to abate a public or private
nuisance is NOT extinguished by
prescription. [Art. 1143(2), CC]
5. Criminal prosecution as a
remedy
The remedies against a public nuisance are:
1. A prosecution under the Penal Code or
any local ordinance; or
2. A Civil Action; or
3. Abatement, without judicial proceedings.
[Art. 699, CC]
6. Judgment with abatement as
a remedy
The remedies against a public nuisance are:
1. A prosecution under the Penal Code or any
local ordinance; or
2. A Civil Action; or
3. Abatement, without judicial proceedings.
[Art. 699, CC]
If a civil action is brought by reason of the
maintenance of a public nuisance, such action
shall be commenced by the city or municipal
mayor. [Art. 701, CC]
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7. Extrajudicial abatement as a
remedy
The remedies against a public nuisance are:
1. A prosecution under the Penal Code or any
local ordinance; or
2. A Civil Action; or
3. Abatement,
without
judicial
proceedings. [Art. 699, CC]
! It must be reasonably and efficiently
exercised.
! Means employed must not be unduly
oppressive on individuals.
! No more injury must be done to the
property or rights of individuals than is
necessary
to
accomplish
the
abatement.
! No right to compensation if property
taken or destroyed is a nuisance.
a. Summary Abatement
Nuisances per se
Since they affect the immediate safety of
persons and property, they may be summarily
abated under the undefined law of
necessity. [Monteverde v. Generoso, 52 Phil
123]
Nuisances per accidens
No authority has the right to compel the
abatement of a particular thing or act as a
nuisance without reasonable notice to the
person alleged to be maintaining or doing the
same of the time and place of hearing before a
tribunal authorized to decide whether such a
thing or act does in law constitute a nuisance.
[Monteverde v. Generoso, 52 Phil 123]
If no compelling necessity requires the
summary abatement of a nuisance, the
municipal authorities, under their power to
declare and abate nuisances, do not have the
right to compel the abatement of a particular
thing or act as a nuisance without reasonable
notice to the person alleged to be
maintaining or doing the same of the time
and place of hearing before a tribunal
authorized to decide whether such a thing or
CIVIL LAW
act does in law constitute a nuisance. [Iloilo
Cold Storage v. Municipal Council, 24 Phil 471]
b. Need for Abatement
One of the most serious hindrances to the
enjoyment of life and property is a nuisance.
Provisions for its abatement are indispensable
(Report of the Code Commission, p.51).
c. Who May Abate Public Nuisances
District Officer
The district health officer shall take care that
one or all of the remedies against a public
nuisance are availed of. [Art. 700, CC]
The district health officer shall determine
whether or not abatement, without judicial
proceedings, is the best remedy against a
public nuisance. [Art. 702, CC]
Note: If the district health officer or the city
engineer is not consulted beforehand in the
case of extrajudicial abatement, the person
doing the abating is not necessarily liable.
They would be liable for damages under Art.
707 if the abatement is carried out with
unnecessary injury, or if the alleged nuisance
is later declared by the courts to be not a real
nuisance [Paras, p. 756]
Private Persons
Any private person may abate a public
nuisance which is specially injurious to him by
removing or, if necessary, destroying the thing
which constitutes the same, without committing
a breach of the peace, or doing necessary
injury.
Other persons authorized by law
Other persons may be authorized by law to
remove nuisances such as in Sitchon v.
Aquino, 98 Phil 458 where the Manila charter
authorized the City Engineer to do so.
8. Special Injury to Individual
A private person may file an action on account
of public nuisance, if it is specially injurious to
himself. [Art. 703, CC]
Page 191 of 532
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Any private person may abate a public
nuisance which is specially injurious to him by
removing or, if necessary, destroying the thing
which constitutes the same, without committing
a breach of the peace, or doing necessary
injury. But if necessary:
1. That demand be first made upon the owner
or possessor of the property to abate the
nuisance;
2. That demand has been rejected;
3. That the abatement be approved by the
district health officer and executed with the
assistance of the local police; and
4. That the value of the destruction does not
exceed Three-Thousand Pesos. [Art. 704,
CC]
9. Right of Individual to Abate
Public Nuisance
Process for Extrajudicial Abatement:
1. The district health officer shall take care
that one or all of the remedies against a
public nuisance are availed of. [Art. 700,
CC]
2. The district health officer shall determine
whether or not abatement, without judicial
proceedings, is the best remedy against a
public nuisance. [Art. 702, CC]
Process for Judicial Abatement (through
Civil Action):
1. General Rule: If a civil action is brought by
reason of the maintenance of a public
nuisance, such action shall be commenced
by the city or municipal mayor. [Art. 701,
CC]
2. Exception: A private person may file an
action on account of a public nuisance if it
is especially injurious to him. [Art. 703, CC]
Rationale for Exception: An individual who
has suffered some special damage different
from that sustained by the general public may
maintain a suit in equity for an injunction to
abate it, or an action for damages which he has
sustained. The action becomes a tort if an
individual has suffered particular harm, in
CIVIL LAW
which case the nuisance is treated as a private
nuisance with respect to such person.
Requisites of the right of a private
individual to bring a civil action to abate a
public nuisance [Art. 704, CC]
1. That demand be first made upon the owner
or possessor of the property to abate the
nuisance;
2. That such demand has been rejected;
3. That the abatement be approved by the
district health officer and executed with the
assistance of the local police; and
4. That the value of the destruction does not
exceed P3,000.
Rules
1. The right must be exercised only in cases
of urgent or extreme necessity. The thing
alleged to be a nuisance must be existing
at the time that it was alleged to be a
nuisance.
2. A summary abatement must be resorted to
within a reasonable time after knowledge of
the nuisance is acquired or should have
been acquired by the person entitled to
abate.
3. The person who has the right to abate must
give reasonable notice of his intention to do
so, and allow thereafter a reasonable time
to enable the other to abate the nuisance
himself.
4. The means employed must be reasonable
and for any unnecessary damage or force,
the actor will be liable. The right to abate is
not greater than the necessity of the case
and is limited to the removal of only so
much of the objectionable thing as actually
causes the nuisance.
5. The property must not be destroyed unless
it is absolutely necessary to do so.
10. Right to Damages
The abatement of a nuisance does not
preclude the right of any person injured to
recover damages for its past existence. [Art.
697, CC]
Abatement and damages are cumulative
remedies.
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11. Defenses to Action
Remedies of the property owner
A person whose property is seized or
destroyed as a nuisance may resort to the
courts to determine whether or not it was in fact
a nuisance.
1. An action for replevin;
2. To enjoin the sale or destruction of the
property;
3. An action for the proceeds of its sale and
damages if it has been sold; or
4. To enjoin private parties from proceeding
to abate a supposed nuisance.
12. Who May Sue on Private
Nuisance
Remedies [Art. 705, CC]
The remedies against a private nuisance are:
1. A civil action; or
2. Extrajudicial abatement
Requisites for a valid extrajudicial
abatement [Art. 706, CC]:
• The procedure for extrajudicial abatement
of a public nuisance by a private person will
also be followed.
•
Note: See municipal health officer under
Art. 700 and Art. 702.
No breach of peace or unnecessary injury
CIVIL LAW
J. MODES OF ACQUIRING
OWNERSHIP
Three modes of acquiring ownership:
a. Occupation – Arts. 713-720, CC
b. Donation – Arts. 712, 725 – 726, CC
c. Prescription and Laches – Arts. 712,
1106 – 1107, CC
1. Occupation
How Occupation Effected
1. Hunting and Fishing
2. Finding Hidden Treasures
3. Finding of abandoned movables
4. Finding movables which never had an
owner [Art. 713, CC]
Kinds of Occupation
1. Of Animals
a. Wild or Feral Animals
Wild animals are possessed only while
they are under one’s control [Art. 560,
CC]
b. Tamed/domesticated animals
Domesticated or tamed animals are
considered domestic or tame if they
retain the habit of returning to the
premises of the possessor. [Art. 560,
CC]
Liability for invalid extrajudicial abatement:
The person (whether private person or public
official) extrajudicially abating a nuisance is
liable for damages if:
a. If he causes unnecessary injury; or
b. If an alleged nuisance is later declared by
the courts to be not a real nuisance.
Methods of abatement [Art. 706, CC]:
1. By removing the thing causing the
nuisance
2. By destroying the thing causing the
nuisance
Page 193 of 532
The owner of domesticated animals
may also claim them within 20 days to
be counted from their occupation by
another person. This period having
expired, they shall pertain to him who
has caught and kept them. [Art. 716,
CC]
c. Occupation of a Swarm of Bees
The owner of a swarm of bees shall
have the right to pursue them to
another’s land, indemnifying the
possessor of the latter for damage.
If the owner has not pursued the
swarm, or ceases to do so within 2
consecutive days, the possessor of the
land may occupy or retain the same,
U.P. LAW BOC
PROPERTY
the owner having lost his ownership by
leaving, abandoned them (no intention
to recover). [Art. 716, CC]
d. Pigeons and Fish
Pigeons and fish which from their
respective breeding places pass to
another pertaining to a different owner
shall belong to the latter, provided they
have not been enticed by some artifice
or fraud.
2. Of Other Personal Property
a. Abandoned – may be acquired
b. Lost
Whoever finds a movable, which is not
treasured, 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 finding shall be publicily
announced by the mayor for two
consecutive weeks in the way he
deems best.
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 publication.
Six months from the publication
having elapsed without the owner
having appeared, the thing found, or
its value, shall be awarded to the
CIVIL LAW
finder. The finder and the owner shall
be obliged, as the case may be, to
reimburse the expenses. [Art. 719, CC]
3. Of Land
• Land cannot be the object of
occupation. [Art. 714, CC]
• Land of public dominion belongs to the
State.
• Abandoned private lands are deemed
as patrimonial property of the State
4. Hidden Treasure
Definition: Any hidden and unknown deposit
of money, jewelry, or other precious objects,
the lawful ownership of which does not appear.
[Art. 439, CC]
General Rule: Belongs to the owner of the
land, building, or other property on which it is
found. [Art. 438, CC]
Exceptions
1. If discovery made on property of
another, the State, or any of its
subdivisions AND by chance: one-half
shall be allowed to the finder
2. If finder is a trespasser: he shall not be
entitled to any share of the treasure
3. If the things found be of interest to
science or the arts: State may acquire
them at their just price, which shall be
divided in conformity with rule stated [Art.
438 (3), CC]
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CIVIL LAW
2. Donation
Donation is an act of liberality whereby a person disposes gratuitously of a thing or right in favor of
another, who accepts it. (simple donation) [Art. 725, CC]
Although under Art. 725, CC, donation is an act, it is really a contract. The essential requisites of
consent, subject matter, and cause must be present. [Tolentino]
Nature
Generally, donation includes all forms of gratuitous dispositions.
The patrimony or asset of the donor is decreased, while that of the donee is
Effect
increased.
[CADAF – Capacity, Animus donandi, Delivery, Acceptance, Form]
Requisites
a.
b.
c.
d.
e.
Capacity of donor to make donation
Donative intent (animus donandi)
Delivery (actual or constructive)
Acceptance by donee
Necessary form prescribed by law
Note: Acceptance by the donee is required because donation is never obligatory.
One cannot be compelled to accept the generosity of another.
Other
a. When a person gives to another a thing or right on account of the latter's
instances
merits or of the services rendered by him to the donor, provided they do not
considered
constitute a demandable debt. (Remuneratory donation) [Art. 726, CC]
as
a
b. When the gift imposes upon the donee a burden that is less than the value of
donation
the thing given. (Onerous donation) [Art. 726, CC]
Donation Inter Vivos [Art. 729-731, CC]
Donation which shall take effect during the lifetime of the donor upon
concurrence of the requirements of donation, though the property
shall not be delivered until after the donor's death.
Kinds
of As to its
Donations taking effect
General Rule: Irrevocable
Exceptions:
a. Subsequent birth of the donor’s children [Art. 760, CC];
b. Donor’s failure to comply with imposed conditions [Art. 764,
CC];
c. Donee’s ingratitude [Art. 765, CC]; or
d. Reduction of donation by reason of inofficiousness [Art. 752,
CC].
Donation Propter Nuptias [Art. 82, FC]
A special type of donation made by reason of marriage.
Requisites:
a. Must be made before the celebration of marriage;
b. Made in consideration of the marriage; and
c. Made in favor of one or both of the future spouses.
Causes for revocation of donation propter nuptias [Art. 86, FC]:
a. If the marriage is not celebrated or judicially declared void ab
initio, except donations made in the marriage settlements,
which shall be governed by Article 81;
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b. When the marriage takes place without the consent of the
parents or guardian, as required by law;
c. When the marriage is annulled, and the donee acted in bad
faith;
d. Upon legal separation, the one being the guilty spouse;
e. If it is with a resolutory condition and the condition is complied
with; or
When the donee has committed an act of ingratitude as specified by
the provisions of the CC on donations in general.
Donation Mortis Causa [Art. 728, CC]
It only becomes effective upon the death of the donor, as the
donor’s death ahead of the donee works as a suspensive condition
for the existence of the donation.
As to cause
or
consideration
Characteristics:
a. The transferor retains ownership and control of the property
while alive;
b. The transfer is revocable at will before his death; and
The transfer will be VOID if the transferor should survive the
transferee.
a. Simple - made out of pure liberality or because of the merits
of the donee.
b. Remuneratory - made for services already rendered to the
donor.
c. Onerous - imposes a burden inferior in value to property
donated.
d. Improper - burden equal in value to property donated.
e. Sub-modo or modal - imposes a prestation upon donee as to
how property donated will be applied.
Mixed donations – e.g. sale for price lower than value of property.
[Labitag Syllabus]
Ordinary
Propter Nuptias
As to requirement of express acceptance
Necessary [Art. 745-747, CC]
Not necessary. Implied acceptance is enough.
As to future property
May include future property (same rule as wills)
Cannot include future property [Art. 751, CC]
[Art. 84, FC]
As to limit on donation of present property
No limit to donation of present property
If present property is donated and property regime
provided legitimes are not impaired. [Art. 750
is other than ACP, limited to 1/5. [Art. 84, FC]
and 752, CC]
As to grounds for revocation
Enumerated in Arts. 760, 764, and 765, CC
Enumerated in Art. 86, FC
Inter vivos
Mortis causa
As to formalities
Executed and accepted with formalities Must be in the form of a will, with all the formalities
prescribed by CC. [Art. 748 and 749]
for the validity of wills. [Art. 728, CC]
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As to effectivity
Effective during the lifetime of the donor. It
takes effect independently of the donor’s Effective after the death of the donor. [Art. 728, CC]
death. [Art. 729, CC]
As to acceptance
Acceptance must be made after the death of the
donor, the donation being effective only after the
Acceptance must be made during the lifetime death of donor. Acceptance during the donor’s
of the donor. [Art. 746, CC]
lifetime is premature and ineffective because there
can be no contract regarding future inheritance.
[Art. 728, CC]
As to transfer of ownership for right of disposition
Ownership is immediately transferred. Upon acceptance by the donee, but the effect of
Delivery of possession is allowed after death. such retroacts to the time of death of the donor.
As to revocation
Irrevocable – may be revoked for the reasons Revocable upon the exclusive will of the donor.
provided in Arts. 760, 764, 765, CC.
[Ganuelas v. Cawed, G.R. No. 123968 (2003]
As to reduction or suppression
When it is excessive or inofficious [Art. 750,
CC] or for any of the reasons provided for in
When it is excessive or inofficious, it is reduced
Art. 760, CC. Being preferred, it is reduced
first, or even suppressed.
only after the donations mortis causa had
been reduced or exhausted.
As to effect if donor survives donee
Donation is void. [Maglasang v. Heirs of
Not affected.
Cabatingan, G.R. 131953 (2002)]
FORMALITIES REQUIRED
FOR MOVABLES [Art. 748, CC]
FOR IMMOVABLES [Art. 749, CC]
The donation of a movable may be
made orally or in writing. Oral General Rule: Must be in a public document for it to be
donation requires simultaneous valid.
delivery.
If value of property exceeds P5,000:
If donation and acceptance are in the same instrument:
a. Donation and acceptance
a. It must be in a public instrument.
must be in writing; otherwise,
b. Instrument must specify the property donated and
it is void.
the value of the charges.
b. It need not be in public
instrument; neither is it If donation and acceptance are in separate instruments:
a. It must be in a public instrument.
necessary
that
the
b. Instrument must specify the property and the value
acceptance be in the same
of the charges.
instrument as the deed of
c. Acceptance must also be in a public instrument.
donation. [Tolentino]
d. It must be made during the lifetime of the donor.
[Art. 746, CC]
If value is P5,000 or less:
e. Donor must be notified in authentic form of such
a. If orally: there must be
acceptance made in a separate instrument.
simultaneous delivery
f. Fact of such notification must be noted in both
b. If in writing: donation is valid
instruments.
even without simultaneous
delivery
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c. In every case, acceptance Exceptions:
must be made known to the
a. Donations propter nuptias: need no express
donor for perfection of a
acceptance.
donation to take place. [Art.
b. Onerous donations: governed by rules on
746, CC]
contracts.
Notes:
a. Donation of real property in a private instrument is
null and void.
b. Registration is not necessary for the donation to be
considered valid and effective. This only comes into
play with respect to affected third persons.
c. There is nothing that prevents the donor or his heirs
to execute a public document ratifying a previous
donation that has been avoided for lack of
compliance with the legal requisites. This
ratification had the effect of a new donation
[Abragan v. Centenera, G.R. No. 22173, (1924)].
d. Action to declare the inexistence of a void donation
does not prescribe [Art. 1410, CC].
What may be donated
All present property of the donor or part thereof. [Art. 750, CC]
Limitation:
a. The donor reserves, in full ownership or usufruct, sufficient means for support of himself and
all relatives entitled to be supported by donor at the time of acceptance. [Art. 750, CC]
b. The donor reserves property sufficient to pay donor’s debts contracted before donation,
otherwise, donation is in fraud of creditors. [Arts. 759, 1387, CC]
c. Donations provided for in marriage settlements between future spouses – must be not more
than 1/5 of present property. [Art. 84, FC]
d. Donation propter nuptias by an ascendant consisting of jewelry, furniture or clothing not to
exceed 1/10 of disposable portion. [Art. 1070, CC]
What may not be donated
a. Future property; those which the donor cannot dispose of at the time of the donation [Art.
751, CC]
b. More than what he may give or receive by will [Art. 752, CC]. If it exceeds what he may give
or receive by will, then it is considered inofficious.
Limitations
a. Reservation of sufficient means for support of donor and relatives [Art. 750, CC]
1. A donor may donate his present property provided he reserves sufficient property in
ownership or in usufruct for the support of himself and all of his relatives who are entitled to
be supported by him.
2. Present property: property which the donor can rightfully dispose of at the time of donation.
3. Donation without reservation is not null and void in its entirety; it is only subject to reduction
by the court.
4. Limitation applies to simple, remunerative and modal donations but not to onerous ones nor
to donations mortis causa.
b. Donations cannot comprehend future property [Art. 751, CC]
1. Future property: understood as anything which the donor cannot dispose of at the time of
the donation.
2. Nobody can dispose of that which does not belong to him.
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3. Future inheritance cannot be donated because it is considered future property. However,
upon the death of his predecessor, the inheritance ceases to be future and consequently,
may be the object of donation. [Osorio v Osorio, supra]
c. Amount of donation limited to what donor may give by will [Art. 752, CC]
1. A person may not donate more than he can give by will.
2. Limitation applies where donor has forced or compulsory heirs.
Donations made to several persons jointly
A joint donation (donation to two or more persons) could not be accepted by a donee independently
of the other donee/s. [Genato v. de Lorenzo, G.R. No. L-24983 (1968)]
No accretion – one donee does not get the share of the other donees who did not accept. [Art. 753,
CC]
Exception: those given to husband and wife, except when the donor otherwise provides. [Art. 753,
CC]
Donor
Who are allowed: All persons who may contract (of legal age) and dispose of their property. [Art.
735, CC]
Donor’s capacity is determined at the time of the making of donation [Art. 737, CC] Subsequent
incapacity is immaterial.
Note: Capacity to donate is NOT required for donations mortis causa. [Tolentino]
Who are NOT allowed:
a. Guardians and trustees with respect to the property entrusted to them. [Art. 736, CC]
b. Those disqualified by reason of public policy: [Art. 739, CC]
c. Those made between persons guilty of adultery or concubinage at the time of the donation;
d. Those made between persons guilty of the same criminal offense if the donation is made in
consideration thereof; or
e. Those made to a public officer, his spouse, descendants, and/or ascendants by reason of
the office.
Donee
Who are allowed to accept donations:
a. Those who are not specifically disqualified by law. [Art. 738, CC]
b. Those who are allowed, with qualifications:
1. Minors, insane/imbecile, deaf-mute and others who are incapacitated [see Art. 38, CC],
provided that their acceptance is done through their parents or legal representatives. [Art.
741, CC]
2. Conceived and unborn children, provided that the donation is accepted by those who would
legally represent them if they were already born. [Art. 742, CC]
Who are not allowed:
a. Made between persons who are guilty of adultery or concubinage. [Art. 739, CC]
b. Made between persons found guilty of the same criminal offense, in consideration thereof.
[Art. 739, CC]
c. Made to a public officer or his wife, descendant and ascendants, by reason of his office.
[Art. 739, CC]
d. Those who cannot succeed by will. [Art. 740, CC] – covers those stated under Arts. 1027
and 1032, CC.
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e. Those made to incapacitated persons, although simulated under the guise of another
contract. [Art. 743, CC]
Acceptance of the donation
Who may accept: [Art. 745, CC]
a. Donee personally; or
b. Authorized person with a special power for the purpose, or with a general sufficient power.
When to accept: During the lifetime of the donor and of the donee. [Art. 746, CC]
What the donee acquires with the thing
He shall be subrogated to all the rights and actions that would pertain to the donor in case of eviction.
[Art. 754, CC]
Obligation of the donor
No obligation to warrant. [Art. 754, CC]
Exceptions:
a. When the donation is onerous. [Art. 754, CC]
In which case, the donor shall be liable for eviction to the concurrence of the burden; and
b. Liable for eviction or hidden defects in case of bad faith on the donor’s part.
Obligation of the donee
If the donation so states, the donee may be obliged to pay the only debts previously contracted
by the donor and in no case shall he be responsible for the debts exceeding the value of the thing
donated. [Art. 758, CC]
Exception: When a contrary intention clearly appears. [Art. 758, CC]
SPECIAL PROVISIONS
What may be reserved by the donor [Art. 755, CC]
The right to dispose of some of the things donated, or of some amount which shall be a charge
thereon.
Exception: If the donor dies without exercising this right. In which case, the property or amount
reserved shall belong to the done.
Donation of naked ownership to one donee and usufruct to another [Art. 756, CC]
The naked ownership and the usufruct may be donated separately, provided that all the donees
are living at the time of the donation.
Payment of donor’s debt [Art. 758, CC]
a. If expressly stipulated, the donee must pay only the debts contracted before the donation
unless specified otherwise.
But in no case shall the donee be responsible for debts exceeding the value of the property donated
unless clearly intended.
b. If there’s no stipulation, the donee will be answerable only for the donor’s debt only in case
the donation is in fraud of creditors. [Art. 759, CC]
Reversion [Art. 757, CC]
The property donated may be restored or returned to:
a. Donor or his estate (reversion may be for any case and circumstance); or
b. Other persons (such persons MUST all be living at the time of the donation)
Note: Any reversion stipulated by the donor in favor of a third person in violation of what is provided
in the foregoing shall be void, but shall not nullify the donation.
Double donations [Art. 744, CC]
Rule: Priority in time, priority in right.
a. If movable: One who first took possession in good faith. [Art. 1544, CC]
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b. If immovable: One who first recorded in Registry of Property in good faith. [Art. 1544, CC]
c. If there is no inscription, the one who first took possession in good faith. [Art. 1544, CC]
d. In the absence thereof (possession), one who can present the oldest title, provided there is
good faith. [Art. 1544, CC]
Excessive/Inofficious Donations [Art. 752, CC]
Inofficious donation: A type of donation in which a person gives or receives more than what he
may give or receive by will. If a donation is inofficious, it shall be reduced with regard to the excess.
But this reduction shall not prevent the donations from taking effect during the life of the donor, nor
shall it bar the donee from appropriating the fruits. [Art. 771, CC]
Note: Only those who, at the time of the donor's death, have a right to the legitime, and their heirs
and successors-in-interest, may ask for the reduction or inofficious donations. [Art. 772, CC]
If, there being two or more donations, the disposable portion is not sufficient to cover all of them,
those of the more recent date shall be suppressed or reduced with regard to the excess. [Art. 773,
CC]
Donations cannot comprehend future property [Art. 751, CC]
Future property: Understood as anything which the donor cannot dispose of at the time of the
donation.
Note: It is immaterial that the then-future property may subsequently belong to the donor. [Tolentino]
In fraud of creditors [Art. 759, CC]
Donation is always presumed to be in fraud of creditors, when at the time thereof the donor did not
reserve sufficient property to pay his debts prior to the donation.
There being no stipulation regarding the payment of debts, the donee shall be responsible for
donor’s debts only when the donation has been made in fraud of creditors, otherwise creditors may
rescind donation by way of accion pauliana.
VOID DONATIONS
a. Donation between spouses [Art. 87, FC]
General Rule: Every donation or grant of gratuitous advantage, direct or indirect, between the
spouses during the marriage shall be VOID. The prohibition applies to persons living together as
husband and wife without a valid marriage.
Exception: Moderate gifts which the spouses may give each other on the occasion of any family
rejoicing.
b. Those made between persons mentioned under Art. 739, CC
c. Those made to persons incapacitated to succeed by will. [Art. 740, CC]
REVOCATION/REDUCTION
Reduction
● Total withdrawal of amount, whether the legitime is impaired or not.
● Benefits the donor.
Revocation
● Amount is only insofar as the legitime is prejudiced.
● Benefits the donor’s heirs (except when made on the ground of the appearance of a child).
● Revocation due to birth, appearance, or adoption of a child applies only to donations inter vivos
and not to donations mortis causa, onerous donations, and donations propter nuptias. [De Leon,
p. 676]
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Time of Action
CIVIL LAW
Transmissibility
Effect
Liability (Fruits)
Birth, appearance, adoption [Art. 760, CC]
• Property
is
returned.
• If the property
has been sold,
its value at the
time
of
donation shall
be returned.
• If the property
Within 4 years Transmitted
to
was
from
birth, children
and
mortgaged, the Fruits returned from the filing of
legitimation
and descendants upon
donor
may the complaint. [Art, 768, CC]
adoption. [Art. 763, the death of donor.
redeem
the
CC]
[Art. 763, CC]
mortgage, by
paying
the
amount
guaranteed,
with right to
recover
the
amount
from
the done. [Art.
762, CC]
Non-compliance with condition [Art. 764,CC]
May be transmitted
to donor’s heirs and
may be exercised
against
donee’s
heirs.
Property returned
Note: Art. 764 does to
the
donor,
not
apply
to alienations by the
Within 4 years
Fruits received after having failed
onerous donations donee
and
from
nonto fulfill condition are to be
in view of Art. 733, mortgages
void
compliance.
returned. [Art. 768, CC]
providing
that subject to rights of
onerous donations third persons in
are governed by good faith.
the
rules
on
contracts. [De Luna
v.
Abrigo,
181
SCRA 150 (1990)]
Ingratitude [Art. 765, CC]
Applies to all donations
EXCEPT: Mortis causa; Propter nuptias; Onerous donations
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Property returned,
but alienations and
mortgages effected
before the notation
Fruits received from the filing of
of the complaint for
the complaint returned. [Art. 768,
revocation in the
CC]
registry of property
subsist. Later ones
shall be void. [Art.
776, CC]
Failure to reserve sufficient means for support [Art. 750, CC]
Reduced to the
At any time, by the
extent necessary to
donor or relatives Not transmissible.
Donee entitled. [Art. 771, CC]
provide
support.
entitled to support.
[Art. 771, CC]
Inofficiousness for being in excess of what the donor can give by will [Art. 752, CC]
Donation
takes
effect
on
the
Within 5 years from
lifetime of donor.
Transmitted
to
the death of the
Reduction
only
donor’s heirs. [Art.
Donee entitled. [Art. 771, CC]
donor. [Art. 1149,
upon his death with
772, CC]
CC]
regard
to
the
excess. [Art. 771,
CC]
Fraud against creditors [Art. 1381]
Rescission within 4
years from the
Returned for the
Transmitted
to
perfection
of
benefit
of
the Fruits returned, or if impossible,
creditor’s heirs or
donation
creditor
who indemnify creditor for damages.
successors-in(knowledge of the
brought the action. [Art. 1385 and 1388, CC]
interest.
donation).
[Art.
[Art. 1388, CC]
1389, CC]
Not transmitted to
Within 1 year after
heirs of donor/
knowledge
by
donee, but if donor
donor of the fact
dies
during
and it was possible
pendency of case,
for him to bring the
heirs
may
be
action. [Art. 769,
substituted.
[Art.
CC]
770, CC]
3. Prescription
[See also, Part III. PRESCRIPTION.]
Definition
By prescription, 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 conditions are
lost by prescription. [Art. 1106, CC]
Note: For
purposes
of ACQUIRING
OWNERSHIP,
only
ACQUISITIVE
PRESCRIPTION is being referred to.
Who may acquire
Persons who are capable of acquiring property
or rights by the other legal modes may acquire
the same by means of prescription. [Art. 1107
(1), CC]
Minors and other incapacitated persons may
acquire property or rights personally or through
their
parents,
guardians,
or
legal
representatives.
Kinds of prescription
a. Acquisitive Prescription
• The acquisition of ownership and other
real rights through possession in the
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concept of owner of a thing in the
manner and condition provided by law.
Ordinary acquisitive prescription:
requires possession of things in good
faith and with just title for the time fixed
by law.
Note: Ownership and other real rights
over immovable property are acquired
by ordinary prescription through
possession of ten years [Art. 1134,
CC].
•
•
!
●
Extraordinary
acquisitive
prescription: acquisition of ownership
and other real rights without need of
title or of good faith or any other
condition.
Prescription where possession in
good
faith
converted
into
possession in bad faith:
a. Ordinary
i.
Movable properties - 4
years [Art. 1132, CC]
ii.
Immovable properties - 10
years [Art. 1134, CC]
b. Extraordinary:
i.
Movable properties - 8
years [Art. 1132 and 1140,
CC]
ii.
Immovable properties - 30
years [Art. 1137, CC]
As
a
mode
of
acquisition,
prescription requires existence of
following [Tolentino]:
a. Capacity of the claimant to acquire
by prescription;
b. A thing capable of acquisition by
prescription;
c. Adverse possession of the thing
under certain conditions; and
d. Lapse of time provided by law.
e. Possession must be in the concept
of owner, not holder.
For extraordinary prescription, only
possession in the concept of owner is
required; no need of good faith and just
title.
CIVIL LAW
●
Possession has to be in the concept of
an owner, public, peaceful, and
uninterrupted. [Art. 1118, CC]
b. Extinctive prescription
● The loss or extinguishment of property
rights or actions through the
possession by another of a thing for the
period provided by law or through
failure to bring the necessary action to
enforce one’s right within the period
fixed by law.
Acquisitive
Prescription
Requires
positive
action
of
the
possessor
(a
claimant) who is not
the owner.
Applicable
to
ownership and other
real rights.
Vests the property
and raise a new title in
the occupant.
Results
in
the
acquisition
of
ownership or other
real rights in a person
as well as the loss of
said ownership or real
rights in another.
Can be proven under
the general issue
without
its
being
affirmatively pleaded.
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Extinctive
Prescription
Requires inaction
of the owner out of
possession
or
neglect of one with
a right to bring his
action.
Applicable to all
kinds of rights,
whether real or
personal.
Vests the property
and raise a new title
in the occupant.
Merely results in
the loss of a real or
personal right, or
bars the cause of
action to enforce
said right.
Should
be
affirmatively
pleaded
and
proved to bar the
action or claim of
the adverse party.
U.P. LAW BOC
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PRESCRIPTION
Definition
By prescription, 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 conditions are
lost by prescription. [Art. 1106, CC]
In the same way, rights and actions are lost by
prescription. [Art. 1106, CC]
Note: The provision impliedly differentiates two
kinds of prescription: acquisitive (par. 1) and
extinctive (par. 2). For purposes of
ACQUIRING
OWNERSHIP,
only
ACQUISITIVE PRESCRIPTION is being
referred to.
Negligence as basis of prescription – both
kinds of prescription are essentially based on
negligence of the owner of the right.
Retroactive – acquisition of rights through
prescription is retroactive. One is deemed to
have acquired the right at the moment the
prescription began to run, once the period is
completed.
Rationale
It is purely statutory in origin. It is founded on
grounds of public policy which requires for the
peace of society, that juridical relations
susceptible of doubt and which may give rise to
disputes, be fixed and established after the
lapse of a determinate time so that ownership
and other rights may be certain for those who
have claim in them.
Requisites of prescription as a mode of
acquiring ownership
1. Capacity to acquire by prescription;
2. A thing capable of acquisition by
prescription;
3. Possession of the thing under certain
conditions; and
4. Lapse of time provided by law.
CIVIL LAW
Who may acquire by prescription
1. Persons who are capable of acquiring
property by other legal modes;
2. State;
3. Minors – through guardians of personally.
A. TYPES OF
PRESCRIPTION
Acquisitive
Prescription
Requires
positive
action
of
the
possessor
(a
claimant) who is not
the owner.
Applicable
to
ownership and other
real rights.
Vests the property
and raises a new title
in the occupant.
Results
in
the
acquisition
of
ownership or other
real rights in a
person as well as the
loss
of
said
ownership or real
rights in another.
Can be proven under
the general issue
without its being
affirmatively
pleaded.
Extinctive
Prescription
Requires inaction of
the owner out of
possession
or
neglect of one with a
right to bring his
action.
Applicable to all
kinds
of
rights,
whether
real
or
personal.
Vests the property
and raises a new title
in the occupant.
Merely results in the
loss of a real or
personal right or
bars the cause of
action to enforce
said right.
Should
be
affirmatively pleaded
and proved to bar the
action or claim of the
adverse party.
1. Acquisitive Prescription
a. acquisition of a right, adverse possession,
or usurpation;
b. refers to the possessor as the actor, as a
claimant in possession;
c. vests property;
d. the basis is the assertion of the usurper of
an adverse right, uncontested by the true
owner of the right, and gives rise to the
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presumption that the latter has given up the
right to the former.
The acquisition of ownership and other real
rights through possession in the concept of
owner of a thing in the manner and condition
provided by law. May be ordinary or
extraordinary:
1. Ordinary: requires possession of
things in good faith and with just title for
the time fixed by law.
2. Extraordinary:
acquisition
of
ownership and other real rights without
need of title or of good faith or any other
condition.
Prescription where possession in good faith
converted into possession in bad faith:
1. Ordinary
● Movable properties - 4 years [Art. 1132,
CC]
● Immovable properties - 10 years [Art.
1134, CC]
2. Extraordinary:
● Movable properties - 8 years [Art. 1132
and 1140, CC]
● Immovable properties - 30 years [Art.
1137, CC]
Possession has to be in the concept of an
owner, public, peaceful, and uninterrupted.
[Art. 1118, CC]
CIVIL LAW
ownership but the transferor or grantor was not
the owner of the property or he has no power
to transmit the right [Art. 1129, CC].
b. Extraordinary
a. a loss of the right and limitation of actions;
b. refers to the neglect of the owner, who is
out of possession;
c. bars the right of action;
d. the basis is the probability that alleged right
never existed or has already been
extinguished, or if it exists, the
inconvenience caused by the prescription
should be borne by the negligent party.
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,
2009].
Requisites
1. Capacity of the possessor to acquire by
prescription;
2. Susceptibility of object to prescription;
3. Adverse possession of the character
prescribed by law;
4. Lapse of time required by law; and
5. Good faith of possessor or proof of just
title.
2. Extinctive Prescription
a. Ordinary
It requires possession of things in good faith
and with just title for the time fixed by law.
Good faith
If he is not aware of the existence of any flaw
or defect in his title or mode of acquisition
which invalidates it [Art. 526 in relation to Art.
1128, CC] and has reasonable belief that the
person from whom he received the thing was
the owner thereof, and could transmit his
ownership [Art. 1127, CC].
Just title
It means that the possessor obtained the
possession of the property through one of the
modes recognized by law for acquiring
Basis
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].
a. Characteristics
The loss or extinguishment of property rights or
actions through the possession by another of a
thing for the period provided by law or through
failure to bring the necessary action to enforce
one’s right within the period fixed by law.
Page 206 of 532
U.P. LAW BOC
PROPERTY
b. Requisites
1. Capacity to acquire by prescription;
2. A thing capable of acquisition by
prescription;
3. Possession of the thing under certain
conditions; and
4. Lapse of time provided by law.
c. Periods
1. Movables
a. 4 years ‐ If in good faith; and
b. 8 years ‐ If in bad faith [Art.
1140 in relation to Art. 1132,
CC].
2. Immovables
a. 10 years ‐ If in good faith
b. 30 years ‐ If in bad faith
B. WHEN PRESCRIPTION
IS INAPPLICABLE
CIVIL LAW
Rights not extinguished by prescription
[Art.1143, CC]
● To demand a right of way, regulated in
[Art. 649, CC];
● To bring an action to abate a public or
private nuisance.
4. Action to quiet title if plaintiff
is in possession
When plaintiff is in possession of the property,
the action to quiet title does not prescribe. The
reason is that the owner of the property or right
may wait until his possession is disturbed or his
title is assailed before taking steps to vindicate
his right.
5. Void contracts
The action or defense for the declaration of the
inexistence of a contract does not prescribe.
[Art.1410, CC]
6. Action to demand partition;
distinguished from laches
1. By offender
The offender can never acquire, through
prescription, movable properties possessed
through a crime such as robbery, theft, or
estafa [Art. 1133, CC].
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.
No prescription shall run in favor of a co-owner
or co-heir against his co-owners or co-heirs so
long as he expressly or impliedly recognizes
the co-ownership. [Art. 494, CC]
Prescription distinguished from laches:
Prescription
Laches
Concerned with the Concerned with the
fact
effect of delay.
of delay.
A matter of time.
2. Registered lands
No title to registered land in derogation of the
title of the registered owner shall be acquired
by prescription or adverse possession. [PD
1529]
3. Actions to demand right of
way; to abate a nuisance
Page 207 of 532
Principally a question
of
inequity of permitting
a claim to be
enforced,
this
inequity
being
founded on some
subsequent change
in the condition or the
relation
of
the
parties.
U.P. LAW BOC
Prescription
Statutory.
Applies at law.
Cannot be availed of
unless it is especially
pleaded
as
an
affirmative
allegation.
Based on a fixed
time.
PROPERTY
Laches
NOT statutory
Applies at equity
Being a defense of
equity, need not be
specifically pleaded.
NOT based on a
fixed time.
CIVIL LAW
C. PRESCRIPTION OR
LIMITATION OF
ACTIONS
1. To recover movables
The action prescribes in 8 years from the time
the possession thereof is lost. [Art. 1132 and
1140, CC]
Laches – (or “estoppel by laches”) is
unreasonable delay in the bringing of a cause
of action before the courts of justice; it is failure
or neglect, for an unreasonable and
unexplained length of time, to do that which, by
exercising due diligence, could or should have
been done earlier; it is negligence or omission
to assert a right within a reasonable time,
warranting a presumption that the party entitled
thereto either has abandoned it or declined to
assert it.
However, the action shall not prosper if it is
brought after 4 years when the possessor has
already acquired title by ordinary acquisitive
prescription. [Art. 1132, CC]
Requisites of Laches:
1. Conduct on the part of the defendant
which gives rise to a claim;
2. Delay in asserting complainant’s rights
(the
complainant
having
knowledge/opportunity to file suit);
3. Lack of knowledge/notice of the part of
the defendant that the complainant
would assert a right; and
4. Injury or prejudice to the defendant in
the event relief is accorded to the
complainant.
General Rule: Real actions prescribe after 30
years [Art. 1141, CC]
7. Property of public dominion
Prescription, both acquisitive and extinctive,
does not run against the State in the exercise
of its sovereign function to protect its interest
EXCEPT with respect to its patrimonial
property which may be the object of
prescription. [Art. 1113, CC]
If the possessor acquired the movable in good
faith at a public sale, the owner cannot obtain
its return without reimbursing the price paid.
[Art.559, CC]
2. To recover immovables
Exception: The possessor has acquired
ownership of the immovable by ordinary
acquisitive prescription through possession of
10 years. [Art. 1134, CC]
3. Other actions
Action for reconveyance
! Based on fraud: Prescribes 4 years from
the discovery of fraud. [Art. 1391, CC]
! Based on implied or constructive trust:
10 years from the alleged fraudulent
registration or date of issuance of
certificate of title over the property. [Art.
1144, CC]
Prescriptive
Period
10 years
[Art.
1144, CC]
Page 208 of 532
Action
1. Action to foreclose a
mortgage (from the time the
principal obligation becomes
due and demandable)
2. Actions upon:
U.P. LAW BOC
6 years
[Art.
1145, CC]
5 years
[Art.
1149, CC]
4 years
[Art.
1145, CC]
1 year
PROPERTY
a. A written contract
b. An obligation created by
law
c. A judgment
Actions upon:
1. An oral contract
2. A quasi-contract
All other actions whose
periods are not fixed in the
CC or in other laws.
Actions upon:
1. An injury to the rights of
the plaintiff.
2. A quasi-delict.
1. Actions for Art. 1147, CC.
a. Forcible entry within one
year
from
date
of
dispossession thru FISTS or
unlawful detainer 1 year from
date of last demand.
b. Defamation
2. Actions upon an injury to
the rights of the plaintiff or
upon a quasi-delict resulting
from any act of any public
officer involving the exercise
of powers arising from
Martial Law including the
arrest, detention and/or trial
of the plaintiff.
3. To recover possession de
facto. [Art. 554 (4), CC]
4. To revoke a donation on
the ground of ingratitude.
[Art. 769, CC]
5. To rescind or recover
damages if immovable is old
with non-apparent burden or
servitude. [Art. 1560 (3,4),
CC]
CIVIL LAW
D. INTERRUPTION
1155, CC]
[ART.
1. When prescription of actions is
interrupted
a. They are filed before the court;
b. When there is a written extrajudicial
demand by the creditors; and
c. When
there
is
any
written
acknowledgment of the debt by the
debtor.
2. Types of interruption
1. Natural - Any natural cause that
interrupts the possession for more than
one year. [Art. 1121, CC]
2. Civil [Art. 1123, CC]
a. For acquisitive prescription – starts
from the time judicial summons are
received.
b. For extinctive prescription – starts
from the time action is filed in court,
written extrajudicial demand by the
creditors is received, or when there
is written acknowledgment of the
debt by the debtor. [Art. 1155, CC]
Suspension in case of acquisitive
prescription
The period of interruption shall be counted in
favor of prescription (i.e. as if interruption never
happened but is merely suspended) if:
a. Judicial summons is void
b. Plaintiff should desist from the complaint
c. Possessor be absolved from the complaint
Note: There is no suspension in extinctive
prescription.
Effects of interruption
1. All the benefits acquired so far from the
possession ceases.
2. When the prescription runs again, it will be
reset (i.e. entirely new prescriptive period)
6. To enforce warranty of
solvency
of
debts
in
assignment of credits. [Art.
1629, CC]
Page 209 of 532
U.P. LAW BOC
SUCCESSION
SUCCESSION
CIVIL LAW
Page 210 of 532
CIVIL LAW
U.P. LAW BOC
SUCCESSION
CIVIL LAW
•
A. GENERAL PROVISIONS
1. Definition
•
Succession is a mode of acquisition by virtue
of which the property, rights and obligations, to
the extent of the value of the inheritance, of
a person are transmitted through his death to
another or others either by his will or by
operation of law. [Art. 774, CC]
Succession is one of the modes of acquiring
ownership and other real rights over property.
[par 2, Art. 712, CC]
Kinds of Succession:
a. Testamentary
b. Legal or Intestate
c. Mixed
d. Compulsory
Scope of Inheritance
General rule:
a. All the property, rights and obligations of a
person which are not extinguished by his
death [Art. 776, CC]
b. Not only the property and the transmissible
rights and obligations existing at the time of
his death, but also those which have
accrued thereto since the opening of the
succession [Art. 781, CC]
Exceptions:
a. Rights and obligations extinguished by
death and are not transmissible [Art. 1311,
CC]
Those which involve or require
the
personal
skills,
qualifications, characteristics
or circumstances of a particular
individual
Criminal responsibility
2. Intransmissible by stipulation
3. Intransmissible by provision of law
Examples:
• Usufruct [Art. 603, CC]
• Agency [Art. 1919, CC]
• Commodatum [Art. 1939, CC]
b. Monetary debts left by the decedent are
intransmissible in the sense that they are
paid from the estate of the decedent and
only the net estate or remainder goes to the
heirs. If the decedent’s estate is not
sufficient to pay his debts, his heirs cannot
be held liable for said debts in their
personal capacity [Rule 88-90, Rules of
Court].
Rule on Transmission
General rule: All property rights which have
accrued to the hereditary estate since the
opening of succession are transmitted to the
heirs [Art. 777, CC].
2. Succession occurs at the
moment of death
Rules on Opening of Succession
a. The rights to succession are transmitted
from the moment of the death of the
decedent. [Art. 777, CC]
1. Intransmissible by nature: this
refers to rights and obligations
which are strictly personal (intuitu
personae)
Examples:
• Those relating to family
relations
• Those arising from public law
Page 211 of 532
Implications of this principle
1. The law in effect at the time of death of
the decedent governs the succession
[Art. 2236, CC]
2. The heir becomes the owner of his
share as well as all fruits which accrue
after the death of the decedent.
3. Upon death of the decedent, heirs may
immediately possess, administer and
U.P. LAW BOC
SUCCESSION
dispose of their shares in the estate (in
the absence of existing debts/claims
against the estate);
4. Since succession takes place by
operation of law at the moment of the
death of the decedent, the heirs can
sue upon the rights of the decedent,
without having to be appointed
executor or administrator [Emnace v.
CA, G.R. No. 126334 (2001)], and
without need of a judicial declaration of
their status as heirs [De Vera v.
Galauran, 67 Phil 213 (1939)]. Heirs
may also be sued without a previous
declaration of heirship, provided there
is no pending special proceeding for
the settlement of estate of the
decedent [Gayon v. Gayon, G.R. No. L28394 (1970)].
5. The possession of hereditary property
is deemed transmitted to the heir
without interruption and from the
moment of death of the decedent, in
case the inheritance is accepted [Art.
533, CC]
6. Estate taxes accrue upon death of the
decedent, even if the heirs come into
possession only later.
b. A person may be “presumed” dead for the
purpose of opening his succession. In this
case, succession is only of provisional
character because there is always a
chance that the absentee may still be alive
[Arts. 390-391, CC].
Subjects of Succession
a. Decedent – person whose property is
transmitted through succession, whether or
not he left a will [Art. 775, CC]
○ Testator – a decedent who left a will [Art.
775, CC]
b. Successor – person who succeeds to the
property of the decedent.
CIVIL LAW
3. Kinds of successors
1. Heirs – those who are called to the whole
or an aliquot portion of the inheritance
either by will or by operation of law [Art.
782, CC]
● Compulsory Heirs
● Voluntary or Testamentary Heir
● Legal or Intestate Heirs
2. Devisees and Legatees
• Devisees are persons to whom gifts of
real property are given by virtue of a
will. [Art. 782]
• Legatees are persons to whom gifts of
personal property are given by virtue of
a will. [Art. 782]
Note: In case of preterition, the distinction
between heir and legatee/devisee is
significant. Preterition annuls the institution of
heirs. It does not affect the institution of
legatees and devisees provided that the
legitimes are not impaired [Art. 854, CC].
Heir
Represents
the
juridical
personal
obligations
not
extinguished
by
death
Succeeds to the
remainder of the
decedent’s
properties after all
the debts and all the
legacies and devices
have been paid
Can exist in either
testamentary
or
intestate succession
Page 212 of 532
Legatee / Devisee
Does not represent
regardless of the
legacy or device’s
value
Succeeds only to the
determinate thing or
quantity which is
mentioned in the
legacy or device
Can exist only in
testamentary
succession
U.P. LAW BOC
SUCCESSION
CIVIL LAW
Note: testator must
first specify the class
and the amount of
property for proper
delegation
B. TESTAMENTARY
SUCCESSION
1. Wills
Definition of a will: An act whereby a person
is permitted, with the formalities prescribed by
law to control to a certain degree the
disposition of his estate to take effect after
his death [Art. 783, CC].
KINDS OF WILLS
1. Notarial – an ordinary or attested will,
which must comply with the requirements
of the law [Arts. 804-808, CC]
2. Holographic – a will entirely written, dated
and signed by the hand of the testator [Art.
810, CC]
CHARACTERISTICS OF WILLS
1. Purely personal
General rule: the making of a will is a
strictly personal act. Thus,
a. It cannot be left in whole or in
part to the discretion of a third
person, or
b. It cannot be accomplished
through an agent or attorney.
Exception
What cannot be
delegated to 3rd
persons
a. designation
of
heirs,
devisees
and legatees
b. duration/effi
cacy
of
designation
c. determinatio
n of portions,
when
referred to
by
name
[Art.
785,
CC]
What may be
entrusted to 3rd
persons
a. designation
of
person/instit
ution falling
under a class
specified by
testator
b. manner
of
distribution of
property
specified by
testator [Art.
786, CC]
Page 213 of 532
2. Free and intelligent [Art. 839, CC] –
Execution of a will tainted by any vices
affecting the free will of the testator can
cause its disallowance.
3. Solemn or formal – if the formalities of
a will required by law are not complied
with, it will be disallowed. [Art. 839, CC]
4. Revocable and ambulatory – will can
be revoked at any time before the
testator’s death [Art. 828, CC]
5. Mortis causa – takes effect upon the
testator’s death [Art. 783, CC]
6. Individual – prohibition against joint
wills [Art. 818, CC]
7. Executed with animus testandi –
intent to dispose of the property
8. Executed
capacity
with
testamentary
9. Unilateral act – does not involve an
exchange of values or depend on
simultaneous offer and acceptance
10. Dispositive – disposes of property
Even in the absence of dispositive
provisions, a will disinheriting a
compulsory heir is still a dispositive will
because a disinheritance has the effect
of disposing the legitime of the
disinherited compulsory heir in favor of
other compulsory heirs [Seangio v.
Reyes, G.R. Nos. 140371-72 (2006)].
Exceptions: Non-dispositive wills.
e.g. A will recognizing an illegitimate
child
U.P. LAW BOC
SUCCESSION
11. Statutory grant – permitted only by
law, not a constitutional right
RULES
OF
CONSTRUCTION
INTERPRETATION [Arts. 788-795]
CIVIL LAW
2. The testator must be at least 18 years old
[Art. 797, CC]
AND
3. The testator must be of sound mind at the
time of execution [Art. 798, CC]
Main principle: Testacy is preferred to
intestacy. The intent of the testator is
paramount and must be given effect as far as
legally possible.
Test of soundness of mind: To be of sound
mind, the testator must know:
a. The nature of the estate to be disposed
of;
b. The proper objects of his bounty;
c. The character of the testamentary act
[Art. 799, CC]
Governing Laws, In General
Aspect of the Will
Governing Law
Law in force at the
time the will was
Formal Validity
executed [Art. 795,
CC]
Law of decedent’s
nationality at the
Intrinsic Validity
time of his death
[Arts. 16 and 2263,
CC]
Aspects of the Will Governed by the
National Law of the Decedent:
1. Order
of succession;
2. Amount of successional rights;
3. Intrinsic validity of testamentary provisions;
and
4. Capacity to succeed [Art. 16, CC]
TESTAMENTARY CAPACITY AND INTENT
Time of Determining Capacity
Capacity to make a will is determined as of the
time of making thereof [Art. 798, CC].
Supervening incapacity does not invalidate an
effective will. Likewise, a supervening capacity
does not validate the will of an incapable [Art.
801, CC].
Requisites for Capacity to Make a Will
1. The testator must not be expressly
prohibited by law to make a will [Art. 796,
CC]
General rule: Soundness of mind is presumed
[Art. 800, CC]
Exceptions:
a. When the testator, one month or less
before the execution of the will, was
publicly known to be insane. [Art. 800, CC]
b. When the testator executed the will after
being placed under guardianship or
ordered committed, in either case, for
insanity under Rules 93 and 101 of the
Rules of Court, and before said order has
been lifted. [Torres v. Lopez, G.R. No. L25966 (1926); Balane]
FORMS OF WILLS
In General [Art. 804, CC]
1. The will must be in writing
2. It must be in a language or dialect known
to the testator
Applicable Laws as to Formal Validity
Applicable Law
Formal
Validity
Law in force at the time the
will was executed [Art. 795,
CC]
Place,
Law of the country in which
Forms
&
the will was executed [Art.
Solemnities
17, CC]
of a Will
Page 214 of 532
U.P. LAW BOC
SUCCESSION
Arts. 815-817, CC (summarized in the table
below) provide for the various governing laws
in these instances:
1. A will was made in a foreign country by
a Filipino [Art. 815]
2. A will was made in a foreign country by
an alien [Art. 816]
3. A will was made in the Philippines by
an Alien [Art. 817]
Governing Law as to Place of Execution of
Will
Place of
Testator Execution Governing Law
of Will
Philippine Law [Art.
Philippines
16, CC]
1. Philippine Law
[Art. 815, CC]
Filipino
Outside of 2. Law of the
the
country
in
Philippines
which
it
is
executed [Art.
17, CC]
1. Philippine Law;
or
2. Law of the
country
of
Philippines
which testator
is a citizen or
subject
[Art.
817, CC]
1. Philippine Law
[Art. 816, CC];
or
Alien
2. Law of the
testator’s
country; or
Outside of 3. Law of the
the
place where the
Philippines
testator
resides; or
4. Law of the
country where
the
will
is
executed [Art.
17, CC]
CIVIL LAW
ATTESTED OR NOTARIAL WILLS
Formal requirements for notarial wills
1. Subscribed at the end
2. Attestation clause
3. Marginal signatures
4. Page numbers
5. Acknowledged by a notary public
6. Additional requirements for handicapped
testators
7. Subscribed by 3 or more witnesses in the
presence of the testator and of one another
Note: Unlike in holographic wills, there is no
requirement that an attested will should be
dated.
Formal Requirement
Subscribed at the end of
the will by:
a. Testator himself
b. Testator’s
name
Subscription
written
by
a
representative in his
presence and under his
express direction
Attested and subscribed by
3
or
more
credible
witnesses in the presence
of the testator and of one
another [Art. 805, CC]
Attestation
Clause
Page 215 of 532
The attestation clause shall
state the following [par. 3,
Art. 805, CC]:
1. Number of pages;
2. The fact that the
testator
or
his
representative
under his express
direction
signed
the will and every
page
in
the
presence
of
instrumental
witnesses
3. That the witnesses
signed the will and
U.P. LAW BOC
SUCCESSION
all its pages in the
presence of the
testator and of one
another.
The signatures of the
witnesses must be at the
bottom of the attestation
clause [Cagro v. Cagro,
G.R. No. L-5826 (1953)].
The notary public cannot
be counted as an attesting
witness [Cruz v. Villasor,
G.R. No. L-32213 (1973)].
Test of presence: Not
whether they actually saw
each other sign, but
whether they might have
seen each other sign had
they chosen to do so
considering their mental
and physical condition and
position with relation to
each other at the moment
of inscription of each
signature [Jaboneta v.
Gustilo, G.R. No. 1641
(1906)].
Marginal
Signatures
Effect
of
Omissions:
Omissions can be supplied
by an examination of the
will itself, without the need
of resorting to extrinsic
evidence, will not be fatal
and will not prevent
allowance of the will.
General rule: Testator or
his representative shall
write his name, and the
witnesses shall sign each
and every page except the
last page [Art. 805, CC].
Exceptions:
CIVIL LAW
1. When the will consists
of only one page
2. When the will consists
of only two pages, the
first of which contains
all dispositions and is
signed at the bottom by
the testator and the
witnesses, and the
second page contains
only the attestation
clause duly signed at
the bottom by the
witnesses. [Abangan v.
Abangan, G.R. No. L13431 (1919)]
3. The use of thumbprint
was allowed [Matias v.
Salud, G.R. No. L10751 (1958)]
4. The inadvertent failure
of one witness to affix
his signature to one
page of a testament,
due
to
the
simultaneous lifting of
two pages in the
course of signing, is not
per se sufficient to
justify
denial
of
probate. [Icasiano v.
Icasiano, G.R. No. L18979 (1964)]
All the pages of the will
shall
be
numbered
correlatively
in
letters
Page
placed on the upper part of
Numbers
each page (i.e. Page One
of Five Pages). [Art. 805,
CC]
The
certification
of
acknowledgement
need
Acknowledged
not be signed by the notary
by a notary
in the presence of the
public
[Art.
testator and the witnesses.
806, CC]
[Javellana v. Ledesma,
G.R. L-7179 (1955)]
Page 216 of 532
U.P. LAW BOC
Additional
Requirements
for
handicapped
testators
Subscribed by
3 or more
witnesses in
the presence
of the testator
and of one
another
SUCCESSION
1. Deaf Mute [Art. 807,
CC]
a. Testator
must
personally read the
will; or
b. Testator
shall
personally
designate
two
persons to read the
contents
and
communicate it to
him
in
some
practicable
manner.
2. Blind [Art. 808, CC]
a. The will shall be
read to the testator
twice – By one of
the
subscribing
witnesses and by
the notary public
acknowledging the
will.
b. A testator suffering
from
glaucoma
may be considered
as legally blind
[Garcia
v.
Vasquez, G.R. No.
L-26615 (1970)]
Qualifications [Art. 820,
CC]
1. Of sound mind
2. Aged 18 years or over
3. Not blind, deaf or dumb
4. Able to read and write
Disqualifications [Art. 821,
CC]
1. Person not domiciled in
the Philippines
2. Those who have been
convicted
of
falsification, perjury, or
false testimony.
CIVIL LAW
Supervening
incompetency shall not
prevent the allowance of
the will [Art. 822, CC].
Rules on Interested Witness [Art. 823, CC]
General Rule
Exception
Devises
or If there are three other
legacies in favor competent witnesses,
of an interested the devise or legacy
witness or his or shall be valid and the
her
spouse, interested witness shall
parent, or child be treated as a mere
will be void
surplusage
HOLOGRAPHIC WILLS
Formal Requirements for Holographic Wills
1. In writing [Art. 804, CC]
2. In a language known to the testator
[Art. 804, CC]
3. Entirely written, dated and signed in the
hand of the testator himself [Art. 810,
CC]
Witnesses Required for Probate [Art. 811,
CC]
1. At least one witness who knows the
handwriting and signature of the
testator; explicitly declare that it is the
testator’s
2. If contested – at least 3 of such
witnesses
3. In the absence of a competent
witness, expert testimony may be
resorted to
General rule: The holographic will itself must
be presented for probate [Gan v. Yap, G.R. No.
L-12190 (1958)]
Exception: If there is a photostatic copy or
xerox copy of the holographic will, it may be
presented for probate [Rodelas v. Aranza, G.R.
No. L58509 (1982)]
Creditors
may
be
witnesses [Art. 824, CC].
Page 217 of 532
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Additional Dispositions
In holographic wills, the dispositions of the
testator written below his signature must be
dated and signed by him in order to make
them valid as testamentary dispositions [Art.
812, CC]
When a number of dispositions appearing in a
holographic will are signed without being
dated, and the last disposition has a signature
and date, such date validates the dispositions
preceding it, whatever be the time of prior
dispositions. [Art. 813, CC]
Insertion,
Cancellation,
Erasure
Or
Alteration [Art. 814, CC]
Testator must authenticate by his full signature.
If such change is not authenticated by the
testator, such change is considered not made.
Thus, “the will is not thereby invalidated as a
whole, but at most only as regards the
particular words erased, corrected, or
inserted.” [Kalaw v. Relova, G.R. No. L-40207
(1984), citing Velasco v. Lopez (1903)]
Note, however, that in the case of Kalaw v.
Relova, the alteration involved the designation
of the testator’s sole heir. In this case, the
holographic Will had only one substantial
provision, which was altered by substituting the
original heir with another, but which alteration
did not carry the requisite of full authentication
by the full signature of the testator, the effect
must be that the entire Will is voided or revoked
for the simple reason that nothing remains in
the Will after that which could remain valid.
Effect of Insertion Written by Another
Person on the Validity of a Holographic Will
When Made
Effect
Insertion considered
After the
not written. Validity
execution, without cannot be defeated by
consent of testator the malice or caprice
of a third person
After execution,
Will is valid, insertion
with consent
is void
CIVIL LAW
Contemporaneous
to the execution of
the will
Will is void
because it is not
written entirely by
the testator
JOINT WILLS
Elements
1. A single testamentary instrument,
2. Which contains the wills of two or more
persons,
3. Jointly executed by them,
4. Either for their reciprocal benefit or for the
benefit of a third person.
Filipinos cannot make Joint Wills
Joint wills executed by Filipinos, whether in the
Philippines or abroad, are prohibited.
Note: Separate documents, each serving as
one independent will (even if written on the
same sheet) are not considered joint wills.
MUTUAL WILLS
1. Executed pursuant to an agreement
between two or more persons,
2. Jointly executed by them,
3. Either for their reciprocal benefit or for
the benefit of a third person.
This is prohibited under Article 818.
RECIPROCAL WILLS
1. Testators name each other as
beneficiaries in their own wills (there
are therefore 2 separate documents),
2. Under similar testamentary plans –
valid
CODICILS
Page 218 of 532
1. It is a supplement or addition to a will,
2. made after the execution of a will,
3. and annexed to be taken as a part of
the will,
U.P. LAW BOC
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4. by which any disposition made in the
original will is explained, added to, or
altered.
5. in order that it may be effective, it shall
be executed as in the case of a will.
[Arts. 825-826, CC]
CIVIL LAW
by some other person in his presence,
and by his express direction.
The act contemplating revocation must be
done at any time before the death of the
testator. The right of revocation cannot be
waived or restricted. [Art. 828, CC]
Note: A codicil must be in the form of a will –
can have a notarial codicil attached to a
holographic will, and a holographic codicil
attached to a notarial will.
Note: Even if a holographic will was not
intended to be revoked, unless a xerox copy
exists, it can no longer be proved.
Incorporation by Reference
Law Governing Revocation [Art. 829, CC]
Requisites [Art. 827, CC]
1. The document or paper referred to in the
will must be in existence at the time of the
execution of the will.
2. The will must clearly describe and identify
the same, stating among other things the
number of pages thereof.
3. It must be identified by clear and
satisfactory proof as the document or
paper referred to therein; and
4. It must be signed by the testator and the
witnesses on each and every page, except
in case of voluminous books of account or
inventories.
Note: Not available to holographic wills.
REVOCATION OF WILLS
Place of
Revocation
Testator’s
Domicile
Philippines
Philippines,
or
some
other
country
Outside
the
Philippines
1. Law
of
Domicile
Philippine
Philippines
law
(This
2. Law of lace
situation is
of
not
Revocation
governed
3. Law of Place
by Art. 829)
of Execution
of
Will
[Balane]
1. Law of the
Place
of
Execution of
Will; or
2. Law of the
Foreign
place
in
Country
which
the
testator had
his domicile
at the time of
revocation
A will may be revoked by the testator at any
time before his death [Art. 828, CC]
Modes of Revocation [Art. 830, CC]
1. By implication of law
EXAMPLE:
i. Preterition [Art. 854, CC];
ii. Legal separation [Art. 63, FC];
iii. Unworthiness to succeed [Art.
1032, CC], et al.);
2. By the execution of a will, codicil or
other writing executed as provided in
the case of wills (may be total or partial)
3. By burning, tearing, canceling, or
obliterating the will with the intention of
revoking it, by the testator himself, or
Governing Law
Philippine Law
General Rule: A revocation made in a
subsequent will shall take effect, even if the
new will should become inoperative by reason
of the incapacity of the heirs, devisees or
legatees designated therein, or by their
renunciation. [Art. 832, CC]
Page 219 of 532
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Exception: Doctrine of Dependent Relative
Revocation [Molo v. Molo, G.R. No. L-2538
(1951)]
The rule that where the act of destruction is
connected with the making of another will so as
to fairly raise the inference that the testator
meant the revocation of the old to depend upon
the efficacy of the new disposition intended to
be substituted, the revocation will be
conditional and dependent upon the efficacy of
the new disposition; and if for any reason, the
new will intended to be made as a substitute is
inoperative, the revocation fails and the original
will remain in full force.
The failure of the new testamentary disposition
upon whose validity the revocation depends is
equivalent to the non-fulfillment of a
suspensive condition and hence prevents the
revocation.
False Cause/Illegal Cause
A revocation based on a false cause or illegal
cause is null and void [Art. 833, CC].
It must appear from the will that the testator is
revoking because of the cause which he did not
know was false.
Recognition of Illegitimate Child
The recognition of an illegitimate child does not
lose its legal effect even though the will wherein
it was made should be revoked [Art. 834, CC].
Principle of Instanter
Revoking clause in the 2nd will is not
testamentary in character but operates to
revoke the prior will instanter (immediately)
upon the execution of the will containing it. The
revocation of the 2nd will does not revive the 1st
will which has already become a nullity.
CIVIL LAW
REPUBLICATION AND REVIVAL
Republication vs.Revival
Republication
• Takes place by
an act of the •
testator
• Corrects
•
extrinsic
and
intrinsic defects
Revival
Takes place by
operation of law
Restores
a
revoked will
Art. 835
Art. 836
Void as to:
1. Non-formal
Void as to form [Art.
defect
805, CC]
2. Previously
revoked
How to Republish:
How to Republish:
1. Execute new will 2. Execute new will
2. Copy out the
or codicil
provisions from 3. Simply
make
the original void
references to old
will
will
Reference
to Reference to original
original insufficient sufficient
ALLOWANCE AND DISALLOWANCE OF
WILLS
Probate Requirement: No will shall pass
either real or personal property unless it is
proved and allowed in accordance with the
Rules of Court. [Art. 838, CC]
Definition of a Probate: A proceeding in rem
required to establish the validity of a will and in
order to pass real or personal property. The
testator himself may, during his lifetime petition
the court having jurisdiction for the allowance
of his will. [Art. 838, CC]
Kinds of Probate
1. Post-mortem: after death
2. Ante-mortem: during the testator’s lifetime
Note: Probate of a will is mandatory.
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Matters to be proved in probate:
1. Identity
2. Due Execution
3. Capacity of the Testator
SCOPE OF PROBATE PROCEEDINGS [Art.
839, CC]
General rule: The probate court cannot inquire
into the intrinsic validity of testamentary
provisions. Only the extrinsic validity of such
wills may be examined.
Exceptions:
1. When practical considerations demand
that the intrinsic validity of the will be
resolved: When the will is intrinsically void
on its face (e.g., when there is clearly a
preterition) such that to rule on its formal
validity would be a futile exercise [Acain v.
IAC, G.R. No. L-72706 (1987)].
2. Claimants are all heirs and they consent,
either expressly or impliedly, to the
submission of the question of intrinsic
validity to the court [Valera v. Inserto, G.R.
No. L-56504 (1987)].
3. Probate court may pass upon the title to a
property, but such determination is
provisional and not conclusive, and is
subject to the final decision in a separate
action to resolve title [Pastor v.CA, G.R.
No. L-56340 (1983)].
4. Probate court may decide on the
ownership of a property when the estate
contains only one property to be
adjudicated upon [Portugal v. PortugalBeltran, G.R. No. 155555 (2005)].
Revocation vs. Disallowance
Revocation
Disallowance
Voluntary act of the Given
by
judicial
testator
decree
Must always be for a
With or without cause
legal cause
Always total, except
when the ground is
fraud or influence
May be partial or total
which affects only
certain portions of the
will
CIVIL LAW
Effect of Final Decree of Probate, Res
Judicata on Formal Validity
The probate of a will by the probate court
having jurisdiction thereof is usually considered
as conclusive as to its due execution and
validity and is also conclusive that the testator
was of sound and disposing mind at the time
when he executed the will, and was not acting
under duress, menace, fraud, or undue
influence, and that the will is genuine and not a
forgery. [Mercado v. Santos, G.R. No. 45629
(1938)]
Grounds for Denying Probate
6. If the signature of the testator was procured
by fraud;
7. If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary or some other person;
8. If the testator acted by mistake or did not
intend that the instrument he signed should
be his will at the time affixing his signature
thereto;
9. If the testator was insane or otherwise
mentally incapable of making a will at the
time of its execution;
10. If the formalities required by law have not
been complied with; or
11. If it was executed through force or under
duress, or the influence of fear, or threats.
[Art. 839, CC]
2. Institution of heirs
A will shall be valid even though it —
a. should not contain an institution of an heir;
or
b. such institution should not comprise the
entire estate; or
c. the person so instituted should not accept
the inheritance or be incapacitated to
succeed.
In such cases, the testamentary dispositions
made in accordance with law shall be complied
with and the remainder of the estate shall pass
to the legal heirs. [Art. 841, CC]
Page 221 of 532
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CIVIL LAW
Extent of Grant [Art. 842, CC]
Freedom of disposition depends upon the
existence, kind and number of compulsory
heirs.
a. No compulsory heirs – Testator has full
power of disposition
b. With compulsory heirs – Testator cannot
disregard the rights of the compulsory
heirs. Testator may dispose of the free
portion of his estate only.
Preterition
NOT
ALTHOUGH NAMED
NAMED
He is not He is neither:
named in the
1. Instituted as an heir
will.
2. Expressly
disinherited
3. Assigned any part of
the estate
Thus: tacitly deprived of his right to legitime.
Effect of Predecease of Heir [Art. 856, CC]
Any heir who dies before the testator or is
incapacitated to succeed or renounces the
inheritance transmits no rights of the testator to
his own heirs. This is without prejudice to the
rights of representation [Tolentino].
Concept [Art. 854, CC]
1. There must be a total omission of one,
some or all of the heir/s from the
inheritance. [Seangio v. Reyes, G.R. Nos.
140371-72 (2006)]
2. The omission must be that of a compulsory
heir.
3. The compulsory heir omitted must be of the
direct line.
4. The omitted compulsory heir must be living
at the time of the testator’s death or must
at least have been conceived before the
testator’s death.
Manner of Distribution
1. Heirs instituted without designation of
shares shall inherit in equal parts [Art.
846, CC]
2. If the institution pertains to some heirs
individually and others collectively, the
presumption is that all are individually
instituted [Art. 847, CC]
3. If siblings are instituted (whether full or
half-blood), the presumption is that the
inheritance is to be distributed equally
[Art. 848, CC]. This is different from the
rules of distribution in intestate
succession.
4. If parents and children are instituted,
they are presumed to have been
instituted simultaneously and not
successively [Art. 849, CC]
Note: By “unknown,” the Code actually means
persons who could not be ascertained; a
disposition in favor of a stranger is valid
[Tolentino].
No Preterition
If the heir in question is instituted in the will but
the portion given to him by the will is less than
his legitime – there is no preterition. [Reyes v.
Barretto-Datu, G.R. No. L-17817 (1967)]
If the heir is given a legacy or devise – there is
no preterition. [Aznar v. Duncan, G.R. No. L24365 (1966)]
If the heir had received a donation inter vivos
from the testator – the better view is that there
is no preterition. The donation inter vivos is
treated as an advance on the legitime under
Articles 906, 909, 910 and 1062.
The remedy, if the value of inheritance, legacy
or devise, or donation inter vivos is only for
completion of his legitime under Articles 906
and 907.
Page 222 of 532
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Distinguished from Disinheritance
Preterition
Disinheritance
• Tacit
• Express
deprivation of a
deprivation of a
compulsory
compulsory heir
heir of his
of his legitime
legitime
• Always voluntary
• May be
• For some legal
voluntary but
cause
the
• If the
presumption of
disinheritance is
law is that it is
valid, the
involuntary
compulsory heir
• Law presumes
disinherited is
there has been
totally excluded
merely
from the
oversight or
inheritance. In
mistake on the
case of invalid
part of the
disinheritance,
testator
the compulsory
• Since
heir is merely
preterition
restored to his
annuls the
legitime
institution of
heirs, the
omitted heir
gets not only
his legitime but
also his share
in the free
portion not
disposed of by
way of legacies
and devises
CIVIL LAW
3. Substitution of heirs
Substitution - the appointment of another heir,
so that he may enter into the inheritance in
default of the heir originally instituted [Art. 857,
CC].
The substitute shall be subject to the same
charges and conditions imposed upon the
instituted heir, unless the testator has
expressly provided the contrary, or the charges
or conditions are personally applicable only to
the heir instituted [Art. 862, CC].
Kinds of Substitution
Effects of Preterition [Art. 854, CC]
1. The institution of the heir is annulled.
2. Devises and legacies shall remain valid
as long as they are not inofficious.
3. If the omitted compulsory heir should
die before the testator, the institution
shall be effective, without prejudice to
the right of representation.
When there are no devises and legacies,
preterition will result in the annulment of the will
and give rise to intestate succession [Neri v.
Akutin, G.R. No. L-47799 (1941)].
Page 223 of 532
1. BRIEF OR COMPENDIOUS [Art. 860,
CC]
Brief – Two or more persons were
designated by the testator to substitute
for only one heir
Compendious – One person is
designated to take the place of two or
more heirs
2. RECIPROCAL [Art. 861, CC]
If the heirs instituted in unequal shares
should be reciprocally substituted, the
substitute shall acquire the share of the
heir who dies, renounces, or is
incapacitated, unless it clearly appears that
the intention of the testator was otherwise.
If there is more than one substitute, they
shall have the same share in the
substitution as the institution.
Example (only 1 substitute): If two heirs
are reciprocally substituted, then if one of
them dies before the testator dies,
renounces, or turns out to be incapacitated,
the other will get his share, regardless of
whether or not their shares are equal.
Example (more than 1 substitute): A is
instituted to 1/3, B to 1/6, and C to ½. If C
U.P. LAW BOC
SUCCESSION
dies before the testator, renounces or turns
out to be incapacitated, then the other two
will get his shares in the same proportion
as in the institution. A will get twice as much
as B (because his share of 1/3 in the
institution is twice the size of B’s share of
1/6)
3. SIMPLE SUBSTITUTION [Art. 859,
CC]
The testator may designate one or more
persons to substitute the heir/s instituted in
case the heirs should:
a. die before him (predecease),
b. should not wish to accept the
inheritance (repudiation), or
c. should be incapacitated to accept the
inheritance (incapacitated).
4. FIDEICOMMISSARY SUBSTITUTION
The testator institutes an heir with an
obligation to preserve and to deliver to
another the property so inherited. The heir
instituted to such condition is called the
First Heir or the Fiduciary Heir; the one to
receive
the
property
is
the
Fideicommissary or the Second Heir [Art.
863, CC].
Requisites [Arts. 863-865, CC]
a. A Fiduciary or first heir instituted is
entrusted with the obligation to
preserve and to transmit to a
Fideicommissary Substitute or second
heir the whole or part of the inheritance.
b. The substitution must not go beyond
one degree from the heir originally
instituted.
c. The
Fiduciary
Heir
and
the
Fideicommissary are living at the time
of the death of the testator.
d. The fideicommissary substitution must
be expressly made.
e. The fideicommissary substitution is
imposed on the free portion of the
estate and never on the legitime
CIVIL LAW
In the absence of an obligation on the part of
the first heir to preserve the property for the
second heir, there is no fideicommissary
substitution. [PCIB v. Escolin, G.R. Nos. L27860 and L-27896 (1974)]
Effects of predecease of
heir/fiduciary
or
the
heir/fideicommissary
the first
second
Situation 1: If the heir dies followed by the
second heir, then the testator dies, who will
inherit? The legal heirs. There is no
fideicommissary substitution because first and
second heirs are not living at the time of the
testator’s death [Art. 863, CC].
Situation 2: The testator dies first followed by
the second heir. The first heir survived them but
subsequently dies, who will inherit? The SH
and his heirs under Art. 866, CC. This is
because the SH passes his rights to his own
heirs when he dies before FH.
Situation 3: If the first heir dies, followed by the
testator, then the second heir, who will inherit?
No specific provision in law, but SH inherits
because the T intended him to inherit.
4. Conditional
dispositions
testamentary
with a term
testamentary
and
dispositions
3 Kinds of Testamentary Disposition
a. Conditional [Art. 871, CC]
b. Dispositions with a term [Art. 885, CC]
c. Dispositions with a mode/modal
dispositions [Art. 882, CC]
Page 224 of 532
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CONDITIONAL DISPOSITIONS
Casual or mixed
Casual
Prohibited conditions: (considered as not
imposed)
a. Any charge, condition or substitution
whatsoever upon the legitimes [Art.
872, CC]
b. Impossible and illegal conditions [Art.
873, CC]
c. Absolute condition not to contract a first
marriage [Art. 874, CC]
d. Absolute condition not to contract a
subsequent marriage unless imposed
on the widow or widower by the
deceased spouse, or by the latter’s
ascendants or descendants [Art. 874,
CC]
e. Scriptura captatoria or legacy-hunting
dispositions - dispositions made upon
the condition that the heir shall make
some provision in his will in favour of
the testator or of any other person [Art.
875, CC]
Effect: Entire disposition is void.
POTESTATIVE,
CONDITIONS
CASUAL,
AND
CIVIL LAW
MIXED
Potestative Conditions
Depends solely on the will of the heir
General rule: Must be fulfilled as soon as the
heir learns of the testator’s death.
Exception: If the condition was already
complied with at the time the heir learns of the
testator’s death; or if the condition is of such a
nature that it cannot be fulfilled again.
If there is constructive compliance, it is deemed
fulfilled.
Mixed
Fulfillment depends
Fulfillment depends partly on the will of
on chance or the will the heir and partly on
of a third person.
chance or the will of
a third person.
General rule: May be fulfilled at any time
(before or after testator’s death), unless
testator provides otherwise.
Exception: If already fulfilled at the time of
execution of will:
a. If testator unaware of the fact of fulfillment
– deemed fulfilled
b. If testator aware:
● can no longer be fulfilled again:
deemed fulfilled
● can be fulfilled again: must be fulfilled
again.
Constructive Compliance:
a. If casual – not applicable
b. If mixed – applicable only if dependent
partly on the will of a third party not
interested.
Dispositions with a Term
A term may either be suspensive or resolutory.
Suspensive
Resolutory
Before the arrival of Before the arrival of
the term, the property the
term,
the
should be delivered to property should be
the legal or intestate delivered to the
heirs.
instituted heir.
A caución muciana
has to be posted by No caución muciana
the legal or intestate required.
heirs.
Modal Dispositions
Dispositions with an obligation imposed upon
the heir, without suspending the effectivity of
the institution, as a condition does.
A mode functions similarly to a resolutory
condition.
Page 225 of 532
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In modal institutions, the testator states:
● the object of the institution,
● the purpose or application of the
property left by the testator, or
● the charge imposed by the testator
upon the heir [Rabadilla v. CA, G.R.
No. 113725 (2000)].
CAUCIÓN MUCIANA
A security to guarantee the return of the value
of property, fruits, and interests, in case of
contravention of condition, term or mode
Instances when it is needed:
1. Suspensive term [Art. 885,CC]
2. Negative potestative condition - when
the condition imposed upon the heir is
negative, or consists in not doing or not
giving something [Art. 879, CC]
3. Mode [Art. 882, par. 2, CC]
5. Legitime
It is that part of the testator’s property which he
cannot dispose of because the law has
reserved it for his compulsory heirs. [Art. 886,
CC]
Every renunciation or compromise as regards
a future legitime between the person owing it
and his compulsory heirs is void, and the latter
may claim the same upon the death of the
former; but they must bring to collation
whatever they may have received by virtue of
the renunciation or compromise [Art. 905, CC].
Classes of Compulsory Heirs [Art. 887, CC]
1. Primary:
Legitimate
Children
and
Legitimate Descendants with respect to
their Legitimate Parents and Ascendants
2. Secondary: Those who succeed only in
the absence of the primary compulsory
heirs:
a. Legitimate Parents and Legitimate
Ascendants, with respect to their
Legitimate Children and Descendants.
(They will inherit only in default of
CIVIL LAW
legitimate
children
and
their
descendants)
b. Illegitimate Parents with respect to their
Illegitimate Children. (They will inherit
only in default of the illegitimate and
legitimate children and their respective
descendants).
Note that other illegitimate ascendants are not
included.
3. Concurring: Those who succeed together
with the primary or the secondary
compulsory heirs:
● Surviving Spouse
● Illegitimate Children and Illegitimate
Descendants
SPECIFIC RULES ON LEGITIME
1. Direct Descending Line
a. Rule of Preference between lines [Arts.
978 and 985, CC]
● Those in the direct descending line
shall exclude those in the direct
ascending and collateral lines; and
● Those in the direct ascending line
shall, in turn, exclude those in the
collateral line.
● Rule of Proximity [Art. 926, CC]:
The relative nearest in degree
excludes the farther one.
b. Right of representation ad infinitum in
case of predecease, incapacity, or
disinheritance [Arts. 972 and 992, CC]
● For decedents who are Legitimate
Children, only the Legitimate
Descendants are entitled to right of
representation.
● For decedents who are Illegitimate
Children, both the Legitimate and
the Illegitimate Descendants can
represent, only with respect to the
decedent’s illegitimate parents.
c. If all the Legitimate Children repudiate
their legitime, the next generation of
Legitimate Descendants may succeed
in their own right.
2. Direct Ascending Line
a. Rule of division between lines
● The father and the mother shall
inherit equally if both living. One
Page 226 of 532
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parent succeeds to the entire
estate of the child if the other
parent is dead [Art. 986, CC].
● In default of the mother and the
father, the ascendants nearest in
degree will inherit [Art. 987, CC].
● If there is more than one relative of
the same degree but of different
lines, one half will go to the paternal
ascendants and the other half to
the maternal ascendants [Art. 987,
CC].
b. Rule of equal division
● The relatives who are in the same
degree shall inherit in equal shares
[Art. 987, CC].
Steps in Determining the Legitimate of
Compulsory Heirs [Arts. 908-910, CC]
Value of the Estate
- Taxes
- Less Liabilities
NET ESTATE
+ collationable donations
THEORETICAL* HEREDITARY ESTATE
*Because this amount is what the legitime will
be based on, but the actual amount available
for physical distribution is the net estate
Remedy of a Compulsory Heir in Case of
Impairment of Legitime
Extent and Nature
Remedy
of Impairment
Total omission of a
Annulment
of
compulsory
heir
institution
and
who is a direct
reduction of legacies
descendant
or
and devises [Art. 854,
ascendant
CC]
(preterition)
Reduction of the
Testamentary
disposition insofar as
dispositions
they
may
be
impairing
or
inofficious
or
diminishing
the
excessive [Art. 907,
legitime
CC]
CIVIL LAW
Completion of the
legitime [Art. 906, CC]
by Collation – reduction
of donations [Arts.
771 and 911, CC]
Partial impairment
Impairment
inofficious
donations
Method of Reduction [Art. 911, CC]
Order of priorities to be observed in the
reduction [Balane]:
1. Reduce pro rata the non-preferred legacies
and devises, and the testamentary
dispositions to heirs
2. Reduce pro rata the preferred legacies and
devises
3. Reduce the donations inter vivos according
to the inverse order of their dates (oldest is
the most preferred)
How are Devises and Legacies with usufructs,
life annuities and pensions reduced?
1. If the value of these grants exceeds the
free portion, it impairs the legitimes and
should be reduced
2. The compulsory heir has 2 options:
a. Delivering to the devisee or legatee the
free portion
b. Complying with the testamentary
provision
Note: If the devise subject to reduction should
consist of real property, which cannot be
conveniently divided, it shall go to the devisee
if the reduction does not absorb ½ of its value;
and in a contrary case, to the compulsory heirs;
but the former and the latter shall reimburse
each other in cash for what respectively
belongs to them.
The devisee who is entitled to a legitime may
retain the entire property, provided its value
does not exceed that of the disposable portion
and of the share pertaining to him as a legitime
[Art. 912, CC].
If the heirs or devisees do not choose to avail
themselves of the right granted by the
foregoing, any heir or devisee who did not have
such right may exercise it; should the latter not
Page 227 of 532
U.P. LAW BOC
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make use of it, the property shall be sold at
public auction at the instance of any one of the
interested parties [Art. 913, CC].
Note: Rule on Reduction of Legitimes (Shares)
Legitimate Never reduced, they are
children
primary and preferred
Surviving
Never reduced
spouse
Subject to reduction, pro rata,
without preference (you get
Illegitimate
the remaining portion, divide
children
it by the number of illegitimate
children)
RESERVA TRONCAL
The ascendant who inherits from his
descendant any property which the latter may
have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to
reserve such property as he may have
acquired by operation of law for the benefit of
relatives who are within the third degree and
who belong to the line from which said property
came [Art. 891, CC].
Concept of Reserva Troncal
1. A descendant (prepositus) inherits or
acquires property from an ascendant or
from a brother or sister (origin or mediate
source) by gratuitous title.
2. The same property is inherited by another
ascendant (reservista) or is otherwise
acquired by him by operation of law from
the said descendant (prepositus).
3. The said ascendant (reservista) must
reserve the property for the benefit of the
relatives of the deceased descendant
within the third civil degree and who belong
to the line from which the said property
came (reservatarios).
Parties: [Balane]
1. Origin or Mediate Source – either an
ascendant of any degree of ascent or a
brother or sister of the Prepositus;
responsible for the 1st transfer
CIVIL LAW
2. Prepositus – the first transferee of the
reserved property
3. Reservista – an ascendant of the
Prepositus other than the Origin or Mediate
Source; the one obligated to reserve the
property
4. Reservatarios – within the 3rd degree of
consanguinity
from
the
Prepositus
[Cabardo v. Villanueva, G.R. No. L-19003
(1922)] belonging to the line from which the
property came
Requisites for Reserva Troncal [Chua v. CFI,
G.R. No. L-29901 (1977)]:
1. That the property was acquired by a
descendant
(Prepositus)
from
an
ascendant or from a brother or sister
(Origin or Mediate Source) by gratuitous
title,
2. That the Prepositus died without
(legitimate*) issue,
3. That the property is inherited by another
ascendant (Reservista) by operation of
law, and
4. That there are relatives within the 3rd
degree (Reservatarios) belonging to the
line from which said property came.
Note: Only legitimate descendants will prevent
the property from being inherited by the
legitimate ascending line by operation of law
[Balane]
Three transmissions involved: [Balane]
a. 1st transfer – by gratuitous title, from a
person to his descendant, brother or sister
b. 2nd transfer – by operation of law, from the
transferee in the 1st transfer to another
ascendant. This creates the reserva.
c. 3rd transfer – from the transferee in the
second transfer to the relatives
The 1st transfer from the origin does not
make the property reservable.
The 1st transferee owns the property he
receives in full and in fee simple. If he sells the
property, then there is no reserva that can be
created. It is at this point, however, that a
reserva may ignite, because if the 1st
Page 228 of 532
U.P. LAW BOC
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transferee has no legitimate descendants, the
property, by operation of law, will go back up to
his ascendant.
The 2nd transferee is the reservor.
The reservor can enjoy the property, but his
title is subject to a double resolutory condition.
So, if he dies, you need to ask 2 questions:
a. Does the prepositus have relatives?
b. Are these relatives qualified to inherit
from the prepositus?
If the answers are YES: then a reserva
occurs.
Note: The reservatarios actually inherit, by
delayed intestacy, from the prepositus.
Nature of the reservista’s right: [Edroso v.
Sablan, G.R. No. 6878 (1913)]
1. The reservista’s right over the reserved
property is one of ownership
2. The right of ownership is subject to a
resolutory condition, i.e. the existence of
reservatarios at the time of the reservista's
death
3. The right of ownership is alienable, but
subject to the same resolutory condition.
4. The reservista’s right of ownership is
registrable.
Nature of reservatarios’ right: [Sienes v.
Esparcia, G.R. No. L-12957 (1961)]
1. The reservatarios have a right of
expectancy over the property.
2. The right is subject to a suspensive
condition, i.e. the expectancy ripens into
ownership if the reservatarios survive the
reservistas.
3. The right is alienable but subject to the
same suspensive condition.
4. The right is registrable.
Reserva Minima vs. Reserva Maxima
1. The
prepositus
acquired
property
gratuitously from an ascendant, a brother
or sister
2. In his will, he institutes as his heir his
ascendant (who is also a compulsory heir)
such that the ascendant receives half of the
CIVIL LAW
estate by operation of law as legitime and
the other half by testamentary disposition
Two Views
● Reserva Maxima: As much of the
potentially reservable property as possible
must be deemed included in the part that
passes by operation of law (maximizing the
scope of the reserva)
● Reserva Minima: every single property in
the prepositus’s estate must be deemed to
pass, partly by will and partly by operation
of law, in the same proportion that the part
given by will bears to the part not so given
[Balane]
Either view is defensible, but Reserva Minima
finds wider acceptance in the Philippines.
[Balane]
Extinguishment of the Reserva
1. Loss of the reservable property
2. Death of the reservista
3. Death of all the relatives within the third
degree belonging to the line from which the
property came
4. Renunciation by the reservatarios, but a
future reservatario is not bound by such
renunciation
→
a
conditional
extinguishment.
5. Prescription, when the reservista holds the
property
adversely
against
the
reservatarios, as free from reservation
DISINHERITANCE
A compulsory heir may, in consequence of
disinheritance, be deprived of his legitime, for
causes expressly stated by law [Art. 915,
CC].
Effect of Disinheritance
A disinherited heir is totally excluded from the
inheritance. This means that he forfeits not only
his legitime, but also his intestate portion (if
any), and any testamentary disposition made in
a prior will of the disinheriting testator [Balane].
Page 229 of 532
U.P. LAW BOC
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Requisites of a Valid Disinheritance
a. Heir disinherited must be designated by
name or in such a manner as to leave no
room for doubt as to who is intended to be
disinherited.
b. It must be for a cause designated by law.
c. It must be made in a valid will.
d. It must be made expressly, stating the
cause in the will itself.
e. The cause must be certain and true, and
must be proved by the interested heir if the
person should deny it.
f. It must be unconditional.
g. It must be total.
Note: The burden of proving the truth of the
cause for disinheritance shall rest upon the
other heirs of the testator, if the disinherited
heir should deny it [Art. 917, CC].
Causes Common to Disinheritance and
Unworthiness
Article 1032 enumerates five acts of
unworthiness which likewise constitute
grounds to disinherit a compulsory heir.
The effect of the concurring causes of
unworthiness and grounds for disinheritance is
as follows: If the testator failed to disinherit the
offender, the law nonetheless intervenes by
excluding the offender from the inheritance of
the testator or the decedent by reason of
unworthiness.
How do you reconcile unworthiness and
disinheritance as regards Restoration to
Capacity?
Under the rules on
Disinheritance
Under the rules on
–
Unworthiness –
Note: this is
Note: this is by
expressly made by
operation of law
testator
A subsequent
Either:
reconciliation is
1. written pardon,
enough
or
CIVIL LAW
2. subsequent will
reconciliation is
not enough
Overlap of Rules:
Remedy
1. If the offended
party does not
make
a will
subsequent to
the occurrence
of the cause
• Unworthines
s sets in
• Written
condonation
is necessary
to restore
2. If the offended
party makes a If he did not know the
will subsequent cause
to
the
● Unworthines
occurrence
of
s stays
the cause
• If he knew
the cause
• If
he
disinherits Art 922
• If
he
institutes or
pardons the
offender
• Restored to
capacity
• If will silent –
unworthines
s stays
Modes of Revocation of Disinheritance
a. Reconciliation [Art. 922, CC]
b. Subsequent
institution
of
the
disinherited heir
c. Nullity of the will which contains the
disinheritance.
Note: The moment that testator uses one of the
acts of unworthiness as a cause for
disinheritance; he thereby submits it to the
Page 230 of 532
U.P. LAW BOC
SUCCESSION
rules on disinheritance. Thus, reconciliation
renders the disinheritance ineffective.
RECONCILIATION [ART. 922, CC]
Effect of Reconciliation between Offender
and Offended Person:
● If no disinheritance has been made yet,
the offended person will be deprived of
his right to disinherit.
● If disinheritance has been effected, it
will be rendered ineffectual.
Rights of Descendants of Person
Disinherited [Art. 923, CC]
Disinheritance gives rise to the right of
representation in favor of the children and
descendants of the disinherited person with
respect to his legitime.
INEFFECTIVE DISINHERITANCE [Art. 918,
CC]
Instances of Ineffective disinheritance:
a. There is no specification of the cause.
b. The cause is not proved.
c. The cause is not among those
specified in the provisions.
Effect of Ineffective Disinheritance: if the
disinheritance lacks one or other of the
requisites mentioned in this article, the heir in
question gets his legitime [Balane].
Ineffective
Disinheritance
Person disinherited
may
be
any
compulsory
heir
Only annuls the
institution in so far
as it
prejudices
the
person
disinherited
Preterition
Person omitted must
be a compulsory heir
in the direct line
Annuls the entire
institution of heirs
CIVIL LAW
LEGACIES AND DEVISES
Legacy
A gift of personal
property given in a
will
It is bequeathed
Devise
A gift of real property
given in a will
It is devised
Persons Charged with the Duty to Give
Legacies and Devises in a Will
a. Compulsory heir, provided, their legitimes
are not impaired [Art. 925, CC]
b. Voluntary heir
c. Legatee or devisee can be charged with
the duty of giving a sub-legacy or subdevise but only to the extent of the value of
the legacy or devise given him [Art. 925,
CC]
d. The estate represented by the executor
or administrator, if no one is charged with
this duty to pay or deliver the legacy or
devise in the will
If there is an administration proceeding, it
constitutes a charge upon the estate. If there
is no administration proceeding, it is a charge
upon the heirs.
Validity and Effect of Legacy or Devise
Legacy or Devise of a thing owned in
part by the testator [Art. 929, CC]
The legacy or devise shall be understood to
be limited to such part or interest
If testator expressly declares
Exception
that he gives the thing in its
entirety.
Legacy or Devise of a thing belonging to
another [Art. 930, CC]
Testator erroneously
believed that the
Void
property belonged to
him
The
thing
bequeathed
Effective
afterwards becomes
his by whatever title
Page 231 of 532
U.P. LAW BOC
SUCCESSION
Valid – estate must
Testator
knew
try
to
acquire
property did not
property or else give
belong to him
heir monetary value.
Legacy of devise of a thing belonging to
the legatee or devisee
The
thing
already
belongs to the legatee or
devisee at the time of the Ineffective
execution of the will [Art.
932, CC]
The thing is subject to an
Valid only as to
encumbrance or interest
the interest or
of another person [Art.
encumbrance
932, CC]
Legatee or devisee
subsequently alienates Ineffective
the thing [Art. 933,CC]
After alienating the thing,
the legatee or devisee
subsequently reacquires Ineffective
it gratuitously [Art. 933,
CC]
Legatee
or
After alienating the thing, devisee
can
the legatee or devisee demand
acquires it by onerous reimbursement
title [Art. 933, CC]
from the heir or
estate
CIVIL LAW
Revocation of Legacies and Devises [Art.
957, CC]
a. Testator transforms the thing such that
it does not retain its original form or
denomination
b. Testator alienates the thing by any title
or for any cause. Reacquisition of the
thing by the testator does not make the
legacy or devise valid, unless it is
effected by right of repurchase.
c. Thing is totally lost during the lifetime or
after the death of the testator
d. Other causes: nullity of will, noncompliance with suspensive condition,
sale of the thing to pay the debts of the
deceased during the settlement of his
estate.
Delivery of Legacy/Devise [Art. 951, CC]
The very thing bequeathed shall be delivered
and not its value
a. With all its accessions and accessories
b. In the condition in which it may be upon
the death of the testator
c. Legacies of money must be paid in
cash
Effect of ineffective legacies or devises
[Art. 956, CC]
In case of repudiation, revocation or incapacity
of the legatee or devisee, the legacy or devise
shall be merged with the mass of the hereditary
estate, except in cases of substitution or
accretion.
Page 232 of 532
U.P. LAW BOC
SUCCESSION
SUMMARY
OF
LEGITIMES
COMPULSORY HEIRS
Legend:
LC – legitimate ILC – illegitimate
children
children
Surv
iving
Rela
tives
LC
alon
e
1 LC,
SS
2 or
more
LC,
SS
LC,
ILC
1 LC,
SS,
ILC
LC
and
Desce
ndant
s
½
of
the
estate
in
equal
portion
s
½
of
the
estate
½
of
the
estate
in
equal
portion
s
½
of
the
estate
in
equal
portion
s
½
SS
ILC
¼ of
the
estat
e
take
n
from
the
free
porti
on
Sam
e
porti
on as
1 LC
½
shar
e of 1
LC
¼
(pref
erred
over
ILC)
½
shar
e of 1
LC
CIVIL LAW
OF
r
redu
ction
SS – surviving LP – legitimate pro
ILP – illegitimate
spouses
parents
rata
parents
beca
use
LP
shar
and
I
e of
Asce
L
SS is
ndant P
given
s
prefe
renc
e
½
of
2 or the
Sam
½
more estate
e as
shar
LC,
in
shar
e of 1
SS,
equal
e of 1
LC
ILC
portion LC
s
LP
alon
½
e
¼ in
LP,
equal
½
ILC
porti
ons
LP,
¼
½
SS
LP,
SS,
1/8
¼
½
ILC
½ in
ILC
equal
alon
porti
e
ons
1/3 in
ILC,
equal
1/3
SS
porti
ons
GR:
½
SS
alon
e
N.B.
May
suffe
Page 233 of 532
Exce
ption
:
marri
age
in
U.P. LAW BOC
SUCCESSION
CIVIL LAW
artic
ulo
morti
s and
testa
tor
dies
withi
n 3
mont
hs
from
marri
age –
1/3
Exce
ption
to the
exce
ption
:
Have
been
living
toget
her
as
husb
and
and
wife
for
more
than
5
year
s–½
ILP
alon
e
ILP,
SS
½
¼
¼
Summary of Causes of Disinheritance
Childr Paren Spo Unwort
Groun
en and ts and use hiness
ds for
Desce Ascen [Art [Art.
disinhe
ndants dants .
1032,
ritance
[Art.
[Art.
921 CC]
Page 234 of 532
919,
CC]
920,
CC]
,
CC]
U.P. LAW BOC
Guilty
or
Convict
ed
of
Attempt
Against
the Life
of the
✓
Testato
r,
Spouse
,
Ascend
ant or
Descen
dant
Accuse
d
Testato
r
or
Decede
nt
of
Crime
Punish
able by
Impriso ✓
nment
of
6
years or
more,
and
Found
Groundl
ess or
False
Causes
testator
or
decede
nt
to
Make a
Will or
Change ✓
one by
Fraud,
Violenc
e,
Intimida
tion, or
Undue
SUCCESSION
CIVIL LAW
Influenc
e
✓
✓
✓
✓
✓
✓
✓
✓
✓
Unjustifi
ed
Refusal
to
Support
Testato
r
Convict
ed
of
Adulter
y
or
Concub
inage
with
Spouse
of
Testato
r
or
Decede
nt
Maltrea
tment of
testator
by
Word
and
Deed
Leading
a
Dishon
orable
or
Disgrac
eful Life
Convicti
on
of
Crime
which
carries
the
penalty
of Civil
Interdict
ion
Abando
nment
of
Page 235 of 532
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
✓
U.P. LAW BOC
Childre
n
or
Inducin
g
Childre
n
to
Live
Corrupt
and
Immora
l Life or
Against
Attempt
ed
Virtue
Loss of
Parenta
l
Authorit
y
Attempt
by One
Parent
Against
the Life
of the
Other
Unless
there is
Reconc
iliation
Betwee
n
Parents
Spouse
Has
Given
Cause
for
Legal
Separat
ion
Failure
to
Report
Violent
Death
of
Decede
nt
Within
SUCCESSION
✓
✓
✓
✓
✓
✓
One
Month
Unless
Authorit
ies
Have
Already
Taken
Action
Force,
Violenc
e,
Intimida
tion, or
Undue
Influenc
e
to
Prevent
Another
from
Making
a Will or
Revoki
ng One
Already
Made or
Who
Suppla
nts or
Alters
the
Latter’s
Will
Falsifie
s
or
Forges
Suppos
ed Will
of
Decede
nt
CIVIL LAW
✓
✓
Different Objects of Legacies and Devises
[Art. 934-944, CC]
Objects of
Legacy
or Effect
Devise
Thing
pledged
or
● Estate is obliged to
mortgaged to
pay the debt
secure a debt
Page 236 of 532
U.P. LAW BOC
SUCCESSION
●
●
Credit
or
remission or
release of a
debt
●
●
Other charges pass
to the legatee or
devisee
Effective only as
regards the credit or
debt existing at the
time of the testator’s
death
Legacy lapses if the
testator later brings
action against the
debtor
If
generic,
comprises
all
credits/debts
existing at time of
execution of will
●
Alternative legacies and
devises
●
●
●
Legacy of generic personal
property or indeterminate
real property
●
●
●
Legacy of education
●
●
●
Legacy of support
●
CIVIL LAW
●
Thing
pledged by
debtor to a
creditor
●
●
Order
of
payment of a
debt
●
●
Only the pledge is
extinguished;
the
debt remain
Shall not be applied
to his credit unless
the
testator
so
declares
If testator does not
really owe the debt,
the disposition is
void
If the order is to pay
more than the debt,
the excess is not
due
This
is
without
prejudice to the
payment of natural
obligations
The choice is with the heir, or the executor or
administrator
If the heir, legatee or devisee dies, the right passes to
their heirs
Once made, the choice is irrevocable
Legacy is valid even if there are no things of the same
kind in the estate
Devise of indeterminate real property valid only if there
are immovable property of the same kind in the estate
The choice belongs to the heir, legatee or devisee or the
executor or administrator
Lasts until the legatee is of age or beyond the age of
majority in order that he may finish some professional,
vocational or general course provided he pursues his
course diligently
If testator did not fix the amount, it is fixed in accordance
with the social standing and circumstances of the
legatee and the value of the estate
Lasts during lifetime of legatee
If the testator used to give the legatee a sum of money
for support, give the same amount unless it is markedly
disproportionate to the estate
If testator did not fix the amount, it is fixed in accordance
with the social standing and circumstances of the
legatee and the value of the estate
Order of Payment in Case the Estate Is Not Sufficient to Cover All the Legacies and Devises
Art. 911: Order or Preference
Art. 950
● Legitime of compulsory heirs
● Remuneratory legacy/devise
● Donations inter vivos
● Preferential legacy/devise
Page 237 of 532
U.P. LAW BOC
●
●
SUCCESSION
Preferential legacies or devises
All other legacies or devises pro rata
●
●
●
●
Application
● When the reduction is necessary to
preserve the legitime of compulsory
heirs from impairment whether there are
donations inter vivos or not; or
● When, although, the legitime has been
preserved by the testator himself there
are donations inter vivos.
●
●
CIVIL LAW
Legacy for support
Legacy for education
Legacy/devise of specific, determinate
thing which forms a part of the estate
All others pro rata
When there are no compulsory heirs and
the entire estate is distributed by the
testator as legacies or devises; or
When there are compulsory heirs but
their legitime has already been provided
for by the testator and there are no
donations inter vivos.
Art. 911, CC governs when there is a conflict Art. 950, CC governs when the question of
between compulsory heirs and the devisees and reduction is exclusively among legatees and
legatees.
devisees themselves.
C. LEGAL OR INTESTATE
SUCCESSION
1. General Provisions
Intestacy – that which takes place by
operation of law in default of compulsory and
testamentary succession. Not defined in the
Civil Code.
Legal succession is a mode of transmission
mortis causa which takes place in the absence
of the expressed will of the decedent embodied
in a testament [Tolentino].
Instances when Legal or Intestate
Succession operates [Art. 960, CC]
a. If a person dies without a will, or with a void
will, or will has subsequently lost its validity
b. When the will does not institute an heir
c. Upon the expiration of term, or period of
institution of heir [Balane]
d. Upon fulfillment of a resolutory condition
attached to the institution of heir, rendering
the will ineffective [Balane]
e. When the will does not dispose of all the
property belonging to the testator. Legal
succession shall take place only with
respect to the property which the testator
has not disposed (mixed succession)
f.
If the suspensive condition attached to the
institution of the heir does not happen or is
not fulfilled
g. If the heir dies before the testator
h. If the heir repudiates the inheritance, there
being no substitution, and no right of
accretion takes place
i. When the heir instituted is incapable of
succeeding, except in cases provided in
the Civil Code
j. Preterition – Intestacy may be total or
partial depending on whether or not there
are legacies or devises [Balane]
Note: In all cases where there has been an
institution of heirs, follow the ISRAI order:
a. If the Institution fails, Substitution occurs.
b. If there is no substitute, the right of
Representation applies in the direct
descending line to the legitime if the
vacancy is caused by predecease,
incapacity, or disinheritance.
c. The right of Accretion applies to the free
portion when the requisites in Art. 1016 are
present.
d. If there is no substitute, and the right of
representation or accretion is not proper,
the rules on Intestate succession shall
apply.
Page 238 of 532
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FUNDAMENTAL
PRINCIPLES
INTESTATE SUCCESSION
SUCCESSION
IN
Rule of Preference between Lines
• Those in the direct descending line shall
exclude those in the direct ascending and
collateral lines;
• Those in the direct ascending line shall,
in turn, exclude those in the collateral line.
Rule of Proximity: The relative nearest in
degree excludes the farther one [Art. 962(1),
CC], saving the right of representation when it
properly takes place.
Rule of Equal Division
General Rule: The relatives who are in the
same degree shall inherit in equal shares [Arts.
962(2), 987 and 1006, CC].
Exceptions [Balane]
1. Rule of preference between Lines
2. Distinction between
legitimate and
illegitimate filiation. The ratio under the
present law is 2:1 [Art. 983, in relation to
Art. 895 as amended by Art. 176, FC].
3. Rule of division by line in the ascending line
[Art. 987 (2), CC]
4. Distinction between full-blood and halfblood relationship among brothers and
sisters, as well as nephews and nieces [Art.
1006 and 1008, CC]
5. Right of representation
Rule of Barrier between the legitimate
family and the illegitimate family (the ironcurtain rule): The illegitimate family cannot
inherit by intestate succession from the
legitimate family and vice-versa. [Art. 992, CC]
Rule of Double Share for full blood
collaterals: When full and half-blood brothers
or sisters, nephews or nieces, survive, the full
blood shall take a portion in the inheritance
double that of the half-blood [Arts. 895 and 983,
CC].
Note:
a. If one of the legitimate ascendants,
illegitimate parents, legitimate children or
illegitimate children survives, the brother,
CIVIL LAW
sisters, nephews, and nieces (BSNN) are
excluded.
b. If one of the legitimate ascendants,
illegitimate parents, legitimate children,
illegitimate children or surviving spouse
survives, the other collateral relatives and
the state are excluded.
c. If any of the heirs concur in legitimes, then
they also concur in intestacy.
a. Relationship
PROXIMITY OF RELATIONSHIP: determined
by the number of generations. Each generation
forms one degree [Art. 963, CC].
Note: It is important to distinguish between
direct and collateral, as the direct has
preference over the collateral.
In a line, as many degrees are counted as there
are generations [Art. 966, CC].
Note: Descending line is preferred over
ascending.
Blood relationship is either full or half-blood
[Art. 967, CC].
Note: As among brothers and sisters and
nephews and nieces, there is a 2:1 ratio for fullblood and half-blood relatives. Direct relatives
are preferred. But this distinction does not
apply with respect to other collateral relatives.
Incapacity [Art. 968, CC]
General rule: If there are several relatives of
the same degree, and one or some of them are
unwilling or incapacitated to succeed, his
portion shall accrue to the others of the same
degree.
Exception: When the right of representation
should take place.
Note: This accretion in intestacy takes place in
case of predecease, incapacity, or renunciation
among heirs of the same degree. The relatives
must be in the same relationship because of
the Rule of Preference of Lines.
Page 239 of 532
U.P. LAW BOC
SUCCESSION
REPUDIATION [Arts. 968-969, CC]
There is no right of representation in
repudiation. If the nearest relative/s
repudiates the inheritance, those of the
following degree shall inherit in their own right.
In case of repudiation by all in the same
degree, the right of succession passes on the
heirs in succeeding degrees: descending line
first, ascending line next, and collateral line
next [Balane].
Adoption [Art. 189, FC]
In adoption, the legal filiation is personal and
exists only between the adopter and the
adopted. The adopted is deemed a legitimate
child of the adopter, but still remains as an
intestate heir of his natural parents and other
blood relatives.
Note: Section 16 of the Domestic Adoption Act
(RA 8552) provides that all legal ties between
the biological parent(s) and the adoptee shall
be severed and the same shall then be vested
on the adopter(s).”
b. Right of representation
Representation – right created by fiction of
law, by virtue of which the representative is
raised to the place and the degree of the
person represented, and acquires the rights
which the latter would have if he were living or
if he could have inherited [Art. 970, CC]
CIVIL LAW
Note: There is no representation to a devise or
a legacy.
A renouncer can represent, but cannot be
represented. Rationale is found in Art. 971
which states that “The representative does not
succeed the person represented but the one
whom the person represented would have
succeeded.”
Representation in the Direct Descending
Line
Representation takes place ad infinitum in the
direct descending line but never in the direct
ascending line [Art. 972, CC].
General rule: Grandchildren inherit from the
grandparents by right of representation, if
proper.
Exception: Whenever all the children
repudiate, the grandchildren inherit in their own
right because representation is not proper [Art.
969, CC].
Representation in Collateral Line
In the collateral line, representation takes place
only in favor of the children of the brothers or
sisters (i.e., nephews and nieces) whether of
the full or half-blood [Art. 972, CC] and only if
they concur with at least one.
Effect of representation
The representative heir acquires the rights
which the person represented would have if he
were living or if he could have inherited.
When it occurs
Representation is allowed with respect to
inheritance conferred by law (legitime and
intestate based on Art. 923)
It occurs only in the following instances:
(DIP)
a. Predecease of an heir
b. Incapacity or unworthiness
c. Disinheritance [Art. 923, CC]
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CIVIL LAW
2. Order of Intestate Succession
Decedent is a Legitimate
Child
Legitimate
children
or
descendants (LCD)
Legitimate
parents
or
ascendants (LPA)
Illegitimate children
descendants (ICD)
or
Surviving spouse (SS)
Brothers
and
sisters,
nephews, nieces (BS/NN)
Legitimate
collateral
relatives within the 5th
degree (C5)
State
Decedent is an Illegitimate
Child
Legitimate
children
or
descendants (LCD)
Illegitimate
children
or
descendants (LPA)
Decedent is an Adopted Child
Legitimate
children
or
descendants (LCD)
Illegitimate
children
or
descendants (ICD)
Legitimate or illegitimate parents,
Illegitimate parents (IP)
or
legitimate
ascendants,
adoptive parents
Surviving spouse (SS)
Surviving spouse (SS)
Illegitimate brothers and sisters, Brothers and sisters, nephews,
nephews, nieces (IBS/NN)
nieces (BS/NN)
State
State
RULES OF EXCLUSION AND CONCURRENCE IN INTESTATE SHARES
Intestate Heirs
Excludes
Excluded By
Concurs With
Ascendants,
LC + LD
No one
SS + ILC
Collaterals and State
ILP, Collaterals and
ILC + D
No one
SS, LC, LP
State
LP + LA
Collaterals and State
LC
ILC + SS
ILP
Collaterals and State
LC and ILC
SS
Collaterals other than
LC, ILC, LP, ILP,
SS
siblings, nephews and No one
Siblings,
Nephews,
nieces, State
Nieces
Siblings,
Nephews, All other collaterals
LC, ILC, LP, ILP
SS
Nieces
and State
Other collaterals within Collateral more remote LC, ILC, LP, ILP and Collaterals in the same
5th degree
in degree and State
SS
degree
State
No one
Everyone
No one
Note: In partial intestacy, the testamentary dispositions can reduce the shares of intestate heirs,
provided that their legitimes, if they are also compulsory heirs, are not impaired. More specifically:
a. The law of legitimes must be brought into operation in partial intestacy.
b. If among the concurring intestate heirs there are compulsory heirs whose legal or intestate
portions exceed their respective legitimes, the amount of the testamentary disposition must be
deducted from the disposable portion, to be borne by all the intestate heirs in the proportions
that they are entitled to receive from such disposable portion as intestate heir.
c. If the legal or intestate share of a compulsory heir is equal to his legitime, then the amount of
the testamentary disposition must be deducted only from the legal or intestate shares of the
others.
d. If the testamentary dispositions consume the entire disposable portion, then the intestate heirs
who are compulsory heirs will get only their legitimes, and those who are not compulsory heirs
will get nothing [Tolentino].
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CIVIL LAW
OUTLINE OF INTESTATE SHARES
a.
Legitimate children only
b.
Legitimate children
Illegitimate children
and
●
●
●
c.
Legitimate children
surviving spouse
and
●
●
d.
Legitimate
children,
Surviving
spouse,
and
Illegitimate children
●
●
Legitimate parents only
Legitimate ascendants only
(excluding parents)
Legitimate parents and
illegitimate children
Legitimate parents and
surviving spouse
Legitimate
parents,
surviving
spouse
and
illegitimate children
Illegitimate children only
●
●
Illegitimate children and
surviving spouse
l. Surviving spouse only
m. Surviving
spouse
and
illegitimate parents
n. Surviving
spouse
and
legitimate brothers and
sisters, nephews and nieces
o. Surviving
spouse
and
illegitimate brothers and
sisters, nephews and nieces
●
p.
q.
Illegitimate parents only
Illegitimate parents and
children
of
any
kind
(whether
legitimate
or
illegitimate child)
Legitimate brothers and
sisters only
●
●
s.
Legitimate brothers and
sisters, nephews and nieces
●
t.
Nephews and nieces only
●
u.
Other collaterals [Arts. 1009
and 1010]
●
v.
State
e.
f.
g.
h.
i.
j.
k.
r.
●
●
●
●
●
●
●
●
●
●
●
Divide entire estate equally among all legitimate children [Art. 979, CC]
Legitimate children include an adopted child.
Divide entire estate such that each illegitimate child gets ½ of what a
legitimate child gets [Art. 983, CC and Art. 176, FC]
Ensure that the legitime of the legitimate children are first satisfied.
Divide entire estate equally between the legitimate children and the
surviving spouse, the latter deemed as one child. The same rule holds
where there is only one child.
Divide the entire estate such that the surviving spouse is deemed one
legitimate child and each illegitimate child getting ½ of what the legitimate
child gets. [Art. 996, CC and Art. 176, FC]
Ensure that the legitime of the legitimate children and the spouse are first
satisfied.
Divide the entire estate equally [Art. 985, CC].
Divide the entire estate equally but with the observance of the rule of
division by line [Art. 987, CC].
Legitimate parents get ½ of the estate, illegitimate children get the other
½ [Art. 991, CC].
Legitimate parents get ½ of the estate; The surviving spouse gets the
other ½ [Art. 997, CC].
Legitimate parents get ½ of the estate; surviving spouse and the
illegitimate child each get ¼ each, the latter to share among themselves if
more than one [Art. 1000, CC].
Divide the entire estate equally [Art. 988, CC].
Illegitimate children get ½ of the estate; the surviving spouse gets the
other ½ [Art. 998, CC].
Entire estate goes to the surviving spouse [Art. 994/995, CC].
Illegitimate parents get ½ and the spouse gets the other ½ [by analogy
with Art. 997, CC].
Surviving spouse gets ½ of the estate, while the rest gets the other ½ with
the nephews and nieces inheriting by representation if proper [Art. 1001,
CC].
Surviving spouse gets ½ of the estate while the rest gets the other ½ with
the nephews and nieces inheriting by representation, if proper; Note that
all the other relatives should be “illegitimate” because of the iron-curtain
rule [Art. 994, CC].
Entire estate goes to the illegitimate parents [Art. 993, CC].
Illegitimate parents are excluded and do not inherit. For the rule on the
respective shares of the children, see numbers 1, 2 or 10, whichever is
applicable.
Divide the entire estate such that full-blood brothers/sisters gets a share
double the amount of a half-blood brother or sister [Art. 1004 and 1006,
CC].
Divide the entire estate observing the 2 is to 1 ratio for full and half-blood
relationships with respect to the brothers and sisters, with the nephews
and nieces inheriting by representation, if proper [Art. 1005 & 1008, CC].
Divide the entire estate per capita, observing the 2 is to 1 ratio [Arts. 975
and 1008, CC].
Divide entire estate per capita. Collateral relatives must be with the 5th
degree of consanguinity.
Note: the nearer relative excludes the more remote relatives.
If there are no other intestate heirs, the State inherits the entire estate
through escheat proceedings [Art. 1011, CC].
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D. PROVISIONS COMMON TO
TESTATE AND INTESTATE
SUCCESSION
1. Right of accretion
Definition of Accretion [Art. 1015, CC]
It is a right by virtue of which, when two or more
persons are called to the same inheritance,
devise or legacy, the part assigned to one who
renounces or cannot receive his share or who
died before the testator is added or
incorporated to that of his co-heirs, codevisees, or co-legatees.
Basis
The right of accretion is based upon the
presumed will of the decedent. Thus, the
testator can expressly provide that there shall
be no accretion among persons who would
otherwise be entitled thereto. Conversely, the
testator may validly provide for accretion in a
case where no accretion would take place
under the provisions of the law [Tolentino].
Requisites [Tolentino]
a. Unity of object and plurality of subjects (two
or more persons are called to the same
inheritance or same portion thereof)
b. Vacancy of share (one of the heirs dies
before the testator, or renounces the
inheritance, or is incapacitated)
When does Accretion Occur?
Accretion happens when there is repudiation,
incapacity, or predecease of an heir.
It is the mechanism where the share of an heir
is increased by vacant shares vacated by heirs
who cannot inherit for various reasons.
CIVIL LAW
If there was “earmarking” – there can be no
accretion.
• What is “earmarking?” – when the whole
has been subdivided into specific portions
Ex: Heir #1 was called to inherit the southern
part of Plot A, and Heir #2 was called to inherit
the northern part of Plot A.
Among compulsory heirs, there can only be
accretion with respect to the free portion. There
can be no accretion with respect to the
legitimes [Arts. 1021 and 1018, CC].
The heirs to whom the portion goes by the right
of accretion take it in the same proportion that
they inherit [Art. 1019, CC].
Exceptions [Balane]
a. In testamentary succession, if the testator
provides otherwise
b. If the obligation is purely personal, and
hence intransmissible
The heirs to whom the inheritance accrues
shall succeed to all the rights and obligations
which the heir who renounced or could not
receive it would have had [Art. 1020, CC].
In testamentary succession, when the right of
accretion does not take place, the vacant
portion of the instituted heirs, if no substitute
has been designated, shall pass to the legal
heirs of the testator, who shall receive it with
the same charges and obligations [Art. 1022,
CC].
Accretion shall also take place among
devisees, legatees and usufructuaries under
the same conditions established for heirs [Art.
1023, CC]
(Rationale: the decedent intended to give the
property to nobody but the co-heirs.)
There can only be accretion if there is an
institution of heirs with respect to specific
properties [Art. 1016, CC]. In other words, both
heirs were called to inherit the same whole.
Page 243 of 532
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SUCCESSION
Effect
of
Predecease,
Disinheritance or Repudiation
Cause of
Vacancy
Predecease
Incapacity
Disinheritan
ce
Repudiation
Testamentary
Succession
Free
Legitime Portion
Representati
on
Intestate
Succession
Representati
on
Intestate
Succession
Representati
on
Intestate
Succession
Intestate
Succession
Incapacity,
Intestate
Successio
n
Accretion
Intestate
Successi
on
Accretion
Intestate
Successi
on
Representati
on
Intestate
Succession
Representati
on
Intestate
Succession
-
-
Accretion
Accretion
2. Capacity to Succeed by Will
or Intestacy
Requisites for Capacity to Succeed by Will
or by Intestacy: [Art. 1024 – 1025, CC]
a. The heir, legatee or devisee must be living
or in existence at the moment the
succession opens; [Art. 1025, CC] and
b. He must not be incapacitated or
disqualified by law to succeed [Art. 1024,
par.1, CC].
PERSONS INCAPABLE OF SUCCEEDING
[Arts. 1027, 739, 1032, CC]
Based on undue influence or interest [Art.
1027, CC]
a. Priest who heard the last confession of the
testator during his last illness, or the
minister of the gospel who extended
spiritual aid to him during the same period;
b. Individuals, associations and corporations
not permitted by law to inherit;
c. Guardian with respect to testamentary
dispositions given by a ward in his favor
before the final accounts of the
guardianship have been approved, even if
the testator should die after the approval
thereof; except if the guardian is his
ascendant, descendant, brother, sister, or
spouse;
d. Relatives of the priest or minister of the
gospel within the fourth degree, the church,
order, chapter, community, organization, or
CIVIL LAW
institution to which such priest or minister
may belong;
e. Attesting witness to the execution of a will,
the spouse, parents, or children, or anyone
claiming under such witness, spouse,
parents, or children;
f. Physician, surgeon, nurse, health officer or
druggist who took care of the testator
during his last illness.
Based on morality or public policy [Arts.
739 and 1028, CC]
a. Those made in favor of a person with whom
the testator was guilty of adultery or
concubinage at the time of the making of
the will.
b. Those made in consideration of a crime of
which both the testator and the beneficiary
have been found guilty.
c. Those made in favor of a public officer or
his spouse, descendants and ascendants,
by reason of his public office.
Based on acts of unworthiness [Art. 1032,
CC]
The following are incapable of succeeding by
reason of unworthiness:
a. Parents who have abandoned their
children or induced their daughters to lead
a corrupt or immoral life, or attempted
against their virtue;
b. Any person who has been convicted of an
attempt against the life of the testator, his
or
her
spouse,
descendants,
or
ascendants;
c. Any person who has accused the testator
of a crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
d. Any heir of full age who, having knowledge
of the violent death of the testator, should
fail to report it to an officer of the law within
a month, unless the authorities have
already taken action; this prohibition shall
not apply to cases wherein, according to
law, there is no obligation to make an
accusation;
e. Any person convicted of adultery or
concubinage with the spouse of the
testator;
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f.
Any person who by fraud, violence,
intimidation, or undue influence should
cause the testator to make a will or to
change one already made;
g. Any person who by the same means
prevents another from making a will, or
from revoking one already made, or who
supplants, conceals, or alters the latter's
will;
h. Any person who falsifies or forges a
supposed will of the decedent.
Pardon of Acts of Unworthiness
Express
Implied
Made
by
the
Effected when the
execution
of
a
testator makes a will
document or any
instituting
the
writing in which the
unworthy heir with
decedent condones
knowledge of the
the
cause
of
cause of incapacity
incapacity
Revoked when the
Cannot be revoked
testator revokes the
will or the institution
Effect of Pardon
Once the act of unworthiness has been
pardoned, whether expressly or tacitly, the heir
is restored to full capacity to succeed the
decedent, as if the cause of unworthiness had
never existed.
Unworthiness vs. Disinheritance
Unworthiness
Disinheritance
Disinheritance is the
Unworthiness
act by which a
renders a person
testator,
for
just
incapable
of
cause, deprives a
succeeding to the
compulsory heir of his
succession, whether
right to the legitime
testate or intestate
[Art. 815, CC]
Determination of Capacity [Tolentino]
General Rule: At the death of the decedent [Art.
1034, CC]
Exceptions
a. Those falling under 2, 3, and 5 of Art. 1032
– when the final judgment is rendered
b. Those falling under 4 of Art. 1032 – when
the month allowed for the report expired
CIVIL LAW
c. If the institution is conditional – when the
condition is complied with
3. Acceptance and repudiation
of the inheritance
Definition of Acceptance
The act by which the person called to succeed
by universal title either by the testator or by law
manifests his will of making his own the
universality of the rights and obligations which
are transmitted to him [Tolentino].
Definition of Repudiation
The manifestation by an heir of his desire not
to succeed to the rights and obligations
transmitted to him [Tolentino].
Requisites [Art. 1043, CC]
a. Certainty of death of the decedent
b. Certainty of the right to the inheritance
FORMS OF ACCEPTANCE [Arts. 1049 –
1050, CC]
a. Express Acceptance – one made in a
public or private document [Art. 1049, par.
1, CC]
b. Tacit Acceptance – one resulting from
acts by which the intention to accept is
necessarily implied or from acts which one
would have no right to do except in the
capacity of an heir.
c. Implied Acceptance - Within thirty days
after the court has issued an order for the
distribution of the estate in accordance with
the Rules of Court, the heirs, devisees and
legatees shall signify to the court having
jurisdiction whether they accept or
repudiate the inheritance; if they do not do
so within that time, they are deemed to
have accepted the inheritance [Art. 1057,
CC].
An inheritance is deemed accepted:
a. If the heir sells, donates, or assigns his
right to a stranger, or to his co-heirs, or to
any of them – the heir must first accept the
inheritance before he can dispose of it.
b. If the heir renounces the same, even
though gratuitously, for the benefit of one
Page 245 of 532
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SUCCESSION
or more of his co-heirs – this is actually a
donation. The heir must first accept the
inheritance before he can donate it.
c. If the heir renounces it for a price in favor
of all his co-heirs indiscriminately – this is
actually an onerous disposition. The heir
must first accept the inheritance before he
can dispose of it.
Note: But if the renunciation should be
gratuitous, and in favor of all the co-heirs (to
whom the portion renounced should devolve by
accretion), the inheritance shall not be deemed
as accepted [Art. 1050, CC]. This is a true case
of renunciation.
Forms of Repudiation [Art. 1051, CC]
a. In a public instrument acknowledged
before a notary public; or
b. In an authentic document – equivalent of
an indubitable writing or a writing whose
authenticity is admitted or proved; or
c. By petition presented to the court having
jurisdiction over the testamentary or
intestate proceeding
Heirs in Two Capacities [Art. 1055, CC]
a. If a person is called to the same inheritance
as an heir by will and by law and he
repudiates the inheritance in his capacity
as a testamentary heir, he will be
considered to have also repudiated the
inheritance as a legal heir.
b. If he repudiates it as a legal heir, without
knowledge of his being a testamentary
heir, he may still accept it in the latter
capacity.
Irrevocability of Acceptance or Repudiation
General Rule: The acceptance or repudiation
of an inheritance, once made, is irrevocable
and cannot be impugned.
Exceptions
a. When the acceptance or repudiation
suffers from any of the vices which annul
consent; and
b. When an unknown will appears [Art. 1056,
CC]
CIVIL LAW
4. Collation
Concept of Collation
To collate is to bring back or to return to the
hereditary mass in fact or by fiction, property
which came from the estate of the decedent
during his lifetime, by donation or other
gratuitous title but which the law considers as
an advance from the inheritance [Art. 1061,
CC].
It is the act by virtue of which, the compulsory
heir who concurs with other compulsory heirs
in the inheritance brings back to the common
hereditary mass the property which they may
have received from the testator so that a
division may be effected according to law and
the will of the testator.
In reducing inofficious donations, the last to be
donated should be the first to be reduced.
Rationale for collation: If donations inter
vivos will not be collated, then the rule on
legitimes shall be circumvented or disregarded.
OPERATIONS RELATED TO COLLATION
[Tolentino]
a. Collation – adding to the mass of the
hereditary estate the value of the donation
or gratuitous disposition.
b. Imputing or Charging – crediting the
donation as an advance on the legitime (if
the donee is a compulsory heir) or on the
free portion (if the donee is a stranger, i.e.,
not a compulsory heir). [Balane at 522]
c. Reduction – determining to what extent
the donation will remain and to what extent
it is excessive or inofficious.
d. Restitution – returning or the act of
payment of the excess to the mass of
hereditary estate.
Persons Obliged to Collate
General rule: Compulsory heirs
Exceptions
a. When the testator should have so
expressly provided [Art. 1062, CC] – in
which case you collate against the
Page 246 of 532
U.P. LAW BOC
SUCCESSION
disposable free portion because there
MUST be collation.
b. When the compulsory heir should have
repudiated his inheritance [Art. 1062, CC]
c. When there is only ONE compulsory heir
Grandchildren who survive with their uncles,
aunts, or first cousins and inherit by right of
representation [Art. 1064, CC]
Note: Grandchildren may inherit from their
grandparents in their own right, i.e., as heirs
next in degree, and not by right of
representation if their parent repudiates the
inheritance of the grandparent, as no living
person can be represented except in cases of
disinheritance and incapacity. In this case, the
grandchildren are not obliged to bring to
collation what their parent has received
gratuitously from their grandparent.
What to Collate
a. Any property or right received by gratuitous
title during the testator’s lifetime [Art. 1061,
CC]
b. All that they may have received from the
decedent during his lifetime [Art. 1061, CC]
c. Expenses incurred by the parents in giving
their children a professional, vocational or
other career shall not be brought to
collation unless the parents so provide, or
unless they impair the legitime; but when
their collation is required, the sum which
the child would have spent if he had lived
in the house and company of his parents
shall be deducted therefrom [Art. 1068,
CC]
d. Any sums paid by a parent in satisfaction
of the debts of his children, election
expenses, fines, and similar expenses
shall be brought to collation [Art. 1069, CC]
Note: Only the value of the thing donated shall
be brought to collation.
PROPERTIES
COLLATION
NOT
SUBJECT
TO
Absolutely no collation:
Expenses for support, education (only
elementary
and
secondary),
medical
CIVIL LAW
attendance, even in extraordinary illness,
apprenticeship, ordinary equipment, or
customary gifts [Art. 1067, CC]
Generally not imputable to legitime/ cannot
be collated, subject to exceptions:
a. Expenses incurred by parents in giving
their children professional, vocational or
other career unless the parents so provide,
or unless they impair the legitime [Art.
1067, CC]
b. Wedding gifts by parents and ascendants,
consisting jewelry, clothing and outfit,
except when they exceed 1/10 of the sum
disposable by will [Art. 1070, CC]
c. Neither shall donations to the spouse of the
child be brought to collation; but if they
have been given by the parent to the
spouses jointly, the child shall be obliged to
bring to collation one-half of the thing
donated [Art. 1066, CC]
Note: Parents are not obliged to bring to
collation in the inheritance of their ascendants
any property which may have been donated by
the latter to their children [Art. 1065, CC].
Wedding Gifts
The wedding gift under Article 1070 of the Civil
Code may be compared to a donation propter
nuptias as follows:
Donation Propter
Nuptias
The object is not
specified. It could be
anything of value.
The donor is not
specified. He or she
could be anyone with
capacity to dispose
property.
If given by a parent,
the donee is either the
child of the donor, or
the future spouse of
the child of the donor,
or both of them jointly.
The gift must be given
before the celebration
of the marriage.
Page 247 of 532
Wedding Gift
The
object
is
jewelry, clothing or
outfit.
The donor must be
a
parent
or
ascendant of the
donee.
The donee is either
a
child
or
a
descendant of the
donor.
The gift may be
given at any time,
either before or
U.P. LAW BOC
SUCCESSION
after the celebration
of the marriage.
The
donation
is
governed by the rules
of ordinary donations,
except as modified by
the provisions of the
Family Code. Thus, a
donation
propter
nuptias given by a
parent to a child is
collationable in full,
except if the donor
declared it to be noncollationable
The gift is noncollationable to the
extent of one-tenth
of the disposable
free portion of the
hereditary estate of
the donor.
JUDICIAL vs. EXTRAJUDICIAL
PARTITION
Judicial
Extra-judicial
Partition done by Partition made by
Court pursuant to an the decedent himself
Order of Distribution by an act inter vivos
which may or may or by will or by a third
not be based on a person entrusted by
project of partition.
the decedent or by
the heirs themselves
[Paras].
Partition Inter Vivos:
It is one that merely
allocates
specific
items or pieces of
property on the basis
of the pro-indiviso
shares fixed by law
or given under the
will to heirs or
successors
[Art.
1080, CC].
5. Partition and Distribution of
Estate
Definition of Partition: Separation, division
and assignment of a thing held in common
among those to whom it may belong.
What can be divided?
The thing itself or its value may be divided
[Art. 1079, CC].
Before Partition: Whole estate of the
decedent is owned in common by the heirs [Art.
1078, CC].
What acts are deemed partition?
Every act which is intended to put an end to
indivision among heirs and legatees or
devisees is deemed a partition, although it
should purport to be a sale, an exchange, a
compromise, or any other transaction [Art.
1082, CC].
A void partition may be valid if:
1. The will was in fact a partition
2. The beneficiaries of the void will were legal
heirs
The titles of acquisition or ownership of each
property shall be delivered to the co-heir to
whom said property has been adjudicated [Art.
1089, CC].
CIVIL LAW
Who
may
effect
Partition?
Who
may
demand
partition?
When
Partition
Page 248 of 532
1. The
Decedent,
during his lifetime
by an act inter
vivos or by will
[Art.1080, CC]
2. The
decedent’s
heirs
[Art.1083,
CC]
3. A competent court
[Art. 1083, CC]
4. A third person not
an heir designated
by the decedent
[Art.1081, CC]
1. Compulsory heir
2. Voluntary
heir
upon fulfillment of
condition, if any
[Art. 1084, CC]
3. Legatee
or
devisee
4. Any person who
has
acquired
interest in the
estate
1. When expressly
prohibited by the
U.P. LAW BOC
SUCCESSION
cannot
be
demanded?
2.
3.
4.
1.
2.
Prohibition to
Partition
3.
testator
for
a
period
not
exceeding
20
years [Art. 1083,
CC]
When the co-heirs
agreed that the
estate shall not be
divided
for
a
period
not
exceeding
10
years, renewable
for another 10
years [Art. 494,
CC]
When prohibited
by law
When to partition
the estate would
render
it
unserviceable for
the use for which it
is intended
The prohibition to
partition for a
period
not
exceeding
20
years
can
be
imposed even on
the legitime.
If the prohibition to
the partition is for
more than 20
years, the excess
is void.
Even
if
a
prohibition
is
imposed, the heirs
by
mutual
agreement
can
still make the
partition.
Effects of Inclusion of Intruder in Partition
[Art. 1108, CC]
1. Between a true heir and several mistaken
heirs – partition is VOID
2. Between several true heirs and a mistaken
heir – transmission to mistaken heir is void
3. Through error or mistake, share of true heir
is allotted to mistaken heir – partition shall
CIVIL LAW
not be rescinded unless there is bad faith
or fraud on the part of the other persons
interested, but the latter shall be
proportionately obliged to pay the true heir
of his share. The partition with respect to
the mistaken heir is void [Sempio-Dy].
Right of Redemption in Partition
Should any of the heirs sell his hereditary rights
to a stranger before the partition, any or all of
the co-heirs may be subrogated to the rights of
the purchaser by reimbursing him for the price
of the sale, provided they do so within the
period of one month from the time they were
notified in writing of the sale by the vendor [Art.
1088, CC].
Strangers – those who are not heirs on the
succession.
Legal Redemption by Co-Heir;
Requisites
1. That there are several heirs of the common
inheritance;
2. That one of them sells his hereditary rights;
3. That the sale is made to a stranger, and
before the partition has been made;
4. That one or more of the co-heirs demand
the repurchase within a period of one
month, counted from the time he or they
were notified in writing of the sale; and
5. That the buyer is reimbursed the price of
the sale [Garcia v. Calaliman, G.R. No. L26855 (1989)].
Note: The redemption can be exercised only by
a co-heir.
EFFECTS OF PARTITION
Effect: A partition legally made confers upon
each heir the exclusive ownership of the
property adjudicated to him [Art. 1091, CC].
No partition shall be construed so as to
prejudice, defeat, or destroy the right or title of
any person claiming the real estate involved in
the action for partition by title under any other
person, or by title paramount to the title of the
parties among whom the partition may have
been made [Rule 69, Sec. 12, ROC].
Page 249 of 532
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Warranty: After the partition has been made,
the co-heirs shall be reciprocally bound to
warrant the title to, and the quality of, each
property adjudicated [Art. 1092, CC].
Reciprocal obligation of warranty: shall be
proportionate to the respective hereditary
shares of the co-heirs.
In case of insolvency of any of the co-heirs:
Other co-heirs shall be liable for his part in the
same proportion, deducting the part
corresponding to the one who should be
indemnified.
RIGHT OF ACTION FOR REIMBURSEMENT:
Those who pay for the insolvent heir shall have
a right of action against him for reimbursement,
should his financial condition improve [Art.
1093, CC].
Prescription period for action to enforce
warranty among the co-heirs: Ten (10) years
from the date the right of action accrues [Art.
1094, CC].
If a credit should be assigned as collectible:
Co-heirs shall not be liable for the subsequent
insolvency of the debtor of the estate, but only
for his insolvency at the time the partition is
made [Art. 1095, CC].
Prescription period of the warranty of the
solvency of the debtor: Can only be enforced
during the five (5) years following the partition.
Warrant of bad debts
General Rule: Co-heirs do not warrant bad
debts, if so known to, and accepted by the
distributee.
Exception: But if such debts are not assigned
to a co-heir, and should be collected, in whole
or in part, the amount collected shall be
distributed proportionately among the heirs
[Art. 1095, CC].
Cessation of Obligation of warranty among
co-heirs: The obligation of warranty among
co-heirs shall cease in the following cases:
CIVIL LAW
1. The testator himself has made the partition;
Unless it appears, or it may be reasonably
presumed, that his intention was otherwise,
but the legitime shall always remain
unimpaired.
2. When it has been so expressly stipulated in
the
agreement
of
partition;
Unless there has been bad faith
3. When the eviction is due to a cause
subsequent to the partition, or has been
caused by the fault of the distributee of the
property [Art. 1096, CC].
RESCISSION
PARTITION
AND
NULLIFICATION
OF
Causes for Rescission or Annulment
1. A partition may be rescinded or annulled
for the same causes as contracts [Art.
1097, CC].
2. A partition, judicial or extrajudicial, may
also be rescinded on account of lesion,
when any one of the co-heirs received
things whose value is less by at least onefourth (¼) than the share to which he is
entitled, considering the value of the things
at the time they were adjudicated [Art.
1098, CC].
● This article applies only to cases of
partition among-coheirs
● Lesion is the injury suffered in
consequence of inequality of
situation by one party who does not
receive the full equivalent for what
she gives in a sale or any
commutative contract
3. The partition made by the testator cannot
be impugned on the ground of lesion,
except when the legitime of the compulsory
heirs is thereby prejudiced, or when it
appears or may be reasonably presumed
that the intention of the testator was
otherwise [Art. 1099, CC].
4. Preterition of a compulsory heir in the
partition [Art. 1104, CC]:
● Partition shall not be rescinded
unless bad faith or fraud on the part
of other heirs is proved.
● The culpable heirs shall share in
the damages of the prejudiced
compulsory heir proportionately.
Page 250 of 532
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5. A partition which includes a person
believed to be an heir, but who is not, shall
be void only with respect to such person
[Art. 1105, CC].
Rescission on account of lesion
PRESCRIPTION: After four (4) years from the
time the partition was made [Art. 1100, CC].
OPTION OF HEIR SUED:
a. Indemnifying the plaintiff for the loss; or
b. Consenting to a new partition
Indemnity may be made:
1. By payment in cash or
2. By the delivery of a thing of the same kind
and quality as that awarded to the plaintiff.
If option of consenting to a new partition
was chosen: Shall affect neither those who
have not been prejudiced nor those who have
not received more than their just share [Art.
1101, CC].
Who cannot maintain an action for
rescission on the ground of lesion?
An heir who has alienated the whole or a
considerable part of the real property
adjudicated to him, but he shall have a right to
be indemnified in cash [Art. 1102, CC].
When is rescission of the partition on the
ground of lesion not allowed?
When there is omission of one or more objects
or securities of the inheritance, but the partition
shall be completed by the distribution of the
objects or securities which have been omitted
[Art. 1103, CC].
DIFFERENCE
OF
NULLITY
FROM
RESCISSION
● Nullity – the act is supposed to never have
existed
● Rescission – the act is valid at the origin
though it afterwards became ineffective.
CIVIL LAW
Important Periods in Partition
1 month or Testator, if publicly known to
less before be insane, burden of proof is
making a on the one claiming validity of
will
the will
Maximum period testator can
20 years
prohibit
alienation
of
dispositions
5
years
from
To claim property escheated
delivery to to the State
the State
To report knowledge of
1 month
violent death of decedent lest
he be considered unworthy
5
years
from
the
Action for declaration of
time
incapacity and for recovery of
disqualified
the inheritance, devise or
person
legacy
took
possession
30
days
from
Must
signify
issuance of acceptance/repudiation;
order
of otherwise, deemed accepted
distribution
1
month
form
Right
to
repurchase
written
hereditary rights sold to a
notice
of stranger by a co-heir
sale
To enforce warranty of
title/quality
of
property
10 years
adjudicated to co-heir from
the time the right of action
accrues
To enforce warranty of
5
years
solvency of debtor of the
from
estate at the time partition is
partition
made
4
years
Action for rescission of
from
partition on account of lesion
partition
Page 251 of 532
U.P. LAW BOC
OBLIGATIONS AND CONTRACTS
OBLIGATIONS AND
CONTRACTS
CIVIL LAW
Page 252 of 539
CIVIL LAW
U.P. LAW BOC
OBLIGATIONS AND CONTRACTS
A. GENERAL PROVISIONS
1. Definition
Art. 1156, CC. An obligation is a juridical
necessity to give, to do or not to do.
An obligation is a juridical relation, whereby a
person (called the creditor) may demand from
another (called the debtor) the observance of a
determinative conduct, and in case of breach,
may obtain satisfaction from the assets of the
latter. [Makati Stock Exchange v. Campos,
G.R. No. 138814 (2009)]
2. Elements of an obligation
a. Active Subject (Obligee/Creditor): The
person (natural or juridical) who has the
right or power to demand the prestation.
b. Passive Subject (Obligor/Debtor): The
person bound to perform the prestation.
c. Prestation (Object): The conduct required
to be observed by the debtor/obligor (to
give, to do, or not to do).
Requisites
1. Must be possible - physically and
juridically.
2. Must be determinate or at least
determinable according to preestablished elements.
3. Must have possible equivalent in
money
d. Vinculum Juris (Juridical or Legal Tie;
Efficient Cause): That which binds or
connects the parties to the obligation. [de
Leon]
CIVIL LAW
3. Sources of Obligations
Art. 1157, CC. Obligations arise from:
1.
Law;
2.
Contracts;
3.
Quasi-contracts;
4.
Acts or omissions punished by law;
and
5. Quasi-delicts.
a. Law
Obligations arise when imposed by the law
itself and cannot be presumed. [Art. 1158, CC]
b. Contracts
Obligations arise from the stipulation of the
parties; it has the force of law and should be
complied with in good faith. [Art. 1159, CC]
c. Quasi-Contracts
Certain lawful, voluntary and unilateral acts
give rise to the juridical relation of quasicontract to the end that no one shall be
unjustly enriched or benefited at the expense
of another. [Art. 2142, CC]
d. Acts or Omissions Punishable by
Law
Responsibility for fault or negligence under a
quasi-delict [Art. 2176, CC] is entirely separate
and distinct from the civil liability arising from
negligence under the penal code. But the
plaintiff cannot recover damages twice for the
same act or omission of the defendant. [Art.
2177, CC]
e. Quasi-Delicts
Obligations arise from damages caused to
another through an act or omission, there being
fault or negligence but no contractual relations
exist between the parties. [Art. 2176, CC]
It is established by:
1. law
2. bilateral acts (e.g. contracts giving rise
to obligations stipulated therein)
3. unilateral acts (e.g. crimes and quasidelicts)
Page 253 of 532
B. NATURE AND EFFECT
OF OBLIGATIONS
4. To
deliver
its
even if not
accessions
and
mentioned
accessories [Art.
[Art.
1166,
1166, CC]
CC]
• Accessions – 4. Not to be
compelled to
everything
receive
a
which
is
different one,
produced by a
although
of
thing, or which
the
same
is incorporated
value as, or
or
attached
more valuable
thereto,
than
that
excluding fruits
which is due
• Accessories –
[Art.
1244,
things designed
CC]
for
the
recover
embellishment, 5. To
damages in
use
or
case
of
preservation of
breach,
another thing of
exclusive or in
more
addition
to
importance
specific
5. To pay damages in
performance
case of breach [Art.
[Arts. 1165,
1170, CC]
1170, CC]
1. Obligation to give
a. Type of things
Specific/
Determinate
Thing
Generic
Thing
Limited
Generic
Thing
Particularly
designated or
physically
segregated
from
all
others of the
same class
[Art.1460,
CC];
Identified by
individuality.
Object
is
designated
only by its
class/
genus/
species.
When
the
generic
objects are
confined to a
particular
class.
Cannot
be
substituted
against
the
obligee’s will.
Can
be
substituted
by any of the
same class
and same
kind.
Can
be
substituted
by any of the
same
particular
class.
To Give a Generic Thing
1. To take care of the
thing [Art. 1163, CC]
2. To deliver a thing of
the quality intended
by the parties taking
into consideration
the purpose of the
obligation and other
circumstances [Art.
1246, CC]
3. Creditor
cannot
demand a thing of
superior
quality;
neither can the
debtor deliver a
thing of inferior
quality.
4. To pay damages in
case of breach [Art.
1170, CC]
b. Rights and Duties of Parties
Duties of the Debtor
Rights of the
Creditor
To Give a Specific Thing
1. To preserve or take 1. To
compel
care of the thing due
delivery [Art.
with the proper
1165, CC]
diligence of a good 2. To the fruits
father of a family
from the time
[Art. 1163, CC]
the obligation
2. To deliver the
to
deliver
thing itself [Art.
arises
[Art.
1165, CC]
1164, CC]
3. To deliver the 3. To
the
fruits of the thing
accessions
[Art. 1164, CC]
and
accessories,
Page
1. To ask that
the obligation
be complied
with
[Art.
1165, CC]
2. To ask that
the obligation
be complied
with by a third
person at the
expense
of
the debtor
3. To
recover
damages in
case
of
breach [Art.
1165, CC]
4. Not to be
compelled to
receive
a
U.P. LAW BOC
OBLIGATIONS AND CONTRACTS
different one,
although
of
the
same
value as, or
more valuable
than
that
which is due
[Art.
1244,
CC]
2. Obligation to do or not to do
a. Rights and Duties of Parties
Duties of the
Debtor
Rights of the
Creditor
Obligation To Do
1. To do it [Art.
1167, CC]
2. To shoulder
the cost of
execution
should
he
fail to do it
[Art. 1167,
CC]
3. To
undo
what
has
been poorly
done
[Art.
1167, CC]
4. To
pay
damages in
case
of
breach [Art.
1170, CC]
1. To have the
obligation
executed at
the cost of
the
debtor
[Art.
1167,
CC]
2. To
recover
damages in
case
of
breach [Art.
1170, CC]
Note: The debtor
cannot be compelled
to
perform
his
obligation.
The
ultimate sanction of
civil obligations is
indemnification
of
damages. This would
be tantamount to
involuntary
servitude.
Obligation Not To Do
1. Not to do what 1. To ask to undo
should not be
what should not
done
be done, at the
debtor’s
CIVIL LAW
2. To
shoulder
expense.
[Art.
cost of undoing
1168, CC]
what should not 2. To
recover
have been done
damages, where
[Art. 1168, CC]
it
would
be
3. To
pay
physically
or
damages
in
legally
case of breach
impossible
to
[Art. 1170, CC]
undo what should
not have been
done, because
of:
• the very nature
of the act itself;
• rights acquired
by third persons
who acted in
good faith;
• when the effects
of
the
acts
prohibited
are
definite
in
character and
will not cease
even if the thing
prohibited
be
undone.
3. Transmissibility
obligations
of
General Rule: All rights acquired by virtue of
an obligation are transmissible. [Art. 1178, CC];
Contracts take effect only between the parties,
their assigns and heirs [Art. 1311, CC]
Exception: Nature of obligation, law or
stipulation to the contrary provides otherwise
[Art. 1178].
Only personal obligations, or those identified
with the persons themselves are extinguished
by death. [Stronghold Insurance Co. v.
Republic-Asahi Glass Corp., G.R. No. 147561
(2006)]
Page 255 of 532
U.P. LAW BOC
CIVIL LAW
OBLIGATIONS AND CONTRACTS
4. Performance of Obligations
5. Breaches of Obligations
a. Definition
Payment means not only (1) the delivery of
money, but also (2) the performance, in any
other manner, of an obligation. [Art. 1232, CC]
Those who in the performance of their
obligations are guilty of the following are liable
for damages [Art. 1170, CC]:
a. Fraud (dolo): The fraud contemplated by
the foregoing provision is the deliberate
and intentional evasion of the normal
fulfillment of obligations.
b. Negligence (culpa): Fault or negligence of
the debtor as an incident in the fulfillment
of an existing obligation.
c. Delay (mora): Delay in the fulfillment of the
obligation. The delay however must be
imputable to the debtor/obligor.
d. And those who in any manner contravene
the tenor thereof: Covers any illicit act
which impairs the strict and faithful
fulfillment of the obligation,
b. General Rule/Requirement
The thing or service in which the obligation
consists [must be] completely delivered or
rendered, as the case may be. [Art. 1233, CC]
c. Exceptions
1. Substantial performance
TRIGGER: The obligation has been
substantially performed in good faith.
EFFECT: The obligor may recover as
though there had been a strict and
complete fulfillment, less damages
suffered by the obligee. [Art. 1234, CC]
2.
Incomplete/irregular performance
TRIGGER:
Obligee
accepts
performance despite knowledge of its
incompleteness or irregularity.
EFFECT: The obligation is deemed
fully complied with. [Art. 1235, CC]
3. Partial prestation
General rules:
1. The
creditor
CANNOT
be
compelled to receive partial
payments.
2. The debtor CANNOT be required
to make partial payments.
Exception: when expressly stipulated.
[Art. 1248, par. 1, CC]
4. Partial liquidation
TRIGGER: The debt is partly liquidated
and partly unliquidated.
EFFECT: The creditor may demand
and the debtor may effect the payment
of the liquidated debt without waiting
for the liquidation of the unliquidated
debt.
a. Failure to Perform
Effect of Failure to Perform
Substantial
Breach
Slight or Casual
Breach
1. Total breach
1. Partial breach
2. Amounts
to 2. There is partial/
nonsubstantial
performance,
performance
in
basis
for
good faith
rescission
3. Gives
rise
to
under
Art.
liability
for
1191
and
damages only [Art.
payment
of
1234, CC]
damages
General Rule
Rescission of a contract will not be permitted
for a slight or causal breach, but only for such
substantial and fundamental breach as would
defeat the very object of the parties in
executing the agreement. [Vermen Realty
Corp. v. CA, G.R. No. 101762 (1993)]
Substantial performance contemplates
• an attempt in good faith to perform,
without any willful or intentional
departure therefrom
Page 256 of 532
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•
OBLIGATIONS AND CONTRACTS
the deviation from the obligation must
be slight, and the omission or defect
must be technical and unimportant,
and must not pervade the whole or be
so material that the object which the
parties intended to accomplish in a
particular manner is not attained.
[International Hotel Corp v. Joaquin,
G.R. No. 158361 (2013)]
The question of whether a breach of contract is
substantial depends upon the attending
circumstances and not merely on the
percentage of the amount not paid. [Cannu v.
Galang, G.R. No. 139523 (2005)]
b. Default, Delay, or Mora
Definition: Failure to perform an obligation
on time which constitutes a breach of the
obligation. [de Leon]
Rules on Default, Delay, or Mora
Unilateral Obligations
Reciprocal
Obligations
General Rule: “No Neither
party
demand, No delay.”
incurs in delay if
the other does not
The mere expiration of comply or is not
the period fixed by the ready to comply in
parties is not enough in a proper manner
order that the debtor with
what
is
may incur in delay.
incumbent upon
him. From the
Those obliged to deliver moment one of the
or to do something parties fulfills his
incur in delay from obligation, delay
the time the obligee by
the
other
judicially
or begins. [Art. 1169
extrajudicially
par. 3, CC]
demands from them
the fulfillment of their No delay if neither
obligation. [Art. 1169 performs.
par. 1, CC]
CIVIL LAW
When demand is not necessary in order
that delay may exist [par. 2, Art. 1169, CC]
1. When demand would be useless, as
when the obligor has rendered it beyond
his power to perform; such as:
a. When the impossibility is caused by
some act or fault of the debtor (e.g.
debtor absconded or has destroyed the
thing to be delivered);
b. When the impossibility is caused by a
fortuitous event, but the debtor has
bound himself to be liable in case of
such event. [Tolentino]
2. When from the nature and the
circumstances of the obligation it appears
that the designation of the 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 (time
is of the essence);
3. When the law so provides; or
4. When the obligation expressly so
declares.
Note: It is insufficient that the law or obligation
fixes a date for performance. It must further
state expressly that after the period lapses,
default will commence.
KINDS OF DELAY
1. Moral Solvendi;
2. Mora Accipiendi;
3. Compensatio Morae
MORA SOLVENDI
Delay on the part of the debtor to fulfil his
obligation either to give (ex re) or to do (ex
persona).
Requisites
1. Obligation must be liquidated, due and
demandable
2. Non-performance by the debtor within the
period agreed upon
3. Demand, judicial or extra-judicial, by the
creditor, unless demand is not necessary
under the circumstances enumerated in Art
1169 par (2).
Page 257 of 532
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OBLIGATIONS AND CONTRACTS
Effects
1. The debtor is liable for damages. [Art.
1170, CC]
2. For determinate objects, the debtor shall
bear the risk of loss, even if the loss is due
to fortuitous events. [Art. 1165 par. 3, CC]
MORA ACCIPIENDI
Delay on the part of the creditor to accept the
performance of the obligation.
Requisites
1. Debtor offers performance.
2. Offer must be in compliance with the
prestation as it should be performed.
3. Creditor refuses performance without just
cause.
CIVIL LAW
Equitable Tempering under Art. 1192 vs.
Under Art. 2215 [Ong v. Bognalbal, G.R. No.
149140 (2006)]
Art 1192
Art 2215
“In
case
both
parties
have
committed a breach
of the obligation,
the liability of the
first infractor shall
be
equitably
tempered by the
courts. xxx”
“In contracts, quasicontracts, and quasidelicts, the court may
equitably mitigate the
damages
under
circumstances other
than the case referred
to in the preceding
article, as in the ff.
instances:
(1) That the plaintiff
himself
has
contravened the terms
of the contract xxx”
Effects
1. The responsibility of the debtor is reduced
to fraud and gross negligence.
2. The debtor is exempted from risk of loss of
the thing, which is borne by the creditor.
3. The expenses incurred by the debtor for
the preservation of the thing after the mora
shall be chargeable to the creditor.
4. If the obligation bears interest, the debtor
does not have to pay from the time of delay.
5. The creditor is liable for damages.
6. The debtor may relieve himself of the
obligation by consigning the thing.
[Tolentino]
Second
infractor
not
liable
for
damages at all;
only
the
first
infractor is liable,
but with his liability
mitigated.
COMPENSATIO MORAE
Delay of both parties
obligations.
Art. 1171, CC. Responsibility arising from
fraud is demandable in all obligations. Any
waiver of an action for future fraud is void.
in
reciprocal
Effects
1. Delay of the obligor cancels delay of
obligee (and vice versa) hence it is as if
there is no default.
2. The liability of the first infractor shall be
equitably tempered by the courts. If it
cannot be determined which of the parties
first violated the contract, the same shall be
deemed extinguished, and each shall bear
his own damages. [Art. 1192, CC]
Does not appear to
consider
which
infractor
first
committed the breach.
c. Fraud
(Dolo)
in
the
Performance of the Obligation
Definition: Fraud (dolo) is the deliberate or
intentional evasion of the normal fulfilment of
an obligation. [de Leon]
Page 258 of 532
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OBLIGATIONS AND CONTRACTS
Two Types of Fraud
Dolo Causante
[Art. 1338, par. 1, Art.
1344, CC]
Dolo Incidente
[par. 2, Art. 1344,
CC]
Definition
Those deceptions or
misrepresentations of a
serious
character
employed by one party
and without which the
other party would not
have entered into the
contract. [Tankeh v.
DBP, G.R. No. 171428
(2013)]
Those which are
not serious in
character
and
without which the
other party would
still have entered
into the contract.
[Tankeh v. DBP,
G.R. No. 171428
(2013)]
When Present
Deception used by one
party
prior
to or
simultaneous with the
contract, in order to
secure the consent of
the other [Tankeh v.
DBP, G.R. No. 171428
(2013)]
Deception used
by one party at the
time of birth or
perfection,
or
performance
of
the obligation
Object
Essential cause of the Some particular or
obligation without which accident of the
the other party would obligation
not have entered into
the contract.
Effect
Voidable and Damages
Damages
Requisites for Fraud to Vitiate a Contract
(Dolo Causante)
1. It must have been employed by one
contracting party upon the other;
2. It must have induced the other party to
enter into the contract;
3. It must have been serious; and
4. It must have resulted in damage or injury to
the party seeking annulment. [Tolentino]
CIVIL LAW
d. Negligence (Culpa) in the
Performance of the Obligation
Art. 1172, CC. Responsibility arising from
negligence in the performance of every kind
of obligation is also demandable, but such
liability may be regulated by the courts,
according to the circumstances.
Art. 1173, CC. 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 of the place.
xxxx
If the law or contract does not state the
diligence which is to be observed in the
performance, that which is expected of a
good father of a family shall be required.
General Rule: Standard of care required is
diligence of a good father of family.
Exceptions (Other standards of care)
1. Common Carriers
They are bound to observe extraordinary
diligence in the vigilance over the goods
and for the safety of the passengers
transported by them [Art. 1733, CC]
2. Hotel and inn-keepers
The keepers of hotels or inns shall be
responsible for the deposit of effects, made
by travellers, as depositaries, provided
that notice was given to them, or their
employees of such effects and that they
take precautions relative to the care and
vigilance of their effects [Art. 1998, CC]
Page 259 of 532
This responsibility shall include the loss of,
or injury to the personal property of the
guests caused by the servants or
employees of the keepers of hotels or inns
as well as strangers; but not that which may
proceed from any force majeure. [Art.
2000, CC]
U.P. LAW BOC
3. Banks
Banks have the obligation to treat the
accounts of its clients ‘meticulously and
with the highest degree of care’. [PooleBlunden v. UnionBank, G.R. No. 205838
(2017)]
4. Pharmacists
As active players in the field of dispensing
medicines to the public, the highest degree
of care and diligence is expected [Mercury
Drug Corporation v. de Leon, G.R. No.
165622 (2008)]
Test of Negligence
“Whether or not the defendant, in doing the
alleged negligent act, observed the reasonable
care and caution, which an ordinary and
prudent person would have used in the same
situation.” If not, then he is guilty of negligence.
[Mandarin Villa Inc. v. CA, G.R. No. 119850
(1996)]
Kinds of Civil Negligence
Culpa Contractual
Culpa Aquiliana
Negligence is merely Negligence
is
incidental
in
the direct, substantive
performance of an and independent.
obligation.
There is always a pre- There may or may
existing
contractual not be a prerelation.
existing contractual
obligation.
The source of the
obligation
of
the
defendant
to
pay
damages is the breach
or non-fulfillment of the
contract.
CIVIL LAW
OBLIGATIONS AND CONTRACTS
The source of
obligation is the
defendant’s
negligence itself.
Proof of the existence The negligence of
of the contract and of the defendant must
its breach or non- be proven.
fulfillment is sufficient
prima facie to warrant
recovery.
Extent of Damages to be Awarded [Art.
2201, CC]
Good Faith
Bad Faith
Obligor is liable for
those that are the
natural and probable
consequences
of
the breach of the
obligation,
and
which the parties
have foreseen or
could
have
reasonably foreseen
at the time the
obligation
was
constituted.
Obligor
shall
be
responsible for all
damages which may
be
reasonably
attributed to the nonperformance of the
obligation.
Any
waiver
or
renunciation made in
the anticipation of
such liability is null
and void.
e. Contravention of the Tenor of
the Obligation
“In any manner contravenes the tenor” means
any illicit act, which impairs the strict and
faithful fulfillment of the obligation, or every
kind of defective performance. [Tolentino]
6. Remedies
available
to
creditor in cases of breach
a. Principal remedies of creditors
Obligation to
Give a Specific
Thing
Obligation to Give a
Generic Thing and
Obligation to Do
Alternative Remedies
Compel
the
debtor to make
delivery (specific
performance)
[par. 1, Art. 1165,
CC]
Ask the obligation be
complied with at the
expense of the debtor.
[par. 2, Art. 1165, CC]
Rescission [Art. If a person obliged to do
1191]
something fails to do it,
the same shall be
executed at his cost [Art.
1167, CC ]
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OBLIGATIONS AND CONTRACTS
What has been poorly
done [may] be undone.
[Art. 1167]
Rescission [Art. 1191]
Damages in any event
Those who in the performance of their
obligations are guilty of fraud, negligence, or
delay, and those who in any manner
contravene the tenor thereof, are liable for
damages. [Art. 1170, CC]
Rescission
Obligations)
(Resolution
in
Reciprocal
Art. 1191, CC. The power to rescind
obligations is implied in reciprocal ones, in
case one of the obligors should not comply
with what is incumbent upon him.
The injured party may choose between the
fulfillment and the rescission of the
obligation, with the payment of damages in
either case. He may also seek rescission,
even after he has chosen fulfilment, if the
fulfillment of the obligation should become
impossible.
The court shall decree the rescission
claimed, unless there be just cause
authorizing the fixing of a period.
This is understood to be without prejudice to
the rights of third persons who have acquired
the thing, in accordance with articles 1385
and 1388 and the Mortgage Law.
Rescission
The unmaking of a contract, or its undoing from
the beginning, and not merely its termination
[Pryce Corp v. Pagcor, G.R. No. 157480
(2005)]
CIVIL LAW
[Universal Food Corporation v. CA, G.R. No. L29155 (1970)]
Effect of Rescission under Art 1191
Extinguishes the obligatory relation as if it had
never been created, the extinction having a
retroactive effect. Both parties must surrender
what they have respectively received and
return each other as far as practicable to their
original situation. [Tolentino]
Rescission may take place extrajudicially, by
declaration of the injured party. The party who
deems the contract violated may consider it
resolved or rescinded, and act 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. But
the law definitely does not require that the
contracting party who believes itself injured
must first file suit and wait for a judgment
before taking extrajudicial steps to protect its
interest. [UP v. Delos Angeles, G.R. No. L28602 (1970)]
Under Art 1191, the right to rescind an
obligation is predicated on the violation of the
reciprocity between parties, brought about by a
breach of faith by one of them. Rescission,
however, is allowed only where the breach is
substantial and fundamental to the
fulfillment of the obligation. [Del Castillo Vda
de Mistica v. Naguiat,G.R. No. 137909 (2003);
Cannu v. Galang, G.R. No. 139523 (2005)].
It will not be permitted in casual or slight
breach. [Song Fo v. Hawaiian Philippines, G.R.
No. 23769, (1925)]
Right to Rescind
The rescission on account of breach of
stipulations is not predicated on injury to
economic interests of the party plaintiff but
on the breach of faith by the defendant, that
violates the reciprocity between the parties.
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OBLIGATIONS AND CONTRACTS
Distinguished from Rescission under Art.
1380
Rescission /
Resolution [Art.
1191, CC]
Rescission [Art.
1380, CC]
Based on non- Based on lesion or
performance
or fraud upon creditors.
non-fulfillment of
obligation.
Action is instituted Action is instituted by
only by the injured either party or by a
party.
third person.
Principal
retaliatory
character.
action, Subsidiary action, in
in the absence of any
other legal means to
obtain reparation.
Applies only to
reciprocal
obligations where
one party is guilty
of non-fulfillment
Applies
to
either
unilateral or reciprocal
obligations even when
the contract has been
fully fulfilled.
In some cases,
court may grant a
term
for
performance.
Court cannot grant a
period or term within
which
one
must
comply.
Non-performance
Non-performance by
by the other party is the other party is
important.
immaterial.
b. Subsidiary
Creditors
Remedies
of
ACCION SUBROGATORIA
Art. 1177, CC. The creditors, after having
pursued the property in possession of the
debtor to satisfy their claims, may exercise
all the rights and bring all actions of the latter
for the same purpose, save those which are
inherent in his person; they may also impugn
the acts which the debtor may have done to
defraud them.
CIVIL LAW
Right of the creditor to exercise all of the rights
and bring all the actions which his debtor may
have against third persons.
In order to satisfy their claims against the
debtor, creditors have the ff. successive rights:
1. To levy by attachment and execution upon
all the property of the debtor, except those
exempt from execution;
2. To exercise all the rights and actions of the
debtor, except such as are inherently
personal to him; and
3. To ask for rescission of the contracts made
by the debtor in fraud of their rights.
Requisites
1. The person to whom the right of action
pertains must be indebted to the creditor
2. The debt is due and demandable
3. The creditor must be prejudiced by the
failure of the debtor to collect his debts due
him from third persons, either through
malice or negligence
4. The debtors assets are insufficient (debtor
is insolvent)
5. The right of action is not purely personal to
the debtor
Previous approval of the court is not necessary
to exercise the accion subrogatoria.
ACCION PAULIANA
Creditors may also impugn the acts which the
debtor may have done to defraud them. [Art.
1177, CC]
Par. 3, Art. 1381. The following contracts are
rescissible:
(3) Those undertaken in fraud of creditors
when the latter cannot in any other manner
collect the claims due them.
Requisites [Cheng v. CA, G.R. No. 144169
(2001)]
1. There is a credit in favor of the plaintiff
prior to the alienation by the debtor
2. The debtor has performed a subsequent
contract conveying patrimonial benefit to
third person/s.
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CIVIL LAW
OBLIGATIONS AND CONTRACTS
3. The debtor’s acts are fraudulent to the
prejudice of the creditor.
4. The creditor has no other legal remedy to
satisfy his claim
5. The third person who received the
property is an accomplice to the fraud.
An accion pauliana thus presupposes the
following:
1. A judgment;
2. the issuance by the trial court of a writ of
execution for the satisfaction of the
judgment, and;
3. the failure of the sheriff to enforce and
satisfy the judgment of the court.
It requires that the creditor has exhausted the
property of the debtor. The date of the
decision of the trial court is immaterial.
What is important is that the credit of the
plaintiff antedates that of the fraudulent
alienation by the debtor of his property.
After all, the decision of the trial court against
the debtor will retroact to the time when the
debtor became indebted to the creditor. [Cheng
v. CA, supra]
C. KINDS OF
OBLIGATIONS
1. Pure
Art. 1179, CC. Every obligation whose
performance does not depend upon a future
or uncertain event, or upon a past event
unknown to the parties, is demandable at
once.
Every obligation which contains a resolutory
condition shall also be demandable, without
prejudice to the effects of the happening of
the event.
A pure obligation
is IMMEDIATELY
DEMANDABLE, regardless of the presence of
a condition or a term/period.
2. Conditional
Accion
Subrogatoria
Accion Pauliana
Art. 1181, CC. In 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.
Not necessary
that creditor’s
claim is prior to
the acquisition
of the right by
the debtor
Credit must exist before the
fraudulent act [Tolentino]
A condition is a future AND uncertain event.
This includes acquisition of proof/knowledge of
a past event unknown to the parties.
Note: Commentators have
conflicting views on WoN
new debts contracted by
the debtor fall under the
scope of accion pauliana.
No need for Fraudulent
intent
is
fraudulent
required if the contract
intent
rescinded is onerous
Kinds of conditions
i. As to Effect
1. SUSPENSIVE – Obligation shall only be
effective upon the fulfillment of the condition
[Art. 1181, CC]. The obligee acquires a mere
hope or expectancy, protected by law, upon the
constitution of the obligation.
No period for Prescribes in 4 years from
prescription
the discovery of the fraud
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OBLIGATIONS AND CONTRACTS
Before Fulfillment
After Fulfillment
The
demandability
and
acquisition/
effectivity of the rights
arising
from
the
obligation
is
suspended, but the
creditor may bring the
appropriate actions
for the preservation of
his right. [Art. 1188,
CC]
The
obligation
arises or becomes
effective.
The obligor can be
compelled
to
comply with what is
incumbent
upon
him.
Doctrine of Constructive Fulfillment of
Suspensive Conditions
Art. 1186, CC. The condition shall be
deemed fulfilled when the obligor voluntarily
prevents its fulfillment.
Suspensive condition is deemed fulfilled when:
1. Obligor intends to prevent obligee from
complying with the condition
2. Obligor actually prevents obligee from
complying with the condition
The two requisites must concur. Mere
intention of the debtor to prevent the happening
of the condition, or to place ineffective
obstacles to its compliance, without actually
preventing the fulfillment, is insufficient.
[International Hotel Corporation v. Joaquin,
G.R. No. 158361 (2013)]
Doctrine does not apply to:
1. Resolutory conditions
2. External contingency that is lawfully
within the control of the obligor [Taylor
v Uy Tieng, G.R. No. L-16109 (1922)]
3. Obligor, in preventing the fulfilment of
the condition, acts pursuant to a right
CIVIL LAW
Principle of Retroactivity in Suspensive
Conditions
Par. 1, Art. 1187, CC. The effects of a
conditional obligation to give, once the
condition has been fulfilled, shall retroact to
the day of the constitution of the obligation.
Nevertheless, when the obligation imposes
reciprocal prestations upon the parties, the
fruits and interests during the pendency of
the condition shall be deemed to have been
mutually compensated.
Rationale: Obligation is constituted when its
essential elements concur. The condition
imposed is only an accidental element.
Applicability: This applies to consensual
contracts only.
Exception: This does not apply to real
contracts which can only be perfected by
delivery.
Effects of the Happening of Suspensive
Conditions
To Give
To Do/Not To Do
If reciprocal, the
fruits and interests
shall be deemed to
have been mutually
compensated
a
matter of justice and
convenience [Art.
1187, par. 1]
In obligations to do or
not to do, the court
shall determine the
retroactive effect of
the condition that has
been complied with
[Art. 1187, par. 2]
If unilateral, the
debtor
shall
appropriate
the
fruits and interests
received,
unless
from the nature and
circumstance
it
should be inferred
that the intention of
the
persons
constituting
the
same was different.
[Art. 1187, par. 1]
The power of the court
includes
the
determination
of
whether or not there
will be any retroactive
effect. This rule shall
likewise
apply
in
obligations with a
resolutory condition.
[Art. 1190, par. 3]
Page 264 of 532
U.P. LAW BOC
2. RESOLUTORY – The obligation is
demandable at once, without prejudice to the
effects of the happening of the event [par. 2,
Art. 1179, CC].
Before
Fulfillment
After Fulfillment
Preservation of
creditor’s rights
[par.
1,
Art.
1188, CC] also
applies
to
obligations with
a
resolutory
condition.
Whatever may have
been paid or delivered by
one or both of the parties
upon the constitution of
the obligation shall have
to be returned upon the
fulfillment of the condition
[par. 1, Art. 1190, CC].
There is no return to the
status quo. However,
when the condition is not
fulfilled,
rights
are
consolidated and they
become absolute in
character.
ii. As to Cause/Origin
a. POTESTATIVE – The fulfillment of the
condition depends on the sole act or
decision of a party.
b. CASUAL – The fulfilment of the condition
depends upon chance or upon the will of a
third person. [Art. 1182, CC]
c. MIXED – The fulfilment of the condition
depends partly upon the will of a party to
the contract and partly upon chance and/or
will of a third person.
[Art.
CC]
Condition and obligation
are void because to allow
such condition would be
equivalent to sanctioning
obligations
which
are
illusory. It also constitutes
a direct contravention of
1182, the principle of mutuality of
contracts.
Exclusively
upon
the
Debtor’s Will
in case of a
Resolutory
Condition
[par. 2, Art.
1179, CC]
Condition and obligation
are valid because in such
situation, the position of
the debtor is exactly the
same as the position of the
creditor when the condition
is suspensive. It does not
render
the
obligation
illusory.
The condition that payment should be made by
Hermosa as soon as he receives funds from
the sale of his property in Spain is a mixed
condition. The condition implies that the
obligor already decided to sell the house
and all that was needed to make the
obligation demandable is that the sale be
consummated and the price thereof
remitted to the islands. There were still other
conditions that had to concur to effect the sale,
mainly that of the presence of a buyer, ready,
able and willing to purchase the property under
the conditions set by the intestate. [Hermosa
vs. Longara, G.R. No. L-5267 (1953)]
Loss, Deterioration, or Improvement of a
Specific Thing before Fulfillment of
Suspensive Condition in Obligations to
Give (Art. 1189) or of Resolutory Condition
in Obligations to Do or Not to Do [par. 2, Art.
1190, CC]
Loss of
Thing
Exclusively
Condition and obligation
upon
the are valid.
Creditor’s Will
Exclusively
upon
the
Debtor’s Will
in case of a
Suspensive
Condition
CIVIL LAW
OBLIGATIONS AND CONTRACTS
a A thing is deemed lost:
a.
When it perishes;
b. When it goes out of
commerce of man; or
c.
When it disappears
in such a manner that its
existence is unknown or it
cannot be recovered
Deterioration Any reduction or impairment
of a Thing
in the substance or value of
a thing which does not
amount to a loss
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Improvement Anything
added
to,
of a Thing
incorporated in, or attached
to the thing that is due.
Re: Obligation to Deliver a Determinate
Thing
When the conditions have been imposed with
the intention of suspending the efficacy of an
obligation to give, the following rules shall be
observed in case of the improvement, loss or
deterioration of the thing during the pendency
of the condition [Art. 1189, CC]:
Without
Debtor’s
Fault/Act
CIVIL LAW
OBLIGATIONS AND CONTRACTS
With Debtor’s Fault/Act
Loss
Re: Obligations To Do and Not To Do
Par. 3, Art. 1190, CC. As for the obligations
to do and not to do, the provisions of the
second paragraph of article 1187 shall be
observed as regards the effect of the
extinguishment of the obligation.
Par. 2, Art. 1187, CC. In obligations to do
and not to do, the courts shall determine, in
each case, the retroactive effect of the
condition that has been complied with.
Re: Obligations With a Resolutory
Condition
Upon the happening of the resolutory
condition, the rules of Article 1189 shall be
applied to the party who is bound to return (i.e.
the creditor in the original obligation).
Obligation is Obligation is converted into
extinguished.
one of indemnity for
damages.
Deterioration
Impairment to Creditor
may
choose
be borne by between bringing an action
the creditor.
for rescission of the
obligation OR bringing an
action
for
specific
performance,
with
damages in either case.
Impossible Conditions
1. Impossible conditions, those contrary to
good customs or public policy, and those
prohibited by law shall annul the obligation
which depends upon them.
2. The part of a divisible obligation which is
not affected by such condition shall be
valid. [Art. 1183, CC]
Positive
Conditions
and
Negative
Improvement
Improvement
at the debtor’s
expense, the
debtor
shall
ONLY
have
usufructuary
rights.
Improvement by the thing’s
nature or by time shall inure
to the benefit of the
creditor.
Positive [Art. 1184,
CC]
Negative [Art.
1185, CC]
The condition that
some event happen at
a determinate time
shall extinguish the
obligation
1. as soon as the
time expires or
2. if
it
has
become
indubitable
that the event
will not take
place.
The condition that
some event will not
happen
at
a
determinate
time
shall render the
obligation effective
from the moment
1.
the
time
indicated
has
elapsed, or
2.
if it has
become
evident
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OBLIGATIONS AND CONTRACTS
that
the
event
cannot occur.
Where no date of fulfilment is stipulated, the
condition must be fulfilled within a reasonable
time or the time probably contemplated
according to the nature of the obligation [par. 2,
Art. 1185, CC].
3. Obligation with a period or a
term
1. Obligations for whose fulfillment a day
certain has been fixed ⎯ shall be
demandable only when that day
comes. [Art. 1193, CC]
2. Obligations with a resolutory period ⎯
take effect at once, but terminate upon
arrival of the day certain. [Art. 1193,
CC]
3. When the debtor binds himself to pay
when his means permit him to do so,
the obligation shall be deemed to be
one with a period [Art. 1180, CC]
No
effect
on Gives rise to an
existence
of
the obligation
or
obligation, only its extinguishes
one
demandability
or already existing
performance
No retroactive effect Has
unless there is an effect
agreement to the
contrary
When it is
exclusively to the
of the debtor,
existence
of
obligation
is
affected
left
will
the
the
not
retroactive
When it is left
exclusively to the
will of the debtor, the
very existence of the
obligation is affected
Kinds of Period [Art. 1193, CC]
1. Ex die/ Suspensive Period –
Obligation becomes demandable after
the lapse of the period.
2. In die/ Resolutory period – Obligation
becomes demandable at once but is
extinguished after the lapse of the
period.
Period or Term
Interval of time, which either suspends
demandability or produces extinguishment.
Effect of Advance Payment or Delivery [Art.
1195, CC]
A fortuitous event does not interrupt the
running of the period. It only relieves the
contracting parties from the fulfillment of their
respective obligations during the period.
[Victoria’s Planters v. Victoria Milling Co., G.R.
No. L-6648 ]
Trigger: (1) Something has been paid or
delivered before the arrival of the period, (2) the
obligor being unaware of the period or
believing that the obligation has become due
and
demandable
Effect: That thing paid or delivered may be
recovered with fruits and interests
Term/Period and Condition Distinguished
Term/Period
Loss, Deterioration, or Improvement of the
Thing Before Period Expires [Art. 1194, CC]
Condition
Interval of time which Fact or event which
is future and certain is
future
and
uncertain
Must
necessarily May or may not
come, although it happen
may not be known
when
Trigger: In case of loss, deterioration or
improvement of the thing before the arrival of
the day certain
Effect: The rules in Art. 1189 shall apply
Benefit of the Period [Art. 1196, CC]
Trigger: Whenever in an obligation a period is
designated
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OBLIGATIONS AND CONTRACTS
Effect: It is presumed to have been
established for the benefit of both the creditor
and the debtor
Exception: From the tenor of the same or
other circumstances it should appear that the
period has been established in favor of one or
of the other.
Period for the benefit of either creditor or
debtor
Creditor
Debtor
Creditor
may
demand
the
fulfillment
or
performance of
the obligation at
any time but the
obligor cannot
compel him to
accept payment
before
the
expiration of the
period.
Debtor may oppose any
premature demand on
the part of the obligee for
the performance of the
obligation, or if he so
desires,
he
may
renounce the benefit of
the period by performing
his obligation in advance.
If the period is for the benefit of the debtor
alone, he shall lose every right to make use
of it:
(a) When after the obligation has been
contracted, he becomes insolvent, unless
he gives a guaranty or security for the debt;
(b) When he does not furnish to the creditor
the guaranties or securities which he has
promised;
(c) When by his own acts he has impaired said
guaranties or securities after their
establishment, and when through a
fortuitous event they disappear, unless he
immediately gives new ones equally
satisfactory;
(d) When the debtor violates any undertaking,
in consideration of which the creditor
agreed to the period;
(e) When the debtor attempts to abscond [Art.
1198, CC]
(f) When required by law or stipulation;
(g) If parties stipulated an acceleration clause
[Tolentino]
CIVIL LAW
When Courts May Fix Period
General Rule: Courts may fix the period of an
obligation when:
1. the obligation does not fix a period but from
its nature and the circumstances it can be
inferred that a period was intended;
2. the obligation depends upon the will of the
debtor.
Exceptions: If the Court determines that one
of the 3 circumstances [below] are present, it
must decide the period “probably contemplated
by the parties” [Araneta v. Phil. Sugar Estates,
G.R. No. L-22558 (1967)]
1. obligation does not fix a period, but from its
nature and circumstances, it can be
inferred that a period was intended
2. the period is void, such as when it depends
upon the will of the debtor
3. If the debtor binds himself when his means
permit him to do so.
Courts shall determine such period as may
have been probably contemplated by the
parties [Art. 1197, CC]
Application: When a period was intended by
the parties [Macasaet v. Macasaet, G.R. Nos.
154391-92 (2004)]
General Rule: Once fixed by the courts, the
period cannot be changed by them.
Exception: The rule does not apply to contract
of services and to pure obligations. [Tolentino]
4. Alternative or facultative
Alternative and
Distinguished
Alternative
Obligations
Facultative
Conditions
Facultative
Obligations
Of the two or more Of the two or more
prestations, several prestations,
only
are due.
one is due, while the
other/s
may
be
performed
in
substitution of the
one due.
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May be complied
with by performance
of one of the
prestations
which
are
alternatively
due.
OBLIGATIONS AND CONTRACTS
May be complied
with by performance
of another prestation
in substitution of
that which is due.
The right of choice Choice of prestation
belongs
to
the pertains only to the
debtor, unless it debtor.
has been expressly
granted
to
the
creditor. [Art. 1200,
CC]
Loss/impossibility of
all prestations due
to a fortuitous event
shall extinguish the
obligation.
Loss/impossibility of
the prestation due
to a fortuitous event
is
sufficient
to
extinguish
the
obligation.
Loss/impossibility of
one
of
the
prestations
does
not extinguish the
obligation.
Loss/impossibility of
the
substitute/s
does not extinguish
the
obligation,
provided
the
obligation which is
due subsists
Culpable loss of any
of
the
objects
alternatively
due
before the choice is
made may give rise
to liability on the
part of the debtor.
Culpable loss of the
object which the
debtor may deliver in
substitution before
the substitution is
effected does not
give rise to any
liability on the part of
the debtor.
Right of Choice [Art. 1200, CC]
General Rule: Belongs to the debtor
Exceptions
1. it is expressly granted to the creditor
2. it is expressly granted to a third person
CIVIL LAW
Form of notice
Notice of selection or choice may be in any
form provided it is sufficient to make the other
party know that the selection has been made.
It can be:
1. oral
2. in writing
3. tacit
4. any other equivocal means [Tolentino]
Consent of other party
The law does not require the other party to
consent to the choice made by the party
entitled to choose. The only possible exception
is when the debtor has chosen a prestation
which could not have been the object of the
obligation; the creditor’s consent would bring
about a novation of the obligation [Ibid.]
Debtor cannot make a choice, or delays
selection
If through the creditor's acts the debtor cannot
make a choice according to the terms of the
obligation, the latter may rescind the
contract with damages. [Art. 1203, CC]
If the debtor does not select at the time
when performance should be effected, the
choice can be made for him by the creditor
by applying Art. 1167
In obligations to do (debtor considered to have
waived his right, subject to equity
considerations) [Tolentino].
Effect of notice of choice
The effect of the notice is to limit the obligation
to the object or prestation selected. The
obligation is converted into a simple obligation
to perform the prestation chosen. Once a
selection has been communicated, it is
irrevocable [Ibid.]
Instances when obligation is converted into
a simple obligation
1. The person with the right of choice has
communicated his choice [Arts. 1201 and
par. 1, 1205, CC]
2. Only one prestation is practicable [Art.
1202, CC]
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Loss of Specific Things or Impossibility of
Performance of
Prestations in
an
Alternative Obligation
If Debtor’s Choice [Art. 1204, CC]
Fortuitous
Event
shall
choose without a right to
from among the damages OR price/value
remainder.
of the thing lost, with right
to damages.
One prestation remains
Debtor’s Fault
All prestations lost/impossible
Debtor
is Creditor shall have a
released
from right to indemnity for
the obligation.
damages based on the
value of the last thing
which disappeared or
service which become
impossible,
plus
damages other than the
value may also be
awarded
Some prestations lost/impossible
Debtor
to Debtor to perform that
perform
that which the debtor shall
which he shall choose from among the
choose
from remainder,
without
among
the liability for damages.
remainder.
One prestation remains
Debtor
to Debtor to perform that
perform
that which remains.
which remains.
If Creditor’s Choice [Art. 1205, CC]
Fortuitous
Event
CIVIL LAW
OBLIGATIONS AND CONTRACTS
Debtor
to Creditor may claim the
perform
that remaining thing without a
which remains.
right to damages OR the
price/value of the thing
lost
with
right
to
damages.
Facultative Obligations
Only one prestation is agreed upon, but the
obligor may render another in substitution. [Art.
1206, CC]
Loss or deterioration of Substitute in
Facultative Obligations [Art. 1206, CC]
Before
Substitution is
Made
After Substitution is
Made
If due to bad faith
or
fraud
of
obligor: obligor is
liable.
The loss or deterioration
of the substitute on
account of the obligor’s
delay, negligence, or
fraud, renders the obligor
If due to the liable because once the
negligence of the substitution is made, the
obligor: obligor is obligation is converted
into a simple one with the
not liable.
substituted thing as the
object of the obligation.
Debtor’s Fault
5. Joint
and
Obligations
All prestations lost/impossible
Debtor
is Creditor may claim the
released
from price/value of any of
the obligation.
them, with indemnity for
damages.
Some prestations lost/impossible
Debtor to deliver Creditor may claim any
that which he of
those
subsisting
Solidary
Joint Obligations
The whole obligation, whether capable of
division into equal parts or not, is to be paid or
performed by several debtors (joint debtors)
and/or demanded by several creditors (joint
creditors).
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OBLIGATIONS AND CONTRACTS
Each debtor is liable only for a proportionate
part of the debt, and each creditor is entitled
only to a proportionate part of the credit.
[Tolentino]
Presumption of Joint Obligation [Article
1207, CC]
General Rule: An obligation is presumed joint
if there is a concurrence of several creditors, or
of several debtors, or of several creditors and
debtors in one and the same obligation
Exceptions
1. When the obligation expressly states
that there is solidarity
2. When the law requires solidarity, i.e.
quasi-delicts [Art. 2194, CC], joint
payees by mistake [Art. 2157, CC],
acts under articles 19-22 if committed
by two or more persons acting jointly
3. When the nature of the obligation
requires solidarity
4. When a charge or condition imposed
upon heirs or legatees, and the
testament expressly makes the charge
or condition in solidum
5. When the solidary responsibility is
imputed by a final judgment upon
several defendants
Presumption of Divisibility in Joint
Obligations [Art. 1208, CC]
Credit or debt shall be presumed to be divided
into as many equal shares as there are
creditors or debtors, the credits or debts being
considered distinct from one another.
JOINT INDIVISIBLE OBLIGATION
Art. 1209, CC. If the division is impossible,
the right of the creditors may be prejudiced
only by their collective acts, and the debt can
be enforced only by proceeding against all
the debtors. If one of the latter should be
insolvent, the others shall not be liable for his
share.
When there are several debtors or creditors,
but the prestation is indivisible, the obligation is
joint, unless solidarity has been stipulated
[Tolentino]
When Indivisible [Art. 1225, CC]
1. Obligations to give definite things
2. Obligations not susceptible of partial
performance
3. Indivisibility is provided by law or intended
by the parties, even though the object or
service may be physically divisible
4. In obligations not to do, when character of
prestation requires indivisibility
Summary: in case of breach
Joint Divisible
Obligations
Joint Indivisible
Obligations
In
case
of
breach
of
obligation
by
one
of
the
debtors,
damages
due
must be borne
by him alone.
In case of breach where
one of the joint debtors
fails to comply with his
undertaking,
the
obligation can no longer
be fulfilled or performed.
Thus, the action must be
converted into one for
indemnity for damages,
with each debtor liable
only for his part in the
price or value of the
prestation.
JOINT DIVISIBLE OBLIGATION
One where a concurrence of several creditors,
or of several debtors, or of several creditors
and debtors, by virtue of which, each of the
creditors has a right to demand, and each of
the debtors is bound to render compliance with
his proportionate part of the prestation which
constitute the object of the obligation.
Solidary Obligations
An obligation where there is concurrence of
several creditors, or of several debtors, or of
several creditors and several debtors, by virtue
of which, each of the creditors has the right to
demand, and each of the debtors is bound to
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render, entire compliance with the prestation
which constitutes the object of the obligation.
The indivisibility of an obligation does not
necessarily give rise to solidarity. Nor does
solidarity of itself imply indivisibility. [Art. 1210,
CC]
Solidarity may exist although the creditors and
the debtors may not be bound in the same
manner and by the same periods and
conditions. [Art. 1211, CC]
Solidarity
Indivisibility
Refers to the legal tie
(vinculum juris), and
consequently to the
subjects or parties of
the obligation
Refers
to
the
prestation that is not
capable of partial
performance
More
than
one Exists even if there is
creditor or more than only one creditor
one debtor (plurality and/or one debtor
of subjects)
Each creditor may
demand the entire
prestation and each
debtor is bound to
pay
the
entire
prestation
Each creditor cannot
demand more than
his share and each
debtor is not bound
to pay more than his
share
Effect of breach: Effect of
Solidarity remains
Obligation
converted
indemnity
damages
breach:
is
to
for
All debtors are liable Only the debtors
for breach committed guilty of breach of
by a co-debtor
obligation is liable for
damages
All
debtors
are Other debtors are
proportionately liable not liable if one
for insolvency of one debtor is insolvent
debtor
CIVIL LAW
KINDS OF SOLIDARY OBLIGATIONS
As to Source
1. Legal – imposed by law
2. Conventional – agreed upon by
parties
3. Real – imposed by the nature of the
obligation
As to Parties Bound
1. Active (solidarity among creditors) –
Each creditor has the authority to claim
and enforce the rights of all, with the
resulting obligation of paying everyone
what belongs to him.
2. Passive (solidarity among debtors) –
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.
3. Mixed (solidarity among creditors and
debtors) – The creditor can commence
an action against anyone of the debtors
for the compliance with the entire
obligation minus the portion or share
which corresponds to the debtor
affected by the condition or period. [Art.
1211, CC]
ACTIVE SOLIDARY OBLIGATION (among
creditors)
Art. 1214, CC. The debtor may pay any one
of the solidary creditors; but if any demand,
judicial or extrajudicial, has been made by
one of them, payment should be made to
him.
Effects of Active Solidarity [Tolentino]
1. Death of solidary creditor does not transmit
solidarity to his heirs but rather to all of
them taken together (joint)
2. Each represents the other in receiving
payment and all other advantageous acts
(i.e. interrupt prescription and render the
debtor in default for the benefit of all
creditors)
3. Each one of the solidary creditors may do
whatever may be useful to the others, but
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4.
5.
6.
7.
OBLIGATIONS AND CONTRACTS
not anything which may be prejudicial to
the latter. [Art. 1212, CC]
One creditor does NOT represent all others
in acts such as novation (even if
advantageous),
compensation
and
remission. In this case, even if the debtor is
released, the other creditors can still
enforce their rights against the creditor who
made the novation, compensation or
remission [par. 2, Art. 1215, CC]
The creditor who collects the debt, shall be
liable to the others for the share in the
obligation corresponding to them. [par. 2,
Art. 1215, CC]
The credit and its benefits are divided
equally among them, unless agreement to
the contrary.
Debtor may pay any one of the solidary
creditors; but if any demand, judicial or
extrajudicial, has been made by one of
them, payment should be made to him who
demanded [Art. 1214, CC]
2.
3.
a.
b.
4.
PASSIVE SOLIDARY OBLIGATION
General Rules
1. The creditor may proceed against any
one of the solidary debtors or some or
all of them simultaneously...so long as
the debt has not been fully collected
[Art. 1216, CC]
2. Payment made by one of the solidary
debtors extinguishes the obligation. If
two or more solidary debtors offer to
pay, the creditor may choose which
offer to accept. [Art. 1217, CC]
3. A solidary debtor may, in actions filed
by the creditor, avail himself of all
defenses which are derived from the
nature of the obligation and of those
which are personal to him, or pertain to
his own share. For defenses which
personally belong to the others, such
debtor may avail himself thereof only
as regards that part of the debt for
which the latter are responsible. [Art.
1222, CC]
Effects of Passive Solidarity [Tolentino]
1. Each debtor can be required to pay the
entire obligation, but after payment he
5.
6.
CIVIL LAW
can recover from the co-debtors their
respective shares
Each debtor may set up his own claims
against the creditor as payment of the
obligation
Remission of the entire debt affects all
debtors, but when remission is limited
to the share of one debtor, the other
debtors are still liable for the balance of
the obligation
The remission of the whole obligation,
obtained by one of the solidary debtors,
does not entitle him to reimbursement
from his co-debtors. [Art. 1220, CC]
The remission made by the creditor of
the share which affects one of the
solidary debtors does not release the
latter from his responsibility towards
the co-debtors, in case the debt had
been totally paid by any one of them
before the remission was effected. [Art.
1219, CC]
All debtors are liable for the loss of the
thing due, even if only one of them is at
fault, or after incurring delay it is lost by
fortuitous event
Interruption of prescription as to one
debtor affects all others, but
renunciation of prescription already
had does not prejudice the others.
(Reason: prescription extinguishes the
mutual representation among solidary
debtors)
Interests due by delay of one is borne
by all of them
DEFENSES AVAILABLE TO A SOLIDARY
DEBTOR [Art. 1222, CC]
1. Those derived from the nature of the
obligation
Defenses inherent in an obligation include
non-existence of the obligation because of
absolute simulation or illicit object, nullity
due to defect in capacity or consent of all
debtors,
unenforceability,
nonperformance of suspension condition or
non-arrival of period, extinguishment of the
obligation, res judicata, and prescription.
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2. Those personal to him
Personal defenses such as minority,
insanity, fraud, violence, or intimidation will
serve as a complete exemption of the
defendant debtor from liability to the
creditor
Loss of the thing or impossibility of
performance of the passive/mixed solidary
obligation [Art. 1221, CC]
3. Those pertaining to his own share
Without
The
obligation
fault
of extinguished.
the
debtors
4. Those personally belonging to other codebtors but only as regards that part of
the debt for which the latter are
responsible.
With fault
of any of
the
debtors
All debtors shall be responsible to
the creditor, for the price and the
payment of damages and interest,
without prejudice to their action
against the guilty or negligent
debtor.
Through
a
fortuitous
event
after one
incurred
in delay
All debtors shall be responsible to
the creditor, for the price and the
payment of damages and interest,
without prejudice to their action
against the guilty or negligent
debtor.
Comparing demand upon Solidary Debtor
and Payment by a Solidary Debtor
Demand Upon a
Solidary Debtor
Payment by a
Solidary Debtor
The
demand
made
against one of them shall
not be an obstacle to
those
which
may
subsequently be directed
against the others so
long as the debt has not
been fully collected [Art.
1216, CC].
Full payment made
by one of the
solidary
debtors
extinguishes
the
obligation
[Art.
1217, CC].
The
creditor
may
proceed against any one
of the solidary debtors or
all simultaneously [Art.
1216, CC].
If two or more
solidary
debtors
offer to pay, the
creditor
may
choose which offer
to accept [Art.
1217, CC].
A creditor’s right to
proceed against the
surety
exists
independently of his right
to proceed against the
principal.
The solidary debtor
who made the
payment shall have
the right to claim
from his co-debtors
the share which
corresponds
to
them with interest,
UNLESS barred by
prescription
or
illegality [Art. 1218,
CC].
6. Obligations
clause
with
shall
a
be
penal
Penal Clause
An accessory undertaking to assume greater
liability in case of breach. It is generally a sum
of money, but it can be any other thing like an
act or abstention. [Tolentino]
If the principal obligation is void, the penal
clause shall also be void. However, the nullity
of the penal clause does not carry with it the
nullity of the principal obligation [Art.1230, CC].
Rules on Penalty
a. The penalty shall substitute the
indemnity for damages and payment of
interest in case of non-compliance [Art.
1226, CC], unless:
i.
There is an express provision
to that effect
ii.
The obligor refuses to pay the
penalty
iii.
The obligor is guilty of fraud in
non-fulfillment
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b. Debtor cannot exempt himself from the
performance of the principal obligation
by paying the stipulated penalty unless
this right has been expressly reserved
for him [Art. 1227, CC].
c. Creditor cannot demand the fulfillment
of the principal obligation and
demanding the satisfaction of the
penalty at the same time unless the
right has been clearly granted to him
[Art. 1227, CC]. A tacit or implied grant
is admissible.
i.
If the creditor chooses to
demand the satisfaction of
the penalty, he cannot
afterwards
demand
the
fulfillment of the obligation.
ii.
If there was fault on the part
of the debtor, creditor may
demand
not
only
the
satisfaction of the penalty but
also the payment of damages.
iii.
If the creditor has chosen to
demand the fulfillment of the
principal obligation and the
performance
thereof
becomes impossible without
his fault, he may still demand
the satisfaction of the penalty.
Enforcement of the Penalty
The enforcement of the penalty can be
demanded by the creditor only when the nonperformance is due to the fault or fraud of the
debtor. However, the creditor does not have to
prove fault or fraud, since the non-performance
gives rise to the presumption of fault.
[Tolentino]
CIVIL LAW
3. If
the
penalty
is
iniquitous
or
unconscionable, even if there has been no
performance.
The question of whether a penalty is
reasonable or iniquitous can be partly
subjective and partly objective. Its resolution
would depend on such factors as, but not
necessarily confined to, the type, extent and
purpose of the penalty, the nature of the
obligation, the mode of breach and its
consequences, the supervening realities, the
standing and relationship of the parties, and
the like, the application of which, by and large,
is addressed to the sound discretion of the
court. [Ligutan v CA, G.R. No. 138677 (2002)]
D. EXTINGUISHMENT OF
OBLIGATIONS
Modes of extinguishing obligations
Art. 1231, CC. Obligations are extinguished:
1. By payment or performance;
2. By the loss of the thing due;
3. By the condonation or remission of
the debt;
4. By the confusion or merger of the
rights of creditor and debtor;
5. By compensation;
6. By novation.
Other causes of extinguishment of
obligations, such as annulment, rescission,
fulfillment of a resolutory condition, and
prescription, are governed elsewhere in this
Code.
Proof of Actual Damage
Proof of actual damage suffered by the creditor
is not necessary in order that the penalty may
be enforced [Art. 1228, CC].
1. Payment or performance
When Penalty may be Reduced [Art. 1229,
CC]:
1. If the principal obligation has been partly
complied with.
2. If the principal obligation has been
irregularly complied with.
The delivery of money OR
The performance of obligation [Art. 1232,
CC]
a. Payment
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OBJECT OF PAYMENT
CIVIL LAW
2. Debtor may not be required to make partial
payments
1. Integrity of Prestation
General Rule: A debt is understood to have
been paid when the thing or service in which
the obligation consists has been completely
delivered or rendered [Art. 1233, CC]
2. Identity of Prestation
For obligations to give: The debtor of a thing
cannot compel the creditor to receive a
different one, although the latter may be of the
same value as, or more valuable than that
which is due. [Art. 1244, CC]
For obligations to do or not to do: an act or
forbearance cannot be substituted by another
act or forbearance against the obligee's will.
[Art. 1244, CC]
Exceptions to Art. 1244, CC:
a. If the obligation is facultative [Art. 1206,
CC]
b. If the creditor agrees (Dation in payment)
[Art. 1245, CC]
c. Substantial Performance by Debtor
(Creditor only has a right to damages) [Art.
1234, CC]
If the obligation has been substantially
performed in good faith, the obligor may
recover as though there had been a strict
and complete fulfillment, less damages
suffered by the obligee.
d. When
the
obligee
accepts
the
performance,
knowing
its
incompleteness or irregularity, and
without expressing any protest or
objection, the obligation is deemed fully
complied with. [Art. 1235, CC]
Necessity of Complete Performance [Art.
1248, CC]
General Rules:
1. Creditor cannot be compelled partially to
receive the prestations in which the
obligation consists.
Exception:
1. There is an express stipulation that permits
partial performance.
2. When the debt is in part liquidated and in
part unliquidated, the creditor may demand
and the debtor may effect the payment of
the former without waiting for the
liquidation of the latter.
BY WHOM
Payor must have (1) free disposal of the
thing due and (2) capacity to alienate it. [Art.
1239, CC]
Free disposal of the thing due means that the
thing to be delivered must not be subject to any
claim or lien or encumbrance of a third person.
Capacity to alienate means that the person is
not incapacitated to enter into contracts [Arts.
1327, 1329, CC] and for that matter, to make a
disposition of the thing due. [de Leon]
Payor may either be:
1. The debtor or his duly authorized agent
2. The debtor’s heir or successor in
interest
3. A third person interested in the
fulfillment of the obligation (i.e. codebtor, guarantor) whether the debtor
consents to it or not, and even without
debtor’s knowledge [Art. 1302, CC]. This
includes payment by a joint debtor [Monte
de Piedad y Caja de Ahorros de Manila v.
Rodrigo, G.R. No. L-42928 (1936)] but not
a solidary co-debtor.
4. A third person not interested in the
obligation; but the creditor is not bound to
accept payment by him, unless there is a
stipulation to the contrary [Art. 1236, CC].
Payment by a third person
General Rule: The creditor is not bound to
accept payment or performance by a third
person who has no interest in the fulfillment
of the obligation [Art. 1236, CC]
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Exception: Stipulation to the contrary [Art.
1236, NCC]
Reimbursement for Payment Made by a
Third Person
The third party
pays with the
consent of the
debtor
The third party pays
without the
knowledge or consent
of the debtor
The third party
may
claim
reimbursement
for
the
full
amount.
[Art.
1236, CC]
The third party may only
claim insofar as the
payment has
been
beneficial to the debtor.
[Art. 1236, CC]
The third party is
presumed to be
legally
subrogated [Art.
1302, CC]
The third party cannot
compel the creditor to
subrogate him on his
rights. [Art. 1237, CC]
Reimbursement
Distinguished
Reimbursement
&
Subrogation
Subrogation
Personal action to Includes
recover amount paid reimbursement, but
also the exercise of
other rights attached
to
the
original
obligation
(e.g.
guaranties,
securities)
Art. 1238, CC. 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.
2.
3.
4.
5.
6.
7.
CIVIL LAW
interest; or any person authorized to
receive it [Art. 1240, CC]
Payment to a person who is
incapacitated to administer his property
shall be valid:
if he has kept the thing delivered, OR
insofar as the payment has been
beneficial to him. [Art. 1241 par 1, CC]
Payment made in good faith to any
person in possession of the credit shall
release the debtor. [Art. 1242, CC]
Payment to a third person
Payment made to the creditor by the debtor
after the latter has been judicially ordered
to retain the debt shall not be valid. [Art.
1243, CC]
General Rule
1. Valid insofar as it has redounded to the
benefit of the creditor [par. 2, Art. 1241, CC]
2. Proof that such payment has redounded to
the benefit of the creditor is required.
Exceptions: [par. 2, Art. 1241, CC]
1. If after the payment, the third person
acquires
the
creditor's
rights
(SUBROGATION);
2. If the creditor ratifies the payment to the
third person (RATIFICATION);
3. If by the creditor's conduct, the debtor has
been led to believe that the third person
had authority to receive the payment
(ESTOPPEL). [Art. 1241, CC]
PLACE OF PAYMENT
1. In the place designated in the obligation.
2. In the absence of stipulation—
a. If obligation is to deliver a determinate
thing: wherever the thing might be at
the moment the obligation was
constituted.
b. In any other case: domicile of debtor
[Art. 1251]
TIME OF PAYMENT
TO WHOM
General Rule: Upon demand
1. The person in whose favor the obligation
has been constituted; orHis successor in
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Exceptions:
1. When time is of the essence
2. When the debtor loses the benefit of the
period
3. When the obligation is reciprocal
FORM OF PAYMENT
Art. 1249, CC. The payment of debts in
money shall be made in the currency
stipulated, and if it is not possible to deliver
such currency, then in the currency which is
legal tender in the Philippines.
The delivery of promissory notes payable to
order, or bills of exchange or other
mercantile documents shall produce the
effect of payment only when they have been
cashed, or when through the fault of the
creditor they have been impaired.
In the meantime, the action derived from the
original obligation shall be held in the
abeyance.
When payment is made in money/ legal
tender
General Rule: pay in the currency stipulated
Exception: payment not possible in such
currency, then pay in legal tender.
Legal Tender
Such currency which in a given jurisdiction can
be used in the payment of debts, and which
cannot be refused by the creditor.
When payment is not in legal tender
General Rule: The creditor may refuse to
accept payment (e.g. checks) not made in legal
tender [Philippine Airlines v. Court of Appeals,
G.R. No. L-49188 (1990)].
Extraordinary Inflation or Deflation
Art. 1250, CC. 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.
CIVIL LAW
b. Application of Payments
Art. 1252, par. 1, CC. He who has various
debts of the same kind in favor of one and
the same creditor, may declare at the time of
making the payment, to which of them the
same must be applied. Unless the parties so
stipulate, or when the application of payment
is made by the party for whose benefit the
term has been constituted, application shall
not be made as to debts which are not yet
due.
Requisites
1. There is a plurality of debts
2. Debts are of the same kind
3. Debts are owed to the same creditor and
by the same debtor
4. All debts must be due, UNLESS parties so
stipulate, or when application is made by
the party for whose benefit the term has
been constituted
5. Payment made is not sufficient to cover all
debts [Art. 1252, CC]
Rules on Application of Payments
1. Preferential right of debtor - debtor has the
right to select which of his debts he is
paying. [Art. 1252, CC]
2. The debtor makes the designation at the
time he makes the payment.
3. If not, the creditor makes the application,
by so stating in the receipt that he issues,
unless there is cause for invalidating the
contract.
4. If neither the creditor nor debtor exercises
the right to apply, or if the application is not
valid, the application is made by operation
of law. (see no. 6)
5. If debt produces interest, the payment is
not to be applied to the principal unless the
interests are covered. [Art. 1253, CC]
6. When no application can be inferred from
the circumstances of payment, it is applied:
(a) to the most onerous debt of the debtor;
or (b) if debts due are of the same nature
and burden, to all the debts in proportion.
[Art. 1254, CC]
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7. Rules on application of payment may not
be invoked by a surety or solidary
guarantor.
Exceptions
1. Rules on application of payment cannot be
made applicable to a person whose
obligation as a mere surety is both
contingent and singular. There must be full
and faithful compliance with the terms of
the contract. [Reparations Commission v.
Universal Deep Sea Fishing Corp, G.R.
Nos. L-21901 and L-21996 (1978)]
2. The debtor’s right to apply payment can be
waived and even granted to the creditor if
the
debtor
so
agrees
[Premiere
Development v. Central Surety, G.R. No.
176246 (2009)]
Limitations
1. Right of creditor to refuse partial payment
[Art. 1248, CC]
2. Rule on satisfaction of interest before the
Principal. [Art. 1453, CC]
3. Debtor cannot apply payment to a debt
which is not yet liquidated
4. He cannot choose a debt with a period
(established for the creditor’s benefit)
before the period has arrived.
5. Stipulation as to preference of payment.
[Tolentino]
proceeds thereof, the latter may obtain
payment of their credits.
Requisites
1. There is a plurality of debts
2. There is a plurality of creditors
3. Partial or relative insolvency of debtor
4. Acceptance of the cession by the
creditors [Art. 1255, CC]
5. Debtor is released only for the net
proceeds unless there is a stipulation to the
contrary.
Cession and Dation Distinguished
Cession
Requisites
1. Existence of a money obligation
2. Alienation to the creditor of a property by
the debtor with the creditor’s consent
3. Satisfaction of the money obligation
One creditor
Debtor must be
partially or relatively
insolvent
Debtor not
necessarily in state
of financial difficulty
Universality of
property is ceded
Thing delivered is
equivalent of
performance
Merely releases
debtor for the net
proceeds of things
ceded or assigned,
unless there is
contrary intention
Extinguishes
obligation to the
extent of the value
of the thing
delivered, as
agreed upon,
proved or implied
from the conduct of
the creditor
Involves all
properties of debtor
Does not involve all
properties of debtor
Creditor does not
become owner of the
ceded property
Creditor becomes
owner
e. Tender of Payment and
Consignation
d. Payment by Cession
Special form of payment where the debtor
assigns/abandons ALL his property for the
benefit of his creditors in order that from the
Dacion en pago
Plurality of creditors
c. Dation in Payment
Delivery and transmission of ownership of
a thing by the debtor to the creditor as an
accepted equivalent of the performance of the
obligation (dacion en pago).
CIVIL LAW
Tender of payment
Manifestation made by the debtor to the
creditor of his desire to comply with his
obligation,
with
offer
of
immediate
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U.P. LAW BOC
OBLIGATIONS AND CONTRACTS
performance. [Del Carmen v. Sps. Sabordo,
G.R. No. 181723 (2014)]
Tender of payment must be made in the lawful
currency. The tender of a check to pay for an
obligation is not a valid tender of payment
thereof. [Soco v. Militante, G.R. No. L-58961,
(1983)]
Consignation
Deposit of the object of obligation in a
competent court in accordance with the rules
prescribed by law whenever the creditor
unjustly refuses payment or because of some
circumstances which render direct payment to
the creditor impossible or inadvisable.
Requisites of consignation
1. There is a debt due
2. Consignation is made because of some
legal cause
a. There was tender of payment and
creditor refuses without just cause
to accept it
b. Instances when consignation alone
would suffice as provided under
Art. 1256
3. Previous notice of consignation was
given to those persons interested in the
performance of the obligation. Previous
notice is essential to the validity of the
consignation and its lack invalidates the
same. [Soco v. Militante, G.R. No. L58961, (1983)] (1st notice)
4. Amount or thing due was placed at the
disposal of the court
5. After the consignation has been made,
the persons interested were notified
thereof (2nd notice)
When tender and refusal not required [Art.
1256, CC]
1. Creditor is absent or unknown, or does
not appear at the place of payment.
2. Creditor is incapacitated to receive the
thing due at the time of payment.
3. Without just cause, creditor refuses to
give receipt.
4. Two or more persons claim the same
right to collect (i.e. Interpleader)
5. Title of the obligation has been lost.
CIVIL LAW
Unless there is an unjust refusal by a creditor
to accept payment from a debtor, Article 1256
cannot apply. [Llobrera v. Fernandez, G.R. No.
142882 (2006)].
What constitutes valid consignation
In order that the consignation of the thing due
may release the obligor, it must first be
announced to the persons interested in the
fulfilment of the obligation. The consignation
shall be ineffectual if it is not made strictly in
consonance with the provisions which regulate
payment. [Art. 1257, CC]
How consignation is made
Consignation shall be made by depositing the
things due at the disposal of judicial
authority, before whom the tender of payment
shall be proved, in a proper case, and the
announcement of the consignation in other
cases. The consignation having been made,
the interested parties shall also be notified
thereof.
Who bears the expenses
The expenses of consignation, when properly
made, shall be charged against the creditor.
[Art. 1259, CC]
Effects of Consignation
If accepted by the creditor or declared properly
made by the Court:
1. Debtor is released in same manner as if
he had performed the obligation at the time
of consignation
2. Accrual of interest is suspended from
the moment of consignation.
3. Deterioration or loss of the thing or
amount consigned, occurring without the
fault of debtor, must be borne by creditor
from the moment of deposit
Withdrawal of Consigned Amount by the
Debtor
1. Before approval of the court or acceptance
of the creditor- Obligation remains in force.
[par. 2, Art. 1260, CC]
2. After approval of the court or acceptance
by the creditor, with the consent of the latter
- Obligation remains in force, but
guarantors and co-debtors are liberated.
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Preference of the creditor over the thing is
lost. [Art. 1261, CC]
3. After approval of the court or acceptance
by the creditor, and without creditor’s
consent - debtor can no longer withdraw
the consigned amount since the obligation
has already been extinguished [Pabugais
v. Sahijwani, G.R. No. 156846 (2004)]
4. If the creditor authorizes the debtor to
withdraw, third persons who were
benefited by the consignation are not
prejudiced by the revival of the obligation.
2. Loss of determinate thing due
or impossibility or difficulty of
performance
Loss
1. Loss of Determinate Things
General Rule: Loss of determinate things
extinguishes the obligation when: [Par.
1, Art. 1262 CC].
a. An obligation which consists in the
delivery of a determinate thing
b. Thing is lost or destroyed
c. Debtor is without fault
d. Delay not incurred
However, the obligor is still liable for
damages when the following requisites
concur: [Par. 2, Art. 1262 CC].
e. There is law or a stipulation for
fortuitous events or the nature of
the
obligation
requires
an
assumption of risk
f. The thing is lost
Exceptions (When the Loss Does Not
Extinguish)
a. When the obligation to deliver a
determinate object arises from a
criminal act. [Art. 1268, CC]
b. Acceptance of payments in bad
faith. [Art. 2159, CC]
CIVIL LAW
When the legal excuse of fortuitous
event is not applicable, in cases of:
1. Delay or promise to deliver thing
to two or more persons. [Art.
1165 (3), CC]
2. Nature
of
the
Obligation
Requires Assumption of Risk
[Art. 1174, CC]
3. Liability of a Bailee in fortuitous
events. [Art. 1942 , CC]
4. Liability of a depositary in
fortuitous events. [Art. 1979, CC]
5. Liability of the officious manager
in fortuitous events. [Art. 2147,
CC]
2. Loss of Generic Things
Obligation is NOT Extinguished: In an
obligation to deliver a generic thing, the
loss or destruction of anything of the same
kind does not extinguish the obligation.
[Art. 1263 , CC]
3. Partial Losses
Upon the Determination of the Court: The
courts shall determine whether, under the
circumstances, the partial loss of the
object of the obligation is so important as to
extinguish the obligation. [Art. 1264, CC]
4. Presumption of Fault
When Presumption Applies [Art. 1265,
CC]:
a. Thing is lost while in the
possession of the debtor
b. No proof of fortuitous event
Effect: It is presumed that loss was due to
his fault.
Exceptions [Art. 1265, CC]
a. There is proof to the contrary
b. In case of earthquake, flood, storm
or other natural calamity.
5. Loss in Obligations to Give With
Resolutory Conditions
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When the conditions have been imposed
with the intention of suspending the
efficacy of an obligation to give, the
following rules shall be observed in case of
the improvement, loss or deterioration of
the thing during the pendency of the
condition:
a. If the thing is lost without the fault of
the debtor, the obligation shall be
extinguished;
b. If the thing is lost through the fault of
the debtor, he shall be obliged to pay
damages; it is understood that the
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. [Art. 1189, CC]
Effects of Loss [Arts. 1262-1263, CC]
Obligation
to Obligation to Deliver a
Deliver
a Generic Thing
Specific Thing
Obligation
is
extinguished
if
the thing was
destroyed
without fault of
the debtor and
before he has
incurred delay.
Loss of a generic thing
does not extinguish an
obligation, EXCEPT in
case of delimited generic
things, where the kind or
class is limited itself, and
the
whole
class
perishes.
Impossibility
at
Constitution
and
Subsequent Impossibility Distinguished
Impossibility at
the Time the
Obligation was
Constituted
[Art. 1348, CC]
TYPES OF IMPOSSIBILITY
a. Physical and Legal
Physical Impossibility: There is
physical impossibility when the act, by
reason of its nature, cannot be
accomplished. [Tolentino]
Legal Impossibility: There is legal
impossibility when, the act, by
subsequent
law,
is
prohibited.
[Tolentino]
b. Subjective and Objective
Objective Impossibility: There is
objective impossibility when the act or
service in itself, without considering the
person of the obligor, becomes
impossible. [Tolentino]
1. Impossibility
The debtor in obligations to do shall also be
released when the prestation becomes legally
or physically impossible without the fault of
the obligor. [Art. 1266, CC]
or
Impossibility which
Supervenes at the Time
of Performance [Art.
1266]
Brings about the Brings
about
a
nullity of the modification
or
contract
extinguishment of the
obligation, depending on
whether or not it is
imputable to the debtor
Impossibility or Difficulty of
Performance
Triggers
a. Obligation to do
b. Becomes legally
impossible
CIVIL LAW
physically
Page 282 of 532
Subjective Impossibility: There is
subjective impossibility when the act or
service cannot be done by the debtor
himself, but it can be accomplished by
others. [Tolentino]
Partial Impossibility: The rule in Art.
1264 (Partial Loss) may be applied.
Thus the Courts shall determine
whether it is so important as to
extinguish the obligation. If the debtor
has performed part of the obligation
when impossibility occurred, the
creditor must pay the part done as long
as he benefits from it. [Tolentino]
U.P. LAW BOC
2. Unforeseen Difficulty
When the service has become so difficult as to
be manifestly beyond the contemplation of
all the parties, the obligor may also be
released therefrom, in whole or in part. [Art.
1267, CC].
Requisites
a. The event or change in circumstances
could not have been foreseen at the
time of the execution of the contract;
b. It makes the performance of the
contract extremely difficult but not
impossible;
c. The event must not be due to the act
of any of the parties; and
d. The contract is for a future prestation.
[Tagaytay Realty Co, Inc. v. Gacutan
G.R. No. 160033, July 01, 2015]
Doctrine of Unforeseen Events
The parties to the contract must be presumed
to have assumed the risks of unfavorable
developments. It is therefore only in
absolutely
exceptional
changes
of
circumstances
that
equity
demands
assistance for the debtor. [PNCC v. CA, G.R.
No. 1116896 May 5, 1997.]
Fortuitous Events, Loss/Impossibility, and
Unforeseen Difficulty Distinguished
Eleme
nts
CIVIL LAW
OBLIGATIONS AND CONTRACTS
Fortuitous
Events
Loss/
Impossibility
Unforseen
Difficul-ty
Could not
have been
forseen or
forseen
but
inevitable.
Causes
loss of the
thing or
obligation
could not
be
complied
with in the
Perishes,
goes out
of
commerce
or
disappear
s
Could not
have been
forseen.
Service
has
become so
difficult but
not
impossible.
normal
manner
Fault
Without
fault
May be
with or
without
fault
Without
Fault
Effect
Nonliability for
delay/
damages
If without
fault,
extinguish
es the
obligation;
If with
fault,
liability for
damages
Release
from the
obligation
in whole or
in part
Creditors’ rights
Art. 1269, CC. The obligation having been
extinguished by the loss of the thing, the
creditor shall have all the rights of action
which the debtor may have against third
persons by reason of the loss.
Requisites:
a. Obligation is extinguished
b. Extinguishment is due to the loss of the
thing
Effect: Creditor shall have all rights of action
which the debtor may have against third
persons by reason of the loss.
3. Condonation or remission of
debt
Definition and General Rule
General Rules
1. Condonation or remission is essentially
gratuitous, and
2. requires the acceptance by the
obligor.
3. It may be made expressly or
impliedly.
4. One and the other kinds shall be
subject to the rules which govern
inofficious
donations.
Express
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condonation shall, furthermore, comply
with the forms of donation. [Art. 1270,
CC]
Requisites [Tolentino]
1. The debt must be existing and
demandable;
2. The renunciation must be gratuitous;
and
3. The debtor must accept the remission.
CIVIL LAW
b. Implied Condonation
It is inferred from the acts of the parties.
2. As to Extent
a. Total - extinguishes the entire
obligation; or
b. Partial - refers to only a particular
aspect of the obligation, i.e. amount of
indebtedness
or
an
accessory
obligation. [Tolentino]
Effect: The obligation is extinguished.
Definition
Remission is an act of liberality, by virtue of
which, without receiving any equivalent, the
creditor renounces the enforcement of the
obligation. The obligation is extinguished either
in whole or in such part of the same to which
remission refers. [Tolentino]
3. As to Manner
a. Inter vivos - effective during the
lifetime of the creditor; or
b. Mortis Causa - effective upon the
death of the creditor.
Rules and Form
1. Express Remission
If 2nd Requisite not Met
If the renunciation is not gratuitous, the nature
of the act changes and it may become:
1. Dation in payment – when the creditor
receives a thing different from that
stipulated;
2. Novation – when the object or
principal conditions of the obligation
have changed; or
3. Compromise – when the matter
renounced is in litigation or dispute and
in exchange of some concession which
the creditor receives. [Tolentino]
Kinds of Remission
Art. 1270 (2), CC: One and the other kinds
shall be subject to the rules which govern
inofficious donations. Express condonation
shall, furthermore, comply with the forms of
donation.
The law subjects express remission to the
same formalities as donations.
Express Remission of Movable or Personal
Property
The donation of a movable may be made orally
or in writing.
An oral donation requires the simultaneous
delivery of the thing or of the document
representing the right donated.
1. As to Form
a. Express Condonation
It is formally: in accordance with forms of
ordinary donations. [Art. 1270, CC]
An express remission must be accepted in
order to be effective.
When the debt refers to movable or
personal property, Art. 748 will govern; if it
refers to immovable or real property, Art.
749 applies.
If the value of the personal property donated
exceeds five thousand pesos, the donation
and the acceptance shall be made in writing.
Otherwise, the donation shall be void. [Art. 748,
CC]
Express Remission of Immovable or Real
Property
In order that the donation of an immovable
may be valid, it must be made in a public
document, specifying therein the property
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OBLIGATIONS AND CONTRACTS
donated and the value of the charges which the
donee must satisfy.
The acceptance may be made in the same
deed of donation or in a separate public
document, but it shall not take effect unless it
is done during the lifetime of the donor.
If the acceptance is made in a separate
instrument, the donor shall be notified thereof
in an authentic form, and this step shall be
noted in both instruments. [Art. 749, CC]
CIVIL LAW
Presumption of Delivery
Whenever the private document in which the
debt appears is found in the possession of the
debtor, it shall be presumed that the creditor
delivered it voluntarily, unless the contrary is
proved. [Art. 1272, CC]
Trigger: The private document in which the
debt appears is found in the possession of the
debtor.
Effect: There is a presumption that it has been
voluntarily delivered by the creditor.
2. Implied Remission
Presumption of Renunciation
The delivery of a private document evidencing
a credit, made voluntarily by the creditor to the
debtor, implies the renunciation of the action
which the former had against the latter [Art.
1271, CC]
Trigger: (1) Delivery of a private document
evidencing a credit; and (2) delivery was made
voluntarily by the creditor to the debtor
Effect: There will be implied renunciation.
Exception: The contrary is proved.
3. Partial Remission
Renunciation of the principal debt shall
extinguish the accessory obligations, but
remission of the latter leaves the principal
obligation in force. [Art. 1273, CC]
Trigger: The remission was only to the extent
of the accessory obligation
Effect: The principal obligation remains in
force
Exception: The contrary is proved.
Note: If in order to nullify this waiver it should
be claimed to be inofficious, the debtor and
his heirs may uphold it by proving that the
delivery of the document was made in virtue of
payment of the debt. [Art. 1271, CC]
Presumption of Renunciation of Accessory
Obligation
Accessory obligation of pledge has been
remitted when the thing after its delivery is
found in the possession of the debtor or third
person. [Art. 1274, CC]
Triggers: (1) A thing is pledged; (2) there has
been a delivery of such thing to the creditor; or
(3) the thing pledged is found in the possession
of the debtor, or of a third person who owns the
thing.
Effect: It is presumed that the accessory
obligation of pledge has been remitted.
4. Other Rules on Donation Applicable to
Remission
Condonation or remission is essentially a
donation. It is a bilateral act which requires
acceptance by the debtor. It is therefore
subject to the rule on donations with respect to
acceptance, amount and revocation; where
donor refers to the creditor, and donee to the
debtor, and donation to the remission.
[Tolentino]
On Acceptance
1. 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. [Art. 745, CC]
2. Acceptance must be made during the
lifetime of the donor and of the donee.
[Art. 746, CC]
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OBLIGATIONS AND CONTRACTS
On Amount
1. The donation 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.
Without such reservation, the donation
shall be reduced on petition of any
person affected. [Art. 750, CC]
2. The
provisions
of
Art.
750
notwithstanding, no person may give or
receive, by way of donation, more than
he may give or receive by will. The
donation shall be inofficious in all that it
may exceed this limitation. [Art. 752,
CC]
Effect: Renunciation of the principal debt shall
extinguish the accessory obligations, but
remission of the latter leaves the principal
obligation in force. [Art. 1273, CC]
4. Confusion
Definition
The meeting in one person of the qualities of
creditor and debtor of the same obligation.
[Tolentino]
Requisites
a. It should take place between principal
debtor and creditor;
b. The very same obligation must be involved;
and
c. The confusion must be total, i.e. as regards
the whole obligation. [Valmonte v. CA, G.R.
No. L-41621, February 18, 1999]
Effects
a. In general
The obligation is extinguished from the time the
characters of the debtor and creditor are
merged in the same person. [Art. 1275, CC]
b. Confusion among the Guarantors
A merger which takes place in the person of the
principal debtor or creditor benefits the
CIVIL LAW
guarantors. Confusion which takes place in the
person of any of the latter does not extinguish
the obligation.
c. In case of joint or solidary obligations
Confusion in
Joint Obligation
Confusion in
Solidary
Obligation
Confusion DOES NOT
extinguish
a
joint
obligation EXCEPT as
regards the share of
the person in whom
the two characters
concur [Art. 1277, CC]
Extinguishes
the
entire
obligation,
but
the
other
debtors may be
liable
for
reimbursement if
payment was made
prior to remission.
Obligation is not extinguished when confusion
takes place in the person of subsidiary debtor
(i.e. guarantor), but merger in the person of the
principal debtor shall benefit the former.
Note: Where, however, the mortgagee
acquires ownership of the entire mortgaged
property, the mortgage is extinguished; but this
does not necessarily mean the extinguishment
of the obligation secured thereby, which may
become an unsecured obligation.
5. Compensation
Definition [Art. 1278, CC]
Compensation shall take place when two
persons, in their own right, are creditors and
debtors of each other.
Requisites [Art. 1279, CC]
a. Each obligor is bound principally, and at
the same time a principal creditor of the
other;
b. Both debts must consist in a sum of money,
or if the things due are consumable, of the
same kind and quality;
Note: The term
‘consumable’
is
erroneously used in Art 1279. The
appropriate term is ‘fungible’. [Tolentino]
c. Both debts are due;
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d. Debts are liquidated and demandable; and
e. There must be no retention or controversy
over either of the debts, commenced by
third persons and communicated in due
time to the debtor.
To warrant the application of set off under
Article 1278 of the Civil Code, the debtor’s
admission of his obligation must be clear
and categorical and not one which merely
arise by inference or implication from the
customary execution of official documents in
assuming the responsibilities of a predecessor
[Bangko Sentral v. COA, G.R. No. 168964
(2006)]
Nature and Effects
General Rule
When all requisites mentioned in Art. 1279 are
present, compensation takes effect by
operation of law, and extinguishes both
debts to the concurrent amount, even
though the creditors and debtors are not aware
of the compensation. [Art. 1290, CC]
By Operation of Law
Compensation takes place by operation of law,
even though the debts may be payable at
different places, but there shall be an indemnity
for expenses of exchange or transportation to
the place of payment. [Art. 1286 CC]
Compensation takes effect by operation of law
even without the consent or knowledge of
the parties concerned when all the
requisites mentioned in Article 1279 of the
Civil Code are present. [Trinidad v. Acapulco,
G.R. No. 147477, June 27, 2006.]
Compensation Distinguished from Other
Modes of Extinguishment
Compensation
CIVIL LAW
OBLIGATIONS AND CONTRACTS
Confusion
There must always be Involves only one
two obligations.
obligation.
There are two persons
who
are
mutually
debtors and creditors
of each other in two
separate obligations,
each arising from the
same cause.
There is only one
person whom the
characters of the
creditor and debtor
meet.
Compensation
Payment
Capacity to dispose
and receive the thing
is unnecessary since
compensation
operates by law
Requires capacity
to dispose of the
thing
paid
and
capacity to receive
May be partial
Must
be
performance
Compensation
Takes
place
operation of law
total
Counterclaim
by Must be pleaded to
be effectual
Kinds of Compensation
As to extent [Art. 1281, CC]
1. Total – when two debts are of the same
amount
2. Partial - when the two obligations are of
different amounts and a balance remain
As to cause
1. Legal
2. Voluntary
3. Judicial
4. Facultative
LEGAL COMPENSATION
Takes place by operation of law from the
moment all requisites are present.
Since it takes place ipso jure, when used as a
defense, it retroacts to the date when all its
requisites are fulfilled.
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Art. 1290, CC. When all the requisites
mentioned in article 1279 are present,
compensation takes effect by operation of
law, and extinguishes both debts to the
concurrent amount, even though the
creditors and debtors are not aware of the
compensation.
Legal compensation may apply to:
1. Awards of attorney’s fees, against the
litigant and not his lawyer [Gan Tion v. CA,
G.R. No. L-22490 (1969)]
2. Bank deposits, against the accounts of a
depositor whose checks were dishonored
[BPI v. CA, G.R. No. 116792 (1996)]
VOLUNTARY COMPENSATION
Takes place when parties who are mutually
creditors and debtors of each other agree to
compensate their respective obligations even
though one of the requisites of compensation
may be lacking.
Art. 1282, CC. The parties may agree upon
the compensation of debts which are not yet
due.
The
only
requisites
of
conventional
compensation are (1) that each of the parties
can dispose of the credit he seeks to
compensate, and (2) that they agree to the
mutual extinguishment of their credits
[United Planters v. CA, G.R. No. 126890
((2009)].
JUDICIAL COMPENSATION
Takes place by judicial decree.
Art. 1283, CC. If one of the parties to a suit
over an obligation has a claim for damages
against the other, the former may set it off by
proving his right to said damages and the
amount thereof.
FACULTATIVE COMPENSATION
When it can be claimed by one of the parties
who, however, has the right to object to it.
CIVIL LAW
This kind of compensation can only be set up
at the option of a creditor, when legal
compensation cannot take place because
some legal requisites in favor of the creditor are
lacking.
Obligations which cannot be compensated
[Arts. 1287-1288, CC]
1. Contracts of depositum
2. Contracts of commodatum
3. Future support due by gratuitous title
4. Civil liability arising from a penal offense
5. Obligations due to the government
6. Damage caused to the partnership by a
partner
Right of a Guarantor
A guarantor may set up compensation as
regards what the creditor may owe the principal
debtor. [Art. 1280, CC]
Effect of Assignment of Rights by the
Creditor to a Third Person [Art. 1285, CC]
With
debtor’s
consent
Debtor cannot set up against
assignee
compensation
pertaining to him against
assignor
UNLESS
he
reserved such right at the time
he gave his consent
With
debtor’s
knowledge
but
without
consent
Debtor
may
set
up
compensation
of
debts
previous to the assignment
but not of subsequent ones
Without
debtor’s
knowledge
Debtor
may
set
up
compensation of all credits
prior and also later to the
assignment until he had
knowledge of the assignment
Order of Compensation
If a person should have against him several
debts which are susceptible of compensation,
the rules on application of payments shall apply
to the order of the compensation. [Art. 1289
CC]
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OBLIGATIONS AND CONTRACTS
6. Novation
void:
novation.
Obligations may be modified by:
a. Changing their object or principal
conditions;
b. Substituting the person of the debtor; and
c. Subrogating a third person in the rights of
the creditor. [Art. 1291, CC]
Unlike other modes of extinguishment, it is a
juridical
act
of
dual
function—it
extinguishes an obligation, and at the same
time, it creates a new one in lieu of the old. It
operates as a relative, not an absolute,
extinction.
Requisites:
a. A previous valid obligation
b. Agreement of all the parties to the new
obligation
c. Animus novandi or intent to novate
d. Substantial difference between old and
new obligations and, consequently,
extinguishment of the old obligation
e. Validity of the new obligation
Effects
In General
If Original
Obligation is
Void
If New
Obligation
is Void
Old
obligation is
extinguished
and
replaced by
the new one
stipulated.
Novation
is
void if the
original
obligation was
void, EXCEPT
when
annulment
may
be
claimed only
by the debtor,
or
when
ratification
validates acts
that
are
voidable [Art.
1298, CC]
New
obligation is
void, the old
obligation
subsists,
UNLESS the
parties
intended
that
the
former
relations
shall
be
extinguished
in any event
[Art. 1297,
CC]
No void:
No
novation.
b.
Original
obligation
voidable:
Effective
if
contract
is
ratified before
novation.
B.
New
obligation
voidable:
Novation is
effective.
Accessory Obligations
Accessory obligations are also extinguished,
but may subsist only insofar as they may
benefit third persons who did not give their
consent to the novation. [Art. 1296, CC]
Accidental Modifications
The extension or shortening of the period for
the performance of the obligation is generally
considered as merely accidental and does not
bring about a novation. [Tolentino]
Original or new obligation with suspensive
or resolutory condition
Art. 1299, CC. If the original obligation was
subject to a suspensive or resolutory
condition, the new obligation shall be under
the same condition, unless it is otherwise
stipulated.
Compatible
Conditions
Incompatible
Conditions
a. Fulfillment of both
conditions:
new
obligation becomes
demandable.
a.
Original
obligation
is
extinguished, while
new obligation exists.
b.
Fulfillment of
condition concerning
the
original
obligation:
old
obligation is revived;
new obligation loses
force.
b.
Demandability
shall be subject to
fulfillment/
nonfulfillment of the
condition affecting it.
a.
Original a.
New
obligation is obligation
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OBLIGATIONS AND CONTRACTS
c.
Fulfillment of
condition concerning
the new obligation:
no
novation;
requisite
of
a
previous valid and
effective obligation
lacking.
AS TO ESSENCE OR OBJECT
Kinds of Novation
AS TO FORM
1. Express – declared in unequivocal terms
2. Implied – the old and new obligations are
on every point incompatible with each other
Novation is not presumed
In the absence of an unequivocal declaration of
extinguishment of the pre-existing obligation,
only proof of incompatibility between the old
and new obligation would warrant a novation
by implication. [California Bus Line v. State
Investment, G.R. No. 147950 (2003)]
Test of Incompatibility
The test of incompatibility is whether or not the
two obligations can stand together, each one
having its independent existence. If they
cannot, they are incompatible and the latter
obligation novates the first.
The incompatibility must take place in any of
the essential elements of the obligation, such
as its object, cause or principal conditions
thereof; otherwise, the change would be
merely modificatory in nature and insufficient to
extinguish the original obligation [Quinto v.
People, G.R. No. 126712 (1999)]
AS TO ESSENCE OR OBJECT
1. Objective/Real
2. Subjective/Personal
Objective/Real
Subjective/Personal
1.
Change
of the subject
matter;
2.
Change
of
cause
or
consideration; or
3.
Change
of the principal
conditions
or
terms
1.
Substitution
of
debtors
a.
Expromision
b.
Delegacion
2. Subrogation of a third
person to the rights of
the creditor
a. Conventional
b.
Legal
1. Substitution of Debtors
Expromision
Delegacion
Initiative for change
does not emanate from
the debtor, and may
even be made without
his knowledge.
Debtor
(delegante)
offers or initiates
the change, and
the
creditor
(delegatorio)
accepts a third
person
(delegado)
as
consenting to the
substitution.
Requisites
1. Consent of the
creditor and the new
debtor; and
2.
Knowledge
or
consent of the old debtor
is not required.
Effects
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Consent of
1. old debtor;
2. new debtor;
and
3. creditor.
U.P. LAW BOC
1. Old debtor is
released
2. Insolvency
of
the new debtor
does not revive
the
old
obligation
in
case the old
debtor did not
agree
to
expromision.
3. If
with
the
knowledge and
consent of the
old debtor, the
new debtor can
demand
reimbursement
of the entire
amount paid and
with subrogation
of
creditor’s
rights.
4. If
without
knowledge
of
the old debtor,
the new debtor
can
demand
reimbursement
only up to the
extent that the
latter has been
benefited
without
subrogation of
creditor’s rights.
CIVIL LAW
OBLIGATIONS AND CONTRACTS
1. Insolvency of
the new debtor
revives
the
obligation of the
old debtor if it was
anterior
and
public,
and
known to the old
debtor.
2. New debtor
can
demand
reimbursement of
the entire amount
he has paid from
the
original
debtor. He may
compel
the
creditor
to
subrogate him to
all of his rights.
original agreement. [Molino v. Security Diners
International Corp, G.R. No. 136780 (2001)].
2. Subrogation
Transfers to the person subrogated the credit
with all the rights thereto appertaining, either
against the debtor or against third persons, be
they guarantors or possessors of mortgages,
subject to stipulation in a conventional
subrogation. [Art. 1303, CC]
Effects
Total
Partial
Transfers to the
person
subrogated, the
credit with all the
rights
thereto
appertaining,
either
against
the debtor or
third persons.
A creditor, to whom
partial payment has been
made, may exercise his
right for the remainder,
and shall be preferred to
the person subrogated in
his place in virtue of the
partial payment.
Conventional Subrogation – takes place by
agreement of parties
Difference
between
Conventional
Subrogation and Assignment of Credit
[Licaros v. Gatmaitan, G.R. No. 142838
(2001)]
Conventional
subrogation
Assignment of credit
Debtor’s consent Debtor’s consent is not
is necessary.
required.
For subjective novation, it is insufficient that
the juridical relation between the parties to
the original contract is extended to a third
person. If the old debtor is not released, no
novation occurs and the third person who has
assumed the debtor’s obligation becomes
merely a co-debtor or surety or co-surety.
[Conchinyan, Jr. v. R&B Surety and Insurance
Company, G.R. No. L-47369, (1987)]
An accessory surety may not be released if he
expressly waives his discharge from the
obligation in case of change or novation in the
Extinguishes an
obligation
and
gives rise to a new
one.
Refers to the same
right which passes from
one person to another,
without modifying or
extinguishing
the
obligation.
Defects/vices
in Defects/vices in the old
the old obligation obligation
are
not
are cured.
cured.
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CIVIL LAW
OBLIGATIONS AND CONTRACTS
Legal Subrogation
Takes place by operation of law.
Legal subrogation is not presumed, except
in the following circumstances:
a. When creditor pays another creditor
who is preferred, even without the
debtor’s knowledge
b. When a third person not interested in
the obligation pays with the express or
tacit approval of the debtor
When, even without the knowledge of
the debtor, a person interested in the
fulfillment of the obligation pays,
without prejudice to the effects of
confusion as to the latter’s share [Art.
1302, CC]
The stage to
look
at
to
determine the
status of the
contract (i.e.,
valid, voidable,
void,
unenforceable)
The stage to
look at to
determine
whether
there
has
been
a
breach
of
the contract
2. Classification
c.
CONTRACTS
A.GENERAL
PROVISIONS
1. Stages of Contracts
a. Preparation (conception or “generation” or
negotiation) – begins from time the parties
manifest their interest and ends prior to the
moment of agreement
b. Perfection (or birth) – when the parties
agreed upon essential elements of contract
c. Consummation (or death) - when parties
fulfill or perform the agreement
Perfection
Exchanges
Parties come
of offers and to
an
counteragreement.
offers.
All
the
No contract essential
yet, thus no requisites
binding
concur
effect
of
b. To formation or perfection
• Consensual – consent is sufficient to
perfect the contract [Art. 1315, CC]
• Real – delivery, actual or constructive,
is required in addition to consent [Art.
1316, CC]
• Solemn or formal – where special
formalities are required for perfection
[Art. 1356, CC]
d.
Preparation
a. To their subject matter
• Things, e.g. sale, deposit, pledge
• Services, e.g. agency, lease
services
Consummation
Parties
perform
their
obligations
under the
contract
c. To relation to other contracts
• Principal – may exist alone; e.g. lease
• Accessory – depends on another
contract for its existence, e.g. guaranty
• Preparatory – a preliminary step
towards the celebration of a
subsequent contract; e.g. agency
d. To form
• Common or informal – may be
entered into in whatever form as long
as there is consent, object and cause
• Special or formal – required by law to
be in a certain specified form
e. To cause/by equivalence of prestations
• Onerous – there is an exchange of
correlative values, e. g. sale
• Remuneratory
–
where
the
outstanding prestation is premised
upon services or benefits already
received
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•
f.
CIVIL LAW
OBLIGATIONS AND CONTRACTS
Gratuitous – where no correlative
prestation is received by one party, e.g.
donation, commodatum
To purpose
• Transfer of ownership, e.g. sale
• Conveyance of Use, e.g. commodatum
• Rendition of Service, e.g. agency
g. To time of fulfillment
• Executed – where the obligations are
fulfilled at the time the contract is
entered into
• Executory – where fulfillment of
obligations does not take place at the
time the contract is made
Book, by the rules governing the most
analogous nominate contracts, and by the
customs of the place.
3. Essential requisites
Art 1318, CC. There is no contract unless
the following requisites concur:
a. Consent of the contracting parties;
b. Object certain which is the subject
matter of the contract
c. Cause of the obligation which is
established
a. Consent
h. To risk
• Commutative
–
fulfillment
is
predetermined in advance
• Aleatory – fulfillment is dependent
upon chance
i.
j.
To the nature of the vinculum produced
• Unilateral – only one party is bound by
the prestation, e.g. commodatum
• Bilateral – both parties are bound by
reciprocal prestations, e.g. sale
o All contracts are bilateral in the
consent, but not all are bilateral
in effects.
To their designation/name
• Nominate – where the law gives the
contract a special designation or
particular name; e.g. deposit
• Innominate – where the contract has
no special name
o Do ut des (I give so that you
may give)
o Do ut facias (I give so that you
may do)
o Facio ut facias (I do so that you
may do)
o Facio ut des (I do so that you
may give)
Art. 1307, CC. Innominate contracts shall be
regulated by the stipulations of the parties,
by the provisions of Titles I and II of this
The meeting of the minds of the parties on
the subject matter and cause of the contract.
The facts that the signatures of the witnesses
and the notary public were forged does not
negate the existence of the contract for as
long as the parties consented to it. The
signatures of the witnesses and the notary
public are necessary simply to make the
contract binding on the third person. [Soriano
v. Soriano, G.R. No. 130348 (2007)]
Requisites for valid consent
a. It must be manifested by the concurrence
of the offer and acceptance [Arts. 13191326, CC].
b. The contracting parties must possess the
necessary legal capacity [Arts. 1327-1329,
CC].
c. It must be intelligent, free, spontaneous,
and real (not vitiated) [Arts. 1330-1346,
CC].
CONCURRENCE
ACCEPTANCE
OF
OFFER
AND
A contract is perfected by mere consent. From
the moment of a meeting of the offer and the
acceptance upon the object and the cause
that would constitute the contract, consent
arises. However, “the offer must be certain”
and “the acceptance seasonable and
absolute; if qualified, the acceptance would
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merely constitute a counteroffer. [Insular Life v.
Asset Builders Corp., G.R. No. 147410 (2004)]
OFFER
A unilateral proposition which one party makes
to the other for the celebration of the contract.
[Tolentino]
Invitation to make offers (Advertisements)
a. Business Advertisements of things for
sale are NOT definite offers, just invitations
to make an offer, UNLESS the contrary
appears [Art. 1325, CC].
b. Advertisement for bidders are invitations
to make proposals, the advertiser is NOT
bound to accept the lowest or highest
bid; UNLESS the contrary appears. The
bidder is the offeror [Art. 1326, CC].
The Terms and Conditions of the bidding
disseminated…
constitutes
the
"advertisement" to bid on the project. The
bid proposals or quotations submitted by
the prospective suppliers… are the offers.
The reply… constitutes the acceptance or
rejection of the respective offers. [Jardine
Davies v. CA, G.R. No. 128066 (2000)]
c. Statements of intention: no contract
results even if accepted.
In a letter informing another that the sender
was “in a position and is willing to entertain”
the purchase of a yacht under some terms,
the word “entertain” applied to an act does
not mean the resolution to perform said act,
but simply a position to deliberate for
deciding to perform or not to perform said
act. It was merely a position to deliberate
whether or not he would purchase the
yacht and invitation to a proposal being
made to him, which might be accepted by
him or not. [Rosenstock v. Burke, G.R. No.
20732 (1924)]
Termination of Offer
a. Rejection by the offeree
b. Incapacity (death, civil interdiction,
insanity, or insolvency) of the offeror or
offeree before acceptance is conveyed
[Art. 1323, CC]
c. Submission of a counter-offer
CIVIL LAW
d. Lapse of the time stated in the offer
without acceptance being conveyed
e. Revocation of the offer before learning of
acceptance
f. Supervening illegality before acceptance
[Reyes and Puno]
ACCEPTANCE
To produce a contract, the acceptance must
not qualify the terms of the offer. It is necessary
that the acceptance be unequivocal and
unconditional, and the acceptance and the
proposition shall be without any variation
whatsoever; and any modification or variation
from the terms of the offer annuls the latter and
frees the offeror. [Tolentino]
Acceptance must be absolute, unconditional,
and without variance of any sort from the offer.
It must also be made known to the offeror.
An acceptance not made in the manner
prescribed is not effective but constitutes a
counter-offer. [Malbarosa v. CA, G.R. No.
125761 (2003)]
Requisites of Acceptance
a. Unqualified and unconditional, i.e. it
must conform with all the terms of the offer,
otherwise it is a counter-offer [Art. 1319,
CC]
b. Directed and communicated to the offeror
and learned by him [Art. 1319, CC] If made
through an agent, the offer is accepted
from the time the acceptance is
communicated to such agent. [Art. 1322,
CC]
c. Made within the proper time
d. May be express/implied, but is not
presumed [Art 1320, CC]. Time, place and
manner of acceptance may be fixed by
offeror [Art 1321, CC].
Cognition Theory
Acceptance made by letter or telegram does
not bind the offeror except from the time it
came to his knowledge. The contract, in such a
case, is presumed to have been entered into in
the place where the offer was made. [par. 2,
Art. 1319, CC]
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Option Contract
A preparatory contract in which one party
grants to the other, for a fixed period, the option
to decide whether or not to enter into a principal
contract. [Art. 1324, CC]
With
consideration
Without
consideration
Offeror
cannot Offeror may withdraw
unilaterally
by
communicating
withdraw his offer.
withdrawal to the
offeree
before
acceptance.
Art. 1324, CC provides the General Rule
regarding offer and acceptance: when the
offerer gives to the offeree a certain period to
accept, "the offer may be withdrawn at any
time before acceptance" except when the
option is founded upon consideration.
However, Art. 1479, CC modifies the General
Rule, which applies to "a promise to buy and
sell" specifically. This rule requires that a
promise to sell to be valid and binding must be
supported by a consideration distinct from the
price. Otherwise, the option can still be
withdrawn, even if accepted. [Tuazon v. Del
Rosario-Suarez, G.R. No. 168325 (2010)]
NECESSARY
LEGAL
CAPACITY
There are two types of void contracts:
a. Those where one of the essential
requisites of a valid contract as provided
for by Article 1318 of the Civil Code is
totally wanting; and
b. Those declared to be so under Article
1409 of the Civil Code. By contrast, a
voidable or annullable contract is one in
which the essential requisites for validity
under Article 1318 are present, but vitiated
by mistake, violence, intimidation, undue
influence, or fraud [Art. 1330, CC].
Persons incapacitated to give consent [Art.
1327, CC]
a. Minors, EXCEPT:
CIVIL LAW
1. Where necessaries are sold or
delivered [Art 1489, CC]
2. Where
the
minor
actively
misrepresents his age (estoppel)
3. When it involves a natural obligation
and such obligation is fulfilled
voluntarily by the minor [Art. 1425-27,
CC]
4. Contracts entered into by guardians
or legal representatives
5. When upon reaching the age of
majority they ratify the same
6. When a minor opens a savings
account without the assistance of his
parents, provided that the minor is at
least 7 years old and can read and
write [PD 1734].
b. Insane or demented persons, UNLESS
they contract during a lucid interval. [Art.
1328, CC]
c. Deaf-mutes who do not know how to read
AND write.
Minors were held in estoppel through active
misrepresentation. [Mercado v. Espiritu, G.R.
No. L-11872 (1917)]
There is no estoppel if the minority was
known by the other party, and there was no
active misrepresentation on the part of the
minors. [Bambalan v. Maramba, G.R. No. L27710 (1928)]
Persons Disqualified to Contract
a. Those under civil interdiction for
transactions inter vivos [Art. 34, RPC]
b. Undischarged insolvents
[Sec. 24,
Insolvency Law]
c. Husband and wife cannot donate to each
other [Art. 123, FC], nor sell to each other
if the marriage is under the regime of
Absolute Community of Property [Art.
1490, CC]
d. The ff. cannot purchase, whether in public
or private sale [Art. 1491, CC]:
1. Guardian - Property of the ward
2. Agent - Property of the Principal
3. Executors and Administrators Property under administration
4. Public Officers - Property under their
administration
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5. Justices, judges, prosecutors, clerks of
court, lawyers - property attached in
litigation
Incapacity
to
Give
Consent
Disqualification to Contract
Incapacity to Give
Consent
vs.
Disqualification to
Contract
Restrains the exercise Restrains the very
of the right to contract right itself
Based
upon Based upon public
subjective
policy and morality
circumstances
of
certain persons
Voidable
Void
INTELLIGENT, FREE, SPONTANEOUS, AND
REAL (NOT VITIATED)
Vices of Consent
(makes
voidable) [Art. 1330, CC]
1. Mistake
2. Intimidation
3. Violence
4. Undue influence
5. Fraud
contract
MISTAKE
“A misunderstanding of the meaning or
implication of something” or a “wrong action or
statement proceeding from a faulty judgment”.
[Domingo Realty v. CA]
Inadvertent and excusable disregard of a
circumstance material to the contract [Reyes
and Puno]
In order that mistake may invalidate consent, it
should refer to the substance of the thing
which is the object of the contract, or to those
conditions which have principally moved one or
both parties to enter into the contract.
[Art.1331, CC]
CIVIL LAW
Requisites
a. The error must be substantial regarding:
1. The object of the contract (error in re)
which may be:
• Mistake as to the identity of the
thing (error in corpore)
• Mistake as to the substance of the
thing (error in substantia)
• Mistake as to the conditions of the
thing provided, or
• Mistake as to the quantity of the
thing (error in quantitate)
2. The condition which primarily moved
or induced one or both parties to enter
the contract.
3. Identity or qualifications of one of the
parties (error in persona), but only if
such was the principal cause of the
contract.
b. The error must be excusable
c. The error must be a mistake of fact and
not of law.
Mistake which vitiates consent is an error of
fact, and not an error of law. Ignorance of the
law excuses no one from compliance therewith
[Art. 3, CC]; but the modern tendency is to
allow an excusable mistake of law to be
invoked as vitiating consent. [Tolentino]
See also Art. 526, CC on Possession: Mistake
upon a doubtful or difficult question of law may
be the basis of good faith.
Ignorantia Facti Excusat vs. Ignorantia
Legis Neminem Excusat
Mistake of Fact
Mistake of Law
One or both
contracting
parties believe
that a fact exists
when in reality it
does not, or vice
versa
One or both parties arrive
at
an
erroneous
conclusion
on
the
interpretation
of
a
question of law or its legal
effects
Vitiates consent
Does not vitiate consent
EXCEPT when it involves
mutual error as to the
effect of an agreement
There is no mistake if the party alleging it
knew the doubt, contingency or risk affecting
the object of the contract. [Art. 1333, CC]
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when the real purpose is
frustrated.
Note: The obligation to show that the terms of
the contract had been fully explained to the
party who is unable to read or understand the
language of the contract, when fraud or
mistake is alleged, devolves on the party
seeking to enforce it. [Art. 1332, CC]
INTIMIDATION
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. [Art. 1335, CC]
To determine the degree of intimidation, the
age, sex and condition of the person shall be
borne in mind. [Art. 1335, CC]
Requisites
a. One party is compelled to give his consent
by a reasonable and well-grounded fear of
an evil;
b. The evil must be imminent and grave;
c. The evil must be upon his person or
property,
spouse,
descendants
or
ascendants;
d. The evil must be unjust.
VIOLENCE
Serious or irresistible force used to wrest
consent [Art. 1335, CC]
Violence
Intimidation
Serious
or Reasonable and wellirresistible force
grounded fear of an
imminent and grave
evil upon his person or
property, or person or
property of his spouse,
descendants,
or
ascendants
Physical
compulsion
Moral compulsion
CIVIL LAW
External
or Internal or induces the
prevents the will to performance of an act
manifest itself
Determined by 1) 1) Age 2) Sex 3)
Intention 2) Means Condition
employed
1) Physical force
employed must be
irresistible, or of
such degree that
victim has no other
recourse under the
circumstances but
to submit
1) Intimidation must be
the determining cause
of the contract OR
must have caused the
consent to be given
2) Threatened act
must be unjust or
unlawful
2) Such force is the
determining cause 3) The threat must be
in giving of consent real and serious
4)
Produces
a
reasonable and wellgrounded fear from the
fact the person has the
necessary means or
ability
to
inflict
threatened injury
Note: Violence or intimidation shall annul the
obligation, although it may have been
employed by a third person who did not take
part in the contract. [Art. 1336, CC]
UNDUE INFLUENCE
When a person takes improper advantage of
his power over the will of another, depriving the
latter of a reasonable freedom of choice. [Art.
1337, CC]
Requisites
a. Improper advantage
b. Power over the will of another
c. Deprivation of the latter’s will of a
reasonable freedom of choice
Circumstances to consider
a. Relationship of the parties (family, spiritual,
confidential etc.)
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b. That the person unduly influenced was
suffering from mental weakness, ignorance
or in financial distress [Art.1337, CC]
1. Usual exaggerations in trade, when the
other party had an opportunity to know
the facts [Art. 1340, CC]
2. A mere expression of an opinion
UNLESS made by an expert and the
other party has relied on the former’s
special knowledge [Art. 1341, CC]
3. Misrepresentation made in good faith
[Art. 1343, CC]
Note: By analogy, undue influence employed
by a third person may annul the contract.
Test of Undue Influence: Whether or not the
influence exerted has so overpowered or
subjugates the mind of a contracting party
as to destroy his free agency, making him
express the will of another rather than his own.
[Coso-Fernandez v. Deza, G.R. No. L-16763
(1921)]
Intimidation
CIVIL LAW
OBLIGATIONS AND CONTRACTS
Undue Influence
Must be an unlawful act There need not
or unjust act which is be an unjust or
threatened and which unlawful act.
causes the consent to
be given
FRAUD
When, through insidious words or
machinations of one of the contracting
parties, the other is induced to enter into a
contract which, without them, he would not
have agreed to. [Art. 1338, CC]
In order that fraud may make a contract
voidable, it should be serious and should not
have been employed by both contracting
parties. [Art. 1344, CC]
Requisites:
a. It must be made in bad faith
b. One party must have employed fraud or
insidious words or machinations
c. Damage or injury resulted to the other
party
d. It must have been serious
e. It induced the other party to enter into a
contract
f. It must have been employed by one
contracting party upon the other and not
employed by both contracting parties nor
by third persons.
Determining the existence of Fraud
a. Not Fraudulent
Note: Not fraudulent,
constitute error
but
this
may
b. Fraudulent
Failure to disclose facts, when there is a
duty to reveal them, as when the parties
are bound by confidential relations [Art.
1339, CC]
Dolo Causante vs. Dolo Incidente
Dolo Causante
(Causal Fraud)
Dolo Incidente
(Incidental Fraud)
Refers
to
those
deceptions
or
misrepresentations of
a serious character
employed by one
party and without
which the other party
would
not
have
entered
into
the
contract
Refers to those
deceptions
or
misrepresentations
which
are
not
serious in character
and without which
the
other
party
would have still
entered into the
contract [Art. 1344,
CC]
Determines or is the
essential cause of the
consent [Tankeh v.
DBP,
G.R.
No.
171428 (2013)]
Refers only to some
particular
or
accident
of
the
obligation [Tankeh
v. DBP, G.R. No.
171428 (2013)]
Renders the contract Renders the party
voidable
liable for damages
Fraud to vitiate consent must fulfill two
conditions
1. The fraud must be dolo causante or it
must be fraud in obtaining the consent
of the party. The deceit must be serious.
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The fraud is serious when it is sufficient to
impress, or to lead an ordinarily prudent
person into error; that which cannot
deceive a prudent person cannot be a
ground for nullity. The circumstances of
each case should be considered, taking
into account the personal conditions of the
victim.
2. The fraud must be proven by clear and
convincing evidence and not merely by a
preponderance thereof. [ECE Realty v.
Mandap, G.R. No. 196182 (2014)]
Note: However, fraud in its general sense
(false representation of a fact) coming about in
the consummation stage of the sale, as
opposed to the negotiation and perfection
stages, entitles the aggrieved party to the
rescission of the sales contract. [Sps. Tongson
v. Emergency Pawnshop, GR. No. 167874
(2010)]
SIMULATION OF CONTRACTS
Simulation is the declaration of a fictitious
will, deliberately made by agreement of the
parties, in order to produce, for the purposes
of deception, the appearances of a judicial act
which does not exist or is different with that
which was really executed [Nautica Canning
Corporation v. Yumul, G.R. No. 164588
(2005)]. There exists an instrument, but there
is no contract.
Requisites of Simulation
a. An outward declaration of will different from
the will of the parties
b. The false appearance must have been
intended by mutual agreement
c. The purpose is to deceive third persons
[Penalosa v. Santos, G.R. No. 133749
(2001)]
The primary consideration in determining the
true nature of a contract is the intention of the
parties. Such intention is determined not only
from the express terms of their agreement, but
also from the contemporaneous and
subsequent acts of the parties. [Spouses
Lopez v. Sps. Lopez, G.R. No. 161925 (2009)]
CIVIL LAW
Absolute vs. Relative Simulation [Art. 1345,
CC]
Absolute
Simulation
(Simulados)
Relative Simulation
(Disimulados)
The parties have The parties conceal
no intention to their true agreement.
be bound at all
Fictitious
contract
Disguised contract
Void. (Because
there
is
an
absolute lack of
cause)
[Art.
1346, CC]
Bound to their real
agreement, so long as it
does not prejudice a
third person and is not
contrary to law, morals,
good customs, public
order or public policy.
[Art. 1346, CC]
If the parties merely state a false cause in the
contract to conceal their real agreement, the
contract is relatively simulated and the parties
are still bound by their real agreement.
Hence, where the essential requisites of a
contract are present and the simulation refers
only to the content or terms of the contract, the
agreement is absolutely binding and
enforceable between the parties and their
successors in interest. [Valerio v. Refresca,
G.R. No. 163687 (2006)]
b. Object of Contracts
The subject matter; the thing, right or service
which is the subject matter of the obligation
arising from the contract. [Tolentino]
Requisites
1. Within the commerce of men [Art. 1347,
CC]
2. Not legally or physically impossible [Art.
1348, CC]
3. In existence or capable of coming into
existence [See Arts. 1461, 1493, 1495, CC]
4. Determinate or determinable, without the
need of a new contract between the parties
[Arts. 1349 and par. 2, 1460, CC]
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What may be the object of a contract
General Rule: All things or services may be
the object of contracts, which includes future
things [Art. 1347, CC]
[JLT Agro v. Balansag, G.R. No. 141882
(2005)]
In order that a thing, right, or service may be
the object of a contract, it should be in
existence at the moment of the celebration
of the contract, or at least, it can exist
subsequently or in the future.
The essential and impelling reason why a
party assumes an obligation.
A showing of mere inconvenience, unexpected
impediments, or increased expenses is not
enough to relieve a party of the obligation. [De
Castro v. Longa, G.R. No L-2152-53 (1951)]
A future thing may be the object of a contract.
Such contract may be interpreted as a:
a. Conditional contract, where its efficacy
should depend upon the future existence of
the thing.
b. Aleatory contract, where one of the
contracting parties assumes the risk that
the thing will never come into existence,
e.g. insurance. [Tolentino]
Except [Art. 1347-1349, CC]
a. Things which are outside the commerce of
men
b. Intransmissible rights
c. Future inheritance except in cases
authorized by law
Requisites
1. The succession has not yet been opened;
2. The object of the contract forms part of the
inheritance; and
3. The promissor has an expectancy of a right
which is purely hereditary in nature
d. Services that are contrary to law, morals,
good customs, public order, or public policy
e. Impossible things or services
f. Objects which are indeterminable as to
their kind, the genus should be expressed
c. Cause of Contracts
Motive, on the other hand, is the particular
reason for a contracting party which does not
affect the other. [Manresa]
Requisites
a. Exists at the time the contract is entered
into [Par. 3, Art. 1409, CC]
b. Lawful [Art. 1352, CC]
c. True or real [Art. 1353, CC]
Cause vs. Object
Cause
Object
As to Remuneration
The service or The thing which is given
benefit which is in remuneration
remunerated
As to Donation
The liberality of The thing which is given
the donor or or donated
benefactor
As to the Thing
Prestation
or The thing or service itself
promise of a thing
or service by the
other
As to Contracting Parties
Different
with May be the same for
respect to each both parties
part
EXCEPTIONS TO THE EXCEPTION
b. In case of marriage settlements under Art.
130, CC
c. In case of partition of properties inter vivos
by the deceased under Art. 1080, NCC
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Distinguished from Motive
Cause
Proximate
reason
contract
Motive
Remote reason for the
for contract
Objective
or Psychological
and
juridical reason
purely personal reason
Always the same Differs
for
for
each contracting party
contracting party
Contrary
to
law,
morals,
good customs,
public policy
and
public
order (unlawful
cause)
each
Cause in contracts [Art. 1350]
Remuneratory Pure
Contracts
Beneficence
The
undertaking
or
the
promise of
the thing or
service by
the
other
party
The service or
benefit which
is
remunerated
Mere
liberality of
the
benefactor
Effect of Lack of Cause, Unlawful Cause,
False Cause and Lesion [Arts. 1352 – 1355]
Cause
Effect
Lack of Cause
– absence or
total lack of
cause
VOID.
Note: Cause must exist at
the time of the perfection
of the contract; it need not
exist later.
VOID.
If parts of a contract are
illegal but the rest are
supported by lawful
cause, claimant of such
has the burden of
showing proof; otherwise,
the whole contract is
VOID.
Contracts with illegal
cause may still produce
effect in certain cases
where parties are not of
equal guilt:
(1) innocent party cannot
be compelled to perform
his obligation and he may
recover what has already
been given;
(2) if both parties are
guilty, neither can sue the
other, the law leaving
them as they are (in pari
delicto, Art. 1411, CC).
Illegality affects Illegality does not affect
existence
or existence or validity of
validity of the contract
contract
Onerous
Contracts
CIVIL LAW
Falsity
of
cause – cause
is stated but is
untrue
REVOCABLE/VOIDABLE
Parties are given a
chance to show that a
cause really exists, and
that said cause is true and
lawful.
Lesion
or
inadequacy of
cause – cause
is
not
proportionate
to object
General
Rule:
NO
EFFECT.
Exception: Inadequacy of
cause shall invalidate the
contract when:
(1)
there is fraud,
mistake, undue influence
(2)
when
parties
intended a donation
Note: Inadequacy of cause may be a badge of
fraud.
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OBLIGATIONS AND CONTRACTS
instrument.
Otherwise,
the
contract of partnership
is void. [Art. 1773, CC]
B. FORMALITY
General rule: No form necessary for contracts
provided that all the essential requisites for
their validity are present [Par. 1, Art. 1356,
CC]
Exception:
1. When the law requires that a contract be in
some form in order that it may be valid [par.
2, Art. 1356, CC]
2. When the law requires that a contract be
proved in a certain way to be enforceable
(Statute of Frauds) [par. 2, Art. 1356, CC]
3. When the law requires a contract to be in
some form for convenience, or to be
effective against third parties [Arts. 1357
and 1358, CC]
Kinds of Formalities Required by Law
1. For the Validity of Contracts (Ad
Essentia /Ad Solemnitatem/ Solemn
Contracts)
Formal or Solemn Special
Form
Contract
Required by Law
Donation
Immovables
of Must be in a public
instrument,
specifying therein the
property donated and
the value of the
charges which the
donee must satisfy.
[Art. 749, CC]
Donation
of
movables
when
the value of the
personal property
donated exceeds
P5,000
Must be in writing;
otherwise,
the
donation is void. [Art.
748, CC]
Partnerships
where immovable
property
is
contributed
An inventory of said
property must be
made, signed by the
parties and attached
to
the
public
Contract
antichresis
of The amount of the
principal
and
the
interest, if any, must
be
specified
in
writing;
otherwise,
the
contract
of
antichresis shall be
void [Art. 2134, CC]
Agency to sell Authority of the agent
land or any interest must be in writing;
therein
otherwise, the sale
shall void [Art. 1874,
CC]
Stipulation to pay Must be expressly
interest on loans, made in writing [Art.
interest for the use 1956, CC]
of money
Stipulation limiting
common carrier’s
duty
of
extraordinary
diligence
to
ordinary diligence
Must be (1) in writing,
signed by the shipper
or
owner;
(2)
supported
by
a
valuable
consideration; and
(3) reasonable, just,
and not contrary to
public policy [Art.
1744, CC]
Transfer of large Requires transfer of
cattle
the certificate of
registration
[Sec.
523,
Administrative
Code]
2. For the Purpose of Proving the
Existence of the Contract (Ad
Probationem/ Statute of Frauds)
The
following
UNENFORCEABLE,
ratified:
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contracts
UNLESS they
are
are
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OBLIGATIONS AND CONTRACTS
1. Those entered into in the name of
another person by one who has
been:
i.
given no authority
ii.
or legal representation,
iii.
or who has acted beyond his
powers;
2. Those that do not comply with the
Statute of Frauds
3. Those where both parties are
incapable of giving consent to a
contract. [Art. 1403, CC]
Statute of Frauds
An agreement as to the following shall be
unenforceable UNLESS:
1. The agreement, or some note or
memorandum, thereof, be in writing,
and
2. Subscribed by the party charged, or by
his agent; evidence, therefore, of the
agreement cannot be received without
the writing, or a secondary evidence of
its contents. [Art. 1403, CC]
Agreements under the Statute of Frauds
[Art. 1403, CC]:
1. An agreement that by its terms is not
to be performed within a year from
the making thereof;
2. A special promise to answer for the
debt, default, or miscarriage of
another;
3. An agreement made in consideration
of marriage, other than a mutual
promise to marry;
4. An agreement for the sale of goods,
chattels or things in action, at a
price not less than five hundred
pesos, unless the buyer accept and
receive part of such goods and
chattels, or the evidences, or some of
them, of such things in action or pay at
the time some part of the purchase
money; but when a sale is made by
auction and entry is made by the
auctioneer in his sales book, at the time
of the sale, of the amount and kind of
property sold, terms of sale, price,
names of the purchasers and person
CIVIL LAW
on whose account the sale is made, it
is a sufficient memorandum;
5. An agreement of the leasing for a
longer period than one year, or for
the sale of real property or of an
interest therein;
6. A representation as to the credit of a
third person
This article speaks of contracts that cannot be
proven except by written note or memorandum,
unless the party charged waives the objection.
[Rule 123, Sec. 21, Rules of Court]
This article applies to executory contracts
only. [Almirol v. Monserrat, G.R. No. 23717
(1925)]
3. For the Effectivity of the Contract
Against Third Persons
If the law requires a document or other
special form (Art. 1357, CC)
1. The contracting parties may compel
each other to observe that form,
once the contract has been perfected.
2. This right may be exercised
simultaneously with the action upon the
contract.
Art. 1358, CC which requires the embodiment
of certain contacts in a public instrument, is
only for convenience, and registration of the
instrument only adversely affects third parties.
Formal requirements are, therefore, for the
benefit of third parties. Non-compliance
therewith does not adversely affect the validity
of the contract nor the contractual rights and
obligations of the parties thereunder. [Fule v.
CA, G.R. No. 112212 (1998)
Art. 1358, CC. The following must appear in
a public document:
1. Acts and contracts which have for their
object the creation, transmission,
modification or extinguishment of real
rights over immovable property; sales of
real property or of an interest therein as
governed by Articles 1403, No. 2, and
1405;
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2. The cession, repudiation or renunciation
of hereditary rights or of those of the
conjugal partnership of gains;
3. The power to administer property, or any
other power which has for its object an
act appearing or which should appear in
a public document, or should prejudice a
third person;
4. The cession of actions or rights
proceeding from an act appearing in a
public document.
All other contracts where the amount
involved exceeds five hundred pesos must
appear in writing, even a private one. But
sales of goods, chattels or things in action
are governed by Articles, 1403, No. 2 and
1405.
Enumerated contracts in Art. 1358, CC are
valid even when not reduced into writing,
although parties may have recourse under Art.
1357, CC to compel execution of the writing,
except in the following cases:
1. Solemn Contracts (action under Art.
1357, CC is not available at all)
2. Real Contracts (action under Art.
1357, CC is available if there is
consent, subject matter, cause, and
delivery)
3. Contracts under the Statutes of
Fraud (remedy under Art. 1357, CC is
applicable only if the defense of the
Statute is waived expressly or impliedly
by the party charged
Actions under Art. 1357, CC may be exercised
simultaneously with (i.e. need not be separate
nor need it precede) the action to enforce the
contract, although questions of form must be
decided first.
CIVIL LAW
C. REFORMATION OF
INSTRUMENTS
Reformation – remedy in equity by means of
which a written instrument is made or
construed so as to express or conform to the
real intention of the parties when some error or
mistake has been committed [Reyes and Puno]
Requisites [Art. 1359, CC]:
1. There must be a meeting of the minds of
the contracting parties
2. Their true intention is not expressed in
the instrument;
3. Such failure to express their true intention
is due to mistake, fraud, inequitable
conduct, or accident; and
4. There is clear and convincing proof of
mistake, fraud, inequitable conduct, or
accident.
The appellant’s complaint states no cause of
action, for it fails to allege that the instrument to
be reformed does not express the real
agreement or intention of the parties. Such
allegation is essential since the object sought
in an action for reformation is to make an
instrument conform to the real agreement
or intention of the parties. Moreover, courts
do not reform instruments merely for the sake
of reforming them, but only to enable some
party to assert right under them as reformed.
[Garcia v. Bisaya, G.R. No. L-8060 (1955)].
Note: If mistake, fraud, inequitable conduct, or
accident has prevented a meeting of the minds
of the parties, the proper remedy is not
reformation of the instrument but annulment of
the contract [par. 2, Art. 1359, CC]
The action for reformation of instrument should
not be confused with the action for annulment
of contract. [Veluz v. Veluz, G.R. No. L-23261
(1968)]
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Reformation v. Annulment [Veluz v. Veluz,
supra]
Reformation of
Instrument
Annulment
Presupposes a valid,
existing contract, in
which there had been
a meeting of the minds
of the parties but the
instrument drawn up
and signed by them
does not correctly
express the terms of
their agreement.
Presupposes
a
defective contract
in which the minds
of the parties did
not meet, or the
consent of one was
vitiated.
Equity of reformation is
ordinarily limited to
written
agreements,
and its purpose is to
establish
and
perpetuate the true
agreement.
Intended to declare
the
inefficiency
which the contract
already carries in
itself and to render
the
contract
inefficacious.
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3. Cases Where Reformation is
Proper
a. Mistake
The mistake should be of fact generally,
and not of law [BPI v Fidelity and Surety
Co., G.R. No. L-26743 (1927)]
Mutual
Mutual mistake of parties that causes
failure to disclose real agreement [Art.
1361, CC]
Unilateral
1. One party was mistaken, while
the other acted fraudulently [Art.
1362, CC]
2. One party was mistaken, while
the other knew or believed that the
instrument did not state their real
agreement, but concealed it from
the former [Art. 1363, CC]
b. Fraud
1. Burden of Proof
The presumption is that an instrument sets out
the true agreement of the parties and that it
was executed for valuable consideration. Thus,
when there is some error or mistake in the
contract, the onus probandi is upon the party
who insists that the contract should be
reformed.
While intentions involve a state of mind,
subsequent and contemporaneous acts of
the parties as well as the evidentiary facts as
proved and admitted can be reflective of one’s
intention. [Multi-Ventures Capital Management
Corporation v Stalwart, G.R. No. 157439
(2007)]
2. Effect of Reformation
In granting reformation, the remedy in equity is
not making a new contract for the parties, but
establishing and perpetuating the real
contract between the parties which, under the
technical rules of law, could not be enforced but
for such reformation. [Quiros vs Arjona, G.R.
No. 158901 (2004)]
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Active
If one party was mistaken and the other
acted fraudulently in such a way that the
instrument does not show their true
intention [Art. 1362, CC]
Passive
When one party was mistaken and the
other knew or believed that the
instrument did not state their real
agreement [Art. 1363, CC]
c. Inequitable conduct
If one party was mistaken and the other
acted fraudulently or inequitably in such a
way that the instrument does not show their
true intention [Art. 1362, CC]
d. Accident
When through the ignorance, lack of skill,
negligence or bad faith on the part of the
person drafting the instrument or of the
clerk or typist, the instrument does not
express the true intention of the parties
[Art. 1364, CC]
U.P. LAW BOC
OBLIGATIONS AND CONTRACTS
subsequently ask for its reformation
[Art. 1367, CC]
No fraud exists in the sense that neither of
the parties took part therein.
e. Severe Pacto de Retro / Relative
Simulation
Art. 1365, CC. If two parties agree upon the
mortgage or pledge of real or personal
property, but the instrument states that the
property is sold absolutely or with a right of
repurchase, reformation of the instrument is
proper.
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6. Prescriptive
Reformation
Period
for
The prescriptive period for actions based upon
a written contract and for reformation of an
instrument is ten (10) years under Article 1144
of the Civil Code. [Rosello-Bentir v. Leanda,
G.R. No. 128991 (2000)]
4. Who May Ask for Reformation
a. When through mistake of the parties
b. Either party or his successors in
interest, if the mistake was mutual;
otherwise.
c. Upon petition of the injured party, or his
heirs and assigns [Art. 1368, CC]
d. When through the ignorance, lack of
skill, negligence or bad faith on the part
of the person drafting the instrument or
of the clerk or typist, Courts may order
that the instrument be reformed [Art.
1364, CC]
5. Cases Where Reformation is
Not Proper
1. Simple donations inter vivos—
wherein no condition is imposed—
because donation is an act of liberality
[Art. 725, CC] and cannot be
compelled;
2. Wills—no reformation before the
testator dies because the making of a
will is strictly personal [Art. 784, CC], a
free act [Art. 839, CC], and essentially
revocable [Art. 828, CC];
3. When the real agreement is void—
because there is nothing to reform. The
power of the court to reform is not for
accomplishing a vain thing [Tolentino].
4. Implied Ratification/Estoppel: the
party who has brought an action to
enforce
the
instrument
cannot
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D. INTERPRETATION OF CONTRACTS
or
terms which he voluntarily consented to, or
impose on him those which he did not.
[Bautista v. CA, G.R. No. 1263655 (2000)]
a. Cardinal/First
Rule
of
Interpretation – Literal Meaning
Governs
b. Rule if Language Contrary to
Intent – Intent over Literal
Interpretation
If the terms of a contract are clear and leave no
doubt upon the intention of the contracting
parties, the literal meaning of its stipulations
shall control. [Art. 1370, par. 1, CC]
If the words appear to be contrary to the
evident intention of the parties, the latter
shall prevail over the former. [Art. 1370, par. 2,
CC]
Application
Where the language of a contract is plain and
unambiguous, its meaning should be
determined without reference to extrinsic facts
or aids. The intention of the parties must be
gathered from that language, and from that
language alone. Courts cannot make for the
parties better or more equitable agreements
than they themselves have been satisfied to
make, or rewrite contracts because they
operate harshly or inequitably as to one of the
parties, or alter them for the benefit of one party
and to the detriment of the other, or by
construction, relieve one of the parties from the
The cardinal test is the intention of the parties,
to be derived from the terms/language of the
contract.
1.
Primacy of
Intention
Language
In order to judge the intention of the contracting
parties,
their
contemporaneous
and
subsequent acts shall be principally
considered. [Art. 1371, CC]
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c. Exclusion to Rules – Distinct
and Different Cases
Trigger: Words which may have different
significations.
However general the terms of a contract may
be, they shall not be understood to
comprehend things that are distinct and
cases that are different from those upon
which the parties intended to agree. [Art.
1372, CC]
Effect: They shall be understood in what is
most keeping with the contract’s nature and
object.
d. Stipulation
Effectual
Rendered
to
be
If some stipulation of any contract should
admit of several meanings, it shall be
understood as bearing that import which is
most adequate to render it effectual. [Art. 1373,
CC]
e. Stipulations
Together
Interpreted
The various stipulations of a contract shall be
interpreted together, attributing to the doubtful
ones that sense which may result from all of
them taken jointly. [Art. 1374, CC]
Difference between Art. 1373 and Art. 1374
Art. 1373
Art. 1374
Provides that which of the
several meanings of a
stipulation
would
most
adequately render the contract
effectual would be adopted.
Provides that the various
stipulations of a contract would
be interpreted together, and
attributing
to
doubtful
stipulations the sense resulting
from the joint interpretation.
g. Interpretation against
Causing Obscurity
Party
The interpretation of obscure words or
stipulations in a contract shall not favor the
party who caused the obscurity. [Art. 1377, CC]
Interpretation of Contracts of Adhesion
A contract of adhesion is just as binding as
ordinary contracts. Contracts of adhesion are
not invalid per se; they are not entirely
prohibited. The one who adheres to the
contract is in reality free to reject it entirely; if
he adheres, he gives his consent.
While ambiguities in a contract of adhesion
are to be construed against the party that
prepared the same, this rule applies only if
the stipulations in such contract are
obscure or ambiguous. If the terms thereof
are clear and leave no doubt upon the intention
of the contracting parties, the literal meaning of
its stipulations shall control. In the latter case,
there would be no need for construction.
[RCBC v. CA G.R. No. 133107(1999)]
h. Nomenclature not Decisive of
the Character
A contract is what the law defines it to be, and
not what it is called by the contracting parties.
The Title of the contract does not necessarily
determine its nature. [Tolentino]
i. Separability Clause
f. Interpretation according to
Nature and Object of Contract
Words
which
may
have
different
significations shall be understood in that
which is most in keeping with the nature and
object of the contract. [Art. 1375, CC]
Another fundamental rule in the interpretation
of contracts is that the terms, clauses and
conditions contrary to law, morals and
public order should be separated from the
valid and legal contract and when such
separation can be made because they are
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independent of the valid contract. [Kasilag v.
Rodriguez, G.R. No. 46623 (1939)]
Exceptions:
a. Where the statute expressly or by
necessary implication declares the entire
contract void; or
b. Where the terms, clauses, and conditions,
by an established connection or by
manifest intention of the parties, is
inseparable from the principal obligation,
and is a condition, juridically speaking, of
that the nullity of which it would also
occasion. [Manresa]
2. Rules on Doubt [Art. 1378,
CC]
When it is absolutely impossible to settle
doubts by the rules established in the
preceding articles:
When doubts are cast The contract shall
upon the principal be null and void.
object/s
of
any
contract and it cannot
be known what may
have
been
the
intention or will of the
parties
When doubts refer to
the
incidental
circumstances
of
gratuitous contracts
and it is absolutely
impossible to settle
doubts by the rules
The
least
transmission
of
rights
and
interests
shall
prevail.
When doubts refer to
the
incidental
circumstances
of
onerous contracts and
it
is
absolutely
impossible to settle
doubts by the rules
The doubt shall
be settled in favor
of the greatest
reciprocity
of
interests.
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3. Rule 123, Rules of Court
Note: This is now found in Secs. 10-19, Rule
130.
Art. 1379, CC. The principles of
interpretation stated in Rule 123 of the Rules
of Court shall likewise be observed in the
construction of contracts.
Summary of rules on interpretation [Rule
130, ROC]
1. Writing is to be interpreted according to its
legal meaning UNLESS parties intended
otherwise. [Sec. 10]
2. Instrument must be construed to give effect
to all provisions. [Sec. 11]
3. Particular provisions are paramount to
general ones when they are inconsistent.
[Sec. 12]
4. The circumstances under which the
instrument was made must be considered.
[Sec. 13]
5. The terms of a writing are presumed to
have been used in their primary and
general acceptation unless contrary
evidence is presented. [Sec. 14]
6. Written words prevail over printed ones.
[Sec. 15]
7. Experts and interpreters may be used in
explaining language not understood by the
court. [Sec. 16]
8. When
conflicting
constructions
of
provisions are equally proper that which is
the most favorable to the party in whose
favor the provision was made shall be
accepted. [Sec. 17]
9. When an instrument is equally susceptible
of two interpretations, one in favor of
natural right and the other against it, the
former is to be adopted. [Sec. 18]
An instrument may be construed according
to usage, in order to determine its true
character. [Sec. 19]
10.
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their condition at the moment prior to the
celebration of said contract. [Tolentino]
E. DEFECTIVE
CONTRACTS
[Tolentino]
Rescissible
A contract that has caused
a particular damage to
one of the parties or to a
third person and which for
EQUITABLE REASONS
may be set aside even if
valid.
Annulable or A contract in which
Voidable
CONSENT of one of the
(contrato nulo) parties is defective, either
because of WANT OF
CAPACITY or because it
is VITIATED, but which
contract is VALID until
JUDICIALLY set aside.
Unenforceable
Void
Inexistent
CIVIL LAW
OBLIGATIONS AND CONTRACTS
A contract that for some
reason CANNOT BE
ENFORCED,
UNLESS
RATIFIED in the manner
PROVIDED BY LAW.
or A contract which is an
ABSOLUTE NULLITY and
produces NO EFFECT, as
if it had never been
executed or entered into.
Relief to protect one of the parties or a third
person from all injury and damages which the
contract may cause, to protect some
preferential right [Aquino v. Tañedo, G.R. No.
L-12457 (1919)]
Lesion
The injury which one of the parties suffers by
virtue of a contract which is disadvantageous
for him. To give rise to rescission, the lesion
must be known or could have been known at
the time of making of the contract. [Tolentino]
Lesion does not invalidate a contract except
only in special cases provided by law [Art.
1355, CC]
Subsidiary Remedy
Rescission is not a principal remedy, but a
subsidiary one. It can only be availed of only if
the injured party proves that he has no other
legal means to obtain redress for the damage
caused [Art. 1177, CC]
Necessary Extent
The rescission shall only be to the extent
necessary to cover the damages caused, i.e.
partial rescission. [Art. 1384, CC]
b. Characteristics
Contracts
1. Rescissible contracts
Contracts which are valid until rescinded. All
essential requisites of a contract exist but there
is injury or damage to one of the parties or to
third persons – external or extrinsic defect
consisting of an economic damage or lesion.
[Paras]
a. Rescission
Rescission is a remedy granted by law to the
contracting parties and even to third persons,
to secure reparation for damages caused to
them by a contract, even if this should be
valid, by means of the restoration of things to
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of
Rescissible
1. The defect consists in injury or damage
either to one of the contracting parties
or to third persons;
2. Before rescission, they are valid, and
therefore, legally effective;
3. They can only be attacked directly only
and not collaterally;
4. They can be attacked only by a
contracting party or a third person who
is injured or defrauded;
5. They are susceptible of convalidation
only by prescription and not ratification;
and
6. They must be rescinded within four
years, the prescription for actions to
claim rescission [Art.1389, CC].
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OBLIGATIONS AND CONTRACTS
c. Rescissible Contracts and Their
Requisites [Arts. 1381-1383, 1385,
1389, CC]
Art. 1381, CC. The following contracts are
rescissible:
1. Those which are entered into by
guardians whenever the wards whom
they represent suffer lesion by more than
one-fourth of the value of the things
which are the object thereof;
2. Those agreed upon in representation of
absentees, if the latter suffer the lesion
stated in the preceding number;
3. Those undertaken in fraud of creditors
when the latter cannot in any other
manner collect the claims due them;
4. Those which refer to things under
litigation if they have been entered into
by the defendant without the knowledge
and approval of the litigants or of
competent judicial authority;
All other contracts specially declared by law
to be subject to rescission. [Art. 1381, CC]
Requisites for Rescission under Art. 1381
(1) (2), CC
1. Contract was entered into by a guardian in
behalf of his ward or by a legal
representative in behalf of an absentee.
[Arts. 1381 (1) and (2) CC]
Note: A guardian is authorized only to
manage the estate of the ward; should he
dispose a portion thereof without authority
from the court by way of a contract, the
same is unenforceable under Art. 1403(1),
CC, irrespective of whether there is lesion
or not.
2. It was entered into without judicial
approval. [Art. 1386, CC]
3. Ward or absentee suffered lesion of more
than one-fourth of the value of the property
which is the object of the contract. [Art.
1381 (1) and (2), CC]
4. There is no other legal means of obtaining
reparation for the lesion. [Art. 1383, CC]
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5. The person bringing the action must be
able to return whatever he may be obliged
to restore. [Art. 1385(1), CC]
6. The object of the contract must not be
legally in the possession of a third person
who did not act in bad faith [Art. 1385(2),
CC]
Note: For Art. 1381 (4), CC: Any disposition of
the thing subject of litigation or any act which
tends to render inutile the court’s impending
disposition in such case without the knowledge
and approval of the litigants or of the court, is
unmistakably and irrefutably indicative of bad
faith.
However, even without knowledge or approval
from the court, the conveyance of a property
subject of litigation may still be valid but is
susceptible for rescission under Art. 1381(4),
CC.
A definitive judicial determination with respect
to the thing subject of litigation is not a
condition sine qua non before the rescissory
action contemplated under Article 1381(4) of
the Civil Code may be instituted. The primordial
purpose of Article 1381(4) of the Civil Code is
to secure the possible effectivity of the
impending judgment by a court with respect to
the thing subject of litigation. [Ada v. Baylon,
G.R. No. 182435 (2012)]
Requisites before a Contract Entered Into in
Fraud of Creditors May Be Rescinded under
Art. 1381 (3):
1. There is a credit existing prior to the
celebration of the contract, although not yet
due or demandable;
2. There is fraud, or at least, the intent to
commit fraud to the prejudice of the creditor
seeking rescission, which may be
presumed or proved [Art 1387, CC];
3. Creditor cannot in any legal manner collect
his credit; insolvency of the debtor is not
required; and
4. The object of the contract must not be
legally in the possession of a third person
who did not act in bad faith.
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Accion Pauliana
The action to rescind contracts in fraud of
creditors. Consequently, accion pauliana
presupposes a judgment and unsatisfied
execution which cannot exist when the debt is
not yet demandable at the time the rescissory
action is brought. [Tolentino]
Note: Even secured creditors are entitled to
accion pauliana.
Payments made in a state of insolvency for
obligations to whose fulfillment the debtor
could not be compelled at the time they were
effected, are also rescissible. [Art. 1382, CC]
Requisites Before Payment Made by
Insolvent can be Rescinded:
1. It was made in a state of insolvency;
2. Obligation must have been one which
debtor could not be compelled to pay at the
time such payment was effected.
Note: A debtor can be compelled to pay by the
creditor even before the expiration of the period
since by his insolvency he has already lost his
right to the benefit of such period. [Art. 1198(1),
CC]
d. Effects of Rescission [Art. 1385,
CC]
It creates an obligation of mutual restitution
or the obligation to return the things which were
the object of the contract, together with their
fruits, and the price with its interests.
However, if the object of the contract is in the
possession of third persons in good faith,
rescission cannot take place and indemnity for
damages may be demanded from the person
causing the loss [Art. 1385, CC]
Rescission prescribes in a period of four years.
For persons under guardianship and for
absentees, the period of four years shall not
begin until the termination of the former's
incapacity, or until the domicile of the latter is
known. [Art. 1389, CC]
CIVIL LAW
Do all creditors benefit from the rescission?
As a rule, the rescission should benefit only the
creditor who obtained the rescission, because
the rescission is to repair the injury caused to
him by the fraudulent alienation. If a balance is
left after satisfying the claim of the creditor who
brought the action, other creditors who are
qualified to bring an accion pauliana should be
given the benefit of rescission, instead of
requiring them to bring other rescissory
actions. However, creditors who only became
such after the fraudulent alienation, cannot
benefit from the rescission.
e. Presumption of Fraud
When alienation of property presumed in fraud
of creditors:
1. Alienation by gratuitous title if the debtor
has not reserved sufficient property to pay
all of his debts contracted before alienation
[Art. 1387(1), CC]
2. Alienation by onerous title if made by a
debtor against whom some judgment has
been rendered in any instance or some writ
of attachment has been issued [Art.
1387(2), CC]
Badges of Fraud
A conveyance leaving no property for other
creditors to attach is an evidence of fraud.
[China Banking v. CA, G.R. No. 129644
(2000)]:
1. Consideration is fictitious or inadequate;
2. Transfer was made while suit had begun or
pending;
3. Sale was upon credit by insolvent debtor;
4. There was large indebtedness or complete
insolvency;
5. Transfer consisted of all or nearly all
property especially when insolvent or
greatly;
6. The transfer was made between father and
son when other above circumstances
present; and
7. There was failure of vendee to take
exclusive possession of all property
embarrassed financially.
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2. Voidable contracts
Voidable or annullable contracts are existent,
valid and binding, although they can be
annulled because of want of capacity or vitiated
consent of one of the parties. [Tolentino]
Art. 1390, CC. The following contracts are
voidable or annullable, even though there
may have been no damage to the
contracting parties:
1.
Those where one of the parties is
incapable of giving consent to a contract;
2.
Those where the consent is vitiated
by mistake, violence, intimidation, undue
influence or fraud.
These contracts are binding, unless they are
annulled by a proper action in court. They are
susceptible of ratification.
Note: Art. 1390 refers to a “proper action in
court”. The validity of a voidable contract may
only be attacked either by way of a direct action
or by way of defense via a counterclaim, and
not a special or affirmative defense. [Jurado]
a. Characteristics of Voidable
Contracts
•
•
•
•
Its defect consists of the vitiation of
consent of one of the contracting parties;
It is binding until it is annulled;
It is susceptible of convalidation by
ratification or prescription; once ratified,
they become absolutely valid and can no
longer be annulled [Art. 1392, CC]; and
Its defect or voidable character cannot be
invoked by third persons.
Rescission
Annulment
Merely produces the
inefficacy of the
contract, which did
not essentially exist
in the contract
Declares
the
inefficacy which the
contract
already
carries in itself
CIVIL LAW
Private
interest Direct influence of the
alone governs
public
interest is
involved
May be compatible Based on a vice of the
with the perfect contract
which
validity
of
the invalidates it
contract
A remedy
A sanction
Equity
predominates
The
predominates
law
May be demanded Can be demanded
by third parties only by parties to the
affected by the contract
contract
b. Who may institute action for
annulment
General Rule: Action for annulment may be
instituted by all who are thereby obliged
principally or subsidiarily.
Exceptions: (1) Persons capable of giving
consent and (2) guilty parties who have caused
the vitiation of consent cannot allege the
incapacity or want of consent of those they
contracted with. [Art. 1397, CC].
Requisites:
1. Plaintiff must have an interest in the
contract;
2. The victim and not the party
responsible for the vice or defect
must assert the same
Exception: If a third person is prejudiced in his
rights with respect to one of the contracting
parties and can show detriment which would
positively result to him from the contract in
which he has no intervention. [Teves v.
People’s Homesite & Housing Corp., G.R. No.
L-21498 (1968)]
Needs ratification to Requires an act of
be effective
ratification to be cured
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OBLIGATIONS AND CONTRACTS
c. Effects of Annulment
Contract has been
Consummated
The parties shall be
released from the
obligations
arising
therefrom.
Contract has not
been
Consummated
Mutual Restitution the
contracting
parties shall restore
to each other the
things which have
been the subject
matter
of
the
contract, with their
fruits, and the price
with its interest,
except in cases
provided by law. [Art.
1398-1402]
Mutual Restitution
Vitiation of Parties shall restore to each
Consent
other the subject matter of
the contract with its fruits
and the price thereof with
legal interest.
In obligations to render
service, the value thereof
shall be the basis for
damages. [Art. 1398, CC]
Incapacity
Incapacitated person is not
obliged
to
make
any
restitution except insofar as
he has been benefited by the
thing or price received by
him. [Art. 1399, CC]
d. Three Ways or Modes of
Convalidating a Voidable
Contract
1. By prescription of the action for annulment
[Art.1391, CC]
2. By ratification or confirmation [Art. 13921396, CC]
CIVIL LAW
3. By loss of the thing which is the object of
the contract through the fraud or fault of the
person who is entitled to institute the action
for the annulment [Art.1401, CC]
PRESCRIPTION
Prescription of the Action for Annulment
Grounds for being Reckoning Point
voidable
Intimidation,
Four years from the
violence, or undue time the defect of the
influence
consent ceases
Fraud or Mistake
Four
years
from
discovery thereof
Minors
and Four years from the
Incapacitated
time the guardianship
Persons
ceases.
Constructive
Notice
Discovery or fraud must be reckoned from the
time the document was registered in the office
of the Register of Deeds. Registration
constitutes constructive notice to the whole
world. [Carantes v. CA, G.R. No. L-33360
(1977)]
RATIFICATION
The act or means by virtue of which efficacy is
given to a contract which suffers from a vice of
curable nullity [Arts. 1392-1396, CC].
Ratification is either express or tacit.
1. EXPRESS or
2. TACIT
When the person who has the right to
invoke it, with the knowledge of the
reason which renders the contract
voidable and such reason having
ceased, executes an act implying an
intention to waive his right [Art. 1393,
CC]
Requisites of Ratification
1. Contract is tainted with a
susceptible of being cured;
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OBLIGATIONS AND CONTRACTS
2. Confirmation is effected by the person
who is entitled to do so under the law;
3. It is effected with knowledge of the
vice or defect of the contract;
4. Cause of the nullity or defect has
already disappeared.
The right to ratify may be transmitted to the
heirs of the party entitled to such right. It may
likewise be exercised by the guardian of the
incapacitated person having such right. [Art.
1394, CC]
Ratification does not require the conformity of
the contracting party who has no right to bring
an action for annulment. [Art. 1395, CC]
Effect
of
Ratification
It extinguishes the action for annulment of a
voidable contract. [Art. 1392, CC]
a. Characteristics
1. Cannot be enforced by a proper action in
court;
2. Susceptible of ratification;
3. Cannot be assailed by third persons [Art.
1408, CC]
b. Kinds
of
Unenforceable
Contracts [Art. 1403, CC]
1. Unauthorized contracts – those entered
into by one who has no authority or legal
representation, or who has acted beyond
his powers [par. 1, Art. 1403, CC]
2. Those which did not comply with the
Statute of Frauds [par. 2, Art. 1403, CC]
3. Those where both parties are incapable of
giving consent to a contract [par. 3, Art.
1403, CC]
It cleanses the contract from all its defects from
the moment it was constituted. [Art. 1396, CC]
LOSS OF THE THING
Loss of thing by
Plaintiff
Loss of thing by
Defendant
If the loss of the
object
in
his
possession is due to
his fault or fraud, the
action
for
annulment
of
contracts shall be
extinguished.
He
cannot
ask
for
annulment.
[Art.
14010, CC]
If it is lost through the
defendant’s fault, he
is liable for fruits
received, value of the
thing at the time it was
lost, with interest from
the same date. [Art.
1400, CC]
CIVIL LAW
3. Unenforceable contracts
Unenforceable Contracts – contracts that by
reason of statutory defects do not confer any
action to enforce the same until and unless
they are ratified in the manner prescribed by
law [Reyes]
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CIVIL LAW
SUMMARY OF UNENFORCEABLE CONTRACTS
Contract entered Contracts covered by Statute Contract where both
into
without of Frauds
parties are incapable of
authority
giving consent
Effect
on No effect unless ratified. Cannot be enforced by a proper action in court
the
Contract
How
assail
to Not by direct action. Not by direct action.
As a defense, by
motion to dismiss
the complaint on the
ground that the
contract
is
unenforceable
Not by direct action.
As a defense, by motion to As a defense, by motion to
dismiss on the ground that the dismiss the complaint on
contract is unenforceable
the ground that the contract
is unenforceable
Objection to the presentation of
oral evidence to prove an oral
contract [see Art. 1405]
Who
can
assail
cannot be
assailed by
third
persons
[Art. 1408,
CC]
By
the
person By the party against whom the
whose name the contract is being enforced; or
contract
was his privies
entered into / by
owner of property
When
When a party asks the court to enforce the contract
How to Cure Ratification
by Ratification by party against
Defect
person whose name whom the contract is being
the contract was enforced
entered into
Failure to object to the
presentation of oral evidence to
prove the contract amounts to
waiver [Art. 1405, CC]; makes it
as binding as if written
4. Void or inexistent contracts
By the party against whom
the contract is being
enforced; or his privies; or
parents or guardians, as it
is a personal defense
Ratification of party against
whom the contract is being
enforced; or his privies; or
parents or guardians
The ratification by one party
converts the contract into a
voidable contract [Art.
1407, CC]
also those which are declared void by positive
provision of law or statute.
Those which, because of certain defects,
generally produce no effect at all. They are
considered as inexistent from its inception or
from the very beginning [de Leon].
Includes not only those contracts in which one
of the essential requisites is totally wanting, but
Page 316 of 532
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CIVIL LAW
OBLIGATIONS AND CONTRACTS
Art. 1409, CC. The following contracts are
inexistent and void from the beginning:
1. Those whose cause, object or
purpose is contrary to law, morals,
good customs, public order or
public policy;
2. Those
which
are
absolutely
simulated or fictitious;
3. Those whose cause or object did not
exist at the time of the transaction;
4. Those whose object is outside the
commerce of men;
5. Those which contemplate an
impossible service;
6. Those where the intention of the
parties relative to the principal object
of the contract cannot be
ascertained;
7. Those expressly prohibited or
declared void by law
These contracts cannot be ratified. Neither
can the right to set up the defense of illegality
be waived.
a. Characteristics of a Void Contract
1. It does not produce any legal effect;
2. It is not susceptible of ratification;
3. The right to set up the defense of
inexistence or absolute nullity cannot
be waived or renounced;
4. The action or defense for the
declaration of their inexistence or
nullity is imprescriptible; [Art. 1410,
CC]
Note: This provision does not apply to
wills. [Gallanosa v. Arcangel, G.R. No.
L-29300 (1978)]
5. The inexistence or absolute nullity of a
contract cannot be invoked by a
person whose interests are not
directly affected. [Art. 1421, CC]
Note: Article 1421 is subject to
exceptions. For instance, the creditors
of a party to an illegal contract may,
under the conditions set forth in Article
1177 of said Code, exercise the rights
and actions of the latter, EXCEPT only
those which are inherent in his person,
including therefore, his right to the
annulment of said contract, even
though such creditors are not affected
by the same, except indirectly, in the
manner indicated in said legal
provision. [Pascual v. Secretary of
Public Works, G.R. No. L-10405
(1960)]
Void vs. Inexistent Contracts
Void
Inexistent
Those where all the
requisites
of
a
contract are present
but
the
cause,
object or purpose is
contrary to law,
morals,
good
customs,
public
order or public
policy,
or
the
contract itself is
prohibited
or
declared void by
law
Those where one or
some or all of the
requisites
essential
for the validity of a
contract
are
absolutely lacking
Principle of pari Principle
of
pari
delicto is applicable delicto is inapplicable
May produce legal Cannot produce any
effects
effect
Covers Art. 1409 Covers Art. 1409 (2)
(1), (3), (4), (5), (6) and (3)
and (7)
Void vs. Voidable Contracts
Void
Voidable
Those where one of
the
essential
requisites
is
wanting, either in
fact or in law, or is
declared void by
statute.
Those where all the
essential
requisites
are
present,
but
consent is vitiated by
want of capacity, or by
error,
violence,
intimidation, or deceit
Page 317 of 532
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Void; no contract at Valid until annulled
all
May be
indirectly
CIVIL LAW
OBLIGATIONS AND CONTRACTS
assailed Must be assailed
through an action for
that purpose by a
party to the contract,
and never by a third
person (direct attack)
General Rules
Nullity proceeds from the illegality of the
cause or object of the contract, and the act
constitutes a criminal offense [Art.
1411, CC]
1. Parties shall have no cause of
action against each other
2. Both parties shall be prosecuted.
3. Things or price of the contract
which are considered as effects or
instruments of a crime are forfeited
in favor of the government.
Nullity may be set- Nullity may only be
up against anyone set-up against a party
who asserts a right thereto.
arising from it.
Not susceptible to May be validly ratified
ratification
Action to declare Action for annulment
nullity does not prescribes
prescribe
[Art.
1410, CC]
b. Divisibility of Contracts
Trigger: A contract has separate provisions of
which only one or more provisions is invalid
General Rule: if the illegal terms can be
separated from the legal ones, the latter may
be enforced [Art. 1420, CC]
c. In Pari Delicto Principle (in pari
delicto, non oritur actio) [Art. 1411,
CC]
Parties to a void agreement cannot expect the
aid of the law; the courts leave them as they
are, because they are deemed in pari delicto or
"in equal fault." [Menchavez v. Tevez, G.R. No.
153201 (2005)].
The act in which the unlawful or forbidden
cause consists does not constitute a
criminal offense
[Art. 1412, CC]
When both When only one of the
parties are contracting parties is at fault
at fault
Neither may
recover
what he has
given
by
virtue of the
contract, or
demand the
performanc
e of the
other's
undertaking
Guilty Party
Innocent
Party
1. He cannot
recover what
he has given
by reason of
the contract,
1. He may
demand the
return
of
what he has
given
2. He cannot
ask for the
fulfillment of
what
has
been
promised
him.
2. He is
without any
obligation to
comply with
his promise.
Exceptions to the Principle of In Pari
Delicto:
1. Payment of usurious interest paid in
excess of the interest may be recovered by
the debtor. [Art. 1413, CC]
2. Payment of money or delivery of property
for an illegal purpose, where the party who
paid or delivered repudiates the contract
before
the
purpose
has
been
accomplished, or before any damage has
been caused to a third person. May allow
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U.P. LAW BOC
3.
4.
5.
6.
7.
8.
9.
10.
OBLIGATIONS AND CONTRACTS
the repudiating party to recover money or
property. [Art. 1414, CC] [See Hulst v. PR
Builders Inc., G.R. No. 156364 (2007)]
Payment of money or delivery of property
made by an incapacitated person. It is not
necessary that the illegal purpose has not
been accomplished, or no damage has yet
been caused. [Art. 1415, CC]
Agreement or contract not illegal per se but
merely prohibited by law, and the
prohibition is designed for the plaintiff’s
protection. Plaintiff may recover as
allowing recovery enhances public policy.
[Art. 1416, CC]
Note: When the assailed contracts are void
ab initio, Art. 1416 cannot be applied, as in
the case of aliens purchasing property
despite knowing fully well the constitutional
prohibition against foreigners owning land
in the Philippines at the time of purchase.
[Frenzel v. Catito, G.R. No. 143958 (2003)]
Payment of any amount in excess of the
maximum price of any article or commodity
fixed by law [Art. 1417, CC]
Contract whereby a laborer undertakes to
work longer than the maximum number of
hours fixed by law [Art. 1418, CC]
Contract whereby a laborer accepts a
wage lower than the minimum wage fixed
by law. He may recover the deficiency with
legal interest, and the employer shall be
criminally liable [Art. 1419, CC]
In case of divisible contracts, the legal
portions/terms may be enforced separately
from the illegal portions/terms [Art. 1420,
CC]; and
One who lost in gambling because of
fraudulent schemes practiced on him. He is
allowed to recover his losses [Art.
315(3)(b)] even if gambling is prohibited
The principle of in pari delicto admits of an
exception under Art. 1416 of the Civil Code.
Under this article, recovery for what has been
paid or delivered pursuant to an inexistent
contract is allowed only when the following
requisites are met:
1. the contract is not illegal per se but
merely prohibited;
2. the prohibition is for the protection of
the plaintiffs; and
CIVIL LAW
3. if public policy is enhanced thereby.
[Acabal v. Acabal, G.R. No. 148376
(2005)]
d. Void contract cannot be novated
[Art 1422, CC]
A contact which is a direct result of a previous
illegal contract is also void and inexistent. This
is based on requisites of a valid novation [Art
1298, CC].
5. Distinguish: resolution and
rescission of contracts
Tolentino notes that Article 1191 is taken from
Article 1124 of the Old Civil Code, but the
present Code uses the term “rescission”
instead of the original “resolution” in the old
Code. Nevertheless, the Code uses the terms
synonymously.
Definition
Rescission
Resolution
A subsidiary action
based on injury to
the
plaintiff’s
economic interests
as described in
Articles 1380 and
1381.
As referred to in
Article 1191, the
action is based on
the
defendant’s
breach of faith, a
violation
of the
reciprocity between
the parties.
[Heirs of Sofia Quirong v. Development Bank
of the Philippines, G.R. No. 173441, December
3, 2009]
Similarities According to Tolentino:
1. Both presuppose contracts validly entered
into and existing (this distinguishes
rescission from annulment, in which there
is a defect which vitiates the contract)
2. Both require mutual restitution when
declared proper.
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OBLIGATIONS AND CONTRACTS
Differences
Rescission
Resolution
[Art 1380 and [Art 1191,
1381, CC]
CC]
As
Nature
Action
to Subsidiary
of Action
involving
partial
resolution
As to Basis
Principal
Action,
retaliatory in
nature
Economic
Breach
prejudice
faith
rendering the
contract
legally
rescissible
As
partiesininterest
As
to Four
prescriptive [Art.
period
CC]
May
be
denied
if
court finds
that there is
sufficient
reason
to
justify
extension
years Ten years
1389,
[Congregation of the Religious Virgin Mary v.
Orola, G.R. No. 169790 (2008)]
NATURAL OBLIGATIONS
The cause of
action
is
subordinated
to
the
existence of
an economic
prejudice.
Hence, where
the defendant
makes good
the damages
caused, the
action cannot
be maintained
or continued.
The
reparation of
damages for
the breach is
purely
secondary.
to Prejudiced
third
party
may
also
seek remedy
Only party to
the contract
may
seek
remedy
As
to Equity
grounds
As to action Right to seek
by courts
remedy is not
affected
by
extension of
time
of
Note: Not all
forms
of
economic
prejudice are
recognized by
law
as
a
ground
to
rescind
As to effect
or
nonperformance
Art 1423, CC. Natural obligations, not being
based on positive law but on equity and
natural law, do not grant a right of action
to enforce their performance, but after
voluntary fulfillment by the obligor, they
authorize the retention of what has been
delivered or rendered by reason thereof.
General Rule: Do not grant a right of action to
enforce
their
performance.
Exception: After voluntary fulfillment, they
authorize the retention of what has been
delivered/rendered
by
reason
thereof.
Noncompliance
In order that there may be a natural obligation
there must exist a juridical tie which is not
prohibited by law and which in itself could give
a cause of action but because of some special
circumstances is actually without legal sanction
or means of enforcing compliance by
intervention
of
courts.
[Tolentino]
Two Conditions Necessary for Natural
Obligations
a. That there be a juridical tie between two
persons; (this distinguishes it from moral
obligations) and
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b. That this tie is not given effect by law (this
distinguishes it from civil obligations).
Four Types of Obligations in Juridical
Science
a. Moral Obligations – duties of conscience
completely outside the field of law
b. Natural Obligations – duties not
sanctioned by any action but have a
relative judicial effect
c. Civil Obligations – juridical obligations
that are in conformity with positive law but
are contrary to juridical principles and
susceptible of being annulled; enforceable
by action
d. Mixed Obligations – full juridical effect;
falls under civil obligations
Natural
Obligations
Civil
Obligations
As
to Not by court
enforceability actions, but
by
good
conscience
of debtor
Court action
or
the
coercive
power
of
public
authority
As to basis
Equity and Positive law
natural
[Art. 1157,
justice
CC]
Voluntary fulfillment
of such does not
produce any legal
effect which the
court will recognize
and protect.
Within the domain of Within the domain
law
of morals
Conversion
Obligations
to
Civil
General Rule: Partial payment of a natural
obligation does not make it civil; the part paid
cannot be recovered but the payment of the
balance
cannot
be
enforced.
This is applicable only to natural obligations
because of prescription or lack of formalities
(nullity due to form e.g. Art. 1430) and not to
natural obligations subject to ratification or
confirmation
Note: Payment by mistake is not voluntary and
may be recovered. Payment is voluntary when
the debtor knew that the obligation is a natural
one. The debtor, however, has the burden of
proving the mistake.
Natural obligations may be converted to civil
obligations by way of:
1. Novation
2. Ratification or confirmation
Natural Obligations
Imperfect
Obligations
Only
the
performance of the
obligation is left to
the will of the debtor
Existence of the
obligation depends
exclusively upon the
judgment of debtor
Natural Obligations
Moral Obligations
There is a juridical tie No
juridical
between the parties whatsoever
which
is
not
enforceable by court
action.
Voluntary fulfillment
of such produces
legal effects which the
court will recognize
and protect.
CIVIL LAW
tie
Rules on Natural Obligation:
a. The promise to perform a natural obligation
is as effective as performance itself and
converts the natural obligation to a civil
obligation.
b. Partial payment of a natural obligation does
not make it civil; the part paid cannot be
recovered, but payment of the balance
cannot be enforced. The exception would
be if the natural obligation is susceptible of
ratification.
c. Guaranties for the performance of a natural
obligation are valid. [Art. 2052, CC]
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d. In principle, however, natural obligations
cannot be guaranteed. The guaranty
changes the character of obligation. The
debtor impliedly accepts coercive remedies
to enforce the guaranty, and the
transformation into civil. [Tolentino]
e. Payment of a natural obligation is not
subject to reduction by reason of
inofficiousness, appearance of children or
ingratitude.
Examples
Of
Obligations
Natural
1. Performance after prescription
Art. 1424, CC. When a right to sue upon a
civil obligation has lapsed by extinctive
prescription, the obligor who voluntarily
performs the contract cannot recover what
he has delivered or the value of the service
he has rendered.
Requisites under Art. 1424 (Prescribed Civil
Obligation – Obligor)
a. There is a civil obligation
b. The right to sue upon it has already
lapsed by extinctive prescription
c. Obligor performs contract voluntarily
Consequence: Obligor cannot recover what
he has delivered or value of the service he
rendered. Obligee gains the right to retain what
has been paid.
Art. 1425, CC. When without the
knowledge or against the will of the
debtor, a third person pays a debt which
the obligor is not legally bound to pay
because the action thereon has prescribed,
but the debtor later voluntarily reimburses
the third person, the obligor cannot recover
what he has paid.
Requisites under Art. 1425 (Prescribed Civil
Obligation – Payment to 3rd Person)
a. There is a debt
b. Action upon the debt has prescribed
CIVIL LAW
c. A third person, without the knowledge
or against the will of the debtor, pays
the debt
d. Debtor voluntarily reimburses the third
person
Consequence: Obligor cannot recover what
he has paid.
2. Contract Made by a Minor
Art. 1426, CC. When a minor between
eighteen and twenty-one years of age who
has entered into a contract without the
consent of the parent or guardian, after
the annulment of the contract voluntarily
returns the whole thing or price received,
notwithstanding the fact that he has not been
benefited thereby, there is no right to
demand the thing or price thus returned.
Requisites under Art. 1426 (Voluntary Return
of Payment – Minor between 18 and 21)
a. There is a civil obligation
b. Minor between 18 and 21 entered into
the contract without consent of parent
or guardian
c. Obligation is annulled after minor has
received the price or whole thing
d. Minor returns whole thing or price
received voluntarily
Consequence: There is no right to demand
the thing or price returned.
Art. 1427. When a minor between
eighteen and twenty-one years of age, who
has entered into a contract without the
consent of the parent or guardian,
voluntarily pays a sum of money or
delivers a fungible thing in fulfillment of
the obligation, there shall be no right to
recover the same from the obligee who
has spent or consumed it in good faith.
Requisites under Art 1427 (Voluntary
Payment – Minor between 18 and 21)
a. There is a civil obligation
b. Minor between 18 and 21 entered into
the contract without consent of parent
or guardian
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c. Minor pays a sum of money or delivers
a fungible thing voluntarily
d. Obligee spends the money or
consumes the thing in good faith
Consequence: There is no right to recover the
money paid or thing delivered.
It is not the voluntary payment that prevents
recovery, but the consumption or spending of
the thing or money in good faith.
Arts. 1426 and 1427, CC, distinguished
Art. 1426
Art. 1427
Presupposes a prior No prior annulment
annulment
is involved
Refers to any object
Refers to money or
fungible things
Consumption in good Requires
faith is not required
consumption in good
faith
3. Performance by Winning Party
Art. 1428, CC. When, after an action to
enforce a civil obligation has failed the
defendant voluntarily performs the
obligation, he cannot demand the return of
what he has delivered or the payment of the
value of the service he has rendered.
Requisites under Art 1428 (Payment by
Defendant notwithstanding failed action)
a. There is a civil obligation
b. An action to enforce such has failed
c. Defendant voluntarily performs the
obligation
Consequence: Defendant cannot demand
return of what he has delivered or the payment
of
the
value
of
the
service.
CIVIL LAW
4. Payment beyond Inheritance
Art. 1429, CC. When a testate or intestate
heir voluntarily pays a debt of the
decedent exceeding the value of the
property which he received by will or by the
law of intestacy from the estate of the
deceased, the payment is valid and cannot
be rescinded by the payer.
Requisites under Art 1429 (Payment made
by Heir)
a. Decedent incurred in debt during his
lifetime
b. Heir voluntarily pays debt
c. Value of debt exceeds value of heir’s
inheritance
Consequence: Payment is valid and heir
cannot
rescind
it.
5. Payment of a Void Legacy
Art. 1430, CC. When a will is declared void
because it has not been executed in
accordance with the formalities required
by law, but one of the intestate heirs, after
the settlement of the debts of the deceased,
pays a legacy in compliance with a clause
in the defective will, the payment is
effective and irrevocable.
Requisites under Art 1430 (Payment of
legacy – Will declared Void)
a. There is a will providing for a legacy
b. The will is declared void because it was
not executed in accordance with the
formalities required by law
c. Heir pays legacy in compliance with a
clause in the defective will
Consequence: Payment is effective and
irrevocable.
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CIVIL LAW
ESTOPPEL
C. PERSONS BOUND
A. DEFINITION
Estoppel is effective only as between the:
1. parties thereto or
2. their successors-in-interest. [Art. 1439,
CC]
A condition or state by virtue of which an
admission or representation is rendered
conclusive upon the person making it, and
cannot be denied or disproved as against the
person relying thereon [Art. 1431, CC]
Estoppel is a bar which precludes a person
from asserting anything contrary to that
which has been established as the truth, either
by the acts of judicial or legislative officers or
by his own deed or representation, either
express or implied. [Tolentino]
B. KINDS OF ESTOPPEL
a. Equitable Estoppel or Estoppel in pais
or by conduct [Art. 1433, CC]
1. Estoppel by silence [Art. 1437, CC]
2. Estoppel by acceptance of benefits
b. Technical Estoppels
1. Estoppel by Deed – a party to a
deed is precluded from asserting
as against the other party, a
material fact asserted therein; [Art.
1433, CC] and
2. Estoppel by Record – a party is
precluded from denying the truth of
the matters set forth in a record
whether judicial or legislative and
also to deny the facts adjudicated
by a court of competent jurisdiction.
c. Estoppel by Judgment – a party to a case
is precluded from denying the facts
adjudicated by a court of competent
jurisdiction
d. Estoppel by laches
The government is not estopped by mistake
or error on the part of its officials or agents. In
Manila Lodge No. 761 Benevolent and
Protective Order of the Elks v. CA, G.R. No. L41001 (1976), the sale executed by the City of
Manila to Manila Lodge was certainly a
contract prohibited by law, and that estoppel
cannot be urged even if the City of Manila
accepted the benefits of such contract of sale
and the Manila Lodge No. 761 had performed
its part of the agreement, for to apply the
doctrine of estoppel against the City of Manila
in this case would be tantamount to enabling it
to do indirectly what it could not do directly.
D. CASES WHERE
ESTOPPEL APPLIES
a. Sale or alienation of a thing which does not
belong to the seller or grantor and later on
acquire title thereto [Art. 1434, CC].
Requisites
a. The seller or grantor is not the
owner of a thing
b. The person sells or alienates and
delivers it to another
c. The person later on acquires title to
the thing
Effect: Title passes by operation of law to
the buyer or grantee.
b. Agent sells or alienates a thing [Art. 1435,
CC]
Requisites:
a. Person in representation of another
sells or alienates a thing
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Effect: The person cannot set up his own
title as against the buyer or grantee.
E. LACHES
c. Title of the lessee or bailee against the
lessor or bailor [Art. 1436, CC].
Requisites:
a. There exists
relationship
a
lessor-lessee
Effect: The lessee or bailee is estopped
from asserting title to the thing leased or
received.
d. Contract between third persons concerning
immovable property where one of them is
misled by a person with respect to the
ownership or real right over the real estate.
[Art. 1437, CC]
Requisites:
a. There
must
be
fraudulent
representation
or
wrongful
concealment of facts known to the
party estopped;
b. The party precluded must intend
that the other should act upon the
facts as misrepresented;
c. The party misled must have been
unaware of the true facts; and
d. The party defrauded must have
acted in accordance with the
misrepresentation
Effect: The guilty party is precluded from
asserting his legal title or interest therein,
provided all these requisites are present.
e. One who has allowed another to assume
apparent ownership of personal property
for the purpose of making any transfer of it,
cannot, if he received the sum for which a
pledge has been constituted, set up his
own title to defeat the pledge of the
property, made by the other to a pledgee
who received the same in good faith and
for value [Art. 1438, CC].
Laches is defined as the failure or neglect for
an unreasonable and unexplained length of
time to do that which, by exercising due
diligence, could or should have been done
earlier; it is 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. [Pangasinan v. Disonglo-Almazora,
G.R. No. 200558 (2015)]
Elements [Pangasinan v. Disonglo-Almazora,
G.R. No. G.R. No. 200558 (2015)]
a. Conduct on the part of the defendant, or
of one under whom he claims, giving rise to
the situation of which complaint is made
for which the complaint seeks a remedy;
b. Delay in asserting the complainant’s
rights, the complainant having had
knowledge or notice, of the defendant’s
conduct and having been afforded an
opportunity to institute a suit;
c. Lack of knowledge or notice on the part
of the defendant that the complainant
would assert the right on which he bases
his suit; and
d. Injury or prejudice to the defendant in the
event relief is accorded to the complainant,
or the suit is not held to be barred.
Prescription
Laches
Concerned with the Concerned with the
fact of delay
effect of delay
Question of inequity of
Question or matter
permitting the claim to
of time
be enforced
Statutory
Not statutory
Applies in law
Applies in equity
Cannot be availed of
unless
it
is Being a defense in
specifically pleaded equity, it need not be
as an affirmative specifically pleaded
allegation
Based on a fixed Not based on a fixed
time
time
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CIVIL LAW
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SPECIAL CONTRACTS
Contract of Sale
Contract to sell
Ownership
is Ownership
is
only
transferred upon transferred upon full
delivery
payment of price
A. SALES
1. General provisions
Definition
Contract of Sale
Article 1458, CC: By the contract of sale
one of the contracting parties obligates
himself to transfer the ownership and to
deliver a determinate thing, and the other to
pay therefor a price certain in money or its
equivalent.
Contract to Sell
Article 1478, CC: The parties may stipulate
that ownership in the thing shall not pass to
the purchaser until he has fully paid the price
Conditional Contract of Sale
Article 1461, CC: Things having a potential
existence may be the object of the contract
of sale.
The efficacy of the sale of a mere hope or
expectancy is deemed subject to the
condition that the thing will come into
existence.
The sale of a vain hope or expectancy is
void.
Article 1462, CC: The goods which form the
subject of a contract of sale may be either
existing goods, owned or possessed by the
seller, or goods to be manufactured, raised,
or acquired by the seller after the perfection
of the contract of sale, in this Title called
“future goods.”
There may be a contact of sale of goods,
whose acquisition by the seller depends
upon a contingency which may or may not
happen.
Non-payment is a
resolutory
condition
Full payment is a
positive
suspensive
condition; hence nonpayment would not give
rise to the obligation to
transfer ownership
Conditional
Contract of Sale
Sale
is
already
perfected
A subsequent buyer
is presumed to be a
buyer in bad faith
Contract to sell
No perfected sale yet
A subsequent buyer
is presumed to be a
buyer in good faith
Essential requisites [Art. 1318,
CC]
1. Consent of contracting parties
Consent refers to seller’s consent to transfer
ownership of, and deliver, a determinate thing,
and to buyer’s consent to pay the price certain.
Being a consensual contract, the contract of
sale is perfected at the moment there is a
“meeting of the minds” upon the thing which is
the object of the contract and upon the
price. [Art. 1475, CC]
Can there be sales without consent?
1. Expropriation [Art. 1488, CC]
2. Ordinary Execution Sale [Rule 39, Sec. 15,
Rules of Court]
3. Judicial Foreclosure Sale [Rule 68, Rules
of Court], and
4. Extra-Judicial Foreclosure Sale [Act. 3135,
as amended]
Article 1465, CC: Things subject to a
resolutory condition may be the object of the
contract of sale.
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Special Case
If the sale involves the conjugal property of
spouses, consent must be given by both.
something in existence already
belonging to the seller, and the title will
vest in the buyer the moment the thing
comes into existence. [Sibal v. Valdez,
G.R. No. L-26278 (1927)]
2. Object certain which is the subject
matter of the contract
The things must be licit and the vendor must
have a right to transfer the ownership thereof
at the time it is delivered [Art. 1459].
Requisites of a Valid Subject Matter [Arts.
1459-1465, CC]
a. Must be licit
• Within the commerce of man
• When right is not intransmissible [Art.
1347, CC]
• It does not contemplate a future
inheritance,
unless
expressly
authorized by law
• Example of illicit things per se (of its
nature) and per accidens (due to
provisions of law
o Sale of animals if the use or
service for which they are
acquired has been stated in the
contract, and they are found to
be unfit therefor [Art. 1575, CC]
o Sale of animals suffering from
contagious
diseases
[Art.
1575, CC]
o Sale of future inheritance is
void [Art. 1347, CC]
Sale of land in violation of
Constitutional
prohibition
against the transfer of lands to
aliens. [Art. XII of Constitution]
b. Existing, Future, Contingent
• Existing goods owned or possessed by
the seller;
• Goods to be manufactured, raised, OR
acquired by the seller – “Future Goods”
[Art. 1462, CC]
• Things having potential existence may
be the object of a contract of sale [Art.
1461, CC]. A sale may be made of a
thing which, though not yet actually in
existence is reasonably certain to
come into existence as the natural
increment or usual incident of
CIVIL LAW
Sale of Things Having Potential
Existence
Emptio Rei Spei
Emptio Rei
Speratei
Mere Hope
Vain Hope
Sale of a Sale of a Sale of a
thing
MERE HOPE VAIN HOPE
expected or or
or
future thing
expectancy
expectancy
General rule: Exception:
Valid
Valid
Void
Example:
Example:
Sale of the Example:
Sale of a
grain a field Sale of a valid
fake lottery
may grow in lottery ticket
ticket
a given time
Deals with a
future thing Deals with a thing that
that
is currently exists – the hope or
currently not expectancy
in existence
Subject to
Not subject to any condition;
the condition
The contract comes into
that the thing
existence immediately
will exist
Future thing
is certain as
to itself, but
uncertain as
to quantity
and quality
In case of doubt, the presumption is in favor
of emptio rei speratae since it is more in
keeping with the commutative character of
the contract.
c. Determinate or Determinable
Determinate
When it is particularly designated or physically
segregated from all others of the same class.
[Art. 1460, CC]
Determinable
When it is capable of being made determinate
at the time the contract was entered into
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o
without the necessity of a new or further
agreement between the parties. [Art. 1460, CC]
Failure to state the exact location of the land
does not make the subject matter
indeterminate, so long as it can be located.
[Camacho v. CA, G.R. No. 127520 (2007)]
3. Cause of the obligation which is
established
This refers to the “price certain in money or its
equivalent” [Art. 1458]. It does not include
goods or merchandise although they have their
own value in money.
However, the words “its equivalent” have been
interpreted to mean that payment need not be
in money, so that there can be a sale where the
thing given as token of payment has “been
assessed and evaluated and [its] price
equivalent in terms of money [has] been
determined.” [De Leon]
a. Requisites of a valid price
1. Certain or ascertainable at the time of
perfection
2. In money or its equivalent
• If price is partly in money and partly
in another thing: determine
manifest intention of the parties to
see whether it was barter or sale.
[Art. 1468, CC]
• If intention does not clearly appear,
it shall be considered a barter if the
value of the thing exceed the
amount of money or its equivalent.
[Art. 1468, CC]
3. Real
• When buyer has an intention to pay
and the seller has an expectation to
receive the price
• If simulated: Sale is VOID; BUT act
may be shown to have been a
donation or some other act or
contract. [Art. 1471, CC]
• If Price is false – when the real
consideration is not the price stated
in the contract:
o Sale is void
UNLESS proved to be
founded on another true
and lawful price [Art. 1353,
CC]
b. How price is determined/when certain
1. Fixed by agreement of the parties and
cannot be left to the discretion of one of
the parties – BUT if such is accepted by
the other, sale is perfected. [Art. 1473,
CC]
2. Determination is left to the judgment of
a specified person.
General Rule: Price fixed by 3rd persons
designated by the parties is binding upon them
Exceptions:
• If 3rd person is unable or unwilling: Sale is
inefficacious unless parties subsequently
agree about the price.
• If 3rd person fixed the price in bad faith/by
mistake: Courts may fix price (but mere
error in judgment cannot serve as basis for
impugning price fixed)
• If 3rd person is prevented from fixing price
by fault of seller or buyer: Innocent party
may avail of remedies (rescission or
fulfillment of obligation, with damages)
• If 3rd person disregards specific
instructions/data/procedure, thereby fixing
an arbitrary price
• The price is made in reference to another
thing, or when the price fixed is the price of
the commodity on a definite day, or in a
particular exchange or market, or when the
amount fixed is above or below the price on
such day, exchange or market. [Art. 1472,
CC]
General Rule: When the price is not certain,
the contract is without effect and no obligation
arises from it.
Exception: When the thing is already
delivered, the buyer must pay a reasonable
price therefor. This exception only arises when
the means contemplated by the parties for
fixing the price have become ineffectual.
c. Inadequacy of price
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The stipulation in a contract of sale which
states that the consideration is “PhP1 and
other valuable considerations” does not make
the contract void. Gross inadequacy of price
does not affect the contract of sale except that
it may indicate a defect in consent. [Bagnas v.
CA, G.R. No. L-38498 (1989)]
General Rule: Does not affect a contract of
sale’s validity. [Art. 1470, CC]
Exceptions:
a. In Voluntary sales
• Where low price indicates a vice of
consent, sale may be annulled.
• Where price is so low to be shocking to the
conscience (fraud, mistake, undue
influence), then sale may be set aside
• Where price is simulated such as when the
real intention was a donation or some other
contract.
• Where the parties did not intend to be
bound at all, sale is void.
b. In Involuntary sales
• A judicial or execution sale is one made by
a court with respect to the property of a
debtor for the satisfaction of his
indebtedness.
• Rescissible contracts of sale - Inadequacy
of price is a ground for rescission of
conventional sale under Art. 1381 (a) and
(b), CC.
d. When no price agreed
1. Sale is inefficacious [Art. 1474, CC]
2. But if the thing or part thereof has been
delivered and appropriated by the buyer,
he must pay a reasonable price therefore
• What is a reasonable price is a
question of fact dependent on the
circumstances of each particular case.
[Art. 1474, CC]
• The reasonableness of a price may be
determined on the basis of a
company’s balance sheet showing the
book value or fair market value of its
shares. [Philippine Free Press v. CA,
G.R. No. 132864 (2005)]
CIVIL LAW
3. Generally, the reasonable price is the
market price at the time and place fixed by
the contract or by law for delivery of goods.
e. False price vs. simulated price
False Price
Simulated Price
Price stated in the
Price stated in the
contract
is
not
contract is not the
intended to be paid.
true price. Parties
Parties
never
intended
to
be
intended
to
be
bound.
bound.
Effect: Void for lack
Effect: Binds the of
parties to their real cause/consideration,
agreement when it but can be shown as
does not prejudice a donation or some
3rd persons and is other
contract.
not intended for any Parties may recover
purpose contrary to from each other
law, morals, public what they may have
policy, etc.
given under the
contract.
f. Earnest money vs. option money
Earnest Money – paid in advance of the
purchase price agreed upon by the parties in a
contract of sale, given by the buyer to the
seller, to bind the latter to the bargain
Option Money
Separate and distinct
consideration from the
purchase price
Given when sale is not
yet perfected
Earnest Money
Part of purchase
price [Art. 1482, CC]
Given only when
there is already a
sale
When
given,
the
would-be-buyer is not
When given, the
required to buy, but
buyer is bound to pay
may even forfeit it
the balance
depending on the
terms of the option
Grantee of option is
still
undecided Buyer manifests his
whether or not to buy earnest desire to buy
or sell the property the property
[Baviera]
[Limson v. CA, G.R. No. 135929 (2001)]
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ensues and both parties are then reciprocally
bound to comply with their respective
undertakings. [Ang Yu v. CA, G.R. No. 109125
(1994)]
Perfection
1. Offer
The offer must be certain and the acceptance
absolute. [Art. 1319, CC]
The person making the offer may fix the time,
place, and manner of acceptance, all of which
must be complied with. [Art. 1321, CC]
An offer becomes ineffective upon the death,
civil interdiction, insanity, or insolvency of
either party before acceptance is conveyed.
[Art. 1323, CC]
When the offerer has allowed the offeree a
certain period to accept, the offer may be
withdrawn at any time before acceptance by
communicating such withdrawal, except when
the option is founded upon a consideration, as
something paid or promised. [Art. 1324, CC]
Unless it appears otherwise, business
advertisements of things for sale are not
definite offers, but mere invitations to make an
offer. [Art. 1325, CC]
2. Option contracts
Option
An accepted unilateral promise to buy or to sell
a determinate thing for a price certain is binding
upon the promissor if the promise is supported
by a consideration distinct from the price. [Art.
1479(2), CC; De Leon]
Separate Consideration
A consideration for an optional contract is just
as important as the consideration for any other
kind of contract. If there was no consideration
for the contract of option, then it cannot be
enforced any more than any other contract
where no consideration exists. [Enriquez dela
Cavada v. Diaz, G.R. No. 11668 (1918)]
The option is not the contract of sale itself. The
optionee has the right, but not the obligation, to
buy. Once the option is exercised timely, i.e.,
the offer is accepted before a breach of the
option, a bilateral promise to sell and to buy
The offeror is still free and has the right to
withdraw the offer:
• If the period is not itself founded upon or
supported by a consideration and
withdrawn before its acceptance,
• If an acceptance has been made, before
the offeror's coming to know of such fact,
by communicating that withdrawal to the
offeree.
Breach of contract
It will be a breach of contract when the offer
was withdrawn during the agreed period if the
period has separate consideration since the
contract of “option is deemed perfected.”
3. Right of first refusal
While the object might be made determinate,
the exercise of the right, however, would be
dependent not only on the grantor's eventual
intention to enter into a binding juridical relation
with another but also on terms, including the
price, that obviously are yet to be later firmed
up.
Even on the premise that such right of first
refusal has been decreed under a final
judgment, like here, its breach cannot justify
correspondingly an issuance of a writ of
execution under a judgment that merely
recognizes its existence, nor would it sanction
an action for specific performance without
thereby negating the indispensable element of
consensuality in the perfection of contracts.
[Ang Yu v. CA, G.R. No. 109125 (1994)]
4. Mutual promise to buy and sell
The obligation is not to enter into a sale, but
rather to negotiate in good faith for the
possibility of entering into a sale. When the
promissor has in fact negotiated in good faith,
but the parties’ minds could not meet on the
price and the terms of payment, then promissor
has complied with his obligation [Villanueva].
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Contract of sale distinguished
BARTER = where the value of the thing given
as part of the consideration exceeds the
amount of money given or its equivalent
1. Donation
Sale
Onerous
Donation
Gratuitous
Requires consent and
must comply with the
Perfected by mere
formalities required by
consent
law for its validity. [Art.
745, CC]
The property sold
is replaced by the Requires that there be
equivalent
a diminution of the
monetary
estate of one party
consideration;
(donor)
and
the
there
is
no enrichment of the other
diminution of the party’s estate (donee)
seller’s estate
When the price of the contract of sale is
simulated, the sale may be void but the act may
be shown to have been in reality a donation or
some other contract. [Art. 1471, CC]
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. [Art. 745, CC]
2. Barter
Sale
Consideration is price in
money or its equivalent
SALE = where the value of the thing given as
part of the consideration equals or is less than
the amount of money given
3. Contract for a piece of work
Sale
Goods
are
manufactured
or
procured
in
the
ordinary course of
business
For the general
market, whether on
hand or not
Governed by Statute
of Frauds
is
Rules to determine whether contract is sale
or barter:
a. Manifest intention of the parties: Even if the
acquisition of a thing is paid for by another
object of greater value than the money
component, it may still be a sale and not a
barter, when such was the intention of the
parties
b. When intention does not appear and
consideration consists partly in money and
partly in another thing
Goods
are
manufactured
for
customer upon his
special order
For
a
customer
specific
Not within Statute of
Frauds
When each product or system executed is
always UNIQUE and could not mass-produce
the product because of its very nature, such is
a contract for a piece of work. [Commissioner
v. Engineering Equipment and Supply Co.,
G.R. No. L-27044 (1975)]
4. Dacion en pago
Sale
No pre-existing debt
Barter
Consideration
another thing
Contract for a
Piece of Work
Creates an obligation
Dacion en pago
Pre-existing debt
Extinguishes
the
obligation (mode of
payment)
Price is more freely
Price is the value of
agreed upon, fixed by
the thing given
the parties
Payment
is
received by the
Buyer has to pay the
debtor
before
price
contract
is
perfected
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5. Agency to sell
Sale
Agency to sell
Agent
receives
Buyer receives the
good as goods of
goods as owner
the principal
Agent delivers the
Buyer pays the price
price which he got
from his principal
Buyer cannot return
Agent can’t return
the object sold as a
the goods
general rule
Seller warrants the
thing sold
Not
unilaterally
revocable
Agent makes
warranty
Essentially
revocable
no
6. Lease
Sale
Lease
Ownership
No
transfer
of
transferred
by
ownership
delivery
Permanent
Temporary
Seller
must
be
Lessor need not be
owner at time of
owner
delivery
In the lease of things, one of the parties binds
himself to give to another the enjoyment or use
of a thing for a price certain, and for a period
which may be definite or indefinite. However,
no lease for more than ninety-nine years shall
be valid. [Art. 1643, CC]
2.
CIVIL LAW
SPECIAL CONTRACTS
Parties
General Rule: Any person who has capacity to
act may enter into a contract of sale.
[Villanueva]
As a general rule, all persons, whether natural
or juridical, who can bind themselves have also
legal capacity to buy and sell. [De Leon]
a. Capacity of Parties
Kinds of incapacity
1. Absolute [Art. 1327, 1397, 139, CC] - In
the case of persons who cannot bind
themselves
2. Relative - Married persons
3. Special disqualifications [Arts. 14911492, CC]
1. Absolute incapacity
a. Minors [Art. 1327, CC]
b. Insane or Demented [Art. 1327, CC]
c. Deaf-mutes who do not know how to write
[Art. 1327, CC]
d. Civil Interdiction [Art. 38, CC]
e. Judicially-declared Incompetents [Art. 39,
CC]
• Prodigal
• Imbeciles
• Absence & presumption of death
• Persons not of unsound mind but by
reason of age, disease, weak mind,
and other similar causes, cannot take
care of themselves and manage their
property without outside aid (Easy prey
for deceit and exploitation)
General Rule: Contracts entered into by a
minor and other incapacitated persons are
voidable.
Exception: Where necessaries are sold and
delivered to him (without parent or guardian),
he must pay a reasonable price therefor.
• Such contract is VALID
• But the minor has the right to recover any
excess above a reasonable value paid by
him.
2. Relative incapacity
1. Husband and wife [Art. 1490, CC]
General Rule: Cannot sell property to each
other
Exceptions:
• Separation of property in
settlement, OR
• Judicial separation of property.
Page 333 of 532
marriage
U.P. LAW BOC
CIVIL LAW
SPECIAL CONTRACTS
Sale by husband in favor of a concubine after
he had abandoned his family and left conjugal
home where his wife and children lived and
from whence they derived their support, is void.
[Ching v. Goyanko, Jr., G.R. No. 165879
(2006)]
was entrusted to them. Prohibition includes
judges and government experts who, in
any manner, take part in the sale.
5. Lawyers - Cannot acquire or purchase
property or rights in litigation in which they
take part by virtue of their profession
Reason for this rule: Such prohibition is for
the protection of third persons who, relying
upon supposed property of either spouse,
enters into a contract with either of them only
to find out that the property relied upon was
transferred to the other spouse. [De Leon]
For the prohibition to operate, the sale or
assignment must take place during the
pendency of the litigation involving the
property. [Laig v. Court of Appeals (1991)]
Exceptions: An assignment to a lawyer by
his client of an interest in the property does
not violate Art 1491, where:
a. A judgment has been rendered and
has become final; and
b. In case of contingency fee
arrangements: the interest of the
lawyer may be annotated as an
adverse claim on the property
awarded to his client [Director of
Lands v. Ababa, G.R. No. L-26096
(1979)]
2. Alienage [Art. 39, CC]
General Rule: Aliens are disqualified from
purchasing or acquiring real property.
Exception: If acquisition is through hereditary
succession
3. Trusteeship [Art. 39, CC]
3. Special disqualifications
Such is grounded on public policy
considerations which disallow the transactions
entered into by them (directly or indirectly) in
view of the fiduciary relationship involved or
the peculiar control exercised by these
individuals over the properties or rights
covered. [Mananquil v. Villegas (1990)]
1. Agents – Cannot purchase or acquire
property whose administration or sale was
entrusted to them, except if principal gives
consent
2. Guardian – Cannot purchase property of
person under his guardianship
3. Executors and administrators –Cannot
acquire or purchase property of estate
under their administration.
The prohibition on executors and
administrators does not apply if the
principal consents to the sale. [Distajo v.
CA, G.R. No. 112954 (2000)]
6. Justices,
Judges,
prosecuting
attorneys, clerks and other officers and
employees
connected
with
the
administration of justice - Cannot
acquire or purchase property or rights in
litigation or levied upon on execution
before the court within whose jurisdiction or
territory they exercise their respective
functions.
7. Others specially disqualified by law
i.
Unpaid sellers with goods in transit
from buying the goods
ii.
Officer conducting the execution
sale of deputies
iii.
Aliens who are disqualified to
purchase private agricultural lands
b. Effects of incapacity
1.
4. Public officers and employees - Cannot
acquire or purchase property of State/any
of
its
subdivisions,
GOCC
or
administration, the administration of which
Absolute incapacity
If
both
parties
are
incapacitated:
unenforceable [Art. 1403 (3), CC].
Page 334 of 532
U.P. LAW BOC
SPECIAL CONTRACTS
If only 1 party is incapacitated: voidable.
Exception: Where necessaries are sold and
delivered to a minor or to a person without
capacity to act, he must pay a reasonable price
therefor. [Art. 1489, par. 2, CC] The resulting
sale therefore described in the foregoing article
is valid and binding.
2.
RATIFIED by means of and in the form of a
new contract when the cause of nullity has
ceased to exist. Ratification is valid only from
date of execution of the new contract and does
not retroact.
3.
Obligations of the Vendor
(Note: Further discussion can also be found in
Section J of this Sales Reviewer, on the
Performance of the Contract.)
Relative incapacity
Sale between spouses is void.
Rationale:
1. To protect 3rd persons who may have
contracted with the spouse
2. To avoid undue advantage of the dominant
spouse over the weaker spouse.
3. To avoid circumvention of the prohibition
against donations between spouses.
[Medina v. CIR, G.R. No. L-15113 (1961)]
Such prohibition shall likewise apply to
common law spouses. [Calimlim-Canulas v.
Fortun, G.R. No. L-57499 (1984)]
Obligations of the Vendor in
General
1. To transfer ownership of the thing [Art.
1495, CC]
2. To deliver the thing, with its accessions and
accessories, if any [Arts. 1164, 1166, CC]
3. To warrant against eviction and against
hidden defects [Arts. 1545-1581, CC]
4. To take care of the thing, pending delivery,
with proper diligence [Art. 1163, CC]
5. To pay for the expenses of the deed of sale
[Art. 1487, CC]
But if already sold to a third person who relied
on the title of his immediate seller,
reconveyance to the seller spouse is no longer
available [Cruz v. CA, G.R. No. 120122 (1997)]
Sale contracted by aliens is void [Art. XII of the
Constitution]
3.
CIVIL LAW
Specific incapacity
General rule: Contracts expressly prohibited
by law are VOID and CANNOT BE RATIFIED.
Neither can the right to set-up the defense of
illegality be waived. [Art. 1409 (7), CC]
(1) To Transfer Ownership of the
Thing and To Deliver the
Thing, with its Accessions
and Accessories
i. When Seller is Not the Owner
General Rule: Ownership is not acquired by
the buyer. One cannot give what one does not
have. [Art. 1505, CC]
Exceptions:
a. Seller has a right to transfer ownership.
Those
entered
into
by
public
officers/employees, justices and judges, and
lawyers in violation of Art. 1491 are inexistent
and VOID from the beginning. [Rubias v.
Batiller, supra]. It is NOT subject to
RATIFICATION.
Exception: Sales entered into by guardians,
administrators,
and
agents
(specific
incapacities) in violation of Art. 1491 may be
Page 335 of 532
Seller need not be the owner of the thing at
the time of perfection of the contract. It is
sufficient that the seller has a right to
transfer ownership thereof at the time it is
delivered. [Art. 1459, CC]
One who sells something he does not own
yet is bound by the sale when he acquires
the thing later. [Bucton v. Gabar, G.R. No.
L-36359 (1974)]
U.P. LAW BOC
SPECIAL CONTRACTS
b. Estoppel: Owner is, by his conduct,
precluded from denying the seller’s
authority to sell. [Art. 1434, CC]
b.
c.
d.
e.
c. Registered land bought in good faith
General rule: Buyer need not go beyond
the Torrens Title
Exception: When he has actual
knowledge of facts and circumstances that
would impel a reasonably cautious man to
make further inquiry
d. Order of courts; Statutory Sale - In
execution sale, the buyer merely steps into
the shoes of the judgment debtor [Sec. 33,
Rule 39, ROC]
e. When goods are purchased in Merchant’s
store, Fair, or Market [Art. 1505, CC]
CIVIL LAW
Contract to sell
Contract of insurance
Sale on acceptance/Trial
When seller is not the owner or has
voidable title
Obligation to transfer ownership and to deliver
is implied in every contract of sale [Arts. 14581459, CC]
Transfer of ownership requires delivery [Art.
1495, CC]
General Concepts
Under Article 1495, the seller has twin
obligations to (a) transfer the ownership and (b)
deliver the thing, which is the object of sale to
the buyer. In Article 1164, this includes the
obligation to deliver the fruits and accessories
from the time the obligation to deliver it arises;
however he shall acquire no real right over
them until the same has been delivered to him.
ii. Sale by Person having a Voidable Title
a. True owner may recover the thing when the
ff. requisites concur:
• Subject matter is movable
• Owner has either lost the thing or
has been unlawfully deprived. [Art.
559, CC]
b. Reimbursement is necessary before owner
can recover when:
● Buyer acted in good faith
● Acquired at a public auction [Art.
559, CC]
c. Recovery no longer possible when:
● Buyer in good faith
● Acquired it at a merchant’s store,
fair or market. [Art. 1506, CC]
iii. Manner of Transfer [Arts. 1477, 1496-150,
CC]
Transfer of ownership is effected even if the
purchase has been made on credit. Payment
of the purchase price is not essential to transfer
of ownership as long as the property sold was
delivered.
Intention to transfer ownership
• All forms of delivery shall be coupled
with intention of delivering the thing
sold.
• Seller must be the owner or authorized
by owner of the thing sold
When right to transfer ownership must
exist: At the time of delivery and not at the time
of perfection of contract of sale.
iv. Concept of Delivery
General Rule: Ownership of the thing sold
shall be transferred to the vendee upon actual
or constructive delivery thereof [Art. 1477, CC]
Requisites
a. Identity – between what must be
delivered and what is actually delivered
b. Integrity – in a condition suitable for
enjoyment
c. Intentional
Exceptions:
a. Contrary stipulation
What to Deliver
a. Thing sold [Art. 1495, CC]
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b. Fruits [Art. 1164 & 1537, CC] – belong
to the vendee from day of perfection.
c. Accessions and accessories [Art. 1166
& 1537, CC] – in the same condition
they were in on day of perfection
● Improvements by seller at his
expense grants him a usufructuary
right [Art. 1138, 1189, CC]
● No indemnification
● But he may remove it to the extent
that there is no damage [Art. 1538,
CC]
Where to Deliver
a. A hierarchy is followed:
1. Stipulation
2. Usage of trade
3. Seller’s place of business (office)
4. Seller’s residence
b. In case of specific goods, which the parties
knew to be at some other place when the
contract was perfected, that place is the
place of delivery
c. If goods at the time of sale are possessed
by a third person, then there is no delivery
until he acknowledges to the buyer that he
holds the goods for the buyer.
When to Deliver
Absent a stipulation as to time, delivery must
be made within a reasonable time; demand or
tender of delivery shall be made at a
reasonable hour.
v. When Delivery Does Not Transfer Title
Sale on Approval or Trial
● Title
remains
with
the
seller
notwithstanding delivery of the goods.
● Buyer becomes the owner when he:
a. Signifies his approval or acceptance to
the seller
b. Does any other act adopting the
transaction (i.e. sale to a third person)
c. Retains the goods without giving notice
of rejection after the time fixed has
expired; if no time has been fixed, after
the expiration of a reasonable time [Art.
1502, CC]
CIVIL LAW
Sale or Return
● Buyer becomes owner of the property on
delivery, BUT has the option to revest
ownership in the seller instead of paying
the price by returning the goods within the
time fixed in the contract, or, if no time is
fixed, within a reasonable time. Otherwise,
the sale becomes absolute.
● Loss or destruction of the property prior to
return falls upon the buyer and makes him
responsible for the purchase price.
Sale on Approval v. Sale or Return
Sale on Approval
Sale or Return
Ownership passes to
Ownership does not
buyer on delivery
pass upon delivery
and
subsequent
remaining with the
return
revests
seller until buyer
ownership in the
signifies his approval.
seller.
Depends
on
the
Depends on the will
character or quality of
of the buyer
goods
Subject
to
a Subject
to
a
suspensive condition resolutory condition
Risk of loss remains Risk of loss remains
with the seller
with the buyer
Express Reservation
If it was stipulated that ownership in the thing
shall not pass to the purchaser until he has fully
paid the price, then ownership remains with
seller even when delivery is made [Art. 1478,
CC].
Implied Reservation
The following are instances when there is an
implied reservation of ownership:
a. Goods are shipped, but by the bill of
lading goods are deliverable to the
seller or his agent, or to the order of the
seller or his agent
b. Bill of lading is retained by the seller or
his agent.
When the seller of the goods draws on the
buyer for the price and transmits the bill of
exchange and bill of lading to the buyer, and
the latter does not honor the bill of exchange
by returning the bill of lading to the seller.
Page 337 of 532
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SPECIAL CONTRACTS
When Sale Not Valid
When the thing sold is a public property
CIVIL LAW
“Control” over thing sold must be such that
the seller is capable of physically
transferring it to buyer.
Sale by Person Having a Voidable Title
a. True owner may recover the thing when the
ff. requisites concur:
● Subject matter is movable
● Owner has either lost the thing or has
been unlawfully deprived. [Art. 559,
CC]
b. Reimbursement is necessary before owner
can recover when:
● Buyer acted in good faith
● Acquired at a public auction [Art. 559,
CC]
c. Recovery no longer possible when:
● Buyer in good faith
● Acquired it at a merchant’s store, fair or
market. [Art. 1506, CC]
Although parties may stipulate that the
execution of a public instrument is
equivalent to delivery, this legal fiction
holds true only when there is no
impediment that may prevent the passing
of the property from the vendor to the
vendee. [Vda. de Sarmiento v. Lesaca,
G.R. No. L-15385 (1960)]
If, notwithstanding execution of the
instrument, the buyer cannot enjoy material
tenancy and make use of the object himself
or through another in his name, there is no
delivery. [Power Commercial v. CA, G.R.
No. 119745 (1997)]
vi. Kinds of Delivery
Execution of a public instrument gives rise
only to a prima facie presumption of
delivery, negated by failure of the buyer to
take actual possession of land sold. A
person who does not have actual
possession cannot transfer constructive
possession by execution and delivery of
public instrument. [Spouses Santiago v.
Villamor, G.R. No. 168499 (2012)]
Actual Delivery
Deemed made when the thing sold is placed in
the control and possession of the vendee [Art.
1497, CC]
Not always essential to passing of title [Art.
147, CC]
Parties may agree when and on what
conditions the ownership shall pass to the
buyer [e.g.: Art 1478 where ownership will only
pass after full payment of the price]
Constructive Delivery
a. Execution of public instrument [par. 1,
Art. 1498, CC]
General Rule: produces the same legal effects
of actual delivery.
Exceptions:
1. The parties intended otherwise.
2. At the time of execution, the subject matter
was not subject to the control of the seller,
which control must subsist for a
reasonable length of time after execution.
[Pasagui v. Villablanca, G.R. No. L-21998
(1975)]
b. Symbolic Delivery
Delivery of keys of the place or depositary
where the movable is stored or kept. [Art. 1498,
CC]
Unless otherwise agreed, when symbolic
delivery has been made, the seller is not
obliged to remove tenants to place the buyer in
actual possession of the property as he has
already complied with his obligation to transfer
ownership of and deliver the thing sold. [Power
Commercial and Industrial Corp. v. CA, G.R.
No. 119745 (1997); Sabio v. The International
Corporate Bank, Inc., G.R. No. 132709 (2001)]
c. Traditio Longa Manu (Long Hand)
Delivery of movable property by mere consent
or agreement, if the thing sold cannot be
Page 338 of 532
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SPECIAL CONTRACTS
transferred to the possession of the buyer at
the time of sale. [Art. 1499, CC]
Example: Seller points to the property without
actually transferring physical possession
thereof.
Delivery by mere agreement; seller points out
to the buyer the property without need of
actually delivering (as when the thing sold
cannot be transferred to the possession of the
vendee at the time of sale). Delivery takes
place when the thing is placed in the sight of
the purchaser so that he can take possession
of it at pleasure. With regard to movable
property, its delivery may also be made by the
delivery of the keys of the place or depository
where it is stored or kept.
CIVIL LAW
For example, a seller remains in possession of
the property sold, by virtue of a lease
agreement with the vendee, at the time of the
perfection of the contract of sale.
Vendee became, as lessor, the legal
possessor while the vendor is in material
possession of the property in the name and
representation of the vendee.
Seller continues to be in possession of the
property sold
f.
Quasi-traditio
Mode of delivery of incorporeal things or rights.
When an employer assigned all its rights and
title to all surplus property salvaged by the
contractor, traditio longa manu takes place.
Delivery is upon the moment a thing is
salvaged. [Board of Liquidators v. Floro, G.R.
No. L-15155 (1960)]
Delivery is effected:
● By execution of public instrument
● When such is not applicable, by placing
the titles of ownership in the
possession of the buyer
● By allowing the buyer to use his rights
as new owner with the consent of the
seller
d. Traditio Brevi Manu (Short Hand)
g. Delivery to a Common Carrier
Delivery of movable property by mere consent
or agreement, if the buyer already had it in his
possession for any other reason. [Art. 1499,
CC]
General Rule: Delivery to the courier or carrier
is tantamount to delivery to buyer, whether
carrier is named by buyer or not. The buyer
assumes the risk of loss.
Happens when the already has possession of
the thing sold before the sale by virtue of
another title (as lessee, borrower, depositary,
etc.)
Exceptions
1. Seller reserved title through the form of the
bill of lading, with intent to remain the
owner, not merely for the purpose of
securing payment, OR
2. Contrary intention appears in the contract
(i.e. seller is required to deliver goods to
buyer at the point of destination)
3. Delivery by the seller is in breach of the
contract
4. F.O.B. (Free on Board or Freight on Board)
- When seller bears the expenses of
transportation up to the F.O.B. point.
5. C.I.F. (Cost, Insurance, Freight) - Price
quoted includes the costs of the goods,
insurance, and freight charges on the
goods up to the point of destination.
e. Traditio Constitutum Possessorium
Seller continues to be in possession of the
property sold not as owner but in some other
capacity, like as tenant or lessee.
At the time of perfection, the seller held
possession of the subject matter in the concept
of owner, and pursuant to the contract, the
seller continues to hold physical possession
thereof as lessee or other form of possession
other than the concept of owner.
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6. F.A.S. (Free Alongside) – Seller bears the
expenses of transportation until he delivers
the goods alongside a vessel at a named
port.
vii. Double Sales [Art. 1544, CC]
General Rule: Prior tempore, prior jure (“First
in time, priority in right”) applies.
Requisites:
a. 2 or more valid sales;
b. Same subject matter;
c. 2 or more buyers with conflicting interests
over the rightful ownership of the thing
sold;
d. Same seller. [Cheng v. Genato, G.R. No.
129760 (1998)]
Rules Governing Sale of Movables,
Immovables and Unregistered Lands
a. Sale of Movable: Ownership shall be
transferred to the person who may have
first taken possession in good faith.
b. Sale of Immovables: Registered Land –
Ownership belongs to the person who:
● In good faith first recorded the sale in
the Registry of Property; or
● If there is no inscription of sale on the
title, ownership passes to the person
who in good faith was first in
possession; or
● In the absence thereof, to the person
who presents the oldest title,
provided there is good faith.
Rules on Double Sale
There is no double sale when:
a. Not all the elements of a sale are present
b. The principle of prior tempore, prior jure (he
who is first in time is preferred in right)
should apply
c. The two different contracts of sale are
made by two different persons, one of them
not being the owner of the property sold.
d. The land sold is not yet registered under
the Torrens system
e. The first sale occurred when land was not
yet registered, and the second sale was
done when the land was already registered
– prior tempore, prior jure should apply
Rules on Preference
a. Personal property
b. First possessor in good faith
c. Real property
d. First registrant in good faith: second buyer
must register the document in good faith,
otherwise, he does not have a better right
e. First possessor in good faith
f. Person with oldest title in good faith
Caveat emptor: One who purchases real
property which is in actual possession of others
should make some inquiry concerning the
rights of those in posses
CIVIL LAW
Possession refers to any of the modes of
possession in Arts. 1497-1501, CC
Oldest Title as to any public document
showing acquisition of the land in good
faith. To constitute “title,” the transmission
of ownership must appear in a public
document [Art. 1358 (1), CC]
Registration includes any entry made in
the Primary Entry Book of the registry,
including both registration in its ordinary
and strict sense and cancellation,
annotation, and even marginal notes.
[Cheng v. Genato, G.R. No. 129760
(1998)]
Pencilled entries on the title are not
considered registration. [AFPMBAI v. Court
of Appeals, G.R. No. 126745 (1999)]
c. Second Sale Made by Virtue of
Execution and Attachment – Art. 1544
does NOT apply in cases where the first
sale of an unregistered immovable
occurred prior to an execution sale and the
second sale occurred by virtue of an
execution sale. This is because a buyer of
unregistered land at an execution sale only
steps into the shoes of the judgment debtor
(the person who sold the property prior to
the execution sale). The second buyer
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merely acquires the latter’s interest in the
property sold as of the time the property
was levied upon. [Carumba v. CA, G.R. No.
L-27587 (1970)]
d. Sale of Immovables: Unregistered Land
Instrument
or
deeds
establishing,
transmitting, acknowledging, modifying or
extinguishing rights with respect to lands
not registered under the Land Registration
Act or the Spanish Mortgage Law, are
required to be registered in the Registry of
Property to prejudice 3rd persons, although
such registration is understood to be
“without prejudice to a third party with a
better right”. [PD 1528 Sec 113]
Art. 1544 applies to unregistered land
subject to a conventional sale (because of
Art. 1358) but NOT to unregistered land
subject to judicial sale.
Unregistered by both buyers, the first buyer
is preferred.
If first buyer did not register but second buyer
registered property, second buyer is preferred.
viii. Property Registration Decree [P.D.
1529]
REQUISITES FOR REGISTRATION
DEED OF SALE IN GOOD FAITH
OF
a. Purchaser in Good Faith - One who buys
the property of another, without notice that
some other person has a right to or interest
in such property, and who pays a full and
fair price for the sale, at the time of the
purchase or before he has notice of the
claim/interest of some other person in the
property. [Agricultural and Home Extension
Development Group v. CA, G.R. No. 92310
(1992)]
General Rule: As a rule, he who asserts the
status of a purchaser in good faith and for value
has the burden of proving such assertion.
[Mathay v. CA, G.R. No. 115788 (1998)]
CIVIL LAW
When buyer is presumed to be in bad faith
● Annotation of adverse claim: Places any
subsequent buyer of the registered land in
bad faith. [Balatbat v. CA, G.R. No. 109410
(1996)]
● Annotation of Lis Pendens: Buyer cannot
be considered an innocent purchaser for
value where it ignored the lis pendens on
the title.
● A purchaser of a parcel of land cannot
close his eyes to facts which should put a
reasonable man upon his guard, such as
when the property subject of the purchase
is in the possession of persons other than
the seller. A buyer who could not have
failed to know or discover that the land sold
to him was in the adverse possession of
another is a buyer in bad faith. [Heirs of
Ramon Durano v. Uy, G.R. No. 136456
(2000)]
Annotation of
Adverse Claim
May be cancelled
May be cancelled
only
in
one
even before the action
instance, i.e., after
is finally terminated
the
claim
is
for causes which may
adjudged invalid or
not be attributable to
unmeritorious
by
the claimant
the Court
Lis Pendens
The two are not contradictory or repugnant to
one another; nor does the existence of one
automatically nullify the other, and if any of the
registrations
should
be
considered
unnecessary or superfluous, it would be the
notice of lis pendens [A. Doronila Resources
Development Inc v. CA, G.R. Nos. L-42956571988]
b. Accompanied by vendors duplicate
certificate of title, payment of capital
gains tax, and documentary tax
registration fees
Must be accompanied by:
● Vendor’s duplicate certificate of title
● Payment of capital gains tax – 6% of the
selling price or zonal value, whichever is
higher
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●
SPECIAL CONTRACTS
Documentary tax registration fees – 1.5%
of the selling price or zonal value,
whichever is higher
makes an alteration in them in a
manner proper only for an owner;
or
c. When the buyer, after the lapse of
a reasonable time, retains the
goods without intimating his
rejection.
ix. Risk of Loss
(Note: This is discussed under Section F of this
Sales Reviewer, on Risk of Loss.)
(2) To Warrant Against Eviction
and Against Hidden Defects
(Note: This is discussed under Section H of this
Sales Reviewer, on Warranties.)
4.
Obligations of the Vendee
Inspection and acceptance
The buyer is deemed to have accepted the
goods when:
1. He intimates to the seller that he has
accepted them
2. The goods have been delivered to him and
he does any act in relation to them which is
inconsistent with the ownership of the
seller
3. After the lapse of a reasonable time, he
retains the goods without intimating to the
seller that he has rejected them. [Art. 1585,
CC]
General rule: Exercise of acts of ownership
over the goods is a manifestation of
acceptance, such as making use of them as
owner, making alterations in the goods, or
subjecting it to the process of manufacture.
Exception: Buyer’s right to make a test of
goods, but only if necessary, to enable him to
determine whether to accept or reject the
goods.
Modes of acceptance
2. Express acceptance - Buyer intimates to
the seller that the has accepted them
3. Implied acceptance
b. When the vendee, after delivery of
goods, does any act inconsistent
with the vendor’s ownership or
CIVIL LAW
Vendee’s refusal
If vendee has the right to refuse and rightfully
refused upon delivery,
He has no obligation to return them UNLESS
otherwise agreed BUT he has to take
reasonable care of the goods
He is not a depositary thereof UNLESS he
voluntarily agrees to be one
i. Inspection/buyer’s right to examine
[Art. 1584]
General rule: The buyer is not deemed to have
accepted the goods delivered which he has not
previously examined unless and until he has
had a reasonable opportunity to examine them
for the purpose of ascertaining whether they
are in conformity with the contract.
Exception: If there is a stipulation to the
contrary [par. 1, Art. 1584, CC]
General rule: The seller is bound, when he
tenders delivery to the buyer, on request, to
afford the buyer a reasonable opportunity to
examine the goods for the purpose of
ascertaining whether they are in conformity
with the contract.
Exception: Unless otherwise agreed upon
[par. 2, Art. 1584, CC]
Exception to the right to examine: C.O.D.
Sales
Where goods are delivered to a carrier by the
seller, in accordance with an order from or
agreement with the buyer, upon the terms that
the goods shall not be delivered by the carrier
to the buyer until he has paid the price, whether
such terms are indicated by marking the goods
with the words "collect on delivery," or
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otherwise, the buyer is not entitled to examine
the goods before the payment of the price, in
the absence of:
a. agreement; or
b. usage of trade
c. permitting such examination. [par. 3,
Art. 1584, CC]
ii. Delivery of goods in installment
General rule: The vendee is not bound to
accept delivery of goods in installment
Exception: Unless otherwise agreed upon
[par. 1, Art. 1583, CC]
Where separate price has been fixed for
each installment [par. 2, Art. 1583, CC]
Where there is a contract of sale of goods
1. To be delivered by stated installments,
2. To be separately paid for, and
3. The seller makes defective deliveries in
respect of one or more installments, or the
buyer neglects or refuses without just
cause to take delivery of or pay for one or
more installments.
It depends in each case on the terms of the
contract and the circumstances of the case:
1. Whether the breach of contract is so
material as to justify the injured party in
refusing to proceed further and suing for
damages for breach of the entire contract,
or
2. Whether the breach is severable, giving
rise to a claim for compensation but not to
a right to treat the whole contract as
broken.
Obligation to pay the price
Article 1582, CC: The vendee is bound to
accept delivery and to pay the price of the
thing sold at the time and place stipulated in
the contract.
If the time and place should not have been
stipulated, the payment must be made at the
time and place of the delivery of the thing
sold.
CIVIL LAW
i. Obligation to pay interest
The buyer shall owe interest on the price from
the time the thing is delivered up to the time of
payment if there is stipulation requiring
interests, or even if there is none, if the thing
delivered produces fruits or income, or if the
buyer incurs in default from the time of judicial
or extrajudicial demand for payment [Baviera].
The three instances when the vendee shall pay
interest for the period between delivery and
payment of the price:
1. If there was a stipulation;
2. If the thing sold and delivered produces
fruits or income;
3. If the vendee is in default, from the time of
judicial or extrajudicial demand for
payment [Art. 1589, CC].
ii. Right of vendee to suspend payment
of price
The vendee has the right to suspend in two
instances:
1. If he is disturbed in the possession or
ownership of the thing bought; or
2. If he has reasonable grounds to fear such
disturbance, by a vindicatory action or a
foreclosure of mortgage [Art. 1590, CC]
Except
1. If the vendor gives security for the return of
the price in a proper case
2. If it has been stipulated
3. If the vendor caused disturbance or danger
to cease
4. If the disturbance is a mere act of trespass
5. If the vendee has already fully paid the
price [De Leon]
Should the vendee be disturbed in the
possession or ownership of the thing delivered,
or should he have reasonable grounds to fear
such disturbance by a vindicatory action, or a
foreclosure of mortgage, he may suspend
payment until the vendor has caused the
disturbance or danger to cease, unless there is
a stipulation to the contrary [Baviera]
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In cases of delay of payment, one should also
be liable for interest and penalties for such
delay in payment. It would be grossly unfair for
respondent to be deprived of the amount it
would have received from the sale of their
properties, while petitioners benefited from the
use and continued possession of the properties
[Sps. Mahusay v. B.E. San Diego (2011)].
Obligation
to
Bear
the
Expenses for the Execution and
Registration of the Sale and
Putting the Goods in a
Deliverable
State,
if
so
Stipulated
Art.1521, par. 5: Unless otherwise agreed, the
expenses of and incidental to putting the goods
into a deliverable state must be borne by the
seller.
5. Transfer of Ownership
The ownership of the thing sold shall be
transferred to the vendee upon the actual or
constructive delivery thereof, or in any manner
signifying an agreement that possession is
transferred from the vendor to the vendee.
[Baviera]
Note: The contract of sale constitutes only a
right to the transfer or acquisition of ownership,
while delivery is the method of accomplishing
the same.
When the seller is not the owner
General Rule: Ownership is not acquired by
the buyer. One cannot give what one does not
have. [Art. 1505, CC]
Exceptions
1. Seller has a right to transfer ownership
Seller need not be the owner of the thing at
the time of perfection of the contract. It is
sufficient that seller has a right to transfer
ownership thereof at the time it is delivered.
[Art. 1459, CC]
One who sells something he does not own
yet is bound by the sale when he acquires
the thing later. [Bucton v. Gabar, G.R. No.
L-36359 (1974)]
2. Estoppel: Owner is, by his conduct,
precluded from denying the seller’s
authority to sell. [Art. 1434, CC]
3. Registered land bought in good faith
General rule: Buyer need not go beyond
the Torrens Title
Exception: When he has actual
knowledge of facts and circumstances that
would impel a reasonably cautious man to
make further inquiry
4. Order of courts; statutory sale - In
execution sale, the buyer merely steps into
the shoes of the judgment debtor [Sec. 33,
Rule 39, ROC]
5. When goods are purchased in Merchant’s
store, Fair, or Market [Art. 1505, CC]
Sale by Person
Voidable Title
Having
a
1. True owner may recover the thing when
the ff. requisites concur:
• Subject matter is movable
• Owner has either lost the thing or has
been unlawfully deprived. [Art. 559,
CC]
2. Reimbursement is necessary before
owner can recover when:
• Buyer acted in good faith
• Acquired at a public auction [Art. 559,
CC]
3. Recovery no longer possible when:
• Buyer in good faith
• Acquired it at a merchant’s store, fair or
market. [Art. 1506, CC]
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The manner of transfer
General Rule: Ownership of the thing sold
shall be transferred to the vendee upon actual
or constructive delivery thereof [Art. 1477, CC]
Exceptions
a. Contrary stipulation
b. Contract to sell
c. Contract of insurance
d. Sale on acceptance/Trial
e. When seller is not the owner or has
voidable title
Obligation to transfer ownership and to deliver
is implied in every contract of sale [Arts. 14581459, CC]
General Concepts
Under Article 1495, the seller has twin
obligations to (a) transfer the ownership and (b)
deliver the thing, which is the object of sale to
the buyer. In Article 1164, this includes the
obligation to deliver the fruits and accessories
from the time the obligation to deliver it arises;
however he shall acquire no real right over
them until the same has been delivered to him.
Transfer of ownership is effected even if the
purchase has been made on credit. Payment
of the purchase price is not essential to transfer
of ownership as long as the property sold was
delivered.
Intention to transfer ownership
All forms of delivery shall be coupled with
intention of delivering the thing sold.
Seller must be owner or authorized by owner of
the thing sold
Requisites
a. Identity – between what must be
delivered and what is actually delivered
b. Integrity – in a condition suitable for
enjoyment
c. Intentional
What to Deliver
a. Thing sold [Art. 1495, CC]
b. Fruits [Art. 1164 & 1537, CC] – belong
to the vendee from day of perfection.
c. Accessions and accessories [Art. 1166
& 1537, CC] – in the same condition
they were in on day of perfection
• Improvements by seller at his
expense grants him a usufructuary
right [Art. 1138, 1189, CC]
• No indemnification
• But he may remove it to the extent
that there is no damage [Art. 1538,
CC]
Where to Deliver
a. A hierarchy is followed:
i. Stipulation
ii. Usage of trade
iii. Seller’s place of business (office)
iv. Seller’s residence
b. In case of specific goods, which the parties
knew to be at some other place when the
contract was perfected, that place is the
place of delivery
c. If goods are at the time of sale are
possessed by a third person, then there is
no delivery until he acknowledges to the
buyer that he holds the goods for the buyer.
When to Deliver
Absent a stipulation as to time, delivery must
be made within a reasonable time; demand or
tender of delivery shall be made at a
reasonable hour.
When right to transfer ownership must exist
At the time of delivery and not at the time of
perfection of contract of sale.
The concept of delivery
CIVIL LAW
When delivery does not transfer
title
Title remains with the seller notwithstanding
delivery of the goods. Buyer becomes the
owner when he:
a. Signifies his approval or acceptance to the
seller
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b. Does any other act adopting the
transaction (i.e. sale to a third person)
c. Retains the goods without giving notice of
rejection after the time fixed has expired; if
no time has been fixed, after the expiration
of a reasonable time [Art. 1502, CC]
Sale on Return
Buyer becomes owner of the property on
delivery, BUT has the option to revest
ownership in the seller instead of paying the
price by returning the goods within the time
fixed in the contract, or, if no time is fixed, within
a reasonable time. Otherwise, the sale
becomes absolute.
Loss or destruction of the property prior to
return falls upon the buyer and makes him
responsible for the purchase price.
Sale on Approval
Ownership does not
pass upon delivery
remaining with the
seller until buyer
signifies his approval.
Depends on the
character or quality of
goods
Subject
to
a
suspensive condition
Sale on Return
Ownership passes
to buyer on delivery
and
subsequent
return
revests
ownership in the
seller.
Depends on the will
of the buyer
Subject
to
a
resolutory condition
Risk of loss remains Risk of loss remains
with the seller
with the buyer
Express Reservation
If it was stipulated that ownership in the thing
shall not pass to the purchaser until he has fully
paid the price, then ownership remains with
seller even when delivery is made [Art. 1478,
CC]
Implied Reservation
The following are instances when there is an
implied reservation of ownership:
a. Goods are shipped, but by the bill of lading
goods are deliverable to the seller or his
agent, or to the order of the seller or his
agent
CIVIL LAW
b. Bill of lading is retained by the seller or his
agent.
When the seller of the goods draws on the
buyer for the price and transmits the bill of
exchange and bill of lading to the buyer, and
the latter does not honor the bill of exchange
by returning the bill of lading to the seller.
Sale by Person Having a Voidable Title
a. True owner may recover the thing when the
ff. requisites concur:
• Subject matter is movable
• Owner has either lost the thing or has
been unlawfully deprived. [Art. 559,
CC]
b. Reimbursement is necessary before owner
can recover when:
• Buyer acted in good faith
• Acquired at a public auction [Art. 559,
CC]
c. Recovery no longer possible when:
• Buyer in good faith
• Acquired it at a merchant’s store, fair or
market. [Art. 1506, CC]
i. Actual delivery
Actual Delivery
Deemed made when the thing sold is placed in
the control and possession of the vendee [Art.
1497, CC]
Not always essential to passing of title [Art.
147, CC]
Parties may agree when and on what
conditions the ownership shall pass to the
buyer [E.g.: Art 1478 where ownership will only
pass after full payment of the price]
ii. Execution of public instrument [par. 1,
Art. 1498, CC]
General Rule: produces the same legal effects
of actual delivery.
Exceptions
1. The parties intended otherwise.
2. At the time of execution, the subject
matter was not subject to the control of
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the seller, which control must subsist
for a reasonable length of time after
execution. [Pasagui v. Villablanca,
G.R. No. L-21998 (1975)]
Although parties may stipulate that the
execution of a public instrument is equivalent
to delivery, this legal fiction holds true only
when there is no impediment that may prevent
the passing of the property from the vendor to
the vendee. [Vda. de Sarmiento v. Lesaca,
G.R. No. L-15385 (1960)]
If, notwithstanding execution of the instrument,
the buyer cannot enjoy material tenancy and
make use of the object himself or through
another in his name, there is no delivery.
[Power Commercial v. CA, G.R. No. 119745
(1997)]
Execution of a public instrument gives rise only
to a prima facie presumption of delivery,
negated by failure of the buyer to take actual
possession of land sold. A person who does
not have actual possession cannot transfer
constructive possession by execution and
delivery of public instrument. [Spouses
Santiago v. Villamor, G.R. No. 168499 (2012)]
iii. Symbolic delivery
Delivery of keys of the place or depositary
where the movable is stored or kept. [Art. 1498,
CC]
Unless otherwise agreed, when symbolic
delivery has been made, the seller is not
obliged to remove tenants to place the buyer in
actual possession of the property as he has
already complied with his obligation to transfer
ownership of and deliver the thing sold. [Power
Commercial and Industrial Corp. v. CA, G.R.
No. 119745 (1997); Sabio v. The International
Corporate Bank, Inc., G.R. No. 132709 (2001)]
iv. Traditio longa manu (long hand)
Delivery of movable property by mere consent
or agreement, if the thing sold cannot be
transferred to the possession of the buyer at
the time of sale. [Art. 1499, CC]
CIVIL LAW
Example:
Seller points to the property without actually
transferring physical possession thereof.
Delivery by mere agreement; seller points out
to the buyer the property without need of
actually delivering (as when the thing sold
cannot be transferred to the possession of the
vendee at the time of sale). Delivery takes
place when the thing is placed in the sight of
the purchaser so that he can take possession
of it at pleasure. With regard to movable
property, its delivery may also be made by the
delivery of the keys of the place or depository
where it is stored or kept.
When an employer assigned all its rights and
title to all surplus property salvaged by the
contractor, traditio longa manu takes place.
Delivery is upon the moment a thing is
salvaged. [Board of Liquidators v. Floro, G.R.
No. L-15155 (1960)]
v. Traditio brevi manu (short hand)
Delivery of movable property by mere consent
or agreement, if the buyer already had it in his
possession for any other reason. [Art. 1499,
CC]
Happens when the already has possession of
the thing sold before the sale by virtue of
another title (as lessee, borrower, depositary,
etc.)
vi. Traditio constitutum possessorium
Seller continues to be in possession of the
property sold not as owner but in some other
capacity, like as tenant or lessee.
At the time of perfection, the seller held
possession of the subject matter in the concept
of owner, and pursuant to the contract, the
seller continues to hold physical possession
thereof as lessee or other form of possession
other than the concept of owner.
For example, a seller remains in possession of
the property sold, by virtue of a lease
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agreement with the vendee, at the time of the
perfection of the contract of sale.
Vendee became, as lessor, the legal
possessor while the vendor is in material
possession of the property in the name and
representation of the vendee.
Seller continues to be in possession of the
property sold.
vii. Quasi-traditio
Mode of delivery of incorporeal things or rights.
Delivery is effected:
• By execution of public instrument
• When such is not applicable, by placing
the titles of ownership in the
possession of the buyer
• By allowing the buyer to use his rights
as new owner with the consent of the
seller
viii. Delivery to a common carrier
General Rule: Delivery to the courier or carrier
is tantamount to delivery to buyer, whether
carrier is named by buyer or not. The buyer
assumes the risk of loss.
Exceptions
1. Seller reserved title through the form of the
bill of lading, with intent to remain the
owner, not merely for the purpose of
securing payment, OR
2. Contrary intention appears in the contract
(i.e. seller is required to deliver goods to
buyer at the point of destination)
3. Delivery by the seller is in breach of the
contract
4. F.O.B. (Free on Board or Freight on Board)
- When seller bears the expenses of
transportation up to the F.O.B. point.
5. C.I.F. (Cost, Insurance, Freight) - Price
quoted includes the costs of the goods,
insurance, and freight charges on the
goods up to the point of destination.
6. F.A.S. (Free Alongside) – Seller bears the
expenses of transportation until he delivers
the goods alongside a vessel at a named
port.
Double sale
Article 1544 (1), CC: If the same thing
should have been sold to different vendees,
the ownership shall be transferred to the
person who may have first taken possession
thereof in good faith, if it should be movable
property.
Article 526, CC: He is deemed a possessor
in good faith who is not aware that there
exists in his title or mode of acquisition any
flaw which invalidates it.
He is deemed a possessor in bad faith who
possesses in any case contrary to the
foregoing.
Mistake upon a doubtful or difficult question
of law may be the basis of good faith.
Article 527, CC: Good faith is always
presumed, and upon him who alleges bad
faith on the part of a possessor rests the
burden of proof.
General Rule: Prior tempore, prior jure (“First
in time, priority in right”) applies.
Requisites:
a. 2 or more valid sales;
b. Same subject matter;
c. 2 or more buyers with conflicting
interests over the rightful ownership of
the thing sold;
d. Same seller. [Cheng v. Genato, G.R.
No. 129760 (1998)]
Rules on Double Sale
There is no double sale when:
a. Not all the elements of a sale are present
b. The principle of prior tempore, prior jure (he
who is first in time is preferred in right)
should apply
c. The two different contracts of sale are
made by two different persons, one of them
not being the owner of the property sold.
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d. The land sold is not yet registered under
the Torrens system
e. The first sale occurred when land was not
yet registered, and the second sale was
done when the land was already registered
– prior tempore, prior jure should apply
Rules on preference
a. Personal property
b. First possessor in good faith
c. Real property
d. First registrant in good faith: second buyer
must register the document in good faith,
otherwise, he does not have a better right
e. First possessor in good faith
f. Person with oldest title in good faith
Rules Governing Sale of Movables,
Immovables and Unregistered Lands
a. Sale of Movable: Ownership shall be
transferred to the person who may have
first taken possession in good faith.
b. Sale of Immovables: Registered Land –
Ownership belongs to the person who:
• In good faith first recorded the sale in
the Registry of Property; or
• If there is no inscription of sale on the
title, ownership passes to the person
who in good faith was first in
possession; or
• In the absence thereof, to the person
who presents the oldest title,
provided there is good faith.
c. Second Sale Made by Virtue of Execution
and Attachment –
Art. 1544 does NOT apply in cases where
the first sale of an unregistered immovable
occurred prior to an execution sale and the
second sale occurred by virtue of an
execution sale. This is because a buyer of
unregistered land at an execution sale only
steps into the shoes of the judgment debtor
(the person who sold the property prior to
the execution sale). The second buyer
merely acquires the latter’s interest in the
property sold as of the time the property
was levied upon. [Carumba v. CA, G.R. No.
L-27587 (1970)]
d. Sale of Immovables: Unregistered Land –
Instrument
or
deeds
establishing,
transmitting, acknowledging, modifying or
extinguishing rights with respect to lands
not registered under the Land Registration
Act or the Spanish Mortgage Law, are
required to be registered in the Registry of
Property to prejudice 3rd persons, although
such registration is understood to be
“without prejudice to a third party with a
better right”. [PD 1528 Sec 113]
Art. 1544 applies to unregistered land
subject to a conventional sale (because of
Art. 1358) but NOT to unregistered land
subject to judicial sale.
Unregistered by both buyers, the first buyer
is preferred.
Possession refers to any of the modes of
possession in Arts. 1497-1501, CC.
Oldest Title as to any public document
showing acquisition of the land in good
faith. To constitute “title,” the transmission
of ownership must appear in a public
document [Art. 1358 (1), CC].
Registration includes any entry made in
the Primary Entry Book of the registry,
including both registration in its ordinary
and strict sense and cancellation,
annotation, and even marginal notes.
[Cheng v. Genato, G.R. No. 129760
(1998)]
CIVIL LAW
If first buyer did not register but the second
buyer registered the property, the second
buyer is preferred.
g. Property Registration Decree
Requisites for registration of deed of sale in
good faith
a. Purchaser in Good Faith - One who buys
the property of another, without notice that
some other person has a right to or interest
in such property, and who pays a full and
fair price for the sale, at the time of the
purchase or before he has notice of the
claim/interest of some other person in the
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property. [Agricultural and Home Extension
Development Group v. CA, G.R. No. 92310
(1992)]
General Rule: As a rule, he who asserts the
status of a purchaser in good faith and for value
has the burden of proving such assertion.
[Mathay v. CA, G.R. No. 115788 (1998)]
When buyer is presumed to be in bad faith
Annotation of adverse claim: Places any
subsequent buyer of the registered land in bad
faith. [Balatbat v. CA, G.R. No. 109410 (1996)]
Annotation of Lis Pendens: Buyer cannot be
considered an innocent purchaser for value
where it ignored the lis pendens on the title.
A purchaser of a parcel of land cannot close his
eyes to facts which should put a reasonable
man upon his guard, such as when the property
*subject of the purchase is in the possession of
persons other than the seller. A buyer who
could not have failed to know or discover that
the land sold to him was in the adverse
possession of another is a buyer in bad faith.
[Heirs of Ramon Durano v. Uy, G.R. No.
136456 (2000)]
Lis Pendens
May be cancelled
even before the
action
is
finally
terminated
for
causes which may
not be attributable to
the claimant
Annotation of
Adverse Claim
May be cancelled
only in one instance,
i.e., after the claim is
adjudged invalid or
unmeritorious by the
Court
The two are not contradictory or repugnant to
one another; nor does the existence of one
automatically nullify the other, and if any of the
registrations
should
be
considered
unnecessary or superfluous, it would be the
notice of lis pendens [A. Doronila Resources
Development Inc v. CA, G.R. Nos. L-42956571988]
CIVIL LAW
b. Accompanied by vendors duplicate
certificate of title, payment of capital
gains tax, and documentary tax
registration fees
Must be accompanied by:
• Vendor’s duplicate certificate of title
• Payment of capital gains tax – 6% of the
selling price or zonal value, whichever is
higher
• Documentary tax registration fees – 1.5%
of the selling price or zonal value,
whichever is higher
6. Risk of Loss
The Code Commission followed the common
law rule that the OWNER bears the risk of
loss in absence of stipulation to the contrary,
while retaining the rule in Roman Law which
requires delivery by the seller, whether actual
or constructive, to transfer OWNERSHIP to the
buyer.
Article 1263, CC: In an obligation to deliver
a generic thing, the loss or destruction of
anything of the same kind does not
extinguish the obligation.
General Rule: Risk of loss shall be borne by
the owner (Note: owner is not always the seller)
Exceptions
1. When ownership of the goods has been
transferred to him, the buyer bears the risk
of loss.
2. When there is a stipulation to the contrary.
3. When the seller retains the title for security,
the buyer bears the risk of loss.
4. When there is delay in the delivery, the
party in fault bears the risk of loss.
5. When sale is for “approval or trial”, the
seller bears the risk of loss until the buyer
approves or the trial period lapses.
6. When sale is on “return”, the buyer bears
the risk of loss until he returns it.
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Res Perit domino [Arts. 1263,
and 1189 CC]
Owner bears risk of loss and deterioration. The
ownership is transferred only upon delivery.
(1) As avoided; or
(2) As valid in all of the existing goods or in
so much thereof as have not deteriorated,
and as binding the buyer to pay the agreed
price for the goods in which the ownership
will pass, if the sale was divisible.
Total Loss
Partial Loss (Or loss
which results in
substantial change in
character)
Contract is void
because
the
object did not
exist at the time
of
the
transaction.
Buyer may withdraw from
the contract
or
Buy the remainder at a
proportionate price
Prior to Perfection of Contract
Seller bears risk of loss and deterioration.
Basis: Res perit domino
When there is no proof that the parties have
agreed as to the thing which should be the
subject of the contract and that one has
accepted the terms proposed by the other, it
cannot be said that the contracting parties have
given their mutual consent as to the subject
and consideration of the contract. The
disappearance or loss of property which the
owner intended or attempted to sell can only
interest the owner, who should suffer the loss,
and not a third party who has acquired no rights
nor incurred any liability with respect thereto.
[Roman v. Grimalt, 1906]
At Time of Perfection [Arts. 1493
and 1494, CC]
Seller bears risk of loss and deterioration.
Basis: Res perit domino.
Article 1493, CC: If at the time the contract
of sale is perfected, the thing which is the
object of the contract has been entirely lost,
the contract shall be with- out any effect.
But if the thing should have been lost in part
only, the vendee may choose between
withdrawing from the contract and
demanding the remaining part, paying its
price in proportion to the total sum agreed
upon.
Article 1496 of the Civil Code which provides
that in the absence of an express assumption’
of risk by the buyer, the things sold remain at
seller’s risk until the ownership thereof is
transferred to the buyer,” is applicable to this
case, for there was neither an actual nor
constructive delivery of the thing sold, hence,
the risk of loss should be borne by the seller,
Norkis, which was still the owner and
possessor of the motorcycle when it was
wrecked. This is in accordance with the wellknown doctrine of res perit domino. [Norkis v.
CA, 1991]
After Perfection
Delivery
but
Before
Loss
General Rule: Stipulations in the contract will
govern.
Exception: In the absence of stipulation, there
are two conflicting views:
1. Res perit creditori or the buyer bears the
risk of loss.
Article 1494, CC: Where the parties purport
a sale of specific goods, and the goods without the knowledge of the seller have
perished in part or have wholly or in a
material part so deteriorated in quality as to
be substantially changed in character, the
buyer may at his option treat the sale:
Page 351 of 532
This is an exception to the rule of res perit
domino
Basis: Art. 1504, CC only covers goods.
U.P. LAW BOC
CIVIL LAW
SPECIAL CONTRACTS
Pursuant to Art. 1262, CC if the thing is
destroyed without the fault of the
debtor/seller, the obligation to pay shall
subsist.
2. Res perit domino or the seller bears the risk
of loss.
Basis: The rule on loss is different from the
rule on deterioration for the loss would be
for the account of the seller, while the
deterioration would be for the account of
the buyer.
Exceptions: [Art. 1504 (1) and (2), CC]
a. Where delivery has been made either to
the buyer or to the bailee for the buyer, but
ownership in the goods has been retained
by the seller merely to secure performance
by the buyer of his obligations under the
contract; and
b. Where actual delivery has been delayed
through the fault of either the buyer or
seller, the goods are at the risk of the party
in fault.
In
reciprocal
obligations,
the
extinguishment of the obligation due to loss
of the thing extinguishes the entire juridical
relation.
SUMMARY OF RULES ON THE RISK OF
LOSS
Before
Seller bears risk of loss or
Perfection deterioration
Seller also benefits from the
fruits and improvements therein
At
Entire Loss will be ineffective
Perfection Substantial
Loss
or
Deterioration shall allow buyer
to withdraw or buy the
remainder at a proportionate
price.
After
Seller bears risk of loss
Perfection Buyer
bears
risk
of
deterioration
Buyer also benefits from the
fruits and improvements therein
Before
Buyer bears risk of loss or
Delivery
deterioration
Buyer also benefits from the
fruits and improvements therein
Deterioration [Art. 1189 CC]
Impairment is borne by the BUYER if the thing
deteriorates without the fault of the seller.
If it deteriorates through the fault of the seller,
the buyer may choose between rescission of
obligation and fulfillment, either case with
indemnity for damages.
After Delivery
Article 1504, CC: Unless otherwise agreed,
the goods remain at the seller's risk until the
ownership therein is transferred to the buyer,
but when the ownership therein is
transferred to the buyer the goods are at the
buyer's risk whether actual delivery has
been made or not, except that:
(1) Where delivery of the goods has been
made to the buyer or to a bailee for the
buyer, in pursuance of the contract and the
ownership in the goods has been retained by
the seller merely to secure performance by
the buyer of his obligations under the
contract, the goods are at the buyer's risk
from the time of such delivery;
7. Documents of Title
In General
(2) Where actual delivery has been delayed
through the fault of either the buyer or seller
the goods are at the risk of the party in fault.
Documents of Title to Goods – Includes bills
of lading, dock warrants, “quedans” or
warehouse receipts or orders for the delivery of
goods
• This is proof of possession or control of
the goods
• This also authorizes the possessor of
the document to transfer or receive,
either by indorsement or delivery, the
goods represented by the document,
General Rule: Buyer bears risk of loss and
deterioration.
Bill of Lading – A document issued by the
common carrier acknowledging receipt of
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goods described therein for transportation to a
designated place and delivery to a named
consignee
• It is a symbol of possession and control
of the goods if it is negotiable in form
• This authorizes the consignee to
transfer the goods to another
• If properly negotiated, this shall
operate as a transfer of possession of
the goods in transit as effectively as a
physical delivery thereof
Kinds of Documents of Title
Negotiable – the goods described therein are
deliverable to bearer or to the order of the
consignee
Non-Negotiable – deliverable only to a
specified person
NEGOTIABLE DOCUMENTS OF TITLE
How Negotiated
A negotiable bill of lading may be negotiated by
delivery of the document to another if by the
terms thereof, the goods are deliverable to
bearer
When the bill of lading was endorsed in blank
by the person to whose order the goods
were deliverable.
If by its terms the goods are deliverable to the
order of a specified person, it can only be
negotiated by indorsement of such person.
Who May Negotiate It
Only the owner of the document or one to
whom possession or custody of the document
has been entrusted by the owner, may
negotiate
it.
[Art.
1512,
CC]
Or the one to whom possession or custody of
document has been entrusted by the owner.
This was in accordance with common law
denying the full effects of negotiability of bills of
lading inasmuch as they do not represent
money but merely evidence of performance of
certain contractual duties. Owner should not be
CIVIL LAW
divested of his rights merely upon loss of the
documents.
Rights Acquired by Negotiation
A document of title represents the right of the
consignee in the goods so that:
• A person to whom a negotiable document
of title had been duly negotiated acquires
not merely the rights of his vendor but
also whatever rights the original
consignee had over the goods.
• The buyer of the document of title may
acquire a better title than his vendor,
constituting an exception to Art. 1505, CC.
Note: The validity of the negotiation of a
document of title to an innocent purchaser for
value is not affected by the fact that there was
a breach of duty on the part of the person to
whom such document was entrusted by the
owner, or by the fact that the owner of the
document was deprived of it by loss, theft,
fraud, accident, mistake, duress or conversion.
[Baviera]
Example: If a negotiable instrument was
indorsed in blank by the consignee and was
stolen by the one who sold and delivered the
document to an innocent purchaser for value =
the latter acquires the title of the consignee
Implied Warranties
A person who transfers or negotiates a
document of title for value:
• Warrants not only the genuineness and
validity of the document and his right to
transfer it
• BUT ALSO assumed all the warranties
of
a
vendor
of
goods.
However, he does NOT warrant that the
common carrier will fulfill its obligations to
deliver the goods or that the previous indorsers
will fulfill their obligation.
• The indorser of a negotiable document of
title does not assume the same warranties
like that of a general indorser of a
negotiable bill of exchange/promissory
note
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o
○
SPECIAL CONTRACTS
A document of title refers to specific
goods in the possession of the
carrier
This cannot be substituted by
similar goods of the same kind and
quantity should the carrier fail to
deliver the goods described in the
document.
Creditor’s Rights Against the Goods
General Rule: Goods in the hands of the
carrier covered by a negotiable document of
title cannot be attached or levied upon
Exception: Unless the document be first
surrendered to the carrier or impounded by the
court or its negotiation be enjoined.
For the mercantile theory of documents of title
is founded on the idea that a negotiable
document of title represents the goods
[Baviera]:
! THUS, it is not allowable for the carrier
to deliver the goods without the
surrender of the negotiable bill of lading
to them
○ Or for the law to allow
attachment or levy on the
goods, regardless of an
outstanding
negotiable
document of title.
NON-NEGOTIABLE DOCUMENTS OF TITLE
How Transferred
Goods described in a non-negotiable
document of title are deliverable only to a
specified person:
• Thus, the carrier will NOT deliver the goods
to any holder of the document,
• Or to whom such document of title may
have been endorsed by the consignee.
There must be evidence of the sale or donation
of the goods:
• The person must present to the carrier the
deed of sale or donation in his favor.
• Hence, delivery of such document to a
purchaser or donee cannot operate as a
symbolic delivery of the goods described
therein as would pass title to the latter.
•
CIVIL LAW
Even if the deed of sale or donation is
evidenced in a public instrument, the
execution of such instrument will not
operate as a constructive delivery of the
goods described in the bill of lading where
the goods are in possession of a third
person.
Rights Acquired by Transfer of Documents
of Title
Transfer – the assignment of the rights of the
consignee of a non-negotiable document of
title to another.
Also refers to a case where an “order”
document of title was sold or assigned, without
indorsement.
The effect of a transfer of document of title is
that the transferee does not acquire a better
title than his transferor.
The same rules governing sales of goods not
covered by a document of title apply.
Illustration: Where an "order" bill of lading was
sold without endorsement, the transferee can
bring an action to compel the transferor to
endorse the document, unless a contrary
intention appears – but the “negotiation” will
take effect only as of the time endorsement is
actually made.
Hence, before endorsement, the rights of the
transferee may be defeated by the rights of a
prior party who was illegally deprived of
possession of such document.
8. Warranties
Warranties - A statement or representation
made by the seller contemporaneously and as
part of the contract of sale, having reference to
the character, quality, or title of the goods, and
by which he promises or undertakes to ensure
that certain facts are or shall be as he then
represents.
Not every false representation voids the
contract, only those matters substantially
affecting the buyer’s interest, not matters of
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opinion, judgment, probability, or expectation.
When the buyer undertakes his own
investigation, and the seller does nothing to
prevent it from being as full as the buyer
chooses, the buyer cannot afterwards allege
misrepresentations. [Songco v. Sellner, G.R.
No. L-11513 (1917)]
Economic Loss Doctrine: Where the defect
makes the goods less valuable
Condition v. Warranty
Article 1545, CC: Where the obligation of
either party to a contract of sale is subject to
any condition which is not performed, such
party may refuse to proceed with the
contract or he may waive performance of the
condition. If the other party has promised
that the condition should happen or be
performed, such first mentioned party may
also treat the nonperformance of the
condition as a breach of warranty.
Where the ownership in the thing has not
passed, the buyer may treat the fulfillment by
the seller of his obligation to deliver the same
as de- scribed and as warranted expressly
or by implication in the contract of sale as a
condition of the obligation of the buyer to
perform his promise to accept and pay for
the thing.
Condition
CIVIL LAW
SPECIAL CONTRACTS
Warranty
Goes
into
the
Pertains
to
and performance of an
affects the existence obligation and may,
of the obligation
in itself, be an
obligation
Non-happening does Non-fulfillment
not amount to breach constitutes breach
of contract
of contract
Stipulation
or
Must be stipulated
operation of law
Always relates to the
May attach either to
subject matter or the
the seller’s duty to
seller’s obligations
deliver thing or some
as to the subject
other circumstance
matter
If seller has promised that the condition should
happen or be performed, the buyer may treat
the nonperformance of the condition as a
breach of warranty. [Art. 1545, CC]
Express
Implied
Nature
is
Contractual; Freely Constituted by Law
Represented
Only seller is bound,
Stipulated by parties,
whether
or
not
thereby binding both
intended or known
the seller and buyer
by the parties.
Express Warranties
For there to be express warranty, the following
requisites must concur:
a. An affirmation of fact or any promise
relating to the thing sold;
b. The natural tendency of such
affirmation or promise is to induce the
buyer to buy;
c. The buyer buys the thing relying
thereon. [Art. 1546, CC]
d. Made before the sale, not upon
delivery or any other point
An express warranty can be made by and also
be binding on the seller even in the sale of a
second hand article. [Moles v. IAC, G.R. No.
73913 (1989)]
Express Warranty v. Dealer’s/Trader’s Talk
Article 1545, CC: Any affirmation of fact or
any promise by the seller relating to the thing
is an express warranty if the natural
tendency of such affirmation or promise is to
induce the buyer to purchase the same, and
if the buyer purchase the thing relying
thereon. No affirmation of the value of the
thing, nor any statement purporting to be a
statement of the seller's opinion only, shall
be construed as a warranty, unless the seller
made such affirmation or statement as an
expert and it was relied upon by the buyer.
Article 1340, CC: The usual exaggerations
in trade, when the other party had an
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opportunity to know the facts, are not in
themselves fraudulent.
Implied Warranties [Art. 1547,
CC]
Article 1341, CC: A mere expression of an
opinion does not signify fraud, unless made
by an expert and the other party has relied
on the former's special knowledge.
An implied warranty is derived by law, by
implication, or inference from the nature of the
transaction or relativation, or circumstances of
the parties, irrespective of any intention of the
seller to create it. [De Leon]
Express
Warranty
What
is
specifically
represented
as true in
said
document
cannot be
considered
as
mere
dealer's
talk. [Moles
v.
IAC,
supra]
Dealer’s or Trader’s Talk
Affirmation of the value of the
thing or statement of only the
seller’s opinion is not a
warranty unless:
● The seller made it as an
expert;
● It was relied upon by the
buyer. [Art.1546, CC]
● Ordinarily, what does not
appear on the face of the
written instrument [Moles
v. IAC, supra]
Express Warranty v. False Representation
Article 1342, CC: Misrepresentation by a
third person does not vitiate consent, unless
such misrepresentation has created
substantial mistake and the same is mutual.
Express
Warranty
Concealment
of facts does
not
necessarily
amount
to
false
representation
False Representation
When concealment of facts
comes
with an
active
misstatement of fact or a
partial statement of fact, such
that withholding of that unsaid
portion makes that which is
stated absolutely false.
However, a buyer who fails to
inspect the condition of
property
despite
ample
opportunity to do so when
there is no opposition on the
part of seller to inspect cannot
later
on
allege
false
representation.
[Philippine
Manufacturing Co. v. Go
Jocco, G.R. No. L-24256
(1926)]
Implied Warranty of Title
a. Implied
Warranty
against
Encumbrance/Non-Apparent Servitudes
b. Implied Warranty against Hidden Defects
[Art. 1547, CC]
• Implied Warranty as to Merchantable
Quality and Fitness of Goods
• Implied Warranty against Redhibitory
Defect in the Sale of Animals [Art.
1572, CC]
• Quality and Fitness of Goods in Sale by
Sample or Description
c. Other Warranties
IMPLIED WARRANTY OF TITLE
Implied warranty arises by operation of law and
need not be stipulated in the contract of sale.
Warranty of Seller’s Right to Sell: Seller
warrants his right to sell at the time the
ownership is to pass.
Inapplicable to a sheriff, auctioneer,
mortgagee, pledgee, or other person
professing to sell by virtue of authority in fact or
law. [Art. 1547, CC]
Warranty against Eviction: Seller warrants
that buyer, from the time ownership passes,
shall have and enjoy legal and peaceful
possession of the thing. Its requisites are:
a. Buyer is deprived of the whole or a part of
the thing sold;
b. Eviction is by final judgment;
c. Final judgment based on a right prior to the
sale or an act imputable to the vendor;
d. Seller is summoned and made codefendant in the suit for eviction at the
instance of the buyer. [Power Commercial
and Industrial Corp. v. CA, G.R. No.
119745 (1997)]
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IMPLIED
WARRANTY
AGAINST
ENCUMBRANCE/NON-APPARENT
SERVITUDES
Requisites for breach:
a. Thing sold is an immovable
b. Burden or servitude encumbering the thing
sold is:
1. Non-apparent to the naked eye
2. Not mentioned in the agreement
3. Of such nature that it must be
presumed that the buyer would not
have bought it had he been aware of it
4. Not recorded in the Registry of
Property unless there is an express
warranty that the thing is free from all
burdens and encumbrances [Art. 1560,
CC]
IMPLIED WARRANTY AGAINST HIDDEN
DEFECTS
Requisites for breach:
a. The defect renders the thing sold unfit
for the use for which it was intended
OR diminishes its fitness for such use
to such an extent that had the buyer
been aware thereof, he would not have
bought it or would have paid a lower
price;
b. The defect is not patent or visible;
c. The buyer is not an expert who, by
reason of his trade or profession,
should have known the defect
d. The seller is aware of the hidden fault
or defect, OR even if he is not aware
thereof, if there is no stipulation to the
contrary [Art.1566]
The buyer must also give notice of such
redhibitory defect within a reasonable time.
The use contemplated must be that which is
stipulated, and in the absence of stipulation,
that which is adopted to the nature of the thing,
and to the business of the buyer.
IMPLIED
WARRANTY
AS
TO
MERCHANTABLE QUALITY AND FITNESS
OF GOODS
CIVIL LAW
Merchantable Quality
a. Where the goods are brought by
description from a seller who deals in
goods of that description [Art. 1562, CC]
b. In a sale by sample, if the seller is a dealer
in goods of that kind and the defect is not
apparent on reasonable examination of the
sample [Art. 1566, CC]
Warranty of merchantability is warranty that
goods are reasonably fit for the general
purpose for which the same are sold.
Warranty of fitness is warranty that goods are
suitable for the special purpose of the buyer
which will not be satisfied by mere fitness for
general purposes.
In a sale by sample, there is implied warranty
that goods are free from defects not apparent
on reasonable examination of sample and
which
render
goods
unmerchantable.
[Mendoza v. David, G.R. No. 147575 (2004)]
“Fitness for a particular purpose”: Where
the buyer expressly or impliedly makes known
to the seller the particular purpose for which the
goods are acquired AND it appears that the
buyer relied on the seller’s skill or judgment
[Art.1562(1), CC]
IMPLIED
WARRANTY
AGAINST
REDHIBITORY DEFECT IN THE SALE OF
ANIMALS [Art. 1572, CC]
Redhibitory defect – a hidden defect of
animals of such nature that expert knowledge
is not sufficient to discover it, even in a case
where a professional inspection has been
made
No warranty in case of [Art. 1574, CC]
a. Animals sold at fairs or public auctions
b. Livestock sold as condemned
The following sales are void [Art. 1575, CC]
a. Sale of animals suffering from contagious
diseases
b. Sale of animals unfit for the purpose for
which they are acquired as stated in the
contract
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Veterinarians are liable if they fail to discover
or disclose the hidden defect through
ignorance or bad faith. [Art. 1576, CC]
Seller liable if animal dies within 3 days after
its purchase due to a disease that existed at
the time of sale. [Art. 1578, CC]
Effects of Warranties
a. Natural tendency is to induce buyer to
purchase the subject matter
b. Buyer purchases subject matter relying
thereon
c. Seller liable for damages in case of breach
Effects of Waivers
reasonable man upon his guard and then claim
that he acted in good faith under the belief that
there was no defect in the title of the vendor.
Buyer’s Options in Case of
Breach of Warranty
Remedies of buyer for breach of warranty,
both implied and express:
• Accept
goods
+
demand
diminution/extinction of price
• Accept goods + damages
• Refuse to accept goods + damages
Rescind (Refuse to accept or return or offer
to return) + recover price paid [Art. 1599,
CC]
EXPRESS WARRANTY
Only applicable to waiver of warranty against
eviction; parties may increase or decrease
warranty against eviction but the effect
depends on good/bad faith of the seller:
a. Seller in bad faith and there is warranty
against eviction – null and void
b. Buyer without knowledge of a particular
risk and made general renunciation of
warranty – not waiver but merely limits
liability of seller in case of eviction (pay
value of subject matter at the time of
eviction)
c. Buyer with knowledge of risk of eviction
assumed its consequences and made a
waiver – vendor not liable
d. Waiver to a specific case of eviction –
wipes out warranty as to that specific risk
but not as to eviction caused by other
reasons
One who purchases real estate with knowledge
of defect or lack of title cannot claim he
acquired title thereto in good faith, as against
true owner of land or of interest therein. [J.M.
Tuason v. CA, G.R. No. L-41233 (1979)] The
same rule must be applied to one who has
knowledge of facts which should have put him
upon such inquiry and investigation as might
be necessary to acquaint him with the defects
in the title of his vendor. A purchaser cannot
close his eyes to facts which should put a
Prescriptive period: Period specified in
express warranty OR 4 years, if no period is
specified (following the general rule on
rescission of contracts)
Remedies
Rescission not available when buyer:
a. Knew of breach of warranty when he
accepted the goods without protest
b. Fails to notify the seller about election to
rescind within a reasonable period of time
c. Fails to return or offer to return the goods
to the seller in substantially a good
condition as they were when delivered,
unless deterioration was due to breach of
warranty
Measure of damages: Difference between
value of goods at the time of delivery and the
value they would have had if they had
answered to the warranty
Effects of rescission
a. Buyer no longer liable for price: Entitled
to the return of any part of price paid,
concurrently with or immediately after
an offer to return the goods
b. If seller refuses to accept offer to return
goods: buyer deemed as bailee for
seller and has right of lien to secure
payment of part of price paid
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IMPLIED WARRANTY AGAINST EVICTION
[Arts. 1555, 1556, CC]
Total Eviction
Partial Eviction
Enforce
liability
for
eviction
Enforce liability
(demand
Demand from seller: VICED)
(VICED)
OR
a. Value of thing sold at Rescind within 6
time of eviction
months
from
b. Income or fruits, if he delivery
has been ordered to a. If he would
deliver them to the
not
have
party who won the
bought the
eviction suit
thing
sold
c. Costs of eviction suit
without the
and in a proper case,
part lost;
suit against seller for b. BUT he must
warranty
return
the
d. Expenses of the
thing without
contract, if buyer has
other
paid them
encumbranc
e. Damages
and
es
than
interests,
and
those which
ornamental
it had when
expenses, IF sale
he acquired
was made in bad
it
faith
Rules
a. Buyer need not appeal from decision to
hold seller liable for eviction
b. When adverse possession commenced
before sale, but prescription period
completed after transfer: seller is not liable
c. If property sold for nonpayment of taxes
due and not made known to the buyer
before the sale: seller liable
d. Judgment debtor also responsible for
eviction in judicial sales, unless it is
otherwise decreed in the judgment
If there is waiver of warranty:
a. Seller acted in bad faith: Waiver is void,
seller liable for eviction
b. Buyer made waiver without knowledge of
risks of eviction: Seller liable only for the
value of the thing sold at time of eviction
c. Buyer made waiver with knowledge of
risks: Seller not liable; buyer assumed the
consequences
CIVIL LAW
IMPLIED
WARRANTY
AGAINST
ENCUMBRANCES [Art. 1560, CC]
Rescission: Within 1 year from execution of
deed of sale OR
Damages: Within 1 year from execution of
deed of sale or discovery of the burden or
servitude
IMPLIED WARRANTY AGAINST HIDDEN
DEFECTS [Arts. 1567-1571, CC]
If thing is not lost:
• Withdraw
from
contract
(accion
redhibitoria) + damages
• Demand a proportionate reduction of the
price (accion quanti minoris) + damages
If thing is lost:
Due to fortuitous
event or fault of
buyer
Demand:
If seller aware of
a. Price
paid
defect, buyer may
minus value
demand:
of
thing
a. Return
of
when it was
price
lost
b. Refund
of
b. Damages, if
expenses
seller acted
c. Damages
in bad faith
If seller not aware of
defect:
Buyer may demand
price and expenses
BUT NOT damages
Due to hidden fault
Prescriptive period: 6 mos. from delivery
IMPLIED
WARRANTY
AGAINST
REDHIBITORY DEFECTS OF ANIMALS
Remedies
• Withdraw from contract + damages
• Demand a proportionate reduction of the
price + damages
If sale is rescinded:
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a. Buyer must return animal in the condition in
which it was sold and delivered
b. Buyer shall be liable for injury due to his
negligence.
Remedies of the Seller
QUICK SUMMARY
SELLER
Prescriptive period: 40 days from delivery
Warranty in Sale of Consumer
Goods
If implied warranty accompanies express
warranty, both will be of equal duration. [Sec.
68, RA 7394]
Express Warranty
a. Demand
repair
within 30 days;
extendible
for
causes beyond the
control
of
the
warrantor
b. Demand refund of
price minus amount
directly attributable
to the use of the
consumer prior to
the discovery of the
non-conformity
Implied Warranty
a. Retain the
goods and
recover
damages
OR
b. Reject the
goods, cancel
contract and
recover from
seller so much
of the purchase
price as has
been paid +
damages
9. Breach of Contract
The following remedies arise from the
bilateral nature of the contract of sale:
a. Specific performance
b. Rescission
c. Damages
General rule: Rescission of a contract will not
be permitted for a slight or casual breach, but
only for such substantial and fundamental
breach as would defeat the very object of the
parties in making the agreement. [Song Fo &
Co. v. Hawaiian-Philippine Co., G.R. No.
23769 (1925)]
Prescriptive periods
• 10 years if based on written contract
• 6 years if based on oral contract
Movables
Movables on
Installment
Immovables
Immovables
on
Installment
OF
REMEDIES
OF
REMEDY
Damages, Rescission, Price
through
Specific
Performance.
Special
Remedies:
Possessory lien, Stoppage in
transitu, Resale, Rescission
Exact fulfillment, Cancellation
of the Sale, Foreclosure of
Chattel Mortgage
Price
through
Specific
Performance, Rescission (for
anticipatory breach and for
non-payment)
Contract of Sale: Rescission
through Article 1592, CC
Contract to Sell: Rescission
through Maceda Law (RA
6552)
1. Sale of Goods
ACTION FOR PRICE [Art. 1595, CC]
a. When the ownership of the goods has
passed to the buyer and he wrongfully
neglects or refuses to pay for the price
b. When the price is payable on a certain day
and the buyer wrongfully neglects to pay
such price, whether or not ownership has
passed
c. When the goods cannot readily be resold
for a reasonable price, and the buyer
wrongfully refuses to accept the goods,
whether or not ownership has passed
In an action by the seller under (2), buyer can
set up the defense that the seller, at any time
before judgment in such action, could not or did
not intend to deliver the goods.
Unless the contrary appears, payment and
delivery are presumed to be concurrent acts,
and the obligation of each party to perform the
contract is dependent upon the simultaneous
performance by the other party [de Leon].
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If ownership has not yet passed to the buyer,
the seller cannot maintain an action for the
price, unless it involves (1) or (3).
Title to goods passes from the moment the
goods are placed at the buyer’s disposal when
refusal to accept is without just cause. [de Leon
citing Art. 1588, CC]
ACTION FOR DAMAGES [Art. 1596, CC]
When ownership has not yet passed and the
buyer, without lawful cause, neglects or
refuses to ACCEPT and PAY for the goods
General rule: Measure of damages is the
ESTIMATED LOSS directly and naturally
resulting in the ordinary course of events from
the buyer’s breach.
Exceptions:
a. Where there is available market for goods:
Difference between the contract price and
the market price. The market price is fixed
at the time the goods ought to have been
accepted, or if no time was fixed, at the
time of refusal to accept.
Note:
When
there
are
special
circumstances
showing
proximate
damages of a greater amount than the
difference between the contract price and
market price, seller is entitled to such
higher amount of damages when such
damages may be reasonably attributed to
the non-performance of the obligation. [de
Leon; par. 3, Art. 1596 read with par. 2, Art.
2201, CC]
b. Where labor or expense of material amount
is necessary on the part of the seller to
perform the contract: Cost of labor
performed or expenses made before
receiving notice of buyer’s repudiation, and
unrealized
profit.
RESCISSION BY GIVING THE BUYER
NOTICE OF THE ELECTION TO RESCIND
[Art. 1597, CC]
When the goods have not yet been delivered to
the buyer, and the buyer repudiated the
contract of sale, or manifested his inability to
perform his obligations, or has committed a
breach of the contract of sale.
Under this rule, rescission would bar an action
on the contract because it means cancellation
of the contractual obligations between the
parties. [Baviera]
The unpaid seller’s right to rescind for nonperformance is not absolute. Not allowed to
rescind when:
a. There are 3rd persons possessing the
objects of the contract to whom no bad faith
is imputable [de Leon; Ocejo Perez & Co.
v. International Bank, G.R. No. L-10658
(1918)]
b. Breach is on slight or casual [de Leon;
Song Fo & Co. v. Hawaiian-Phil. Co.,
supra]
The
seller
cannot
unilaterally
and
extrajudicially rescind a contract absent
express stipulation to do so, except as
provided in Art. 1597. [De Leon]
2. Special Remedies of the Unpaid
Seller [Arts. 1525-1535, CC]
a.
b.
c.
d.
Possessory lien;
Stoppage in transitu;
Special right of resale; and
Special right to rescind
Note: These special remedies have a
hierarchical application. The special rights to
resell and to rescind can be availed of by the
unpaid seller only when either of the two prior
rights of possessory lien or stoppage in transitu
have been exercised by the unpaid seller.
[Villanueva]
Definition of an Unpaid Seller
Art. 1525. Seller is deemed to be unpaid seller:
1. When the whole of the price has not
been paid or tendered;
2. When a bill of exchange or other
negotiable instrument has been
received as conditional payment, and
the condition on which it was received
has been broken by reason of the
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dishonor of the instrument, the
insolvency of the buyer, or otherwise.
Unpaid Seller also includes:
a. The agent of the seller to whom the bill
of lading was endorsed,
b. The consignor or agent who had paid
the price or is responsible for the price
c. Any other person who is in the position
of a seller (i.e. buyer who paid the price
and had a right to return the goods).
[Art. 1525, CC]
A seller is considered to be an unpaid seller if
the whole price has not been paid or tendered,
or when check received as a conditional
payment was dishonored by non-payment or
insolvency of the buyer. [Baviera]
POSSESSORY LIEN OVER THE GOODS
Right to retain possession of goods until
payment or tender of the whole price, or unless
he agrees to sell on credit [Arts. 1526-1529,
1503, 1535, CC]
When lien available
a. The seller is unpaid
b. The unpaid seller has possession over the
thing
c. Ownership of the thing has passed to the
buyer
d. Any of the following: [Art 1527, CC]
• Goods are sold without stipulation as to
credit
• Goods are sold on credit, but term of
credit has expired
• Buyer becomes insolvent
The seller may exercise his right of lien
notwithstanding that he is in possession of the
goods as agent or bailee for the buyer [par. 2,
Art. 1527, CC]
When unpaid seller loses his lien [Art. 1529,
CC]
a. Seller delivers goods to carrier or other
bailee for transmission to the buyer without
reserving ownership or right of possession
(i.e. under a straight or non-negotiable bill
of lading)
b. Buyer or his agent lawfully obtains
possession of goods
CIVIL LAW
c. Seller waives the lien
● But it is not lost with respect to the
remainder of the goods when only
partial delivery is made (unless such is
symbolic delivery of the whole)
● It is not lost by the mere fact that seller
obtained a judgment for the price
When Lien May Be Revived After Delivery
a. If the buyer refuses to receive the goods
after the same are delivered to the carrier
or other bailee on his behalf, though the
seller has parted with both ownership and
possession. Here, the seller may reclaim
the goods and revest the lien. [par. 1 (2).
Art 1531, CC]
b. If the buyer returns the goods in wrongful
repudiation of the sale, and the seller, in
accepting the goods from the buyer, says
he does not assent to the rescission.
Possessory lien is lost after the seller loses
possession but his lien as an unpaid seller
remains. His preference can only be defeated
by the government’s claim to the specific tax on
the goods. [Arts. 2241, 2247, CC]
RIGHT OF STOPPAGE IN TRANSITU
An extension of the lien for the price; entitles
unpaid seller to resume possession of the
goods while they are in transit before the goods
come in possession of the vendee. [Arts. 15301532, 1535, 1636(2) CC]
Note: This is an old common law remedy which
is an extension of the lien for the price and
entitles the unpaid seller to resume possession
of the goods while they are in transit before the
goods come in possession of the vendee if the
latter is or becomes insolvent.
Requisites for the exercise of stoppage in
transitu
a. The seller is unpaid
b. The buyer is insolvent
c. The goods are in transit
d. The seller either takes actual possession,
or gives notice of claim to the carrier or
other person possessing the goods
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e. The seller must surrender the negotiable
instrument or title, if any, issued by the
carrier/bailee
f. The seller must bear the expenses of the
delivery of the goods after exercise of such
right.
When Goods Are In Transit [par. 1, Art 1531,
CC]
a. From the time of delivery to the carrier or
other bailee by the seller, for the purpose
of transmission to the buyer, until the buyer
or his agent takes such delivery from the
carrier.
b. Even when goods have reached their
ultimate destination, if buyer rejects them
and carrier retains possession
To terminate transit by delivery to a
middleman, delivery must be to keep, not to
transport.
In case of misdelivery, the goods are still
considered in transit, hence, the seller may still
exercise his right pursuant to Article 1523.
CIVIL LAW
b. By giving notice of his claim to the
carrier/other bailee who has possession of
the goods
• Carrier must redeliver goods to seller,
or according to his instructions
• Carrier not obliged to redeliver until the
negotiable document of title, if any, has
been surrendered for cancellation
Effect When Buyer Has Sold the Goods [Art.
1535, CC]
General Rule: Seller’s right to stoppage in
transitu is not affected even if buyer has sold or
disposed of the goods unless the seller has
given his assent thereto.
Exceptions:
a. When seller has given consent thereto
b. When a negotiable document of title has
been issued for the goods to a purchaser
for value in good faith
SPECIAL RIGHT OF RESALE
Available to unpaid seller who has a right of lien
or who has stopped the goods in transitu [Art.
1533, CC].
When Goods are No Longer in Transit [par.
2, Art. 1531, CC]
a. Buyer obtained delivery of the goods
before they have reached their appointed
destination
b. Goods have arrived at the appointed
destination,
and
the
carrier/bailee
acknowledges to hold the goods on behalf
of the buyer
c. Goods have arrived at the appointed
destination, but carrier wrongfully refuses
to deliver to buyer/his agent
When available
When the unpaid seller has either a right of lien
or has stopped the goods in transitu and under
any of the following conditions:
a. The goods are perishable in nature
b. The right to resell is expressly reserved in
case the buyer should default
c. The buyer delays in paying the price for an
unreasonable time
Note: If the goods are delivered to a ship,
freight train, truck, or airplane chartered by the
buyer, it is a question depending on the
circumstances of the particular case, whether
they are in the possession of the carrier as
such or as agent of the buyer.
How exercised
a. He must do so within a reasonable time
and in such manner as to obtain the best
price possible.
b. The place of sale shall be at the place of
delivery, except if the seller cannot sell the
thing at a fair price at the place of delivery.
c. Resale is deemed to be a fair sale if it is
undertaken in accordance with established
business practices, with no attempt to take
advantage of the original buyer.
How Right is Exercised [Art. 1532, CC]
a. By obtaining actual possession of the
goods
The right to resell the goods is not mandatory,
but permissive.
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d. Resale may be in a private or public sale,
but seller cannot buy directly or indirectly.
e. For resale to be valid, buyer need not be
notified of an intention to resell or the time
and place of the resale.
Exception: if the ground for resale is failure to
pay for an unreasonable amount of time
The seller must exercise reasonable judgment
in making the sale.
Effects of Resale:
a. Seller is no longer liable to the original
buyer upon the contract of sale or for any
profit made by the resale
b. Buyer at resale acquires good title as
against the original owner
c. In case resale is at a loss, seller is entitled
to recover the difference from the original
buyer
d. Seller may recover damages from original
buyer for breach of contract
SPECIAL RIGHT TO RESCIND
Return of the title over the undelivered goods
to the seller, and right to recover damages for
breach of contract [Art. 1534, CC]
When available
When the unpaid seller has either a right of lien
or has stopped the goods in transitu and under
any of the following conditions:
a. Seller expressly reserved his right to
rescind in case buyer defaults
b. Buyer has been in default in payment for an
unreasonable time
Transfer of title shall not be held to have been
rescinded by the unpaid seller until he
manifests by notice to the buyer or some other
overt act an intention to rescind.
Communication of rescission to buyer is not
always necessary (it can be an overt act). But
giving/failure to give notice is relevant in
determining reasonableness of time given to
the buyer to make good his obligation under
contract. [de Leon]
WHEN APPLICABLE
Sale of movables in installment
The rule is intended to apply to sales of
movables, the price of which is payable in 2 or
more installments, but not to straight-term
sales where the price is payable in full, after
making a down payment because the law aims
to protect improvident buyers who may be
tempted to buy beyond their means. [Levy
Hermanos v. Gervacio, G.R. No. l-46306
(1939)]
Lease of personal property with option to
buy
When lessor has deprived the lessee of the
possession or enjoyment of the thing (i.e.
lessor files a complaint for replevin against
lessee).
Also applies when seller assigns his credit to
someone else.
ALTERNATIVE
REMEDIES
AND
EXCLUSIVE
Note: The exercise of one remedy bars the
exercise of the others.
a. Specific Performance
General Rule: When the seller has chosen
specific performance, he can no longer seek
for rescission or foreclosure of the chattel
mortgage
Exception: If specific performance has
become impossible, the seller may still choose
rescission [Art. 1191, CC]
b. Cancellation of sale if vendee fails to
pay 2 or more installments
When the seller cancels the sale by
repossessing the property sold, he is barred
from exacting payment for its price.
It can only be carried out when he who
demands rescission can return whatever he
may be obliged to restore. [Art. 1385, CC]
3. Recto Law: Sale of Movables on
Installment – Arts. 1484-1486, CC
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c. Foreclosure of Chattel Mortgage if
vendee fails to pay 2 or more
installments
If seller chooses this remedy, he shall have no
further action to recover any unpaid balance,
and any stipulation to the contrary shall be void.
The purpose of the law is to remedy the abuses
committed
in
foreclosure
of
chattel
mortgages. It prevents mortgagees from
seizing the mortgaged property, buying it at
foreclosure sale for a low price and then
bringing the suit against the mortgagor for a
deficiency judgment. The almost invariable
result of this procedure was that the mortgagor
found himself minus the property and still
owing practically the full amount of his original
indebtedness. [Bachrach Motor Co., Inc. v.
Millan, G.R. No. L-42256 (1935)]
4. Sale of Immovables
CIVIL LAW
rescission. If absolute sale, seller must make a
demand for rescission.
a. Judicially, OR
b. By a notarial act
Demand necessary even if automatic
rescission is stipulated
a. Effect of lack of demand: Buyer can still pay
b. Effect of demand: Court may not grant
buyer a new term
SECS. 23 AND 24, PD 957
Non-forfeiture of payments
No installment payment made by the buyer
shall be forfeited in favor of the owner or
developer of the condominium or subdivision
project, after due notice, when the buyer
desists from paying due to the failure of the
developer or owner to develop the project
according to the approved plans or within the
time limit stated.
RESCISSION
FOR
ANTICIPATORY
BREACH [ART. 1591, CC]
Note: This is applicable to both cash sales and
sales in installments.
Buyer’s Remedy: At his option, he may
reimburse the total amount paid including
amortization interest with interest thereon at
the legal rate.
Requisites
a. There is delivery of immovable property
b. Vendee has not yet paid the price; and
c. Vendor has reasonable grounds to fear the
loss of property and the loss of price
If the buyer fails to pay the installments for
reasons other than the failure of the owner or
developer to develop the project, his rights
shall be governed by RA 6552.
If there is no such reasonable ground, Art. 1191
applies (specific performance or rescission
with damages).
Court has no discretion to compel the seller to
wait for the expiration of the period to pay, or to
grant the buyer more time to pay.
SPECIFIC PERFORMANCE + DAMAGES OR
RESCISSION + DAMAGES [Art. 1191, CC]
Seller may choose between specific
performance and rescission, with damages in
either case. Court has discretion, for a just
cause, to give the buyer more time to pay even
if the seller chooses rescission.
If seller chose specific performance, and such
becomes impossible, he may still avail of
5. Maceda Law (RA 6552): Sale of
Immovables on Installment
RA 6552 does NOT apply to:
a. Industrial lots
b. Commercial buildings
c. Sale to tenants under Agricultural Reform
Code [RA 3844]
d. Sale of lands payable in straight terms
[Sec. 3, RA 6552]
Rights of the Buyer:
The law imposes additional requirements on
the part of the seller for a valid rescission.
a. If buyer has paid at least 2 years of
installments then defaults:
• Buyer has right to a grace period of 1
month per year of installment payment
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•
•
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made BUT the buyer may only avail of
the grace period once every 5 years
Buyer has right to the refund of Cash
Surrender Value (CSV): 50% of total
amount paid + 5% for every year after
the first 5 years of installments BUT
total CSV should not be greater than
90% of total amount paid
After the lapse of the grace period,
buyer is given a notice of cancellation
or demand for rescission by notarial
act, effective 30 days from the buyer’s
receipt thereof AND only upon full
payment of CSV
b. If buyer has paid less than 2 years of
installments:
• Grace period of at least 60 days
• After the lapse of the grace period,
buyer is given a notice of cancellation
or demand for rescission by notarial
act, effective 30 days upon receipt
thereof
c. During the grace period, the buyer shall
also have the right:
• To sell or assign his rights, evidenced
in a notarial instrument
• To update his account
• To pay in advance any installment, or
the full unpaid balance of the price,
without any interest, and to have such
full payment of the purchase price
annotated in the certificate of title
covering the property.
Down payments, deposits, or options on the
contract shall be included in the total number of
installments made.
However, mere filing of an unlawful detainer
suit by the seller does not operate as such
notice. [de Leon]
b. Remedies of the Buyer
General rule: Courts will refuse to decree
specific performance with respect to chattels
because damages are a sufficient remedy.
Exception: Buyer is entitled to the specific
thing which to him has special value and which
he cannot readily obtain in the market OR
where damages would not furnish a complete
and adequate remedy. [Baviera]
QUICK SUMMARY
BUYER
OF
REMEDIES
OF
REMEDY
Damages, Rescission, Price
Movables
through
Specific
Performance.
Return or Offer to Return
(with recovery of price or may
become the seller’s bailee)
Breach
of
Acceptance, for recoupment
Warranty
or with damages
Refuse to Accept with
Damages
Rescission, Suspension of
Payment,
PD
957
(Reimbursement of the total
Immovables
amount paid/ compel the
developer
to
complete
facilities)
Contract of Sale: Article
Immovables
1592, CC
on
Contract to Sell: Maceda Law
Installment
(RA 6552)
The seller may go to court for judicial rescission
in lieu of a notarial act of rescission.
Cancellation
pertains
to
extrajudicial
cancellation. Absence of notice does not bar
the filing of an action to cancel the contract.
A decision in an ejectment case can operate as
notice of cancellation as required by RA 6552.
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1. Sale of Movables
REMEDY FOR BREACH OF OBLIGATION
TO PRESERVE
seller is bound to make
good the deficiency [Art.
1464]
2. Sale of Immovables [Art 1539 – 1543,
CC]
If thing is lost:
Without fault of
seller
Through fault of seller /
Through Fortuitous
Event (if seller is liable)
NO BREACH
Obligation
extinguished.
Damages
is
A thing is lost when it:
a. Perishes;
b. Goes out of commerce of man; or
c. Disappears in such a way that its existence
is unknown or it cannot be recovered
If thing deteriorates:
Without fault of
Through fault of seller
seller
NO
BREACH. Rescission + damages
Impairment shall OR
be borne by Specific performance +
buyer
damages
REMEDY FOR BREACH OF OBLIGATION
TO DELIVER
Delivery of wrong quantity [Art. 1522, CC]
Goods are
MORE THAN
Goods are LESS THAN
what was
what was contracted
contracted
Reject the goods
OR
Accept and pay:
a. At contract rate if
buyer
accepts
Reject the excess
knowing
that
OR
seller
won’t
Reject the whole,
perform in full
if
indivisible
b. At fair value if
OR
goods were used
Accept the whole
before knowing
and
pay
at
that seller won’t
contract rate
be
able
to
perform in full
Buyer becomes the owner
of the whole mass and the
IF AT THE RATE OF A CERTAIN PRICE PER
UNIT OF MEASURE OR NUMBER
Less (in area or
quality) than what
was agreed upon:
Proportional reduction
of price
OR
Rescission, if:
a. Lack in area is at
least 1/10 of what
is stated, or inferior
value of thing sold
exceeds 1/10 of
price
b. Buyer would not
have bought the
property has he
been aware of the
inferior quality or
smaller area
More (in area or
quality) than what
was agreed upon:
Reject the excess
OR
Accept the whole
and pay at contract
rate
Note: This rule also applies to judicial sales
[Art. 1541, CC].
IF FOR A LUMP SUM
Everything is within
boundaries, even if
less or more than
stated area
No
remedy
Where both the area
and the boundaries of
the immovable are
declared, the area
covered within the
boundaries of the
immovable
prevails
over the stated area.
[Rudolf Lietz, Inc. v.
CA, G.R. No. 122463
(2005)]
Page 367 of 532
Not everything is
within the
boundaries
Proportional
reduction in price
OR
Rescission
U.P. LAW BOC
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Prescriptive period: 6 months counted from
date of delivery.
10. Performance
Contract
of
the
Note: The obligations of the vendor and
vendee are also discussed in detail in sections
C and D of this Sales Reviewer.
Delivery of the Thing Sold
1. In General
Payment and delivery of the thing sold are
concurrent acts, in consonance with the rule in
reciprocal obligations. [Baviera]
The rule is that 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.
The Agreement of the parties determines
whether it is for the buyer to take possession of
the goods or for the seller to send them to the
buyer.
Place, Time and Manner of Delivery
General Rule: The vendor is not bound to
deliver the thing sold if the vendee has not paid
the price
Exception: When the thing is sold on credit
RULE ON THE PLACE
Whether it is for the buyer to take possession
of the goods or for the seller to send them to
the buyer depends on the AGREEMENT
between the two parties.
• In the absence of stipulation: delivery
should be at the seller’s place of business
if he has one
• In case of sale of specific goods which are
in another place: the buyer should take
delivery from such place.
Note: Demand or tender of delivery shall be
made at a reasonable hour.
CIVIL LAW
RULE ON THE TIME
Where by agreement, the seller is bound to
send the goods to the buyer, he is bound to
send them within the time agreed upon.
• If no time fixed: within a reasonable time.
• The expenses of placing the goods in a
deliverable state shall be borne by the
seller (unless otherwise stipulated)
RULE ON THE MANNER
Where the goods at the time of the sale are in
the possession of a third person: NO
DELIVERY unless such third person
acknowledges to the buyer that he holds
the goods on the latter’s behalf.
What Constitutes a Reasonable Time?
When the time of delivery is not fixed in the
contract, time is not of the essence. Delivery
must be made within a reasonable time. [Smith
Bell v. Matti (1922)]
General Rule: The reasonable time for
delivery is determined by the circumstances
attending the particular transaction.
When Time is of the Essence
Time is of the essence of the contract
whenever the intention of the parties is clear
that performance of its terms shall be
accomplished exactly at the stipulated day. It
could also be implied from the nature of the
contract itself, or of the subject matter, or of the
circumstances under which the contract is
made. [Baviera]
Whenever the intention of the parties is clear
that performance of its terms shall be:
• Accomplished exactly at the stipulated day
• Implied from the nature of the contract
itself, the subject matter or the
circumstances under which the contract is
made
When the Vendor is not Bound to Delive
Article 1524, CC: The vendor shall not be
bound to deliver the thing sold, if the vendee
has not paid him the price, or if no period for
the payment has been fixed in the contract.
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Article 1536, CC: The vendor is not bound
to deliver the thing sold in case the vendee
should lose the right to make use of the
terms as provided in Article 1198.
Article 1198, CC: The debtor shall lose
every right to make use of the period:
(1) When after the obligation has been
contracted, he becomes insol- vent, unless
he gives a guaranty or security for the debt;
(2) When he does not furnish to the creditor
the guaranties or securities which he has
promised;
(3) When by his own acts he has impaired
said guaranties or securities after their
establishment, and when through a
fortuitous event they disappear, unless he
immediately gives new ones equally
satisfactory;
(4) When the debtor violates any
undertaking, in consideration of which the
creditor agreed to the period;
(5) When the debtor attempts to abscond.
Sales of Goods/ Movables
1. Delivery of Wrong Quantity
Article 1522, CC: Where the seller delivers
to the buyer a quantity of goods larger than
he contracted to sell, the buyer may accept
the goods included in the con- tract and
reject the rest. If the buyer accepts the whole
of the goods so delivered, he must pay for
them at the contract rate. xxxx In the
preceding two paragraphs, if the subject
matter is indivisible, the buyer may reject the
whole of the goods.
CIVIL LAW
General Rule: The buyer is not bound to
accept delivery of a quantity of goods more or
less than that agreed upon or to accept goods
which are of a description different from that
agreed upon.
Exception: There is usage of trade, special
stipulation, or course of dealing to the contrary.
REMEDIES PROVIDED FOR BY LAW:
1. Where the seller delivers a quantity less
than that agreed upon, the buyer may
reject them. If the buyer accepts or retains
that goods delivered, knowing the inability
of the seller to deliver the rest, the buyer is
bound to pay for them at the contract rate.
If the buyer has used or disposed of the
goods before knowing the inability of the
seller to deliver the rest, the buyer shall pay
not more than the fair value of the goods.
(Note: “fair value” means the price of the
goods in the open market.)
2. If the quantity delivered is more than that
agreed upon, the buyer may reject the
excess, unless the subject matter is
indivisible, in which case, the buyer may
reject the whole.
3. Where the seller delivers the goods mixed
with goods of a different description not
included in the contract, the buyer may
accept the goods which are in accordance
with the contract, and reject the rest, unless
the subject matter is in- divisible, in which
case, the buyer may reject the whole.
2. Delivery by Installments
Article 1538, CC: In case of loss,
deterioration or improvement of the thing
before its delivery, the rules in Article 1189
shall be observed, the vendor being
considered the debtor.
General Rule: The buyer is not bound to
accept the delivery of goods by installments.
Quantity is always of the essence of a sales
contract and a seller is bound to tender the
amount of goods contracted for, in order to hold
the buyer liable for performance. [Baviera]
Exception: Unless it is otherwise stipulated.
Where the contract calls for the delivery of
goods at stated intervals which are to be
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separately paid for, whether prompt payment
or delivery is of the essence of the contract
such that a delay or breach of the obligation
would entitle the aggrieved party to treat the
entire contract as broken or to regard each
breach as severable would depend on the
terms of the contract and the circumstances of
the case. [Baviera]
Severability: is whether the breach is so
material as to justify the aggrieved party in
refusing to proceed further with the entire
contract or so immaterial that the breach is
severable, giving rise merely to a claim for
damages.
Sale of Immovables
there shall be no increase or decrease of the
price, although there be a greater or less
area or number than that stated in the
contract.
If the sale of property is for a lump sum, there
shall be no increase or decrease in the price,
whether the actual area delivered turned out to
be greater or less than that stated in the
contract. [Baviera]
Inspection and Acceptance
Note: This is discussed in Section D of this
sales reviewer, on the Obligations of the
Vendee.
1. Where Price is at Certain Rate Per Unit
of Measure
WHEN VENDEE HAS THE OPTION TO
DEMAND A PROPORTIONATE REDUCTION
OF THE PRICE (OR DEMAND RESCISSION
OF CONTRACT)
General Rule: If price is fixed at a certain rate
per unit of measure and the area is delivered is
less than that stated in the contract, or even if
the area is correct but part of the land is not of
the quality stated in the contract.
Exception: Where the entire land is not of the
quality stated in the contract, as in such a case,
the consent must have been obtained by
mistake or fraud (contract may then be
voidable). These rules presuppose that the
actual area was not known to both parties until
a survey was made after the execution of the
contract.
Note: These rules do not apply where the entire
land is not of the quality stated in the contract
because in such case, the consent must have
been obtained by mistake or fraud. [Baviera]
2. Sales for a Lump Sum
Article 1542, CC: In the sale of real estate,
made for a lump sum and not at the rate of a
certain sum for a unit of measure or number,
1.
Payment
of
Price
LIABILITY
FOR
INTEREST
The vendee is bound to accept delivery and to
pay the price of the thing sold at the time and
place stipulated in the contract (Art. 1582, CC:
If the time and place should not have been
stipulated, payment must be made at the time
and place of delivery of the thing sold).
General Rule: The vendee shall owe interest
on the price from the time the thing is
delivered up to the time of payment if there
is a stipulation requiring interests
• If there is no stipulation: from the time of
judicial or extrajudicial demand for
payment.
• This applies if the thing delivered produces
fruits or income, or if the buyer incurs in
default
SUSPENSION OF PAYMENT
Art. 1590, CC A vendee may suspend
payment when:
• The vendee is disturbed in the possession
or ownership of the thing delivered; or
should he have reasonable grounds to fear
such disturbance by vindicatory action, or
a foreclosure of mortgage.
• Unless there is a stipulation to the contrary
notwithstanding any such contingency; or
unless the vendor gives security for the
return of the price in a proper case. (Note:
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Disturbance or threat of disturbance must
come through a vindicatory action or a
foreclosure of mortgage, and not through a
mere threat or claim of a third person.)
Neither can the buyer suspend payment,
on the ground that the vendor is
incapacitated.
If the third person claims a servitude on the
thing sold, the remedy of the buyer is to
demand rescission of the contract or
payment of the proper indemnity.
A vendee may not suspend payment when:
• For a mere act of trespass by a third
person, the buyer could defend himself and
has no right to suspend payment
RA 6552 (MACEDA LAW)
Note: This was discussed in Section I,
Subsection 1.a.5 of this Sales Reviewer, on
Maceda
Law.
August 26, 1972: The Realty Installment
Buyer Protection Act was approved:
• It declared a public policy to protect buyers
of real-estate on installments.
• This included residential condominium
apartments, excluding industrial lots,
commercial buildings and lands sold under
RA 3844, against onerous and oppressive
conditions.
11.
Note: There is a mere trespass when the third
person claims no right to the thing whatsoever.
Therefore, in order that the buyer may have a
right to suspend payment, it is absolutely
necessary that the cause of disturbance or
danger be based on a fact arising before the
sale or if it arose after the sale, the cause is
imputable to the vendor or his successor-ininterest. [Baviera]
EFFECT
OF
NON-PAYMENT
General Rule: The power to rescind
obligations is implied in reciprocal ones, in
case one of the obligors should not comply with
what is incumbent upon him.
● The injured party may choose between
fulfillment and rescission of the obligation,
with payment of damages in either case.
● The court shall order the rescission
claimed, unless there is just cause
authorizing the granting of a new period.
However, in absolute sales of real property,
even if there is a stipulation providing for ipso
jure rescission, in case of default in payment,
the law required the seller to demand the
resolution of the contract from the buyer
judicially or by a notarial act, before such
stipulation could be given effect. Otherwise, the
buyer could still pay the price, even after the
expiration of the period to pay. [Baviera]
Extinguishment of Sales
Causes [Arts. 1600, 1231, CC]
Generally, extinguished by the same causes as
all other obligations [Arts.1600, 1231, CC]
a. Payment/performance
b. Prescription
c. Loss of thing due
d. Annulment
e. Novation
f. Condonation/remission
g. Confusion/merger
h. Compensation
i. Rescission
j. Resolutory condition fulfilled
k. Redemption (Conventional or Legal)
Conventional
redemption
(Pacto de Retro Sale)
1. Definition
Conventional Redemption exists when the
vendor reserves the right to repurchase the
thing sold, with the obligation to:
1. Return price of the sale
2. Expenses of the contract
3. Any other legitimate payments by reason of
the sale
4. Necessary and useful expenses [Art. 1601,
CC]
Note: Redemption feature does not prevent the
full consummation of the contract of sale.
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Available when the seller reserves the right to
repurchase the thing sold in the same
instrument of sale as one of the stipulations of
the contract [Villarica v. CA, G.R. No. L-19196
(1968)]
2. Period
General Rule: Follow period stipulated in
contract, but should not exceed 10 years.
Exceptions:
1. If no period stipulated but the parties
intended a period, then it shall be 10 years
from the date of the contract.
2. If no period stipulated, then it shall be four
years from the execution of the contract
3. But vendor may still exercise the right to
repurchase within thirty days from the time
final judgment was rendered in a civil
action on the basis that the contract was a
true sale with right to repurchase
3. By whom exercised
1. Vendor, after returning to vendee price of
sale plus expenses of the contract, other
legitimate payments made by reason of
sale, and necessary and useful expenses
made on the thing sold [Art. 1616, CC]
2. His heirs, assigns or agents
3. Creditor, after he has exhausted the
property of the vendor [Art. 1610, CC]
4. Co-owners of an immovable, if they sold
their interests to the same person, may
only redeem their respective shares [Art.
1612, CC]
• Vendee cannot be compelled to agree
to a partial redemption [Art. 1613, CC]
• If the co-owners sold their interest to
the same person who previously
bought the share of a co-owner subject
to a right of redemption, then the latter
may be compelled to redeem the whole
property
4. From whom to redeem
1. Vendee a retro
2. His heirs, assigns or agents
CIVIL LAW
3. Subsequent purchaser of property, even if
the right to redeem was not mentioned in
the subsequent contract; except if
registered land, where the right to redeem
mus