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C. Persons
BOOK I

PERSONS

Concept of Person. – The term person is derived from

the Latin persona; which means a mask – the mask which
Roman actors regularly wore on the stage to represent the
role they were playing. Later, it came to mean either the
person whose character was portrayed in a play, or the
actor who portrayed it, as shown by the familiar phrase
“dramatis personae” which means the persons of the play.

In a juridical sense, the term “person” is now understood

as any being, physical or moral, real or juridical and legal,
susceptible of rights and obligations or of being the
subject of legal relations (1 Tolentino 153, citing 2 Sanchez
Roman 110; 1 Planiol & Ripert 3). Falcon maintains that
there is no difference between “person” and “man” and
defines “person” as “man and all associations formed by
man. This view, however, is not correct, becauseFollow
the term
“person” is more extensive than “man” or “human being.”
It includes entities which have no physical existence, such
as corporations and partnerships, which have been
endowed with an independent legal existence by the law.

On the other hand, since the abolition of slavery, all human

beings are persons, whatever may be the condition of
their intelligence and will. Infants and the insane are
persons, for every individual is in himself a person. Thus, it
has been said that even those who are physically
connected, such as twins, are two distinct persons, if each
has an independent life of his own (1 Tolentino 153, citing
1 Planiol & Ripert 4).

Classes of Persons. – The definition of person shows

that there are two classes: (1) human beings or men,
called natural persons; and (2) entities formed by the
association of men, known as juridical persons, or as
artificial, fictitious, abstract, or moral persons.

The natural persons are individual or physical beings who

exist in nature and are perceptible to the sense; while the
juridical or artificial persons have no physical existence,
but exist only in contemplation of law. The former are
products of procreation, while the latter are products of
legal fiction.

Status of Persons. – The status of a person is the legal

condition or class to which one belongs in society; it is the
legal or juridical position of the individual in society, or
with regard to the rest of the community. It is determined
by a series of personal qualities, which respectively carry
with them certain rights and obligations. A person’s status
serves to determine the nature and number of his rights
and obligations (1 Tolentino 154, citing 1 Viso 32; 2
Sanchez Roman 110; 3 Bouvier’s Law Dictionary3129; 1
Salvat 341).

Kinds of Status. – The status of a person may be political

or civil, depending on whether he is considered in the light
of public law or of private law. The rights and obligations
in connection with suffrage refer to political status, while
those arising from family relations refer to civil status.

Civil status, in turn, may be grouped into three classes:

(1) Status as member of the society in which a person

lives, such as resident or non-resident, citizen or alien;

(2) Status as member of a family, such as (a) single,

married, widowed, or divorced, and (b) the position in the
family, as parent, child, brother or sister, which in turn may
be further classified into legitimate, illegitimate, or
adopted.

(3) Status with respect to the person himself, such as (a)

age, whether minor or of majority age, (b) mental
condition, whether sane or insane, and (c) sex, whether
male or female.

Some authors consider possession as a fourth kind of

status. The qualities which create a status however are
only those inherent in the person himself. Hence,
profession cannot be a status, because the rights and
obligations derived from it are not inherent in the person,
but depend upon an accidental element which is the
occupation (1 Salvat 341: 343-344)

Characteristics of Status. – The status of a person is

outside of the commerce of man; hence, (1) it is
inalienable; (2) it is imprescriptible, (3) it cannot be the
object of compromise, (4) the action to claim it cannot be
renounced, and (5) the rights arising from it cannot be
exercised by creditors (1 Salvat 347-348).

Title I

CIVIL PERSONALITY

Concept of Personality. – Personality is the quality

derived from being a person. While a person is any being
susceptible of rights and obligations, personality is the
aptitude of that being of becoming the subject, active or
passive, of juridical relations. Personality is thus an
attribute of persons. It is a consequence of human
existence; it is born with man and stays with him until his
death. Although inherent in every natural person, it is
extended by law to entities which have no natural
existence, or to juridical or artificial persons (1 Tolentino
155, citing 1 Castan 135-136; 1 Oyuelos 79; 1 Camus 56).

Same; Its Characteristics. – The characteristics of

personality are: (1) It is not a being, but a quality of certain
beings. (2) It is not a physical element, but a juridical
concept. (3) It is not an object of contract, or of
possession, and cannot be impaired by agreement. (4) It is
a matter of public interest (1 Tolentino 155, citing 1 Bonet
41-42).

Same; Relation to Capacity. – Sanchez Roman makes a

distinction between personality and capacity. According to
him, the two are intimately related, but are not identical.
He view personality as the conduct of capacity in law, a
necessary derivation from its existence, and the external
manifestation of capacity. He considers personality in
general and in a specific sense. In a general sense, it
cannot be limited, because it is the consequence of
juridical capacity, which in turn is merely a consequence
of human nature. But in a specific sense, it may suffer
limitations because it is merely the result of capacity to act
(1 Tolentino 155, citing 2 Sanchez Roman 114-117).

Most civil law writers, however, consider personality as

identical to juridical capacity (1 Tolentino 155, citing 1
Camus 135-136; 1-I Enneccerus, Kipp & Wolff 325; 1
Valverde 241; 3 Von Tuhr 296; 1 Camus 56).

Chapter 1

GENERAL PROVISIONS

Art. 37. (first sentence, Juridical capacity, definition,

nature, how lost) 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.

(second sentence, Capacity to Act, definition, loss and

acquisition) Capacity to act, which is the power to do
acts with legal effect, is acquired and may be lost.

Source of Article. – Taken from Sanchez Roman (vol. 2,

pp. 112-113) and from article 11 of the Swiss civil code.
The latter provides: Every man is capable of rights.
Subject to limitations imposed by law, all men have the
same capacity for rights and obligations.”

Kinds of Capacity. – Capacity may be (1) juridical

capacity, and (2) capacity to act. The union of these two
forms the full civil capacity (1 Tolentino 156, citing 1 Bonet
49).

Juridical capacity is synonymous to legal capacity and to

personality. These terms are, therefore, used
interchangeably in the law. They all refer to the aptitude for
the holding and enjoyment of rights. On the other hand,
capacity to act refers to the aptitude for the exercise of
rights, and is often referred to merely as “capacity.” In this
sense, it is broadly defined as “the ability, power,
qualification, or competency of persons, natural or
artificial, for the performance of civil acts depending on
their state or condition (status) as defined or fixed by law”
(1 Tolentino 156, citing 1 Bouvier’s Law Dictionary 416). In
the words of the Code, while juridical capacity is the
fitness of man to be the subject of legal relations, capacity
to act is the power to do acts with legal effect.

Same; Comparison. – Juridical capacity is just one,

indivisible, irreducible, and essentially the same for all
men; it is an inherent and ineffaceable attribute of man,
and attaches to him by the mere fact of his being a man.
But capacity to act is conditional and variable. It is
acquired and may be lost. The mere existence of a man is
not sufficient to confer capacity to act, because this
capacity requires both intelligence and will; and since
these are not always present in all men, nor are they
always of the same degree, the law in some cases denies
this capacity and in others limits it. Thus, juridical capacity
can exist without the capacity to act, but the existence of
the latter implies that of the former. They do not always
coincide (1 Tolentino 157, citing 2 Sanchez Roman 112-
113; 1 Valverde 212; 1 Castan 135-136; 140-142; 1-I
Enneccerus, Kipp & Wolff 325-326).

Capacity of Public Interest. – The capacity or incapacity

of persons depends upon the law. It is determined by law
and cannot be modified, extended, or restricted by
agreement. It is a matter of public interest (1 Tolentino
157, citing 1 Salvat 350).

(scope of restrictions on capacity)

Art. 38. Minority,

insanity or imbecility,

the state of being a deaf-mute,

prodigality and

civil interdiction

(legal force, mere restrictions)

are mere restrictions on capacity to act,

(legal effect, when not exempted from obligations)

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.
(32a).

Source of Article. – Taken from article 32, old Civil Code.

Causes of Incapacity. – The causes of incapacity

enumerated in this article are minority, insanity or
imbecility, the state of being a deaf-mute, prodigality, and
civil interdiction. However, these are not the only causes of
incapacity. Some of them are mentioned in the next
article, such as family relations, alienage, absence,
insolvency, and trusteeship. Others are to be found in the
Rules of Court and other legal provisions.

Same; Minority. – The age of majority commences upon

the attainment of the age of 18 years (R.A. 6809); a person
bellow such age is a minor, and has a limited capacity to
act. The unemancipated minor cannot enter into contracts
(article 1327, par. 1); but he may be estopped from
disavowing his contract if he has misled the other party as
to his age.

The mere fact that one month after the execution of the
contract, the minor informed the other contracting party of
his minority, does not affect the case; such subsequent
information is of no moment, because his previous
misrepresentation has already estopped him from
disavowing the contract (Young vs. Tecson, 39 Off. Gaz.
953).

Same; Insanity or Imbecility. – Insanity includes the

various forms of mental disease, either inherited or
acquired, in which there is a perversion of the mentality, as
when the person is suffering from illusions, hallucinations,
or delusions, unnatural exaltation or depression, or insane
ideas of persecution or power. Various phases of insanity
are known as dementia praecox, paranoia, schizophrenia,
mania, melancholia, etc. It is a manifestation, in language
or conduct, of disease or defect of the brain, or a more or
less permanently diseased or disordered condition of the
mentality, functional or organic, characterized by
perversion, inhibition, or disordered function of the
sensory or of the intellective faculties, or by impaired or
disordered volition (Sec. 1089, Revised Administrative
Code).

An insane person cannot make a valid will or testament

(article 798); and he cannot validly give consent to
contracts (article 1327, par. 2).

A person may not be insane, but only mentally deficient, in

which case there is a defect in quantity of mental
development, called amentia, which is divided into idiocy,
imbecility, and feeble-mindedness. These mental defects
exist from birth, or arise during childhood because mental
development is arrested. The idiot belongs to the lowest
class of mentally defective; the feeble-minded or moron,
to the highest group; and the imbecile, to the medium. The
idiot never reaches the stage of speech, although some
are able to make themselves understood by signs;
scientific tests show that idiots never develop over the
intelligence scale of two years. The imbecile stands on a
higher plane of mental capacity; in this group the mental
ages up to the completed eighth year are included. The
feeble-minded or morons comprise the mental ages of
nine to twelve years (1 Tolentino 159, citing Herzog,
Medical Jurisprudence, 406-408).

Same; Deaf-Mutism. – The old rule that a deaf-mute was

presumed to be an idiot no longer prevails; such persons
are now considered as capable of entering into contracts
if shown to have sufficient mental capacity (Director of
Lands vs. Abelardo, 54 Phil. 687). A deaf-mute can make
a valid will, so long as its contents have been
communicated or made known to him in some practicable
manner (article 807). But when the deaf-mute does not
know how to read and write, he cannot give consent to
contracts (article 1327, par. 2), and he cannot personally
accept or repudiate an inheritance (article 1048).

Same; Civil Interdiction. – Civil interdiction is an

accessory penalty imposed upon persons who are
sentenced to a principal penalty not lower than reclusion
temporal (article 41, Revised Penal Code), which is a
penalty ranging from twelve years and one day to twenty
years.

Article 34 of the Revised Penal Code provides: “Civil

interdiction shall deprive the offender during the time of
his sentence of the rights of parental authority, or
guardianship, either as to the person or property of any
ward, of marital authority, of the right to manage his
property, and of the right to dispose of such property by
any act or any conveyance inter vivos.”

Same; Prodigality. – A spendthrift or prodigal is a “person

who, by excessive drinking, gambling, idleness or
debauchery of any kind shall so spend, waste or lessen
his estate as to expose himself or his family to want or
suffering” (see Sec. 559, Act No. 190). The acts of
prodigality must show a morbid state of mind and
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 compulsory heirs of their
legitime (Martinez vs. Martinez, 1 Phil. 182).

Prodigality in itself does not limit the capacity of a person

to act. He may enter into contracts and make wills
disposing of his property. There is no specific provision
which incapacitates him for any particular act. But he may
be placed under guardianship as an incompetent under
the provisions of Rule 93, section 2, of the Rules of Court.
The moment he is under guardianship, his capacity to act
is restricted, because he can only bind himself by contract
through his guardian. It seems erroneous, therefore, to
include prodigality in the present article as a circumstance
which limits capacity, because there is no specific
provision of law which implements this general provision.
It is not the circumstance of prodigality, but the fact of
being under guardianship, that restricts the capacity to act
of the spendthrift. Unlike the other circumstances
mentioned in this article, prodigality, independently of
guardianship, does not limit the capacity of a person for
any juridical act.

Rights of Incapacitated Persons. – The old Civil Code, in

article 32, expressly stated that incapacitated persons
“are susceptible of rights”; this provision has been omitted
in the present article of the Code. This omission is
unfortunate and conducive to confusion. It may give rise
to the inference that the Code intended to suppress the
rights of incapacitated persons, because it retained the
reference to their obligations but suppressed the reference
to their rights. Undoubtedly, however, other provisions of
the Code will show that they have rights in the same
manner that other provisions indicate that they have
certain obligations despite their incapacity. They have the
right to support, the right to inherit, the right to damages
for injuries caused to the, etc.

Obligations of Incapacitated Persons. – Under the

Code, obligations arise from law, contracts, quasi-
contracts, crimes and quasi-delicts. The present article
does not specify what obligations the incapacitated
person may have; it merely says “certain obligations,”
such as those which “arise from his acts or from property
relations, such as easements.” The Code could have been
more definite. The fact of the matter is that incapacitated
persons may have obligations arising from all sources,
except contracts.

They have obligations arising from law, such as those

imposed by the law on family relations. The obligations
referred to by the Code as arising from “property relations,
such as easements,” are in reality obligations arising from
law; the easements referred to are legal easements, or
those imposed by law, because the incapacitated person
cannot by contract create a voluntary easement on his
property. The obligation to pay taxes is also one arising
from law.

Incapacitated persons are also civilly liable for crimes

committed by them, even if they are exempted from
criminal liability (Article 101, Revised Penal Code). They
are liable for quasi-delicts, under the express provisions of
articles 2181 and 2182.

They are liable on quasi-contracts, on the principle that

nobody can unjustly enrich himself at the expense of
another. An incapacitated person, such as a minor, cannot
bind himself by contract; neither can he receive payment
of an obligation without the intervention of his legal
representative, because that amount to a disposition of
the credit. Thus, when money is delivered to him as a loan,
he acquires the ownership thereof, but the corresponding
obligation to pay does not arise because of lack of
authorization of his legal representative. This acquisition,
however, constitutes an unjust enrichment, and, under
article 22, he is bound to return what he has received, or
the amount of the enrichment (1 Tolentino 163, citing 4
Von Tuhr 9-11, 29). A similar effect is recognized by
articles 1241, 1399 and 1971 of the Code (Article 1241,
Civil Code).

On the same principle, where necessaries are delivered to

a minor or other person without capacity to act, he must
pay a reasonable price therefore. There is an express
provision to this effect in article 1489 of the Code. Under
similar provisions in the California code (sections 36 and
38) it has been held that the law implies an obligation on
the part of an incapacitated person to pay for the
necessaries furnished him and his family on his own
credit, because the policy of the law to protect such
persons against their own improvidence does not extend
to depriving others of the reasonable value of necessaries
furnished them. Medical services necessary to save the
life of a child are considered as necessities, for the
reasonable value of which the child is liable. An insane
person is liable for the reasonable value of necessaries
furnished him in a hospital. Legal services rendered an
incompetent in proceedings looking toward restoration of
capacity have been held to be benefits for which the
incompetent or his estate is liable, although they were
performed at the request of a third party (1 Tolentino 164).

Reintegration of Capacity. – Some cases of incapacity

cease automatically and the person is reintegrated without
any judicial action. This takes place in the case of minority,
which disappears upon attaining the age of majority, or of
civil interdiction, which terminates upon the service of the
principal penalty; in both cases, the person becomes
incapacitated without any proceeding in court upon
cessation of the cause of incapacity. But there are some
cases of incapacity which require a judicial decree of
competence to terminate the incapacity. Rule 98, section
1, of the Rules of Court provides:

“A person who has been declared incompetent for any

reason, or his guardian, relative, or friend, may petition the
court to have his present competency judicially
determined. The petition shall be verified by oath, and
shall state that such person is then competent. Upon
receiving the petition, the court shall fix a time for hearing
the questions raised thereby, and cause reasonable notice
thereof to be given to the guardian of the person so
declared incompetent, and to the ward. In the trial, the
guardian or relatives of the ward, and, in the discretion of
the court, any other person may contest the right to the
relief demanded and witnesses may be called out and
examined by the parties or by the court on its own motion.
If it be found that the person is no longer incompetent, his
competency shall be adjudged and the guardianship shall
cease.”

(Included Circumstances, modifying/limiting capacity to

act)

Art. 39. The following circumstances, among others,

modify or limit capacity to act:

age,

insanity,

imbecility,

the state of being a deaf-mute,

penalty

prodigality

family relations

alienage

absence

insolvency and

trusteeship.

(second sentence, law governing consequences) The

consequences of these circumstances are governed in
this Code, other codes, the Rules of Court, and in
special laws.

(third sentence, Excluded Circumstances) Capacity to act

is not limited on account of religious belief or political
opinion.

(2nd paragraph) A married woman, eighteen years

(previously twenty-one, as amended by R.A. 6809) of
age or over, is qualified for all acts of civil life,

except in cases specified by law.

Source of Article. – The first part of this article is taken

largely from the commentaries of Sanchez Roman (vol. 2,
p. 130) and Manresa (vol. 1, p. 208). The rest is new in the
Code, but merely states generally accepted principles.

Circumstances Affecting Capacity. – Some of the

circumstances mentioned in the present article as
modifying or limiting capacity to act are already given in
the preceding article. The enumeration made here,
however, is not exclusive of other circumstances
modifying capacity to act. The provisions of the present
and the preceding article are merely general statements of
principles, the controlling provision with respect to
capacity in each particular case being those contained in
specific articles found elsewhere in the Code, in special
laws, and even in the Rules of Court.

Same; Guardianship of Incompetents. – The Rules of

Court provide for the guardianship of incompetents. Rule
93, section 2, defines “incompetent” as including “persons
suffering from the penalty of civil interdiction or who are
hospitalized lepers, prodigals, deaf and dumb who are
unable to read and write, those who are of unsound mind,
even though they have lucid intervals, and persons not
being of unsound mind, but by reason of age, disease,
weak mind, and other similar causes, cannot, without
outside aid, take care of themselves and manage their
property, becoming thereby an easy prey for deceit and
exploitation.”

Even without guardianship, persons under civil

interdiction, deaf-mutes who do not know how to read
and write, and those of unsound mind, are of limited
capacity. There are specific provisions of law restricting
their capacity for certain acts (see discussion under article
38). With respect, however, to hospitalized lepers,
prodigals, and those who cannot take care of themselves
and manage their property, it is the fact of guardianship
which will limit their capacity to act. The management and
disposition of their property are placed in the hands of
their guardians, under the supervision of the court. But if
they have not been placed under guardianship, they have
capacity to act, because there are no specific provisions
of law limiting their capacity for particular juridical acts;
they can dispose of their property, they can make wills or
testaments, and they can enter into contracts, so long as
they are not suffering from any other cause of incapacity.

Same; Family Relations. – Certain family relations limit

the capacity of persons for some juridical acts.
Ascendants and descendants, brothers and sisters, and
collateral relatives within the fourth civil degree (as
cousins), cannot validly marry; their marriage would be
incestuous or against public policy and void. Husband and
wife, during the marriage, cannot give donations to each
other were limited by previous constitutions.

Same; Alienage or Citizenship. – Citizenship may affect

the right of persons in matters where the State may validly
discriminate between aliens and its citizens for reasons of
public policy, without doing violence to the equal
protection of the laws. Some of the limitations on the
rights of aliens are imposed by the Constitution, and
others by statute. The following rights are limited by
previous constitution to Filipino citizens:

(1) The right to acquire, exploit, develop, or utilize the

agricultural, timber, and mineral lands of the public
domain, and all kinds of natural resources of the
Philippines (Art. XIII, sec. 1, Constitution);

(2) The right to acquire private agricultural lands (Art. XIII,

sec. 5, Constitution), including residential land (Krivenko
vs. Register of Deeds, 44 Off. Gaz. 471);

(3) The right or privilege to operate public utilities (Art. XIV,

sec. 8, Constitution), including public market stalls (Ng
Ting vs. Fugoso [C.A.] 45 Off. Gaz. 2545);

and by law,

(4) The right to practice law (Rule 138, sec. 2, Rules of

Court) or to practice medicine (Sec. 1772, Revised
Administrative Code), and

(5) The right to engage in coastwise shipping (Sec. 1172,

Rev. Adm. Code).

Same; Absence. – A person is absent when he

disappears from his domicile, and his whereabouts are
unknown (article 381). He cannot properly administer his
properties, and so another person is appointed to
administer them (article 381). Continued absence may
even give rise to the presumption of his death (article 390).
However, the absentee may be alive somewhere, and, if
not otherwise incapacitated, his acts in such other place
are perfectly valid. He can even alienate his properties
without the knowledge of those who administer them in
his domicile, and the alienation would be valid to confer
title upon the grantee (article 389, par. 3).

Same; Insolvency and Trusteeship. – When a person has

been adjudicated as an insolvent, his capacity to dispose
of his property becomes limited. He cannot dispose of his
property existing at the time of the commencement of the
insolvency proceedings; and no payments of property or
credit can be made to him (Sec. 18 and 24, Act No. 1956).

Physical Condition. – In some cases, the physical

condition of a person may limit capacity for certain acts.
Thus, physical incapacity to enter into the married state,
or impotence, is a ground for annulment of marriage
(article 45[5]), Family Code), and a person who is blind, or
deaf or dumb, cannot be a witness to the execution of a
will (article 820).

Circumstances Not Affecting Capacity. – The Code

mentions only religious belief and political opinion as the
circumstances not limiting capacity to act. However, there
are others, such as race and nobility, which no longer
affect capacity, although they did in the past (1 Tolentino
167, citing 1 Ruggiero 358-359).

Equality of Sexes. – The modern social tendency is to

consider woman as being equal to man, with sufficient
intelligence and capacity to acquire rights and have
obligations in all activities, whether physical, intellectual,
juridical, or social. Legislation has followed this tendency,
and woman is no longer restricted in her capacity to act
simply because of her sex. Thus, the political and civil
rights of men and women are now the same.

The few differences that existed in the law cannot be

considered as legal modifications of capacity, but
necessary consequences of the different physical and
physiological elements of the male and the female. Thus,
the female had a lower age requirement for contracting
marriage, because she reaches the age of puberty earlier
than the male. She was not allowed to contract a
subsequent marriage within 300 days following the death
of her first husband, because she may be pregnant and
there would be a confusion of paternity of the child.
Simple adultery on her part entitled the husband to ask for
legal separation, while she was not entitled to the same
remedy unless the act of the husband amounted to
concubinage; this difference is due to the fact that simple
infidelity of the wife may result in the birth of children not
begotten by the husband (1 Tolentino 168, citing 1
Ruggiero 357-358; 1 Baldassarre 279-280; Munoz, p. 24;
Brugi, p. 61) But the Family Code of the Philippines has
abolished these differences.

Chapter 2

NATURAL PERSONS

Art. 40. Birth determines personality; but the

conceived child shall be considered born for all
purposes that are favorable to it,

(condition on presumption of live birth) provided it be

born later with the conditions specified in the following
article. (29a)

Source of Article. – Taken from article 29, old Civil Code.

Personality from Birth. – The existence of personality of

natural persons depends upon birth. Birth means the
removal of the foetus from the mother’s womb; this may
take place either naturally or artificially by surgical means.
Before birth, the foetus is not a person, but merely a part
of the internal organs of the mother. However, because of
the expectancy that it may be born, the law protects it and
reserves its rights, making its legal existence, if it should
be born alive, retroact to its moment of conception (1
Tolentino 169, citing 1 Ruggiero 343).

Same; Conceived Child. – The law considers the

conceived child as born for all purposes favorable to it, if it
is later born alive. Its personality, therefore, has two
characteristics: (1) it is essentially limited, because it is
only for purposes favorable to the child, and (2) it is
provisional or conditional, because it depends upon the
child being born alive later, such that if it is not born alive,
its personality disappears as if it had never existed (1
Tolentino 169, citing 1 Salvat 209; 1 Oyuelos 75)

Same; Same; Period of Conception. – Science has not

determined the exact moment when conception begins (1
Valverde 247). Medical experts can only make estimates,
but cannot determine the exact moment. Legally, however,
in a normal child, the period of conception is the first 120
days of the 300 days preceding the birth of the child.

Rights of Conceived Child. – Since the conceived child is

already considered as born for purposes favorable to it, it
can acquire and enjoy rights while it is in the mother’s
womb. It may, therefore, be given donations; it can inherit
by will or by intestacy.

It has been held that the interests of the conceived child,

for purposes of which he is considered born, are not
limited to his right of inheritance or property rights, but
embraces both personal and property rights, including the
right to compensation for personal injuries wrongfully
inflicted. An unborn child is entitled even to support from
his father, who may be compelled to give it if the mother
cannot.

In a case where the plaintiff begot a child with the

defendant, the latter wrote letters to a priest recognizing
the child as his, before the child was born, asking the
priest to baptize the child after it was born; it was held
that those letters could be the basis of an action for the
compulsory acknowledgment of the child by the
defendant after its birth (1 Tolentino 170, citing De Jesus
vs. Syquia, 58 Phil. 866; Note: Actions for compulsory
recognition have been abolished under the new Family
Code of the Philippines).

(General Rule: Presumption of Live Birth)

Art. 41. For civil purposes, the foetus is considered

born if it is alive at the time it is completely delivered
from the mother’s womb.

(Qualification) However, if the foetus had an intra-

uterine life of less than seven months, it is not deemed
born if it dies within twenty-four hours after its
complete delivery from the maternal womb. (30a)

Source of Article. – The Code Commission cites article

30 of the Old Civil Code as the source of this article.
Under the old Code, it was provided that “only such
foetus which has a human form and lives twenty-four
hours completely separated from the mother’s womb,
shall be considered born.” The requirement of a human
form has been eliminated because science has shown that
every foetus born alive has human form; monsters are not
born alive. And the 24-hour period has been omitted,
because the requirement of such a period for acquiring
personality is arbitrary; the fact of being alive is the
significant fact (Commission, pp. 79, 124-125).

Separation from Mother. – The total separation of the

foetus from the mother’s womb is produced by the cutting
of the umbilical cord, whether the removal takes place
naturally or by surgical operation (1 Tolentino 171, citing 1
Camus 57-58).

Alive at Birth. – All that the law requires is that the child
be alive at the time of complete separation from the
mother’s womb. The duration of extra-uterine life is
immaterial; for acquisition of juridical personality, it is
enough that the child lives even for an instant (1 Tolentino
171, citing 1 Ruggiero 344; 1 Oyuelos 77-78).

Same; Test of Life. – Proof that the foetus was alive at the
time of separation from the mother’s womb is sometimes
difficult. There is no special sign of life, and in many cases
expert medical evidence will be necessary. It must be
shown that the child had an independent life; this must be
its own extra-uterine, and not a mere continuation of its
intra-uterine life. Pulsations, convulsive movements, and
incomplete convulsive respiration are frequently a mere
continuation of intra-uterine life. The general opinion is
that independent life required for juridical personality can
be shown only by complete respiration. The cry of the
child, although it is not a necessary sign of life, is evidence
that it has acquired complete respiration. Another
indication of complete respiration is the floating of the