Arellano University School of Law

Center for Legal Education and Research

2019 BAR OPERATIONS COMMISSION

LAST MINUTE TIPS
CIVIL LAW

PERSONS AND FAMILY RELATIONS

1. Distinguish Accion In Rem Verso from Solutio Indebiti.

ACCION IN REM VERSO SOLUTIO INDEBITI

Requisites are: Requisites are:
a. The defendant has been enriched; a. Something has been received
b. The plaintiff has suffered a loss; when there was no right to
c. Enrichment of the defendant is without just or legal demand it; and
ground; and b. The same was unduly
d. Plaintiff has no other action based on contract, quasi- delivered through mistake.
contract, crime or quasi-delict.
The delivery was without legal or valid ground, and it must The delivery or the payment must
not be by reason of mistake. be by reason of mistake.
Source of obligation is law A form of quasi-contract
(University of the Philippines vs. PHILAB, G.R. No. 152411, September 29, 2004)

2. May the absence of real intention to establish a conjugal and family life nullify a marriage?

No. So long as all the essential and formal requisites prescribed by law are present, and it is not void
or voidable under the grounds provided by law, it shall be declared valid. The possibility that the
parties in a marriage might have no real intention to establish a life together is, however, insufficient
to nullify a marriage freely entered into in accordance with law. (Republic vs. Albios, G.R. No. 198780, October
16, 2013)

3. May a divorce decree obtained abroad by a Filipino citizen married to a foreigner be

recognized as valid in the Philippines pursuant to Par. 2, Art. 26 of the Family Code?

Yes. The provision only requires that there be a divorce validly obtained abroad. The letter of the law
does not demand that the alien spouse should be the one who initiated the proceeding wherein the
divorce decree was granted. It does not distinguish whether the Filipino spouse is the petitioner or the
respondent in the foreign divorce proceeding. (Republic vs. Manalo, G.R. No. 221029, April 24, 2018)

4. When may the requirement of marriage license be dispensed with?

a. Marriage in articulo mortis (at the point of death) even if the ailing party subsequently survives;
b. If the residence of either party is so located that there is no means of transportation to enable
such party to personally appear before the local civil registrar;
c. Marriage among Muslims or among members of the ethnic cultural communities, provided they
are solemnized in accordance with their customs, rites or practices;
d. Marriage between a man and a woman who have lived together as husband and wife for at least
five years and without impediment to marry each other; and
e. Marriages celebrated abroad and in accordance with the laws of the place of celebration which do
not require a valid marriage license. (Arts. 26-28, and 33-35, Family Code)

5. When is a declaration of nullity a prejudicial question for bigamy?

a. FIRST marriage is alleged to be void. The crime of bigamy may be committed if the subsequent
marriage was entered into after the effectivity of the Family Code but without securing first a
judicial declaration of nullity of the previous marriage under Art. 40 of the Family Code. Even if a
petition for declaration of nullity of the previous marriage was filed ahead of the criminal action for
bigamy, it will not be a prejudicial question to because any decision in the civil action will not
erase the fact that the accused in the bigamy case had entered into a second marriage during the
subsistence of the first marriage. (Morigo vs. People, G.R. No. 145226, February 6, 2004)

b. SECOND marriage is alleged to be void. For the accused to be convicted of bigamy, the
subsequent marriage must have all the essential requisites for validity except for the existence of
a prior marriage. Thus, if the subsequent marriage is void not because of the existence of the first
marriage but for other causes, the crime of bigamy is not committed. In such a situation, the prior
institution of a civil action for declaration of nullity of the subsequent marriage will constitute a
prejudicial question to the criminal action for bigamy. (Santiago vs. People, G.R. No. 200233, July 15, 2015)

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6. Discuss the property regimes of marriages.

MARRIAGE PROPERTY REGIME

Valid and a. Marriage settlement;
Voidable b. Absence of a valid marriage settlement:
1. CPG: Celebrated before the effectivity of Family Code
2. ACP: Celebrated during the effectivity of Family Code
3. CSP: In case no liquidation is made within one year from the death of deceased
spouse, a mandatory regime of shall govern the property relations of the subsequent
marriage of the surviving spouse.
c. Other rules:
1. CSP: Legal Separation or Judicial Order of Separation
2. ACP, CPG or CSP: Marriage terminated after re-appearance of the absent spouse.
3. CSP: Reconciliation in case of Legal Separation, unless previous property regime is
revived.
Void a. Art. 147: For any reason, Psychological Incapacity, Subsequent marriage in case of non-
compliance with Art. 52;
b. Art. 148: Bigamous marriage; and
c. ACP, CPG, or CSP: Marriage is declared void by reason of non-compliance with Art. 40
of the Family Code.
*Absolute Community of Property (“ACP”); Conjugal Partnership of Gains (“CPG”); Complete Separation of Property (“CSP”); Art. 147 of the
Family Code (“Art. 147”); Art. 148 of the Family Code (“Art. 148”).
(Arts. 40-43, 50, 52-53, 63, 66-67, 74-75, 103, 130, 136-135, 147-148, Family Code)

7. Discuss the property regimes of unions without marriage under the Family Code.

ARTICLE 147 ARTICLE 148

1. Capacitated to marry each other.
2. Live exclusively as husband and wife without the
benefit of marriage or under a void marriage.
Salaries and wages are owned in equal shares.
Property acquired is presumed to be owned by both.
Governed by the rules on co-ownership when the
presumption of joint acquisition and equal sharing
applies.
There is presumption of joint acquisition and equal
sharing as to property acquired while they live
together.
With legal impediment to marry.
Salaries and wages are separately owned.
Property acquired belongs to such party.
Owned by them in common in proportion to their
respective contributions.
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.

8. May a birth certificate be registered by the biological father of an illegitimate child without the
knowledge and consent of the child’s biological mother?

No. Par. 5, Sec. 5 of Act No. 3753 (Civil Registry Law) states that in case of an illegitimate child, the
birth certificate shall be signed and sworn to jointly by the parents of the infant or only the mother if
the father refuses. It is mandatory that the mother of an illegitimate child signs the birth certificate of
her child in all cases, irrespective of whether the father recognizes the child as his or not. If it appears
on the face of the birth certificate that the mother did not sign the documents, the local civil registrar
has no authority to register the same. (Tinitigan vs. Republic, G.R. No. 222095, August 7, 2017)

9. What are the requisites of sale of a Family Home, and the concept of voluntary improvement?

a. At the constitution of the family home, its actual value did not exceed P300,000 in urban areas or
P200,000 in rural areas;
b. After the constitution, its actual value increased beyond said amount; and
c. The increase in actual value is by reason of voluntary improvement.

A voluntary improvement is such kind of improvement due to a voluntary action of any of the
beneficiaries of the family home. (Eulogio vs. Bell, Sr., G.R. No. 186322, July 8, 2015)

10. Discuss the Rules on Filiation of Legitimate and Illegitimate Children.

LEGITIMATE ILLEGITIMATE
Art. 172, Par (1): (a) The record of birth appearing in the civil register or a final judgment; or (b) An admission
of legitimate filiation in a public document or a private handwritten instrument and signed by the parent
concerned.
Art. 172, Par (2): (a) The open and continuous possession of the status of a legitimate child; or (b) Any other
means allowed by the Rules of Court and special laws.
The action may be brought by the child during his a. If based on Art. 172, Par. 1: The action must be
lifetime and shall be transmitted to the heirs should brought within the same period specified in Art.
the child die during minority or in a state of insanity. 173.
The heirs shall have five (5) years within which to b. If based on Art. 172, Par. 2: The action must be
institute the action. Action already commenced by brought within the same period specified in Art.
the child shall survive notwithstanding the death of 173, but during the lifetime of the alleged parent.
either or both of the parties. (Art. 173, Civil Code) (Art. 175, Civil Code)

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11. State whether the following proofs sufficiently establish filiation.

a. SSS Form E-1 subscribed and made under oath by the putative father, bearing his
signature and thumb marks and indicates that the alleged child is his son and dependent.
Yes. SSS Form E-1 satisfies the requirement for proof of filiation and relationship to the putative
father under Art. 172 of the Family Code. By itself, said document constitutes an “admission of
legitimate filiation in a public document or a private handwritten instrument and signed by the
parent concerned.” (Aguilar vs. Siasat, G.R. No. 200169, January 28, 2015)

b. Handwritten entries in a diary, a private instrument, acknowledging a child.

Where the private handwritten instrument is the lone piece of evidence submitted to prove
filiation, there should be strict compliance with the requirement that the same must be signed by
the acknowledging parent. Where the private handwritten instrument is accompanied by other
relevant and competent evidence, it suffices that the claim of filiation therein be shown to have
been made and handwritten by the acknowledging parent as it is merely corroborative of such
other evidence. (Aguilar vs. Siasat, G.R. No. 200169, January 28, 2015)

c. A birth certificate not signed by the putative father.

No. A certificate of live birth purportedly identifying the putative father is not competent evidence
of paternity when there is no showing that the putative father had a hand in the preparation of the
certificate. Neither can such birth certificate be taken as a recognition in a public instrument and it
has no probative value to establish filiation to the alleged father. (Salas vs. Matusalem, G.R. No. 180284,
September 11, 2013)

d. A birth certificate not signed by the putative father but the latter appears to have caused
the registration of the birth of the alleged child.

Yes. When the putative father had a direct hand in the preparation of the birth certificate, reliance
on the birth certificate of the child as evidence of his paternity is fully warranted, although the
same be unsigned. (Arado vs. Alcoran, G.R. No. 163362, July 8, 2015)

e. A notarial agreement to support a child whose filiation is admitted by the putative parent.

Yes. The agreement is an admission of filiation in a public document. (Nepomuceno vs. Lopez, G.R. No.
181258, March 18, 2010)

f. Delayed registration of birth, made after the death of the putative parent.

No. A delayed registration of birth, made after the death of the putative parent, is tenuous proof of
filiation. It cannot be accorded the same evidentiary weight as regular birth certificates. To be a
competent proof of filiation, it must be shown that the putative father had a direct hand in the
preparation of the birth certificate. (Ara vs. Pizzaro, GR. No. 187273, February 15, 2017)

g. A baptismal certificate.

No. Baptismal certificate per se is inadmissible in evidence as proof of filiation. While it may be
considered a public document, it can only serve as evidence of the administration of the
sacrament on the date specified but not the veracity of the entries with respect to the child‟s
paternity. (Perla vs. Perla, G.R. No. 172471, November 12, 2012)

12. Joy married Bob and had three children. Bob’s parents, Sps. Lim, shouldered the family
expenses, as Joy had no steady income and Bob’s income is insufficient to fully support his
family. Later, Joy abandoned Bob, bringing their minor children with her due to Bob’s
infidelity. Joy then sued Bob and Sps. Lim for support. The court rendered judgment ordering
Bob and Sps. Lim to jointly provide support to Joy and the children. Sps. Lim contends that
they should only be liable for support upon default of parental authority.

a. Is the contention of Sps. Lim correct?

No. While parental authority pertains to parents, passing to ascendants only upon its termination
or suspension, the obligation to provide legal support passes on to ascendants not only upon
default of the parents but also for the latter‟s inability to provide sufficient support. (Lim vs. Lim, G.R.
No. 163209, October 30, 2009)

b. Can Sps. Lim fulfill their obligation by maintaining Joy and the children at their residence?

No. Art. 204 of the Civil Code provides that the person obliged to give support shall have the
option to fulfill the obligation either by (a) paying the allowance fixed, or (b) receiving and
maintaining in the family dwelling the person who has a right to receive support. The latter
alternative cannot be availed of in case because there is a moral or legal obstacle thereto.

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 Forcing the wife to return to the house which, for her, is the scene of her husband‟s infidelity,
amounts to a moral impediment bringing the case within the ambit of the exception clause of Art.
204. (Lim vs. Lim, G.R. No. 163209, October 30, 2009)

13. May a petition whose sole objective is to declare a person presumptively dead be taken
cognizance of by Philippine courts?

No. Such petition should be dismissed outright. A rule creating a presumption of death is merely one
of evidence that cannot be the lone subject of an independent action or proceeding. Such petition
presents no actual controversy that a court could decide. (Tadeo vs. Republic, G.R. No. 230751, April 25, 2018)

14. Three days after Mars married Joel, the latter, a member of the AFP, left and went to Sulu
where he was assigned. Mars filed before the court a petition to declare Joel as presumptively
dead for the purpose of remarriage, alleging that after the lapse of 33 years without any kind
of communication from him, she firmly believes that he is already dead. Mars testified
affirming that she exerted efforts to find Joel by inquiring from his parents, relatives, and
neighbors, who, unfortunately, were also not aware of his whereabouts.

a. What are the requisites to be declared presumptively dead?

(1) The absent spouse has been missing for four consecutive years, or two consecutive years if
the disappearance occurred where there is danger of death under the circumstances laid
down in Art. 391 of the Civil Code;
(2) The present spouse wishes to remarry;
(3) The present spouse has a well-founded belief that the absentee is dead; and
(4) The present spouse files a summary proceeding for the declaration of presumptive death of
the absentee.

b. What constitutes “well-founded belief” that the absentee is dead?

The “well-founded belief” in the absentee‟s death requires the present spouse to prove that his
belief was the result of diligent and reasonable efforts to locate the absent spouse and that based
on these efforts and inquiries, he believes that under the circumstances, the absent spouse is
already dead. It necessitates exertion of active effort, not a passive one. The burden of complying
with the stringent requirement of “well-founded belief” can only be discharged upon a showing of
proper and honest-to-goodness inquiries and efforts to ascertain not only the absent spouse's
whereabouts, but more importantly, whether the latter is still alive or is already dead.

c. Should Joel be declared presumptively dead?

No. Other than making said inquiries, however, the wife made no further efforts to find her
husband. She could have called or proceeded to the AFP headquarters to request information
about her husband, but failed to do so. She did not even seek the help of the authorities or the
AFP itself in finding him. Hence, the wife failed to actively look for her missing husband, and her
purported earnest efforts to find him by asking parents, relatives, and friends did not satisfy the
strict standard and degree of diligence required to create a “well-founded belief” of his death.
(Republic vs. Tampus, G.R. No. 214243, March 16, 2016, J. Perlas-Bernabe)

15. Explain briefly the following rules on conflict of laws.

a. Forum non Conveniens. – A court, in conflict of law cases, may refuse impositions on its
jurisdiction where it is not the most “convenient” or available forum and the parties are not
precluded from seeking remedies elsewhere. (Eversley Childs Sanitarium vs. Sps. Perlabarbarona, G.R. No.
195814, April 4, 2018)

b. Lex Loci Celebrationis. – The forms and solemnities of contracts, wills, and other public
instruments shall be governed by the laws of the country in which they are executed. (Art. 17, Civil
Code)

c. Lex Nationalii – it is the theory by virtue of which the status and capacity of an individual are
generally governed by the law of his nationality. (Paras, E.L. , Philippine Conflict of Laws, 1996)

d. Lex Domicilii theory – the individual‟s private rights, condition, status, and capacity are
determined by the law of his domicile. (Sempio-Diy, A.V. , Handbook on Conflicts of Law, 2004)

e. Lex Situs or Lex Rei Sitae. – Real property as well as personal property is subject to the law of
the country where it is situated. (Art. 16, Civil Code)

f. Doctrine of Processual Presumption or the Doctrine of Presumed-Identity Approach. –

Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that
foreign law is the same as the domestic law. (EDI-Staffbuilders vs. NLRC, G.R. No. 145587, October 26, 2007)

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 g. Renvoi. – A procedure whereby a jural matter presented is referred by the conflict of laws rules of
the forum to a foreign state, the conflict of laws rule of which in turn refers the matter back to the
law of the forum (remission) or a third state (transmission). (Coquia, J.R. & Aquiling-Pangalanan, E.,
Conflict of Laws: Cases, Materials, and Comments, 2000)

h. Double renvoi. – That which occurs when the local court, in adopting the foreign court theory,
discovers that the foreign court accepts the renvoi. (Sempio-Diy, A.V., supra.)

16. If the adopter dies during minority of the adopted child, would the parental authority revert
back to the biological parents??

Yes. Parental authority of the biological parent should be deemed to have been restored. It is, after
all, for the best interest of the child that someone will remain charged for his welfare and upbringing
should his or her adopter dies at a time the adoptee is still in his formative years. (Bartolome vs. SSS, G.R.
No. 192531, November 12, 2014).

PROPERTY

17. Frankie, a French national, and Riri, a Filipina, were former husband and wife. In a petition for
dissolution, the court dissolved their conjugal partnership, awarding all parcels of land they
supposedly own to Riri. Frankie questioned said decision, invoking the principle of unjust
enrichment, contending that he is entitled to reimbursement because the money used to
purchase said parcels of land came from his own pocket. Is Frankie’s contention correct?

No. Foreign ownership of Philippine land is prohibited under the Constitution. A foreigner cannot seek
reimbursement on the ground of equity where it is clear that he willingly and knowingly bought the
property despite the prohibition against foreign ownership of Philippine land under the 1987
Constitution. In a case involving a foreigner seeking monetary reimbursement for money spent on
purchase of Philippine land, the provision on unjust enrichment does not apply. (Beumer v. Amores, G.R.
No. 195670, December 3, 2012, J. Perlas-Bernabe)

18. What properties are classified as (a) immovable and (b) movable under the Civil Code?

IMMOVABLE PROPERTY MOVABLE PROPERTY

a. Land, buildings, roads and constructions of all kinds adhered a. Those movables susceptible of
to the soil; appropriation which are classified
b. Trees, plants, and growing fruits, while they are attached to the as immovable property;
land or form an integral part of an immovable; b. Real property which by any special
c. Everything attached to an immovable in a fixed manner, in provision of law is considered as
such a way that it cannot be separated therefrom without personalty;
breaking the material or deterioration of the object; c. Forces of nature which are brought
d. Statues, reliefs, paintings or other objects for use or under control by science;
ornamentation, placed in buildings or on lands by the owner of d. In general, all things which can be
the immovable in such a manner that it reveals the intention to transported from place to place
attach them permanently to the tenements; without impairment of the real
e. Machinery, receptacles, instruments or implements intended property to which they are fixed;
by the owner of the tenement for an industry or works which e. Obligations and actions which have
may be carried on in a building or on a piece of land, and for their object movables or
which tend directly to meet the needs of the said industry or demandable sums; and
works; f. Shares of stock of agricultural,
f. Animal houses, pigeon-houses, beehives, fish ponds or commercial, and industrial entities,
breeding places of similar nature, in case their owner has although they may have real estate.
placed them or preserves them with the intention to have them (Arts. 415-417, Civil Code)
permanently attached to the land, and forming a permanent
part of it (animals therein are included);
g. Fertilizer actually used on a piece of land;
h. Mines, quarries, and slag dumps, while the matter thereof
forms part of the bed, and waters either running or stagnant;
i. 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; and
j. Contracts for public works, and servitudes and other real rights
over immovable property.

19. What are the kinds of immovable properties?

a. Immovable by Nature – those which by their essence and nature are immovable or cannot be
moved from one place to another, such as lands, roads, mines, quarries and slug dumps;
b. Immovable by Incorporation – those which are treated as immovable by reason of their
attachment or incorporation to an immovable in such manner as to be an integral part thereof,
such as buildings and constructions of all kinds adhered to the soil; trees, plants and growing
fruits attached to the land or forming and integral part of an immovable; and those that are
attached to an immovable in the manner provided for in Par. 3 of Art. 415;

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 c. Immovable by Destination – those which are essentially movable, but by the purpose for which
they have been placed in an immovable, partake of the nature of the latter because of the added
utility derived therefrom, such as those mentioned in Pars. 4, 5, 6, 7 and 9 of Art. 415; and
d. Immovable by Analogy – those that are mentioned in Par. 10 of Art. 415.

20. What are the alienable and disposable lands of the State and their requisites?

ALIENABLE AND DISPOSABLE PATRIMONIAL LANDS

AGRICULTURAL LANDS
The requisites of applications for registration of
alienable and disposable lands of the public domain
are:
a. The applicant is a Filipino citizen;
b. The applicant, by himself or through his
predecessors-in-interest, has been in open,
continuous, exclusive and notorious possession
and occupation of the property since 12 June
1945; and
c. The property has been declared alienable and
disposable as of the filing of the application.
If the area applied for does not exceed 12 hectares,
the application should be filed by 31 December 2020.
To establish that the land subject of the application
has been converted into patrimonial property of the
State, the requisites are:
a. The subject property has been classified as
agricultural land;
b. The property has been declared alienable and
disposable;
c. There is an express government manifestation
that the property is already patrimonial, or is no
longer retained for public service or the
development of national wealth.
d. The period of prescription, whether ordinary or
extraordinary, has lapsed.
(Republic v. Nicolas, G.R. No. 181435, October 2, 2017)

21. Discuss the rules in cases where the landowner and the builder (a) both acted in good faith or
(b) either acted in bad faith.

BOTH ACTED IN GOOD FAITH
Landowner‟s options are:
a. Appropriate as his own the what
has been built after payment of
the indemnity (necessary and
useful expenses); or
b. Oblige the builder to pay the
price of the land if its value is not
considerably more than that of
the works. If the value of the land
is higher, the builder shall pay
reasonable rent, if the landowner
does not choose the first option.
Note: If both are in bad faith, both will be considered to have acted in good faith. (Arts. 447-452, Civil Code)
LANDOWNER: BAD FAITH BUILDER: BAD FAITH
Builder‟s options are: Landowner‟s options are:
a. Demand the value of the a. Appropriate as his own the
materials, plus damages; or what has been built without
payment of the indemnity;
b. Demand the return of the b. Demand the demolition of
accessory thing even if the the work, at the expense of
injury is caused thereby to the builder; or
the land, at the expense of c. Compel the builder or
the landowner, plus planter to pay the price of
damages. the land, and the sower the
proper rent.
In any event, the builder is also
liable for damages.

22. Define the following private legal easements.

a. Easement of Right of Way. – One granted to the owner, or any person who by virtue of a real
right may cultivate or use any immovable, which is surrounded by other immovables pertaining to
other persons and without adequate outlet to a public highway, through the neighboring estates,
after payment of the proper indemnity. (Art. 649, Civil Code)
b. Easement of Party Wall. – One which is presumed to exist, unless there is a title or exterior sign,
or proof to the contrary, among others, in dividing walls adjoining buildings up to the common
point of elevation. (Art. 659, Civil Code)
c. Easement of Light and View. – It refers to an easement whereby the dominant estate enjoys the
right to have free access to light, a little air, and a view overlooking the adjoining estate, i.e., the
servient estate. (Sps. Garcia vs. Santos, G.R. No. 228334, June 17, 2019)
d. Easement of Lateral and Subjacent Support. – The right of lateral and subjacent support is the
right to have land supported by the adjoining land or the soil beneath. Each of the two adjoining
landowners is entitled to the support of the other‟s land. (Black’s Law Dictionary, 5th Ed., 795, Bouvier’s Law
Dictionary, Vol. 2. 3rd revision, 1871)

23. Distinguish Negative Easement from Positive Easement.

NEGATIVE EASEMENT POSITIVE EASEMENT

Prohibits the owner of the servient estate from doing
something which he could lawfully do if the easement
did not exist.
In acquisition by prescription, prescriptive period
commences 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.
(Sps. Garcia vs. Santos, G.R. No. 228334, June 17, 2019)
Imposes upon the owner of the servient
estate the obligation of allowing something
to be done or of doing it himself.
In acquisition by prescription, prescriptive
period commences 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.

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24. Distinguish (a) Continuous Easement from Discontinuous Easement, and (b) Apparent
Easement from Non-apparent Easement.

CONTINUOUS EASEMENT DISCONTINUOUS EASEMENT

That the use of which is or may be incessant, That which are used at intervals and depend
without the intervention of any act of man. upon the acts of man

APPARENT EASEMENT NON-APPARENT EASEMENT

That which are made known and are continually That which show no external indication of their
kept in view by external signs that reveal the existence.
use and enjoyment of the same.

Note: Only continuous and apparent easements are acquired either by virtue of a title or by
prescription of ten (10) years. All others are acquired only by virtue of a title. (Heirs of the Late Joaquin
Limense vs. Vda. De Ramos, G.R. No. 152319, October 28, 2009)

25. What are the two concepts of a builder in good faith?

LIMITED CONCEPT EXPANDED CONCEPT

It is essential that a person asserts title to the land on
which he builds, i.e., that he be a possessor in the
concept of owner, and that he be unaware that there
exists in his title or mode of acquisition any flaw which
invalidates it.
In cases wherein the builder has
constructed improvements on the land of
another with the knowledge and consent
of the owner. (Department of Education vs.
Casibang, G.R. No. 192268, January 27, 2016)

26. Kath filed a complaint for easement of right of way. Can she later on claim ownership over the
portion covered in her complaint for easement of right of way?

No. The act of filing a complaint for easement of right of way is an acknowledgement that the property
is not her property. It is tantamount to a waiver of whatever right or claim of ownership over the
property. (Reyes vs. Sps. Ramos, G.R. No. 194488, February 11, 2015)

27. What is hidden treasure? Who may claim ownership over it?

It refers to any hidden and unknown deposit of money, jewelry, or other precious objects, the lawful
ownership of which does not appear. Hidden treasure belongs to the owner of the land, building, or
other property on which it is found. 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. If the
finder is a trespasser, he shall not be entitled to any share of the treasure. If the things found be of
interest to science or the arts, the State may acquire them at their just price, which shall be divided in
conformity with the rule stated. (Arts. 438 and 439, Civil Code)

28. What are the formalities required in donation of (a) personal property and (b) real property?

PERSONAL PROPERTY REAL PROPERTY

If the value does not exceed P5,000.00: It must be made in a public
a. The donation and acceptance may be made orally or in writing. document. The acceptance may
b. An oral donation requires the simultaneous delivery of the thing or of be made in the same deed of
the document representing the right donated. Otherwise, the donation donation or in a separate public
shall be void. document. If the acceptance is
c. A donation in writing does not require the simultaneous delivery of the made in a separate instrument,
thing or of the document representing the right donated. the donor shall be notified
thereof in an authentic form,
If the value exceeds P5,000.00: The donation and the acceptance shall be and this step shall be noted in
made in writing, whether in public or private instrument. Otherwise, the both instruments. (Arts. 748-749,
donation shall be void. Civil Code)

29. Distinguish Nuisance per accidens from Nuisance per se.

NUISANCE PER ACCIDENS NUISANCE PER SE

Depends upon certain conditions and circumstances,
and its existence being a question of fact.
Cannot be abated without due hearing thereon in a
tribunal authorized to decide whether such a thing
does in law constitute a nuisance.
Affects the immediate safety of persons
and property.
May be summarily abated under the
undefined law of necessity. (Rana vs. Wong,
G. R. No. 192861, June 30, 2014, J. Perlas Bernabe)

30. Explain the concept of indefeasibility of the Torrens title.

Certificates of title issued pursuant to emancipation patents acquire the same protection accorded to
other titles, and become indefeasible and incontrovertible upon the expiration of one year from the

arellano C|L|E|A|R 7
 date of the issuance of the order for the issuance of the patent. Lands so titled may no longer be the
subject matter of a cadastral proceeding; nor can they be decreed to other individuals. (Berboso vs.
Carbal, G.R. No. 204617, July 10, 2017)

31. When may a person bring an action for the recovery of damages to be paid out of the
Assurance Fund?

It is a condition sine qua non that the person who brings an action for damages against the assurance
fund be the registered owner, and, as to holders of transfer certificates of title, that they be innocent
purchasers in good faith and for value. An action for compensation against the Assurance Fund must
be filed within six (6) years from the moment the innocent purchaser for value registers his or her title
and upon actual knowledge thereof of the original title holder/claimant. (Sps. Stilianopoulos vs. Register of
Deeds, G.R. No. 224678, July 03, 2018, J. Perlas-Bernabe)

SUCCESSION

32. What are the requisites of a valid notarial will?

a. It must be in writing;
b. It must be subscribed at the end thereof by the testator himself or by the testator‟s name written
by some other person in his presence, and by his express direction;
c. It must be attested and subscribed by three or more credible witnesses in the presence of the
testator and of one another;
d. It must be signed by the testator or the person requested by him to write his name and the
instrumental witnesses of the will in each and every page thereof, except the last, on the left
margin;
e. The Attestation shall state the number of pages used upon which the will is written, and the fact
that the testator signed the will and every page thereof, or caused some other person to write his
name, under his express direction, in the presence of the instrumental witnesses, and that the
latter witnessed and signed the will and all the pages thereof in the presence of the testator and
one another;
f. All the pages shall be numbered correlatively in letters placed on the upper part of each page;
and
g. It must be executed in the language known to the testator. (Art. 805, Civil Code)

33. What are the requisites of a valid holographic will?

It must be entirely written, dated, and signed by the hand of the testator himself. (Art. 810, Civil Code)

34. Enrique died leaving a will. In the will, while the acknowledgment portion stated that it
consists of seven (7) pages including the page on which the ratification and acknowledgment
are written, the will actually has eight (8) pages including the acknowledgment portion. May
Enrique’s will be probated?

No. The statement in the acknowledgment portion of the will that it “consists of seven (7) pages
including the page on which the ratification and acknowledgment are written” cannot be deemed
substantial compliance. The will actually consists of eight (8) pages including its acknowledgment
which discrepancy cannot be explained by mere examination of the will itself but through the
presentation of evidence aliunde. (Lopez, vs. Lopez, G.R. No. 189984, November 12, 2012, J. Perlas-Bernabe)

35. Are joint wills executed abroad where joint wills are allowed enforceable in the Philippines?

Joint wills executed by Filipinos in a foreign country shall not be valid in the Philippines, even though
authorized by the laws of the country where they may have been executed. However, by virtue of the
nationality principle, this prohibition does not cover joint wills executed by foreigners. (Art. 819, Civil
Code)

36. What is Disposicion Captatoria?

It is any disposition made upon the condition that the heir shall make some provision in his will in
favor of the testator or of any other person. Such provision is void. (Art. 875, Civil Code)

37. What is the Iron Curtain Rule?

It provides that an illegitimate child has no right to inherit ab intestato from the legitimate children and
relatives of his father or mother; nor shall such children or relatives inherit in the same manner from
the illegitimate child. The right of representation is not available to illegitimate descendants of
legitimate children in the inheritance of a legitimate grandparent. (Arado vs. Alcoran, G.R. No. 163362, July 8,
2015)

arellano C|L|E|A|R 8
38. When may a probate court pass upon matters other than the extrinsic provision of a will?

a. When the defect of the will is apparent on its face and the probate of the will may become a
useless ceremony if it is intrinsically invalid, e.g., when the testator admits in the will that he is
disposing of his properties to his concubine. (Nepomuceno vs. CA, G.R. No. L-62952, October 9, 1985)
b. Where practical considerations demand that the intrinsic validity of the will be passed upon, even
before it is probated, the court should meet the issue, e.g., when the issue of preterition of
compulsory heirs in the direct line is raised, especially when the will does not provide for legacies
or devises. (Acain vs. CA, G.R. No. 72706, October 27, 1987)
c. When the instrument presented for probate is denominated as a donation mortis causa, the issue
of whether said instrument is a donation mortis causa or in a fact a donation inter vivos, may be
passed upon by the probate court. (Del Rosario vs. Ferrer, G.R. No. 187056, September 20, 2010)
d. Where all the parties agree that the intrinsic validity of a will be first determined. (Reyes vs. CA, G.R.
No. 12099, October 30, 1997)

39. Distinguish the effect of Preterition and Ineffective Disinheritance.

PRETERITION INFEFFECTIVE DISINHERITANCE

Shall annul the institution of heir, unless in the Shall annul the institution of heirs, but only
will there are, in addition, testamentary insofar as it may prejudice the person
dispositions in the form of devises or legacies. disinherited
(Nuguid vs. Nuguid, G.R. No. L-23445, June 23, 1966)

40. When does the right of accretion take place?

a. That two or more persons be called to the same inheritance, or to the same portion thereof, pro
indiviso; and
b. That one of the persons thus called die before the testator, or renounce the inheritance, or be
incapacitated to receive it. (Art. 1016, Civil Code)

41. What are the requisites for the application of reserva troncal?

a. That the property was acquired by a descendant (prepositus) from an ascendant or from a
brother or sister (origin) by gratuitous title (by inheritance or donation);
b. That said descendant died without an issue;
c. That the property is inherited by another ascendant (reservista) by operation of law; and
d. That there are relatives within the third degree belonging to the line from which said property
came (reservatarios). (Mendoza vs. Delos Santos, G.R. No. 176422, March 20, 2013)

42. Discuss the rules in Intestate Succession.

INTESTATE SUCCESSION IN THE DIRECT DESCENDING LINE

LC survive with ILC LC – double that of the ILC
LC survive with SS SS – same share as that of each LC
LC survive with ILC and SS SS – same share as that of each LC ; ILC – ½ of the share of an LC
INTESTATE SUCCESSION IN THE DIRECT ASCENDING LINE
LA survive with ILC LA – ½ ; ILC – ½
SS survives with LP SS – ½ ; LP – ½
LA survive with SS and ILC LA – ½ ; SS – ¼ ; ILC – ¼
ILLEGITIMATE CHILDREN
SS survives with ILC SS – ½ ; ILC – ½
COLLATERAL BLOOD RELATIVES
BS survive with SS BS – ½ ; SS – ½
*Surviving Spouse (“SS”); Legitimate Child or descendant/s (“LC”); Illegitimate Child (“ILC”); Legitimate Parent/s or ascendant/s (LP);
Legitimate Ascendant/s (“LA”); Brothers and Sisters (“BS”); Nephews and Nieces (“NN”)

Note: The presence of BS and NN shall result in the exclusion of the other collateral relatives. The
decedent‟s uncles and aunts are excluded by the decedent‟s NN even if they are within the same
degree. (Arts. 983, 998, 999, 1001 and 1009[1], Civil Code; Art. 176, Family Code)

43. Discuss the rules on Legitimes.

SURVIVING ALONE
Compulsory heirs of the same ½
kind, without concurrence of
1
other kinds of compulsory Exception: /3 for SS when the marriage was solemnized in articulo mortis
heirs. and the decedent died within 3 months from the time of the marriage.
Exception: ½ for SS when the spouses have been living as husband and wife
for more than five years prior to the marriage.
WHEN PRIMARY CONCURS WITH CONCURRING COMPULSORY HEIRS
One LC concurs with SS LC – ½ ; SS – ¼ ; FP – ¼
Several LC concur with SS LC – ½ in equal portions for each

arellano C|L|E|A|R 9
 SS – equal to the share of one LC
FP – ¼
One LC concurs with ILC LC – ½ ; ILC – ½ of the share of an LC.

Note: If the FP is not sufficient, ILC shall divide the FP among themselves.
Several LC concur with ILC LC – ½ in equal portions for each ; ILC – ½ of the share of an LC

Note: If the FP is not sufficient, ILC shall divide the FP among themselves.
One LC concur with SS and ILC LC – ½ ; SS – ¼ ; ILC – ½ of the share of an LC

Note: If the FP is not sufficient to cover the legitime of the SS and ILC, the
share of the SS shall have preference over the ILC, whose share may
suffer reduction pro rata.
Several LC concur with SS and LC – ½ in equal portions for each ; SS – ¼ ; ILC – ½ of the share of an LC
ILC
Note: If the FP is not sufficient to cover the legitime of the SS and ILC, the
share of the SS shall have preference over the ILC, whose share may
suffer reduction pro rata.
WHEN SECONDARY CONCURS WITH CONCURRING COMPULSORY HEIRS
LP concur with SS LP – ½ ; SS – ¼ ; FP – ¼
LP concur with ILC LP – ½ ; ILC – ¼ in equal shares
1 1
LP concur with SS and ILC LP – ½ ; SS – /8 ; ILC – ¼ in equal shares ; FP – /8
ILP concur with SS ILP – ¼ ; SS – ¼ ; FP – ½
CONCURRENCE AMONG CONCURRING COMPULSORY HEIRS
1 1 1
SS concurs with ILC SS – /3 ; ILC – /3 in equal shares ; FP – /3
*Surviving Spouse (“SS”); Legitimate Child or descendant/s (“LC”); Illegitimate Child (“ILC”); Legitimate Parent/s or ascendant/s (“LP”);
Illegitimate Parent/s (“ILP”); Free Portion (“FP”)
(Art. 888-901 and 903, Civil Code; Art. 176, Family Code)

OBLIGATIONS AND CONTRACTS

44. What are the three (3) types of mora or delay?

a. Mora Solvendi (debtor‟s default) – a delay in the fulfillment of an obligation, by reason of a cause
imputable to the debtor. (Selegna Management and Development Corp. vs. UCPB, G.R. No. 165662, May 3, 2006)
b. Mora Accipiendi (creditor‟s default) – a delay on the part of the obligee in accepting the
performance of the obligation by the obligor. (Pantaleon vs. American Express International, Inc., G.R. No.
174269, May 8, 2009)
c. Compensatio Morae – default on the part of both parties because neither has completed their
part in their reciprocal obligation. (Cortes vs. CA, G.R. No. 126083, July 12, 2006)

45. What is a fortuitous event?

It refers to an extraordinary occurrence which could not be foreseen, or which, though foreseen, were
inevitable. Its requisites are:

a. The cause of the unforeseen and unexpected occurrence, or of the failure of the debtor to comply
with his obligation, must be independent of the human will;
b. It must be impossible to foresee the event which constitutes the “caso fortuito,” or if it can be
foreseen, it must be impossible to avoid;
c. The occurrence must be such as to render it impossible for the debtor to fulfill his obligation in a
normal manner; and
d. The obligor must be free from any participation in the aggravation of the injury resulting to the
creditor. (Metro Concast Steel vs. Allied Bank Corporation, G.R. No. 177921, December 4, 2013, J. Perlas-Bernabe)

46. Explain the principle of Rebus Sic Stantibus in relation to the Doctrine of Unforeseen Events.

The principle of Rebus Sic Stantibus states that “parties stipulate in the light of certain prevailing
conditions, and once these conditions cease to exist the contract also ceases to exist.” This principle
is said to be the basis of Art. 1267 of the Civil Code, which provides that “when the service has
become so difficult as to be manifestly beyond the contemplation of the parties, the obligor may also
be released therefrom, in whole or in part.” Art. 1267, which enunciates the Doctrine of Unforeseen
Events, is not, however, an absolute application of the said principle, which would endanger the
security of contractual relations. Parties must be presumed to have assumed the risks of unfavorable
developments. (Comglasco Corporation vs. Santos Car Check Corporation, G.R. No. 202989, March 25, 2015)

47. What are the requisites of Legal Compensation?

a. Each one of the obligors be bound principally, and that he be at the same time a principal creditor
of the other;
b. Both debts consist in a sum of money, or if the things due are consumable, they be of the same
kind, and also of the same quality if the latter has been stated;
c. The two debts be due;

arellano C|L|E|A|R 10
 d. They be liquidated and demandable; and
e. Over neither of them there be any retention or controversy, commenced by third persons and
communicated in due time to the debtor. (Union Bank of the Philippines vs. Development Bank of the
Philippines, G.R. No. 191555, January 20, 2014, J. Perlas-Bernabe)

48. May a separate non-drawing savings account for the benefit of the rightful party amount to a
valid judicial consignation?

No. A non-drawing savings account is not the consignation contemplated by law, as it does not place
the same at the disposal of the court. The requisites of novation are: (i) there was a debt due; (ii) valid
prior tender of payment, unless the consignation was made for some legal cause; (iii) previous notice
of the consignation has been given to the persons interested in the performance of the obligation; (iv)
the amount or thing due was placed at the disposal of the court; and (v) after the consignation had
been made, the persons interested were notified thereof. (PNB vs. Chan, G.R. No. 206037, March 13, 2017)

49. Does a manifestation of a desire to answer for the debt of another amount to novation by
substitution of the debtor so as to release the original debtor from his obligation?

No. In novation by substitution of debtor, the former debtor must be expressly released from the
obligation and the new debtor must assume the former‟s place. The fact that the creditor accepts
payments from the new debtor will merely result in the addition of debtors and not novation. Novation
is never presumed, and the animus novandi, whether totally or partially, must appear by express
agreement of the parties, or by their acts that are too clear and unequivocal to be mistaken. (Odiamar
vs. Valencia, G.R. No. 213582, June 28, 2016, J. Perlas-Bernabe)

50. What are the characteristics of contracts?

a. Obligatory Force – Obligations arising from contracts have the force of law between the
contracting parties and should be complied with in good faith. (Art. 1159, Civil Code)
b. Autonomy – The contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy. (Art. 1306, Civil Code)
c. Mutuality – The contract must bind both contracting parties; its validity or compliance cannot be
left to the will of one of them. (Art. 1308, Civil Code)
d. Relativity – provides that contracts can only bind the parties who entered into it, and it cannot
favor or prejudice a third person, even if he is aware of such contract and has acted with
knowledge thereof. (Integrated Packaging Corp. vs. CA, G.R. No. 115117, June 8, 2000)

51. May a compromise agreement be disregarded by an aggrieved party in case of breach without
resorting to an action for rescission?

Yes. If one of the parties fails or refuses to abide by the compromise, the other party may either
enforce the compromise or regard it as rescinded and insist upon his original demand. No action for
rescission is required, and the party aggrieved by the breach of a compromise agreement may, if he
chooses, bring the suit contemplated or involved in his original demand, as if there had never been
any compromise agreement, without bringing an action for rescission. (Sonley vs. Equicom Savings Bank,
G.R. No. 205623, August 10, 2016)

52. What is an Accion Pauliana?

It refers to the rescission of the contracts executed by the debtor in fraud of their rights. It requires:

a. The plaintiff asking for rescission, has credit prior to the alienation, although demandable later;
b. The debtor has made a subsequent contract conveying a patrimonial benefit to a third person;
c. The creditor has no other legal remedy to satisfy his claim, but would benefit by rescission of the
conveyance to the third person;
d. The act being impugned is fraudulent; and
e. The the third person who received the property conveyed, if by onerous title, has been an
accomplice in the fraud. (Anchor Savings Bank vs. Furigay, G.R. No. 191178, March 13, 2013)

53. Kaye is the registered owner of three parcels of land in Cavite. She sold these parcels of land
to Charles through a Deed of Absolute Sale. However, the Deed was signed by Charles and
the witness, Ton, in Makati City, and by Kaye in the USA, but notarized in Cavite. Thus, the
Deed could not be properly registered with the Register of Deeds.

a. Was the contract of sale void due to the improper notarization?

No. The improper notarization did not affect the validity of the sale. The only effect of the
improper notarization was that the Deed was stripped of its public character and reduced it to a
private instrument. (Sps. Aguinaldo v. Torres, G. R. No. 225808, September 11, 2017, J. Perlas Bernabe)

arellano C|L|E|A|R 11
 b. May the court compel the execution of a registrable deed?

Yes. The court may compel the execution of a registrable deed because the sale is valid. The
legal requirement that the sale of real property must appear in a public instrument is merely a
coercive means granted to the contracting parties to enable them to reciprocally compel the
observance of the prescribed form, and considering that the existence of the sale of the
properties the execution of a registrable deed pursuant to Art. 1357 is warranted. (Sps. Aguinaldo v.
Torres, G. R. No. 225808, September 11, 2017, J. Perlas Bernabe)

c. When may a party compel another to observe the form prescribed where the law requires a
document or other special form under Art. 1357 of the Civil Code?

For said remedy to be available, the following must concur: (a) the contract must have been
perfected; (b) the contract must have already been valid as to form; and (c) the contract must be
enforceable under the Statute of Frauds.

54. What contracts are covered by the Statute of Frauds?

a. An agreement that by its terms is not to be performed within a year from the making thereof;
b. A special promise to answer for the debt, default, or miscarriage of another;
c. An agreement made in consideration of marriage, other than a mutual promise to marry;
d. An agreement for the sale of goods, chattels or things in action, at a price not less than P500.00;
e. An agreement for the leasing for a longer period than one year, or for the sale of real property or
of an interest therein;
f. A representation as to the credit of a third person. (Art. 1403[2], Civil Code)

55. Is a promissory note with chattel mortgage covered by Art. 1484 of the Civil Code?

No. A promissory note with chattel mortgage is not a contract of sale of personal property in
installments but a loan contract, hence, it is not covered by Art. 1484 of the Civil Code. There is no
vendor-vendee relationship. (Equitable Bank, vs. Palces, G.R. No. 214752, March 9, 2016, J. Perlas-Bernabe)

56. Does a stipulation stating “as soon as the total amount of the property has been paid and the
Certificate of Title has been issued, an Absolute Deed of Sale shall be executed accordingly”
partake the nature of a conditional contract of sale?

No. Where the seller promises to execute a deed of absolute sale upon the completion by the buyer
of the payment of the purchase price, the contract is only a contract to sell. In contracts to sell, the
obligation of the seller to sell becomes demandable only upon the happening of the suspensive
condition, that is, the full payment of the purchase price by the buyer. (Sps. Roque vs. Aguado, G.R. No.
193787, April 7, 2014, J. Perlas-Bernabe)

57. May contractors recover from project owners additional costs in a fixed-lump sum contract?

Yes. the Civil Code allows contractors to recover from project owners additional costs in fixed-lump
sum contracts, as well as the increase in price for any additional work due to a subsequent change in
the original plans and specifications, provided that there exists: (a) written authority from the
developer or project owner ordering or allowing the written changes in work; and (b) written
agreement of the parties with regard to the increase in price or cost due to the change in work or
design modification. (Church of Jesus Christ of Latter Day Saints vs. BTL Construction, G.R. No. 176439, January 15,
2014, J. Perlas-Bernabe)

58. Due to restrictions imposed by the General Banking Act, limiting real estate ownership,
officers of AJP Bank incorporated JPB Realty, to purchase and hold real properties owned by
said bank in trust, and executed a “warehousing agreement.” However, JPB Realty repudiated
the warehousing agreement, and claimed full title over the properties. The Bank, thus,
instituted actions for reconveyance, contending existence of implied trust, and validity of the
agreement. Is the AJP Bank correct?

No. The agreement is void for being contrary to law. The Bank was well aware of the limitations on its
real estate holdings under the General Banking Act and that its “warehousing agreement” was a mere
scheme to circumvent the limitation. Thus, while the sale and lease of the property is genuine and
binding upon the parties, the implied trust cannot be enforced even assuming the parties intended to
create it. The courts will not assist achieving improper purpose by enforcing a resultant trust in
accordance with the „clean hands‟ doctrine. (Banco Filipino vs. Tala Realty, G.R. No. 158866, September 9, 2013, J.
Perlas-Bernabe)

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 SPECIAL CONTRACTS

59. What are the rules on Double Sale?

a. 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 in good faith, if it should be movable property.
b. Should it be immovable property, the ownership shall belong to the person acquiring it who in
good faith first recorded it in the Registry of Property.
c. Should there be no inscription, the ownership shall pertain to the person who in good faith was
first in possession; and in the absence thereof, to the person who presents the oldest title,
provided there is good faith.

For Article 1544 of the Civil Code to apply, the following must concur:
a. The two sale transactions in issue must pertain to exactly the same subject matter, and must be
valid sales transactions;
b. The two buyers at odds over the rightful ownership of the subject matter must each represent
conflicting interests; and
c. The two buyers at odds over the rightful ownership of the subject matter must each have bought
from the same seller. (Cheng vs. Genato, G.R. No. 129760, December 29, 1998)

60. What are the rights of the parties under the Maceda Law (R.A. No. 6552)?

LESS THAN TWO YEARS AT LEAST TWO YEARS INSTALLMENT

INSTALLMENT
a. The buyer is entitled to a
grace period of 60 days
from the date the
installment became due.
b. If the buyer fails to pay the
installments due at the
expiration of the grace
period, the seller may
cancel the contract after 30
days from receipt by the
buyer of the notice of
cancellation or the demand
of rescission of the contract
by notarial act.
a. The buyer is entitled to a grace period equivalent to one month
for every year of installment payments. This may be exercised
only once in every five years of the life of the contract and its
extensions, if any.
b. After the lapse of the grace period, the seller may cancel the
contract provided that: (i) he pays the buyer the cash surrender
value of the payments on the property equivalent to 50% of the
total payments, after five years of installments, and additional
5% every year but not to exceed 90% of the total payments
made; and (ii) he furnishes the buyer a notice of cancellation or
demand of rescission of the contract by notarial act. The
cancellation of the contract takes effect 30 days after receipt by
the buyer of such notice and upon full payment of the cash
surrender value to the buyer.

Note: Maceda Law applies to contract of sale of real estate on installment payment, including
residential condominium apartments, excluding industrial lot, commercial building and sale to tenants.

61. What are the mandatory requirements for a valid and effective cancellation under the Maceda
Law?

The mandatory requirements are: (a) notarized notice of cancellation; and (b) refund of the cash
surrender value. The actual cancellation of the contract can only be deemed to take place upon the
expiry of a 30-day period following the receipt by the buyer of the notice of cancellation or demand for
rescission by a notarial act and the full payment of the cash surrender value. The absence of a valid
cancellation makes the subject contract valid and subsisting. The buyer has two options: (i) to pay the
unpaid balance of the full value of the purchase price of the subject properties plus interest; or (ii) to
accept the cash surrender value of the subject properties, with interest. (Gatchalian Realty, Inc. vs. Angeles,
G.R. No. 202358, November 27, 2013)

62. What is Tacita Reconduccion (implied new lease)?

The right of the lessee to continue enjoying the material or de facto possession of the thing leased
within a period of time fixed by law. It exists when it is shown that: (a) the term of the original contract
of lease has expired; (b) the lessor has not given the lessee a notice to vacate; and (c) the lessee
continued enjoying the thing leased for 15 days with the acquiescence of the lessor. (Zosima Incorporated
vs. Salimbagat, G.R. No. 174376, September 12, 2012)

63. State the rules on the sale of a piece of land or any interest therein through an agent.

When sale of a piece of land or any interest thereon is through an agent, the authority of the latter
shall be in writing; otherwise, the sale shall be void. A special power of attorney is necessary to enter
into any contract by which the ownership of an immovable is transmitted or acquired either
gratuitously or for a valuable consideration. (Bautista-Spille vs. NICORP, G.R. No. 214057, October 19, 2015)

arellano C|L|E|A|R 13
64. Are Accommodation Mortgagors required to be furnished with loan documents and notice of
the borrower’s default?

No. Accommodation mortgagors are not entitled to the proceeds of the loan, nor required to be
furnished with the loan documents or notice of the borrower‟s default in paying the principal, interests,
penalties, and other charges on due date, or of the extrajudicial foreclosure proceedings, unless
stipulated in the deed. (Sps. Sierra vs. Paic Savings and Mortgage Bank, Inc., G.R. No. 197857, September 10, 2014, J.
Perlas-Bernabe)

65. Distinguish the following Special Contracts.

CONTRACT NATURE SUBJECT TYPE

Deposit One constituted from the moment a person receives a thing Generally, Real;
belonging to another, with the obligation of safely keeping it corporeal Principal
and of returning the same. If the safekeeping of the thing movable contract
delivered is not the principal purpose of the contract, there is property
no deposit but some other contract.
Commodatum One of the parties delivers to another, either something not Generally, Real;
consumable so that the latter may use the same for a certain non- principal
time and return it. consumable contract
thing
Mutuum One of the parties delivers to another, either money or other Money or Real;
consumable thing, upon the condition that the same amount of other accessory
the same kind and quality shall be paid. consumable contract
thing
Pledge One in which the debtor or a third person delivers to the Movable Real;
creditor or to a third person movable property as security for property accessory
the performance of the principal obligation, upon the fulfillment contract
of which the thing pledged, with all its accessions and
accessories, shall be returned to the debtor or to the third
person.
Real Estate One constituted to secure the fulfillment of a principal Real Consensual;
Mortgage obligation by the mortgagor who is the absolute owner of a property accessory
real property, or by a third person pledging his own real contract
property called an accommodation/third-party, who has the
free disposal of his property, or in the absence thereof, when
legally authorized for the purpose.
Chattel Personal property is recorded in the Chattel Mortgage Personal Consensual;
Mortgage Register as a security for the performance of an obligation. If property accessory
the movable, instead of being recorded, is delivered to the contract
creditor or a third person, the contract is a pledge and not a
chattel mortgage.
Antichresis The creditor acquires the right to receive the fruits of an Immovable Consensual;
immovable of his debtor, with the obligation to apply them to property accessory
the payment of the interest, if owing, and thereafter to the contract
principal of his credit.
Guaranty A person, called the guarantor, binds himself to the creditor to A valid Consensual;
fulfill the obligation of the principal debtor in case the latter principal accessory
should fail to do so. obligation contract
Suretyship By a contract of suretyship, a person binds himself solidarily A valid Consensual;
with the principal debtor. principal accessory
obligation contract
(Arts. 1316, 1933, 1934, 1962, 2047, 2085, 2132, 2140, Civil Code)

66. Discuss the following concepts briefly.

a. Forbearance in the concept of the Usury Law. – The term “forbearance,” within the context of
Usury Law, has been described as a contractual obligation of a lender or creditor to refrain,
during a given period of time, from requiring the borrower or debtor to repay the loan or debt then
due and payable. (WT Construction v. Province of Cebu, G. R. No. 208984, September 16, 2015, J. Perlas-Bernabe)

b. Mortgagee in Good Faith. – The doctrine of “mortgagee in good faith” is based on the rule that
all persons dealing with property covered by a Torrens Certificate of Title are not required to go
beyond what appears on the face of the title. This is in deference to the public interest in
upholding the indefeasibility of a certificate of title as evidence of lawful ownership of the land or
of any encumbrance thereon. In the case of banks and other financial institutions, however,
greater care and due diligence are required since they are imbued with public interest, failing
which renders the mortgagees in bad faith. (Philippine Banking Corporation v. Dy, G.R. No. 183774, November
14, 2012, J. Perlas-Bernabe)

c. Contract of adhesion. – A contract of adhesion is one wherein one party imposes a ready-made
form of contract on the other. It is a contract whereby almost all of its provisions are drafted by

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 one party, with the participation of the other party being limited to affixing his or her signature or
“adhesion” to the contract. Contracts of adhesion are not invalid per se as they are binding as
ordinary contracts. (Encarnaccion v. Phoenix Ready, G. R. No. 225402, September 04, 2017, J. Perlas Bernabe)

d. Accommodation Mortgagor. – A third person who is not a debtor to a principal obligation but
merely secures it by mortgaging his or her own property. Like an accommodation party to a
negotiable instrument, the accommodation mortgagor in effect becomes a surety to enable the
accommodated debtor to obtain credit. (Sps. Sierra vs. Paic Savings and Mortgage Bank, Inc., G.R. No.
197857, September 10, 2014, J. Perlas-Bernabe)

e. Pactum Commissorium. – Prohibits the creditor from appropriating the things given by way of
pledge or mortgage, or from disposing of them; any stipulation to the contrary is null and void. It
exists when (i) there is a pledge or mortgage wherein property is pledged or mortgaged by way of
security for the payment of the principal obligation; and (ii) there is a stipulation for an automatic
appropriation by the creditor of the thing pledged or mortgaged in the event of non-payment of the
principal obligation within the stipulated period. (Sps. Pen vs. Sps. Julian, G.R. No. 160408, January 11, 2016)

67. What are the two (2) types of interest?

MONETARY INTEREST COMPENSATORY INTEREST

Compensation fixed by the parties for the Imposed by law or by the courts as penalty or indemnity
use or forbearance of money. Right to for damages. Right to recover arises by virtue of
recover arises by virtue of a contract. damages for the delay or failure to pay the principal loan
on which the interest is demanded.
(Odiamar vs. Valencia, G.R. No. 213582, June 28, 2016, J. Perlas-Bernabe)

68. Distinguish Option Contract from Right of First Refusal.

OPTION CONTRACT RIGHT OF FIRST REFUSAL

A preparatory contract in which one party
grants to another, for a fixed period and at
a determined price, the privilege to buy or
sell, or to decide whether or not to enter
into a principal contract. It binds the party
who has given the option not to enter into
the principal contract with any other person
during the period designated, and within
that period, to enter into such contract with
the one to whom the option was granted, if
the latter should decide to use the option. It
must be supported by consideration.
While the object might be made determinate, the
exercise of the right 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 are yet to be firmed up. The
right of first refusal is often incorporated in lease
contracts. When a lease contract contains a right of
first refusal, the lessor is under a legal duty to the
lessee not to sell to anybody at any price until after he
has made an offer to sell to the latter at a certain price
and the lessee has failed to accept it. The lessee has
a right that the lessor's first offer shall be in his favor.
(Osmeña vs. PSALM, G.R. No. 212686, September 28, 2015)

TORTS AND DAMAGES

69. Distinguish Common Carrier from Private Carrier.

COMMON CARRIER PRIVATE CARRIER

A person, corporation, firm or association
engaged in the business of carrying or
transporting passengers or goods or both,
by land, water, or air, for compensation,
offering such services to the public.
Required to exercise extraordinary
diligence in transporting goods, or
passengers, or both.
Common carriers are bound by the
provisions of the Civil Code, Public
Service Act and other special laws
relating to transportation.
One who, without making the activity a vocation, or
without holding himself or itself out to the public as
ready to act for all who may desire his or its services,
undertakes, by special agreement in a particular
instance only, to transport goods or persons from
one place to another either gratuitously or for hire
Only required to exercise ordinary diligence.
The provisions on ordinary contracts of the Civil
Code govern the contract of private carriage. (Spouses
Perena vs. Spouses Zarate, G.R. No. 157917, August 29, 2012)

70. Define the following terms in Torts and Damages

a. Res Ipsa Loquitur. – It literally means “the thing or the transaction speaks for itself.” It is a
maxim for the rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference or raise a presumption of negligence, or make out a
plaintiff's prima facie case, and present a question of fact for defendant to meet with an
explanation. (Tan vs. Jam Transit, Inc., G.R. No. 183198, November 25, 2009)

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 b. Doctrine of Last Clear Chance or Supervening Negligence. – It provides that the antecedent
negligence of a person does not preclude recovery of damages caused by the supervening
negligence of the latter, who had the last fair chance to prevent the impending harm by the
exercise of due diligence. (Philippine National Railways vs. Vizcara, G.R. No. 190022, February 15, 2012)

c. Damnum Absque Injuria. – Sustains actual damage to his person or property, without sustaining
any legal injury. (The City of Bacolod vs. Phuture Visions Co., Inc., G.R. No. 190289, January 17, 2018)

d. Principle of Abuse of Rights. – A person must, in the exercise of legal right or duty, act in good
faith. He would be liable if he instead acted in bad faith, with intent to prejudice another. (California
Clothing, Inc. vs. Quiñones, G.R. No. 175822, October 23, 2013)

e. Acts Contra Bonos Mores. – Any person who wilfully causes loss or injury to another in manner
that is contrary to morals, good customs or public policy shall compensate the latter for the
damage. (Art. 21, Civil Code)

f. Proximate Cause. – It is that cause, which, in natural and continuous sequence, unbroken by
any efficient intervening cause, produces the injury, and without which the result would not have
occurred. (BPI vs. Sps. Quiaoit, G.R. No. 199562, January 16, 2019, J. Perlas-Bernabe)

g. Doctrine of Contributory Negligence. – Contributory negligence is conduct on the part of the

injured party, contributing as a legal cause to the harm he has suffered, which falls below the
standard which he is required to conform for his own protection. (Dela Cruz vs. Viano, G.R. No. 219649,
July 26, 2017)

h. Doctrine of Respondeat Superior. – The liability is strictly imputed, that is the employer is liable
not because of his act or omission but because of the act or omission of the employee. What is
material is not whether the employer exercised due care but the conduct of the employee.
Consequently, the employer cannot escape liability by claiming that he exercised due diligence in
the selection or supervision of the employee. (Aquino, T., Torts and Damages 2019 Edition)

i. Emergency Rule. – An individual who suddenly finds himself in a situation of danger and is
required to act without much time to consider the best means that may be adopted to avoid the
impending danger is not guilty of negligence if he fails to undertake what subsequently and upon
reflection may appear to be a better solution, unless the emergency was brought by his own
negligence. (Makati Auto Line Transport Corporation v. People, G.R. No. 152040, March 31, 2006)

71. Discuss the liabilities of drivers and operators in breach of contract, quasi-delict and delict.

BREACH OF CONTRACT QUASI-DELICT DELICT

OF CARRIAGE
Liability a. The operator may be liable a. The driver is liable under The driver is directly and
for breach of contract of Art. 2176 of the Civil primarily liable, while the
carriage. Code which provides that operator is subsidiarily liable.
b. The driver not being a party whoever by act or
to the contract of carriage omission causes damage Before the operator‟s subsidiary
between the operator and to another, there being liability is enforced, the following
the passenger, may not be fault or negligence, is must be established:
held liable under the obliged to pay for the a. They are indeed the
contract. damage done. employers of the convicted
b. The operator is employees;
vicariously liable under b. They are engaged in some
Art. 2180 of the Civil kind of industry;
Code which provides that c. The crime was committed
employers shall be liable by the employees in the
for the damages caused discharge of their duties;
by their employees acting and
within the scope of their d. The execution against the
assigned tasks. latter has not been satisfied
due to insolvency.
Defenses Exercise of Extraordinary The only defense available
Diligence. to the driver is the absence
of fault or negligence. The
operator may prove that it
observed all the Diligence of
a Good Father of a Family in
the selection and
supervision of its
employees.
(Arts. 1755 and 1759, Civil Code; Art. 103, RPC; FGU Insurance Corporation vs. G.P. Sarmiento Trucking Corporation, G.R.
No. 141910, August 6, 2002; Calang vs. People, G.R. No. 190696, August 3, 2010, Rabuya, supra.)

HAIL TO THE CHIEFS!

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