SECOND DIVISION

[G.R. No. 155043. September 30, 2004.]

ARTURO R. ABALOS,  petitioner, vs. DR. GALICANO

S.  MACATANGAY, JR.,  respondent.

DECISION

TINGA,  J  :
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The instant petition seeks a reversal of the Decision of the Court of

Appeals in CA-G.R. CV No. 48355 entitled "Dr.  Galicano S.  Macatangay,
Jr.  v.  Arturo R.  Abalos  and Esther Palisoc-Abalos," promulgated on March 14,
2002. The appellate court reversed the trial court's decision which dismissed the
action for specific performance filed by respondent, and ordered petitioner and
his wife to execute in favor of herein respondent a deed of sale over the subject
property.
Spouses Arturo and Esther Abalos are the registered owners of a
parcel of land with improvements located at Azucena St., Makati City
consisting of about three hundred twenty-seven (327) square meters,
covered by Transfer Certificate of Title (TCT) No. 145316 of the Registry of
Deeds of Makati.
Armed with a Special Power of Attorney dated June 2, 1988,
purportedly issued by his wife, Arturo executed a Receipt and Memorandum
of Agreement (RMOA) dated October 17, 1989, in favor of respondent, binding
himself to sell to respondent the subject property and not to offer the same
to any other party within thirty (30) days from date. Arturo acknowledged
receipt of a check from respondent in the amount of Five Thousand Pesos
(P5,000.00), representing earnest money for the subject property, the
amount of which would be deducted from the purchase price of One Million
Three Hundred Three Hundred Thousand Pesos (P1,300,000.00). Further, the
RMOA stated that full payment would be effected as soon as possession of
the property shall have been turned over to respondent.
Subsequently, Arturo's wife, Esther, executed a Special Power of
Attorney dated October 25, 1989, appointing her sister, Bernadette Ramos,
to act for and in her behalf relative to the transfer of the property to
respondent. Ostensibly, a marital squabble was brewing between Arturo and
Esther at the time and to protect his interest, respondent caused the
annotation of his adverse claim on the title of the spouses to the property on
November 14, 1989.
On November 16, 1989, respondent sent a letter to Arturo and Esther
informing them of his readiness and willingness to pay the full amount of the
purchase price. The letter contained a demand upon the spouses to comply
with their obligation to turn over possession of the property to him. On the
same date, Esther, through her attorney-in-fact, executed in favor of
respondent, a Contract to Sell the property to the extent of her conjugal
interest therein for the sum of six hundred fifty thousand pesos
(P650,000.00) less the sum already received by her and Arturo. Esther agreed
to surrender possession of the property to respondent within twenty (20)
days from November 16, 1989, while the latter promised to pay the balance
of the purchase price in the amount of one million two hundred ninety
thousand pesos (P1,290,000.00) after being placed in possession of the
property. Esther also obligated herself to execute and deliver to respondent
a deed of absolute sale upon full payment.
In a letter dated December 7, 1989, respondent informed the spouses
that he had set aside the amount of One Million Two Hundred Ninety
Thousand Pesos (P1,290,000.00) as evidenced by Citibank Check No. 278107
as full payment of the purchase price. He reiterated his demand upon them
to comply with their obligation to turn over possession of the property.
Arturo and Esther failed to deliver the property which prompted respondent
to cause the annotation of another adverse claim on TCT No. 145316. On
January 12, 1990, respondent filed a complaint for specific performance with
damages against petitioners. Arturo filed his answer to the complaint while
his wife was declared in default.
 The Regional Trial Court (RTC) dismissed the complaint for specific
performance. It ruled that the Special Power of Attorney (SPA) ostensibly
issued by Esther in favor of Arturo was void as it was falsified. Hence, the
court concluded that the SPA could not have authorized Arturo to sell the
property to respondent. The trial court also noted that the check issued by
respondent to cover the earnest money was dishonored due to insufficiency
of funds and while it was replaced with another check by respondent, there
is no showing that the second check was issued as payment for the earnest
money on the property.
On appeal taken by respondent, the Court of Appeals reversed the
decision of the trial court. It ruled that the SPA in favor of Arturo, assuming
that it was void, cannot affect the transaction between Esther and
respondent. The appellate court ratiocinated that it was by virtue of the SPA
executed by Esther, in favor of her sister, that the sale of the property to
respondent was effected. On the other hand, the appellate court considered
the RMOA executed by Arturo in favor of respondent valid to effect the sale
of Arturo's conjugal share in the property.
Dissatisfied with the appellate court's disposition of the case, petitioner
seeks a reversal of its decision alleging that:
I.
The Court of Appeals committed serious and manifest error
when it decided on the appeal without affording petitioner his right
to due process.
II.
The Court of Appeals committed serious and manifest error in
reversing and setting aside the findings of fact by the trial court.
III.
The Court of Appeals erred in ruling that a contract to sell is a
contract of sale, and in ordering petitioner to execute a registrable
form of deed of sale over the property in favor of respondent. 1

Petitioner contends that he was not personally served with copies of

summons, pleadings, and processes in the appeal proceedings nor was he
given an opportunity to submit an appellee's brief. He alleges that his
counsel was in the United States from 1994 to June 2000, and he never
received any news or communication from him after the proceedings in the
trial court were terminated. Petitioner submits that he was denied due
process because he was not informed of the appeal proceedings, nor given
the chance to have legal representation before the appellate court.
We are not convinced. The essence of due process is an opportunity to
be heard. Petitioner's failure to participate in the appeal proceedings is not
due to a cause imputable to the appellate court but because of petitioner's
own neglect in ascertaining the status of his case. Petitioner's counsel is
equally negligent in failing to inform his client about the recent
developments in the appeal proceedings. Settled is the rule that a party is
bound by the conduct, negligence and mistakes of his counsel. 2 Thus,
petitioner's plea of denial of due process is downright baseless.
Petitioner also blames the appellate court for setting aside the factual
findings of the trial court and argues that factual findings of the trial court
are given much weight and respect when supported by substantial evidence.
He asserts that the sale between him and respondent is void for lack of
consent because the SPA purportedly executed by his wife Esther is a forgery
and therefore, he could not have validly sold the subject property to
respondent.
Next, petitioner theorizes that the RMOA he executed in favor of
respondent was not perfected because the check representing the earnest
money was dishonored. He adds that there is no evidence on record that the
second check issued by respondent was intended to replace the first check
representing payment of earnest money.
Respondent admits that the subject property is co-owned by petitioner
and his wife, but he objects to the allegations in the petition bearing a
relation to the supposed date of the marriage of the vendors. He contends
that the alleged date of marriage between petitioner and his wife is a new
factual issue which was not raised nor established in the court a quo.
Respondent claims that there is no basis to annul the sale freely and
voluntarily entered into by the husband and the wife.
The focal issue in the instant petition is whether petitioner may be
compelled to convey the property to respondent under the terms of the
RMOA and the Contract to Sell. At bottom, the resolution of the issue entails
the ascertainment of the contractual nature of the two documents and the
status of the contracts contained therein.
Contracts, in general, require the presence of three essential elements:
(1) consent of the contracting parties; (2) object certain which is the subject
matter of the contract; and (3) cause of the obligation which is established. 3
Until the contract is perfected, it cannot, as an independent source of
obligation, serve as a binding juridical relation. 4 In a contract of sale, the
seller must consent to transfer ownership in exchange for the price, the
subject matter must be determinate, and the price must be certain in money
or its equivalent. 5 Being essentially consensual, a contract of sale is
perfected at the moment there is a meeting of the minds upon the thing
which is the object of the contract and upon the price. 6 However, ownership
of the thing sold shall not be transferred to the vendee until actual or
constructive delivery of the property. 7
On the other hand, an accepted unilateral promise which specifies the
thing to be sold and the price to be paid, when coupled with a valuable
consideration distinct and separate from the price, is what may properly be
termed a perfected contract of option. 8 An option merely grants a privilege
to buy or sell within an agreed time and at a determined price. It is separate
and distinct from that which the parties may enter into upon the
consummation of the option. 9 A perfected contract of option does not result
in the perfection or consummation of the sale; only when the option is
exercised may a sale be perfected. 10 The option must, however, be
supported by a consideration distinct from the price. 11
 
Perusing the RMOA, it signifies a unilateral offer of Arturo to sell the
property to respondent for a price certain within a period of thirty days. The
RMOA does not impose upon respondent an obligation to buy petitioner's
property, as in fact it does not even bear his signature thereon. It is quite
clear that after the lapse of the thirty-day period, without respondent having
exercised his option, Arturo is free to sell the property to another. This shows
that the intent of Arturo is merely to grant respondent the privilege to buy
the property within the period therein stated. There is nothing in the RMOA
which indicates that Arturo agreed therein to transfer ownership of the land
which is an essential element in a contract of sale. Unfortunately, the option
is not binding upon the promissory since it is not supported by a
consideration distinct from the price. 12
As a rule, the holder of the option, after accepting the promise and
before he exercises his option, is not bound to buy. He is free either to buy or
not to buy later. In Sanchez  v. Rigos 13 we ruled that in an accepted unilateral
promise to sell, the promissor is not bound by his promise and may,
accordingly, withdraw it, since there may be no valid contract without a cause
or consideration. Pending notice of its withdrawal, his accepted promise
partakes of the nature of an offer to sell which, if acceded or consented to,
results in a perfected contract of sale.
Even conceding for the nonce that respondent had accepted the offer
within the period stated and, as a consequence, a bilateral contract of
purchase and sale was perfected, the outcome would be the same. To
benefit from such situation, respondent would have to pay or at least make a
valid tender of payment of the price for only then could he exact compliance
with the undertaking of the other party. 14 This respondent failed to do. By
his own admission, he merely informed respondent spouses of his readiness
and willingness to pay. The fact that he had set aside a check in the amount
of One Million Two Hundred Ninety Thousand Pesos (P1,290,000.00)
representing the balance of the purchase price could not help his cause.
Settled is the rule that tender of payment must be made in legal tender. A
check is not legal tender, and therefore cannot constitute a valid tender of
payment. 15 Not having made a valid tender of payment, respondent's action
for specific performance must fail.
With regard to the payment of Five Thousand Pesos (P5,000.00), the
Court is of the view that the amount is not earnest money as the term is
understood in Article 1482 which signifies proof of the perfection of the
contract of sale, but merely a guarantee that respondent is really interested
to buy the property. It is not the giving of earnest money, but the proof of the
concurrence of all the essential elements of the contract of sale which
establishes the existence of a perfected sale. 16 No reservation of ownership
on the part of Arturo is necessary since, as previously stated, he has never
agreed to transfer ownership of the property to respondent.
 Granting for the sake of argument that the RMOA is a contract of sale,
the same would still be void not only for want of consideration and absence
of respondent's signature thereon, but also for lack of Esther's conformity
thereto. Quite glaring is the absence of the signature of Esther in the RMOA,
which proves that she did not give her consent to the transaction initiated by
Arturo. The husband cannot alienate any real property of the conjugal
partnership without the wife's consent. 17
However, it was the Contract to Sell executed by Esther through her
attorney-in-fact which the Court of Appeals made full use of. Holding that the
contract is valid, the appellate court explained that while Esther did not
authorize Arturo to sell the property, her execution of the SPA authorizing
her sister to sell the land to respondent clearly shows her intention to convey
her interest in favor of respondent. In effect, the court declared that the lack
of Esther's consent to the sale made by Arturo was cured by her subsequent
conveyance of her interest in the property through her attorney-in-fact.
We do not share the ruling.
The nullity of the RMOA as a contract of sale emanates not only from
lack of Esther's consent thereto but also from want of consideration and
absence of respondent's signature thereon. Such nullity cannot be
obliterated by Esther's subsequent confirmation of the putative transaction
as expressed in the Contract to Sell. Under the law, a void contract cannot be
ratified 18 and the action or defense for the declaration of the inexistence of a
contract does not prescribe. 19 A void contract produces no effect either
against or in favor of anyone — it cannot create, modify or extinguish the
juridical relation to which it refers. 20
True, in the Contract to Sell, Esther made reference to the earlier
RMOA executed by Arturo in favor of respondent. However, the RMOA which
Arturo signed is different from the deed which Esther executed through her
attorney-in-fact. For one, the first is sought to be enforced as a contract of
sale while the second is purportedly a contract to sell only. For another, the
terms and conditions as to the issuance of title and delivery of possession
are divergent.
The congruence of the wills of the spouses is essential to the valid
disposition of conjugal property. Where the conveyance is contained in the
same document which bears the conformity of both husband and wife, there
could be no question on the validity of the transaction. But when there are
two documents on which the signatures of the spouses separately appear,
textual concordance of the documents is indispensable. Hence, in this case
where the wife's putative consent to the sale of conjugal property appears in
a separate document which does not, however, contain the same terms and
conditions as in the first document signed by the husband, a valid
transaction could not have arisen.
Quite a bit of elucidation on the conjugal partnership of gains is in
order.
Arturo and Esther appear to have been married before the effectivity
of the Family Code. There being no indication that they have adopted a
different property regime, their property relations would automatically be
governed by the regime of conjugal partnership of gains. 21 The subject land
which had been admittedly acquired during the marriage of the spouses
forms part of their conjugal partnership. 22
Under the Civil Code, the husband is the administrator of the conjugal
partnership. This right is clearly granted to him by law. 23 More, the husband
is the sole administrator. The wife is not entitled as of right to joint
administration. 24
The husband, even if he is statutorily designated as administrator of
the conjugal partnership, cannot validly alienate or encumber any real
property of the conjugal partnership without the wife's consent. 25 Similarly,
the wife cannot dispose of any property belonging to the conjugal
partnership without the conformity of the husband. The law is explicit that
the wife cannot bind the conjugal partnership without the husband's
consent, except in cases provided by law. 26
More significantly, it has been held that prior to the liquidation of the
conjugal partnership, the interest of each spouse in the conjugal assets is
inchoate, a mere expectancy, which constitutes neither a legal nor an
equitable estate, and does not ripen into title until it appears that there are
assets in the community as a result of the liquidation and settlement. The
interest of each spouse is limited to the net remainder or "remanente liquido"
(haber ganancial) resulting from the liquidation of the affairs of the
partnership after its dissolution. 27 Thus, the right of the husband or wife to
one-half of the conjugal assets does not vest until the dissolution and
liquidation of the conjugal partnership, or after dissolution of the marriage,
when it is finally determined that, after settlement of conjugal obligations,
there are net assets left which can be divided between the spouses or their
respective heirs. 28
In not a few cases, we ruled that the sale by the husband of property
belonging to the conjugal partnership without the consent of the wife when
there is no showing that the latter is incapacitated is void ab initio because it
is in contravention of the mandatory requirements of Article 166 of the Civil
Code.29 Since Article 166 of the Civil Code requires the consent of the wife
before the husband may alienate or encumber any real property of the
conjugal partnership, it follows that acts or transactions executed against this
mandatory provision are void except when the law itself authorizes their
validity. 30
Quite recently, in San Juan Structural and Steel Fabricators, Inc.  v. Court
of Appeals, 31 we ruled that neither spouse could alienate in favor of another,
his or her interest in the partnership or in any property belonging to it, or ask
for partition of the properties before the partnership itself had been legally
dissolved. Nonetheless, alienation of the share of each spouse in the
conjugal partnership could be had after separation of property of the
spouses during the marriage had been judicially decreed, upon their petition
for any of the causes specified in Article 191 32 of the Civil Code in relation
to Article 214 33 thereof.
As an exception, the husband may dispose of conjugal property
without the wife's consent if such sale is necessary to answer for conjugal
liabilities mentioned in Articles 161 and 162 of the Civil Code.34 In Tinitigan  v.
Tinitigan, Sr., 35 the Court ruled that the husband may sell property belonging
to the conjugal partnership even without the consent of the wife if the sale is
necessary to answer for a big conjugal liability which might endanger the
family's economic standing. This is one instance where the wife's consent is
not required and, impliedly, no judicial intervention is necessary.
 
 Significantly, the Family Code has introduced some changes
particularly on the aspect of the administration of the conjugal partnership.
The new law provides that the administration of the conjugal partnership is
now a joint undertaking of the husband and the wife. In the event that one
spouse is incapacitated or otherwise unable to participate in the
administration of the conjugal partnership, the other spouse may assume
sole powers of administration. However, the power of administration does
not include the power to dispose or encumber property belonging to the
conjugal partnership. 36 In all instances, the present law specifically requires
the written consent of the other spouse, or authority of the court for the
disposition or encumbrance of conjugal partnership property without which,
the disposition or encumbrance shall be void. 37
Inescapably, herein petitioner's action for specific performance must
fail. Even on the supposition that the parties only disposed of their respective
shares in the property, the sale, assuming that it exists, is still void for as
previously stated, the right of the husband or the wife to one-half of the
conjugal assets does not vest until the liquidation of the conjugal
partnership. Nemo dat qui non habet. No one can give what he has not.
WHEREFORE, the appealed Decision  is hereby REVERSED and SET
ASIDE. The complaint in Civil Case No. 90-106 of the Regional Trial Court of
Makati is ordered DISMISSED. No pronouncement as to costs.
SO ORDERED.
Puno, Austria-Martinez and Callejo, Sr., JJ  ., concur.
Chico-Nazario, J  ., is on leave.

 
Footnotes

1.Rollo, pp. 21–22.

2.Heirs of Elias Lorilla  v. Court of Appeals, 368 Phil. 638 (2000).
3.Art. 1318, Civil Code of the Philippines; Santos  v. Heirs of Jose Mariano and Erlinda
Mariano-Villanueva, G.R. No. 143325, October 24, 2000, 344 SCRA 284.
4.Ang Yu  v. Asuncion, G.R. No. 109125, December 2, 1994, 238 SCRA 602.
5.Heirs of Juan San Andres  v. Rodriguez, 388 Phil. 571 (2000).
6.Laforteza  v. Machuca, 389 Phil. 167 (2000).
7.Heirs of Quirico Seraspi and Purificacion Seraspi  v. Court of Appeals, 387 Phil. 306
(2000).
8.Ang Yu  v. Asuncion, Supra note 4.
9.Equatorial Realty Development, Inc.  v. Mayfair Theater, Inc., 332 Phil. 525 (1996).
10.Cavite Development Bank  v. Lim, 381 Phil. 355 (2000).
11.De la Cavada  v. Diaz, 37 Phil. 982 (1918), Beaumont  v. Prieto, 41 Phil. 670 (1916).
12.Atkins, Kroll and Co., Inc.  v. Cua Hian Tek, 102 Phil. 948.
13.150-A Phil. 714 (1972).
14.Article 1191, Civil Code.
15.Cebu International Finance Corporation  v. Court of Appeals, 374 Phil. 844; Far East
Bank & Trust Company  v. Diaz Realty, Inc., G.R. No. 38588, August 23, 2001,
363 SCRA 659.
16.San Miguel Properties Philippines, Inc.  v. Huang, 391 Phil. 636 (2000).
17.Article 166, Civil Code.
18.Article 1409, Civil Code.
19.Article 1410, Civil Code; Santos  v. Santos, G.R. No. 133895, October 2, 2001, 366
SCRA 395.
20.Gochan  v. Young, G.R. No. 131889, March 12, 2001, 354 SCRA 207.
21.Art. 119, Civil Code.
22.Art. 160, Civil Code.
23.Art. 165, Civil Code.
24.Ysasi  v. Hon. Fernandez, et al., 132 Phil. 526 (1968).
25.Art. 166, Civil Code.
26.Art. 172, Civil Code.
27.Nable Jose  v. Nable Jose, 41 Phil. 713 (1916); Manuel  v. Losano, 41 Phil. 855
(1918).
28.Quintos de Ansaldo  v. Sheriff of Manila, 64 Phil. 115 (1937).
29.Nicolas  v. Court of Appeals, No. L-37631, October 12, 1987, 154 SCRA
635; Garcia  v. Court of Appeals, 215 Phil. 380 (1984); Tolentino  v. Cardena,
123 Phil. 517 (1966).
30.Art. 5, Civil Code.
31.357 Phil 631 (1998).
32.Art. 191. The husband or the wife may ask for the separation of property, and
it shall be decreed when the spouse of the petitioner has been sentenced
to a penalty which carries with it civil interdiction, or has been declared
absent, or when legal separation has been granted.
  In case of abuse of powers of administration of the conjugal partnership
property by the husband, or in case of abandonment by the husband,
separation of property may also be ordered by the court, according to the
provisions of Articles 167 and 178, No. 3.
  In all these cases, it is sufficient to present the final judgment which has been
entered against the guilty or absent spouse.
  The husband and the wife may agree upon the dissolution of the conjugal
partnership during the marriage, subject to judicial approval. All the
creditors of the husband and of the wife, as well as of the conjugal
partnership, shall be notified of any petition for judicial approval of the
voluntary dissolution of the conjugal partnership, so that any such creditors
may appear at the hearing to safeguard his interests. Upon approval of the
petition for dissolution of the conjugal partnership, the court shall take
such measures as may protect the creditors and other third persons.
  After dissolution of the conjugal partnership, the provisions of Articles 214 and
215 shall apply. The provisions of this Code concerning the effect of
partition stated in Articles 498 to 501 shall be applicable.
33.Art. 214. Each spouse shall own, dispose of, possess, administer and enjoy his
or her own separate estate, without the consent of the other. All earnings
from any profession, business or industry shall likewise belong to each
spouse.
34.Art. 161. The conjugal partnership shall be liable for:
  (1) All debts and obligations contracted by the husband for the benefit of the
conjugal partnership, and those contracted by the wife, also for the same
purpose, in the cases where she may legally bind the partnership;
   (2) Arrears or income due, during the marriage, from obligations which
constitute a charge upon property of either spouse or of the partnership;
  (3) Minor repairs or for mere preservation made during the marriage upon the
separate property of either the husband or the wife; major repairs shall not
be charged to the partnership;
  (4) Major or minor repairs upon the conjugal partnership property;
  (5) The maintenance of the family and the education of the children of both
husband and wife, and of legitimate children of one of the spouses;
  (6) Expenses to permit the spouses to complete a professional, vocational or
other course.
  Art. 162. The value of what is donated or promised to the common children by
the husband, only for securing their future or the finishing of a career, or by
both spouses through a common agreement shall also be charged to the
conjugal partnership, when they have not stipulated that it is to be satisfied
from the property of one of them, in whole or in part.
35.No. L-45418, October 30, 1980, 100 SCRA 619.
36.Art. 124, Family Code of the Philippines.
37.Ibid.
 

  (Abalos v. Macatangay, Jr., G.R. No. 155043, [September 30, 2004], 482 PHIL
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877-894)