BAR OPERATIONS COMMISSIONS

KARIZ ELIZABETH TEH

Chairman

Honey Joy Belen Vice-Chair for Academics, Kathleen Trine De Lara Vice-Chair for
Administration, Jhoanna Paula Bitor Operations Officer, Michael Angelo Tamayo Secretary,
Rhian Lee Tiangco Treasurer, Shianne Camille Dionisio Auditor, Gillian Albay Public
Relations Officers, Mikyla Cordero Volunteer Core Head, Ayla Monica Cristobal Creative
Director

Charlotte Grace Castillo

Charles Bautista Secretary, John Paul Nanit Treasurer
Van Regine Perlas Auditor Commissioner

Arjan Jay Arsol Arcilla

Deputy Commissioner

Lanie Grace Lim, Jerric Capistrano,

Nikki Manuel Coronel, Sharmaine Escover,
Kevin Albert Aboy, Melissa Ezra Sayao,
Jovan Jeff Alvaro, ShalihaCalaca
Subject Heads

Richcelyn Marquez, Christine Joy David,

Diane Kriza Wan Mae Alagos,
Jobeluz Igdanes, Waddia Mae Junio
Mary Crischael Boaquina,Norjanizah Calaca
Maria Westphalia Gozon, Dyanara Lazo,
Simeon Tutaan Jr., Antoniette Pulutan,
Mohammad Dimaampao, Angelica Cabrega,
Justin Jeremy Edrei Descartin,
Peter Janssen Manalo, Beanca Diloy
Members

ACKNOWLEDGMENT
Justice Antonio E.B. Nachura, Retired
Dean Domingo M. Navarro
Asst. Dean Erik C. Lazo
Atty. Gabriel P. Dela Peña
Atty. Prime Ramos
Atty. Calai Fabie
Atty. Cris Tenorio

O
Atty. Victor Carlo Antonio V. Cayco

center Atty. Roderick M. Villostas

for Director

legal Atty. Antony J. Parreño, Atty. Lester Ople

CLEAR education
Research Fellows

and Brando de Torres, Maricar Asuncion, Jayson Galapon

Edmond Jones Gastanes
Research Staff Charmagne Cuevas
research Wendel Dinglasan
Camille Bianca Pinto
Frances Catherine Anenias
 Table of Contents

I. IN GENERAL.................................................................................................. 1
A. When law takes effect..……………………………………………………………………………… 1
B. Retroactivity of laws..………………………………………………………………………………… 2
C. Mandatory or prohibitory laws……..............................………………………………….. 2
D. Waiver of rights …………….....……………………………………………………………………… 3
E. Repeal of laws ………......……………………………………………………………………………. 5
F. Conflict of laws………......……………………………………………………………………………. 6
G. Human relations ………………………………………………………………………………………. 9
H. Applicability of penal laws ……………..………………………………………………………….. 11

II. PERSONS AND FAMILY RELATIONS.............................................................. 12

A. Persons …………………………….……………………………………………………………………… 12
B. Rights And Obligations Of Couples In Intimate Relationships (Rep. Act No. 16
9262) ……………………………………………………………………………………………………………
C. Marriage……………………………………………………………………………………………..……. 17
D. Legal Separation……………..………………………………………………………………………… 36
E. Rights And Obligations Between Husband And Wife ……….……………………………. 41
F. Property Relations Of The Spouses................................................................. 44
G. The family..................................................................................................... 60
H. Paternity And Filiation..................................................................................... 62
I. Adoption........................................................................................................ 68
J. Support.......................................................................................................... 73
K. Parental Authority.......................................................................................... 76
L. Emancipation................................................................................................. 79
M. Summary Judicial Proceedings In The Family Code........................................... 79
N. Use of surnames............................................................................................ 80
O. Absence........................................................................................................ 83
P. Civil Registrar................................................................................................. 85

III. PROPERTY..................................................................................................... 87
A. Classification Of Property…………….……………………………………….…………………….. 87

B. Ownership ………………………………..………………………………………….………………….. 93
C. Accession………………………………………….…………………….………………………………… 97
D. Quieting Of Title …………………………………………….………………………………………… 104
 E. Co-OWNERSHIP……………..…………………………………………………………………………. 105
F. Possession………………………………………………………………………………….…………….. 112
G. Usufruct ……………………………………………….……………………….………………………..… 117
H. Easements.................................................................................................... 121
I. Nuisance....................................................................................................... 131
J. Modes Of Acquiring Ownership......................................................................... 135
141
IV. PRESCRIPTION............................................................................................. 141
A. Types Of Prescription .................................................................................... 144
B. When Prescription Is Inapplicable ……………………………………………………………… 145
C. Prescription Or Limitation Of Actions................................................................ 145
D. Interruption................................................................................................... 145

V. SUCCESSION................................................................................................. 145
A. General Provisions......................................................................................... 145
B. Testamentary Succession ………………………………………………………………………..… 147
C. Legal Or Intestate Succession……………………………………………………………………… 184
D. Provisions Common To Testate And Intestate Succession ……………………………… 191

VI. OBLIGATIONS............................................................................................... 198

A. General Provisions…………………………………………………………………..………………….. 198
B. Nature And Effect Of Obligations …………………………………….…………………………… 205
C. Kinds Of Obligations …………………………………………………………………………………… 214
D. Extinguishment Of Obligations…………………………………………………………………….. 231

VII. CONTRACTS.................................................................................................. 252

A. General Provisions ………………………………………………………..……………………………. 252
B. Formality ……………………………………………………………………………………….………….. 264
C. Reformation Of Instruments
268
………………………………………………………………………………………………..…………………….
D. Interpretation Of Contracts
269
…………………………………………………………………………………………………………..………….
E. Defective Contracts........................................................................................ 271

VIII. Natural Obligations....................................................................................... 285

IX. Estoppel........................................................................................................ 287

X. Special Contracts.......................................................................................... 289

 A. Sales ………………………………………………………………………………………………………. 289
B. Trusts..……………………………………………………………………………………………………… 336
C. Agency ………………………………………................................................................ 339
D. Compromise…………………………………………………………………………………………….. 351
E. Loan……………………………………………………………………………………....................... 353
F. Deposit …………………………………………………………………………………….................. 353
G. Lease ………………………………………………………………………………………………………. 363
H. Applicability Of Penal Laws …………………………………………………………………………. 363

XI. Quasi-Contracts............................................................................................ 369

A. Negotiorum Gestio ………………………………………………………………………………. 369
B. Solutio Indebiti..……………………………………………………………………………………….. 370

XII. Land Titles And Deeds..................................................................................... 371

A. Torrens System……………………………………………………......………………………………. 371
B. Agrarian Titles And Ancestral Lands And Domains ….…….....…………………………. 374
C. Citizenship Requirement ……………………………………………………………………………. 376
D. Original Registration …………………………………………………………………………………. 377
E. Subsequent Registration.................................................................................. 388
F. Non-Registrable Properties.............................................................................. 394
G. Dealings With Unregistered Lands.................................................................... 396

XIII. Torts.............................................................................................................. 398

A. Principles...................................................................................................... 398
B. Classification Of Torts.................................................................................... 399
C. The Tortfeasor............................................................................................... 399
D. Proximate Cause............................................................................................ 401
E. Legal Injury................................................................................................... 402
F. Intentional Torts............................................................................................. 403
G. Negligence..................................................................................................... 411
H. Special Liability In Particular Activities.............................................................. 416
I. Strict Liability................................................................................................. 422

XIV. Damages....................................................................................................... 426

A. General Considerations.................................................................................. 426
B. Damages In Case Of Death............................................................................ 436
C. Graduation Of Damages................................................................................. 436

I GENERAL PRINCIPLES
I. EFFECT AND APPLICATION OF LAWS
The New Civil Code (NCC) took effect on August
30, 1950.
A. WHEN LAWS TAKE EFFECT (Art. 2, NCC)
Three possible scenarios:
1. If the law is silent as to its date of
effectivity. It takes effect after fifteen
(15) days following the completion of its
publication in the Official Gazette or in a
newspaper of general circulation (Article 2, as
amended by E.O. No. 200).
2. If the law provides for its own date of
effectivity. It takes effect on such date,
provided there is publication. Publication is
indispensable (Tañada v. Tuvera, G.R. No. L-
63915, April 24, 1985).
3. If the law provides that it shall take
effect immediately upon its approval. It
takes effect immediately after
publication. There is nothing in E.O. No. 200
that prevents a law from taking effect on a
date other than – even before – the 15-day
period after its publication. Where a law
provides for its own date of effectivity, such
date prevails over that prescribed by E.O.
No. 200 (La Bugal-B‘laan Tribal Association, Inc.
v. Ramos, G.R. No. 127882, 27 January 2004).
 "Unless it is otherwise provided"
refers to the date of effectivity and not to
the requirement of publication itself, which
cannot in any event be omitted. This clause
does not mean that the legislature may
make the law effective immediately upon
approval, or on any other date, without its
previous publication (Tañada v. Tuvera, Id.).
PUBLICATION. Publication is indispensable in
every case, but the legislature may in its
discretion provide that the usual fifteen-day
period shall be shortened or extended (Tañada v.
Tuvera, Id.).
 COMPLETE PUBLICATION
REQUIRED. Otherwise, it is considered as
no publication at all (Tañada v. Tuvera, Id.).
Purple Notes
Civil Law
Where to publish
1. Official Gazette (See Art. 2); or
2. Newspaper of general circulation (E.O. No.
200)
 To be a newspaper of general circulation, it
is enough that it is published for the
dissemination of local news and general
information, that it has a bona fide
subscription list of paying subscribers, and
that it is published at regular intervals
(Fortune Motors Phils. Inc. v. Metropolitan Bank
and Trust Company, G.R. No. 115068, November
28, 1996).
 The publication must be in full since the
purpose is to inform the public of the
contents of the law (Phil. Int‘l Trading Corp. v.
Angeles, G. R. No. 108461, October 21, 1996).
 Administrative Issuances: Publication
with the Office of the National
Administration Register (ONAR) is also
required for its effectivity (Sec. 3, Chapter 2,
Book VII, Administrative Code of 1987).
its
 Strict compliance with the requirements of
publication cannot be annulled by a mere
allegation that parties were notified of the
existence of the implementing rules
concerned (Republic v. Filipinas Shell, G.R. No.
173918, April 8, 2008).
When Publication is Required
1. Presidential Decrees;
2. Administrative Rules and Regulations, if
their purpose is to enforce or implement
existing laws pursuant to a valid delegation;
3. Laws or statutes, including local and private
laws;
4. Executive Orders;
5. City Charter;
6. Circulars issued by the Monetary Board
where purpose is not merely to interpret but
to fill in the details of the Central Bank Act;
and
7. Circulars and Regulations prescribing
penalty for its violation.
IS  Before the public is bound by its contents,
especially its penal provisions, a law,
regulation or circular must first be
published and the people must be officially
Bar Operations C ommissions 1
 Purple Notes
Civil Law
 and specifically informed of said contents  Payment by reason of mistake in the
and its penalties (People v. Que Po Lay, G.R. construction or application of a doubtful or
No. L-6791, March 29, 1954). difficult question of law may give rise to an
obligation to return what has been unduly
When Publication is NOT Required received (Art. 2155, in relation to Art. 2154
NCC).
1. Interpretative regulations and those merely
internal in nature regulating only the B. RETROACTIVITY OF LAWS (Art. 4, NCC)
personnel of the administrative agency and
not the public; and General rule: Laws shall have no retroactive
2. Letters of instructions issued by effect.
administrative superiors concerning the
rules or guidelines to be followed by their Exceptions:
subordinates in the performance of their
duties. 1. Curative statutes;
2. Remedial statutes;
 Administrative rules and regulations must 3. Expressly provided by the law;
be published if their purpose is to enforce 4. Laws creating new substantive rights;
or implement existing laws pursuant to a 5. Emergency laws;
valid delegation. 6. Tax laws when expressly declared so;
7. Interpretative statutes; and
IGNORANCE OF THE LAW (Art. 3, NCC) 8. Penal laws favorable to the accused who is
not a recidivist or a habitual delinquent
Ignorance of the law excuses no one from (Rabuya, The Law on Persons and Family
compliance therewith. Relations, 2006 Ed, p. 13).

Ignorantia facti excusat. Ignorance or Exceptions to retroactivity of laws when

mistake in point of fact is a sufficient excuse the expressly provides:
(U.S. v. Ah Chong, G.R. No. L-5272, March 19, 1910).
1. The retroactivity of the penal law will make it
MISTAKE OF FACT MISTAKE OF LAW an ex post facto law; and
Want of knowledge of Want of knowledge or 2. When the retroactivity of the law will result in
some facts acquaintance with the laws the impairment of obligation of contracts
constituting or relating of the land insofar as they (Rabuya, The Law on Persons and Family
to the subject matter apply to the act, relation, Relations, 2006 Ed, p. 13).
in hand. duty, or matter under
consideration.
C. MANDATORY OR PROHIBITORY LAWS
When some facts Occurs when a person
(Art. 5, NCC)
which really exist are having full knowledge of the
unknown or some fact facts come to an erroneous
is supposed to exist conclusion as to its legal General rule: Acts executed against mandatory
which really does not effects or prohibitory laws are void.
exist.
Good faith is an Not excusable, even if in Exceptions:
excuse good faith
1. When the law itself authorizes its validity
 The possessor‘s mistake in the application although generally, it would have been void;
or interpretation of a difficult or doubtful 2. When the law authorizes it, recognizes legal
provision of law may be the basis of good effect;
faith (Art. 526, NCC). This pertains to 3. When the law only makes the act voidable
excusable error arising from complex legal and not void; or
principles and from the interpretation of 4. When the law makes the act valid but
conflicting or doubtful doctrines. punishes the violator (Rabuya, supra, p. 17-
18).

2 Center for Legal Education and Research

 Purple Notes
Exceptions:
1. When waiver is contrary to law, public
morals, public policy and good customs;
2. When waiver is prejudicial to a third person
in a right recognized by law;
3. Waiver of inchoate rights, e.g., future
inheritance);
4. When it is a natural right (e.g. right to
support); or
5. When there is a particular formality required
by law.
D. WAIVER OF RIGHTS (Art. 6)
Rights may be waived, unless the waiver is
contrary to law, public
order, public policy, morals, or good customs, or
prejudicial to a third person
with a right recognized by law.(4a).
(1) Rules for the Waiver of Rights
General rule – Rights may be waived
Exceptions:
(a) When the waiver is contrary to law, public
order, public policy, morals, or good
customs.
(b) When the waiver is prejudicial to a third
person with a right recognized by law. (Art.
6, Civil Code) (Unless, of course, such waiver
has been made with the consent of such
third persons).
Note: Art. 6 deals with the waiver of rights, not
the waiver of obligations or duties. Waiver of
obligations or duties would be possible only if
the person being possessed of certain rights,
and resultant obligations or duties waives the
said rights; or if the law itself authorizes such
waiver [e.g. , if a person who has a right
renounces the same, in a sense, he is exempting
himself from the obligations that may have
ensued from the exercise of the right.])
(2) Definitions
(a) Right – the power or privilege given to one
person and as a rule demandable of another
(Black‘s Law Dictionary, p. 1158), as the right
to recover a debt justly due. In still another
Civil Law
sense, a right denotes an interest2018
or title in
an object or property. (Black‘s Law
Dictionary, p. 1558). Generally, rights involve
two subjects: the active subject (the person
entitled) and the passive subject (the person
obliged to suffer the enforcement of the
right).
Rights may be:
1) Real rights (jus in re, jus in rem) –
enforceable against the whole world
(absolute rights);
2) Personal rights (jus in personam, jus ad rem)
– enforceable against a particular individual
(relative rights)
(b) Waiver – the intentional or voluntary
relinquishment of a known right, or such
conduct as warrants an inference of the
relinquishment of such right. (Christenson v.
Carleton, 69 Vt. 91)Thus, a waiver may be
express or implied (Black‘s Law Dictionary, pp.
1827-1828)
(3) Requisites for a Valid Waiver
(a) The person waiving must be capacitated to
make the waiver. (Hence, a waiver by a
minor or by an insane person or non-
compos mentis id voidable.)
(b) The waiver must be made clearly, but not
necessarily express. (Acting Prov. Sheriff of
Surigao v. PTC, L-4083, Aug. 31, 1953; Andres v.
Crown Life Insurance Co., _10874, Jan 28, 1958)
(c) The person waiving must actually have the
right which he is renouncing; otherwise, he
will not be renouncing anything. (See TS,
March 11, 1964)
(d) In certain instances, the waiver, as in the
express remission of a debt owed in favour
of the waiver, must comply with the
formalities of a donation. (See Art. 1270, Civil
Code)
(e) The waiver must not be contrary to law,
morlas, public policy (the aim of the State in
promoting the social welfare of the people)
(Ferrazini v. Gsee, 34 Phil. 693), public order (or
public safety) (Ferrazini v. Gsell, 34 Phil. 693), or
good customs (those which exist in a
particular place). (Art. 6, Civil Code)
(f) The waiver must not prejudice others with a
right recognized by law.
Bar Operations Commissions 3
 Purple Notes
Civil Law
(4) Examples of Rights the Cannot be
Renounced
(a) Natural rights, such as the right to life
(Therefore, if a person requests another to kill
him, the killer would still be criminally liable.
[Art. 253, Rev. Penal Code] As a matter of fact,
even if a person is not the kiler himself, if a
person assists another in the latter‘s suicide, the
helper is penalized by the penalty of prision
mayor. [Art. 253, Rev. Penal Code] The right to
be supported [present or future support] cannot
be renounced, for support is vital to the life of
the recipient [Art. 301])
(b) Alleged rights which really do not yet
exist
Future inheritance cannot be renounced, since
no right is vested till the death of the decedent.
(Art. 2263, Civil Code)
(c) Those the renunciation of which
would infringe upon public policy
1) The right to be heard in court cannot be
renounce in advance, hence this kind of
confession of judgment cannot be
allowed.
2) A waiver of the legal right to
repurchase a homestead that had been
sold if the waiver is made in advance.
This is so, otherwise the benevolent
intent of the State to give the
homesteader all chances to preserve for
himself and his family the land that the
State has rewarded him which would be
rendered useless. (Barcelon v. Arambulo,
et al., C.A. 48 O.G. 3976)
3) A waiver in advance of the one-month
separation pay (the mesada) is contrary
to public policy, but not a waiver after
the right has accrued. (Sanchez v. Lyons
Construction Co., 48 O.G. 605)
4) A tenant is not allowed to waive his right
to the exemption provide by the Rice
Tenancy Act from lien and attachment
of 25% of his share in the land products
because such a waiver would be
equivalent to a waiver of the tenant‘s
right to live. Thus, a sheriff‘s levy on
said properties, and the subsequent sale
4 Center for Legal Education and Research
thereof, should be considered unlawful.
(Maniego v. Castelo, L-9855, April 29, 1957)
5) A waiver of the ten-year period for suing
on a written contract (Art. 1144) is
contrary to public policy. (See Macias and
Co. V. China Fire Insurance Co., 46 Phil. 345;
Deocariza v. General Indemniy Co., CA, 53
O.G. 345)
6) A stipulation requiring the recipient of a
scholarship grant to waive (before
receiving said award) his right to
transfer to another school, unless he
refunds the equivalent of his scholarship
in cash, is null and void. The school
concerned obviously understands
scholarship awards as a business
scheme designed to increase the
busineness potential of an educational
institutions.Thus, conceived it is not only
inconsistent with sound policy, but also
with good morals. (Cui v. Arellano
University, L-15127, May 30, 1961)
(d) When the waiver is prejudicial to a
third person with a right recognized
by law
Examples:
1) While an heir may renounce present
inheritance (i.e., inheritance that has
already accrued by virtue of the
decedent‘s death), still if the waiver
will prejudice existing creditors, the
latter can accept the inheritance in the
name of the heir, but only to the
extent sufficient to cover the amount
of their credits. (Art. 1052, Civil Code)
2) T dies leaving J and H as heirs. H has
his own children. If H repudiates the
inheritance, his own children will
clearly be prejudiced because H would
have less property and the entire
estate would be inherited by J.
However, H is allowed to do this
renouncing since after all, the children
of H have no right recognized by the
law (to their own legitime) till after H‘s
own death. The right to the legitime is
indeed, from this viewpoint, a mere
expectance.
 Purple Notes
(5) Examples of Rights that May be
Renounced
(a) Support in arrears – for evidently this is
no longer needed for subsistence. (Art.
301, Civil Code)
(b) The Right granted to prepare at least
two days before trial is waivable,
expressly or impliedly. It can be implied
from the failure to ask for sufficient time
to prepare for trial. (People v. Moreno, 7
Phil. 548)
(c) The right to object to testimony of a
wife on information obtained because of
her domestic relations with her
husband, is waived when a husband
accused of killing his son, does not only
deny his guilt, but also points to the
wife as the killer. (People v. Francisco, 78
Phil. 69). In a prosecution for rape
against his own child, a husband cannot
object to the testimony given by his wife
against him, for in effect this may be
considered an offense committed by a
husband against his wife.
(d) The right of the accused to be helped by
counsel may also be waived, provided,
the judge informs said accused of his
right. (U.S. v. Escalante, 39 Phil. 743)
(e) The right of the accused in a criminal
case to have a preliminary investigation
may be waived. (U.S. v. Marfori, 35, Phil.
666)
(f) The venue of actions (the place where
the action should be brought may be
waived, but not the court‘s jurisdiction.
(Central Azucarera v. De Leon and
Fernando, 56 Phil. 169)
(g) Although a tax obligation has already
been extinguished by prescription, the
taxpayer may waive the benefit granted
by law by reason of said prescription by
the execution of a chattel mortgage to
secure the payment of the same.
(Sambrano v. Court of Tax Appeals, L-8652,
March 30, 1957)
(h) An individual who accepts the office of
an executor or administrator may waive
compensation therefor. (Sison v. Teodoro,
L-9721, March 29, 1957)
(i) The right to the back pay of an
employee who has been dismissed
without any justifiable cause may be
waived by him. This is particularly so
Civil Law
when he has been put back 2018 to work.
(Dimayuga v. CIR and Cebu Portland Co., L-
10213, May 27, 1957)
(j) Failure to ask for vacation and sick leave
privileges afer a period of more than
five years constitutes a valid waiver
unless the intent of the law granting the
same is clearly otherwise. The purpose
of the privileve is to give the employee a
much needed rest, and not merely an
additional salary. The privilege must be
demanded in opportune time, and if he
allows the years to go by in silence, he
waives it. (Phil. Air Lines, Inc. V. Balanguit,
et al., L-8715, June 30, 1956; Sunripe
Coconut Prod. V. NLU-L-7964, 51 O.G.
5133).
E. REPEAL OF LAWS (Art. 7, NCC)
Two ways of repealing a law:
1. Express repeal – When the statute‘s
repealing clause specifically designates the
law to be repealed.
 When a law which expressly repeals a
prior law is itself repealed, the law first
repealed shall not be revived unless
expressly so provided.
2. Implied repeal – The provisions of the
subsequent law is incompatible with the
previous law.
Requisites:
a. Both laws cover the same subject; and
b. The latter is repugnant to the earlier
law.
 When a law which repeals a prior law,
not expressly but by implication, is itself
repealed, the repeal of the repealing law
revives the prior law, unless the
language of the repealing statute
provides otherwise (U.S. v. Soliman, G.R.
No. L-11555, January 6, 1917).
Repeal of a repealing law
Express No revival
Implied Revival of prior law
Bar Operations Commissions 5
 Purple Notes
Civil Law
Rules for general and special laws
In case of conflict between a general law and a
special law:
1. If the general law was enacted prior to the
special law, the latter is considered the
exception to the general law. The general
law remains a good law and there is no
repeal.
2. If general law was enacted after the special
law, the special law remains, unless:
a. There is an express declaration to the
contrary;
b. There is a clear, necessary and
irreconcilable conflict; or
c. Subsequent general law covers the
whole subject and is clearly intended to
replace the special law on the
matter(Rabuya, The Law on Persons and
Family Relations, 2006 Ed, p. 24)..
PRINCIPLE OF CONSTITUTIONAL
SUPREMACY. When the courts declared a law
to be inconsistent with the Constitution, the
former shall be void and the latter shall govern
(Art. 7, NCC). The Constitution is the supreme
law of the land.
DOCTRINE OF OPERATIVE FACT. It
recognizes the existence of the law or executive
act prior to the determination of its
unconstitutionality as an operative fact that
produced consequences that cannot always be
erased, ignored or disregarded. In short, it
nullifies the void law or executive act but
sustains its effects (Yap v. Thenamaris Ship‘s
Management, G.R. No. 179532, May 30, 2011).
EFFECT OF DOUBT IN INTERPRETATION
OR APPLICATION OF LAWS
1. In case of doubt, it must be presumed
that the lawmaking body intended right and
justice to prevail (Art. 10, NCC).
2. If the law is clear, it is the duty of the
judge to apply the law even if the
application of the law may seem to be
harsh.
3. Resort to equity – It is applied only in the
absence of, and never against, statutory law
6 Center for Legal Education and Research
or judicial rules of procedure (Rabuya, supra,
Ed, p. 12).
F. CONFLICT OF LAWS
Conflict of Laws, also called Private
International Law, is that part of the
municipal laws of a state which directs its courts
and administrative agencies, when confronted
with a legal problem involving a foreign element,
whether or not they should apply a foreign law
or foreign laws (Paras, Philippine Conflict of Laws,
1996, p. 2).
Elements of Conflict of Laws:
1. Legal problem or case involving a foreign
element; and
Foreign element – refers to the factual
situation cutting across territorial lines,
affected by diverse laws of two or more
states. The presence of foreign element in
a case determines the existence of a
conflict of laws. Where there is no foreign
element, no conflict of laws exists (Agpalo,
Conflict of Laws, 2004, p. 12).
2. Determination of whether the law or
judgments of other state/s will govern, and
if so, the extent of its recognition/application
in the forum (Coquia & Aguiling-Pangalangan,
Conflict of Laws: Cases Materials and Comments,
2000, p. 57).
Rules or Principles Governing Conflict of
Laws:
1. Territoriality of penal laws;
2. Nationality Principle
3. Lex Rei Sitae
4. Lex Loci Celebrationis
5. Other Rules or Principles Governing Conflict of
Laws.
1. Generality of penal laws
Penal laws and those of public security and
safety shall be obligatory upon all who live or
sojourn in the Philippines (Art. 14, NCC).
 Purple Notes
Civil Law
Exceptions: 2018v. Sto.
remarry under Philippine law (Corpuz
Tomas, G.R. No. 186571, August 11, 2010; Art. 26,
a. Treaty stipulations; except: FC).

 When the offense is committed by a Reckoning point in Determining

foreign sovereign while in Philippine Citizenship in a Recognized Divorce
territory; in the Philippines

 When the offense is committed by
diplomatic representatives; or
 When the offense is committed in a
public or armed vessel of a foreign
country.
b. Laws of preferential application; and
c. Principles of public international law (Rabuya,
The Law on Persons and Family Relations, 2006
Ed, p. 35).
2. Nationality Principle (Status Laws)
The reckoning point is the citizenship at the time
a valid divorce is obtained, and not the
citizenship at the time of marriage (Republic v.
Orbecido III, G.R. No. 154380, October 5, 2005).
3. Lex Rei Sitae (Immovable Property
laws)
Real property as well as personal property is
subject to the law of the country where it is
situated (Art. 16 [1], NCC). This comprises all
aspects including formalities (Orayon Savings Bank
v. Suzuki, G.R. No. 205487, November 12, 2014).

Laws relating to the following are binding Exceptions:

upon citizens of the Philippines, even though
living abroad (Art. 15, NCC):
National law of the decedent whose succession
is under consideration will govern with respect
a Family rights and duties; to the following aspects of succession, whether
b Status; testate or intestate:
c Condition; and
d Legal capacity of persons. a. Order of succession;
b. Amount of successional rights;
Note: In case of stateless individuals, the c. Intrinsic validity of testamentary provisions;
following shall be applicable: and
d. Legal capacity to succeed (Art. 16, NCC).
 The personal law shall be the domicile of the
stateless person; or, 4. Lex Loci Celebrationis (Laws on Forms and
 Secondarily the place of temporary Solemnities)
residence (Paras, Conflict of Laws, 1996 Ed, p.
110) The forms and solemnities of contracts, wills,
and other public instruments shall be governed
Application of rule to absolute divorce by the laws of the country in which they are
executed (Art. 17, NCC).
General rule: Our family laws do not recognize
absolute divorce between Filipino citizens (Garcia When a Filipino is in a foreign country, he is
v. Recio, G.R. No. 138322, October 2, 2001). authorized to make a will in any of the forms
established by the law of such country (Art. 815,
Exception: Principle of Reciprocity NCC).
Where a marriage between a Filipino citizen and
a foreigner is validly celebrated and a divorce is Exceptions:
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
a. Marriages involving Filipinos
Filipino spouse shall likewise have capacity to
solemnized abroad when such

Bar Operations Commissions 7

 Purple Notes
Civil Law
marriages are void in the Philippines,
such as:
1. Marriages contracted by minors, even
with the consent of parents or guardian
(Art. 35 [1], FC);
2. Bigamous or polygamous marriages not
falling under Art. 41, FC (Art. 35 [4], FC);
3. Marriages contracted through mistake of
identity of the other contracting party
(Art. 35 [5], FC);
4. Non-compliance of recording
requirements with appropriate civil
registry and registries of properties
concerning the judgment of annulment
or of absolute nullity of marriage, the
partition and distribution of properties of
spouses, and the delivery of the
presumptive legitimes of children (Art. 35
[6], FC);
5. Void marriages by reason of
psychological incapacity of a party to
comply with the essential marital
obligations of marriage (Art. 36, FC);
6. Incestuous marriages (Art. 37, FC); and
7. Void marriages for reasons of public
policy (Art. 38, FC).
b. Rule of Extra-territoriality - When the
acts referred to are executed before the
diplomatic or consular officials of the
Republic of the Philippines in a foreign
country, the solemnities established by
Philippine laws shall be observed in their
execution (Art. 17 [2], NCC).
c. Rule on Prohibitive Laws - Prohibitive
laws concerning persons, their acts or
property, and those which have for their
object public order, public policy or good
customs shall not be rendered ineffective by
laws or judgments promulgated, or by
determinations or conventions agreed upon
in a foreign country (Art. 17[3], NCC).
 Under the rule of lex loci celebrationis,
contract executed in a foreign country is
considered valid as long as it is valid in
accordance with the law of the place where
it was celebrated. However, if such kind of
contract is prohibited under Philippine laws
like those provided under Art. 26 par. [1] of
E.O. 207, then such contract is not valid.
8 Center for Legal Education and Research
5. Other Principles or Doctrines on
Conflict of Laws
a. Jurisdiction
Principle of Forum Non Conveniens
- This refers to the court‘s discretionary
power to decline the exercise of its
jurisdiction where another court may
more conveniently hear a case.
Accordingly, under this doctrine, a court,
in conflict of laws 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 redress elsewhere (Bank of
America v. CA, G.R. No. 120135, March 31,
2003).
b. Personal Law
Different Theories on Personal
Law:
1. Nationality Theory or Personal
Theory (Lex Nationalii) – the
status and capacity of a person is
determined by the law of his
nationality or national law. This
theory is followed in the Philippines.
2. Domiciliary Theory or Territorial
Theory (Lex Domicilii) – the
status and capacity of a person is
determined by the law of his
domicile.
3. Situs or Eclectic Theory – the
particular place or situs of an event
or transaction is generally the
controlling law (Paras, Conflict of
Laws, 1996, p. 102).
c. Doctrine of Renvoi
Renvoi - literally means ―to refer
back‖. Renvoi takes place when the
conflicts rule of the forum makes a
reference to a foreign law, but the
foreign law is found to contain a conflict
rule that returns or refers the matter
back to the law of the forum
(Remission) (Paras, Conflict of Laws, 1996,
p. 211).
 Purple Notes
Double Renvoi – occurs when the
local court, in adopting the foreign court
theory, discovers that the foreign court
accepts the renvoi (Paras, supra, p. 214).
Transmission Theory – provides that
when the conflicts rule of the forum
makes a reference to a foreign law, but
the foreign law is found to contain a
conflict rule that refers it to a third
country, the law of the third country
shall apply. It is the process of applying
the law of a foreign state (third state)
thru the law of a second foreign state
(Paras, Conflict of Laws, 1996, p. 215)
d. Doctrine of Lex Fori (Law of the
Forum)
It applies whenever the content of the
otherwise applicable foreign law is
excluded from application in a given
case for the reason that it falls under
one of the exceptions to the applications
of foreign law (Saudi Arabian Airlines v.
Court of Appeals, G.R. No. 122191, October
8, 1998).
e. Doctrine of Processual Presumption
(Presumed-Identity Approach)
When a foreign law is not pleaded or,
even if pleaded, is not proved, the
presumption is that the foreign law is
the same is ours. In our jurisdiction,
courts do not take judicial notice of
foreign laws (Philippine National
Construction Corporation v. Asiavest, G.R.
No. 172301, August 19, 2015).
f. Torts
General Rule: Lex Loci Delicti Comissi
or law of the place where the tort was
committed will govern. Under this, the
court applies the substantive laws of the
state where the last event necessary to
make an actor liable for the alleged
wrong takes place (Shaw v. LDC
Enterprises, 863 N.E. 2d 424, March 30,
2007).
Civil Law
Exception: When the place2018 of the tort
is an insignificant contact, the factors
that must be evaluated are:
1. The place where the conduct
causing the injury occurred;
2. The residence or place of business
of the parties; and
3. The place where the relationship is
centered (Melton v. Stephens, 13 N.E.
3d 533, July 22, 2014).
Kilberg Doctrine – Where a wrongful
death occurred in A state and the action
for damages is brought in B state, B is
not bound by A‘s laws on any limitation
of liability arising from the death where
the set limitations on damages are
procedural. The law of the forum (B)
should be applied (Kilberg v. Northeast
Airlines, Inc., 9 N.Y. 2d 34, 211 N.Y.S. 2d,
133, 172 N.E. 2d 526).
G. HUMAN RELATIONS
PRINCIPLE OF ABUSE OF RIGHTS. Every
person must, in the exercise of his rights and in
the performance of his duties, act with justice,
give everyone his due, and observe honesty and
good faith (Art. 19, NCC).
Elements of abuse of rights
1. There is a legal right or duty;
2. It is exercised in bad faith; and
3. For the sole intent of prejudicing or injuring
another (Albenson Enterprises Corp. v. CA, G.R.
No. 88694, January 11, 1993).
DAMNUM ABSQUE INJURIA (DAMAGE
WITHOUT INJURY). A person who only
exercises his legal rights does no injury.
General rule: In the exercise of one‘s right,
there is no actionable injury, and no one can be
held liable for damages (Amonoy v. Gutierrez, G.R.
No. 140420, February 15, 2001).
Exceptions:
1. Abuse of rights; and
2. When the exercise of a right is suspended or
extinguished pursuant to a court order
Bar Operations Commissions 9
 Purple Notes
Civil Law
(Amonoy v. Gutierrez, G.R. No. 140420, February
15, 2001).
DOCTRINE OF VOLENTI NON FIT INJURIA
(To which a person assents is not
esteemed in law as injury). It refers to self–
inflicted injury or to the consent to the injury
which precludes recovery of damages by one
who has knowingly or voluntarily exposed
himself to danger, even if he is not negligent in
doing so (Nikko Hotel Manila Garden v. Roberto
Reyes, G.R. No. 154259, Feb 28, 2005).
WILLFUL AND NEGLIGENT ACTS. Anyone
who, contrary to law, willfully or negligently
causes damage to another, shall indemnify the
latter for damages (Art. 20, NCC).
ACTS CONTRA BONOS MORES (Acts
contrary to good morals). Any person who
willfully causes loss or injury to another in a
manner that is contrary to morals, good customs
or public policy shall compensate the latter for
the damage (Art. 21, NCC).
Elements of Acts Contra Bonus Mores:
1. An act which is legal;
2. But the act is contrary to morals, good
customs, public order, or public policy; and
3. It is done with intent to injure (Rabuya, The
Law on Persons and Family Relations, 2006, p.
55).
 Articles 19, 20, and 21 are related to each
other. Under these articles, an act which
causes an injury to another may be made the
basis for an award for damages (Rabuya, supra,
p. 55).
 While under Articles 19 and 21, the act must
be done intentionally, Article 20 does not
distinguish the act, and may either be willful
or negligent. However, the act must be
contrary to law (Albenson Enterprise Corporation
v. Court of Appeals G.R. No. 88694, January 11,
1993).
BREACH OF PROMISE TO MARRY. Breach of
promise to marry per se is not an actionable
wrong. To be actionable, there must be some
act independent of the cause of the breach,
such as:
10 Center for Legal Education and Research
a. Fraud or deceit (Gashem Shookat Baksh v. CA,
1993, G.R. No. 97336, February 19, 1993);
b. Forcible abduction and rape (Buñag, Jr. v.CA,
G.R. No. 101749, July 10, 1992);
c. Actual expenses are actually incurred in
preparation for the wedding and the
necessary incidents thereof (Wassmer v.
Velez, G.R. No. L-20089, December 26, 1964).
 Mere breach of promise to marry is not an
actionable wrong. But to formally set a
wedding and go through all the above-
described preparation and publicity, only to
walk out of it when the matrimony is about
to be solemnized, is quite different. This is
palpably and unjustifiably contrary to good
customs for which defendant must be held
answerable in damages in accordance with
Article 21. (Wassmer v. Velez, Id.)
PRINCIPLE OF UNJUST ENRICHMENT. It is
an action for recovery of what has been paid
without just cause.
ACCION IN REM VERSO. It is an action for
unjust enrichment. If a person acquires or
comes into possession of something at the
expense of another without just or legal ground
has the obligation to return the same (Art. 22,
NCC).
Requisites:
1. Defendant has been enriched;
2. Plaintiff suffered a loss;
3. Enrichment of defendant is without just or
legal ground; and
4. Plaintiff has no other action based on
contract, quasi contract, crime, or quasi-
delict.
 This is applicable only if someone acquires
or comes into possession of something (by
delivery or acquisition).
ACCION IN REM VERSO vis-à-vis SOLUTIO
INDEBITI. Mistake is an essential element in
solutio indebti but not in accion in rem verso.
The basis of solution indebiti is quasi-contract;
while the basis of accion in rem verso is law
because the person has no other remedy based
on contract, quasi-contract, delict and quasi-
delict (Rabuya, The Law on Persons and Family
Relations, 2006, p.67-68).

H. APPLICABILITY OF PENAL LAWS
Delict as Source of Civil Liability
Delict or crime is one of the sources of
obligation. The general rule is that every person
criminally liable is also civilly liable (Art. 100,
RPC).
Effect of Acquittal of the Accused
General Rule: The extinction of the penal
action does not carry with it extinction of the
civil action (Sec. 2, Rule 111, ROC).
Exception: When there is a finding in a
judgement in the criminal action that the act or
omission from which the civil liability arise did
not exist (Sec. 2, Rule 111, ROC).
Acquittal based on Reasonable Doubt
The judgement of acquittal extinguishes the
liability of the accused for damages only when it
includes a declaration that the facts from which
the civil liability might arise did not exist (Rabuya,
The Law on Persons and Family Relations, 2006, p.
82).
Art. 29 of the NCC:
Art. 29 automatically reserves for the private
offended party the right to institute an
independent civil action for damages based on
the same act or omission and prove it by
preponderance of evidence despite the fact that
the accused was not held to be criminally liable
and that the injured party previously opted to
recover his damages ex delicto under Art. 100 of
the ROC (Rabuya, The Law on Persons and Family
Relations, 2006, p. 86).
Rule of Implied Institution
General Rule: When a criminal action is
instituted, the civil action for the recovery of civil
action for the recovery of civil action arising
from the offense charged shall be instituted with
the criminal action (Sec. 1, Rule 111, ROC).
Exceptions:
1. The offended party waives the civil action
Purple Notes
Civil Law
2. Reserves the right to institute it2018
separately;
and,
3. The civil action was instituted prior to the
criminal action (Sec. 1, Rule 111, ROC).
When Civil Action is Reserved:
 The reservation of the right to institute
separately the civil action shall be made
prior to the prosecution‘s presentation of
evidence and under circumstances affording
the offended party a reasonable opportunity
to make such reservation (Sec. 1, Rule 111,
ROC).
 The separate civil action cannot be instituted
until final judgement of the criminal action
has been entered (Sec. 1, Rule 111, ROC).
When Civil Action is Instituted Prior to
Criminal Action
 The civil action shall be suspended in
whatever stage it may be found before
judgement on the merits. Such suspension
shall last until final judgement is rendered
on the criminal action.
Independent Civil Action
Independent civil action proceed independently
of the criminal action and shall require only a
preponderance of evidence. In no case,
however, may the offended party recover
damages twice for the same act or omission
charged in the criminal action (Sec. 3, Rule 111,
ROC).
This is allowed for cases provided in Art. 32, 33,
34 and 2176 of the New Civil Code, in which
case, preponderance of evidence shall suffice:
1. Civil Damages for Violation of Constitutional
Liberties (Art. 32, NCC);
2. In cases of defamation, fraud, and physical
injuries (Art. 33, NCC);
3. When a member of a city or municipal police
force refuses or fails to render aid or
protection to any person in case of danger to
life or property (Art. 34, NCC);
4. In cases of quasi-delict (Art. 2176, NCC).
Bar Operations Commissions 11
 Purple Notes
Civil Law
PREJUDICIAL QUESTIONS UNDER ART. 36
Prejudicial questions, which must be decided
before any criminal prosecution may be
instituted or may proceed, shall be governed by
the Rules of Court which the Supreme Court
shall promulgate and which shall not be in
conflict with the provisions of this Code (Art. 36,
NCC).
Elements of Prejudicial Question:
1. The previously instituted civil action involves
an issue similarly or intimately related to the
issue raised in the subsequent criminal
action;
2. The resolution of such issue determines
whether or not the criminal action may
proceed
Note: It is the issue in the civil action that is
prejudicial to the continuation of the criminal
action and not vice versa (Rabuya, Persons and
Family Relations, 2006 Ed, p. 98).
II:
PERSONS AND FAMILY RELATIONS
A. PERSONS
CIVIL PERSONALITY
The external manifestation of either juridical
capacity or capacity to act. It is the aptitude of
being the subject of rights and obligations (2
Sanchez Roman 114-147).
A person is any being, natural or artificial,
capable of possessing legal rights and
obligations (2 Sanchez Roman 110).
1. KINDS OF PERSONS
Natural Persons are those human beings
created by God through the intervention of the
parents; and
Juridical persons are those created by law (2
Sanchez Roman 112-114).
NATURAL PERSONS
COMMENCEMENT OF PERSONALITY
12 Center for Legal Education and Research
General rule: Birth determines personality in
case of natural persons (Art. 40, NCC).
Exception: The civil personality of the child
shall commence from the time of his conception
for all purposes favorable to him, subject to the
requirements of Art. 41, NCC (Art. 5, PD 603).
 A conceived child, although as yet
unborn, is given by law, a provisional
personality of its own for all purposes
favorable to it (Art. 40, NCC).
When is a child considered born?
General rule: The fetus is considered born if it
is alive at the time it is completely delivered
from the mother's womb or often the cutting of
the umbilical cord (Art. 41, NCC). This holds true
even if the same died after few hours.
Exception: If the fetus had an intra-uterine life
of less than 7 months and dies within 24
hours after its complete delivery from the
mother‘s womb is not deemed born (Art. 41,
NCC).
 There is no dispute that the child was dead
when separated from the mother‘s womb,
therefore it lacked juridical personality, and no
action for damages can be constituted.
Parents, however, may recover moral
damages on account of distress and anguish
to the loss of the fetus and the
disappointment of their parental expectations
(Geluz v. CA, G.R. No. L-16439, July 20, 1961).
 While the Civil Code expressly provides that
civil personality may be extinguished by death,
it does not explicitly state that only those who
have acquired juridical personality could die —
one need not acquire civil personality first
before he/she could die (Continental Steel
Manufacturing Corporation v. Montaño, G.R. No.
182836 October 13, 2009).
EXTINGUISHMENT OF PERSONALITY. Civil
personality is extinguished by death. The effect
of death upon the rights and obligations of the
deceased is determined by law, by contract and
by will (Art. 42, NCC).
 Purple Notes
Civil Law
Other legal effects of death: 2018two or
 Art. 43 applies when the case involves
more persons who are called to succeed each
1. The right to support ends (Falcon v. Arca, G.R. other. But if the parties are not called to
No. L-18135, July 31, 1963); succeed each other, Rule 131, Sec. II of the
2. A marriage, whether voidable or valid, also Rules of Court applies. Both are to be applied
ends, however, the relationship by affinity only in the absence of facts (Paras, Civil Law of
survives (Intestate Estate of Manolita Gonzales the Philippines Annotated, 2005 p. 248).
Vda. De Carungcong v. People, G.R. No. 181409,
February 11, 2010); JURIDICAL PERSONS
3. Tenure of public office ends (Abeja v. Tañada,
G.R. No. 112283, August 30, 1994); Classification of Juridical Persons
4. If an individual dies, the property or estate
left by him should be subject to the tax in JURIDICAL COMMENCEMENT OF
generally the same manner as if he were PERSONS PERSONALITY
alive (Testate Estate of Fernandez, L-9441, Sept State and its political
25, 1956); subdivisions
5. If a person dies after he has authorized Public corporations, Their personality begins
another to sell former‘s property, the sale institutions and as soon as they have been
after such death is not valid, if made by the entities for public constituted according to
agent with knowledge of the principal‘s interest or purpose, law.
death. This is true even if the buyer be in created by law
Upon issuance of
good faith (Rallos v. Felix Go Chan and Sons
Certificate of
Realty Corporation, L-24332, Jan 3, 1978).
Incorporation by the
Corporation
Security and Exchange
 Estate of a deceased is a person that may Commission (SEC) (Sec.
continue the personality of the deceased 18 par. 3, RCC)
even after death for the purpose of settling General partnership
debts (Limjuco v. Estate of Pedro Fragrante, 45 Upon the execution of the
where no immovable
O.G. No. 9, p. 397). contract (Art. 1784, NCC)
property contributed
Upon the execution of the
 The moment a person dies, juridical capacity contract (Art. 1784, NCC)
is extinguished. Therefore, he could not be General Partnership which is a public
validly served with summons nor convicted where immovable instrument with inventory
(Dumlao v. Quality Plastic Products, Inc., G.R. property contributed of immovable property
No. L-27956, April 30, 1976). contributed attached
therewith
 Death extinguishes criminal liability but not Upon submission of a
signed and notarized
civil liability, therefore, the case shall
Limited Partnership Articles of Partnership
continue in order to determine the civil duly filed for record with
liability of the accused (People v. Tirol, G.R. the SEC (Art. 1844, NCC)
No. L-30538, January 31, 1981).
 Private corporations are regulated by laws of
PRESUMPTION OF SURVIVORSHIP. If there general application on the subject (Art. 45,
is a doubt, as between two or more persons NCC).
who are called to succeed each other, as to
which of them died first, the following shall be  Partnerships and associations for private
observed: interest or purpose are governed by the
provisions of the Civil Code concerning
a. Whoever alleges the death of one prior to partnerships (Art. 45, NCC).
the other, shall prove the same;
b. In the absence of proof, it is presumed that
they died at the same time and there shall
be no transmission of rights from one to the
other (Art. 43, NCC).

Bar Operations Commissions 13

 Purple Notes
Civil Law
RIGHTS OF JURIDICAL PERSONS (Art. 46, Juridical Capacity vs. Capacity to Act
NCC)
JURIDICAL
CAPACITY TO ACT
1. To acquire and possess property of all kinds, CAPACITY
except those prohibited under the law; Fitness to be the
Power to do acts with
2. To incur obligations; and subject of legal
legal effects.
3. To bring civil or criminal actions relations.
Passive Active
NATIONALITY OF JURIDICAL PERSONS Inherent in every Merely acquired; Not
natural person. inherent
Lost through death and
General rule: The nationality of a corporation Lost only through
may be restricted by
is determined by the place of issuance of its death.
other causes
incorporation (SEC-OGC Opinion No. 16-15, Re: Can exist without Cannot exist without
Nationality of Non-stock Corporation). capacity to act. juridical capacity
Cannot be limited or Can be restricted
Exceptions: restricted. modified or limited.

1. For the grant of rights in the Constitution to
the operation of public utilities, and for the
acquisition of land and other natural
resources, a corporation, even if
incorporated here, cannot acquire said
rights, unless 60% of its capital is owned by
the Philippines.
2. During war, we may pierce the veil of
corporate identity and go to the very
nationality of the controlling stockholders
regardless of where the incorporation had
been made (Davis Winship v. Philippine Trust
Co., G.R. No. L-3869, January 31, 1952).
 The Roman Catholic Church is a corporation
by prescription, with acknowledged juridical
personality (Barlin v. Ramirez, G.R. No. L-2832,
November 24, 1906).
 Foreign corporation not doing business in
the Philippines and not licensed in the
Philippines may sue in the Philippines
(Converse Rubber Corp. v. Universal Rubber
Products, Inc., G.R. No. L-27906, January 8,
1987).
Juridical Capacity is the fitness to be the
subject of legal relations; inherent in every
natural person and is lost only through death
(Art. 37, NCC).
2. CAPACITY TO ACT
Capacity to act is the power to do acts with
legal effect; it is acquired and may be lost (Art.
37, NCC).
Restrictions on capacity to act (Article 38,
NCC)
1. Minority (below 18 years old). A minor
needs parental consent before he can enter
into an ordinary contract, but a contract he
entered without parental consent is merely
voidable (Art. 1327, CC) and will arise to
certain obligations from him (Cruz v. Court of
Appeals, G.R. No. L-40880, October 13, 1979).
 R.A. 6809 (1989) is an act lowering
the age of majority from twenty-one
(21) to eighteen (18) years old. Under
R.A. 9344, the age of criminal
exemption was increased from 9 to 15
years old. A child less than 15 years old
is exempted from criminal liability for it
is conclusively presumed that he acted
without discernment while a child above
15 years old but below 18 years old is
presumed to have acted with
discernment (Cruz v. Court of Appeals, G.R.
No. L-40880, October 13, 1979).
 Estoppel is the preclusion of minor to
annul a contract because of
misrepresentation of their age.
However, if the minor is guilty of ONLY
PASSIVE or CONSTRUCTIVE
misrepresentation and not active, he
can be allowed to annul the contract
upon attaining the age of majority
(Rabuya, The Law on Persons and Family
Relations, 2006, p. 108).

14 Center for Legal Education and Research


2. Insanity (condition of one whose mental
faculties are diseased) or imbecility (a
condition of a person whose advanced in
age has the mental capacity comparable to
that of a child between two to seven years
of age) (Rabuya, The Law on Persons and
Family Relations, 2006, p. 116).
 Insanity in one thing does not mean
insanity in another as in the case of
monomania or partial insanity (Standard
Oil Company of New York v. Arenas, G.R.
No. L-5921, July 25, 1911).
 An insane person under guardianship
who entered a contract is presumed to
be insane and the contract is voidable,
(Francisco v. Herrera, G.R. No. 139982,
November 21, 2002) but may be rebutted
by substantial evidence that the same
acted within his lucid interval, thus such
contract is valid (Dumaguin v. Reynolds,
G.R. No. L-3572, September 30, 1952).
3. The state of being deaf-mute does not
disqualify the ability to give consent.
Contracts entered into by deaf-mute are
valid. However, a deaf-mute who does not
know how to write is declared incapable of
giving consent therefore rendering the
contract voidable (Rabuya, The Law on Persons
and Family Relations, 2006, p. 117).
4. Prodigality is the state of squandering
money or property with a morbid desire to
prejudice the heirs of a person.
5. Civil interdiction is the deprivation by the
court of a person‘s right:
a. To have parental or marital authority;
b. To be the guardian of the person and
property of a ward;
c. To dispose of his property by an act
inter vivos (he cannot donate, for this is
an act inter vivos; but he can make a
will, for this is a disposition mortis
causa); and
d. To manage his own property. (Art. 34,
RPC)
 The penalty of civil interdiction is given to a
criminal punished by imprisonment of 12
years and 1 day or more (Art. 41, RPC).
Purple Notes
Civil Law
 2018 the
These restrictions do not exempt
incapacitated person from certain
obligations when the latter arise from his
acts or from property relations such as
easements (Art. 38, NCC).
MODIFICATIONS OR LIMITATIONS ON
CAPACITY TO ACT (Art. 39, NCC)
1. Those enumerated under Art. 38, NCC;
2. Family relations – as to marriage and
support:
a. Incestuous and void marriages (Art. 37,
FC);
b. Donations/grants of gratuitous
advantage between spouses during the
marriage shall be void, except moderate
gifts during family occasions (Art. 87,
FC);
c. Descendants cannot be compelled to
testify in a criminal case, against his
parents and grandparents unless: crime
was against the descendant or by one
parent against the other (Art. 215, FC);
d. Spouses cannot sell property to each
other, except: Absolute separation is
agreed upon in the marriage
settlements (Art. 1490, NCC); and
e. Judicial separation of property (Art. 1490,
NCC)
3. Aliens/Foreigners – limitations as to:
a. Acquisition of private or public
agricultural land;
b. Practice medicine (Sec. 226, RAC);
c. Vote or be voted upon; and
d. Engagement in coast shipping (Sec.
1172, RAC)
4. Absence;
5. Insolvency; and
6. Trusteeship.
 The consequences of these circumstances
are governed in this Code, other codes, the
Rules of Court, and in special laws (Art. 39,
NCC).
Equality in Capacity to Act (Women in
Development and Nation Building Act)
Bar Operations Commissions 15
 Purple Notes
Civil Law
Women of legal age, regardless of civil status,
shall have the capacity to act and enter into
contracts which shall in every respect be equal
to that of men under similar circumstances.
In all contractual situations where married men
have the capacity to act, married women shall
have equal rights.
(1) Women shall have the capacity to borrow
and obtain loans and execute security and
credit arrangement under the same
conditions as men;
(2) Women shall have equal access to all
government and private sector programs
granting agricultural credit, loans and non-
material resources and shall enjoy equal
treatment in agrarian reform and land
resettlement programs;
(3) Women shall have equal rights to act as
incorporators and enter into insurance
contracts; and
(4) Married women shall have rights equal to
those of married men in applying for
passport, secure visas and other travel
documents, without need to secure the
consent of their spouses.
In all other similar contractual relations, women
shall enjoy equal rights and shall have the
capacity to act which shall in every respect be
equal to those of men under similar
circumstances (Sec. 5, R.A. 7192).
4. DOMICILE AND RESIDENCE OF
PERSONS
Residence refers to the personal, actual or
physical habitation, or actual residence or place
of abode of a person (Raymond v. CA, G.R. No. L-
80380, September 28, 1988).
Domicile it is required that the person resides
therein with continuity and consistency.
Domicile denotes a fixed permanent residence to
which when absent for business or pleasure, or
for like reasons, one intends to return
((Romualdez-Marcos v. Commission on Elections, G.R.
No. 119976, September 18, 1995).
 It is possible that a person may have his
residence in one place and domicile in
16 Center for Legal Education and Research
another (San Luis v. San Luis, G.R. No. 133743,
February 6, 2007).
There is a clearly established distinction
between the Civil Code concepts of "domicile"
and "residence." Domicile to mean an
individual's "permanent home", "a place to
which, whenever absent for business or for
pleasure, one intends to return, and depends on
facts and circumstances in the sense that they
disclose intent; Residence, in its ordinary
conception, implies the factual relationship of an
individual to a certain place, i.e., the physical
presence of a person in a given area,
community or country. However, in our election
law, what has clearly and unequivocally
emerged is the fact that residence for election
purposes is used synonymously with domicile
(Romualdez-Marcos v. Commission on Elections, G.R.
No. 119976, September 18, 1995).
Domicile of Juridical Persons
The domicile of juridical persons shall be
understood to be the place where their legal
representation is established or where they
exercise their principal functions (Art. 51, NCC).
Exception: When the law creating or
recognizing them, or any other provision has
fixed its domicile (Art. 51, NCC).
B. RIGHTS AND OBLIGATIONS OF
COUPLES IN INTIMATE RELATIONSHIPS
(R.A. 9262)
Violence Against Women and their
Children refers to any act or a series of acts
committed by any person against a woman who
is his wife, former wife, or against a woman with
whom the person has or had a sexual or dating
relationship, or with whom he has a common
child, or against her child whether legitimate or
illegitimate, within or without the family abode,
which result in or is likely to result in physical,
sexual, psychological harm or suffering, or
economic abuse including threats of such acts,
battery, assault, coercion, harassment or
arbitrary deprivation of liberty (Sec. 3[a], RA
9262).
VAWC can be committed against:
 Purple Notes
a. A wife;
b. Former wife
c. Against a woman with whom he has or had
a sexual or dating relationship
d. With whom he has a common child whether
legitimate or illegitimate within or without
the family abode.
Dating relationship refers to a situation
wherein the parties live as husband and wife
without the benefit of marriage or are
romantically involved over time and on a
continuing basis during the course of the
relationship(Sec. 3 [e], RA 9262).
 A casual acquaintance or ordinary
socialization between two individuals in a
business or social context is not a dating
relationship (Sec. 3 [e], RA 9262).
 The dating relationship that the law
contemplates can exist even without a
sexual intercourse taking place between
those involved because the law distinguishes
dating relationship and sexual relationship
(Ang v. Court of Appeals, G.R. No. 182835, April
20, 2010).
Elements of the Crime of VAWC:
1. The offender has or had a dating or sexual
relationship with the offended woman;
2. The offender himself or through another,
commits an act or series of acts of
harassment against the woman;
3. That the harassment causes substantial
emotional or psychological distress to her
relationship (Ang v. Court of Appeals, G.R. No.
182835, April 20, 2010).
Rights included in RA 9262 (Sec. 3, RA 9262):
1. Right against physical abuse or any bodily or
physical harm;
2. Right against sexual abuse
 Sexual abuse refers to acts which are
sexual in nature committed against the
woman and her child.
3. Right against psychological violence
Psychological refers to acts or omissions causing
or likely to cause mental or emotional suffering
of the victim such as but not limited to
Civil Law
intimidation, harassment, stalking, 2018
damage to
property, public ridicule or humiliation, repeated
verbal abuse and mental infidelity
4. Right against economic abuse
 Economic Abuse refers to acts that
make or attempt to make a woman
financially dependent.
Economic Abuse includes the following
acts:
1. Withdrawal of financial support
2. Preventing the victim from engaging in any
legitimate profession, occupation, business
or activity, except in cases wherein the
other spouse/partner objects on valid,
serious and moral grounds as defined in
Article 73 of the Family Code;
3. deprivation or threat of deprivation of
financial resources and the right to the use
and enjoyment of the conjugal, community
or property owned in common;
5. destroying household property; and,
6. controlling the victims' own money or
properties or solely controlling the conjugal
money or properties (Sec. 3, RA 9262).
C. MARRIAGE (Family Code)
A marriage is a special contract of permanent
union between a man and a woman entered into
in accordance with law for the establishment of
conjugal and family life. It is the foundation of
the family and an inviolable social institution
whose nature, consequences, and incidents are
governed by law and not subject to stipulation,
except that marriage settlements may fix the
property relations during the marriage within the
limits provided by the law (Art. 1, FC).
Concepts of Marriage
1. It is a special contract of permanent union
between a man and a woman;
2. It is the foundation of the family; and
3. It is an inviolable social institution (Ibid).
 Persons dwelling together in apparent
matrimony are presumed, in the absence of
counter-presumption or evidence special to
the case, to be in fact married. The reason
Bar Operations Commissions 17
 Purple Notes
Civil Law
is that such is the common order of there may only be penal
society, and if the parties were not what or civil sanctions.
they thus hold themselves out as being,
they would be living in the constant 1. Requisites of Marriage
violation of decency and of law. There is a
presumption in favor of marriage. (Adong v. a. Essential Requisites (Art. 2, FC)
Cheong See Gee, 43 Phil. 43, 1956)
1) Legal capacity
 Presumption in favor of a valid marriage (Art
220, NCC)  Parties must be a male and a
 Under the Constitution, marriage, as an female;
inviolable social institution, is the foundation
of the family and shall be protected by the  18 years old and above (at the time
state (Sec. 2, Art. XV of the 1987 Constitution). of the marriage); and

Marriage v. Ordinary Contracts  Not subject to any legal

Marriage is a contract sui generis, differing in
notable respects from ordinary contracts.
(Rabuya, The Law on Persons and Family Relations,
2006, p. 136)
MARRIAGE
Both a contract and a
social institution.
Generally, nature and
consequences as well as
incidents are fixed by law
– not by the parties
(Exception: marriage
settlement). Stipulations
are of no value.
Marrying age is 18 years
old and above and does
not have legal
impediments mentioned
in Articles 37 and 38, FC
(Art. 5, FC)
Can be dissolved only by
death or annulment, not
by mutual agreement.
Only a man and a
woman can enter into
marriage.
Only 2 persons of
opposite sex may enter
into contract.
Breach of the obligation
imposed by law doesn‘t
give rise to damages –
ORDINARY
CONTRACT
Merely a contract.
Stipulations are
generally fixed by the
parties unless it is
against law, public
policy, public order,
morals or good
customs.
The age of ordinary
contract is the age of
majority (18 years old)
Can be ended by
mutual agreement and
by other legal causes b. Formal Requisites
like expiration of the
term of contract or
fulfillment of the
purpose to which the
contract was entered
into.
Gender of either party
is not important.
May be entered into by
as many persons.
Breach of contract
gives rise to an action
for damages.
impediments in Arts. 37 and 38 of
Family Code (Art. 5, FC).
2) Consent of the contracting parties
 Free and voluntary (not obtained
through mistake, fraud, force,
intimidation or undue influence). If
it is vitiated with error, fraud,
intimidation, etc., it is mere voidable
(valid until annulled). However, if
there is absolutely no consent at all,
as it was intended to be a jest, the
marriage is VOID.
 Must be manifested in the presence
of solemnizing officer; and
 Parties must have the necessary
consent of parents if contracted
marriage at the age of 18 years old
but below 21 years old (Art. 14, FC).
1) Authority of Solemnizing Officer;
2) Valid marriage license (not a marriage
certificate); and
3) Marriage ceremony- which takes place
with the:
 Personal appearance of the
solemnizing officer;
 Their personal declaration that they
take each other as husband and
wife; and

18 Center for Legal Education and Research


 In the presence of not less than two
witnesses of legal age (Art. 3, FC).
General Rule: In the absence of any of
the formal or essential requisites, the
marriage is void.
Exceptions: Marriages which are
exempted from obtaining a marriage
license (Art. 27-34, FC) and in case either or
both parties believed in good faith that the
solemnizing officer had the proper
authority, shall be valid.
 If there is a defect in the essential
marriage requisites the marriage is
voidable.
 If there is any irregularity in the
formal requisite, the marriage is valid
but the party responsible shall be
civilly, criminally and
administrative liable.
 The issuance of a marriage license
despite neither the parties are residents
of the city or municipality which issued
the same is a mere irregularity and does
not affect the validity of the marriage
(Alcantara v. Alcantara, G.R. No. 167746,
August 28, 2007).
 Although a marriage contract is
considered a primary evidence of
marriage, its absence is not always a
proof that no marriage took place
(Balogbog v. Court of Appeals, G.R. No.
83598 March 7, 1997).
 Once the presumption of marriage
arises, other evidence may be presented
in support necessary/direct to establish
the marriage but at least enough to
strengthen the presumption of
marriage. Every intendment of law leans
towards legitimizing marriage (Delgado
vda De dela Rosa v. Marciana vda de
Damian, G.R. No. 155733, January 26,
2006).
Some of the irregularities in the formal
requisites include:
1. Presence of only one witness;
Purple Notes
Civil Law
2. Lack of legal age of witness; 2018
3. Failure to comply with the procedural
requirements under Art. 12, FC;
4. Non-observance of 3-month period under
Art. 15; and
5. Failure to comply with the requirements of
notice under Art. 17, FC.
a. Authority of Solemnizing Officer
General Rule: Those solemnized by any person
not legally authorized to perform marriages are
void. (Art. 35, par. 2, FC)
 Exception: The marriage was contracted
with either or both parties believing in good
faith that the solemnizing officer had the
legal authority to do so. If a person seeks to
impugn the validity of a marriage on the
ground that the person who solemnized it
was not really authorized, such lack of
authority must be proved by the person
petitioning (De Cardenas v. Cardenas, et al.,
G.R. No. L-8218, Dec. 15, 1955).
Persons Authorized to Solemnize
Marriages: (Art. 7-8, 10, FC)
a. Any incumbent member of the
judiciary within the court’s jurisdiction
A marriage solemnized by a judge outside
the court‘s jurisdiction will not affect the
validity of the marriage but may subject the
officiating official to administrative liability.
(Beso v. Daguman, A.M. No. 99-1211 January
28, 2000). The defect is a mere irregularity in
a formal requisite (Navarro v. Domagtoy, A.M.
No. MTJ-96-1088, July 19, 1996).
Members of the Judiciary:
1. Metropolitan/Municipal Trial Courts
(MTC) and Regional Trial Courts (RTC)
Judges – within their territorial
Jurisdiction.
2. Court of Appeals, Court of Tax Appeals,
Sandiganbayan, and Supreme Court
Justices – Anywhere in the Philippines.
b. Priests, rabbis, ministers of any church
Bar Operations Commissions 19
 Purple Notes
Civil Law
Requisites to Perform Marriage:
1. Must be duly authorized by his or her
church or religious sect in writing,
2. Must act within the limits of the written
authority granted to him or her by the
church or religious sect;
3. His written authority must be registered
with the civil registrar general; and
4. At least one of the contracting parties
belongs to the solemnizing officer‘s
church or religious sect (Art. 7 [2], FC).
c. Ship captains or airplane chiefs or pilot
Requisites to Perform Marriage:
1. The marriage must be in articulo mortis
(at least one of the parties is at the
point of death)
Effect of recovery from illness of dying
person – Marriage is still valid (Art.27,
FC);
2. The marriage must be between
passengers or crew members; and
3. Generally, the plane must be in flight or
the ship must be at sea or during
stopovers at the port of call (Art 31, FC).
d. Military commanders of a unit;
Requisites to Perform Marriage:
1. He or she must be a commissioned
officer, or an officer in the armed forces
holding rank by virtue of a commission
from the president (his rank should start
from a second lieutenant, ensign and
above);
2. Assigned chaplain must be absent at the
time of the marriage;
3. The marriage must be one in articulo
mortis; and
4. The contracting parties, whether
members of the armed forces or
civilians, must be within the zone of
military operation (Art.32, FC).
e. Consul generals, consuls or vice
consuls
Marriages between Filipino citizens abroad
may be solemnized by them. When
20 Center for Legal Education and Research
performed abroad, or specifically in his place
of assignment, the solemnities established
by Philippine laws shall be observed in their
execution (Art. 17, NCC).
f. Duly elected mayors of cities and
municipalities pursuant to the Local
Government Code.
The mayor of a city or municipality, within
their exclusive jurisdiction, is empowered to
solemnize a marriage (Sec. 444[b](1)(xviii),
Local Government Code).
 When the mayor is temporarily
incapacitated to perform his duties for
physical or legal reasons such as, but
not limited to, leave of absence, travel
abroad, any suspension from office, the
vice mayor or the highest ranking
Sangguniang Bayan member shall
automatically exercise the powers and
perform the duties of the local chief
executive (Sec. 46, LGC).
 They were not included under the
Family Code but their authority was
restored by the Local Government Code,
which took effect on 1 January 1992.
Thus, if a marriage was celebrated by a
mayor after the effectivity of the Family
Code on 3 August 1988 but prior to the
effectivity of the Local Government
Code on 1 January 1992, such marriage
is void ab initio (Rabuya, The Law on
Persons and Family Relations, 2006, p. 167).
Duty of the Solemnizing officer:
The solemnizing officer shall state under oath
that he ascertained the qualifications of the
contracting parties and found no legal
impediment to the marriage (Art. 34, FC).
Public Solemnization – based on the premise
that the state takes an active interest in the
marriage. It may be done in the:
1. Chambers of the judge or in open court;
2. Church;
3. Chapel or temple; or
4. Office of the consul-general, consul or vice-
consul (Estrada v. Escritor, AM No. P-02-1651,
June 22, 2006).
 Purple Notes
EXCEPTIONS to the Public Solemnization:
1. At the point of death (articulo mortis);
2. In a remote place; or
3. When both of the parties requested in
writing, solemnization in some other place.
It must be stated in the sworn statement
(Navarro v. Judge Dumagtoy, AM No. MTJ-96-
1088, July 19, 1996).
b. Valid Marriage License (Articles 3[2], 9,
11,20, and 26, FC).
1. Marriage License must include the
following data
a. Full name of the contracting parties;
b. Place of birth;
c. Age and date of birth;
d. Civil status;
e. If previously married, how, when and
where the previous marriage was
dissolved or annulled;
f. Present residence or citizenship;
g. Degree of relationship of the contracting
parties;
h. Full name, residence and citizenship of
the father;
i. Full name, residence and citizenship of
the mother; and
j. Full name, residence and citizenship of
the guardian or person having charge, in
case the contracting party has neither
father nor mother and is under the age of
20 years old (Art. 11, FC).
2. Validity: Valid in any part of the Philippines
for a period of one hundred twenty (120)
days from date of issue. It is deemed
automatically cancelled at the expiration of
the said period (Art. 20, FC).
1. Place of Issuance:
a. If within the Philippines – in the local
civil registrar of the city or municipality
where either contracting party habitually
resides.
b. If outside the Philippines – in the office
of the consular officials.
 Under this rule, when a marriage between
Filipino citizens is performed abroad, the
Civil Law
2018 the
Filipino consular official shall discharge
duties of the LCR and of the solemnizing
official (Art. 10, FC).
Certificate of Compliance (RH LAW)
No marriage license shall be issued by the Local
Civil Registrar unless the applicants present a
Certificate of Compliance issued for free by the
local Family Planning Office certifying that they
had duly received adequate instructions and
information on responsible parenthood, family
planning, breastfeeding and infant nutrition (Sec.
15, The Responsible Parenthood and Reproductive
Health Act of 2012).
Special Requirements for Application of
Marriage License
a. Person previously married: (Art 13, FC)
1. Death certificate of deceased spouse;
and
 In case the death certificate cannot
be secured, the party shall make an
affidavit setting forth this
circumstance and his/her actual civil
status and name and date of death
of deceased spouse.
2. Judicial decree of annulment or
declaration of nullity of previous
marriage.
 Petition for cancellation of entries in the
marriage contract filed with the NSO,
specifically the entries in the wife portion
thereof on ground that the identity of the
petitioner is stolen is allowed (Republic v.
Olaybar G.R. No. 189538, Feb. 10, 2014).
b. Persons between 18 and 21 years old:
(Art 14, FC)
1. Parental consent of parents, guardian or
person exercising substitute parental
authority; and
2. Certificate of marriage counseling (Art
16, FC).
 Lack of Parental Consent – The
marriage is voidable (Art. 45[1], FC)
Bar Operations Commissions 21
 Purple Notes
Civil Law
c. Persons between 21 and 25 years old:
(Art 15, FC)
1. Parental advice of parents or guardian;
and
2. Certificate of marriage counseling issued
by:
a. Priest, imam or minister authorized
to solemnize marriage; or
b. Marriage counselor accredited by
proper government agency.
 Lack of Parental Advice or Marriage
Counseling – There is no effect on the
validity of marriage. However, the
issuance of the marriage license will be
suspended for a period of three
months from the completion of the 10-
day publication of the application for
marriage license (Art. 15 and 16, FC).
 Marriage Performed During the 3-
Month Period Without a License – The
marriage shall be void (Art. 17, FC)
 Marriage License Obtained During the
3-Month Prohibition – The marriage will
be valid subject to civil and criminal
liabilities on the part of the erring
party or parties. The issuing offices
shall be subjected to administrative
sanctions (Art. 17, FC).
d. Foreigners
When either or both parties are foreign
nationals: Certificate of legal capacity to contract
marriage, issued by a diplomatic or consular
official, shall be submitted before a marriage
license can be obtained (Art. 21, FC).
e. Stateless Persons or Refugees from
other Countries:
a. Affidavit stating circumstances showing
capacity to contract marriage; and
b. Marriage license issued only after the
completion of the 10-day publication of
application. (Art. 21, FC)
MARRIAGES EXEMPT FROM LICENSE
REQUIREMENT (Arts. 27, 28, 31 to 34, FC)
22 Center for Legal Education and Research
a. In Articulo mortis (Art 27, 31 & 32)
1. Either or both of the contracting parties
are at the point of death.
2. Marriage shall remain valid even if the
ailing party subsequently survives.
 A witness should sign the dying party‘s
signature if the latter be physically
unable to do so (Cruz v. Catandes, CA., 39
O.G. No. 18, p. 324).
b. In Remote Places (Art 28 & 29)
The residence of either party is located
where there is no means of transportation
to enable such party to appear personally
before the local civil registrar.
 There is no prescribed minimum or
maximum distance, unlike that in the
Civil Code.
Duty of the Solemnizing officer in items
―a‖ (articulo mortis) and ―b‖ (in remote
places):
1. State in an affidavit executed before the
local civil registrar or any other person
legally authorized to administer oaths that
the marriage was performed in (i) articulo
mortis ,or that (ii) the residence of either
party, specifying the barrio or barangay, is
so located that there is no means of
transportation to enable such party to
appear personally before the local civil
registrar;
2. The officer took the necessary steps to
ascertain the ages and relationship of the
contracting parties and the absence of legal
impediment to the marriage; (Art. 29, FC)
and
3. Send the affidavit stated above and the
marriage contract to the local civil registrar
of the municipality where it was performed
within the period of thirty days after the
performance of the marriage (Art. 30, FC).
Purpose of Affidavit:
For the purpose of proving the basis for
exemption from the marriage license. Even if
there is failure on the part of the solemnizing
 Purple Notes
officer to execute the necessary affidavit, such
irregularity will not invalidate the marriage, since
the affidavit is not required of the parties
(Soriano v. Felix, G.R. No. L-9005, June 20, 1958).
c. Cohabitation for at least 5 years (Art
34, FC)
Requisites:
1. The parties must have been living
together as husband and wife for at
least 5 years immediately before the
marriage (Ninal v Bayadog, G.R. No.
133778, March 14, 2000);
2. The parties must have no legal
impediment to marry each other;
3. The fact of absence of legal impediment
between the parties must be present at
the time of marriage; and
4. The parties must execute an affidavit
stating that they have lived together for
at least five years and are without legal
impediment to marry each other (Orja-
Manzano v. Sanchez, A.M. No. MTJ-00-1329,
March 8, 2008).
 The falsity of an affidavit of marital
cohabitation, where the parties have in
truth fallen short of the minimum five-
year requirement, effectively renders
the marriage void ab initio for lack of a
marriage license. It is the actual period
of cohabitation that is essential to the
validity of the affidavit of cohabitation
(Republic v. Dayot, G.R. No. 175581, March
28, 2008).
 The falsity of an affidavit of cohabitation
CANNOT be used as a defense in the
crime of bigamy, for it will be the height
of absurdity for the Court to allow the
accused to use her illegal act to escape
criminal conviction (Santiago v. People,
G.R. No. 200233, July 15, 2015).
 The five-year period should be a period
of cohabitation characterized by
exclusivity, meaning, no third party was
involved at any time within the five
years and it should be in the nature of a
perfect union that is valid under the law
but rendered imperfect only by the
absence of the marriage contract. (Ninal
Civil Law
2018
v. Bayadog, G.R. No. 133778, March 14,
2000.)
d. Solemnized outside the Philippines
where no marriage license is required
by the country where it is solemnized.
If the marriage was celebrated before the
diplomatic or consular officials of the
Republic of the Philippines in a foreign
country, marriage license is still required
(Art. 17, FC).
e. Marriages among Muslims or among
members of the ethnic cultural
communities, provided they are
solemnized in accordance with their
customs, rites or practices (Art. 33, FC).
C. Marriage Ceremony
No prescribed form or religious rite for the
solemnization of marriage is required (Art. 6, FC).
Minimum requirements prescribed by law:
1. Appearance of contracting parties personally
before the solemnizing officer (Art. 3, FC);
2. Personal declaration that they take each
other as husband and wife (Art. 3, FC);
3. Presence of at least two witnesses of legal
age; (Art. 3, FC)
4. The declaration shall be contained in the
marriage certificate; and (Art. 6, FC)
5. Marriage certificate shall be signed by the
contracting parties and their witnesses and
attested by the solemnizing officer (Art. 6,
FC).
In cases of Articulo Mortis, when the party is at
the point of death and cannot sign the Marriage
Certificate, it is sufficient that one of the
witnesses write the name of the party, which
will be attested by the solemnizing officer (Art. 6,
FC).
Civil Weddings during the Modified
Enhanced Community Quarantine
Civil weddings may be solemnized provided that:
2. The parties and guests shall not exceed 5;
3. Observance of health hygiene protocols and
other public medical standards (wearing of
face masks and face shields, subjecting
Bar Operations Commissions 23
 Purple Notes
Civil Law
everyone to no contact thermal scanning,
and observance of social distancing.
This rule is applicable during the declaration of
the MECQ in National Capital Region, Cebu City
and Laguna (Admin. Circular No. 39 s. 2020).
Validity of Marriage by Proxy (one where
the other party is merely represented by a
delegate or friend):
1. Not valid if celebrated in the Philippines
since the presence of the contracting parties
is required (Art. 6, FC).
2. Valid if celebrated abroad and valid there as
such (Art. 26, FC).
3. The marriage by proxy is deemed celebrated
at the place where the delegate or the proxy
appears.
Proofs of Marriage
Primary Evidence – The marriage contract or
certificate of marriage (Villanueva v. CA, G.R. No.
84464, June 21, 1991).
Marriage Certificate (Article 22, FC)
 A marriage certificate is not an essential or
formal requisite of marriage and without
which, the marriage remains valid. It is
merely a proof of marriage (Madridejo v. De
Leon, G.R. No. 32473, October 6, 1993).
 The best documentary evidence of a
marriage is the marriage contract or the
marriage certificate (Villanueva v. CA, G.R. No.
84464, June 21, 1991).
 There is a legal presumption that a man and
woman deporting themselves as husband
and wife have entered into a lawful contract
of marriage (Sec. 5 [bb], Rule 131 of the
Rules of Court), but may however be
rebutted by evidence showing that the
marriage did not actually take place
(Fernandez v. Puatdu, G.R. No. L-10071, October
31, 1957).
Secondary Evidence – If primary evidence is
not available.
a. Testimonies of witness to matrimony.
b. Couple‘s public and open cohabitation as
husband and wife after the alleged wedlock.
24 Center for Legal Education and Research
c. Birth / baptismal certificates of children born
during such union.
d. Mention of such nuptial in subsequent
documents (Trinidad v. CA, supra).
2. Marriages Celebrated Abroad (Article
26, FC)
General rule: Marriages solemnized outside the
Philippines in accordance with the law of a
foreign country shall be valid in the Philippines.
(Lex loci celebrationis)
Exceptions: The following foreign marriages
are considered void:
1. Marriages contracted by any party below
eighteen (18) years of age even with the
consent of parents or guardians (Art. 35 [1],
FC)
2. Bigamous or Polygamous Marriages not
falling under Art. 41 of the FC (Art. 35 [4],
FC)
 Art. 41, FC – in case the first spouse
was judicially declared dead and the
surviving spouse re-marry.
3. Mistake in Identity (Art. 35 [5], FC)
4. Subsequent marriage celebrated without the
court‘s annulment or decree of nullity of
prior marriage, partition of property and
delivery of presumptive legitime of children
in previous marriage being first registered
(Art 35 [6], FC)
5. Psychological incapacity (Art. 36, FC)
6. Incestuous marriages (Art. 37, FC)
7. Marriages void by reasons of public policy
(Art. 38, FC)
 Marriage celebrated without license and
Marriage by proxy are valid in the
Philippines if valid where celebrated, as they
are not among the exceptions and will not
contravene any public policy.
 Paragraph 2 of Article 26 of the Family Code
(E.O. No. 209, as amended by E.O. No.
227), should be interpreted to allow a
Filipino citizen, who has been divorced by a
spouse who had acquired foreign citizenship
and remarried, also to remarry. The
reckoning point is not the citizenship of the
parties at the time of the celebration of the
 Purple Notes
Civil Law
marriage, but their citizenship at the time a Requisites: 2018
valid divorce is obtained abroad by the alien
spouse capacitating the latter to remarry a. There is a valid marriage that has been
(Republic v. Orbecido III, G.R. No. 154380, celebrated between a Filipino citizen and a
October 5, 2005). foreigner; and
b. A valid divorce is obtained abroad
 With respect to same sex marriage capacitating the alien spouse and the
celebrated abroad involving citizens of the Filipino spouse to re-marry (Art. 26[2], NCC).
Philippines, the same shall not be
recognized as valid here in the Philippines  The party pleading it must prove the
even if such kind of marriage is valid in the divorce as a fact and demonstrate its
place of celebration (Rabuya, The Law on conformity to the foreign law allowing it.
Persons and Family Relations, 2006, p. 206) . It must be shown that the divorce
decree allows the former spouse to
As to Essential and Formal requisites of remarry as specifically required in Art.
Marriages celebrated abroad: 26 of the Family Code (Republic v.
Orbecido III, G.R. No. 154380, October 5,
Essential Requisites Formal Requisites 2005).
Inherent in the parties, Requirements
carried everywhere independent of the  Courts do not take judicial notice of
parties
foreign laws and foreign judgments;
Lex Nationalii – Laws Lex loci celebrationis –
thus, our laws require that the divorce
relating to family rights if valid where
and duties, or to the celebrated, then valid decree and the national law of the
status, condition and everywhere; forms of foreign spouse must be pleaded and
legal capacity of persons contracting marriage proved like any other fact before trial
are binding upon are to be regulated by courts (Racho vs. Tanaka, G.R. No. 199515,
Philippine citizens even the law where it is June 25, 2018 – penned by J. Leonen).
though living abroad [Art. celebrated. [Art. 16,
15, NCC] NCC]  The purpose of Paragraph 2 of Article
Foreign marriages void Foreign marriages may 26 of the Civil Code is to avoid the
under Philippine law due be void under absurd situation where the Filipino
to lack of an essential Philippine law due to
spouse remains married to the alien
requisite, even if valid absence of a formal
under foreign laws, will requisite under foreign
spouse who, after a foreign divorce
not be recognized. laws. decree that is effective in the country
where it was rendered, is no longer
3. Foreign Divorce married to the Filipino spouse.
Whether the Filipino spouse
Effect of Foreign Divorce initiated the foreign divorce
proceeding or not, a favorable decree
General rule: Divorce contemplates the dissolving the marriage bond and
dissolution of the lawful union for cause arising capacitating his or her alien spouse to
after the marriage. Absolute divorce is not remarry will have the same result: the
recognized in the Philippines (Tolentino, Civil Code Filipino spouse will effectively be without
of the Philippines, Vol. 1, 2004 ed). a husband or wife. A Filipino who
initiated a foreign divorce proceeding is
Exception: Where a marriage between a in the same place and in like
Filipino citizen and a foreigner is validly circumstance as a Filipino who is at the
celebrated and a divorce is thereafter validly receiving end of an alien initiated
obtained abroad by the alien spouse proceeding (Republic v. Manalo, G.R. No.
capacitating him or her to remarry, the Filipino 221029, April 24, 2018).
spouse shall have capacity to remarry under
Philippine law (Art. 26 [2], FC).

Bar Operations Commissions 25

 Purple Notes
Civil Law
Requirements to prove foreign marriage
1. The existence of the pertinent provision of
the foreign marriage law; and
2. The celebration and performance of the
marriage in accordance with the said law.
(Fujiki vs. Marinay G.R. No. 196049, June 26,
2013; Corpuz v. Sto. Tomas, G.R. No. 186571, 11
August 2010; Garcia v. Recio, G.R. No. 138322 -
October 2, 2001; Adong v. Cheong Seng Gee
Adong v. Cheong Seng Gee, G.R. No. 18081,
March 3, 1922)
4. Void Marriages
Those which are inexistent from the very
beginning. It is ipso facto void without need of
any judicial declaration of nullity unless for
purposes of remarriage. A judicial declaration of
its nullity is required before a subsequent
marriage can be contracted, otherwise, the
subsequent marriage is also void and may be
subjected to bigamy.
 A void marriage can be questioned even
after the death of either party (Ninal v.
Bayadog, G.R. No. 133778, March 14, 2000).
 The clause ―on the basis solely of a final
judgment declaring such marriage void‖ (Art.
40, FC) denotes that such final judgment
declaring the previous marriage void need
not be obtained only for purposes of
remarriage (Domingo v. CA, G.R. No. 104818,
Sept. 17, 1993).
The following are void marriages:
a. The absence of any of the essential or
formal requisites (Art. 35, FC)
1. Those contracted by any party below
eighteen years of age even with the
consent of parents or guardians (Art. 35
[1], FC);
2. Those solemnized by any person not
legally authorized to perform
marriages;
Exception: Unless such marriages were
contracted with either or both parties
believing in good faith that the
solemnizing officer had the legal
authority to do so (Art. 35 [2], FC);
26 Center for Legal Education and Research
3. Those solemnized without license,
except those covered in Chapter 2 of
the FC (Art. 35 [3], FC);
4. Those bigamous or polygamous
marriages not failing under Article 41
(Art. 35 [4], FC);
 Art. 41 – In case the first spouse
was judicially declared dead and the
surviving spouse remarry.
Technically a bigamous marriage
but the judicial declaration of
presumptive death allows the other
spouse to remarry.
5. Those contracted through mistake
of one of the contracting parties as
to the identity of the other (Art. 35 [5],
FC);
 Not applicable to mistake of
circumstances.
 The mistake in identity refers to the
actual physical identity of the other
contracting party (Rabuya, The Law
on Persons and Family Relations, 2006,
p. 213)
6. Those subsequent marriages under
Article 53 (Art. 35 [6], FC);
 In case one of the spouses, who
intend to re-marry, failed to register
the judgment of annulment or
declaration of absolute nullity of the
marriage, the partition and distribution
of the properties of the spouses, and
the delivery of the children‘s legitimes,
the subsequent marriage shall be void
(Art. 53, FC).
Other void marriages:
1. Marriages in a play, drama, or movie;
2. Marriages between two boys or two girls;
3. Marriages in jest;
4. Common law marriages;
5. Marriages between persons of the same sex,
even if celebrated abroad;
6. Marriages where parties merely signed a
marriage contract; and
7. Marriages where the parties did not
personally appear before the solemnizing
 Purple Notes
authority. (Paras, Persons and Family Relations
Vol. 1 p. 441)
b. Psychological Incapacity (Art. 36, FC)
A marriage contracted by any party, who,
at the time of the celebration, was
psychologically incapacitated to comply
with the essential marital obligations of
marriage, shall likewise be void even if
such incapacity becomes manifest only
after its solemnization (Art. 36, FC).
Psychological incapacity involves a SCRA 100, 108), nevertheless such root
senseless and protracted refusal to comply
with the essential marital obligations by
one or both of the spouses although he
and/or she is physically capable of
performing such obligation (Chi Ming Tsoi v.
CA, G.R. No. 119190, January 16, 1997).
Marital obligations are provided for in Art.
68 of the FC which provides ―the husband
and wife are obliged to live together,
observe mutual love, respect and fidelity,
and render mutual help and support.‖
Molina Guidelines
1. The burden of proof to show the nullity of
the marriage belongs to the plaintiff. Any
doubt should be resolved in favor of the
existence and continuation of the marriage
and against its dissolution and nullity. This is
rooted in the fact that both our Constitution
and our laws cherish the validity of marriage
and unity of the family. Thus, our
Constitution devotes an entire Article on the
Family, recognizing it "as the foundation of
the nation." It decrees marriage as legally
"inviolable," thereby protecting it from
dissolution at the whim of the parties. Both
the family and marriage are to be
"protected" by the state.
The Family Code echoes this constitutional
edict on marriage and the family and
emphasizes their permanence, inviolability
and solidarity.
2. The root cause of the psychological
incapacity must be: (a) medically or clinically
identified, (b) alleged in the complaint, (c)
sufficiently proven by experts and (d) clearly
explained in the decision. Article 36 of the
Family Code requires that the incapacity
Civil Law
must be psychological - not 2018physical,
although its manifestations and/or
symptoms may be physical. The evidence
must convince the court that the parties, or
one of them, was mentally or psychically ill
to such an extent that the person could not
have known the obligations he was
assuming, or knowing them, could not have
given valid assumption thereof. Although
no example of such incapacity need be
given here so as not to limit the application
of the provision under the principle of
ejusdem generis (Salita v. Magtolis, 233
cause must be identified as a psychological
illness and its incapacitating nature fully
explained. Expert evidence may be given by
qualified psychiatrists and clinical
psychologists.
3. The incapacity must be proven to be
existing at "the time of the celebration" of
the marriage. The evidence must show that
the illness was existing when the parties
exchanged their "I do's." The manifestation
of the illness need not be perceivable at
such time, but the illness itself must have
attached at such moment, or prior thereto.
4. Such incapacity must also be shown to be
medically or clinically permanent or
incurable. Such incurability may be absolute
or even relative only in regard to the other
spouse, not necessarily absolutely against
everyone of the same sex. Furthermore,
such incapacity must be relevant to the
assumption of marriage obligations, not
necessarily to those not related to marriage,
like the exercise of a profession or
employment in a job. Hence, a pediatrician
may be effective in diagnosing illnesses of
children and prescribing medicine to cure
them but may not be psychologically
capacitated to procreate, bear and raise
his/her own children as an essential
obligation of marriage.
5. Such illness must be grave enough to bring
about the disability of the party to assume
the essential obligations of marriage. Thus,
"mild characteriological peculiarities, mood
changes, occasional emotional outbursts"
cannot be accepted as root causes. The
illness must be shown as downright
incapacity or inability, not a refusal, neglect
or difficulty, much less ill will. In other
Bar Operations Commissions 27
 Purple Notes
Civil Law
words, there is a natal or supervening
disabling factor in the person, an adverse
integral element in the personality structure
that effectively incapacitates the person
from really accepting and thereby complying
with the obligations essential to marriage.
6. The essential marital obligations must be
those embraced by Articles 68 up to 71 of
the Family Code as regards the husband and
wife as well as Articles 220, 221 and 225 of
the same Code in regard to parents and
their children. Such non-complied marital
obligation(s) must also be stated in the
petition, proven by evidence and included in
the text of the decision.
7. Interpretations given by the National
Appellate Matrimonial Tribunal of the
Catholic Church in the Philippines, while not
controlling or decisive, should be given great
respect by our courts. (Azcueta vs Republic
G.R. No. 180668, May 26, 2009; Republic v.
Molina, G.R. No. 108763, February 13, 1997).
Characteristics of Psychological Incapacity
(Dimayuga-Lawrence v. CA, G.R. No. 159220,
September 22, 2008)
1. Gravity: Incapacity must be grave or
serious that the party would be incapable of
carrying out the ordinary duties required in
marriage. Illness must be grave enough to
bring about the disability of the party to
assume the essential obligations of
marriage. Illness must be shown as
downright incapacity or inability (not refusal
or neglect or difficulty or ill will) (Amy Perez-
Ferraris v. Brix Ferraris, G.R. No. 162368, July
17, 2006)
2. Juridical Antecedence: Incapacity must
be rooted in the history of the party
antedating the marriage, although the overt
manifestations may emerge only after
marriage (Republic v. Molina, G.R. No. 108763,
February 13, 1997).
3. Incurability: must be incurable or even if it
was otherwise, they would be beyond the
means of the party involved. Incapacity
must be shown to be medically or clinically
permanent or incurable. Such incurability
may be absolute or even relative only in
regards to the other spouse, not necessarily
absolutely against every one of the same
sex (Santos v. CA, G.R. No. 112019, January 4,
1995).
28 Center for Legal Education and Research
 Mere showing of ―irreconcilable
differences‖ and ―conflicting
personalities‖ in no wise constitutes
psychological incapacity. It is enough to
prove that the parties failed to meet
their responsibilities and duties as
married persons. It is essential that it
must be shown to be incapable of doing
so, due to some psychological, not
physical illness (Republic v. CA, G.R. No.
108763, February 13, 1997).
 Mere abandonment and lack of desire to
communicate cannot qualify as the
spouse as psychologically incapacitated
(Santos v. CA, G.R. No. 112019, January 4,
1995).
 The senseless and protracted refusal of
one of the contracting parties of sexual
intercourse for the procreation of
children is equivalent to psychological
incapacity (Chi Ming Tsoi v. CA, G.R. No.
119190, January 16, 1997).
 If a psychological disorder can be
proven by independent means, no
reason exists why such independent
proof cannot be admitted and given
credit. Insensitivity, sexual infidelity,
emotional immaturity, and
irresponsibility, do not by themselves
warrant a finding of psychological
incapacity under Art. 36 of the FC
(Agraviador v. Amparo-Agraviador, G.R. No.
170729, December 8, 2010).
c. Incestuous Marriage (Art. 37, FC):
Marriages are void even if celebrated abroad
between these parties, whether their
relationship is legitimate or illegitimate:
1. Between ascendants and descendants of
any degree; and
2. Between brothers and sisters, whether of
full or half-blood.
d. Void Marriages by Reason of Public
Policy (Art 38, FC):
1. Between collateral blood relatives
whether legitimate or illegitimate, up to
the fourth civil degree;
2. Between step-parents and step-children.
 Purple Notes
 The prohibition still applies even
after the termination of the
marriage which is the very source of
affinity, regardless of the cause of
such termination. On the other
hand, marriage between step-
brothers and step-sisters is no
longer prohibited (Rabuya, Civil Law
Reviewer Vol. 1, 2017, p. 92).
3. Between parents-in-law and children-in-
law;
 The prohibition still applies even
after the termination of the
marriage which is the very source of
affinity, regardless of the cause of
such termination (Rabuya, Civil Law
Reviewer Vol. 1, 2017, p. 92).
4. Between the adopting parent and the
adopted child;
5. Between the surviving spouse of the
adopting parent and the adopted child;
6. Between the surviving spouse of the
adopted child and the adopter;
7. Between an adopted child and a
legitimate child of the adopter;
8. Between adopted children of the same
adopter; and
9. Between parties where one, with the
intention to marry the other, killed that
other person's spouse, or his or her own
spouse.
 The marriage is void even if the
surviving spouse does not conspire
in killing his/her spouse. The
primary intention must be to marry
the surviving spouse. No conviction
is required (Rabuya, Civil Law Reviewer
Vol. 1, 2017, p. 94).
The following can now marry each other:
1. Brother-in-Law and sister-in-Law;
2. Stepbrother and stepsister;
3. Guardian and ward;
4. Parties who have been convicted of adultery
and concubinage; and
5. Adopted and illegitimate child, parents and
relatives by consanguinity and affinity of the
adopter; and
6. Collateral relatives by the half blood.
Civil Law
2018
e. Subsequent Marriages that are Void
Void Marriages under Article 40, FC
Under Art. 40, when a party failed to secure a
judicial declaration of nullity of the prior
marriage before contracting a subsequent
marriage, the subsequent marriage is also void
and is liable for the crime of bigamy.
Judicial declaration of nullity of a void marriage
is necessary only when a marriage, although
void, had taken place, otherwise, Article 40 will
not apply. In the case at bar, no marriage
ceremony was performed by a duly authorized
solemnizing officer, hence since no marriage
took place, Art. 40 will not apply, nor the parties
be held liable for bigamy (Morigo v People, 422
G.R. No. 145226, February 6, 2004).
Bigamous Marriages
General rule: A marriage contracted by any
person during the subsistence of a previous
valid marriage shall be null and void (Art. 41, FC).
Exception: Unless the requisites for the
Declaration of Presumptive Death concur (Please
see discussion under ―Absence‖) and the
present spouse secured a judicial declaration of
presumptive death before contracting a
subsequent marriage.
It is not necessary for the absent spouse to be
declared an absentee, and that the only purpose
of the declaration of absence is for the proper
administration of the estate of the absentee
(Jones v. Hortinguela, G.R. No. L-43701, March 6,
1937).
Issuance of a marriage license to a widow
No marriage license shall be issued to a widow
till after 300 days following the death of the
husband, unless in the meantime she has given
birth to a child (Art. 84, NCC).
Effect of Reappearance
General Rule: The subsequent marriage is
automatically terminated and without need
of a judicial proceeding, by recording the
Affidavit of Reappearance in the civil
registry
Bar Operations Commissions 29
 Purple Notes
Civil Law
EXCEPTION: Unless the previous marriage has
been annulled or declared void ab initio (Art. 42
[1], FC).
Failure to Execute and Record the Affidavit
of Reappearance. Mere reappearance of the
absentee spouse, EVEN IF made known to the
present spouse, will NOT terminate the
subsequent marriage IF no step is taken to
terminate the subsequent marriage, either by
recording the affidavit or by court action. Since
the second marriage has been contracted
because of a presumption that the former
spouse is dead, such presumption continues in
spite of the spouses‘ physical reappearance, and
by fiction of law, he or she must still be
regarded as legally an absentee until the
subsequent marriage is terminated as provided
by law (SSS v Jarque Vda de Bailon, G.R. No.
165545, March 24, 2006).
4. Parties are liable for the crime of bigamy
(Rabuya, The Law on Persons and Family
Relations, 2006, p. 293).
Failure to comply with Art. 52 of the FC
(Art. 53, FC)
The judgment of annulment or of absolute
nullity of the marriage, the partition and
distribution of the properties of the spouses and
the delivery of the children's presumptive
legitimes shall be recorded in the appropriate
civil registry and registries of property;
otherwise, the same shall not affect third
persons.
 The action or defense for the declaration of
absolute nullity of marriage shall not
prescribe (Art. 39, FC).
Distinction between a void and voidable
marriage

Both Spouses to the Subsequent Marriage VOID MARRIAGE VOIDABLE MARRIAGE

is in Bad Faith (Art. 44, FC) Status of marriage
Void ab initio Valid until annulled
Requisites: Petition filed
Declaration of Nullity of Annulment of Marriage
Marriage
1. Prior spouse had been absent for four
Who may file
consecutive years, or two years where there
General Rule: Solely by General Rule:
is danger of death under Art. 391, New Civil the husband or wife. Offended Spouse
Code at the time of disappearance;
2. The present spouse has obtained a judicial Exceptions: Any real Exceptions:
declaration of presumptive death; and party in interest, only in
3. Both the present spouse and the second the following cases: 1. Parents or guardians
spouse acted in bad faith, meaning, they in cases of insanity;
knew at the time of subsequent marriage, 1. Nullity of marriage or
the absentee spouse is still alive (Rabuya, cases commenced 2. Parents or guardians
The Law on Persons and Family Relations, 2006, before the effectivity before the party
of A.M. No. 02-11- reaches 21 years old
p. 292).
10- March 15, 2003. on the ground of
2. Marriages celebrated Lack of Parental
Effects: during the effectivity Authority.
of the Civil Code (De
1. The subsequent marriage is void ab initio Dios Carlos v.
(Art. 41, FC); Sandoval, G.R. No.
2. All donations by reason of marriage and 179922, December
testamentary dispositions made by one in 16, 2008).
favor of the other are revoked by operation Prescriptive Period
of law (Art. 43 [3], FC); No prescriptive period General Rule: Within 5
years from discovery of
3. Testamentary dispositions made by one in
the ground.
favor of the other are revoked by operation
of law (Art. 43 [5], FC); and Exception:
1. Lifetime of spouse in
cases of insanity;

30 Center for Legal Education and Research

 Purple Notes
Civil Law
2. Before the party 2018by a
the guilty spouse
reaches 21 in cases previous marriage or in
where parents or default of children, the
guardians may file innocent spouse.
annulment. Donations by reason of If the donee contracted
Judicial Declaration marriage shall remain the marriage in bad
General Rule: Not Necessary valid. faith, such donations
necessary made to said donee are
revoked by operation of
Exception: In case of law.
remarriage The innocent spouse
may revoke the
5. Voidable Marriages designation of the other
Voidable marriage is considered valid and spouse who acted in
bad faith as beneficiary
produces all its civil effects, until it is set aside
in any insurance policy,
by final judgment of a competent court in an even if such designation
action for annulment (Suntay v. Cojuangco-Suntay, be stipulated as
G.R. No. 183053, October 10, 2012). irrevocable.
The spouse who
Generally, defects of a voidable marriage can contracted the
be ratified by free cohabitation or prescription. subsequent marriage in
bad faith shall be
Exceptions: The following defects are not disqualified to inherit
subject to ratification: (i) impotency which from the innocent
spouse by testate and
appears to be incurable; and (ii) STD that is
intestate succession.
found to be serious and incurable. These
defects, however, may be subjected to
Grounds, Art. 45, FC (must exist at the
prescription (Ninal v. Bayadog, G.R. No. 133778,
time of marriage):
March 14, 2000).
1. Absence of parental consent (required
The marriage shall be annulled for the
when party is at least 18 but below 21 years
following reasons: (NUFFIS)
of age under Art. 14, FC);
1. Non-age (below 18)
 Father, mother, surviving parent or
2. Unsoundness of mind
guardian, or persons having legal
3. Fraud (as defined in Art. 46, FC)
charge of the party must give consent.
4. Force, intimidation, or undue influence
However, if the child is illegitimate,
5. Impotence
consent of the mother is required since
6. STD
it is under the latter‘s parental authority.
Effect of Termination of Subsequent
Marriage (Art. 43, FC) 2. Unsoundness of mind
Good Faith Bad Faith
Children of the subsequent marriage conceived  The sane spouse can file an action for
prior to its termination shall be considered annulment ONLY if he/she has no
legitimate. knowledge of the other spouse‘s insanity
The absolute If either spouse is in at the time of marriage, otherwise, only
community of property bad faith, his or her the insane or the latter‘s relatives may
or the conjugal share of the net profits file an action for annulment.
partnership, as the case of the community
may be, shall be property or conjugal
 The marriage may be ratified by the
dissolved and partnership property
liquidated. shall be forfeited in insane party, after coming to reason,
favor of the common freely cohabited with the other party
children or, if there are (Art. 45[2], FC).
none, the children of

Bar Operations Commissions 31

 Purple Notes
Civil Law
 The true test is whether the party
concerned could intelligently consent;
that is, he knew what contract he is
entering into (Hoadley v. Hoadley, 244 N.Y.
424).
 Intoxication, Somnambulism at the time
of the wedding, and drug addiction
which results in lack of capacity to give
consent is equivalent to unsoundness of
mind (McKnee v. McKnee, 49 Nev. 90; See
also 15 Sanches Roman 528).
 A person is presumed to be of sound
mind at any particular time and the
condition is presumed to continue to
exist, in the absence of proof to the
contrary (Mendezona v. Osamiz, G.R. No.
143370, February 6,2002; See also 29 Am
Jur 2d Evidence § 295; Norwood v.
Norwood, 207 Ga 148, 60 SE2d 449).
3. Fraud: Non-disclosure or concealment of
certain circumstances when materiality can
affect the essence of marriage (Rabuya, The
Law on Persons and Family Relations, 2006, p.
303).
Circumstances Constituting Fraud in
Marriage (Art. 46, FC)
a. Non-disclosure of a previous conviction by
final judgment of the other party of a crime
involving moral turpitude.
Moral turpitude is any act done contrary
to justice, honesty, principle or good morals;
or an act of baseness, vileness or depravity
in private and social duties which a man
owes to his fellowmen or to society in
general, contrary to the accepted and
customary rule of right and duty between
man and man (Rabuya, The Law on Persons
and Family Relations, 2006, p. 304).
No other misrepresentation as to character,
health, rank, fortune or chastity shall
constitute such fraud as will give grounds
for an action for the annulment of marriage
(Art. 46 [2], FC)
Non-disclosure of a husband‘s pre-marital
relationship with another woman is not one
of the enumerated circumstances that would
constitute a ground for fraud (Anaya v.
32 Center for Legal Education and Research
Palaroan, G.R. No. L-27930, November 26,
1970).
b. Concealment by the wife of the fact that at
the time of the marriage, she was pregnant
by a man other than her husband (Rabuya,
The Law on Persons and Family Relations, 2006,
p. 305).
 If the woman did not expressly inform
the man of her pregnancy, but such
physical condition was readily apparent
to the man (seven months pregnant),
he cannot claim lack of knowledge of
such pregnancy (Buccat v. Buccat, G.R.
No. 47101, April 25, 1941).
 Even if the wife is pregnant with
another man at the time of celebration
of the marriage, the marriage cannot be
annulled because the husband knew of
such fact. In the case, the present
condition of the woman was already
evident at the time of marriage (Buccat
v. Buccat, G.R. No. 47101, April 25, 1941).
c. Concealment of sexually transmissible
disease (STD), regardless of its nature,
existing at the time of the marriage.
d. Drug addiction:
Requisites for Annulment due to Drug
Addiction:
1. Existing at the time of the celebration of
the marriage;
2. Continuous;
3. Appears to be incurable;
4. Unknown to the other spouse at the
time of marriage; and
5. The case is filed within 5 years from
discovery.
Note: The enumeration in Art. 46, FC is
exclusive.
4. Consent was obtained by force,
intimidation or undue influence;
Force – must be one as to prevent the
party from acting as a free agent. His free
will is destroyed by fear or compulsion.
 Purple Notes
Civil Law
Intimidation – one of the contracting longer possible (People v. 2018
Ablog, G.R.
parties is compelled, by a reasonable and No. 125005, June 28, 1999).
well-grounded fear of an imminent and
grave evil upon the person or property or Doctrine of Triennial Cohabitation: If the
upon those of his wife still remains a virgin after living together
spouse/descendant/ascendant to give with her husband for three years, the
consent. presumption is that the husband is impotent,
and he will have to overcome this
Undue influence – a person takes presumption (Tompkins v. Tompkins, 92 N.J. Eq.
improper advantage of his power over the 113, 11 Atl. 599).
will of another, depriving him of a
reasonable freedom of choice. Relative Impotency as Ground for
Annulment: When a man may not be able
Requisites for Duress: to have penile erection with his wife but can
have it with another woman (Tompkins v.
1. It must be the determining cause of the Tompkins, 92 N.J. Eq. 113, 11 Atl. 599).
contract;
2. It is unjust or unlawful; Refusal to be examined by the husband
3. It is serious or grave; and or wife: Refusal on the part of the man to
4. It must produce a reasonable and well- submit himself to physical examination raises
grounded fear from the fact that the the presumption of impotence (Keezer on
person who employed it has the Marriage and Divorce, pp. 480-481). However,
necessary means to inflict the refusal by the wife does not raise such
threatened injury. presumption because of the natural modesty
 A threat to enforce one‘s claim through of our native girls. (Jimenez v. Cañizares, G.R.
competent authority, if the claim is just No. L-12790, August 31, 1960)
or legal, does not vitiate consent (Art.
1335, NCC) 6. Sexually transmitted disease, if
incurable
5. Impotence or impotentia copulandi
It must be continuing and incurable physical Requisites:
incapacity of consummating the marriage
from the time of marriage up to the time of 1. It must have existed at the time of the
filing a petition for annulment. This refers to celebration of the marriage
the physical inability to perform the act of 2. It is serious and appears to be incurable
sexual intercourse. 3. Unknown to both parties at the time of
the marriage (Rabuya, The Law on Persons
The action must be brought by the potent and Family Relations, 2006, p. 311).
spouse, and such spouse must be unaware STD: ART. 45 vs. ART. 46
of the other‘s impotency (Kazeer, p. 478).
ARTICLE 45 ARTICLE 46
 If both parties are impotent, the (Sexually (Sexually Transmitted
marriage cannot be annulled because no Transmitted Disease)
one is aggrieved (Sarao v. Guevara [CA], Disease)
40 O.G. [1st Sup] 263) Ground for annulment The STD is a type of fraud
 The test is not the capacity to which is a ground for
reproduce, but the capacity to copulate annulment
(Menciano v. San Jose, G.R. No. L-1967, May Does not have to be Must be concealed
28, 1951). concealed
Must be serious and Need not be serious nor
 The advance age of a person did not incurable incurable
The STD itself is the It is the concealment that
mean that sexual intercourse is no
ground for annulment gives rise to the annulment

Bar Operations Commissions 33

 Purple Notes
Civil Law

Prescription of Action for Annulment (Art. 47, FC)

GROUND PERSON WHO MAY FILE PRESCRIPTION CONVALIDATION OR

Absence of parental By the spouse whose
consent (require parent or guardian did not
when party is at least give his or her consent;
18 but below 21 under By the parent or guardian
Art. 14, FC) who did not give consent
Unsoundness of By the sane spouse who
mind; had no knowledge of the
other‘s insanity;
Any relative or guardian or
person having legal charge
of the insane
By the insane spouse
Fraud By the injured party
Force, intimidation By the injured party
or undue influence;
Impotence By the injured party
Sexually By the injured party
transmitted disease
RATIFICATION
Within 5 years from Free cohabitation after
attaining the age of 21; reaching 21
At any time before the
minor has reached the
age of 21
At any time before the Free cohabitation after insane
death of either spouse regains sanity
During lucid interval or
after regaining sanity
Within 5 years after the Free cohabitation after
discovery of fraud knowledge of fraud.
Within 5 years from the Free cohabitation after cause
time the force, has disappeared.
intimidation or undue
influence disappeared or
ceased
Within 5 years after Cannot be ratified, but action
marriage prescribes.
Within 5 years after Cannot be ratified, but action
marriage prescribes.

 Marriage cannot be annulled by means of summary proceedings (Jacson v. Robles, G.R. No. L-23433,
February 10, 1963).

Presence of Prosecutor

In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the
prosecuting attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent
collusion between the parties and to ensure that evidence is not fabricated or suppressed.

The attorney‘s fees and other expenses in annulment cases are paid by:
1. Absolute community of property if the action prospers;
2. Whoever brought the action if the marriage is not annulled (Art. 48, FC).

Center for Legal Education and Research

34
 Purple Notes
Pendency of Action
In the absence of adequate provisions:
A written agreement between the spouses, the
Court shall provide for:
a. Support of the spouses;
b. Custody and support of the common
children; and
c. Appropriate visitation rights of the other
parent (Art. 49, FC).
Paramount Considerations of the court
are:
a. Moral and material welfare of the children;
and
b. Children‘s choice of the parent with whom
they wish to remain.
EFFECTS OF FINAL JUDGMENT OF
NULLITY/ANNULMENT OF MARRIAGE
Status of Children Born under Void
Marriages
Generally, children conceived and born outside
a valid marriage are illegitimate. Hence, children
born of void marriages are considered
illegitimate (Art. 50, FC).
Exceptions:
1. Children conceived or born before the
judgment of annulment or absolute nullity of
the marriage under Article 36 has become
final and executory shall be considered
legitimate (Art. 54, FC).
2. Children conceived or born of the
subsequent marriage under Article 53 shall
likewise be legitimate (Art. 54; Art. 53, FC).
Other Effects:
1. The absolute community of property or the
conjugal partnership, as the case may be,
shall be dissolved and liquidated.
2. If either spouse contracted said marriage in
bad faith, his or her share of the net profits
of the community property or conjugal
partnership property shall be forfeited in
favor of the common children or, if there are
none, the children of the guilty spouse by a
Civil Law
2018
previous marriage or in default of children,
the innocent spouse.
3. Donations by reason of marriage shall
remain valid, except that if the donee
contracted the marriage in bad faith, such
donations made to said donee may be
revoked by the donor.
4. The innocent spouse may revoke the
designation of the other spouse who acted
in bad faith as beneficiary in any insurance
policy, even if such designation be stipulated
as irrevocable (Art. 43 [4], FC).
5. The spouse who contracted the subsequent
marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate
and intestate succession (Art. 43. [5]).
6. The marriage that is void ab initio is
considered as having never to have taken
place. As such, the judicial declaration of the
nullity of the marriage retroacts to the date
of the celebration of the marriage (Morigo v
People, 422 G.R. No. 145226, February 6, 2004).
7. In case of annulment of marriage, and the
wife is the guilty party, she shall resume her
maiden name and surname. If she is the
innocent spouse, she may resume her
maiden name and surname. However, she
may choose to continue employing her
former husband's surname, unless:
1. The court decrees otherwise, or
2. She or the former husband is married
again to another person (Art. 371, CC).
The final judgment in such cases shall
provide for the following:
1. Liquidation – all creditors of the spouses,
the absolute community of property, or the
conjugal partnership shall be notified;
2. Partition (conjugal dwelling and the lot on
which it is situated, shall be adjudicated
with the provision of Articles 102 and 109);
3. Distribution of the properties of the spouses
4. Custody and support of the common
children
5. Delivery of presumptive legitimes, unless
such matters had been adjudicated in
previous judicial proceedings.
Exception: Unless such matter has been
adjudicated in previous proceedings (Art. 50, FC).
Bar Operations C ommissions 35
 Purple Notes
Civil Law
Effect of partition provided for in the  It is clear from Article 50 of the Family Code
judicial decree in the annulment or nullity that Section 19(1) of the Rule applies only
of marriage to marriages which are declared void ab
initio or annulled by final judgment under
Delivery shall not prejudice successional rights Articles 40 and 45 of the Family Code.
of children accruing upon the death of either or In short, Article 50 of the Family Code does
both parents. The value already received under not apply to marriages which are declared
the decree of annulment is considered as an void ab initio under Article 36 of the Family
advance on the legitime (Art. 51, FC). Code, which should be declared void without
waiting for the liquidation of the properties
Value of partition of presumptive legitimes of the parties (Diño vs. Diño, G.R. No. 178044,
- In said partition, the value of the presumptive January 19, 2011).
legitimes of all common children are computed
as of the date of the final judgment of the trial  Thus, the requirement of a decree of
court, and shall be delivered in: absolute nullity or a decree of annulment is
only required for cases covered under Article
1. Cash; 40 and Article 45 of the Family Code (Id.).
2. Property; or
3. Sound securities. Distinction between Annulment and Legal
4. This is unless the parties, by mutual Separation
agreement judicially approved, had already
provided for such matters (Art. 51, FC). ANNULMENT LEGAL SEPARATION
The marriage was There was no defect in
Effect of partition provided for in the defective at the very the marriage at the
beginning beginning
judicial decree in the annulment or nullity
The cause for The cause for legal
of marriage
annulment must already separation arises after
be existing at the time the marriage
Delivery shall not prejudice successional rights of marriage celebration
of children accruing upon the death of either or There are seven There are 10 grounds
both parents. The value already received under grounds for annulment for legal separation
the decree of annulment is considered as an Annulment dissolves the The marriage remains;
advance on the legitime (Art. 51, FC). marriage bond; the the parties are not
parties are free to allowed to remarry
Effect of Non-Registration marry again
From PIL, the grounds From PIL, the grounds
are generally given in are those given by
Either of the former spouses may marry again
the lex loci celebrationis national law
after compliance with the requirements of
registering the (i) judgment of annulment or 6. Unmarried Cohabitation
absolute nullity of marriage, (ii) the partition and
distribution of properties, and (iii) delivery of the Common law marriage is one where the
children‘s presumptive legitimes, in the man and the woman just live together as
appropriate civil registry or registries of husband and wife without getting married.
property, otherwise, the subsequent marriage In the Philippines, its validity will depend on
shall be null and void (Arts. 52 and 53, FC). the personal law of the parties and the place
where the relationship began.
NOTES:
D. LEGAL SEPARATION
 A.M. No. 02-11-10, which took effect on
March 15, 2003, provides that the court will Legal separation is merely the separation of
only issue a decree of absolute nullity or spouses from bed and board (Art. 65, FC). While
decree of annulment after compliance it permits the partial suspension of marital
with Article 50 and 51 of the Family Code relations, the marriage bond still exists as the
(Sec. 19 [1]).

36 Center for Legal Education and Research

 Purple Notes
marital bonds are not severed as in the case of
annulment or petition for nullity.
Two kinds of Divorces:
1. Absolute Divorce (divorce a vincula
matrimonii) – marriage is dissolved;
2. Relative Divorce or legal separation
(divorce a mensa et thoro) – marriage is
not dissolved; here, the parties are merely
separated from bed and board (Garcia-Recio
v. Recio, G.R. No. 138322, October, 2, 2001).
If the action for Absolute Divorce is brought
here in the Philippines:
1. Between Filipinos – will not prosper
2. Between foreigners – will not prosper
3. Between a Filipino and a foreigner – will not
prosper
If the action is brought in a foreign country:
1. Between Filipinos – will not be recognized
here even if allowed in the foreign country,
and even if the ground be either adultery on
the part of the wife or concubinage on the
part of the husband;
2. Between foreigners – recognized as valid by
the personal law of the parties involved, that
is, if valid according to the national law or
the law of their domicile depending upon
the theory adopted by their countries (Recto
v. Harden, G.R. No. L-6897, November 29,
1956).
3. Between a Filipino and a foreigner – if
obtained by either the foreigner or the
Filipino and valid according to his personal
law or the Filipino, it is valid for both the
foreigner and Filipino (Republic v. Manalo, G.R.
No. 221029, April 24, 2018).
Legal Separation v. Separation of Property
Legal Separation Separation of Property
Must be done 1. If one prior to marriage
through the court – may be done through
the marriage
Note: An settlement.
extrajudicial 2. If done during the
agreement to existence of the
separate is VOID marriage- must be
(Art. 221, NCC) done through the
courts
Civil Law
Always involves
2018
May exist with or without
separation of legal separation
property
May be considered, May be considered, in a
in a sense, as a sense, as one of the
cause of separation effects of legal separation
of property (Art. 63 FC)
The spouses are The spouses are not
necessarily necessarily separated
separated
1. Grounds: (Art. 55, FC)
a. Repeated physical violence or grossly
abusive conduct directed against the
petitioner, a common child, or a child of the
petitioner;
1) If the physical violence is directed
against the wife, a common child or a
child of the wife, the same is also
punishable under R.A. 9262, otherwise
known as the ―Anti-Violence Against
Women and Their Children Act of 2004‖
2) Violence need not be physical; it is
submitted that psychological and sexual
violence and repeated verbal abuse may
qualify as grossly abusive conduct
(Rabuya, The Law on Persons and Family
Relations, 2006, p. 352).
3) ―Psychological violence" refers to
acts or omissions causing or likely to
cause mental or emotional suffering of
the victim such as but not limited to
intimidation, harassment, stalking,
damage to property, public ridicule or
humiliation, repeated verbal abuse and
mental infidelity. It includes causing or
allowing the victim to witness the
physical, sexual or psychological abuse
of a member of the family to which the
victim belongs, or to witness
pornography in any form or to witness
abusive injury to pets or to unlawful or
unwanted deprivation of the right to
custody and/or visitation of common
children (Sec. 3 [c], R.A. 9262).
b. Physical violence or moral pressure to
compel the petitioner to change religious or
political affiliation;
Moral pressure must be directed against the
petitioner-spouse. If the same is directed on
a common child or child of the petitioner-
Bar Operations C ommissions 37
 Purple Notes
Civil Law
spouse to compel the said child to change
religious or political affiliation, there is no
ground for legal separation (Rabuya, The Law
on Persons and Family Relations, 2006, p.351)
3. Attempt of respondent to corrupt or induce
the petitioner, a common child, or a child of
the petitioner, to engage in prostitution, or
connivance in such corruption or
inducement;
 It pertains to a common child or the
petitioner’s child, and not the
respondent‘s child.
4. Final judgment sentencing the respondent
to imprisonment of more than six years,
even if pardoned;
 Conviction must occur after the
celebration of the marriage. If
respondent is convicted in a final
judgment prior thereto, it is a ground
for annulment if the crime involves
moral turpitude and the fact of
conviction is not disclosed to the other
party (Rabuya, The Law on Persons and
Family Relations, 2006, p. 353).
5. Drug addiction or habitual alcoholism of the
respondent;
Requisites:
a. There should be no condonation or
consent to the drug addiction;
b. The action must be filed within 5 years
from the occurrence of the cause;
c. Drug addiction arises during the
marriage and not at the time of
marriage.
 If such is present at the time of
marriage and was concealed from
the other party, it shall constitute as
a ground for annulment (Art.46 [4],
FC).
6. Lesbianism or Homosexuality of the
respondent;
7. Contracting by the respondent of a
subsequent bigamous marriage, whether in
the Philippines or abroad;
38 Center for Legal Education and Research
The subsequent marriage is void ab initio
but it does not affect the validity of the prior
marriage. Hence, the remedy of the
aggrieved party in the prior marriage is legal
separation (Rabuya, The Law on Persons and
Family Relations, 2006, 354).
8. Sexual infidelity or perversion;
Sexual infidelity need not be in the form
of adultery or concubinage (Rabuya, The Law
on Persons and Family Relations, 2004, p. 355).
Sexual perversion includes all unusual or
abnormal sexual practices which may be
offensive to the feelings or sense of decency
of either the husband or the wife (Tolentino,
Persons and Family Relations, 1990, p. 323).
9. Attempt by the respondent against the life
of the petitioner; or
 There must be an ―intent to kill‖ and
must not be justified or excused, as in
the case of legitimate self-defense.
10. Abandonment of petitioner without
justifiable cause for more than one year.
 These grounds for legal separation are
exclusive.
Proof needed
Mere preponderance of evidence, will suffice to
prove the existence of any of the grounds,
although in Final Judgment sentencing the
respondent to imprisonment of more than 6
years, even if pardoned, previous conviction is
essential, in view of the necessity of ―Final
Judgment. ‖ (Paras, Civil Code of the Philippines
Annotated Vol. 1, 2008, p. 543).
2. Defenses for Denying Legal Separation
(Art. 56, FC)
a. Aggrieved party has condoned the offense
or act complained of;
Condonation – conditional forgiveness or
remission, by a husband or wife, of a
matrimonial offense which the other has
committed (Rabuya, The Law on Persons and
Family Relations, 2006, p. 357).
 Purple Notes
 The act of giving money to an erring
wife and the fact that no action was
taken against her before the courts of
justice are sufficient to establish
forgiveness amounting to condonation.
At any rate, pardon or condonation does
not require sexual intercourse and it
may be express or implied (Almacen v.
Baltazar, G.R. No. L-10028, May 23, 1958).
 Forgiveness may be express or implied.
Sleeping together after full knowledge
of the offense is condonation (Bugayong
v. Ginez, G.R. No. L-10033. December 28,
1956)
 It comes after, not before the offense
(Ocampo v. Florenciano, G.R. No. L-13554,
February 23, 1960).
 Each sexual intercourse of the wife
outside marriage is a separate act of
adultery. Therefore, condonation of one
act does not necessarily imply
condonation of the others (People v.
Zapata, G.R. No. L-3047, May 16, 1951).
b. Aggrieved party has consented to the
commission of the offense or act complained
of. (Note: There is consent when either of
the spouses agreed to or did not object,
despite full knowledge, to the act, giving
rise to a ground for legal separation, before
such act was in fact committed. It may be
express or implied and done prior to the
offense)
 The failure of the husband to look
actively for his adulterous wife after she
left the conjugal home does not
constitute condonation or consent of the
wife‘s adulterous acts. It was not his
duty to search for her to bring her
home. Hers was the obligation to return.
(Ocampo v. Florenciano, G.R. No. L-13554,
February 23, 1960)
 An agreement between the parties that
they will not object to the other‘s act of
sexual infidelity, adultery or
concubinage has been declared as void,
but, though void, is nevertheless an
expression of their clear consent to the
commission of the sexual infidelity.
(People v. Schneckenburger, G.R. No. L-
48183, November 10, 1941)
Civil Law
c.
2018
Connivance between the parties in the
commission of the offense or act
constituting the ground for legal separation;
Connivance - Implies agreement (express
of implied) by both spouses to the ground
for legal separation. It is an act of the mind
before the offense was committed and
involves criminality on the part of the
individual who connives (Rabuya, The Law on
Persons and Family Relations, 2006, p. 359).
d. Mutual guilt - Both parties have given
ground for legal separation;
Recrimination or Equal Guilt ( In Pari
Delicto)
Both parties being in pari delicto, there is no
offended spouse who deserves to bring the
action (Benedicto v. Dela Rama, G.R. No. 1056,
December 8, 1903).
e. Collusion between the parties to obtain
decree of legal separation;
Collusion - The agreement between
husband and wife for one of them to commit
or to be represented in court as having
committed a matrimonial offense, or to
suppress evidence of valid defenses, for the
purpose of enabling the other to obtain legal
separation (Rabuya, The Law on Persons and
Family Relations, 2006. p. 359).
f. Action is barred by prescription;
An action for legal separation shall be filed
within five years from the time of the
occurrence of the cause (Art. 57, FC).
g. Reconciliation (Please see further
discussion under 7. Reconciliation)
3. Procedure
Cooling-Off Period:
General rule: An action for legal separation
shall in no case be tried before six months has
elapsed since the filing of the petition (Art. 58,
FC).
Bar Operations C ommissions 39
 Purple Notes
Civil Law
Exception: There is no cooling-off period if the
ground alleged are those under RA 9262 (Anti-
Violence Against Women and Children).
Confession of Judgment or Stipulation of
Facts
No decree of legal separation shall be based
upon a stipulation of facts or a confession of
judgment.
In any case, the Court shall order the
prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the
parties and to take care that the evidence is not
fabricated or suppressed (Art. 60, FC).
4. Effects of Filing the Petition for Legal
Separation (Art. 61, FC)
a. Spouses are entitled to live separately, but
the marital bond is not severed;
b. No right to have sexual intercourse with the
other spouse;
c. In the absence of an agreement between
the parties, the court shall designate the
husband, the wife or a third person, to
manage the absolute community or conjugal
partnership property.
5. Effects of Pendency of the action for
Legal Separation (Art. 62, FC)
The Court shall provide for:
1. Support of spouses
2. Custody of children
3. Visitation rights of the other spouse
 During the pendency of the action for
legal separation, the provisions of Article
49 of the FC, wherein the Court shall
provide for the support of the spouses
and the custody and support of the
common children. (Art. 62, FC; Araneta v.
Concepcion, G.R. No. L-9667, July 31, 1956).
However, if the support is found to be
onerous, the husband can file a motion to
modify or reduce the same (Gaudionco v.
Hon. Peñaranda, G.R. No. L-72984, November
27, 1987).
6. Effects of the Decree of Legal
Separation
40 Center for Legal Education and Research
a. Spouses are entitled to live separately
(Art. 63, FC). A third person may
manage the property regime. The
designation of this person may be done
by the court;
b. Marriage bond shall not be severed;
c. Dissolution and liquidation of the
property regime (Art. 63, FC) which shall
be automatic upon issuance of the
decree of legal separation; (Laperal v.
Republic, G.R. No. L-18008, October 30,
1962)
d. The offending spouse shall have no right
to the net profits and such will be
forfeited according to Art. 43(2), FC;
(Macadangdang v. CA, G.R. No. L-49542,
September 12, 1980)
e. Custody of the minor children shall be
awarded to the innocent spouse, subject
to the provisions of Art. 213, FC (Tonog
v. Daguimol, G.R. No. 122906, February 7,
2002).
 Sec. 29 of R.A. 9262 prohibits the
awarding of custody of minor
children to the perpetrator of a
woman who is suffering from
battered woman syndrome.
f. Disqualification of the offending spouse
to inherit from the innocent spouse by
intestate succession. The provisions in
favor of the offending spouse made in
the will of the innocent spouse shall be
revoked by operation of law; (Art. 63 FC)
g. Innocent spouse may revoke the
donations (within five years from the
time the decree of legal separation has
become final) made by him in favor of
the offending spouse. However,
alienations, liens and encumbrances
registered in good faith before the
recording of the complaint for
revocation in the registries of property
shall be respected; (Art. 64, FC)
h. Innocent spouse may revoke the
designation of the offending spouse as
the beneficiary in any insurance policy,
even if the designation be irrevocable
(Art. 64, FC).
i. Pursuant to Art. 198, FC, obligation for
mutual support ceases but guilty spouse
may be ordered to give support to the
innocent one; and
 Purple Notes
j. Wife continues to use her name and
surname before the legal separation.
7. Reconciliation of the spouses during the
pendency of the action.
No legal separation may be decreed unless
the Court has taken steps toward the
reconciliation of the spouses and is fully
satisfied, despite such efforts, that
reconciliation is highly improbable (Art. 59,
FC).
If the spouses should reconcile, a
corresponding joint manifestation under
oath duly signed by them shall be filed with
the court in the same proceeding for legal
separation (Art. 65, FC).
Effects of Reconciliation
1. On their personal relations – resumption
of cohabitation and marital relations;
2. On proceedings for the decree of legal
separation:
a. The legal separation proceedings, if
still pending, shall thereby be
terminated at whatever stage; and
b. The final decree of legal separation
shall be set aside, but the
separation of property and any
forfeiture of the share of the guilty
spouse already effected shall
subsist, unless the spouses agree to
revive their former property regime.
(Art. 66, FC)
c. The court's order containing the
foregoing shall be recorded in the
proper civil registries.
 Without the decree of
reconciliation, even if they reconcile the
effects of the final decree of legal
separation will remain (Rabuya, Civil Law
Reviewer Vol 1, 2017, p. 133).
Agreement to revive former property
regime upon reconciliation (Art. 67,
FC)
Civil Law
2018
The agreement to revive former property
regime shall be executed under oath and
shall specify:
a. The properties to be contributed anew
to the restored regime;
b. Those to be retained as separated
properties of each spouse; and
c. The names of all their known creditors,
their addresses and the amounts owing
to each.
The agreement of revival and the motion for
its approval shall be filed with the court in
the same proceeding for legal separation,
with copies of both furnished to the
creditors named therein. After due hearing,
the court shall, in its order, take measure to
protect the interest of creditors and such
order shall be recorded in the proper
registries of properties.
The recording of the ordering in the
registries of property shall not prejudice any
creditor not listed or not notified, unless the
debtor-spouse has sufficient separate
properties to satisfy the creditor's claim.
8. Effect of Death of one of the parties
An action for legal separation which involves
nothing more than bed and board
separation of the spouses is purely personal.
Being personal, it follows that the death of
one party to the action causes the death of
the action itself (Lapuz-Sy v. Eufemio, G.R. No.
30977, January 31, 1972).
E. RIGHTS AND OBLIGATIONS BETWEEN
HUSBAND AND WIFE
Essential Obligations (Art. 68, FC)
General Rule: Performance of essential marital
obligations under Art. 68 cannot be compelled
by court because it will be a violation of personal
liberty.
Exception: Giving support (Arroyo v. Arroyo, G.R.
No. L-17014, Aug. 11, 1921)
a. Cohabitation or the obligation to live
together
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 Purple Notes
Civil Law
The right to live together also includes the
right to demand sexual intimacy from the
other spouse (Rabuya, The Law on Persons and
Family Relations, 2006, p. 389).
Exceptions: The court may exempt one
spouse from living with the other, if:
1. Other spouse will live abroad; and
2. There are valid and compelling reasons
such as:
 Husband‘s illicit relationship with
others; (Dadivas v. Villanueva, G.R. No.
L-29959, December 3, 1929)
 Moderic and barbaric demands of
the husband to have sexual
intercourse; (Goita v. Campos-Rueda,
G.R. No. 11263, November 2, 1916)
 Gross insults from the husband;
(Talana v. Willis [CA], 35 O.G. 1369)
 Maltreatment of the husband;
(Arroyo v. Vasquez de Arroyo, G.R. No.
L-17014, August 11, 1921)
 Virtually driving of the wife away
from family home and threaten with
violence if she returns; (Garcia v.
Santiago, G.R. No. L-28904, December
29, 1928)
 Gambling of the husband, refusal to
support the family, and insulting of
the wife; (Panuncio v. Sula [CA], 34
O.G. 1291)
 If the husband lives as a vagabond
having no fixed home (1 Manresa
329).
b. Observe mutual love, respect and
fidelity
Marriage is definitely not for children but for
two consenting adults who view the
relationship with love, respect, sacrifice and
a continuing commitment to compromise,
conscious of its value as a sublime
institution. (Chi Ming Tsoi v. CA, G.R. No.
119190, January 16, 1997).
42 Center for Legal Education and Research
c. Render mutual help and support
The spouses are jointly responsible for the
support of the family. The expenses for such
support and other conjugal obligations shall
be paid from the community property and,
in the absence thereof, from the income or
fruits of their separate properties. In case of
insufficiency or absence of said income or
fruits, such obligations shall be satisfied
from the separate properties (Art. 70, FC).
Mutual help includes the right to defend the
life and honor of the other spouse (Art. 11,
NCC).
d. Fix family domicile
The husband and wife shall fix the family
domicile. In case of disagreement, the court
shall decide (Art 69, FC).
 In the event that one spouse refuses to
live with the other in the family
dwelling, the court is powerless to
enforce the provisions of Article 69 of
the Family Code; even such refusal is
not justifiable (Illusorio v. Bilder, G.R. No.
139789, May 12, 2000).
e. Joint responsibility for support of the
family and other conjugal obligations
The expenses for such support and other
conjugal obligations shall be paid from the
community property and, in the absence
thereof, from the income or fruits of their
separate properties. In case of insufficiency
or absence of said income or fruits, such
obligations shall be satisfied from their
separate properties (Art. 70, FC).
f. Management of the household
The management of the household shall be
the right and the duty of both spouses. The
expenses for such management shall be
paid in accordance with the provisions of
Article 70 (Art. 71, FC).
Expenses for Support, Other Conjugal
Obligations and Management of
Household are Chargeable to the
following order:
 Purple Notes
a. Expenses shall be paid from the
community property;
b. In the absence thereof from the income
or fruits of their separate properties;
c. In the absence or insufficiency thereof
from their separate properties (Art. 70,
FC).
Effect of Neglect of Duty
When (i) one of the spouses neglects his or her
duties to the conjugal union, or (ii) commits acts
which tend to bring danger, dishonor or injury to
the other or to the family, the aggrieved party
may apply to the court for relief (Art. 72, FC).
Some of the reliefs available under the law are:
(i) cutting the wife‘s support if she refuses to
cohabit with the husband without justifiable
cause; (ii) filing for legal separation if there are
grounds to support such; (iii) injunction to stop
further disposition of property aside from
seeking sole administration of the conjugal or
community property; (iv) criminal prosecution
for adultery or concubinage; and (v) protection
orders.
Exercise of Profession
Either spouse may exercise any legitimate
profession, occupation, business or activity
without the consent of the other. The latter may
object only on valid, serious, and moral grounds
(Art. 73, FC).
In case of disagreement, the court shall decide
whether or not:
1. The objection is proper, and
2. Benefit has occurred to the family prior to
the objection or thereafter.
 If the benefit accrued prior to the
objection, the resulting obligation shall
be enforced against the community
property.
 If the benefit accrued after the
objection, such obligation shall be
enforced against the separate property
of the spouse who has not obtained
consent.
If the wife engages in business:
Civil Law
2018
a. All properties will be liable if the husband
consented;
b. The community and the separate property of
the wife shall be liable if the husband does
not give his consent, unless it is appertained
to the community property. (Paras, Civil Code
Vol. 1 Persons and Family Relations, 2008 p. 516)
Magna Carta for Women (R.A. 9710)
The Magna Carta of Women is comprehensive
women‘s human rights law that seeks to
eliminate discrimination against women by
recognizing, protecting, fulfilling and promoting
the rights of Filipino women, especially those in
marginalized sector.
Equal Rights in All Matters Relating to
Marriage and Family Relations (Sec. 19, RA.
9710)
The State shall take all appropriate measures to
eliminate discrimination against women in all
matters relating to marriage and family relations
and shall ensure:
1. The same rights to enter into and leave
marriages or common law relationships
referred to under the Family Code without
prejudice to personal or religious beliefs;
2. The same rights to choose freely a spouse
and to enter into marriage only with their
free and full consent. The betrothal and the
marriage of a child shall have no legal
effect;
3. The joint decision on the number and
spacing of their children and to have access
to the information, education and means to
enable them to exercise these rights;
4. The same personal rights between spouses
or common law spouses including the right
to choose freely a profession and an
occupation;
5. The same rights for both spouses or
common law spouses in respect of the
ownership, acquisition, management,
administration, enjoyment, and disposition
of property;
6. The same rights to properties and
resources, whether titled or not, and
inheritance, whether formal or customary;
and
Bar Operations C ommissions 43
 Purple Notes
Civil Law
7. Women shall have equal rights with men to
acquire change, or retain their nationality.
 Neither marriage to an alien nor change of
nationality by the husband during marriage
shall automatically change the nationality of
the wife, render her stateless or force upon
her the nationality of the husband (Sec 19,
R.A. 9710)..
 Various statutes of other countries
concerning dual citizenship that may be
enjoyed equally by women and men shall
likewise be considered (Sec 19, R.A. 9710)..
 Customary laws shall be respected provided
that they shall not discriminate against
women (Sec 19, R.A. 9710).
F. PROPERTY RELATIONS OF THE
SPOUSES
GENERAL PROVISIONS
The property relationship between husband and
wife shall be governed in the following order:
1. By marriage settlements executed before
the marriage;
2. By the provisions of the Civil Code; and
3. By the local custom. (Art. 74, FC)
1. Marriage settlements
It is a contract entered into by the future
spouses fixing the matrimonial property regime
that should govern during the existence of the
marriage (Paras, Civil Code of the Philippines
Annotated, Persons and Family Relations Vol. 1, 2008
p. 515).
The future spouses may, in the marriage
settlement, agree upon any of the following:
1. 1.Regime of absolute community;
2. Conjugal partnership of gains;
3. Complete separation of property; or
4. Any other regime (Art 75, FC).
In the absence of a marriage settlement, or
when the regime agreed upon is void, the
system of absolute community of property as
established in this Code shall govern (Art.75, FC).
44 Center for Legal Education and Research
Requisites of a Valid Marriage Settlement
1. In writing; (Art. 77, FC)
An agreement in consideration of marriage
must be in writing; otherwise, it shall be
unenforceable. (Art. 1403[2C], NCC).
2. Signed by the parties; (Art. 77, FC)
3. Must not contain provision contrary to law,
good morals, good customs, public order,
and public policy or against the dignity of
either spouse. It must not be prejudicial to
third person; (Art. 77, FC)
4. Executed before the celebration of the
marriage; (Art. 76, FC)
5. Fixing the terms and conditions of their
property relation;
6. Registration (to bind third persons) (Art. 77,
FC); and
7. Additional signatories:
a. If a party executing the settlement
needs parental consent, the
parent/guardian whose consent is
needed must be made a party to the
agreement (Art. 78, FC).
b. If the party executing the settlement is
under civil interdiction or any other
disability, the guardian appointed by the
court must be made a party to the
settlement (Art. 79, FC).
Effect of marriage settlement if marriage
does not take place
General rule: Everything stipulated in the
settlements or contracts in consideration of a
future marriage, including donations between
the prospective spouses made therein, shall be
rendered void if the marriage does not take
place (Art. 81, FC).
Exception: Stipulations that do not depend
upon the celebration of the marriages shall be
valid (Art. 81, FC).
Applicable law for marriage settlements
General rule: In the absence of a contrary
stipulation in a marriage settlement, the
property relations of the spouses shall be
governed by Philippine laws, regardless of the
place of the celebration of the marriage and
their residence (Art. 80, FC).
 Purple Notes
Exceptions:
a. Both spouses are aliens;
b. With respect to the extrinsic validity of
contracts affecting property:
1) Not situated in the Philippines and
executed in the country where the
property is located; and
2) Situated in a foreign country whose laws
require different formalities for its
extrinsic validity (Art. 80, FC).
 Prior to the affectivity of the
Family Code, in the absence of a
marriage settlement or when the
same is void: Conjugal
Partnership of Gains will govern
(Rabuya, The Law on Persons and
Family Relations, 2006, p. 421).
 Under the Family Code, in the
absence of a marriage settlement or
when the regime agreed upon is
void: System of Absolute
Community of Property will
govern (Art. 75, FC).
2. Donations by Reason of Marriage
(Donation Propter Nuptias)
Requisites of Donation Propter Nuptias
(Art. 82, FC):
1. It is made before the celebration of
marriage.
2. It must be made in consideration of the
marriage.
3. It must be made in favor of one or both of
the future spouses.
Otherwise, the general rules on donation shall
govern.
Form Required by Law: These donations are
governed by the rules on ordinary donations
established in Title III of Book III of the Civil
Code, insofar as they are not modified by the
following articles (Art. 83, FC).
Civil Law
Limitation on Donations by Reason of
2018
Marriage
If the regime agreed upon is other than absolute
community, they cannot donate to each other
more than one-fifth of their present property.
Any excess shall be considered void (Art. 84, FC).
The donation may comprehend all the present
property of the donor, or part thereof, provided
he reserves, in full ownership or in usufruct,
sufficient means for the support of himself, and
all relatives who, at the time of the acceptance
of the donation, are by law entitled to be
supported by the donor. Without such
reservation, the donation shall be reduced on
petition of any person affected (Art. 750, NCC).
No person may give or receive, by way of
donation, more than he may give or receive by
will. The donation shall be inofficious in all that
it may exceed this limitation (Art. 752, NCC).
Donation propter nuptias of encumbered
property
Donations by reason of marriage of property
subject to encumbrances shall be valid. In case
of foreclosure of the encumbrance and the
property is sold for:
1. Less than the total amount of the obligation
secured, the donee shall not be liable for the
deficiency.
2. More than the total amount of said
obligation, the donee shall be entitled to the
excess (Art. 85, FC).
Donation by reason of marriage may be
revoked in the following cases
1. If the marriage is not celebrated or judicially
declared void ab initio except donations
made in the marriage settlements, which is
governed by Art. 81, FC;
a. If marriage is not celebrated
Prescriptive Period: Five years from
date of supposed solemnization of
marriage (Art. 1149, NCC).
b. If marriage is judicially void, it depends:
Bar Operations C ommissions 45
 Purple Notes
Civil Law
 If subsequent marriage is void
pursuant to Art. 40, FC in relation to
Arts. 52 and 53, FC because it was
contracted by a spouse before the
prior marriage is judicially declared
void. If donee-spouse contracted
subsequent void marriage in bad
faith.
Prescriptive Period: Revoked by
operation of law
 Judicially declared void on other
grounds.
Prescriptive Period: Five years from
finality of judicial declaration of
nullity (if action to recover the
property)
2. When the marriage takes place without the
consent of the parents or guardian, as
required by law;
Prescriptive Period: Five years from the time
the donor came to know that the required
parental consent was not obtained
3. When the marriage is annulled, and the
donee acted in bad faith;
Prescriptive Period: Five years from finality
of decree Upon legal separation, the donee
being guilty spouse;
Prescriptive Period: Five years from the time
the decree of legal separation becomes final
4. If it is with a resolutory condition and the
condition is complied with;
Prescriptive Period: Five years from
happening of condition
5. When the donee has committed an act of
ingratitude as specified by the provision of
the Civil Code on donations in general (Art.
86, FC).
46 Center for Legal Education and Research
Prescriptive Period: One year from donor‘s
knowledge of that fact
Rule on Donations between Spouses
during Marriage
General Rule: Every donation or grant of
gratuitous advantage, direct or indirect, between
the spouses during the marriage shall be void
(Art. 87, FC).
Reason:
1. To prevent the weaker spouse from being
influenced by the stronger spouse;
2. To protect creditors;
3. To prevent an indirect modification of the
marriage settlement during marriage (Art.
76).
Exceptions:
1. Moderate gifts given on occasion of family
rejoicing; or
2. Donations mortis causa.
 Donation between common-law spouses
are void (Art. 87, FC).
3. Void donations by the Spouses
1. Those made between persons who were
guilty of adultery or concubinage at the time
of the donation;
 In this case, the action for declaration of
nullity may be brought by the spouse of
the donor or donee; and the guilt of the
donor and donee may be proved by
preponderance of evidence in the same
action (Art. 739, NCC, last par.).
2. Those made between persons found guilty
of the same criminal offense, in
consideration thereof; and
3. Those made to a public officer or his wife,
descendants and ascendants, by reason of
his office (Art. 739, NCC).
 Purple Notes
Civil Law
2018
MARRIAGE SETTLEMENT, DONATION PROPTER NUPTIAS AND ORDINARY DONATIONS

NATURE MARRIAGE DONATION PROPTER ORDINARY

SETTLEMENT NUPTIAS DONATION
Definition Contract entered into by a Act of liberality made An act of liberality
man and a woman who before marriage in favor of whereby a person
intend to get married, one or both of the future gratuitously disposes of a
fixing the property regime spouses. thing or a right in favor
that will govern their of another, who accepts
present and future it.
property during marriage.
Scope and Restrictions Should not prejudice 3rd May include future Cannot comprehend
persons property future property

Will be void if marriage If regime is not absolute Cannot be made by

does not take place community property minors
spouses cannot donate
Cannot stipulate that more than 1/5 of their May comprehend all
donations between them present property. property of donor
during marriage will be provided donor must
valid. No indirect donations reserve sufficient means
to support himself.
Must not prejudice
legitimes Must not prejudice
legitimes
Effectivity Start of marriage. When it is made
Who executes Future spouse Any person in favor of one Between any person
or both of the future
If party is 18-21 years old, spouses
the parent whose consent
is needed must be a party
thereto

For persons suffering from

civil interdiction or other
disability, the guardian
must be a party thereto.
When to execute Before the celebration of Before the celebration of Anytime
the marriage the marriage
Form of Execution In writing, otherwise, Same formalities as that Movables – oral or
unenforceable. required in ordinary written.
donations, otherwise, void
Immovable – public
document.
Revocation Judicial separation of Marriage is not celebrated Donor, after the donation
property, voluntarily or for or judicially declared void should have legitimate,
cause. ab initio. illegitimate, legitimated
children, even though
Marriage takes place they are posthumous.
without the needed
consent. Child of donor, whom the
latter believed dead,
Marriage is annulled, turns out to be alive.
donee acted in bad faith.
Donor subsequently
In case of legal separation adopts a minor child.

Bar Operations C ommissions 47

 Purple Notes
Civil Law
NATURE MARRIAGE DONATION PROPTER ORDINARY
SETTLEMENT NUPTIAS DONATION
and donee is guilty spouse.
Acts of ingratitude by
Resolutory condition is not donee.
complied with.
Failure to comply with
Donee committed an act of condition attached to
ingratitutde. donation.

Heirs of any person whose Those who have right to

Who may question rights are prejudiced. legitimate and their heirs.
validity

KINDS OF PROPERTY REGIME What constitutes community property

4. Absolute Community of Property (ACP) General rule: Community property shall

General Provision
A marriage settlement where spouses are
considered co-owners of ALL property brought
into the marriage which are not otherwise
excluded from the community property either
by the provisions of the Family Code or by the
marriage settlement.
Applies when:
1) Agreed upon in the marriage settlement;
2) In default of a marriage settlement; and
3) When marriage settlement is void (Art.75,
FC).
Commencement
The absolute community of property between
spouses shall commence at the precise
moment that the marriage is celebrated.
Any stipulation, express or implied, for the
commencement of the community regime at
any other time shall be void (Art. 88, FC).
Rules on Co-ownership applies
suppletorily
The provisions on co-ownership shall apply to
the absolute community of property between
the spouses in all matters not provided by the
Chapter on ACP (Art. 90 FC).
consist of all property owned by the spouses
at the time of the marriage or acquired
thereafter (Art. 91, FC).
Exceptions:
1. Property acquired during the marriage by
gratuitous title by either spouse, its fruits
and income, unless it is expressly otherwise
provided by the donor, testator or grantor.
2. For personal and exclusive use, except
jewelry.
3. Acquired before the marriage by either
spouse who has legitimate descendants by
a former marriage including the fruits and
income (Art. 92, FC).
4. Those excluded from the absolute
community as in the marriage settlement
(Art. 91, FC).
 The above mentioned shall be excluded
from the absolute community property.
Presumption: Property acquired during the
marriage is presumed to belong to the
community, unless proven that is one of those
excluded therefrom (Art. 93, FC).
Procedure on Liquidation of the Absolute
Community Assets and Liabilities
1. An inventory of all the ACP properties and
exclusive properties of each spouse;
2. Payment of debts and obligations of the
absolute community;

48 Center for Legal Education and Research

 Purple Notes
 In case of insufficiency of said assets,
the spouses shall be solidarily liable for
the unpaid balance with their separate
properties taking into consideration the
charges and obligations upon the ACP
(Article 94, FC).
3. Delivery of exclusive properties to spouses
- whatever remains of the exclusive
properties of the spouses shall thereafter
be delivered to each of them.
4. Net remainder = Net assets of ACP
General Rule: The net remainder of the
properties of the absolute community
which shall be divided equally between
husband and wife.
Exception:
a. Unless a different proportion or division
was agreed upon in the marriage
settlements or;
b. There has been a voluntary waiver of
such share provided in this Code or;
c. The share of the guilty spouse is
forfeited.
 For purpose of computing the net
profits subject to forfeiture in
accordance with Articles 43, No. 2 (one
of the spouses contracted subsequent
marriage in bad faith, his share shall be
forfeited in favor of the common
children, if none, the children of the
guilty spouse by a previous marriage or
in default of children, the innocent
spouse) and 63, No. 2 (the offending
spouse in case of legal separation shall
have no right to any share of the net
profits earned by the ACP) the said
profits shall be the increase in value
between the market value of the
community property at the time of the
celebration of the marriage and the
market value at the time of its
dissolution (Art. 102, FC).
5. Delivery of presumptive legitimes of the
common children.
6. Adjudication of conjugal dwelling and lot.
Civil Law
2018
a. In accordance with agreement of the
parties, if any;
b. if no agreement, it shall be
adjudicated to the spouse with whom
the majority of the common children
choose to remain;
Effect of Termination of ACP due to death
of one of the Spouses
Upon the termination of the marriage by death,
the community property shall be liquidated
within one year from death of the deceased
spouse in the same proceeding for the
settlement of the estate of the deceased
(Art.103, FC). If no judicial settlement
proceeding is instituted, the surviving spouse
shall liquidate the community property either
judicially or extra-judicially within one year
from the death of the deceased spouse. If
upon the lapse of the one-year period, no
liquidation is made, any disposition or
encumbrance involving the community property
of the terminated marriage shall be void (Art.
103, FC).
Effect of Failure to Liquidate
Should the surviving spouse contract a
subsequent marriage without compliance with
the foregoing requirements, a mandatory
regime of complete separation of property shall
govern the property relations of the subsequent
marriage (Art. 103, FC).
Liquidation of ACP of Two Marriages by
the Same Person
Whenever the liquidation of the community
properties of two or more marriages contracted
by the same person before the effectivity of
this Code is carried out simultaneously, the
respective capital, fruits and income of each
community shall be determined upon such
proof as may be considered according to the
rules of evidence. In case of doubt as to which
community the existing properties belong, the
same shall be divided between the different
communities in proportion to the capital and
duration of each (Art. 104, FC).
Bar Operations C ommissions 49
 Purple Notes
Civil Law
conjugal partnership gains shall govern their
ABSOLUTE CONJUGAL property relations during marriage (Art. 105,
COMMUNITY OF PARTNERSHIP OF FC).
PROPERTY GAINS
All the properties Each spouse retains Commencement of CPG
owned by the spouses his/her property before
at the time of the marriage and only the CPG shall commence at the precise moment
marriage become fruits and income of such that the marriage is celebrated (Art 107, FC in
community property properties become part of relation to Art. 88, FC).
the conjugal properties
during the marriage.
Rules that governs the CPG
Upon dissolution and Upon dissolution of the
liquidation of the partnership, the separate
community property properties of the spouses The rules on the contract of partnership in all
what is divided equally are returned and only the that is not in conflict with what is expressly
between the spouses net profits of the determined in the FC or by the spouses in their
or their heirs is the net partnership are divided marriage settlements (Art. 108, FC).
remainder of the equally between the
properties of the spouses, and their heirs. What constitutes CPG -Those acquired by
absolute community the spouses:
property.
1. Onerous title during marriage at the
5. Conjugal Partnership of Gains (CPG)
expense of common fund;
2. Labor, work, profession or industry of
It is a partnership established through the
either or both spouses;
marriage of a man and a woman, who as
3. Fruits, natural, industrial or civil, due or
partners, place in a common fund:
received during marriage from common
property, as well as net fruits from
a. The proceeds, the products, fruits and
exclusive property of each spouse;
income from their separate properties;
4. Share of either spouse in hidden treasure
b. Those acquired by either or both of them
as finder or owner of property where
through their efforts;
treasure is found;
c. Those acquired by them by chance;
5. Through occupation;
6. Livestock existing upon dissolution of
The dissolution thereof, the partners shall
conjugal partnership of gains in excess of
divide the net gains equally, unless otherwise
number of each kind brought to the
agreed upon in their marriage settlement.
marriage by either spouse; and
The same to be divided equally upon
7. Those acquired by chance (Art. 117, FC).
dissolution of marriage or partnership and
But losses from a game of chance shall be
those acquired by either or both of them
borne exclusively by the loser-spouse.
through their efforts or by chance (Art. 106, FC).
Exclusive property of each spouse (Arts.
Presumption of CPG - All property acquired
109-115)
during the marriage, whether the acquisition
appears to have been made, contracted or
1. Properties acquired PRIOR to the marriage;
registered in the name of one or both spouses,
2. That which each acquires during the
is presumed to be conjugal unless the contrary
marriage by gratuitous title;
is proved (Art. 116, FC).
3. That which is acquired by right of
redemption, by barter or by exchange with
Conjugal Partnership of Gains Will
property belonging to only one of the
Govern:
spouses; and That which is purchased with
exclusive money of the wife or of the
In case the future spouses agree in the
husband (Art. 109, FC).
marriage settlements that the regime of

50 Center for Legal Education and Research

 Purple Notes
4. The amount of principal which may be
collected during the marriage in partial
payments or by installments on the amount
of credit belonging to one of the spouses.
Exception: Interests falling due during the
marriage on the principal shall belong to
the conjugal partnership (Art. 119, FC).
 The spouses retain the ownership,
possession, administration and
enjoyment of their exclusive properties
(Art. 110 , FC).
Rule on transfer of exclusive property
under CPG
1. Either spouse may, during the marriage,
transfer the administration of his or her
exclusive property to the other by means of
a public instrument, which shall be
recorded in the registry of property of the
place the property is located (Art. 110, FC).
2. A spouse, may mortgage, encumber,
alienate or otherwise dispose of his or her
exclusive property, without the consent of
the other spouse, and appear alone in
court to litigate with regard to the same
(Art. 111, FC).
3. The alienation of any exclusive property of
a spouse administered by the other
automatically terminates the administration
over such property and the proceeds of the
alienation shall be turned over to the
owner-spouse (Art. 112, FC).
 The settled rule is that the sale or
encumbrance of a conjugal property
requires the consent of both the husband
and the wife (Guiang v. CA, G.R. No. 127172,
June 26, 1998). The absence of the consent
of one renders the entire sale or
encumbrance null and void, including the
portion of the conjugal property pertaining
to the husband who contracted the sale.
Neither would the conjugal partnership be
liable for the loan on the ground that it
redounded to the benefit of the family. The
sweeping conclusion that the loan was
obtained by the husband in order to
finance the construction of housing units,
without however adducing adequate proof,
Civil Law
2018
does not persuade (Homeowners Savings
&Loan Bank v. Dailo, G.R. No. 153802, March
11, 2005).
Rules on donation of exclusive property
1. Property donated or left by will to the
spouses, jointly and with designation of
determinate shares, shall pertain to the
donee-spouses as his or her own exclusive
property, and in the absence of
designation, share and share alike, without
prejudice to the right of accretion when
proper (Art. 113, FC).
2. If the donations are onerous, the amount
of the charges shall be borne by the
exclusive property of the donee spouse,
whenever they have been advanced by the
conjugal partnership of gains (Art. 114., FC).
3. Retirement benefits, pensions, annuities,
gratuities, usufructs and similar benefits
shall be governed by the rules on
gratuitous or onerous acquisitions as may
be proper in each case (Art. 115, FC).
Ownership of property bought through
instalment
Property bought on installments paid partly
from exclusive funds of the spouses and partly
from conjugal funds:
1. If full ownership vested before marriage –
it shall belong to the buyer spouse;
2. If full ownership vested during marriage –
it shall belong to the conjugal partnership
 In either case, any amount advanced
by nthe partnership or by either or
both spouses shall be reimbursed by
the owner or owners upon liquidation
of the partnership (Art. 118, FC).
Rule on Ownership of Improvements (Art.
120, FC)
When will apply:
1. If there is an improvement made on the
separate property whether for utility or
adornment;
Bar Operations C ommissions 51
 Purple Notes
Civil Law
CONJUGAL the spouses shall belong to the conjugal
CO-OWNERSHIP
PARTNERSHIP partnership. Subject to reimbursement of
Arises only because of May arise by an ordinary the value of the property of the owner-
marriage contract. contract. spouse at the time of the improvement.
Conjugal owners are Co-owners may be two or
always only two more
 Accession
Profits are generally 50-50 Profits are proportional to
unless a contrary respective interests.
stipulation is in a marriage When the cost of the improvement made
settlement. by the conjugal partnership and any
Death of either husband or Death of one does not resulting increase in value are less than
wife dissolves the conjugal dissolve the co- the value of the property at the time of the
partnership ownership. improvement, the entire property remains
Generally, the husband is Generally, all co-owners the exclusive property of the spouse.
the administrator. administer
Encouraged by law to Co-ownership Liquidation of the Conjugal Partnership
provide for better family discouraged by law Assets and Liabilities
solidarity
Created by operation of Created by will or 1. An inventory of all the CPG properties and
law upon celebration of consent of the parties
exclusive properties of each spouse;
marriage.
2. The benefits received by a spouse from the
It is the law that governs The will of the partners
shall govern CPG during the marriage are returned to
Does not possess any legal It possesses a legal the CPG;
personality distinct from personality 3. Reimbursement for the use of exclusive
that of the spouses. funds/exclusive property, ownership of
Begins precisely on the Begins from the moment which has been vested in the CPG;
date of the celebration of of the execution of the 4. Payment of debts and obligations of the
the marriage – no contrary contract but a contrary conjugal partnership; (Art. 129)
stipulation is allowed stipulation is allowed
Not formed particularly for Formed for profit  In case of insufficiency of said assets,
profit
the spouses shall be solidarily liable for
Profits are divided Profits are divided
according to previous
the unpaid balance with their separate
agreement; if there is no properties, taking into consideration
previous agreement, in the charges and obligations upon the
proportion to the amount ACP (see Article 121, FC)
contributed
Administration and Management is conferred 5. Delivery of exclusive properties to spouses;
enjoyment of the conjugal upon the partners so 6. Payment of loss or deterioration of
partnership property appointed by the others; movables used for the benefit of the family,
belong to both spouses
belonging to either spouse, even due to
jointly
fortuitous event
2. At the expense of the partnership or
7. Net remainder = Net profits of CPG
through the acts or efforts of either or both
spouses; and
General Rule: The net remainder of the
3. Improvement is made during the marriage.
properties of the conjugal partnership shall
be divided equally between husband and
 Reverse Accession:
wife.
When the cost of the improvement made
Exception:
by the conjugal partnership and any
resulting increase in value are more than
a. Unless a different proportion or division
the value of the property at the time of the
was agreed upon in the marriage
improvement, the entire property of one of
settlements or;

52 Center for Legal Education and Research

 Purple Notes
b. There has been a voluntary waiver of
such share provided in this Code or;
c. The share of the guilty spouse is
forfeited.
8. Delivery of presumptive legitimes of the
common children;
9. Adjudication of conjugal dwelling and lot:
a. In accordance with agreement of the
parties, if any;
b. If no agreement, it shall be adjudicated
to the spouse with whom the majority
of the common children choose to
remain;
Presumption: Children below the age of
seven years are deemed to have chosen the
mother, unless the court has decided
otherwise.
In case there is no majority among children,
the court shall decide the matter taking into
consideration the best interests of the children
(Art. 129, FC).
Effect of Termination of CPG due to death
of one of the Spouses
Upon the termination of the marriage by death,
the community property shall be liquidated
within one year from death of the deceased
spouse in the same proceeding for the
settlement of the estate of the deceased
(Art.130, FC).
 If no judicial settlement proceeding is
instituted, the surviving spouse shall
liquidate the community property either
judicially or extra-judicially within one year
from the death of the deceased spouse. If
upon the lapse of the one year period, no
liquidation is made, any disposition or
encumbrance involving the community
property of the terminated marriage shall
be void (Id.).
Effect of Failure to Liquidate
Should the surviving spouse contract a
subsequent marriage without compliance with
the foregoing requirements, a mandatory
regime of complete separation of property shall
Civil Law
2018
govern the property relations of the subsequent
marriage (Art. 130, FC).
Liquidation of CPG of Two Marriages by
the Same Person
Whenever the liquidation of the community
properties of two or more marriages contracted
by the same person before the effectivity of
this Code is carried out simultaneously, the
respective capital, fruits and income of each
community
shall be determined upon such proof as may be
considered according to the rules of evidence.
In case of doubt as to which community the
existing properties belong, the same shall be
divided between the different communities in
proportion to the capital and duration of each
(Art. 131, FC) .
Provisions Common to ACP and CPG
1. Prohibition on the waiver of rights,
interest, shares and effects (Art. 89,
FC for ACP; Art. 107, FC for CPG)
General Rule: No waiver of rights,
interests, shares and effects of the
absolute community of property during the
marriage can be made.
Exception: In case of judicial separation
of property (Art. 89, FC).
 When the waiver takes place upon a
judicial separation of property, or after
the marriage has been dissolved or
annulled, the same shall appear in a
public instrument and shall be
recorded in the office of the local civil
registrar where the marriage contract
was recorded as well as in the proper
registry of property (Article 89 and 77,
FC). .
Remedy of Creditors in case of waiver
of debtor-spouse
The creditors of the spouse who made such
waiver may petition the court to rescind the
waiver to the extent of the amount
Bar Operations C ommissions 53
 Purple Notes
Civil Law
sufficient to cover the amount of their
credits (Art. 89 [2], FC).
2. Charges upon and obligations of
absolute community property and
conjugal property
The absolute community of property shall
be liable for (Art. 94, FC for ACP; Art. 121, FC
for CPG): (DELTS)
1) Debts
a. All debts and obligations
contracted during the marriage by:
i. The designated administrator-
spouse for the benefit of the
community; or
ii. By both spouses; or
iii. By one spouse with the
consent of the other.
b. Debts and obligations contracted
by either spouse without the
consent of the other to the extent
that the family may have been
benefited.
c. Ante-nuptial debts of either spouse
insofar as they have redounded
to the benefit of the family.
d. Ante-nuptial debts of either spouse
other than those falling under item
―c‖ stated above, such as:
i. The support of illegitimate
children of either spouse; and
ii. Liabilities incurred by either
spouse by reason of a crime or
a quasi-delict.
 Here, the ACP becomes automatically
liable in case of absence or
insufficiency of the exclusive property
of the debtor-spouse, the payment of
which shall be considered as
advances to be deducted from the
share of the debtor-spouse upon
liquidation of the community. This is
not applicable to CPG, as the CPG
does not become automatically liable
for its payment even if the debtor-
spouse has no or has insufficient
exclusive property.
54 Center for Legal Education and Research
2) Education and Self-Improvement:
a. Expenses to enable either spouse to
commence or compete a professional,
vocational, or other activity for self-
improvement.
The value of what is donated or promised by
both spouses in favor of their common
legitimate children for the exclusive purpose
of commencing or completing a professional
or vocational course or other activity for
self-improvement.
3) Expenses of litigation between the spouses
unless the suit is found to be groundless.
4) Taxes
a. All taxes, liens, charges and expenses,
including major or minor repairs, upon
the community property.
b. All taxes and expenses for mere
preservation made during marriage
upon the separate property of either
spouse used by the family.
 In ACP, item ―4.b‖ must pertain to the
property used by the family before
said obligation can be charged
against the ACP, which is not a
requirement in CPG. (Rabuya, The Law
on Persons and Family Relations, 2006, p.
435)
5) Support- The support of the spouses, their
common children, and legitimate children of
either spouse.
 The support of illegitimate children
shall be governed by the provisions of
Family Code on Support.
In case ACP/CPG is insufficient to cover
the foregoing liabilities
The spouses shall be solidarily liable for the
unpaid balance with their separate properties.
(Art. 94, par [2], FC for ACP; Art. 121, par [2], FC
for CPG)
 Purple Notes
Obligations Chargeable to Exclusive
Property:
1) Support of illegitimate children of either
spouse;
2) Debts contracted by the designated
administrator-spouse during the marriage
which did not benefit the community;
3) Debts contracted during the marriage by
either spouse without the consent of the
other which did not redound to the benefit
of the family;
4) Ante-nuptial debt of either spouse which
did not redound to the benefit of the
family;
5) Taxes and expenses incurred during the
marriage for the preservation of a
separate property of either spouse which
is not being used by the family
6) Civil liability of either spouse arising from
crime or quasi-delict;
7) Expenses of litigation between
spouses, if the suit is found to be
groundless; and
8) Losses during the marriage in any game
of chance, betting, sweepstakes, or any
other kind of gambling, whether permitted
or prohibited by law, shall be borne by
the loser and shall not be charged to the
community.
 Winnings shall form part of the
community property (Art. 95, FC),
except if winning ticket is acquired
gratuitously (thru donation) by either
spouse, unless expressly provided by
the donor of the ticket (Art. 92, FC for
ACP, Art. 123, FC for CPG).
3. Ownership, administration,
enjoyment and disposition of the
community property
Joint Administration -The administration and
enjoyment of the community property shall
belong to both spouses jointly (Art. 96, FC for
ACP; Art. 124, FC for CPG).
In case of disagreement, the husband‘s
decision shall prevail, subject to recourse to the
court by the wife for proper remedy, which
must be availed of within five years from the
Civil Law
2018
date of the contract implementing such
decision.
Sole Administration – One spouse may
assume sole power of administration when
a. Other spouse is incapacitated;
b. Other spouse is unable to participate in the
administration of the common properties;
c. During the pendency of a legal separation
case; or
d. If one spouse abandons the other or fails
to comply with his/her obligations to the
family.
Limitation to Sole Administration:
a. No power to dispose community/conjugal
partnership property; and
b. No power to encumber community/conjugal
partnership property.
Exceptions:
a. With authority of the court; or
b. With written consent of the other spouse
 In the absence of such authority or
consent, the disposition or
encumbrance shall be void.
Continuing offer
The transaction, however, shall be construed
as a continuing offer on the part of the
consenting spouse and the third person, and
may be perfected as a binding contract upon
the acceptance by the other spouse or
authorization by the court before the offer is
withdrawn by either or both offerors.
Rules on Donation and Disposition of
Interest in the Community Property:
1. Either spouse may dispose by will of his or
her interest in the community property (Art.
97, FC).
2. Neither spouse may donate any community
property without the consent of the other
(Art. 98, FC).
Exception: Moderate donations for: (i)
Charity; or (ii) Occasions of family rejoicing; or
Bar Operations C ommissions 55
 Purple Notes
Civil Law
(iii) Family distress (Art. 98, FC for ACP; Art. 125,
FC for CPG)
4. Dissolution of Community Regime
Grounds for Termination of ACP (Art. 99, FC
for ACP; Art. 126, FC for CPG)
1. Decree of legal separation;
2. Annulment;
3. Declaration of nullity of marriage;
4. Death of either spouse;
5. Judicial separation of property on the
ground of:
a. Civil interdiction;
b. Declared absentee;
c. Loss of parental authority;
d. Abandonment and failure to comply
with the obligations to the family;
e. Abuse of power of administration;
f. At the time of the petition, spouses are
separated in fact for at least 1 year and
the possibility for reconciliation is
highly improbable (Art. 135, FC).
Separation de Facto
The separation in fact between husband and
wife shall not affect the regime of absolute
community/conjugal partnership.
Effects of Separation de Facto:
1. The spouse who leaves the conjugal home
or refuses to live therein, without just
cause, shall not have the right to be
supported;
2. When the consent of one spouse to any
transaction of the other is required by law,
judicial authorization shall be obtained in a
summary proceeding; and
3. In the absence of sufficient community
property, the separate property of both
spouses shall be solidarily liable for the
support of the family. The spouse present
shall, upon proper petition in a summary
proceeding, be given judicial authority to
administer or encumber any specific
separate property of the other spouse and
use the fruits or proceeds thereof to satisfy
56 Center for Legal Education and Research
the latter‘s share (Art. 100, FC for ACP; Art.
127, FC for CPG).
What constitutes abandonment?
A spouse is deemed to have abandoned the
other when he or she has left the conjugal
dwelling without intention of returning
(Rabuya, The Law on Persons and Family Relations,
2006, p. 446).
Presumption of abandonment: If the
spouse who left the conjugal dwelling for a
period of three months or has failed within the
same period to give any information as to his
or her whereabouts shall be prima facie
presumed to have no intention of returning to
the conjugal dwelling. (Art. 101, FC for ACP; Art.
128, FC for CPG)
Remedy of the aggrieved spouse in case
of abandonment of the other spouse
If a spouse without just cause abandons the
other or fails to comply with his or her
obligations (may pertain to marital, parental or
property relations) to the family, the aggrieved
spouse may petition the court for:
1. Receivership;
2. Judicial separation of property or;
3. Authority to be the sole administrator of the
absolute community (Art. 101, FC for ACP; Art.
128, FC for CPG)
If a spouse without just cause abandons the
other or fails to comply with his or her
obligations (may pertain to marital, parental or
property relations) to the family, the aggrieved
spouse may petition the court for:
1. Receivership;
2. Judicial separation of property or;
3. Authority to be the sole administrator of the
absolute community (Art. 101, FC for ACP; Art.
128, FC for CPG)
Separation of Property of the Spouses
and Administration of Common Property
by One Spouse during the Marriage
 Purple Notes
When will it govern?
1. If provided for in the marriage settlement;
or
2. By judicial order (Art. 134, FC).
6. Regime of Separation of Property (Arts.
143-146, FC)
Separation is agreed upon in the
marriage settlements
The spouses may provide for separation with
respect to:
1. Their present properties; or
2. With respect only to their future properties;
or
3. With respect to both (Art.144, FC).
General rule: In the regime of Complete
Separation of Property, each spouse shall own,
dispose of, possess, administer, and enjoy his
or her own separate property, whether
acquired prior to the marriage or during the
marriage, without the need of the consent of
the other (Art. 145, FC).
 If the spouses agree on a partial separation,
or separation only with respect either to
their present or future property, the
property not agreed upon as separate shall
pertain to the absolute community following
the provisions of Articles 75 and 144 of the
FC.
What properties are included?
1. All earnings by each spouse from his or her
profession, business or industry; and
2. All fruits, natural, industrial or civil, due or
received during the marriage from his or
her separate property.
Rule on Expenses:
Both spouses shall bear the same in proportion
to their income or, in case of insufficiency and
default thereof, to the current market value of
their separate properties.
Civil Law
2018
They shall, however, be held solidarily liable to
the creditors in connection with such family
expenses (Art. 146, FC).
7. Judicial Separation of Property
Grounds for Judicial Separation of
Property
1. Civil interdiction;
2. Declared absentee;
3. Loss of parental authority;
4. Abandonment and failure to comply with
the obligations to the family;
5. Abuse of power of administration;
6. At the time of the petition, spouses are
separated in fact for at least 1 year and
the possibility for reconciliation is highly
improbable (Art. 135, FC).
7. Abuse of power of administration;
8. At the time of the petition, spouses are
separated in fact for at least 1 year and
the possibility for reconciliation is highly
improbable (Art. 135, FC).
 In the grounds provided for in Numbers
(1), (2) and (3), the presentation of the
final judgment against the guilty or
absent spouse shall be enough basis for
the grant of the decree of judicial
separation of property.
Filing of petition for judicial separation of
property
The spouses may jointly file a verified petition
with the court for the voluntary dissolution of
the absolute community or the conjugal
partnership of gains, and for the separation of
their common properties.
All creditors of the absolute community or of
the conjugal partnership of gains, as well as
the personal creditors of the spouse, shall be
listed in the petition and notified of the filing
thereof.
The court shall take measures to protect the
creditors and other persons with pecuniary
interest (Art.136, FC).
Bar Operations C ommissions 57
 Purple Notes
Civil Law
Pendency of proceeding:
Once the separation of property has been
decreed, the absolute community or the
conjugal partnership of gains shall be liquidated
in conformity with this code.
During the pendency of the proceedings for
separation of property, the absolute community
or the conjugal partnership shall pay for the
support of spouses and their children (Art. 137,
FC).
Records of the case:
The petition for separation of property and the
final judgment granting the same shall be
recorded in the proper local civil registries and
registries of property (Art. 139, FC).
The separation of property shall not prejudice
the rights previously acquired by creditors (Art.
140, FC).
Revival of property regime:
The spouses, may, in the same proceedings
where separation of property was decreed, file
a motion in court for a decree reviving the
property regime that existed between them
before the separation of property in any of the
following instances:
1. When the civil interdiction terminates;
2. When the absentee spouse reappears;
3. When the court, being satisfied that the
spouse granted the power of administration
in the marriage settlements will not again
abuse that power, authorizes the
resumption of said administration;
4. When the spouse who has left the conjugal
home without a decree of legal separation
resumes common life with the other;
5. When parental authority is judicially
restored to the spouse previously deprived
thereof;
6. When the spouses who have separated in
fact for at least one year, reconcile and
resume common life; or
7. When after voluntary dissolution of the
absolute community of property or conjugal
partnership has been judicially decreed
58 Center for Legal Education and Research
upon the joint petition of the spouses, they
agree to the revival of the former property
regime. No voluntary separation of
property may thereafter be granted
(Art.141, FC).
Transfer of administration of exclusive
property between the spouses:
By agreement by means of a public instrument,
recorded in the registry of property of the place
where the property is located.
1. The administration of all classes of
exclusive property of either spouse may be
transferred by the court to the other
spouse:
a. When one spouse becomes the
guardian of the other.
b. When one spouse is judicially declared
an absentee;
c. When one spouse is sentenced to a
penalty which carries with it civil
interdiction; or
d. When one spouse becomes a fugitive
from justice or is in hiding as an
accused in a criminal case (Art. 142, FC).
 If the other spouse is not qualified by
reason of incompetence, conflict of
interest, or any other just cause, the
court shall appoint a suitable person
to be the administrator (Id.).
 Automatic termination of
administration in case the
administrator-spouse alienates any
exclusive property of the other. The
proceeds shall be turned over to the
owner-spouse (Art 112, FC).
8. Property Regime of Unions Without
Marriage (Arts. 147-148, FC)
General rule: In case of void marriages,
regardless of the cause thereof, or those living
together as husband and wife without the
benefit of marriage, the property relations of
the parties during the period of cohabitation is
Art. 147 or 148 of the FC, as the case may be
(Rabuya, The Law on Persons and Family Relations,
2006, p. 507).
 Purple Notes
Civil Law
ART. 147 ART. 148 maintenance
2018
Applicability of family and
1. No legal Presence of legal impediment: household
impediment (Buenaventur
to marry but 1. Adulterous relationships a v.
living as 2. Bigamous/polygamous Buenaventura
husband and marriages , G.R. No.
wife; 3. Incestuous void 127358, Mar.
marriages under Art 37 31, 2005)
2. Void 4. Void marriages by reason Forfeiture
marriage on of public policy (Art. 38) When only If one of the parties is validly
the ground of one is in GF, married to another, his/her share
psychological share of party in the co‐ownership shall accrue to
incapacity. in BF in the the ACP or CPG existing in the
co‐ownership marriage.
Salaries & wages be forfeited in
Owned in Separately owned by the parties. favor of: If the party who acted in BF is not
equal shares If any party is married, his/her 1. their validly married to another or if
salary pertains to the ACP or CPG common both parties are in BF, such share
of the legitimate marriage. children; be forfeited in manner provided in
Property exclusively acquired 2. in default last paragraph of Art. 147
Belongs to Belongs to such party of /
party waiver by
upon proof of any/all
acquisition common
through children,
exclusive or by
funds their
Acquired by both through their work or descenda
industry nts, to
the
Governed by Owned in common in proportion
surviving
rules of to their respective contributions
descenda
co‐ownership
nts;
Presumption
3. in their
Property No presumption of joint absence,
acquired acquisition. to the
while living innocent
together Actual joint contribution of money, party
presumed to property or industry shall be
Proof of actual contribution
have been owned by them in common
Not necessary Necessary
obtained by proportion.
their joint However, their contributions are
efforts, work presumed equal, in the absence of This property regime applies when the
or industry proof to the contrary . following requisites concur (Art 147, FC)
and owned by
them in equal 1. A man and a woman who are capacitated
shares. to marry each other;
2. Live exclusively with each other as husband
If one party
and wife; and without the benefit of
did not
participate in marriage or under a void marriage.
acquisition:
presumed to Examples:
have
contributed 1. Marriages declared void by reason of
through care psychological incapacity (see Art. 36, FC);
and

Bar Operations C ommissions 59

 Purple Notes
Civil Law
2. Marriages celebrated without a valid
marriage license [see Art. 35(3), FC].
Shares of parties in property
1. Wages and salaries are owned in equal
shares.
 Wages and salaries will be divided
equally between them, even if only one
party earned the wages and the other
did not contribute thereto. (Art 147, FC)
2. De Facto Co-Ownership – With respect to
property acquired by both through work
and industry, rules on co-ownership shall
apply.
 Property acquired by both spouses
through their work and industry shall
be governed by the rules of equal co-
ownership when the marriage was
declared null pursuant to Art. 36 of the
Family Code. A party who did not
participate in the acquisition of the
property shall still be considered as
having contributed thereto jointly if
said party‘s ―efforts consisted in the
care and maintenance of the family
household.‖ (Valdes v. RTC, G.R. No.
122749, July 31, 1996)
3. Care and maintenance of the family and
household are deemed to be joint and
equal.
4. Parties cannot encumber or dispose by acts
inter vivos their share in the property
acquired during their cohabitation and
owned in common, without the consent of
the other, until after termination of
cohabitation.
5. In cases of void marriages, if only one
party is in good faith, the share of the
spouse who is in bad faith shall be forfeited
a. In favor of their common children
b. In case of default or waiver by any or
all of the common children or their
descendants, each vacant share shall
belong to the respective surviving
descendants.
60 Center for Legal Education and Research
c. In the absence of such descendants,
such share belongs to the innocent
party.
Unions Governed by Article 148, FC:
1. Bigamous marriages;
2. Adulterous relationship;
3. Relationships in a state of concubinage;
4. Relationships where both man and woman
are married to other persons; or
5. Multiple alliances of the same married man.
 Wages and salaries earned by each
party belong to him/her exclusively.
 Only properties acquired by the parties
through their ―actual joint contribution‖
of money, property or industry shall be
owned in common in proportion to
their respective contributions.
 In the absence of proof to the contrary,
contributions and the share of the
parties to the properties acquired
during the cohabitation are presumed
to be equal.
If one party is validly married to another:
1. His/her share in the co-owned properties
will accrue to the absolute community
property/conjugal partnership of gains of
his/her existing valid marriage.
2. If the party who acted in bad faith is not
validly married to another, his/her share
shall be forfeited in the same manner as
that provided in Art 147, FC.
3. The same rules on forfeiture shall apply if
both parties are in bad faith
G. THE FAMILY
1. Concept of Family
Family is considered as a basic social institution
which, by reason of public policy, deserved
State‘s protection. The Philippine Constitution
emphatically declares Filipino family as
―foundation of the nation‖. As such, our
Constitution is committed to the policy of
strengthening the family as a basic
autonomous social institution (Rabuya, The Law
on Persons and Family Relations, 2007, p. 512-513).
 Purple Notes
2. Effects on Legal Dispute
Earnest efforts toward a compromise be first
exerted before action or suit between or among
the members of the same family may be given
due course.
The requirement is mandatory that earnest
efforts have been made but that the same
failed, so that if it is shown that no such effort
were in fact made, the case must be dismissed.
Hence, it is a condition precedent to the filing
of a suit between members of the same family.
Failure to allege that earnest efforts to
compromise were undertaken is assailable at
any stage of the proceeding, even on appeal,
for lack of cause of action (O‘ Laco v. Co Cho
Chit, G.R. No. 58010, March 31, 1993).
3. Family Home
The family home, constituted jointly by the
husband and the wife or by an unmarried head
of a family, is the dwelling house where they
and their family reside, and the land on which
it is situated (Arts. 152, FC).
After the effectivity of the Family Code, a family
home is deemed constituted upon actual
occupation of the family. There is no need to
constitute it judicially or extra-judicially (Rabuya,
The Law on Persons and Family Relations, 2006, p.
518).
Constitution of family home: The family
home is deemed constituted on a house and lot
from the time it is occupied as a family
residence (Arts. 153, FC).
Limitations:
1. Each family can only have one family
home. After a family house is constituted,
no other family home can be established
without first dissolving the existing one.
2. The family home can be constituted only
on the dwelling place, and therefore, in the
locality where the family has its domicile.
3. The value of the family home exempt from
seizure of creditors cannot exceed the
limits fixed by law
4. It must be part of the properties of the
ACP/CPG, or of the exclusive properties of
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2018
either spouse with the latter's consent. It
may also be constituted by an unmarried
head of a family on his or her own property
(Arts. 156, FC).
 The property that is the subject of a
conditional sale on installments where
ownership is reserved by the vendor
only to guarantee payment of the
purchase price may be constituted as a
family home (Paras, Civil Code of the
Philippine Annotated, Persons and Family
Relations, 2008, p. 647).
5. It may be sold, alienated, donated,
assigned or encumbered by the owner or
owners thereof with the written consent of
the person constituting the same, the
latter's spouse, and a majority of the
beneficiaries of legal age. In case of
conflict, the court shall decide (Arts. 158,
FC).
General Rule: From the time of its
constitution and so long as any of its
beneficiaries actually resides therein, the family
home continues to be such and is exempt from
execution, forced sale or attachment (Art. 153,
FC).
Exceptions:
1. Non-payment of taxes;
2. Debts incurred prior to the constitution of
family home;
3. Debts secured by mortgages on the
premises before or after its constitution;
and
4. Debts due to laborers, mechanics,
architects, builders, materialmen and
others who have rendered service or
furnished material for the construction of
the building (Art. 155, FC).
 The Family Home is protected only up
to the extent of the following amounts:
a. P300,000.00, in urban areas; and
b. P200,000.00, in rural areas (Art.
157, FC).
 As a rule, the family home is exempt
from execution, forced sale or
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attachment. However, Article 155(3) of
the Family Code explicitly allows the
forced sale of a family home "for debts
secured by mortgages on the premises
before or after such constitution."
While it is true that the family home is
constituted on a house and lot from the
time it is occupied as a family
residence and is exempt from
execution or forced sale under Article
153 of the Family Code, such claim for
exemption should be set up and proved
to the Sheriff before the sale of the
property at public auction. Failure to do
so would estop the party from later
claiming the exemption. (Spouses Charlie
Fortaleza and Ofelia Fortaleza v. Spouses
Raul Lapitan and Rona Lapitan, G.R. No.
178288, August 15, 2012)
Duration of Protection: The right to
exemption is effective from the time of the
constitution of the family home and lasts so
long as its beneficiaries actually reside therein.
(Art.153, FC)
Requisites for judgment creditor to avail
the rights under sale on execution of
family home:
1. He must be a judgment creditor;
2. His claim is not among those excepted
under Article 155; and
3. He has reasonable ground to believe that
the family home is worth more than the
maximum amount of P200,000 (for rural
areas) or P300,000 (for urban areas) (Art.
160, FC).
Effect of death of the person constituting
the family home
If there are beneficiaries who survive and living
in the family home, it will continue to be such
for 10 years, unless at the expiration of 10
years, there is still a minor beneficiary, in which
case it will remain a family home until that
beneficiary becomes of age (Rabuya, Civil Law
Reviewer Vol 1, 2017, p. 199).
Beneficiaries of the Family Home:
62 Center for Legal Education and Research
1. Husband and wife, or unmarried person
who is the head of the family; and
2. The following relatives of such persons
whether legitimate or illegitimate:
a. Their parents;
b. Their ascendants and descendants; and
c. Their brothers and sisters,
Provided they comply with the following:
1. They live in the family home; and
2. They are dependent for legal support
upon the head of the family (Art. 154,
FC).
 Beneficiaries include the in-laws. But the
law definitely excludes maids and
overseers (Patricio v Dario III, G.R. No.
170829, November 20, 2006).
H. PATERNITY AND FILIATION
Paternity - The civil status of the father with
regard to the child.
Filiation - The civil status of the child with
regard to his father either by nature or
adoption.
Legitimate Children
Legitimate – conceived or born during a
valid marriage or within a lawful wedlock (Art.
164, FC)
Children who are born outside of wedlock
but are considered LEGITIMATE:
a. Children of void marriages on the ground
of psychological incapacity (Art. 36, FC);
b. Children born in a subsequent void
marriage due to non-compliance of the
registration requirements (Art. 53, FC); and
c. Born of a voidable marriage before the
decree of annulment (Art. 54, FC).
Children by artificial insemination: A child
conceived by artificial insemination (AI) is
considered legitimate (Art. 164, FC).
 Purple Notes
Requisites:
1) Artificial Insemination (AI) is made on the
wife, not on another woman;
2) AI on the wife is done with sperm of the
husband or that of a donor, or a
combination of the husband and the donor;
3) AI has been authorized or ratified by the
husband and wife in a written
instrument;
4) Executed and signed by them before the
birth of the child; and
5) The written instrument is recorded in
civil registry together with the birth
certificate of the child (Art.164, FC).
Rights of Legitimate Children
1. To bear the surnames of the father and the
mother, in conformity with the provisions
of the Civil Code on Surnames;
2. To receive support from their parents, their
ascendants, and in proper cases, their
brothers and sisters, in conformity with the
provisions of this Code on Support; and
3. To be entitled to the legitimate and other
successional rights granted to them by the
Civil Code (Art. 174, FC).
Presumption of legitimacy
The child conceived or born during a valid
marriage is presumed to be legitimate. (Art.
164, FC)
2. Proof of Filiation
a. Primary
1) Record of birth appearing in civil
register or a final judgment; or
2) Admission of legitimate filiations in a
public document or a private
handwritten instrument signed by the
parent concerned (Art. 172, FC).
b. Secondary
1) Open and continuous possession of the
status of a legitimate child; or
2) Any other means allowed by the Rules
of Court and Special laws (Art. 172, FC).
 The due recognition of an illegitimate
child in a record of birth, a will, a
statement before a court of record, or
Civil Law
2018
in any authentic writing is, in itself, a
consummated act of acknowledgment
of the child, and no further court action
is required. (Potenciano v. Reynoso, G.R.
No. 140707, April 22, 2003). In fact, any
authentic writing is treated not just a
ground for compulsory recognition; it is
in itself a voluntary recognition that
does not require a separate action for
judicial approval (ECETA v. ECETA, G.R.
No. 157037, May 20, 2004).
 A birth certificate to be considered as
validating proof of paternity and as an
instrument of recognition must be
signed by the father and mother
jointly, or the mother alone if the
father refuses (Reyes v. CA, G.R. No. L-
39537, March 19, 1985).
 Alfredo Aguilar‘s SSS Form E-1 (Exhibit
―G‖) satisfies the requirement for proof
of filiation and relationship to the
Aguilar spouses under Article 172 of
the Family Code; by itself, said
document constitutes an ―admission of
legitimate filiation in a public document
or a private handwritten instrument
and signed by the parent concerned‖
(Aguilar vs. Siasat, G.R. No. 200169,
January 28, 2015
 The Court adopted adopt the following
rules respecting the requirement of
affixing the signature of the
acknowledging parent in any private
handwritten instrument wherein an
admission of filiation of a legitimate or
illegitimate child is made:
1) 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; and
2) 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
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Civil Law
by the acknowledging parent as it
is merely corroborative of such
other evidence (Dela Cruz vs. Gracia,
G.R. No. 177728, July 31, 2009.
Illegitimate Children (Art. 176, FC as
amended by R.A. No. 9255)
Illegitimate – conceived and born outside a
valid marriage, except those children born
during void marriages under Articles 36 and 53,
FC.
Illegitimate children may use the surname of
their father if their filiation has been expressly
recognized by the father, either through:
1. Record of birth in civil register;
2. Father‘s admission in public document;
3. Father‘s admission in private handwritten
document.
The father, under RA 9255, Sec. 1, has the
right to file an action to prove non-filiation
during his lifetime.
 All illegitimate child should use the
surname of the mother if the requisites of
RA 9255 are not complied with (Rule 8.1,
Revised IRR of RA 9255).
How to prove filiation of Illegitimate
Child
Illegitimate children may establish their
illegitimate filiation in the same way and on the
same evidence as legitimate children. Except if
proof of illegitimate filiation is any of the
following: a) open and continuous
possession of the status of an illegitimate
child; or b) any other means allowed by the
Rules of Court and special laws. In case of
these two instances, the action must be
brought during the lifetime of the
putative father. (Art. 175, FC)
Prescription Period for Claiming Filiation
of illegitimate Child - The action must be
brought by the child during his or her lifetime
and shall be transmitted to the heirs should the
child:
1. Dies during minority;
64 Center for Legal Education and Research
2. Dies during state of insanity; or
3. Dies after the commencement of the
action. The heirs shall have 5 years within
which to institute the action (Art. 173 in
relation to Art. 175, FC).
Rights of illegitimate Children:
1. To bear the surname of the mother
regardless of whether or not the father
admits paternity;
2. To have an option to use his/her father‘s
surname if: his/her filiation is expressly
recognized by the father though the record
of birth; or when admission of paternity is
written by the father in a public or private
instrument;
3. To receive support from the mother and
the exclusive or separate property of the
father; and
4. To be entitled to the legitime (1/2 of each
legitimate child) and other successional
rights granted to them by the Civil Code
(Art. 172, FC).
4. Impugning the legitimacy of a child
(Art. 171, FC)
General Rule: Only the husband can impugn
the legitimacy of a child.
Exception: The heirs of the husband may
impugn the child‘s filiation in the following
cases:
1. If the husband dies before the expiration of
period for filing his action;
2. If the husband dies after filing without
desisting therefrom; or
3. If the child was born after the death of the
husband (Art. 171, FC)
RATIONALE: Legitimacy can be impugned
only by direct action brought for that purpose,
by the proper parties and within the period
allowed by law. It is strictly a personal right of
the husband (Rabuya, Civil Law Reviewer I, 2017,
p. 203).
 Legitimacy cannot be attacked collaterally
(Sayson v. CA, G.R. No. 89224-25, January 23,
1992).
 Purple Notes
Grounds for impugning the legitimacy of
a child (Art. 166, FC)
1. Physical impossibility for the husband to
have sexual intercourse with his wife within
the first 120 days of the 300 days
immediately preceding the birth of the
child due to:
a. Physical incapacity of the husband
(Impotent);
 It is only impotency which the law
considers as sufficient ground to
impugn the child‘s legitimacy, and
not sterility. (Macadangdang v. CA,
G.R. No. L-49542, September 12,
1980)
b. The spouses are living separately in
such a way that sexual intercourse was
not possible;
 Where the husband and wife
continued to live together in the
same province after their alleged
separation, the Court did not
discount the possibility of physical
access to each other considering
their proximity to each other
(Concepcion v. CA, G.R. No. 123450,
August 31, 2005).
c. Serious illness of the husband which
absolutely prevented intercourse.
2. Biological or scientific proof that the child
could not have been that of the husband;
Estoppel applicable: In artificial
insemination by sperm of another man, the
husband is expressly prohibited from
assailing the child‘s legitimacy if he
authorized or ratified such artificial
insemination in the manner required by law
(Art. 166[2], FC).
Blood testing
a. conclusive on non-paternity
b. inconclusive on paternity (Jao v. CA,
G.R. No. L-49162, July 28, 1987)
DNA testing may now be used to
establish paternity or non- paternity (Tijing
v. CA, G.R. No. 125901, March 8, 2001)
Civil Law
2018
 The death of the claimed father does
not ipso facto negate the application of
DNA testing for as long as there exists
appropriate biological samples of his
DNA (Estate of Rogelio Ong v. Diaz, G.R.
No. 171713, December 17, 2007).
 There must be first a show cause
hearing wherein the applicant must
first present sufficient evidence to
establish a prima facie case or a
reasonable possibility of paternity or
good cause for the holding of the test.
(Lucas v. Lucas, G.R. No. 190710, June 6,
2011)
3. Written authorization or ratification for
artificial insemination was obtained through
mistake, fraud, violence, intimidation or
undue influence (Art. 166, FC).
Prescriptive period for impugning
legitimacy
May be brought within 1, 2, or 3 years from the
knowledge of the birth, or the knowledge of
registration of birth.
1. Within 1 year - if husband or any heirs
reside in the same city or municipality
where the child was born or his birth was
recorded.
2. Within 2 years - if the husband or all
heirs live in the Philippines but do not
reside in the same city or municipality
where the child's birth took place or was
recorded
3. Within 3 years - if the husband or all
heirs live outside the Philippines when the
child's birth took place or was recorded in
the Philippines (Art. 170, FC)
Applicability of the periods
Applicable only if the action is to impugn
legitimacy, the child was the undisputed
offspring of the mother but the husband denies
paternity.
Effect of expiration of period
The action to impugn legitimacy of a child
would no longer be legally feasible and the
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 Purple Notes
Civil Law
status conferred by the presumption is fixed born within 300 days after the termination
and unassailable. of the 1st marriage.

If the birth of the child has been concealed or Action to Impugn Legitimacy v. Action to
was unknown to the husband, the above Claim Legitimacy
periods shall be counted:
ACTION TO IMPUGN ACTION TO CLAIM
1. From the discovery or knowledge of the LEGITIMACY LEGITIMACY
birth of the child, or Remedy
2. From the discovery or knowledge of the Action to impugn Action to claim legitimacy
fact of registration of said birth, legitimacy or illegitimacy (compulsory recognition)
whichever is earlier (Art. 170, FC). Real party in interest
Genral Rule: Husband Genral Rule: Child
 The period shall be counted from the
Exception: Heirs, in Exception: Heirs of the
knowledge of the child‘s birth or its
cases where: child, in cases where:
recording in the civil register.
1. Husband died before 1. Child died in state of
 There is a universal scientific agreement the expiration of the insanity
that the blood grouping tests are period for bringing the 2. Child died during
conclusive as to non-paternity, that is, the action; minority
fact that the blood type of the child is a 2. Husband died after
possible product of the mother and the filing the complaint, Note: Must be filed within
alleged father does not conclusively prove without having 5 years. (Art. 173, FC)
desisted;
that the child is born by such parents. If
3. Child was born after
the blood type of the child is not the the death of husband.
possible blood of the mother and of the (Art. 171, FC)
alleged father after it had been cross- Prescription
matched, then the child cannot possibly be 1 year – husband reside General Rule: During the
that of the alleged father. (Jao v. Court of in the same municipality lifetime of the child
Appeals, G.R. No. L-49162, July 28, 1987). or city where birth took
place Exception: Lifetime of the
Rule of the status of children born after 2 years – husband reside putative father.
300 days following termination of NOT in the same In cases where the action
marriage municipality or city is for the recognition of
3 years – husband is illegitimate child by ―open
living abroad (Art. 170, and continuous
Requisites: FC) possession‖ of the status
and other means allowed
1. First marriage was terminated; by the Rules of Court and
2. Mother contracted a subsequent marriage special laws. (Art. 175, FC)
within 300 days after termination;
3. A child is born within 300 days after the  One can prove filiation, either legitimate or
termination of previous marriage. illegitimate, through the record of birth
appearing in the civil register or a final
Rules as to Whom the Child Belongs: judgment, an admission of filiation in a
1. To the first marriage – if the child is born public document or a private handwritten
BEFORE 180 days after the celebration of instrument and signed by the parent
the 2nd marriage, and within 300 days concerned, or the open and continuous
after the termination of the 1st marriage. possession of the status of a legitimate or
2. To the second marriage – If the child was illegitimate child, or any other means
born AFTER 180 days following the allowed by the Rules of Court and special
celebration of the 2nd marriage even if laws. We have held that such other proof
of one's filiation may be a "baptismal

66 Center for Legal Education and Research

 Purple Notes
certificate, a judicial admission, a family
bible in which [his] name has been
entered, common reputation respecting
[his] pedigree, admission by silence, the
[testimonies] of witnesses, and other kinds
of proof [admissible] under Rule 130 of the
Rules of Court." (Charles Gotardo v. Divina
Buling, G.R. No. 165166, August 15, 2012)
5. Legitimated Children
Legitimated – originally illegitimate but later
considered legitimated by legal fiction because
of the subsequent marriage of the parents who
at the time of the child‘s conception had no
legal impediment to marry each other or even
if disqualified, the reason for disqualification is
simply below 18 (As amended by RA 9858)
Effects of legitimation:
1. Confers on the child the rights of legitimate
children (Art. 179, FC);
2. Retroacts to the time of the childs birth. (Art.
180, FC)
Civil Law
How legitimation takes place:
2018
1. At the time of conception of the child,
his/her parents were not disqualified by
any impediment to marry each other;
2. The child is conceived and born outside of
wedlock;
3. After the birth of the child, his/her parents
subsequently got married; and
4. Such marriage is not void ab initio. (Art. 178
and 177, FC).
Effect of death before legitimation
The legitimation of children who died before
the celebration of marriage of his/her parents
shall benefit his/her descendants (Art. 181, FC).
Who may impugn?
Legitimation may be impugned only by those
who are prejudiced in their rights as a result of
the legitimation, within 5 years from the time
of death of either of the parents of the child.
(Art.182, FC).

LEGITIMATE (L) ILLEGITIMATE (IL) LEGITIMATED (LD)

L IL
Conceived or born during a valid
marriage.
Children conceived as a result of
artificial insemination on the
wife.
Children born to void marriages
under Arts. 36 and 53.
Bear surname of father
Receive support from parents
ascendants, brothers and sisters
LD
Define
Conceived and born outside a Originally illegitimate but later
valid marriage or outside lawful considered legitimate by legal fiction
wedlock by subsequent marriage of parent
who, at the time of conception had no
legal impediment to marry each or
even if disqualified the reason for
disqualification is simply 18.
Rights
Use of surname of the mother (or Bear surname of father;
father under R.A. 9225)
Receive support from parents,
Support ascendants, brothers and sisters;

Entitled to legitimate and other Legitimate (half of the legitime of Entitled to legitime and other
succession all rights under the legitimate children) (Art. 176, FC) successional rights under the Civil Code
Civil Code. (Art. 174, FC) (Art. 179 In relation to Art. 174, FC)
To Establish Status
May be brought by a child In the same way and on the same Acknowledgement not needed:
during his or her lifetime and evidence as a legitimate child. marriage of parents enough
should be transmitted to the
heirs if the child dies during Same period, except if action is
minority or in a state of insanity. based of Art. 172. Par. 2, it must be

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 Purple Notes
Civil Law
filed within the lifetime of the
Heirs shall have 5 years within alleged parent
which to institute the action.
(Art. 175, FC)
Proof of Filiation
Primary: Certificate of Adoption
Record of birth appearing in the civil register or a final judgement.

Admission of legitimate filiation in a public document or private

handwritten instrument and signed by parent concerned (Art. 172, FC)

Secondary:
Open and continuous possession of the status of a legitimate child.

Any other means allowed by the Rules of Court and special laws (Art.
172, FC)

Grounds for Impugning

Physical impossibility of husband to have sexual intercourse with his Subsequent marriage of parents is void
wife within first 120 days of the 300 days immediately preceding birth
Child not really a child of the parents.
Biological and scientific reasons
At the time of child‘s conception,
For children conceived through artificial insemination, written parents are disqualified to marry each
authorization obtained thru fraud, mistake, violence, intimidation or other by reason other than their age.
undue influence. (Art. 176, FC)
Who may Impugn
Husband Those who are prejudiced in their
Heirs may impugn only in the ff. cases: rights. (Art. 182, FC)
1. Husband dies before expiration of the period for bringing action
2. Husband dies after filing without desisting therefrom
3. Child was born after death of husband (Art. 171, FC)
Periods for Filing
1 year if husband/heirs reside in the city or municipality where the child Within 5 years from time their cause
was born or birth was recorded. accrues. (Art. 182, FC)

2 years if husband/heirs do not reside in the same city or municipality,

but a resident of the Philippines

3 years if husband is residing abroad and the child is born or birth

recorded in the Philippines. (Art. 170, FC)

I. ADOPTION

1. Domestic Adoption Act (DAA) of 1998 (R.A. No. 8552)

Adoption

A juridical act and a proceeding in rem which creates between two persons a relationship similar to
that which results from legitimate paternity and filiation (Lazatin v. Campos, G.R. No. L-43955-56, July 30,
1979).

68 Center for Legal Education and Research


The tampering of the civil registry making it
appear in the birth records that a certain child
was born to a person who is not the biological
mother, causing such child to lose his true
identity and status is simulation of birth,
which does not produce the legal effects of
adoption (Sec. 3[j], RA 8552).
Who may adopt?
Filipino Citizen
1. Of legal age;
2. With full civil capacity and legal rights;
3. With good moral character;
4. Has not been convicted of any crime
involving moral turpitude;
5. Emotionally and psychological capable of
caring for children;
6. In a position to support and care for
his/her children in keeping with the
means of the family; and
7. At least 16 years older than the adoptee,
but may be waived if:
a. Adopter is the biological parent of the
adoptee; or
b. Adopter is the spouse of the
adoptee‘s parent (Sec. 7 [a], RA 8552).
Aliens
1. Same qualifications for Filipino citizens;
and
2. His/her country has diplomatic relations
with the Republic of the Philippines;
3. His government allows adoptee to enter
his/her country as his/her adopted child;
4. Has been certified by his/her diplomatic or
consular office or any appropriate
government agency that he/she has the
legal capacity to adopt in his/her country;
and
5. Has been living in the Philippines for at
least 3 continuous years prior to the filing
of application for adoption and maintains
such residence until the adoption decree
is entered (Sec. 7 [b], RA 8552).
The requirements on residency and
certification of the aliens may be waived if:
Purple Notes
Civil Law
2018
1. A former Filipino citizen seeks to adopt
a relative within 4th degree of
consanguinity or affinity;
2. Seeks to adopt the legitimate child of
his/her spouse; or
3. One who is married to a Filipino citizen
and seeks to adopt jointly with his/her
spouse a relative within 4th degree of
consanguinity or affinity of the Filipino
spouse (Sec. 7[b], 8552).
Joint adoption by spouses
General rule: The husband and the wife
shall jointly adopt (Sec. 7, RA 8552).
Exceptions:
1. One spouse seeks to adopt the legitimate
son/daughter of the other;
2. One spouse seeks to adopt his/her own
illegitimate son/daughter, provided, that
the other spouse has given his/her
consent,
3. If the spouses are legally separated from
each other (Sec. 7, 8552).
 The husband and the wife shall
jointly adopt. In one case, the birth
certificates of two (2) children were
simulated by Spouses Lim to make it
appear that they were their children.
One of the spouses died and the
surviving spouse remarried. The
surviving spouse proceeded to adopt
the two children by availing of the
amnesty given under R.A. 8552,
without jointly adopting with her new
spouse. The court held that the
surviving spouse or the petitioner,
having remarried at the time the
petitions for adoption were filed, must
jointly adopt. Since the petitions for
adoption were filed only by petitioner
herself, without joining her husband,
Olario, the trial court was correct in
denying the petitions for adoption on
this ground. Neither does petitioner
fall under any of the three exceptions
enumerated in Section 7. First, the
children to be adopted are not the
Bar Operations C ommissions 69
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Civil Law
legitimate children of petitioner or of
her husband Olario. Second, the
children are not the illegitimate
children of petitioner. And third,
petitioner and Olario are not legally
separated from each other (In Re:
Michelle Lim and In Re: Michael Jude
Lim, G.R. Nos. 168992-93, May 21,
2009.)
Who may be adopted?
A child is legally available for adoption, if:
1. Person below 18 years of age who has
been administratively or judicially declared
available for adoption;
2. Legitimate son/daughter of one of the
spouse by other spouse;
3. Illegitimate son/daughter by a qualified
adopter to improve his or her status to
that of legitimacy;
4. Any person of legal age, if prior to the
adoption said person has been
consistently considered by the adopter(s)
as his/her own child since minority;
5. Child whose adoption has been rescinded;
or
6. Child whose biological/adoptive parent(s)
has died (Sec. 8, RA 8552).
 Provided, no proceedings shall be
initiated within 6 months from the
time of death of said parents (Id.).
 Merely permitting the child to remain
for a time undisturbed in the care of
others is not the same as
abandonment. To dispense with the
requirement of consent, the
abandonment must be shown to have
existed at the time of adoption
(Landingin v. Republic, G.R. No. 164948,
June 27, 2006).
Rights of an Adopted Child
The adopted shall be considered for all intents
and purposes the legitimate child of the
adopter and shall be entitled to all the rights
70 Center for Legal Education and Research
accorded to legitimate children (Sec. 17, 8552),
to wit:
1. The right to use the surnames of the
father and the mother;
2. The right to receive support from their
parents, their ascendants, and in proper
cases, their brothers and sisters, in
conformity with the provisions of the
Family Code of the Philippines on
support; and
3. To be entitled to the legitimate and other
successional rights granted to them by
the Civil Code. (Art. 174, FC)
Effects of Domestic Adoption:
1. On Parental Authority: All legal ties
between the biological parents and the
adoptee shall be severed and the same
shall be vested in the adopters, except,
when the biological parent is the spouse
of the adopter (Sec. 16, R.A. No. 8552).
2. On Legitimacy: Adoptee shall be
considered a legitimate child of the
adopter for all intents and purposes and is
entitled to all rights and obligations
provided by law to a legitimate child (Sec.
17, R.A. No. 8552);
3. On Succession: In legal and intestate
succession, the adoptee and adopters
shall have reciprocal rights of succession
without distinction from legal filiation. The
adoptee and his/her biological parents can
likewise inherit based on testamentary
succession (Sec. 18, DAA) and intestate
succession (In re In the Matter of Adoption of
Stephanie Naty Astorga Garcia, G.R. No.
148311, March 31, 2005).
4. Issuance of new birth certificate in which
the adoptee will have a new name and
use the surname of the adopter.
Rescission of Adoption:
Instances when adoption may be
rescinded
1. Repeated physical and verbal
maltreatment by the adopter(s) despite
having undergone counseling:
2. Attempt on the life of the adoptee;

3. Sexual assault or violence; or
4. Abandonment or failure to comply with
parental obligations (Sec. 19, R.A. No.
8552).
The ADOPTEE is given the sole right to
rescind the adoption. (Sec. 19, DAA) Adoption
shall not be subject to rescission by the
adopter. However, adopter(s) may disinherit
the adoptee for causes provided in Article 919
of the Civil Code.
Effects of Rescission of Adoption:
1. The parental authority of the adoptee‘s
biological parent (s), if known, or the legal
custody of the DSWD shall be restored if
the adoptee is still a minor or
incapacitated;
2. The reciprocal rights and obligations of
the adopter(s) and the adoptee to each
other shall be extinguished;
3. The court shall order the civil registrar to
cancel the amended certificate of birth of
the adoptee and restore his/her original
birth certificate; and
4. Succession rights shall revert to its status
prior to adoption, but only as of the date
of judgment of judicial rescission. Vested
rights acquired prior to judicial rescission
shall be respected (Sec. 20, 8552).
1. Inter-Country Adoption Act of 1995
(R.A. No. 8043)
Inter-Country Adoption
The socio-legal process of adopting a Filipino
child by a foreigner or a Filipino citizen
permanently residing abroad where the
petition is filed, the supervised trial custody is
undertaken, and the decree of adoption is
issued outside the Philippines (Sec. 3, RA.
8043).
The child must first be placed under adoption
in the Philippines before he is placed for inter-
country adoption.
Purple Notes
Civil Law
2018
When allowed
Inter-country adoption is allowed ONLY as a
LAST RESORT. The Inter-Country Adoption
Board is mandated to ensure that all
possibilities for adoption of the child under the
FC have been exhausted and that inter-
country adoption is in the best interest of the
child (Sec. 7, RA. 8043).
Who may adopt? (Sec. 9, RA 8043)
Any alien or Filipino citizen permanently
residing abroad may file an application for
inter-country adoption of a Filipino child if
he/she is:
1. At least 27 years of age at the time of the
application;
2. At least 16 years older than the child to
be adopted, unless:
1. The adopter is the parent by nature of
the child to be adopted; or
2. The spouse of such parent;
3. If married, his/her spouse must jointly file
for the adoption;
4. Has the capacity to act and assume all
rights and responsibilities of parental
authority under his national laws;
5. Has undergone the appropriate counseling
from an accredited counselor in his/her
country;
6. Has not been convicted of a crime
involving moral turpitude;
7. Is eligible to adopt under his/her national
law;
8. Is in a position to provide the proper care
and support and to give the necessary
moral values and example to all his
children, including the child to be
adopted;
9. Agrees to uphold the basic rights of the
child as embodied under Philippine laws,
the U.N. Convention on the Rights of a
Child, and to abide by the rules and
regulations issued to implement the Inter-
Country Adoption Act;
10. Comes from a country with whom the
Philippines has diplomatic relations and
whose government maintains a similarly
authorized and accredited agency and
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that adoption is allowed under his/her
national laws; and
11. Possesses all the qualifications and none
of the disqualifications under the Inter-
Country Adoption Act and other applicable
Philippine laws.
Who may be adopted?
Only a ―legally-free child‖ (a child who is
below 15 years of age and has been
voluntarily or involuntarily committed to the
DSWD of the Philippines, in accordance with
the Child and Youth Welfare Code) may be
adopted (Sec. 8, RA 8043).
No child shall be matched to a foreign
adoptive family unless it is satisfactorily
shown that the child cannot be adopted
locally (Sec. 11, RA. 8043).
RA 11222 (An Act Allowing Rectification
of Simulated Birth Records)
Certification Declaring a Child Legally
Available for Adoption (CDCLAA) refers to
a document issued by the Secretary of DSWD
or the Secretary‘s duly authorized
representative as provided for by RA No.
9523, otherwise known as "An Act Requiring
Certification of the DSWD to Declare a ‗Child
Legally Available for Adoption‘ as a
Prerequisite for Adoption Proceedings (Sec.
3[a], RA 11222).
Simulation of birth record refers to the
tampering of the civil registry to make it
appear in the record of birth that a child was
born to a person who is not such child‘s
biological mother, causing the loss of the true
identity and status of such child (Sec. 3[f], RA
11222).
Qualifications of Adopters
1. Must be Filipino citizens;
2. Be of legal age;
3. Possess full civil capacity and legal rights;
4. Be of good moral character;
5. Have not been convicted of any crime
involving moral turpitude;
72 Center for Legal Education and Research
6. Be emotionally and psychologically
capable of caring for children; and
7. Be in a position to support and care for
the child in keeping with the means of the
family.
In case of adoption by a married couple,
where one of the adopters is a foreign
national married to a Filipino, the foreign
national must have been residing in the
Philippines for at least three (3) continuous
years prior to the filing of the petition for
adoption and application for rectification of
simulated birth record(Sec. 7, RA 11222).
Required Written Consent:
1. The adoptee, if ten (10) years of age or
over;
2. The legitimate and adopted daughters
and sons, ten (10) years of age or over,
of the adopter and adoptee, if any;
3. The illegitimate daughters and sons, ten
(10) years of age or over, of the adopter
if living with said adopter and the latter‘s
spouse, if any; and
4. The spouse, if any, of the adoptee (Sec.8,
RA 11222).
The petition for adoption with an application
for rectification of simulated birth record shall
be in the form of an affidavit and shall be
subscribed and sworn to by the petitioner or
petitioners before any person authorized by
law to administer affirmations and oaths (Sec.
9, RA 11222).
Adoption Process
The petition shall be filed with the Office of
the Social Welfare and Development Officer
(SWDO) of the city or municipality where the
child resides. The SWDO shall have seven (7)
days to examine the petition and its
supporting documents and determine whether
the same is sufficient in form and substance.
If the SWDO finds that the petition is
insufficient in form or substance, the SWDO
shall return the same to the petitioner with a
written explanation of its insufficiency. If the
SWDO finds the petition sufficient in form and

substance, the SWDO shall forward the
petition and the supporting documents within
three (3) days to the Regional Director.
The Regional Director shall re view the
petition, establish the identity of the child, and
prepare the recommendation on the petition
not later than thirty (30) days from receipt
thereof. The Regional Director may require
the petitioner to submit additional information
or evidence to support the petition. The
failure of the petitioner to comply with such
request shall not preclude the Regional
Director from acting on the petition based on
the evidence on hand.
The Regional Director shall transmit to the
Secretary the recommendation on the petition
together with a copy of the petition and
supporting documents.
The Secretary shall act and decide on the
petition within thirty (30) days from receipt of
the recommendation of the Regional Director
(Sec. 10, RA 11222).
Effects of Administrative Adoption
1. Adoptee shall be considered the legitimate
daughter or son of the adopter for all
intents and purposes and as such is
entitled to all the rights and obligations
(Sec 15, RA 11222).
2. Except where a biological parent is the
spouse of the adopter, all legal ties
between the biological parents and the
adoptee shall be severed and the same
shall then be vested in the adopter (Sec.
16, RA 11222).
3. The adopter and the adoptee shall have
reciprocal rights of succession without
distinction from legitimate filiation.
However, if the adoptee and her or his
biological parents left a will, the law on
testamentary succession shall govern.
(Sec 17, RA 11222)
Grounds for Rescission
1. Repeated physical or verbal maltreatment
by the adopter;
Purple Notes
Civil Law
2018
2. Attempt on the life of the adoptee;
3. Sexual assault or violence;
4. Abandonment and failure to comply with
parental obligations; or
5. Other acts that are detrimental to the
psychological and emotional development
of the adoptee.
Adoption, being in the best interest of the
child, shall not be subject to rescission by the
adopter. However, the adopter may disinherit
the adoptee for causes provided in Article 919
of the Civil Code (Sec. 18, RA 11222).
Effects of Rescission
If granted, parental authority of the adoptee‘s
biological parents, if known, shall be restored
if the adoptee is still a minor or incapacitated.
The reciprocal rights and obligations of the
adopter and the adoptee to each other shall
be extinguished (Sec. 20, RA 11222).
J. SUPPORT
1. What it comprises
It comprises everything indispensable in
keeping with the financial capacity of the
family:
1. Food or sustenance;
2. Dwelling or shelter;
3. Clothing;
4. Medical attendance;
5. Education;
6. Transportation (Art. 194, FC)
Characteristics of the Right to Support:
1. Not subject to levy upon attachment or
execution (Art. 205, FC)
2. Cannot be renounced nor transmitted to a
3rd person (De Asis v. CA, G.R. No. 127578,
February 15, 1998)
3. Cannot be subject of compromise (Art.
2035, CC).
4. Cannot be extinguished by setting up
compensation against creditor who has a
claim for support due by gratuitous title
(Art.287[2], FC).
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 Purple Notes
Civil Law
2. Who are obliged to support each other
(Art. 195-197, 199-200, 206-208, FC)
1. Spouses – he/she must be the legitimate
spouse.
2. Legitimate ascendants and descendants;
 A husband may validly refuse to
support a child who is a fruit of an
adulterous relationship. (Sanchez v.
Zulueta, G.R. No. L-45616, May 16, 1939).
3. Parents and their children (whether or
illegitimate) and the latter‘s children
(whether legitimate or illegitimate);
The persons obliged to support each other
are limited to the grandparents and the
grandchildren only and vice versa.
 If at a hearing for support pendente
lite, the status of the child is at issue,
the alleged child can get support in
the meantime while the case is
pending from the alleged parent if his
status as such has been proven
provisionally (Mangulabnan v. IAC, G.R.
No. 71994, May 31, 1990).
4. Legitimate brothers and sisters (whether
full or half-blood); (Art. 195, FC)
5. Brothers and sisters not legitimately
related (whether full or half-blood).
Exception: When the need for support of
the brother/sister, being of age, is due to
cause imputable to the claimant‘s fault of
negligence. (Art. 196, FC)
 Since filiation is beyond question,
support follows as a matter of
obligation; a parent is obliged to
support his child, whether legitimate
or illegitimate. Support consists of
everything indispensable for
sustenance, dwelling, clothing,
medical attendance, education and
transportation, in keeping with the
financial capacity of the family. Thus,
the amount of support is variable and,
for this reason, no final judgment on
74 Center for Legal Education and Research
the amount of support is made as the
amount shall be in proportion to the
resources or means of the giver and
the necessities of the recipient. It may
be reduced or increased
proportionately according to the
reduction or increase of the
necessities of the recipient and the
resources or means of the person
obliged to support (Charles Gotardo v.
Divina Buling, G.R. No. 165166, August
15, 2012).
3. Source of Support
The support of the spouses, their common
children, and legitimate children of either
spouse is chargeable to the absolute
community of property or the conjugal
partnership of gains.
If the community property or the conjugal
partnership is insufficient to cover this liability,
the spouses shall be solidarily for the unpaid
balance with their separate properties(Arts. 94
and 121, FC).
4. Order of Liability for Support
When two or more persons are obliged to give
support, the following order should be
followed:
a. The spouse;
b. The descendants in the nearest degree;
c. The ascendants in the nearest degree;
and
d. The brothers and sisters (Art. 199, FC).
When the obligation to give support falls upon
two or more persons, the payment of the
same shall be divided between them in
proportion to the resources of each. In case of
urgent need and by special circumstances, the
judge may order only one of them to furnish
the support provisionally, without prejudice to
his right to claim from the other obligors the
share due from them (Art. 200, FC).

Insufficiency of means to give support:
When two or more recipients at the same
time claim support from one and the same
person legally obliged to give it, should the
latter not have sufficient means to satisfy all
claims, the order established in Art. 199, FC
shall be followed, unless the concurrent
obligees should be the spouse and a child
subject to parental authority, in which case
the child shall be preferred (Art. 200, FC).
5. Amount of Support
The amount of support shall be in proportion
to the:
1. Resources or means of the giver; and
2. The necessities of the recipient (Arts. 201,
FC).
 In the same vein, support shall be
reduced or increased proportionately,
according to the (a) reduction or (b)
increase of the necessities of the recipient
and the resources or means of the person
obliged to furnish the same (Arts. 202, FC).
When demandable
From the time the person who has a right to
receive the same needs it for maintenance,
but it shall not be paid except from the date
of judicial or extrajudicial demand.
Payment shall be made within the first five
days of each corresponding month or when
the recipient dies, his heirs shall not be
obliged to return what he has received in
advance (Arts. 203, FC).
Options
The person obliged to give support shall have
the option to fulfill the obligation either by:
1. paying the allowance fixed; or
2. by receiving and maintaining in the family
dwelling the person who has a right to
receive support (Art. 204, FC).
Purple Notes
Civil Law
2018
This cannot be availed of in case there is a
moral or legal obstacle thereto (Arts. 204, FC).
Payment by Third Person
If payment by a stranger or third person,
he/she is entitled to full reimbursement even
if made without the knowledge of the person
obliged to give support, unless the stranger
does not want to be reimbursed (Arts. 206,
FC).
A third person may provide support to the
needy if the person obliged to give support
refuses or fails to give support when urgently
needed. The
stranger has a right of reimbursement (Arts.
207, FC).
6. Manner and time of Payment
From the time the person who has a right to
receive the same needs it for maintenance,
but it shall not be paid except from the date
of judicial or extrajudicial demand.
Payment shall be made within the first five
days of each corresponding month or when
the recipient dies, his heirs shall not be
obliged to return what he has received in
advance (Arts. 203, FC).
Options
The person obliged to give support shall have
the option to fulfill the obligation either by:
1. paying the allowance fixed; or
2. by receiving and maintaining in the family
dwelling the person who has a right to
receive support.
This cannot be availed of in case there is a
moral or legal obstacle thereto (Arts. 204, FC).
7. Renunciation and Termination
After the final judgment granting petition for
annulment or petition for declaration of nullity
of marriage, the obligation of mutual support
between spouses ceases(Art. 198, FC).
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 Purple Notes
Civil Law
In legal separation, even if marriage bond is
not severed, obligation of mutual support
ceases upon finality of a decree of legal
separation, although the court may, in its
discretion, order the guilty spouse to support
the innocent one (Art. 198, FC).
8. Support Pendente Lite Between
Spouses
During pendency of action for annulment or
declaration of absolute nullity of marriage, the
court shall provide for support of the spouses
and their common children in the absence of a
written agreement between spouses (Art. 49,
FC). The same rule shall apply during
pendency of an action for legal separation
(Art. 62, FC).
K. PARENTAL AUTHORITY (Patria
Potestas)
1. General Provisions
A mass of rights and obligations which
parents have in relation to the person and
property of their children until their majority
age or emancipation, and even after this
under certain circumstances (JJ. Makasiar,
Dissenting Opinion, Luna v. IAC, G.R. No. L-68374,
June 18, 1985).
What Constitutes Parental Authority
Pursuant to the natural right and duty of
parents over the person and property of their
unemancipated children, parental authority
and responsibility shall include:
1. Taking care of their children;
2. Rearing them for civic consciousness and
efficiency; and
3. Development of their moral, mental and
physical character and well-being (Art. 209,
FC).
Substitute and Special Parental
Authority
2. Substitute parental authority -
exercised in case of death, absence or
76 Center for Legal Education and Research
unsuitability of the parents (Art. 214, FC). It is
exercised in the order indicated:
a. Surviving grandparent;
b. Oldest brother/sister over 21 years of age
unless unfit/disqualified;
c. Child‘s actual custodian who is over 21
years of age, unless unfit or disqualified
(Art. 216, FC); and
d. In case of foundlings, abandoned,
neglected or abused children, they shall
be entrusted in summary judicial
proceedings to heads of children‘s homes,
orphanages and other similar institutions
duly accredited by the proper government
agency (Art. 217, FC).
e. A foster parent in accordance with the
Foster Care Act of 2012.
Foster Care Act of 2012 (R.A. 10165)
Foster Parents shall have the rights, duties,
and liabilities of persons exercising substitute
parental authority, as may be provided under
the Family Code over the children under foster
care (Sec. 6).
Who may be a Foster Parent:
A Foster Parent refers to a person, duly
licensed with the DSWD, to provide foster
care (Sec. 3[i], RA 10165).
Qualifications of a Foster Parent
1. Must be of legal age
2. Must be at least 16 years older than the
child unless the foster parent is a relative;
3. Must have genuine interest, capacity and
commitment in parenting and is able to
provide a familial atmosphere for the child;
4. Must have a healthy and harmonious
relationship with each family member;
5. Must be of good moral character;
6. Must be physically and mentally capable
and emotionally mature;
7. Must have sufficient resources to be able to
provide for the family‘s needs;
8. Must be willing to further hone or be
trained on knowledge, attitudes, and skills in
caring for a child; and,

9. Must not already have the maximum
number of children (Sec. 5 RA 10165).
Aliens qualified to become foster parents
provided that:
1. He or she must be legally documented;
2. Possess all the qualifications as stated
above;
3. Have resided in the Philippines for at least
12 continuous months at the time of the
application;
4. Undertake to maintain such residence
until the termination of placement by the
DSWD or expiration of the Foster Family
Care License (Rule 6, IRR of R.A. 10165).
Who may be a foster child:
The following children may be placed under
Foster Care:
1. A child who is abandoned, surrendered,
neglected, dependent or orphaned;
2. A child who is a victim of sexual, physical,
or any other form of abuse of
exploitation;
3. A child with special needs;
4. A child whose family members are
temporarily or permanently unable or
willing to provide the child with adequate
care;
5. A child awaiting adoptive placement md
who would have to be prepared for family
life;
6. A child who needs long-term care and
close family ties but who cannot be placed
for domestic adoption;
7. A child whose adoption has been
disrupted;
8. A child who is under socially difficult
circumstances (e.g. street child, child in
armed conflict, victim of child labor or
trafficking);
9. A child who committed a minor offense
but has been released on recognizance, or
who is in custody supervision or whose
case has been dismissed;
10. A child who is in need of special
protection as assessed by a Social
Worker, an Agency or the DSWD (Sec. 4,
RA 10165).
Purple Notes
Civil Law
2018
Limitation of Foster Parent’s Substitute
Parental Authority
Foster parents shall only have the rights of a
persons of a person with special parental
authority to discipline the foster children,
insofar as it prohibits the infliction of
corporal punishment upon the child.
The infliction of corporal punishment upon the
child shall be ground for revocation of the
Foster Family Care License and termination of
Foster Placement Authority (Rule 8, IRR of R.A.
10165).
3. Special Parental authority
It is granted by law to the following persons
in view of their special relation to children
under supervision, instruction, or custody
(Rabuya, The Law on Persons and Family
Relations, 2006, p. 690).
1. School;
2. School Administrator and teachers; or
3. Individual, entity or institution engaged in
child care.
 Their authority and responsibility shall
apply to all authorized activities
whether inside or outside the
premises of the school, entity or
institution (Art. 218, FC).
Extent of liability of those exercising
special parental authority
General Rule: They shall be principally
and solidarily liable for damages caused by
the acts or omissions of the unemancipated
minor.
 The parents, judicial guardians or the
persons exercising substitute parental
authority over said minor shall be
subsidiarily liable.
Exception: If it is proved that they exercised
the proper diligence required under the
particular circumstances (Art. 219, FC).
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 Purple Notes
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4. Effect of parental authority upon the
persons of the children
Rights and duties of persons exercising
parental authority:
1. To keep them in their company, to
support, educate and instruct them by
right precept and good example, and to
provide for their upbringing in keeping
with their means;
2. To give them love and affection, advise
and counsel, companionship and
understanding;
3. To provide them with moral and spiritual
guidance, inculcate in them honesty,
integrity, self-discipline, self-reliance,
industry and thrift, stimulate their interest
in civic affairs, and inspire in them
compliance with the duties of citizenship;
4. To furnish them with good and
wholesome educational materials,
supervise their activities, recreation and
association with others, protect them from
bad company, and prevent them from
acquiring habits detrimental to their
health, studies and morals;
5. To represent them in all matters affecting
their interests;
6. To demand from them respect and
obedience;
7. To impose discipline on them as may be
required under the circumstances; and
8. To perform such other duties as are
imposed by law upon parents and
guardians (Art. 220, FC).
Principle of Parental Liability
Parents and other persons exercising parental
authority shall be civilly liable for the injuries
and damages caused by the acts or omissions
of their unemancipated children living in their
company and under their parental authority
subject to the appropriate defenses provided
by law (Art. 221, FC).
 The principle of parental liability is a
species of vicarious liability, or the
doctrine of ―imputed negligence‖, where a
person is not only liable for torts
78 Center for Legal Education and Research
committed by himself, but also for torts
committed by others with whom he has a
certain relationship and for whom he is
responsible (Tamargo v. CA, G.R. No. 85044,
June 3, 1992).
5. Effect of parental authority upon the
property of the children
Legal guardianship:
The father and the mother shall jointly
exercise legal guardianship over the property
of the unemancipated common child without
the necessity of a court appointment.
In case of disagreement, the father‘s decision
shall prevail, unless there is a judicial order to
the contrary (Art. 225, FC).
Income of the child:
The property of the unemancipated child
earned or acquired with his work or industry
or by onerous or gratuitous title shall belong
to the child in ownership. The child‘s property
shall be devoted exclusively to the latter‘s
support and education, unless the title or
transfer provides otherwise.
Right of the parents over the fruits and
income of the child‘s property shall be limited
to (a) primarily to the child‘s support and (b)
secondarily to the collective daily needs of the
family (Art. 226, FC).
6. Suspension or Termination of Parental
Authority
Permanent Termination:
1. Upon the death of the parents;
2. Upon the death of the child; or
3. Upon emancipation of the child (Art. 228,
FC).
4. If the person exercising parental authority
has subjected the child or allowed him to
be subjected to sexual abuse, such person
shall be permanently deprived by the
court of such authority (Art. 232, FC).

Temporary termination:
1. Adoption of child;
2. Appointment of general guardian;
3. Judicial declaration of abandonment of
the child;
4. Final judgment divesting the party
concerned of parental authority; or
5. Judicial declaration of absence or
incapacity or person exercising parental
authority (Art. 229, FC).
Grounds for Judicial Suspension of
Parental authority:
1. Conviction of crime which carries with it
the penalty of civil interdiction;
 Parental authority is automatically
reinstated upon service of the penalty
or upon pardon/amnesty (Art. 230, FC)
2. Treating the child with excessive
harshness or cruelty;
3. Gives the child corrupting orders, counsel
or example;
4. Compels the child to beg; or
5. Subjects the child or allows him/her to be
subjected to acts of lasciviousness (Art.
231, FC).
7. Solo Parents (RA 8972)
Parental Responsibility of Solo Parents
Parental Responsibility of solo parents with
respect to their minor children shall refer to
the rights and duties of the parents as
defined in Article 220 of the FC (Sec.3 [c], RA
8972).
(Please see enumeration of Art. 220 under 4.
Effect of Parental Authority upon the Persons
of Children)
L. EMANCIPATION
It is the means by which a child is freed from
parental authority and custody of, and from
the obligation to render services to, the
Purple Notes
Civil Law
2018
parent or persons exercising parental
authority.
1. Cause of Emancipation
How Emancipation Takes Place: By
attainment of the age of majority. Under
present laws, majority commences at the age
of 18 years (Art. 234, as amended by R.A. 6809,
FC).
2. Effects of Emancipation
1. Termination of parental authority over
the person and property of the child; and
2. The child then becomes qualified and
responsible for all acts of civil life (Art.
236, FC).
Exceptions:
1. In contracting marriage, parental consent
is still necessary if a party is at least 18
but below 21 (Art. 14, FC). Without
parental consent, marriage is voidable
(Art. 45 (1), FC).
2. If such party will enter into a marriage
settlement, the person who is required to
give his consent to the marriage is also
required to be a party to the marriage
settlement is not valid (Art. 78, FC).
3. In contracting marriage, parental advice
is still necessary if a party is at least 21
but below 25 (Art. 15, FC).
4. The parents or guardians are still liable
for the quasi-delict committed by a
person who is at least 18 but below 21, if
the latter is living in the company of the
former (Art. 236, FC; in relation to Art. 2180,
NCC).
M. SUMMARY JUDICIAL PROCEEDINGS
IN THE FAMILY CODE
Scope: The procedural rules provided under
Arts. 238 to 253 of the FC shall apply in all
cases provided requiring summary
proceedings (Art. 238).
Matters covered by Summary
Proceedings under the Family Code:
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Civil Law
1. For purposes of contracting a subsequent
marriage under Art. 41 of the FC, the
spouse must present must institute
summary proceedings for the declaration
of presumptive death of the absentee (Art.
41, FC).
An order granting the petition for judicial
declaration of presumptive death is
immediately final and executory.
Therefore, the right to appeal is not
available to the parties.
 However, the aggrieved party may file
a petition for certiorari to question
abuse of discretion amounting to lack
of jurisdiction (Republic v. Tango, G.R.
No. 161062, July 31, 2009).
2. In cases of disagreement on the matter
fixing the family domicile, the matter shall
be decided by the courts in a summary
proceeding (Art. 69, FC).
3. An application to exempt one spouse from
living with the other if the latter should
live abroad or there are valid and
compelling reasons for exemption (Art.
253, FC).
4. In case of disagreement or if one objects
to the other spouse‘s profession, the
propriety of such objection shall be
decided by the court in a summary
proceeding (Art. 253, FC).
5. In case of disagreement in the
administration and enjoyment of the
community property or the conjugal
partnership property, the husband‘s
decision shall prevail. The remedy of the
wife is to institute summary proceedings
(Arts. 96 and 124, FC).
The proceeding under this remedy should
be instituted within 5 years from the date
of the contract implementing the
husband‘s decision (Art. 96 and 124, FC).
6. Court authorization for the alienation or
encumbrance of properties of one spouse
in case of absence and inability to
participate in the administration of the
common or conjugal properties of the
other spouse (Art. 124, FC)
80 Center for Legal Education and Research
 This rule does apply to cases where
the other spouse is incapacitated or
incompetent to give consent. In these
cases, the proper remedy is a judicial
guardianship proceedings under Rule
93 of the ROC (Uy v. CA and Jardaleza,
G.R. No. 109557, November 29, 2000).
7. When the husband and wife are separated
in fact or has abandoned the other and
one seeks judicial authorization for a
transaction where the consent of the
other spouse is required or needed (Art.
236 in re to Arts. 100[2] and 127[2], FC).
8. In case of separation in fact or
abandonment, the deserted spouse may
petition for judicial authority to administer
or encumber specific separate property of
the abandoning spouse and to use the
fruits or proceeds thereof for the support
of the family (Art. 239-238, FC).
9. In case of foundlings, abandoned,
neglected or abused children, parental
authority shall be entrusted to children‘s
homes, orphanages, and similar
institutions by summary proceedings (Art.
217 in re 253, FC).
10. A person or entity exercising parental
authority may petition to the proper court
where the child resides, for an order
providing for disciplinary measures over
the child (Art. 223 in re 249, FC).
11. When the market value of the property or
annual income of the minor child exceeds
P50,000.00, the parent concerned shall be
required to furnish a bond in an amount
as the court may determine. For this
purpose, the verified petition for the
approval of such bond shall be filed via
summary proceedings in the proper court
where the child resides (Art. 225, FC).
N. USE OF SURNAMES
CIVIL CODE PROVISIONS (Arts. 364-380,
NCC)
General Rule: No person shall use different
names and surnames (Art. 380, NCC).
Exception: The employment of pen names or
stage names is permitted, provided it is done

in good faith and there is no injury to third
persons (Art. 379, NCC).
Change of First Name
Governing Law: RA 9048 now governs the
change of first name. It vests the power and
authority to entertain petitions for change of
first name to municipal civil registrar or consul
general concerned. Under the law, jurisdiction
over applications for first name is primarily
lodged with said administrative officers
(Rabuya, Civil Law Reviewer Vol. 1, 2017, p. 298).
Grounds for Change of First Name (Sec.
4, RA 9048):
1. The petitioner finds that the first name or
nickname to be ridiculous, tainted with
dishonor or extremely difficult to
pronounce;
2. The new first name or nickname has been
habitually and continuously used by the
petitioner and he has been publicly known
by that first name or nickname in the
community; and,
3. The change will avoid confusion.
Change of Name other than the First
Name
Governing Law: Rule 103 is now limited to
change of name other than the first name
which may include therefore change of
surname or possibly, the middle name
(Rabuya, Civil Law Reviewer Vol. 1, 2017, p. 300).
Grounds for Change of Name other than
the First Name
1. When the name is ridiculous, dishonorable
or extremely difficult to pronounce;
2. When the change results as a legal
consequence, as in legitimation;
3. When the change will avoid confusion;
4. When one has continuously used and
known since childhood by a Filipino name,
and was unaware of his alien parentage;
5. A sincere desire to adopt a Filipino name
to erase signs of former alienage, all in
good faith and without prejudicing
anybody;
Purple Notes
Civil Law
2018
6. When the surname causes
embarrassment and there is no showing
that the desired change of name was for
a fraudulent prupose or that the change
of name would prejudice public interest
(Rabuya, Civil Law Reviewer I, 2017, p. 300-
301 citing In re: Petition for Change of Name
and/or Correction of Entry in the Civil Registry
of Julian Lin Carulasan Wang).
 Before a person can legally change
his given name, he must present
proper or reasonable cause or any
compelling reason justifying such
change. In addition, he must show
that he will be prejudiced by the use
of his true and official name. Under
the Civil Register Law, a birth
certificate is a historical record of the
facts as they existed at the time of
birth. Thus, the sex of a person is
determined at birth, visually done by
the birth attendant (the physician or
midwife) by examining the genitals of
the infant. Considering that there is
no law legally recognizing sex
reassignment, the determination of a
person‘s sex made at the time of his
or her birth, if not attended by error,
is immutable (Silverio v. Republic, G.R.
No. 174689, Oct. 22, 2007).
Surnames of Children
1. Legitimate and legitimated children shall
principally use the surname of the father
(Art. 364, NCC).
1. An adopted child shall bear the surname
of the adopter (Art. 365, NCC).
2. Illegitimate children referred to in Art. 287
shall bear the surname of the mother.
3. Children conceived before the decree
annulling a voidable marriage shall
principally use the surname of the father
(Art. 369, NCC).
 A middle name has practical or legal
significance as it serves to identify the
maternal pedigree or filiation of a
person and distinguishes him from
others who may have the same given
name and surname as he has. Art.
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 Purple Notes
Civil Law
364 of the Civil Code states that
legitimate and legitimated children
shall principally use the surname of
their father. Art. 174 of the Family
Code gives legitimate children the
right to bear the surnames of the
father and mother, while illegitimate
children, under Art. 176, as amended
by R.A. 9255, shall use the surname
of their mother, unless their father
recognizes their filiation, in which
case, they may bear the father's
surname. In the case of these
children, their registration in the civil
registry requires that their middle
names be indicated therein, apart of
course from their given names and
surnames (In re: Petition for Change of
Name and/or Correction of Entry in the
Civil Registry of Julian Lin Carulasan
Wang, G.R. No. 159966, March 30, 2005).
4. Art. 176 gives illegitimate children the right to
decide if they want to use the surname of their
father or not. It is not the father or the mother
who is granted by law the right to dictate the
surname of their illegitimate children (Art. 176
as amended by RA 9255; Grande vs Antonio,
G.R. No. 206248, Oct. 18 2014)
Rules governing the use of surname by a
Married Woman
1. A married woman may use:
a. Her maiden first name and surname
and add her husband‘s surname; or
b. Her maiden first name and her
husband‘s surname; or
c. Her husband full name, but prefixing
a word indicating that she is his wife,
such as ―Mrs‖ (Art. 370, NCC).
 The wife may still opt to use her
maiden name because the above is
only permissive and not mandatory.
The use of ―may‖ in article 370 of the
NCC indicates that the use of the
husband‘s surname by the wife is
permissive rather than obligatory (In
re: Josephine P. Uy-Timosa, Bar Matter
No. 1625, July 18, 2006).
82 Center for Legal Education and Research
2. In case of annulment of marriage:
a. If the wife is the guilty party, she
shall resume her maiden name and
surname;
b. If she is the innocent spouse, she
may resume her maiden name and
surname. However, she may choose
to continue employing her former
husband‘s surname, unless the court
decrees otherwise; or she or the
former husband is married again to
another person (Art. 371, NCC).
c. When legal separation has been
granted, the wife shall continue using
her name and surname employed
before the legal separation (Art. 372,
NCC).
 Once a married woman opted to
adopt her husband's surname in her
passport, she may not revert to the
use of her maiden name, except in
the cases enumerated in Sec. 5 (d) of
RA 8239. These instances are: (1)
death of husband, (2) divorce, (3)
annulment, or (4) nullity of marriage.
Since petitioner's marriage to her
husband subsists, she may not
resume her maiden name in the
replacement passport. Otherwise
stated, a married woman's reversion
to the use of her maiden name must
be based only on the severance of the
marriage (Remo v. DFA, GR No. 160202,
March 5, 2010).
3. A widow may use the deceased husband‘s
surname as though he were still living, in
accordance with Art. 370 (Art. 373, NCC).
Rules in case of identity of names or
surnames
1. The younger person shall be obliged to
use additional name or surname (Art. 374,
NCC);
2. In case of ascendants and descendants:
a. The word ―Junior‖ can only be used to
a son;
b. Grandsons and other male
descendants shall either: (i) add a

middle name or the mother‘s
surname, or (ii) add the roman
numerals II, III and so on (Art. 375,
NCC).
Usurpation of Names
1. Usurpation of a name and surname may
be the subject of an action for damages
and other relief (Art. 377, NCC).
2. The unauthorized or unlawful use of
another person's surname gives a right of
action to the latter. (Art. 378, NCC)
3. Pen names and stage names cannot be
usurped. (Art. 379, NCC)
O. ABSENCE
STAGES OF ABSENCE
1. PROVISIONAL ABSENCE
APPOINTMENT. When a person disappears
from his domicile, his whereabouts being
unknown, and without leaving an agent to
administer his property, the judge, at the
instance of an interested party, a relative, or a
friend, may appoint a person to represent him
in all that may be necessary (Art. 381, NCC).
This same rule shall be observed when under
similar circumstances the power conferred by
the absentee has expired (Art. 381, NCC).
DUTY OF JUDGE. The judge shall take the
necessary measures to safeguard the rights
and interest of the absentee and shall specify
the powers, obligations and remuneration of
his representative, regulating them, according
to the circumstances, by the rules concerning
guardians (Art. 382, NCC).
PREFERENCE IN APPOINTMENT. In the
appointment of a representative:
1. The spouse present shall be preferred
when there is no legal separation; or
2. If the absentee left no spouse, or if the
spouse present is a minor, any competent
person may be appointed by the court.
(Art. 383, NCC);
Purple Notes
Civil Law
2018
2. DECLARATION OF ABSENCE
a. Without administrator – Two years
have elapsed without any news about
the absentee or since the receipt of
the last news;
b. With administrator – Five years have
elapsed (Art. 384, NCC).
Who may ask for the declaration of
absence?
1. The spouse present;
2. The heirs instituted in a will, who may
present an authentic copy of the same;
3. The relatives who may succeed by the law
of intestacy; and
4. Those who may have over the property of
the absentee some right subordinated to
the condition of his death (Art. 385, NCC).
PUBLICATION. The judicial declaration of
absence shall not take effect until six months
after its publication in a newspaper of general
circulation (Art. 386, NCC).
3. ADMINISTRATION OF THE
ABSENTEE’S PROPERTY.
The wife who is appointed as an administrator
of the husband‘s property cannot alienate or
encumber the husband‘s property, or that of
the conjugal partnership, without judicial
authority (Art. 388, NCC).
TERMINATION OF ADMINISTRATION
1. When the absentee appears personally or
by means of an agent;
2. When the death of the absentee is
proved, and his testate or intestate heirs
appear;
3. When a third person appears, showing by
a proper document that he has acquired
the absentee‘s property by purchase or
other title.
In these cases, the administrator shall cease
in the performance of his office, and the
property shall be at the disposal of those who
may have a right thereto (Art. 389, NCC).
Bar Operations C ommissions 83
 Purple Notes
Civil Law
4. PRESUMPTION OF DEATH
Ordinary Presumption
General rule: A person shall be presumed
dead for all purposes after absence for a
period of 7 years.
Exception: Succession
1. In succession, 10 years is required for
presumption of death.
2. If absentee disappeared after age 75, 5
years shall be sufficient (Art. 390, NCC).
Extraordinary Presumption (for all
purposes including opening of
succession)
The following shall be presumed dead after
four years:
a. A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, since the loss of the vessel or
aeroplane;
b. A person in the armed forces who has
taken part in war, and has been missing;
c. A person who has been in danger of
death under other circumstances and his
existence has not been known (Art. 391,
NCC).
Exception: If for purposes for remarriage, it
shall be two years.
If the absentee appears, or without appearing
his existence is proved, he shall recover his
property in the condition in which it may be
found, and the price of any property that may
have been alienated or the property acquired
therewith; but he cannot claim either fruits or
rents (Art. 392, NCC).
Presumptive Death of absent spouse
under the Family Code (Art. 41)
Requisites for the Declaration of Presumptive
Death:
84 Center for Legal Education and Research
a. Prior spouse had been absent for four
consecutive years, or two years
where there is danger of death under
Art. 391, New Civil Code at the time of
disappearance;
b. Spouse present has a well-founded belief
that the absent spouse is already dead;
and
c. The present spouse must institute a
summary proceeding for the declaration
of presumptive death of the absentee.
 To avoid being charged and convicted
of bigamy, the above-mentioned
requisites must concur, and the present
spouse must secure a judicial
declaration of presumptive death
before contracting a subsequent
marriage .
Presumptive Death Art. 390 and 391 of
the Civil Code.
1. Articles 390 and 391 of the Civil Code
merely express rules of evidence that only
allow a court or a. tribunal to presume that
a person is dead upon the establishment of
certain facts.
2. Since Articles 390 and 391 of the Civil Code
merely express rules of evidence, an action
brought exclusively to declare a person
presumptively dead under either of the
said articles actually presents no actual
controversy that a court could decide. In
such action, there would be no actual
rights to be enforced, no wrong to be
remedied nor any status to be established.
3. A judicial pronouncement declaring a
person presumptively dead under Article
390 or Article 391 of the Civil Code, in an
action exclusively based thereon, would
never really become "final" as the same
only confirms the existence of a prima
facie or disputable presumption. The
function of a court to render decisions that
is supposed to be final and binding
between litigants is thereby compromised.
4. Moreover, a court action to declare a
person presumptively dead under Articles
390 and 391 of the Civil Code would be
 Purple Notes
Civil Law
2018
unnecessary. The presumption in the said (Tadeo-Matias vs Republic, G.R. No. 230751,
articles is already established by law April 25, 2018).

Absence and Remedies

STAGES OF ABSENCE WHEN TO FILE WHO MAY FILE REMEDY

Provisional Absence No statutory period Spouse a. Receivership;

b. Judicial separation of property; or
c. Authority to be sole administrator of the
conjugal partnership.

Declared Absence Without administrator – a. The spouse; Declaration of Absence and Appointment of
2 years from time of Administrator (spouse shall be preferred) but
disappearance.
b. Voluntary heirs;
only under the following cases when:
and
a. Absentee has properties which have to be
With administrator – 5 c. Intestate heirs; taked care of or administered by a
years from the time of and representative appointed by the Court.
disappearance. d. Those who may b. Spouse of the absentee is asking for
have over the separation of property.
property of the c. Spouse of the absentee is asking the Court
absentee some that the administration of all classes in the
right subordinated marriage be transferred to her.
to condition of the
absentee‘s death

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 Purple Notes
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RETROACTIVE APPLICATION OF THE  Prima Facie evidence of the facts
FAMILY CODE contained therein

This code shall have retroactive effect insofar No entry in the civil register shall be changed
as it does not prejudice or impair vested or and corrected, without a judicial order (Art
acquired rights in accordance with the civil 412, NCC).
code or other laws (Art. 256, FC).
Exception: Clerical or Typographical Errors
P. CIVIL REGISTRAR (Title XVI, Articles subject to administrative proceedings
407-413)
Clerical or Typographical Error – refers to
Civil Register – refers to the various registry a mistake committed in the performance of
books and related certificates and documents clerical work in writing, copying, transcribing
kept in the archives of the local civil registry or typing and entry in the civil register that is
offices, PH Consulates, and of the Office of harmless and innocuous, such as misspelled
the Civil Registrar General. name or misspelled place of birth, mistake in
the entry of the day and month in the date of
Acts, events and judicial decrees concerning birth or the sex of the person or the like,
the civil status of persons shall be recorded in which is visible to the eyes or obvious to the
the civil register (Art. 407, NCC). This includes: understanding, and can be corrected or
changed only by reference to other existing
1. Birth record or records (Sec. 2[3], RA 9048, as
2. Marriages amended by RA 10172).
3. Deaths
4. Legal Separations Exceptions to the Exception:
5. Judgments of Annulment of marriage
6. Judgment declaring marriages void from 1. Change of Nationality
the beginning 2. Age
7. Adoptions 3. Status (Sec. 2[3], RA 9048, as amended by
8. Legitimations RA 10172)
9. Acknowledgments of natural children
10. Naturalizations Petition Seeking Substantial Correction
11. Election, loss or recovery of citizenship of an Entry in Civil Register
12. Civil interdiction
13. Judicial determination of filiation A petition seeking an substantial correction of
14. Voluntary emancipation of a minor an entry in a civil registers must implead as
15. Change of name parties to the proceedings not only the local
civil register, but also all persons who have or
Duty of the Clerk of Court claim any interest which would be affected by
To ascertain whether the decree has been the correction (Sec. 3, Rule 108 of the Rules of
Court).
registered, and if this has not been done, to
send a copy of said decree to the civil registry
System of Registering Civil Registry
of the city or municipality where the court is
documents under Children’s Emergency
functioning (Art. 409, NCC).
Relief and Protection Act
Books of the Civil Register and Related The PSA is mandated ensure that vital
Documents
information pertaining the personal
circumstances of a child are adequately
 Considered Public Documents
protected and available at all times. For this
purpose, the PSA is tasked to:

86 Center for Legal Education and Research

 Purple Notes 2018
Civil Law

1. Develop a system of restoration and 6. As to susceptibility of substitution:

reconstruction of civil registry documents a. Fungible
that have been destroyed or declared lost b. Non-Fungible
or missing during a disaster or calamity; 7. As to aptitude for repeated use:
2. Submit a report on the number of restored a. Consumable
or reconstructed documents to appropriate b. Non-Consumable
8. As to susceptibility to division:
government agencies for effective
a. Divisible
monitoring and reporting and to ensure
b. Indivisible
the continued access of the affected 9. As to existence in time:
children to social services and facilitate the a. Present
reunification of separated children with b. Future
their families; and, 10. As to dependence:
3. Develop a system for registration of a. Principal
children born during a national or local b. Accessory
disaster (Sec. 7, R.A. 10821). 11. As to alienability:
a. Within the commerce of man
b. Outside the commerce of man
III:
PROPERTY Classification of Things:
(Art. 414-773, New Civil Code)
a. Res Nullus – things that belong to no one;
Property refers to things which are or may b. Res Communes – things that is enjoyed
be the object of appropriation. (Article 414, by everyone; and
NCC) c. Res Alicujus – things that belong to
someone.
Things and property are identical to each
other under the New Civil Code. Property is The Human Body
not confined to things which are already
possessed or appropriated by man but also
During Lifetime
extends to those susceptible to appropriation
(Rabuya, Civil Law Reviewer, Vol. 1, p. 311).
General Rule: Human body is not a
property, hence, it cannot be appropriated
A. CLASSIFICATION OF PROPERTY

1. As to nature: Exception: Within the limits prescribed by

a. Immovable or Real Property law, e.g., R.A. 7719 promotes voluntary blood
b. Movable or Personal Property donation; service contracts such as modelling.
2. As to character of ownership:
a. Public Dominion After Death
b. Private Ownership
3. As to essential form: General Rule: Still not considered as a
a. Incorporeal property by reason of public policy.
b. Corporeal
4. As to existence: Exception: Within the limits prescribed by
a. Present law, e.g., R.A. 349 legalizes permission of use
b. Future of human organs or any portion of the human
5. As to designation: body for medical, surgical, or scientific
a. Specific purposes under certain conditions; R.A. 7170
b. Generic authorizes the legacy or donation of human

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 Purple Notes
Civil Law
organs after death or for transplant as well as
for the advancement of research, medical or
dental education and therapy.
The different parts of the living human body
that are attached to the person are
considered as properties but when a part of
the human body is separated from the person,
it may now be considered as property for it
now has an independent existence
Immovable Property (Art. 415, NCC)
1. Land, buildings, roads and
constructions of all kinds adhered to
the soil.
Lands and Roads are always immovable
(Punzalan v. Vda. Lacsamana, G.R. No. L-55729,
March 28, 1983).
Building is classified as immovable by
incorporation. It is classified immovable
property by reason of its adherence to the soil
in which it is built, thus a building which is
merely superimposed on the soil is not
considered as real property (Biscerra v. Teneza
G.R. No. L-16218, Nov. 19, 1962).
General Rule: Only personal property can be
subject of chattel mortgage and that the
execution of chattel mortgage covering real
property (a building, for example) is
considered null and void.
Exception: Doctrine of Estoppel:
The Doctrine of Estoppel not only prohibits a
party from assuring inconsistent position but
also precludes him from repudiating an
obligation voluntarily assumed after having
accepted benefits therefrom. To countenance
such repudiation would be contrary to equity
and would put premium on fraud or
misrepresentation. The court simply applied
the doctrine since the parties so agreed that
the building is a personal property and proper
subject of the contract of mortgage, they are
estopped of chattel mortgage (Navarro v.
Pineda, G.R. No. L-18456, November 30, 1963 and
Tumulad v. Vicencio, G.R. No. L-30173, September
30, 1971).
88 Center for Legal Education and Research
Construction of all kinds adhere to the
soil
The construction must be attached
permanently to the land to be considered
immovable property. It should be attached to
the land in such away it can‘t be separated
therefrom without breaking the materials or
deterioration of the object (Meralco Securities
Industrial Corp. v. Central Board of assessment of
Appeals, G.R. No. L-4625, May 31, 1982).
2. Trees, plants and growing fruits,
while they are attached to the land
or form an integral of an immovable.
While they are attached to the land, they
are considered immovable property.
Trees and Plants
They are immovable by reason of their
incorporation to the soil or because they
form an integral part of the immovable.
Thus, if they are cut or uprooted for
purpose of making firewood or timber,
they become movable property unless
when timber constitutes natural product
of the tenements (Rabuya, Property, 2008,
p. 26).
Growing Fruits
In some instances while they are still
attached to the soil, growing fruits may
exceptionally be treated as personal
property pursuant to the provision of
article 416(2) of NCC.
3. Everything attached to an
immovable in a fixed manner, in such
a way that it cannot Be separated
there from without breaking the
material or deterioration of the
object.
The oil storage tanks constitute real
property, while they are not embodied in
the land, they may nevertheless be
considered as improvements in the land,
enhancing its utility and rendering it
useful to the oil industry. It is undeniable
that the two tanks have been installed
 Purple Notes 2018
Civil Law
with some degree of permanence as Requisites:
receptacles for the considerable quantities
of oil needed by Meralco for its a. They must be placed in building or
operations. (Manila Electric Co. v. Central on lands by the owner of the
Board of Assessment Appeals G.R. No. L- immovable or by his agent.
47943, May 31, 1982) b. The attachment must be intended to
be permanent
Submarine or undersea communication
cables are akin to electric transmission Distinguished from paragraph 3
lines which this Court has recently
declared in Manila Electric Company v. Art. 415 [3] Art. 415 [4]
City Assessor and City Treasurer of
Lucena City may qualify as ―machinery‖ Cannot be separated Can be separated from
subject to real property tax under the from immovable immovable without
Local Government Code. Both electric without breaking or breaking or
lines and communication cables, in the deterioration. deterioration.
strictest sense, are not directly adhered to
the soil but pass through posts, relays or
Need not be placed by Must be placed by
landing stations, but both may be
owner. owner or his agent.
classified under the term ―machinery‖ as
real property under Article 415(5) absent Real property by Real property by
any showing from Capwire of any express incorporation. incorporation and
grant of an exemption for its lines and destination.
cable from real property taxation. Then
this interpretation applies and Capwire‘s (Rabuya, Civil Law Reviewer Vol. 1, 2017, p. 319)
submarine cable may be held subject to
real property tax (Capitol Wireless v. 5. Machinery, receptacles, instruments
Provincial Treasurer of Batangas, G.R. No. or implements intended by the
10110, May 30, 2016). owner of the tenement for an
industry or works which may be
Application of Doctrine of Estoppel: carried on in a building or on a piece
of land, and which tend directly to
The nature of the disputed machineries i.e meet the needs of the said industry
that they mere heavy bolted or cemented or works.
on the real property most gaged does not
make the, ipso facto immovable under Requisites:
Article 415(3) and (5) of NCC. While it is
true that the properties appear to be
immobilized, a perusal of the contract of a. The machinery must be placed by the
the of real and chatted mortgage owner of the tenement ;
executed by the parties herein reveal their b. An industry or works must be carried
intent, that is, to treat machinery and on the tenement;
equipment as chatted (TSAI v. CA, G.R. No. c. The machinery must be intended for
120098, October 21, 2001). such industry or works; and
d. The machinery must tend directly to
meet the needs of such industry and
4. Statues, reliefs, paintings or other
work.
objects for use or ornamentation
placed in buildings or on lands by the
owner of the immovable in such a General Rule: The machinery, receptacles
manner that it reveals the intention instruments or implements be placed in the
to attach them permanently to the land or tenement by the leases. Thereof
tenements. remains personal because they are not placed
by the owner of the tenement.

Bar Operations C ommissions 89

 Purple Notes
Civil Law
Exception: Machinery becomes immobilized
only when placed in a plant by the owner of
the property or plant, but not when so placed
by the tenant usufructuary, or any person
having temporary right, unless such person
acted as the agent of the owner (Davao
Sawmill Co. v. Castillo, G.R. No. L-40411, August 7,
1935).
Application of the Doctrine of Estoppel:
The court held that the machines are proper
subject of a writ of replevin, although they are
essential and principal elements of industry
because the parties have treated the same as
personal property (Serg‘s Product Inc. v. PCI
Leasing and Finance, Inc., G.R. No. 137705, August
22, 2000).
It is necessary that they must be essential
and principal elements of industry or works
without which such industry or works would
be unable to function or carry on the
industrial purpose for which it was
established. (Rabuya, Property, 2008, p.46)
6. Animal houses, pigeon, beehives,
fish ponds or breeding places of
similar nature, in case their owner
has placed them or preserves them
with the intention to have them
permanently attached to the land,
and forming a permanent part of it;
the animals in these places are
included.
They are immovable by destination , however,
Such structure may still qualify as real
property under Art. 415(1) being constructed
as attached to the soil (permanent in
character).
The fish in fishponds will be considered as
personal property for purposes of theft under
the Revised Penal Code. (Rabuya, Property,
2008 p. 41)
7. Fertilizers actually used on a piece of
land are immovable by destination
(Rabuya, Civil Law Reviewer Vol. 1, 2017, p.
315).
8. Mines, quarries, and slag dumps,
while the matter thereof forms part
90 Center for Legal Education and Research
of the bed, and waters either
running or stagnant.
They are considered immovable property that
is, the matters thereof remains unreserved
from the soil. Once separated, they are
considered as personal property. Waters
which are immovable, such as sea, river, lake
must not be confused with water itself which
plainly movable property (Rabuya, Property,
2008, p.42).
9. 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.
They are considered real property and
structure of which, though floating, are
intended by their nature and object to remain
at a fixed place on a river, lake, or coast.
Note: in Fels Energy Inc. v. The Province of
Batangas GR. No. 168557 February 16, 2007,
the Court ruled that power barges moored off
the coast of Balayan, Batangas are real
properties under Art. 415 (9) of NCC.
Classes of Immovable Property
Immovable by nature or those which
cannot be moved from one place to another
such as lands and roads (Art. 415 [1]) and
mines, quarries and slug dumps (Art. 415 [8])
Immovable by incorporation, or those
which are attached to an immovable in such
manner as to be integral part thereof, such as
buildings and constructions of all kinds
adhered to the soil (Art. 415 [1]); trees, plants
and growing fruits (Art. 415 [2]) while they are
still attached to the land or form an integral
part of an immovable; and those that are
attached to an immovable (Art. 415 [10]).
Immovable by destination or 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
(Art. 415 [4,5,6,7 and 9])

Immovable by analogy or by law (Art.
415 [10])
The doctrine of estoppel was applied by the
court which provides that the parties to a
contract may by agreement treat as personal
property that which by nature would be a real
property (Evangelista v. Abad, G.R. No. L-31684,
June 28, 1873 and Tomines v. San Juan, G.R. No.
130962, October 5, 2001)
Even if the sole property of a corporation
consists only of real property, a share of stock
in said corporation is considered personal
property (Cedman v. Winslow, 10 Mass 145).
Movable Property (Art. 416, NCC)
1. Those movables susceptible of
appropriation which are not included
in Art. 415;
2. Real property which by any special
provision of the law is considered as
personal property;
Certain things may partake of the nature of
real and personal property at the same time.
This is expressly recognized in no. 2 of Article
416 of the NCC, which states that the real
property which by provision of law is
considered as personal is deemed to be
movable or personal property. Thus, under
the Chattel Mortgage Law (Sec. 7, Act No.
1508), growing crops may be the object of a
contract of chattel mortgage (CM). Similarly,
growing crops may also be considered as
personality for the purpose of a contract of
sale. (Art. 1462, NCC)
3. Forces of nature which are brought
under control by science;
The forces of nature in their original state are
not, ordinarily, subject to appropriation
because of the degree of difficulty in
appropriating them. However, paragraph (3)
of Art. 416 clarifies that if these forces of
nature are bought under the control of man
through the help of science, thereby
becoming appropriate, they are now
considered as property and classified as
Purple Notes 2018
Civil Law
personal property Hence, gas and electricity
are considered personal property under this
provision (US v. Tambunting, G.R. No. L-16513,
January 18, 1921).
4. In general, all things which can be
transferred from place to place
without impairment of the real
property to which they are fixed.
The following are also considered
personal property:
1. Obligation and action which have for their
object movables or demandable sums;
and
2. Shares of stock of agriculture, commercial
and industrial entities, although they may
have real estate. (Art. 417, NCC)
Tests of ―Movable‖ Character
Test by exclusion – Whether the property
was not enumerated in Art. 415., under the
principle expression unius est exclusio
alterius. (Art. 416 [1], NCC)
Test by description – Whether the property
can be transported or carried from place to
place (Art. 416 [4], NCC); whether such
change of location can be made without
injuring the immovable to which the object
may be attached; unless expressly included in
Art. 415; whether real property is considered
by any special provision of law as personalty.
(Art. 416 [2], NCC)
Note: Test by Exclusion is superior.
Classification of Movable Property (Art.
418, NCC)
NON-
CONSUMABLE
CONSUMABLE
Movables which cannot be Any other kind of
used in a manner movable property.
appropriate to their nature
without their being
consumed.
FUNGIBLE NON-FUNGIBLE
Bar Operations C ommissions 91
 Purple Notes
Civil Law
Capable of substitution of Incapable
same kind and quantity substitution;
Identical thing must
be given
returned
(Rabuya, Civil Law Reviewer I, 2017, p. 326)
Public Dominion and Private Ownership
Property is either of public dominion or of
private ownership (Art. 419, NCC).
Public Dominion is one not owned by the
state but pertains to the state, which, as
territorial sovereign, exercises certain juridical
prerogatives over such property (3 Manresa 66-
69).
Kinds of Public Dominion (Arts. 420, 424,
NCC)
a. For public use
b. For public service
c. For the development of national wealth.
Classification of Lands of the Public
Domain: (Art. XIV, Sec. 10, Philippine
Constitution)
1. agricultural
2. forest or timber
3. mineral lands
4. national parks
Regalian Doctrine or jura regalia declares
that all property is presumed to be a State
property in the absence of any showing to the
contrary (Chavez v. Public Estates Authority, G.R.
No. 133250, July 9, 2000).
The following things are property of
public dominion (Art. 420, NCC):
a. Those intended for public use, such as
roads, canals, rivers, torrents, ports and
bridges constructed by the State, banks,
shores, roadsteads, and others of similar
character;
b. Those which belong to the State, without
being for public use, and are intended for
some public service or for the
development of the national wealth.
92 Center for Legal Education and Research
of Characteristics:
a. Outside the commerce of man;
or
c. Cannot be leased, donated, sold, or be
the object of any contract, except insofar
as they may be the object of repairs or
improvements and other incidental things
of similar things;
d. Cannot be acquired by prescription;
e. Cannot be registered under the Land
Registration Law and be the subject of a
Torrens title;
f. Cannot be levied upon by execution, nor
attachment;
g. They can be used by everybody; and
h. Inalienable but when no longer needed
for public use or service, may be declared
patrimonial property (Art 422, NCC).
Patrimonial Property of the State refers
to all other property of the State, which is not
of the character stated in Art. 420. It is
considered as property of the State in a
private sense. It is said that over this kind of
property the State has the same rights and
has the same power of disposition as private
individuals, subject to existing rules and
regulations (II Caguioa, Civil Code of the
Philippines, 1996, p. 36)
It is the property owned by the State in its
private or proprietary capacity which may be
acquired by private individuals or corporations
through prescription. It may be an object of
ordinary contract (Pineda, Law on Property,
2009, p. 32-33).
Save in cases of hereditary succession, no
private lands shall be transferred or conveyed
except to individuals, corporations, or
associations qualified to acquire or hold lands
of the public domain. (Art. XII Secs. 7, 1987
Constitution)
Property of public dominion, when no longer
intended for public use or for public service,
shall form part of the patrimonial property of
the State (Art. 422, NCC). This provision is not
self-executing. There must be a formal
declaration by the executive or possible
legislative department of the government that
the property of the State is no longer needed

for public use or for public service before the
same can be classified as patrimonial or
private property of the state; otherwise, the
property continues to be property of public
dominion notwithstanding the fact that it is
not actually devoted for such use or service
(Manila Lodge No. 761 v. CA, G.R. No. L-41001,
September 30, 1976). If no such declaration has
been made, the lot forms part of public
domain (Faustino Ignacio v. Dir. of Lands, G.R.
No. L-12958, May 30, 1960).
Art. XII Secs. 7 and 8 of the 1987 Constitution
explicitly prohibits non-Filipinos from acquiring
or holding title to private lands or to lands of
public domain. (Ancheta v. Guersey-Dalaygon,
G.R. No. 139868, June 8, 2006)
Government Lands include those lands
devoted to public use or public service, as well
as public lands ―before and after they are
made available for the private appropriation‖,
and also patrimonial lands (Art. 420 & 421).
Property of Local Government Units
1. Property for public use – consists of
the provincial roads, city streets,
municipal streets, squares, fountains,
public waters, promenades, and public
works for public service paid for by said
provinces, cities or municipalities (Art.
424[1], Civil Code).
Manifestly owned by the city/municipal
corporation in its public and governmental
capacity and are therefore public property
over which Congress has absolute control.
Such property is held in trust for the State
for the benefit of its inhabitants, whether
it be for governmental or proprietary
purposes (Rabuco v. Villegas, G.R. No. L-
24661, February 28, 1974).
2. Patrimonial Property – All other
property possessed by LGUs without
prejudice to provisions of special laws
(Rabuya, Civil Law Reviewer Vol. 1, 2017,
p.349).
a. Owned a municipal corporation in its
private or proprietary capacity
which it could not be deprived of
without due process and without
Purple Notes 2018
Civil Law
payment of just compensation. Such
property is acquired with its own funds
in its private or corporate capacity.
(Rabuco v. Villegas, G.R. No. L-24661,
February 28, 1974)
b. In the absence of proof that the land
claimed by a municipal corporation
was acquired with its private funds,
the presumption is that such land was
given to it by the State in trust upon
the creation of the municipality
(Sangguniang Panlalawigan of Bataan v.
Garcia, G.R. No. 174964, October 5,
2016).
Property of private ownership besides the
patrimonial property of the State, provinces,
cities, and municipalities, consists of all
properties belonging to private persons, either
individually or collectively. (Art. 425, NCC)
B. OWNERSHIP
An independent right of exclusive enjoyment
and control of the thing for the purpose of
deriving therefrom all advantages required by
the reasonable needs of the owner and the
promotion of the general welfare but subject
to the restructions imposed by law and the
right of others (Rabuya, Civil Law Reviewer Vol.
1, 2017, p. 350-351, citing Outline of Civil Law by
Reyes and Puno Vol. II)
1. Bundle of Rights
The Civil Code does not define ownership.
Instead, the Code simply enumerates the
rights which are included therein, to wit:
a. Right to enjoy
1. Jus utendi (right to use);
2. Jus fruendi (right to enjoy the fruits);
3. Jus abutendi (right to consume the thing
by its use); and
4. Jus possidendi (right to possess)
b. Right to dispose (jus disponendi)
1. Alienate
2. Encumber
3. Transform
4. Destroy
Bar Operations C ommissions 93
 Purple Notes
Civil Law
c. Right to vindicate (jus vindicandi) or the
right to recover the property from any
holder or possessor.
d. Right to exclude
i. Right to exclude any person from
enjoyment and disposal of the property;
ii. Right to enclose or fence the land or
tenement;
iii. May use such force to repel or prevent
usurpation of property.
e. Right to demand indemnity for
damages suffered due to lawful
interference by a third person to avert an
imminent danger;
f. Right to just compensation in eminent
domain cases;
g. Right to construct any works or make
any plantations and excavations on the
surface or subsurface of the land;
h. Right to hidden treasure found in the
owner‘s property; and
i. Right to accessions.
a. Actions for Recovery of Possession of
Real Property
1. Accion Interdictal – Summary action to
recover physical possession, and not juridical
possession nor ownership (Rabuya, Civil Law
Reviewer Vol. I, 2017, p. 354).
Forcible Entry – Action for recovery of
material/physical possession was deprived
thereof by force, intimidation, strategy, threat
or stealth.
Unlawful Detainer – Possession by a
landlord, vendor, vendee or other person of
any land or building is being unlawfully
withheld after the expiration or termination of
the right to hold possession, by virtue of any
contract.
Prescriptive period: one year from the time
of dispossession (forcible entry) or from the
94 Center for Legal Education and Research
time possession becomes unlawful (unlawful
detainer).
2. Accion Publiciana – an ordinary
proceeding to determine the better right of
possession of realty independently of title
(Urieta Vda. De Aguilar v. Alfaro, G.R. No. 164402,
July 5, 2010).
Prescriptive period: 10 years (Art. 555 [4],
NCC)
3. Accion Reivindicatoria – an action for
recovery of possession of the real poperty as
element of ownership (Ocampo v. Heirs of
Dionision, G.R. No. 191101, October 4, 2014).
Prescriptive period: 10 years (ordinary
prescription) – requires good faith and just
title; or 30 years (extraordinary prescription) –
does not require good faith and just title (see
Art. 1134 and Art. 1137, NCC).
To successfully maintain an action to recover
the ownership of a real property, the person
who claims a better right to it must prove two
(2) things:
1. Identity of the land claimed; and
2. His title thereto (Art. 434, NCC).
b. Action for Recovery of Possession of
Personal Property
1. Replevin – recovery of personal property.
(Rule 60, Rules of Court)
Requisites for Recovery of Property:
1. Proof of Right
2. Identity
3. Reliance on strength of own evidence, not
weakness of defendant‘s claim.
2. Real Right Distinguished from
Personal Right
REAL RIGHT PERSONAL RIGHT
Definite active subject Definite active subject
who has a right against all (creditor) and a
persons generally as an definite passive
 Purple Notes 2018
Civil Law
indefinite passive subject subject (debtor) b. Imposed by the owner himself, e.g.
Object is generally a Object always an mortgages, lease rights, pledge, voluntary
corporeal thing incorporeal thing easement (Rabuya, Civil Law Reviewer Vol. 1,
2017, p. 368)
Created by ―mode‖ and Created by ―title‖ c. Imposed by the party transmitting the
―title‖ property, either by contract, donation or by
will Imposed by law, e.g., Legal Easement
Extinguished by the loss Personal right
or destruction of the thing survives the subject
d. Arising from conflict with other rights such
which it is exercised matter as those which take place in accession
continua
Directed against the Directed against a e. Constitutional limitations, e.g. prohibition
whole world (action in particular person on acquisition of lands by aliens (Sec. 7, Art.
rem against third (action in persona) XII, 1987, Constitution)
persons)
Doctrine of Self-Help
3. Modes of Acquiring Ownership
The right of the owner or lawful possessor to
Original Modes – result in the independent exclude any person from the enjoyment and
creation of a new right of ownership, when in disposal of the property by the use of such
effect, therefore is independent of the force as may be necessary to repel or prevent
ownership of the third person (Rabuya, actual or threatened unlawful physical
Property, 2008, 594) invasion or usurpation of his property (Art.
429, Civil Code).
Derivative Modes – those which produce
the acquisition of property based on a right The actual invasion of property may consist
previously held by another person and, of:
therefore, subject to the same characteristics,
powers, burdens, etc, as when held by the
1. A mere disturbance of possession; or
previous owner, e.g. tradition (Rabuya, supra).
2. A real dispossession.
Mode vs. Cause
In the case of (1) a mere disturbance of
possession, force may be used against it at
MODE CAUSE
any time as long as it continues, even beyond
Original Modes
Occupation Condition of being
the prescriptive period for an action for
without known owner forcible entry.
Work which includes Creation, discovery or
intellectual creation invention In the case of (2) the invasion consists of a
Derivative Modes real dispossession, force to regain possession
Law Existence of required can be used only immediately after the
conditions dispossession.
Tradition Contract of the parties
Donation Contract of the parties
Note: If the property is immovable, there
Prescription Possession in the
should be no delay in the use of force to
concept of the owner
Succession Death
recover it; a delay even if excusable, such as
when due to the ignorance of the
dispossession, will bar the right to the use of
4. Limitations force. (3-1 Enneccerus, Kipp & Wolff, 92-93)

a. Imposed by the State, e.g., police power,

power of taxation, power of eminent domain
(Rabuya, Civil Law Reviewer Vol. 1, 2017, p. 366);

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 Purple Notes
Civil Law
Self-Defense
This is available only when the possession has
not yet been lost. It requires:
a. Ownership of lawful possession of the
person defending; and
b. Force used is reasonably necessary to
repel, prevent an invasion or usurpation
of his property, otherwise, he shall be
liable for damages (German Management &
Services v. CA, G.R. No. 76217, September 14,
1989).
Exception: State of Necessity
As a general rule, there is no cause of action
for acts done by one person upon his own
property in a lawful and proper manner,
although such acts incidentally cause damage
or an unavoidable loss to another, as such
damage or loss is damnum absque injuria.
When the owner of property makes use
thereof in the general and ordinary manner in
which the property is used, such as fencing or
enclosing the same as in this case, nobody
can complain of having been injured, because
the inconvenience arising from said use can
be considered as a mere consequence of
community life (Spouses Custodio v. CA, G.R.
No.116100, February 9, 1996).
Requisites of Doctrine of State of
Necessity (Art. 432, NCC):
a. There must be a situation of grave peril,
actual or imminent danger, either upon
the person of the actor or a third person
or their property;
b. Interference is necessary to avert such
danger;
c. Threatened damaged compared to the
damage arising to the owner from the
interference is much greater; and
d. The state of necessity must not be brought
about by the intentional provocation of
the party invoking the same.
The right to enclose or fence in Art. 430 is
also subject to the limitation that it should not
work detriment to the servitudes constituted
therein. It must be legitimately exercised and
must not be attended with bad faith. Thus, if
96 Center for Legal Education and Research
the lot owner fenced his property for the
purpose of evicting its occupant whose lease
contract had already expired, the lot owner is
liable to said occupant for damage (Rabuya,
Property, 2008, p.120).
Doctrine of Incomplete Privilege
The owner of a thing has no right to prohibit
the interference of another with the same, if
the interference is necessary to avert an
imminent danger and the threatened damage,
compared to the damage arising to the owner
from the interference, is much greater. The
owner may demand from the person
benefited indemnity for the damage to him
(Art. 432, NCC).
Surface Right
The owner of a parcel of land is the owner of
its surface and of everything under it, and the
airspace above it up to a reasonable height
and he can construct thereon any works or
make any plantations and excavations which
he may deem proper (Art 437, NCC). This is
also called the ad coelum doctrine (US v.
Causby, 328 U.S. 256, May 1, 1946).
Limitations:
a. Servitudes;
b. Special laws and ordinances;
c. Reasonable requirements of aerial
navigation;
d. Right of third persons (Art. 431, NCC);
e. Principles on human relations and the
prevention of injury to the rights of third
persons. (Art. 19 and 431, NCC)
Rights over the land are indivisible, and the
land itself cannot be half agricultural and half
mineral. The owner of the land is the owner
of its surface and subsurface. Thus a party
cannot claim ownership by acquisitive
prescription of mineral land by showing he
was in possession of the land or the surface
thereof in the concept of agricultural land.
(Republic v. CA, G.R. No. L-43938, April 15, 1988)

C. Accession
Accession is the right by virtue of which the
owner of a thing becomes the owner of
everything which is produced thereby, or
which is incorporated or attached thereto,
either naturally or artificially. (Art. 440, NCC)
1. Right to Hidden Treasure (Art. 438)
By treasure is understood, for legal purposes,
any hidden and unknown deposit of money,
jewelry, or other precious objects, the lawful
ownership of which does not appear. (Art. 439)
Rule on Hidden Treasure:
a. Finder is the owner of the property
where the treasure is found, it all his (Art.
438 [1], NCC).
b. Finder is a trespasser, it shall belong
solely to the owner of the property where
the treasure is found (Art. 438 [2], NCC).
c. Finder is a third person who is not a
trespasser and the finding of the treasure
is by chance, the finder is entitled to ½
of the treasure while the other half goes
to the owner of the property (Art.438[2],
NCC)
This does not include natural wealth (i.e.
minerals and petroleum). Hence, under the
Regalian Doctrine, natural wealth is reserved
to the state even if the land where the
discovery is made be private.
If the thing found be of interest to science or
arts, the state may acquire them by paying
just price, whether the finder of the treasure
is the owner of the property on which it is
found or a third person. (Art. 438, NCC)
Treasure Hunting
A treasure hunter requires a permit from the
state for the discovery/recovery of hidden
treasures, shipwreck/sunken vessels, etc. (R.A.
8492, the National Museum Act of 1998)
The net proceeds of the treasure hunting shall
be distributed, as follows:
Purple Notes 2018
Civil Law
1. For treasure hunting within public lands –
75% to the Government and 25% to the
permit holder;
2. For treasure hunting in private lands – 30%
to the Government and 70% to be shared by
the permit holder and the landowner; and
3. For shipwreck/sunken vessel recovery –
50% to the Government and 50% to the
permit holder (Rabuya, Civil Law Reviewer Vo
1,2017, p. 365-366).
2. Rules of Accession
a. General Rules on Immovables
Accession Discreta
General Rule: To the owner belongs the
natural, industrial, and civil fruits. (Art. 441,
NCC)
Exceptions:
Lease of rural lands: lessee is entitled to
the natural and industrial fruits of the thing
leased. Civil fruits in the form of rent are
given to the lessor(Arts. 1654 and 1676[2],
NCC).
Usufruct: the usufructuary gets the fruits. (3
Manresa 179-180)
Antichresis: the creditor acquires the right to
receive the fruits of an immovable of his
debtor, with the obligation to apply them to
the payment of interest, if owing, and
thereafter to the principal of his credit (Art.
2123, NCC).
Possession in good faith: a possessor in
good faith is entitled to the fruits received by
him before his possession is legally
interrupted (Art. 544, NCC).
Fruits naturally falling: if it falls upon
adjacent land, it belongs to the owner of said
land and not to the owner of the tree (Art.
681, NCC).
Bar Operations C ommissions 97
 Purple Notes
Civil Law
Kinds of Fruits
Natural fruits
Spontaneous products of the soil and the
young and other products of animals. (Art.
442(1), NCC) Only such as are manifest or born
are considered as natural or industrial fruits.
With respect to animals, it is sufficient that
they are in the womb of the mother, although
unborn. (Article 444, NCC)
Offspring of Animals
General Rule: Partus Sequitur Ventrem -
The owner of the female animal owns the
offspring which it produced (US v. Caballero,
G.R. No. 8608, September 26, 1913).
Exception: If there is a contrary custom or
stipulation (U.S. v. Caballero, G.R. No. 8608,
September 26, 193).
Offspring is already considered as a natural
fruit even during the time that it is inside the
womb of its mother so long as the latter‘s
pregnancy is already manifest or evident. It is
necessary that there must be no human labor
which has intervened in its generation. If
human labor intervenes in the production of
the fruit, the same is classified as an industrial
fruit.
Industrial fruits
Produced by lands of any kind through
cultivation or labor (Art. 442(2), NCC).
Requirements:
1. Produced by the land; and
2. Produced through cultivation or labor.
Civil fruits
The rents of buildings, the price of leases of
lands and other property and the amount of
perpetual or life annuities or other similar
income. Income or revenues derived from the
property itself (Art. 442[3], NCC).
Article 443 does not apply to a situation
where the fruits are still pending. In a
situation where the fruits are still pending (or
98 Center for Legal Education and Research
ungathered) at the time the owner recovers
possession from a possessor in bad faith, it is
the provisions of Article 449 of the Civil Code
that will apply (Rabuya, Civil Law Reviewer Vol. 1,
2017, p. 371-372).
Accession Continua
The right pertaining to the owner of a thing,
over everything that is incorporated or
attached thereto, either naturally or artificially
by external forces.
Basic principles of accession continua:
a. Accessory follows the principal.
b. To the owner of a thing belongs the
extension or increase of such thing,
subject to certain exceptions.
c. Union or incorporation must generally be
effected in such a manner that to
separate the principal from the accessory
would result in substantial injury to either.
d. He who is in good faith may be held
responsible but not penalized.
e. He who is in bad faith may be penalized
f. No one should unjustly enrich himself at the
expertise of another (Rabuya, Civil Law
Reviewer Vol. 1, 2017, p. 372-372).
Principle: Accession exists only if separation
is not feasible. Otherwise, separation may be
demanded.
With respect to Real Property
Accession Industrial
Principles:
a. The accessory does not lead but follows the
principal.
b. The accessory follows the nature of that to
which it relates.
c. What is built upon the land goes with it, or
the land is the principal, and whatever is
built on it becomes the accessory.
 Purple Notes 2018
Civil Law
Obligation to third person who pay for the land is insolvent.
the expenses considerably
more. Materials can
be removed if
He who receives the fruits has the obligation Rent to Sower without injury.
to pay the expenses made by a third person in (Arts. 448, 546 (Arts. 447 and
their production, gathering, and preservation. and 455, NCC) 455, NCC)
(Art. 443, NCC)
Subsidiarily
Gathered Fruits (Art. 544, 545, NCC) liable to owner
of materials
PLANTER LANDOWNER GOOD FAITH BAD FAITH
Planter Keeps fruits until No necessity to Acquire Right of Lose them
in Good possession is reimburse the improvements retention for without right to
Faith legally planter of and pay necessary and indemnity (Art.
interrupted. expenses since he indemnity to useful 449, NCC)
retains the fruits Builder, Planter expenses.
Planter Reimbursed for Gets fruits, pays or Sower; or
in Bad expenses for planter expenses sell to Builder, Keep building,
Faith production, Planter or planting or
gathering and Sower if the sowing
preservation value of the without
land is indemnity to
Standing Crops considerable owner of
more (forced materials and
lease) collect
PLANTER LANDOWNER
damages
Planter Reimbursed for Owns fruits
(Arts. 449 and
in Good expenses for provided he pays
546, NCC)
Faith production, planter expenses
GOOD FAITH BAD FAITH
gathering and for production,
preservation gathering and Acquire Recover Recover value
preservation (force improvement necessary from Builder,
co-ownership) without paying expenses for Planter, Sower
indemnity and preservation. as if they acted
Planter Loses everything. Owns fruits
collect in good faith.
in Bad No right to
damages or Lose
Faith reimbursement
demolition or improvements If Builder,
restoration, without right Planter or
and collect to indemnity Sower acquire
RIGHTS AND OBLIGATIONS AMONG THE
damages or from Land improvements,
LANDOWNER, BUILDER, PLANTER AND
sell to Builder, Owner (Art. materials can
SOWER, AND THE OWNER OF THE
Planter or rent 452, NCC) be removed but
MATERIALS IN CASE OF ACCESSION WITH
to Sower, and unless the only if without
RESPECT TO IMMOVABLE PROPERTY
collect Land Owner injury (Art. 447,
GOOD FAITH damages sells the land. NCC)
LANDOWNER BUILDER, OWNER OF
PLANTER, THE BAD FAITH
SOWER MATERIALS
Acquire Right of Collect value of Same as though they acted in good faith (Art. 453,
improvements retention for materials NCC)
and pay to necessary and primarily from BAD FAITH GOOD FAITH
Builder, useful Builder, Planter
Planter, Sower, expense. or Sower;
indemnity; or subsidiarily
Sell the land to Pay the value liable from
Builder or of materials to landowner if
Planter except owner of Builder, Planter
if the value of materials or Sower is

Bar Operations C ommissions 99

 Purple Notes
Civil Law
Acquire Remove Remove and pay Lose materials.
improvements improvements materials if indemnity and Remove (Art. 449, NCC)
after paying in any event. without injury damages to improvements
indemnity and Builder, Planter in any event.
damages to Be Collect value of or Sower. (Arts. 447 and
Builder, Planter indemnified materials, (Arts. 447 and 454, NCC)
or Sower. for damages. primarily from 454, NCC)
Builder, Planter
Subsidiarily or Sower Concept of Good Faith:
liable to owner
of materials Subsidiarily
Builder, Planter or Sower – There is good
(Arts. 447, 454 liable from
and 455, NCC) Land Owner
faith if he has no knowledge of any flaw or
defect in his title or mode of acquisition which
BAD FAITH GOOD FAITH invalidates it, while there is bad faith if he is
Acquire Right of Collect value of aware of such defect (Art. 526, NCC).
improvements retention for materials
after indemnity necessary primarily from Landowner, Owner of the Materials –
to Builder, expenses. Builder, Planter consists in the ignorance of the acts of the
Planter, Sower and Sower, builder, planter or sower or if he was aware,
or sell to Pay the value subsidiarily there was opposition on his part, while bad
Builder and of the liable with the faith is knowledge of such acts without
Planter except materials to Land Owner opposition on his part (Jurado, Civil Law
if the property owner of
Reviewer, 2009, p.336).
is considerably materials and Collect
more pay him damages
damages. When Both Landowner and Builder (who is
(Arts. 447 and If Builder, also the owner of the materials), all acted in
546, NCC) Planter, Sower good faith, the right to choose between
acquires appropriating the improvement or selling the
improvements land on which the improvement of the builder,
remove planter or sower stands, is given to the The
materials in any only right given to the builder in good faith is
event (Art. 447 the right to reimbursement for the
and 455, NCC)
improvements; the builder, cannot compel the
GOOD FAITH BAD FAITH GOOD FAITH
owner of the land to sell such land to the
Acquire Recover Collect value of
without paying necessary materials and former (Art. 448, NCC).
indemnity and expenses. damages from
collect (Art. 443 and Builder, Planter The landowner cannot refuse to exercise
damages or 452, CC) or Sower and either option and compel instead the owner of
sell to Builder, subsidiarily the building or improvement to remove it from
Planter or from Land the land. The remedy of remotion is available
Sower and Owner. only if and when the owner of the land
collect
chooses to compel the builder to buy the land
damages or Remove
at a reasonable price but the latter fails to pay
demolish or materials in any
restore and event if Builder, such price (Technogas Philippines Manufacturing
collect Planter or Corp. v. CA, G.R. No. 161004, April 14, 2008).
damages. Sower acquires
improvements. Accession Natural
Pay necessary
expenses to To the owners of lands adjoining the banks of
Builder, Planter rivers belongs the accretion which they
or Sower. gradually receive from the effects of the
BAD FAITH GOOD FAITH BAD FAITH current of the waters. (Art 457, NCC)
Acquire Indemnity for No indemnity
improvements damages

100 Center for Legal Education and Research


Alluvium
Increment which lands abutting rivers
gradually receive as a result of the current of
the waters. It is the gradual deposit of
sediment by the natural action of a current of
fresh water (not sea water), the original
identity of the deposit being lost. Soil is
gradually deposited on banks adjoining the
river (Rabuya, Property, 2008, p. 234).
Requisites:
a. Deposit of soil or sediment is gradual and
imperceptible
b. As a result of the action of the currents of
the waters of the river
c. Land where the accretion takes place is
adjacent to the banks of the rivers
(Rabuya, Property, 2008, p. 235).
Deemed to Exist: When the deposit of the
sediment has reached a level higher than the
highest level of the water during the year
Effects:
a. Land automatically owned by the riparian
owner.
b. BUT does not automatically become
registered property (Rabuya, Property, 2008,
p. 234).
Rationale:
a. To offset the owner‘s loss from possible
erosion due to the current of the river
b. Compensate for the subjection of the land
to encumbrances and legal easements
(Rabuya, Property, 2008, p. 235).
Accretion operates ipso jure. However, the
additional area is not covered by a Torrens
title and the riparian owner must register the
additional area (Meneses v. CA, G.R. No. 82220,
July 14, 1995).
Since the accretion was formed by the
dumping of boulders, soil, sawdust and other
filing materials, it cannot be claimed that the
accumulation of such was gradual and
imperceptible. The deposit was not also due
Purple Notes 2018
Civil Law
to the effect of water current. The article
excludes all deposits caused by human
intervention. Alluvium must be the exclusive
work of nature. The accretion in this case is
man-made, since it was formed as a result of
sawdust dumped into the dried up creek along
the banks of rivers, hence, part of the public
domain (Vda. De Nazareno v. CA, G.R. No. 98048,
June 26, 1996).
Registration under the Torrens System does
not protect the riparian owner against
diminution of the area of his land through
gradual changes in the course of adjoining
stream (Payatas v. Tuazon G.R. No. L-30067,
March 23, 1929).
Avulsion
Process whereby the current of a river, creek,
and torrent segregates from an estate on its
bank a known portion of land and transfers it
to another estate. A portion of land is
segregated from one estate by the forceful
current of a river, creek or torrent and
transferred to another (Rabuya, Property, 2008,
p. 243).
Requisites:
a. Segregation and transfer of land is sudden
and abrupt
b. Caused by the current of the water
c. Portion of land transported must beknown
and identifiable; or
d. Can also apply to sudden transfer by other
forces of nature such as land transferred
from a mountain slope because of an
earthquake.
The owner must remove the transported
portion within two years to retain ownership.
(Art. 459, Civil Code) In avulsion, it is essential
that the detached portion be known or
identifiable. Therefore, mere placing on top
will not make the article inapplicable as long
as the identification is possible. But if because
of some force, (e.g. continuous rain) the two
have so mixed with each other that
identification cannot take place, the article
should not apply (II Tolentino, 135). In this
Bar Operations C ommissions 101
 Purple Notes
Civil Law
case, the principles of commixtion or cause. The island formed is owned by the
confusion should apply. State (Art. 464, NCC).

Effect: The ownership of the detached Islands formed through successive

property is retained by the owner subject to accumulation of alluvial deposits in non-
removal within 2 years from the detachment navigable and non-floatable rivers (Art. 465,
(Art. 459, NCC). NCC).

Alluvium vs. Avulsion Rules of Ownership:

ALLUVIUM AVULSION a. It shall belong to the owner of the margins

The deposit of the soil Sudden or abrupt; may or banks nearest to the island;
here is gradual and be seen. b. If the island is in the middle of the river,
imprescriptible the same shall be owned by the owners of
Soil cannot be identified Soil is identifiable or both margins, in which case it shall be
verifiable divided longitudinally in halves; or
Belongs to owner of the Belongs to the owner
c. If the island be more distant from one
property to which it is from whose property it
attached. was detached.
margin than from the other, the owner of
Merely an attachment Detachment followed the nearer margin shall be the sole owner
by attachment. thereof (Art. 465, NCC).

Trees uprooted and carried away by the Requisites:

current of the waters belong to the owner of
the land upon which they may be cast if the
owners do not claim them within 6 months. If
the trees form part of the soil which was
removed by action of waters, the rule on
avulsion will apply. Thus, the action will
prescribe in 2 years.
Change of Rivers’ Course
a. Change in the natural course of the waters
of the river;
b. Such change causes the abandonment of
the river beds.
Natural Bed: ground covered by its waters
during ordinary floods. Such change is sudden
or abrupt.

If there is a natural change in the course of Results:

the waters of the river, the abandoned
riverbeds shall ipso facto belong to the
owners whose lands are occupied by the new
course in proportion to the area lost(Art. 469,
NCC).
Island
When the current of a river divides itself into
branches, leaving a piece of land. The island
formed remains to be the property of the
owner of the land where such island has been
formed and the portion of the land separated
from his estate by the current (Art. 463, NCC).
a. Owners whose lands are occupied by the
new course automatically become owners
of the old bed, in proportion to the area
they lost;
b. Owners of the lands adjoining the old bed
are given the right to acquire the same by
paying the value of the land 
Not
exceeding the value of the land invaded
by the new bed (the old property of the
owner);
c. The new bed opened by the river on a
private estate shall become of public
dominion.

An island is formed on a sea, lake or

navigable or floatable river through whatever

102 Center for Legal Education and Research


Islands’ Formation
They belong to the State if:
a. Formed on the SEAS within the jurisdiction
of the Philippines
b. Formed on LAKES
c. Formed on NAVIGABLE or FLOATABLE
RIVERS
capable of affording a channel
or passage for ships and vessels
d. Must be sufficient not only to float bancas
and light boats, but also bigger
watercraft
e. Deep enough to allow unobstructed
movements of ships and vessels (Art. 464,
NCC)
They belong to the owners of the
nearest margins or banks if:
a. Formed through successive accumulation of
alluvial deposits
b. On NON-NAVIGABLE and NON- FLOATABLE
RIVERS
c. If island is in the middle: divided
longitudinally in half (Art. 464, NCC)
b. For immovables
Adjunction
Process by virtue of which two movable things
belonging to different owners are united in
such a way that they form a single object and
each of the things united preserves its own
nature.
Requisites:
a. Two things must belong to different
owners;
b. Form a single object;
c. Inseparable or their separation would
impair their nature.
Kinds:
a. Inclusion or engraftment
b. Soldadura or soldering
Purple Notes 2018
Civil Law
i. Ferrumination – if both accessory and
principal are of the same metal
ii. Plumbatura – if they are of different
metals
c. Escitura or writing
d. Pintura or painting
e. Tejido or weaving
Test to Determine Principal
a. The ―rule of importance and purpose‖ – to
which the other (accessory) has been
united as an ornament or for its
perfection.
b. Of greater value, if they are of unequal
values
c. Of greater volume, if they are of an equal
value
d. That of greater merits taking into
consideration all the pertinent legal
provisions applicable as well as the
comparative merits, utility and volume of
their respective things.
Rules in Adjudication by either owner
General Rule: Accessory follows the
principal.
Exception: If the accessory is much more
precious than the principal, the owner of the
accessory may demand the separation even if
the principal suffer some injury.
Adjudication in bad faith by the owner of the
principal; Option of the owner of the
accessory:
• To recover the value plus damages; or
• To demand separation plus damages.
Adjudication in bad faith by the owner of the
accessory:
• He losses the accessory; or
• He is liable for damages
When separation of things allowed:
 Separation is without injury; or
Bar Operations C ommissions 103
 Purple Notes
Civil Law
 Accessory is more precious than the Exception: If the material is more
principal; or precious/valuable than the new thing, the
 Owner of the principal acted in bad faith. owner of the material may choose:

Commixtion 1. To appropriate the new thing to

Combination or union of materials where the
respective identities of the component
elements are lost.
Kinds:
Commixtion – mixture of solid
Confusion – mixture of liquids
Rules:
himself, but he pays for the work; or
2. To demand indemnity for the material.
3. Owner of the principal (worker) in bad
faith: the owner of the material has the
choice:
4. To acquire the new thing without
indemnity; or
5. To demand indemnity for the material
plus damages.
6. Owner of the material in bad faith
7. He loses the material;
8. He is liable for damages.

Mixture by will of the owners. In the absence ADJUNCTION MIXTURE SPECIFICATION

of stipulations, each owner acquires a right or Involves at Involves at May involve only
interest in the mixture in proportion to the least two least two one thing (or
value of his material as in co-ownership. things. things more) but form is
changed.
 Mixture caused by an owner is proportional Accessory Co- Accessory follows
follows the ownership the principal
to the value of the part which belonged to
principal results
him. The share of each owner is
Things joined Things The new object
proportional to the value of the part which retain their mixed or retains or
belonged to him. nature confused preserves the
 Mixture is caused by an owner in bad faith: may either nature of the
 He loses his material in favor of the other‘s retain or original object.
material; and lose their
 He is liable for damages respective
natures
4. Mixture made with the knowledge and
without the objection of the other owner. D. QUIETING OF TITLE
Their respective rights shall be determined as
though both acted in good faith. An action to remove a cloud from the title of
real estate. Persons having legal as well as
Specification equitable title to or interest in a real property
may bring such action. "Title" does not
Giving of a new form to another‘s material necessarily denote a certificate of title issued
through application of labor (labor is the in favor of the person filing the suit (Maestrado
principal). v. CA, G.R. No. 133345, March 9, 2000).

Rules: NATURE: QUASI IN REM

 Owner of the principal (worker) in good
faith
 A worker/maker acquires the new thing;
 Must indemnify the owner of the material.
A suit against a particular person or persons
in respect to the res and the judgment will
apply only to the property in dispute.
The action to quiet title is characterized as
proceeding quasi in rem. Technically, it is

104 Center for Legal Education and Research


neither in rem nor in personam. In an action
quasi in rem, an individual is named as
defendant. However, unlike suits in rem, a
quasi in rem judgment is conclusive only
between the parties (Spouses Portic v. Cristobal,
G.R. No. 156171, April 22, 2005).
Requisites:
1. Plaintiff must have a legal or equitable title
to, or interest in real property which is the
subject matter of the action;
2. There must be a cloud on such title;
3. Such cloud must be done to same
instrument, record claim, encumbrance or
proceeding which is apparently valid but is in
truth invalid, voidable or unenforceable, and is
prejudicial to the plaintiff‘s title (Rabuya,
Property, Property, 2008, p. 264)
Purple Notes 2018
Civil Law
(Galler v. Hussain, 20 G.R. No. L-20954, May 24,
1967).
3. Prescription / non-prescription of
action
If the plaintiff is in possession of property -
action does not prescribe (Sapto v. Fabiana,
G.R. No. L-11285, May 16, 1958).
If the plaintiff is not in possession of property
action may prescribe in (Immovables):
- 10 years (ordinary good faith and with
just title)
- 30 years (extraordinary uninterrupted
adverse possession)
In case of movables:

2. Distinctions between quieting of title 4 years – in good faith

and removing/preventing cloud 8 years – in bad faith

Action to quiet title does not apply:

ACTION TO QUIET ACTION TO REMOVE
TITLE CLOUD a. To questions involving interpretation of
To put an end to To procure the contract or document;
troublesome, vexatious cancellation, release of b. To mere written or oral assertions of
litigation with respect an instrument, claim except:
to the property encumbrance, or claim
concerned. in the plaintiffs title or
enjoyment of the If made in legal proceeding;
property.
Plaintiff asserts own Plaintiff declares his c. If it is being asserted that the instrument
claim and declares that own claim and title, and or reentry in plaintiff‘s favor is not what it
the claim of the at the same time purports to be;
defendant is unfounded indicates the source and d. To boundary disputes;
and calls on the nature of the e. To deeds by strangers to the title unless
defendant to justify his defendant‘s claim,
purporting to convey the property of the
claim on the property pointing its defects and
that the same maybe prays for the declaration plaintiff;
determined by the of its invalidity. f. To instruments invalid on their face;
court. g. Where the validity of the instrument
Remedial action Preventive action to involved pure questions of law; and
involving a present prevent a future cloud h. If the action has prescribed and the
adverse claim on the title plaintiff is not in possession of the
property.
In an action to quiet title, the suit does not
prescribe if the plaintiff is in possession of the E. CO-OWNERSHIP
property. However, if the property is in the
possession of the defendant, then the action The form of ownership when the ownership of
has prescribed. The action would not be one an undivided thing or right belongs to
to quiet title, but one to recover real property different persons (Art. 484, NCC).

Bar Operations C ommissions 105

 Purple Notes
Civil Law
The right of common dominion which two or d. Testamentary disposition or donation inter
more persons have in a spiritual part of a vivos
thing, not materially or physically divided. e. Fortuitous event or by chance (commixtion,
confusion, hidden treasure)
Manifestation of the private right of f. Occupation or occupancy (two persons
ownership, which instead of being exercised claim ownership
by the owner in an exclusive manner over the
things subject to it, is exercised by two or Co-ownership provided for by the Law:
more owners and the undivided thing or right
to which it refers is one and the same a. Cohabitation – co-ownership between
(Rabuya, Property, 2008, p. 272). common law spouses (Arts. 147, 148, 90, FC)
b. Purchase creating implied trust (Art. 1452)
Requisite of Co-Ownership: c. Easement of a party wall (Art. 658)
d. Condominium Law
a. Plurality of subjects
b. Unity of Object (Material Indivision) Unless otherwise, provided, the common
c. Recognition of Ideal Shares which areas are held in common by the holders
determines the rights and obligations of of units, in equal shares, one for each unit
the co-owners (Rabuya, Property, 2008, p. (Sec. 6, RA 4726, The Condominium Act).
272-273).
Co-ownership distinguished from other
Dual Nature of Ownership in Co- concepts
Ownership:
CO-OWNERSHIP JOINT OWNERSHIP
1. Ownership over the ideal share Each co-owner owns only Each joint-tenant
his ideal share in the cannot dispose of his
2. Joint Ownership over the whole
whole property own share without the
consent of all the
1. Characteristics of co-ownership others.
In general: In case of death, the In case of death, the
share of co-owners share of joint-tenant
a. There are two or more co-owners (Art. 484, remains, even if one of goes to other joint-
NCC); them happens to be a tenant.
b. There is a single object which is not minor
materially or physically divided and over Prescription runs against Prescription does not
which his ideal share of the whole, each all co-owners, even if run against all joint-
one of them happens to tenants if one of them
of the co-owner exercises ownership,
be a minor. is a minor or is under
together with the other co-owners; legal disability.
c. There is no mutual representation by the
co-owners; ORDINARY
d. It exists for the common enjoyment of the CO-OWNERSHIP
PARTNERSHIP
co-owners; Created by law, contract, Created by contract
e. It has no distinct legal personality; succession, fortuitous (express or implied).
f. It is governed first of all by the contract of event or occupancy
the parties; otherwise, by special legal For common enjoyment To obtain profits.
provisions, and in default of such of the thing or right
provisions, by the provisions of Title III on owned in common.
No juridical personality Has a juridical
Co-ownership.
personality.
Share is proportionate to Shares or profits may
2. Sources of Co-ownership the respective interests be subject to
of the co-owners. stipulation.
a. Law Co-owner may dispose of A partner cannot
b. Contracts his share without the dispose of his share
c. Succession consent of the others – and substitute the

106 Center for Legal Education and Research

 Purple Notes 2018
Civil Law
except when personal buyer/assignee in his Every co-owner has absolute ownership of his
rights are involved. place without the undivided interest in the co-owned property
consent of the others. and is free to alienate, assign or mortgage his
Agreement to keep the Law fixes no limit interest except as to purely personal rights.
thing undivided for a
While a co-owner has the right to freely sell
period of more than 10
years is void.
and dispose of his undivided interest,
Generally, there is no Generally there is a nevertheless, as a co-owner, he cannot
mutual representation. mutual representation, alienate the shares of his other co-owner s –
Exception: When a co- unless otherwise nemo dat qui non habet (Acabal v. Acabal, G.R.
owner files a case for stipulated. No. 148376, March 31, 2005).
ejectment, the rest are
represented. Only limitation: a co-owner cannot use or
Death or incapacity of a Death dissolved the enjoy the property in a manner that shall
co-owner does not partnership injure the interest of his other co-owners
dissolve the co- (Pardell v. Bartolome, G.R. No. L-4656, November
ownership. The deceased 18, 1912).
will be represented by
his estate or heirs in the Concept of Condominium
co-ownership.
Condominium – an interest in real property
CO-OWNERSHIP EASEMENT
There is in each co- Precisely a limitation
consisting of a separate interest in a unit in
owner a right of on the right of residential, industrial or commercial building
dominion over the whole dominion. and an undivided interest in common directly
property and over his or indirectly, in the land on which it is located
undivided share. and in other common areas of the building
The right of ownership The right of dominion (Sec. 2, R.A. No. 4726, Condominium Act).
rests solely on each and is favor of one or more
every co-owner over a persons and over two The buyer of a unit in a condominium
single object. or more different acquires ownership over the unit only after he
things. has paid in full its purchase price. The
ownership of a condominium unit is the
CONJUGAL
CO-OWNERSHIP ―separate interest‖ of the owner which makes
PARTNERSHIP
May arise by an ordinary Arises only because of him automatically a shareholder in the
contract. the marriage contract. condominium (Condominium Corp. v. Campos,
Sex of the co-owners is One must be a male, Jr., G.R. G.R. No. L-52361, April 27, 1981).
immaterial the other a female.
Co-owners may be two Conjugal owners are Interest in Real Property
or more. always two.
Profits are proportional Profits are generally The Condominium Act (RA 4726) defines
to respective interests. 50-50 unless a ―condominium‖ as:
contrary stipulation is
in a marriage An interest in real property consists of a
settlement.
separate interest in a unit in a:
Death of one does not Death of either
dissolve the co- husband or wife
ownership. dissolves the conjugal • Residential;
partnership. • Industrial or Commercial building or in an
Generally, all co-owners Generally, the husband industrial estate; and
administer. is the administrator. • An undivided interest in common, directly
Co-ownership is Encourage by law to and indirectly, in the land, or the
discouraged by law. provide for better appurtenant interest of their respective
family solidarity. units in the common areas (Sec. 2, R.A. No.
4726).

Bar Operations C ommissions 107

 Purple Notes
Civil Law
Concept of Common Areas, amendment
A ―common area‖ refers to the entire project
excepting all units separately granted or held
or reserved (Sec. 3[d], R.A. No. 4726).
Under Sec. 4, of R.A. No. 4726, ―common
areas‖ may be added to or become separate
areas by amending the master deed.
Amendment of the master deed shall be done
by registration of an instrument which is:
Executed by the registered owner or owners
of the property; and consented to by all
registered holders of any lien or encumbrance
on the land or building or portion thereof.
The term ―registered owner‖ shall include the
registered owners of condominiums in the
project (Sec. 4, RA 4726).
The enabling or master deed may be
amended or revoked upon registration of an
instrument executed by a simple majority of
the registered owners of the property;
Provided, that in a condominium project
exclusively for either residential or commercial
use, simple majority shall be on a per unit of
ownership basis and that in the case of mixed
use, simple majority shall be on a floor area of
ownership basis: Provided, further, that prior
notifications to all registered owners are done:
and Provided, finally, that any amendment or
revocation, already decided by a simple
majority of all registered owners shall be
submitted to the Housing and Land Use
Regulatory Board and the city/municipal
engineer for approval before it can be
registered. Until registration of a revocation,
the provisions of this Act shall continue to
apply to such property (Sec. 4, R.A. No. 7899).
Articles of Incorporation and By-laws of
the condominium corporation
Whenever the common areas of the
condominium are owned by a condominium
corporation, the articles of incorporation and
by-laws of the said corporation shall:
Not contain any provision contrary to or
inconsistent with the provisions of the
Condominium Act, the enabling or master
108 Center for Legal Education and Research
deed, or the declaration of restrictions of the
project (Sec. 10, 4726).
Limit the corporate purpose to:
a. The holding of the common areas, either in
ownership or any other interest in real
property recognized by law
b. To the management of the project, and to
such other purposes as may be necessary,
incidental or convenient to the
accomplishment of said purposes (Sec. 10,
RA 4726).
Rights and obligations of a condominium
owner
Rights of condominium unit owner:
a. Absolute ownership of his unit;
b. Co-ownership of land and common areas;
c. Exclusive easement of the space of his unit;
d. Non-exclusive easement to common areas
for ingress or egress;
e. Right to sell, lease, or mortgage his unit;
f. Right to repair, paint, decorate the interior
surface of his unit; and
g. Right to participate and vote in
condominium corporation meetings (Sec.
6, RA 4726).
Obligations of a condominium unit
owner:
a. Pay the realty on his unit:
b. Pay the insurance on his unit;
c. Pay the shared monthly dues for
maintenance of common
areas/amenities/garbage disposal comply
with use restrictions
Realty Installment Buyer Act (R.A. No.
6552)
In case where less than two years of
installments were paid, the seller shall give
the buyer a grace period of not less than sixty
days from the date the installment became
due.
If the buyer fails to pay the installments due
at the expiration of the grace period, the
seller may cancel the contract after thirty days

from receipt by the buyer of the notice of
cancellation or the demand for rescission of
the contract by a notarial act (Sec. 4, RA 6552).
Under Sec. 3 and 4, the buyer shall have the
right to sell his rights or assign the same to
another person or to reinstate the contract by
updating the account during the grace period
and before actual cancellation of the contract.
The deed of sale or assignment shall be done
by notarial act (Sec. 5, RA 6552).
The buyer shall have the right to pay in
advance any installment or the full unpaid
balance of the purchase price any time
without interest and to have such full
payment of the purchase price annotated in
the certificate of title covering the property
(Sec. 6, RA 6552).
Any stipulation in any contract hereafter
entered into contrary to the provisions of
Sec.s 3, 4, 5 and 6, shall be null and void (Sec.
4, RA 6552).
Right to Refund Under RA No. 6552 and
P.D. 957
R.A. No. 6552 – Right to refund applies as a
requisite for cancellation of contract due to
delinquency when the buyer has paid at least
two years. Refund is 50% of total payments;
additional 5% per year after 5th year.
Presidential Decree 957 – Right to refund
applies when the developer fails to complete
the development within the required period.
Refund is 100% of total payments less penalty
interest.
Grounds for dissolution of the
condominium:
a. That three years after damage or
destruction to the project in which the
corporation owns or holds the common
areas, which damage or destruction
renders a material part thereof unfit for
its use prior thereto, the project has not
been rebuilt or repaired substantially to
its state prior to its damage or
destruction; or
b. That damage or destruction to the project
has rendered one-half or more of the
Purple Notes 2018
Civil Law
units therein untenantable and that more
than thirty percent of the members of the
corporation, if non-stock, or the
shareholders representing more than
thirty percent of the capital stock entitled
to vote, if a stock corporation, are
opposed to the repair or reconstruction of
the project, or
c. That the project has been in existence in
excess of fifty years, that it is obsolete
and uneconomical, and that more than
fifty percent of the members of the
corporation, if non-stock, or the
stockholders representing more than fifty
percent of the capital stock entitled to
vote, if a stock corporation, are opposed
to the repair or restoration or remodeling
or modernizing of the project; or
d. That the project or a material part thereof
has been condemned or expropriated and
that the project is no longer viable, or
that the members holding in aggregate
more than seventy percent interest in the
corporation, if non-stock, or the
stockholders representing more than
seventy percent of the capital stock
entitled to vote, if a stock corporation,
are opposed to the continuation of the
condominium regime after expropriation
or condemnation of a material portion
thereof; or
e. That the conditions for such dissolution
set forth in the declaration of restrictions
of the project in which the corporation
owns or holds the common areas, have
been met (Sec. 8 and 13, RA 4726).
3. Rights of Co-Owner
Rights of each co-owner as to the thing
owned in common:
a. To use the thing owned in common (Art.
486, NCC)
Limitations:
i. Use according to the purpose for which it
was intended;
ii. Interest of the co-ownership must not be
prejudiced;
Bar Operations C ommissions 109
 Purple Notes
Civil Law
iii. Other co-owners must not be prevented
from using it according to their own rights
(Art. 486, NCC).
b. To share in the benefits and charges in
proportion to the interest of each. Any
stipulation to the contrary is void (Art. 485,
NCC);
If the source of the co-ownership is a
contract, the share of the co-owner in the
thing itself may depend on their agreement
and, in default thereof, it is presumed to be
equal in the absence of proof to the contrary
(Rabuya, Property, 2008, p. 282).
c. To bring an action for ejectment
A co-owner may bring an ejectment action
without joining the other co-owners, the suit
being deemed instituted for the benefit of all.
(3 Manresa, 6th ed., 424)
A co-owner may file an ejectment suit against
a co-owner who takes exclusive possession of
the property, but it will only be for the
purpose of obtaining recognition of the co-
ownership (Rabuya, Property, 2008, p. 292).
d. To the benefits of prescription –
Prescription by one co-owner benefits all.
e. To compel the others to share in the
expenses of preservation even if incurred
without prior notice (Right to
contributions for expenses).
A co-owner may exempt himself from the
duty to reimburse by RENOUNCING
(abandoning for the benefit of the others) so
much of his undivided share as may be
equivalent to his share of the expenses and
taxes. However, the renouncing cannot be
done if the co-ownership will be prejudiced
(Rabuya, Property, 2008, p.297-298).
Reimbursement covers only necessary
expenses, like those for the preservation
of a house in a ruinous condition (Trinidad v.
Ricafort, et al., G.R. No. 3240, February 8, 1907)
and not for useful improvements, even if the
value of the property is thereby increased, the
purpose of co-ownership not being for profit.
110 Center for Legal Education and Research
f. To oppose alterations made without the
consent of all, even if beneficial (Art. 491,
NCC).
Alteration – an act by virtue of which a co-
owner changes the thing from the state which
the others believe it should remain; or
withdraws it from the use to which they wish
it to be intended; or transforms it which
prejudices the condition or substances of the
thing or its enjoyment by the others (Rabuya,
Property, 2008, p. 304).
Alteration requires unanimity
If the withholding of the consent by one or
more of the co-owners is clearly prejudicial to
the common interest, the courts may afford
adequate relief.
Effect of Alteration without Consent
The erring co-owner may be compelled to:
1. Undo what has been done.
2. Lose what has been spent.
3. Pay for damages or loss suffered by the co-
ownership (Rabuya, Property, 2008, p. 408).
g. To make repairs for the preservation may
be made at the WILL OF ONE of the co-
owners, but he must, if practicable, first notify
his co-owners of the necessity for such
repairs.
Expenses to improve or embellish are decided
by MAJORITY.
Acts of Administration – do not involve
alteration; temporary or transitory, do not
give rise to a real right, for the common
benefit of all co-owners. For the
administration and better enjoyment of the
thing owned in common, the financial majority
is sufficient (Rabuya, Property, 2008, p. 305).
h. To protest against seriously prejudicial
decisions of the majority.
Legal redemption: to be exercised within 30
days from written notice of sale of an
undivided share of another co-owner to a
stranger (Right To Redemption Of Co-Owners
Share) (Art. 1620 and 1623, NCC)

i. To defend the co-ownership‘s interest in
court.
j. To demand partition at any time (Right To
Partition) (Art. 494, NCC).
Partition
The division between 2 or more persons of
real or personal property which they own in
common so that each may enjoy and possess
his sole estate to the exclusion of and without
interference from the others (Art. 1079, NCC).
Right to Partition (Art. 494, NCC)
a. Each may demand at any time the partition
of the thing, insofar as his share is
concerned
b. An agreement to keep the thing undivided
for a certain period NOT exceeding 10
years is valid.
c. Term may be extended by a new
agreement
d. Donor or testator may prohibit partition,
period NOT to exceed 20 years
e. No partition if prohibited by law
f. Right does not prescribe
Rights as to the ideal share of each co-
owner:
a. Each has full ownership of his part and of
his share of the fruits and benefits.
b. Right to substitute another person in its
enjoyment.
Exception: When personal rights are
involved:
a. Right to alienate, dispose or encumber.
The effect of the alienation or the
mortgage, with respect to the co-owners,
shall be limited to the portion which may
be allotted to him in the division upon the
termination of the co-ownership.
b. Right to renounce part of his interest to
reimburse necessary expenses incurred by
another co-owner.
c. Transactions entered into by each co-owner
only affect his ideal share.
Purple Notes 2018
Civil Law
Effects of partition:
Once partition has been made, whether by
agreement among the co-owners or by
judicial proceedings, the following are the
legal effects:
a. The co-ownership is terminated;
b. It shall not prejudice the rights of the third
persons who shall retain the right to
mortgage, servitude or any other real
rights belonging to them before the
division was made.
c. Personal rights pertaining to third persons
against the ownership shall also remain in
force.
d. Mutual accounting shall be rendered by the
co-owners to each other with regard to
benefits and expenses and each co-owner
shall pay for the damages by reason of his
negligence or fraud.
e. Every co-owner shall be liable for defects of
title and quality of the portion assigned to
each of the other co-owner (Rabuya,
Property, 2008, p. 347).
Rights against individual co-owners in
case of partition:
a. The partition of thing owned in common
shall not prejudice third persons who shall
retain the rights of mortgage, servitude or
any other real rights belonging to them
before the division was made.
b. Personal rights pertaining to them against
the co-ownership shall also remain in
force notwithstanding the partition.
Partition in case-co-owners cannot
agree - Whenever the thing is essentially
indivisible and the co-owners cannot agree,
the property may be allotted to one of the co-
owners, who shall indemnify the other;
otherwise, it shall be sold, and the proceeds
distributed (Art. 498, NCC).
When co-owner may not demand
partition:
General Rule: Partition is demandable by
any of the co-owners as a matter of right at
any time.
Bar Operations C ommissions 111
 Purple Notes
Civil Law
Exceptions:
a, By agreement (not exceeding 10 years),
partition is prohibited (Art. 494, NCC).
b. Partition prohibited by donor or testator
(not exceeding 20 years) (Art. 494, NCC).
c. Partition prohibited by law (Art. 494, NCC).
d. Physical partition would render property
unserviceable for which it is intended.
e. Legal nature of common property does not
allow partition (Art. 495, NCC).
f. When another co-owner has possessed the
property as exclusive owner and for a
period sufficient to acquire it by
prescription.
Possession by tolerance is not the kind of
possession that may lead to title by
prescription. It is the respondents‘ open,
continuous, adverse and uninterrupted
possession far beyond the 30-year
extraordinary period for acquisitive
prescription, coupled with the tax declarations
of their predecessors-in-interest that
continues a superior weight of evidence that
clinched their claim (Catapusan v. CA, G.R. No.
109262, November 21, 1996).
General Rule: No co-owner may acquire
ownership of the property co-owned by
prescription.
Exceptions:
a. When he repudiates the rights of the
others;
b. Repudiation is brought to the knowledge of
the other co-owners;
c. Evidence thereon is clear and conclusive;
d. Lapse of the period fixed by law (Rabuya,
Property, 2008, p. 332).
4. Termination of Co-ownership
a. Loss or destruction of the thing;
b. Merger of all the interest in one co-owner;
c. By the partition, judicial or extrajudicial, of
the respective undivided shares of co-
owner.
d. Judicial or extrajudicial partition (2103
Manresa, 6th ed., 486; 2 Castan, 8th ed., 318)
112 Center for Legal Education and Research
F. POSSESSION
The holding of a thing or the enjoyment of a
right, either by material occupation or by the
fact of subjecting the thing or right to the
action of our will (Art. 523, NCC).
A. Requisites:
a. Holding/control or material detention or
enjoyment of a thing or right;
b. Animus possidendi or intent to possess the
thing or right; and
c. Possession must be by virtue of one‘s own
right (Rabuya, Property, 2008, p. 378).
Possession v Occupation (Bar 1997, 2000)
Occupation can take place only with respect
to property without an owner while
possession can refer to all kinds of property,
whether with owner or without an owner.
Occupation itself, when proper, confers
ownership but possession does not by itself
give rise to ownership (Suggested Answers,
UPLC & PALS).
Forms/degrees of possession:
a. Possession without any title whatsoever
(e.g. possession of a thief);
b. Possession with juridical title (e.g. lessee,
pledge, depositary);
c. Possession with just title (e.g. a buyer in good
faith, where the property was delivered to him
by one pretending to be the owner);
d. Possession with a title in fee simple, i.e.
possession that springs from ownership
(Rabuya, Property, 2008, p. 381).
1. Characteristics of Possession:
As a right
a. Jus possidendi – right to possession
which is incidental to and included in the
right of ownership
b. Jus possessionis – right of possession
independent of and apart from the right
of ownership (Rabuya, Property, 2008, p.
109).

2. Acquisition of Possession
Acquisition of Possession/Ways of
acquiring possession:
• By the material occupation of a thing
or exercise of a right.
• By the subjection of the thing or right
to our will.
• By proper acts and legal formalities
established for acquiring such right of
possession (Art. 531, NCC).
Constitutum possessorium – exists when a
person who possessed property as an owner,
now possesses it in some other capacity.
Traditio brevi manu – exist when a person
who possessed property not as an owner,
now possesses it as owner.
Traditio symbolica – delivery of a mere
symbol or objects which represent the thing
to be delivered (e.g. key of a warehouse).
Traditio longa manu – delivery by consent
or mere pointing (Paras, Civil Code Annotated,
16th Edition, 2008, p. 476 – 477).
Constructive possession:
The actual possession of part of the property
is deemed to extend to the whole because
possession in the eyes of the law does not
mean that a man has to have his feet on
every square meter of ground before it can be
said that he is in possession (Gonzalez v. CA,
G.R. No. 145914, June 20, 2001).
Requisites of Constructive Possession:
(1) the alleged possessor must be in actual
possession of a portion or part of the
property;
(2) he is claiming ownership of the whole
area; (3) the remainder of the area must not
be in the adverse possession of another
person; and
(4) the area claimed must be reasonable
(Rabuya, Property, 2008, p. 406).
Purple Notes 2018
Civil Law
Transfer of Possession through
Succession
- If possession of property is effected by way
of succession, whether testate or intestate,
such possession is deemed transmitted to the
heir without interruption from the moment of
the death of the decedent but only if the heir
accepts the inheritance. This rule will apply
even if such heir is not in actual physical
possession of the property. If the heir, on the
other hand, validly renounces the inheritance
he will be deemed never to have possessed
the same even if he is in actual physical
possession of the property (Art. 533, NCC).
Instances When Possession is not
Acquired:
1. Through the use of Force or Intimidation as
long as there is a possessor who objects
thereto.
- If such illegal manner of ejectment
is employed, the party who proves prior
possession can recover possession even from
the owners themselves (Heirs of Pedro
Laurora,v. Sterling Technopark III, G.R. No.
146815, Apri l9, 2003).
2. Acts Merely Tolerated
acts merely tolerated are those which by
reason of neighborliness or familiarity, the
owner of property allows his neighbor or
another person to do on the property; they
are generally those particular services or
benefits which one‘s property can give to
another without material injury or prejudice to
the owner, who permits them out of
friendship or courtesy (Sarona v. Villegas, G.R.
No. L-22984, March 27, 1968).
3. Clandestine and Unknown Acts
- it will not interrupt the running of
the period of acquisitive prescription in favor
of the legal possessor nor it will affect his
right to receive the fruits.
- On the part of the actual possessor,
his possession acquired through clandestine
acts not known to the legal possessor will not
ripen into ownership through prescription
because one of the requirements thereof —
that the possession be ―public‖ in character —
will not be present (Rabuya, Property, 2008, p.
419).
Bar Operations C ommissions 113
 Purple Notes
Civil Law

3. Effects of Possession (Art. 544-548, Q: Anthony bought a piece of untitled

NCC) agricultural land from Bert, Bert, in turn,
acquired the property by forging Carlo‘s
Possessor in Good Possessor in Bad signature in a deed of sale over the property.
Faith Faith Carlo had been in possession of the property
Entitled to the fruits Reimburse the fruits for 8 years, declared it for tax purposes, and
received or which religiously paid all taxes due on the property.
legitimate possessor Anthony is not aware of the defect in Bert‘s
would have received.
title, but has been in actual physical
Necessary Expenses
possession off the property from the time he
Right of reimbursement Right of reimbursement
and retention of the only
bought it from Bert, who had never been in
thing. possession. Anthony has since then been in
Pending Fruits possession of the property for one year.
Liable with the No right to the pending
legitimate possessor for fruits. a. If Carlo is able to legally recover his
expenses of cultivation property, can he require Anthony to account
and shall share in the for all the fruits he has harvested from the
net harvest in property while in possession?
proportion to the time
of possession.
b. If there are standing crops on the property
Useful Expenses
when Carlo recovers possession, can Carlo
Reimbursed to None
possessor (owner‘s appropriate them? (Bar 2008)
option).
Initial cost; A: a. Since Anthony is a possessor in good
Plus value may be faith, Anthony cannot be made to account for
removed if no the fruits he gathered before he was served
reimbursement, and no with summons. A possessor in good faith is
damage is caused to entitled to the fruits received before the
the principal by the possession was legally interrupted by the
removal. service of summons. (Art. 544, NCC) After
Deterioration or Loss
Anthony was served with summons, he
No liability unless due to Always
became a possessor in bad faith and a
his fault or negligence.
Ornamental expenses
builder, planter, sower in bad faith. He can
Not entitled to a refund. Not entitled to a refund also be made to account for the fruits but he
Right of removal, unless Right of removal, unless may deduct expenses for production
owner retains owner retains gathering and preservation of the fruits (Art. 1
possession of possession of 443, NCC)
ornaments, hence ornaments, refund
refund on the shall be LIMITED b. The value of the standing crops must be
actual amount to the value at the prorated depending upon the period of
expended. time of possession possession and the period of growing and
of owner.
producing the fruits. Anthony is entitled to a
Taxes and charges
part of the net harvest and a part of the
On capital – charged to On capital – charged to
owner; owner;
expenses of cultivation in proportion to his
On fruits – charged to On fruits – charged to period of possession. Carlo may appropriate
owner; owner; the respective parts subject to prorating the
Charges – prorated Charges – pro-rated. respective periods of possession. However,
Carlo may allow Anthony to gather these
Possession in good faith (4 years) or bad faith growing fruits as an indemnity for the
(8 years) cannot benefit possessor in cases expenses of cultivation. If Anthony refuses to
where Art. 559 are applicable (Pajunar v. CA, accept this concession, he shall lose the right
G.R. No. 77266, July 19, 1989).

114 Center for Legal Education and Research


to indemnity under Art. 443 (Art. 545, par. 3,
NCC).
Objects of Possession
General Rule: Only things and rights which
are susceptible of being appropriated may be
objects of possession (Art. 530, NCC).
Exceptions:
a. Res communes
b. Property of public dominion
c. Discontinuous servitudes
d. Non-apparent servitudes
e. Things specifically prohibited by law
Conflicts between several claimants
General Rule: Possession cannot be
recognized in two different personalities (Art.
538, NCC).
Exception: In case of co-possession when
there is no conflict.
Rules of preference of possession:
a. Present/actual possessor shall be preferred;
b. Two possessors, the one longer in
possession;
c. If the dates of possession are the same, the
one with a title; and
d. If the above are equal, the fact of
possession shall be judicially determined,
and in the meantime, the thing shall be
placed in judicial deposit (Art 538, NCC).
 Non-payment for the movable is not
unlawful deprivation (because there
was a valid contract and valid transfer
of ownership), but only creates a right
to demand payment or to rescind the
contract, or criminal prosecution.
Thus, he cannot recover the same
from the third person who acquired it
in good faith (EDCA Publishing v. Santos,
G.R. No. 80298, April 26, 1990).
 Owner lost or unlawfully deprived -
may recover not only from the finder,
thief or robber, but also from third
persons who may have acquired it in
Purple Notes 2018
Civil Law
good faith from such finder, thief or
robber (Aznar v. Yapdiangco, G.R. No. L-
18536, March 31, 1965).
 Possession may be acquired by the
same person who is to enjoy it, by his
legal representative, his agent, or any
person without any power whatever:
but in the last case, the possession
shall not be considered as acquired
until the person in whose name the
act of possession was ratified the
same, without prejudice to the
juridical consequences of negotiorum
gestio in a proper case (Art. 532, NCC).
4. Loss or unlawful deprivation of a
movable
The possession of movable property
acquired in good faith is equivalent to a title.
Nevertheless, one who has lost any movable
or has been unlawfully deprived thereof may
recover it from the person in possession of
the same. If the possessor of a movable lost
or which the owner has been unlawfully
deprived, has acquired it in good faith at a
public sale, the owner cannot obtain its return
without reimbursing the price paid therefore
(Art. 559, NCC).
Period to recover
Movables must be recovered within 8 years
from the time the possession is lost, unless
the possessor acquired the thing by
prescription for a lesser period under Articles
1132, 559, 1505 and 1133 (Art. 1140, NCC).
Ownership and other real rights over
immovable property are acquired by ordinary
prescription through possession of 10 years
(Art. 1134, NCC).
The ownership of movables prescribes
through uninterrupted possession for 4 years
in good faith ( Art. 1132, NCC).
Movables possessed through a crime can
never be acquired through prescription by the
offender (Art. 1133, NCC).
Bar Operations C ommissions 115
 Purple Notes
Civil Law
Finder of lost movable
Requisites:
a. A person finds a movable;
b. It is not a treasure under Art. 438.
The item should be returned to its owner. If
the owner is unknown, the finder must
deposit the thing with the mayor where it was
found, and the finding shall be published for
two consecutive weeks. If the thing will suffer
deterioration, it shall be sold at a public
auction eight days after publication. If six
months from publication the owner still did
not claim the thing, it shall be awarded to the
finder or its equivalent. The finder and the
owner shall be obliged, as the case may be, to
reimburse the expenses. However, if the
owner should appear in time he shall be
obliged to pay, as a reward to the finder, one
tenth of the sum of the price of the thing
found(Art. 720, NCC).
Distinguished from void title
Where the seller of goods has a voidable title
thereto, but his title has not been avoided at
the time of the sale, the buyer acquires a
good title to the goods, provided he buys
them in good faith, for value, and without
notice of the seller‘s defect of title (Art. 1506,
NCC).
Classification of Possession (Art. 524-526,
NCC)
a. Possession in one‘s own name and
possession in the name of another
b. Possession strictly as an agent of the one
entitled to the possession there being no right
whatsoever in the one exercising it, he being
merely the instrument for the exercise of the
possession; and
c. Possession with a right belonging to the
person exercising the possession in the name
of another of which right that person is in
possession thereby implying a juridical
relation between them, e.g., possession by a
lessee or a mere usufructuary.
116 Center for Legal Education and Research
d. Possession in the concept of an owner and
possession in the concept of a holder
b. Possession in good faith and possession in
bad faith.
One whose interest is merely that of a holder,
such as a mere tenant, agent or usufructuary,
is not qualified to become a possessor builder
in good faith. A lessee cannot be said to be a
possessor-builder in good faith as he has no
pretension to be owner. Being a mere lessee,
he knows that his occupation of the premises
will continue only for the life of the lease.
Hence, he cannot claim that he is unaware of
any flaw in his title or that he is under the
belief that he is the owner of the subject
premises. (Rabuya, Property, 2008, p. 396)
Q: In a petition for reconstitution of a lost or
destroyed TCT, where the petitioner-owner
states that she is in possession but somebody
else is residing in the property, is the petition
defective?
A: No. In the case of Republic v. Alonte, (G.R.
No. 162787, June 13, 2008), the SC held that
the fact that Alona, Ludy‘s attorney-in-fact,
testified that it is she and her family who are
residing on the subject lot, does not negate
the statement in the petition for reconstitution
that it is Ludy who is in possession of the lot.
After all, Art. 524 of the NCC provides that
possession may be exercised on one‘s own
name or in that of another. Obviously, Alona
was exercising possession over the land in the
name of Ludy (Jurado, Civil Law Reviewer, 2009,
p. 389).
6. Rights of Possessor:
a. To institute an action to recover
possession (Art. 539, NCC);
b. A possessor enjoys the presumption of
just title;
c. He has right over the fruits;
d. Right to necessary, useful and
ornamental expenses.
7. Loss/Termination of Possession:
a. By the will of the possessor
i. Abandonment
 Purple Notes 2018
Civil Law
ii. Transfer or conveyance against the How Constituted:
will of the possessor
a. Eminent domain a. By law;
b. Acquisitive prescription b. By will of private persons in act inter
c. Judicial decree in favor of better right vivos;
Possession of another for more than c. By the will of private persons expressed
one year. This refers to in a last will and testament;
possession de facto where the d. By prescription (Rabuya, Property, 2008,
possessor loses the right to a p. 470-471).
summary action, but he may still
bring accion publiciana or accion Caucion Juratoria
reinvindicatoria.
d. By reason of the object A sworn duty to take good care of the
i. Destruction or total loss of the property of another and to return the same at
things the end of the usufruct (Rabuya, Property, 2008,
ii. Withdrawal from commerce p. 488).
iii. Escaping from possessor‘s
control; of wild animals (Paras, If the usufructuary who has not given security
Civil Code, supra 458) claims, by virtue of a promise under oath, the
delivery of the furniture necessary for his use,
G. USUFRUCT and that he and his family be allowed to live
in a house included in the usufruct, the court
IN GENERAL may grant this petition, after due
consideration of the facts of the case (Art. 587,
Usufruct gives the right to enjoy the property NCC).
of another with the obligation of preserving its
form and substance, unless the title Abnormal Usufruct – The usufructuary does
constituting it or the law otherwise provides not have the obligation of preserving the form
(Art. 562, NCC). (Bar 2019) and the substance of the property which is
the object of the usufruct (Rabuya, Property,
General Rule: Usufructuary is bound to 2008, p. 472).
preserve the form and substance of the thing
in usufruct.
Distinction between usufruct and lease
Exception: Abnormal usufruct whereby the
law or the will of the parties may allow the USUFRUCT LEASE
modification of the substance of the thing. As to nature of right
Always a real right. Generally a personal
1. Characteristics: right; becomes a real
right only when
a. It is real right (whether registered or registered
As to constitution
not in the Registry of Property) of use
Constituted by law, by Constituted by
and enjoyment;
the will of private contract.
b. It is temporary in duration; persons expressed in
c. Transmissible; acts inter vivos or in a
d. May be constituted on real or personal last will or testament,
property, consumable or non- and by prescription.
consumable, tangible or intangible, As to the person constituting it
the ownership of which is vested in The owner. Need not be the
another. owner
e. To derive all advantages from the As to extent
thing due to normal exploitation Includes the right to use Limited to use only.
and to enjoy the fruits
(Rabuya, Property, 2008, p. 467).

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 Purple Notes
Civil Law
(jus utendi and jus No necessity of refunding the owner for
fruendi) of the thing. expenses incurred (for the owner gave the
As to duration usufruct evidently without any thought of
There is no limitation to There is a limitation being reimbursed for the pending fruits or
the duration of a to the duration of a because the value of said fruits must have
usufructuary right. lease right.
already been taken into consideration in fixing
As to repair
the terms and conditions of the usufruct, if for
There is no limitation to Lessee is not instance, the usufruct came about because of
the duration of a generally under contract)
usufructuary right. obligation to
undertake repairs. BUT without prejudice to the right of 3rd
As to taxes persons (thus, if the fruits had been planted
Usufructuary is Lessee is not by a possessor in good faith, the pending crop
responsible for taxes on generally under expenses and charges shall be prorated
the fruits obligation to pay between said possessor and the usufructuary)
taxes.
iii. Fruits pending at the termination of
usufruct
2. Classifications: - Belong to the owner
- BUT the owner must reimburse the
Total and Partial – usufruct may be usufructuary for ordinary cultivation
constituted on the whole (total) or part expenses and for seeds and similar
(partial) of a thing. expenses from the proceeds of the fruits.
(Hence, the excess of expenses over the
Simple and Multiple – it may be constituted proceeds need not be reimbursed)
in favor of one person (simple) or it may be
constituted in favor of two or more persons. b. Rights to hidden treasure as a stranger.
(multiple) If he is the actual finder he gets half; if
not, he gets nothing because he is not the
Pure, with a condition or with a period- it owner.
may be constituted from or to a certain day
(with a period), purely or conditionally. c. Right to transfer usufructuary – gratuitous
or onerous; but is co-terminus with the
Proper (normal) and improper term of usufruct; fruits proportionate at
(abnormal) – It is proper or normal when it duration of usufruct; but can‘t do acts of
is improper or abnormal when it is constituted ownership such as alienation or
over a consumable thing. conveyance except when property is:
3. Rights And Obligations Of - Consumable
Usufructuary - Intended for Sale
- Appraised when delivered; if not appraised &
a. Rights to civil, natural, and industrial fruits consumable – return same quality (mutuum)
of property.
d. Right to exempt from execution and can
i. Civil Fruits Accrue Daily be sold at public auction by the owner.
- Belong to the usufructuary in proportion e. Naked owner still has the rights but
to the time the usufruct may last without prejudice to the usufructuary;
-Both stock dividends and cash dividends may still exercise rights of ownership.
are considered civil fruits f. Right to necessary expenses from
Industrial and Natural Fruits cultivation at end of usufruct
g. Right to enjoy accessions and servitudes
ii. Fruits pending at the beginning of the in its favor and all benefits inherent
usufruct belong to the usufructuary therein

118 Center for Legal Education and Research


h. Right to make use of dead trunks of fruit
bearing trees and shrubs or those
uprooted or cut by accident but obliged to
plant a new one.
i. Right to usufructuary of woodland
j. Right to leave dead, uprooted trees at the
disposal of owner with right to demand
that owner should clear and remove
them.
k. Right to oblige owner to give authority
and furnish him proofs if usufruct is
extended to recover real property.
l. Right to necessary expenses.
m. Right to introduce useful and luxurious
expenses but with no obligation of
reimbursement on the part of owner.
n. Right to set-off improvements against
damages he made against property.
o. Right to administer when property is co-
owned.
p. Right to demand the increase in value of
property if owner did not spend for
extraordinary repairs when urgent and
necessary for preservation of a thing.
As a rule, the lease executed by the
usufructuary should terminate at the end of
the usufruct or earlier, except in the case of
leases of rural lands, because in said case, if
the usufruct ends earlier than the lease, it
continues for the remainder of the agricultural
year.
It is not the naked owner, but the
usufructuary that has the right to choose the
tenant.
Obligations of the Usufructuary (Art. 583-
602, NCC)
Before the usufruct begins:
a. To make an inventory of the property;
b. To give security/bond;
Exceptions:
a. When no prejudice would result
b. When the usufruct is reserved by the donor
or parents
In cases of caucion juratoria where the
usufructuary, being unable to file the required
bond or security, files a verified petition in the
Purple Notes 2018
Civil Law
proper court asking for the delivery of the
house and furniture necessary for himself and
his family without any bond or security.
Takes an oath to take care of the things and
restore them; and property cannot be
alienated or encumbered it.
Effects of failure to post bond:
a. Owner shall have the following options:
i. Receivership of realty, sale of movables,
deposit of securities, or investment of
money; or
ii. Retention of the property as
administrator.
b. The net product shall be delivered to the
usufructuary
c. Usufructuary cannot collect credits due or
make investments of the capital without
the consent of the owner or of the court
until the bond is given (Rabuya, Property,
2008, p. 487).
Obligation during the Usufruct:
a) To take care of the property (Art. 589)
b) To replace with the young thereof
animals that die or are lost in certain cases
when the usufruct is constituted on flock or
herd of livestock (Art. 591)
c) To make ordinary repairs (Art. 592[1])
d) To notify the owner of urgent
extraordinary repairs (Art. 593)
e) To permit works and improvements by the
naked owner not prejudicial to the usufruct
(Art. 595)
f) To pay annual taxes and charges on the
fruits (Art. 595)
g) To pay interest on taxes on capital paid by
the naked owner (Art 597)
h) To pay debts when the usufruct is
constituted on the whole of a patrimony
(Art 598)
i) To secure the naked owner‘s or court‘s
approval to collect credits in certain case
(Art. 599)
j) To notify the owner of any prejudicial act
committed by third persons (Art 601)
k) To pay for court expenses and costs
regarding usufruct (Art 602)
Bar Operations C ommissions 119
 Purple Notes
Civil Law
l) To indemnify the owner for any
deterioration they may have suffered by
reason of his fraud/negligence (Art. 573)
m) If usufruct includes fruit-bearing trees &
shrubs, to replace them with new plants.
(Art. 574)
At the termination of the Usufruct:
a. To return the thing in usufruct to the naked
owner unless there is a right of retention
(Art 602)
b. To pay legal interest for the time that the
usufruct lasts, on the amount spent by the
owner for extraordinary repairs (Art 594)
and the proper interest on the sums paid
as taxes by the owner (Art 597)
c. To indemnity the naked owner for any
losses due to his negligence or of his
transferees.
d. If usufruct includes things which cannot be
used without being consumed, (obligation
is) to pay their appraised value at the
termination of the usufruct, if they were
appraised; or (if not appraised) to return
the same quality/quantity, or pay their
current price at the time the usufruct
ceases (Art. 574)
4. Rights and Obligations of the Owner
Rights of the Owner:
a. Alienate thing
b. Can‘t alter form or substance
c. Can‘t do anything prejudicial to
usufructuary
d. Construct any works and make any
improvement provided it does not diminish
value or usufruct or prejudice right of
usufructuary
e. If property is expropriated for public use-
owner obliged to either replace it or pay
legal interest to usufructuary of net
proceeds of the same (Rabuya, Property,
2008, p. 480).
5. Extinction, termination and
extinguishment
Extinguishment of Usufruct/
Extinction/Termination:
120 Center for Legal Education and Research
a. Death of the usufructuary, unless contrary
intention appears;
b. Expiration of the period or fulfillment of the
resolutory condition;
c. Merger of the usufruct and ownership in
the same person; (Art. 603, NCC)
d. Renunciation of the usufructuary;
e. Total loss of the thing;
f. Termination of the right of the person
constituting the usufruct;
g. Prescription. (Art. 603, NCC)
h. Other causes for Extinguishment of
Usufruct
i. annulment
ii. rescission
iii. mutual withdrawal
iv. legal causes ending usufruct, as when
attainment of the age of majority
extinguishes parental usufruct.
Bad use does not extinguish the usufruct,
unless the ABUSE OR MISUSE should cause
considerable injury to the owner. (Art. 610)
Q: On 1 January 1980, Minerva, the owner of
a building granted Petronila a usufruct over
the property until 01 June 1998 when Manuel,
a son of Petronila, would have reached his
30th birthday. Manuel, however, died on 1
June 1990 when he was only 26 years old.
Minerva notified Petronila that the usufruct
had been extinguished by the death of Manuel
and demanded that the latter vacate the
premises and deliver the same to the former.
Petronila refused to vacate the place on the
ground that the usufruct in her favor would
expire only on 1 June 1998 when Manuel
would have reached his 30th birthday and that
the death of Manuel before his 30th birthday
did not extinguish the usufruct.
Whose contention should be accepted? (Bar
1997)
A: Petronila's contention is correct. Under
Article 606 of the Civil Code, a usufruct
granted for the time that may elapse before a
third person reaches a certain age shall
subsist for the number of years specified even
if the third person should die unless there is
an express stipulation in the contract that
states otherwise. In the case at bar, there is
no express stipulation that the consideration

for the usufruct is the existence of Petronila's
son. Thus, the general rule and not the
exception should apply in this case (Suggested
Answer, UPLC & PALS).
H. EASEMENTS or SERVITUDES
Definition
Encumbrance imposed upon an immovable for
the benefit of another immovable belonging to
a different owner (Art.613, NCC).
May also be established for the benefit of a
community, or of one or more persons to
whom the encumbered estate does not
belong (Art.614, NCC).
An easement is a limitation on the owner‘s
right to use his or her property for the benefit
of another (Reyes v. Sps. Valentin & Ramos, G.R.
No. 194488, February 11, 2015).
Although the Civil Code uses the terms
―easement‖ and ―servitude‖ interchangeably,
they are not, strictly speaking, synonymous.
Properly speaking, ―easement‖ refers to the
right enjoyed by one while ―servitude‖ refers
to the burden imposed upon the other
(Rabuya, Property, 2008, p. 502).
Parties to an Easement: (Art.613, NCC)
a. Dominant Estate - Immovable in favor of
which an easement is established.
b. Servient Estate - That which is subject to
easement.
1. Characteristics:
 Inherence or Intransmissibility
 Easement is a real right which falls
over the property itself. The easement
is inseparable from the estate which it
actively or passively belongs (Art. 617,
NCC).
 It cannot be alienated or mortgaged
separately from the estate to which it
forms part (Solid Manila Corp v. Bio Hong
Purple Notes 2018
Civil Law
Trading Co., G.R. No. 90596, April 8,
1991).
 Indivisibility
 It is a necessary consequence of the
principle of inseparability of the
easement or servitude from the estate
to which it relates (Rabuya, Civil Law
Reviewer Vol. 1, 2017, p. 532)
2. Classification of Easement:
a. As to recipient of Benefit:
i. Real (or Praedial) – When it is in favor of
another immovable
ii. Personal - when it is in favor of a
community, or of one or more persons to
whom the encumbered estate does not
belong.
b. As to Source:
i. Legal – if established by law either for
public use or for the interest of private
persons.
Examples of Legal Easement:
a. Easement relating to waters (Arts. 637-
648, NCC);
b. Easement of right of way (Arts. 649-657,
NCC);
c. Easement of party wall (Arts. 658-666,
NCC);
d. Easement of light and view (Arts. 667-673,
NCC);
e. Easement of drainage of buildings (Arts.
674-676, NCC);
f. Easement of distances (Arts. 677-681,
NCC);
g. Easement of nuisance (Arts. 682-683,
NCC); and
h. Easement of lateral and subjacent
support (Arts. 684-687, NCC). (Cited in
Rabuya, Property, 2008 p. 509)
(**For more details, see DISCUSSION ON LEGAL
AND VOLUNTARY EASEMENT at the end of this
section)
Bar Operations C ommissions 121
 Purple Notes
Civil Law
ii. Voluntary – if established by the will of over an immovable. possession in an
the owners. immovable or
immovable.
c. As to its exercise: Not extinguished by Extinguished by
the death of the stipulation of the parties,
dominant owner. or by law.
i. Continuous easements - those the use
of which is or may be incessant, without Easement v. Usufruct (Bar 1995):
the intervention of any act of man (Art.
615, NCC). EASEMENT USUFRUCT
Limited to a specific Includes all use of the
ii. Discontinuous easements - those which use of the property property, including jus
are used at intervals and depend upon the fruendi
acts of man (Art. 615, NCC). Only on immovable Real or personal property
property
iii. Apparent easements - those which are Not extinguished by extinguished by the
made known and are continually kept in the death of the death of the
view by external signs that reveal the use owner of the dominant usufructuary, unless a
estate. contrary intention
and enjoyment of the same (Art. 615, NCC).
appears
Involves two Contemplates only one
iv. Non-apparent easements - those which neighboring estates property
show no external indication of their Does not include the Includes the right of
existence. (Art. 615, NCC). right of possession possession in the
property
v. Positive Easement - imposes upon the Cannot be alienated May be alienated
owner of the servient estate the obligation independently of the separately from the
of allowing something to be done on his estate property to which it
property (servitutes in patendo) (Art. 616, attaches
NCC).
Q: May an easement be constituted (a.)
vi. Negative easement - prohibits the over a usufruct or vice versa? (b.) over
owner of the servient estate from doing another easement? (Bar 1995)
something which he could lawfully do if the
easement did not exist (servitutes in non A: (a). No, an easement can only be
faciendo) (Art. 616, NCC). constituted over a corporeal immovable
property. It cannot attach to a usufruct which
Easement v. Lease: is not a corporeal right.

EASEMENT LEASE Likewise, there can be no usufruct over an

Always a real right. Real right only when it is
registered, or when its
subject matter is real
property and the
duration exceeds one
year.
A right limited to use A right limited to use and
without ownership or possession without
possession. ownership.
Can refer only to May involve either real or
immovable. Imposed personal property.
only on real property.
Limited to particular or Included all the uses and
specific use of the the fruits of the property.
servient estate.
A non-possessory right Involves a right of
easement. While a usufruct may be created
over a right, such right must have an
existence of its own independent of the
property. A servitude cannot be the object of
a usufruct because it has no existence
independent of the property to which it
attaches.
(b). There can be no easement over another
easement for the same reason as in (a). An
easement, although it is a real right over an
immovable, is not a corporeal right. There is a
Roman maxim which says that: There can be
no servitude over another servitude.
(Suggested Answers, UPLC and PALS)

122 Center for Legal Education and Research


3. Modes Of Acquiring Easement
A. By title
All kinds of easements whether continuous or
discontinuous, apparent or non-apparent
positive or negative, may be acquired by title
(Art. 620 and 622, NCC).
By title as a mode of acquiring servitude,
refers to the ―juridical act: which gives birth to
the servitude, such as the law, donations,
contracts and wills. Hence, the act may either
be inter vivos or mortis causa, may be
onerous or gratuitous (4 Manresa, 5th Ed, 552)..
B. By Prescription (Ten years [10])
Only continuous and apparent easement
may be acquired by prescription (Art. 620,
NCC).
Commencement:
Positive Servitude – counted from the day
their exercise commences (Art. 621, NCC).
Negative Servitude – counted from the
formal prohibition to the servitude owner to
any opposed to the servitude. There must be
a notarized document (Art. 621, NCC).
C. By Deed of Recognition
D. By Final Judgment
NO JUDICIAL EASEMENTS. Resultantly,
when the court says that an easement
exists, it is not creating one. For even an
injunction cannot be used to create one as
there is no such thing as a judicial
easement. The court merely declares the
existence of an easement created by the
parties, It must be emphasized, however,
that we are not constituting an easement
along Mangyan Road, but merely declaring
the existence of one created by the
manifest will of the parties herein in
recognition of autonomy of contracts (La
Vista Association Inc. v. CA, G.R. No. 95252,
September 5, 1997).
Purple Notes 2018
Civil Law
E. By apparent sign established by the
owner of two adjoining estates, unless:
There are contrary stipulations; or the sign is
effaced
Requisites:
(1) that there exist an apparent sign of
servitude between two estates;
(2) that at the time of the establishment of
such sign, the ownership of the two
estates resides in one person;
(3) that the sign of the easement be
established by the owner of both estates
because the article will not apply when
the easement is established by a person
different from the owner;
(4) that the ownership over the two estates is
later on divided, either by alienation or
partition; and
(5) that at the time of division of ownership,
nothing is stated in the document of
alienation or partition contrary to the
easement nor is the sign of the easement
removed before the execution of the
document (Art. 624, NCC).
Effect of Zoning Ordinance
Such prohibition is similar to other conditions
imposed by sellers of subdivision lots upon
purchasers thereof, in and around Manila. It is
in reality an easement, which every owner of
real estate may validly impose under Art. 594
of the Civil Code or under Art. 688 of the Civil
Code, which provides that ―the owner of a
piece of land may establish thereon the
easements which he may deem suitable,
provided he does not contravene the law,
public policy or public order‖.
―The validity of building restrictions limiting
buildings to residences, restrictions as to the
character or location of buildings or structures
to be erected on the land has been sustained.
(14 Am, Jur. 617, citing cases)
4. Rights And Obligations of The Owners
Of The Dominant And Servient Estates
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 Purple Notes
Civil Law
A. Dominant Owner Rights:
a. To exercise all the rights necessary for
the use of the easement (Art. 625, NCC)
b. To make on the servient estate all the
works necessary for the use and
preservation of the servitude (Art. 627,
NCC)
c. To renounce the easement if he desires
to exempt himself from contribution to
necessary expenses (Art. 628, NCC)
d. To ask for mandatory injunction to
prevent impairment of his use of the
easement (Art. 625, NCC)
B. Dominant Owner Obligations:
a. Cannot render the easement or render
it more burdensome (Art. 627, NCC)
b. Notify the servient owner of works
necessary for the use and
preservation of the servitude (Art. 627,
NCC)
c. Choose the most convenient time and
manner in making the necessary
works as to cause the least
inconvenience to the servient owner
(Art. 627, NCC)
d. Contribute to the necessary expenses
if there are several dominant estates
(Art. 628, NCC)
e. Cannot use the easement except for
the benefit of the immovable originally
contemplated.
f. Exercise the easement in any
othermanner than that previously
established (Art. 626, NCC).
C. Servient Owner Rights:
a. To retain ownership and possession of
the servient estate (Art. 630, NCC)
b. To make use of the easement, unless
there is agreement to the contrary
(Art. 630, NCC)
c. To change the place or manner of the
easement, provided it be equally
convenient (Art. 629, NCC).
D. Servient Owner Obligations (Arts.
628-629, NCC):
General Rule: Cannot impair the use of the
easement
124 Center for Legal Education and Research
Exception:
a. the same should become very inconvenient
to the owner of the servient estate, or
b. should prevent him from making any
important works, repairs or improvements
thereon.
Requisites:
a. He offers another place or manner equally
convenient; and
b. No injury is caused thereby to the owner
of the dominant estate or to those who
may have a right to the use of the
easement.
c. Contribute to the necessary expenses in
case he uses the easement, unless there is
an agreement to the contrary (Art. 629,
NCC)
5. Modes of Extinguishment (Art. 631,
NCC)
a. Redemption agreed upon between the
parties
b. Expiration of the term
c. Merger of ownership of the dominant and
servient estate
d. Annulment or Recission of title
constituting the easement
e. Permanent Impossibility to use the
easement
f. Non-user for 10 years
Discontinuous: counted from the day they
ceased to be used
Continuous: Counted from the day an act
adverse to the exercise takes place.
g. Renunciation – renunciation by the
dominant owner must be specific, clear and
express.
h. Termination of the right of the grantor.
i. Abandonment of the servient estate
j. Eminent Domain
k. Fulfillment of the resolutory condition
DISCUSSION ON LEGAL AND
VOLUNTARY EASEMENT

LEGAL EASEMENTS
Those imposed by law having for their object
either public use of the interest of private
persons. They shall be governed by the
special laws and regulations relating thereto,
and in the absence thereof, by the Civil Code.
Examples of Legal Easement:
Easement relating to Waters
The following are the easements relating to
waters:
1. Easement of drainage of waters (Art.
637, NCC; Art. 50, Water Code) (Bar,
1995)
2. An easement exists when, based on the
physical condition of two estates, waters
descend naturally and without the
intervention of man from a higher estate
(the dominant estate) to a lower estate
(the servient estate). (Rabuya, Property,
2008 p. 538)
Character: Continuous
Obligations of the Servient Estate (Art.
637, NCC:
1. To receive the waters which naturally and
without the intervention of man flow from
the higher estates, as well as the stones or
earth which they carry with them;
2. He may not construct works, such as dikes,
walls or hedges, which will block or impede
the flow of waters, unless he provides an
alternative method of drainage.
Obligations of the Dominant Estate:
1. He may not construct works which will
increase the burden or increase the natural
flow.
2. To select the routes and methods of
drainage that will cause the minimum
damage to the lower lands if he shall
resort to artificial means of draining waters
from higher to the lower estate.
3. To pay just compensation to the lower
estate (Rabuya, Property, 2008 p. 538).
Purple Notes 2018
Civil Law
Q: Lauro owns an agricultural land planted
mostly with fruit trees. Hernando owns an
adjacent land devoted to his piggery
business, which is two (2) meters higher
in elevation. Although Hernando has
constructed a waste disposal lagoon for his
piggery, it is inadequate to contain the waste
water containing pig manure, and it often
overflows and inundates Lauro‘s plantation.
This has increased the acidity of the soil in the
plantation, causing the trees to wither and
die. Lauro sues for damages caused to his
plantation. Hernando invokes his right to the
benefit of a natural easement in favor of his
higher estate, which imposes upon the lower
estate of Lauro the obligation to receive the
waters descending from the higher estate. Is
Hernando correct? (Bar, 2002)
A: Hernando is wrong. Article 637 of the New
Civil Code provides that the owner of the
higher estate cannot make works which will
increase the burden on the servient estate.
(Remman Enterprises, Inc. v. CA, G.R. No. 125018,
April 6, 2000).
(2) Easement for public use (Art. 638,
NCC; Art. 51, Water Code);
The banks or rivers and streams and the
shores of the seas and lakes throughout their
entire length and within a zone of three (3)
meters in urban areas, twenty (20) meters in
agricultural areas and forty (40) meters in
forest areas, along their margins, are subject
to the easement of public use in the interest
of recreation, navigation, floatage, fishing and
salvage.
However, no person shall be allowed to stay
in this zone longer than what is necessary for
recreation, navigation, floatage, fishing or
salvage or to build structures of any kind.
(3) Easement for drawing waters or
easement for watering animals (Arts.
640-641, NCC);
This is really a combined easement for
drawing of water and right of way
Requisites:
must be imposed for reasons of public use
Bar Operations C ommissions 125
 Purple Notes
Civil Law
must be in favor of a town or village
indemnity must be paid.
(4) Easement of abutment of dam (Art.
639, NCC);
Requisites:
1. For the purpose of diverting or taking
waters from a river or brook, or for the use of
any other continuous or discontinuous stream
2. The person who is to construct it is not the
owner of the banks or of the land on which
must support it
3. Payment of the proper indemnity to the
owner of the affected estates.
(5) Easement of aqueduct (Arts. 642-646,
NCC)
The right arising from a forced easement by
virtue of which the owner of an estate who
desires to avail himself of water for the use of
said estate may make such waters pass
through the intermediate estate with the
obligation of indemnifying the owner of the
same and also the owner of the estate to
which the water may filter or flow.
Character: apparent and continuous
Requisites:
a. dominant owner must prove that he has
the capacity to dispose of the water
b. that the water is sufficient for the intended
use
c. that the course is most convenient, and
least onerous to the 3rd person
d. payment of indemnity
Easement of right of way (Arts. 649-657,
NCC);
The right granted to the owner of an estate
which is surrounded by other estates
belonging to other persons and without
adequate outlet to a public highway to
demand that he be allowed a passageway
throughout such neighboring estates after
payment of proper indemnity.
126 Center for Legal Education and Research
Requisites:
1. Claimant must be an owner of enclosed
immovable or one with real right (Art. 649
[1], NCC).
2. There must be no adequate outlet to a
public highway (Art. 649 [1], NCC)..
3. Property must be surrounded by estates
of others (Art. 649 [1], NCC)..
4. Isolation must not be due to the
claimant‘s own act(Art. 649 [4], NCC)..
5. Easement must be established at the
point least prejudicial to the servient
estate (Art. 650, NCC)..
6. Payment of proper indemnity (Art. 649 [1],
NCC).
NOT compulsory if the isolation of the
immovable is due to the proprietor‘s own acts
(Art. 649 [4], NCC)
Right of way is granted without indemnity if
land was acquired by and is surrounded by
the other estates of the vendor, exchanger or
co-owner through: Sale, exchange or partition
(Art. 652, NCC).
Extinguishment
a. When the dominant estate is joined to
another estate (such as when the
dominant owner bought and adjacent
estate) which is abutting a public road, the
access being adequate and convenient
b. When a new road is opened, giving access
to the isolated estate.
BOTH cases must substantially meet the
needs of the dominant estate. Otherwise,
the easement may not be extinguished
The extinction is not automatic (not ipso
facto).
If extinguished, must return the amount
received as indemnity to the dominant owner
without any interest.
Q: Don was the owner of an agricultural land
with no access to a public road. He had been
passing through the land of Ernie with the
latter‘s acquiescence for over 20 years.
Subsequently, Don subdivided his
property into 20 residential lots and sold

them to different persons. Ernie blocked the
pathway and refused to let the buyers pass
through his land.
a) Did Don acquire an easement of right of
way? Explain.
b) Could Ernie close the pathway and refuse
to let the buyers pass? Give reasons.
c) What are the rights of the lot buyers, if
any? Explain. (Bar 2005)
A. (a) No, Don did not acquire an easement of
right of way. An easement of right of way
is discontinuous in nature — it is exercised
only if a man passes over somebody‘s
land. Under Article 622 of the Civil Code,
discontinuous easements, whether
apparent or not, may only be acquired by
virtue of a title. The Supreme Court, in
Abellana, Sr. v. Court of Appeals (G.R. N0.
97039, April 24, 1992), ruled that an
easement of right of way being
discontinuous in nature is not acquirable
by prescription.
Further, possession of the easement by
Don is only permissive, tolerated or with
the acquiescence of Ernie. It is settled in
the case of Cuaycong v. Benedicto (G.R.
No. 9989, March 13, 1918) that a permissive
use of a road over the land of another, no
matter how long continued, will not create
an easement of way by prescription.
(b) Yes, Ernie could close the pathway on his
land. Don has not acquired an easement
of right of way either by agreement or
by judicial grant. Neither did the buyers.
He has the right to exclude any person
from the enjoyment and disposal of the
land. This is an attribute of ownership that
Ernie enjoys.
(c) Prior to the grant of an easement, the
buyers of the dominant estate have no
other right than to compel grant of
easement of right of way.
Since the properties of the buyers are
surrounded by other immovables and has no
adequate outlet to a public highway and the
isolation is not due to their acts, buyers
Purple Notes 2018
Civil Law
may demand an easement of a right of way
provided proper indemnity is paid and the
right of way demanded is the shortest and
least prejudicial to Ernie (Villanueva v. Velasco,
G.R. No. 130845, November 27,2000).
Q: Who has the burden of proof to show
entitlement to an easement of right of way?
A: The burden of proving the requisites lies
on the owner of the dominant estate.
Q: The coconut farm of Federico is
surrounded by the lands of Romulo. Federico
seeks a right of way through a portion of the
land of Romulo to bring his coconut products
to the market. He has chosen a point where
he will pass through a housing project of
Romulo. The latter wants him to pass another
way which is one kilometer longer. Who
should prevail? (Bar, 2000)
A: Romulo will prevail. Under Article 650 of
the New Civil Code, the easement of right of
way shall be established at the point least
prejudicial to the servient estate and where
the distance from the dominant estate to a
public highway is the shortest. In case of
conflict, the criterion of least prejudice
prevails over the criterion of shortest distance.
Since the route chosen by Federico will
prejudice the housing project of Romulo,
Romulo has the right to demand that Federico
pass another way even though it will be
longer.
Q: Which determines the width of the
Easement of Right of Way?
A: Article 651 of the New Civil Code provides
that ―(t)he width of the easement of right of
way shall be that which is sufficient for the
needs of the dominant estate, and may
accordingly be changed from time to time.‖
This is taken to mean that under the law, it is
the needs of the dominant property which
ultimately determine the width of the
passage. And these needs may vary from time
to time. (Encarnacion v. CA, G.R. No. 77628,
March 1991)
Bar Operations C ommissions 127
 Purple Notes
Civil Law
Easement of party wall (Arts. 658- 1. to make use of the wall in proportion to
666,NCC) their respective interests, resting
buildings
A common wall which separates two (2) 2. on it or inserting beams up to one-half of
estates built by common agreement at the the wall‘s thickness
dividing line such that it occupies a portion of 3. to increase the height of the wall at his
both estates on equal parts. expense upon payment of proper
indemnity to acquire half interest in any
Party Wall Co-ownership increase of thickness or height, paying a
Shares of parties cannot Shares of the co- proportionate share in the cost of the
be physically owners can be divided work and of the land covered by the
segregated but they and separated increase (Art. 644, NCC).
can be physically physically but before
identified such division, a co-
owner cannot point to Obligations of each part-owners:
any definite portion of
the property as 1. to contribute proportionately to the repair
belonging to him and maintenance unless he renounces his
No limitation as to use None of the co-owners part-ownership (Art. 662, NCC)
of the party wall for may use the 2. if one part owner raises the height of the
exclusive benefit of a community property wall, he must: bear the cost of
party for his exclusive
maintenance of the additions, bear the
benefit
increased expenses of preservation, bear
Owner may free himself Partial renunciation is the cost of construction, give additional
from contributing to the allowed land, if necessary, to thicken the wall (Art.
cost of repairs and 664, NCC)
construction of a party
wall by renouncing all D. Easement of light and view (Arts. 667-
his rights thereto 673, NCC);

No part-owner may, without the consent of

the others, open through the party wall any
Presumptions of existence (juris tantum): window or aperture of any kind (NCC, Art. 667).

a. in adjoining walls of buildings, up to Easement of Light (jus luminum) – right to

common elevation
b. in dividing walls of gardens and yards
(urban)
c. in dividing fences, walls and live hedges of
rural tenements
d. in ditches or drains between tenements (Art.
659, NCC)
Rebuttal of presumption:
a. There is title to the contraty;
b. There is exterior sign to the contrary; and
c. There is proof to the contrary (Arts. 660 &
661).
admit light from the neighboring estate by
virtue of the opening of a window or making
certain openings.
Requisites:
1. Opening must not be greater than 30
centimeters square, made on the ceiling or
on the wall; and
2. There must be an iron grating;
3. There must be a wire screen;
4. Opening must be at the height of the
ceiling joists or immediately under the
ceiling

Rights of part owners: Easement of View (jus prospectus) – The

right to make openings or windows, to enjoy
the view through the estate of another and
the power to prevent all constructions or work

128 Center for Legal Education and Research


which would obstruct such view or make the
same difficult. It necessarily includes
easement of light.
The abutting owner may:
1. Close the openings if the wall becomes a
party wall, unless there is a contrary
stipulation (Art. 669 [1], NCC)
2. Block the light by constructing a building or
wall, unless an easement of light has been
acquired (Art. 669 [3], NCC)
3. Ask for the reduction of the opening to the
proper size
Restriction as to Views:
Direct views: The distance of at least 2
meters between the wall and the boundary
must be observed (Art. 670 [1], NCC).
Oblique views: (walls perpendicular or at an
angle to the boundary line) must not be less
than 60 cm between the boundary line to the
nearest edge of the window (Art. 670 [2], NCC).
E. Easement of drainage of buildings
(Arts. 674-676, NCC);
The owner of a building shall be obliged to
construct its roof or covering in such manner
that the rain water shall fall on his own land
or on a street or public place, and not on the
land of his neighbor, even though the
adjacent land may belong to two or more
persons, one of whom is the owner of the
roof. Even if it should fall on his own land, the
owner shall be obliged to collect the water in
such a way as not to cause damage to the
adjacent land or tenement (Art. 674).
The right to divert or empty the rain waters
from one‘s own roof or shed to the neighbor‘s
estate either drop by drop or through conduits
(Rabuya, Property, 2008 p. 560).
Requisites:
1. There must be no adequate outlet to the
rain water because the yard or court of a
house is surrounded by other houses;
Purple Notes 2018
Civil Law
2. The outlet to the water must be at the
point where egress is easiest, and
establishing a conduit for drainage; and
3. There must be payment of proper
indemnity (NCC, Art. 676).
Ownership of Rainwaters:
Pursuant to the provisions of the Water Code
of the Philippines, rain waters falling on
private lands shall belong to the State.
However, any person who captures or collects
water by means of cisterns, tanks or pools
shall have exclusive control over such water
and he shall also have the right to dispose of
the same (Rabuya, Property, 2008 p. 560).
F. Easement of distances (Arts. 677-681,
NCC)
Article 679 of the New Civil Code prohibits
the planting of trees near a tenement or
piece of land belonging to another person,
unless the distance requirement is observed,
to wit:
(a) The distance authorized by
localordinances or customs of the place,
if any; or
(b) in default of the foregoing, at a distance
of at least two (2) meters from the
dividing line of the estate in case of tall
trees and at a distance of at least 50
centimeters in case of shrubs or small
trees. (Rabuya, Property, 2008 p. 562)
Right to cut branches and Roots:
If the branches of any tree should extend
over a neighboring estate, tenement, garden
or yard, the owner of the latter does not have
the right to take the matter into his own hand
by cutting of the branches extending on his
property. Instead, he may demand that the
protruding branches be cut-off by its owner. If
his demand is not acted upon, he has to go to
court to seek authority for the cutting of the
protruding branches. (Art. 680, NCC)
With respect to the roots of a neighboring
tree which penetrated into the land of
another, the owner of the latter may himself
cut off the roots found within his property.
Bar Operations C ommissions 129
 Purple Notes
Civil Law
The reason for the difference is that with
respect to the roots, the same belong to the
owner of the land where it is found by reason
of incorporation. This right of the adjacent
owner does not prescribe unless he has been,
by a formal act, prohibited by the owner of
the tree from cutting off the roots of the tree,
in which case, the ten-year prescriptive period
for the establishment of a negative easement
will commence to run (Rabuya, Property, 2008 p.
563).
Fruits falling to adjacent land (Art. 681,
NCC):
Fruits which are naturally falling upon
adjacent land belong to the owner of the said
land to discourage the act of allowing
branches to protrude over another‘s land.
However, in the case of fruits naturally falling
on a public property, the owner of the tree
retains ownership.
G. Easement of nuisance (Arts. 682-683,
NCC)
Every building or piece of land is subject to
the easement which prohibits the proprietor
or possessor from committing nuisance
through noise, jarring, offensive odor, smoke,
heat, dust, water, glare and other causes.
H. Easement of lateral and subjacent
support (Arts. 684-687, NCC)
The law prohibits any excavation upon one‘s
land if the same will deprive any adjacent land
or building of sufficient lateral or subjacent
support.
The law prohibits any stipulation or
testamentary provision allowing such kind of
excavation. Any such stipulation or
testamentary provision is expressly declared
to be void.
Lateral - when the supported and the
supporting lands are divided by a vertical
plane.
Subjacent - when the supported land is
above and the supporting land is beneath it
130 Center for Legal Education and Research
(Rabuya, Civil Law Reviewer Vol. 1, 2017, p. 578
citing Restatemet of the Law of Torts, Vol. IV, p.
184).
VOLUNTARY EASEMENT
Every owner of a tenement or a piece of land
may establish thereon the easements which
he may deem suitable, and in the manner and
form which he may deem best (Art. 688, NCC).
Except: If it contravenes laws, public policy
or public order (Art. 688, NCC).
The consent of all the co-owners are required
on an undivided tenement, or piece of land
(Art. 691, NCC).
Right of Way Act (R.A. 10752)
The government can acquire private real
property for national government
infrastructure projects and its public service
facilities, engineering works and service
contracts, including those undertaken by
government-owned and -controlled
corporations (Sec. 4, RA 10752).
This can be effected by:
1. donation;
2. negotiated sale;
3. expropriation; and,
4.other modes of acquisition authorized by
existing laws (Sec. 4, RA 10752).
Negotiated Sale
1. The implementing agency shall offer to the
property owner concerned the current
market value of the land, the replacement
cost of the structures and improvements
and the current market value of the crops
and trees therein.
2. The property owner shall be given 30 days
to decide whether or not to accept the
offer;
3. (a) If the landowner accepts the offer:
-50% of the agreed price of the land 70% of
the price of the structure, improvements,
corps and trees shall be paid upon execution
of the Deed of Sale;
 Purple Notes 2018
Civil Law
I. NUISANCE
(b) If the owner refuses the offer within the
30 day period: Definition (Art. 694, NCC) (Bar 2005, 2006)

The agency shall institute expropriation
proceedings which may be instituted by any
government or private legal counsel which
may be deputized for that purpose (Sec. 5, RA
10752).
Any act, omission, establishment, business or
condition of property or anything else which:
 Injures or endangers the health and
safety of others;

Expropriation Proceedings  Annoys or offends the senses;

Upon filing of the complaint and the owner is  Shocks, defies or disregards the decency
notified of the action, the agency shall or morality;
immediately deposit with the court in favor of
the owner the amounts equivalent to the sum  Obstructs or interferes with the free
of: passage to any public highway or street
or any body of water, or
1. 100% of the value of the land based on the
current relevant zonal valuation of the BIR  Hinders or impairs the use of the
issued not more than 3 years prior to the property
filing of the complaint;
2. Replacement cost at current market value Nuisance v. Negligence
of the improvements and structures as
determined by the agency, a government Nuisance Negligence
financial institution with experience with Liability for the resulting Liability is based on a
property appraisal and an independent injury to others want of proper care
property appraisal accredited by the BSP; regardless of the degree
and, of care or skill exercised
to avoid such injury.
3. Current market value of the crops and trees
Principles ordinarily apply Principles ordinarily
as determined by a government financial
where the cause of apply where the cause
institution or an independent property action is for harm caused of action is for harm
appraiser. by continuing or resulting from one act
4. Once payment is made, the court is recurrent acts which which created an
required to immediately issue an order to cause discomfort or unreasonable risk of
the agency to take possession of the land annoyance to plaintiff in injury.
and start the implementation of the the use of his property.
project.
5. If the writ is not issued within 7 days from Classification
the deposit, the counsel may file a motion
for the issuance of the writ. As to nature:
6. The court is obliged to determine the just
compensation to be paid to the owner a. Per Se – wrong is established by proof of
within 60 days form the date of the filing the mere act.
of the expropriation case.
7. Once the court’s decision becomes b. Per Accidens – considered nuisance by
final: the difference between the reason of circumstances, location and
deposited payment and the just surroundings
compensation adjudged by the court has
to be paid by the agency (Sec. 6, RA As to Injurious Effect:
10752).
a. Public – affects the community or a
considerable number of persons;

Bar Operations C ommissions 131

 Purple Notes
Civil Law
b. Private – affects only a person or a small
number of persons.
c. Mixed - one which is both public and
private in its effects, public because it injures
many persons or all the community, and
private in that it also produces special injuries
to private rights. (Rabuya, Property, 2008, p. 571
)
1. Nuisance per se
When it affects the immediate safety of
persons and property, which may be
summarily abated under the law of necessity
(Cruz v. Pandacan Hiker‘s Club, Inc. G.R. N.
118213, January 11, 2016).
It is considered as nuisance under any and all
circumstances, because it constitutes a direct
menace to public health or safety, and, for
that reason, may be abated summarily under
the undefined law of necessity ((Aquino v.
Municipality of Aklan, G.R. No. 211356, September
29, 2014).
Traditional Test for determining
existence of Nuisance per se
Whether the nuisance has become dangerous
at all times and under all circumstances to life,
health or property (Suddeth v. Knight, 280 S.C.
545).
Examples:
1. Houses of prostitution and gambling
houses are nuisance per se regardless of
their location or surroundings (Iloilo Ice and
Cold Storage Co. v. Municipal Council of Iloilo, G.R.
No. L-7012, March 26, 1913)
2. Mad dog on the loose, which may be
killed on sight because of the immediate
danger it poses to the safety and lives of
the people
3. Pornographic materials
4. Contaminated meat and narcotic drugs
which are inherently pernicious
5. A filthy restaurant which may be
summarily padlocked in the interest of
public health (Cruz v. Pandacan Hiker‘s Club,
Inc. G.R. N. 118213, January 11, 2016).
132 Center for Legal Education and Research
Remedies (699-705, NCC)
Private Nuisance
• Civil Action for damages
• Action for Injunction / Abatement
• Extrajudicial Abatement, if nuisance per se
Public Nuisance
• A prosecution under the Penal Code or any
local ordinance / Criminal Prosecution
• Civil Action for damages
• Action for Injunction or Abatement if
Nuisance per Accidens
• Extrajudicial Abatement, if nuisance per se
2. Nuisance per accidens
It depends on 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 thing does in law
constitute a nuisance (Cruz v. Pandacan Hiker‘s
Club, Inc. G.R. N. 118213, January 11, 2016).
It may only be proven in a hearing conducted
for that purpose and may not be summarily
abated without judicial proceeding (supra)
3. Liabilities
A private person or a public official
extrajudicially abating a nuisance shall be
liable for damages:
(1) If he causes unnecessary injury; or
(2) If an alleged nuisance is later declared
bythe courts to be not a real nuisance.
(Art. 707, NCC)
Every successive owner or possessor of
property who fails or refuses to abate a
nuisance in that property started by a former
owner or possessor is liable therefor in the
same manner as the one who created it (Art.
696, NCC).
4. No Prescription
The abatement of a nuisance does not
preclude the right of any person injured to

recover damages for its past existence. (Art.
697, NCC)
Lapse of time cannot legalize any nuisance,
whether public or private. (Art. 698, NCC)
5. Criminal Prosecution
A public nuisance may be subject of a criminal
prosecution under the RPC or local ordinance.
For example, the conduct of an illegal
gambling is a form of public nuisance which
shall subject any person who shall knowingly
permit the commission of the same in any
inhabited or uninhabited place or any building,
vessel, or other means of transportation
controlled by him (Art. 195[2], RPC; Rabuya, Civil
Law Reviewer Vol. 1, 2017, p. 595)
6. Judgement with Abatement
Whether a nuisance is a private or public one,
it may be abated without the necessity of
judicial proceedings or only upon due hearing
thereon.
For Nuisance Per Accidens: Judicial
intervention is necessary to abate the
nuisance.
A nuisance per accidens cannot be abated
without due hearing thereon in a tribunal
authorized to decide whether such a thing
does in law constitute a nuisance. And the
local government unit concerned does not
have the power to summarily abate a
nuisance per accidens in the guise of
exercising its police power through an
ordinance. If it does, such ordinance is null
and void because it violates the guarantee of
due process under the Constitution (Iloilo Ice
and Cold Storage Co. v. Municipal Council of Iloilo,
G.R. No. L-7012, March 26, 1913).
7. Extrajudicial Abatement
Abatement of nuisance without judicial
proceedings is possible only if it is a nuisance
per se (Sailntos v. Santos, G.R. No. L-45519, April
26, 1939).
Purple Notes 2018
Civil Law
How is Abatement done:
1. By removing; or
2. By destroying the thing that constitutes the
nuisance (Art. 704, NCC)
Requisites of summary abatement of
public or private nuisance by private
individual (Art. 704-706, NCC):
3. It must be specially injurious to him;
4. No Breach of the peace or unnecessary
injury must be committed;
5. Demand must be first made upon the
owner or possessor of the property to
abate the nuisance.
6. Prior demand has been rejected;
7. Approval by district health officer and
assistance of local police; and
8. Value of destruction does not exceed
P3,000.00.
Q: A drug lord and his family reside in a small
bungalow where they sell shabu and other
prohibited drugs. When the police found the
illegal trade, they immediately demolished the
house because according to them, it was a
nuisance per se that should be abated. Can
this demolition be sustained? Explain. (Bar
2006)
A: No, the demolition cannot be sustained.
The house cannot be considered as nuisance
per se. To be considered per se, the act,
occupation, or structure must be a nuisance
at all times and under any circumstances,
regardless of location or surrounding (Jurado,
Civil Law Reviewer, 2009, p. 438 – 439).
Since the demolished house was not a
nuisance during the times that it was not
being used for selling drugs, it cannot be
considered as nuisance per se. Moreover, in
the abatement of a nuisance, whether
judicially or extra-judicially, the abatement
should not inflict unnecessary damage or
injury. In this case, what may be considered
as nuisance per se is not the structure of the
house but the use of the house for the selling
of shabu. However, the demolition of the
house is not necessary to abate the sale of
shabu in that community. To demolish the
house is an unnecessary damage and injury.
Bar Operations C ommissions 133
 Purple Notes
Civil Law
8. Special Injury to Individual
A private nuisance affects only an
individual or a limited number of
individuals. As distinguished from a public
nuisance, a private nuisance includes any
wrongful act which destroys or
deteriorates the property of an individual
or of a few persons or interferes with
their lawful use or enjoyment thereof, or
any act which unlawfully hinders them in
the enjoyment of a common or public
right and causes them a special injury
different from that sustained by the
general public. Therefore, although the
ground of distinction between public and
private nuisances is still the injury to the
community at large or, on the other hand,
to a single individual, it is evident that the
same thing or act may constitute a public
nuisance and at the same time a private
nuisance (Rabuya, Property, 2008, p. 571).
9. Right of a private Individual to Abate
a Public Nuisance
A private person may abate a public nuisance
which is specifically injurious to him, by
removing or if necessary, by destroying the
thing which constitutes the same, without
committing a breach of the peace, or doing
unnecessary injury (Art. 704, NCC).
This is applicable only in nuisance per se and
prior to the abatement:
1. That the demand be first made upon the
owner or possessor of the property to
abate the nuisance;
2. Such demand has been rejected;
3. That the abatement be approved by the
district health officer and assistance of
local police;
4. Value of the destruction does not exceed
P3,000.00 (Art. 704, NCC).,000.00 (Art. 704,
NCC).
10. Right to Damages
134 Center for Legal Education and Research
General Rule:
For Public Nuisance, no action for damages
may be maintained by a private individual (Art.
703, NCC)
Exception: When it is specifically injurious to
himself (Art. 703, NCC)
Private Nuisance: A claim for damages may
be maintained by any person injured by a
private nuisance (Art. 703, NCC).
In the action for damages, not only the
person who caused the nuisance but every
successive owner or possessor of the property
shall be liable for damages in the same
manner as the one who created the nuisance
(Art. 696,NCC)
11. Defenses to Action
12. Who may sue on a private nuisance
Who may file or conduct an abatement:
a. City and/or the Municipal Health Officer
(Art. 700, NCC)
b. City and/or Municipal Engineer, in cases of
illegal construction
c. Private Person
Doctrine of Attractive Nuisance
 A person who maintains on his premises
dangerous instrumentalities or appliances
of a character which is attractive to
children in play and who fails to exercise
ordinary care to prevent children from
playing therewith or resorting thereto, is
liable to a child of tender years who is
injured thereby, even if the child is
technically a trespasser (Jarco Marketing v.
CA, G.R. No. 129792, December 21, 1999).
 Generally, attractive Nuisance Doctrine is
not applicable to bodies of water, artificial
as well as natural, in the absence of some
unusual condition or artificial feature
other than the mere water and its
location (Hidalgo Enterprises Inc. v.
Balandon, G.R. No. L-3422, June 13, 1952).
 Purple Notes 2018
Civil Law
Q: State with reason whether each of the J. MODES OF ACQUIRING OWNERSHIP
following is a nuisance, and if so, give its (Art. 712, NCC)
classification, whether public or private:
1. Occupation
a. A Squatter‘s Hut 2. Law
b. A Swimming Pool 3. Donation
c. A House of Prostitution 4. Tradition
d. A Noisy or dangerous factory in a private 5. Intellectual Creation
land 6. Prescription
e. Uncollected Garbage (Bar 2005) 7. Succession

A: a. If constructed on public streets or Mode v. Title

riverbeds, it is a public nuisance because it
obstructs the free use by the public of said Mode Title
places. (City of Manila v. Garcia, G.R. No. L-26053, Directly and immediately Serves merely to give
February 21, 1967) If constructed on private produces a real right the occasion for its
land, it is a private nuisance because it acquisition or existence
hinders or impairs the use of the property by Cause Means
the owner. Proximate cause Remote cause
Essence of the right Means whereby that
which is to be created or ―essence‖ is
b. This is not a nuisance in the absence
transmitted transmitted
of any unusual condition or artificial feature
other than the mere water. In Hidalgo
1. Occupation
Enterprises v. Balandan (G.R. No. L-3422, June
13, 1952), the Supreme Court ruled that a
a. Definition
swimming pool is but a duplication of nature
— thus, could not be considered as a
Occupation is a mode of acquiring ownership
nuisance.
by the seizure or apprehension of things
corporeal which have no owner with the
c. Irrespective of its location and how
intention acquiring them and according to the
its business is conducted, it is a nuisance
rules laid down by law (3 Sanchez Roman, 209)
since it defies, shocks and disregards decency
and morality. It is a public nuisance because
b. Requisites:
of its injury to the public.
i. Thing must be res nullius – a thing which
d. If the noise injuriously affects the health
never had an owner or has no owner at
and comfort of ordinary people in the vicinity
the time of occupation;
to an unreasonable extent, it is a nuisance. It
ii. Must be appropriable by nature or one
is a public nuisance because there is a
that can be seized or apprehended;
tendency to annoy the public. (Velasco v.
iii. Must be brought into the actual
Manila Electric Co., G.R. No. L-18390, August 6,
1971) possession or control of the one
professing to acquire it;
e. It will become a nuisance if it iv. Person must acquire it with the intention
substantially impairs the comfort and of acquiring ownership. (Rabuya, Civil Law
enjoyment of the adjacent occupants. The Reviewer, 2017, p. 627)
annoyance and the smell must be substantial
as to interfere sensibly with the use and Occupation v. Possession
enjoyment by persons of ordinary sensibilities.
Occupation Possession
It is a public nuisance because of its injury to
the public. (Suggested Answer, UPLC & PALS) As to Mode of Merely raises
acquisition of acquiring the
ownership ownership presumption

Bar Operations C ommissions 135

 Purple Notes
Civil Law
of ownership 2. Donation
when
exercised in Definition
the concept of
owner
An act of liberality whereby a person disposes
As to property Involves only Any kind of
involved corporeal property
gratuitously of a thing or right in favor of
personal another, who accepts it (Art. 725, NCC).
property
As to Requires the The property Limitations on Donation of Property
ownership of object be may be owned
the thing by without an by somebody a. Future property cannot be donated;
another owner b. Present property that can be donated;
As to intent to There must be May be had in 1) If the donor has forced heirs: he
acquire intent to the concept of cannot give or receive by donation
acquire a mere holder
more than what he can give or
ownership
receive by will.
As to May not take May exist
possession place without without 2) If the donor has no forced heirs:
some form of occupation donation may include all present
possession property provided he reserves in full
As to period Short duration Generally ownership or in usufruct
longer 1. The amount necessary to support
As to leading Cannot lead to May lead to him and those relatives entitled to
to another another mode another mode support him.
mode of of acquisition - prescription 2. Property sufficient to pay the
acquisition
donor‘s debt contracted prior to
the donation
The ownership of a piece of land cannot be c. Donation should not prejudice creditors;
acquired by occupation (Art. 714, NCC). d. Donee must reserve sufficient means for
his support and for his relatives which are
The right to hunt and to fish is regulated by entitled to be supported by him.
special laws (Art. 715, NCC).
Essential Elements of Donation
The owner of a swarm of bees shall have a
right to pursue them to another‘s land,
a. The essential reduction of the patrimony
indemnifying the possessor of the latter for
of the donor;
the damage. If the owner has not pursued the
b. The increase in the patrimony of the
swarm, or ceases to do so within two
done; and
consecutive days, the possessor of the land
c. The intent to do an act of liberality or
may occupy or retain the same. The owner of
animus donandi (Heirs of Florencio v. Heirs
domesticated animals may also claim them of De Leon, G.R. No. 149570, March 12,
within twenty days to be counted from their 2004).
occupation by another person. This period
having expired, they shall pertain to him who Kinds of Donation:
has caught and kept them (Art. 716, NCC).
a. Donation Inter Vivos - Those which
Pigeons and fish which from their respective take effect independently of the donor‘s
breeding places pass to another pertaining to death (Rabuya, Property 2008, p. 634).
a different owner shall belong to the latter,
provided they have not been enticed by some � When the donor intends that the
article of fraud (Art. 717, NCC). donation shall take effect during the
lifetime of the donor, though the
property shall not be delivered until
after the donor‘s death, this shall be a

136 Center for Legal Education and Research


donation inter vivos. The fruits of the
property from the time of the
acceptance of the donation shall
pertain to the donee, unless the
donor provides otherwise.
Requisites:
1. Must follow the formalities of donations;
2. Takes effect during the lifetime of the
donor;
3. Cannot be revoked except for grounds
provided by the law;
4. In case of impairment of the legitime,
donations inter vivos are preferred to
donations mortis causa.
5. The right of disposition is completely
transferred to the donee;
6. Acceptance by donee must be during
lifetime of donor.
b. Donation By Reason Of Marriage -
(Donation Propter Nuptias) Those made in
consideration of the marriage in favor of
one or both of the prospective spouses
and executed before the marriage (Art. 86,
FC).
c. Donation Mortis Causa – those which
take effect upon the death of the donor
(Rabuya, Property 2008, p. 634).
d. Onerous Donation – imposes the donee
a reciprocal obligation or a donation made
for a valuable consideration, the cost of
which is equal to or more than the thing
donated (Republic v. Silim, G.R. No. 140487,
April 2, 2001).
e. Simple/Modal/Conditional
1) Simple – the underlying cause is plain
gratuity or liberality (Lagazo v. CA, G.R. No.
112796, March 5, 1998)
2) Remuneratory or Compensatory –
made for the donee‘s past services, which
services do not amount to a demandable
debt (Art. 726, NCC).
3) Modal – is one which imposes on one a
prestation imposed on the donee may
either be a burden or charge inferior in
value to the property donated or service
to be performed in the future (Art. 726,
NCC).
Purple Notes 2018
Civil Law
1. Formalities Required
How made and accepted
A. Movable/personal property
With simultaneous delivery
a) If value is more than P5,000.00,
donation and acceptance must be in
writing (Art. 748 [3], NCC).
b) If value is P5,000.00 or less:
1) Can be made orally – but requires
simultaneous delivery of the thing.
Acceptance may be oral or written.
2) Can be made in writing – acceptance may
be oral or written (Art. 748, NCC).
Without simultaneous delivery
● The donation and acceptance must be in
public or private instrument(Art. 748, NCC).
B. Immovable/real property
1. In public instrument
2. Acceptance in same instrument in another
public instrument, notified to donor in
authentic form, and annotated in both
deeds. Otherwise, donation is void.
3. Acceptance should be made during the
lifetime of the donor; otherwise, donation
shall not take effect (Art. 748, NCC).
Perfection
▪ The donation is perfected from the
moment the donor knows of the
acceptance by the done (Art. 734, NCC).
▪ Acceptance must be made during the
lifetime of the donor and of the done (Art.
746, NCC).
▪ In case of donation mortis causa,
acceptance is made only after the donor‘s
death because they partake of a will and
thus governed by the rules on succession
(Art. 728, NCC).
Bar Operations C ommissions 137
 Purple Notes
Civil Law
PERSONS WHO MAY GIVE OR RECEIVE
DONATION
2. Qualifications of Donor and Donee
Qualifications of a DONOR
Must have the capacity to contract and to
dispose of his property (Art. 735, NCC).
Rules:
1. Every donation between spouses during
the marriage shall be void except
moderate gifts on the occasion of family
rejoicing. The prohibition also applies to
person living together as husband and
wife without a valid marriage (Art. 87, FC).
2. Every corporation has the power and
capacity to make reasonable donations,
including those for public welfare or for
hospital, charitable, cultural, etc.
However, it cannot give donations in aid
of any political party or candidate or for
purposes of partisan political activity.
3. Guardian and trustee cannot alienate
property entrusted to them. (Art. 736, NCC).
However, this is not absolute as this only
applies to simple donation and not to
donations which are onerous and
beneficial to the beneficiary.
4. Trustees, who have repudiated the trust
and have acquired the properties by
prescription, are allowed to donate said
properties.
5. Donor‘s capacity is determined as of the
time of the perfection of the donation (Art.
737, NCC).
Qualifications of a DONEE
All persons who are not disqualified by law
may accept donations (Art. 738, NCC).
Rules:
1. Donations made to incapacitated persons
such as minors and those incapacitated to
contract, the acceptance can be made by
the parents or legal representatives (Art.
741, NCC)
2. With regard to conceived and unborn
children, the acceptance can be made by
138 Center for Legal Education and Research
them if they were already born (Art. 742,
NCC)
3. Special disqualifications (Art. 739 and 740,
NCC):
a. Those made between persons who
were guilty of adultery or concubinage
at the time of the donation;
b. Those made between persons found
guilty of the same criminal offense, in
consideration thereof;
c. Those made to a public officer or his
wife, descendant and ascendants, by
reason of his office; and
d. Donations by reason of unworthiness
of the donee under Art.740, in
relation to Arts. 1032 and 1027,
except for paragraph 4 of Art. 1027.
4. The donee must accept the donation
personally, or through an authorized
person with a special power for the
purpose, or with a general and sufficient
power, otherwise the donations are void.
(Art. 745, NCC)
C. EFFECTS AND LIMITATIONS OF
DONATION
3. Effects of Donations/Limitations
a) In general
1. Donee may demand the delivery of the
thing donated
2. Donee is subrogated to the rights of the
donor in the property (Art. 754, NCC).
3. In donations propter nuptias, the donor
must release the property from
encumbrances, except servitudes (Art. 85,
FC)
4. Donor‘s warranty exists if:
a. Expressed
b. Donation is propter nuptias
c. Donation is onerous
d. Donor is in bad faith (Art. 754, NCC)
5. When the donation is made to several
donees jointly, they are entitled to equal
portions, without accretion, unless the
contrary is stipulated (Art. 753, NCC).
b) Double Donations
Donations of the same thing to two or more
persons shall be governed by the provisions

concerning the sale of the same thing to two
or more different persons (Art. 744, NCC).
Rule: Priority in time, priority in right (Prior
est in tempore, potio res tiure)
1. If MOVABLE – one who first took
possession in good faith
2. If IMMOVABLE – one who recorded in
registry or property in good faith
▪ No inscription, one who first took
possession in good faith
▪ In absence thereof, one who can
present oldest title (Art. 1544, NCC)
4. Excessive/Inofficious
a. The donor at the time of donation either
had no children or thought he had no
more (Art. 760 and 761, NCC).
b. The donor had at least one child already
at the time he made the donation (Article
771-772, NCC).
▪ The donation shall be revoked or reduced
insofar as it exceeds the portion that may
be freely disposed of by will, taking into
account the whole estate of the donor at
the time of the birth, appearance or
adoption of a child (Art. 761)
▪ The action for revocation or reduction
shall prescribe after four years from the
birth of the first child, or from his
legitimation, recognition, or adoption, or
form the time information was received
regarding the existence of the child
believed to be dead. (Art. 763, NCC)
5. Scope of amount
The donation may comprehend all the present
property of the donor, or part thereof,
provided he reserves, in full ownership or in
usufruct, sufficient means for the support of
himself, and of all relatives who, at the time
of the acceptance of the donation, are by law
entitled to be supported by the donor.
Without such reservation, the donation shall
be reduced in petition of any person affected
(Art. 750, NCC).
Purple Notes 2018
Civil Law
Donations cannot comprehend future property
(Art. 751, NCC).
By future property is understood anything
which the donor cannot dispose of at the time
of the donation. (Art. 751, NCC)
The provisions of Article 750 notwithstanding,
no person may give or receive, by way of
donation, more than he may give or receive
by will. (Art. 752, NCC)
6. In fraud of creditors
There being no stipulation regarding the
payment of debts, the donee shall be
responsible therefore only when the donation
has been made in fraud of creditors. The
donation is always presumed to be in fraud of
creditors, when at the time thereof the donor
did not reserve sufficient property to pay his
debts prior to the donation (Art. 759, NCC).
7. Void donations
Donations Prohibited by Law:
a. By persons guilty of adultery or
concubinage at the time of donation (Art.
739, [1], NCC).
b. Between persons found guilty of same
criminal offense, in consideration thereof
(Art. 739, [2], NCC);
c. To a public officer or his or her spouse;
descendants or ascendants, by reason of
his or her office (Art. 739, [3], NCC);
d. To a priest who heard confession of donor
during latter‘s illness or minister of gospel
who extended spiritual aid to him during
the same period (Art. 1027, [1], NCC).
e. To relatives of such priest or minister
within the 4th degree, the church, order,
etc., to which such priest or minister may
belong (Art. 1027, [2], NCC);
f. By ward to the guardian before approval
of final accounts (Art. 1027, [3], NCC);
g. To attesting witness of the execution of a
donation, if there is any, or to the spouse,
parents, or children, or anyone claiming
under them (Art. 1027, [4], NCC);
h. To physician, surgeon, nurse, health
officer or druggist who took care of the
Bar Operations C ommissions 139
 Purple Notes
Civil Law
donor during last illness (Art. 1027, [5],
NCC);
i. By individuals, associations and
corporations not permitted by law to
make donations (Art. 1027, [6], NCC); and
j. By spouses to each other during marriage,
or to persons of whom the other spouse is
a presumptive heir (Art. 87, FC).
D. REVOCATION AND REDUCTION
8. Revocation or Reduction
General Rule: Once the donation is
accepted, it is irrevocable (Gestopa v. CA, G.R.
No. 111904, October 5, 2000).
Exceptions:
a. Birth, Adoption or Reappearance (Art.
760, NCC)
 Every person having no children or
descendants, legitimate or
illegitimate, may be revoked or
reduced in the following scenarios:
o if the donor, after the donation,
should have legitimate or
legitimated or illegitimate
children, even though they be
posthumous;
o if the child of the donor, who the
latter believed to be dead when
he made the donation, should
turn out to be living; o
o if the donor subsequently adopt a
minor child (Art. 760, NCC).
b. Inofficious donations (Art. 771, NCC)
▪ Action must be brought within five (5)
years after the death of the donor.
▪ The action is transmitted to the donor‘s
heirs as the donation shall be reduced as
regards the excess at the time of the
donor‘s death.
▪ The donation takes effect during the
lifetime of the donor subject to reduction
only upon his death with regard to the
excess.
▪ The donee appropriates the fruits as
owner of the property (Art 771, NCC).
140 Center for Legal Education and Research
c. Made in fraud of creditors (Art. 1381
[3], NCC)
▪ The action for rescission must be brought
within four years from the perfection of
the donation, or at the latest from the
time the creditor had knowledge of the
donation.
▪ The right is transmissible to the heirs of
the creditor or the latter‘s successor-in-
interest.
▪ The property affected shall be returned by
the donee for the benefit of the creditor
subject to the rights of innocent third
persons.
▪ The fruits of the property affected shall
also be returned. In case the donee acted
in bad faith and it should be impossible
for him to return the property affected
due to any cause, he shall indemnify the
donor‘s creditor for damages suffered by
the latter.
d. Effects - Upon revocation or reduction of
the donation based on Article 760, the
following effects are produced:
▪ The property affected shall be returned,
or if it cannot be returned, as its value;
▪ If the property is mortgaged, the donor
may redeem the mortgage, by paying the
amount guaranteed, with a right to
recover his payment from the donee.
When the property cannot be returned, it
shall be estimated at what it was worth at
the time of the donation.
▪ The donee shall return the fruits of
property affected only from the filing of
the complaint.
Prescription
The prescriptive period of an action for
revocation or reduction of the donation under
Article 760 is four (4) years reckoned from the
birth of the first child, or from his legitimation,
recognition or adoption, or from the judicial

declaration of filiation, or from the time
information was received regarding the
existence of the child believed to be dead. If,
however, the child dies prior to the filing of
the action, it is believed that the action can no
longer be brought (Art. 763 [1], NCC).
This action is not subject to waiver or
renunciation and is transmitted, upon the
death of the donor, to his legitimate or
illegitimate children and descendants (Art. 763
[2], NCC).
d. Acts of Ingratitude (Art. 765, NCC)
1. If the donee should commit some offense
against the person, honor or property of
the donor, or of his wife or children under
his parental authority.
2. If the donee imputes to the donor any
criminal offense, or any act involving
moral turpitude even though he should
prove it, unless the crime or act has been
committed against the donee himself, his
wife, or children under his authority.
3. Unduly refuses to support the donor when
the donee is legally or morally bound to
do so.
� The maximum period of inalienability,
when imposed by will is 20 years (Art.
870, NCC), unless a fideicommisary
substitution has been established, in
which case, the inalienability will last
during the lifetime of the first heir.
(Art. 863)
By analogy, the same maximum period of 20
years should apply to inalienability imposed by
the donor on the donee, because this is also a
gratuitous disposition; but the period may be
longer when the donor provides for reversion
under Article 757.
IV:
PRESCRIPTION
Definition
One acquires ownership and other real rights
through the lapse of time in the manner and
under the conditions laid down by law. In the
Purple Notes 2018
Civil Law
same way, rights and actions are lost by
prescription (Art. 1106, NCC).
A. TYPES OF PRESCRIPTION
1. Acquisitive Prescription
A mode of acquiring ownership and other real
rights or losing rights or actions to enforce
such rights through the lapse of time, in the
manner laid down by law (Rabuya, Civil Law
Reviewer Vol. 1, 2017, p. 614).
a. Ordinary Acquisitive Prescription
Requires possession of things in good faith
and with just title for the time fixed by law
(Art. 1117, NCC).
Requisites:
i. Possession in good faith
In its positive aspect, the good faith of the
possessor consists in the reasonable belief
that the person from whom he received the
thing was the owner thereof, and could
transmit his ownership. In its negative aspect,
it consists in the ignorance of the possessor of
any flaw which would invalidate his title or
mode of acquisition (Art. 1127 and 1128, 526,
NCC).
ii. Just title
There is just title when the adverse claimant
came into possession of the property through
one of the modes recognized by law for the
acquisition of ownership or other real rights,
but the grantor was not the owner or could
not transmit any right and that the title is true
and valid (Art. 1129 and 1130, NCC).
iii. Within the time fixed by law (4 years for
movables and 10 years for immovables)
iv. In the concept of an owner
v. It must be public, peaceful and
uninterrupted
vi. Capacity to acquire by prescription
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vii. Object must be susceptible of prescription. for thirty years, without need of title or
of good faith (Art. 1137, NCC).
b. Extraordinary Acquisitive Prescription
Rules for the computation of time
necessary for prescription:
Acquisition of ownership and other real rights
without need of title or of good faith or any
a. The present possessor may complete the
other condition (Art. 1137, NCC).
period necessary for prescription by
tacking his possession to that of his
Requisites:
grantor or predecessor in interest.
b. It is presumed that the present possessor
a. Within the time fixed by law (8 years for
who was also the possessor at a previous
movables, 30 years for immovable)
time, has continued to be in possession
b. Capacity to acquire by prescription
during the intervening time, unless there
c. Object must be susceptible of prescription
is proof to the contrary.
d. In the concept of an owner
c. The first day shall be excluded and the
e. It must be public, peaceful and
last day included. (Art. 1138, NCC)
uninterrupted.
Acquisitive v. Extinctive Prescription
Acquisitive Prescription is based on the
assertion of a usurper of an adverse right for Acquisitive Extinctive
such a long period of time, uncontested by Prescription Prescription
the true owner of the right, as to give rise to Requires positive action Requires inaction of
the presumption that the latter has given up of the possessor who is the owner out of
such right in favour of the former (Tolentino, not the owner possession or neglect
Civil Code of the Philippines, Vol. IV, p. 2). of one with a right to
bring his action
Period of Prescription: Applicable to ownership Applicable to all kinds
and other real rights of rights, whether real
Movables (Art. 1132, NCC): or personal
Vests the property and Vests the property and
raise a new title in the raise a new title in the
▪ The ownership of movables prescribes
occupant occupant
through uninterrupted possession of four
Results in the acquisition Merely results in the
years in good faith. (Ordinary) of ownership or other loss of a real or
▪ The ownership of personal property also real rights in a person as personal right, or bars
prescribes through uninterrupted well as the loss of said the cause action to
possession for eight years, without need ownership or real rights enforce said right
of any other condition. (Extraordinary) in another
▪ As to the right to recover personal Can be proven under the Should be affirmatively
property lost or illegally deprived of or general issue without its pleaded and proved to
those acquired in public sale, fair, market being affirmatively bar the action or claim
pleaded of the adverse party
or from merchant stores, Articles 559 and
1505 of the Civil Code shall apply.
2. Extinctive Prescription
Immovables:
It is the loss or extinguishment of property
▪ Ownership and other real rights over rights or actions through the possession by
immovable property are acquired by another of a thing for the period provided by
ordinary prescription through possession law or through failure to bring the necessary
of ten years (Art. 1134, NCC). action to enforce one‘s right within the period
▪ Ownership and other real rights over fixed by law (Art. 1106 and 1339, NCC).
immovables also prescribe through
uninterrupted adverse possession thereof

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a. Characteristics: -To quiet title
-To demand a right of
1. One does not look to the act of the way
possessor but the neglect of the owner;
2. Requires inaction of the owner or neglect -To bring an action for
abatement of public
of one with a right to bring his action;
nuisance
3. Applies to all kinds of rights, whether real
or personal; -To enforce a trust
4. Produces the extinction of rights or bars a -Probate of a will
right of action;
5. Results in the loss of a real or personal -To recover possession of
a registered land under
right, or bars the cause of action to
the land registration act
enforce said right; by the registered owner
6. Should be affirmatively pleaded and
proved to bar the action or claim of the 30 years Real actions over
adverse party. immovables (but not
foreclosure) without
prejudice to the
b. Requisites: acquisition of ownership
or real rights by
1. Capacity to acquire by prescription acquisitive prescription
2. The thing is capable of acquisition by (Art. 1141)
prescription
10 years Actions upon a written
3. Possession of the thing under certain
contract
conditions
4. Lapse of time as provided for by law. Actions upon an
obligation created by law
Laches distinguished from Prescription Actions upon a judgment
from the time judgment
LACHES PRESCRIPTION becomes final
Concerned with the Concerned with the fact
Actions among co-heirs to
effect of delay of delay
enforce warranty against
Question of inequity of A question or matter of eviction in partition
permitting a claim to time Mortgage action
be enforced, this
inequity being founded 8 years Action to recover
on some subsequent movables without
change in the prejudice to acquisition of
condition or the title for a shorter period
relation of the parties or to the possessor‘s title
under Art. 559, 1505 and
Equity; Not statutory Statutory 1133
Need not specifically Cannot be availed of 6 years Actions upon an oral
pleaded unless it is specifically
(verbal) contract
pleaded as an affirmative
allegation Actions upon a quasi-
contract

c. Prescription or limitation of actions 5 years Action for annulment of

marriages (except on the
ground of insanity) and
PRESCRIPTIVE for legal separation
ACTIONS
PERIOD counted from the
Imprescriptible -To declare an inexistent occurrence of the cause
or void contract
Actions against the co-

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heirs for warranty of
solvency the debtor in
credits assigned in
partition
Action for the declaration
of the incapacity of an
heir (devisee or legatee)
to succeed
All other actions whose
period are not fixed by
law, counted from the
time the right of action
accrues
4 years Action to revoke
donations due to non-
compliance of conditions
Action to rescind partition
of deceased‘s estate on
account of lesion
Action to claim rescission
of contracts
Movables possessed through a crime can
never be acquired through prescription by the
offender. (Art. 1133, NCC)
b. Registered lands
An action to recover a registered land by the
owner (Sec. 47, PD No. 1529); and
Right to petition for the issuance for the
issuance of a Writ of Possession filed by the
applicant for registered land (Sec. 44 Act No.
496).
c. Actions to demand right of way
The easement of right of way may not be
acquired through prescription (Ronquillo v.
Roco, G.R. No. L-10619, February 28, 1958).
d. To abate a nuisance

Annulment of contracts The abatement of a nuisance does not

for vice of consent
preclude the right of any person injured to
Actions upon a Quasi- recover damages for its past existence . (Art.
delict 697, NCC)
Action to revoke or
reduce donations based Lapse of time cannot legalize any nuisance,
on birth, appearance or whether public or private. (Art. 698, NCC)
adoption of a child
e. Action to quiet title if plaintiff is in
Actions upon an injury to
the rights of the plaintiff possession
(not arising from
contract) If the plaintiff is in possession of property -
action does not prescribe (Sapto v. Fabiana,
3 years Actions under the eight - G.R. No. L-11285, May 16, 1958).
hour labor law
Actions to recover losses f. Void contracts (Art. 1410, NCC)
in gambling
Money claims as a g. Action to demand partition as
consequence of distinguished from laches
employer-employee
relationship No prescription shall run in favor of a co-
Action to impugn
owner or co-heir against his co-owners or co-
legitimacy of a child if the heirs so long as he expressly or impliedly
husband or his heirs recognizes the co-ownership (Art 494, NCC).
reside abroad.
h. Property of public dominion (Heirs of
Mario Malabanan v. Republic, G.R. No.
B. WHEN PRESCRIPTION IS 179987, September 3, 2013).
INAPPLICABLE

a. By offender

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C. PRESCRIPTION OR LIMITATION OF transmitted to the at the time of his death
ACTIONS persons entitled to it (Art. 776, NCC).
surviving the decedent
(see discussion on pg. 151, under 2. (Art. 774, NCC).
(Rabuya, Civil Law Reviewer Vol. I, 2017, p 711-
Extinctive Prescription)
712)
D. INTERRUPTION OF PRESCRIPTION Subject of Succession: DECEDENT/
OF ACTIONS TESTATOR
a. It is filed in court; Decedent- A person whose property is
b. There is a written extrajudicial demand by transmitted through succession, whether or
the creditor; and not he left a will. If he left a will, he is also
c. Written acknowledgement of the debt by called the testator (Art. 775, NCC).
the debtor (Art. 1155, NCC).
Object of Succession: INHERITANCE
V:
SUCCESSION 1. The inheritance includes all the property,
rights and obligations of a person which
A. GENERAL PROVISIONS are not extinguished by death (Art. 776,
NCC).
1. DEFINITION 2. Those which have accrued thereto since
the opening of the succession (Art. 776,
Succession is a mode of acquisition by virtue NCC).
of which the property, rights and obligations
to the extent of the value of the inheritance of According to renowned authors, this is not
a person are transmitted through his death to part of the inheritance although it pertains to
another or others either by his will or by the heir because it is not transmitted by death
operation of law (Art. 774, NCC). but acquired by the latter by virtue of the
right of accession (Rabuya, Civil Law Reviewer
Important Elements of the Definition: Vol I, 2017, p. 712 citing Tolentino, Civil Code of
the Philippines).
1. Mode of acquisition of ownership (Art. 712,
NCC) 2. SUCCESSION OCCURS AT THE
2. Transfer of property, rights, and MOMENT OF DEATH
obligations to the extent of the value of
the inheritance of a person (called grantor Transmission of Successional Rights
or transferor, decedent, testator)
3. Transmission thru death (from the The rights to the succession are transmitted
moment of death/mortis causa) (Art. 777, from the moment of the death of the
NCC) decedent (Art. 777, NCC).
4. Transmission to another (called grantee,
transferee, heir, legatee, or devisee) Conditions for Transmission
5. By will or by operation of law
(testamentary or legal/intestate 1. That indeed there has been death (either
succession) (Paras, Civil Code III, Succession, actual or presumed);
p.3 ) 2. That the rights or properties are indeed
transmissible or descendible; and
Succession v. Inheritance 3. That the transferee is still alive and willing
and is capacitated to inherit (Paras, Civil
Succession Inheritance Code of the Philippines Annotated Wills and
Refers to the legal Consists of the property Succession, 2016, p. 12-13).
mode by which the and transmissible rights
inheritance is and obligations existing

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The decedent‘s right to succeed is what is
transmitted and not the right to the
inheritance (Paras, Civil Code of the Philippines
Annotated Wills and Succession, 2016, p. 12-13).
Rules on Transmissibility of Rights and
Obligations
1. Purely personal rights, such as those
relating to family rights are extinguished
by death.
2. Patrimonial rights, generally are
transmissible to the heirs unless otherwise
provided by law or by the will of the
testator.
3. Rights and obligations arising from
contracts are, as a rule, binding upon the
heirs unless they are not transmissible by
their nature, or by stipulation or by
provision of law
4. Pecuniary obligations arising from
contract, while transmissible to the heirs,
the latter‘s liability shall be limited only up
to the value of the property they received
from the decedent (Rabuya, Civil Law
Reviewer Vol. I, 2017, p 712-714).
Death Contemplates
a. Actual or Natural Death
Death has been defined as cessation of life.
Life is not synonymous with civil personality.
One need not acquire civil personality first
before he/she could die (Continental Steel
Manufacturing Corp. v Montano, G.R. No. 182836,
October 13, 2009).
If there is doubt, between two or more
persons who are called to succeed each other,
as to which of them died first, the person
alleging the death of one prior to the other
shall prove the same. In the absence of proof,
it is presumed that they died at the same time
and there shall be no transmission of rights
from one to the other (Art. 43, NCC).
b. Presumptive death for purposes of
succession:
Presumptive Death: may be ordinary or
extraordinary.
i. Ordinary Absence
146 Center for Legal Education and Research
If a person has been absent, it being
unknown whether or not he still lives, he shall
be presumed dead for purposes of opening
his succession after an absence of ten years.
If he disappeared after the age of 75 years,
an absence of five years shall be sufficient
(Art. 390, NCC).
ii. Extraordinary or Qualified Absence
The following shall be presumed dead for all
purposes, including the division of the estate
among the heirs:
1. A person on board a vessel lost during a
sea voyage, or an aeroplane which is
missing, who has not been heard of for
four years since the loss of the vessel or
aeroplane;
2. A person in the armed forces who has
taken part in war, and has been missing
for four years;
3. A person who has been in danger of
death under other circumstances and his
existence has not been known for four
years.
Reckoning point of death - On the very day of
the occurrence of the event from which death
is presumed; and if such date cannot be fixed,
the court shall determine. (Rabuya, Civil Law
Reviewer Vol. I, 2017, p 721)
Kinds of Succession
1. Testamentary – that which results from
the designation of an heir, made in a will
executed in the form prescribed by law
(Art. 779, NCC).
2. Legal or Intestate – that which takes
place by operation of law in the absence
of a valid will (Art. 960, NCC).
3. Mixed – that which is effected partly by
will and partly by operation of law (Art.
780, NCC).
Other authors claim that there are 2 other
kinds of Succession:
1. Compulsory – succession to the legitime
and prevails over all other kinds of
succession (Paras, Civil Code III, Succession,
p. 31).

2. Contractual – effected when the future
spouses donate to each other in their
marriage settlements their future property
to take effect upon the death of the donor
and to the extent laid down by the
provisions of the NCC relating to
testamentary succession (Art 130, NCC;
Jurado, Civil Law Reviewer, 2009, p. 494).
3. KINDS OF SUCCESSORS
Heir – A person called to the succession
either by the provision of a will or by
operation of law (Art. 782, NCC).
i. Compulsory heirs - Those who succeed
by force of law to some portion of the
inheritance known as ―legitime,‖ in an
amount predetermined by law, of which
they cannot be deprived by the testator,
except by a valid disinheritance.
ii. Voluntary or testamentary heirs -
Those who are instituted by the testator
in his will, to succeed to the inheritance or
the portion thereof of which the testator
can freely dispose.
iii. Legal or intestate heirs - Those who
succeed to the estate of the decedent
who dies without a valid will, or to the
portion of such estate not disposed of by
will (Tolentino, Civil Code of the Philippines
Vol. III, succession, p. 27).
Devisee- Person to whom gifts of real
property is given by virtue of a will (Art. 782,
NCC).
Legatee - Person to whom gifts of personal
property is given by virtue of a will (Art. 782,
NCC).
DISTINCTIONS BETWEEN HEIRS AND
LEGATEES OR DEVISEES:
Legatees or
Heirs
Devisees
Determinability of amount of inheritance
Inherit an Are always given a
indeterminate or determinate thing or
aliquot portion by the a fixed amount.
decedent‘s hereditary
estate.
Purple Notes 2018
Civil Law
Extent of Successional Right
Succeed to the Only succeed to the
remainder of the determinate thing
properties after all or quantity which is
the debts and all the mentioned in the
legacies and devices legacy or devise
have been paid or
given
As to when they exist
Both in testamentary Only in testamentary
and intestate succession
succession
Instances where the distinctions
between heirs and devisees/legatees
are important:
1. Preterition - The effect is to annul
entirely the institution of heirs, but
legacies and devises shall be valid insofar
as they are not inofficious (Art. 854, NCC)
2. Defective/Imperfect Disinheritance -
The effect is to annul the institution of
heirs to the extent that the legitime of the
disinherited heir is prejudiced, but
legacies and devises shall be valid insofar
as they are not inofficious (Art. 918, NCC).
3. After – acquired properties - As a rule,
they are not included among the
properties disposed of unless it should
expressly appear in the will itself that
such was the testator‘s intention (Art. 793,
NCC). There is a view that this rule is
applicable only to legacies and devises
and not to the institution of heirs (Jurado,
Comments & Jurisprudence in Succession,
2009 Ed, p. 28).
B. TESTAMENTARY SUCCESSION
1. WILLS
Will – An act whereby a person is permitted,
with the formalities prescribed by law, to
control to a certain degree the disposition of
his estate, to take effect after his death (Art.
783, NCC).
Characteristics of Wills
a. It is a statutory right – A person is only
―permitted‖ with the formalities prescribed
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by law, to dispose of his estate effectively
upon his death through a will (Rabuya, Civil
Law Reviewer Vol. I, 2017, p. 724 citing Art.
783, NCC).
The making of a will should be considered
subordinate to both the law and public policy
(Paras, Civil Code of the Philippines Annotated Wills
and Succession, 2016, p 44).
b. It is a strictly personal act – it cannot
be left in whole or in part to the discretion
of a third person, or accomplished
through the instrumentality of an agent or
attorney (Art. 784, NCC).
Acts which the testator cannot entrust
to third persons:
5. The duration or efficacy of designation of
heirs, devisees or legatees (Art. 785, NCC).z
6. The determination of portions which they
are to take, when referred to by name
(Art. 785, NCC).
7. Determination of whether or not a
disposition is to be operative (Art. 787,
NCC).
The testator may only entrust to a third
person:
1. The distribution of specific property or
sums of money that he may leave in
general to specified classes or causes,
(Art. 786, NCC) provided that the testator
has already determined the property or
amount of money to be given (Rabuya,
Civil Law Reviewer 1, 2017 Ed, p. 727); and
2. The designation of persons, institutions or
establishments to which such property or
sums of money are to be given or applied,
(Art. 786, NCC) provided that the testator
has already determined the class or cause
to be benefited (Rabuya, Civil Law Reviewer
1, 2017 Ed, p. 727).
c. It is a unilateral and individual act -
two or more persons cannot make a will
jointly or in the same instrument, either
for their reciprocal benefit or for the
benefit of a third person (Art. 818, NCC).
148 Center for Legal Education and Research
d. It is a free and voluntary act – it must
have been executed freely, knowingly,
and voluntarily, otherwise it will be
disallowed (Paras, Civil Code of the
Philippines Annotated Wills and Succession,
2016, p 44).
e. It is a formal or a solemn act –
executed in accordance with the
formalities prescribed by law (Art. 783,
NCC).
f. It is a disposition of property (Art. 783,
NCC)
Testator must have animus testandi – intent
to transfer title via a testamentary disposition,
to take effect upon testator‘s death.
g. It is a disposition mortis causa - it will
take effect upon death (Art. 777, NCC)
h. It is ambulatory and revocable - a will
may be revoked by the testator at any
time before his death (Art. 828, NCC).
i. The testator must have testamentary
capacity.
Testamentary Capacity
Governing Law: The capacity of a person to
make a will shall be governed by his national
law (Art. 15, NCC)
When must exist: Testamentary Capacity
must exist at the time of the execution of the
will (Jurado, Comments and Jurisprudence on
Succession, 2009 ed. P 40).
Only natural persons are qualified to make a
will.
General Rule: All natural persons are
qualified to make a will UNLESS:
1. He is expressly prohibited by law- All
persons who are not expressly prohibited
by law may make a will (Art. 796, NCC).
2. He is below 18 years of age- Persons
of either sex under eighteen years of age
cannot make a will (Art. 797, NCC).

3. He is of unsound mind at the time of
execution - In order to make a will it is
essential that the testator be of sound
mind at the time of its execution (Art. 798,
NCC).
Requirements of Soundness of Mind:
To be considered as of sound mind, the
testator must have the ability to know:
a. The nature of the estate to be
disposed of (Art. 799, NCC) – testator
must have a fairly accurate knowledge of
what he owns (Rabuya, Civil Law Review Vol.
I, 2017, p 738 );
b. The proper objects of his bounty (Art.
799, NCC) – testator should know under
ordinary circumstances, his relatives in
the most proximate degrees (Rabuya,
supra, at 739); and
c. The character of the testamentary
act (Art. 799, NCC) - testator must be
aware that the instrument he is executing
is an act mortis causa which will dispose
of his property upon his death (Rabuya,
supra, at 739).
The law presumes that the testator is of
sound mind, unless: (Inverted Presumptions)
a. One month or less before making his will,
he was publicly known to be insane; and
b. He was under guardianship at the time of
making his will (Art. 800, NCC).
Supervening incapacity does not invalidate an
effective will, nor is the will of an
incapacitated validated by supervening of
capacity (Art. 801, NCC).
There is no presumption of incapacity merely
because of advance years (Tolentino, Civil Code
of the Philippines Vol. III, succession, p. 53). It is
senile dementia and not senility that produces
testamentary incapacity (Jurado, Comments and
Jurisprudence on Succession, 2009 ed. p .46).
Purple Notes 2018
Civil Law
Insane Delusions
Not every insane (delusion) will render one
incapable of making a will. A testator may
have delusions regarding matters which do
not affect or concern his testamentary act and
which have no influence upon the disposition
which he makes of his estate. In such a case,
if the testator is otherwise mentally qualified,
the existence of such delusions would not
invalidate his will (Tolentino, Civil Code of the
Philippines Vol. III, Succession p. 55).
Deaf, Dumb, and Blind
Neither blindness, nor deafness and
dumbness, nor all of them combined, will
alone incapacitate a person to perform
testamentary act. If a person afflicted has
testamentary capacity and can communicate
his desires, no reason exists for rejecting his
will (Tolentino, Civil Code of the Philippines Vol.
III, Succession, p. 56).
Other circumstances such as family relations,
civil interdiction, prodigality, insolvency,
alienage, and other similar nature, which
ordinarily modify or limit capacity to act do
not affect or restrict testamentary capacity
(Jurado, Comments and Jurisprudence on
Succession, 2009 ed. p.39).
Interpretation of Wills
Rule Favoring Testacy
The intent or will of the testator, expressed in
the form and within the limits prescribed by
law, must be recognized as the supreme law
in succession. All rules of construction are
designed to ascertain and give effect to that
intention.
It is only when then the intention of the
testator is contrary to law, morals, or public
policy that it cannot be given effect (Rabuya,
Civil Law Review, Vol. I, 2017, p 728).
If a testamentary disposition admits of
different interpretations, in case of doubt, that
interpretation by which the disposition is to be
operative shall be preferred (Art. 788, NCC).
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Parole Evidence Rule with respect to
interpretation of wills.
When there is an imperfect description, or
when no person or property exactly answers
the description, mistakes and omissions must
be corrected, if the error appears from the
context of the will or from extrinsic evidence,
excluding the oral declarations of the testator
as to his intention; and when an uncertainty
arises upon the face of the will, as to the
application of any of its provisions, the
testator's intention is to be ascertained from
the words of the will, taking into consideration
the circumstances under which it was made,
excluding such oral declarations (Art. 789,
NCC).
Kinds of Ambiguities
1. Patent or Extrinsic ambiguity - one
which appears upon the face of the
instrument. (e.g., When the testator gives
a legacy to ―some of the six children of
my brother Juan.)
2. Latent or Intrinsic ambiguity - one
which cannot be seen from a mere
perusal or reading of the will, but which
appears only upon consideration of
extrinsic circumstances. (e.g., When the
testator gives a legacy to ―my cousin
Pedro‖ and it turns out that he has two
or more cousins named Pedro.)
There is no distinction between patent and
latent ambiguities in so far as the admissibility
of parole or extrinsic evidence to aid
testamentary disposition is concerned
(Tolentino, Civil Code of the Philippines Vol. III,
Succession, p. 36).
How to cure ambiguities:
1. By determining the intention of the
testator through examining the words of
the will; and/or
2. By resorting to parol or extrinsic evidence
(oral declarations not allowed since
contrary to the dead man‘s statute rule)
(Rabuya, Civil Law Review, Vol. I, 2017, p
731).
150 Center for Legal Education and Research
Interpretation of words
1. Non-technical words (Art. 790, NCC)
General Rule: The words of a will are to be
taken in their ordinary and grammatical sense
Exception: When a clear intention to use
them in another sense can be gathered, and
that other can be ascertained (Art. 790, NCC).
2. Technical words (Art. 790, NCC)
General Rule: They are to be taken in their
technical sense
Exception: When the context clearly
indicates a contrary intention, or unless it
satisfactorily appears that the will was drawn
solely by the testator, and that he was
unacquainted with such technical sense (Art.
790, NCC).
Interpretation as a whole
The words of a will are to receive an
interpretation which will give to every
expression some effect, rather than one which
will render any of the expressions inoperative;
and of two modes of interpreting a will, that is
to be preferred which will prevent intestacy
(Art. 791, NCC).
The will of the testator is the first and
principal law in the matter of testaments.
When his intention is clearly and precisely
expressed, any interpretation must be in
accord with the plain and literal meaning of
his words, except when it may clearly appear
that his intention was different from that
literally expressed. The testator‘s intention is
to be ascertained from the words of the will,
taking into consideration the circumstances
under which it was made. x xx Inasmuch as
the testator was not survived by any nephew
who became a priest, the unavoidable
conclusion is that the bequest in question was
ineffectual or inoperative. Therefore, the
administration of the rice lands by the parish
priest of Victoria, as envisaged in the will, was
likewise inoperative (Parish Priest of Roman
Catholic Church of Victoria, Tarlac v. Rigor, G.R.
No. L-22036, April 30, 1979).

Separability of invalid provisions (Art. 792,
NCC)
The invalidity of one of several dispositions
contained in a will does not result in the
invalidity of the other dispositions.
Exception: Unless it is to be presumed that
the testator would not have made such other
dispositions if the first invalid disposition had
not been made (Art. 792, NCC).
After-acquired property
General Rule: Properties acquired during the
interval between the execution of the will and
the death of the testator are not included
among the properties dispose of (Art. 793,
NCC).
Exception: Unless it should expressly appear
in the will itself that such was the intention of
the testator, such as when the will covers or
speaks of the ―whole estate‖ or the entire
inheritance‖ (Rabuya, Civil Law Review, Vol. I,
2017, p 731, citing Art 793, NCC).
Extent of interest covered
Every devise or legacy shall cover all the
interest which the testator could device or
bequeath in the property disposed of, unless
it clearly appears from the will that he
intended to convey a less interest (Art. 794,
NCC).
Law Governing Form
1. As to the time of execution
Extrinsic validity
The validity of a will as to its form depends
upon the observance of the law in force at the
time it is made (Art. 795, NCC).
Effect of statutory changes
a. After the testator’s death
Successional rights arising from the will are
vested in the person called to the inheritance.
These vested rights are protected under the
due process clause of the constitution (Jurado,
Purple Notes 2018
Civil Law
Comments and Jurisprudence on Succession, 2009
ed. p. 37).
b. Before the testator’s death
General Rule: Any statutory change enacted
after the execution of the will but before the
death of the testator cannot have any
retroactive effect upon the formal validity of
the will.
Exception: When a retroactive effect is
expressly declared by the statue itself or is
necessarily implied from the language used
therein (Jurado, Comments and Jurisprudence on
Succession, 2009 ed. p. 38).
Intrinsic validity
1. Successional rights are governed by the
law in force at the TIME OF THE
DECEDENT‘S DEATH (Art. 2263, NCC);
2. Laws that must be observed in relation to
intrinsic validity under Philippine Law:
a. National law of the decedent; law of his
country or nationality; regardless of the
place of execution and the place of death
(Art. 16 [2], NCC);
b. RENVOI DOCTRINE: referring back to
the forum of the problem.
Where the conflict rules under the decedent‘s
national law refers the matter to the law of
the domicile;
(See detailed discussion under Conflicts of Law)
A holographic will is subject to no other form,
and may be made in or out of the Philippines
(Art. 810, NCC).
2. As to the place of execution
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, NCC).
Extrinsic Validity - A will produces effect in
the Philippines if made by either a Filipino
Bar Operations C ommissions 151
 Purple Notes
Civil Law
Testator or an Alien within the formalities
prescribed by:
a. Filipino Testator (Art. 815 and Art. 17,
NCC)
1) Philippine Law
2) The law of the country where it is
executed
b. Alien Testator
1) Executed abroad (Art. 17 and 816, NCC)
a) The law of the place where it is
executed
b) The law of the place which he
resides
c) The law according to the
formalities observed in his country
d) Philippine Law
2) Executed in the Philippines (Art. 817,
NCC)
a) Philippine Law
b) The law of the country of which
he is a citizen or subject
Aspects of a Will Governed by the
National Law of the Decedent
1. Order of succession;
2. Amount of successional rights;
3. Intrinsic validity of testamentary
dispositions; and
4. Capacity of the heir to succeed from
decedent (Art. 16 (2), NCC).
PROHIBITION ON JOINT WILLS: Two or
more persons cannot make a will jointly, or in
the same instrument, either for their
reciprocal benefit or for the benefit of a third
person. (Art. 818, NCC) This provision extends
to all Filipinos even if they are in a foreign
country that allows joint wills (Art. 819, NCC).
Formalities of Wills
Forms and solemnities of will are governed by
the law of the country in which the will was
executed (Art 17, NCC).
152 Center for Legal Education and Research
Kinds of Wills
1. Notarial/Attested or Ordinary will –
Executed in accordance with the
formalities prescribed in Arts. 804 to 808
of the Civil Code.
2. Holographic will – A will which must be
entirely written, dated and signed by the
hand of the testator HIMSELF, without the
necessity of any witness (Art. 810, NCC).
Common Formalities of Wills: (Art. 804,
NCC)
1. Must be in writing
2. Written in a language or dialect known to
the testator. Otherwise, the will is void.
Special Formalities of Notarial Wills (Art.
805, NCC)
1. Subscription - 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 express
direction.
Two modes by which the testator can
subscribe a notarial will:
a. Subscription by testator himself
A thumbprint is considered sufficient signature
(De Gala v. Gonzales, G.R. No. L-30289, March 26,
1929).
A cross written across the testator‘s name is
not sufficient signature unless it is shown that
it is the testator‘s habitual signature or one of
the ways by which he signs his name (Matias
v. Salud, G.R. No. L-10751, June 23, 1958).
Thus, in an earlier case, the Court declared
that the cross appearing on the will is not the
usual signature of Antero Mercado or even
one of the ways by which he signed his name.
After mature reflection, we are not prepared
to liken the mere sign of the cross to a
thumbmark, and the reason is obvious. The
cross cannot and does not have the
trustworthiness of a thumbmark (Garcia v.
Lacuesta, G.R. No. L-4067, November 29, 1951).

b. Subscription by the testator’s name
written by some other person in his
presence, and by his express direction
Requisites:
1) The testator‘s name is written by some
other person in his presence and by his
express direction;
2) Such person signed the will and every
page thereof in the presence of the
instrumental witnesses;
3) The person requested by the testator
signs the testator‘s name, not his; and
4) The fact that the testator caused some
other person to write his name in his
presence and by his express direction and
also in the presence of the instrumental
witnesses is stated in the attestation
clause (Rabuya, Civil Law Review Vol. I, 2017,
p 750-751).
End of the will – It refers to the point where
the last testamentary disposition ends or at its
logical end.
When signature is followed by
dispositive provisions: the whole will
cannot be probated because it must be
considered as the whole (III Tolentino, Civil
Code of the Philippines, 70, 1992 Ed, cited by
Rabuya in Civil Law Reviewer I, 2017 Ed. p. 756).
Purpose of the Requirement - To prevent
fraud or interpolation between the
testamentary dispositions and the signature.
An instrument in the form of a will cannot be
probated, if it is not signed at the end
(Tolentino, Civil Code of the Philippines, Vol. III,
1992, p 70).
2. Attestation and Subscription by 3
witnesses - Attested and subscribed by
3 or more qualified or competent
witnesses in the presence of the testator
and of one another.
Distinction between Attestation and
Subscription
Attestation Subscription
Act of senses Act of the hand
Mental Mechanical
Purple Notes 2018
Civil Law
Consists in witnessing It is the signing of the
the testator‘s execution witnesses‘ names
of the will in order to see upon the same paper
and take note mentally for the purpose of
that those things are identification of such
done which the statute paper as the will
requires for the which was executed
execution of a will and by the testator
that the signature of the
testator exists as a fact.
(Rabuya, Civil Law Review Vol. I, 2017, p 757)
Attestation is the act of the senses, while
subscription is the act of the hand. Hence, if
the will consisted of two pages, both signed
by the witnesses on the left-hand margin
thereof, but without signing the attestation
clause at its bottom, the will is void because
an unsigned attestation clause results in an
unattested will. The signatures on the left-
hand margin cannot be deemed compliance
with the signature on the attestation clause
since the signatures that do appear on the
page were directed towards a wholly different
avowal (Azuela v. Court of Appeals, G.R. No.
122880, April 26, 2006).
Meaning of ―in the presence of the
testator and of one another‖:
The true test of signing in each other‘s
presence is not whether they actually saw
each other sign, but whether they might have
seen each other sign had they chosen to do
so, considering their mental and physical
condition and position in relation to each
other at the moment of inscription of each
signature. Hence, if a witness could see
everything that took place by merely casting
his eyes in the proper direction and without
any physical obstruction to prevent his doing
so, the requirement of the statute is satisfied
(Nera v. Rimando, G.R. No. L-5971, February 27,
1911).
As long as the witness was in such a position which
in relation to the third witness that he could see
everything which took place by merely
casting his eyes in the proper direction, and
without physical obstruction to prevent
doing so, it shall be considered as signed in his
presence (Jobaneta v. Villasor, 5 Phil. 541, 1906
Bar Operations C ommissions 153
 Purple Notes
Civil Law
cited in Rabuya Civil Law Reviewer I, 2017 Ed. p.
761).
Number of witnesses a mandatory
requirement:
A notarial will, as the contested will in this
case, is required by law to be subscribed at
the end thereof by the testator himself. In
addition, it should be attested and subscribed
by three or more credible witnesses in the
presence of the testator and of one another.
The will in question was attested by only two
witnesses, Noynay and Grajo. On this
circumstance alone, the will must be
considered void (Lee v. Tambago, A.C. No. 5281,
February 12, 2008).
If the third witness is the notary public himself
before whom the will was supposed to have
been acknowledged, the requirements of
Articles 805 and 806 of the Civil Code are not
satisfied (Rabuya, supra, at p 760).
3. Marginal Signatures - Signatures of
testator or the person requested by him
to write his name and his witnesses on
the left margin of each and every page,
except the last.
Three requirements:
a. The testator or the person requested by
him to write his name must sign on every
page, except the last (MANDATORY)
b. Such signature be on the left margin
(DIRECTORY)
c. The signing must be done in the presence
of the witnesses (MANDATORY) (Rabuya,
supra, at p 762).
4. Pages numbered correlatively in letters
placed on the upper part of each page.
Purpose of the requirement: the paging of
wills is guard against fraud, and to afford
means of preventing the substitution or of
defecting the loss of any of its pages.
In the present case, the omission to put a
page number on the first sheet, if that be
necessary, is supplied by other forms of
154 Center for Legal Education and Research
identification more trustworthy than the
conventional numerical words or characters.
The unnumbered page is clearly identified as
the first page by the internal sense of its
contents considered in relation to the contents
of the second page. By their meaning and
coherence, the first and second lines on the
second page are undeniably a continuation of
the last sentence of the testament, before the
attestation clause, which starts at the bottom
of the preceding page. Furthermore, the
unnumbered page contains the caption
"TESTAMENTO," the invocation of the
Almighty, and a recital that the testator was in
full use of his testamentary faculty, — all of
which, in the logical order of sequence,
precede the direction for the disposition of the
marker's property. Again, as page two
contains only the two lines above mentioned,
the attestation clause, the mark of the
testator and the signatures of the witnesses,
the other sheet cannot by any possibility be
taken for other than page one (Lopez v Liboro,
G.R. No. L-1787, August 27, 1948).
If the paging should be placed on the lower
part, the testament is not void for this sole
reason (Rabuya, supra, at p 769 citing Unson v
Abella, G.R. No. 17847, June 12, 1922).
It is not necessary that the pages of the will
be numbered correlatively in letters such as
―one,‖ ―two,‖ ―three,‖ etc. The requirement of
the law is sufficiently complied with if the
folios were paged with the letters ―A,‖ ―B,‖
―C,‖ etc. or in Arabic numerals or in any form
of identification (Rabuya, supra, at p 769 citing
Aldaba v Roque, 43 Phil 504, and Unson v Abella,
43 Phil 504).
5. Contain an attestation clause
embodying the following:
a. Number of pages used upon which the
will is written;
b. The fact that testator signed the will
and every page thereof, or caused
some other person to write his name,
under his express direction and in his
presence, in the presence of the
instrumental witnesses;
c. The fact that the witnesses witnessed
and signed the will and all the pages

thereof in the presence of the testator
and of one another.
If the attestation clause is the only evidence
of the fact required to be stated therein, the
omission to state such fact in the attestation
clause is fatal (Caneda v. CA, G.R. No. 103554,
May 28, 1993). For example, if the attestation
clause failed to state that the testator signed
the will in the presence of the witnesses.
But if the omitted statement may be proven
by the mere examination of the will, such
omission does not invalidate the will (Caneda v.
CA, G.R. No. 103554, May 28, 1993). For
example, the fact that all the pages were
signed by the testator and all the witnesses.
6. Acknowledged before a notary public by
the testator and all the witnesses.
An acknowledgment taken outside the
territorial limits of the notary public‘s
jurisdiction is void because outside of the
place of his commission, a notary public is
bereft of power to perform any notarial act.
Hence, the will becomes void because of
absence of acknowledgment (Guerrero v. Bihis,
G.R. No. 212045, July 22, 2015).
A will which does not contain an
acknowledgment, but a mere jurat, is fatally
defective, as the express requirement of the
law is that the will be acknowledged, and not
merely subscribed and sworn to (Azuela v. CA,
G.R. No. 122880, April 12, 2006).
The notary public before whom the will was
acknowledged cannot be considered as the
third instrumental witness since he cannot
acknowledge before himself the will (Cruz v.
Villasor, G.R. No. L-32213, November 26, 1973).
Timing of acknowledgment – The NCC does
not require that the signing of the testator,
witnesses and notary should be accomplished
in one single act. Thus, the conflict between
the dates appearing on the notarial will does
not invalidate the document, because the law
does not even require that a notarial will be
executed and acknowledged on the same
occasion (Ortega v. Valmonte, G.R. No. 157451,
December 16, 2005).
Purple Notes 2018
Civil Law
Special Requirements in Special Cases:
A. Deaf or Deaf-Mute Testator
1. He must personally read the will, if able
to do so; or
2. Otherwise, he shall designate two
persons to read and communicate to
him, the contents thereof (Art. 807, NCC)
B. Blind Testator (Art. 808, NCC)
The will shall be read to him twice; once by
one of the subscribing witnesses, again when
the will is acknowledged.
Rule Qualified:
The will was held to be valid where, instead of
a Notary Public and an instrumental witness, it
was the lawyer who drafted the will who read
the same aloud to the testator once, not twice
as the law requires, in the presence of the
testator, his three instrumental witnesses and
the notary public. Prior and subsequent
thereto the testator affirmed upon being
asked that the contents read corresponded
with his instructions. Only then did the signing
and acknowledgment take place (Alvarado v.
Gaviola, Jr., G.R. No. 74695, September 14, 1993.
Special formalities of Holographic wills:
1. Entirely written by the hand of the
testator;
2. Dated by the hand of the testator; and
3. Signed by the hand of the testator (Art.
810, NCC).
Absent the above requirements, the will is
void.
No Witness Required – During the
execution of the holographic will, no witnesses
are necessary and required (Rabuya, supra, at p
791).
In the probate of a holographic will, it shall be
necessary that at least one witness who
knows the handwriting and signature of the
testator explicitly declares that the will and
the signature are in the handwriting of the
testator.
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 Purple Notes
Civil Law
If the will is contested at least three of
such witness shall be required. In the absence
of any competent witness and if the court
deems it necessary expert testimony maybe
resorted to (Art. 811, NCC).
In an earlier case (Azaola v. Singson, G.R. No. L-
14003, August 5, 1960), it was held that even if
the genuineness of the holographic will is
contested, the requirement of three witnesses
is not compulsory. In a later case (Codoy v.
Calugay, G.R. No. 123486, August 12, 1999),
however, the Court ruled that the requirement
is mandatory.
Rules in case of insertion, cancellation,
erasure or alterations made by testator:
1. He must authenticate the same with his
full signature (Art. 814, NCC).
2. If not authenticated with his full
signature, it is considered as not made,
but the will is not invalidated as a whole,
but at most only with respect to the
particular words erased, corrected or
interlined (Kalaw v. Relova, G.R. No. L-40207,
September 28, 1984).
Effect of insertion by another person on
the validity of a holographic will:
1. Made after the execution of the will
but without the consent of the
testator: such insertion is considered as
not written because the validity of the will
cannot be defeated by the malice or
caprice of a third person.
2. Made after the execution of the will
but with the consent of the testator:
the will remains valid but the insertion is
void.
3. Made after the execution of the will
but validated by the testator by his
signature thereon, then the insertion
becomes part of the will, and the entire
will becomes void.
4. Made contemporaneous to the
execution of the will, then the will is
void because it is not written entirely by
the testator (III Tolentino, Civil Code, 1979,
115).
156 Center for Legal Education and Research
Witnesses to Will
Requirements (Arts. 820, 821, NCC)
1. At least 18 years of age;
2. Of sound mind;
3. Not blind, deaf or dumb;
4. Able to read and write;
5. Domiciled in the Philippines, and
6. Has not been convicted of falsification of a
document, perjury or false testimony
The requirement that witnesses must be
domiciled in the Philippines applies only if a
Filipino citizen executes his will in the
Philippines (Rabuya, Civil Law Review, Vol. I,
2017, p 797).
Other reminders:
1. The competency of the witnesses is
determined at the time of the attestation
of the will (Art. 822, NCC).
2. If a witness is given a share of the
inheritance, a devise or a legacy, or the
same is given to his spouse, parent or
child:
a) The disposition is void if there are no
other three qualified witnesses, but
the will is still valid.
b) The witness is not disqualified; only
his entitlement to the inheritance,
legacy or devise is affected – it
becomes void (Art. 823, NCC).
1. DOCTRINE OF SUBSTANTIAL
COMPLIANCE - In the absence of bad
faith, forgery or fraud, or undue and
improper pressure and influence, defects
and imperfections in the form of
attestation or in the language used
therein shall not render the will invalid if it
is proved that the will was in fact
executed and attested in substantial
compliance with all the requirements of
Article 805 (Art. 809, NCC; RE: Petition for
Probate of the Will of Consuelo Santiago
Garcia vs Natividad Garcia Santos, G.R. No.
204793, June 08, 2020).
Codicils and Incorporation by Reference
Codicil – is a supplement or addition to a will
made after the execution of a will and
 Purple Notes 2018
Civil Law
annexed to be taken as a part thereof by original will, explaining, without reference to
which any disposition made in the original will adding to, or altering and independent of the
is explained added to or altered (Art. 825, any of its dispositions original will
NCC). In order that it may be effective, it shall A will and a codicil, A prior will and a
being regarded as a subsequent will, being
be executed as in the case of a will (Art. 826,
single instrument, are two separate wills, may
NCC).
to be construed be construed
together independently of each
If the latter instrument makes dispositions other.
independent of those in the original will,
without explaining or modifying such original Revocation of Wills and Testamentary
will, then it is a new will, not a codicil (Rabuya, Dispositions
Civil Law Review, Vol. I, 2017, p. 800).
Revocation is an act of the mind,
Form required for Codicil:
terminating the potential capacity of the will
to operate at the death of the testator,
It shall be executed as in the case of a will in
manifested by some outward and visible act
order to be effective (Art. 354, NCC).
or sign, symbolic thereof (Tolentino, Civil Code
of the Philippines Vol. III, Succession p. 129).
A codicil may either be in the form of a
notarial or holographic will regardless of A. Rules on revocability of wills: (Art.
whether it refers to a notarial or holographic 828, NCC)
will (Rabuya, Civil Law Reviewer I, 2017 Ed., p.
800 citing Balane, Jottings and Jurisprudence in 1. A will may be revoked at will by the
Succession, 1998 Ed. p. 140). testator at any time before his death
2. Any waiver or restriction of the right to
Incorporation by reference - An exception revoke the will is void, but it shall not
to the rule that if an instrument is not affect the validity of the will.
executed with all the formalities of a will it
cannot be admitted to probate (Tolentino, Civil B. Governing law in revocation: (Art. 829,
Code of the Philippines Vol. III, Succession p.127). NCC)
Requisites for the validity of
incorporation by reference of documents 1. If made outside the Philippines:
or paper to notarial will:
a. By a person not domiciled in the
1. Document or paper referred to must be in Philippines, valid if –
existence at the time of the execution of
the will; 2. In accordance with the law of the
2. Will must clearly describe and identify the place where the will was made; or
same stating, among other things, the 3. In accordance with the law of the
number of pages thereof; place in which he is domiciled at the
3. It must be identified by clear and time of revocation.
satisfactory proof as the document or
paper referred therein; and b. By a person domiciled in the Philippines,
4. It must be signed by the testator and the the revocation must be done in
witnesses on each and every page (Art. accordance with Philippine law.
827, NCC).
2. If made in the Philippines: Must be
Difference between Codicil and
done in accordance with Philippine laws,
Subsequent Will
whether the testator be domiciled in the
Philippines or not.
Codicil Subsequent Will
Forms part of the New or separate
original will
Modes of revoking wills: (Art. 830, NCC)
Supplements the Makes dispositions

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 Purple Notes
Civil Law
1. By implication of law;
2. By some will, codicil, or other writing
executed as provided in case of wills
3. By physical destruction (burning, tearing,
cancelling, or obliterating the will with the
intention of revoking it, by the testator
himself, or by some other person in his
presence, and by his express direction.)
Instances of revocation by implication of
law:
1. If the subsequent marriage in Art. 41 of
the Family Code is terminated by the
recoding of the affidavit of reappearance,
the spouse who contracted the marriage
in bad faith is disqualified to inherit from
the other, whether the succession is
testamentary or intestate (Art. 43[5], FC).
2. If both spouses in the subsequent
marriage are in bad faith, the marriage is
void, and any testamentary disposition by
one in favor of the other is revoked by
operation of law (Art. 44, FC).
3. In case of annulment of marriage, the
spouse who contracted the marriage in
bad faith is disqualified to inherit from the
other, whether the succession is
testamentary or intestate (Art. 50, FC).
4. In case of legal separation, the
testamentary disposition in the will of the
innocent spouse in favor of the guilty
spouse is revoked by operation of law
(Art. 63[4], FC).
5. In case of preterition of a compulsory heir
in the direct line, the institution of heir is
totally annulled but without affecting the
legacies and devises which are not
inofficious (Art. 854).
6. When the heir, legatee or devisee
commits an act of unworthiness which by
express provision of law will incapacitate
him to succeed (Art. 1032).
7. When in the testator‘s will there is a
legacy of credit against a third a person or
of a remission of a debt of the legatee,
and subsequently, after the execution of
158 Center for Legal Education and Research
the will, the testator brings an action
against the debtor for the payment of his
debt. In such a case, the legacy is
revoked by operation of law (Arts. 935 &
936).
8. When the testator transforms the thing
bequeathed in such a manner that it does
not retain either the form or denomination
it had, or when he alienates by any title or
for any cause the thing bequeathed or
any part thereof, or when the thing
bequeathed is totally lost during the
testator‘s lifetime or after his death
without the heir‘s fault. In such cases, the
legacy is revoked by operation of law (Art.
957, NCC) (Rabuya, Civil Law Reviewer, Vol.
III, 2017, p 803-804).
Revocation by subsequent instrument
May be made either expressly or impliedly.
1. Express Revocation
a. Revocation is express when in a
subsequent instrument executed in the
form of a will there is a revocatory
clause expressly revoking the previous
will or part thereof (Rabuya, Civil Law Review,
Vol. I, 2017, p. 805).
b. In order that a former will may be
revoked by a subsequent will, it is
necessary that the latter will should be
valid and executed with the formalities
required for the making of wills (Tolentino,
Civil Code of the Philippines Vol. III,
Succession p. 131).
c. If the subsequent will containing a clause
revoking previous will is disallowed by the
probate court on the ground that it was
not executed in accordance with the
formalities prescribed by law. The
revocatory clause will not produce any
effect whatsoever (Jurado, Comments and
Jurisprudence on Succession, 2009 ed. p.
121).
d. A revocation of a will based on a false
cause or an illegal cause is null and void
(Art. 833, NCC).

Doctrine of Dependent Relative
Revocation
If the testator revokes his will with the
present intention of making a new one
immediately and substitute, and the new will
is not made, or if made, fails to take effect for
any reason whatsoever, it will be presumed
that the testator prefers the old will to
intestacy; consequently, the old will can still
be admitted to probate (Molo v. Molo, G.R. L-
02538, September 21, 1951).
Exception:
A revocation made in a subsequent will shall
take effect, even if the new will should
become inoperative by reason of:
a. Incapacity of the heirs, devisees or
legatees designated therein
b. Renunciation or repudiation (Art. 832, NCC)
False or illegal cause of revocation:
Revocation of a will based on a false cause or
illegal cause is null and void.
2. Implied Revocation
Rules on Implied Revocation:
1. Revocation is implied when the
subsequent will or codicil is partially or
absolutely inconsistent with that of the
previous will (Rabuya, Civil Law Review, Vol.
I, 2017, p. 807).
2. Subsequent wills which do not revoke the
previous ones in an express manner,
annul only such dispositions in the prior
wills as are inconsistent with or contrary
to those contained in the latter wills (Art.
831, NCC).
3. Parol evidence is competent to show
which was in fact last executed, whether
they are dated or not. But if of the same
date, or not dated, and there is nothing to
show which was the last, all fail for
uncertainty (III Tolentino, Civil Code, 1992
ed., 131-132).
Purple Notes 2018
Civil Law
Revocation by Physical Destruction:
Requisites:
1. Testator must, at the time of performing
it, be in possession of his faculties and
capable of making wills (Tolentino, Civil
Code of the Philippines Vol. III, Succession p.
132);
2. The destruction must be with intent to
revoke or coupled with animus revocandi
(Tolentino, Civil Code of the Philippines Vol.
III, succession p.132);
3. Intention to revoke must be accompanied
by overt physical act of burning, tearing,
obliterating or cancelling the will (Testate
Estate of Adriana Maloto v. Court of Appeals,
G. R. no. L-76464. February 29, 1988).
4. The overt act must be made by the
testator or by another person in his
presence and under his express direction
(Testate Estate of Adriana Maloto v. Court of
Appeals, G. R. no. L-76464. February 29,
1988).
5. There must be a completion at least of
the subjective phase of the overt act
(Paras, Civil Code III, Succession, 2008, 139).
Who may do the physical destruction?
1. The testator himself; or
2. Another person, acting under the express
direction of the testator and the physical
destruction is done in the presence of the
testator.
Burning: It is necessary that some part
thereof be scorched or burned, that the paper
itself on which the will is written be partially
burned or scorched (Tolentino, Civil Code of the
Philippines Vol. III, succession p. 135).
Tearing: It is enough that the paper is torn;
nothing needs to be torn off entirely; it may
still be together and all legible, but will be
considered revoked (Tolentino, Civil Code of the
Philippines Vol. III, succession p. 135).
Cancelling: A will is well canceled by drawing
lines over it that do not cross each other. It
has held that an indorsement on the back of
the will, ―Cancelled and is null and void,‖
signed by the testator, is sufficient
Bar Operations C ommissions 159
 Purple Notes
Civil Law
cancellation (Tolentino, Civil Code of the
Philippines Vol. III, succession p. 135-136).
Obliteration: Obliteration is effected by
erasing or scrapping off any word or
disposition which the testator tends to revoke
(Jurado, Comments and Jurisprudence on
Succession, 2009 ed., p. 127).
Revocation effected by burning or tearing is
always total as opposed to revocation through
cancelling and obliterating which may be
either total or partial. It is total if directed
against an essential part of the will and partial
if it is directed against a nonessential part of
the will (Jurado, Comments and Jurisprudence on
Succession, 2009 ed. p. 127-126).
Presumption of revocation:
Where a will which cannot be found is shown
to have been in the possession of the testator,
when last seen, the presumption is, in the
absence of other competent evidence, that
the same was cancelled or destroyed. The
same presumption arises where it is shown
that the testator had ready access to the will
and it cannot be found after his death. It will
not be presumed that such will has been
destroyed by any other person without the
knowledge or authority of the testator (Gago v.
Mamuyac G. R. No. 26317. January 29, 1927).
In case of unauthorized destruction:
1. In case of notarial will, parol evidence is
competent to prove the contents or
provisions of the will.
2. In case of holographic will, if there is no
copy left, the will may not be probated
even if the loss or destruction was
unauthorized (Gan v. Yap, 104 Phil. 509). But
if there is a photostatic or Xerox copy left,
then the will may still be probated (Rodelas
v. Aranza, G.R. No. L-58509, December 7,
1982).
The recognition of an illegitimate child does
not lose its legal effect, even though the will
where it was made should be revoked (Art.
834, NCC).
160 Center for Legal Education and Research
Republication and Revival Of Wills
Republication – the re-execution or re-
establishment by a testator of a will which is
void or a will which the testator had once
revoked. It requires a positive act on the part
of the testator (Rabuya, Civil Law Reviewer Vol. I,
2017, p 810).
Two ways of republishing wills:
1. Express- By reproducing the contents of
the will to be republished in a subsequent
will.
2. Implied- By execution of a codicil which
simply referred to the previous will to be
republished (without reproducing its
contents).
If the previous will is void as to form, it can
only be republished by reproducing the
provisions thereof in a subsequent will
(Rabuya, Civil Law Review, Vol. I, 2017, p. 811
citing Art. 835, NCC).
If previous will is void because of other
reasons or had been revoked, it may be
republished either by:
1. By reproducing the contents thereof in a
subsequent will; or
2. By execution of a codicil referring to the
previous will (Rabuya, Civil Law Review, Vol.
I, 2017, p. 811).
Revival – the process or renewing or
restoring the operative force of a will which
had once been revoked by the testator
(Rabuya, Civil Law Review, Vol. I, 2017, p. 811).
Republication Revival
Takes place by an act Takes place by
of the testator operation of law
Corrects extrinsic and Restores a revoked will.
intrinsic defects
Revival in relation to Revocation
Express - If after making a will, the testator
makes a second will expressly revoking the
first, the revocation of the second does not
revive the first will, which can be revived only
by another will or codicil (Art. 837, NCC).

Implied - Where there is merely
inconsistency between two wills, but no
revoking clause, it has been held in common
law that upon the destruction of the second
will the first was revived automatically,
regardless of the intention of the testator,
provided the first will has been preserved,
undestroyed and cancelled (Tolentino, Civil Code
of the Philippines Vol. III, succession p. 145).
Allowance and Disallowance of Wills
Probate - the probate of a will is a special
proceeding for establishing the validity of a
will (Jurado, Comments and Jurisprudence on
Succession, 2009 ed. p.134).
No will shall pass either real or personal
property unless it is proved and allowed in
accordance with the Rules of Court (Art. 838,
NCC).
To prove before some officer or tribunal the:
1. Due execution of will.
2. Identity of the will; and
3. Testamentary capacity of the testator
(Rabuya, Civil Law Reviewer Vol.1, 2017, p.
814).
Kinds of probate proceedings:
1. Ante Mortem – Probate during the
lifetime of the testator. But even after the
ante mortem probate, the will may still be
revoked by the testator.
2. Post Mortem – Probate after the
testator‘s death (Rabuya, Civil Law Reviewer
Vol. I, 2017, p. 819).
Probate is mandatory, thus:
1. Estoppel is not applicable.
2. There can be no valid partition among the
heirs until after the will has been probated
(Rabuya, Civil Law Reviewer Vol. I, 2017, p.
813).
Who may institute
Any executor, devisee, or legatee named in a
will, or any other person interested in the
estate, may at any time after the death of the
Purple Notes 2018
Civil Law
testator, petition the court, having jurisdiction
to have the will allowed, whether the same be
in his possession or not, or is lost or destroyed
(Rule 76, Sec. 1, Rules of Court).
Issues to be resolved in probate
proceedings.
General rule: Probate proceedings are
limited to pass only upon the extrinsic validity
of the will sought to be probated (Rabuya, Civil
Law Review, Vol. I, 2017, p. 815 citing Reyes v.
CA, G.R. No. 12099, October 30, 1997).
Exceptions: Issues affecting the intrinsic
validity were allowed to be passed upon –
1. When the defect of the will is apparent on
its face and the probate of the will
become a useless ceremony if it is
intrinsically invalid (Nepomuceno v. CA, G.R.
No. L-62952, October 9, 1985);
2. Because practical considerations
demanded it as when there is preterition
of heirs or the testamentary provisions
are of doubtful legality (Balanay v. Martinez,
G.R. No. L-39247, June 27, 1975);
3. Where the parties agree on the intrinsic
validity and settles only the question of
whether the testator, being of sound
mind, freely executed it in accordance
with the formalities prescribed by law;
(Valera v. Inserto G.R. No. L-56504, May 7,
1987)
4. When the provisions are unusual and of
dubious legality, the Court may pass upon
the will‘s intrinsic validity even before its
formal validity had been established
because the probate of a will might
become an idle ceremony if on its face it
appears to be intrinsically void (Balanay v.
Martinez, G.R. No. L-39247, June 27, 1975); or
5. When the instrument presented for
probate is denominated as a donation
mortis causa the issues of whether said
instrument is a donation mortis causa or
in fact a donation inter vivos, may be
passed by the probate court (Del Rosario v
Ferrer, G.R. No. 187056, September 20, 2010).
Bar Operations C ommissions 161
 Purple Notes
Civil Law
Witnesses to Probate
Probate of Notarial wills
1. If the will is uncontested - court may
grant allowance thereof, on the testimony
of one of the subscribing witnesses only,
if such witness testifies that the will was
executed as required by the law (Tolentino,
Civil Code of the Philippines Vol. III,
Succession p. 153).
2. If contested - all the subscribing
witnesses and the notary public who are
in the Philippines, and not insane, must
be produced and examined, and the
death absence, or insanity or any of them
must be satisfactorily shown to the court.
In case of death of the subscribing
witnesses, the court may admit the
testimony of other witnesses to prove the
sanity of the testator, and the due
execution of the will (Tolentino, Civil Code of
the Philippines Vol. III, Succession p. 153).
Probate of Holographic wills
1. If the will is uncontested - it shall be
necessary that at least one witness who
knows the handwriting and signature of
the testator explicitly declare that the will
and the signature are in the handwriting
of the testator.
2. If the will is contested - at least three
witnesses who know the handwriting of
the decedent shall be required. In the
absence of any such witnesses, or the
court deems it necessary, expert
testimony may be resorted to.
The witnesses so presented do not need to
have seen the execution of the holographic
will. They may be mistaken in their opinion of
the handwriting, or they may deliberately lie
in affirming it is in the testator‘s hand.
However, the oppositor may present other
witnesses who also know the testator‘s
handwriting, or some expert witnesses, who
after comparing the will with other writings or
letters of the deceased have come to the
conclusion that such will has not been written
by the hand of the deceased (Gan v Yap, No. L-
12190. August 30, 1958).
162 Center for Legal Education and Research
The will shall be proved as a lost or
destroyed will if:
1. The execution and validity of the will be
established;
2. The will is in existence at the time of the
death of the testator, or is shown to have
been fraudulently or accidentally
destroyed in the lifetime of the testator
without his knowledge
3. Its provisions are clearly and distinctly
proved by at least 2 credible witnesses
(Sec. 6, Rule 77, ROC).
A photostatic or Xerox copy of a lost or
destroyed will is admissible; comparison can
be made with standard writings of the
testators (Tolentino, Civil Code of the Philippines
Vol. III, Succession p. 153).
Effect of probate of Wills:
1. Probate proceedings are in rem and
mandatory. If allowed, it becomes
conclusive as to its extrinsic validity which
provides that:
a. The testator was of sound mind when
he executed the will;
b. Testator was not acting under duress
or fraud; his consent was not vitiated;
c. The will was executed in accordance
with the formalities required by law;
and
d. The will is genuine and not forged.
2. Question regarding the intrinsic validity of
the will may still be raised.
3. Subject to appeal but once final, it
becomes conclusive (Rabuya, Civil Law
Reviewer Vol. 1, 2017, p. 817-819).
The probate of a will by the probate court
having jurisdiction thereof is usually
considered as conclusive as to its due
execution and validity, and is also conclusive
that the testator was of sound and disposing
mind at the time when he executed the will,
and was not acting under duress, menace,
fraud, or undue influence, and that the will is
genuine and not a forgery (Mercado v. Santos,
G.R. No. 45629, September 22, 1938).

Grounds for the disallowance of wills:
1. Formalities required by law have not been
complied with;
2. Testator was insane or mentally incapable
of making a will, at the time of its
execution;
3. Will was executed through force or under
duress, or the influence of fear, or
threats;
4. It was procured by undue and improper
pressure and influence, on the part of the
beneficiary or of some other person;
5. Signature of the testator was procured by
fraud (Art. 839, NCC);
6. Testator acted by mistake or did not
intend that the instrument he signed
should be his last will at the time of
affixing his signature thereto.
7. Testator was below 18 years of age at the
time of the execution of the will (Art. 797,
NCC).
The enumeration is exclusive. They either
make the will void or valid. There is no such
thing as a voidable will.
Violence or intimidation
Serious or irresistible force is employed and
there is intimidation.
Fraud
If by misrepresentation and deception, the
testator is led into making a will different from
what he would have made but for the
misrepresentation and deception (Jurado,
Comments and Jurisprudence on Succession, 2009,
p. 157).
Mistake
Generally known as mistake in execution
(Jurado, Comments and Jurisprudence on
Succession, 2009 p. 158).
Undue pressure and influence
To be sufficient to avoid a will, the influence
exerted must be of a kind that so overpowers
and subjugates the mind of the testator as to
destroy his free agency and make him express
Purple Notes 2018
Civil Law
the will of another rather than his own; that
the exercise of improper pressure and undue
influence must be supported by substantial
evidence that it was actually exercised; that
the burden is on the person challenging that
will to show that such influence was exerted
at the time of its execution; that mere general
or reasonable influence is not sufficient to
invalidate a will; nor is moderate and
reasonable solicitation and entreaty addressed
to the testator. or omission of relatives, not
forced heirs, evidence of undue influence
(Pascual v. De la Cruz, G.R. No. L-24819.,May 30,
1969).
Allegations of fraud and undue influence are
mutually repugnant and exclude each other;
their joining as grounds for opposing probate
shows absence of definite evidence against
the validity of the will (Icasiano v. Icasiano G.R.
No. L-18979., une 30, 1964).
Effect of Disallowance
If any of the above grounds for disallowance
is proved, the will shall be set aside as void
(Rabuya, Civil Law Reviewer Vol. I, 2017, p 820).
Ratification
When a will is void because of non-compliance
with the formalities prescribed by law,
ratification is not possible. The testator should
republish it.
When the will is executed through violence,
intimidation, undue influence, fraud or
mistake, since we cannot exactly say that the
will is void or inexistent, ratification is possible
(Jurado, Comments and Jurisprudence on
Succession, 2009 ed., p. 158-159).
Difference between Revocation and
Disallowance
Revocation Disallowance
Voluntary act of the Express deprivation of a
testator compulsory heir of his
legitime
With or without cause Must always be for a
legal cause
May be partial or total General Rule: Always
total
Bar Operations C ommissions 163
 Purple Notes
Civil Law
Exception: When the Extent of Freedom of Disposition
ground of fraud or
undue influence, for 1. No Compulsory Heirs – May dispose by
example, affects only will all of his assets or any part of it in
certain portions of the
favor of any person having the capacity to
will
(Paras, Civil Code III, Succession, p. 194)
succeed (Art. 842 [1], NCC).

2. With Compulsory Heirs – May dispose

2. INSTITUTION OF HEIRS
of his estate provided he does not
contravene the provisions of the Civil
An act by virtue of which a testator designates
Code with regard to the legitime of said
in his will the person or persons who will
heirs (Art. 842 [2], NCC) (Rabuya, Civil Law
succeed him in his property and transmissible
Reviewer Vol. I, 2017, p 821 -822).
rights and obligation (Art. 840, NCC).
How Designation is made:
However, a will shall still be valid even though
it should not contain an institution of heir, or
General Rule: Heir must be designated by
such institution should not comprise the entire
his name and surname (Art. 843, NCC).
estate, and even though the person so
instituted should not accept the inheritance or
Qualification: Even when the name is
should be incapacitated to succeed (Art. 841,
omitted but testator has designated the heir
NCC).
in such a manner that there can be no doubt
as to who has been instituted, the institution
Effect of Lack of Institution
is valid (Art. 843 [2], NCC).
1. In case of no institution of heir:
1. If two or more persons have same
names:
Rule: A will shall be valid even though it
a. Testator must indicate some
should not contain an institution of heir or
circumstance by which the instituted
even if the institution does not comprise the
heir may be known (Art. 843, NCC);
entire estate (Art. 841 [1], NCC).
b. If no such circumstance has been
provided, ambiguity may be resolved
Effect: If there is no institution of heir (which
by extrinsic evidence (other than the
includes the designation of devisees and
oral declaration of the testator as to
legatees), the estate shall pass to the legal
his intention) (Art. 789, NCC).
heirs by intestate succession. Likewise, if the
c. If there is similarity of circumstance,
institution does not comprise the entire
ambiguity may be resolved by
estate, the remainder of the estate shall pass
extrinsic evidence (other than the oral
to the legal heirs (Art. 841 [2], NCC).
declaration of the testator as to his
intention) (Art. 844 [1], NCC).
2. In case of repudiation or incapacity:
d. If there is similarity of circumstance
and the ambiguity cannot be resolved
Rule: A will shall still be valid even though
through the use of other proof and
the person so instituted should not accept the
the person instituted cannot still be
inheritance or should be incapacitated to
identified, none shall be heir (Art. 844
succeed (Art. 841 [1], NCC).
[2], NCC).
Effect: In such a case, the testamentary
2. Disposition in favor of unknown person is
dispositions made in accordance with law shall
void, except:
be complied with and the remainder of the
a. If the identity can become certain by
estate shall pass to the legal heirs (Art. 841 [2],
NCC) .
some event or circumstance provided
in the will; or

164 Center for Legal Education and Research


b. It is important that the event or
circumstance should appear in the will
itself; it cannot be shown by extrinsic
evidence, either oral or documentary
(Rabuya, Civil Law Reviewer I, 2017 Ed. p. 825
citing III Tolentino, Civil Code of the
Philippines, 176 1992 Ed).
c. In order to be capacitated, the heir,
devisee or legatee is required to be living
at the time of the death of the testator
(Art. 1025, NCC).
d. A disposition in favor of a definite class or
group of persons (Art. 845, NCC).
Designation of Shares:
If the heirs are instituted without designation
of shares, they shall inherit in equal parts (Art.
846, NCC).
It should be understood as referring to heirs
who are of the same class or juridical
condition, and to the portion of the
inheritance of which the testator can freely
dispose (Tolentino, Civil Code of the Philippines
Vol. III, succession p. 178).
The legitime must first be satisfied before the
instituted heirs without designation shall
inherit in equal shares.
Individual and Collective Institution: If
some are individually designated and others
collectively, those collectively designated are
considered as individually instituted unless it
clearly appears that the intention of the
testator was otherwise (Art. 847, NCC).
E.g. ―I designate as my heirs A and B and the
children of C.‖ - The children of C shall be
considered as individually instituted unless the
testator clearly intended otherwise.
Institution of Brothers and Sisters: If
instituted heirs are brothers and sisters, some
of full blood and some of half-blood, the
inheritance shall be distributed equally unless
a different intention appears (Art. 848, NCC).
In intestate succession, brothers and sisters
of the full blood shall be entitled to a share
double that of the brothers and sisters of the
half-blood (Art. 1006, NCC).
Purple Notes 2018
Civil Law
Instituting a Person and the Latter’s
Children: When the testator calls to the
succession a person and his children, they are
all deemed to have been instituted
simultaneously and not successively (Art. 849,
NCC).
If the testator institutes ―A‖ and his five
children as his heirs with respect to the
disposable free portion of the inheritance, it is
clear that such disposable portion shall be
divided equally among ―A‖ and the five
children (Jurado, Comments and Jurisprudence on
Succession, 2009 ed. p.169).
Statement of False Cause (Art. 850, NCC)
General rule: Statement of a false cause for
the institution of an heir is considered not
written.
Exception: Unless it appears from the will
that the testator would not have made such
institution if he had known the falsity of such
cause (Art. 850, NCC).
Requisites for the Annulment of
Institution by Reason of False Cause:
1. The cause is stated in the will;
2. It is shown to be false; and
3. It appears on the will that the testator
would not have made the institution if he
had known the falsity of the cause (Art.
850, NCC).
Institution in aliquot parts
Institution of Only One Heir: If the
testator has instituted only one heir, and the
institution is limited to an aliquot part of the
inheritance, legal succession takes place with
respect to the remainder of the estate (Art.
851, NCC).
E.g. Testator in his will wrote: ―I hereby
institute my child, ―A‖ as my heir who will
inherit 3/4 of my estate.‖ – Here, intestate
succession takes place to the remaining ¼ of
the estate.
Institution of Several Heirs: The same rule
applies, if the testator has instituted several
Bar Operations C ommissions 165
 Purple Notes
Civil Law
heirs each being limited to an aliquot part,
and all the parts do not cover the whole
inheritance.
E.g. Testator in his will wrote: ―I hereby
institute my children ―A,‖ ―B‖ and ―C‖ as my
heirs who will inherit 1/4, 1/8, and 1/8,
respectively, of my estate.‖ – Here, intestate
succession takes place to the remaining 1/2 of
the estate.
However, if it was the intention of the testator
that the instituted heirs should become sole
heirs to the whole estate, or the whole free
portion, as the case may be, and each of
them has been instituted to an aliquot part of
the inheritance and their aliquot parts
together do not cover the whole inheritance,
or the whole free portion, each shall be
increased proportionally (Art. 852, NCC).
If each of the instituted heirs has been given
an aliquot part of the inheritance, and the
parts together exceed the whole inheritance,
or the whole free portion as the case may be,
each part shall be reduced proportionally
(Art. 853, NCC).
Preterition
The preterition or omission of one, some, or
all of the compulsory heirs in the direct line,
whether living at the time of the execution of
the will or born after the death of the testator,
shall annul the institution of heir; but the
devises and legacies shall be valid insofar as
they are not inofficious. If the omitted
compulsory heirs should die before the
testator, the institution shall be effectual,
without prejudice to the right of
representation (Art. 854, NCC).
Requisites:
a. The heir omitted must be a
compulsory heir in the direct line
(Jurado, Comments and Jurisprudence on
Succession, 2009 ed. p.174);
Even if the surviving spouse is a
compulsory heir, there is no preterition even
if she is omitted from the inheritance, for she
is not in the direct line.
166 Center for Legal Education and Research
Preterition applies also to legally adopted
child. Under Article 39 of P.D. No. 603, known
as the Child and Youth Welfare Code,
adoption gives to the adopted person the
same rights and duties as if he were a
legitimate child of the adopter and makes the
adopted person a legal heir of the adopter
(Acain v. Intermediate Appellate Court Gr. No. L-
72706.,October 27,1987).
All persons who are compulsory heirs are
included within its scope, including
illegitimate children and illegitimate
father or mother (Tolentino, Civil Code of the
Philippines Vol. III, Succession p. 189).
b. The omission must be complete and
total in character in such a way that
the omitted heir does not and has
not received anything at all from the
testator by any title whatsoever and
(Jurado, Comments and Jurisprudence on
Succession, 2009 ed. p.174);
There is total omission, when the testator
does not disinherit the heir, but leaves him
nothing of the hereditary estate, whether or
not he is mentioned in the will (Tolentino, Civil
Code of the Philippines Vol. III, Succession, p.188).
If the omission of the heir is intentional, it is
not a case of preterition but of a defective
disinheritance (Rabuya, Civil Law Reviewer Vol. 1,
2017, p. 833).
If the heir was given a share, even if very
small or minimal, there is no preterition. All he
has to do is ask for the completion of his
share (Reyes v. Barreto-Datu,, G.R. No. L-17818,
January 25, 1967.
c. The compulsory heir omitted should
survive the testator (Jurado, Comments
and Jurisprudence on Succession, 2009 ed.
p.174).
E.g. Testator with an estate of 10M was
survived by his legitimate children, A, B and C,
and wife, W. During his lifetime, he gave a
donation to B worth 2M.
1. If Testator institutes B, C and W as his
sole heirs, is there preterition?
 Purple Notes 2018
Civil Law
Answer: Yes, A was omitted. ―A‖ being a child Step 3: Distribute the remaining free portion
is a compulsory heir in the direct line. among the heirs
Amount of
Heir Free Portion
2. What if B was omitted? Voluntary Share
Answer: No. B received a donation of 2M from A 10 M less legitime 808,333.33
B and 808,333.33
testator, hence, omission was not complete
C legacy(6,666,666.6 808,333.33
and total in character. 7 + 100,000.00) =
W 808,333.33
3,233,333.24
3. What if wife W was omitted? Divide Free Portion
Answer: No. Wife W, though a compulsory Equally by 4
heir, is not a compulsory heir in the direct Step 4: Get total share
line. A 2,475,000.00
Legitime plus
Effects of Preterition: B Voluntary Share 2,475,000.00
(Hence,
1. It annuls entirely the institution of heirs. C 1,666,666.67 + 2,475,000.00
2. But legacies and devises shall be valid 808,333.33)
insofar as they are not inofficious (Art. W 2,475,000.00
854, NCC).
F Legacy 100,000.00
Total 10,000,000.00
E.g. Testator with an estate of 10M was
survived by his legitimate children, A, B and C,
In defective disinheritance, there is no
and wife, W. He instituted his children A and
annulment of the institution of heirs but the
B as well as wife W as sole heirs. He also left disinherited heir shall only be entitled to the
a legacy of 100K to his beloved friend, F.
restoration of anything to which he is entitled
by operation of law.
1. Is there preterition?
2. Distribute the estate. Preterition vs. Disinheritance
Answer to No. 1: Yes, child C, a compulsory Preterition Disinheritance
heir in the direct line was omitted. Omission in the Deprivation of a
testator‘s will of any of compulsory heir of his
Answer to No. 2: The institution of A, B an W the compulsory heirs in legitime through a
will be annulled. Their shares will be the direct line testamentary disposition
computed based on their legitimes and the Presumed to be Always voluntary
free portion shall be divided equally among A, involuntary
B, C and W. Legacy to F will be satisfied, if it Results to the Results to the
is not inofficious and from the free portion, if annulment of the annulment of the
institution of heirs in institution of heirs but
any. Hence:
toto but devises and only in so far as it may
legacies remain valid in prejudice the person
Step 1: Satisfy respective legitimes so far as they are not disinherited
Heir Legitime Amount of Legitime in officious
A 1/2 1,666,666.67 (Rabuya, Civil Law Reviewer Vol. I, 2017, p 832-
B (Hence, 5M divided 1,666,666.67 836)
C by 3) 1,666,666.67
W Same as 1 child 1,666,666.67 The share of a child or descendant omitted in
Total 6,666,666.67 a will must first be taken from the part of the
Step 2: Satisfy legacy from free portion estate not disposed of by the will, if any; if
F Total of legitime is 100,000.00
that is not sufficient, so much as may be
less than 10M,
necessary must be taken proportionally from
hence, legacy can
be satisfied the shares of other compulsory heirs (Art. 855,
Total 100,000.00 NCC).

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Effect of Predecease, Incapacity and
Repudiation
A voluntary heir who dies before the
testator transmits nothing to his heirs (Art.
856, NCC).
A compulsory heir who dies before the
testator, a person incapacitated to succeed,
and one who renounces the inheritance, shall
transmit no right to his own heirs except in
cases expressly provided for in this Code (Art.
856, NCC).
Right of Representation in Testamentary
Succession
When Allowed: Representation is allowed
with respect to the legitime, in case of a
compulsory heir in the descending line (Art.
972, NCC) when such heir dies before the
testator (predecease) or is incapacitated to
succeed or validly disinherited.
Not Allowed: In case of heirs who
repudiated their share (Art. 977, NCC).
A voluntary heir cannot likewise be
represented.
From whom the representative inherits:
In case of representation, the representative
inherits not from the person represented but
from the one whom the person represented
would have succeeded (Art. 971, NCC).
3. SUBSTITUTION OF HEIRS
It is the designation by the testator of a
person or persons to take the place of the heir
or heirs first instituted (Tolentino, Civil Code of
the Philippines Vol. III, p.201).
Substitution is the appointment of another
heir so that he may enter into the inheritance
in default of the heir originally instituted
(Art.857, NCC).
Effects of substitution
General Rule: The substitute is subrogated
in the rights of the heir (Art. 862, NCC).
168 Center for Legal Education and Research
Exceptions:
1. When the testator expressly provided the
contrary.
2. When the charges or conditions are
personally applicable only to the heir (Art.
862, NCC).
Kinds of Substitution
1. Simple — When a testator designates
one or more persons to substitute the heir
or heirs instituted in case such heir or
heirs should die before him, or should not
wish, or should be incapacitated to accept
the inheritance (Art. 859, NCC).
Simple substitution is extinguished:
a. When the substitute predeceases the
testator;
b. When the substitute is incapacitated;
c. When the substitute renounces the
inheritance;
d. When the institution of heirs is annulled;
e. When the institution or substitution is
revoked by the testator; and
f. When a will is void or disallowed or
revoked (Paras, Civil Code of the Philippines
Annotated Wills and Succession, 2016, p.233-
234).
Variations of Simple substitution
a. Brief – when 2 or more persons are
designated to substitute for one heir (Art.
860, NCC).
b. Compendious – when there is only one
designated to substitute for 2 or more
heirs (Art. 860, NCC).
If the substitutes named for any or all of
several heirs instituted, substitution will take
place even if only one renounces the
inheritance, but only with respect to the share
of such instituted heir (Tolentino, Civil Code of
the Philippines Vol. III, Succession, p. 207).
c. Reciprocal – when two or more persons
are reciprocally substitutes for each other
(Art. 861, NCC).

d. Fideicommissary – When the testator
leaves his property to one person with the
express charge that it be transmitted to
another or others (Art. 863, NCC).
Requisites: (Art. 863-865, NCC)
i. A first heir called primarily to the
enjoyment of the estate (called
fiduciary);
Recognized as an instituted heir, and is
entitled to the enjoyment of property but he
cannot alienate it (Tolentino, Civil Code of the
Philippines Vol. III, Succession, p. 210-211).
ii. An obligation clearly imposed upon
the first heir to preserve and
transmit the whole or part of the
estate; and
In the absence of an obligation on the part of
the first heir to preserve the property for the
second heir, there is no fideicommissary
substitution (PCIB v. Escolin. G.R. Nos. L-27860
and L-27896, March 29, 1974).
iii. A second heir to whom the property
is transmitted by the first heir (called
the fideicommissary).
Persons conceived are considered living,
provided they are subsequently born with the
requisites for civil personality (Tolentino, Civil
Code of the Philippines Vol. III, Succession, p.
213).
The second heir shall acquire a right to the
succession from the time of the testator‘s
death, even though he should die before the
fiduciary. The right to second heirs shall pass
to his heirs (Art. 866, NCC).
Limitations upon Fideicommissary
Substitution—
1. The substitution must not go beyond one
degree from the heir originally instituted.
One degree means one generation (Art.
863, NCC). It follows that the
fideicommissary can only be either a
parent or child of the first heir (Rabuya,
Civil Law Reviewer I, 2017 Ed. p. 840 citing
Purple Notes 2018
Civil Law
Ramirez v. Vda. de Ramirez, G.R. No. L-27952,
February 15, 1982).
2. Both the fiduciary and fideicommissary
must be living at the time of death of
testator (Art. 863, NCC).
3. Substitution must not burden the legitime
(Art. 864, NCC).
4. Substitution must be expressly made (Art.
865, NCC).
Effects of Valid Fideicommissary
Substitution:
1. The right of the first heir with respect to
the property is similar to that of a
usufructuary. He is obliged to preserve
and transmit the inherited property to the
second heir.
2. The time of transmission depends upon
the intention of the testator. If not
provided for, it is understood to be at the
time of death of the first heir.
A provision whereby the testator leaves to a
person the whole or part of the inheritance,
and to another the usufruct shall be valid. If
he gives the usufruct to various persons, not
simultaneously, but successively the
provisions of Art. 863 shall apply (Art. 869,
NCC).
Void Fideicommissary Substitution (Art.
867, NCC)
1. Fideicommissary substitution not made in
an express manner;
2. Provisions which contain a perpetual
probation to alienate, and even a
temporary one beyond the time limit fixed
in Art. 863;
3. Those which impose upon the heir the
charge of paying to various persons
successively beyond the limits prescribed
in Art. 863, e.g. a certain income or
pension;
4. Those which leave to a person the whole
or part of the hereditary property in order
that he may apply or invest the same
according to secret instructions
communicated to him by the testator.
Bar Operations C ommissions 169
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Civil Law
5. The dispositions of the testator declaring
all part of the estate inalienable for more
than 20 years are void (Art. 870, NCC).
Effect of Void Fideicommissary
Substitution
If the foregoing limitations are violated, the
fideicommissary substitution is considered
as not written but the validity of the
institution of the first heir is not
affected.
Hence, the first heir acquires the inheritance
without the obligation of transmitting the
same to the second heir.
4. CONDITIONAL TESTAMENTARY
DISPOSITIONS AND TESTAMENTARY
DISPOSITIONS WITH A TERM
Conditional Testamentary Disposition –
when the acquisition or extinguishment of
successional rights is made to depend upon
the happening or non-happening of a future
and uncertain event (Rabuya, Civil Law
Reviewer, Vol. I, 2017, p 849).
The institution of an heir may be made
conditionally, or for a certain purpose or cause
(Art. 871, NCC).
Conditions imposed by the testator upon the
heirs shall be governed by the rules
established for conditional obligations in all
matters not provided for by this Sec. (Art. 88,
NCC).
General rule – Testator is free to impose any
condition, mode or term on testamentary
dispositions.
Exception – But the testator cannot impose
upon the legitime any burden, encumbrance,
charge, term, condition or substitution of any
kind whatsoever. Should he do so, the same
is considered as not imposed (Art. 872, NCC).
Exception to the Exception: The testator
can forbid the partition of the inheritance,
including the legitime, for not more than 20
years (Art. 1083, NCC).
170 Center for Legal Education and Research
Impossible Conditions
1. Effect – Impossible conditions and those
contrary to law or good customs in
testamentary dispositions shall be
considered as not imposed and shall not
affect the validity of the disposition (Art.
873, NCC).
2. Condition Not to Marry
General Rule: An absolute prohibition not to
contract a first or subsequent marriage is not
a valid condition. It shall be considered as not
written.
However, if the prohibition is not absolute and
is relative as to persons, time, or place, such
condition is valid and must be complied with
unless the testator practically renders it
impossible for the heir to marry at all (Rabuya,
Civil Law Reviewer I, 2017 Ed. p. 855).
Exception: If the prohibition is imposed on
the widow or widower of the deceased spouse
or the latter‘s ascendants or descendants.
However, this condition may not be validly
imposed on the legitime.
In this case, the condition is resolutory in
character. The widow or widower immediately
acquires successional rights but is subject to
extinguishment upon violation of the
prohibition to marry.
3. Disposition Captatoria (Art. 875, NCC)
One which imposes as condition that the heir
shall make some provision in his will in favor
of the testator or of any other person.
Such disposition is void, without affecting the
other provisions of the will.
Kinds of Conditions
1. With regard to the cause upon which
their fulfillment depends:
Potestative Casual Mixed
One which One that does It depends
depends not depend jointly upon
 Purple Notes 2018
Civil Law
exclusively upon upon the will the will of the 2. With regard to their effects
the will of the of the heir, heir, devisee,
heir, devisee, or devisee, or or legatee and a. Suspensive Condition -
legatee, and legatee, but upon chance Successional rights are transmitted
must be upon the and/or the will
only upon the happening of the
performed by chance and/or of a third
him personally. upon the will person. condition, although the effects thereof
(Tolentino, Civil of a third (Tolentino, retroact to the moment of the death
Code of the person. Civil Code of of the testator. Hence –
Philippines Vol. (Tolentino, the Philippines
III, succession, Civil Code of Vol. III, 1. Capacity of heir to succeed: must exist
p. 234) the Philippines succession, p. not only at the time of the testator‘s
Vol. III, 234) death, but also at the time of the
succession, p. happening of the condition (Art. 1034,
234) NCC).
It must be It shall be sufficient that it
fulfilled by him as happens or be fulfilled at any
2. Effect of death of conditional heir
soon as he learns time before or after the death before the happening of the
of the testator‘s of the testator, unless he has condition: although he dies after the
death. provided otherwise. testator‘s death, his capacity to succeed
terminates and thus renders the
This rule shall Should it have existed or should testamentary disposition inoperative and
not apply when it have been fulfilled at the time without effect (Rabuya, Civil Law Reviewer
the condition, the will was executed and the Vol. 1, 2017, 850).
already complied testator was unaware thereof, it
with cannot be shall be deemed complied with.
3. After the death of the testator but
fulfilled again.
(Art. 876) If he had knowledge thereof,
prior to the happening of the
the condition shall be condition:
considered fulfilled only when it
is of such nature that it can no a. The inheritance or property involved
longer exist or be complied with shall be placed under
again (Art. 877) administration.
b. If it becomes certain that the condition
Negative Potestative Condition (Art. 879, will not be fulfilled, the same must be
NCC) delivered to the substitute (if one is
provided), or to a co-heir (if accretion is
Potestative Conditions which are negative in proper) or to the legal heirs (Rabuya,
character (Jurado, Comments and Jurisprudence supra, at 851).
on Succession, 2009 ed. p. 224).
If the heir be instituted under a suspensive
The heir shall comply by giving a security that term or condition, the estate shall be placed
he will not do or give that which has been under administration until the condition is
prohibited by the testator, and that in case of fulfilled, or until it becomes certain that it
contravention he will return whatever he may cannot be fulfilled, or until arrival of the term
have received, together with its fruits and (Art. 880, NCC).
interest.
The law governing administration is the Rules
CAUCION MUCIANA of Court (Art. 881, NCC).

Such security or bond is known as ―caucion b. Resolutory Condition - Successional

muciana‖ which will answer for his violation rights are acquired immediately upon the
in case he cannot return what he may have death of the testator but subject to
received (Rabuya, Civil Law Reviewer Vol. 1, 2017, extinction upon the happening of the
p. 853).

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 Purple Notes
Civil Law
condition (Art. 1181 in relation to Art. 884, Resolutory Term - The inheritance is
NCC). delivered immediately to the instituted heir,
who holds it until the arrival of the period
If the condition is fulfilled, the instituted heir (Tolentino, Civil Code of the Philippines Vol. III,
loses his right over the inheritance and the succession, p. 236).
same shall be passed on to the substitute (if
one is provided), or to a co-heir (if accretion is As a consequence, the inheritance devise or
proper) or to the legal heirs (Rabuya, supra, at legacy shall pass to the legal heirs of the
851) . testator (Jurado, Comments and Jurisprudence on
Succession, 2009 ed., p.232). In such situation,
Condition v. Term the instituted heir, devise or legacy is not
required to give a security or bond.
Condition Term
A condition is an uncertain A term is sure to Modal Institution
event which may or may happen or to arrive,
not happen (Tolentino, even if the exact date
Civil Code of the of such happening or
Modal institution - the institution of an heir
Philippines Vol. III, arrival may be made for a certain purpose or cause (Art 881
succession, p. 236) uncertain (Tolentino, and 882, NCC).
Civil Code of the
Philippines Vol. III, While a condition suspends, but does not
succession, p. 236) obligate, a mode obligates, but does not
The acquisition of the The right is already suspend.
right of the heir depends transmitted to the heir In case of doubt, the institution, devise or
upon the happening of the upon the death of the legacy must be considered as modal (Jurado,
condition, such that if the testator (Tolentino, Comments and Jurisprudence on Succession, 2009
condition does not Civil Code of the ed., p. 229).
happen, the heir does not Philippines Vol. III,
succeed. (Tolentino, Civil succession, p.236)
1. In a modal institution, the testator states:
Code of the Philippines
Vol. III, succession, p. (1) the object of the institution, or (2) the
236) purpose or application of the property left
by the testator, or (3) the charge imposed
Art. 885 - The designation of the day or time by him upon the heir.
when the effects of the institution of an heir 2. As a rule, an obligation imposed upon an
shall commence or cease shall be valid. heir is not considered a condition unless it
clearly appears that such was the
In both cases, the legal heir shall be intention of the testator.
considered as called to succession until the 3. Effect of mode: The instituted heir can
arrival of the period or its expiration. But in claim immediately the delivery of the
the first case (commence) he shall not enter inheritance subject to the giving of
into possession of the property until after security or bond for the compliance of his
having given sufficient security, with the obligation. In case of failure to comply
intervention of the instituted heir. with the obligation, the instituted heir
shall be compelled to return whatever he
Suspensive Term - The inheritance can be may have received by virtue of the
delivered to the heir only upon the arrival of institution, together with their fruits and
the term (Tolentino, Civil Code of the Philippines interests (Rabuya, Civil Law Reviewer Vol. 1,
Vol. III, Succession, p. 236). 2017, p. 858).

If the legal heirs cannot file the required bond
or security, then the inheritance or property
shall be placed under administration (Jurado,
Comments and Jurisprudence on Succession, 2009
ed., p. 231).
Constructive Compliance (Art. 883, NCC)
When without the fault of the heir, an
institution referred to in the preceding article
cannot take effect in the exact manner stated

172 Center for Legal Education and Research


by the testator, it shall be complied with in a
manner most analogous to and in conformity
with his wishes.
If the person interested in the condition
should prevent its fulfillment, without the fault
of the heir, the condition shall be determined
to have been complied with.
Both paragraphs are applicable whether the
institution of heirs, devise or legacy is modal
or conditional in character (Jurado, Comments
and Jurisprudence on Succession, 2009 ed., p.
229).
Doctrine of Constructive Compliance
does not apply to casual conditions
Purple Notes 2018
Civil Law
Reason: The heir does not acquire any right
over the same until the death of the testator
(Tolentino, Civil Code of the Philippines Vol. III,
Succession, p. 323).
The compulsory heir may claim the same
upon death of the decedent but they must
bring to collation or whatever they may have
received by virtue of the renunciation or
compromise.
Incomplete legitime
Any compulsory heir to whom the testator has
left by any title less than the legitime
belonging to him may demand the same be
fully satisfied (Art. 906, NCC).

In case of casual conditions, since their Testamentary dispositions that impair or

performance does not depend on the will of diminish the legitime of the compulsory heirs
the heir, devisee or legatee, there must shall be reduced on petition of the same,
always be fulfillment as a fact or actual insofar as they may be inofficious or excessive
compliance (Tolentino, Civil Code of the (Art. 907, NCC).
Philippines Vol. III, Succession, p. 235).
Compulsory heirs - In general, compulsory
5. LEGITIME heirs are those for whom the law has reserved
a portion of the testator‘s estate which is
That part of the testator‘s property which he known as the legitime (Art. 887, NCC)
cannot dispose of because the law has
reserved it for certain heirs, who are therefore Kinds of Compulsory Heirs
called compulsory heirs (Art. 886, NCC).
Legitimate Testator Illegitimate Testator
General Rule: The testator cannot deprive Legitimate children and Legitimate children and
his compulsory heirs of their legitime. Neither descendants descendants
can he impose upon the same burden, In default of the Illegitimate children
encumbrance, condition, or substitution of any foregoing, legitimate and descendants
kind whatsoever (Art. 904, NCC). parents and ascendants
Surviving spouse In default of the
foregoing, illegitimate
Exceptions:
parents only
Illegitimate children Surviving spouse
1. Valid and effective disinheritance (Art.
915, NCC);
2. The testator may forbid the partition of Legitimate Testator Illegitimate Testator
the inheritance including the legitime for 1. Primary Heirs: Those who have precedence
not more than 20 years (Art. 1083, NCC) and exclude other compulsory heirs
3. Reserva Troncal (Art. 891, NCC)
4. Family Home a. Legitimate a. Legitimate
children and children and
Every renunciation or compromise as descendants - an descendants
regards a future legitime between the adopted child or
person owning it and his compulsory legitimated child falls in
heirs is void (Art. 905, NCC). this category

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2. Secondary Heirs: Those who succeed only in Rules on Donation
the absence of the primary heirs
a. Legitimate parents a. Illegitimate 1. Donations given to children shall be
and ascendants - parents only - charged to their legitime. (Art. 909, NCC).
excluded by legitimate excluded by legitimate 2. Donations made to strangers shall be
children and and illegitimate children charged to the free portion (Art. 909, NCC).
descendants and descendants 3. Donations which an illegitimate child may
3. Concurring: Those who succeed together with have received during the lifetime of his
the primary or the secondary heirs. father or mother, shall be charged to his
a. Surviving spouse – a. Surviving spouse –
legitime (Art. 910, NCC).
the innocent spouse in the innocent spouse in
case of legal separation case of legal separation Donations are subject to reduction in cases
remains to be a remains to be a where they are inofficious or if they exceed
compulsory heir of the compulsory heir of the the disposable portion.
other spouse other spouse
b. Illegitimate b. Illegitimate Amount of Legitime
children children - note that
they become primary LEGEND:
heirs in default of LC Legitimate Children, including adopted and
legitimate children and
legitimated children
descendants thereby
excluding illegitimate LPA Legitimate Parents/Ascendants;
parents IC Illegitimate Children;
(Rabuya, Civil Law Reviewer Vol. 1, 2017, p 860- IP Illegitimate Parents;
875) SS Surviving Spouse
CH Compulsory Heirs
Steps in determining the legitime of FP Free Portion
compulsory heirs (Art. 908)
SURVIVOR LEGITIME NOTES
1. Determination of the gross value of the 1. When compulsory heir/s of the same kind
estate at the time of the death of the survive alone
testator; 1LC ½ of the
2. Determination of all debts and charges whole Whether they survive
which are chargeable against the estate; estate alone or with
3. Determination of the net value of the 2 or more ½, to be concurring CH, Art.
estate by deducting all the debts and LCs divided 888
charges from the gross value of the equally
estate;
LPA ½
4. Collation- or addition of the value of all
donations inter vivos to the net value of
the estate;
5. Determination of the amount of the IP ½ of whole Parents of illegitimate
legitime from the total thus found; estate children are
6. Imputation of the value of all donations compulsory heirs of
inter vivos made to compulsory heirs the latter only in the
against their legitime and of the value of case, when such child
all donations inter vivos made to leaves neither LC, nor
strangers against the disposable free a SS, nor IC. (Art.
portion and restoration to the hereditary 903)
SS ½ of whole Art.900
estate if the donation is inofficious; and
estate 1/3 if marriage is in
7. Distribution of the residue of the estate in articulo mortis and
accordance with the will of the testator. ailing spouse dies
within 3 mos. After
the marriage. But if

174 Center for Legal Education and Research

 Purple Notes 2018
Civil Law
parties have been LPA ½ IC succeed in the ¼
cohabiting as H & W IC ¼ in equal shares,
for more than 5 years Art.896; Note: Share
prior to marriage, SS of IC taken from free
is entitled to ½. portion
LPA ½ Art. 889 and 893
IC ½ of whole Divide equally among SS ¼
estate the IC LPA ½ Art. 899
SS 1/8 - FP
2. When Primary concurs with compulsory IC ¼ - FP
heirs IP Excluded; Children inherit in the
1LC; ½ Art. 888 and 892 Any Child It depends amounts established
SS ¼ whether in the foregoing rules;
Legitime of SS shall the child is
be taken from the FP. legitimate
or not
In case of legal IP ¼ Only the IP are CH.
separation, the SS SS ¼ Other ascendants are
may inherit if it was excluded. Art.903
the deceased who 4. Concurrence among concurring
had given cause for compulsory heirs
the same. The rule is SS 1/3 Art.894
subject to IC 1/3 in
reconciliation equal
LC; ½ of the Art. 888 and 892 (2) portions
whole
SS estate Sample Problem: Testator with an estate of
divided in
1.0M was survived by his 2 LC, 4 ILC, spouse,
equal
portions; 5 siblings and father. (1) Who are the
share of compulsory heirs? (2) What is the legitime of
that equal each?
to a child
Answer:
LC ½, in equal Art. 888 and Art. 176 1. 2 LC, 4 ILC and spouse
IC portions; of FC
½ share of Siblings are not one of the compulsory heirs
each LC
while the testator‘s father being a secondary
1 LC ½ Art.888, 892 (1) and
heir is excluded by the primary heirs.
SS ¼ Art. 176 of the FC
IC ½ of LC
All the concurring CH 2. Legitime of:
get from the free
portion. 2 LC (½): 1.0M x ½ = 500K
The share of the SS 500 / 2 = 250K for each LC
has preference over
that of the IC, whose Spouse (same as 1 LC): 250K
share may suffer
reduction pro rata in
4 ILC (1/2 of 1 LC share): 250K 2 = 125K
case of insufficiency.
LC ½ in equal Art. 892 (2), 897 and
IC proportions 888. Note that 125k multiplied to 4 is 500K, hence,
SS ; the remaining amount of the estate is not
½ of LC; sufficient. In such case, the 4 ILC will suffer a
equal to pro rata reduction, hence -
1LC
3. When secondary concurs with concurring 1.0 M – (500K + 250K) = 250K
compulsory heirs 250K 4 = 62.5K for each ILC

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 Purple Notes
Civil Law
Children and Descendants (Art. 888):
1. Legitimate
This class includes legitimate children or
descendants proper, legitimated children or
descendants, and adopted children (Jurado,
Comments and Jurisprudence on Succession, 2009
ed., p. 236).
Their legitime is ½ of hereditary estate of the
decedent, which is to be distributed equally
among the children.
The decedent may freely dispose the
remaining half, subject to the rights of
illegitimate children and the surviving spouse.
In case of different degrees of the decedent‘s
descendants, the proximity rule should apply.
In every inheritance, the relative nearest in
degree excludes the more distant ones, saving
the right of representation when it properly
takes place (Jurado, Comments and Jurisprudence
on Succession, 2009 ed., p. 243).
2. Illegitimate
The basis for the computation of the legitime
of illegitimate children is the legitime of each
legitimate child. Each illegitimate child is
entitled to ½ of the legitime of a legitimate
child.
Limitations
a. Their filiation must be proved
b. Shares are taken from the free portion
c. If there is a surviving spouse concurring
with legitimate and illegitimate children,
the legitime of the surviving spouse
must first be satisfied before the
legitimes of the illegitimate children.
d. In case the total amount of the legitimes
of all illegitimate children exceeds what
remains of the free portion after
deducting the legitime of the surviving
spouse, they are subject to reduction
(Tolentino, Civil Code of the Philippines Vol.
III, Succession, p. 312).
176 Center for Legal Education and Research
Parents and Ascendants:
Their legitime is ½ of hereditary estate of
their children and descendant (Art. 889, NCC).
In case of an in illegitimate parent
The illegitimate parents of the deceased are
compulsory heirs only when the latter does
not have legitimate or illegitimate children or
descendants (Tolentino, Civil Code of the
Philippines Vol. III, Succession, p. 321).
The presence of surviving spouse of the
deceased, however, does not exclude
illegitimate parent as a compulsory heir
(Tolentino, Civil Code of the Philippines Vol. III,
Succession, p. 321). The legitime is ¼ for the
illegitimate parent and ¼ for the surviving
spouse.
In case of an Adopting Parents
The adoption shall give the adopter and
adoptee reciprocal rights and obligations
arising from the relationship of parent and
child, including but not limited to: xxx ii. the
rights of the adopter and adoptee to be legal
and compulsory heirs of each other (Sec. 33,
Art. VI, Rules and Regulations to Implement
Domestic Adoption Act of 1998).
Shares in Legitime (Art. 890, NCC)
If both mother and father survive, they divide
the legitime equally; but if only one of them
survives, he gets the entire legitime (Tolentino,
Civil Code of the Philippines Vol. III, Succession, p.
266).
Surviving Spouse
The condition of being a surviving spouse
requires that there should have been a valid
marriage between the deceased and the
survivor (Tolentino, Civil Code of the Philippines
Vol. III, Succession, p. 257).
The marriage must be subsisting at the time
of the death of one party, in order that the
survivor can be called a widow or widower
and thus be entitled to a legitime (Tolentino,
Civil Code of the Philippines Vol. III, Succession, p.
259).

Art. 900
General Rule: If the only survivor is the
spouse, the legitime is ½ of hereditary estate
of the decedent.
Exception: If marriage is in articulo mortis,
and the testator died within 3 months form
marriage, the legitime is 1/3.
Exception to the Exception: When they
have been living as husband and wife for
more than 5 years. Legitime is ½.
Effect of legal separation
1. The widow or widower will be entitled to
succeed only when he or she is the
innocent spouse.
2. If death should occur during the
pendency of the legal separation
proceedings, the result of the suit should
be awaited.
3. To exclude from legitime the guilty
spouse.
4. If after such reconciliation, one of the
spouses should die, the survivor gets his
or her legitime, regardless of whether he
or she is the guilty party Tolentino, Civil
Code of the Philippines Vol. III, Succession, p.
259-260).
Reserva Troncal or Reserva Lineal
GF=grandfather, F=father, M=Mother
The reservation by virtue of which an
ascendant (called reservista) who inherits by
operation of law from his descendant (called
propositus) any property which the latter may
have acquired by gratuitous title from another
ascendant, or a brother or sister, is obliged to
reserve such property (called reserve) for the
Purple Notes 2018
Civil Law
benefit of relatives (called reservatarios) who
are within the third degree and who belong to
the same line from which said property came
(Art. 891, NCC).
Purpose:
1. To reserve certain property in favor of
certain relatives (Tolentino, Civil Code of the
Philippines Vol. III, Succession, p. 270).
2. To prevent persons who are strangers to
the family from acquiring by some chance
or accident, property which would have
remained with said family.
Requisites of Reserva Troncal: (Art. 891;
Chua v. CFI of Negros Occidental, Branch V, G.R.
No. L-29901, August 31, 1977)
1. Property previously acquired by gratuitous
title (e.g. donation or succession) by the
descendant (propositus) from another
ascendant or from a brother or sister
(origin);
2. Descendant-praepositus should have died
without any legitimate issue;
3. Property should have been acquired by
operation of law (intestate or compulsory
succession) by an ascendant (reservista)
from the descendant-praepositus; and
4. There are living relatives within the third
degree counted from the descendant-
praepositus and belonging to the same
line from where the property originally
came (reservatarios).
In order that the reserve will exist, all the
foregoing persons should be legitimately
related.
Three lines of Transmission in Reserva
Troncal:
1. Origin ⟹⟹⟹⟹⟹ Propositus
(gratuitous title)
2. Propositus⟹⟹⟹ Reservista
(succession by operation of law)
3. Reservista⟹⟹⟹ Reservatario
(intestate succession)
Bar Operations C ommissions 177
 Purple Notes
Civil Law
Qualifications of a Reservatario:
a. Within 3rd degree of consanguinity
from the descendant-propositus;
b. Belong to the same blood line from
which the property came; and
c. Should be related by blood not only from
the praepositus but also from the person
from whom the property originally came.
d. Able to survive the reservista (Rabuya,
Civil Law Reviewer Vol.1, 2017, p. 890-892).
The reservatarios inherit from the descendant-
propositus and not from the reservista. This
is a case of delayed succession.
Among the reservatarios, the rules on
intestate succession should be applied
(Rabuya, supra, p. 892).
Relatives who are within the third
degree that is capable to be a
reservatorio
1st degree Father or Mother
2nd degree a. Grandparents of the line
from which the property came.
b. Full blood brothers or
sisters
c. Half blood brothers or
sisters from which the property
came.
3rd degree a. Great-grandparents
b. Uncles by consanguinity
(full or half blood brothers or
sisters of the father or mother)
c. Nephews and nieces
(children of full or half blood
brothers or sisters of the
descendant)
Preference among Reservees
While all relatives within the third degree, as a
group are called to succeed as reserves, as
among themselves the rules of intestacy will
apply, particularly Articles 1001, 1004, 1005
and 1009 in this case (Tolentino, Civil Code of
the Philippines Vol. III, Succession, p. 280).
Effects of Reserva Troncal:
1. The reserve creates two resolutory
conditions: (a) death of the reservista;
178 Center for Legal Education and Research
and (b) survival, at time of the
reservista‘s death, by reservatario. Hence,
the reservista has the legal title and
dominion to the reservable property but
subject to the happening of the
resolutory conditions.
2. During the lifetime of the reservista, the
reservatario merely has contingent or
inchoate rights or a mere expectancy; the
reservista is the owner of the property
subject to a resolutory condition.
3. If the resolutory conditions are fulfilled,
then the property should be conveyed to
the reservatarios (Rabuya, supra, p. 895-
898).
Rights of the Reservista
1. Reservista‘s right over the property is that
of ownership;
2. It is subject to a resolutory condition
which is that the reservatarios survive the
reservista‘s death;
3. It is alienable by acts inter vivos but
subject to the same resolutory condition.
The buyer‘s ownership is subject to the
same resolutory condition;
4. It is registrable (Rabuya., supra, p. 895-
888).
Obligations of Reservista
1. To annotate in the Registry of Deeds the
reservable character of the immovable;
2. To make an inventory of all the reservable
property;
3. To constitute a mortgage or give security
to guaranty, upon his death, the delivery
to the reservatarios the personal property,
the value of properties, movable or
immovable, that has been alienated, and
the reimbursement of deteriorations
occasioned by his fault or negligence
(Tolentino, Civil Code of the Philippines Vol. III,
Succession, p. 292);
▪ Reservista has a period of 90 days
from the time the reserve arises, in
which to register the reservable

character of the property; if he does
not voluntary cause the registration,
reservatarios may judicially demand
that he be compelled to make it
(Tolentino, Civil Code of the Philippines
Vol. III, succession, p.292).
4. To appraise the value of all reservable
movable property.
Rights of the Reservatarios
1. Their right over the property during the
life of the reservista is a mere expectancy;
2. The expectancy is subject to a suspensive
condition which is that the reservatarios
are alive at the death of the reservista.
3. The right of expectancy can be alienated
but it will be subject to the same
suspensive condition.
4. The right of expectancy is registrable. It
must be annotated at the back of the title
to protect the reservatarios from innocent
purchasers for value.
� The reservista cannot execute a will
disposing the reservable property because
it does not belong to him as his estate.
The property belongs to the reservatarios,
if they are existing upon the reservista‘s
death (Cano v. Director of Lands, G.R. No. L-
10701, January 16, 1959).
� The reservista may dispose of the
reservable property by acts inter vivos.
This is logical because it acquires the
ownership of the reservable property
upon the death of the descendant-
praepositus, subject to the resolutory
condition that there must exist at the
time of his death relatives of the
descendant who are within the third
degree and who belong to the line from
which the property came. He can,
therefore, alienate or encumber the
property if he so desires but he will only
alienate or encumber what he has and
nothing more (Lungsod v. Ortega, G.R. No.
14904, September 19, 1921).
Purple Notes 2018
Civil Law
Property subject to reserve
The property which has been acquired by the
descendant gratuitously should pass to the
ascendant reservista by operation of law in
order to be reservable.
General Rule: The reservista cannot
substitute them with others.
Exception: In case of loss by fault of the
reservista, or alienation of the property, or if
the things are fungible, it is inevitable that
substitution with other property or the
payment of a sum of money should be
allowed (Tolentino, Civil Code of the Philippines
Vol. III, Succession, p. 283).
DISINHERITANCE (Art. 915, NCC)
It is a testamentary disposition by which a
compulsory heir is deprived of, or excluded
from, the inheritance to which he has a right.
Disinheritance is not automatic. There must
be evidence presented to substantiate the
disinheritance and must be for a valid and
sound cause.
Requisites for a valid disinheritance
1. Disinherited heir must be designated in a
manner that there is no doubt as to his
identity;
2. Effected through a valid will (Art. 916,
NCC);
3. For causes provided by law (Art. 918,
NCC);
4. Legal cause must be specified in the will
itself (Art. 916, NCC);
5. Cause must be true and proven to be true
if challenged by the person disinherited
(Art. 918, NCC);
6. Unconditional (refers to suspensive
condition) and total (Rabuya, Civil Law
Reviewer Vol. I, 2017, p 902).
Implications of disinheritance
1. Only compulsory heirs can be disinherited,
for they alone are entitled to the legitime.
Bar Operations C ommissions 179
 Purple Notes
Civil Law
2. Since compulsory heirs may be complying with the requisites / formalities
disinherited only for lawful cause, it is prescribed by law (Rabuya, Civil Law Reviewer
clear that the courts may properly inquire Vol. 1, 2017, p. 903).
into the validity of the disinheritance.
Effect: Partial annulment of the institution of
3. Disinheritance excludes the heirs not only heirs in so far as it may prejudice the legitime
from the legitime but also from the free of the person disinherited. Devisees and
portion. legacies remain valid provided it does not
affect legitime (Rabuya, supra).
Effects of a valid disinheritance:
Imperfect Disinheritance vs. Preterition
1. Deprivation of the disinherited compulsory
heir from any participation in the IMPERFECT
PRETERITION
inheritance. DISINHERITANCE
Person disinherited Person omitted must
2. Children and descendants of the person must be any compulsory be a compulsory heir
heir. in the direct line.
disinherited shall take his or her place and
Attempt to deprive the The attempt to
shall preserve the rights of compulsory
heir of legitime is deprive the heir of
heirs with respect to the legitime. In other always express. legitime is always
words, a disinherited heir may still be implied.
represented. Attempt to deprive the Attempt may or may
heir of his legitime is not be intentional.
3. A disinherited parent shall not have the always intentional.
usufruct or administration of the property Partial annulment of Total annulment of
which constitutes the legitime. institution of heirs. the institution of
heirs.
Imperfect/Invalid Disinheritance (Rabuya, Civil Law Reviewer Vol. 1, 2017, p . 902)
Express attempt of the testator to deprive a
compulsory heir of his legitime without

Grounds for Disinheritance

CHILDREN AND DESCENDANTS PARENTS OR ASCENDANTS SPOUSE

1. Leads a dishonorable life; 1. Abandonment of their 1. Conviction by final judgment
2. Accused the testator of a crime for children or inducing their of an attempt against the life
which the law prescribes daughters to live a corrupt of the testator, his/her
imprisonment for 6 years or more, if or immoral life, or descendants/ascendants.
accusation has been found to be attempting against their 2. Accusing the testator of a
groundless: virtue; crime for which the law
Accusation includes: 2. Conviction by final judgment prescribes the imprisonment
a. Filing an information against the of an attempt against the life for 6 years or more and
testator of the testator, his/her accusation has been found to
b. Acting as a witness against the spouse, be false;
testator 3. Accusing the testator of a 3. By fraud, violence, or
crime for which the law intimidation or undue
3. Convicted of adultery/concubinage prescribes imprisonment for influence, causes the testator
with the spouse of the testator; 6 years or more and to make a will or to change
4. Conviction of a crime which carries accusation has been found one already made;
with it the penalty of civil to be false; 4. Has given cause for legal
interdiction; 4. Conviction of adultery separation;
5. By fraud, violence, intimidation, or /concubinage with the 5. Has given ground for loss of
undue influence causes the testator spouse of the testator; parental authority; and
to make a will or to change one 5. By fraud, violence, or 6. Unjustifiable refusal to
already made intimidation or undue support the children or the

180 Center for Legal Education and Research


6. Conviction by final judgment of an
attempt against the life of the
testator, his/her spouse,
ascendant/descendant;
7. Refusal without justifiable cause to
support the parent or ascendant;
and
8. Maltreatment of the testator by word
or deed. (Art. 919, NCC)
Purple Notes
Civil Law 2018
influence, causes the other spouse. (Art. 921, NCC)
testator to make a will or to
change one already made;
6. Loss of parental authority;
7. Refusal without justifiable
cause to support the
children/descendants; and
8. Attempt by one of the
parents against the life of
the other, unless there has
been reconciliation between
them. (Art. 920, NCC)

Causes of Revocation of Disinheritance:

1. Reconciliation (Art. 922, NCC)

2. The subsequent institution of the disinherited heir, inasmuch as this will impliedly revoked the
disinheritance clause in the earlier will.
3. The nullity of the will containing the disinheritance, such as when it is denied probate.

Effects of Reconciliation

A subsequent reconciliation between the offender and the offended person deprives the latter of the
right to disinherit and renders ineffectual any disinheritance that may have been made.

1. If there is no will, it deprives the offended person of right to disinherit the offending person.

2. If already disinherited, disinheritance already made is rendered ineffectual.

▪ There is no required form. It may be express or tacit (Rabuya, Civil Law Reviewer Vol. 1, p. 906-907).

If the ground is unworthiness: Under Art. 1033, these causes of unworthiness shall be without
effect if the testator had knowledge thereof at the time he made his will, or if having known of them
subsequently, he should condone them in writing.

1. If disinheritance is made, reconciliation renders the disinheritance ineffective.

2. If there is express disinheritance, the heir will continue to be incapacitated to succeed

even to his legitime, unless he is pardoned in writing or the testator makes a new will re-
instituting him or reiterating the provisions of the former will wherein the heir is instituted
(Tolentino, Civil Code of the Philippines Vol. III, succession, p.372).

Representation in Disinheritance

The children and descendants of the person disinherited shall take his or her place and shall preserve
the rights of compulsory heirs with respect to the legitime; but the disinherited parent shall not have
the usufruct or administration of the property which constitutes the legitime (Art. 923, NCC).

7. LEGACIES AND DEVISES

A legacy is a gift of personal property given by virtue of a will, while a devise is a gift of real property
given by virtue of a will (Jurado, Comments & Jurisprudence on Succession, p. 926).

A legacy is ―bequeathed‖‘ while a devise is ―devised‖.

All things and rights which are within the commerce of man may be bequeathed or devised (Art. 924,
NCC).
Bar Operations C ommissions 181

In a devise or legacy, a person succeeds by universal title, to specific property.

 Purple Notes
Civil Law
A legacy is ―bequeathed‖‘ while a devise is
―devised‖.
All things and rights which are within the
commerce of man may be bequeathed or
devised (Art. 924, NCC).
In a devise or legacy, a person succeeds by
universal title, to specific property.
An heir is a person who succeeds by universal
title, to an aliquot portion of the estate.
Persons charged with legacies and Devises
Extent of Liability
Any compulsory heir Shall not be liable for the
charge beyond the
amount of the free
portion given to them
(Art. 925, NCC)
Any voluntary heir His liability will extend
only to the entire share
received by him (Rabuya,
Civil Law Reviewer Vol. I,
2017, p 909)
Any legatee or devisee May be liable for the
charge only to the extent
of the value of the legacy
or the devise received by
them. (Art. 925, NCC)
No one is charged All shall be liable in the
same proportion as they
inherit. (Art. 925, NCC)
This applies only in the
absence of administration
proceedings for the
settlement of the
decedent‘s estate.
If two or more heirs take possession of the
estate, they shall be solidary liable for the loss
or destruction of a thing devised or bequeathed,
even though only one of them should have been
negligent (Art. 927, NCC).
Liability for Eviction - If the legacy or devise
is:
1. Indeterminate or generic - the heir is
charged with payment or delivery of the legacy
182 Center for Legal Education and Research
or devise shall be liable in case of eviction (Art.
928, NCC).
2. Determinate or specific - the heir who is
charged cannot be held liable in case of eviction
(Jurado, Comments & Jurisprudence on Succession, p.
346-347)
VALIDITY AND EFFECT OF
LEGACY/DEVISEE
NATURE VALIDITY/EFFECT
Thing owned General rule: Conveys only interest
in part by or part owned by testator
testator (Art.
929, NCC) Exception: If testator otherwise
provides—
1. There must be an express
declaration to that effect appearing in
the will itself
2. Knowledge on the part of the
testator that the thing belongs partly
to a third person. (Jurado, Comments
& Jurisprudence on Succession,
p.347)
a. He may convey more than
what he owns- the estate should try
to acquire the part or interest owned
by other parties. If other parties are
unwilling to alienate, the estate
should give the legatee/devisee the
monetary equivalent.
b. He may convey less than
what he owns.
Thing owned General rule:
by another
(Art. 930 and a. If the testator ordered the
931, NCC) acquisition of the thing-the order
should be complied with. If the owner
is unwilling to part with the thing, the
legatee/devisee should be given the
monetary equivalent (Art. 930, NCC) .
b. If the testator erroneously
believed that the thing belonged to
him – legacy/devisee is void (Art. 930,
NCC).
Exception: If the testator acquired
the thing onerously or gratuitously
after making of the disposition,
disposition is validated (Art. 930,
NCC)
.
c. If the testator knew that the
 Purple Notes 2018
Civil Law
thing did not belong to him but did death.
not order its acquisition – the Civil The estate shall By giving the legatee
Code is silent but disposition should comply with the legacy an acquittance, should he
be considered valid. There is an by assigning to the request one.
implied order to acquire and doubts legatee
must be resolved in favor of testacy all rights of action it
(Art. 931, NCC). may have against the
Things a. If thing bequeathed or debtor.
already devised already belonged to the
owned by legatee/devisee at the time of the Legacy of credit and remission
the execution of the will – the (Art. 935, NCC)
legatee/devis legacy/devise is ineffective (Art. 932,
ee. NCC). ART. 911 ART. 950
b. If thing was owned by (Applies in case of (Applies when
another person at the time of making concurrence of question of preference
the will and thereafter if it is acquired legitime, donation inter is exclusively among
by legatee/devisee: vivos and devises and legatees and
legacies) devisees)
1. If the testator erroneously Order of Preference
believed that he owned the thing- 1. Reduce first 1. Remunerator
legacy/devisee is void (Art. 930, devises and legacies y L/D
NCC); pro rata, (except if 2. Preferential
2. If the testator was not in testator directed that a L/D
error- certain legacy or devise 3. L for support
be preferred). 4. L for
i. If thing was acquired education
onerously by the legatee/devisee is 5. L/D of a
entitled to be reimbursed (Art. 933, specific determinate
NCC); thing which forms a
ii. If the thing was acquired part of the estate.
gratuitously by the legatee/devisee -
2. If not yet 6. All others pro
nothing is due (Art. 933, NCC);
sufficient to satisfy the rata.
iii. If the thing was owned by
legitimes, reduce or
testator at time the will was made
annul donation inter
and the legatee/devisee acquired the
vivos. (If there are
thing from him thereafter - the law is
several, reduce or
silent;
annul the more recent).
Note: According to Prof. Tolentino,
Application
there is no intention to revoke. But if
1. When the 1. When there
the testator has not alienated the
reduction is necessary are no compulsory
thing directly to the legatee/devisee,
to preserve the legitime heirs and the entire
but to a 3rd person and the former
of compulsory heirs estate is distributed
just acquired it from the latter, there
from impairment by the testator as
is an intention to revoke.
whether there is legacies or devises; or
Legacy/Devis Valid, if the encumbrance can be
donation inter vivos or 2. When there
e to remove removed by paying the debt unless
not; or are compulsory heirs
an the testator intended otherwise (Art.
2. When but their legitime has
encumbrance 934, NCC);
although, the legitime already been provided
over a thing
has been preserved by for by the testator and
belonging to
the testator himself there are no
testator
there are donation inter donations inter vivos.
Legacy of Credit Remission of Debt
vivos.
Effective only as regards that part of the credit or
debt existing at the time of the death of the testator
Grounds for revocation of legacies and
The legacy shall comprise all interests on the credit or
debt which may be due the testator at the time of his devises (Art. 957, NCC)

Bar Operations C ommissions 183

 Purple Notes
Civil Law
1. Testator transforms the thing bequeathed in
such a manner that it does not retain either
the form or the denomination it had (Art.
957[1], NCC).
2. Testator by any title or for any cause
alienates the thing bequeathed, or any part
thereof, it being understood that in the latter
case the legacy or devise shall be without
effect only with respect to the part alienated
Art. 957[2], NCC).
Except: when the thing should again belong to
the testator after alienation Art. 957[2], NCC).
3. Thing bequeathed is totally lost during the
lifetime of the testator, or after his death
without the heirs fault.
4. Other causes: nullity of the will, non-
compliance with suspensive conditions
affecting the bequests, sale of the thing to
pay debts of the deaths during the
settlement of his estates Art. 957[3], NCC).
C. LEGAL OR INTESTATE SUCCESSION
That mode of transmission mortis causa which is
effected by operation of law in the absence or in
default of a will (Rabuya, Civil Law Reviewer Vol.1,
2017, 923).
Legal or intestate succession is that which is
effected by operation of law in default of a will.
It is legal because it takes place by operation of
law; it is intestate because it takes place in the
absence or in default of a last will of the
decedent (Jurado, Comments and Jurisprudence on
Succession, 2009 ed., p. 377).
I. GENERAL PROVISIONS
a. RELATIONSHIP
When Legal Succession Takes Place
1. When a person dies:
a. Without a will
b. With a void will
c. With a will that subsequently lost its
efficacy (Art. 960 (1), NCC)
184 Center for Legal Education and Research
2. When the will does not institute an heir (or
when the institution of heir is void) or when
the will does not dispose of all the property
belonging to the testator (Art. 960 (2), NCC)
3. When the suspensive condition attached to
the institution of heir does not happen or is
not fulfilled (Art. 960 (3), NCC)
4. When a voluntary heir repudiates the
inheritance and there being no substitution
and no right of accretion takes place (Art.
960 (3), NCC)
5. When a compulsory heir repudiates the
inheritance, legal succession shall also take
place with respect to the legitime because
he cannot be represented thereto (Rabuya,
Civil Law Reviewer Vol. 1, 2017, p. 924)
6. When a voluntary heir dies before the
testator or when he is incapable of
succeeding and there being no substitution
and no right of accretion or representation
takes place (Art. 960 (3)(4), NCC)
7. When a compulsory heir is incapable of
succeeding, legal succession shall also take
place with respect to his legitime when
representation does not take place (Rabuya,
Civil Law Reviewer Vol. 1, 2017, p. 925)
8. When there is preterition (Art. 854, NCC)
9. When the resolutory condition attached to
the institution of heir happens and there
being no substitution and no right of
accretion takes place (Rabuya, supra)
10. When the resolutory term attached to the
institution of the heir arrives and there being
no substitution and no right of accretion
takes place(Rabuya, supra)
11. When a testamentary disposition is
impossible of compliance or is ineffective
(Rabuya, Civil Law Reviewer Vol. I, 2017, p 924-
925).
a. RIGHT OF REPRESENTATION
A right created by fiction of law by virtue of
which the representative is raised to the place
and the degree of the person represented, and
acquires the rights which the latter would have if
he were living or if he could have inherited (Art.
970, NCC).
 Purple Notes
Important Rules in Representation:
1. Representation takes place only with respect
to inheritance conferred by law (legal
succession and compulsory succession)
(Tolentino, Civil Code of the Philippines Vil. III,
1992, p 447). Hence, a voluntary heir may
not be represented.
2. The representative inherits not from the
person represented but from the one whom
the latter would have succeeded (Art. 971,
NCC). Hence -
a. Their capacity to succeed must be
determined in relation to the decedent
and not the person represented.
b. An adopted child, who is not related by
blood to the adopter, may not represent
the adopter because the adopter is not
related to the deceased.
3. Representation takes place in the direct
descending line, but never in the ascending
line. In the collateral line, it exists only in
favor of nephews and nieces if they survive
with their uncles and aunts (Art. 972, NCC).
4. An illegitimate child can represent their
parents, if the latter are also of illegitimate
filiation to the decedent-ascendant. But if
the parent of the illegitimate child is
legitimately filiated to the decedent-
ascendant, an illegitimate child may not
represent his parent by virtue of the iron
barrier curtain rule (Art. 992, NCC).
5. Representation takes place only in case of
predecease (Art. 992, NCC), incapacity (Art.
1035, NCC), and disinheritance (Art. 923, NCC).
It does not take place in case of repudiation
or renunciation.
Consequences:
1. The son who repudiates the inheritance from
his father does not lose the right to
represent the latter in the inheritance from
the grandfather.
2018
Civil Law
2. Great grandson may be called to the
inheritance even if grandfather should die
before the great grandson has been
conceived.
3. Son who cannot inherit from his father on
the ground of unworthiness can still inherit
from his grandfather by representing the
latter, provided he himself is not unworthy
with regard to the said grandfather.
4. Since the person representing virtually
succeeds to the inheritance, he must be
possessed of all the qualities necessary for
the right to inherit.
5. He succeeds not only to the rights but also
the obligations which are transmissible.
6. An adopted child does not have the right of
representation. The relationship created by
the adoption is between only the adopting
parents and the adopted child and does not
extend to the blood relatives of either party
(Sayson v. CA, G.R. Nos. 89224-25, 1992).
Situations and cases when right of
representation takes place
Testamentary Succession
1. When a compulsory heir in the direct
descending line has predeceased the
predecessor, and is survived by his children
or descendants (Art 856[2], NCC).
2. When a compulsory heir in the direct
descending line is excluded from the
inheritance due to incapacity or
unworthiness and he has children or
descendants (Art 1035, NCC).
3. When a compulsory heir in the direct
descending line is disinherited and who has
children or descendants. (Representation
covers only the legitime) (Art. 923, NCC)
4. A devisee or legatee who died after the
death of the testator may be represented by his
heirs (Art. 954, NCC).
Intestate Succession
1. When a legal heir in the direct descending
line had predeceased the descendant and is
survived by his children or descendants (Art.
981 and 982, NCC).
Bar Operations C ommissions 185
 Purple Notes
Civil Law
2. When a legal heir in the direct descending
line is excluded from the inheritance by
reason of incapacity or unworthiness. (This
is also applied in testamentary succession)
(Art. 1035, NCC)
3. When brothers or sisters (when there is no
exclusion) had predeceased the decedent
and they had children or descendants (Art.
981 and 975, NCC).
4. When the illegitimate children represent
their illegitimate parents who already died in
the estate of their grandparents (Art. 989,
NCC).
5. When nephews and nieces inherit together
with their uncles and aunts, in
representation of their predeceased parents
who are brothers/sisters of their said uncles
or aunts (Art. 1005, NCC).
The right of representation can only represent a
person immediately higher in degree.
Representation does not take place with respect
to rights or inheritance voluntarily given by will,
but rather, to right or inheritance conferred by
law.
The adoptee has right to represent the adopting
parent in the inheritance of the latter‘s parents
or ascendants (Pineda, Succession and Prescription,
2001 ed., pp. 376-378).
Representation in the Direct Descending
Line - The right of representation takes place in
the direct descending line, but never in the
ascending line (Art. 972, NCC).
The right of representation in the direct line
takes place in the following cases:
1. When children concur with grandchildren,
the latter being the children of other children
who died before the decedent or who are
incapable of succeeding the decedent.
2. When all children are dead or are incapable
of succeeding the decedent and
grandchildren concur with great-
grandchildren, the latter being the children
of other children who died before the
decedent or are incapable of succeeding the
decedent.
186 Center for Legal Education and Research
3. When all children are dead or are incapable
of succeeding the decedent leaving children
or descendants of the same degree.
Representation in Collateral Line
1. Right can only be exercised by nephews and
nieces of the decedent.
2. Right can be exercised by the nephews or
nieces of the decedent if they will concur
with at least one brother or sister of the
decedent.
3. If they (nephews and nieces) are the only
survivors, they shall inherit in their own right
and not by right of representation.
4. Right of representation is possible only in
intestate succession (Jurado, Comments and
Jurisprudence on Succession, 2009 ed. pp. 392-
393).
Division Per Stirpes
Representative or representatives shall not
inherit more than what the person they
represent would inherit, if he were living or
could inherit (Art. 974, NCC).
a. Right of Representation - The
representatives will divide among themselves
only the share pertaining to the parent
whom they represent (per stirpes division).
Per Capita Division Per Stirpes Division
Succession is by head Succession is by group
or by number of and the group will not
persons who succeed – inherit more than the
which finds application shares of the person
when the heirs are of represented. The heirs
same degree. They within the group will
inherit equally. inherit equally. (Art.
974, NCC)
1. Rule of Barrier Between the Legitimate
Family and Illegitimate (Iron Curtain
Rule) (Art. 992, NCC)
General Rule: 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

Except: When the parent is also illegitimate
(Art. 902, NCC).
� Iron Curtain Rule applies only in
intestate succession (succession by operation
of law).
2. Rule of Double Share for full blood
collaterals
When full and half-blood brothers or, sisters,
nephew or nieces survive, the full blood shall
take a portion in the inheritance double that of
the half-blood (Arts. 895, 983, NCC).
Half blood x 3. Relatives in the same degree inherit in equal
Full blood 2x
3. Rule in Case of Repudiation and
Incapacity
a. Incapacity –
GENERAL RULE: in case of incapacity, the
share which is rendered vacant shall pass to co-
heirs (within the same degree) if the right of
representation does not obtain (Art. 968, NCC).
EXCEPTION: If the incapacitated heir has
descendant/s on his own, his share which is
rendered vacant shall pass to such descendant/s
by right of representation (Art. 892, NCC).
E.g., X is survived by three children, A, B and C.
C is incapacitated to inherit.
Share of C will accrue to A and B B (by right of
accretion), who will share equally but if C has a
son, C‘s share will go to his son by way of right
of representation.
b. Repudiation
i. If not all of the heirs within the same
degree repudiate, but only some of them,
the shares of those who did not accept
shall accrue to the co-heirs within the same
degree (Art. 968, NCC). This is a case of
accretion.
Purple Notes 2018
Civil Law
ii. If all of the heirs within the same degree
repudiate their inheritance, those of the
next degree shall inherit in their own right
(Art. 969, NCC).
� An heir who repudiates his inheritance may
not be represented (Art. 977, NCC).
Other rules in intestate succession:
1. An intestate heir is not necessarily a
compulsory heir (like a brother or sister)
2. Relatives nearer or nearest in degree,
exclude the more distant ones, saving the
right of representation when proper (Art. 962,
NCC);
shares, subject to the rule on full or half-
blood brothers and sister (Art. 1006, NCC);
and the division between paternal and
maternal lines (Art. 987, NCC);
4. There is no representation in the ascending
line (Art. 972, NCC);
5. There is representation in the direct
descending line (Art. 972, NCC);
6. In the collateral line, there is representation
only in favor of children of brothers and
sister, whether full or half-blood, but only in
cases where said nephews and nieces
survive with their uncles and aunts. (Art. 972,
NCC);
7. Representation in the collateral line is true
only in legal succession, because collateral
relatives are not compulsory heirs.
8. A voluntary heir cannot be represented .
9. In partial intestacy, legacies and devises are
charged to the free portion proportionately
against the heirs, who are given more than
their legitimes, but in no case, shall the
legitimes be impaired (Rabuya, Civil Law
Reviewer Vol. 1, 2017, p. 935).
10. Grandchildren always inherit by
representation whether they concur with the
children or not. They inherit in their own
right only when all the children renounce,
and they share equally or per capita (Art.
928, NCC);
11. Nephews and nieces inherit either by
representation or in their own right (Art.
1005, NCC);
Bar Operations C ommissions 187
 Purple Notes
Civil Law
a. They inherit by right of representation
when they concur with aunts and
uncles, who divide per capita, while
nephews and nieces divide per stripes
(Calisterio v. Calisterio, G.R. No. 136467 April
6, 2000).
b. They inherit in their own right when
they do not concur with aunts and
uncles. In this case, they divide per
capita or equally (Art. 975, NCC).
12. Illegitimate children do not inherit ab
intestato from the legitimate children and
relatives of his illegitimate father or mother,
nor do said legitimate children and relatives
inherit from the illegitimate child (Art. 992,
NCC);
13. There is also reserva troncal in legal
succession, since it is succession by
operation of law;
14. A person who repudiates or renounces his
share can represent, but he cannot be
represented. (Art. 976-977, NCC)
Rules in relationship (Arts. 963 to 969,
NCC)
1. Number of generations determines proximity
2. Each generation forms a degree.
3. A series of degrees forms a line.
4. A line may be direct or collateral.
Direct line is that constituted by the series of
degrees among ascendants and descendants
(ascending and descending) (Art. 964 [1], NCC).
Collateral line is that constituted by the series
of degrees among persons who are not
ascendants or descendants, but who come from
a common ancestor (Art. 964[2], NCC).
5. Full blood: same father and mother; Half-
blood: only one of either parent is the same.
6. In adoption, the legal filiation is personal
and exists only between the adopter and the
adopted. The adopted is deemed a
legitimate child of the adopter.
188 Center for Legal Education and Research
1. ORDER OF INTESTATE SUCCESSION
Intestate or Legal Heirs
In general, the legal heirs are the legitimate and
illegitimate relatives of the deceased, the
surviving spouse and the State (Art. 961, NCC).
Regular Order of Intestate Succession
(Decedent is legitimate person):
a. Legitimate children or descendants (LCD)
b. In default of LCD, Legitimate parents and
ascendants (LPA).
c. Illegitimate children and descendants
(ILC)
d. Surviving spouse (SS)
e. Brothers and sisters (B/S), nephews,
nieces (N/N)
f. Other collateral relatives within 5th
degree
g. The State
� One who is merely related by affinity to the
decedent does not inherit from the latter
and cannot become a co-owner of the
decedent‘s property (Ining v. Vega, G.R. No.
174727, G.R. No. 174727, August 12, 2013).
� A surviving spouse is not an intestate heir of
his or her parent-in-law (Rosales v Rosales,
G.R. No. L-40789, February 27, 1987).
Irregular Order of Intestate Succession
(Decedent is an illegitimate person):
a. Legitimate children and descendants;
b. Illegitimate children and descendants;
c. Illegitimate parents;
d. Surviving spouse;
e. Illegitimate brothers and sisters, nephews
and nieces; and
f. The State
Rules on legal or intestate succession
Rule of Preference Between Lines,
Concurrence and Exclusion
a. Those in the direct descending line shall
exclude those in the direct ascending and
 Purple Notes 2018
Civil Law
collateral lines, and those in the direct The right to inherit ab intestato shall not extend
ascending line shall, in turn, exclude those in beyond the fifth degree of relationship in the
the collateral line (Arts. 978, 985, 988, 995, collateral line (Art. 1010, NCC).
1003 and 1011, NCC).
They exclude the State from the succession (Art.
LC ILC SS LA ILA B/S/Ni/Ne State 1009, NCC).
✔ ✔ ✔ x X x x
concur concur Other
LC ILC SS LA ILA B/S/Ni/Ne Collateral State
Relatives
The legitimate children inherit in their own right x x x x x x ✔ x
and their descendants inherit in by right of
representation (Art. 979, NCC).
The State shall inherit the whole estate in
b. In default of legitimate or adopted children default of the descendants, ascendants,
and descendants (Art. 985, NCC). illegitimate children, surviving spouse, and
collateral relatives within the fifth degree of
L ILC SS LA IL B/S/Ni/N Stat relationship (Art. 1010, NCC).
C A e e

✔ ✔ ✔ x x x
x NOT NOT Other
exclude exclude LC ILC SS LA ILA B/S/Ni/Ne Collateral State
d d Relatives

x x x x x x x ✔
c. In the absence of legitimate descendants
and ascendants (Art. 1003, NCC).
�The foregoing rules, presupposes that the
LC ILC SS LA ILA B/S/Ni/Ne State
descendant is a legitimate child.
✔ x x x X
X
NOT
✔
excluded
In case the decedent is an illegitimate child,
the illegitimate parents are excluded by the
d. The surviving spouse is not excluded by children and descendants whether legitimate or
the descendants, ascendants and illegitimate illegitimate (Art. 993, NCC)
(Rabuya, Civil Law Reviewer Vol. I, 2017, p 925-928).
children but the surviving spouse excludes
the other collateral relatives of the deceased
(Art. 1003, NCC) the brothers, sisters, Proximity Rule
nephews and nieces of the deceased (Art.
1001, NCC). The relatives nearest in degree to the decedent
shall exclude the more distant ones, saving the
right of representation when it properly takes
Other
SS LA ILA B/S/Ni/Ne Collateral State place (Art. 962[1], NCC).
Relatives

✔ x x ✔ x x Hence, the order of preference between lines is

NOT first observed, and within each line, the rule of
excluded proximity applies (Rabuya, supra, at 928).

e. As mentioned above, the other collateral Rule of Equal Division

relatives can only succeed ab intestato in
the absence of descendants, ascendants, General Rule: Relatives of the same degree
illegitimate children, surviving spouse, shall inherit in equal shares (Art. 962[2], NCC).
brothers, sisters, nephews, nieces (Art. 1009,
NCC). Except:

Bar Operations C ommissions 189

 Purple Notes
Civil Law
a. Ascending Line - There is first division SS Estate would be
between lines and within each line there is IC insufficient. Reduction
further division per capita (Art. 987, NCC). must be according to
the rules of legitimes.
The legitime of LCD and
Maternal line 1/2
SS shall always be first
Paternal line 1/2
satisfied in preference
to the ICD.
b. Collateral Line - Full Blood will receive
double of that of what is received by half- LC = 2x
blood (Art. 1006, NCC). SS = (same as LC) 2x
IC = x
Half blood x
Full blood 2x Mixed Succession or Partial Intestacy

b. When there is right of Representation. Succession that is affected partly by will and
c. Between legitimate and illegitimate children. partly by operation of law.

� If decedent is ascendant, Full Blood/Half Blood Rules:

relationship is immaterial.
The law of legitimes must be brought into
TABLE OF INTESTATE SUCCESSION operation in partial intestacy, because the
(FAMILY CODE) testamentary dispositions can affect only the
SURVIVOR INTESTATE SHARE disposable free portion but never the legitimes.
Any class alone Entire estate If among the the amount of the
LCD Entire estate, concurring intestate testamentary
LPA Excluded heirs there are disposition must be
1 LCD 1/2
compulsory heirs deducted from the
SS 1/4
whose legal or disposable free
2 or more LCD Consider SS as 1 LCD
SS then divide estate by intestate portions portion
total number. EXCEED their
LPA 1/2 respective legitimes to be borne by all
SS 1/2 the intestate heirs
LPA 1/2 in the proportions
SS 1/4 which they are
ILC 1/4 entitled to receive
Any kind of children of Entire Estate Excluded from such
ILC disposable free
ILP
portion as intestate
ILP 1/2
heirs
SS 1/2
Note: only ILP is The law is silent. Apply
considered legal heir. concurrence theory. If the intestate the amount of the
Other ascendants of share of a testamentary
deceased ILC, not legal compulsory heir is disposition must be
heirs. EQUAL to his deducted ONLY
SS 1/2 legitime form the intestate
BS/NN 1/2 shares of the
Other collateral relatives
others, in the
will inherit only in the
proportions stated
absence of B/S and
N/N. above
1LC First satisfy legitimes.
If the testamentary the intestate heirs

190 Center for Legal Education and Research

 Purple Notes
dispositions will get only their
consume the entire legitimes
disposable free
portion those who are not
compulsory heirs
will get nothing
D. PROVISIONS COMMON TO TESTATE
AND INTESTATE SUCCESSION
1. RIGHT OF ACCRETION
A right by virtue of which, when 2 or more
persons are called to the same inheritance,
devise, or legacy, the part assigned to the one
who renounces or cannot receive his share, or
who died before the testator, is added or
incorporated to that of his co-heirs, co-devisees,
or co-legatees (Art 1027, NCC).
Basis of Accretion: Presumed will of decedent
(Rabuya, Civil Law Reviewer Vol. 1, 2017, p. 964).
Rules in Accretion:
1. In testamentary succession, accretion takes
place only with respect to the free portion.
There is no accretion with respect to the
legitime.
2. With respect to the free portion, there is
accretion when the following requisites are
present:
a. Two or more persons are called to same
inheritance, or to same portion thereof,
jointly or pro indiviso; and
b. There is vacancy in the inheritance as a
result of predecease, incapacity or
repudiation.
3. In intestate succession, repudiation will
always give rise to accretion. In case of
predecease and incapacity, if representation
does not take place, other co-heirs inherit in
their own right and not by right of accretion.
4. Accretion in both testate and legal
succession is a right. It may be accepted or
repudiated by those entitled (Ynza v.
Rodriguez G.R. No. L-6395).
2018
Civil Law
No Accretion even if Predeceased,
Incapacitated, or Renounced if:
1. Provided by testator - Will go to the mass
estate unless there is substitution
2. There is substitution - Substitution is
preferred over accretion
3. There is right of representation - In so far as
the legitime of the co-heir is concerned.
4. Instituted heirs are given specific/aliquot
portions of property.
Substitution, Representation, Accretion
and Succeeding in One’s Own Right
TESTAMENTARY SUCCESSION
LEGITIME
In case of predecease, incapacity or disinheritance
(PID):
1) If representation is proper, representative
gets the vacant share, (representation takes place
in case of PID);
2) If representation is not available,
a. Co-heirs of the same degree (in their own
right);
b. (In default) – Other secondary and/or
compulsory heirs
Note: there is no accretion with respect to the
legitime (Jurado, Comments and Cases in Wills and
Succession, 2009, p. 470).
In case of repudiation:
1) Co-heirs of the same degree (in their own
right).
2) In default thereof: Other secondary and/or
compulsory heirs.
Note: there is no accretion with respect to the
legitime. No substitution may be imposed upon
the legitime.
FREE PORTION
In case of predecease, incapacity or repudiation:
1) Vacant share goes to substitute, if substitution
is provided for by the testator.
2) If no substitution is provided: Co-heirs by right
of accretion, if requisites are present and
testator has not provided to the contrary.
3) If substitution and accretion are not available:
Legal heirs.
Note: Representation does not take place with
Bar Operations C ommissions 191
 Purple Notes
Civil Law
respect to the free portion. A voluntary heir may Requisites in order that a person may be
not be represented. capacitated to succeed:

LEGAL OR INTESTATE SUCCESSION 1. Heir, legatee or devisee must be living or in

In case of repudiation
1) Co-heirs by right of accretion. In legal
succession, the share of the one who
repudiated always accrue to his co heirs.
2) In default thereof
a. Heirs of the next degree (in their own
right);
b. Heirs in the next order of intestacy.
existence at the moment the succession
opens, except in case of representation (Art.
1025, NCC).
2. Heir, legatee or devisee must not be
incapacitated by law to succeed.
Kinds of Incapacity:

Note: Representation does not take place in case A. Absolute

of repudiation.
a. Those not living or not in existence at the
In case of predecease and incapacity:
time of the death of the decedent (Art. 1025
1. The vacant share goes to representative, if
(2), 1026, 1029, 1030 NCC).
representation is proper.
2. If representation is not available
b. Those that cannot be identified (Art. 845,
a. heirs of the next degree, who inherit in their NCC)
own right; c. Individuals, associations, or corporations not
b. heirs in the next order of intestacy. permitted by law inherit (Art. 1027 par.6,
NCC)
Summary:
B. Relative
Substitutio Representatio Accretio
n n n a. Based on possibility of undue influence or
Testamentary Succession interest (Art. 1027 pars. 1-5, NCC)
1. Legitime b. Based on morality or public policy (Art. 1028,
a. NCC)
X X
Predecease c. Based on acts of unworthiness (Art. 1032,
b. Incapacity X X NCC)
c. d. By operation of law (Jurado, Comments and
Disinheritanc X X Cases in Wills and Succession, 2009, p. 483).
e
d.
Repudiation
X X X Relative Incapacity
2. Free
Portion I. Incapacity or Disqualification by
a.
Predecease
X Reason of Undue Influence (Art. 1027
pars. 1-5, NCC)
b. Incapacity X
c.
Repudiation
X Fundamental Characteristics
Intestate Succession
a. a. These incapacities or disqualification are
X X
Predecease based either on possibility of undue
b. Incapacity X X influence or of interest.
c.
X X b. They are not only in testamentary
Repudiation
succession; and
c. They are not only relative in character but
they are also partial in the sense that if the
2. CAPACITY TO SUCCEED BY WILL OR
incapacitated or disqualified heir is a
INTESTACY
compulsory heir, only the free portion given

192 Center for Legal Education and Research

 Purple Notes
to him is affected, but not his legitime
(Jurado, supra, p. 483).
1. Priest/Minister – who heard the confession
or gave spiritual aid to the testator during
his last illness. The illness referred to must
be the one in which the testator dies.
Requisites:
a. the will must be made during the last illness
of the testator;
b. the spiritual ministration must have been
extended during the last illness;
c. the will was executed during or after the
spiritual ministration (Jurado, supra, p. 484).
2. Relatives of such priest or minister of the
gospel within the fourth degree, the church,
order, chapter, community, organization, or
institution to which such priest or minister
may belong;
3. Guardian with respect to testamentary
dispositions given by a ward in his favor,
before the final accounts of the guardianship
have been approved, even if the testator
should sign after the approval thereof;
Exception: Disqualification does not apply
when the guardian is an
a. Ascendant
b. Descendant
c. Brother
d. Sister
e. Spouse
4. Attesting witness to the execution of a will,
the spouse, parents, or children, or any one
claiming under such witness, any one
claiming under such witness, spouse,
parents, or children
Exception: when there are 3 other witnesses to
the execution of the will (Art. 823, NCC);
5. Physician, surgeon, nurse, health officer or
druggist who took care of the testator during
his last illness.
Requisites:
a. The will was made during the last illness
2018
Civil Law
b. The sick person must have been taken cared
of during the last illness
c. Medical attendance was made
d. The will was executed during or after he was
being cared of (Jurado, supra, p. 486).
Exception: Does not apply if the one who
took care of the testator is
a. spouse
b. ascendant
c. descendant (Juardo, supra, p. 486)
6. Individuals, associations, corporations not
permitted by law to inherit.
II. Incapacity Based on Morality or
Public Policy (Art. 1028 in relation to Art. 739)
The capacity based on this Article is not only
relative but also partial in a sense that if the heir
disqualified is also a compulsory heir, the
incapacity shall apply only to the free portion
given to him, but NOT THE LEGITIME.
1. Persons who were guilty of adultery or
concubinage
2. Persons found guilty of the same criminal
offense
3. A public officer or his wife, descendants and
ascendant, by reason of his office
III. Incapacity Due to Unworthiness
(Art. 1032, NCC)
Fundamental Characteristics:
1. They are based on offenses committed by
the disqualified person against the decedent
which render him unworthy to succeed;
2. They are applicable not only in testamentary
succession, but also in intestate succession;
and
3. Although they are relative in character, they
are also total in a sense that if the heir
disqualified is a compulsory heir, incapacity
shall apply not only to the free portion, but
ALSO TO THE LEGITIME (Jurado, Comments
and Cases in Wills and Succession, 2009, p. 491).
Bar Operations C ommissions 193
 Purple Notes
Civil Law
The following are incapable of succeeding
by reason of unworthiness:
1. Parents who have abandoned their children
or induced their daughters to lead a corrupt
or immoral life, attempted against their
virtue;
2. Person convicted of an attempt against the
life of the testator, his, or her spouse,
descendants, or ascendants;
3. Person who has accused the testator of a
crime for which the law prescribes
imprisonment for six years or more, if the
accusation has been found groundless;
4. Person convicted of adultery or concubinage
with the spouse of the testator;
� The guilty spouse is not included. The
person with whom the spouse is guilty with
is the one unworthy (Jurado, Comments and
Cases in Wills and Succession, 2009, p. 491).
� the spouse is not rendered unworthy to
inherit from the decedent, but only the
person with whom the spouse is guilty with
(Jurado, supra).
5. Heir of full age who, having knowledge of
the violent death of the testator, should fail
to report it to an officer of the law within a
month, unless the authorities have already
taken action; this probation shall not apply
to cases wherein, according to law, there is
no obligation to make an accusation;
� This provision shall not apply to cases
wherein, according to law, there is no
obligation to make an accusation, e.g.
Deaths occasioned by crime (violent deaths)
are prosecuted de oficio or at the instance
of the government (Jurado, supra).
6. Person who by fraud, violence, intimidation,
or undue influence should cause the testator
to make a will or to change one already
made;
7. Person who falsifies or forges a supposed
will of the decedent;
8. Person who by the same means prevents
another from making made, or who
194 Center for Legal Education and Research
supplants, conceals, or alters the latter‘s will
(Art. 1032, NCC)
Unworthiness v. Disinheritance
The moment the testator uses one of the acts of
unworthiness as a cause for disinheritance, he
thereby submits it to the rules on disinheritance.
Thus, reconciliation renders the disinheritance
ineffective (Rabuya, Civil Law Reviewer Vol. 1, 2017,
p. 907).
There are grounds for disinheritance which are
also causes of incapacity to succeed by reason
of unworthiness. Among them are the
abandonment of children, and the attempt to
take the life of the testator, etc. (Art. 1032, NCC).
If the cause of unworthiness was made a
ground for disinheritance and there is
reconciliation, Art. 922 will govern, (the
offended person is deprived of his right to
disinherit) and NOT Art. 1033. In other words,
the mere fact of reconciliation extinguishes the
unworthiness and NO written document is
needed for a condonation (Rabuya, supra).
Reason: A person is rendered unworthy to
succeed only because the law presumes this to
be the will of the testator. This presumed intent
certainly cannot prevail over the express will of
a person shown by his act of reconciliation. If
the cause for unworthiness was NOT made the
ground for disinheritance, or there has been no
disinheritance at all, Art. 1033 will apply. Art.
1033 says: ―The causes of unworthiness shall be
without effect if the testator had knowledge
thereof at the time he made the will, or if having
known of them subsequently, he should
condone them in writing.‖
Instances when the spouse cannot inherit:
1. If the spouse will actively participate by
securing the decree of legal separation;
2. By disinheriting him/her (Art. 921, NCC).
PARDON may be express or implied
- may be express or implied
 Purple Notes 2018
Civil Law
- only the decedent himself can erase the Principal Characteristic of Acceptance or
effects of acts of unworthiness (Rabuya, Repudiation:
supra).
1. It is voluntary and free (Art. 1041, NCC);
EXPRESS IMPLIED 2. It is retroactive (Art. 1042, NCC); and,
Testator has knowledge 3. Once made, it is irrevocable (Art. 1043, NCC).
of the act of the
Decedent condones the unworthiness, executes
Forms of Acceptance:
acts of unworthiness in a will instituting the
writing person who has
committed the offence 1. Express Acceptance –one made in a public
as an heir or private document.
Available to both 2. Tacit Acceptance –one resulting from acts by
Available only in
testamentary and which the intention to accept is necessarily
testamentary succession
intestate succession implied or which one would have no right to
Can be revoked when do except in the capacity of an heir (Jurado,
Cannot be revoked the testator revokes the Comments and Cases in Wills and Succession,
will or the institution 2009, p. 506).

IV. By Operation of Law How Repudiation is made:

1. In case of legal separation, incapacity of 1. Public instrument;

guilty spouse to inherit from innocent
spouse.
2. Incapacity of adopter to inherit from adopted
child.
3. Incapacity of illegitimate children &
legitimate relatives of decedent to inherit
from each other.
3. ACCEPTANCCE AND REPUDIATION OF
THE INHERITANCE
Acceptance – an act by virtue of which an heir,
legatee or devisee manifests his desire, in
accordance with the formalities prescribed by
law, to succeed to the inheritance, legacy or
devise (Jurado, Comments and Cases in Wills and
Succession, 2009, p. 501).
2. Authentic instrument;
3. Petition presented to the court having
jurisdiction over the testamentary or
intestate proceedings (Jurado, Comments and
Cases in Wills and Succession, 2009, p. 507)
GENERAL RULE: The acceptance or
repudiation of an inheritance, once made, is
irrevocable, and cannot be impugned.
EXCEPTIONS:
1. When it was made through any of the
causes that vitiate consent (Art.1056, NCC).
2. When an unknown will appears, provided
that such will substantially changed the
rights of a person who has repudiated or
accepted.

Repudiation – an act by virtue of which an COLLATION

heir, legatee or devisee manifests his desire, in
accordance with the formalities prescribed by
law not to succeed to the inheritance, legacy or
devise (Jurado, supra, p. 501).
If the heir should die without having accepted or
repudiated the inheritance, his right shall be
transmitted to his heirs (Art. 1053)
Every compulsory heir, who succeeds with other
compulsory heirs must bring into the mass of
the estate any property or right which he may
receive from the decedent, during the lifetime of
the latter, by way of donation, or any other
gratuitous title, in order that it may be
computed in the determination of the legitime of
each heir, and in the account of partition (Art.
1061, NCC).

Bar Operations C ommissions 195

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Civil Law
An act to returning or restoring to the common
mass of the estate, either actually or fictitiously,
any property which a person may have received
from the decedent during the latter‘s lifetime,
but which is understood for legal purposes as an
advance from inheritance (Jurado, Comments and
Cases in Wills and Succession, 2009, p. 511).
Operations related to collation:
1. Collation - adding to the mass of the
hereditary estate the value of the donation
or gratuitous disposition.
2. Imputing or Charging - crediting the
donation as an advance on the legitime (if
the donee is a compulsory heir) or on the
free portion. (if the donee is a stranger)
3. Reduction – determining to what extent the
donation will remain and to what extent it is
excessive or inofficious.
4. Restitution – return or payment of the
excess to the mass of hereditary estate.
Persons Obliged to Collate
1. Compulsory heirs (Art. 1061, NCC).
Exceptions:
a. When the testator should have so expressly
provided; and
b. When the compulsory heir should have
repudiated his inheritance.
� The donation, in these cases, shall be
charged not to the legitime but to the free
portion
2. Grandchildren who survive with their uncles,
aunts, or 1st cousins, and inherit by right of
representation.
What to Collate:
1. Any property or right received by gratuitous
title during the testator‘s lifetime.
2. In cases of grandchildren:
a. All that their parents would have brought to
collation if alive.
b. All that they may have received from the
decedent during his lifetime
196 Center for Legal Education and Research
3. Any sums paid by a parent in satisfaction of
the debts of his children, election expenses,
fines and similar expenses.
Properties not subject to collation (2nd
concept):
1. Absolutely no collation (all concepts);
Expenses for support, education (elementary
and secondary only), medical attendance, even
in extraordinary illness, apprenticeship,
ordinary equipment, or customary gifts (Art.
1067).
2. Generally, not imputable to legitime:
a. Expenses incurred by parents in giving their
children professional, vocational or other
career unless the parents so provide or
unless they impair the legitime (Art. 1068.,
NCC).
b. Wedding gifts by parents and ascendants
consisting of jewelry, clothing, and outfit
except when they exceed 1/10 of the sum
disposable by will (Art. 1070., NCC).
4. PARTITION AND DISTRIBUTION OF
ESTATE
Partition
The separation, division and assignment of a
thing held in common among those to whom it
may belong. The thing itself may be divided, or
its value (Art. 1079, NCC).
A partition may be rescinded or annulled for the
same causes as contracts (Art. 1097, NCC).
There is co-ownership on the property between
or among heirs before partition (Art. 1078, NCC).
Persons to demand partition:
1. Decedent himself during his lifetime by an
act inter vivos or by will (Art. 1080, NCC);
2. Third person designated by the decedent
(Art. 1081, NCC);
3. The heirs themselves (Sec. 1, Rule 74, ROC);
or
4. Competent court (Rule 69, ROC)
 Purple Notes
When partition cannot be demanded:
1. Expressly prohibited by the testator for a
period not exceeding 20 years (Art. 1084,
NCC);
2. Co-heirs agreed that the estate shall not be
divided for a period which shall exceed 10
years, renewable for another 10 years (Art.
494, NCC);
3. Partition is prohibited by law (Art. 494, NCC);
or
4. Partition of the estate would render it
unserviceable for the use for which it is
intended (Art. 494, NCC).
5. When the property owned in common by co-
heirs is a family home and the testator has
not ordered its dissolution (Art. 238, NCC).
Four ways in which the estate of the
decedent may be partitioned:
1. By extrajudicial settlement (Sec. 1, Rule 74,
ROC).
2. By ordinary action for partition (Rule 69,
ROC);
3. By judicial summary settlement; or
4. By administration proceeding
Ways of Partition by the Decedent
1. By an Act of Inter Vivos
2. By a Will
Partition Inter Vivos
It is one that merely allocates specific items or
pieces of property on the basis of the pro
indiviso shares fixed by law or given under the
will to heirs or successors (Art. 1080)
It may be oral or written and need not be in
form of a will, provided that partition does not
prejudice the legitime of the compulsory heirs
(Rabuya, Civil Law Reviewer Vol. 1, 2017, p. 1002).
Partition by Will
It must be effected by a will duly executed in
accordance with the formalities prescribed by
law (Art. 783, NCC). Before it can have any force,
it must be first probated (Art. 838, NCC).
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Partition by a Third Person
A person may, by an act inter vivos or mortis
causa, instruct the mere power to make the
partition after his death to any person who is
not one of the co-heirs (Art. 1081, NCC).
Effects of Inclusion of Intruder in
Partition:
1. Between a true heir and several mistaken
heirs:
a. Partition is VOID.
b. The declaration of nullity shall result in the
delivery of everything that had been
adjudicated to the true heir;
2. Between several true heirs and a mistaken
heir – transmission to mistaken heir is VOID.
3. Through error or mistake, share of true heir
is allotted to mistaken heir:
a. Partition shall not be rescinded unless there
is bad faith or fraud on the part of the
other persons interested, but the latter shall
be proportionately obliged to pay the true
heir of his share.
b. The partition with respect to the mistaken
heir is void (Jurado, Comments and Cases in
Wills and Succession, 2009, p. 105).
A void will may be a valid partition:
a. If the will was in fact a partition; and
b. If the beneficiaries in the void will were legal
heirs.
Rescission of Partition due to Lesion (Art.
1098)
General Rule: If the partition was effected by
the decedent himself, either by an act inter vivos
or by will, it cannot be impugned on the ground
of lesion
Exceptions:
a. When the legitime of the compulsory heir is
prejudiced;
b. When it appears or may reasonably be
presumed that the intention of the testator
was otherwise
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Civil Law
Prescriptive period due to lesion: 4 years from
the date of judicial partition (Art. 1100)
Partition with Preterition (Art. 1104)
General Rule: It cannot be rescinded
Exception: It is proved that there was bad faith
or fraud on the part of the other persons
interested.
OBLIGATIONS AND CONTRACTS
(Article 1156 to 1457, Civil Code)
VI:
OBLIGATIONS
(Arts. 1156 to 1304, NCC)
A. GENERAL PROVISIONS
1. DEFINITION
An obligation is a juridical necessity to give, to
do, or not to do (Art. 1156, NCC).
It is also defined as a juridical relation whereby
a person (Creditor) may demand from another
(Debtor) the observance of a determinate
conduct, and in case of breach, may obtain
satisfaction from the asset of the latter (Makati
Stock Exchange Inc. v. Campos, G.R. No. 138814, 16
April 2009, Cited in Rabuya, Civil Law Reviewer
Volume II, 2017 Ed., p. 3).
The term juridical necessity in Article 1156 of
the Civil Code implies the existence of legal
sanctions that may be imposed upon the obligor
(debtor) in case of breach of the obligation.
Stated otherwise, the obligee (creditor) may
seek appropriate reliefs from the courts in case
of such breach (Rabuya, Obligations & Contracts,
2019 Ed., p. 5 ).
The juridical tie between two or more persons,
by virtue of which one of them, the creditor or
obligee, has the right to demand of the other,
the debtor or obligor, a definite prestation
198 Center for Legal Education and Research
(Tolentino, Civil Code of the Philippines Volume 4,
1991 ed., p.55).
General Rule: The law does not require any
form in obligations arising from contracts for
their validity or binding force. (Art. 1356, NCC)
Exceptions:
When the form is essential to the validity of the
contract as required by law (Art. 1346, NCC);
2) When the contract is unenforceable unless it
is in a certain form, such as those under the
Statute of Frauds as formulated in Art. 1403.
2. ELEMENTS OF AN OBLIGATION
1. Active subject (obligee or creditor); -The
person demanding the performance of the
obligation. It is he in whose favor the obligation
is constituted, established or created. (Paras, Civil
Code of the Philippines Annotated Vol IV, 2008, p. 77)
2. Passive subject (obligor or debtor);- The
one bound to perform the prestation to give, to
do, or not to do. (Paras, Civil Code of the Philippines
Annotated Vol IV, 2008, p. 77)
3. Object - the prestation or the particular
conduct required to be observed by the debtor
(to give, to do or not to do);
4. Juridical tie (vinculum juris) - the efficient
cause between the two subjects by reason of
which the debtor is bound in favor of the
creditor to perform the prestation.
The vinculum juris is established by:
a. Law;
b. Bilateral acts;
c. Unilateral acts. (Tolentino, 2002)
DIFFERENT KINDS OF OBJECT OR
PRESTATIONS
―to give‖ - prestation consists in the delivery of
a movable or an immovable thing in order to
create a real right, or for the use of the
recipient, or for possession, or to return to its
 Purple Notes
owner (e.g. obligation to deliver the thing in a
contract of sale, deposit, lease, antichresis,
pledge and donation)
―to do‖ - includes all kinds of work or services.
(e.g. contract of employment or professional
services)
―not to do‖ - consists in abstaining from some
act. (e.g. duty not to create a nuisance).
(Tolentino, Civil Code of the Philippines Volume 4,
1991 ed., p.57-58)
Real – if the prestation involved is that of giving
or the obligation to give.
Personal – if the prestation involved is that of
doing or not doing, i.e. obligation to do or not to
do (Paras, Civil Code of the Philippines Annotated Vol
IV, 2008, p. 79).
Absence of any of the first three makes the
object void.
CLASSIFICATION OF OBLIGATIONS
Primary Classification under the NCC:
1. Pure and Conditional Obligation (Arts. 1179 -
1192)
2. With a Period (Arts. 1193 - 1198)
3. Alternative and Facultative (Arts. 1199 - 1206)
4. Joint and Solidary (Arts. 1207 - 1222)
5. Divisible and Indivisible (Arts. 1223 - 1225)
6. With a penal clause (Arts. 1226 - 1230)
Other Classifications:
1. As to judicial enforceability:
a. Civil– Those that are based on positive
law and give a right of action to compel
their performance (Art. 1423, NCC);
b. Natural– Those that are based on equity
and natural law and which do not grant a
right of action to enforce their performance,
but after voluntary fulfillment by the obligor,
they authorize the retention of what has
been delivered or rendered by reason
thereof (Art. 1423, NCC);
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Civil Law
iii. Moral – obligations arising from the
moral law or law of the church and not from
positive law; therefore, not enforceable in
court. It is the obligation of a person in
relation to his God or Church; the sanction is
limited to conscience or morality, and not
through legality (Paras, Civil Code of the
Philippines Annotated Vol IV, 2008, p. 79).
iv. Mixed Obligation – obligations that are
in accordance with both natural and positive
law (Paras, supra, p. 77).
2. As to the subject matter:
a. Real obligation – obligations to give or
to deliver. (See Articles 1163-1166, & 1169, NCC
for the nature and effects of real obligations);
b. Personal obligation – obligations to do
or not to do. (See Articles 1167 & 1169, NCC for
the nature and effects of positive personal
obligations; and, Art. 1168, NCC for negative
personal obligations)
3. As to the number of persons bound to
perform:
a. Unilateral obligation – an obligation
where only one of the parties is bound to
fulfill a prestation;
b. Bilateral obligation – an obligation
where both parties are bound to perform a
part in the obligation.
c. Reciprocal – Obligations that depend
upon the performance of both subjects. (See
Art. 1169, last par., NCC for the effects of delay
in reciprocal obligations; and, Art 1191, NCC for
the rules regarding their rescission); and,
d. Non-Reciprocal– Obligations where
performance by one is not dependent upon
the performance of the other (Paras, Civil
Code of the Philippines Annotated Vol IV, 2008,
p. 80).
Bar Operations C ommissions 199
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Civil Law
4. As to the capability of fulfillment:
a. Possible obligation – an obligation that
is capable of accomplishment or fulfillment
in nature or in law;
b. Impossible obligation – an obligation
that is not capable of accomplishment or
fulfillment in nature or in law. (Art. 1183,
NCC)
5. As to susceptibility of partial fulfillment:
a. Divisible obligation - when the
obligation is susceptible of partial
performance;
b. Indivisible obligation – when the
obligation is not susceptible of partial
performance (Paras, Civil Code of the
Philippines Annotated Vol IV, 2008, p. 189).
6. As to their dependence upon one
another:
a. Principal obligation – refers to the
main obligation created by the parties;
b. Accessory obligation – refers to the
secondary obligation created to guarantee
the fulfillment of the principal obligation.
7. As to the existence of a burden or
condition:
a. Pure obligation – an obligation whose
performance does not depend upon a
condition or a term and is demandable at
once. (Art. 1179, NCC)
8. As to the nature of performance:
b. Conditional obligation – an obligation
which is subject to a condition. The
condition is suspensive if the happening of
which shall give rise to the acquisition of a
right; the condition is resolutory if it shall
result to the extinguishment or loss of rights
already acquired. (Art. 1181, NCC)
200 Center for Legal Education and Research
Condition, defined: It is an uncertain
event which wields an influence on a legal
relation. It is also defined as every future
and uncertain event upon which an
obligation or provision or provision is made
to depend. The essential thing about
condition is uncertainty. Thus, although the
death of the person may be in the future
and there is uncertainty as to the dates of
its arrival, the certainty of its happening
makes it a term and not a condition (Rabuya,
Civil Law Reviewer Volume II, 2017 Ed., p. 48-
49).
c. Obligation with a term – an obligation
that is subject to the fulfillment of an event
that is certain to happen, although the date
may not be known as of the moment. The
term may be suspensive (from a day
certain), if the obligation becomes
demandable only after the expiration of the
term. On the other hand, a term is
resolutory (to a day certain) if the obligation
terminates upon the expiration of the term
(Art. 1193, NCC).
When the debtor binds himself to pay when
his means permit him to do so, the
obligation shall be deemed to be one with a
term (Art. 1180, NCC). In such instance, the
courts shall fix the duration thereof (Art.
1197, NCC). The obligation therein is NOT
VOID under Art. 1182 since what is
dependent upon the sole will of the debtor is
only the TIME of payment, not the payment
itself nor a condition precedent or
antecedent thereto. As opposed to a
condition, a term only affects the
demandability of an obligation but not its
very existence.
a. Positive obligation – when a debtor is
obliged to give or do something in favor
of a creditor (Art. 1157, NCC).
b. Negative obligation – when an obligor
is forbidden from doing something (Art.
1157, NCC).
 Purple Notes
9. As to the nature of creation of the
obligation:
a. Legal obligation – obligations imposed
by law (Art. 1158, NCC);
b. Conventional obligation – obligations
established by the agreement of the
parties like contracts(Paras, Civil Code of the
Philippines Annotated Vol IV, 2008, p. 189).
10. As to the character of responsibility or
liability (when there is a concurrence of
two or more creditors or two or more
debtors in one and the same obligation)
a. Joint obligation – an obligation wherein
each debtor shall be liable only for a part of
the whole liability and to each creditor
belongs only a part of the correlative rights,
the credits/debts of which are distinct from
one another (8 Marensa 194; Art. 1208, NCC);
b. Solidary obligation (joint and
several obligation) – an obligation
wherein each one of the creditors has a
right to demand entire compliance with the
prestation, or that each one of the debtors
is bound to render entire compliance as
demanded (Art. 1207, NCC) without prejudice
to his right to collect from his co-debtors
their shares in the obligation. (Art. 1217,
par.2, NCC).
There is solidary liability only when it is
expressly stated, or when the law or the nature
of the obligation requires solidarity (Art, 1207,
NCC; See Articles 1211-1222, NCC for the effects of
solidary obligations).
11. As to the grant of right to choose one
prestation out of several, or to
substitute the first one:
a. Alternative obligation – an obligation
wherein the obligor may choose to
completely perform one out of the several
prestations (Art. 1199, NCC)
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Civil Law
b. Facultative obligation – an obligation
wherein only one prestation has been
agreed upon, but the obligor may render
another in substitution (Art. 1206, NCC).
12. As to the imposition of penalty:
a. Simple obligation – an obligation
wherein no penalty is imposed for the
violation of its terms (Art. 1226, NCC);
b. Obligation with penalty – an obligation
that imposes a penalty for violation of its
terms (Art. 1226, NCC).
13. From the viewpoint of the object
a. Determinate / specific - Particularly
designated or physically segregated
from all others of the same class;
b. Generic – Designated merely by its
class or genus;
c. Limited generic – Generic objects
confined to a particular class or source
(e.g. An obligation to deliver one of my
horses) (Paras, Civil Code of the Philippines
Annotated Vol IV, 2008, p. 440).
3. SOURCES OF OBLIGATIONS (Arts. 1156
– 1157, NCC)
1. Law;
2. Contracts;
3. Quasi-contracts;
4. Acts or Omissions punished by Law
5. Quasi-delict. (Art. 1157. NCC)
This enumeration is exclusive. No obligation
exists if its source is not one of those
enumerated in Art. 1157 of the NCC.(Sagrada v.
NACOCO , G.R. No. L-3756, June 30, 1952).
Time of perfection
General Rule:
1. Law – From the time designated by the law
creating or regulating them;
2. Contracts –From the time of the perfection of
the contract. e.g. meeting of the minds.
Bar Operations C ommissions 201
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Civil Law
XPNs:
a. When the parties made stipulation on the
right of the creditor to the fruits of the
thing;
b. When the obligation is subject to a
suspensive condition, it arises upon
fulfillment of the condition;
c. When the obligation is with a period, there is
already an existing obligation but
demandable only when the period expires or
becomes due.
3. Quasi Contracts, delicts, quasi-delict – From
the time designated by the law creating or
regulating them.
Law – Obligations derived from law are not to
be presumed but must be expressly provided for
by law (Art. 1158, NCC). (e.g. obligation to give
legal support under the provisions of the Family
Code)
NOTE: If there is conflict between the NCC and
a special law, the latter prevails unless the
contrary has been expressly stipulated in the
NCC (NCC, Art. 18; Paras, Civil Code of the
Philippines Annotated Vol IV, 2008, p. 86).
Determining whether an obligation arises from
law or from some other source
1. Arises from law if it establishes obligation;
2. Arises from the act itself if the law merely
recognizes the existence of an obligation
generated by an act (Manresa).
Examples:
a. According to Art. 2014 of the NCC, a loser in
a game of chance may recover his loss from
the winner, with legal interest from the time
he paid the amount lost (Leung Ben v. O‘Brien,
G.R. No. L13602, April 6, 1918);
b. The obligation of the spouses to support each
other;
c. The obligation of the employers under the
Worker‘s Compensation Act;
d. The obligations of the owners of the
dominant and servient estates in legal
202 Center for Legal Education and Research
easements and others scattered in the NCC
and in special laws;
e. The obligation to pay taxes.
Contracts - A Contract is a meeting of minds
between two persons whereby one binds
himself, with respect to the other, to give
something or to render some service. (Art. 1305,
NCC)
Requisites of a contractual obligation
1. It must contain all the essential requisites of
a contract (Art. 1318, NCC); and
2. It must not be contrary to law, morals, good
customs, public order, and public policy (Art.
1306, NCC).
Rules governing the obligations arising
from contracts
General Rule: Obligations arising from
contracts shall be governed primarily by the
stipulations, clauses, terms and conditions of the
parties‘ agreements.
Exception: Contracts with prestations that are
unconscionable or unreasonable (Pineda, 2009).
General Rule: Neither party may unilaterally
evade his obligation in the contract.
Exceptions: Unilateral evasion is allowed when
the:
1. Contract authorizes such evasion; or
2. Other party assents thereto.
c. Quasi-Contract - Quasi-contracts are those
juridical relations arising from lawful,
voluntary and unilateral acts, by virtue of
which the parties become bound to each other,
based on the principle that no one shall be
unjustly enriched or benefited at the expense of
another (Art. 2142, NCC)
Characteristics of a quasi-contract
1. It must be Lawful;
2. It must be Unilateral; and
 Purple Notes
3. It must be Voluntary (Paras, Civil Code of the
Philippines Annotated Vol IV, 2008, p. 94).
Contract v Quasi-Contract
CONTRACT QUASI-CONTRACT
With consent Unilateral act. There is no
whether express or consent given whether
implied. express or implied.
The 2 Principal Kinds:
1. Negotiorum Gestio (unauthorized
management); - arises when a person
voluntarily takes charge of the management of
the business or property of another without any
power from the latter.
2. Solutio indebiti (unjust enrichment)–takes
place when a person receives something from
another without any right to demand for it, and
the thing was unduly delivered to him through
mistake.
3. Acts or Omissions punished by Law
Basis: Every person liable for felony is also civilly
liable. (Art. 100, RPC)
Implied institution of the civil action in a
criminal case
General Rule: When a criminal action is
instituted, the civil action for the recovery of the
civil liability arising from the offense charged
shall be deemed instituted with the criminal
action (Sec. 1, Rule 111, Rules of Court).
Exceptions: When the offended party:
1. Waives the civil action;
2. Reserves the right to institute it separately;
and
3. Institutes the civil action prior to the criminal
action (Rule 111, Sec. 1, Rules of Court).
Civil liability includes the following:
1. Restitution
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Civil Law
2. Reparation of the damage caused
3.Indemnification for consequential damages
(Art. 104, RPC)
Acquittal in criminal case
General Rule: The acquittal of the accused in a
criminal case on the ground of reasonable doubt
does not preclude the filing of a subsequent civil
action and only preponderance of evidence is
required to prove the latter.
Exceptions: When the acquittal is on the basis
that:
1. The accused did not commit the crime
charged; or
2. There is a declaration in the decision of
acquittal that no negligence can be
attributed to the accused and that the fact
from which the civil action might arise did
not exist (NCC, Art. 29).
Basis of civil liability Ex Delicto:
Criminal liability shall give rise to civil liability
only if the same felonious act or omission results
in damage or injury to another and is the direct
and proximate cause thereof (Romero Y
Dominguez v. People, G.R. 167546, July 17, 2009). In
other words, there must be a PRIVATE offended
party. Hence, in rebellion, treason or illegal
possession of firearms, there is no civil liability
ex delicto.
e. Quasi-delict
Whoever by act or omission causes damage to
another, there being fault or negligence, is
obliged to pay for the damage done. Such fault
or negligence, if there is no pre-existing
contractual relation between the parties, is
called a quasi-delict (Art. 2176, NCC).
NOTE: A single act or omission may give rise to
two or more causes of action. Thus, an act or
omission may give rise to an action based on
delict, quasi‐delict or contract.
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Civil Law
Elements of a quasi-delict
1. Negligent or wrongful act or omission;
2. Damage or injury caused to another;
3. Causal relation between such negligence or
fault and damage; and
4. No pre-existing contractual relationship
between the parties (Art. 2176, NCC).
Textile v. Engr. Adviento, G.R. 171212, August 4,
2014).
TEST OF NEGLIGENCE: Would a prudent man,
in the position of the person on whom
negligence is attributed, foresee harm to the
person injured as a reasonable consequence of
the course about to be pursued (Picart v. Smith,
G.R. No. L-12219, March 15, 1918.

Scope of Quasi-Delict:
Instances when Art. 2176 is inapplicable

Culpa aquiliana (fault or negligence) covers not

1. When there was a pre‐existing contractual
relation because the breach of contract is the
source of the obligation (Robles v. Yap Wing,
41 SCRA 267, G.R. No. L-20442, October 4,
1971);
NOTE: However, if the act that breaches the
contract is tortuous, the pre‐existing contractual
relation will not bar the recovery of damages
(Singson v. BPI, G.R. No. L-24837, June 27, 1968);
2. When the fault or negligence is punished by
law as a crime, Art. 100 of RPC shall be
applicable;
only acts ―not punishable by law‖ but also acts
criminal in character, whether intentional and
voluntary or negligent (Safeguard Security Agency
v. Tangco, et. al., G.R. 165732, December 14, 2006).
Hence, the same negligent act causing damages
may produce two kinds of civil liability: (1) civil
liability arising from a crime under Article 100 of
the RPC, or (2) an action for quasi-delict or
culpa extra-contractual under Article 2176 of the
Civil Code (Cerezo v. Tuazon, G.R. 141538, March
23, 2004).
Prohibition against double recovery:

3. If the action for quasi‐delict is instituted after The plaintiff cannot recover damages twice for
4 years, it is deemed prescribed (Afialda v. the same act or omission of the defendant (Art.
Hisole, G.R. No. L-2075, November 29, 1949); 2177, NCC).

4. When the injury suffered by a person is the Delict v Quasi Delict

result of a fortuitous event without human
intervention; DELICT QUASI - DELICT
Affects public interest; Affects private concern
5. If there is no damage or injury caused to only;
another (Walter A. Smith & Co. v. Cadwallader Criminal act is punishable Damage done is repaired
Gibson Lumber Company, G.R. No. L-32640, under the Penal Code; by means of
December 29, 1930). indemnification under the
Civil Code;
Punishable only if there is Punishes all acts in which
Requisites for recovery: a penal law covering the any kind of fault or
crime committed. (Diana negligence intervenes.
1. Damages suffered by the plaintiff; v. Batangas (Diana v. Batangas
Transportation, G.R. L- Transportation, G.R. L-
2. Fault or negligence of the defendant, or 4920, June 29, 1953) 4920, June 29, 1953)
some other person for whose acts he must Guilt must be proved Guilt may be proved by
respond; and beyond reasonable preponderance of
doubt. evidence.
3. The connection of cause and effect between
Criminal liability is not The civil liability can be
the fault or negligence of the defendant and subject to a compromise. compromised.
the damage incurred by the plaintiff (Indophil

204 Center for Legal Education and Research

 Purple Notes
Pre-existing contractual obligation, not
bar to recovery under Quasi-Delict:
In fine, a liability for tort may arise even under a
contract, where tort is that which breaches the
contract (Loadmasters Custom Services v. Glodel
Brokerage, G.R. 179446, January 10, 2011). Stated
differently, when an act which constitutes a
breach of contract would have itself constituted
the source of a quasi-delictual liability had no
contract existed between the parties, the
contract can be said to have been breached by
tort, thereby allowing the rules on tort to apply
(LRTA v. Navidad, G.R. No. 145804, February 6,
2003).
B. NATURE AND EFFECT OF OBLIGATIONS
1. REAL OBLIGATION (OBLIGATION TO
GIVE)
An obligation to give may either involve a
determinate or generic thing.
It is determinate when the object is
particularly designated or physically segregated
from all others of the same class (Art. 1460[1],
NCC).
It is generic when the object is designated
merely by its class or genus.
It is delimited generic when confined to a
particular class e.g. An obligation to deliver one
of my horses.
A. Obligation to give a determinate or
specific thing
Accessory obligations in determinate
obligation
1. Obligation to take care of the thing with the
proper diligence of a good father of a family,
unless the law or the stipulation of parties
requires another standard of care (Art. 1163,
NCC).
2018
Civil Law
General rule: The diligence required is that
of a good father of a family.
Exceptions:
a. If the law requires another standard of
care
b. If the parties stipulate another standard
of care
2. Obligation to deliver the fruits from the
time the obligation to deliver (the principal
thing) arises (Art. 1164, NCC); and
 The creditor acquires a right to demand
for the delivery of the fruits of the
determinate thing due from the time the
obligation to deliver the determinate
thing arises (Art. 1164, NCC).
3. Obligation to deliver the accessions and
accessories (Art. 1166, NCC).
With respect to what is produced by a
property – FRUITS may be natural,
industrial, or civil.
With respect to an immovable property –
whatever is built, planted or sown on the
land of another and the improvements or
repairs made thereon (Art. 445, NCC).
4. To be liable for damages in case of breach of
obligation by reason of delay, fraud, negligence
or contravention of the tenor thereof (Art. 1170,
NCC).
XPN: The debtor is not liable in case the
determinate thing was lost due to a fortuitous
event (Art. 1174, NCC). However, this does not
apply in case of loss of a generic thing.
B. Obligation to give indeterminate or
generic thing
A thing is indeterminate if it is designated
merely by its class or genus without any
particular designation or segregation from all
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Civil Law
others of the same class (Gaisano Cagayan, Inc. v. a. If the debtor fails to do the obligation;
Insurance Co., of North America, G. R. No. 147839, or
June 8, 2006).
Remedies of the creditor in case of
Accessory obligations in generic breach:
obligation
i. To have the obligation performed or
1. To deliver a thing which is neither of superior executed at the expense of the debtor (Art.
or inferior quality (Art. 1246, NCC). 1157[2], NCC).
2. To be liable for delay in case of breach of the
obligation by reason of delay, fraud, Note: This does not apply if the prestation
negligence, or contravention of the tenor consists of an act where the personal or
thereof (Art. 1170, NCC). special qualification of the debtor is the
principal motive for the establishment. In
2. In case the generic thing is lost due to a such cases, the creditor has no other remedy
fortuitous event, the obligation is not but demand for damages (Jurado, Comments
extinguished based on the precept that the and Jurisprudence on Obligations and Contracts,
genus of a thing can never perish (genus 2010, p.52-53).
nunquam peruit) ((Paras, Civil Code of the
Philippines Annotated Vol IV, 2008, p. 437). ii. At the same time, demand for damages by
reason of the breach (Art. 1170, NCC).
Remedies of the creditors:
b. Even in case of performance but the
SPECIFIC GENERIC OBLIGATION same is done either in a poor manner or
OBLIGATION in contravention of the tenor of the
Specific performance Specific performance obligation.
(delivery of any thing
belonging to the same
species)
Remedies of the creditor:
Rescission (action to Ask that the obligation be
rescind under Art. complied with at the i. To have the obligation performed or executed
1380, NCC) debtor‘s expense at the expense of the debto(Art. 1157, NCC);
Resolution (action for Resolution or specific ii. To ask that what has been poorly done be
cancellation under Art. performance, with undone (Art. 1157, NCC); and,
1191, NCC) damages in either case iii. To recover damages because of breach of the
(Art. 1191, NCC) obligation (Art. 1170, NCC).
Damages, in both cases (Art. 1170, NCC)

Note: May be exclusive or in addition to the 2. Negative obligation - if the prestation

above‐mentioned remedies (Pineda, Obligations and consists of not doing (e.g. negative
Contracts, 2000 ed, p. 37) easements, See Art. 616, NCC; particularly,
easements of light and view, See Arts. 667-
2. PERSONAL OBLIGATION (OBLIGATION 673, NCC).
TO DO OR NOT TO DO)
Remedies in case of breach of negative
Two kinds: obligation:

1. Positive obligation (Obligations to do) i. To have it undone at the expense of the

debtor. (Art. 1168, NCC); and,
ii. To ask for damages (Art. 1170, NCC).
Considered breached if:

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 Purple Notes
3. TRANSMISSIBILITY OF OBLIGATIONS
Subject to the laws, all rights acquired in virtue
of an obligation are transmissible, if there has
been no stipulation to the contrary (Art. 1178,
NCC).
General Rule: Rights are transmissible which
can be alienated and transferred to third
persons.
Exceptions:
1. When they are intransmissible by their very
nature, such as in the case of a personal
right;
2. When there is a stipulation of the parties that
they are not transmissible;
3. When they are not transmissible by operation
of law ((Paras, Civil Code of the Philippines
Annotated Vol IV, 2008, p. 183).
4. PERFORMANCE OF OBLIGATIONS
Payment means not only the delivery of money
but also the performance, in any manner of an
obligation (Art. 1232, NCC).
Obligations To Give:
It shall be understood to have been paid when
the debtor has completely delivered the thing
which he obligated himself to deliver.
Obligations To Do:
It shall be understood to have been performed
when the debtor has completely rendered the
service which he has obligated himself to
render.
Obligations Not to Do:
It shall be understood to have been complied
with when the debtor has completely refrained
from doing that which he had obligated himself
to to do (Jurado, Obligations & Contracts, 2010 Ed.,
p. 232).
2018
Civil Law
(This topic shall be further discussed in Payment
or Performance as a mode of extinguishment of
an obligation)
5. BREACHES OF OBLIGATIONS
Forms of breach of obligations:
1. Voluntary breach - Those causes which
arise from the will of the parties. Debtor is
liable for damages if he is guilty of:
1. Default (mora)
2. Fraud (dolo)
3. Negligence (culpa)
4. Breach through contravention of the
tenor thereof
2. Involuntary breach – debtor is unable
to perform the obligation due to fortuitous
event, thus not liable for damages.
VOLUNTARY BREACH OF OBLIGATIONS:
1. Delay/Default (Mora)
Three Kinds of Default:
1. Mora Solvendi – There is delay on the part
of the debtor.
a. Mora solvendi ex re – refers to obligation
to give;
b. Mora solvendi ex persona – refers to
obligation to do (Paras, Civil Code of the
Philippines Annotated Vol. IV, 2008, p. 125).
Requisites in order to consider debtor in
default:
1. The obligation is demandable and already
liquidated;
2. The debtor delays performance; and,
3. The creditor requires the performance
judicially or extrajudicially (Aerospace Chemical
Industries, Inc. v. CA, G.R. No. 108129 cited by
Jurado, 2010).
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 Purple Notes
Civil Law
Default in Positive Obligations (to give or
to do)
General rule: The debtor is in delay or in
default only if there has been a DEMAND made
by the creditor, either judicial or extrajudicial in
cases of positive obligations to give or to do (Art.
1169, NCC).
Exceptions: Demand is no longer necessary in
order to place the debtor in delay or in default:
1. The law expressly declares that demand is
not necessary;
2. The stipulation of the parties expressly
states that demand is not necessary;
Under the first and second exception, it is
not enough that the law or the obligation
fixes a period for the performance of the
latter, if it does not expressly add that, upon
the expiration thereof, delay shall
commence. Hence, mere expiration of the
period fixed by the parties will not cause
delay (Palmares v. CA, G.R. No. 126490, 31
March 1998).
3. The time is the controlling motive for the
establishment of the contract.
 In determining whether time is of the
essence of the contract, the ultimate
criterion is the actual or apparent intention
of the parties and before time may be so
regarded by the court, there must be a
sufficient manifestation, either in the
contract itself or the surrounding
circumstances of that intention (Lorenzo
Shipping Corp. v. BJ Marthel International, Inc.,
G.R. 145483, November 19, 2004).
4. Demand would be useless, as when the
debtor has rendered the obligation beyond
his power to perform (Art. 1169, NCC).
208 Center for Legal Education and Research
Default in Negative Obligations (not to do)
Default is not possible in negative obligations
due to their special nature (Paras, Civil Code of the
Philippines Annotated Vol. IV, 2008, p. 125).
Effect of delay/default:
1. Debtor is liable for damages (Art. 1170, NCC);
2. Debtor is liable for a fortuitous event until
he has affected the delivery (Art. 1165 last
par., NCC).
2. Mora Accipiendi – There is delay on the
part of the creditor;
The improper refusal of the lessor (creditor) to
accept the rents tendered by the lessee places
said lessor in default (mora) and he must
shoulder the subsequent accidental loss of the
premises leased. The mora accipiendi of said
lessor is not cured by the lessee‘s failure to
make consignation of the rejected payments,
but the lessee remains obligated to pay the
amounts he had tendered but did not deposit in
court (Vda. de Villaruel, et al. v. Manila Motor Co.
&Caloniares, L-10394, Dec. 3, 1958).
(The effects of mora accipiendi are discussed
under consignation)
3. Compensatio Morae – Delay of both
parties existing in reciprocal obligations
when neither of them has performed the
prestation required.
Concept of Reciprocal Obligations:
 These are obligations arising from the SAME
CAUSE, and in which each party is a debtor
and a creditor of the other, such that the
obligation of one is dependent upon the
obligation of the other. They are to be
performed SIMULTANEOUSLY such that the
performance of one is conditioned upon the
simultaneous fulfillment of the other (DBP v.
Guariña G.R. 160758, January 15, 2014).
 Purple Notes 2018
Civil Law
If a reciprocal obligation has a condition, the Effect of non-compliance of both parties in
fruits and interests during the pendency of the reciprocal obligations
condition shall be deemed to have been
mutually compensated (Art. 1187[1], NCC). If neither party complies with his prestation,
default of one compensates for the default of
Requirement of Demand- In reciprocal the other.
obligations, as in a contract of sale, the general
rule is that the fulfillment of the parties‘ Art. 1191 v. 1380 (Recission)
respective obligations should be simultaneous. Rescission / Rescission (Art. 1380,
Hence, no demand is generally necessary Resolution (Art. 1191, NCC)
because, once a party fulfills his obligation and NCC)
the other party does not fulfill his, the latter Based on non- Based on lesion or fraud
automatically incurs in delay. But when different performance or non- upon creditors.
dates for performance of the obligations are fulfillment of obligation
fixed, the default for each obligation must be Action is instituted only Action is instituted by
by the injured party either party or by a third
determined by the rules given in the first
person.
paragraph of Art. 1169, NCC, that is, the other Nonperformance by the Nonperformance by the
party would incur in delay only from the moment other party is important other party is immaterial.
the other party demands fulfillment of the
former's obligation. Thus, even in reciprocal
B. Fraud in the performance of obligation
obligations, if the period for the fulfillment of the
obligation is fixed, demand upon the obligee is
still necessary before the obligor can be Fraud is the deliberate and intentional evasion of
considered in default and before a cause of the normal fulfillment of obligations. There is
action for rescission will accrue (Solar Harvest Inc. malice or bad faith (Art. 1170, NCC).
v. Davao Corrugated Carton Corp. G.R. No. 176868,
26 July 2010). Responsibility arising from fraud is demandable
in all obligations. Any waiver of an action for
When delay occurs future fraud is void (Art. 1171, NCC).

In reciprocal obligations, neither party incurs in Kinds of Fraud (Dolo):

delay if the other does not comply or is not
ready to comply in a proper manner with what is
incumbent upon him. From the moment one of
the parties fulfills his obligation, delay by the
other begins (Art. 1169, last par., NCC).
 Rescission of reciprocal obligations in Art.
1191, NCC is different from rescission of
contracts in Art. 1383, NCC. The former is
based on resolution due to a breach of faith
by one party while the latter involves a
subsidiary action due to lesion (Ong v. CA,
G.R. 97347, July 6, 1999).
1. Incidental Fraud (Dolo Incidente) –
Fraud is merely incidental to the
performance of an already existing
obligation. It renders the debtor liable for
damages.
2. Causal Fraud (Dolo Causante) – Fraud is
the very reason for the existence of the
obligation. It is the fraud employed by one
party to induce the other to enter into a
contract with him. This is a ground to annul
the contract Fraud is the deliberate and
intentional evasion of the normal fulfillment
of obligations. There is malice or bad faith
(Paras, Civil Code of the Philippines Annotated Vol.
IV, 2008, p. 642).

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 Purple Notes
Civil Law
INCIDENT Kinds of Negligence (Culpa):
v. CAUSAL FRAUD
AL FRAUD
During the At the time of the birth 1. Culpa Contractual – Negligence is merely
performanc of the obligation incidental to the performance of an already
e of an When existing obligation. The source of obligation
existing present
obligation is contract and the occurrence of negligence
during the performance of the obligation
Evading the Securing the consent of only renders the debtor liable for damages.
normal the other party to enter
2. Culpa Extra-Contractual or Culpa
fulfillment in to contract
of an Purpose Aquiliana - Negligence is the very source
obligation of the obligation. Without the negligence,
there is no juridical tie between the parties
Breach or Voidable contract since (Jurado, Comments and Jurisprudence on
non- consent is vitiated
Obligations and Contracts, 2010, p. 65).
fulfillment
of the Result
obligation General Rule: The diligence required is that of
Recover Annulment of the
a good father of a family.
damages contract
from the Remedy of Exceptions:
debtor the
innocent
party
1. If the law requires another standard of care
(e.g. in case of common carries, the
(De Leon, Obligations and Contracts, 2010, p. 52-53) diligence required is extraordinary diligence)
2. If the parties stipulate another standard of
In order that fraud may vitiate consent, it must care
be the causal (dolo causante), not merely the
incidental (dolo incidente), inducement to the  In case of fraud, bad faith, malice or
making of the contract (Tanke v. DBP, G.R. No. wanton attitude, the obligor shall be
171428, November 11, 2013). responsible for all damages which may
be reasonably attributed to the non-
C. Negligence in the performance of performance of the obligation (Art. 2201,
obligation NCC).

Negligence or Culpa defined: It is the D. Contravention of tenor of obligation

omission of that diligence which is required by
the nature of the obligation and corresponds
with the circumstances of the persons of the
time and place (Art. 1173, NCC). It is the failure
to observe for the protection of the interests of
another person that degree of care, precaution
and vigilance, which the circumstances justly
demand, by reason of which such other person
suffers injury (ANECO v. Balen, G.R. No. 173146, 25
November 2009, cited in Rabuya, Civil Law Reviewer,
Volume II, 2017 Ed., p. 42)
It includes all cases of defective performance
and even cases of non-performance attributable
to the debtor even though there is no bad faith,
malice or negligence (Art. 1167, NCC).
Effect: It renders the debtor liable for damages
(Art. 1170, NCC).
 Under Art. 1170, NCC, the phrase ―in
any manner contravene the tenor‖ of
the obligation includes any illicit act
which impairs the strict and faithful
fulfillment of the obligation, or every
kind of defective performance.

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 Purple Notes
Legal excuse for breach of obligation:
fortuitous event
 A fortuitous event has been defined as one
which could not be foreseen, or which
though foreseen, is inevitable (Art. 1174,
NCC; The Philippine American General Insurance,
Co., Inc. v. MGG Marine Services, Inc. G.R. No.
135645, March 8, 2002). A fortuitous event
under Article 1174 may either be an ―act of
God‖, or natural occurrences such as riots,
strikes or wars (Philippine Communication
Satellite Corp., v. Globe Telecom, Inc., G.R. No.
147324, May 25, 2004).
General Rule: The debtor is not liable for non-
performance of the obligation due to fortuitous
event (Art. 1174, NCC). The obligation is
extinguished.
Requisites: To exempt the obligor from liability
for a breach of an obligation by reason of a
fortuitous event, the following requisites must
concur:
1. Cause of the breach of the obligation must
be independent of the will of the debtor;
2. Event must be either unforeseeable or
unavoidable;
3. Event must be such as to render it
impossible for the debtor to fulfill his
obligation in a normal manner, and
4. Debtor must be free from any participation
in, or aggravation of the injury to the
creditor. (Mondragon Leisure and Resorts Corp.,
v. CA G. R. No. 154188, June 15, 2005)
Exceptions to the Rule: In the following
cases, the debtor remains liable for non-
performance of the obligation due to fortuitous
event:
1. In cases expressly specified by law;
e.g. If the obligor delays, or has promised to
deliver the same thing to two or more
persons who do not have the same interest,
he shall be responsible for fortuitous event
2018
Civil Law
until he has effected the delivery (Art. 1165,
last par., NCC).
2. When the stipulation of the parties provides
to that effect (Art. 1174, NCC);
3. When the nature of the obligation
requires the assumption of risk (Art. 1174, NCC);
 If the robbery takes place without any
concurrent fault or negligence on the part
of the debtor, it may exempt the debtor
from liability (Hernandez v. Chairman, COA,
G.R. 71871, November 6, 1989). But the
robbery is not considered fortuitous event
if it takes place with the concurrent fault
or negligence of the debtor. Hence, when
the robbery took place in a pawnshop
which is under the control of the
petitioners, the latter are not exempt from
liability because they failed to exercise the
required degree of diligence. (Sicam v.
Jorge, G.R. 159617, August 8, 2007)
4. When the object of the obligation is lost and
the loss is due partly to the fault of the
debtor.
5. When the loss occurs after the debtor is in
considered in delay (Art. 1165, NCC)
6. When the debtor promised to deliver the
same thing to two or more persons who do
not have the same interest (Art. 1165, NCC);
7. When the obligation to deliver arises from a
criminal offense (Art. 1268, NCC); and,
8. When the obligation is generic (Art. 1263,
NCC).
Effects of fortuitous event:
1. On determinate obligation – the obligation is
extinguished
2. On generic obligation – the obligation is not
extinguished (genus nun quam peruit –
genus never perishes) (Art. 1263, NCC)
Bar Operations C ommissions 211
 Purple Notes
Civil Law
Act of God v Act of Man
ACT OF GOD ACT OF MAN
Fortuitous event Force majeure
Event which is Event caused by the
absolutely independent legitimate or illegitimate
of human intervention acts of persons other than
the obligor
e.g. Earthquakes, e.g. Armed invasion,
storms, floods, robbery, war
epidemics
NOTE: they both refer to causes independent of
the will of the obligor
Q: Kristina brought her diamond ring for
cleaning to a jewelry shop which failed to
fuilfill its promise to return such ring in
February 1, 1999. Kristina went back to
the shop on February 6, 1999 but she was
informed that the ring was stolen by a
thief the night before. Kristina filed an
action for damages against the jewelry
shop which put up the defense of force
majeure. Will the action prosper or not?
(2000 Bar)
A: YES. The action will prosper. Since the
defendant was already in default for not having
delivered the ring when delivery was demanded
by the plaintiff at due date, the defendant is
liable for the loss of the thing and even when
the loss was due to force majeure.
The defendant who is obliged to deliver incurred
delay from the time the plaintiff extrajudicially
demands the fulfillment of the obligation (Art.
1169, NCC). The defendant shall be held liable for
the loss of the thing even if it was due to a
fortuitous event.
Q: AB Corp entered into a contract with XY
Corp for the construction of the research
and laboratory facilities of the XY Corp. XY
Corp paid 50% of the 10M contract price.
On the other hand AB agreed to complete
the work for 18months. After 17 months,
work was only 45% completed as AB Corp
experienced work slippage due to labor
unrest.
212 Center for Legal Education and Research
(a) Can the labor unrest be considered a
fortuitous event?
(b) Can XY Corp. unilaterally and
immediately cancel the contract?
(c) Must AB Corp. return the 50% down
payment? (2008 Bar)
A:
a.) NO, Labor unrest is not a fortuitous event
that will excuse AB Corp. from complying with
its obligation of constructing the research and
laboratory facilities of XY Corp. The labor unrest,
which may even be attributed in large part to AB
Corp. itself, is not the direct cause of non-
compliance by AB Corp. It is independent of its
obligation. It is similar to the failure of a DBP
borrower to pay her loan just because her
plantation suffered losses due to the cadang-
cadang disease. It does not excuse compliance
with the obligation (DBP v. Vda. De Moll, G.R. No.
L-25802, January 31, 1972). AB Corp. could have
anticipated the labor unrest which was caused
by delays in paying the laborer‘s wages. The
company could have hired additional laborers to
make up for the work slowdown.
b.)YES. XY Corp. may unilaterally cancel the
obligation but this is subject to the risk that the
cancellation of the reciprocal obligation being
challenged in court and if AB Corp. succeeds,
then XY Corp. will be declared in default and be
liable for damages.
c.) NO, under the principle of quantum meruit,
AB Corp. had the right to retain payment
corresponding to his percentage of
accomplishment less the amount of damages
suffered by XY Corp. because of the delay or
default.
Q: Jacinto Tanguilig constructed a
windmill system for Vicente Herce, Jr. for
P60,000 with a one-year guaranty. Herce
made a downpayment of P30,000 and an
installment payment of PI5,000, leaving a
balance of Pi5,000. He refused to pay the
balance because the windmill system
collapsed after a strong wind hit the place.
 Purple Notes 2018
Civil Law
Is Tanguilig exempt from liability due to person at the cost of expense of the debtor
fortuitous event? the debtor. Same rule (Art. 1168, NCC).
shall be observed if
A: No. In order for a party to claim exemption obligor does it in If undoing is no
from liability due to fortuitous event, one contravention of the longer possible, either
requisite is that the event must be either tenor of the obligation. physically or legally,
unforeseeable or unavoidable. A strong wind in (Art. 1167, NCC); OR the remedy is simply
this case cannot be fortuitous, unforeseeable, or
indemnification for
unavoidable. On the contrary, a strong wind The creditor may damages (Art. 1170,
should be present in places where windmills are demand that what has NCC).
constructed, otherwise the windmills will not
been poorly done be
turn. Given the newly-constructed windmill undone at the expense
system, the same would not have collapsed had
of the debtor (Art. 1167,
there been no inherent defect in it which could par. 2).
only be attributable to Tanguilig. When the
windmill failed to function properly, it became
incumbent upon Tanguilig to repair it in 2. Rescission
accordance with his guaranty and bear the
expenses therefor (Jurado, Civil Law Reviewer, 2009, Cancellation of the contract or reciprocal
p. 717 citing Tanguilig vs. CA and Herce, G.R. No. obligation in case of breach on the part of one,
117190, January 2, 1997). which breach is violative of the reciprocity
between the parties. This is properly called
6. REMEDIES AVAILABLE TO THE resolution (Art. 1191, NCC).
CREDITOR IN CASE OF BREACH
3. Damages, in any Event
1. Specific Performance
The injured party may choose between the
When positive personal obligation fulfillment and the rescission of the obligation,
(obligation to do) is considered breached with the payment of damages in either case. He
(Art. 1170, NCC). may also seek rescission, even after he has
chosen fulfillment, if the latter should become
It may be breached in two ways: impossible (Art. 1191[2], NCC).

a. There is no performance at all; or The court shall decree the rescission claimed
b. There is performance but the same is either unless there be just cause authorizing the fixing
poor or in contravention of the tenor of the of a period (Art. 1191 [3], NCC).
obligation.
This is understood to be without prejudice to the
Remedies in cases of breach of: rights of third persons who have acquired the
thing, in accordance with Articles 1385 and 1388
POSITIVE NEGATIVE and the Mortgage Law.
PERSONAL PERSONAL
OBLIGATION OBLIGATION 4. Subsidiary Remedies of Creditors

If there is failure to do If it is still possible, 1. Accion Subrogatoria

what has been the remedy is to
promised, the demand that what The law expressly grants to the creditor the
obligation may be has been done be right to exercise all of the rights and bring all of
executed by another undone at the the actions which the debtor may have against

Bar Operations C ommissions 213

 Purple Notes
Civil Law
third persons (Jurado, Comments and Jurisprudence
on Obligations and Contracts, 2010 ed., p. 104).
Exception: Purely personal rights in the sense
that they are inherent in the person of the
debtor.
Requisites:
1. Debtor to whom the right of action properly
pertains must be indebted to the creditor;
2. Creditor must be prejudiced by the inaction
or failure of the debtor to proceed against
the third person;
3. Creditor musts have pursued or exhausted
all the properties of the debtor, which are
not exempted for execution.
b. Accion Pauliana
It refers to the right available to the creditor for
the rescission of any act of the debtor which is
in fraud and to the prejudice of his rights as a
creditor. By its very nature, it is subsidiary in
character (Art. 1383, NCC).
Requisites:
1. There must be a credit prior to alienation;
2. Debtor has made a subsequent contract
conveying a patrimonial benefit to a third
person;
3. The creditor has no other legal remedy to
satisfy his claim;
4. The act being impugned is fraudulent; and
5. The third person who received the property
conveyed, if by onerous title, has been an
accomplice in the fraud (Siguan v. Lim, G.R.
134685, November 19, 1999).
c. Accion Directa
The right of a person to go directly against
another who is not a privy to the contract (Arts.
1652, 1608, 1729 and 1893, NCC).
214 Center for Legal Education and Research
NOTE:
1. Subsidiary liability of sublessee for the rent
(Art. 1652, NCC);
2. Right of sellers a retro to redeem property
from persons other than the buyer a retro
(Art. 1608, NCC);
3. Subsidiary liability of owners to laborers and
material men (Art. 1729, NCC); and
4. The principal may sue the substitute of the
agent with respect to the obligations which
the substitute has contracted under the
substitution (Art. 1893, NCC).
C. DIFFERENT KINDS OF OBLIGATIONS
1. Pure Obligation
It is an obligation whose performance does not
depend upon a future or uncertain event, or
upon a past event unknown to the parties. Pure
obligations are demandable at once (Art. 1179
[1], NCC).
Effect: Its effectivity or extinguishment does
not depend upon the fulfillment or non-
fulfillment of a condition or upon the expiration
of a term or period and characterized by the
quality of its being IMMEDIATELY DEMANDABLE
(Art. 1179, NCC).
Past Event Unknown to the Parties – A
―future knowledge of a past event‖ will
determine whether or not an obligation will rise.
An obligation which depends on such event is an
obligation with a term since a past event is a
certain event, and such event only affects the
demandability of the obligation (e.g., an
obligation to give monetary assistance after a
survey of the aftermath of a calamity has been
conducted; the amount thereof depends on the
number of casualties thus surveyed) (Art. 1179
[1], NCC).
2. Conditional Obligation
It refers to one where the acquisition of rights,
as well as the extinguishment or loss of those
already acquired, shall depend upon the
 Purple Notes 2018
Civil Law
happening of the event which constitutes the moment when the essential elements, which
condition (Art. 1181, NCC). gave birth to the obligation, have taken
place. (day of the constitution of the
Conditional Obligation v. with a period obligation). The condition which is imposed
is only accidental, not an essential element
CONDITIONAL OBLIGATION WITH A of the obligation. This is applied only to
OBLIGATION TERM/PERIOD consensual contracts. No application to real
A Condition is any Any future but certain contracts which can only be perfected by
future and uncertain event (Jurado, delivery (Art.1187 [1], NCC).
event which wields an Comments and
influence on a legal Jurisprudence on
relationship (Jurado, Obligations and
b. Resolutory Condition (―Condition
Comments and Contracts, 2010 ed., p. Subsequent‖) – A future and uncertain
Jurisprudence on 146). event, the happening of which extinguishes
Obligations and obligations or rights already acquired.
Contracts, 2010 ed., p.
108). SUSPENSIVE RESOLUTORY
CONDITION CONDITION
During the pendency of During the
Affects the very Affects ONLY the the condition: pendency of the
existence of the demandability of the condition:
obligation (Ibid). obligation (Ibid). a. The obligation and
If the fulfillment of the If it is the designation of rights do not exist yet a. The
condition is left to the the period which is left and the nature of the obligation is
sole will of the debtor, to the exclusive will of interest of the immediately
the obligation is void the debtor, the expectant creditor is demandable as if it
(Art. 1182, NCC) obligation remains valid but a mere hope or were a pure
(Art. 1197, NCC) expectancy. obligation (Art.
1179 [1], NCC);
Unlike other hopes or
expectancies, however, b. If the obligation is
 WHEN HIS MEANS PERMIT HIM TO
it is protected by law. already performed, the
DO SO- the obligation shall be previous debtor
considered to be one with a term, and b. The obligation and becomes an expectant
not one with a condition dependent rights do not exist yet creditor entitled to
upon the sole will of the debtor which is and the nature of the bring the appropriate
void (Art. 1180, NCC). interest of the action to protect his
expectant creditor is hope or expectancy.
but a mere hope or
Kinds of Condition:
expectancy. Unlike
other hopes or
1. Suspensive & Resolutory (Art. 1181, expectancies, however,
NCC) it is protected by law.

a. Suspensive Condition (―Condition In case of payment by the

DEBTOR by REASON OF
Precedent or antecedent‖) – A future
MISTAKE:
and uncertain event, the fulfillment of which He has the right to recover
gives rise to the obligation or acquisition of the undue payment based
rights. on the PRINCIPLE OF
SOLUTIO INDEBITI. The
Principle of Retroactivity in Suspensive reason is that – the
Conditions: Once the condition is fulfilled, payment is not due since
the obligation has not yet
its effects must logically retroact to the
come into existence yet

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 Purple Notes
Civil Law
(Art. 1188 [2], NCC).
RECOVERY shall be made
prior to the fulfillment of
the suspensive condition.
Once the suspensive
condition is fulfilled, effect
of such conditional
obligation shall retroact to
the day of its constitution,
thus, effectively barring any
action from recovery based
on SOLUTIO INDEBITI.
If the intention is to simply
to make the delivery even
prior to the fulfillment of
the condition but upon the
expectation that the
condition would happen, it
is just that the debtor be
allowed to recover what he
has paid if it will become
clear that the event will not
take place anymore. While
there may be no mistake,
the right of the payor to
recover is based upon the
principle of ACCIO.N IN
REM VERSO (Article 22,
NCC).
Effects upon the
fulfillment of the
condition:
1. The obligation and
rights come into existence.
2. If the obligation is
to give, the effects of the
happening of the condition
shall retroact to the day of
the constitution of the
obligation. But when the
obligation imposes
reciprocal obligations, the
fruits and interest during
the pendency of the
condition shall be deemed
mutually compensated (Art.
1187, par.1, NCC).
3. The rule of retroactivity
of the effects of
conditional obligation to
give, once the condition
has been fulfilled, is
216 Center for Legal Education and Research
without prejudice to the
existence of preferred
right of a third person in
good faith.
4. In obligations to do and
not to do, the court shall
determine, in each case,
the retroactive effect of
the condition that has
been complied with
(Art.1187, par.2, NCC).
Effect of loss of specific thing due during
the pendency of condition
1. Loss of the thing due
If the thing is lost without the fault of the debtor
(and later on the condition is fulfilled), the
obligation is extinguished (Art. 1189, par.1, NCC);
EXCEPTIONS:
a. When by law, the obligor is liable even for
fortuitous event;
b. When by stipulation, the obligor is liable even
Effects upon the for fortuitous event; or
fulfillment of the c. When the nature of the obligation requires the
condition: assumption of risks (Art. 1174, NCC).
1. Rights
already acquired, as if the thing is lost thru the fault of the debtor
well as the obligations, (and later on the condition is fulfilled), the
are extinguished (Art. obligation is converted into indemnification for
1181, NCC). If the damages (Art. 1189, par.2, NCC);
previous obligation is
that of giving which
has already been 2. In case of deterioration of the thing due
performed, the parties
shall return to each If the thing deteriorates without the fault of the
other what they have debtor (and later on the condition is fulfilled),
received (Art. 1190,
the impairment is borne by the creditor (Art.
par.1, NCC), including
fruits and interest. 1189, par.3, NCC);
Note: Restitution is If it deteriorates is due to the fault of the debtor
ABSOLUTE such that (and later on the condition is fulfilled), the
everything that was creditor may choose between rescission and
received would have to fulfillment, with damages in either case (Art.
be restored.
1189, par.4, NCC);
 Purple Notes
3. In case of improvement of the thing due
If the thing is improved by nature (and later on
the condition is fulfilled), the improvement
inures to the benefit of the creditor (Art. 1189,
par.5, NCC);
If the thing is improved at the expense of the
debtor (and later on the condition is fulfilled),
the debtor shall have no other right over the
improvements than that granted to the
usufructuary (Art. 1189, par.6, NCC).
USUFRUCT gives a right to enjoy the property
of another with the obligation of preserving its
form and substance, unless the title constituting
it or the law otherwise provides (Art. 562, NCC).
A usufructuary is NOT ENTITLED TO
REIMBURSEMENT of expenses he incurred in
connection with the improvements that he may
have introduced on the property. However, he
has the RIGHT TO REMOVE the improvement
if it will not cause injury to the property. In
addition, he may also SET OFF HIS
LIABILITY FOR DAMAGES caused to the
property with the value of said improvements
(Art. 579, NCC)
2. POTESTATIVE, CASUAL & MIXED
CONDITION
Potestative (―Facultative‖)– The fulfillment
of the condition is left to the exclusive will of
one of the parties.
 When the fulfillment of the condition
depends upon the sole will of the
debtor, the conditional obligation shall
be void (Art. 1182, NCC). It must be
noted that Art. 1182 is applicable only to
suspensive condition.
 NOTE: What is contemplated in the
provision is a condition that is
POTESTATIVE to the debtor and, at
the same time SUSPENSIVE.
2018
Civil Law
 In other words, a condition at once
FACULTATIVE and RESOLUTORY
may be valid though the condition is
made to depend upon the will of the
debtor.
 Where the so-called potestative
condition is imposed not on the birth of
the obligation but on its fulfillment, only
the condition is avoided leaving
unaffected the obligation itself (De Leon,
Obligations and Contracts, 2010, p. 117).
OSMENA v. RAMA
The Court held that if that statement found in
her acknowledgement of the indebtedness
should be regarded as a condition, it was a
condition dependent upon the exclusive will of
the debtor and is therefore VOID.
ONLY the potestative condition was held void
because it referred merely to the fulfillment of
an already existing indebtedness (Osmena v.
Rama, G.R. No. 4437, September 9, 1909).
TRILLANA v. QUEZON COLLEGE
Where the potestative condition was imposed on
the birth of the obligation and not on its
fulfillment, the Court declared the OBLIGATION
VOID pursuant to Article 1182 of NCC because
the condition is dependent upon the debtor‘s
sole will (Trillana v. Quezon College, G.R. No. L-
5003, June 27, 1953).
Casual – The fulfillment of the condition is left
to the will of a third party or chance.
Mixed – The fulfillment of the condition is left
partially to the will of either of the parties and
partly to the will of a third person or by chance.
 If the condition is casual or mixed, the
obligation remains valid.
Bar Operations C ommissions 217
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Civil Law
Doctrine of Constructive Fulfillment JURIDICAL IMPOSSIBILITY

When the condition is partly dependent upon
chance, the will of a third party or upon the will
of the debtor, the conditional obligation is valid.
In this scenario, if the debtor voluntarily
prevents the fulfillment of the condition partly
dependent upon him, the condition is deemed
fulfilled (Art. 1186, NCC) .
2. Contrary to good customs or public policy;
or
3. Prohibited by law.
Effect upon the Obligation:
If impossible condition is imposed ---

REQUISITES: 1. Ordinary Obligation: obligation itself

becomes void (Art. 1183, NCC);
1. The condition is SUSPENSIVE; 2. Simple or Remuneratory Donation: the
2. The obligor actually prevents the fulfillment donation remains valid because the
of the condition; and, condition is considered not imposed (Art.
3. He acts voluntarily. 727, NCC);
3. Onerous Donation: the donation becomes
 There must be INTENT on the part of void because an onerous donation is
the obligor to prevent the fulfillment of governed by the law on obligations and
the condition. contract (Art. 733, in rel. to Art. 1183, NCC);
and
 MERE INTENTION of the debtor to 4. Testamentary Disposition: the
prevent the happening of the condition disposition remains valid because the
is INSUFFICIENT (Rabuya, Obligations and impossible condition is considered not
Contracts, 2019 ed, p. 103). imposed, even if the testator provides
otherwise (Art. 873, NCC).
CONSTRUCTIVE FULFILLMENT OF A MIXED 5. Negative Condition: the obligation is valid
CONDITIONAL OBLIGATION but the condition shall be considered as not
agreed upon (Art. 1183, NCC).
 When the condition was not fulfilled but
 The obligation is VOID if it depends
the obligor (debtor) did all his power to
upon an impossible condition. But if the
comply with the obligation, the condition
OBLIGATION is DIVISIBLE, that part
should be deemed satisfied.
thereof which is not affected by the
impossible or unlawful condition shall be
3. POSSIBLE & IMPOSSIBLE CONDITIONS
VALID (Art 1183, NCC).
a. Possible Condition – when it is capable
Positive & Negative Condition
of realization not only according to its
nature, but also according to law, good
customs and public policy. POSITIVE
NEGATIVE CONDITION
CONDITION
A certain event must A certain event must not
b. Impossible Condition – refers to happen at a happen at a determinate
conditions which are: determinate time. time.
Effects: Effects:
PHYSICAL IMPOSSIBILITY The obligation is
considered In negative condition, the
extinguished if: obligation becomes
1. Physically impossible because they are
The period expires effective if:
incompatible or contrary to law and nature; without the The period expires;

218 Center for Legal Education and Research

 Purple Notes 2018
Civil Law
condition Even before the expiration NEGATIVE CONDITION
happening; or of the period, when it
It is certain that the is certain that the
If A says: ―I promise to give B a Rolex watch if
event will not event cannot happen;
take place, even If no period is fixed, the she does not marry C before she turns 25.‖
before said period intention of the parties, This obligation shall become effective from the
expires (Art. considering the nature moment B reaches the age of 25 and remains a
1184, NCC). of the obligation, shall bachelorette, although she may marry C
determine the period. afterwards.
(Art. 1185, NCC).
The obligation shall also become effective if B
marries another when she turns 24 for it is
Effect of Breach of Both Parties:
evident that the event which serves as a
condition can no longer occur.
The liability of the first infractor shall be
equitably tempered by the courts;
Obligation with a Term/Period

If it cannot be determined which of the parties

Obligations with a period are, therefore, those
first violated the contract, the same shall be
whose consequences are subjected in one way
deemed extinguished, and each shall bear his
or another to the expiration of said term.
own damages. (Art. 1192, NCC).
PERIOD – A term or period consists in a space
The above rules are deemed just. The first one
of time which has an influence on obligations as
is fair to both parties because the second
a result of a judicial act, and either suspends
infractor also derived or thought he would derive
their demandableness, or produces their
some advantage by his own act or neglect. The
extinguishment (Manresa, Commentaries on the
second rule is likewise just, because it is
Civil Code, Vol. 8, p. 153).
presumed that both at about the same time
tried to reap some benefit.
Suspensive and Resolutory Terms:
EXAMPLES:
Suspensive (ex die) – The obligation becomes
demandable only upon the arrival of a day
POSITIVE CONDITION certain (Art. 1193 [1], NCC).

If A says: ―I am giving B my collection of law

Resolutory (in diem) – The obligation is
books but if my son, C, becomes lawyer when
immediately effective and demandable but will
he turns 25, those law books will have to be
be extinguished when the period arrives (Art.
given back to C.‖
1193 [2], NCC).

RIGHT OF B will become absolute from the

A DAY CERTAIN – Understood to be that
moment C reaches 25 and has not graduated
which must necessarily come, although it may
from law school, although he may eventually
not be known when (Art. 1193 [3], NCC).
pass the bar examinations and become lawyer
afterwards.
PERIOD / TERM CONDITION
A future and certain time A future and uncertain
If C is still in his 2 year in the College of Law
nd
or event which must event;
when he turns 24, it is definite that the event necessarily come;
will not take place.
Always refers to the May, under the law,
future; refer even to the past;

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 Purple Notes
Civil Law
Merely fixes the time or Causes an obligation to PRIOR TO ARRIVAL
efficaciousness of an arise or to cease. (8 OF THE DAY CERTAIN
obligation. Manresa 153, 154).
In addition to the
Benefit of Period recovery of the sum paid
the debtor is also entitled
to recover interest over
General Rule: If period is designated, it is that sum at the legal rate
presumed for the benefit of both the creditor provided that the action
and debtor (Art. 1196, NCC). Hence, the creditor for recovery is made
cannot demand for early performance and prior to the maturity of
neither may the debtor compel the creditor to the obligation.
accept an early performance.
NOTE: This Article applies only where the GENERIC THING
parties to a contract themselves have fixed a
period, and not to a case where the parties have If the obligation is to give
authorized the Court to fix a reasonable term a generic thing and what
(Orit v. Balrodgan Co., Ltd., L-12277, Dec. 29, 1959). has been delivered is
something that produces
fruits, both the thing and
EFFECT OF SUSPENSIVE TERM OR PERIOD
fruits actually received by
the creditor may be
The obligation becomes demandable only when recovered.
the day certain arrives. The term or period does
not, however, affect the existence of the
obligation nor its effectivity. What is suspended
by the term is only the demandability of the
SPECIFIC THING
obligation (Art. 1193 [1], NCC).
If the obligation is to give
If delivery or payment has been made prior to a specific thing and what
the arrival of the day certain, the debtor is has been delivered is
authorized to recover what has been delivered something that produces
prematurely, together with fruits and interest fruits, both the thing and
but only if the debtor made the delivery or the fruits actually
received by the creditor,
payment unaware of the period or believing that
may be recovered,
the obligation has become due and demandable
provided that the action
(Art. 1195, NCC). for recovery is made
prior to maturity of the
As to the extent of what may be recovered: obligation.
220 Center for Legal Education and Research
AFTER THE ARRIVAL
OF THE DAY CERTAIN
Obligation to pay the sum
of money is already due
and demandable, only
the interest accruing from
the date of payment up
to the date of maturity of
the obligation may be
recovered (Rabuya,
Obligations and
Contracts, 2019 ed, p.
133).
The obligation to give the
generic thing is already
due and demandable,
only the fruits actually
received by the creditor
from the date of delivery
up to the date of maturity
of the obligation may be
recovered.
Both the thing and its
fruits may no longer be
recovered because the
creditor is already
entitled to both.
NOTE: The obligation to
give specific things, the
creditor acquires a right
over the fruits from the
time the obligation was
constituted even if not
yet demandable unless
the contrary otherwise
agreed.
 Purple Notes
INSTANCES WHERE FRUITS AND
INTERESTS MAY NO LONGER BE
RECOVERED NOTWITHSTANDING
PREMATURE PAYMENT:
1. When the obligation is reciprocal and both
sides advanced payment;
2. When the obligation is a loan and what has
been paid was merely interest;
3. When the period is exclusively for the benefit
of the creditor because by accepting the
advance payment, the creditor has waived
the benefit of the period (Rabuya, Obligations
and Contracts, 2019 ed., p. 134).
Exception: Unless from the tenor of the
obligation or other circumstances it appears that
the period has been established in favor of the
creditor or the debtor alone (Art. 1196, NCC).
Effect if for the benefit of creditor alone:
He cannot be compelled by the debtor to accept
an early performance but he can compel the
debtor to perform even prior to the arrival of the
period.
Effect for the benefit of debtor alone: He
cannot be compelled by the creditor to perform
prior to the arrival of the period but he can
compel the creditor to accept an early
performance.
Instances where the debtor loses right to
make use of period (in which case, the period
becomes for the benefit of creditor alone):
a. Debtor becomes INSOLVENT, unless he gives
guaranty or security;
b. Debtor FAILS TO FURNISH the promised
security or guaranty;
c. Debtor, by his act, IMPAIRS the guaranty or
security, unless he gives a new security or
guaranty;
d. When guaranty or security DISAPPEARS thru
FORTUITOUS EVENT;
e. Debtor VIOLATES ANY UNDERTAKING in
consideration of which the creditor agreed
period; or
f. Debtor ATTEMPTS to ABSCOND (Art. 1198,
NCC)
2018
Civil Law
When May Court Fix the Period:
a. No period is fixed but same is intended based
from the nature of obligation and the
circumstances (Art. 1197 [1], NCC);
b. If the duration of period depends upon the
will of the debtor; (Art. 1197[2], NCC)
c. If debtor binds himself to pay when his means
permit him to do so (Art. 1180, NCC).
General Rule: the court must first fix the
period before an action for the enforcement of
the obligation can be maintained. However,
when such separate action would be a mere
formality and would serve no purpose than to
delay, such technicality need not be adhered to
(Tiglao v. Manila Railroad Co., 52 O.G. 179).
EXCEPTIONS: (Rabuya, Obligations and Contracts,
2019 ed., p. 141-142)
1. When no period was intended by the parties.
2. When the obligation is payable on demand
because it is a pure obligation and not one
with a period. There must be a demand in
order for the obligation to become due. In
the absence of such demand, it follows that
the obligation is not yet due, and this
obligation may not be subject to
compensation for lack of requisite under the
law.
3. When the performance of the obligation was
fixed ―within a reasonable time‖ because a
period was already fixed, a ―reasonable
time‖; and all that the court should do is to
determine if that reasonable time had already
passed or not when suit was filed.
4. Where the law itself provides for the period.
 Once the period has been fixed by the
court it becomes part of the contract, and
it cannot be subsequently changed or
extended by the court without the consent
of both parties (Barretto v. City of Manila,
G.R. No. 4372, March 27, 1908).
 When the obligation is payable on
demand, the obligation is without a term
and, hence, the court cannot fix the
period (People‘s Bank & Trust Co. v. Odom,
G.R. No. L-43670, February 25, 1937).
Bar Operations C ommissions 221
 Purple Notes
Civil Law
 When what is left to the will of the debtor
is only the duration of the period, the
obligation is valid and said provision
authorizes the courts to fix the period
(Art, 1197 (2), NCC).
4. ALTERNATIVE AND FACULTATIVE
OBLIGATIONS
Kinds of obligations in case of plurality of
objects:
1. Conjunctive – One where there are several
prestations and all of them are due;
2. Distributive – One where one of two or
more prestations are due. It may either be:
a. Alternative – several prestations are
due but the performance of one is
sufficient to extinguish the obligation;
or
b. Facultative – only one prestation is
due, but the debtor has reserved the
right to substitute it with another (De
Leon, Obligations and Contracts, 2010, p.
209).
FACULTATIVE OBLIGATION
The choice to substitute another prestation lies
only with the debtor (Art. 1206, par. 1, NCC).
Substitution becomes effective only from the
time it has been communicated to the creditor
(De Leon, Obligations and Contracts, 2010, p. 209).
Effect of loss of substitute:
If the thing intended as a substitute is lost even
due to the fault of the debtor, the latter is not
liable because obligation simply ceases to be a
facultative one.
But if the loss of the substitute due to the fault
of the debtor occurs after the substitution has
been made, the obligation is converted into
indemnification for damages (Art. 1206, 2nd par.,
NCC).
222 Center for Legal Education and Research
If the principal obligation becomes impossible by
fault or negligence of the creditor, the debtor
cannot be compelled to perform the substitute
(no more substitute, obligation becomes
simple). Thus, obligation is extinguished.
ALTERNATIVE OBLIGATION
The right of choice belongs to the debtor, unless
it has been expressly granted to the creditor.
The right of choice may, in fact, be granted to a
third person by express agreement of the
parties (notification to both the debtor and
creditor by the 3 person of his choice) because
rd
said agreement is not prohibited by law nor
contrary to morals, good customs, public order,
or public policy (Art. 1200, 1st par., NCC).
Limitations on exercise of right: The
following prestation cannot be chosen:
1. Those which are impossible;
2. Those which are unlawful; or
3. Those which could not have been the object
of the obligation (Art. 1200, 2nd par., NCC).
Choice becomes effective only from the time
that it has been communicated to the other
party (Art. 1201, NCC). After that, the obligation is
converted into a simple obligation of performing
the chosen prestation.
TWO PRINCIPAL THEORIES AS TO WHEN
THE ELECTION BECOMES EFFECTIVE:
COGNITION THEORY
The election or notice has no effect until it
comes to the knowledge of the other party.
(Note: this is adopted in the Philippines)
In alternative obligation, the election becomes
effective from the moment the choice is made
known to the other party. In other words, what
is required is MERE NOTICE to the other party
and not his consent (Art. 1201, NCC).
 Purple Notes
EFFECT OF CHOICE:
The right of election is extinguished when the
party who may exercise that option categorically
and unequivocally makes his or her own choice.
The choice becomes IRREVOCABLE and
BINDING upon he who made it and HE WILL
NOT THEREAFTER BE PERMITTED TO
RENOUNCE his choice and take an alternative
which was first open to him.
The debtor has no other recourse except to
perform the chosen prestation.
The obligation ceases to be alternative and is
converted into a PURE or SIMPLE ONE (Art. 1205,
NCC).
If right of choice belongs to debtor:
PRIOR TO ELECTION
1. And only one of the several prestations is
practicable, the obligation becomes simple
(Art. 1202, NCC);
2. And thru the creditor‘s act, the debtor
cannot make a choice in accordance with the
terms of the obligation, the debtor may
either rescind the contract with damages
(Art. 1203, NCC) or choose to perform that
which remains.
3. And all the prestations were lost due to the
debtor‘s fault, the creditor is entitled to
recover the value of the last thing which
disappeared, or that of the service which last
became impossible (Art. 1204, NCC).
4. If all prestations were lost by reason of
fortuitous event, the obligation is
extinguished and the debtor is not liable for
damages (Art. 1262, 1264. NCC).
If right of choice belongs to creditor:
1. If one of the prestations is lost due to
debtor‘s fault, the creditor may either
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Civil Law
choose from the remaining (without being
entitled to damages) or the price of that
which has disappeared (with the right to
recover damages) (Art. 1205[2], NCC);
2. If all the prestations were lost due to
debtor‘s fault, the creditor may choose the
price of any of them, with indemnity for
damages (Art. 1205[3]. NCC).
3. If only one prestation is lost by fortuitous
event, the creditor can still exercise the right
of choice, hence, the obligation remains as
alternative if there are several prestations
left (Art. 1205[1], NCC). If only one prestation
is left, obligation ceases to be an alternative
one.
AFTER ELECTION
1. If what was lost was the chosen prestation
which, for all intents and purposes, is the
only prestation which is due and
demandable under the circumstances, the
obligation is considered extinguished if it
was lost without the fault of the debtor and
before he has incurred in delay (Article 1262,
par 1, NCC). If the same was lost by reason
of the debtor‘s fault, his obligation is
converted to indemnification for damages.
2. If what was lost was not the chosen
prestation, the same does not affect the
obligation because said prestation is not
what is due (Rabuya, Obligations and Contracts,
2019 ed., p.s 152-153).
Requirement of Communication of choice -
If the choice belongs to the creditor, he has to
communicate his choice to the debtor.
There is no required form. It may be ORAL, IN
WRITING, TACITLY, OR OTHER UNEQUIVOCAL
MEANS.
5. JOINT AND SOLIDARY OBLIGATIONS
Joint Obligation- An obligation in which each
debtor is liable only for a proportionate part of
the debt, and the creditor is entitled to demand
only a proportionate part of the credit form each
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 Purple Notes
Civil Law
debtor (Rabuya, Civil Law Reviewer Volume II, 2017
Ed., p. 78. Cited in Dy-Dumalasa v Fernandez, et al.,
G.R. No. 178760, 23 July 2009).
It is defined as an obligation where there is a
concurrence of several creditors, or of several
debtors, or of several creditors and debtors, by
virtue of which each of the creditors has a right
to demand, and each of the debtors is bound to
render, compliance with his proportionate part
of the prestation which constitutes the object of
the obligation (Rabuya, Obligations and Contracts,
2019 ed., p. 157).
Presumption of Joint Obligation
Presumption: Obligation is presumed joint if
there is a concurrence of several creditors, of
several debtors, or of several creditors and
debtors in one and the same obligation (Art.
1207, NCC).
Exceptions:
1. When the obligation expressly states that
there is solidarity
2. When the law requires solidarity i.e. quasi-
delicts
3. When the nature of the obligation requires
solidarity
4. When the nature or condition is imposed
upon heirs or legatees, and the testament
expressly makes the charge or condition in
solidum
5. When the solidary responsibility is imputed
by a final judgment upon several defendants
Division of shares:
1. The co-creditors or co-debtors may regulate
their rights or liabilities in their internal
relations with each other;
2. In the absence of clear agreement, the law
PRESUMES that the credit or debt is divided
into as many equal shares as there are
creditors or debtors (Art. 1208, NCC).
Effect of Joint Divisible Obligation: Each
creditor can demand only for the payment of his
proportionate share of the credit, while each
debtor can be held liable only for the payment of
his proportionate share of the debt.
Distinct character of each share: In joint
obligation, the share pertaining to each creditor
or debtor is distinct from the share pertaining to
the others (Art. 1208, NCC). As a consequence –
1. As to demand: Demand made by one
creditor upon one debtor produces the
effects of default only with respect to the
creditor who made the demand and the
debtor upon whom the demand has been
made, without affecting the others.
2. As to interruption of prescription: The
interruption of prescription by the judicial
demand of one creditor upon one debtor
does not inure to the benefit of the other
creditors nor interrupt the running of the
prescriptive period as to other debtors.

Presumption of Equal Division 3. As to personal defenses: The vices of

each obligation arising from the personal
defect of a particular debtor or creditor do
Presumption: Credit or debt shall be presumed
not affect the obligation or rights of the
to be divided into as many equal shares as there
others.
are creditors or debtors (Art. 1208, NCC).

4. As to Insolvency: The insolvency of one

Joint creditor cannot act in representation of the
debtor does not increase the liability of his
others, neither can a joint debtor be compelled
co-debtors.
to answer for the liability of others (Juradp,
Comments and Jurisprudence in Obligations and
Contracts, 2010, p. 181 – 182).

224 Center for Legal Education and Research

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Civil Law
Joint Indivisible Obligation 3. But since the prestation is at the same time
indivisible, compliance is possible only if all
Indivisibility of an obligation does not necessarily joint debtors shall act TOGETHER; therefore,
give rise to solidarity nor does solidarity of itself the obligation can be enforced only by
imply indivisibility (Art. 1210, NCC). proceeding against all the debtors (Art. 1209,
NCC).
INDIVISIBILITY SOLIDARITY
Effect of Breach:
Refers to the prestation, Refers to the legal tie or
which is not capable of vinculum juris defining
partial performance the extent of liability of 1. If a creditor chooses specific performance,
the parties all debtors must be sued because the
obligation can be performed only by the
Effect to Joint Creditors
concurrence of all debtors (Art. 1209, NCC).
Each cannot demand Each may demand the 2. It also gives rise to indemnity for damages
more than his share full prestation from the time anyone of the debtors does
Effect to Joint Debtors not comply with his undertaking; in which
Each is only liable for his Each has the duty to case, the debtors who may have been ready
respective share comply with entire to fulfill their promises shall not contribute
prestation to the indemnity beyond the corresponding
portion of the price of the thing or of the
Reason: Indivisibility and solidarity refers to value of the service in which the obligation
two distinct concepts. Solidarity refers to the consist (Art. 1224, NCC). Only the debtor who
vinculum that binds the parties and, therefore, was responsible for the breach shall be
principally to the subjects of the obligation. liable to pay damages.
Indivisibility refers to the prestation or the
object of the obligation. Solidary Obligation – an obligation where
there is a concurrence of several creditors, or of
several debtors, or of several debtors, or of
Test of Divisibility: Whether an obligation is
divisible or not depends on whether the several creditors and debtors in one and the
obligation is susceptible of partial fulfillment, same obligation wherein each one of the
according to the purpose of the said obligation. creditors has a right to demand entire
compliance with the prestation, or that each one
of the debtors is bound to render entire
Concept of Joint Indivisible Obligation: It compliance as demanded (Art. 1207, NCC).
exists when the prestation is indivisible or
incapable of partial performance and yet, there Solidarity exists when:
is plurality of subjects who are not bound
solidarily.
1. The obligation expressly declares;
2. The law expressly requires solidarity; or
Legal Effects: 3. The nature of obligation requires solidarity
(Art. 1207, NCC).
1. Since the obligation is joint, on the side of
the debtors, each is liable only for a portion These are the only instances when the
of the debt; on the side of the creditors, obligation is solidary.
each is entitled only to a portion of the
credit.
Terms indicating solidarity:
2. Since the obligation is joint, if one of the
debtors should be insolvent, the others shall
not be liable for his share (Art. 1209, NCC) 1. Jointly and severally;
2. Juntos o separadamente;

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Civil Law
3. In solidum;
4. Individually and collectively
The term "individually" has the same meaning
as "collectively", "separately", "distinctively",
respectively or "severally". An agreement to be
"individually liable" undoubtedly creates a
several obligation, and a "several obligation is
one by which one individual binds himself to
perform the whole obligation (Ronquillo v. CA, GR
L-55138, September 28, 1984).
―I‖ Promise to Pay: Where an instrument
containing the words ―I promise to pay‖ is
signed by two or more persons, they are
deemed to be jointly and severally liable thereon
(Sec. 17 (g), Negotiable Instruments Law). Hence,
when the instrument contains the words ―We
promise to pay‖ and followed by separate
signatures of the makers, the obligation is
merely joint.
Kinds of Solidarity:
1. Active – existing on the side of the creditors;
2. Passive – existing on the side of the
debtors; or
3. Mixed – existing on both sides.
Active Solidarity
Distinguishing characteristic: There is an
existence of mutual representation or mutual
agency among the solidary creditors with
powers to exercise the rights of other in the
same manner as their rights (De Leon, Obligations
and Contracts, 2010, p. 218).
Effect of Demand: The debtor may pay
anyone of the solidary creditors, but if any
demand, either judicial or extrajudicial, is made
by one of the solidary creditors, payment should
be made only to him (Art. 1214, NCC). If the
payment is made to the other creditors, that is a
case of payment made to a wrong person.
In case of mixed solidarity:
1. The creditor can validly refuse payment
coming from debtors who were not recipient
226 Center for Legal Education and Research
of the demand (the latter are considered
third person); and
2. The debtor who received the demand is
obliged to make payment only to the creditor
who made the demand.
In case of mixed solidarity, the prohibition in
Article 1214 does not extend to other debtors
upon whom no demand has been made, so each
of the debtor can make a valid payment to a
creditor who did not make the demand (Jurado,
Comments and Cases on Obligations and Contracts,
2010, p. 197).
Effect of condition: Solidarity may exist
although the creditors and debtors may not be
bound in the same manner and by the same
periods and condition (Art. 1211, NCC).
Only one is indispensable party: Where the
obligation of the parties is solidary, either of the
parties is indispensable, and the other is not
even a necessary because complete relief is
available from either (Justice Jose Feria, Civil
Procedure, 1969 Ed., p. 153 cited in Cerezo v.
Tuazon, G.R. 141538, March 23, 2004).
Effect of Judgment:
1. If favorable, this inures to the benefit of the
co-creditors pursuant (Article 1212, NCC);
2. If adverse:
1. It cannot be set up against the others if the
same is founded on a cause personal to the
plaintiff-creditor;
2. But if the judgment is founded on a cause
not personal to the plaintiff-creditor, the
same can be set up against the co-creditors
because once an action is filed by a solidary
creditor, he represents all the others and
payment can be made only to him.
Effect of beneficial act: Each one of the
solidary creditors may do whatever may be
useful to the others (Art. 1212, NCC). Hence, each
solidary creditor may interrupt the running of
the prescriptive period, constitute the debtor in
 Purple Notes
default, or bring the suit so that the obligation
may produce interest.
Effect of prejudicial acts:
1. As far as the debtors are concerned, the
acts are valid because of the principle of
mutual representation which exists among
the creditors (Art. 1215, NCC).
2. However, as far as the co-creditors are
concerned, this prejudicial act does not
prejudice the rights of the other creditors to
recover their respective shares in the credit
from the creditor who effected such
prejudicial acts (Art. 1212, NCC).
Effect of assignment of rights:
Rule: A solidary creditor cannot assign his rights
without the consent of the others (Art. 1213,
NCC); but the assignment of rights to a co-
creditor even without the consent of the other
creditors is not prohibited.
Effect of violation of prohibition: The
assignment is not valid. Hence, the assignee
does not become a co-creditor. If payment is
made to the assignee, such payment is made to
a wrong person.
Effect of condoning the solidary
obligation:
1. If remission covers the entire obligation, the
obligation is totally extinguished.
2. If remission is for the benefit of one of the
debtors covering the latter‘s entire share:
1. As far as the creditors are concerned, he
is completely released;
2. But as far as the debtors are concerned,
he remains a debtor in case of
insolvency of one of the remaining
debtors.
3. If remission is for the benefit of one of the
debtors covering only part of the latter‘s
share, his character as a solidary debtor is
not affected, both insofar as the creditors
and debtors are concerned.
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Civil Law
Effects of Novation:
1. Novation effected by substituting another
person in place of the debtor – solidary
debtor who effected the novation is liable
for the acts of the new debtor in case there
is a deficiency in performance or in case
damages are incurred by other solidary
creditors as a result of the substitution;
2. Novation by subrogating a third person in
the rights of the solidary creditor –
obligation of the debtor remains the same
3. Novation by subrogating a third person in
the rights of the solidary creditor – creditor
is responsible for such novation is liable to
the other creditors for the share which
corresponds to them in the obligation.
Effect of payment to a creditor: If one of the
solidary creditors was able to collect the entire
amount or debt of the solidary debtors, the
obligation is totally extinguished, although there
arises a consequent obligation on his part to
render an account to his co-creditors (Art. 1215
[2], NCC).
Passive Solidarity
Each solidary debtor, insofar as the creditor or
creditors are concerned, is the debtor of the
entire amount; however, with respect to his co-
debtors, he is a debtor only to the extent of his
share in the obligation.
 Solidary obligation cannot lightly be
inferred. There is a solidary liability only
when the obligation expressly so states,
when the law so provides or when the
nature of the obligation so requires. In the
dispositive portion of the labor arbiter, the
word "solidary" does not appear. The said
fallo expressly states the following
respondents therein as liable, namely:
Filipinas Carbon Mining Corporation, Sicat,
Gonzales, Chiu Chin Gin, Lo Kuan Chin,
and INIMACO. Nor can it be inferred
therefrom that the liability of the six
respondents in the case below is solidary,
thus their liability should merely be joint
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 Purple Notes
Civil Law
(INIMACO v. NLRC,G.R. No. 101723, May 11,
2000).
Distinguished from Suretyship:
1. A surety (fiador in solidum) answers for
the debt, default or miscarriage of another
while a solidary debtor is liable not only for
the payment of the debt of another, but also
for the payment of a debtor which is his own
property.
2. Hence, in reimbursement, the surety is
entitled to recover the entire amount that he
paid while a solidary debtor can only
demand reimbursement of the shares
pertaining to the others (Escano v. Ortigas, Jr.,
G. R. No. 151953, June 29, 2007).
3. Extension of time granted by the creditor to
one of the solidary debtors for the payment
of the obligation without the knowledge or
consent of the other solidary debtors would
not have the effect of releasing the latter
from their obligation, but in suretyship such
extension would release the surety from the
obligation.
Passive Solidarity v. Surety
PASSIVE SOLIDARITY SURETY
Solidary Debtors Solidary Guaranty
Distinctions
Solidary debtor is liable for Liable only as to his
the entire obligation own obligation
Extent of Liability
Primary Subsidiary
Effects of Extension of time granted by creditor
Solidary obligation is not Surety is released
extinguished from the obligation
Characteristic of passive solidarity:
Existence of a mutual guaranty among the
solidary debtors. Hence:
1. Each is liable for the entire obligation and
the creditor has the right to choose whom to
be called upon to perform the obligation
(Art. 1218, NCC).
228 Center for Legal Education and Research
2. Payment made by one of the solidary
debtors extinguishes the obligation (Art.
1217, NCC).
Effect of Demand upon a Debtor
The creditor may proceed against any one of the
solidary debtors or some or all of them
simultaneously. The demand made against one
of them shall not be an obstacle to those which
may subsequently be directed against the
others, so long as the debt has not been fully
collected (Art. 1216, NCC).
Effects of judgment:
1. If adverse to defendant solidary debtor and
the latter turns out to be insolvent, other
debtors can still be sued until the debt is
fully paid (Art. 1216, NCC). The judgment
against the defendant-debtor cannot,
however, be enforced against the others; a
new action must be filled against the latter.
2. If favorable to defendant-debtor:
a. And judgment is based on a defense
personal to defendant, the others can avail
of it as partial defense pertaining only to
share of the defendant-debtor;
b. If the judgment is based on the
inexistence of the obligation, its
unenforceability or some other cause
inherent in the vinculum juris, judgment
inures to the benefit of the other debtors
who can avail of it as a total defense.
In case of remission:
1. If what was remitted was the entire
obligation in favor of one of the solidary
debtors, the entire obligation is extinguished
(Art. 1215, NCC), but the solidary debtor who
obtained such remission is not entitled to
reimbursement (Art. 1220, NCC);
2. If what was remitted was only the whole
portion pertaining to the solidary debtor who
obtained such remission, he is considered
completely released in so far as the creditors
are concerned but he is still bound to his co-
 Purple Notes
debtors in case of insolvency of one of the
remaining debtors;
3. If what was remitted was only a portion of
the share pertaining to the solidary debtor
who obtained such remission, his character
as a solidary debtor is not affected and
continues to be so, both with respect to the
creditors and the other solidary debtors.
Effects of loss or impossibility of
performance:
1. Without the fault of the debtors – obligation
shall be extinguished;
2. If one of the debtors is at fault – all shall be
responsible to the creditor for the price and
damages without prejudice to their own
action against the guilty or negligent debtor;
3. In case of fortuitous event and one of the
debtors is in delay – all shall be responsible
to the creditor for the price and damages
without prejudice to their own action against
the guilty or negligent debtor (Art. 1221,
NCC).
Defenses available to solidary debtors:
1. Defenses derived from the nature of the
obligation such as payment, prescription,
minority of all debtors. These defenses
constitute as a total or complete defense;
2. Defenses personal to the defendant-debtor,
which may either be:
a. Insanity or minority, which operates as a
complete defense of the defendant-debtor
from liability.
b. Special terms or conditions, which operate
only as a partial defense applicable only to
his portion.
3. Defenses personal to others: It operates
only as a partial defense pertaining to the
share of the debtors to whom it is available.
6. OBLIGATIONS WITH A PENAL CLAUSE
One which an accessory undertaking is attached
for the purpose of insuring its performance by
virtue of which the obligor is bound to pay a
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Civil Law
stipulated indemnity or perform a stipulated
prestation in case of breach.
General Rule: In obligations with a penal
clause, the penalty shall substitute the indemnity
for damages and the payment of interests in
case of noncompliance (Art. 1226 [1], NCC).
Exceptions:
1. When there is a stipulation to the contrary;
2. Obligor refuses to pay the penalty; or
3. Guilty of fraud in the fulfillment of the
obligation.
PENAL CLAUSE has been defined as an
accessory obligation which the parties attach to
a principal obligation for the purpose of insuring
the performance thereof by imposing on the
debtor a special prestation (generally consisting
in the payment of a sum of money) in case the
obligation is not fulfilled or is irregularly or
inadequately fulfilled(Rabuya, Obligations and
Contracts, 2019 ed., p. 212).
FUNCTIONS:
1. Provide for liquidated damages, and
2. To strengthen the coercive force of the
obligation by the threat of greater
responsibility in the event of breach
(Rabuya, Obligations and Contracts, 2019
ed., p. 212).
Penalty, when demandable: Upon breach or
non-fulfillment of the principal obligation, the
penalty stipulated becomes demandable,
provided that it is not contrary to law, morals,
customs, public order or public policy (Art. 1226
[2], NCC).
Hence, the penalty cannot be demanded when
the non-fulfillment of the obligation is not
imputable to the fault or negligence of the
debtor but to fortuitous event or due to the fault
of the creditor. But the burden of proof lies with
the debtor. In order to avoid payment of
penalty, he must be able to prove that the non-
performance of the obligation is not due to his
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Civil Law
fault (Rabuya, Obligations and Contracts, 2019 ed., necessary in order that the penalty may be
p. 213). demanded (Art. 1228, NCC).
PENALTY v. LIQUIDATED DAMAGES
When penalty may be reduced
The Court declared that there was no difference
between a penalty and liquidated damages, so 1. The judge shall equitably reduce the penalty
far as legal results are concerned (Lambert v. when the principal obligation has been
Fox, GR No. L-7991, January 29, 1914). partly or irregularly complied with by the
debtor;
The Court lamented that ―there is no justification
for the Civil Code to make an apparent 2. Even if there has been no performance, the
distinction between penalty and liquidated penalty may also be reduced by the courts if
damages because the settled rule is that there is it is iniquitous or unconscionable (Art. 1229,
no difference between penalty and liquidated NCC).
damages insofar as legal results are concerned
and that either may be recovered without the Effect of nullity of penal clause
necessity of proving actual damages and both
may be reduced when proper.‖ (Pamintuan v. CA,
GR No. L-26339, December 14, 1979) The nullity of the penal clause does not carry
with it that of the principal obligation.
Penalty distinguished from Condition
The nullity of the principal obligation carries with
it that of the penal clause (Art. 1230, NCC).
PENALTY CONDITION
Constitutes an Does not constitute an obligation
obligation, Alternative v. With a Penal clause:
although
accessory ALTERNATIVE WITH PENAL
May be Can never be demanded to be
CLAUSE
demanded in fulfilled, but whether it happens
case of non- or not, only the obligation which Two or more obligations There is only one
fulfillment it affects may be demanded are due but the principal obligation
(Rabuya, Obligations and Contracts, 2019 ed., p. 215) performance of one and in the case of
extinguishes the non-performance of
Limitation on the right of debtor: The obligation such will enforce the
debtor cannot exempt himself from the penal clause
performance of the obligation by paying the In case of impossibility The impossibility of
penalty, save in the case where this right has of one of the obligations, principal obligation
been expressly reserved for him (Art. 1227, NCC). the others still subsist. extinguishes the
Hence, the obligation is penal clause.
Limitation on the right of the creditor: not extinguished.
Neither can the creditor demand the fulfillment Debtor can choose which Debtor cannot
of the obligation and the satisfaction of the prestation to fulfill choose to pay
penalty at the same time, unless this right has penalty to avoid
been clearly granted him. However, if after the performance of the
creditor has decided to require the fulfillment of obligation, unless
the obligation, the performance thereof should expressed.
become impossible without his fault, the penalty
may be enforced (Art. 1227, NCC).

Proof of actual damages: Proof of actual

damages suffered by the creditor is not

230 Center for Legal Education and Research

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Civil Law
Facultative v. With a Penal clause: 4. Death of one of the contracting parties in
purely personal obligations;
FACULTATIVE WITH PENAL CLAUSE 5. The will of one of the contracting parties in
certain contracts; and,
Debtor can make a Debtor cannot make
substitution such substitution unless 6. Agreement of both contracting parties or
what is sometimes known as mutual assent
expressly agreed by the
or dissent (Jurado, Comments and Jurisprudence
parties
on Obligations and Contracts, 2010 ed., p. 230).
Creditor cannot Such right to demand
demand both both may be given
prestations 1. PAYMENT OR PERFORMANCE

Concept: Payment means not only the delivery

of money but includes the performance, in any
Guaranty v. With a Penal clause: other manner, of an obligation (Art. 1232, NCC).

GUARANTY WITH PENAL CLAUSE
It is a contract by which It is an obligation to pay
virtue, a 3rd person the penalty in case of
(guarantor) obliged non-performance of the
himself to fulfill the obligation and
obligation in lieu of the different from the
debtor‘s non-performance principal obligation.
Both are intended to insure performance of the
principal obligation
Both are considered as an accessory and subsidiary
obligation
D. EXTINGUISHMENT OF OBLIGATIONS
Modes of extinguishment of an obligation.
(Art. 1231, NCC)
Burden of Proof: One who pleads payment
has the burden of proving it. Even where the
plaintiff must allege non-payment, the general
rule is that the burden rests on the defendant to
is prove payment, rather than on the plaintiff to
prove non-payment. However, where the debtor
introduces some evidence of payment, the
burden of going forward with the evidence – as
distinct from the general burden of proof – shift
to the creditor, who is then under a duty of
producing some evidence to show non-payment
(Jimenez v. NLRC, G.R. No. 116960, April 2, 1996;
Royal Cargo Corp. v. DFS Sports Unlimited, Inc., G.R.
No. 158621, December 10, 2008).
Requisites for Valid Payment:

1. Payment or performance
1. It must be complete and regular;
2. Loss of the thing due
2. It must be tendered by the proper party;
3. Condonation or remission of debt
3. It must be made to the property party;
4. Confusion or merger
4. The payor and payee must be capacitated;
5. Compensation
5. There must be identity, in that the very thing
6. Novation
or service due must be delivered or released;
7. Annulment
and
8. Rescission
6. It must be tendered in the proper place.
9. Fulfillment of a resolutory condition
10. Prescription
Payment must be complete and regular

Other modes of extinguishing an

General Rule: An obligation is not considered
Obligation:
paid unless there is complete and regular
performance (Art. 1233 & 1235, NCC).
1. Renunciation or waiver by the the obligee or
creditor;
2. Compromise;
3. Expiration of the resolutory term or period;

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 Purple Notes
Civil Law
Exceptions:
a. Substantial Performance in Good Faith:
when the obligation has been substantially
performed in good faith (Art. 1234, NCC); and
b. Waiver / Estoppel: when the creditor
accepts performance, knowing its
incompleteness and irregularity (Art. 1235, NCC).
PARTIAL PAYMENTS
General Rule: The creditor cannot be
compelled to accept partial payment, unless
there is an express stipulation to that effect.
However, the law does not prohibit the creditor
from accepting partial payments (Art. 1248, NCC).
The mere receipt of a partial payment is not, as
a rule, equivalent to the required acceptance of
performance as would extinguish the whole
obligation. (De Castro v. CA, G.R. No. 115838,
July 18, 2002) To imply that creditors accept
partial payment as complete performance of
their obligation, their acceptance must be made
under circumstances that indicate their intention
to consider the performance complete and to
renounce their claim arising from the defect.
(Rabuya, Obligations and Contracts, 2019 ed., p.
277)
Cited case: Selegna Mngt. And Devt. Corp v.
UCPB, supra
EXCEPTIONS:
1. When there is an express stipulation to that
effect.
2. Where the obligation is partly liquidated and
partly unliquidated, in which case, the
creditor may demand, and the debtor may
effect the payment of the former without
waiting for the liquidation of the latter;
3. Where different prestations are subject to
different conditions or terms.
In order that the obligation may be considered
extinguished by payment, it is necessary that
232 Center for Legal Education and Research
the creditor acknowledges such full payment or
proof of full payment is shown to the satisfaction
of the court (Rabuya, Obligations and Contracts,
2019 ed., p. 226)
Substantial Performance in Good Faith
If the obligation was substantially performed in
good faith, in which case, the debtor may
recover as if there was complete performance,
less damages suffered by the creditor (Art. 1234,
NCC);
There must have been an honest attempt to
perform, without any willful or intentional
departure therefrom.
Obligor admits breaching the contract after
honestly and faithfully performing all the
material elements thereof except for some
technical aspects that cause no serious harm to
the oblige. The omission or deviation must be
slight, or technical and unimportant, and does
not affect the real purpose of the contract.
In other words, even if the performance of the
obligation is already substantial but the
obligation is not fully complied with because of
the debtor‘s fault, the debtor may not invoke the
principle of substantial performance (Rabuya,
Obligations and Contracts, 2019 ed., p. 231).
Effect of Substantial Performance in Good
Faith:
The debtor is completely released from the
obligation despite his failure to completely
perform the obligation and he may recover as
though there had been a strict and complete
fulfillment.
Thus, the creditor cannot require the
performance of the remainder as condition sine
qua non to his liability (Rabuya, Obligations and
Contracts, 2019 ed., p. 231-232).
WAIVER / ESTOPPEL
When the obligee accepts the performance,
knowing its incompleteness or irregularity, and
 Purple Notes 2018
Civil Law
without expressing any protest or objection, the These third persons include:
obligation is deemed fully complied with (Art.
1235, NCC). 1. Guarantor and a Surety because they both
guarantee the fulfillment of the debtor‘s
Payment must be made by the proper obligation.
party
2. Accommodation mortgagors and third-
Proper Party: The following can compel the party pledgors are also considered having
creditor to accept the payment if the other such interest because they are liable to
requisites of valid payment are present: pay the obligation in case the debtor
a. The debtor, his heirs, assignees, or duly defaults in the payment of the obligation,
authorized representative; or although their liability extends only up to
b. The person authorized by stipulation to make the value of their properties.
payment;
c. Third person who has an interest in the 3. Persons who are subsidiarily liable to pay
fulfillment of the obligation, such as a surety the obligation, such as an employer who
or a guarantor. is subsidiarily liable to pay the civil liability
of his employee arising from delict
If the creditor refuses to accept payment made (Rabuya, Obligations and Contracts, 2019 ed.,
by any of these (3) person, such refusal is p. 236).
without just cause and entitles the debtor to
resort to consignation. b. Unless there is a stipulation to the
In obligations to do, however, where the contrary (Art. 1236 [1], NCC).
qualification and circumstances of the person of
the debtor have been taken into account in Effect of payment by a third person
establishing the obligation (referred to as intuiti
personae), the creditor is not bound to accept WITH/WITHOUT
payment or performance by a third person even KNOWLEDGE OF EFFECT
when the latter has an interest in the fulfillment THE DEBTOR
of the obligation (Rabuya, Obligations and With knowledge and Obligation is extinguished.
Contracts, 2019 ed., p. 234). consent of the
debtor Third person who pays the
obligation may recover
Rule of payment coming from third from the debtor; and
person:
He is subrogated to all the
General Rule: The creditor cannot be rights of the creditor.
compelled to accept payment coming from a Without knowledge Obligation is extinguished
third person. of the debtor but third person may
recover only insofar as the
payment has been
Exceptions: beneficial to the said
debtor.
a. If third person has interest in the fulfillment
of the obligation; Third Person is not
subrogated to the rights of
the creditor (Art. 1237,
Interest referred to must be a pecuniary or NCC).
material interest in the fulfillment of the Payment without Payment is deemed
obligation and not merely social or friendly intention of being donation (Art. 1238, NCC).
interest (Rabuya, Obligations and Contracts, 2019 reimbursed
ed., p. 236). However, donation

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 Purple Notes
Civil Law
necessitates consent of the 1239, NCC in relation to Art. 234 and 236, FC as
debtor as in the case of the amended by RA 6809).
donee in ordinary
donations (Art. 734, NCC). Payment should be made to the PROPER
PARTY:

1. The person in whose favor the obligation

Subrogation v. Reimbursement
has been constituted (original creditor);
2. Successor-in-interest of the original creditor;
SUBROGATION REIMBURSEMENT 3. Person authorized to receive it, whether
Debt is extinguished in The new creditor has such authorization comes from the creditor,
one sense, but a new different rights, imposing
agreement or provision of law (Art. 1240,
creditor, with exactly that there has indeed
the same rights as the been an extinguishment of
NCC).
old one, appears on the the obligation;
scene. Effect of payment made to wrong person

More than a personal Only a personal action to

action of recovery. recover the amount. (8
Manresa 269).
SUBROGATION is defined as the transfer of
all the rights of the creditor to a third person,
who thereby acquires all his rights against the
debtor or against third persons.
General Rule: Payment made by the debtor to
the wrong party does not extinguish the
obligation as to the creditor who is without fault
or negligence, even if the debtor acted in utmost
good faith and by mistake as to the person of
the creditor, or through error induced by fraud
of a third person (BPI v. CA, G.R. No. 104612, May
10, 1994).

Payor Must Be Capacitated Exception: Payment made to a wrong person

General Rule: If the payor is not capacitated to
make the payment, the payment is not valid. In
obligations to give, payment made by one who
does not have the free disposal of the thing due
and capacity to alienate it shall not be valid (Art.
1239, NCC).
The creditor can therefore refuse to accept the
payment made by a person who is not the
owner of the thing delivered. Should the paying
debtor be incapacitated to alienate, the
obligation would be VOIDABLE, but only at the
instance of the debtor who is incapacitated and
the same may not be interposed by the creditor.
Exception: Voluntary payment of a sum of
money or delivery of a fungible thing made by a
minor between 18 and 21 years of age without
the consent of his parent or guardian. In said
case, the creditor who has spent or consumed
the thing in good faith cannot be compelled to
return what he has received for the law
considers it as a NATURAL OBLIGATION (Art.
will be considered valid and shall extinguish the
debtor‘s obligation in the following instances:
1. If the payment redounded to the
creditor’s benefit (Art. 1241 [2], NCC);
Ordinarily, it is the burden of the debtor to
prove that his payment made to a wrong person
has in fact redounded to the benefit of the
creditor. But in the following instances, such
benefit is presumed and need not be proved:
1. If after payment, the third person acquires
the creditor‘s rights;
b. If the creditor ratifies the payment to
the third person;
c. If by the creditor‘s conduct, the debtor has
been led to believe that the third person had
authority to receive the payment (Art.
1241[2], NCC).
The burden of proving the payment made to a
wrong person has, in fact, redounded to the

234 Center for Legal Education and Research

 Purple Notes
creditor‘s benefit is incumbent upon the debtor
for two reasons:
I. He was the one who committed the
mistake of paying a wrong party; and
II. He has the burden of proving that his
obligation had already been extinguished
(Rabuya, Obligations and Contracts, 2019 ed., p.
251).
2. If made in good faith to a possessor of
the credit (Art. 1242, NCC);
a. Possession of the credit is different from
possession of the document evidencing the
credit.
e.g. If A obtains possession of a promissory
note payable to C and, without negotiation
or assignment, the former obtains payment
from the maker, such payment is not valid
because A is merely a possessor of the
document of the credit himself.
b. The possessor of the credit referred to in
Article 1242 must be a wrong person who is
not entitled to the payment but since the
debtor acted in good faith, he is already
released from the obligation.
e.g.
h. If the promissory note is payable to
bearer, the possessor thereof is a
possessor of the credit itself and if the
same is presented to the debtor for
payment and the latter pays in good
faith, the debtor is already released
from the obligation even if the
possessor is not actually entitled to the
payment because the instrument was
never assigned nor negotiated to him.
ii. But if the instrument was negotiated or
assigned in favor of the possessor, the
payment is valid not pursuant to Article
1242 but pursuant to the general rule in
Article 1240. In this case, the possessor
is a proper party because he is a
2018
Civil Law
successor – in-interest of the original
creditor.
3. If the debtor pays the creditor prior to
acquiring knowledge of the latter’s
assignment of his credit (Payment In
Good Faith to Assignor of Credit) (Art.
1626, NCC).
Assignment of credit has been defined as an
agreement by virtue of which the owner of a
credit (known as the assignor), by a legal cause-
such as sale, dation in payment or exchange or
donation- and without need of the debtor‘s
consent, transfers that credit and its accessory
rights to another (known as the assignee), who
acquires the power to enforce it, to the same
extent as the assignor could have enforced it
against the debtor. In assignment of credit, the
debtor‘s consent is not essential for the validity
of the assignment.
Hence, the duty to pay does not depend on the
consent of the debtor. Otherwise, all creditors
would be prevented from assigning their credits
because of the possibility of the debtor‘s refusal
to give consent. What the law requires in an
assignment of credit is not the consent of the
debtor but merely a NOTICE to him.
The purpose of the notice is only to inform the
debtor that from the date of assignment,
payment should be made to the assignee and
not to the original creditor (Rabuya, Obligations
and Contracts, 2019 ed., p. 254).
Recipient of payment must be capacitated
General Rule: Payment made to a person who
is incapacitated to administer his property is
invalid and does not extinguish the obligation.
Exceptions:
(1) If such incapacitated person has kept the
thing delivered; or
(2) insofar as the payment has been beneficial
to the incapacitated person (Art. 1241 [1], NCC).
Payment after judicial order of retention
Bar Operations C ommissions 235
 Purple Notes
Civil Law
Rule: If the debtor pays the creditor after he
has been judicially ordered to retain the debt, it
shall not be a valid payment (Art. 1243, NCC).
―After the latter has been judicially
ordered‖ refers to the date of receipt of the
notice of such judicial order and not on the date
of issuance.
Thus, the payment made by the debtor to his
creditor after the issuance of the judicial order
but prior to notice of its issuance is valid
because the debtor, at the time of payment, is
not yet bound by the order issued by the
court(Rabuya, Obligations and Contracts, 2019 ed.,
p. 255).
Identity of Prestation
What should payment consist of:
1. In specific or determinate obligations,
what should be delivered is the thing due.
Hence, the debtor cannot compel the
creditor to receive a different one, although
the latter may be of the same or value or
more valuable (Art. 1244 [1], NCC);
2. In generic or determinate obligations,
the thing to be delivered must be in
accordance with the quality and
circumstances stated in the agreement. If
the quality and circumstances have not
been stated, the creditor cannot demand a
thing of superior quality and neither may
the debtor deliver a thing of inferior quality
(Art. 1246, NCC);
3. In obligations to do or not to do, there
shall be no substitution of another act or
forbearance against the will of the creditor
(Art. 1244 [2], NCC);
4. In obligations to pay debts in money,
the payment shall be made in the currency
stipulated, and if it is not possible to deliver
such currency, then in the currency which is
the legal tender in the Philippines. (Art. 1249
[1], NCC).
236 Center for Legal Education and Research
RULES IN PAYMENT IN SUM OF MONEY:
1. The payment shall be made in the
CURRENCY STIPULATED
The parties may agree that the obligation or
transaction shall be settled in a currency other
than Philippine currency at the time of payment
(RA 8183, expressly repealing Sec. 2, RA 529).
2. If it is not possible to deliver the currency
stipulated or in the absence of such
stipulation, the payment must be in the
currency which is LEGAL TENDER in the
Philippines.
Concept of Legal Tender: Such kind of
currency which in a given jurisdiction can be
used for the payment of debts, whether public
or private, and which cannot be refused by the
creditor.
Legal Tender
In the Philippines, all notes and coins issued by
the Bangko Sentral ng Pilipinas and
guaranteed by the Republic of the Philippines
are considered legal tender for all debts, both
public and private (Sec. 52, RA No. 7653).
With respect to coins, it is considered legal
tender:
1. Only up the maximum amount of P1,000.00,
for coins having denominations of 1, 5 and
10 pesos; or
2. Only up to the maximum amount of
P100.00, for coins having denominations of
1 centavo, 5 centavo, 10 centavo and 25
centavo (BSP Circular No. 537, Series of 2006,
issued on July 18, 2006).
Tender of payment in checks: Checks are
not legal tender (PAL v. CA, G.R. No. L-49188,
January 30, 1990). Hence, the creditor may not be
compelled to accept payment in the form of a
check. This dictum does not, however, prevent a
creditor from accepting a check as payment. In
other words, the creditor has the option and
 Purple Notes
discretion of refusing or accepting it (FEBTC v.
Diaz Realty, Inc., G.R. No. 138588, August 23, 2001).
Payment Using Check
General Rule: A negotiable instrument or
document is not a legal tender, however, it may
constitute as a valid payment if:
Exceptions:
1. It had been encashed in case of checks; or
2. In case of a document, when it had been
impaired through the fault of the creditor
(Art. 1249, NCC).
Sufficiency of tender of checks: The tender
of check may be considered sufficient depending
of the purpose, as follows ---
1. If what is involved is the payment of an
obligation, the Civil Code provisions on
payment of obligations, particularly Article
1249 thereof, are applicable (Philippine
Airlines, Inc. v. CA, G.R. No. L-49188, January
30, 1990);
2. However, when the case does not
involve the payment of an obligation but the
exercise of a right, i.e., the right of redemption,
the Civil Code provisions on payment of
obligations do not apply. What applies is the
settled rule that a mere tender of a check is
sufficient to compel redemption (Biana v.
Gimenez, G.R. No. 132768, September 9, 2005). A
check may be used for the exercise of the right
of redemption, the same being a right and not
an obligation (Fortunado v. CA, G.R. No. 78556,
April 25, 1991).
Effect of Extraordinary Inflation or
Deflation: In case an extraordinary inflation or
deflation of the currency stipulated should
supervene, the value of the currency at the time
of the establishment of the obligation (and not
the value at the time of payment) shall be the
basis of payment, unless there is an agreement
to the contrary (Art. 1250, NCC).
2018
Civil Law
 Extraordinary inflation exists when there is
a decrease or increase in the purchasing
power of the Philippine currency which is
unusual or beyond the common
fluctuation in the value of said currency,
and such increase or decrease could not
have been reasonably foreseen or was
manifestly beyond the contemplation of
the parties at the time of the
establishment of the obligation (Citibank,
N.A. v. Sabeniano, G.R. No. 156132, February
6, 2007).
 For extraordinary inflation or deflation to
affect an obligation, the following
requisites must be proven: (1) that there
was an official declaration of extraordinary
inflation or deflation from the Bangko
Sentral ng Pilipinas (BSP); (2) that the
obligation was contractual in nature; (3)
that the parties expressly agreed to
consider the effects of the extraordinary
inflation or deflation.
 Absent an official pronouncement or
declaration by competent authorities of
the existence of extraordinary inflation
during a given period, the effects of
extraordinary inflation are not to be
applied (Telengtan Brothers & Sons, Inc. v.
United States Lines, Inc. G.R. No. 132284,
February 25, 2006).
Place of Payment
Rule: The tender of payment must be made in
the proper place; otherwise, the creditor may
not be compelled to accept the payment.
Proper Place of Payment:
General Rule: Payment shall be made at the
domicile of the debtor (Art. 1251 [3],. NCC). This
rule applies even if the debtor changes his
domicile in bad faith, except that the additional
expenses shall be borne by the debtor (Art. 1251
[3], NCC).
Bar Operations C ommissions 237
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Civil Law
Exceptions: The foregoing rule does not
apply—
1. If there is another place of payment
designated in the obligation (Art. 1251[1],
NCC); or
2. In case of determinate obligations, the place
of payment is wherever the thing might be
at the moment the obligation was
constituted (Art. 1251[2], NCC).
1. Dacion en Pago or Dation in payment
(Art. 1245)
Concept: It is the alienation of property to the
creditor in satisfaction of a debt in money (Fort
Bonifacio Development Corp. v. Yllas Lending Corp.,
G.R. No. 158997, October 6, 2008).
 It requires delivery and transmission of
ownership of a thing owned by the debtor to
the creditor as an accepted equivalent of the
performance of the obligation. There is no
dation in payment when there is no transfer
of ownership in the creditor‘s favor, as when
the possession of the thing is merely given to
the creditor by way of security (Ibid).
In a true dacion en pago, the assignment of the
property extinguished the monetary debt. Where
the alienation of the properties was by way of
security, and not by way of satisfying the debt,
there is no dacion en pago (Ong v. Roban Lending
Corp., G.R. No. 172592, July 9, 2008).
Dation in payment, a form of Novation
Although in the modern concept what actually
takes place in dacion en pago is an objective
novation of the obligation where the thing
offered as an accepted equivalent of the
performance of an obligation is considered as
the object of the contract of sale while the debt
is considered as the purchase price (Filinvest
Credit Crop. V. Phil. Acetylene Co., Inc., G. R. No. L-
50449, Jan. 30, 1982), the Civil Code classifies
dacion en pago as a special form of payment.
Hence, in dacion en pago, the obligation is
extinguished by way of payment and not by
238 Center for Legal Education and Research
novation. But what is considered as dacion en
pago under the Code is the alienation of a
property in favor of the creditor in satisfaction of
a debt in money. Hence, if what is offered as
payment in lieu of money is not a property but
service, for example, it is not dacion en pago but
a case of objective novation.
Requisites of Dacion En Pago - In order that
there be a valid dation in payment, the following
are the requisites:
1. There must be the performance of the
prestation in lieu of payment (animus
solvendi) which may consist in the delivery
of a corporeal thing or a real right or a
credit against the third person;
2. There must be some difference between the
prestation due and that which is given in
substitution (aliud pro alio); and
3. There must be an agreement between the
creditor and debtor that the obligation is
immediately extinguished by reason of the
performance of a prestation different from
that due (Lo v. KJS Eco-Formwork System Phil.,
Inc., G. R. No. 149420, Oct. 8, 2003).
Governed by law on sales: Dacion en pago is
governed by the law on sales (Art. 1245, NCC).
The undertaking really partakes in one sense of
the nature of sale, that is, the creditor is really
buying the thing or property of the debtor,
payment for which is to be charged against the
debtor‘s debt. As such, the essential elements of
a contract of sale, namely, consent, object
certain, and cause or consideration must be
present (Filinvest Credit Crop.V.Phil. Acetylene Co.,
Inc., supra; Lo v. KJS Eco-Formwork System Phil.,
Inc., supra.).
Effect of Dacion En Pago: The dation in
payment extinguishes the obligation to the
extent of the value of the thing delivered, either
as agreed upon by the parties or as may be
proved, unless the parties by agreement,
express or implied, or by their silence, consider
the thing as equivalent to the obligation, in
which case the obligation is totally extinguished
 Purple Notes 2018
Civil Law
(Lopez v. CA, G.R. No. L-26549, July 31, 1970). In of properties
other words, a dation in payment does not Extinguishes the Releases the
necessarily mean total extinguishment of the obligation to the extent of debtor from
obligation. The obligation is totally extinguished the value of the thing responsibility only
only when the parties, by agreement, express or delivered, either as agreed up to the extent of
implied, or by their silence, consider the thing as upon by the parties or as the net proceeds of
equivalent to the obligation. (Caltex Phils., Inc. v. may be proved, unless the the sale
IAC, G. R. No. 72703, Nov. 13, 1992) parties by agreement,
express or implied, or by
AS DISTINGUISHED FROM CESSION their silence, consider the
thing as equivalent to the
Payment by cession contemplates of a situation obligation, in which case,
where the debtor is indebted to several creditors the obligation is totally
but he is under a state of insolvency, or that the extinguished.
debtor is generally unable to pay his liabilities as (Rabuya, Obligations and Contracts, 2019 ed., p. 272)
they fall due in the ordinary course of business
or has liabilities that are greater than his assets. EXTRAJUDICIAL EXPENSES, WHO SHALL
In cession, the debtor abandons all his BEAR: (Rabuya, Obligations and Contracts, 2019
properties or assets to his creditors so that the ed., p. 274)
latter may sell the same and apply the proceeds
to the satisfaction of their credits (Rabuya, 1. The parties may freely stipulate as to who
Obligations and Contracts, 2019 ed., p. 272). shall bear said expenses;

Payment by Cession as distinguished from b. In the absence of stipulation, said

Dacion En Pago expenses shall be for the account of the
DACION EN PAGO PAYMENT BY debtor.
CESSION
Number of creditors is Requires plurality The latter rule is but fair because it is the debtor
immaterial of creditors who has the burden of extinguishing the
Involves specific property Involves the obligation.
or properties of the debtor universality or the
whole of the JUDICIAL EXPENSES shall be governed by
property of the Rules of Court.
debtor
The debtor is not under a Debtor is under a PROPER PLACE OF PAYMENT
state of financial state of insolvency
difficulties because if the
1. If the place of payment is designated in the
debtor is insolvent, he is
obligation, the payment shall be made in
generally prohibited from
said place;
resorting to dacion en
pago
Involves the delivery and The creditors do 2. In the absence of stipulation and the
transmission of ownership not acquire obligation is to deliver a determinate thing,
of a thing as an accepted ownership over the the payment shall be made in the place
equivalent of the properties of the where the thing might be at the time of the
performance of the debtor because the constitution of the obligation.
obligation transfer of
possession to them 3. In any other case (or in the absence of
is only for the stipulation and the obligation is other than
purpose of the sale the delivery of a determinate thing), the

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place of payment shall be the DOMICILE OF
THE DEBTOR.
2. Application of payment (Art. 1252-
1254, NCC):
Concept: It is the designation of the debt which
is being paid by a debtor who has several
obligations of the same kind in favor of the
creditor to whom payment is made when the
amount is not sufficient to cover all
indebtedness.
Requisites of application of payment:
1. There should be one debtor and one
creditor;
2. There should be several debts between
them of the same kind;
3. The payment is not sufficient to cover all
indebtedness; and
4. The debts are all due, except when (a) the
parties so stipulate or (b) the application is
made by the party with the benefit of the
term (Art. 1252, NCC).
Who has right to apply:
GR: Initially, it is the debtor who has the right
to choose the debt to which his payment is to be
applied. Such right must be exercised at the
time of payment and not afterwards. Should the
debtor fail to exercise such right at the time of
payment, the same is extinguished. Thereafter,
the creditor acquires the right to propose an
application of payment which proposal does not
bind the debtor unless he accepts the same (Art.
1252 [1], NCC).
XPNs:
1. If the debtor accepts from the creditor a
receipt in which an application of the
payment is made, the former cannot
complain of the same, unless there is a
cause for invalidating the contract. (Art. 1252
[2], NCC; Art. 1330, NCC.);
240 Center for Legal Education and Research
2. If both the debtor and the creditor did not
choose the debt to which the payment is to
be applied first, the debt which is most
onerous to the debtor, among those due
(Art. 1254 [1] NCC). If the debts due are of
the same nature and burden, the payment
shall be applied to all of them
proportionately (Art. 1254 [2] NCC).
Application of payment to interest first:
But if the debt produces interest, the debtor
cannot apply his payment to the capital first
prior to paying the interest because the law
requires its application to interest first (Art. 1253,
NCC).
GR: Payment shall first be applied to the
interest and not to the principal shall govern if
two facts exist: (1) the debt produces interest
9e.g. the payment of interest is expressly
stipulated). (2) the principal remains unpaid.
XPN: When the creditor waives payment of the
interest despite the presence of (1) and (2).
Legal application of payment
Debts which are not of same burden
When debts due are not of the same burden,
the rule is that the debt which is most onerous
to the debtor shall be deemed to have been
satisfied (Art. 1254, NCC).
Preference of Credits
TYPES OF MORE ONEROUS
DEBTS
Principal v. Debt covering that of the
Surety principal
Interest Interest bearing debts
Bearing v. Non-
interest
bearing
Secured v. A secured debt is more onerous
Non–secured than another which is has no
security (Traders Insurance v.
DyengGiok G.R. No. L09073,
November 17, 1958)
One in default Debt in default
 Purple Notes 2018
Civil Law
while the May totally extinguish Assignment only
others are not the obligation and extinguishes the credits to
All other things Older obligation release the debtor the extent of the amount
being the same realized from the properties
assigned, unless otherwise
Liquidated v. Liquidated
agreed upon.
Non -
liquidated
(Jurado, Comments and Jurisprudence on Obligations
and Contracts, 2010, p. 275-276)
Debts are of the same burden: If the debts
due are of the same nature and burden, the 4. Tender of Payment and Consignation
payment shall be applied to all of them (Art. 1256-1257)
proportionately (Art. 1254 [2], NCC).
EFFECT OF NON-ACCEPTANCE OF
3. Payment by Cession (Art. 1255) PAYMENT

Concept: Cession or assignment consists in the The creditor‘s unjust refusal to accept payment
abandonment of the totality of the property of does not produce the effect of payment that will
the debtor in favor of the creditors in order that extinguish the debtor‘s obligation.
the same may be applied for the satisfaction of
their credits (8 Manresa 321). To have the effect of payment and the
consequent extinguishment of the obligation to
Requisites: pay, the law requires the companion acts of
tender of payment and consignation. Tender of
1. There must be two or more debts; payment must be followed by a valid
2. There must be two or more creditors; consignation in order to produce the effect of
3. There must be one debtor who is insolvent; payment and extinguish an obligation. Hence,
4. The debtor must abandon his properties in where the creditor unjustly refuses to accept the
favor of the creditors; and payment, the debtor must comply with (2)
5. The creditors must accept the abandonment conditions: (a) tender of payment; and (b)
in their favor (Jurado, Comments and consignation of the sum due (Rabuya, Obligations
Jurisprudence on Obligations and Contracts, and Contracts, 2019 ed., p. 286).
2010, p. 275).
Tender of Payment, Not Sufficient: Tender
Dation in Payment v. Payment by Cession of payment even if valid, does not by itself
produce legal payment, unless it is completed by
DATION IN consignation. The effect of a valid tender of
PAYMENT BY CESSION
PAYMENT payment is merely to exempt the debtor from
There may only be one Plurality of creditors payment of interest and/or damages. (PNB v.
creditor Relativo, G. R. No. L-5298, Oct. 29, 1952). Well
Debtor not necessarily Debtor is in a state of settled is the rule that tender of payment must
insolvent partial or relative insolvency be accompanied by consignation in order that
What is delivered is a What is ceded is the the effects of payment may be produced . (State
specific thing to be universality of the debtor‘s
Investment House, Inc. V. Court of Appeals, G. R. No.
considered as the property
90676, June 19, 1991; Pasricha v. Don Luis Dison
equivalent of the
Realty, Inc., G. R. No. 136409, March 14, 2008).
performance of the
obligation
Ownership is Only the possession and
transferred to the administration are
creditor transferred to the creditors.

Bar Operations C ommissions 241

 Purple Notes
Civil Law
Concept of ―Tender of Payment‖
Tender of payment is the definitive act of
offering the creditor what is due him or her,
together with the demand that the creditor
accept the same (Cinco v. CA, G. R. No. 151903,
Oct. 9, 2009).
Tender of payment presupposes not only that
the obligor is able, ready, and willing, but more
so, in the act of performing his obligation
(Roman Catholic Bishop of Malolos, Inc. v. IAC, G.R.
No. 72110, Novemver 16, 1990). In obligations to
pay in money, tender of payment involves a
positive act and unconditional act by the obligor
of offering legal tender currency as payment to
the obligee for the former‘s obligation and
demanding that the latter accept the same (Cebu
International Finance Corp. v. CA, G.R. No. 123031,
October 12, 1999).
CONSIGNATION
 Consignation is the act of depositing the
thing due with the court or judicial authorities
whenever the creditor cannot accept or
refuses to accept payment, and it generally
requires a prior tender of payment.
 Is the remedy for an unjust refusal to accept
payment (Rabuya, Obligations and Contracts,
2019 ed., p. 292).
 The rationale for consignation is to avoid the
performance of an obligation becoming more
onerous to the debtor by reason of causes
not imputable to him. If the debtor fails to
consign the amounts due, his obligation
necessarily becomes more onerous as he
becomes liable for interest on the amounts
he failed to pay (Jurado, Comments and
Jurisprudence on Obligations and Contracts, 2010,
p. 277).
Consignation distinguished from tender of
payment:
 It should be distinguished from tender
payment. Tender is the antecedent of
consignation, that is, an act preparatory to
242 Center for Legal Education and Research
the consignation, which is the principal,
and from which are derived the immediate
consequences which the debtor desires or
seeks to obtain. Tender of payment may
be extrajudicial, while consignation is
necessarily judicial, and the priority of the
first is the attempt to make a private
settlement before proceeding to the
solemnities of consignation (Meat Packing
Copr.Of the Phils. V. Sandiganbayan, G.R. No.
103068, June 22, 2001; B. E. San Diego, Inc.
v. Alzul, G. R. No. 169501, June 8, 2007).
Requisites of Effectivity of Consignation:
In order that consignation may be effective, the
debtor must show that:
1. There was a debt due;
2. The consignation of the obligation had been
made because the creditor to whom tender
of payment was made refused to accept it,
or because she was absent or incapacitated,
or because several persons claimed to be
entitled to receive the amount due or
because the title to the obligation had been
lost (Art. 1258, NCC);
When Consignation Alone is Sufficient:
Consignation generally requires a prior tender of
payment. But in the following instances,
consignation alone shall produce the effect of
payment:
a. When creditor is ABSENT;
b. When creditor is UKNOWN;
c. When creditor DOES NOT APPEAR at place of
payment;
d. When creditor is INCAPACITATED TO
RECEIVE payment at the time it is due;
e. When without just cause, creditor REFUSES
TO GIVE RECEIPT;
f. When TWO OR MORE PERSONS claim the
same right to collect, and
g. When TITLE OF THE OBLIGATION has been
LOST (Art. 1256, NCC).
3. Previous notice of the consignation had
been given to the person interested in the
 Purple Notes
performance of the obligation; (prior to
consignation). The purpose of the notice is
in order to give the creditor an opportunity
to reconsider his unjustified refusal and to
accept payment thereby avoiding
consignation and the subsequent litigation.
This previous notice is essential to the
validity of the consignation and its lack
invalidates the same. Sending to the creditor
a tender of payment and notice of
consignation may be done in the same act.
4. The amount due was placed at the
disposal of the court; and
5. After the consignation had been made,
the person interested was notified of the
action. (after consignation). The reason
for the notification to the persons
interested in the fulfillment of the
obligation after consignation had been
made, which is separate and distinct from
the notification which is made prior to the
consignation is to enable the creditor to
withdraw the goods or money deposited
(B. E. San Diego, Inc. v. ALzul, G. R. No.
169501, June 8, 2007; Banco Filipino Savings
and Mortgage Bank v. Diaz, G. R. No. 153134,
June 27, 2006; Pabugais v. Sahijwani, G.R. No.
156846, February 23, 2004).
 The notices mentioned above are required
to be given not only to the creditor but to
ALL persons interested in the obligation.
(mandatory)
 Failure to prove any of these requirements
is enough ground to render a consignation
ineffective (void) (Allandale Sportsline, Inc.,
v. The Good Development Corp., 574 SCRA
625, Dec. 18, 2008; Insular Life Assurance
Company, Ltd. v. Toyota Bel-Air, Inc., G.R. No.
137884, March 28, 2008).
Expenses of Consignation - The expenses of
consignation, when properly made, shall be
charged against the creditor (Art. 1259, NCC).
Effects of consignation
Before Acceptance of the Creditor: Before
the creditor has accepted the consignation, or
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Civil Law
before a judicial declaration that the
consignation has been properly made, the
debtor may withdraw the thing or the sum
deposited, allowing the obligation to remain in
force (Art. 1260, NCC).
After the Acceptance of the Creditor:
1. Once the consignation has been duly made,
the debtor may ask the judge to order the
cancellation of the obligation (Art. 1260,
NCC);
2. If the creditor accepts the thing or amount
deposited without contesting the validity or
efficacy of the consignation, obligation is
deemed extinguished (Jurado, Comments and
Jurisprudence on Obligations and Contracts, 2010
ed., p. 287);
3. If the creditor contests the validity or
efficacy of the consignation, the result is
litigation (Supra).
RETROACTIVE EFFECT OF CONSIGNATION
The consignation has a retroactive effect and
the payment is deemed to have been made at
the time of the deposit of the thing in court or
when it was placed at the disposal of the judicial
authority (Rabuya, Obligations and Contracts, 2019
ed., p. 305).
Contract of Lease with option to buy
Consignation requires the existence of a debt.
Hence, it does not apply to a case of a lessee
with option to buy since the lessee was not
indebted to the lessor for the purchase price.
Here, the lessee is merely exercising a right of
option and had no obligation to pay said price
until execution of the deed of sale (Vda. De
Quirino v. Palarca, G.R. No. L28269, August 15,
1969).
Right of Redemption
 Consignation is likewise inapplicable in cases
of exercise of right of redemption since the
right to redeem is a right not an obligation.
Consignation is not necessary to preserve the
Bar Operations C ommissions 243
 Purple Notes
Civil Law
right to redeem (Immaculata v. Navarro, G.R.
No. L-42230, November 26, 1986). In cases
which involve the performance of an
obligation and not merely the exercise of a
privilege or right, the payment may be
effected not by mere tender alone but by
both tender and consignation. The rule is
different in cases which involve an exercise
of a right or privilege, such as an option
contract, legal redemption or sale with right
to repurchase, wherein tender of payment
would be sufficient to preserve the right or
privilege (Adelfa Properties, Inc. v. CA, G.R. No.
111238, Jjune 25, 1995).
 The essential requisites of a valid
consignation must be complied with fully
and strictly in accordance with the law.
(Arts 1256-1261, NCC). Substantial
compliance is not enough (Soco v. Militante,
G.R. No. L-58961, June28, 1983).
2. LOSS OF THE THING DUE
In Real Obligation
Concept of loss in real obligations: It is
understood that the thing is lost when:
1. It perishes;
2. It goes out of commerce; or
3. It disappears in such a way that its
existence is unknown or it cannot be
recovered (Art. 1189, NCC)
Not Applicable to Generic Obligation: Only
a specific obligation can be extinguished by way
of loss of the thing due. In a generic obligation,
the loss or destruction of anything of the same
kind does not extinguish the obligation (Art.
1263, NCC). This rule is based on the principle
that the genus of a thing can never perish.
Genus nunquan perit (Gaisano Cagayan, Inc. v.
Insurance Co. of North America, G. R. No. 147839,
June 8, 2006).
 An obligation to pay money is generic;
therefore, it is not excused by fortuitous loss
of any specific property of the debtor(Gaisano
Cagayan, Inc. v. Insurance Co. of North America,
supra)
244 Center for Legal Education and Research
General Rule: A determinate obligation is
extinguished if the determinate thing is lost
without the fault of the debtor and before he
has incurred in delay (Art. 1262 [1], NCC).
Effect of Loss in Determinate Obligations
to Give - Before the loss of the determinate
thing may result in the extinguishment of the
obligation, it is necessary that the following
requisites must concur:
1. The thing loss must be determinate;
2. Thing is loss without the fault of the debtor;
3. Thing is loss before the debtor has already
incurred in delay (Art. 1262, NCC).
Effect of Loss Due to Fortuitous Event
General Rule: If the determinate thing is loss
due to a fortuitous event, the debtor is not
liable.
Exceptions:
1. When by law, the debtor is liable even for
fortuitous event;
2. When by stipulation, the debtor is liable
even for fortuitous event, or
3. When the nature of the obligation requires
the assumption of risk (Art. 1262[2], NCC).
Disputable presumption of fault on the
part of debtor: If the thing is lost while in the
possession of the debtor, he is presumed to be
at fault, unless there is proof to the contrary.
This presumption does not apply if the thing is
lost on occasions of earthquake, flood, storm or
other natural calamity (Art. 1265, NCC).
In Positive Personal Obligation
Concept of loss in positive personal
obligation: An obligation to do is considered
lost, therefore extinguished, if:
1. The prestation becomes either legally or
physically impossible without the fault of the
debtor (Art. 1266, NCC); or
 Purple Notes
2. The service has become so difficult as to be
manifestly beyond the contemplation of the
parties (Art. 1267, NCC).
 The obligation to pay rentals or deliver the
thing in a contract of lease falls within the
prestation ―to give‖ hence, it is not
covered within the scope of Article 1266
(PCC v. CA, G.R. No. 116896, May 5, 1997).
 Article 1267, which enunciates the
doctrine of unforeseen events, is not an
absolute application of the principle of
rebus sic stantibus, which would endanger
the security of contractual relations. The
parties to the contract must be presumed
to have assumed the risks of unfavorable
developments. It is therefore only in
absolutely exceptional changes of
circumstances that equity demands
assistance for the debtor (PCC v. CA, G.R.
No. 116896, May 5, 1997).
Remedy of creditor if thing is lost thru
fault of third person:
If the determinate thing is lost thru the fault of a
third person, the obligation is extinguished since
it was lost without the fault of the debtor (Art.
1262, NCC). The creditor acquires, however, all
the rights of action which the debtor may have
against third persons by reason of the loss (Art.
1269, NCC).
3. CONDONATION or REMISSION
Concept: it is an act of liberality by which the
obligee, who receives no price or equivalent
thereof, renounces the enforcement of the
obligation, which is extinguished in its entirety
or in part or aspect of the same to which the
remission refers (8 Manresa 365).
Requisites for Valid Condonation:
1. It must be gratuitous (Art. 1270 [1], NCC);
2. The obligation must be demandable at the
time of the condonation;
3. The condonation must be accepted by the
debtor (Art. 1270 [1], NCC);
2018
Civil Law
4. It must not amount to an inofficious
donation (Art. 1270 [2], NCC); and
5. If the condonation is made expressly, it
must comply with the formalities of
donation.
 It is an essential characteristic of
remission that it be gratuitous, that there
is no equivalent received for the benefit
given; once such equivalent exists, the
nature of the act changes. It may become
dation in payment when the creditor
receives a thing different from that
stipulated; or novation, when the object or
principal conditions of the obligation
should be changed; or compromise, when
the matter renounced is in litigation or
dispute and in exchange of some
concession which the creditor receives.
(Dizon v. CA. G. R. No. 140944, April 30, 2008;
citing IV Tolentino, Civil Code, 1991 ed., p.
353).
Formalities of Condonation: Implied
condonation has no special form. But if the
condonation is done expressly, it must conform
with the following formalities, otherwise, the
condonation is not valid—
1. If the obligation condoned involves a real
property, the condonation and its
acceptance must be made in a public
instrument (Art. 749, in rel. to Art. 1270, NCC);
2. If the obligation condoned involves a
personal property, the condonation and its
acceptance must be in writing if the value of
the personal property exceeds five thousand
pesos (Art. 748, in rel. to Art. 1270, NCC).
Disputable presumptions of condonation:
1. If the private document evidencing a credit
is found in the possession of the debtor, it
gives rise to a presumption that the creditor
voluntarily delivered it to the debtor, unless
the contrary is proved (Art. 1272, NCC). The
voluntary delivery of such document by the
creditor to the debtor, in turn, gives rise to a
presumption that the debt is being
condoned (Art. 1271, NCC);
Bar Operations C ommissions 245
 Purple Notes
Civil Law
2. The accessory obligation of pledge is
presumed condoned when the thing
pledged, after its delivery to the creditor, is
found in the possession of the debtor, or of
a third person who owns the thing (Art.
1274, NCC).
 If the thing pledged is returned
(voluntarily) by the pledgee to the pledgor
or owner, the pledge is extinguished and
any stipulation to the contrary shall be
void (Art. 2110, NCC).
4. CONFUSION or MERGER
Concept: It exists when the characters of the
creditor and debtor are merged in the same
person.
Illustration: A executes a promissory note
payable to the order of B. B uses it to pay C.
Then C uses it to pay A.
Requisites of Merger:
1. It must take place in the person of the
principal creditor and principal debtor (Art.
1276, NCC).
If the merger involves a creditor and a
guarantor, the obligation is not
extinguished. However, when the merger
takes place in the person of the guarantor,
the accessory obligation is extinguished by
the the principal obligation continues (Art.
1276, NCC).
2. It must be complete and definite, because if
not complete, the obligation still subsists (2
Castan, 60.)
Effects of Merger in Joint and Solidary
Obligations:
1. Joint Obligation- merger does not
extinguish a joint obligation except as
regards the share corresponding to the
creditor or debtor in whom the two
characters concur (Art. 1277, NCC)
246 Center for Legal Education and Research
2. Solidary Obligation- merger has the effect
of extinguishing the obligation (Art. 1215,
NCC).
5. COMPENSATION
Concept: It is the offsetting of two obligations
which are reciprocally extinguished to their
concurrent amount between persons who, in
their own right, are creditors and debtors of
each other (Jurado, Comments and Jurisprudence on
Obligations and Contracts, 2010, p. 309)
Kinds of Compensation:
1. Legal – It takes place ipso jure when all the
requisites of law are present (Mavest [USA],
Inc. v. Sampaguita Garment Corp., G. R. No.
127454, Sep. 21, 2005);
2. Conventional or Voluntary – It occurs
when the parties agree to the mutual
extinguishment of their credits or to
compensate their mutual obligations even in
the absence of some of the legal requisites
(Mavest (USA), Inc. v. Sampaguita Garment
Corp., G. R. No. 127454, Sep. 21, 2005);
3. Judicial – It takes place by order of the
court or by judicial decree (Jurado, Comments
and Jurisprudence on Obligations and Contracts,
2010, p. 311.)
Minimum Requirement of Compensation:
There must be the confluence of the characters
of mutual debtors and creditors. Without this,
the contracting parties cannot stipulate (in
conventional compensation) to the
compensation of their obligations, for the legal
tie that binds contracting parties to their
obligations would be absent. At least one party
would be binding himself under an authority he
does not possess. (CKH Industrial and
Development Corp.v. CA, G.R. No. 111890, May
7, 1997). But while compensation, be it legal or
conventional, requires the confluence in the
parties of the characters of mutual debtors and
creditors, their rights as such creditors, or their
obligations as such debtors, need not spring
from one and the same contract or transaction
 Purple Notes
(Mavest (USA), Inc. v. Sampaguita Garment Corp., G.
R. No. 127454, Sep. 21, 2005).
Requisites of Legal Compensation - In order
that legal compensation may be proper, the
following requisites must be present –
1. The parties must be creditors and debtors of
each other in their own right (Art. 1278,
NCC);
2. They must be bound principally (Art. 1279
[1], NCC);
 However, the law permits a guarantor to
set up compensation as regards what
the creditor may owe his principal
debtor (Art. 1280, NCC). Thus, such
guarantor may set up credits which
personally belong to him and also
credits which belong to his principal,
the former under the general rule.
3. 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 (Art. 1279[2],
NCC);
4. The two debts be due, liquidated and
demandable (Art. 1279 [3] and [4], NCC); and
5. Over neither of them there be any
retention or controversy, commenced in due
time to the debtor (Art. 1279 [5], NCC).
 Article 1279 requires, among others, that
in order that legal compensation shall take
place, ―the two debts be due‖ and ―they
be liquidated and demandable.‖
Compensation is not proper where the
claim of the person asserting the set-off
against the other is neither clear nor
liquidated; compensation cannot extend to
unliquidated, disputed claim existing from
breach of contract. (Silahis Marketing Corp.
v. IAC, G.R. No. L-74027, Dec. 7, 1989)
Effects of legal compensation: When all the
foregoing requisites are present, compensation
takes effect by operation of law, and
extinguishes both debts to the concurrent
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Civil Law
amount, even though the creditors and debtors
are not aware of the compensation (Art. 1290,
NCC).
 Legal compensation operates even against
the will of the interested parties and even
without the consent of them (BPI v. CA, 255
SCRA 571). Since this compensation takes
place ipso jure, its effects arise on the
very day on which all its requisites concur.
When used as a defense, it retroacts to
the date when its requisites are fulfilled.
(BPI v. CA, supra.; Trinidad v. Acapulco, G. R.
No. 147477, June 27, 2006).
Prohibited compensation - Compensation is
prohibited in the following instances:
1. When one of the debts arises from a
contract of deposit/depositum or from the
obligations of a depositary (Art. 1287, NCC);
 The relationship between a bank and its
depositor is that of creditor and debtor.
For this reason, a bank has the right to
set-off the deposits in its hands for the
payment of a depositor‘s indebtedness
(Equitable PCI Bank v. Ng Sheung Ngor, G.R.
No. 171545, December 19, 2007).
2. When one of the debts arises from the
obligations of a bailee in commodatum (Art.
1287, NCC);
3. Over a claim for support due by gratuitous
title (Art. 1287, NCC);
4. If one of the debts consists in civil liability
arising from a penal offense (Art. 1288, NCC);
5. Over claims of the Government for taxes.
 Taxes cannot be subject to compensation
for the simple reason that the government
and the taxpayer are not creditor and
debtors of each other. There is a material
distinction between a tax and debt. Debts
are due to the Government in its
corporate capacity, while taxes are due to
the Government in its sovereign capacity.
We find no cogent reason to deviate from
the aforementioned distinction. (Philex
Mining Corp. v. Commissioner of Internal
Bar Operations C ommissions 247
 Purple Notes
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Revenue, G. R. No. 125704, August 28, 1998;
Caltex Philippines, Inc. v. Commission on Audit,
G.R. No. 92585, May 8, 1992)
Effect of assignment upon legal
compensation:
1. An assignment made after compensation
has legally taken place can produce no
effect as against the debtor, and the only
recourse of the assignee is an action for
damages based on fraud or eviction against
the creditor-assignor (8 Manresa 413-414);
Illustration: A is indebted to B for P500
and B is indebted to A for P300. Upon
concurrence of all requisites, both debts
become extinguished up to the concurrent
amount of P300, so that A remains liable to
B only for the balance of P300. But suppose
A assigned his credit of P300 against B in
favor of X, after compensation had taken
place by operation of law, X would have
acquired no credit enforceable against B,
because of the extinguishment of said credit
by compensation.
2. If the debtor consents to the
assignment, he cannot set up against the
assignee compensation which would have
pertained to him against the creditor-
assignor, unless the debtor notifies the
assignor that he reserves his right to the
compensation (Art. 1285 [1], NCC);
Illustration: In the above example, if X
consents that B assign the former‘s
indebtedness to him for P300, A cannot set
up any defense of compensation. He has to
pay B or his assignee X P500, unless in
consenting to said assignment, A expressly
reserved his right to the compensation.
3. If the creditor communicated the
assignment to the debtor but the debtor did
not consent thereto, the debtor may set up
the compensation of debts previous to the
assignment of the creditor but not of
subsequent ones (Art. 1285 [2], NCC);
248 Center for Legal Education and Research
Illustration: In the above example, if B
assigns his credit of P500 against A in favor
of X, communicating the same to A but
without obtaining his consent, A may set up
as against X his credit of P300 against B
only and if said credit has become due and
has given rise to compensation as against
B‘s credit of P500 before the assignment.
4. If the assignment is made without the
knowledge of the debtor, such debtor may
set against the assignee not only the
compensation of all credits prior to the
assignment, but also of later ones (even
after the assignment) until he had
knowledge of the assignment (Art. 1285 [3],
NCC).
Illustration: Suppose B‘s credit against A
matures on January 1 while A‘s credit
against B matures on January 30. A, on
January 15, assigned his credit of P300
against B in favor of assignee X, and, B does
not know of said assignment until February
1. Although the compensation has taken
place 15 days after the assignment, B may
still set up against the assignee X
compensation which pertains to him against
the assignor A in as much as said
compensation occurred prior to February 1,
when debtor B had knowledge of the
assignment.
6. NOVATION (Arts. 1291-1304, NCC)
Concept: it is the extinguishment of obligation
by the substitution or change of the obligation
by a subsequent one which extinguishes or
modifies the first, either by changing the object
or principal conditions, or by substituting
another in place of the debtor, or by subrogating
a third person in the rights of the creditor.
Unlike other modes of extinction of obligations,
it is a juridical act with a dual function, namely,
it extinguishes an obligation and creates a new
one in lieu of the old (Rabuya, Civil Law Reviewer
Volume II, 2017 Ed. p. 158-159).
Kinds of Novation:
1. As to its effect:
 Purple Notes
a. Extinctive – An old obligation is terminated
by the creation of a new obligation that takes
the place of the former (Quinto v. People, G.R.
No. 126712, April 14,1999). For example, if
what is changed is any of the principal
conditions of the obligation or terms and
conditions, which are considered to be the
essence of the obligation itself, the novation,
is extinctive (Aquinley v. Tibong, G.R. No.
166704, Dec. 20, 2006; Swagman Hotels and
Travel, Inc. v. CA, G. R. No. 161135, April 8,
2005). It has twin effects: first, it extinguishes
the existing obligation and, second, it creates
a new one in its stead.
Q: The co-owners of a property entered
into a Deed of Partial Partition and
subsequently entered into a Memorandum
of Agreement that they shall share alike
and receive equal shares in the proceeds
of the sale of the property subject of the
partition. They, however, still respected
the partition. Was there novation of the
Deed of Partition with the execution of the
MOA?
A: No. There is no novation because there was
no inconsistency between the two contracts, as
they can stand together. Novation, in order to
extinguish an obligation, should have the
following requisites:
i. There is a previous valid obligation;
ii. The parties concerned agree to a new
contract;
iii. The old contract is extinguished;
iv. There is a new valid contract.
In order for there to be implied novation, the old
and the new obligations be on every point
incompatible with each other (Jurado, Civil Law
Reviewer, 2009, p. 797 citing Uraca v. CA, G.R. No.
115158, September 5, 1997).
Q: Suppose that in a second and a new
contract, the debtor acknowledges or
ratifies the new contract, is there
novation? Reason.
A: No. There is no novation. It is clear that the
first contract and the second contract can stand
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together, and consequently, there can be no
incompatibility between them (Jurado, Civil Law
Reviewer, 2009, p. 797 citing Millar v. CA G.R. No. L-
29981, April 30, 1971).
b. Modificatory– The old obligation subsists
to the extent it remains compatible with the
amendatory agreement (Quinto v. People, G.R.
No. 126712, April 14, 1999). For example,
novation is merely modificatory where the
change brought about by any subsequent
agreement is merely incidental to the main
obligation (e.g. a change in interest rates or
an extension of time to pay). In this
instance, the new agreement will not have
the effect of extinguishing the first but will
merely supplement it or supplant some but
not all of its provisions. (Aquintey v. Tibong,
Dec. 2006; Swagman Hotels and Travel, Inc. v.
CA, G. R. No. 161135, April 8, 2005).
2. As to its essence:
a. Real or Objective – Novation is
effected by changing the object, cause or
any of the principal conditions of the
obligation (Rio Grande Oli Co. v. Coleman [CA],
39 O. G 986);
b. Personal or Subjective – Novation is
effected by substituting the person of the
debtor or by subrogating a third person in
the rights of the creditor (Rio Grande Oli Co. v.
Coleman [CA], 39, O.G. 986). May either be
expromision or delegacion.
3. As to its form:
a. Express – The contracting parties
incontrovertibly disclose that their object in
executing the new contract is to extinguish
the old one (Sueno v. Land Bank of the Phil,
G.R. No. G.R. No. 174711, Sep. 17, 2008);
 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 unmistakable (Sueno
v. Land Bank of the Phil., R. No. 174711, Sep.
17, 2008). In order to extinguish or
Bar Operations C ommissions 249
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Civil Law
discharge an obligation by novation the
intent of the parties to do so (animus
novandi) must be either expressed or else
clearly apparent from the incompatibility
―on all points‖ of the old and the new
obligations (La Tondena, Inc. v. Alto Surety &
Insurance Co., Inc. G.R. No. L-10132, July 18,
1957).
b. Implied – There is no express novation but
there is irreconcilable incompatibility
between the old and the new obligations
(Sueno v. Land Bank of the Phil;, G.R. No.
174711, Sep. 17, 2008) or that the new
obligations is on every point incompatible
with the old one (Ajax Marketing &
Development Corp. v. CA, G. R. No. 118585,
Sep. 14, 1995).
 In order that an obligation may be
impliedly extinguished by another which
substitutes the same, it is imperative that
the old and the new obligations must be
incompatible with each other (Art. 1292,
NCC).
Objective Novation – change of the object
of the obligation, requisites of valid
novation:
1. Previous valid obligation;
 The novation is void if the original
obligation was void. This rule admits of
two exceptions: (1) when the annulment
may be claimed only by the debtor; or (2)
when ratification validates acts which are
voidable (Art. 1298, NCC).
2. Agreement of all parties to the new
obligation;
3. Extinguishment of old obligation; and
4. Validity of the new obligation (Tiu Siuco v.
Habana, G.R. No. 21106, February 21, 1924).
 If the new obligation is void, the original
one shall subsist, unless the parties
intended that the former relation should
be extinguished in any event (Art. 1297,
NCC).
250 Center for Legal Education and Research
Novation of conditional obligation: If the
original obligation was subject of a suspensive
or resolutory condition, the new obligation shall
be under the same condition, unless it is
otherwise stipulated (Art. 1299, NCC).
Two forms of novation by substitution of
debtor
1. Expromission– substitution of debtors is
effected with the consent of the creditor at
the instance of the new debtor without the
knowledge or against the will of the old
debtor;
2. Delegacion – The debtor offers and the
creditor accepts a third person who consents
to the substitution so that the intervention
and the consent of these three persons are
necessary and they are respectively known
as delegante, delegatario and delegado
(Testate Estate of Mota v. Serra, G.R. No. L-
22825, February 14, 1925).
For Novation by substitution of debtor to
exist, the old debtor must be released
from the obligation
 In novation effected by way of
substituting the person of the debtor, it is
essential that the old debtor be released
from the obligation, and the third person
or new debtor takes his place in the new
relation. If the old debtor is not released,
no novation occurs and the third person
who has assumed the obligation of the
debtor becomes merely a co-debtor or
surety or a co-surety (Cochingyan, Jr. v. R &
B Surety and Insurance Co., Inc., G.R. No. L-
47369, June 30, 1987, Lopez v. CA, 114 SCRA
67).
 Thus, the mere circumstance of the
creditor accepting payments from a third
person who acquiesced to assume the
obligation of the debtor when there is
clearly no agreement to release the
debtor from his responsibility does not
constitute novation – at most, it only
creates a juridical relation of co-
debtorship or suretyship on the part of
the third person to the contractual
 Purple Notes
obligation of the debtor, and the creditor
can still enforce the obligation against the
debtor (Reyes v. CA, 264 SCRA 35;
Magdalena Estates, Inc. v. Rodriquez, G. R.
No. L-18411, Dec. 17, 1966).
Creditor’s Consent Essential:
1. Whether the substitution is thru
expromission or delegacion, the creditor‘s
consent is always necessary (Garcia v. Khu
Yek Chiong, G.R. No. 45154, March 31, 1938).
The reason for the requirement of the
creditor‘s consent to such substitution is
obvious. Substitution of one debtor for
another may delay or prevent the fulfillment
or performance of the obligation by reason
of the temporary inability or insolvency of
the new debtor (Rio Grande Oil Co. v. Coleman,
[CA], 39 O.G. 1410);
2. It is not necessary that the creditor should
give his consent simultaneously with the
execution of the new contract. He may do
so afterwards. (Testate Estate of Mota v. Serra,
47 Phil. 464);
3. Creditor‘s consent may be implied (Asia
Banking Corporation v. Elser, 54 Phil. 994). It is
true that it need not be given
simultaneously with those of the debtor and
the third party who assumes the debtor‘s
obligation, nor is it necessary that it be
given by the creditor in any particular or
specific form, but it must be given by the
creditor in one way or another (Rio Grande Oil
Co. v. Coleman, supra);
4. But the creditor‘s acceptance of payments
by a third party for the benefit of a debtor
whose accounts the third party has
assumed, without further facts does not
constitute a novation (Pacific Commercial CO.
v. Sotto, 34 Phil. 237).
Effect of substitution without the consent
of the debtor
If the substitution is without the knowledge or
against the will of the debtor, the new debtor's
insolvency or non-fulfillment of the obligations
shall not give rise to any liability on the part of
the original debtor (Art. 1294, NCC).
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Civil Law
Effect of insolvency of new debtor
The insolvency of the new debtor, who has been
proposed by the original debtor and accepted by
the creditor, shall not revive the action of the
latter against the original obligor, except when
said insolvency was already existing and of
public knowledge, or known to the debtor, when
the delegated his debt (Art. 1295, NCC).
Effect of Objective Novation and Novation
by Substitution of Debtor:
1. Generally, the extinction of the old
obligation carries with it the extinction of the
accessory obligations which are subordinate
to and dependent upon the principal
obligation thus extinguished;
2. However, accessory obligations subsist
insofar as they may benefit third persons
who have not given their consent to the
novation (Art. 1296, NCC).
Subrogation
Concept: It is the transfer of all the rights of
the creditor to a third person, who substitutes
him in all his rights (Jurado, Comments and
Jurisprudence on Obligations and Contracts, 2010,
p349).
Two forms of subrogation
1. Conventional – It takes place by the
agreement of and requires the consent of
the original parties (the debtor and original
creditor) and of the third person (the new
creditor) (Art. 1301, NCC);
2. Legal – It takes place by operation of law
and is not to be presumed outside of the
following cases:
a. When a creditor pays another creditor
who is preferred, even if the payment is
without the debtor‘s knowledge;
b. When a third person interested in the
fulfillment of the obligation pays the
obligation, even if such payment is
without the knowledge of the debtor
Bar Operations C ommissions 251
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Civil Law
without prejudice to the effects of
confusion as to the latter‘s share;
c. When a third person, not interested in the
obligation, pays the obligation but only if
such payment is with the consent of the
debtor, whether express or implied (Arts.
1300 and 1302, NCC).
Subrogation v. Assignment
SUBROGATION ASSIGNMENT
The debtor‘s consent is Not required
necessary
Extinguishes an obligation Refers to the same
and gives rise to a new right which passes
one from one person to
another.
Nullity of an old obligation The nullity of an
may be cured by obligation is not
subrogation, such that the remedied by the
new obligation will be assignment of the
perfectly valid. (Ledonio v. creditor‘s right to
Capitol Development another.
Corp., G.R. No. 149040,
July 4, 2007)
 In an assignment of credit, the consent of
the debtor is not necessary in order that
the assignment may fully produce the
legal effects. What the law requires in an
assignment of credit is not the consent of
the debtor, but merely notice to him as
the assignment takes effect only from the
time he has knowledge thereof. A creditor
may, therefore, validly assign his credit
and its accessories without the debtor‘s
consent. On the other hand, conventional
subrogation requires an agreement among
the parties concerned – the original
creditor, the debtor, and the new creditor.
It is a new contractual relation based on
the mutual agreement among all the
necessary parties (Ledonio v. Capitol
Development Corp., G.R. No. 149040, July 4,
2007).
 If the approval of the debtor to the
subrogation of a third person in place of
the creditor is expressly required, the
intention of the parties is that the
transaction is one of conventional
252 Center for Legal Education and Research
subrogation and not just an assignment of
credit (Licaros v. Gatmaitan, G.R. No. 142838,
August 9, 2001).
Effect of Subrogation: It transfers the credit,
together with the rights annexed thereto (the
right to the exercise of other accessory rights,
such as the right to the mortgage or pledge),
whether those rights be against the debtor or
against third persons. (Art. 1303, NCC) This is
true for legal subrogation. But in conventional
subrogation, the effects thereof may be modified
by the express agreement of the parties.
Reimbursement v. Subrogation: In case of
reimbursement, the person paying for another
has only a personal action to recover what he
has paid without the rights, powers and
guaranties attached to the original obligation. In
subrogation, the person who pays for another
acquires not only the right to be reimbursed for
what he has paid but also the other rights
attached to the obligation originally contracted
by the debtor.
Effect of partial subrogation: In case of
partial payment, the creditor, to whom partial
payment has been made, may exercise his right
for the remainder and he shall be preferred in
his place to the person who has been
subrogated in virtue of the partial payment of
the same credit. (Art. 1304, NCC)
VII:
CONTRACTS
(Arts. 1305 to 1422, NCC)
A. GENERAL PROVISIONS
DEFINITION
A contract is a meeting of minds between two
persons whereby one binds himself, with respect
to the other, to give something or to render
some service (Art. 1305, NCC).
 Purple Notes
Difference between Obligation and
Contract
OBLIGATION CONTRACT
Juridical necessity Source of obligation
May exist without Cannot exist without
contract obligation
ELEMENTS OF CONTRACT
1. Essential elements without which there
can be no contract. (3 Castan, 7 Ed., pp. 322-
th
324)
1. Common (communes) those which
are present in all contracts, such as
consent, object certain and cause.
2. Special (especiales) those which
present only in certain contracts, such
as delivery in real contracts, or form
in solemn ones.
3. Extraordinary(especialissimos)
those which are peculiar to a specific
contract (i.e.price in sales)
2. Natural elements are those derived from
the nature of the contract and ordinarily
accompany the same. They are presumed
by law, although they can be excluded by
the contracting parties if they so desire. (3
Castan, 7th Ed., p. 324)
1. Right to resolve (Art. 1191, NCC)
2. Warranties in sales contracts, implied
3. Accidental elements are those which
exist only when the parties
expressly provide for them for the
purpose of limiting or modifying the
normal effects of the contract. (i.e.
condition, terms or modes) (3 Castan, 7th
Ed., p. 324)
STAGES OF A CONTRACT
Negotiation- it begins from the time the
prospective contracting parties manifest their
interest in the contract and ends at the moment
of agreement of the parties;
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Civil Law
Perfection (or birth) — Here, the parties have
at long last came to a definite agreement, the
elements of definite subject matter and valid
cause have been accepted by mutual consent
(Paras, Civil Code of the Philippines, Annotated Vol.
IV, 2008, p. 540).
Consequences of Perfection
a. The parties are bound to the fulfillment of
what has been EXPRESSLY
STIPULATED (Art. 1315, NCC), and
compliance thereof must be in GOOD
FAITH (Art. 1159, NCC).
b. The parties are ALSO bound to all the
CONSEQUENCES which, according to
their nature, may be in keeping with
GOOD FAITH, USAGE, and LAW.
Consummation (or death or termination) —
Here the terms of the contract are performed,
and the contract may be said to have been fully
executed.
CHARACTERISTICS OF A CONTRACT
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,
NCC)
From the moment the contract is perfected, the
parties are bound not only to the fulfilment of
what has been expressly stipulated but also to
all consequences which, according to their
nature, may be in keeping with good faith. Also,
the stipulations of the contract being the law
between the parties, courts have no alternative
but to enforce there as they were agreed upon
and written (Pangilinan v. CA, G.R. No. 83588,
September 29, 1997).
Autonomy of Contracts
The contracting parties are accorded with
liberality and freedom to establish stipulations,
clauses, terms and conditions as they may deem
appropriate, provided the same are not contrary
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Civil Law
to law, morals, good customs, public order or
public policy (See Art. 1306, NCC).
The right to enter into lawful contracts
constitutes one of the liberties of the people of
the state. If that right be struck down, or
arbitrarily interfered with, there is substantial
impairment of the liberty of the people under
the constitution (Rabuya, Civil Law Reviewer
Volume II, 2017 ed, p. 180, citing People v. Pomar,
G.R. No. L-22008, November 3, 1924).
Mutuality of Contracts
Contracts must bind the contracting parties, its
validity or compliance cannot be left to the
will of one of them (see Art. 1308, NCC) However,
the performance of a contract can be left to the
determination of third persons. The
determination of the performance by a third
person shall be obligatory upon both contracting
parties from the moment it is made known to
them. (Art. 1310, NCC)
Relativity of Contracts
Contracts can only bind the parties who entered
into it, including their heirs and assigns, and it
cannot prejudice a third person, even if he is
aware of such contract and has acted with the
knowledge thereof. (See Art. 1311, NCC)
Principle of relativity of contracts
General rule: A contract is binding not only
between parties but extends to the heirs,
successors in interest, and assignees of the
parties, provided that the contract involves
transmissible rights by their nature, or by
stipulation or by provision of law.
Exceptions:
Stipulation pour autrui (stipulation in favor of
a third person) – benefits deliberately conferred
by parties to a contract upon third persons.
Requisites of Stipulation pour autrui:
1. Stipulation in favor of a third person.
254 Center for Legal Education and Research
2. The stipulation must be part, not whole of the
contract;
3. Contracting parties must have clearly and
deliberately conferred a favor upon third
person;
4. Favor or benefit is not just an incidental
benefit or interest.
5. Third person must have communicated his
acceptance; and
6. Neither of the contracting parties bears the
legal representation of the third person (Young v
Court of Appeals, G.R. No. 79518, January 13, 1989).
Tort Interference - When a third person
induces a party to violate the contract (Art.
1314, NCC).
Requisites to hold a third person not party
to a contract liable:
a. Existence of a valid contract
b. Third person has knowledge of such contract
c. Third person interferes without justification
Third persons coming into possession of the
object of the contract creating real rights. (Art.
1312, NCC)
Contracts entered into fraud of creditors. (Art.
1313, NCC)
2. CLASSIFICATION OF CONTRACTS (Jurado,
Comments and Jurisprudence on Obligations and
Contracts, 2010 ed., p. 359-361)
a) According to their relation to other
contracts
i) Preparatory – those which have for their
object the establishment of a condition
in law which is necessary as a
preliminary step towards the celebration
of another subsequent contract.
ii) Principal – those which can subsist
independently from other contracts and
whose purpose can be fulfilled by
themselves.
 Purple Notes
iii) Accessory – those which can exist only
as a consequence of, or in relation with,
another prior contract.
b) According to perfection
i) Consensual – those which are perfected
by the mere agreement of the parties.
General rule: No particular form is
required in order to make the
contract binding and effective
between the parties thereto.
Exceptions:
a. When the law requires a
contract to be in some form in
order that it may be valid; or
b. When the law requires a
contract to be in some form in
order that it may be
enforceable, or that a contract
be proved in a certain way. (Art.
1356, NCC)
ii) Real – those which require not only the
consent of the parties for their
perfection, but also the delivery of the
object by one party to the other.
The real contracts referred to in Art
1316 are:
(1) Deposit
(2) Pledge
(3) Commodatum, a loan where the
identical object must be returned.
c) According to Form
i) Common or Informal – those which
require no particular form.
ii) Special or Formal – those which require
some particular form.
d) According to their purpose
i) Transfer of ownership – e.g., sale
ii) Conveyance of use – e.g., commodatum
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iii) Rendition of service – e.g., agency
e) According to their subject matter
i) Things – e.g., sale, deposit, pledge
ii) Services – e.g., agency, lease of services
f) According to the nature of the
vinculum which they produce
i) Unilateral – those which give rise to an
obligation for only one of the parties.
ii) Bilateral – those which give rise to
reciprocal obligations for both parties.
g) According to their cause
i) Onerous – those in which each of the
parties aspire to procure for himself a
benefit through the giving of an
equivalent or compensation.
ii) Gratuitous – those in which one of the
parties proposes to give to the other a
benefit without any equivalent or
compensation.
iii) Remuneratory - one where a party
gives something to another because of
some service or benefit given or
rendered by the latter to the former,
where such service or benefit was not
due as a legal obligation. The
consideration of one is greater than the
other‘s.
h) According to the risks involved
i) Commutative – those where each of the
parties acquire an equivalent of his
prestation and such equivalent is
pecuniarily appreciable and already
determined from the moment of the
celebration of the contract.
ii) Aleatory – those where each of the
parties has to his account the acquisition
of an equivalent of his prestation, but
such equivalent, although pecuniarily
appreciable, is not yet determined at the
moment of the celebration of the
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contract, since it depends upon the does not come into existence. (Gamboa v.
happening of an uncertain event, thus Gonzales, G.R. No. L-5810, November 23, 1910)
charging the parties with the risk of loss
or gain. Requisites of Consent:

i) According to the names or norms 1. There must be two or more parties.

regulating them
 One person may represent two or more
i) Nominate – those which have their own
parties, unless there are contradictory or
individuality and are regulated by special
prejudicial interests involved (Art. 1490,
provisions of law.
NCC; Garchitorena v. Sotelo, G.R. No. L-
47868, November 13, 1942)
ii) Innominate – those which lack
individuality and are not regulated by
2. The parties must be capable or capacitated
special provisions of law. These are
(hence, if one party is insane, the contract is
governed by the stipulation of the
merely voidable).
parties, the principles of Obligations of
3. There must be no vitiation of consent
Contracts, Rules governing the most
(Example: There must be no fraud or
analogous nominate contracts, and the
intimidation, otherwise the contract is
Customs of the place (see Art. 1307 of
voidable).
the NCC)
4. There must be no conflict between what was
expressly declared and what was really
Kinds of innominate contracts:
intended. Otherwise, the remedy may be
reformation, as when the parties really
1. Do ut des - I give that you give
intended to be bound, or else the contract is
2. Do ut facias - I give that you do
VOID, as when the contract is fictitious or
3. Facio ut des - I do that you give
absolutely simulated.
4. Facio ut facias - I do that you do

3. REQUISITES 5. The intent must be declared properly (that is,

whatever legal formalities are required must
There is no contract unless the following be complied with).
requisites concur:
Consent may either be expressed or implied
1. Consent of the contracting parties; (Clarin v. Rulona, G.R. No. L-30786, February 20,
2. Object certain which is the subject matter of 1984)
the contract; and Note: Acceptance of the offer may either be
3. Cause of the obligation which is established. express or implied. (Art. 1320, NCC)
(Art. 1318, NCC)
Meeting of the Minds
A. Consent (Art. 1319, NCC)
1. An offer that must be CERTAIN;
It is the meeting of the minds between the 2. An acceptance that must be UNQUALIFIED
parties on the subject matter and the cause of and ABSOLUTE.
the contract, even if neither one has been
delivered.
 If the acceptance is qualified, e.g. by a
Consent is manifested by the meeting of the
condition, this merely constitutes a
offer and acceptance upon the thing and the
COUNTER-OFFER.
cause which are to constitute the contract (Art.
1319 [1], NCC) Thus, an offer that is not accepted
does not give rise to consent, and the contract

256 Center for Legal Education and Research

 Purple Notes
Offer
An offer is a proposal to enter into a contract. It
must be one which is intended of itself to create
legal relations on acceptance, and must be
capable of creating a definite obligation and not
a mere expression of desire or hope. A mere
statement of willingness to enter into
negotiations or a mere inquiry as to whether a
person could make specified articles is not an
offer (Jurado, Comments and Jurisprudence on
Obligations and Contracts, 2010, p. 400).
Distinguished from invitations to make an
offer:
If a proposal is nothing more than an invitation
to the person to whom it is made to make an
offer to the proposer, it is not such an offer that
gives birth to a contract upon acceptance. Thus:
1. Unless it appears otherwise, business
advertisements of things for sale are not
definite offers, but mere invitations to make
an offer. (Art. 1325, NCC)
2. Advertisements for bidders are simply
invitations to make proposals, and the
advertiser is not bound to accept the highest
or lowest bidder, unless the contrary
appears. (Art. 1326, NCC) Accordingly, the
terms and conditions of the bidding
disseminated by the proponent constitute
the ―advertisement‖ to bid on the project.
The bid proposals or quotations submitted
by the prospective suppliers are the offers.
And, the reply of the proponent, the
acceptance or rejection of the offers. (Jardine
Davies, Inc. v. CA, G.R. No. 128066, June 19,
2000)
Requisites of an effective offer:
1. The terms of the offer must be reasonably
certain or definite (Art. 1319, NCC) and there
is an offer in the context of Article 1319 of
the Civil Code only if the contract can come
into existence by the mere acceptance of
the offer without any further act on the part
of the offeror (Paredes v. CA, G.R. No. 112115,
March 9, 2001);
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Civil Law
2. The offeror must have a serious intention to
become bound by his offer; and
3. The offer must be communicated by the
offeror to the offeree, resulting in the
offeree‘s knowledge of the offer.
Termination of offer:
1. Thru the action of the offeree by rejecting
the offer; or
2. Thru the action of the offeror by rejecting
the offer; or
3. Thru operation of law by supervening
illegality of the proposed contract, by lapse
of time, by destruction of the subject matter
of the offer, or by death, civil interdiction,
insanity or insolvency of the offeror or
offeree (Paras, Civil Code of the Philippines,
Annotated Vol. IV, 2008, p. 613-614).
 An offer, the acceptance of an offer and
such other elements required under
existing laws for the formation of
contracts may be expressed in,
demonstrated and proved by means of
electronic data messages or electronic
documents.
 No contract shall be denied validity or
enforceability on the sole ground that it
is in the form of an electronic data
message or electronic document, or that
any or all of the elements required
under existing laws for the formation of
contracts is expressed, demonstrated
and proved by means of electronic data
messages or electronic documents (Sec.
16[1], Electronic Commerce Act).
Revocation of offer: The offer may be
revoked at any time prior to the perfection of
the contract. (Laudico v. Arias, G.R. No. 16530,
March 31, 1922) However, if the offer is
encapsulated in an option contract (as when the
option is supported by a consideration distinct
from the price), the offer may not be withdrawn
by the offeror within the period agreed upon
without incurring liability for damages.
Bar Operations C ommissions 257
 Purple Notes
Civil Law
Definition of option contract: It is a
preparatory contract in which one party grants
to the other, for a fixed period and under
specified conditions, the power 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.
(Carceller v. Arias, G.R. No. 124791, February 10,
1999)
Effects of Option Contract:
1. If supported by a consideration distinct and
separate from the price, in which case, there
is a perfected contract of option, and it
would be a breach of that contract to
withdraw the offer during the agreed period.
(Arts. 1324 and 1479, NCC).
2. If the period is not itself founded upon or
supported by a consideration, the offeror is
still free and has the right to withdraw the
offer before its acceptance, or, if an
acceptance has been made, before the
offeror‘s coming to know of such fact, by
communicating that withdrawal to the
offeree. (Art. 1324, NCC; Atkins, Kroll & Co. v.
Chua, G.R. No. L-9871, January 31, 1958, Rural
Bank of Parañaque, Inc. v. Remolado, G.R. No.
62051, March 18, 1985; Sanchez v. Rigos, G.R.
No. L-25494, June 14, 1972) Nonetheless,
pending notice of its withdrawal, the
accepted promise partakes of the nature of
an offer which, if accepted, results in a
perfected contract. (Sanchez v. Rigos, supra)
Consideration in option contracts:
 The consideration need not be monetary
but could consist of other things or
undertakings. However, if the
consideration is not monetary, these must
be things or undertakings of value, in view
of the onerous nature of the option
contract. Furthermore, when a stipulations he desires, and he simply asks the
consideration for an option contract is not
monetary, said consideration must be
258 Center for Legal Education and Research
clearly specified as such in the option
contract or clause (Bible Baptist Church v.
CA, G.R. No. 126454, November 26, 2004;
Eulogio v. Apes, G.R. No. 113638, April 15,
2005)
OPTION MONEY EARNEST MONEY
money given as a distinct part of the purchase
consideration in an option price
contract
applies to a sale not yet given only where there
perfected is already a sale
the would-be buyer gives When earnest money is
the option money, he is given, the buyer is
not required to buy bound to pay the
balance
(Adelfa Properties, Inc. v. CA, G.R. No. 111238,
January 25, 1995)
Rejection and counter-offer: By rejecting the
offer, the offeree thereby terminates the offer
and his subsequent attempt to accept the
previous offer will not result in its reinstatement.
A ―counter –offer‖ is the rejection of the original
offer and the simultaneous making of a new
offer ABS-CBN Broadcasting Corp v. Court of Appeals,
G.R. No. 128690, January 21, 1999).
Lapse of time: The offeror may fix the time of
acceptance which must be complied with. (Art.
1321, NCC) Thus, an offer terminates
automatically when the period of time specified
in the offer has lapsed.
Death, insanity, civil interdiction or
insolvency: The offer becomes ineffective upon
the death, civil interdiction, insanity, or
insolvency of either the offeror or the offeree
before acceptance is conveyed. (Art. 1323, NCC)
The contract is not yet perfected at any time
before acceptance is conveyed; hence, the
disappearance of either party or his loss of
capacity, before perfection prevents the
contractual tie from being formed. (Villanueva v.
CA, G.R. No. 99357, January 27, 1992)
Contract of Adhesion - one party has already
a prepared form of a contract, containing the
other party to agree to them if he wants to
 Purple Notes
enter into the contract (Paras, Civil Code of the
Philippines, Annotated Vol. IV, 2008, p. 641).
Acceptance
Acceptance must be absolute: To be
effective an acceptance must be absolute. (Art.
1319 [1], NCC) Only an absolute or unqualified
acceptance of a definite offer manifests the
consent necessary to perfect a contract. (Weldon
Construction Corp. v. CA, G.R. No. L-35721, October
12, 1987)
Effect of qualified acceptance: A qualified
acceptance, or one that involves a new
proposal, constitutes a counter-offer (Art. 1319
[1], NCC) and is a rejection of the original offer.
―Mirror-Image Rule‖
The acceptance must be identical in all respects
with that of the offer so as to produce consent
or meeting of the minds. (Limketkai Sons Milling,
Inc. v. CA, G.R. No. 118509, March 29, 1996; ABS-
CBN Broadcasting Corp. v. CA, G.R. No. 128690,
January 21, 1999) Consequently, when something
is desired which is not exactly what is proposed
in the offer, such acceptance is not
sufficient to generate consent because any
modification or variation from the terms of the
offer annuls the offer (ABS-CBN Broadcasting Corp.
v. CA, supra.).
Manner and form of acceptance:
1. The offeror has a right to prescribe in his
offer the time, place and manner of
acceptance, all of which must be complied
with (Art. 1321, NCC).
2. The acceptance may be expressed or
implied (Art. 1320, NCC).
3. If an offer is made through an agent, it is
deemed accepted from the moment
acceptance is communicated to said agent
(Art. 1322, NCC).
4. Presumed (by law) as when there is failure
to repudiate hereditary rights within the
period fixed by law (Art. 1057, NCC); or when
there is SILENCE in certain specific cases as
would tend to mislead the other party, and
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Civil Law
thus place the silent person in estoppel (Arts.
1670, 1870, 1871, 1872 and 1873, NCC).
Acceptance thru Letter or Telegram or
Expedition Theory:
Acceptance made by letter or telegram does not
bind the offeror except from the time it came to
his knowledge. The contract in such a case is
presumed to have been entered into in the place
where the offer was made (Jurado, Comments and
Jurisprudence on Obligations and Contracts, 2010, p.
400).
Cognition theory – A contract is perfected
only from the time an acceptance of an offer is
made known to the offeror.
 The Civil Code adopts the Cognition
theory. The second paragraph of Article
1319 of the Civil Code provides that
acceptance made by letter or telegram
does not bind the offeror except from the
time it came to his knowledge.
 As Differentiated to Manifestation Theory
in which provides that the Offeree merely
manifests his acceptance.
Withdrawal of Acceptance:
For a contract to arise, the acceptance must be
made known to the offeror. Accordingly, the
acceptance can be withdrawn or revoked before
it is made known to the offeror (Jardine Davies,
Inc., v. CA, G.R. No. 128066, June 19, 2000).
Capacity of Contracting Parties
Importance of Legal Capacity:
There is no effective consent in law without the
capacity to give such consent. In other words,
legal consent presupposes capacity (Delos Reyes
v. CA, G.R. No. 129103, September 9, 1999).
Persons Incapable of Giving Consent:
1. Unemancipated minors.
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 Purple Notes
Civil Law
 Under the regime of the Family Code,
there are no longer unemancipated
minors.
2. Insane or demented persons;
 Contracts entered into during a lucid
interval are valid. Contracts agreed into in
a state of drunkenness or during a
hypnotic spell are voidable. (Art. 1328,
NCC)
 Only insanity, which prevents a person
from knowing the character of the act
that he is performing as well as its legal
effects, will be a ground for annulment. (I
Caguioa, 1967 ed., p. 79-80) Thus,
monomania, which is insanity on a certain
point does not necessarily annul a
contract except when the contract refers
to that point where the person concerned
is insane.
3. Deaf-mutes who do not know how to write
 If they know how to write (and
consequently know how to read), it is
submitted that the contract is valid, for
then they are capable of understanding,
and therefore capacitated to give consent.
4. Persons suffering from civil interdiction (Art.
34, RPC);
5. Incompetents under guardianship (Rule 92-
97, ROC); and
6. Other persons specially disqualified. (Art.
1329, NCC)
Old age or other physical infirmities: A
person is not incapacitated to contract merely
because of advanced years or by reason of
physical infirmities, only when such age or
infirmities impair his mental faculties to
such extent as to prevent him from
properly, intelligently, and fairly
protecting his property rights, is he
considered incapacitated. (Loyola v. Court of
Appeals, G.R. No. 115734, May 17, 1982)
260 Center for Legal Education and Research
Contracts by Illiterates:
Burden of Proof
General Rule: Whoever alleges fraud or
mistake in any transaction must substantiate his
allegation.
Exception: Where a party to a contract is
illiterate, or cannot read nor understand the
language in which the contract is written, the
burden is on the party interested in
enforcing the contract to prove that the
terms thereof were fully explained to the former
in a language understood by him. (Art. 1332,
NCC; Cayabyab v. IAC, G.R. No. 75120, April 28,
1994)
Status of contract where parties are
incapacitated: If only one of the contracting
parties is incapacitated to give his consent, the
contract is voidable. (Art. 1390 [1], NCC) If both
parties are incapacitated to give their consent,
the contract is unenforceable. (Art. 1403 [3], NCC)
Vitiation of Consent: A contract where
consent is procured thru mistake, violence,
intimidation, undue influence or fraud is
voidable. (Art. 1330, NCC)
Mistake and fraud affect the INTELLECT (which
is the faculty in the mind of man, the proper
object of which is the TRUTH. They thus affect
COGNITION). Cognition must be intelligent.
Violence, intimidation, and undue influence
affect the WILL (which is the faculty in the mind
of man, the proper object of which is the GOOD.
They thus affect VOLITION). Volition must be
free.
Mistake and fraud result in defects of the
intellect; the others result in defects of the will
(Paras, Civil Code of the Philippines, Annotated Vol.
IV, 2008, p. 627).
Mistake (Art. 1331, NCC)
Wrong conception and lack of knowledge with
respect to a thing. (Jurado, Comments and
 Purple Notes
Jurisprudence on Obligations and Contracts, 2010 ed.,
p. 429)
Mistake of Law: As a general rule, mistake of
law does not make a contract voidable because
ignorance of the law does not excuse any one
from its compliance. (Art. 3, NCC; Luna, et al. v.
Linatoc, G.R. No. L-48403, August 28, 1942) Thus,
ordinarily, it is only a mistake of fact which will
vitiate consent rendering the contract voidable.
There is, however, an exception to this rule.
According to Article 1334 of the Civil Code
―mutual error as to the legal effect of an
agreement when the real purpose of the parties
is frustrated, may vitiate consent.‖
Mistake of Fact: One or both of the
contracting parties believe that a fact exists
when in reality it does not. (Supra)
Requisites for Mistake of fact which to
Vitiate Consent:
1. The error must be substantial regarding:
1. The object of the contract (error in re):
 When the thing constitutes the
object of the contract is confused
with another thing (Mistake as to
Identity of the thing – error in
corpore)
 Mistake as to the substance of the
thing (error in substantia)
 Mistake regarding the quantity of
the thing (error in quantitate); if
mistake refers only to accidental or
secondary qualities, the contract is
not rendered voidable (error in
qualitate)
2. The conditions which principally moved
or induced one of the parties
3. Identity or qualifications (error in
personae), but only if such was the
principal cause of the contract.
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Civil Law
a. The error must be excusable (not
caused by negligence).
2. The error must be a mistake of fact, and not
of law. (Jurado, Comments and Jurisprudence on
Obligations and Contracts, 2010 ed., pp. 430-432)
3. A simple mistake of account, however, shall
only give rise to its correction. (Art. 1331,
NCC)
4. An error so patent and obvious that nobody
could have made it, or one which could have
been avoided by ordinary prudence, cannot
be invoked by the one who made it in order
to annul his contract. (Alcasid v. CA, G.R. No.
104751, October 7, 1994)
Violence and Intimidation (Art. 1335, NCC)
There is Violence when in order to wrest
consent, serious or irresistible force is
employed. There is Intimidation when one of the
contracting parties is compelled by a
reasonable and well grounded fear of an
imminent and grave evil upon his person or
property, or upon the person or property of his
spouse, descendants or ascendants, to give his
consent
Requisites of Violence:
1. Force employed to wrest consent must be
serious and irresistible;
2. It must be the determining cause for the
party upon whom it is employed in entering
into the contract. (Jurado, Comments and
Jurisprudence on Obligations and Contracts, 2010
ed., p. 436)
Requisites of Intimidation:
1. Reasonable and well-grounded fear of an
imminent and grave evil upon his person,
property, or upon the person or property of
his spouse, descendants, or ascendants
(Supra);
2. It must have been the reason why the
contract was entered into
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 Purple Notes
Civil Law
 The threat must be of an unjust act, an
actionable wrong. (Therefore, a threat to
enforce one‘s claim through competent
authority, if the claim is just or legal, does
not vitiate consent). (Art. 1335, last par.,
NCC)
 A threat to prosecute is not considered as
intimidation. (P. Agustinos v. Del Rey, G.R.
No. 32813, November 5, 1930; Sotto v.
Mariano, [C.A.] 36 O.G. 1056)
 But, of course, an agreement not to
prosecute on account of a crime is against
public policy. (Arroyo v. Berwin, G.R. No.
10551, March 3, 1917 and Hibberd v. Rhode,
G.R. No. 8418, December 9, 1915)
Violence or Intimidation Caused by Third
Person
Even if a third person exercised the violence or
intimidation, the contract may be annulled. This
is because the consent is still vitiated. (De Asis v.
Buenviaje, [C.A.] 45 O.G. 317)
Undue Influence (Art. 1337, NCC)
When a person takes improper advantage of his
power over the will of another, depriving the
latter of a reasonable freedom of choice
Requisites for Undue Influence
1. Improper advantage;
2. Power over the will of another (reflected for
example in a superior bargaining power)
(Martinez v. Hongkong and Shanghai Bank, G.R.
No. L-5496, February 19, 1910);
3. Deprivation of the latter‘s will of a
reasonable freedom of choice (The influence
exerted must be of a kind that overpowers
the mind as to destroy the party‘s free
agency). (Coso v. Fernandez Deza, G.R. No. L-
16763, December 22, 1921)
Undue Influence Caused by Third Person
Undue influence exercised by a third party
vitiates consent, just like in the case of violence
and intimidatio.n (Memorandum to the Joint
Congressional Committee on Codification, Mar. 8,
1951)
262 Center for Legal Education and Research
Fraud
Use of insidious words or machinations
employed by one of the contracting parties in
order to induce the other to enter into a
contract, without them, he would not have
agreed to. (Jurado, Comments and Jurisprudence on
Obligations and Contracts, 2010 ed., p. 444)
Kinds of Fraud
1. Fraud in the PERFECTION of the
contract(Supra):
a. Dolo causante (or causal fraud): Here,
were it not for the fraud, the other party
would not have consented. (This is the fraud
referred to in Art. 1338, NCC) Effect: The
contract is VOIDABLE.
b. Dolo incidente (or incidental fraud):
Here, even without the fraud the parties
would have agreed just the same, hence the
fraud was only incidental in causing consent.
Very likely though, different terms would
have been agreed upon. Effect: The contract
is valid, but there can be an action for
damages (Woodhouse v. Halili, G.R. No. L-4811,
July 31, 1953).
2. Fraud in the PERFORMANCE of the
obligation. (Art. 1170, NCC)
Requisites for Fraud: (Art. 1338, NCC)
a. The fraud must have been serious;
b. The insidious words or machinations must
have induced the other party to enter into
the contract
c. The fraud should have been employed by
one of the contracting parties or by third
persons. (Jurado, Comments and Jurisprudence
on Obligations and Contracts, 2010 ed., p. 445)
 The parties must not be in pari delicto
(mutual guilt), otherwise, neither party may
ask for annulment. The contract would,
therefore, be considered valid (Valdez v. Sibal,
G.R. No. L-26278, August 4, 1927)
 Purple Notes
Fraud by Third Persons (Art. 1342, NCC)
Misrepresentation by a third person does not
vitiate consent, unless such
misrepresentation has created substantial
mistake and the same is mutual.
 Misrepresentation made in good faith is not
fraudulent but may constitute error (Art. 1343,
NCC)
Simulation of a Contract
It is the act of intentionally deceiving others by
producing the appearance of a contract that
really does not exist (absolute simulation) or
which is different from the true agreement
(relative simulation). (Art. 1345-1346, NCC)
Kinds of Simulated Contracts
1. Absolutely simulated (simulados) fictitious
contracts:
a. Here, the parties do not intend to be
bound.
b. Effect: The contract is VOID.
2. Relatively simulated (disimulados) disguised
contracts:
a. Here, the parties conceal their true
agreement.
b. Effect: The parties are bound to the real
or true agreement except —
1. If the contract should prejudice a third
person; or
2. If the purpose is contrary to law,
morals, good customs, public order, or
public policy.
B. Object (Art. 1347, NCC)
Object of contract: Things which are not
outside the commerce of men or rights or
services which are not intransmissible can be the
object of contracts. (Art. 1347 [2], NCC)
General Rule: All things or services may be the
object of contracts.
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Civil Law
Exceptions:
1. Things outside the commerce of men;
2. Intransmissible rights;
3. Future inheritance, except in cases expressly
authorized by law;
4. Services which are contrary to law, morals,
good customs, public order or public policy;
5. Impossible things or services; and
6. Objects which are not possible of
determination as to their kind.
Requisites for object of contracts:
1. The thing must be within the commerce of
men; or the right must not be
intransmissible (Art. 1347 [1], NCC); It should
be susceptible of appropriation and
transmissible from one person to another;
2. The thing or services must not be impossible
(Art. 1348, NCC); in other words, it should
exist at the moment of the celebration of
the contract, or, at least, it can exist
subsequently or in the future.
3. It must be licit, in other words, it should not
be contrary to law, morals, good customs,
public order or public policy or it must be
capable of coming into existence; and
4. It must be determinate, or at least, possible
of determination, as to its kind. (Art. 1349,
NCC; 3 Castan 7 Ed., pp. 342-343; 8 Manresa,
th
5 Ed., Bk. 2, pp. 431-432)
th
C. Cause (Art. 1350, NCC)
Concept
Cause is the essential reason which moves the
contracting parties to enter into it. The cause is
the immediate, direct and proximate reason
which justifies the creation of an obligation
through the will of the contracting parties. (Uy v.
CA, G.R. No. 120465, Sept. 9, 1999)
Requisites for Cause:
1. Cause must be lawful or not contrary to law,
morals, good customs, public order or public
policy. (Art. 1352, NCC) A contract whose
Bar Operations C ommissions 263
 Purple Notes
Civil Law
cause is contrary to law, morals, good
Objective or Juridical The Psychological or
customs, public order or public is void. (Art. reason of a contract purely personal reasons
1409 [1], NCC)
2. Cause must be true, otherwise the contract
is without cause and produces no effect
Cause is always the Motives differ for
whatever. The statement of a false cause in
same contracting parties
contracts shall render them void, if it should
not be proved that they were founded upon
Illegality or Legality of Legality or illegality of the
another cause which is true and lawful. (Art. the cause will affect the motives will not affect the
1353, NCC) existence or validity of existence of the contract
the contract
Presumption in favor of existence of
cause: Although the cause is not stated in the
contract, it is presumed that it exists and is NOTE:
lawful, unless the debtor proves the contrary.
(Art. 1354, NCC) There are times, however, when the boundary
line between motive and cause disappears
Effect of inadequacy of cause: Unless altogether. The motive may be regarded as
specified by law, lesion or inadequacy of cause causa when the contract is conditioned upon the
shall not invalidate a contract, unless there has attainment of the motive of either contracting
been fraud, mistake or undue influence party. In other words, motive becomes causa
(Art.1355, NCC). when it predetermines the purpose of the
contract (Jurado, Comments and Jurisprudence on
CAUSES IN: Obligations and Contracts, 2010 ed., p. 466).

Onerous Remuneratory Pure B. FORMS OF CONTRACTS

Contracts Contracts Beneficence/
Gratuitous Statutory Basis: (Art. 1356, NCC)
The The service or Mere liberality
undertaking benefit which is of the
Contracts shall be obligatory, in whatever form
or the remunerated benefactor
promise of they may have been entered into, provided all
the thing or the essential requisites for their validity are
service by the present. However, when the law requires that a
other party contract be in some form in order that it may be
valid or enforceable or that a contract be proved
in a certain way, that requirement is absolute
Accessory Contracts and indispensable.

Rules in the form of contract:

cause of the accessory contract is identical with that
of the principal contract
Cause
Direct or most proximate
reason of a contract
 Contracts shall be obligatory, in whatever
form they may have been entered into,
provided all essential requisites for their
validity are present.
Motive
General Rule: Form is not required in
Indirect or remote reason consensual contracts.
Exceptions: When the law requires a contract
be in certain form:

264 Center for Legal Education and Research

 Purple Notes
i. TO BE VALID (This is true in formal or
solemn contracts)
ii. TO BE ENFORCEABLE (This is true for the
agreements enumerated under the Statute of
Frauds, but of course this requirement may
be waived by acceptance of benefits (partial)
or by failure to object to the presentation of
oral (parol) evidence. (Art. 1403, NCC)
iii. FOR CONVENIENCE (This is true for the
contracts enumerated for example under Art.
1358, NCC)
 The parties may compel each other to
reduce the verbal agreement into writing
(Art. 1357, NCC).
Electronic Commerce Act
Electronic documents shall have the legal effect,
validity or enforceability as any other document
or legal writing (Sec. 7, R.A. 8792).
If the law requires that a document be in
writing and the requirement therein is in
the form of an obligation or whether the law
simply provides consequences for the document
not being presented or retained in its original
from: Such requirement is met by an electronic
document maintains its integrity and can be
authenticated so as to be usable for subsequent
reference.
1. The electronic document has remained
complete and unaltered, apart from the
addition of any endorsement and any
authorized change, or any change which
arises in the normal course of
communication, storage and display; and
2. The electronic document is reliable in the light
of the purpose for which it was generated
and in the light of all relevant circumstances
(Sec. 7[a], RA 8792).
If the law requires it to be in the original
form, the requirement is met by an electronic
document if:
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Civil Law
1. There exists a reliable assurance as to the
integrity of the document from the time when it
was first generated in its final form; and
2. That document is capable of being displayed
to the person to whom it is to be presented and
no provision of the law shall apply to vary any
and all requirements of existing laws on
formalities required in the execution of
documents for their validity Sec. 7[b], RA 8792)..
Examples of formal contracts
If the form is not complied with, Art. 1357 of the
Civil Code cannot be availed of.
―Art. 1357. If the law requires a document or
other special form, as in the acts and contracts
enumerated in the following article, the
contracting parties may compel each other to
observe that form, once the contract has been
perfected. This right may be exercised
simultaneously with the action upon the
contract.‖
1. Donations of real property (these require a
public instrument) (Art. 749, NCC).
2. Donations of personal property (these require
a written contract or document if the
donation exceeds P500) (Art. 748, NCC).
3. Stipulation to pay interest on loans, interest
for the USE of the money (said stipulation
must be in writing)(Art. 1956).
4. Transfer of large cattle (this requires the
transfer of certificate of registration) (Sec.
523, Rev. Adm. Code).
5. Sale of land through an agent (the authority
of the agent must be in writing; otherwise,
the sale is null and void) (Art. 1874, NCC).
6. Contracts of antichresis (here the principal
loan, and the interest of any, must be
specified in writing; otherwise, the contract
of antichresis is void) (Art. 2134, NCC).
Right to compel each other to execute
required form
If the law requires a document or other special
form, as in the acts and contracts enumerated in
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Article 1358 of the Civil Code, the contracting
parties may compel each other to observe that
form. (Art.1357, NCC) But before the remedy
granted under Article 1357 can be availed, it is
necessary that the contract must have already
been perfected (Art.1357, NCC) and that the
same must have already been valid and
enforceable as to formalities. (Art.1356, NCC)
Contracts which must appear in a public
document to be valid are as follows:
1. Donations of immovable property. (Art. 749,
NCC)
2. Partnerships where immovable property or
real rights are contributed to the common
fund. (Art. 1771 and 1773, NCC)
Contracts which require form for
convenience
Necessity of Public Document in Article
1358, NCC
The provision of Article 1358 of the Civil Code on
the necessity of a public document is only for
convenience, not for validity or enforceability.
(Dalion v. CA, G.R. No. 78903, February 28, 1990)
In other words, even if the contracts are
required to appear in a public document
pursuant to the provisions of Article 1358, they
nevertheless remain valid and enforceable as
between the parties thereto:
1. Acts and contracts which have for their
object the creation, transmission,
modification or extinguishment or real rights
over immovable property; sales of real
property or of an interest therein are
governed by Articles 1403, No. 2, and 1405.
2. The cession, repudiation or renunciation of
hereditary rights or of those of the conjugal
partnership of gains.
3. The power to administer property, or any
other power which has for its object an act
appearing or which should appear in a
public document, or should prejudice a third
person.
266 Center for Legal Education and Research
4. The cession of actions or rights proceeding
from an act appearing in a public document.
(Art. 1358, NCC)
Contracts, which require form for
enforceability
Statute of frauds: (Art. 1403, par. 2 NCC)
This law provides that the following agreement
shall be unenforceable by action, unless the
same, or some note or memorandum thereof,
be in writing, and subscribed by the party
charged, or by his agent;
1. Agreement that by its terms is not to
be performed within a year from the
making thereof;
The test to determine whether an oral contract
is enforceable under the one-year rule of the
Statute of Frauds is whether, under its own
term, performance is possible within a year from
the making thereof. If so, the contract is outside
of the Statute of Frauds and need not be in
writing to be enforceable.
The broad view is that the Statute of Frauds
applies only to agreements not to be performed
on either side within a year from the making
thereof. Agreements to be fully performed on
one side within a year are taken out of the
operation of the statute. (National Bank v.
Philippine Vegetable Oil Co., G.R. No. L-25400,
January 14, 1927)
2. Special promise to answer for the debt,
default or miscarriage of another;
Whether an oral promise to pay the debt of
another is enforceable under the Statute of
Frauds depends on whether such promise is an
original one or collateral promise. The Statute
applies only to a collateral promise, one
which is made by a third party to answer
for the debt or obligation of a primary
party to a contract if that party does not
perform. If the promise is an original or an
independent one, that is, if the promissory
 Purple Notes
becomes primarily liable for the payment of the
debt, the promise is not within the Statute
(Jurado, Comments and Jurisprudence on Obligations
and Contracts, 2010 ed., p. 546).
3. Agreement made in consideration of
marriage, other than a mutual promise
to marry;
A marriage settlement is an agreement made in
consideration of marriage covered by the Statute
of Frauds. Hence, it must be in writing (Art. 77,
FC) in order to be enforceable. On the other
hand, while donation propter nuptias are
likewise made in consideration of the marriage,
the same is no longer covered by the Statute
because the requirement of form in donation
propter nuptias is for validity. (Art. 83, FC; in
relation to Arts. 748-749, NCC)
4. Agreement for the sale of goods,
chattels or things in action, at a price
not less than P500.00;
5. Agreement for the leasing for a longer
period than one year, or for the sale of
real property or of an interest therein;
Not all agreements ―affecting land‖ must be put
in writing to attain enforceability (Hernandez v.
CA, supra). Under the Statute, such formality is
only required of contracts involving leases for
longer than one year, or for the sale of real
property or of an interest therein. (Art. 1403
[2][e], NCC)
6. A representation as to the credit of a
third person.
 The note or memorandum, in fact, need not
be contained in a single document; nor,
when contained in two or more papers,
need each paper to be sufficient as to
contents and signature to satisfy the statute.
(Berg v. Magdalena Estate, Inc., G.R. No. L-3784,
October 17, 1952)
Two or more writings properly connected
may be considered together; matters
missing or uncertain in one may be supplied
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or rendered certain by another, and their
sufficiency will depend on whether, taken
together, they meet the requirement of the
statute as to contents and the requirements
of the statute as to signature. (Ibid.)
 That the exchange of written
correspondences between the parties may
constitute sufficient writing to evidence the
agreement for purposes of complying with
the Statute of Frauds. (City of Cebu v. Heirs of
Rubi, G.R. No. 128579, April 29, 1999)
Fundamental principles governing Statute
of Frauds:
1. The statute simply provides the method by
which the contracts enumerated therein may
be proved, but does not declare them invalid
because they are not reduced to writing.
(Swedish Match, Ab v. CA, G.R. No. 128120,
October 20, 2004)
2. The statute applies only to executory
contracts and not to contracts which are
either partially or totally performed. (Averia
v. Averia, G.R. No. 141877, August 13, 2004)
 If the rule were otherwise, the Statute of
Frauds could be used to perpetuate fraud,
which is contrary to its avowed purpose of
preventing fraud (Carbonell v. Poncio, G.R. No.
L-11231, May 12, 1958).
3. Stated otherwise, the defense is applicable
only if the action is either for specific
performance of the oral contract or for
recovery of damages arising from a violation
thereof. (Asia Productions Co., Inc. v. Paño, G.R.
No. 510518, January 27, 1992; citing Facturan v.
Sabanal, G.R. No. L-2090, September 27, 1948
and Eusebio v. Sociedad Agricola de Balarin, G.R.
No. 21519, March 31, 1966)
4. The defense of the Statute of Frauds is
personal to the contracting parties and may
not be raised by strangers to the contract.
(Art. 1408, NCC; Ayson v. CA, G.R. No. 223254,
December 1, 2016)
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Civil Law
5. The defense of the Statute of Frauds may be
waived either by: (a) failing to object to the
presentation of oral evidence to prove the
contract, or (b) accepting benefits
therefrom. (Art. 1405, NCC)
6. The Statute of Frauds refers to specific kinds
of transactions and cannot apply to any
other transaction that is not enumerated in
Article 1403, paragraph 2, of the Civil Code.
(Cruz v. J.M. Tuason & Co., Inc., G.R. No. L-
23749, April 29, 1977; Western Mindanao
Lumber Co., Inc. v. Medalle, G.R. No. L-23213,
October 28, 1977; Rosencor Development Corp.
v. Inquing, G. R. No. 140479, March 8, 2011)
 An oral partition of real property is
enforceable since partition is not a
conveyance of property but simply a
segregation and designation of the part of
the property, which belongs to the co-
owners. (Vda. De Espina v. Abaya, G.R. No.
45142, April 26, 1991)
 A right of first refusal need not be written to
be enforceable and may be proven by oral
evidence since it is not by any means a
perfected contract of sale of real property.
(Rosencor Development Corp. v. Inquing, supra)
An oral agreement creating an easement of
right-of-way is also enforceable since it is
not a sale of real property or of an interest
therein. (Western Mindanao Lumber Co., Inc. v.
Medalle, G.R. No. L-23213, October 28, 1977)
Statute of Frauds is not applicable when writing
does not express the true intent of the parties,
and one of such parties offers to prove by parol
evidence the true agreement (Cuyugan v. Santos,
G.R. No. L-10265, March 3, 1916).
Contracts that MUST be registered for
VALIDITY:
 Chattel mortgages (Art. 2140, NCC)
 Sale or transfer of large cattle (Cattle
Registration Act)
268 Center for Legal Education and Research
C. REFORMATION OF INSTRUMENT
A. Definition – It is a remedy to conform
to the real intention of the parties due to
mistake, fraud, inequitable conduct, accident.
(Art. 1359, NCC)
It is remedy in equity by means of which a
written instrument is made or construed so as to
express or conform to the real intention of the
parties. (Huibonhoa v. CA, G.R. No. 95897,
December 14, 1999)
B. Requisites in Reformation of
Instruments (De Leon & De Leon Jr.,
Comments and Cases: Obligations and Contracts,
2010 ed., p 648)
1. Meeting of the minds to the contract
2. The true intention is not expressed in
the instrument
3. It was not expressed by reason of
(MAFI)
1. Mistake
2. Accident
3. Fraud
4. Inequitable conduct
4. The facts upon which relief by way of
reformation of the instrument is sought
are put in issue by the pleadings.
5. There must be a clear and convincing
proof of the mistake, accident, fraud, or
inequitable conduct (MAFI)
C. Cases where Reformation is
Allowed:
1. When a mutual mistake of the parties
causes the failure of the instrument to
disclose the agreement (Art. 1361, NCC)
2. When one party was mistaken and the
other acted fraudulently or inequitably in
such a way that the instrument does not
show their true intention, the former
may ask for the reformation of the
instrument. (Art. 1362, NCC)
3. When one party was mistaken and the
other knew or believed that the
instrument did not state their real
 Purple Notes
agreement, but concealed that fact from
the former. (Art. 1363, NCC)
4. When through ignorance, lack of skill,
negligence, or bad faith on the part of
the person drafting the instrument, does
not express the true intention of the
parties. (Art. 1364, NCC)
5. If the parties agree upon the mortgage
or pledge of real or personal property,
but the instrument states that the
property is sold absolutely or with right
of purchase. (Art. 1365, NCC)
D. Reformation and Annulment of
Contracts
Reformation of Annulment of Contract
Instrument
There is a Perfectly There is a defective contract by
valid contract. reason of mistake, fraud,
inequitable conduct, or accident.
(Jurado, Comments and Jurisprudence on Obligations
and Contracts, 2010 ed., p. 488)
E. Cases where reformation IS NOT
allowed (Arts. 1366 and 1367, NCC)
1. Simple, unconditional donations inter
vivos;
2. Wills;
3. When the agreement is void;
4. When an action to enforce the
instrument is filed (estoppel).
F. Prescriptive Period for Reformation
of Instruments
1. 10 years from the date of execution of
the instrument. (Pineda, Obligations and
Contracts, 2000 ed., p. 483)
2. It may be ordered at the instance of:
1. If the mistake is mutual – either
party or his successors in
interest; otherwise;
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2. Upon petition of the injured party;
or
3. His heirs or assigns. (Art. 1368, NCC)
3. In reformation of contracts, what is
reformed is not the contract itself, but
the instrument embodying the contract.
4. It follows that whether the contract is
disadvantageous or not is irrelevant to
reformation and therefore, cannot be an
element in the determination of the
period for prescription of the action to
reform. (Pineda, Obligations and Contracts,
2000 ed., p. 469)
D. INTERPRETATION OF CONTRACTS
A. Definition – Interpretation of a
contract is the determination of the meaning of
the words used by the parties in their contract
(De Leon and De Leon Jr., Comments and Cases:
Obligations and Contracts, 2010 ed., p. 661)
B. Application – If the terms of a contract are
clear and leave no doubt upon the intention
of the contracting parties, the literal
meaning of its stipulations shall control.
If the words appear contrary to the evident
intention of the parties, the latter shall
prevail over the former. (Art. 1370, NCC)
C. Applicable rules on determining the
intention of parties:
1. In order to judge the intention of the
contracting parties, their contemporaneous
and subsequent acts shall be principally
considered. (Art. 1371, NCC)
2. A contract is what the law defines it to be,
considering its essential elements, and not
what is called by the contracting parties. (De
Leon and De Leon, Comments and Cases:
Obligations and Contracts, 2010 ed., p. 678.,
citing Schmid and Oberly, Inc. v RJL Martinez
Fishing Corp., G.R. No. 75198, October 18, 1988
and Filinvest Credit Corp. v. Court of Appeals,
G.R. No. 82508, September 29, 1989)
3. However general the terms of a contract
may be, they shall not be understood to
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Civil Law
comprehend things that are distinct and
cases that are different from those which
the parties intend to agree .(Art. 1372, NCC)
4. If some stipulation of any contract should
admit of several meanings, it shall be
understood as bearing that import which is
most adequate to render it effectual. (Art.
1373, NCC)
5. The various stipulations of a contract shall
be interpreted together, attributing to the
doubtful ones that sense which may result
from all of them taken jointly. (Art. 1374,
NCC)
6. Words which may have different
significations shall be understood in that
which is most in keeping with the nature
and object of the contract. (Art. 1375, NCC)
7. The usage or custom of the place shall be
borne in mind in the interpretation of the
ambiguities of a contract, and shall fill the
omission of stipulations which are ordinarily
established. (Art. 1376, NCC)
8. The interpretation of obscure words or
stipulations in a contract shall not favor the
party who caused the obscurity. (Art. 1377,
NCC)
9. If the doubts refer to incidental
circumstances of a gratuitous contract (see
Art. 1350, NCC), such interpretation shall be
made which would result in the least
transmission of rights and interests. (De Leon
and De Leon Jr., Comments and Cases:
Obligations and Contracts, 2010 ed., p. 699)
10. If the contract in question is onerous (see
Art. 1350), such interpretation should be
made which would result in favor of the
greatest reciprocity of interests. (De Leon and
De Leon Jr., Comments and Cases: Obligations
and Contracts, 2010 ed., p 699 citing Rodriguez
v. Belgica, G.R. No. 10801, February 28, 1961)
11. If the doubt refers to the principal object of
the contract and such doubt cannot be
resolved, thereby leaving the intention of
the parties unknown, the contract shall be
null and void (Art 1378, NCC)
12. The Rules of Court on the interpretation of
documents contained in Rule 130, Sec. 10-
19 are applicable for interpretation of
contracts. (De Leon and De Leon Jr., Comments
and Cases: Obligations and Contracts, 2010 ed.,
p. 702)
270 Center for Legal Education and Research
REVISED RULES ON EVIDENCE, Rule 130 –
Rules of Admissibility
Interpretation of Documents
1. Interpretation of a writing according to its
legal meaning. — The language of a writing
is to be interpreted according to the legal
meaning it bears in the place of its
execution, unless the parties intended
otherwise (Sec 11, 2019 Amendments to the
ROC).
2. Instrument construed so as to give effect to
all provisions. — In the construction of an
instrument, where there are several
provisions or particulars, such a construction
is, if possible, to be adopted as will give
effect to all (Sec 12, 2019 Amendments to the
ROC).
3. Interpretation according to intention; general
and particular provisions. — In the
construction of an instrument, the intention
of the parties is to be pursued; and when a
general and a particular provision are
inconsistent, the latter is paramount to the
former. So a particular intent will control a
general one that is inconsistent with it (Sec
13, 2019 Amendments to the ROC).
4. Interpretation according to circumstances. —
For the proper construction of an
instrument, the circumstances under which it
was made, including the situation of the
subject thereof and of the parties to it, may
be shown, so that the judge may be placed
in the position of those who language he is
to interpret (Sec 14, 2019 Amendments to the
ROC).
5. Peculiar signification of terms. — The terms
of a writing are presumed to have been used
in their primary and general acceptation, but
evidence is admissible to show that they
have a local, technical, or otherwise peculiar
signification, and were so used and
understood in the particular instance, in
which case the agreement must be
 Purple Notes
construed accordingly (Sec 15, 2019
Amendments to the ROC).
6. Written words control printed. — When an
instrument consists partly of written words
and partly of a printed form, and the two are
inconsistent, the former controls the latter
(Sec 16, 2019 Amendments to the ROC).
7. Experts and interpreters to be used in
explaining certain writings. — When the
characters in which an instrument is written
are difficult to be deciphered, or the
language is not understood by the court, the
evidence of persons skilled in deciphering
the characters, or who understand the
language, is admissible to declare the
characters or the meaning of the language
(Sec 17, 2019 Amendments to the ROC).
8. Of Two constructions, which preferred. —
When the terms of an agreement have been
intended in a different sense by the different
parties to it, that sense is to prevail against
either party in which he supposed the other
understood it, and when different
constructions of a provision are otherwise
equally proper, that is to be taken which is
the most favorable to the party in whose
favor the provision was made(Sec 18, 2019
Amendments to the ROC).
9. Construction in favor of natural right. —
When an instrument is equally susceptible of
two interpretations, one in favor of natural
right and the other against it, the former is
to be adopted(Sec 19, 2019 Amendments to the
ROC).
10. Interpretation according to usage. — An
instrument may be construed according to
usage, in order to determine its true
character(Sec 20, 2019 Amendments to the
ROC).
E. DEFECTIVE CONTRACTS
As to the existence of defects, contracts are
classified as either perfectly valid where the
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Civil Law
contract does not suffer from any defect, or
defective where the contract suffers from a
certain kind of defect. (Dissenting Opinion of
Justice Vitug in Equatorial Realty Development, Inc. v
Mayfair Theater, Inc. G.R. No. 133879, November 21,
2001)
The Civil Code classifies defective contracts into
four kinds. They are in order of their
defectiveness or efficaciousness (De Leon and De
Leon Jr., Comments and Cases on Obligations and
Contracts, 2014 ed., p.777):
1. Rescissible contracts – They are the least
infirm or defective. They are valid because
all essential requisites of a contract exist but
by reason of injury or damage to one of the
parties or third persons, such as creditors,
the contract may be rescinded. Thus the
defect is external. Until such contracts are
rescinded in an appropriate proceeding, they
remain valid and binding upon the parties
thereto;
2. Voidable contracts – They are also valid
until annulled unless there has been a
ratification. In a voidable contract, the defect
is caused by vice of consent;
3. Unenforceable contracts – They cannot
be sued upon or enforced unless they are
ratified. As regards the degree of
defectiveness, voidable contracts are further
away from absolute nullity than
unenforceable contracts. In other words, an
unenforceable contract occupies an
intermediate ground between a voidable and
a void contract;
4. Void or inexistent contracts – They are
absolutely null and void. They have no legal
effect at all and cannot be ratified.
ESSENTIAL FEATURES OF DEFECTIVE
CONTRACTS (Jurado, Comments and Jurisprudence on
Obligations and Contracts, 2010, p. 501-502).
1. As to defect:
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Civil Law
a. In rescissible contracts, there is damage or
injury either to one of the contracting parties
or to third persons;
b. In voidable contracts, there is vitiation of
consent or legal incapacity of one of the
contracting parties;
c. In unenforceable contracts, the contract is
entered into in excess or without any
authority, or does not comply with the
Statute of Frauds, or both contracting parties
are legally incapacitated;
d. In void or inexistent contracts, one or some
of the essential requisites of a valid contract
are lacking either in fact or in law.
2. As to effect:
a. The first are considered valid and
enforceable until they are rescinded by a
competent court;
b. The second are considered valid and
enforceable until they are annulled by a
competent court;
c. The third cannot be enforced by a proper
action in court;
d. The fourth do not, as a general rule,
produce any legal effect.
3. As to prescriptibility of action or
defense:
a. In the first, the action for rescission may
prescribe;
b. In the second, the action for annulment or
the defense of annullability may prescribe;
c. In the third, the corresponding action for
recovery, if there was total or partial
performance of the unenforceable contract
under No. 1 or No. 3 of Art. 1403, may
prescribe.
d. In the fourth, the action for declaration of
nullity or inexistence or the defense of nullity
or inexistence does not prescribe.
4. As to susceptibility of ratification:
a. The first are not susceptible of ratification;
b. The second are susceptible of ratification;
c. The third are susceptible of ratification;
d. The fourth are not susceptible of ratification.
272 Center for Legal Education and Research
5. As to who may assail contracts:
a. The first maybe assailed not only by a
contracting party but even by a third person
who is prejudiced or damaged by the
contract;
b. The second may be assailed only by a
contracting party;
c. The third may be assailed only by a
contracting party;
d. The fourth may be assailed not only by a
contracting party but even by a third person
whose interest is directly affected.
6. As to how contracts may be
assailed:
a. The first may be assailed directly only, and
not collaterally;
b. The second may be assailed directly or
collaterally;
c. The third may be assailed directly or
collaterally;
d. The fourth may be assailed directly or
collaterally (Jurado, Comments and
Jurisprudence on Obligations and Contracts, 2010
ed., p. 501-502)
1. RESCISSIBLE CONTRACTS (Art. 1381,
NCC)
 These are contracts, which are validly agreed
upon (Art. 1380 NCC) but in the cases
established by law (Arts. 1381-1382, NCC), the
remedy of rescission is granted in the interest
of equity.
 Rescission is a remedy granted by law to the
contracting parties and even to third persons,
to secure the reparation of damages caused
to them by a contract, even if this should be
valid, by restoration of things to their
condition at the moment prior to the
celebration of contract. It implies a contract,
which even if eventually valid, produces
lesion or a pecuniary damage to someone.
(Rabuya, Civil Law Reviewer Volume II, 2017 ed.,
p. 250) Thus its purpose is to make ineffective
a contract validly entered into and, therefore,
 Purple Notes
obligatory under normal conditions. (Ada v.
Baylon, G.R. No. 182435, August 13, 2012)
Contracts Declared Rescissible Under
Articles 1381 and 1382, NCC:
1. Contracts entered into by guardians on
behalf of the ward and contract entered into
by legal representatives on behalf of the
absentee, if the ward or the absentee suffers
lesion by more than ¼ of the value of the
things which are the object of the contract.
(Art. 1381 [1] and [2], NCC) But if the court
approved the contract, the same is not rescissible
(Art. 1386, NCC);
2. Contracts undertaken in fraud of creditors
(Art. 1381 [3], NCC);
3. Contracts, which refer to things under
litigation if they have been entered into by
the defendant without the knowledge and
approval of the litigants or of competent
judicial authority (Art. 1381 [4], NCC);
4. All other contracts specially declared by law
to be subject to rescission (Art. 1381 [5],
NCC); and
5. Payments made in a state of insolvency for
obligations to whose fulfilment the debtor
could not be compelled at the time they
were effected. (Art. 1382, NCC)
RESCISSION under Art. 1381 and
RESCISSION BY MUTUAL CONSENT
Article 1295 (now Art. 1385) refers to contracts
that are rescissible in accordance with law in the
cases expressly fixed thereby, but it does not
refer to contracts that are rescinded by mutual
consent and for the mutual convenience of the
contracting parties. The rescission in question
was not originated by any of the causes
specified in Articles 1291 and 1292 (now Arts.
1381 and 1382), nor is it any relief for the
purposes sought by these articles. It is simply
another contract for the dissolution of a previous
one, and its effects, in relation to the contract so
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Civil Law
dissolved, should be determined by the
agreement made by the parties, or by the
application of other legal provisions, but not by
Article 1295 (now Art. 1385), which is not
applicable. (Aquino v Tanedo, G.R. No. 12457,
January 22, 1919)
Requisites for Rescission of Contracts
entered into on behalf of Wards and
Absentees under Art. 1381 Nos. 1 and 2:
1. The contract must have been entered into by
a guardian in behalf of his ward or by a legal
representative in behalf of an absentee (Art.
1381 Nos. 1 and 2 NCC);
2. The ward or absentee must have suffered
lesion of more than one-fourth of the value
of the property which is the object of the
contract (Art. 1381 Nos. 1 and 2 NCC);
3. The contract must have been entered into
without judicial approval (Art. 1386, NCC);
4. There must be no other legal means for
obtaining reparation for the lesion (Art. 1383,
NCC);
5. The person bringing the action must be able
to return whatever he may be obliged to
restore (Art. 1385 par. 1, NCC); and
6. The object of the contract must not be legally
in the possession of a third person who did
not act in bad faith. (Art. 1385, par. 2, NCC)
NOTE: If the object of the contract is legally in
the possession of a third person who did not act
in bad faith, the remedy available to the person
suffering the lesion is indemnification for
damages and not rescission. (Art. 1385, par. 3,
NCC; Jurado, Comments and Jurisprudence on
Obligations and Contracts, 2010 ed., p. 507)
Requisites for Rescission of Contracts in
Fraud of Creditors under Art. 1381 No. 3
(accion pauliana)
There must be a credit existing prior to the
celebration of the contract;
1. There must be a fraud, or at least, the intent
to commit fraud, or at least, the intent to
commit fraud to the prejudice of the creditor
seeking the rescission;
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Civil Law
2. The creditor cannot in any other legal
manner collect his credit; and
3. The object of the contract must not be legally
in the possession of a third person who did
not act in bad faith.
NOTE: If the object of the contract is legally in
the possession of a third person who did not act
in bad faith, the remedy available to the creditor
is to proceed against the person causing the loss
for damages. (Jurado, Comments and Jurisprudence
on Obligations and Contracts, 2010 ed., p. 508)
The general rule is that rescission requires the
existence of creditors at the time of the alleged
fraudulent alienation, and this must be proved
as one of the bases of the judicial
pronouncement setting aside the contract.
Without any prior existing debt, there can
neither be injury nor fraud. While it is necessary
that the credit of the plaintiff in the accion
pauliana must exist prior to the fraudulent
alienation, the date of the judgment enforcing it
is immaterial. Even if the judgment be
subsequent to the alienation, it is merely
declaratory, with retroactive effect to the date
when the credit was constituted (Siguan v. Lim,
G.R. No. 134685 November 19, 1999).
Presumptions of Fraud
The law presumes that there is fraud of
creditors in the following cases:
1. Alienation of property by gratuitous title if the
debtorhas not reserved sufficient property to
pay all of his debts contracted before such
alienations. (Art. 1387 par. 1 NCC)
2. Alienation of property by onerous title if
made by a debtor against whom some
judgment has been rendered in any instance
or some writ of attachment has been issued.
The decision or attachment need not refer to
the property alienated and need not have
been obtained by the party seeking the
rescission. (Art. 1387 par. 2, NCC)
274 Center for Legal Education and Research
Badges of Fraud
The following circumstances have been
denominated by the courts as badges of fraud.
1. The fact that the cause or consideration of
the conveyance is inadequate.
2. A transfer made by a debtor after a suit has
been begun and while it is pending against
him.
3. A sale on credit by an insolvent debtor.
4. Evidence of large indebtedness or complete
insolvency.
5. The transfer of all or nearly all of his property
by a debtor, especially when he is insolvent
or greatly embarrassed financially.
6. The fact that the transfer is made between
father and son, when there are present
others of the above circumstances.
7. The failure of the vendee to take exclusive
possession of a.ll the property (Oria v
Mcmicking, G.R. No. L-7003, January 18, 1912)
Acquisition by Third Party
If in Good Faith - if the property is acquired by
a purchaser in good faith and for value, the
acquisition as far as the law is concerned is not
fraudulent. The right of such purchaser over the
property is legally superior to that of any other
person even as against the creditor who is
prejudiced by the conveyance. Consequently,
the contract or conveyance is not rescissible
(Honrado v Marcayda, . 49 Off. Gaz. 1492, C.A.)
If in Bad Faith - if the property is acquired by
one who is not a purchaser in good faith and for
value, it is clear that the contract or conveyance
is rescissible and shall indemnify the latter for
damages suffered by them on account of the
alienation, whenever, due to any cause, it
should be impossible for him to return them.
(Art. 1388, NCC)
 Purple Notes
Requisites for Rescission of Contracts by
Insolvent under Art. 1382
1. That it must have been made in a state of
insolvency, and
2. That the obligation must have been one
which the debtor could not be compelled to
pay at the time such payment was effected.
(Jurado, Comments and Jurisprudence on
Obligations and Contracts, 2010 ed., p. 509)
Requisites of Rescission (as subsidiary
remedy)
The following are the requisites in order that the
remedy of rescission may be availed of:
1. The contract must be validly agreed upon
(Art. 1380; see Onglengco v. Ozaeta and
Hernandez, G.R. No. L-46685, January 20, 1940);
2. There must be lesion or pecuniary prejudice
or damage to one of the parties or to a third
person (Art. 1381, NCC);
3. The rescission must be based upon a case
especially provided by law (Arts. 1380, 1381,
1382, NCC);
4. There must be no other legal remedy to
obtain reparation for the damage (Art. 1383,
NCC);
5. The party asking for rescission must be able
to return what he is obliged to restore by
reason of the contract (Art. 1385 par. 1, NCC);
6. The object of the contract must not legally be
in the possession of third persons who did
not act in bad faith (Ibid., par. 2, NCC); and
7. The period for filing the action for rescission
must not have been prescribed. (Art. 1389,
NCC)
Prescriptive Period
General Rule: The action for rescission must
be filed within four (4) years from accrual of the
right of action. (Art 1389, NCC)
Exceptions:
1. For persons under guardianship the period
shall begin from the termination of
incapacity; and
2. For absentees, from the time the domicile is
known. (Art. 1389, NCC)
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Civil Law
Laches bars an action for rescission or
annulment of a contract. (Art. 1391 NCC)
Extent of Rescission
 The entire contract need not be set aside if
the damage can be repaired or covered by
partial rescission. The rescission shall be only
to the extent of the creditor‘s unsatisfied
credit. (Art. 1384, NCC)
Effect of Rescission
1. Obligation of mutual restitution
2. Abrogation of contract
3. Obligation of third person to restore (Art.
1358, NCC)
2. VOIDABLE CONTRACTS (Art. 1390, NCC)
Voidable or annullable contracts are those which
possess all the essential requisites of a valid
contract but one of the parties is legally
incapable of giving consent, or consent is
vitiated by mistake, violence, intimidation undue
influence, or fraud. (Art. 1390, NCC)
It is valid and binding and produces all its civil
effects, until it is set aside by final judgement of
a competent court in an action for annulment.
(Art. 1390, last par., NCC; Suntay v. Cojuangco-
Suntay, G.R. No. 183053, October 10, 2012)
Nature and Characteristics
1. It is valid and binding and produces all its
civil effects, until it is set aside by final
judgment of a competent court.
2. However, it is defective because the consent
of one of the parties was vitiated by want of
capacity, error, violence, intimidation, undue
influence, or deceit. Hence, may be annulled
by an action in court.
3. It may be rendered perfectly valid by
ratification, which can be express or implied,
Bar Operations C ommissions 275
 Purple Notes
Civil Law
such as by accepting and retaining the interest (Ibid.)
benefits of a contract. Allowed even if the Barred by
plaintiff has been indemnification (Arts.
4. The action for annulment is subject to the indemnified (Art. 1390, 1383, 1384, NCC)
statute of limitations. In other words, the NCC)
action for annulment may prescribe after the
lapse of four years. Annulment under Article 1390 and rescission
under Article 1191 are inconsistent
5. A voidable contract can be assailed only in a remedies. A party pursuing the remedy of
direct proceeding for that purpose and not rescission impliedly admits the validity of the
collaterally. (Ninal v. Bayadog, G.R. No. 133778, subject contract. If he demands annulment,
March 14, 2000) he forfeits his right to seek rescission. (De
Leon & De Leon, Comments and Cases On
Obligations and Contracts, 2014 ed., p. 820)
Two kinds of voidable contracts:

Who may institute action for annulment?

1. Those where one of the parties is incapable
of giving consent to a contract: and;
General Rule: In order for a party to have the
necessary standing to institute action for
 But where both parties are incapable of
annulment, the following requisites must be
giving consent, the contract is not merely
satisfied:
voidable but enforceable (Art. 1403 [3],
NCC)
1. He must be a party obliged principally or
subsidiary in the contract; and
2. He is not the person sui juris or the party
2. Those where the consent is vitiated by
responsible for the vice or defect (Art. 1397,
mistake, violence, intimidation, undue NCC)
influence or fraud. (Art. 1390, NCC; Fule v. CA,
G.R. No. L-40502, November 29, 1976)
Differences between action for annulment Exception: A person who is not a party obliged
and action for rescission principally or subsidiarily under a contract, may
exercise an action for annulment of the contract
if (a) he is prejudiced in his rights with respect
ANNULMENT RESCISSION to one of the contracting parties; and (b) he can
Based on vitiation of Based on lesion to one show detriment which would positively result to
consent (Art. 1390, of the parties or a third him from the contract in which he has no
NCC) person (Art. 1381, NCC) intervention. (Teves v. People‘s Homesite & Housing
May be brought only May also be brought by Corp., G.R. No. L-21498, June 27, 1968)
by a party to the a third person who
contract suffered damage by Prescriptive Period– Action for annulment
(Arts. 1390 & 1397, reason of the contract must be brought within four (4) years. (Art. 1391,
NCC) (Art. 1381, NCC)
NCC) This period shall begin:
Principal action (Art. Merely subsidiary (Art.
1390, NCC) 1383, NCC)
Presupposes that the The contract was validly 1. In case of minority and incapacity, from the
contract is legally entered into (Art 1380, time the guardianship ceases;
defective (Art. 1390, NCC) 2. In case of mistake or fraud, from the time of
NCC) its discovery;
Seeks imposition of Remedy allowed by law 3. In case of intimidation, violence, or undue
sanction by law on on ground of equity influence, from the time the defect ceases.
the guilty party for (Art. 1383, NCC)
reason of public

276 Center for Legal Education and Research

 Purple Notes
Effects of ratification
Ratification cleanses the contract from all its
defects from the moment it was constituted.
(Art. 1396, NCC) The contract thus becomes valid.
(Art. 1390) Hence, the action to annul is
extinguished (Art. 1392; Tan Ah Chan v. Gonzalez,
G.R. No. 28595, October 11, 1928)
How ratification can be effected:
1. It can be effected either expressly or
impliedly. An implied ratification is deemed
made when the party entitled to ask for
annulment, (1) with the knowledge of the
reason which makes the contract voidable,
(2) and such reason having ceased, (3)
should execute any act evincing an intent to
abide by the contract and implying an
intention to waive his right to annul the same
(Art. 1393, NCC).
2. If the defect consists in the incapacity of
one of the parties, the ratification may
be effected by the guardian of the
incapacitated person (Art. 1394, NCC).
3. It does not require the conformity of the
contracting party who has no right to bring
the action for annulment (Art. 1395, NCC).
Requisites for Ratification:
1. The contract must be voidable and
annullable;
2. Ratification is made with knowledge of the
reason which makes the contract voidable
(Art. 1393 NCC);
3. At the time it is made, the reason which
makes the contract voidable has already
ceased (Art. 1393, NCC);
4. It is effected by the party who has the right
to bring the action for annulment. (Art. 1395,
NCC)
Effects of Annulment Decree:
General Rule: The effect of a juridical decree
annulling voidable contract is to restore to the
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Civil Law
contracting parties their original condition before
the contract, and hence, they are required to
make mutual restitution of the subject matter,
with its fruits, and the price with its interest. In
obligations to render service, the value thereof
shall be the basis for damages. (Art. 1398, NCC)
Exception: When the defect of the contract
consists in the incapacity of one of the parties,
the incapacitated person IS NOT obliged to
make restitution EXCEPT INSOFAR as he has
been benefited by the thing or price received by
him. (Art. 1399, NCC)
 As long as one of the contracting parties
does not restore what in virtue of the
decree of annulment he is bound to
return, the other cannot be compelled to
comply with what is incumbent upon
him. (Art. 1402, NCC)
Effect of loss of object of contract:
If lost by Defendant:
1. Through his fault, he is obliged to return the
fruits received, the value of the thing at the
time of loss, with interest from the same date
(Art. 1400, NCC);
2. If the loss is without fault on the part of the
defendant, but by fortuitous event, the action
for annulment is extinguished by loss of the
thing only when such loss is due to the fault
or fraud of the person entitled to ask for
annulment. The defendant is free from
liability. (Tolentino, Civil Code of the Philippines
Volume 4, 1991 ed.,p. 613-614)
If lost by party who has right to annul
(plaintiff):
1. Through his fault or fraud, the action for
annulment is extinguished (Art. 1404, NCC),
even if at the time of the loss, the plaintiff
was still minor or was insane. (Report of the
Code Commission March 8, 1951)
Bar Operations C ommissions 277
 Purple Notes
Civil Law
2. Through fortuitous event and without his
fault, the action for annulment is not
extinguished. Hence, if the plaintiff offers the
value of the thing at the time of the loss
(without need of paying interest thereon),
the defendant can be obliged to make
restitution. (Tolentino, Civil Code of the
Philippines Volume 4, 1991 ed., p. 613-614)
 The action for annulment is extinguished
only when the loss of the object of the
contract is due to the fault or fraud of the
plaintiff (or the party entitled to ask for
annulment. (Art. 1401, NCC)
3. UNENFORCEABLE CONTRACTS (ART.
1403, NCC)
Nature and Characteristics:
1. They cannot be sued upon or enforced
unless they are ratified (Art. 1403, NCC), as
distinguished rescissible and annullable
contracts which produce legal effects unless
they are set aside by a competent court.
2. Although valid, are unenforceable unless they
are ratified. The defect of the contract can
be cured by ratification.
3. They cannot be assailed by third persons.
(Art. 1408, NCC) In other words, the defense
of unenforceability of contracts is personal
only to the parties to the contract.
Three kinds of unenforceable contracts:
1. Those entered into in the name of another
without the latter‘s authority or legal
representation, or beyond the agent‘s power;
2. Those that do not comply with the
Statute of Frauds; and
3. Those where both parties are incapable
of giving consent to a contract. (Art.
1403, NCC)
Without or Excess of Authority:
1. If the agent contracts without authority:
278 Center for Legal Education and Research
1. And the contract involves the sale of a
parcel of land or any interest therein
belonging to the principal, the sale is void
(Art. 1874, NCC);
b. And the principal does not ratify the
contract, the contract is void as to the
alleged principal but the agent is personally
liable to the party with whom he
contracted;
c. The third person with whom the agent
contracted may revoke the contract prior to
its ratification by the principal. (Art. 1317,
NCC)
2. If the agent exceeds his authority and the
principal does not ratify the contract:
1. The principal is not bound (Art. 1910,
NCC) except when he allows the agent
to act as though the latter had full
powers, he becomes solidarily liable with
the agent. (Art. 1911 NCC)
b. The agent is personally liable to the
party with whom he contracts if he did
not give such party sufficient notice of
his powers. (Art. 1897, NCC)
3. If the agent exceeds his authority and the
principal ratifies the contract or has signified
his willingness to ratify the agent‘s acts, a
third person cannot set up the fact that the
agent has exceeded his powers. (Art. 1901,
NCC)
Statute of Frauds
Form required: Only formality required is that
the contract or agreement must be in writing
and subscribed by the party charged or by his
agent (Art. 1403[2], NCC).
Contracts under Statute of Frauds (Art.
1403 No. 2)
 Purple Notes
(a) An agreement that by its terms is not to be
performed within a year from the making
thereof;
NOTE: It is well-settled that this refers only to
agreements which by their terms are not to be
performed on either side within a year from the
execution thereof. Hence, those which are to be
fully performed on one side within a year are
taken out of the operation of the statute. (Phil.
National Bank v. Phil. Vegetable Oil Co., G.R. No. L-
25400, January 14, 1927)
(b) A special promise to answer for the debt,
default, or miscarriage of another;
NOTE: The true test as to whether a promise is
within the statute has been said to lie in the
answer to the question whether the promise is
an original or a collateral one. If the promise is
an original or an independent one, that is, if the
promisor becomes thereby primarily liable for
the payment of the debt, the promise is not
within the statute. But, on the other hand, if the
promise is collateral to the agreement of
another and the promisor becomes merely a
surety, the promise must be in writing. Just
what is the character of a promise as original
(Reiss v. Memije, G.R. No. L-5447, March 1, 1910)
(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
five hundred pesos, unless the buyer accept
and receive part of such goods and chattels,
or the evidences, or some of them, of such
things in action or pay at the time some part
of the purchase money; but when a sale is
made by auction and entry is made by the
auctioneer in his sales book, at the time of
the sale, of the amount and kind of property
sold, terms of sale, price, names of the
purchasers and person on whose account
the sale is made, it is a sufficient
memorandum;
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Civil Law
(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;
NOTE: Obviously, an agreement creating an
easement of right-of way is not one of those
contracts covered by the statute of frauds since
it is not a sale of real property or of an interest
therein. (Western Mindanao Co. v. Medalle, G.R. No.
L-23213, October 28, 1977)
(f) A representation as to the credit of a third
person.
When a contract is enforceable under the
Statute of Frauds, and a public document is
necessary for its registration in the Registry of
Deeds, the parties may avail themselves of the
right under Article 1357. (Art. 1406 NCC)
Performance of Contract
Rule: Statute of Frauds is applicable only to
those contracts which are executory and not to
those which have been consummated either
totally or partially. (Arroyo v. Azur, G.R. No. L-
18682, June 30, 1965)
Rationale: The Statute of Frauds was enacted
for the purpose of preventing frauds. Hence, it
should not be made the instrument to further
them. (Phil. National Bank v. Phil. Vegetable Oil Co.,
G.R. No. L-25400, January 14, 1927)
Ratification of unenforceable contracts:
1. For contracts infringing the Statute of
Frauds, they are ratified either by:
1. Failure to object to the presentation of
oral evidence to prove the contract; or
2. Acceptance of the benefits under the
contract (Art. 1405, NCC);
2. For contracts which are unenforceable by
reason of incapacity of both parties:
Bar Operations C ommissions 279
 Purple Notes
Civil Law
1. The ratification may be made by the
parents or guardian of the
incapacitated;
2. If the contract is ratified by the parent
or guardian of one of the contracting
parties, the contract becomes voidable
because such ratification shall give the
contract the same effect as if only one
of them were incapacitated (Art.1407,
NCC.);
If the ratification is made by the parents or
guardians of both the contracting parties,
the contract is considered validated from the
inception. (Art. 1407, NCC)
Express Trust Concerning Real Property
It will be observed that while the Statue of
Frauds makes no mention of it, still under Art.
1443 of the Civil Code, ―no express trusts
concerning immovable or any interest therein
may be proved by parol (oral) evidence.‖ Hence,
we can safely conclude that the Statute of
Frauds also applies to express conventional
trusts (Paras, Civil Code of the Philippines Annotated,
2008, p 806).
Rule on Authority of the Agent to Sell Land
or Any Interest Therein
Under Art. 1874 of the NCC, ―when a sale of a
piece of land or any interest therein is through
an agent, the authority of the latter shall be in
writing; otherwise, the sale shall be void. Thus,
the law provides sale is not merely
unenforceable but void (Paras, Civil Code of the
Philippines Annotated, 2008, p 811).
4. VOID OR INEXISTENT CONTRACTS
(ART. 1409, NCC)
These contracts are absolute nullity and produce
no effect, as if it had never been executed or
entered into:
1. Those whose cause, object or purpose is
contrary to law, morals, good customs,
public order or public policy (Art. 1409
[1], NCC.);
280 Center for Legal Education and Research
 Cause is the essential reason which
moves the parties to enter into [a
contract]. [It] should be distinguished
from motive, which is the particular
reason of a contracting party which does
not affect the other party (Uy v. CA, G.R.
No. 120465, Sept. 9, 1999).
For example, in a contract of sale of a
piece of land, such as in this case, the
cause of the vendor entering into the
contract is to obtain the price, and for
the vendee, NHA it is the acquisition of
the land. The motive of the NHA, on the
other hand, is to use said lands for
housing (Id.).
General Rule: It is illegality or immorality
of the cause which renders the contract void
and, ordinarily, a party‘s motives for
entering into the contract do not affect the
contract. (Uy v. CA, G.R. No. 120465, Sept. 9,
1999)
Exception: When the motive predetermines
the purpose of the contract, the motive may
be regarded as the cause (Liguez v. CA, G.R.
No. 11240, Dec. 18, 1957). When they blend to
that degree, and the motive is unlawful,
then the contract entered into null and void.
(Olegario v. CA, G.R. No. 104892, November 14,
1994)
2. Those which are absolutely simulated or
fictitious (Art. 1409 [2], NCC);
3. Those whose cause or object did not exist at
the time of the transaction (Art. 1409 [3],
NCC.);
4. Those whose object is outside the commerce
of men (Art. 1409 [4], NCC);
5. Those which contemplate of an impossible
service (Art. 1409 [5], NCC.);
 At the time of delivery or consummation
stage of sale, it is required that the seller be
the owner of the thing sold; otherwise, he
will not be able to comply with his obligation
 Purple Notes
to transfer ownership to the buyer. It is at
the consummation stage where the principle
of nemodat qud non habet applies. (Cavite
Development Bank v. Lim, G.R. No. 131679,
February 1,2000)
 When the sellers can no longer deliver the
object of the sale to the buyers, as the
buyers themselves have already acquired
title and delivery thereof from the rightful
owner, the contract of sale is not valid.
Thus, such contract may be deemed to be
inoperative and may thus fall, by analogy,
under item No. 5 of Article 1409 of the Civil
Code. (Nool v. CA, G.R. No. 116635, July 24,
1997)
6. Those where the intention of the parties
relative to the principal object of the contract
cannot be ascertained (Art. 1409[6], NCC) ;
and
7. Those expressly prohibited or declared void
by law (Art. 1409 [7], NCC.)
 The principle of in pari delicto cannot be
invoked with respect to inexistent contracts.
(Modina v. CA, 109355, October 29, 1999) It can
only be invoked in relation to void contracts.
Hence, the latter may eventually produce
legal effects while the former cannot
produce any effect whatsoever.
Characteristics of void or inexistent
contracts:
1. The contract produces no effect whatsoever
either against or in favour of anyone
following the principle quod nullum est
nullum producit effectum.
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Civil Law
Void Contracts vs. Inexistent Contracts
VOID INEXISTENT CONTRACTS
CONTRACTS
Those which Refer to agreements which lack
because of certain one or some or all of the
defects, generally elements (i.e. consent, object,
produce no effect and cause) or do not comply
at all. with the formalities which are
essential for the existence of a
contract.
If nullity proceeds Absolutely cannot produce any
from illegality, it legal effect.
will produce barring
effect
May prescribe Imprescriptible
according to
Statute of
Limitations
 Although not barred by prescription, the
right to have a contract declared void ab
initio may be barred by laches. (MWSS v.
CA, G.R. Nos. 126000 & 128520, October 7,
1988)
2. Void or inexistent contracts cannot be
ratified. (Ouano v. CA, G.R. No. L-40203, August
21, 1990) It cannot give rise to a valid
contract. (Art. 1422, NCC) The defect of a void
or inexistent contract is permanent. (Teja
Marketing v. IAC, G.R. No. L-65510, March 9,
1987) Mere lapse of time cannot produce its
efficacy. (Fomilda v. Branch 164 RTC IVth Judicial
Region, Pasig, G.R. No. 72306, January 24, 1989)
Hence, it cannot be validated either by time
or ratification. (Palmera v. Civil Service
Commission, G.R. No. 110168, August 4, 1994)
 Void contract cannot be novated.
3. The right to set up the defense of inexistence
or absolute nullity cannot be waived. (Fomilda
v. Branch 164 RTC IVth Judicial Region, Pasig,
G.R. No. 72306, January 24, 1989)
4. The inexistence or absolute nullity of a
contract cannot be invoked by a person
whose interests are not directly affected. (Art.
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 Purple Notes
Civil Law
1421, NCC; Chavez v. PCGG, G.R. No. 130716,
December 9, 1998)
Necessity of action to declare contract
inexistent or void:
If purely executory- If the void or inexistent
contract is still fully executory, there is no need
for such an action. (Razon v. Phils. Ports Authority,
G.R. No. 75197, June 22, 1987) But if any party
should bring an action to enforce it, the other
party can simply set up the nullity of the
contract or its non-existence as defense.
If already executed- If the void or inexistent
contract had already been executed, an action
to declare non-existence of the contract or its
nullity can be maintained for the purpose of
recovering what has been given by virtue of that
contract. (Rongavilla v. CA, G.R. No. 83974, August
14, 1998) The reason for this rule is that nobody
can take the law into his own hands.
1. Pactum Commissorium (Arts. 2088,
2130, NCC)
 A stipulation whereby the thing pledged
or mortgage or under antichresis shall
automatically become the property of the
creditor in the event of non-payment of
the debt within the term fixed. This is
forbidden by law and any stipulation to
this effect is declared null and void (Art.
2088, NCC). However, only the prohibited
stipulation is void and shall not affect the
validity of the principal obligation.
Requisites of Pactum
Commissorium:
a. A pledge, mortgage, or antichresis of
property by way of security for the
payment of the principal obligation;
b. A stipulation for an automatic
appropriation by the creditor of the
property in the event of non-payment of
the obligation within the stipulated
period.
282 Center for Legal Education and Research
2. Pactum De Non Alienando (Art.
2130, NCC)
A stipulation forbidding the owner from
alienating the immovable mortgage shall
be void for being contrary to public
policy inasmuch as the transmission of
property should not be unduly impeded.
3. Pactum Leonina (Art. 1799, NCC)
In a contract of partnership, none of the
partners can be excluded from participation
in the profits and losses.
Principle of In Pari Delicto (Art. 1411 and
1412, NCC)
General Rule:
Art. 1411. When the nullity proceeds from the
illegality of the cause or object of the contract,
and the act constitutes a criminal offense, both
parties being in pari delicto, they shall have no
action against each other, and both shall be
prosecuted. Moreover, the provisions of the
Penal Code relative to the disposal of effects or
instruments of a crime shall be applicable to the
things or the price of the contract.
This rule shall be applicable when only one of
the parties is guilty; but the innocent one may
claim what he has given, and shall not be bound
to comply with his promise.
Art. 1412. If the act in which the unlawful or
forbidden cause consists does not constitute a
criminal offense, the following rules shall be
observed:
(1) When the fault is on the part of both
contracting parties, neither may recover
what he has given by virtue of the contract,
or demand the performance of the other's
undertaking;
(2) When only one of the contracting parties is
at fault, he cannot recover what he has
given by reason of the contract, or ask for
the fulfillment of what has been promised
him. The other, who is not at fault, may
 Purple Notes
demand the return of what he has given
without any obligation to comply with his
promise.
The rule is expressed in the maxims: ―Ex dolo
malo non oritur actio‘‘ and ―In pari delicto potior
est conditio defendantis.‘‘ The law will not aid
either party to an illegal agreement; it leaves
them where they are. Of course, this
presupposes that the fault of one party is more
or less equal or equivalent to the fault of the
other party. (Bough v. Cantiveros, G.R. No. 13300,
September 29, 1919)
Exceptions:
(1) Payment of usurious interest. In such case,
the law allows the debtor to recover the
interest paid in excess of that allowed by
the usury laws, with interest thereon from
the date of payment. (Art. 1413, NCC)
(2) Payment of money or delivery of property
for an illegal purpose, where the party who
paid or delivered repudiates the contract
before the purpose has been accomplished,
or before any damage has been caused to a
third person. In such case, the courts may
allow such party to recover what he has
paid or delivered, if the public interest will
thus be sub served. (Art. 1414 NCC)
(3) Payment of money or delivery of property
by an incapacitated person. In such case,
the courts may allow such person to recover
what he has paid or delivered, if the interest
of justice so demands. (Art. 1415, NCC)
(4) Agreement or contract which is not illegal
per se but is merely prohibited by law, and
the prohibition is designed for the protection
of the plaintiff. In such case, such plaintiff,
if public policy is thereby enhanced, may
recover what he has paid or delivered. (Art.
1416, NCC)
(5) Payment of any amount in excess of the
maximum price of any article or commodity
fixed by law. In such case, the buyer may
recover the excess. (Art. 1417, NCC)
(6) Contract whereby a laborer undertakes to
work longer than the maximum number of
hours fixed by law. In such case, the laborer
may demand for overtime pay. (Art. 1418,
NCC)
2018
Civil Law
(7) Contract whereby a laborer accepts a wage
lower than the minimum wage fixed by law.
In such case, the laborer may demand for
the deficiency. (Art. 1419, NCC)
Divisible Contracts (Art. 1420, NCC)
Article 1420 of the New Civil Code provides in
this regard: "In case of a divisible contract, if the
illegal terms can be separated from the legal
ones, the latter may be enforced." In simple
loan with stipulation of usurious interest, the
prestation of the debtor to pay the principal
debt, which is the cause of the contract (Article
1350, NCC), is not illegal. The illegality lies only
as to the prestation to pay the stipulated
interest; hence, being separable, the latter only
should be deemed void, since it is the only one
that is illegal (Angel Jose v. Chelda, G.R. No. L-
25704, April 24, 1968).
Where the contract is divisible (or severable)
that is, the consideration is made up of several
parts, and the illegal ones can be separated
from the legal portions, without doing violence
to the intention of the parties, the latter may be
enforced. This rule, however, is subject to the
contrary intention of the parties (De Leon,
Obligations and Contracts, 2010, p. 818).
Divisible Contract v. Divisible Obligation
It must be noted that a divisible contract is
different from a divisible obligation. Divisible
contract refers to the divisibility of the cause
while divisible obligation refers to the capability
of partial fulfillment (De Leon, Obligations and
Contracts, 2010, p. 820).
Example:
S paid P1,000.00 as annual subscription to a
weekly magazine to be delivered every week.
The contract is indivisible but the obligation is
divisible.
If the agreement is that the publisher will deliver
the magazine every week and S will pay P25.00
upon such delivery, the contract is divisible. The
obligations of the parties are likewise divisible
(De Leon, Obligations and Contracts, 2010, p. 820).
Bar Operations C ommissions 283
 Purple Notes
Civil Law
5. DISTINGUISH: RESCISSION under Art. equivalent of Article 1191 in the old code
1381 distinguished from rescission or actually uses the term "resolution" rather than
RESOLUTION of reciprocal obligation the present "rescission." The calibrated
under Art. 1191 meanings of these terms are distinct.

ART. 1381 ART. 1991 "Rescission" is a subsidiary action based on

injury to the plaintiff‘s economic interests as
As to nature of remedy described in Articles 1380 and 1381.
Rescission is a Rescission is a principal "Resolution," the action referred to in Article
subsidiary remedy remedy 1191, on the other hand, is based on the
defendant‘s breach of faith, a violation of the
As to basis reciprocity between the parties. As an action
The ground is lesion orThe ground is breach of based on the binding force of a written contract,
economic prejudice faith by the defendant that therefore, rescission (resolution) under Article
violates the reciprocity 1191 prescribes in 10 years. Ten years is the
between the parties
period of prescription of actions based on a
As to who may be considered ―injured party‖
written contract under Article 1144.‖
The action may be The action can be availed
availed of even by a of only by a party to a
third party (as in the contract.
case of accion SUMMARY OF DEFECTIVE CONTRACTS:
pauliana) RESCI VOID UNENFO VOID/
As to applicability to kinds of obligations SSIBL ABLE RCEABL INEXI
Rescission applies to allRescission applies E CONT E STENT
kinds of obligations exclusively to reciprocal CONT RACT CONTRA CONTR
obligations RACTS S CTS ACTS
As to prescriptive period DEFECT Econo Vitiatio Without Illegali
mic n of or in ty
4 years from accrual of Either 10 years (for written dama Conse excess of (void)
right of action contracts) or 6 years (for ge to a nt authorit or
oral contracts) party y, or absenc
As to discretionary power of court or to a does not e or
If the ground is proved, The court has discretionary third comply absolut
party; with e lack
the court has no power not to grant
discretion but to order rescission if there is just declara Statute of any
tion by of of
rescission cause for the fixing period.
law Frauds essentia
or l
(De Leon, Obligations and Contracts, 2010, p. 713 to incapaci requisit
714) ty of e of a
both contract
In Heirs of Quirong v DBP (GR 173441, December parties (inexist
3, 2009), the Court distinguished Resolution from ent)
Rescission: LEGAL Valid Valid Inoperati None
EFFECT and and ve until
―The remedy of "rescission" is not confined to legally legally ratified;
the rescissible contracts enumerated under enforce enforc Cannot
Article 1381. Article 1191 of the Civil Code gives able eable be
until until enforced
the injured party in reciprocal obligations, such
judiciall judicial by court
as what contracts are about, the option to y ly action
choose between fulfillment and "rescission." rescind annull without
Arturo M. Tolentino, a well-known authority in ed ed proper
civil law, is quick to note, however, that the ratificatio

284 Center for Legal Education and Research

 Purple Notes 2018
Civil Law
n who ct suffere
REMEDY Resciss Annul Only Declara suffer d
ion or ment personal tion of ed damag
resciss of defense nullity damag e
ory contra of
e
action ct contract
GROUND Arts. Art. Art. Art.
S 1381- 1390, 1403, 1409,
1382, NCC NCC NCC VIII:
NCC
Necess Not Not Not NATURAL OBLIGATIONS
NECESSI ary necess necessary necessa
TY OF ary ry
(Arts. 1423 to 1430, NCC)
DAMAGE
Susce May May be Not
A. Natural obligations distinguished from
SUSCEP ptible be suscepti Suscep
other kinds of obligations
TIBILIT but susce ble tible
Y OF not of ptible
Distinguished from Civil Obligations:
RATIFIC ratifica
ATION tion
1. Civil obligations give a right of action to
proper
compel their performance.
Prescri Prescr Action Impres
ptible iptible for criptibl 2. Natural obligations, not being based on
– - recovery e positive law but on equity and natural law,
PRESCR Action Action ; specific do not grant a right of action to enforce their
IPTION for for perform performance, but after voluntary fulfilment
resciss annul ance or by the obligor, they authorize the retention
ion ment damage of what has been delivered or rendered by
prescri prescr s reason thereof (Art. 1423, NCC).
bes ibes prescrib
after 4 after es (10 Distinguished from Moral Obligations
years 4 years if
years based 1. Natural Obligations – There is a juridical tie
on a between the parties which is not enforceable
written by court action. Its performance produces
contract; legal effects which the courts recognizes and
6 years protects.
if
unwritte 2. Moral Obligations – there is no juridical tie
n) whatsoever. Its voluntary fulfillment does not
CURABI Curabl Curab Not Not produce any legal effect which the courts
LITY BY e le Curable curable recognizes and protects (Jurado, Comments
PRESCR and Jurisprudence on Obligations and Contracts,
IPTION 2010, p. 635-636).
Assaila Assail Assailabl Assaila
ASSAIL ble by able e only ble by B. Voluntary Fulfilment
ABILITY a only by a a party
BY party by a party to or by a Voluntary fulfilment means that the debtor
THIRD or by party the third complied with the same even if he knew that he
PERSON a third to the contract party could not have been legally forced to do so.
S party contra who Thus, payment through a coercive process of

Bar Operations C ommissions 285

 Purple Notes
Civil Law
the writ of execution issued at the instance and
insistence of the prevailing party is NOT
considered voluntary and the provisions of the
law on natural obligations cannot be applied
thereto (Manila Surety & Fidelity Co. v. Lim, G.R.
No.L-9343, December 29, 1959).
C. No Juridical Tie in Moral Obligations
While there is a juridical tie in natural
obligations, there is none in moral obligations.
Thus giving a legal assistance to one‘s employee
(accused of a crime) is merely a moral
obligation, and the employee cannot recover
attorney‘s fee from the employer (Dela Cruz v.
Northern Theatrical Enterprises, Inc. et. al., 50 O.G.
4225, September 1954).
D. Extinctive Prescription
When a right to sue upon a civil obligation has
lapsed by extinctive prescription, the obligor
who voluntarily performs the contract cannot
recover what he has delivered or the value of
the service he has rendered (Art. 1424, NCC).
Effect of Extinctive Prescription: By virtue of
which, a right or property has been lost.
E. Payment by Third Person
When without the knowledge or against the will
of the debtor, a third person pays a debt which
the obligor is not legally bound to pay because
the action thereon has prescribed, but the
debtor voluntarily reimburses the third person,
the obligor cannot recover what he has paid (Art.
1425, NCC).
If payment is made with the consent of the
debtor, a civil obligation arises.
F. Contracts by Minors
When a minor who has entered into a contract
without the consent of the parent or guardian,
after the annulment of the contract voluntarily
returns the whole thing or price received,
notwithstanding the fact that he has not been
benefited thereby, there is no right to demand
the thing or price thus returned (Art. 1426, NCC).
286 Center for Legal Education and Research
Contracts by minors; when there has been
annulment:
This applies to minors when the contract was
without parental consent.
Here after annulment, there was a voluntary
return
 When a minor who has entered into contract
without the consent of the parent or
guardian, pays a sum of money or delivers a
fungible thing in the fulfilment of the
obligation, there shall be no right to recover
the same from the obligee who has spent or
consumed it in good faith (Art. 1427, NCC).
Contracts by Minors- No Annulment Yet:
Generally, annulment requires mutual
restitution. Here, the obligee who has spent or
consumed the object in good faith is not
required to restore.
Good faith of the obligee must be present at the
time of spending or consuming.
 Note that the majority age today is 18 and
―fungible‖ here really mean ―consumable‖.
G. Performance after an Action to Enforce
a Civil Obligation has failed
When, after an action to enforce a civil
obligation has failed the defendant voluntarily
performs the obligation, he cannot demand the
return of what he has delivered or the payment
of the value of the service he has rendered (Art.
1428, NCC).
H. Rule in case of Payment of Debts
Beyond Value of the Decedent’s Estate
When a testate or intestate heir voluntarily pays
a debt of the decedent exceeding the value of
the property which he received by will or by law
of intestacy from the estate of the deceased, the
payment is valid and cannot be rescinded by the
payer (Art. 1429, NCC).
 Purple Notes
Heirs inherit only to the extent of the value of
the inheritance.
I. Payment of Legacies despite the
fact that the Will is Void
When a will is declared void because it has not
been executed in accordance with the
formalities required by law, but one of the
intestate heirs, after the settlement of the debts
of the deceased, pays a legacy in compliance
with a clause in the defective will, the payment
is effective and irrevocable (Art. 1430, NCC).
 If the will is void, the legacy would also
be void and the deceased is considered
to have died without a will.
IX:
ESTOPPEL
2.
(Arts. 1431 to 1439, NCC)
The Rule on Estoppel
Through estoppel an admission or
representation is rendered conclusive upon the
person making it, and it cannot be denied or
disproved as against the person relying thereon
(Art. 1431, NCC)
Kinds of Estoppel
There are generally three (3) kinds of estoppel:
1. Estoppel in pais (or by conduct) – A
person is considered in estoppel if by his
conducts, representations or admissions or
silence when he ought to speak out, whether
intentionally or through culpable negligence,
causes another to believe certain facts to
exist and such other rightfully relies and acts
on such belief, as a consequence of which he
shall be prejudiced if the former is permitted
to deny the existence of such facts;
a. Estoppel by Silence - type of estoppel
in pais which arises when a party, who has
a right and opportunity to speak or act as
2018
Civil Law
well as a duty to do so under the
circumstances, intentionally or through
culpable negligence, induces another to
believe certain facts to exist and such other
relies and acts on such belief, as a
consequence of which he would be
prejudiced if the former is permitted to
deny the existence of such facts (Jurado;
Obligations and Contracts; 2010 ed. pg 640)
b. Estoppel by. acceptance of Benefits -
type of estoppel in pais which arises when
a party by accepting benefits derived from
a certain act or transaction, intentionally or
through culpable negligence, induces
another to believe certain facts to exist and
such other relies and acts on such belief, as
a consequence of which he would be
prejudiced if the former is permitted to
deny the existence of such facts (Jurado;
Obligations and Contracts; 2010 ed. pg 640).
Estoppel by deed or by record
(Technical Estoppel) - Occurs when a
party to a deed and his privies are precluded
from denying any material fact stated in the
said deed as against the other party and his
privies;
a. Estoppel by Deed - type of technical
estoppel by virtue of which a party to a
deed and his privies are precluded from
asserting as against the other party and his
privies any right or title in derogation of the
deed, or from denying any material fact
asserted therein (Jurado, Obligations and
Contracts, 2010 ed., p. 640).
b. Estoppel by Record - technical estoppel
by virtue of which a party and his privies
are precluded from denying the truth of
matters set forth in a record whether
judicial or legislative (Jurado, Obligations and
Contracts, 2010 ed., p. 640).
c. Estoppel by Judgement- estoppel by
virtue of which the party to a case is
precluded from denying the facts
adjudicated by a court of competent
Bar Operations C ommissions 287
 Purple Notes
Civil Law
jurisdiction (Jurado, Obligations and Contracts, iii. Lack of knowledge or notice on the part of
2010 ed., p. 641). the defendant that the complaint would
assert the right on which he bases his suit
d. Estoppel by Judgement v Res Judicata
- Estoppel by judgment bars the parties iv. Injury or prejudice to the defendant in the
from raising any question that might have even relief is accorded to the complainant,
been put in issue and decided in the or the suit is not held to be barred
previous litigation, whereas res judicata
makes a judgment conclusive between the C. Laches and Prescription
same parties as to the matter directly Distinguished
adjudged (Phil. National Bank v. Barretto, G.R.
No. L-8831, May 28, 1958). Prescription Laches
Concerned Not concerned merely with lapse of
3. Estoppel by laches - laches is failure or with the fact time ; deals with the effect of
neglect, for an unreasonable and of delay unreasonable delay
unexplained length of time, to do that which, Question or Principally a question of the inequity
matter of time or unfairness of permitting a stale
by exercising due diligence, could or should
right or claim to be enforced or
have been done earlier; it is negligence or asserted, this inequity being founded
omission to assert a right within a on some change in the condition or
reasonable time, warranting a presumption the relation of parties
that the party entitled thereto either has Statutory Not statutory
abandoned it or declined to assert it. Applies at law Applies in equity
However, courts will not be bound by Based on a Not based on a fixed time
strictures of the statute of limitations or fixed time
laches when manifest wrong or injuries (De Leon and De Leon, Comments and Cases:
would result thereby‖ (Cristobal v. Melchor, Obligations and Contracts, 2014 ed.,p.957)
G.R. No. L-43203, July 29, 1977).
D. Estoppel as applied
a. Laches; definition- It is a failure or
neglect, for an unreasonable and
unexplained length of time, to which, by 1. Estoppel against vendor who subsequently
exercising due diligence, one could or acquires title (Art. 1434, NCC)
should have done earlier; it is negligence or 2. Estoppel against agent who sells for
omission to assert a right within reasonable another (Art. 1435, NCC)
time, warranting a presumption that the 3. Estoppel against tenant or bailee (Art.
party entitled to assert it either has 1436, NCC)
abandoned it or declined to assert it (Tijam 4. Estoppel against owner of immovable (Art.
v. Sibonghanoy, G.R. No. L-21450, April 15, 1437, NCC).
1968). 5. Estoppel by acceptance of benefits (Art.
1438, NCC)
b. Elements of Estoppel by laches:
Estoppel distinguished from other
i. Conduct on the part of the defendant or of concepts
one under whom he claims, giving rise to
the situation of which complaint is made; 1. Distinguished from waiver

ii. Delay in asserting the complainant‘s right, Equitable Estoppel Waiver

the complainant having had knowledge or May arise even though Voluntary and intentional
notice of the defendant‘s conduct and there was no intention abandonment or
having been afforded an opportunity to on the part of the party relinquishment of a
sue estopped to relinquish known right

288 Center for Legal Education and Research

 Purple Notes 2018
Civil Law
or change any existing IX:
right SPECIAL CONTRACTS
Prejudice to other Does not necessarily
party is one of the imply that the party A. SALES
essential elements asserting it has been
misled to his prejudice
1. GENERAL PROVISIONS
Involves conduct of Involves the conduct of
both parties, since it is only one of the parties,
based upon misleading that is, it depends upon DEFINITION AND ESSENTIAL REQUISITES
conduct or language of what one himself OF A CONTRACT OF SALE
one person and intended to do
reliance thereon by regardless of the A. Definition
another who is misled attitude assumed by the
thereby to his other party
By the contract of sale, one of the contracting
prejudice;
parties obligates himself to transfer the
Frequently carries the Never carry an
implication of fraud implication of fraud ownership and to deliver a determinate thing,
(De Leon and De Leon Jr. Comments and Cases: and the other to pay therefore a price certain in
Obligations and Contracts, 2014 ed., pp. 945-946) money or its equivalent (Art. 1458, NCC).

2. Distinguished from ratification � The contract of sale is not a mode for

acquisition or transmission of
Equitable Estoppel Ratification ownership; it only creates title (San
Lorenzo Development Corp. v. CA, G. R. No.
Substance is the inducement to The substance is
124242, Jan. 21, 2005)
another to act to his prejudice confirmation
after conduct
A party is bound notwithstanding A party is bound B. Characteristics of a Contract of Sale
that there was no such intention because he
because the other party will be intended to be a. Nominate – it has been given a particular
prejudiced and defrauded by his name by law (Art. 1458).
conduct unless the law treats him
as legally bound b. Principal – it can stand on its own, and
Applied if the other party would Does not rest does not depend on another contract for its
be unjustly prejudiced (28 Am. upon prejudice validity.
Jur. 2d. 635-636)
(De Leon and De Leon Jr., Comments and Cases:
Obligations and Contracts, 2014 ed., pp. 946-947) c. Bilateral – it creates reciprocal obligations
– the seller obligates himself to transfer the
ownership of and deliver a determinate
thing, and the buyer obligates himself to pay
Equitable Estoppel Ratification
therefor a price certain in money or its
Substance is the inducement to The substance is
another to act to his prejudice confirmation equivalent. Reciprocal obligations are those
after conduct which arise from the same cause and in
A party is bound notwithstanding A party is bound which party is a debtor and a creditor of
that there was no such intention because he each other, such that the obligation of one
because the other party will be intended to be is dependent upon the obligation of the
prejudiced and defrauded by his other. (Carrascoso, Jr. v. CA, G.R. No. 123672,
conduct unless the law treats him December 17, 2005)
as legally bound
Applied if the other party would be Does not rest d. Consensual – It is perfected by mere
unjustly prejudiced (28 Am. Jur. upon prejudice consent of the parties. The essence of
2d. 635-636)
consent is the agreement of the parties on
(Id.)
the terms of the contract, the acceptance by
one and the offer made by the other (Vda.

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 Purple Notes
Civil Law
De Ape v. CA, G.R. No. 133638, April 15, 2005;
Torcuator v. Bernabe, G.R. No. 134219, June 8,
2005).
� The essence of consent is the
agreement of the parties on the terms
of the contract, the acceptance by one
of the offer made by the other. It is the
concurrence of the minds of the parties
on the object and the cause, which
constitutes the contract. The area of
agreement must extend to all points
that the parties deem material or there
is no consent at all (Leonardo v. Court of
Appeals, G.R. No. 125485, June 15, 2006).
e. Onerous and Commutative – A contract
of sale is normally commutative and
onerous: not only does each one of the
parties assume a correlative obligation (the
seller to deliver and transfer ownership of
the thing sold and the buyer to pay the
price), but each party anticipates
performance by the other from the very
start (Gaite v. Fonacier, G.R. No. L-11827, July
31, 1961).
In a sale the obligation of one party can be
lawfully subordinated to an uncertain event,
so that the other understands that he
assumes the risk of receiving nothing for
what he gives [as in the case of a sale of
hopes or expectations, emptio spei, which
makes the contract ALEATORY and not
commutative (Art. 2010, NCC). But this
exception is not the usual course of
business; hence, the contingent character
of the obligation must clearly appear. (Gaite
v. Fonacier, supra.)
C. Nature and Form of Contract
Being a consensual contract, contract of sale is
perfected at the moment there is a meeting of
minds upon the thing which is the object of the
contract and upon the price (Art. 1475, NCC).
The form of a contract refers to the manner in
which it is executed or manifested.
290 Center for Legal Education and Research
General rule: contract of sale may be entered
into in any form provided all the essential
requisites for its validity are present (Art. 1356).
It may be in writing; it may be oral; it may be
partly in writing and partly oral. It may even be
inferred from the conduct of the parties (Art.
1483, NCC).
Exceptions:
a. Where form is required in order that a
contract may be enforceable.
Under the Statute of Frauds the following
contracts must be in writing; otherwise, they
shall be unenforceable by action:
1) Sale of personal property at a price not less
than P500.00;
2) Sale of real property or an interest therein
regardless of the price involved; and
3) Sale of property not to be performed within a
year from the date thereof regardless of the
nature of the property and the price involved
(Art. 1403[2], a, d, e], NCC).
b. Where the ―applicable statute‖ requires that
the contract of sale be in a certain form for
its validity (Art. 1356, NCC.);
1) Sale of large cattle (Art. 1581, NCC).
2) Sale of a piece of land or interest therein
through agent is required to be in writing,
otherwise the sale thereof by the agent
would be void (Art. 1874, NCC).
3) Sale of land by non-Muslim hill tribe
cultural minorities of the Philippines is
void if not approved by National
Commission of Indigenous Peoples (R.A.
8371).
c. Where form is required only for the
convenience of the parties (De Leon,
Comments and Cases on Sales and Lease, 2005,
p. 115).
STATUTE OF FRAUDS: Note that if particular
form is required under the statute of frauds and
the same is not followed, the sale is valid, but it
is unenforceable even as to the parties to the
contract of sale.
 Purple Notes
D. Kinds of Contact of Sales as to
Presence or Absence of Conditions
(1997, 2001 Bar)
a. Absolute Sale - where the sale is not
subject to any condition whatsoever and
where title passes to the buyer upon
delivery of the thing sold.
b. Conditional Sale - where the sale
contemplates a contingency, and in
general, where the contract is subject to
certain conditions.
If the condition is imposed on an
obligation of a party (e.g., ejection by
the vendor of squatters within a certain
period before delivery of property) not
upon the perfection of the contract
itself, which is not complied with, the
other party may either refuse to proceed
or waive said condition (De Leon,
Comments and Cases on Sales and Lease,
2005, p. 16).
E. Elements
a. ESSENTIAL REQUISITES OF A VALID
CONTRACT OF SALE – ART. 1505, NCC
1. Consent or meeting of the minds to
transfer ownership in exchange for the price
� Being a consensual contract, the
contract of sale is perfected at the
moment there is a ―meeting of the
minds‖ upon the thing which is the
object of the contract and upon the
price (Art. 1475, NCC).
� There may be a sale against the will of
the owner in case of expropriation and
the three different kinds of sale under
the law – ordinary execution sale,
judicial foreclosure sale, and extra-
judicial foreclosure sale (Paras, Civil Code
of the Philippines Annotated, 2008, p. 12).
2018
Civil Law
Requisites:
a. Capacity,
b. Offer and acceptance, and
c. No vitiation of consent
2. Determinate or determinable subject
matter – which refers to the determinate
thing which is the object of the contract.
(See further discussion under Subject Matter, p.
32)
3. Price certain in money or its
equivalent.
It is not enough for the parties to agree on
the price of the property, but they must also
agree on the manner of payment of the
price of the property to give rise to a
binding and enforceable contract of sale or
contract to sell. This is because the
agreement as to the manner of payment
goes into the price, such that a
disagreement on the manner of payment is
tantamount to a failure to agree on the price
(Boston Bank of the Phil. v. CA, G.R. No. 158149,
February 9, 2006, Mernelego v Banco Filipino
Savings and Mortgage Bank, G.R. No. 161524,
January 27, 2006).
� In expropriation and foreclosure
proceedings, there can be a valid sale
but not by the meeting of the minds
since the other party is compelled to
enter into a contract.
NOTE: The absence of any essential elements
negates the existence if a perfected contract of
sale (Dizon v. CA, GR,122544, June 28, 1999) even
when earnest money or down payment has
been paid (Manila Metal Container Corp. v PNB, G.R.
No. 166862, December 20, 2006)
b. Natural Elements – These are the
elements that exist naturally in a contract of
sale, unless the parties provide the contrary.
These are the implied warranties against
eviction and hidden defects (Art. 1547, NCC).
Bar Operations C ommissions 291
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Civil Law
c. Accidental Elements – those, which are
dependent on the parties‘ stipulation (e.g.
conditions, interest, penalty, time or place of
payment) (De Leon, Comments and Cases on
Sales and Lease, 2005, p. 10).
F. Stages of a Contract of Sale
1. Preparation: covers the period from the
time the prospective contracting parties
indicate their interests in the contract to the
time the contract is perfected. (Villanueva,
Law on Sales, 2009 Ed, p. 5)
2. Perfection: It is the stage where the
validity of the contract of sale is determined;
the moment when the parties come to agree
on the terms of the contract.
3. Performance/ Consummation: The
stage of consummation begins when the
parties perform their respective
undertakings under the contract culminating
in the extinguishment thereof. Sale by the
owner is valid as well as the transfer of title.
A sale by a non-owner is likewise valid
because it has passed the perfection stage;
however, the transfer of title is VOID
(Villanueva, Law on Sales, 2009, p. 135).
G. Sale Distinguished from Other
Contracts
1. Distinguished From Barter
Barter is a contract where there is an exchange
of a thing for another thing. If the consideration
is partly in money and partly in another thing,
the contract is either barter or sale (Art. 1638,
NCC). The contract shall be one of sale or barter
depending on the manifest intention of the
parties. If such intention is not clear:
a. The contract is barter if the value of the
thing given as part of consideration exceeds
the amount of the money;
b. The contract is one of sale if the amount of
money exceeds the value of the thing given
as part of the consideration (Art. 1468, NCC).
292 Center for Legal Education and Research
2. Distinguished From Contract For Piece
of Work:
a. If the contract is for the delivery at a certain
price of an article which the vendor in the
ordinary course of his business
manufactures or procures for the general
market, whether on hand at that time or
not, the contract is one of sale (Art. 1467,
NCC).
b. If the goods are to be manufactured
especially for the customer and upon his
special order, and not for the general
market, the contract is one for a piece of
work (Art. 1467, NCC). In short, if the thing
will not come into existence except upon the
order of a customer, the contract is one for
a piece of work.
3. Distinguished from Agency To Sell:
(1999 Bar)
a. In sale, the buyer, after delivery, normally
becomes the owner of the subject matter. In
agency to sell, the principal retains
ownership of the goods, even as it delivered
possession unto the dealer for resale to
customers, the price and terms of which
were subject to the principal‘s control (Ker &
C0., Ltd. v. Lingad, G.R. No. L-20871, April 30,
1971).
b. In sale, the buyer has the obligation to pay
the purchase price. In agency to sell, the
agent has no such obligation and his
obligation is to deliver to the principal the
price he obtains from the sale of the thing,
and if he does not succeed in selling it, he
returns it (Quiroga v. Parsons, G.R. No. L-
11491, August 23, 1918).
c. Lastly, one factor which most clearly
distinguishes agency form other legal
concepts is control; one person – the agent-
agrees to act under the control or direction
of another – the principal (Victorias Milling Co.
v. CA, G.R. No. 117356, June 19, 2000).
 Purple Notes
4. Distinguished From Contract to Sell
(1997 Bar):
Contract of Sale Contract to Sell
As to transfer of ownership
Ownership is Ownership is
transferred to the buyer transferred upon full
upon delivery of the payment of the
object to him. purchase price.
Note: Vendor has lost Note: Prior to full
and cannot recover payment, ownership is
ownership until and retained by the seller.
unless the contract is
resolved or rescinded
As to numbers of contracts
There is only one There are two
contract executed contracts:
between the seller and 1.The contract to sell.
the buyer. (Preparatory to sale)
2. The deed of absolute
sale. (The principal
contract is executed
after full payment of the
purchase price.)
As to payment as a condition
Non-payment of the Full payment of the
price is a resolutory price is a positive
condition. Vendor suspensive
loses ownership over condition.
the property and cannot Note: Failure to fully
recover it until and pay the price is not a
unless the contract is breach but an event
resolved or rescinded. that prevents the
obligation of the vendor
to convey title from
becoming effective (Uy
& Sons, Inc. v Valbueco
Inc., Gr no. 179594,
September 11, 2013).
The non payment of the
purchase price renders
the contract to sell
without force and effect
(Tumibay v Lopez, GR
No. 171692, June 3,
2013).
As to remedies available
1. Specific 1. Resolution
Performance 2. Damages
2. Rescission
3. Damages
(De Leon, Comments and Cases on Sales and Lease,
2005, p. 22)
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Civil Law
Importance of Distinctions Between
Contract to Sell and Conditional Contract
of Sale:
In a contract to sell, there being no previous
sale of the property, a third person buying such
property despite the fulfillment of the suspensive
condition such as the full payment of the
purchase price, cannot be deemed a buyer in
bad faith and the prospective buyer cannot seek
the relief of reconveyance of the property. There
is no double sale in such case. Title to the
property will transfer to the buyer after
registration because there is no defect in the
owner-seller‘s title per se, but the latter may be
sued for damages by the intending buyer (United
Muslim and Christian Urban Poor Association, Inc. v.
Bryc-V Development Corp., G.R. No. 179653, July 31,
2009) .
� In a conditional contract of sale, however,
upon the fulfillment of the suspensive
condition, the sale becomes absolute and
this will definitely affect the seller‘s title
thereto. In fact, if there had been previous
delivery of the subject property, the seller‘s
ownership or title to the property is
automatically transferred to the buyer such
that, the seller will no longer have any title
to transfer to any third person. Applying
Article 1544 of the Civil Code, second buyer
of the property who may have had actual or
constructive knowledge of such defect in the
seller‘s title, or at least was charged with the
obligation to discover such defect, cannot be
a registrant in good faith. Second buyer
cannot defeat the first buyer‘s title. In case
a title is issued to the second buyer, the first
buyer may seek reconveyance of the
property subject of the sale (Ibid.).
SUBJECT MATTER
A. Requisites of a valid subject matter,
Arts. 1459-1465, NCC:
1. Subject Matter is a Thing
a. Subject matter must be possible, that
is, within the commerce of men; (Art.
1348, NCC);
Bar Operations C ommissions 293
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Civil Law
b. Subject matter must be determinate
or, at least, determinable (Art. 1458,
1460, NCC);
c. Subject matter must be licit that is, it
should not be contrary to law, morals,
good customs, public order, or public
policy (Arts. 1347, 1409[1,4] NCC).; and
d. Vendor must have the right to transmit
ownership at the time of delivery.
2. Subject Matter is a Right
Subject matter must be transmissible
(e.g., right of usufruct, the right of conventional
redemption, credit).
Examples of intransmissible rights are the right
to vote, right to public office, marital and
parental rights, etc. (De Leon, Comments and
Cases on Sales and Lease, 2005, p. 26).
B. Particular Kinds
As to Existence:
1. Either existing or future goods (Art. 1462,
NCC);
a. Existing goods are those owned or
possessed by the seller at the time of
the perfection of the contract of sale.
b. There can be a sale of ―future goods‖
or goods to be manufactured, raised, or
acquired by the seller after the
perfection of the contract of sale (Art.
1462, NCC);
c. However, a contract for the sale or
purchase of goods/commodity to be
delivered at future time, if entered into
without the intention of having any
goods/commodity pass from one party
to another, but with an understanding
that at the appointed time, the
purchaser is merely to receive or pay
the difference between the contract and
the market price, is a transaction which
the law will not sanction, for being
illegal. And the loser may recover what
he has paid (Art. 2018, NCC; Onapal Phil.
Commodities, Inc. v. CA, G.R. No. 90707,
February 1, 1993).
294 Center for Legal Education and Research
2. Emptio rei speratae: Sale of a thing with
potential existence, (eg. Growing crops
subject to a suspensive condition that the
thing will come into existence. If the subject
matter does not come into existence, the
contract is deemed extinguished as soon as
the time expires or if it has become
indubitable that the event will not take place
(Art. 1461, NCC).
3. Emptio Spei: The sale of hope itself is
valid. Example: sale of a sweepstakes
ticket. Here, sale is effective even if the
thing does not come into existence.
However, the sale of a vain hope or
expectancy is void (Art. 1461, NCC), e.g.,
Sale of a lotto ticket which had already been
drawn and did not win.
4. Things subject to resolutory condition
– May be the object of a contract of sale
(Art. 1465, NCC). Upon the happening of the
condition, the contract is extinguished,
requiring the return of the price received by
the seller.
� General Rule: Ownership of the
subject matter is not material at the
time of the perfection of the sale. It is
sufficient that the seller has the ―right to
transfer the ownership thereof at the
time it is delivered‖ (Art. 1459, NCC).
� Exception: the seller must be the
owner of the thing sold in a foreclosure
sale. Foreclosure sale, though essentially
―forced sale‖, is still covered by Art.
1458 of NCC (Cavite Development Bank v.
Spouses Lim, G.R. No. 131679, February 1,
2000).
Things Must Be Determinate:
1. A thing is determinate when it is particularly
designated or physically segregated from all
others of the same class (Art. 1460[1], NCC).
2. The requisite that a thing be determinate is
satisfied if at the time the contract is
entered into, the thing is capable of being
made determinate without the necessity of a
 Purple Notes
new or further agreement between the
parties (Art. 1460[2], NCC; 1349, NCC).
� Sale involving a generic thing is allowed
if at the time the contract is entered
into, the thing is capable of being made
determinate and without the necessity
of a new or further agreement between
the parties. (Villanueva, Law on Sales,
2009, p. 2-3)
3. Sale of undivided share in mass: In case of
fungible goods, there may be a sale of an
undivided share of a specific mass, though
the seller purports to sell and the buyer to
buy a definite number, weight or measure of
the goods in mass, and though the number,
weight or measure if the goods in mass is
undetermined (Art. 1464, NCC).
Consequences:
a. If the mass contains less than the
number, weight or measure bought, the
buyer becomes the owner of the whole
mass and the seller is bound to make
good the deficiency from goods of the
same kind and quality, unless a contrary
intent appears (Art. 1464, NCC);
b. If otherwise, there shall be co-
ownership over the mass (Art. 1464,
NCC);
c. Sale of undivided interest: The sole
owner of a thing may sell an undivided
interest therein (Art. 1463, NCC).
Thing must be licit:
A contract whose object is contrary to law,
morals, good customs, public order or public
policy is void (Art. 1409[1], NCC).
1. All things which are outside the commerce
of men cannot be the object of a contract
(Art. 1347[1], NCC).
2. Impossible things cannot be the object of
contracts (Art. 1348, NCC).
3. No contract may be entered into upon
future inheritance except in cases expressly
authorized by law (Art. 1347[2], NCC).
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Civil Law
PRICE OR CONSIDERATION
Price and Other Considerations
Price - signifies the sum stipulated as the
equivalent of the thing sold and also every
incident taken into consideration for the fixing of
the price put to the debit of the buyer and
agreed to by him (Inchausti & Co. v. Cromwell, 20
Phil. G.R. No. 6584, October 16, 1911).
Requisites for Valid Price:
1. It must be real;
2. It must be in money or its equivalent,
(i.e., it must be valuable consideration); and
3. It must be certain or ascertainable.
(Villanueva, Law on Sales, 2009, p. 98-99)
Price Must Be Real:
Price is ―real‖ when at the perfection of the sale,
there is legal intention on the part of the buyer
to pay the price, and legal expectation on the
part of the seller to receive such price as the
value of the subject matter he obligates himself
to deliver (Villanueva, Law on Sales, 2009, p. 99).
Effect When Price is ―Simulated‖
General Rule: When the price is simulated
because neither party to the Deed of Sale had
any intention whatsoever that the amount will
be paid, the sale is void (Yu Bun Guan v. Ong,
G.R. No. 144735, October 18, 2001).
Exception: If it can be shown to have been in
reality a donation, or some other contract (Art.
1471, NCC).
Effect When Price is ―False‖ / Relatively
Simulated
When the parties intended to be bound by the
contract except that it did not reflect the actual
purchase price of the property, the Court ruled
that there was only a relative simulation of the
contract which remained valid and
enforceable, but subject to reformation
(Macapagal v. Remorin, G.R. No. 158380, May 16,
2005).
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 Purple Notes
Civil Law
Price Must be in Money or its Equivalent
Meaning of ―Equivalent‖
Article 1458 ―requires that ‗equivalent‘ be
something representative of money, e.g., a
check or draft, citing Manresa, to the effect that
services are not the equivalent of money insofar
as said requirement is concerned and that a
contract is not a true sale where the price
consists of services or prestation (Bagnas v. Court
of Appeals, G.R. No. L-38498, August 10, 1989).
When Price Consists Partly of Money and
Partly in Another Thing
The transaction shall be characterized by the
manifest intention of the parties. If such
intention does not clearly appear, it shall be
considered a barter if the value of the thing
given as a part of the consideration exceeds the
amount of the money or its equivalent;
otherwise, it is a sale (Art. 1468, NCC).
Must be Certain or Ascertainable
In order that the price may be considered
certain, it shall be sufficient that it be so with
reference to another thing certain, or that the
determination thereof be left to the judgment of
a specified person or persons (Art. 1469, NCC).
Effect When Price Unilaterally Fixed by
One of the Contracting Parties
General Rule: When without consent of the
other party, no meeting of mind. Hence, the sale
is inefficacious (Paras, Civil Code of the Philippines
Annotated, 2008, p. 34).
Exception: If the price fixed was accepted by
the other party, sale is perfected (Art. 1474, NCC).
Effect When the Price if Fixed by Third
Person Designated
General Rule: Price fixed is binding upon the
parties.
296 Center for Legal Education and Research
Exception: When the third person acted in bad
faith or by mistake, the court may fix the price
(Art. 1469, NCC).
Gross Inadequacy of Price
General Rule: It does not affect the validity of
sale.
Exceptions:
1. When consent is vitiated (Art. 1470, NCC);
2. Parties intended donation or some other act
or contract (Art. 1470, NCC);
3. Where price so low as to be ―shocking to the
conscience‖ (National Bank v. Gonzales, 45 G.R.
No. L-21026, November 23, 1921).
4. Where seller is given the right to repurchase
- when a sale is made at public auction,
upon the theory that the lesser the price,
the easier it is for the owner to effect the
redemption (De Leon v. Salvador, G.R. No. L-
30871, December 28, 1970).
STAGES OF CONTRACT OF SALE
I. PREPARATION / POLICITACION
Meaning of Policitacion
This is a unilateral promise to buy or to sell
which is not accepted. This produces no juridical
effect, and creates no legal bond. This is a mere
offer, and has not yet been conversed into a
contract. (Raroque v. Maiquez, et al., [C.A.] 37 O.G.
1911)
Rules on Offer and Counter-offer
1. An offer, prior to its acceptance, is subject
to the complete will of the offeror (Art. 1320,
NCC) ;
2. An offer may be withdrawn or destroyed by
the offeror prior to its acceptance (Art. 1323,
NCC) ;
3. In withdrawing the offer, it is not necessary
that the offeree learns of the withdrawal
(Laudico v. Arias, G.R. No. 16530, March 31,
1922);
4. Conditional acceptance will constitute a
counteroffer which must be accepted
 Purple Notes
absolutely in order to give rise to a valid
sale. (Art. 1319, NCC).
Option Contract; Concept; Effects
Meaning of Option Contract
Option Contract as a privilege existing in one
person, for which he had paid a consideration
and which gives him the right to buy certain
merchandise or certain specified property, from
another person, if he chooses, at any time
within the agreed period at a fixed price
(Enriquez de la Cavada v. Diaz, G.R. No. L-11668,
April 1, 1918).
Nature of Option Contracts
1. It is a preparatory contract, separate and
distinct from the main contract itself
(subject matter of the option) which the
parties may enter into upon the
consummation of the option;
2. An option must be supported by a
consideration distinct from the price (De
Leon, Comments and Cases on Sales and Lease,
2005, p. 82).
Obligations of the Offeror in Option
Contracts:
1. Personal obligation not to offer to any third
party the sale of the object of the option
during the option period;
2. Personal obligation not to withdraw the offer
or option during option period; and
3. Obligation to hold the subject matter for
sale to the offeree in the event that offeree
exercises his option during the option period
(Vazquez v. Ayala Corp., G.R. No. 149734,
November 19, 2004)
Effect When Option is Without Separate
Consideration
Option contract would be void, as a contract,
but would still constitute a valid offer; so that if
the option is exercised prior to its withdrawal,
that is equivalent to an offer being accepted
prior to withdrawal and would give rise to a valid
2018
Civil Law
and binding sale (De Leon, Comments and Cases on
Sales and Lease, 2005, p. 83).
Right of First Refusal; Concepts
It is a contractual grant on the part of the owner
that if he decides to sell the property in the
future, he would first negotiate its sale to the
promisee. (Villanueva, Law on Sales, 2009, p. 156)
In the case of Equatorial Realty Dev., Inc. v.
Mayfair Theater, Inc., G.R. No. 106063,
November 21, 1996 the Court ruled that a
contract of lease which gave the lessee a 30-day
exclusive option to purchase the leased property
in the event the lessor should desire to sell the
same, such contractual stipulation which does
not provide for a price certain nor the terms of
payment, actually grants a right for first refusal
and is not an option clause or an option
contract.
Right of First Refusal Must be in Writing:
When right of first refusal is not stipulated in the
lease contract, it cannot be exercised, and
verbal grants of such right cannot be
enforceable since the right of first refusal must
be clearly embodied in a written contract
Effect of Sale of Property in Violation of
Right of First Refusal:
A contract of sale entered into in violation of a
right of first refusal of another person, while
valid, is rescissible. A third-party who bought
the property from the seller who violated the
right of first refusal granted to the lessee of the
property cannot claim to be a stranger to the
arrangement and not a proper party in the
action for rescission since such buyer actually
steps into the shoes of the owner-lessor of the
property by virtue of his purchase and assumed
all the obligations of the lessor under the lease
contract, especially when the complaint prayed
for the annulment of the sale of the property to
him (Parañaque Kings Enterprises, Inc. v. Court of
Appeals, G.R. No. 111538, February 26, 1997).
Q: In a 20-year lease contract over a
building, the lessee is expressly granted a
Bar Operations C ommissions 297
 Purple Notes
Civil Law
right of first refusal should the lessor Manila Metal Container v. PNB, G.R. No. 166862,
decide to sell both the land and building. December 20, 2006)
However, the lessor sold the property to a
third person who knew about the lease Earnest Money; Concepts
and in fact agreed to respect it.
Consequently, the lessee brings an action Earnest money, called ―arras,‖ is something of
against both the lessor-seller and the value to show that the buyer was really in
buyer (a) to rescind the sale and (b) to earnest, and given to the seller to bind the
compel specific performance of his right of bargain. (See 14 Words and Phrases, p. 23). It
first refusal in the sense that the lessor is part of the purchase price, hence, is a proof of
should be ordered to execute a deed of the perfection of the contract (Art. 1482, NCC).
absolute sale in favor of the lessee at the
same price. The defendants contend that Earnest Money distinguished from Option
the plaintiff can neither seek rescission of Money:
the sale nor compel specific performance
of a "mere" right of first refusal. Decide Earnest Money Option Money
As to Money Given
the case. (1998 Bar)
Forms part of purchase Money given as a
Price distinct consideration
A: Yes, the action for rescission of the offending for an option contract
sale and specific performance of the right of first As to Perfection
refusal will prosper. In a case with similar facts Given only where there Applies to a
(Equatorial Realty Dev., Inc. v. Mayfair Theater, is already a sale sale not yet perfected
Inc., supra), the Court ruled to sustains both Obligation of the buyer
action to rescind the offending sale and the buyer is bound to pay Buyer is not required to
specific performance because the buyer in the the balance buy but may
subsequent sale knew the existence of right of even forfeit it
first refusal, hence in bad faith. depending on the terms
of the option
II. PERFECTION OF CONTRACT OF SALE
III. CONSUMMATION OF CONTRACT OF
Being a consensual contract, contract of sale is SALE
perfected at the moment there is a meeting of
minds upon the thing which is the object of the Consummation commences when the parties
contract and upon the price. (Art. 1475, NCC) perform their respective undertakings under the
contract of sale, culminating in the
Exception: When the sale is subject to a extinguishment of the contract (First Optima
Realty Corporation v. Securitron Security Services,
Suspensive Condition (People‘s Homesite v. CA,
Inc., G.R. No. 199648, January 28, 2015).
G.R. No. L-61623, December 26, 1984).
Delivery of the thing together with the payment
Requirements:
of the price, marks the consummation of the
contract of sale. (Phil. National Bank v. Ling, G.R.
1. When parties are face to face – when No. L-26937, October 5, 1927).
there is absolute acceptance of an offer
2. When thru correspondence/telegram –
when the offeror receives or had knowledge of 2. PARTIES TO A CONTRACT OF SALE
the acceptance
1. Seller – one who sells and transfers the
NOTE: Qualified acceptance is a mere counter- thing and ownership to the buyer;
offeror which needs to be absolutely accepted to 2. Buyer – one who buys the thing upon
give rise to perfected contract of sale (Art. 1319; payment of the consideration agreed upon

298 Center for Legal Education and Research

 Purple Notes
a. Capacity of Parties, ARTS. 1489-1492,
NCC
General Rule: All persons, whether natural or
juridical, who can bind themselves, have legal
capacity to buy and sell (Art. 1489, par. 1, NCC).
Exception - Those incapacitated to enter
into contracts:
1. Absolute incapacity
2. Relative incapacity
3. Specific incapacity/Special disqualifications
Exception to the exception:
1. Where necessaries are sold and delivered to
a minor or other person without capacity to
act, he must pay a reasonable price
therefor.
2. In case of sale between spouses:
a. when separation of property was agreed
upon in the marriage settlements; or
b. when there has been a judicial
separation of property agreed upon
between them
Absolute Incapacity (Arts. 1327, 1397,
1399, NCC):
1. Minors;
2. Insane or Demented;
3. Deaf-mutes who do not know how to write;
4. Civil Interdiction;
a. Judicially-declared Incompetents
Prodigals
b. Imbeciles
c. Absence & presumption of death
d. Persons not of unsound mind but by
reason of age, disease, weak mind, and
other similar causes, cannot take care of
themselves and manage their property
without outside aid
� Contracts entered into during intervals
by insane or demented persons are
generally valid (Art. 1328, NCC); whereas,
those entered into in a state of
drunkenness, or during hypnotic spell,
are merely voidable (Art.1328, NCC).
2018
Civil Law
Contracts entered into by such legally
incapacitated persons are not void, but
merely voidable, subject to annulment
or ratification (Art. 1393, NCC).
Capacitated person CANNOT file an action
for annulment using as basis the
incapacity of the incapacitated party
He is disqualified from alleging the incapacity of
the person whom he contracts (Art. 1397, NCC)
Obligation to make restitution in a defective
contract, where such defect consists in the
incapacity of a party .
General Rule: The incapacitated person is not
obliged to make any restitution.
Exception: Insofar as he has been benefited by
the thing or price received by him (Art. 1399,
NCC).
Relative Incapacity:
a. Married Persons - Husband and Wife (Art.
1490, NCC)
General Rule: Cannot sell property to each
other (null and void)
Exceptions:
a. Separation of property in marriage
settlement, OR
b. Judicial separation of property. (Art.
1490, NCC)
Between Common Law Spouses - also
null and void.
In Calimlim-Canullas v. Fortun, the Court
decided that sale between common law
spouses is null and void because Art. 1490
prohibits sales between spouses to prevent
the exercise of undue influence by one
spouse over the other, as well as to protect
the institution of marriage. The prohibition
applies to a couple living as husband and
wife without the benefit of marriage,
otherwise, the condition of those incurred
guilt would turn out to be better than those
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Civil Law
in legal union (Calimlim-Canullas v. Fortun, et.
al., G.R. No. L-57499, June 22, 1984).
But when the registered property has been
conveyed subsequently to a third-party
buyer in good faith and for value, then
reconveyance is no longer available to
common-law spouse-seller, since under the
Torrens system every buyer has a right to
rely upon the title of his immediate seller
(Cruz v. CA, G.R. No. 120122, Nov. 6, 1997).
b. Alienage (Art. 39, NCC)
General Rule: Aliens are disqualified from
purchasing or acquiring lands.
Exception: If acquisition is through
hereditary succession
c. Trusteeship
Special Disqualifications (Arts. 1491-1492,
NCC)
1. Agents
General Rule: Cannot purchase or acquire
property whose administration or sale was
entrusted to them
Exception: Principal gives consent.
2. Guardian
Cannot purchase property of person under
his guardianship
Rationale: Guardianship is a trust of the
highest order, and the trustee cannot be
allowed to have any inducement or neglect
his ward‘s interest (Phil Trust Co v. Roldan,
G.R. No. L-8477, May 31, 1956).
3. Executors and Administrators
Cannot acquire or purchase property of
estate under their administration.
4. Public Officers and Employees
300 Center for Legal Education and Research
Cannot acquire or purchase property of
State/any of its subdivisions, GOCC or
administration, the administration of which
was entrusted to them. Includes judges and
government experts who in any manner
whatsoever take part in the sale.
5. Lawyers
Cannot acquire or purchase property or
rights in litigation in which they take part by
virtue of their profession.
Rationale: Lawyers may have undue
influence over client; greed may get the
better of the sentiments of loyalty and
disinterestedness (Valencia v Cabanting, A.C.
No. 1302, 1391, 1543, April 26, 1991).
Prohibition is definite and permanent and
cannot be cured by ratification (Rubias v
Batiller, G.R. No. L-35702, May 29, 1973).
Exceptions: An assignment to a lawyer by
his client of an interest in the property does
not violate Art. 1491, where:
a. A judgment has been rendered and has
become final; and
b. In case of contingency fee
arrangements: the interest of the lawyer
may be annotated as an adverse claim
on the property awarded to hi client
(Director of Lands v. Ababa, G.R. No. L-
26096, February 27, 1979).
6. Justices, Judges, prosecuting
attorneys, clerks and other officers and
employees connected with the
administration of justice
Cannot acquire or purchase property or
rights in litigation or levied upon on
execution before the court within which
jurisdiction or territory they exercise their
respective functions.
Rationale: to prevent fraud and to
surround their profession with prestige.
Prohibition applies only on sales or
assignment during the pendency of litigation
 Purple Notes
involving the property (Macariola v Asuncion,
A.M. No. 133-J, May 31, 1982).
Sale to a Minor
Rule: The contract is voidable. But where
necessaries are sold and delivered to a minor or
other person without capacity to act, the
incapacitated person must pay a reasonable
price therefor (Art. 1489 [2], NCC).
Necessaries cover everything indispensable for
sustenance, dwelling, clothing, medical
attendance, education, and transportation (Art.
194, FC).
Sale between Husband and Wife:
General Rule: Sale between husband and wife
is void (Art. 1490, NCC; Camia De Reyes v. Reyes
de Ilano, G.R. No. L-42092, October 28, 1936). The
prohibition applies –
a. To sales in legal redemption, compromise
and renunciations (Art. 1492, NCC); and
b. To common-law spouses (Calimlim-Canullas v.
Fortun, G.R. No. L-57499, June 22, 1984).
Exception: The sale between them is not
prohibited if they are governed by a regime
of complete separation of property, either
pursuant to a marriage settlement or a decree
of the court obtained in legal separation or
in petition for judicial separation of
property (Art. 1490, NCC).
Who may question validity of sale:
a. The heirs of the spouses who have been
prejudiced, prior creditors and the State
when it comes to the payment of the proper
taxes due on the transactions (Medina v. CIR,
G.R. No. L-15113, January 28, 1961).
b. However, the spouses, since they are parties
to an illegal act, cannot avail themselves of
the illegality of the sale on the ground of in
pari delicto and creditors who became such
only after the prohibited sale (Medina v. CIR,
supra).
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Sale to Guardian of Ward’s Property:
Rule: Sale of property belonging to the ward in
favor of the guardian is void (Art. 149[1], NCC;
Philippine Trust Co. v. Roldan, G.R. No. L-8477, May
31, 1956). But after the inhibition has ceased, a
new contract may be executed which will be
valid from the time of the execution of the new
contract (Rubias v. Batiller, G.R. No. L-35702, May
29, 1973).
The prohibition applies to the following:
a. Even if the sale is at a public or judicial
auction, either in person or through the
mediation of another (Art. 1491, NCC);
b. To sales in legal redemption, compromises
and renunciations (Art. 1492, NCC).
Sale to Agent of Principal’s Property:
General Rule: The agent cannot acquire
property of the principal entrusted to him for
sale or under his administration (Art. 1491 [2],
NCC). Such sale is void if made without the
consent of the principal (Gregorio Araneta, Inc.
v. Tuazon de Paterno, G.R. No. L-7377, January 31,
1956). But after the inhibition has ceased (or
after the termination of the agency), a new
contract may be executed which will be valid
from the time of the execution of the new
contract (Rubias v. Batiller, G.R. No. L-35702, May
29, 1973).
Exception: But if the principal consented to the
sale, the same is valid (Art. 1491[2], NCC; Cui v.
Cui, G.R. No. L-18727, August 31, 1964).
Sale to executors/administrators of
property under his administration:
Rule: The sale in favor of executor or
administrator of property under his
administration is void (Art. 1491[3], NCC).
Qualifications:
1. Prohibition applies to sale of specific
property under administration. But after the
inhibition has ceased (or after the
termination of the administration), a new
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contract may be executed which will be valid
from the time of the execution of the new
contract (Rubias v. Batiller, G.R. No. L-35702,
May 29, 1973).
2. Prohibition does not apply to acquisition of
hereditary rights because these hereditary
rights are not part of the property under his
administration (Naval v. Enriquez, G.R. No.
1318, April 12, 1904).
Sale to public officers of property under
his administration:
� Public officers and employees cannot
acquire the property of the State or of any
political subdivision, or any GOCC, or
institution, the administration of which has
been entrusted to them; including judges
and government experts, who, in any
manner whatsoever takes part in the sale.
(Art. 1491[4], NCC) Such contract is void.
(Maharlika Broadcasting Corp. v. Tagle, G.R. No.
L-65594, July 9, 1986)
Sale of property under litigation:
Justices, judges, prosecuting attorneys, clerks of
courts, and other officers and employees
connected with the administration of justice,
cannot acquire the property and rights in
litigation or levied upon an execution‘ before the
court within whose jurisdiction or territory they
exercise their respective functions; lawyers
cannot likewise acquire property and rights
which may be the object of any litigation of
which they may take part by virtue of their
profession (Art. 1491[5], NCC).
Applicability of Prohibition: Prohibition
applies ---
a. Even if the sale is at a public or judicial
auction, either in person or through the
mediation of another (Art. 1491, NCC).
b. To sales in legal redemption compromises
and renunciations (Art. 1492, NCC).
c. Only during the period of litigation. Hence,
in a case where the judge acquired the
property after the decision had long become
final, there is said to be no violation
302 Center for Legal Education and Research
(Macariola v. Asuncion, A.M. No. 133-J, May 31,
1982).
When prohibition does not apply:
a. It does not apply to the sale of a parcel of
land acquired by a client to satisfy a
judgment in his favor to his attorney, as
long as the property was not the subject of
the litigation (Daroy v. Abecia, A.C. No. 3046,
October 26, 1998).
b. It does not apply to a contingent fee based
on the value of the property involved in
litigation because the transfer or assignment
of the property in litigation takes effect only
after the finality of a favorable judgment.
(Recto v. Harden, G.R. No. L-6897, November 29,
1956; Vda. De Laig v. CA, G.R. No. L-26882; April
5, 1978; Director of Lands v. Ababa, G.R. No. L-
26096, February 27, 1979)
3. OBLIGATIONS OF THE VENDOR
General Obligations of the Vendor:
1. Transfer the ownership
2. Deliver the thing sold (Arts. 1458 and 1495)
3. Deliver the fruits and accessories (Arts. 1164,
1166, and 1537);
4. Make Warranties (Arts. 1545 - 1581) - can be
waived or modified; warranty is not an
essential element of the contract of sale;
5. Take care of the thing, pending delivery,
with diligence of a good father of a family
unless law or parties stipulate another
standard (Art. 1163);
6. Pay for the expenses for the execution and
registration of the sale, unless there is
stipulation to the contrary
7. Accord the buyer the right to examine the
goods (Art. 1584);
8. Enter into contract with the carrier on behalf
of the buyer as may be reasonable under the
circumstances (Art. 1523);
9. Notify the buyer regarding necessity to
insure goods if it is usual to insure them
OBLIGATION OF THE SELLER TO
TRANSFER OWNERSHIP
Not required at the time of the perfection of the
contract, but required only at the time of
 Purple Notes
delivery (Art. 1459, NCC). Hence, a perfected
contract of sale cannot be challenged on the
ground of the seller‘s non-ownership of the thing
sold at the time of the perfection of the contract
of sale (Quijada v. CA, G.R. No. 126444, December
4, 1998; Cavite Development Bank v Sps. Lim G.R.
No. 131679, February 1, 2000).
Place of Delivery
The following are the rules shall be observed in
determining the place of delivery of goods sold:
1. Where there is an agreement, express or
implied, the place of delivery is that agreed
upon;
2. In the absence an agreement, the place is
that determined by usage of trade;
3. Where there is no agreement and there is
also no prevalent usage, the place of
delivery is the seller’s place of business;
4. In any other case, the place of delivery is
the seller’s residence; and
5. In case of specific goods, which to the
knowledge of the parties at the time the
contract was made were in some other
place, that place is the place of delivery, in
the absence of any agreement or usage of
trade to the contrary (Art. 1521, NCC).
� Where the goods at the time of sale are in
the possession of a third person, the seller
has not fulfilled his obligation to deliver to
the buyer unless and until such third
person acknowledges to the buyer that he
holds the goods on the buyer‘s behalf (Art.
1521, NCC).
When Thing is Deemed Delivered
The thing sold shall be understood as delivered,
when it is placed in the control and possession
of the vendee (Art. 1497, NCC).
Delivery – the absolute giving up of the control
and custody of the property on the part of the
vendor, and the assumption of the same by the
vendee (Equatorial Realty Dev. V Mayfair Theatre,
G.R. No. 106063, November 21, 1996).
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Types of Delivery:
Delivery may be effected in any of the following
ways or modes:
1. by actual or real delivery (Art. 1497, NCC)
2. by constructive or legal delivery (Arts.
1498-1501, NCC); or
3. by delivery in any other manner signifying an
agreement that the possession is transferred
to the vendee. (De Leon, Comments and Cases
on Sales and Lease, 2005, p. 166).
Actual Delivery; Concept
Thing sold is placed under the control and
possession of the vendee (Art. 1497, NCC) or his
agent (Alliance Tobacco Corp., Inc. v. Phil. Virginia
Tobacco Administration, G.R. No. L-66944, November
13, 1989).
Constructive Delivery; Concepts; Types
Constructive delivery is a general term
comprehending all those acts which, although
not
conferring physical possession of the thing, have
been held by construction of law equivalent to
acts of real delivery (Banawa v. Mirano, G.R. No. L-
24750, May 16, 1980).
Constructive delivery may be effected in any of
the following ways or modes:
1. by the execution of a public instrument
(Art. 1498, par. 1., NCC);
2. by symbolical tradition or traditio
symbolica (ibid., par. 2);
3. by traditio longa manu (Art. 1499, NCC);
4. by traditio brevi manu (Ibid.);
5. by traditio constitutum possessorium
(Art. 1500, NCC); or
6. by quasi-delivery or quasi-traditio (Art.
1501, NCC).
I. Execution of Public Instruments
When the sale of movable or immovables is
made through a public instrument, the execution
thereof shall be equivalent to the delivery of the
thing which is the object of the contract, if from
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Civil Law
the deed the contrary does not appear or cannot
clearly be inferred (Art. 1498, NCC).
Sale of thing not subject to control of
vendor:
Delivery by the execution of a public instrument
is equivalent to actual delivery only where the
thing is subject to the control of the vendor and
there is no impediment that may prevent the
passing of the property from the hands of the
vendor into those of the vendee. The thing sold
must be placed in his control in order that it can
be said that delivery has been effected (Addison
v. Felix Tioco, G.R. No. L-12342, August 3, 1918).
Execution of Special Power of Attorney to
Agent; Not a Delivery
A special power of attorney authorizing the
agents to execute a deed of sale over the
property can by no means be intepreted as
delivery or conveyance of ownership over said
property (Torcuator v. Bernabe, G.R. No. 134219,
June 8, 2005).
II. Symbolical Tradition or Traditio
Symbolica
As to movable property, its delivery may also be
made by the delivery of the keys of the place or
depository where it is stored or kept (Art. 1498,
NCC).
III. Traditio Longa Manu
This mode of delivery takes place by the mere
consent or agreement of the contracting parties
as when the vendor merely points to the thing
sold which shall thereafter be at the control and
disposal of the vendee (De Leon, Obligations and
Contracts, 2005, p. 181).
IV. Traditio Brevi Manu
This mode of legal delivery happens when the
vendee has already the possession of the thing
sold by virtue of another title as when the lessor
sells the thing leased to the lessee. Instead of
turning over the thing to the vendor so that the
latter may, in turn, deliver it, all these are
304 Center for Legal Education and Research
considered done by action of law (De Leon,
Obligations and Contracts, 2005, p. 181).
V. Constitutum Possessorium
This mode of constructive delivery takes effect
when at the time of the perfection of the sale,
the seller held possession of the subject matter
in the concept of owner, and pursuant to the
contract, the seller continues to hold physical
possession thereof no longer in the concept of
an owner, but as a lessee or any other form of
possession other than in the concept of owner
and pursuant to sale, he would now hold
possession in the concept of an owner
(Villanueva, Law on Sales, 2009, p. 230).
VI. Quasi-traditio
Mode of delivery of incorporeal things or rights.
The delivery to a person of a negotiable
document of title in which it is stated that the
goods referred to therein will be delivered to the
bearer amounts to delivery of the goods to such
person.
Delivery of Incorporeal Thing
Delivery of incorporeal thing is effected:
1. by the execution of a public instrument; or
2. when that mode of delivery is not
applicable, by the placing of the titles of
ownership in the possession of the vendee;
or
3. by allowing the vendee to use his rights as
new owner with the consent of the vendor.
Double Sales; Concept
There is double sale when same property is sold
by the same vendor to different vendees (Art.
1544, NCC)
Double Sales; Requisites
Requisites of Double Sales under Art. 1544 of
NCC:
1. The two (or more) sales transactions must
constitute valid sales;
 Purple Notes
2. The two (or more) sales transactions must
pertain to exactly the same subject matter;
3. The two (or more) buyers at odds over the
rightful ownership of the subject matter
must each represent conflicting interests;
and
4. The two (or more) buyers at odds over the
rightful ownership of the subject matter
must each have bought from the very same
seller (Cheng v. Genato, G.R. No. 129760,
December 29, 1998).
Rules in Case of Double Sales
The conflicting rights of said vendees in case of
double sales shall be resolved in accordance
with the following rules:
1. When subject matter is movable - the
ownership shall be acquired by the vendee
who first takes possession in good faith
(Art. 1544, NCC; Villa Rey Transit, Inc. v. Ferrer,
G.R. No. L-23893, October 29, 1968).
2. When subject matter is immovable
a. Registration in good faith: The
vendee who first registers the sale in
good faith in the Registry of Property
has a preferred right over another who
has not registered his title even if the
latter is in actual possession of the
immovable property.
b. Possession in good faith: In the
absence of registration, the vendee who
first takes possession in good faith; and
c. Oldest title in good faith: In the
absence of both registration and
possession, the vendee who presents
the oldest title in good faith.
� Art. 1544 does not apply to land
application under the Torrens System.
Concept of Purchaser in Good Faith
He is deemed a possessor in good faith who is
not aware that there exists in his title or mode
of acquisition any flaw which invalidates it (Art.
526, NCC).
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Civil Law
Effect if seller is not the owner at the time
of delivery:
The seller is liable for damages for breach of his
obligation to transmit ownership to the buyer.
Sale by a Person Having a Voidable Title
General Rule: In a sale by the non-owner, the
buyer acquires no better title to the goods than
the seller had (he merely steps into the shoes of
the seller)
Exceptions: (True Owner Cannot Recover):
1. Owner is estopped or precluded by his
conduct (Art. 1505, NCC);
2. Sale made by the registered or apparent
owner in accordance with registration laws
(Art. 1505, NCC);
3. Sales sanctioned by judicial or statutory
authority (Art. 1505, NCC);
4. Purchases in a merchants store, fairs or
markets; the thing must be on display to
make it part of the goods for sale to bar
recovery by the true owner (Art. 1505, NCC);
5. When a person who is not the owner sells
and delivers a thing, and subsequently
acquires title thereto (Art. 1434, NCC);
6. When the seller has a voidable title which
has not been avoided at the time of the sale
(Art. 1506, NCC)
7. Sale by co-owner of whole property or a
definite portion thereof;
8. Special rights of unpaid seller (Arts. 1526-
1533, NCC).
� When a non-owner who sells and
delivers a thing subsequently acquires
title thereto, the title passes by
operation of law to the buyer (Art. 1434,
NCC).
4. OBLIGATIONS OF THE VENDEE
General Obligations of Vendee:
1. Payment of price;
2. Accepting the delivery of thing sold; and
3. Bear the expenses for the execution and
registration of the sale and putting the
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Civil Law
goods in a deliverable state, if such is the
stipulation (Art. 1488, NCC).
OBLIGATION TO PAY PRICE:
1. As to time and place: Must pay at the time
and place stipulated in the contract. If no
stipulation, at the time and place of the delivery
of the thing sold (Art. 1582, NCC).
2. Liability for interest: For the period
between delivery and payment of price, in
the following cases-
a. If stipulated
b. If thing sold and delivered produced
fruits and income; or
c. If buyer is in default, from time of
judicial or extrajudicial demand for
payment of price (Art. 1589, NCC).
OBLIGATION TO ACCEPT DELIVERY:
1. Time and place: The vendee is bound to
accept delivery at the time and place
stipulated in the contract. If not stipulated,
at time and place of the delivery of thing
sold (Art. 1582, NCC).
2. Rule in delivery of goods by
installment. Buyer cannot be compelled to
accept delivery of goods by installment,
unless otherwise agreed upon (Art. 1583,
NCC).
Rule on right of buyer to examine:
1. If not previously examined by buyer –
if no stipulation to contrary, delivery is not
deemed accepted unless buyer has
reasonable opportunity to examine the
delivered goods (Art. 1584 [1], NCC).
2. Buyer has, upon request and unless there is
contrary agreement, the right to examine
the goods when seller tenders delivery of
the same (Art. 1584 [2], NCC).
3. If goods are delivered to carrier by seller
upon terms that goods are not to be
delivered by carrier to buyer until the latter
has paid the price, buyer is not entitled to
examine prior to payment of price, unless
there is an agreement or usage of trade
306 Center for Legal Education and Research
permitting such examination (Art. 1584 [3],
NCC).
Circumstances indicating acceptance of
goods:
1. When buyer intimates to the seller that he
has accepted them;
2. When goods have been delivered to buyer
and he does any act in relation to them
which is inconsistent with the ownership of
the seller; or
3. When, after the lapse of a reasonable time,
buyer retains the goods without intimating
to seller that he has rejected them (Art.
1585, NCC).
Effect of acceptance on seller’s breach:
1. Seller remains liable for damages or other
legal remedy for breach of any promise or
warranty in the contract of sale, in the
absence of agreement to the contrary.
2. But the buyer must give notice to the seller
of such breach within a reasonable time
after the buyer knows, or ought to know of
such breach; otherwise, the seller is not
liable (Art. 1586, NCC).
Effect of refusal to accept delivery:
If refusal is justified –
1. Buyer is not bound to return goods to seller
but he must notify seller of his refusal;
2. If buyer‘s refusal is not justified, entitled
thereto passes to him from the moment
goods are placed at his disposal (Art. 1588,
NCC).
Other Obligations of the Buyer
1. Duty of buyer to take care of goods without
obligation to return (Art. 1587, NCC);
2. To be liable for a depositary if he voluntarily
constitutes himself as such (Art. 1587, NCC);
and
3. Pay interest for the period between the
delivery of the thing and the payment of the
price in the following circumstances:
a. Should it have been so stipulated;
b. Should the thing sold and delivered
produce fruits or income;
 Purple Notes
c. Should he be in default, from the time
of judicial or extrajudicial demand for
the payment of the price (Art. 1589,
NCC).
5. TRANSFER OF OWNERSHIP
When Ownership is Transferred:
General Rule: The ownership of the thing sold
is acquired by the vendee from the moment it is
delivered to him in any of the ways specified in
articles 1497 to 1501, or in any other manner
signifying an agreement that the possession is
transferred from the vendor to the vendee (Art.
1469).
Exceptions: When ownership will not transfer
despite delivery:
1. In case of express reservation, such as
when ownership will not transfer until
certain conditions are fulfilled (Art. 1503,
NCC);
2. In case when goods are delivered to the
buyer ―on sale or return‖ (Art. 1502, NCC);
3. In case when goods are delivered to the
buyer ―approval, trial, satisfaction, or
acceptance‖ (Art. 1502, NCC).
Sale is a Title and not a Mode of Acquiring
Ownership: It only constitutes the legal basis
by which to affect dominion or ownership.
Therefore, sale by itself does not transfer or
affect ownership. The most that it does is to
create the obligation to transfer ownership. It is
delivery that transfers ownership (Villanueva, Law
on Sales, 2009 ed., p.15).
6. RISK OF LOSS
Perfection of Contract of Sale:
When perfected: Contract of sale is
consensual (Buenaventura v. CA, G.R. No. 127358,
March 31, 2005). Hence, it is perfected at the
moment when there is a meeting of the minds
upon the thing, which is the object of the
contract, and upon the price (Art. 1474, 1st par.,
NCC).
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Civil Law
Effect of earnest money:
a. When earnest money is given, it shall be
considered part of the price and proof
of the perfection of the contract
(Art. 1482, NCC).
b. And it in effect exempts the sale from
the requirement of the Statute of
Frauds. Recall that the Statute of Frauds
does not apply when the contract has
already been performed, either partial or
complete (De Leon, Comments and Cases
on Sales and Lease, 2005, p. 115).
Effect of perfection:
General Rule: From that moment on, the
parties may reciprocally demand
performance, subject to the provisions of
the law governing the form of contracts (Art.
1475, 2nd par., NCC).
Exception: In conditional sales, the
obligations of the parties are subject to the
general law of obligations with respect to
conditional ones. Accordingly, the acquisition
of the rights of the vendor and the vendee,
as well as the extinguishment of those
already acquired, depends upon the event
(Villanueva, Law on Sales, 2009, p. 630).
Effect of Loss of Thing Sold:
When the object of the contract is entirely
lost, the contract shall be without effect.
a. If occurs prior to perfection- would-be
seller bears the loss, being the owner of
the thing (res perit domino).
b. If loss occurs at perfection:
● If subject matter has been ―entirely‖
lost, contract shall be without any
effect (Art. 1493, NCC).
● If the subject matter has been lost
in part only, the buyer may choose
between: withdrawing from the
contract; or demanding the
remaining part, paying its price in
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Civil Law
proportion to the total sum agreed
upon (Id).
● In the case of sale of specific goods,
and without the knowledge of the
seller, the goods have perished in
part or wholly or in a material part
so deteriorated in quality as to be
substantially changed in character,
the buyer may at his option: treat
sale as avoided; or treat sale as
valid in all of the existing goods or
in so much thereof as have not
deteriorated, and as binding the
buyer to pay the agreed price for
the goods in which the ownership
will pass, if the sale was divisible
(Art. 1494, NCC).
c. If loss occurs after perfection but before
delivery (Villanueva, Law on Sales, 2009, p.
348):
● If lost without fault of vendor,
obligation is extinguished.
● If lost thru fault of vendor, he is
obliged to pay damages.
● If thing deteriorates without fault of
vendor, impairment is borne by
vendee.
● If it deteriorates thru fault of
vendor, vendee may choose
between rescission of obligation and
its fulfillment, with indemnity for
damages in either case.
● If loss without seller‘s fault: Two
views:
First view: Seller is released from his
obligation to deliver but buyer‘s
obligation to pay subsists (Paras, Vol.
V. (1990 ed.), p. 58; Padilla, Civil Code,
840-841). Hence, buyer bears the
risk of loss.
Second view: Counter-prestation is
also extinguished (IV Tolentino, Civil
Code, 1991 ed., 337). Hence, risk of
loss is borne by seller and buyer
need not pay the price.
� View of Tolentino is more just and
equitable and in conformity with the
308 Center for Legal Education and Research
principle of res perit domino. At any
rate, the Supreme Court had the
occasion to hold that after perfection
but before delivery, the risk of loss is
borne by the seller under the rule of res
perit domino (Union Motors v. CA, G.R. No.
117187, July 20, 2001; Chrysler Philippines
v. CA, G.R. No. L-55684, December 19,
1984).
d. If loss and deterioration occurs after
delivery:
Rule: When ownership over goods has been
transferred to buyer, goods are buyer‘s risk
(Art. 1504, NCC).
Exception:
● When delivery is made to buyer in
pursuance of contract and ownership is
retained by seller merely to secure
performance of buyer‘s obligations,
goods are still at buyer‘s risk from time
of such delivery (Art. 1504, NCC).
● Where actual delivery is delayed thru
fault of either buyer or seller, goods are
at risk of party in fault (Art. 1504, NCC).
7. DOCUMENTS OF TITLE
Document of Title of Goods; Definition;
Functions
Includes any bill of lading, dock warrant,
―quedan,‖ or warehouse receipt or order for the
delivery of goods, or any other document used
in the ordinary course of business in the sale or
transfer of goods, as proof of the possession or
control of the goods, or authorizing or
purporting to authorize the possessor of the
document to transfer or receive, either by
indorsement or by delivery, goods represented
by such document. (Art. 1636[1], NCC)
Functions of Documents of Title:
1. As evidence of the possession or control
of the goods described therein; and
2. As the medium of transferring title and
possession over the goods described
 Purple Notes
therein, without having to effect actual
delivery thereof (Villanueva, Law on Sales,
2009, p. 301).
Rationale of Documents of Title:
The developmental imperatives of commercial
transactions required that merchants should be
allowed to transact with goods and merchandise
without having to physically carry them around,
and that buyers should be assured that they
may deal with the evidence thereof with the
same effect as though ―they could feel the
merchandise‖ themselves.
Documents of title have been recognized by the
State as the medium by which such transactions
be promoted by the instruments which evidence
the merchandise covered (Villanueva, Law on
Sales, 2009 Ed., p. 303).
Classes of documents of titles
1. Negotiable documents of title - those by
the terms of which the bailee undertakes to
deliver the goods to the bearer and those by
the terms of which the bailee undertakes to
deliver the goods to the order of a specified
person (Art. 1508, NCC); or
2. Non-negotiable documents of title -
those by the terms of which the goods
covered are deliverable to a specified
person. (Art. 1511, NCC)
Effect of Errors on Documents of Title
A mere typographical or grammatical error does
not destroy the negotiability of a
document of title, for what should be
considered is the intent (Paras, Civil Code of the
Philippines Annotated, 2008, p. 136).
Effects of use of Non-negotiable Terms of
Negotiable Documents of Title
It is still considered as a negotiable document of
title and may nevertheless be negotiated by the
holder (Art. 1510, NCC).
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Civil Law
Negotiation of Negotiable Instruments of
Title
Who can Negotiate
1. The owner (the person to whom it was
originally negotiated); and
2. Any person to whom the possession or
custody of the document has been
entrusted by the owner, if, by the terms
thereof the bailee undertakes to deliver
the goods to the order of the person to
whom the possession or custody of the
document has been entrusted, or if at
the time of such entrusting the
document is in such form that it may be
negotiated by delivery (Art. 1512, NCC).
How negotiation is effected:
1. By delivery; or
2. By endorsement and delivery (Villanueva,
Law on Sales, 2009 Ed. p. 137).
Effects of Proper Negotiation:
A person to whom a negotiable instrument of
title has been duly negotiated acquires:
1. Such title to the goods as the person
negotiating the document to him or had
ability to convey to a purchaser in good
faith or for value;
2. Such title to the goods as the person to
whose order the goods were to be
delivered by the terms of the document
had or had ability to convey to a
purchaser in good faith and for value;
and
3. The direct obligation of the bailee
issuing the document to hold possession
of the goods for him according to the
terms of the document as fully as if such
bailee had contracted directly with him
(Art. 1509, NCC).
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 Purple Notes
Civil Law
Effects of Merely Transferring/ Delivering
an Order Document of Title
The following are the legal effects when a
negotiable documents of title deliverable to
order is not properly negotiated:
1. A negotiable document of title which is not
in such form that it can be negotiated by
delivery (i.e., not a bearer document), ―may
be transferred by the holder by delivery to a
purchaser or donee,‖ meaning that the
transferee would thereby own the document
of title;
2. The legal consequence of such transfer
under Article 1514 is that the ―person to
whom a document has been transferred, but
not negotiated, acquires thereby as against
the transferor, the title to the goods, subject
to the terms of any agreement with the
transferor,‖ meaning as between the
transferor and the transferee, the goods are
owned by the transferee, but not as to the
rest of the world, including the bailee;
3. Under Article 1515, where a negotiable
document of title is transferred for value by
delivery, and the endorsement of the
transferor is essential for negotiation, the
transferee acquires a right against the
transferor to compel him to endorse the
document unless a contrary intention
appears, meaning that the negotiation shall
take effect as of the time when the
endorsement is actually made (Villanueva,
Law on Sales, 2016 Ed. p. 282).
Effects of Unauthorized Negotiation
The validity of the negotiation of a negotiable
document of title is not impaired by the
following facts:
1. That the negotiation was a breach of duty
on the part of the person making the
negotiation;
2. That the owner of the document was
deprived of the possession of the same by
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loss, fraud, theft, conversion, accident,
mistake, and duress
3. If the person to whom the document was
negotiated paid value therefor in good faith
without notice of the breach of duty, loss,
fraud, etc (Villanueva, Law on Sales, 2016 Ed. p.
283).
Assignment of Non-negotiable Documents
of Title
A non-negotiable document cannot be
negotiated and the endorsement of such gives
the transferee no additional right.
Assignment: Effect of Sale of Non-
negotiable Documents: Such sale is
considered as an assignment which is perfected
by mere consent under Art. 1624 of the NCC.
However, it must be in a public instrument in
order to bind third persons (Villanueva, Law on
Sales, 2009 Ed. p. 310).
Effects of Transfer by Assignment
A person to whom a non-negotiable document
of title has been duly assigned acquires thereby,
as against the transferor:
1. The title of the goods, subject to the
terms of any agreement with the
transferor;
2. The right to notify the bailee who issued
the document of the transfer thereof,
and thereby to acquire the direct
obligation of such bailee to hold
possession of the goods for him
according to the terms of the document
(Art. 1514, NCC).
� In assignment of a non-negotiable
documents of title, there is no legal
relationship between the assignee and
the bailee until the latter is informed by
the former of the assignment of the
covering document of title unlike the
negotiation of a negotiable document of
title which ipso jure makes the bailee
liable to the holder thereof (Villanueva,
Law on Sales, 2009 Ed. p. 311).
 Purple Notes
Warranties on Negotiation and
Assignment of Documents of Title
Warranties of the one who negotiates a
negotiable document of title and one who
assigns a non-negotiable document of title are
the same (Villanueva, Law on Sales, 2009 Ed. p.
311).
1. That the document is genuine;
2. That he has legal right to transfer it;
3. That he has knowledge of no fact which
would impair the validity or worth of the
document; and
4. He has the right to transfer the title of the
goods and the goods are merchantable or fit
for a particular purpose (Art. 1516, NCC).
Effects of Garnishment / Levy of Goods
Covered by Documents of Title
The following are the rules on levy/garnishment
of goods covered by documents of title:
1. When Non-Negotiable Document of
Title
A person to whom a non-negotiable
document of title has been transferred,
acquires the right to notify the bailee who
issued the document of the transfer thereof,
and only then does the transferee acquire
the direct obligation of such bailee to hold
possession of the goods for him according to
the terms of the document.
Prior to such notification, the title of the
transferee to the goods and the right to
acquire the obligation of such bailee may be
defeated by the levy of an attachment of
execution upon the goods by a creditor of
the transferor, or by a notification to such
bailee by the transferor or a subsequent
purchaser from the transferor of a
subsequent sale of the goods by the
transferor (Art. 1514, NCC).
2. When Negotiable Document of Title
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Civil Law
If goods are delivered to a bailee by the
owner or by a person whose act in
conveying the title to them to a purchaser in
good faith for value would bind the owner
and a negotiable document of title is issued
for them, such goods cannot thereafter,
while in possession of such bailee, be
attached by garnishment or otherwise or be
levied under an execution unless the
document be first surrendered to the bailee
or its negotiation enjoined.
The bailee shall in no case be compelled to
deliver up the actual possession of the
goods until the document is surrendered to
him or impounded by the court (Art. 1519,
NCC).
EFFECTS WHEN OWNER OF THE
DOCUMENT OF TITLE HAS NO LEGAL TITLE
TO THE GOODS
The following are the rules that will govern
when the legal owner of the documents of title
had in fact no valid title to the goods deposited:
1. When the Goods is Covered by a Non-
Negotiable Document
a. Where the owner had neither lost
nor been unlawfully deprived of the
goods
The assignee-buyer‘s title to the goods
is preferred even against the owner who
can no longer recover the goods. In
such situations, it does not even matter
if the assignor-seller had no ownership
at all to the goods he sold to the
assignee-buyer since the latter‘s title is
not dependent on the assignor-seller‘s
title (Villanueva, Law on Sales, 2016 Ed. p.
287).
b. Where the owner had lost the
goods or been unlawfully deprived
thereof
The owner may recover against the
assignee-buyer, even when the latter is
in good faith and bought for value,
Bar Operations C ommissions 311
 Purple Notes
Civil Law
because in such case the assignee-buyer
does not acquire any original title and
the assignee buyer‘s title to the goods
must be derived from that of the
assignor seller‘s. If the assignor-seller
had no title to the goods sold, the
assignee-buyer receives no title even if
the goods are delivered to him
(Villanueva, Law on Sales, 2016 Ed. p. 288).
2. When the Goods is Covered by a
Negotiable Document
Where the goods are covered by negotiable
documents of title properly negotiated, the
following rules shall apply:
a. Where the owner had neither lost
nor been unlawfully deprived of the
goods
The holder-buyer acquires valid
ownership of such goods because his
possession in good faith and for value,
which by itself would constitute as an
original source of ownership, is clearly
evidenced by his being a holder in due
course of the negotiable document of
title (Villanueva, Law on Sales, 2016 Ed. p.
288).
b. Where the owner had lost the
goods or been unlawfully deprived
thereof
The owner may recover against the
bailee, and therefore against the holder-
buyer, even when the latter is a holder
in due course with respect to the
negotiable document of title, and a
possessor in good faith and for value
with respect to
the goods (Villanueva, Law on Sales, 2016
Ed. p. 288).
Where the obligation of either party to a
contract of sale is subject to any condition which
is not fulfilled, the such party may either:
1. Refuse to proceed with the contract; or
2. He may waive performance of the condition.
If the condition is in the nature of a promise that
it should happen, the non-performance of such
condition may be treated by the other party as a
breach of warranty (Art. 1545, NCC).
Warranty; meaning
A warranty is a statement or representation
made by the seller of goods, contemporaneously
and as a part of the contract of sale, having
reference to the character, quality, or title of the
goods, and by which he promises or undertakes
to insure that certain facts are or shall be as he
then represents them (De Leon, Comments and
Cases on Sales and Lease, 2005, p. 294).
Condition v. Warranty
Condition Warranty
Effect of Non-fulfillment
Does not constitute as Constitutes Breach of
Breach of Contract Contract
As to existence:
Goes into the root of the Goes into the
existence of the sale performance of such
obligation
As to required stipulation:
Must be stipulated by May form part of the
the parties obligation by provision
of law without having
the parties expressly
agree thereto

Where does it attach:

8. CONDITIONS AND WARRANTIES
Condition may attach Relates to the subject
CONDITIONS itself either to the matter itself or to the
obligation of the buyer obligations of the seller
Effects of Non-fulfillment of Condition or seller to the subject matter

312 Center for Legal Education and Research

 Purple Notes
Kinds of Warranties
Warranties may be:
1) Express (Art. 1546, NCC); or
2) Implied (Art. 1547).
Meaning of Express Warranties
Any affirmation of fact or any promise by the
seller relating to the thing, the natural tendency
of which is to induce the buyer to purchase the
thing and the buyer thus induced, does
purchase the same.
Requisites of Express Warranties
The following requisites must be present in
order that there be an express warranty in a
contract of sale:
1. It must be an affirmation of fact or any
promise by the seller relating to the subject
matter of the sale;
2. The natural tendency of such affirmation or
promise is to induce the buyer to purchase
the thing;
3. The buyer purchases the thing relying on
such on such promise or affirmation thereon
(Art. 1546, NCC).
Effect of Breach of Express Warranty
Breach of an express warranty shall make the
seller liable for damages (Villanueva, Law on
Sales, 2009, p. 514).
Effect of Expression of Opinion by the
Seller
Mere expression of opinion, no matter how
positively asserted, does not import a warranty
unless the seller is an expert and his opinion
was relied upon by the buyer (De Leon, Comments
and Cases on Sales and Lease, 2005, p. 296).
Effect of Dealer’s Talk
Dealer‘s talk like ―excellent,‖ cannot be
considered as an express warranty. A little
exaggeration is apparently allowed by the law as
a concession to human nature. This is in
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Civil Law
accordance with the civil law maxim ―simplex
commendatio non-obligat‖ or the principle
―caveat emptor‖ (let the buyer beware) (Paras,
Civil Code of the Philippines Annotated Vol.5, 2008, p.
208).
Meaning of Implied Warranty
Implied warranties are those which by law
constitute part of every contract of sale, whether
or not the parties were aware of them, and
whether or not the parties intended them
(Villanueva, Law on Sales, 2009, 495).
Implied Warranties in Sale
Implied warranties under the law on sale are:
1) Warranty that seller has right to sell; (Art.
1547, NCC).
2) Warranty against eviction (Art. Art. 1548,
NCC);
3) Warranty against non-apparent
servitudes (Art. 1560, NCC);
4) Warranty against hidden defects or
unknown encumbrance (Art. 1561, NCC);
5) Warranty as to fitness or
merchantability. (Art. 1562, NCC).
Warranty that seller has right to sell
In a contract of sale, unless a contrary intention
appears, there is an implied warranty on the
part of the seller that he has a right to sell the
thing at the time when the ownership is to pass
(Art. 1547, NCC).
Waiver of the Warranty, Not Allowed
Although Article 1547 uses the phrase ―unless a
contrary intention appears,‖ there can be no
legal waiver of such warranty without changing
the basic nature of the relationship, for the
warranty on the part of the seller that he has
the capacity to sell, is the essence of sale;
unless, it amounts to clear assumption of risk on
the part of the buyer, as when the obligation of
the seller is subject to a condition (Villanueva,
Law on Sales, 2016 Ed. p. 458).
Bar Operations C ommissions 313
 Purple Notes
Civil Law
Warranty against eviction
In a contract of sale, unless a contrary intention
appears, there is an implied warranty on the
part of the seller that when the ownership is to
pass, the buyer shall from that time have and
enjoy the legal and peaceful possession of the
thing (Art. 1547 par 1, NCC). The vendor shall
answer for the eviction even though nothing has
been said in the contract on the subject (Art.
1548 par 2, NCC).
Eviction; meaning
Eviction may be defined as the judicial process,
whereby the vendee is deprived of the whole or
part of the thing purchased by virtue of a final
judgment based on a right prior to the sale or
an act imputable to the vendor (De Leon,
Comments and Cases on Sales and Lease, 2005, p.
303).
Essential elements of warranty against
eviction
1) The vendee is deprived in whole or in
part of the thing purchased;
2) He is so deprived by virtue of a final
judgment;
3) The judgment is based on a right prior to
the sale or an act imputable to the
vendor;
4) The vendor was summoned in the suit
for eviction at the instance of the vendee
(Art. 1558.); and
5) There is no waiver on the part of the
vendee (De Leon, supra).
Seller’s liabilities in case of eviction
The buyer shall have right to demand the
following in case of eviction:
1) Return of the value which the thing sold had
at the time of the eviction, be it greater or
lesser than the price of the sale;
2) Income or fruits, if buyer has been ordered
to deliver them to the party who won the
suit against him;
3) Costs of the suit which caused the eviction,
and, in a proper case, those of the suit
brought against the seller for the warranty;
314 Center for Legal Education and Research
4) Expenses of the contract, if the buyer has
paid them; and
5) Damages and interests and ornamental
expenses, if the sale was made in bad faith.
(Art. 1555, NCC).
Waiver of Warranty Against Eviction
General rule: The contracting parties may
increase, diminish, or suppress the legal
obligation of the vendor (Art. 1548, NCC).
Exceptions:
1) If the vendor acted in bad faith, any
stipulation exempting the vendor from
obligation to answer for eviction is void (Art.
1553, NCC).
2) if the buyer merely renounces the warranty
in general terms, without knowledge of a
particular risk, and eviction should take
place, the seller shall only pay the value
which the thing sold had at the time of the
eviction (Art. 1554, NCC).
Warranty against non-apparent servitudes
When Warranty Applicable
The warranty shall apply only when the
following conditions are present:
1. The immovable sold is encumbered with any
non-apparent burden or servitude, not
mentioned in the agreement; and
2. The nature of such non-apparent burden or
servitude is such that it must presumed that
the buyer would not have acquired it had he
been aware thereof (Art. 1560, NCC).
When Warranty Not Applicable
The warranty does not apply:
1. If the servitude is mentioned in the
agreement;
2. If the non-apparent burden or servitude is
recorded in the Registry of Deeds, unless
there is an express warranty that the thing
 Purple Notes
is free from all burdens and encumbrances
(Art. 1560, NCC).
Remedies and Prescriptive Period
The buyer may either bring an action for
rescission or sue for damages within one (1)
year computed from the execution of the deed.
If such 1 year period has lapsed, the buyer may
only bring an action for damages within an equal
period, to be counted from the date on which he
discovered the burden or servitude (Art. 1560,
NCC).
Warranty against hidden defects or
unknown encumbrance
The seller shall be responsible for warranty
against ―hidden defect‖ when:
1) The nature of the hidden defect is such that
it should render the subject matter unfit for
the use for which it is intended; or
2) Should diminish its fitness for such use to
such an extent that, had the buyer been
aware thereof, he would not have acquired
it or would have given a lower price for it
(Art.1561, NCC).
Requisites for warranty against hidden
defects
1) The defect must be hidden (not known and
could not have been known);
� The seller is not liable for patent defects
or those which are visible.
� The seller is not liable even when the
defect is not visible but if the buyer is an
expert who, by reason of his trade or
profession, should have known them
(Art. 1561, NCC).
2) The defect must exist at the time the
sale was made;
3) The defect must ordinarily have been
excluded from the contract;
4) The defect must be important (renders
thing UNFIT or considerably decreases
FITNESS);
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Civil Law
5) The action must be instituted within the
statute of limitations
� The seller is responsible to the buyer for
any hidden faults or defects in the thing
sold, even if he was not aware thereof
(Art. 1566, NCC).
Effects of Breach of Warranty Against
Hidden Defects
In case of breach where the subject matter has
not been lost, the buyer may elect either:
1) To withdraw from the contract (accion
redhibitoria); or
2) To demand a proportionate reduction of the
price (accion quanti minoris) (De Leon,
Comments and Cases on Sales and Lease, 2005,
p. 330)
In case the subject matter of sale is actually
lost, the following rules shall apply:
1) Loss is due to fault of the seller:
a. If the seller was aware of them, he shall
bear the loss, and shall be obliged to
return the price and refund the
expenses of the contract, with damages;
or
b. If seller was not aware of them, the
seller is obliged only to return the price
and interest thereon, and reimburse the
expenses of the contract which the
buyer might have paid, but not for
damages. (Art. 1568, NCC).
2) Loss is due to fortuitous event:
a. If the seller was not aware of the hidden
defects, the buyer may demand from
the seller the price which he paid, less
the value which the thing had when it
was lost;
b. If the seller acted in bad faith, in
addition he shall pay damages to the
buyer (Art. 1569, NCC).
Bar Operations C ommissions 315
 Purple Notes
Civil Law
Waiver of Warranty Against Hidden
Defects
If there has been a stipulation exempting the
seller from hidden defects, the seller shall not be
liable, except when he is in bad faith.
Warranty as to Fitness or
Merchantability
Warranty as to Fitness
There is an implied warranty for fitness of the
goods only when:
1) the buyer, expressly or by implication,
makes known to the seller the particular
purpose for which the goods are
acquired, and it appears that the buyer
relies on the seller‘s skill or judgment; or
2) Where the goods are bought by
description from a seller who deals in
goods of that description (Art. 1562, NCC)
Note: In order to enforce the implied warranty
that the goods are reasonably fit and suitable to
be used for the purpose of which both parties
contemplated, the following must be
established:
a. That the buyer sustained injury because of
the product
b. That the injury occurred because the
product was defective or unreasonably
unsafe
c. And finally the defect existed when the
product left the hands of the
petitioner(Nutrimix Feeds Corp. v. CA, G.R. No.
152219, October 26, 2004).
Warranty as to Merchantability
There is an implied warranty for merchantability
when goods are bought by description which is
made part of the basis of the transaction.
Effects of Breach of Warranty
In case of breach of warranty, the buyer may, at
his option, avail of the following remedies:
316 Center for Legal Education and Research
1) Accept or keep the goods and set up against
the seller, the breach of warranty by way of
recoupment in diminution or extinction of
the price;
2) Accept or keep the goods and maintain an
action against the seller for damages;
3) Refuse to accept the goods, and maintain an
action against the seller for damages;
4) Rescind the contract of sale and refuse to
receive the goods or if the goods have
already been received, return them or offer
to return them to the seller and recover the
price or any part thereof which has been
paid.
Redhibitory Defects of Animals
What Constitute Redhibitory Defects
To be considered redhibitory, the defect must
not only be hidden but must be of such a nature
that expert knowledge is not sufficient to
discover it (Art. 1576, NCC).
Liability of Veterinarian
If the veterinarian, through ignorance or bad
faith, should fail to discover or disclose it, he
shall be liable for damages (Art. 1576, NCC).
Rules on Sale of Team
If two or more animals are sold together,
whether for a lump sum or for a separate price
for each of them, the redhibitory defect of one
shall only give rise to its redhibition, and not
that of the others; unless it should appear that
the buyer would not have purchased the sound
animal or animals without the defective one.
(Art. 1572, NCC)
Other Rules on Sale of Animals
1. There is no warranty against hidden defects
of animals sold at fairs or at public auctions,
or of livestock sold as condemned (Art. 1574,
NCC).
2. The sale of animals suffering from
contagious diseases shall be void. A contract
of sale of animals shall also be void if the
use or service for which they are acquired
 Purple Notes
has been stated in the contract, and they
are found to be unfit therefor (Art. 1575,
NCC).
Prescriptive Period of Redhibitory Action
The redhibitory action, based on the faults or
defects of animals, must be brought within forty
(40) days from the date of their delivery to the
buyer (Art. 1577, NCC).
Responsibility of Vendor Where Animal
Dies
If the animal sold is suffering from any disease
at the time of the sale, the vendor is liable
should it die of said disease within three (3)
days from the date of the sale.
If the death occurs after three days or the
defect is patent or visible, he is not liable
Alternative Remedies of Buyer
The vendee has the same right to bring at his
option, either a redhibitory action or an action
quanti minoris (demanding a proportionate
reduction of the price), with damages in either
case.
The action must be brought within 40 days from
the date of the delivery of the animals to the
vendee (Art. 1580, NCC).
Implied Warranties in the Sale of Goods
In a sale of goods, there is an implied warranty
or condition as to the quality or fitness of the
goods, as follows:
1. Fitness - there is an implied warranty that
the goods shall be reasonably fit for such
purpose where the buyer, expressly or by
implication, makes known to the seller the
particular purpose for which the goods are
acquired, and it appears that the buyer
relies on the seller‘s skill of judgment.
2. Merchantable quality - there is an implied
warranty that the goods shall be of
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merchantable quality where the goods are
bought by description from a seller who
deals in goods of that description (Art. 1562,
NCC).
Requisites for Breach of Warranty to Apply
The following are the requisites to be
established for breach of the implied warranty
that the goods sold are reasonably fit and
suitable to be used for the purpose which both
parties contemplated:
1. That the buyer sustained injury because of
the product;
2. That the injury occurred because the
product was defective or unreasonably
unsafe; and
3. The defect existed when the product left the
hands of the seller (Nutrimix Feeds Corp. v. CA,
G.R. No. 152219, October 26, 2004).
Rules on Sale of Goods by Sample and/or
by Decription
In the case of a contract of sale by sample, if
the seller is a dealer in goods of that kind, there
is an implied warranty that the goods shall be
free from any defect rendering them
unmerchantable which would not be apparent
on reasonable examination of the sample (Art.
1565, NCC).
Remedies in Case of Breach of Warranty
by the Seller in Sale of Goods
Where there is a breach of warranty by the
seller in the sale of goods, the buyer may, at his
election, avail of the following remedies:
1. Accept or keep the goods and set up against
the seller, the breach of warranty by way of
recoupment in diminution or extinction of
the price;
2. Accept or keep the goods and maintain an
action against the seller for damages;
3. Refuse to accept the goods, and maintain an
action against the seller for damages;
4. Rescind the contract of sale and refuse to
receive the goods or if the goods have
already been received, return them or offer
to return them to the seller and recover the
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price or any part thereof which has been
paid (Art. 1599, NCC).
ADDITIONAL TERMS OF WARRANTIES FOR
CONSUMER GOODS (The CONSUMER ACT
OF THE PHILIPPINES; RA NO. 7394)
Meaning of Consumer Products
Goods ―which are primarily for personal, family,
household or agricultural purposes, which shall
include but not limited to, food, drugs,
cosmetics, and devices (Art. 4(q), RA 7394).
Additional Warranties
Article 68 of the Consumer Act provides that
when the seller or manufacturer gives an
express warranty, it shall be operative from the
moment of sale, and consequently such seller or
manufacture shall:
1. Set forth the terms of warranty in clear and
readily understandable language and clearly
identify himself as the warrantor;
2. Identify the party to whom the warranty is
extended;
3. State the products or parts covered;
4. State what the warrantor will do in the
event of a defect, malfunction or failure to
conform to the written warranty and at
whose expense;
5. State what the consumer must do to avail of
the rights which accrue to the warranty; and
6. Stipulate the period within which, after
notice of defect, malfunction or failure to
conform to the warranty, the warrantor will
perform any obligation under the warranty.
Subsidiary Liability of Retailer
The retailer shall be subsidiarily liable under the
warranty in case of failure of both the
manufacturer and distributor to honor the
warranty, and that in such case the retailer shall
shoulder the expenses and costs necessary to
honor the warranty, but remedy to proceed
against the distributor or manufacturer (Art. 68,
RA 7394).
318 Center for Legal Education and Research
Enforcement of Warranty
The warranty rights can be enforced by
presentment to the immediate seller either the
warranty card or the official receipt along with
the product to be serviced or returned to the
immediate seller. No other documentary
requirement shall be demanded from the
purchaser (Art. 68, RA 7394).
Duration of Warranty
The seller and the consumer may stipulate the
period within which the express warranty shall
be enforceable. But if the implied warranty on
merchantability accompanies an express
warranty, both will be of equal duration.
Any other implied warranty shall endure not less
than sixty (60) days nor more than one (1) year
following the sale of new consumer products
(Art. 68, RA 7394).
Breach of Warranties
In case of breach of express warranty, the
consumer may elect either of the following
remedy:
1. To have the goods repaired; or
In case the repair of the product in whole or
in part is elected, the warranty work must
be made to conform to the express warranty
within thirty (30) days by either the
warrantor
or his representative.
2. To have its purchase price refunded by the
warrantor.
In case the refund of the purchase price is
elected, the amount directly attributable to
the use of the consumer prior to the
discovery of the non-conformity shall be
deducted.
In case of breach of implied warranty, the
consumer may retain the goods and recover
damages, or reject the goods, cancel the
contract and recover from the seller so much of
 Purple Notes
the purchase price as has been paid, including
damages (Art. 68, RA 7394)
9. BREACH OF CONTRACT
a. REMEDIES OF THE SELLER
1. Action for payment of the price (Art.
1595);
2. Action for damages for non-acceptance
of the goods (Art. 1596);
3. Action for rescission (Art. 1597).
b. REMEDIES OF THE BUYER
1. Action for specific performance (Art.
1598);
2. Action for rescission or damages for
breach of warranty (Art. 1599).
c. REMEDIES OF THE SELLER FOR
BREACH OF CONTRACT IN CASE OF
MOVABLES
1. ORDINARY REMEDIES
Movables in General – Action to rescind the
sale (Art. 1593)
Sale of Goods:
1. Action for specific performance - when
ownership has been transferred to the
buyer (Art. 1595, NCC).
2. Treat the goods as the buyer‘s and may
maintain an action for the price - When
the ownership in the goods has not
passed, if they cannot readily be resold
for a reasonable price, the seller may
offer to deliver the goods to the buyer,
and, if the buyer refuses to receive
them, may notify the buyer that the
goods are thereafter held by the seller
as bailee for the buyer (Art. 1595, NCC).
When buyer wrongfully neglects / refuses
to accept goods:
The seller may maintain an action against him
for damages for non-acceptance in accordance
with the following:
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Civil Law
a. The seller of the goods who has not
been paid or to whom the price has
not been tendered.
b. The seller of the goods, in case a bill
of exchange or other negotiable
instrument has been received as
conditional payment, AND the
condition on which it was received
has been broken by reason of the
dishonor of the instrument,
insolvency of the buyer or otherwise
(Villanueva, Law on Sales, 2009, p. 363).
REMEDIES OF UNPAID SELLER:
1. Possessory lien over the goods;
● Right of lien is not affected by any
sale, or other disposition of the goods
which the buyer may have made,
unless the seller assented thereto. If a
negotiable document of title has been
issued for goods, no seller‘s lien shall
defeat the right of any purchaser for
value and in good faith to whom such
document has been negotiated,
whether such negotiation be prior or
subsequent to the notification to the
carrier, or other bailee who issued
such document, of the seller‘s claim to
a lien (Art. 1535, NCC).
● It is exercisable only in the following
instances:
a. Where the goods have been sold
without any stipulation as to credit;
b. Where the goods have been sold
on credit, but the term of credit
has expired;
c. Where the buyer becomes
insolvent (Art. 1527, NCC).
2. Right of stoppage in transit after he has
parted with the possession of the goods
and the buyer becomes insolvent;
● The unpaid seller may resume
possession of the goods at any time
while they are in transit, and he will
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Civil Law
then become entitled to the same
rights in regard to the goods as he
would have had if he had never
parted with the possession (Villanueva,
Law on Sales, 2009, p. 371).
● If a negotiable document of title has
been issued for goods, no seller‘s right
to stoppage in transitu shall defeat the
right of any purchaser for value and in
good faith to whom such document
has been negotiated, whether such
negotiation be prior or subsequent to
the notification to the carrier, or other
bailee who issued such document, of
the seller‘s claim to a lien (Art. 1535,
NCC).
3. Special Right of resale;
● Unpaid seller may exercise special
right of resell under the following
circumstances:
a. The goods are of perishable nature;
b. Where the seller has been expressly
reserved in case the buyer should
make default; or
c. Where the buyer has been in default
in the payment of the price for an
unreasonable time (Art. 1533, NCC).
● Unpaid seller, without need of first
rescinding the contract judicially, is
entitled to resell the same, and if he is
obliged to sell it for less than the
contract price, the buyer is liable for
the difference (Katigbak v. Court of
Appeals, G.R. No. L-16480, January 31,
1962).
4. Special Right to rescind the sale;
● Notwithstanding that the ownership in
the goods may have passed to the
buyer, the unpaid seller has a special
right to extrajudicially rescind the sale.
● Unpaid seller may exercise special
right to rescind the sale under the
following circumstances:
320 Center for Legal Education and Research
a. The seller has expressly reserved the
right to do so in case the buyer should
make default; or
b. The buyer has been in default in the
payment of the price for an
unreasonable time.
5. Action for the price;
Effect of Failure to Pay:
Failure of the vendee to pay the price after the
execution of the contract does not make the sale
null and void for lack of consideration but results
at most in default on the part of the vendee, for
which the vendor may exercise his legal
remedies (Balatbat v. CA, G.R. No. 109410, August
28, 1996). Failure to pay the consideration results
in a right to demand the fulfillment or
cancellation of the obligation under an existing
valid contract (Buenaventura v. CA, G.R. No.
126376, November 20, 2003)
When Vendee Liable to Pay Interest:
1. If it has been so stipulated;
2. If the thing sold and delivered produce fruits
or income; or
3. If the buyer be in default, from the time of
judicial or extrajudicial demand for the
payment of price (Art. 1589, NCC).
6. Action for damages
SALE OF PERSONAL/MOVABLES
PROPERTY THRU INSTALLMENT (AS
AMENDED BY RECTO LAW, ACT NO. 4122)
Remedies of Vendor: In a contract of sale of
personal property the price of which is payable
in installments, the vendor may exercise any of
the following remedies:
a. Exact fulfillment of the obligation, should the
vendee fail to pay at least one installment;
b. Cancel the sale, should the vendee‘s failure
to pay cover two or more installments;
c. Foreclose the chattel mortgage on the thing
sold, if one has been constituted, should the
vendee‘s failure to pay cover two or more
installments (Art. 1484, NCC).
 Purple Notes
 Foregoing remedies are alternative and
not cumulative. If the creditor chooses
one remedy, he cannot avail himself
of the other two (Delta Motors Sales
Corp. v. Niu Kim Duan, G.R. No. 61043,
September 2, 1992; Elisco Tool
Manufacturing Corp. v. CA, G.R. No.
109966, May 31, 1999).
What constitute ―sale on installment‖:
1. The price must be payable in several
installments (Levy Hermanos, Inc. v. Gervacio,
G.R. No. L-46306, October 27, 1939).
2. The Recto law does not apply to a sale
where there is an initial payment and the
balance is payable in the future. This is not
a sale on installment (Id.).
A. Specific Performance
General Rule: The general rule is that when
the seller has chosen specific performance, he
can no longer seek for rescission nor foreclosure
of the chattel mortgage constituted on the thing
sold. The seller is deemed to have chosen
specific performance, thereby foreclosing resort
to the other two remedies, when he files an
action in court for recovery.
Exception: Even if seller had chosen specific
performance, but if the same becomes
impossible, the seller may still choose rescission
(Art. 1191, NCC).
� In Chieng v. Sps. Santos (G.R. No. 169647,
Aug. 31, 2007), involving a real estate
mortgage obligation, the Supreme Court
held that the filing of the criminal cases for
violation of B.P. Blg. 22 where the civil
action for recovery of the amount of the
checks is impliedly instituted (Sec. 1[b] of
Rule 111 of the 2000 Rules on Criminal
Procedure), the remedy of collection suit is
deemed to have been availed, thus barring
the complainant from subsequently resorting
to an action for foreclosure.
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Civil Law
B. Rescission/Cancellation of Sale
When remedy is deemed chosen:
The rule is that the seller is deemed to have
chosen the remedy of rescission, and can no
longer avail of the other two remedies, when he
has clearly indicated to end the contract, such
as: (1) when he sends a notice of rescission; or
(2) takes possession of the subject matter of the
sale; or (3) when he files an action for
rescission.
Forfeiture of installment or rentals paid:
General Rule: As a rule, rescission obliges the
parties to make mutual restitution (Art. 1385,
NCC). Hence, the payments must be returned.
Exception: A stipulation that the installments
or rents paid shall not be returned to the vendee
or lessee shall be valid insofar as the same may
not be unconscionable under the circumstances
(Art. 1486, NCC).
Effects of rescission:
It abrogates the contract from the very
beginning, subject to the provisions of Article
1486 allowing the vendor to retain installments
payments if there is such stipulation and the
same is not unconscionable under the
circumstances.
� As a consequence, the seller is barred
from exacting payment from the buyer
the balance of the price (Nonato v. IAC,
G.R. No. L-67181, November 22, 1985; Delta
Motor Sales Corp. v. Niu Kim Duan, supra.).
The same is not consistent with the
remedy of rescission.
C. Foreclosure of Chattel Mortgage:
When remedy is deemed chosen:
General Rule: Where the mortgagee elects a
remedy of foreclosure, the law requires the
actual foreclosure of the mortgaged chattel.
Thus, in Manila Motor Co. v. Fernandez (G.R. N.
L-8377, August 28, 1956), the Court held that it is
Bar Operations C ommissions 321
 Purple Notes
Civil Law
the actual sale of the mortgaged chattel in
accordance with Sec. 14 of Act No. 1508 that
would bar the creditor (who chooses to
foreclose) from recovering any unpaid balance
(Pacific Commercial Co. v. De la Rama, G.R. No.
47771, June 17, 1941). And it is deemed that
there has been foreclosure of the mortgage
when all the proceedings of the foreclosure,
including the sale of the property at public
auction, have been accomplished (Macondray &
Co., Inc. v. Tan, G.R. No. 45105, November 26,
1938).
Exception: Although no actual foreclosure as
contemplated under the law has taken place but
since the vehicle is already in the possession of
the creditor and it has persistently and
consistently avowed that it elects the remedy of
foreclosure, the creditor can be directed to
foreclosure the said vehicle without more (Magna
Financial Services Group, Inc. v. Colarina, G.R. No.
158635, December 9, 2005).
Effect of foreclosure of mortgage:
General Rule: In case of foreclosure, the
creditor-mortgagee shall have no further action
against the purchaser to recover ―any unpaid
balance of the price.‖ Any agreement to the
contrary shall be void. This is known as the
Recto Law (Art. 148[3], NCC). Notwithstanding
the language of the law, current jurisprudence
upholds the full barring effect in recovery to
include damages, interests and attorney‘s fees
(and not only the balance of the purchase
price).
Exception: However, where the mortgagor
plainly refuses to deliver the chattel subject of
the mortgage upon his failure to pay two or
more installments, or if he conceals the chattel
to place it beyond the reach of the mortgagee,
the creditor-mortgagee is allowed to recover the
expenses properly incurred in effecting seizure
of the chattel and reasonable attorney‘s fees in
prosecuting the action for replevin (Filipinas
Investment & Finance Corp., v. Ridad, G.R. No. L-
27645, November 28, 1969).
▪ The court held that the seller can no longer
proceed to foreclose on the real estate
322 Center for Legal Education and Research
mortgage because if the guarantor should
be compelled to pay the balance of the
purchase price, the guarantor will in turn be
entitled to recover what he has paid from
the debtor vendee; so ultimately, it will be
the buyer who will be made to bear the
payment of the balance of the price, despite
the earlier foreclosure of the chattel
mortgage given by him (Cruz v. Filipinas
Investment & Finance Corp., G.R. No. L-27645,
November 28, 1969).
Applicability of Recto Law: The Recto law
applies also to contracts purporting to be leases
of personal property with option to buy, when
the lessor has deprived the lessee of the
possession or enjoyment of the thing (Art. 1485,
NCC).
� This law covers contracts of sale of personal
property by installments (Act No. 4122). It is
also applied to contracts purporting to be
leases of personal property with option to
buy, when the lessor has deprived the
lessee of the possession or enjoyment of the
thing. (PCI Leasing and Finance Inc. v. Giraffe‐ X
Creative Imaging, Inc., G.R. No. 142618, July 12,
2007).
� In choosing, through replevin, to deprive the
lessee-buyer of possession of the leased
equipment, the lessor-seller waived its right
to bring an action to recover unpaid rentals
on the said leased items. The condition that
the lessor has deprived the lessee of
possession or enjoyment of the thing for the
purpose of applying Article 1485 was fulfilled
upon filing of the lessor-seller of the
complaint for a sum of money with prayer
for replevin to recover possession of the
office equipment. By virtue of writ of seizure
issued by the court, the lessor-seller has
effectively deprived lessee-buyer of their
use, a situation which, by force of Recto
Law, in turn precludes the former from
maintaining an action for recovery of
―accrued rentals‖ or the recovery of the
balance of the purchase price plus interest
(PCI Leasing and Finance, Inc. v. Giraffe-X
Creative Imaging, Inc., supra).
 Purple Notes
SALE OF IMMOVABLE PROPERTY THRU
INSTALLMENT (MACEDA LAW, R.A. 6552)
Applies to sale or financing of real estate on
installment payments, including residential
condominium apartments. The MACEDA law
applies to sale of real estate on installments,
whether the contract be one of contract to sell
(Villanueva, Sales, p. 432; Rillo v. CA, G.R. No.
125347, June 19, 1997).
Requisites:
1. Transactions or contracts involving the sale
OR financing of real estate on installment
payments, including residential
condominium apartments; and
2. Buyer defaults in payment of succeeding
installments.
Not Applicable:
1. Sale of industrial lots
2. Sale of commercial buildings
3. Sale of urban land covered by Urban Land
Reform and agricultural land under Agrarian
Reform Law
4. Sale of lands payable in straight terms
Rights of the Buyer
If Buyer Has Paid At Least 2 Years of
Installments:
1. The buyer must pay, without additional
interest, the unpaid installments due within
the total grace period earned by him. There
shall be one (1) month grace period for
every one (1) year of installment payments
made.
This right shall be exercised by the buyer
ONLY once in every 5 years of the life of the
contract AND its extensions.
2. Actual cancellation can only take place after
30 days from receipt by the buyer of the
notice of cancellation OR demand for
rescission by a notarial act AND upon full
payment of the cash surrender value to the
buyer t of the cash surrender value to the
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Civil Law
buyer (Olympia Housing v. Panasiatic, G.R. No.
140468 January 16, 2003).
� The seller shall refund to the buyer the
cash surrender value of the payments
on the property equivalent to 50% of
the total payments made. After five (5)
years of installments, there shall be an
additional 5% every year but not to
exceed 90% of the total payments
made.
3. The buyer shall have the right to sell his
rights or assign the same to another person
OR to reinstate the contract by updating the
account during the grace period and before
actual cancellation of the contract.
4. The buyer shall have the right to pay in
advance any installment or the full unpaid
balance of the purchase price any time
without interest and to have such full
payment of the purchase price annotated in
the certificate of title covering the property.
If Buyer Has Paid Less Than Two Years Of
Installments:
1. Buyer is entitled to pay unpaid installments
within a grace period of NOT less than 60
days from the date the installments became
due. Within the grace period, buyer also has
the right to assign his rights.
2. After the grace period, seller may cancel the
contract AFTER 30 days from receipt of the
buyer of notice of cancellation or demand
for rescission by a notarial act.
3. Here, there is no cash surrender value.
Maceda Law, MANDATORY: Any stipulation
of the parties contrary to the foregoing rules
shall be null and void (Sec. 7, RA 6552).
SALE OF IMMOVABLE PROPERTY IN
GENERAL
Anticipatory breach (No Actual Breach):
Seller may sue for rescission of sale of
immovable property even in the absence of
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 Purple Notes
Civil Law
actual breach by buyer, if the following
conditions are present:
1. Seller has already delivered the immovable
property but the buyer has not yet paid the
price; and
2. Seller has reasonable grounds to fear the
loss of the immovable property and its price
(Art. 1591, NCC).
Where there was actual breach (buyer
failed to pay agreed price within agreed
period):
1. Buyer may still pay after the expiration of
the period as long as no demand for
rescission of the contract has been made
upon him either judicially or by a notarial
act. After the demand, the court may not
grant the buyer a new term (Art. 1592, NCC).
2. The foregoing rule applies even if the
contract provides for its automatic rescission
upon failure of the buyer to pay the price at
the time agreed upon (Art. 1592, NCC).
3. An offer to pay prior to the demand for
rescission is sufficient to defeat the seller‘s
right under Article 1592 of the Civil Code
(Art. 1592, NCC).
4. Under the provisions of Article 1592, the
demand for rescission must either be
judicial or by notarial act. A letter
informing the buyer of the automatic
rescission of an agreement does not amount
to a demand for rescission if it is not
notarized (Laforteza v. Machuca, G.R. No.
137552, June 16, 2000);
5. The foregoing rules (or Article 1592) does
not apply in the following:
a. Cases covered by RA No. 6552 (or
Maceda Law)
b. Contracts to sell – Article 1592 of the
NCC, requiring demand by suit or by
notarial act in case the vendor of realty
wants to rescind does not apply to a
contract to sell but only to contract of
sale (Pangilinan v. CA, G.R. No. 83588,
September 29, 1997);
c. Sale on installment of real estate where
parties have laid down the procedure to
be followed in the event vendee failed
to fulfill his obligation (Torralba v. Delos
324 Center for Legal Education and Research
Angeles, G.R. No. L-27592, February 14,
1980).
Remedies of Buyer
Action for Specific Performance (Art.
1598):
1. When seller has broken a contract to deliver
specific or ascertained goods, buyer may ask
for specific performance, without giving
seller the option to retain the goods on
payment of damages.
2. Judgment may be unconditional, or upon
such terms and conditions as to damages,
payment of the price and otherwise, as the
court may deem just (Art. 1598, NCC).
In case of breach of warranty by seller:
Buyer may, at his election –
1. Accept or keep goods and set up against the
seller, the breach of warranty by way of
recoupment in diminution or extinction of
price;
2. Accept or keep goods and maintain an
action against seller for damages for breach
of warranty;
3. Refuse to accept goods, and maintain an
action against seller for damages for breach
of warranty; or
4. Rescind contract of sale and refuse to
receive goods or if goods have already been
received, return them or offer to return
them to seller and recover the price or any
part thereof, which has been paid (Art. 1599,
NCC).
Remedy of Rescission by Buyer (Art. 1599,
NCC):
1. Not entitled to rescind:
a. If he knew of breach of warranty when
he accepted the goods without protest;
b. If he fails to notify the seller within a
reasonable time of the election to
rescind;
c. If he fails to return or offer to return the
goods to the seller in substantially as
good condition as they were in at the
 Purple Notes
time the ownership was transmitted to
the buyer.
2. If entitled to rescind and elected to do so
(Art. 1599, NCC):
a. He shall cease to be liable for the price
upon returning or offering to return the
goods.
b. If price or any part thereof has already
been paid, seller shall be liable to repay
so much thereof as has been paid,
concurrently with the return of the
goods, or immediately after an offer to
return of the goods, or immediately
after an offer to return the goods in
exchange for repayment of the price.
c. If the seller refuses to accept an offer of
buyer to return the goods, the buyer is
deemed to hold the goods as bailee for
seller, but subject to a lien to secure
payment of any portion of the price,
which he has been paid, and with
remedies for the enforcement of such
lien.
Right to Suspend Payment:
1. In sales not involving subdivision or
condominium projects:
a. Grounds for suspension of payment:
1) The vendee is disturbed in the
possession or ownership of the thing
acquired; or
2) Vendee has reasonable grounds to fear
such disturbance, by a vindicatory action
or for a foreclosure of mortgage (Art.
1590 NCC).
� But a mere act of trespass does not
authorize the suspension of the
payment of the price (Art. 1590, NCC).
b. Remedies of buyer: He may suspend
payment of the price until the vendor has
caused the disturbance or danger to cease.
But this remedy of suspension may not be
availed of if the seller gives security for the
return of the price or it has been stipulated
that, notwithstanding any such contingency,
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Civil Law
the vendee shall be bound to make the
payment (Art. 1590, NCC).
2. In sales involving subdivision or
condominium projects:
a. Ground for suspension of payment: Failure
of the owner or developer to develop the
subdivision or condominium project
according to the approved plans and within
the time limit for complying the same (Sec.
23, PD 957).
b. Alternative remedies of the buyer:
1) The buyer may suspend payment and wait
for further development; or (2) he may
demand reimbursement of the total amount
paid (Sec. 23, PD 957).
2) In case of the first option, the
owner/developer may not forfeit the
installment payments made by the buyer
(Sec. 23, PD 957). He may not also be
ousted from the subdivision (Relucio v.
Brillante-Garfin, 187 SCRA 405).
3) In case of the second option, the notice of
informing the developer of the intention not
to remit further payments on account of
non-development of the subdivision, and the
demand for refund, can be made at the
same time (Casa Filipina Realty Corp. v. Office
of the Pres. G.R. No. 99346, February 7, 1995).
10. PERFORMANCE OF CONTRACT
General Obligations of Vendee:
1. Payment of price;
2. Accepting the delivery of thing sold; and
3. Bear the expenses for the execution and
registration of the sale and putting the goods in
a deliverable state, if such is the stipulation (Art.
1488, NCC).
General Obligations of the Vendor:
1.Transfer the ownership
2. Deliver the thing sold (Arts. 1458 and 1495)
3. Deliver the fruits and accessories (Arts.
1164, 1166, and 1537);
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 Purple Notes
Civil Law
4. Make Warranties (Arts. 1545 - 1581) - can be
waived or modified; warranty is not an
essential element of the contract of sale;
5. Take care of the thing, pending delivery,
with diligence of a good father of a family
unless law or parties stipulate another
standard (Art. 1163);
6. Pay for the expenses for the execution and
registration of the sale, unless there is
stipulation to the contrary
7. Accord the buyer the right to examine the
goods (Art. 1584);
8. Enter into contract with the carrier on behalf
of the buyer as may be reasonable under
the circumstances (Art. 1523);
9. Notify the buyer regarding necessity to
insure goods if it is usual to insure them
(See more discussion on 3. Obligations of
Vendor and 4. Obligations of Vendee)
11. EXTINGUISHMENT OF SALE
Pacto de retro sale
The essence is that title and ownership of the
property sold is immediately vested in the
vendee a retro, subject to the restrictive
condition of repurchase by the vendor a retro
within the period provided in Article 1606 of the
New Civil Code, to wit: the failure of the vendee
a retro to repurchase the property vests upon
the latter by operation of law the absolute title
and ownership over the property sold (Misterio
v. Cebu State
College of Science and Technology, G.R. No.
152199, June 23, 2005).
Causes of Extinguishment: (Arts. 1600,
1231, NCC)
1. Same causes as all other obligations;
2. By various causes of extinguishment in Title
VI (Sales) such as:
a. Cancellation of sale of personal property
payable in installments (Art. 1484, NCC).
b. Resale of goods by the unpaid seller
(Art. 1532, NCC).
c. Rescission of the sale by the unpaid
seller. (Art. 1534)
326 Center for Legal Education and Research
d. Rescission by the buyer in case of partial
eviction (Art. 1556).
e. Rescission by the buyer in case of
breach of warranty against hidden
defects (Art. 1567).
f. Rescission by the buyer of sale of
animals with redhibitory defects (Art.
1580);
3. By redemption, whether conventional or legal.
A. Conventional Redemption
That which takes place when vendor reserves
the right to repurchase the thing sold with the
obligation to reimburse to the vendee the price
of the sale, the expenses of the contract, other
legitimate payments made by reason of the sale,
as well as necessary and useful expenses made
on the thing sold (Arts. 1601, 1616, NCC).
� The general rule in redemption is that it is
not sufficient that a person offering to
redeem manifests his desire to do so. The
statement of intention must be accompanied
by an actual and simultaneous tender of
payment for the full amount of the
repurchase price (BPI Family Savings Bank, Inc.
v. Veloso, G.R. No. 141974, August 9, 2004).
Period of Conventional Redemption:
1. When no period is fixed:
If the right of redemption was agreed upon
but there was no stipulation as to the period
within which the right shall be exercised, the
period of redemption shall be four years
from the date of the contract (Arts. 1606,
NCC).
2. When a period is fixed by the parties:
a. If the period does not exceed ten years-
such as when the right to repurchase
shall be exercised within five years, then
the period shall be five years from the
date of the contract.
If the period exceeds ten years, then the
period shall be ten years from the date
of the contract, the stipulation as to the
 Purple Notes
excess being null and void (Montiero v.
Salgado, G.R. Nos. 7287, 7288, March 29,
1914) .
b. When the period agreed upon is
indefinite, such as when the repurchase
may be made ―at any time‖, the
repurchase may be exercised within ten
years from the date of the contract.
c. In case there was a civil action between
the parties the vendor may still exercise
the right to repurchase within thirty
days from the time final judgment was
rendered in a civil action on that basis
that the contract was true sale with a
right to repurchase (Arts. 1606, NCC).
Effect of failure to exercise right of
repurchase
Ownership is consolidated in the vendee.
However, in case of real property, a judicial
order, after the vendee has been duly heard, is
required for the purpose of recording the
consolidation in the Registry of Property (Art.
1607, NCC).
Against whom right to repurchase
available
a. The vendee a retro (original vendee)
If the vendee should leave several heirs,
the action for redemption cannot be
brought against each of them except for his
own share, whether the thing be undivided,
or it has been partitioned among them.
But if the inheritance has been divided, and
the thing sold has been awarded to one of
the heirs, the action for redemption may be
instituted against him for the whole (Art.
1615, NCC).
b. Every possessor whose right is derived from
the vendee a retro, even if no mention is
made in the second contract of the right to
repurchase, provided the right has been
recorded in the Register of Deeds, or even if
the right is not registered, but the possessor
has knowledge of the existence of the right.
2018
Civil Law
(Art. 1608, Mortgage Law, Land Registration
Law)
Equitable Mortgage: (ARTS. 1602-1604,
NCC)
One which, although lacking in some formality,
or form, or words, or other requisites demanded
by a statute, nevertheless reveals the intention
of the parties to charge real property as security
for a debt, and contains nothing impossible or
contrary to law (Dorado Vda. De Delfin v. Dellota,
G.R No. 143697, January 28, 2008; Deheza-Inamarga
v. Alano, G.R. No. 171321, December 18, 2008).
Essential Elements:
1. That the parties entered into a contract
denominated as a contract of sale; and
2. That their intention was to secure an
existing debt by way of mortgage (Bacungan
v. CA, G.R. No. 170282, December 18, 2008).
Contracts presumed to be an equitable
mortgage:
A contact of sale with a right to repurchase and
other contracts purporting to be an absolute
sale, shall be presumed to be an equitable
mortgage, in any of the following cases:
1. When the price of a sale with a right to
repurchase is unusually inadequate;
2. When the vendor remains in possession as
lessee or otherwise;
3. When the period for the exercise of the right
to repurchase is extended;
4. When the purchaser retains for himself a
part of the purchase price;
5. When the vendor binds himself to pay the
taxes on the thing sold;
6. When the real intention of the parties is that
the transaction shall secure they payment of
a debt or the transaction shall secure the
payment of a debt or the performance of
any other obligation (De Leon, Comments and
Cases on Sales and Lease, 2005, p. 389).
� The presumption of equitable mortgage
created in Article 1602 of the CC is not
conclusive – It may be rebutted by
competent and satisfactory proof of the
Bar Operations C ommissions 327
 Purple Notes
Civil Law
contrary (Santiago v. Dizon, G.R. No. not available if the transfer of ownership is by
172771, January 31, 2008). gratuitous title.

Remedy: The apparent vendor may ask for the Instances of legal redemption under civil
reformation of the instrument (Art. 1605, NCC). code:

Distinguished from Option to Buy 1. Redemption by other co-owners or any one

or some of them. If a co-owner sells his
OPTION TO undivided share to a third person. If two or
RIGHT TO REDEEM
PURCHASE more co-owners desire to exercise the right,
Not a separate contract Generally, it is they may only do so in proportion to the
but merely part of a main principal contract
share they may respectively have in the
contract of sale
thing owned in common (Art. 1620, NCC).
Does not need its To be valid, it must
separate consideration in have a consideration
order to be valid and separate and distinct 2. Redemption by other co-heirs, or by any one
effective from purchase price of them. If a co-heir sells his hereditary right
Cannot exceed 10 years May be beyond 10 to a stranger (Art. 1088, NCC).
years
There must be a tender of May be exercised by 3. Redemption by owner of adjoining land:
payment of the amount notice of its exercise a. In case of rural – If owner alienate it to
required by law, including to the offeror a third person, the area of which does
consignment thereof if
not exceed one hectare. If two or more
tender of payment cannot
be made effectively on the
adjoining owners desire to exercise the
buyer. right at the same time, the owner of the
(De Leon, Comments and Cases on Sales and Lease, smaller area shall be preferred; and
2005, p. 382). should both lands have the same area,
the one who first requested the
Exercise of the Right to Redeem redemption (Art. 1621, NCC).

Obligations of Vendor A Retro When He b. In case of urban land – If owner of

Exercises Right to Repurchase (Art. 1616,
NCC):
1. Return to vendee price of sale;
2. Pay expenses of the contract and other
legitimate payments made by reason of
sale; and
3. Pay all necessary and useful expenses made
on the thing sold.
B. Legal Redemption
Concept
The right to be subrogated upon the same terms
and conditions stipulated in the contract, in the
place of one who acquires a thing by purchase
or dation in payment, or by any other
transaction whereby ownership is transmitted by
onerous title (Art. 1619, NCC). Thus, this right is
urban land, which is so small and so
situated that a major portion thereof
cannot be used for any practical
purpose within a reasonable time and
which said owner had bought merely for
speculation, resell it to a third person. If
resale has not yet been perfected, an
owner of adjoining land shall have a
right of pre-emption; in other words, his
right to buy the property is preferred to
that of third persons. If two or more
adjoining owners desire to exercise the
right of pre-emption or redemption as
the case may be, the owner whose
intended use of the land appears best
justifies shall be preferred (Art. 1622,
NCC).
4. Redemption by a debtor: if a credit or other
incorporated right in litigation be sold by the
creditor to a third person (Art. 1634, NCC).

328 Center for Legal Education and Research

 Purple Notes 2018
Civil Law
Period of Redemption/Pre-emption: The provisions of the law governing the form of
right of legal redemption shall not be exercised contracts.
except within 30 days from the notice in writing
by the prospective seller, or seller, as the case EFFECTS:
may be. The deed of sale shall not be recorded
in the Registry of Property unless accompanied 1. An assignment of a credit, right or action
by an affidavit of the seller that he has given shall produce no effect as against third
written notice thereof to all possible person, unless it appears in a public
redemptioners (Art. 1623, NCC). instrument, or the instrument is recorded in
the Registry of Property in case the
Redemption v. Pre-emption: assignment involves real property. (Art. 1625,
NCC)
Redemption Pre-emption 2. The debtor who, before having knowledge of
Effected after the sale Effected prior to sale the assignment, pays his creditor shall be
Directed against third Directed against the released from the obligation (Art. 1626, NCC).
persons who bought the prospective vendor who 3. The assignment of a credit includes all the
property is about to resell the accessory rights, such as a guaranty,
property mortgage, pledge or preference. (Art. 1627,
May be exercised only NCC).
where there is 4. The vendor in good faith shall be responsible
prospective resale of a
for the existence and legality of the credit at
small piece of urban
land bought by the
the time of the sale, unless it should have
prospective vendor been sold as doubtful; but not for the
merely for speculation solvency of the debtor, unless it has been so
expressly stipulated or unless the insolvency
ASSIGNMENT OF CREDITS was prior to the sale and of common
knowledge. Even in these cases he shall only
DEFINITION be liable for the price received and for the
expenses specified in No. 1 of Article 1616.
An assignment of credit has been defined as the The vendor in bad faith shall always be
process of transferring the right of the assignor answerable for the payment of all expenses,
to the assignee who would then have the right and for damages (Art. 1628, NCC).
to proceed against the debtor. The assignment 5. In case the assignor in good faith should
may be done gratuitously or onerously, in which have made himself responsible for the
case, the assignment has an effect similar to solvency of the debtor, and the contracting
that of a sale (Abelardo B. Licaros v. Antonio P. parties should not have agreed upon the
Gatmaitan, G.R. No. 142838, August 9, 2001). duration of the liability, it shall last for one
year only, from the time of the assignment if
PERFECTION the period had already expired.
If the credit should be payable within a term or
An assignment of creditors and other incorporeal period which has not yet expired, the liability
rights shall be perfected in accordance with the shall cease one year after the maturity (Art.
provisions of Article 1475 (Art. 1624, NCC). 1629, NCC).
6. One who sells an inheritance without
� Art. 1475. The contract of sale is perfected at enumerating the things of which it is
the moment there is a meeting of minds composed, shall only be answerable for his
upon the thing which is the object of the character as an heir (Art. 1630, NCC).
contract, and upon the price. From that 7. One who sells for a lump sum the whole of
moment, the parties may reciprocally certain rights, rents, or products, shall
demand performance, subject to the comply by answering for the legitimacy of the
whole in general; but he shall not be obliged

Bar Operations C ommissions 329

 Purple Notes
Civil Law
to warrant each of the various parts of which
it may be composed, except in the case of
eviction from the whole or the part of greater
value (Art. 1631, NCC).
OBLIGATION OF THE VENDOR:
Should the vendor have profited by some of the
fruits or received anything from the inheritance
sold, he shall pay the vendee thereof, if the
contrary has not been stipulated (Art. 1632, NCC).
OBLIGATION OF THE VENDEE:
Art. 1633. The vendee shall, on his part,
reimburse the vendor for all that the latter may
have paid for the debts of and charges on the
estate and satisfy the credits he may have
against the same, unless there is an agreement
to the contrary (Art. 1633, NCC).
EXTINGUISHMENT:
When a credit or other incorporeal right in
litigation is sold, the debtor shall have a right to
extinguish it by reimbursing the assignee for the
price the latter paid therefor, the judicial costs
incurred by him, and the interest on the price
from the day on which the same was paid.
A credit or other incorporeal right shall be
considered in litigation from the time the
complaint concerning the same is answered.
The debtor may exercise his right within thirty
days from the date the assignee demands
payment from him (Art. 1634, NCC).
EXCEPTIONS - From the provisions of the
preceding article shall be excepted the
assignments or sales made:
1. To a co-heir or co-owner of the right
assigned;
2. To a creditor in payment of his credit;
3. To the possessor of a tenement or piece of
land which is subject to the right in litigation
assigned. (Art. 1635, NCC)
330 Center for Legal Education and Research
12. SPECIAL LAWS RELATED TO SALES
THE BULK SALES LAW
(Act No. 3952, as amended by Rep.
Act No. 111)
Transaction Covered:
Three (3) types of transactions which are
treated as ―bulk sales‖ covered by the Law, as
provided in Section 2:
1. A stock of goods, wares, merchandise,
provisions, or materials not in the ordinary
course of trade and the regular prosecution
of the business of the seller, mortgagor,
transferor, or assignor (―Extraordinary sale
of goods‖);
2. All, or substantially all, of the fi xtures and
equipment used in and about the business
of the seller, mortgagor, transferor or
assignor (―Extraordinary sale of fixtures and
equipment‖); and
3. All, or substantially all, of the business or
trade theretofore conducted by the seller,
mortgagor, transferor, or assignor; (―Sale of
business enterprise‖).
―Bulk Sales‖ Not Covered by the Law
Even if the transaction falls within the definition
of ―bulk sale‖ under Section 2 of the Law, in the
following cases, the Law would not be made to
apply:
1. If the seller, transferor, mortgagor or
assignor produces and delivers a written
waiver of the provisions of the Law from his
creditors as shown by verified statements;
and
2. Transactions effected by executors,
administrators, receivers, assignees in
insolvency, or public officers, acting under
legal process (Villanueva, 2016).
Obligations of Seller/Encumbrancer when
Transaction is a Bulk Sale
1. Before receiving from the buyer, mortgagee,
or his/its agent or representative, any part
of the purchase price thereof, or any
 Purple Notes
promissory note, memorandum, or other
evidence therefor, to deliver to such buyer,
mortgagee or agent, or if the buyer,
mortgagee, or agent be a partnership firm,
then to a member thereof, a written
statement of:
a. Names and addresses of all creditors to
whom said vendor or mortgagor may be
indebted; and
b. Amount of indebtedness due or owing,
or to become due or owing by said
vendor or mortgagor to each of said
creditors (Section 3).
2. Apply the purchase or mortgage money of
the said property to the pro rata payment of
the bona fide claim or claims of the creditors
of the vendor or mortgagor, as shown upon
such sworn statement (Section 4).
3. To make a full detailed inventory and to
preserve the same at least 10 days before
the bulk sale transaction showing the
quantity and, so far as is possible with the
exercise of reasonable diligence, the cost
price to the vendor, transferor, mortgagor or
assignor of each article to be included in the
sale, transfer or mortgage, and notify every
creditor at least ten days before transferring
possession thereof, personally or by
registered mail, of the price, terms
conditions of the sale, transfer, mortgage, or
assignment (Section 5).
Unlawful Act:
It shall be unlawful for any person, firm or
corporation, as owner of any stock of goods,
wares, merchandise, provisions or materials, in
bulk, to transfer title to the same without
consideration or for a nominal consideration only
(Section 7).
Penal Provision
Any person violating any provision of this Act
shall, upon conviction thereof, be punished by
imprisonment not less than six months, nor
more than five years, or fined in sum not
exceeding five thousand pesos, or both such
2018
Civil Law
imprisonment and fine, in the discretion of the
court. (Section 11)
THE SUBDIVISION AND CONDO-
MINIUM BUYERS' PROTECTIVE
DECREE
(PD No. 957, as amended by PD No. 1216)
Definition of Terms
1. The "buy" and "purchase" shall include
any contract to buy, purchase, or otherwise
acquire for a valuable consideration a
subdivision lot, including the building and
other improvements, if any, in a subdivision
project or a condominium unit in a
condominium project.
2. "Subdivision project" shall mean a tract
or a parcel of land registered under Act No.
496 which is partitioned primarily for
residential purposes into individual lots with
or without improvements thereon, and
offered to the public for sale, in cash or in
installment terms. It shall include all
residential, commercial, industrial and
recreational areas as well as open spaces
and other community and public areas in the
project.
3. "Subdivision lot" shall mean any of the
lots, whether residential, commercial,
industrial, or recreational, in a subdivision
project.
4. "Condominium project" shall mean the
entire parcel of real property divided or to
be divided primarily for residential purposes
into condominium units, including all
structures thereon.
5. "Condominium unit" shall mean a part of
the condominium project intended for any
type of independent use or ownership,
including one or more rooms or spaces
located in one or more floors (or part of
parts of floors) in a building or buildings and
such accessories as may be appended
thereto.
Bar Operations C ommissions 331
 Purple Notes
Civil Law
Transfer of Functions
The regulatory functions of the National Housing
Authority pursuant to Presidential Decrees No.
957, 1216, 1344 and other related laws are
hereby transferred to the Housing and Land Use
Regulatory Board (HLURB). (Executive Order No.
648)
Jurisdiction of HLURB
HLRUB shall have exclusive jurisdiction to hear
and decide cases of the following nature:
a. Unsound real estate business practices;
b. Claims involving refund and any other claims
filed by subdivision lot or condominium unit
buyer against the project owner, developer,
dealer, broker or salesman; and
c. Cases involving specific performance of
contractual and statutory obligations filed by
buyers of subdivision lot or condominium
unit against the owner, developer, dealer,
broker or salesman. (Section 1, PD No.
1344)
Procedures for the Registration of Projects
1. The registered owner of a parcel of land
who wishes to convert the same into a
subdivision project shall submit his
subdivision plan to the Authority which shall
act upon and approve the same, upon a
finding that the plan complies with the
Subdivision Standards' and Regulations
enforceable at the time the plan is
submitted. The same procedure shall be
followed in the case of a plan for a
condominium project except that, in
addition, said Authority shall act upon and
approve the plan with respect to the
building or buildings included in the
condominium project in accordance with the
National Building Code (R.A. No. 6541).
2. The subdivision plan shall then be submitted
to the Director of Lands for approval.
3. The condominium plan as likewise so
approved, shall be submitted to the Register
of Deeds of the province or city in which the
332 Center for Legal Education and Research
property lies and the same shall be acted
upon subject to the conditions and in
accordance with the procedure prescribed in
Section 4 of the Condominium Act (R.A. No.
4726).
4. The owner or the real estate dealer
interested in the sale of lots or units,
respectively, in such subdivision project or
condominium project shall register the
project with the HLURB by filing a sworn
registration statement containing the
following information:
a. Name of the owner;
b. The location of the owner's principal
business office, and if the owner is a
non-resident Filipino, the name and
address of his agent or representative in
the Philippines is authorized to receive
notice;
c. The names and addresses of all the
directors and officers of the business
firm, if the owner be a corporation,
association, trust, or other entity, and of
all the partners, if it be a partnership;
d. The general character of the business
actually transacted or to be transacted
by the owner; and
e. A statement of the capitalization of the
owner, including the authorized and
outstanding amounts of its capital stock
and the proportion thereof which is
paid-up.
License to Sell
Owner or dealer to whom has been issued a
registration certificate shall not, however, be
authorized to sell any subdivision lot or
condominium unit in the registered project
unless he shall have first obtained a license to
sell the project within two weeks from the
registration of such project.
Exempt transactions
A license to sell and performance bond shall not
be required in any of the following transactions:
 Purple Notes
a. Sale of a subdivision lot resulting from the
partition of land among co-owners and co-
heirs.
b. Sale or transfer of a subdivision lot by the
original purchaser thereof and any
subsequent sale of the same lot.
c. Sale of a subdivision lot or a condominium
unit by or for the account of a mortgagee in
the ordinary course of business when
necessary to liquidate a bona fide debt.
Revocation of registration certificate and
license to sell
The Authority may, motu proprio or upon
verified complaint filed by a buyer of a
subdivision lot or condominium unit, revoke the
registration of any subdivision project or
condominium project and the license to sell if
shall appear there is satisfactory evidence that
the said owner or dealer:
a. Is insolvent; or
b. has violated any of the provisions of this
Decree or any applicable rule or regulation
of the Authority, or any undertaking of
his/its performance bond; or
c. Has been or is engaged or is about to
engage in fraudulent transactions; or
d. Has made any misrepresentation in any
prospectus, brochure, circular or other
literature about the subdivision project or
condominium project that has been
distributed to prospective buyers; or
e. Is of bad business repute; or
f. Does not conduct his business in accordance
with law or sound business principles.
Procedure for revocation of registration
certificate
In the hearing for determining the existence of
any ground or grounds for the suspension
and/or revocation of registration certificate and
license to sell the following shall be complied
with:
2018
Civil Law
a. Notice. No such hearing shall proceed unless
the respondent is furnished with a copy of
the complaint against him or is notified in
writing of the purpose of such hearing.
b. Venue. The hearing may be held before the
officer or officers designated by the
Authority on the date and place specified in
the notice.
c. Nature of proceeding. The proceedings shall
be non-litigious and summary in nature
without regard to legal technicalities
obtaining in courts of law. The Rules of
court shall not apply in said hearing except
by analogy or in a suppletory character and
whenever practicable and convenient.
d. Power incidental to the hearing. For the
purpose of the hearing or other proceeding
under this Decree, the officer or officers
designated to hear the complaint shall have
the power to administer oaths, subpoena
witnesses, conduct ocular inspections, take
depositions, and require the production of
any book, paper, correspondence,
memorandum, or other record which are
deemed relevant or material to the inquiry.
Mortgages
No mortgage on any unit or lot shall be made by
the owner or developer without prior written
approval of the Authority.
Non-Forfeiture of Payments
No installment payment made by a buyer in a
subdivision or condominium project for the lot or
unit he contracted to buy shall be forfeited in
favor of the owner or developer when the buyer,
after due notice to the owner or developer,
desists from further payment due to the failure
of the owner or developer to develop the
subdivision or condominium project according to
the approved plans and within the time limit for
complying with the same. Such buyer may, at
his option, be reimbursed the total amount paid
including amortization interests but excluding
delinquency interests, with interest thereon at
the legal rate.
Bar Operations C ommissions 333
 Purple Notes
Civil Law
Failure to pay installments
The rights of the buyer in the event of this
failure to pay the installments due for reasons
other than the failure of the owner or developer
to develop the project shall be governed by
Republic Act No. 6552 (Maceda Law).
THE CONDOMINIUM ACT
(RA No. 4726, as amended by RA No.
7899)
Condominium; Definition
A condominium is an interest in real property
consisting of separate interest in a unit in a
residential, industrial or commercial building and
an undivided interest in common, directly or
indirectly, in the land on which it is located and
in other common areas of the building. A
condominium may include, in addition, a
separate interest in other portions of such real
property (Section 2).
Effects of Transfer or Conveyance of Unit
Any transfer or conveyance of a unit or an
apartment, office or store or other space
therein, shall include the transfer or conveyance
of the undivided interests in the common areas
or, in a proper case, the membership or
shareholdings in the condominium corporation
(Section 5).
Incidents of Condominium Grants
Unless otherwise expressly provided in the
enabling or master deed or the declaration of
restrictions, the incidents of a condominium
grant are as follows:
a. The boundary of the unit granted are the
interior surfaces of the perimeter walls,
floors, ceilings, windows and doors thereof.
b. There shall pass with the unit, as an
appurtenance thereof, an exclusive
easement for the use of the air space
encompassed by the boundaries of the unit
as it exists at any particular time and as the
334 Center for Legal Education and Research
unit may lawfully be altered or reconstructed
from time to time.
c. Unless otherwise, provided, the common
areas are held in common by the
holders of units, in equal shares, one for
each unit.
d. A non-exclusive easement for ingress,
egress and support through the
common areas is appurtenant to each unit
and the common areas are subject to such
easements.
e. Each condominium owner shall have the
exclusive right to paint, repaint, tile,
wax, paper or otherwise refinish and
decorate the inner surfaces of the walls,
ceilings, floors, windows and doors
bounding his own unit.
f. Each condominium owner shall have the
exclusive right to mortgage, pledge or
encumber his condominium and to
have the same appraised
independently of the other
condominiums but any obligation incurred
by such condominium owner is personal to
him. Each condominium owner has also the
absolute right to sell or dispose of his
condominium unless the master deed
contains a requirement that the property be
first offered to the condominium owners
within a reasonable period of time before
the same is offered to outside parties.
(Section 6)
Partition of Common Areas
General Rule: The common areas shall remain
undivided, and there shall be no judicial partition
thereof (Section 7).
Exception: An action may be brought by one or
more owners for partition thereof by sale of the
entire project, as if the owners of all of the
condominiums in such project were co-owners
of the entire project in the same proportion as
their interests in the common areas: Provided,
however, That a partition shall be made only
upon a showing:
a. That three years after damage or
destruction to the project which renders
material part thereof unit for its use prior
 Purple Notes
thereto, the project has not been rebuilt or
repaired substantially to its state prior to its
damage or destruction, or
b. That damage or destruction to the project
has rendered one-half or more of the units
therein untenantable and that condominium
owners holding in aggregate more than
thirty percent interest in the common areas
are opposed to repair or restoration of the
project; or
c. That the project has been in existence in
excess of fifty years, that it is obsolete and
uneconomic, and that condominium owners
holding in aggregate more than fifty percent
interest in the common areas are opposed
to repair or restoration or remodeling or
modernizing of the project; or
d. That the project or a material part thereof
has been condemned or expropriated and
that the project is no longer viable, or that
the condominium owners holding in
aggregate more than seventy percent
interest in the common areas are opposed
to continuation of the condominium regime
after expropriation or condemnation of a
material portion thereof; or
e. That the conditions for such partition by sale
set forth in the declaration of restrictions,
duly registered in accordance with the terms
of this Act, have been met.
Condominium Corporation; Nature; Term;
Restrictions:
A corporation specially formed in which the
holders of separate interest shall automatically
be members or shareholders, to the exclusion of
others, in proportion to the appurtenant interest
of their respective units in the common areas.
(Section 2).
The term of a condominium corporation shall be
co-terminus with the duration of the
condominium project, the provisions of the
Corporation Law to the contrary notwithstanding
(Section 11).
A condominium corporation shall not, during its
existence, sell, exchange, lease or otherwise
dispose of the common areas owned or held by
it in the condominium project unless authorized
2018
Civil Law
by the affirmative vote of all the stockholders or
members (Section 16).
Magna Carta for Homeowners and
Homeowner’s Associations Act (R.A. 9904)
"Association" refers to the homeowners‘
association which is a nonstick, nonprofit
corporation registered with the Housing and
Land Use Regulatory Board (HLURB), or one
previously registered with the Home Insurance
Guarantee Corporation (now Home Guaranty
Corporation) or the Securities and Exchange
Commission (SEC), organized by owners or
purchasers of a lot in a subdivision/village or
other residential real property located within the
jurisdiction of the association; or awardees,
usufructuaries, legal occupants and/or lessees of
a housing unit and/or lot in a government
socialized or economic housing or relocation
project and other urban estates; or
underprivileged and homeless citizens as defined
under existing laws in the process of being
accredited as usufructuaries or awardees of
ownership rights under the Community
Mortgage Program (CMP), Land Tenure
Assistance Program (LTAP) and other similar
programs in relation to a socialized housing
project actually being Implemented by the
national government or the LGU.
"Association member" refers to a homeowner
who is a member of the association where
his/her housing unit or lot is situated and those
defined in the articles of incorporation and
bylaws of the association.
"Homeowner" refers to any of the following;
(1) An owner or purchaser of a lot in a
subdivision/village;
(2) An awardee, usufructuary, or legal occupant
of a unit, house and/or lot in a government
socialized or economic housing or relocation
project and other urban estates; or
(3) An informal settler in the process of being
accredited as beneficiary or awardee of
Bar Operations C ommissions 335
 Purple Notes
Civil Law
ownership rights under the CMP, LTAP, and
other similar programs (Sec. 3[j], RA 9904).
Registration with the HLURB
Every association of homeowners shall be
required to register with the HLURB. This
registration shall serve to grant juridical
personality to all such associations that have not
previously acquired the same by operation of
the General Corporation Law or by any other
general law (Sec. 4, R.A. 9904).
Qualification of a Member:
1. A homeowner as defined under this Act shall
be qualified to be a member of an association
2. That a lessee, usufructuary, or legal occupant
shall have the right of a homeowner as set
forth under this Act upon procurement of a
written consent or authorization from the
owner of the lot or housing unit (Sec. 6, RA
9904)..
Rights of a Member:
(a) To avail of and enjoy all basic community
services and the use of common areas and
facilities;
(b) To inspect association books and records
during office hours and to be provided upon
request with annual reports, including
financial statements;
(c) To participate, vote and be eligible for any
elective or appointive office of the association
subject to the qualifications as provided for in
the bylaws;
(d) To demand and promptly receive deposits
required by the association as soon as the
condition for the deposit has been complied
with or the period has expired;
(e) To participate in association meetings,
elections and referenda, as long as his/her
bona fide membership subsists; and
(f) To enjoy all other rights as may be provided
for in the association bylaws (Sec. 7, RA
9904)..
336 Center for Legal Education and Research
Duties of a Member:
(a) to pay membership fees, dues and special
assessments;
(b) to attend meetings of the association; and
(c) to support and participate In projects and
activities of the association (Sec. 8, RA 9904)..
B. TRUSTS
DEFINITION
A trust is the legal relationship between one
person having an equitable ownership of
property and another person owning the legal
title to such property, the equitable ownership of
the former entitling him to the performance of
certain duties and the exercise of certain powers
by the latter (Estate of Cabacungan v. Laigo, G.R.
No. 175073, August 15, 2011).
A trust is a juridical relationship that exist
between one person having the equitable title or
beneficial enjoyment of property, real or
personal, and another having the legal title
thereto (Inocencia Deluao v. Nicanor Casteel, G.R.
No. L-21906, December 24, 1968). The person who
establishes the trust is the trustor (or grantor);
one in whom confidence is reposed as regards
property for the benefit of another person is
known as the trustee (fiduciary), and the person
for whose benefit the trust has been created is
referred to as the beneficiary (cestui que trust).
The Civil Code has adopted the principles of the
general law of trusts, insofar as they are not in
conflict with its provisions, the Code of
Commerce, the Rules of Court, and Special
Laws.
What distinguishes a trust from other relations is
the separation of the legal title and equitable
ownership of the property. In a trust relation,
legal title is vested in the fiduciary while
equitable ownership is vested in a cestui que
trust.
A trust, terminates upon the death of the
trustee, particularly where the trust is personal
to him, in the sense that the trustor intended no
other person to administer it (De Leon, Comments
 Purple Notes
and Cases on Partnership, Agency, and Agency, 2010,
p.621)
CHARACTERISTICS OF A TRUST
1. It is a relationship;
2. It is a relationship of fiduciary character;
3. It is a relationship with respect to property,
not one involving merely personal duties;
4. It involves the existence of equitable duties
imposed upon the holder of the title to the
property to deal with it for the benefit of
another; and
5. It arises as a result of a manifestation of
intention to create the relationship.
KINDS OF TRUST:
1. Express Trust - Express or direct trusts are
created by the direct and positive acts of the
parties, by some writing or deed, or will, or
by oral declaration in words evincing an
intention to create a trust.
2. Implied Trust - also called "trusts by
operation of law," "indirect trusts" and
"involuntary trusts" – arise by legal
implication based on the presumed intention
of the parties or on equitable principles
independent of the particular intention of
the parties. They are those which, without
being expressed, are deducible from the
nature of the transaction as matters of
intent or, independently of the particular
intention of the parties, as being inferred
from the transaction by operation of law
basically by reason of equity.
Express Trust and Implied Trust
Distinguished
Express Trust Implied Trust
As to Creation
Created by the intention By operation of law
of the parties
As to Proof of Trust
An express trust over an An implied trust over an
immovable property or immovable property or
any interest therein any interest therein may
cannot be proved by be proved by oral
parol evidence. evidence
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Civil Law
As to Repudiation of Trust
An express repudiation In constructive trusts,
made known to the even if there is no
beneficiary is necessary repudiation, laches may
in order that laches or bar an action to enforce
acquisitive prescription an implied trust.
may bar an action to
enforce an express trust.
(Jurado, Comments and Jurisprudence on Obligations
and Contracts, 2010, p. 659)
EXPRESS TRUST
Express trust are those which are created by the
direct and positive acts of the parties, by some
writing or dead, or by will, or by words evincing
an intention to establish a trust. No particular
words are required for the creation of an
express trust (Art. 1444, NCC). No express trust
concerning an immovable or any interest therein
may be proved by parole evidence.
No trust shall fail because the trustee appointed
declines the designation, unless the contrary
should appear in the instrument constituting
trust (Art. 1445, NCC). Acceptance by the
beneficiary is necessary. Nevertheless, if the
trust imposes no onerous condition upon the
beneficiary, his acceptance shall be presumed
unless there is proof to the contrary (Art. 1446,
NCC). This acceptance by the beneficiary is not
subject to the law on donation.
Neither laches nor prescription is a bar to
enforce an express trust. Either laches or
prescription, however, may constitute a bar to
enforce an implied trust. Thus, an action to
recover an immovable under a constructive trust
prescribes in 10 years counted from the date the
Transfer Certificate of Title was issued in the
name of the repudiating possessor (Paz
Villagonzalo v. Intermediate Appellate Court, G.R. No.
71110, November 22, 1988).
Elements of Express Trust:
1. A trustor or settlor who executes the
instrument creating the trust;
2. A trustee, who is the person expressly
designated to carry out the trust;
Bar Operations C ommissions 337
 Purple Notes
Civil Law
3. The trust res, consisting of duly identified
and definite real properties; and
4. The cestui que trust, or beneficiaries whose
identity must be clear (De Leon, Comments
and Cases on Partnership, Agency, and Trusts,
2010, p. 627).
Termination of Express Trust
1. Expiration of period fixed;
2. Accomplishment of purpose;
3. Mutual Agreement of beneficiaries;
4. Exercise of power to terminate De Leon,
Comments and Cases on Partnership, Agency,
and Trusts, 2010, p. 630).
Kinds of Express Trust
1. Charitable Trust – one designed for the
benefit of a segment of the public or of the
public in general. It is one created for
charitable, educational, social, religious, or
scientific purposes, or for the general benefit
of humanity. A private trust is not for the
good of the public in general or society as a
whole;
2. Accumulation Trust – one that will
accumulate income to be reinvested by the
trustee in the trust for the period of the time
specified;
3. Spendthrift trust – one established when
the beneficiary need to be protected,
because of his inexperience or immaturity
from his imprudent spending habits or simply
because the beneficiary is Spendthrift.
Income will be paid to the beneficiary only
when actually necessary. Under some
circumstances, the trustee will pay directly
the creditor for obligations of the beneficiary;
and
4. Sprinkling trust – one that gives the trustee
the right to determine the income
beneficiaries who should receive income each
year and the amount thereof. Income that is
not distributed an any given year is added to
the corpus, as in an accumulation trust. It is
a discretionary trust if it gives the trustee the
discretion to pay or not to pay the income or
principal (De Leon, Comments and Cases on
Partnership, Agency, and Trusts, 2010, p. 635).
338 Center for Legal Education and Research
When trustee may sue or be sued alone.
In order that a trustee may sue or be sued
alone, it is essential that his trust be express,
that is, a trust created by the direct and positive
acts of the parties, by some writing, deed, or
will or by proceedings in court (Phil. Airlines, Inc.
v. Heald Lumber Co., G.R. No. L-11497, August 16,
1957).
Acceptance, declination, or renunciation
by the trustee (Art. 1445, NCC)
Acceptance
In the case of an express trust, acceptance of
trust by a trustee is necessary to charge him
with the office of the trustee and the
administration of the trust and to vest the legal
title in him. However, his acceptance of the trust
is not necessary to its existence and validity,
since if he declines he trust, the courts will
appoint a trustee to fill the office that he
declines (54 Am. Jur. 107; see Sec. 3, Rule 98, Rules
of Court).
Declination
One designated or appointed as trustee may
decline the responsibility and thereby be free
from any legal or equitable duty or liability in the
matter. Unless a contrary intention appears in
the instrument constituting the trust (Art. 1145),
declination or refusal or disqualification of a
trustee does not operate to defeat or void the
trust; nor does it operate to vest legal as well as
equitable title in the beneficiary (54 Am. Jur. 108).
Renunciation
Renunciation of a trust after its acceptance can
only be by resignation or retirement with court
approval or at least, with agreement of
beneficiaries and on satisfaction of all legal
liabilities growing out of the acceptance of the
trust. A contract to renounce, for a pecuniary
consideration, the right to act as a trustee has
generally been recognized to be against public
policy (Ibid). When a person administering
property in the character of trustee
inconsistently assumes to be holding on his own
right, this operates as renunciation of the trust
and the beneficiaries in the property are entitled
 Purple Notes
to maintain an action to declare their right and
remove the unfaithful trustee (Martinez v. Grano,
G.R. No. 16709, August 8, 1921).
IMPLIED TRUST
� Implied trusts are those which, without
being express, are deductible from the
nature of the transaction as matters of intent
or, independently of the particular intention
of the parties, as being super-induced on the
transaction by operation of law basically by
reason of equity. These species of implied
trust are ordinarily subdivided into resulting
and constructive trust De Leon, Comments and
Cases on Partnership, Agency, and Trusts, 2010,
p. 638).
Kinds of Implied Trust
1. Resulting Trust - A resulting trust is one
that arises by implication of law and presumed
always to have been contemplated by the
parties, the intention as to which can be found
in the nature of their transaction although not
expressed in a deed or instrument of
conveyance. Resulting trust are based on the
equitable doctrine that it is the more valuable
consideration than the legal title that determines
the equitable interest in property. Implied trusts
of this nature are describable as ―intention-
enforcing trusts.‖
2. Constructive Trust - On the other hand, a
constructive trust, is a trust not created by any
word or phrase, either expressly or impliedly,
evincing a direct intention to create a trust, but
one that arises in order to satisfy the demands
of justice. It does not come about by agreement
or intention but in main by operation of law
construed against one who, by fraud, duress, or
abuse of confidence, obtains or holds the legal
right to property which he ought not, in equity
and good conscience, to hold. This kind of trust
is aptly characterized as ―fraud-rectifying trust,‖
imposed by equity to satisfy the demands of
justice and to defeat or prevent the wrongful act
of one of the parties.
Articles 1448 to 1456 of the Civil Code
enumerate cases of implied trust, but the list
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Civil Law
according to Article 1447 is not exclusive of
others which may be established by the general
law on trusts so long as the limitations laid down
in Article 1442 are observed.
C. AGENCY
I. DEFINITION OF AGENCY
Contract whereby a person (agent) binds himself
to render some service or to do something in
representation or on behalf of another
(principal), with the consent or authority of the
latter (Art. 1868, NCC).
Elements of Agency
The essence of agency is representation. In the
case of Tuazon v. Ramos (G.R. No. 156262 July
14, 2005), the Court had the occasion to set forth
the elements of agency, thus:
1. The parties‘ consent, express or implied, to
establish the relationship;
2. The object, which is the execution of a
juridical act in relation to a third person;
3. The representation, by which the one who
acts as an agent does so, not for oneself,
but as a representative;
4. The limitation that the agent acts within the
scope of his or her authority
PARTIES
Principal – The person represented by the
agent and from whom the latter derives his
authority; he is the party primarily and originally
concerned in the contract of agency.
Agent – He who acts for and represents the
principal and from whom he derives his
authority (De Leon, Comments and Cases on
Partnership, Agency and Trusts, 2010, 328).
Capacity of the Parties
1. Principal – A principal must be capacitated
or have the legal capacity to enter into contract
in his own right (9
Bar Operations C ommissions 339
 Purple Notes
Civil Law
2. Agent 3. Bilateral – The parties are bound reciprocally
to each other.
General Rule: Anyone can be an agent. His 4. Onerous – It is presumed to be for a
capacity is usually immaterial. It is the capacity compensation, unless there is proof to the
of the principal that is controlling since the contrary. (Art. 1875, NCC)
contract is really entered into by the principal. In 5. Consensual – It is perfected by mere
the case of the agent, since he assumes no consent.
personal liability, he does not have to possess 6. Nominate – It has a name given to it by law.
full capacity to act for himself insofar as third (Art. 1868, NCC)
persons are concerned. 7. Commutative – The parties give and receive
almost equivalent values; hence, there is real
Exception: However, some mental capacity is fulfillment.
necessary as an agent, and, therefore, persons
who are absolutely incapacitated, such as insane Agency and Similar Contracts or Relations
persons, cannot be agents (2 C.J.S. 1041) as
they are completely incapable of understanding AGENCY LOAN
the task to be performed. Principals should When there is a financing Where money
appoint agents who are able to make sound of operations to be advanced to another is
decisions in carrying out the agency (De Leon, carried on by another for expressly regarded as
Comments and Cases on Partnership, Agency, and the mutual advantage of money lent, no agency
Trusts, 2010, p. 333). both, without any results.
obligation of such other
to return the money
Theory of Imputed Knowledge
advanced, makes such
The knowledge of the agent is imputed to the other an agent rather
principal even though the agent never than a borrower (2.
communicated such knowledge to the principal C.J.S. 1030).
(see Art. 1821). Thus, it is only logical that the
agent is required to notify the principal of all AGENCY INDEPENDENT
matters that came to his attention that are CONTRACT
material to the subject matter of the agency (De The agent is subject to In a contract for a
Leon, Comments and Cases on Partnership, Agency, the control and direction piece of work, the
and Trusts, 2010, p. 344). of the principal independent
contractor, without
Exceptions to the Rule: being subject to the
1. Where the agent‘s interests are adverse to control of the
those of the principal; employer except only
2. Where the agent‘s duty is not to disclose as to the result of the
the information, as where he is informed by work, exercises his
way of confidential information; and employment
independently, and not
3. Where the person claiming the benefit of
in representation of
the rule colludes with the agent to defraud the employer.
the principal (Teller, op. cit., p.150).
AGENCY NEGOTIORUM
Characteristics of Contract of Agency (De
GESTIO
Leon, Comments and Cases on Partnership, Agency,
Representation is Representation is
and Trusts,2010, p. 325):
expressly conferred without authority and
knowledge of the
1. Principal – It can stand by itself. owner of the business
2. Preparatory – It is a means by which other
contracts may be entered into.

340 Center for Legal Education and Research

 Purple Notes 2018
Civil Law

AGENCY BROKERAGE AGENCY GUARDIANSHIP

A commission agent is
one engaged in the
purchase or sale for
another of personal
property which for this
purpose, is placed in his
possession and at his
disposal. He maintains a
relation not only with his
principal and the
purchaser or vendor, but
also with the property
which is the subject
matter of the transaction.
Receives a commission
upon the successful
conclusion of a and
transaction such as a
sale.
AGENCY
In an agency to sell, the
agent receives the goods
of the principal.
In an agency to sell, the
agent delivers the
proceeds of the sale.
In an agency to sell, the
agent can return the
object in case he is
unable to sell the same
to a third person.
In an agency to sell, the
agent, in dealing with the
thing received, is bound
to act according to the
instructions of his
principal.
Appointment of one to
act for another.
AGENCY
The agent is subject to
the control and direction
of the principal.
A broker has no Agent derives authority The guardian does not
relation with the thing form principal. derive his authority
he buys or sells. He is from the ward.
merely an Agent represents one A guardian represents
intermediary or who has capacity to one who has no such
negotiator between contract for himself. capacity.
the purchaser and the
vendor relative to the
AGENCY JUDICIAL
property with the ADMINISTRATION
custody or possession
The agent is only A judicial administrator
of which he has no
answerable to his is appointed by the
concern. His only
principal. court. He is not only
office is to bring
the representative of
together the parties to
the said court, but also
the transaction never
of the heirs and
acting in his own
creditors of the estate.
name but on the name
of those who
employed him. AGENCY PARTNERSHIP
Earns his pay merely Acts for the principal Acts for himself, his
by bringing the buyer firm, and for his
the seller partners
together, even if no
sale is eventually LEASE OF
made. AGENCY
SERVICE
Agent represents the The worker or the
SALE principal lessor of services does
The buyer receives the not represent his
goods as owner. employer
Relationship can be Generally, the
The buyer pays the terminated at the will of relationship can be
price. either principal or agent terminated only at the
will of both parties
The buyer, as a Agent exercises The employee has
general rule, cannot discretionary powers ministerial functions
return the object sold. Usually involves three Usually involves only
persons: the principal, two persons
the agent, and a stranger
The buyer can deal
with the thing as he
pleases, being the AGENCY TRUST
owner. Agent usually holds no Trustee may hold legal
title at all title to the property
Usually, agent acts in the The trustee may act in
There is transfer of name of the principal his own name
title to a thing from Usually, agent may be The trust is usually
one another. terminated or revoked ended by the
at any time accomplishment
of the purposes
BAILMENT
for which it was
Bailor has no control formed
over the bailee beyond
Agency may not be Trust involves control
what is given him by
connected at all with over property
contract.
property

Bar Operations C ommissions 341

 Purple Notes
Civil Law
Agent has authority to Trustee does not Requisites in order to bind principal by
make contracts which will necessarily or even agent’s acts:
be binding on his possess such authority
principal to bind the trustor or 1. Agent must act within the scope of his
the cestui que trust.
authority (Art. 1881, NCC); and
Agency is really a A trust may be the
2. Agent must act in the name of the principal.
contractual relation. result of the contract
or not; it may be
created also by law Effect of Acting Beyond Scope of
(Paras, Civil Code Annotated, 2008; De Leon, Comments and Authority:
Cases on Partnership, Agency, and Trusts, 2010, p. 345 -
369) General Rule: Principal is not bound. A
contract entered into by an agent who has acted
HOW AGENCY RELATIONSHIP IS CREATED beyond his powers is unenforceable, unless it is
ratified by the principal (Art. 1317 and 1403[1],
A. By Appointment NCC).

This is usually made by giving a person a power
of attorney (Art. 1871, NCC).
B. By Ratification
An agency by ratification is created when a
person adopts or confirms an act performed by
another in his behalf without prior authority (Art.
1869, NCC).
C. By Estoppel
The following must be established:
a. The principal manifested representation of
the agent‘s authority or knowingly allowed
the agent to assume such authority;
b. The third person, in good faith, relied upon
such representation; and
c. Relying upon such representation, such third
person has changed his position to his
detriment. (Country Bankers Insurance Corp. v.
Keppel Cebu Shipyard, G.R. No. 166044, June 18,
2012)
D. By necessity
An agency by necessity arises when an
emergency makes it necessary for one to act for
another without receiving any authority from the
latter.
Exceptions: Principal is liable in the following
situations even if the agent acted beyond the
scope of his authority-
1. When the principal ratifies the agent‘s act,
either expressly or impliedly (Art. 1910, NCC).
2. Principal is solidarily liable if he allowed the
agent to act as though the latter had full
powers (Art. 1911, NCC).
3. If the limitations to the agent‘s authority is
known only between the agent and principal
and not to third persons (Art. 1900, NCC).
4. Where the principal placed in the hands of
the agent instruments signed by him in
blank.
B. Exception (Art. 1883)
Effect of agent acting in his own name:
1. Principal has no right of action against the
third person with whom the agent has
contracted (Art. 1883, NCC).
2. Third person has no right of action against
the principal (Id).
3. Agent is the one directly bound in favor of
contracted as if the transaction were his
own, except when the contract involves
things belonging to the principal (Art.
1883[2], NCC).

II. POWERS (Arts. 1877-1878)

A. To bind principal (Arts. 1897-1902)

342 Center for Legal Education and Research

 Purple Notes
Acts, which may be delegated to an agent
(subject matter of agency):
General Rule: What he may do in person, he
may do through another (Qui facit per alium
facit per se).
Exceptions:
1. Peculiarly personal acts; and
2. Illegal acts
Delegation of Authority (Sub-Agent):
1. When permissible: Agent may appoint a
substitute if the principal has not prohibited
him from doing so (Art. 1892, NCC).
2. Effect as between principal and third
person:
If substitution is not prohibited: The acts of
the substitute will produce the same effect
between the principal and third persons as if
they were those of the agent himself.
If substitution is prohibited: All acts of the
substitute appointed against the prohibition
of the principal shall be void (Art. 1892, last
par., NCC).
3. Effects as between principal and
agent:
i. If agent is not empowered to appoint a
substitute but not prohibited: Agent shall be
responsible for the acts of the substitute
(Art. 1892[1], NCC).
ii. If agent is empowered:
a. But principal did not designate a
particular person: Agent is responsible for
the acts of the substitute if the substitute
was notoriously incompetent or insolvent
(Art. 1892, NCC).
b. But principal designated a particular
person: Substitution is the act of the
principal himself rather than of the agent.
2018
Civil Law
Consequently, the agent is totally and
absolutely exempt from responsibility for
the acts of the sub-agent.
iii. If agent is prohibited from appointing
substitute: The agent acts beyond the scope
of his authority and shall be held liable for
whatever damage that may result.
4. Effect as between principal and
substitute: Both substitute and agent are
directly and personally liable to the principal
for the acts of substitute if—
Agent appoints a substitute although not
empowered to do so; or
Even if empowered, agent selects a
substitute who is notoriously incompetent or
insolvent (Art. 1893, NCC).
III. KINDS OF AGENCY
A. According to form
EXPRESS V. IMPLIED AGENCY
EXPRESS – One where the agent has been
actually authorized by the principal, either orally
or in writing.
1. Oral Agreement – An oral agency is valid
unless the law requires a specific form. (Art.
1869, NCC)
2. Written Agreement:
a. Those that require a specific power of
attorney, such as those enumerated
under Art. 1878. The act performed is
not enforced against the principal, if the
power of attorney is not special.
b. When the sale of a piece of land or an
interest therein (such as easement and
usufruct) is made through an agent, the
authority of the agent must be in writing
otherwise the sale is void. (Art. 1874,
NCC)
IMPLIED AGENCY – One, which is implied
from:
1. Acts of the principal.
Bar Operations C ommissions 343
 Purple Notes
Civil Law
2. Silence of the principal.
3. Lack of action of the principal.
4. Failure of the principal to repudiate the
agency knowing that another person is
acting in his behalf without authority. (Art.
1869, NCC)
 As indicated in Article 1869, the principal
must know ―that the person is acting on
his behalf without authority‖ for an
agency to be implied. (De Leon,
Comments and Cases on Partnership, Agency
and Trusts, 2010, p. 373)
B. According to extent
1. General Agency – One that comprises all the
business of the principal
2. Special Agency – One that comprises one or
more specific transaction (De Leon, Comments
and Cases on Partnership, Agency, and Trusts,
2010, p. 403).
C. According to authority conferred
1. Agency couched in general terms (General
Power of Attorney) - This comprises only
acts of administration. This is true even if
the principal should state:
a. That he withholds no power; or
b. That the agent may execute acts as he may
consider appropriate; or
c. Even though the agency should authorize a
general and unlimited management. (Art.
1877, NCC)
 A general agency must not be confused
with one couched in general terms
which is a special agency when it
involves only one or more specific
transactions (De Leon, Comments and
Cases on Partnership, Agency and Trusts,
2010, p. 403)
Effect: The authority conferred in general terms
is confined to acts of administration. They are
those that do not involve acts of dominion, such
as alienations, except where they are incidental
to the authority to administer.
344 Center for Legal Education and Research
2. Agency couched in specific terms – A special
power of attorney is required for the
performance of the following specific acts
(Art. 1878, NCC):
a. To make such payments as are not
usually considered as acts of
administration;
b. To effect novations which put an end to
obligations already in existence at the
time the agency was constituted;
c. To compromise, to submit questions to
arbitration, to renounce the right to
appeal from a judgment, to waive
objections to the venue of an action or to
abandon a prescription already acquired;
d. To waive any obligation gratuitously;
e. To enter into any contract by which the
ownership of an immovable is
transmitted or acquired either
gratuitously or for a valuable
consideration;
f. To make gifts, except customary ones for
charity or those made to employees in
the business managed by the agent;
g. To loan or borrow money, unless the
latter act be urgent and indispensable for
the preservation of the things which are
under administration;
h. To lease any real property to another
person for more than one year;
i. To bind the principal to render some
service without compensation;
j. To bind the principal in a contract of
partnership;
k. To obligate the principal as a guarantor
or surety;
l. To create or convey real rights over
immovable property;
m. To accept or repudiate an inheritance;
n. To ratify or recognize obligations
contracted before the agency;
o. Any other act of strict dominion
Powers not included:
1. Special power to sell excludes the power to
mortgage; and a special power to mortgage
does not include the power to sell. (Art. 1879,
NCC)
 Purple Notes 2018
Civil Law
2. Special power to compromise does not Elements:
authorize submission to arbitration (Art. 1880,
NCC) 1. Representation by the principal;
2. Reliance upon such representation by a third
 When the sale through an agent person; and
involves a piece of land or any interest 3. Change of position by such third person in
thereon, the authority of the agent shall reliance upon such representation.
be in writing; otherwise the sale shall be
void. (Art. 1874, NCC) AGENCY BY
IMPLIED AGENCY
 Agency is generally not presumed. The ESTOPPEL
relation between principal and agent must Between the principal and the agent
exist as a fact. However, a presumption of In an implied agency, In an agency by
agency may arise in cases where an agency the agent is a true estoppel (caused for
agent, with rights and instance by estoppel on
may arise by operation of law or to prevent
duties of an agent. the part of the agent),
unjust enrichment. (De Leon, Comments and the ―agent‖ is not a true
Cases on Partnership, Agency and Trusts, 2010, agent; hence he has no
p. 375) rights as such.
As to third persons
Doctrine of Agency by Necessity
In an implied agency, If the estoppel is
the principal is always caused by the principal,
By virtue of the existence of an emergency, the liable. he is liable, but only if
authority of an agent is correspondingly the third person acted
enlarged in order to cope with the exigencies or on the
the necessities of the moment. The five misrepresentation.
conditions laid down for authority of agency by In an implied agency, If the estoppel is
necessity are: the agent is never caused by the agent, it
personally liable. is only the agent who is
1. The real existence of an emergency; liable, never the alleged
2. Inability of the agent to communicate with principal.
the principal;
3. Exercise of the additional authority for the GENERAL V. SPECIAL AGENCY
principal‘s own protection;
GENERAL AGENT SPECIAL AGENT
4. The adoption of fairly reasonable means,
Scope of Authority
premises duly considered;
Usually authorized to do Authorized to do only
5. The ceasing of the authority the moment all acts connected with one or more specific
the emergency no longer demands the the business in which acts in pursuance of
same. (Paras, Civil Code of the Philippines he is engaged particular instructions or
Annotated, 2008, p. 785) with restrictions
necessarily implied from
AGENCY BY ESTOPPEL the act to be done
Continuity
There is agency by estoppel where a person, by Conducts a series of Usually involves a single
transactions involving a transaction or a series
words or conduct, represents or permits it to be
continuity of service of transactions not
represented that another person is his agent. In
involving continuity of
such a case, he is stopped to deny the agency service
as against third persons who have dealt, on the
faith of such representation, with the person so
Extent to which agent may bind principal
held out as agent, even if no agency existed in Binds his principal by an Cannot bind his
fact. act within the scope of principal in a manner
his authority although it beyond or outside the

Bar Operations C ommissions 345

 Purple Notes
Civil Law
may be contrary to his specific acts which he is
special instructions authorized to perform
Termination of authority
Apparent authority does Termination effective as
not terminate by mere to third party unless
revocation of authority agency was for purpose
without notice to third of contracting with that
parties third party
Construction of instructions of principal
Statement of principal Authority of the agent
with respect to the must be strictly
agent‘s authority would construed
ordinarily be regarded
as advisory only
AGENCY COUCHED IN GENERAL TERMS
Not affected by other statements of
principal
If the mandate conferred by the principal is
couched in general terms, the fact that the
principal made the following statements will not
extend the authority beyond the performance of
mere acts of administration: (1) He withholds no
power, (2) the agent may execute such acts as
he may consider appropriate; (3) That the
mandate authorizes ―a general and unlimited
management (Art. 1877, NCC).‖
AGENCY BY OPERATION OF LAW
The heirs‘ duty to continue the agency after the
death of the agent arises from what may be
termed as an agency by operation of law or
a presumed or tacit agency. (11 Manresa 588;
Arts. 1884, par. 2, 1885, 1929, and 1931) Of course,
the heirs can continue the agency only
temporarily for, as we have seen, the essence of
the contract is personal confidence. The
principal has a right to an agent of his choice.
There is nothing to suggest that he would or
should expect the authority to pass to the
agent‘s heirs or personal representatives. (De
Leon, 2010, supra, p.618)
IV. OBLIGATIONS OF AGENT TO
PRINCIPAL
a. If Agency was declined – In case a
person declines an agency:
346 Center for Legal Education and Research
 Such person is bound to observe the
diligence of a good father of a family in the
custody and preservation of the goods
forwarded to him by the owner until the
latter should appoint an agent or take
charge of the goods (Art. 1885, NCC).
 The owner, as soon as practicable, must
either appoint an agent or take charge of
the goods (Art. 1885, NCC).
b. If Agency Was Accepted
1. Obligation to carry out agency
What constitutes ―carrying out‖ – It means
to perform whatever acts may be necessary to
bring the business to conclusion.
Effect of principal’s death – Death of the
principal extinguishes the agency (Art. 1919[3],
NCC). However, the agent is obligated to finish
the business already begun on the death of the
principal, should delay entail any danger (Art.
1884[2], NCC).
Liability for damages in case of non-
performance - Agent is liable for damages
which, through his non-performance, the
principal may suffer (Art. 1884[1], NCC). But if,
after non-performance, the principal confers a
second mandate for the same purpose, this will
bar an action for damages as it constitutes a
tacit assent to the conduct of the agent under
the first agency.
Cases when agent is not bound to carry
out the agency – If its execution would
manifestly result in loss or damage to the
principal (Art. 1888, NCC).
2. Obligation to advance funds
General Rule: Agent is not bound to advance
the necessary funds to carry out the agency.
Exception: Unless there is stipulation to that
effect.
Exception to the exception: Even if there is a
stipulation that agent should advance the
 Purple Notes
necessary funds, he is not obliged to do so if the
principal is insolvent (Art. 1886, NCC).
3. Obligation to obey instructions
Rule: In the execution of the agency, the
agent shall act in accordance with the
instructions of the principal (Art. 1887, NCC).
In default of instructions: Agent shall do all
that a good father of a family would do, as
required by the nature of the business (Art. 1887,
NCC).
4. Obligation to observe good faith and
loyalty
In General: An agent is a fiduciary with respect
to the matters within the scope of his agency.
Conflict of interest: If, there is a conflict
between his interests and those of the principal,
he should prefer his own; he shall be liable for
damages (Art. 1889, NCC).
If authorized to borrow money: If the agent
has been empowered to borrow money, he may
himself be the lender at the current rate of
interest (Art. 1890, NCC).
If authorized to lend money: If he has been
authorized to lend money at interest, he cannot
borrow it without the consent of the principal
(Art. 1890, NCC).
Prohibition against buying property of
principal: An agent cannot, without his
principal‘s consent purchase, whether directly or
indirectly, and even at public or judicial sale,
property, which he is authorized to sell or
administer (Art. 1491, NCC).
Duty to render account
In General: Every agent is bound:
1. To render an account of his transactions;
and
2. To deliver to the principal whatever he may
have received by virtue of the agency, even
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Civil Law
though it may not be owing to the principal
(Art. 1891, NCC).
5. Obligation to pay interest
a. On sums he has applied to his own use
from the day on which he did so; and
b. On those, which he still, owes after the
extinguishment of the agency (Art. 1896,
NCC).
6. Obligation to observe diligence
 Diligence required is bonus pater
familias
 The agent is responsible not only for fraud,
but also for negligence (Art. 1909, NCC).
 The negligence of the agent shall be judged
with more or less rigor by the courts,
according to whether the agency was or was
not for a compensation (Art. 1909, NCC).
Duty of Commission Agent (Factor):
Definition: One engaged in the purchase and
sale for a principal of personal property, which
for this purpose, has to:
Care and custody of goods:
 The commission agent shall be responsible
for the goods received by him in the terms
and conditions and as described in the
consignment, unless upon receiving them he
should make a written statement of the
damage and deterioration suffered by the
same (Art. 1903, NCC).
 If the commission agent handles goods of
the same kind and mark belonging to
different owners, he has the obligation to
distinguish them by countermarks, and to
designate the merchandise respectively
belonging to each principal (Art. 1904, NCC).
Care of cash: He is not the insurer of the
safety of the money. But he must observe
diligence of a good father of a family.
As to authority to sell on credit:
Bar Operations C ommissions 347
 Purple Notes
Civil Law
Duty not to sell on credit: A commission agent
cannot, without the express or implied consent
of the principal, sell on credit (Art. 1905, NCC).
Effect of sale on credit:
If not authorized: The principal may demand
from him payment in cash, but the commission
agent shall be entitled to any interest or benefit,
which may result from such sale (Art. 1905, NCC).
If authorized: Should the commission agent,
with authority of the principal, sell on credit, he
shall so inform the principal, with a statement of
the names of the buyers. Should he fail to do so,
the sale shall be deemed to have been made for
cash insofar as the principal is concerned (Art.
1906, NCC).
Obligation to collect credits:
1. Effect of failure to collect credits when due
and demandable:
a. Commission agent becomes liable to
principal for damages.
b. Unless: he proves that he exercises due
diligence for that purpose (Art. 1908, NCC).
2. Del Credre Agent - A commission agent
who receives on sale a guaranty
commission, in addition to the ordinary
commission. The guaranty commission is
given in return for the risk of collecting the
credit.
Effects:
a. He guarantees the risk of collection and he
shall pay the principal the proceeds of the
sale on the same terms agreed upon with
the purchaser, if the latter is not able to pay
(Art. 1907, NCC).
b. Either the principal or the del credere agent
may sue the purchaser and the suit of one
will bar the subsequent suit of the other.
―Doctrine of Procuring Cause‖ – If the agent
is the procuring cause of the sale – that the
measures employed by him and the efforts he
exerted resulted in the sale – he is entitled to
the payment of the commission (Ramos v. CA,
G.R. No. 25463, April 4, 1975).
348 Center for Legal Education and Research
In case of two or more Agents (Joint
Agents): The responsibility of two or more
agents, even though they have been appointed
simultaneously is merely joint and not solidary,
unless solidarity has been expressly stipulated
(Art. 1894, NCC).
IRREVOCABLE AGENCY
The agency is not revocable at will if —
1. If a bilateral contract depends upon it.
2. If the agency is a means of fulfilling an
obligation already contracted
3. If a partner is appointed manager of
partnership in the contract of partnership
and his removal from the management is
unjustifiable (Art. 1927, NCC).
V. RIGHTS AND OBLIGATIONS OF
PRINCIPAL
1. Obligation to pay compensation
General Rule: Agency is presumed to be for
compensation (Art. 1875, NCC).
Exception: Unless there is proof to the
contrary (Art. 1875, NCC).
2. Obligation to advance funds
Rule: Principal is obliged to advance funds
necessary for the execution of the agency upon
the request of the agent (Art. 1912, NCC).
When agent is obliged to advance funds: If
there is a stipulation to that effect. But
notwithstanding such stipulation, he cannot be
obliged to do so if the principal is insolvent (Art.
1886, NCC).
Right of agent who made such advances:
1. He is entitled to be reimbursed, even if the
business or undertaking was not successful,
provided the agent was free from all fault
(Art. 1912[2], NCC).
2. Such reimbursement shall include interest
on the sums advanced, from the day on
which the advance was made (Art. 1912[3]
NCC).
 Purple Notes
Instances where principal is not liable for
expenses incurred by agent:
1. If agent acted in contravention of principal‘s
instructions, unless the latter should wish to
avail himself of the benefits derived from
the contract.
2. When expenses were due to fault of the
agent.
3. When agent incurred them with knowledge
that an unfavorable result would ensue, if
the principal was not aware thereof.
4. When it was stipulated that the expenses
would be borne by the agent, or that the
latter would be allowed only a certain sum
(Art. 1918, NCC).
3. Obligation to indemnify agent for
damages
Requisites:
1. Agent suffers damage as a result of the
execution of agency.
2. The agent is free from fault or negligence
(Art. 1913, NCC).
Agent’s Lien:
Agent may retain in pledge the things which are
the object of the agency until the principal
effects the reimbursement and pays:
The advances made by the agent; and
The damages suffered by the agent in executing
the agency (Art. 1914, NCC).
The enforcement of the lien is the same as that
required in foreclosing a pledge.
If there be several principals (joint
principals): If there be several principals who
have appointed the agent for a common
transaction or undertaking, they shall be
solidarily liable to the agent for all the
consequences of the agency (Art. 1915, NCC).
Rights and liabilities between principal
and third person
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Civil Law
For contracts contracted by agent as such
(in behalf of principal) and contract is
within scope of agent’s authority:
1. Principal is bound. He must comply with the
obligations which the agent may have
contracted (Art. 1910, NCC).
2. Agent is not personally liable to third person
with whom he contracts, unless he expressly
binds himself (Art. 1897, NCC).
3. The cause of action of third person is
against the principal, unless the agent
expressly binds himself.
When agent deemed to have acted within
scope of his authority as to third persons:
1. If authority is in writing-
a. Act is deemed to have been performed
within the scope of the agent‘s authority if
the same is within the terms of the power of
attorney as written, even if the agent has in
fact exceeded the limits of his authority
according to an understanding between the
principal and the agent (Art. 1900, NCC).
b. Private or secret orders and instructions of
the principal do not prejudice third persons
who have relied upon the written power of
attorney or instructions shown them (Art.
1902, NCC).
c. For this purpose, a third person with whom
the agent wishes to contract on behalf of
the principal may require the presentation of
the power of attorney or the instructions as
regards the agency (Art. 1902, NCC).
2. If authority is not in writing – rule is
that every person dealing with an assumed
agent is put upon inquiry and must discover
upon his peril, if he would hold the principal
liable, not only upon the fact of the agency
but the nature and extent of the authority of
the agent.
3. And contract is beyond the scope of
agent’s authority:
a. Principal is not bound except when he
ratifies it expressly or tacitly (Art. 1910[2],
NCC). The contract is unenforceable (Art.
1317 and 1403[1], NCC).
Bar Operations C ommissions 349
 Purple Notes
Civil Law
b. Exceptions: Principal is bound
notwithstanding the fact that agent
exceeded his authority—
 If the limits of the agent‘s authority is
known only to the principal and agent
and the party with whom the agent
contacted is not aware of the limits of
the powers granted by the principal (Art.
1898 and 1900, NCC).
 If the principal allowed the agent to act
as though the latter had full powers, in
which case, principal is solidarily liable
with the agent (Art. 1911, NCC).
Agent is personally liable to the person he
contracted with if—
1) He exceeds his authority, without giving
such party sufficient notice of his powers
(Art. 1897, NCC).
2) He exceeds his authority and he undertook
to secure the principal‘s ratification (Art.
1898, NCC).
For Contracts Executed by Agent in His
Own Name:
1. Principal has no right of action against the
person with whom the agent has contracted,
except when the contract involves things
belonging to principal (Art. 1883, NCC).
2. Such third person likewise has no cause of
action against the principal, except when the
contract involves things belonging to
principal (Art. 1883, NCC).
3. Agent is the one directly bound to the
person whom he contracted with, except
when the contract involves things belonging
to principal (Art. 1883, NCC).
4. The exception does not apply when the
agent acted beyond the scope of his
authority.
5. If the principal ratifies the contract and has
signified his willingness to ratify the agents
acts, the same becomes enforceable
between the parties and the third person
with whom the agent contracted with
350 Center for Legal Education and Research
cannot set up the fact the agent exceed his
powers (Art. 1901, NCC).
Double sale by principal and agent
Situation: Two persons contract with regard to
the same thing, one of them with the agent and
the other with the principal, and the two
contracts are incompatible with each other.
Whose contract is preferred: That of prior
date shall be preferred, without prejudice to the
provisions of Article 1544 on double sale (Art.
1916, NCC).
Who is liable to the person whose contract
is rejected:
1. If the principal has agent acted in good
faith, the principal is liable. The agent is not
liable
2. If the agent has acted in bad faith, only the
agent is liable for damages. The principal is
not liable (Art. 1917, NCC).
When is Principal Liable for Delict/Quasi-
delict Committed by Agent:
1. Person sought to be held must stand in
relation of principal to the one committing
the act; and
2. Act of the agent must have been done within
the scope of his authority (De Leon, Comments
and Cases on Partnership, Agency, and Trusts,
2010, p. 518).
VI. MODES OF EXTINGUISHMENT
1. Revocation by principal;
2. Withdrawal of the agent;
3. Death, civil interdiction, insanity or
insolvency of the principal or of the agent;
4. Dissolution of the firm or corporation which
entrusted or accepted the agency;
5. Accomplishment of the object or purpose of
the agency;
6. Expiration of the period for which the
agency was constituted (Art. 1919, NCC).
 The list is not exclusive.
 Purple Notes
Revocation of agency by principal
Revocable at will: The principal may revoke
the agency at will, and compel the agent to
return the document evidencing the agency (Art.
1920, NCC). When two or more principals have
granted a power of attorney for a common
transaction, any one of them may revoke the
same without the consent of the others (Art.
1925, NCC).
Manner of revocation: Either express or
implied (Art. 1920, NCC). There is implied
revocation in the following—
1. When a new agent is appointed for the
same business or transaction (Art. 1923,
NCC).
2. When the principal directly manages the
business entrusted to the agent, dealing
directly with third persons (Art. 1924, NCC).
3. When a special power of attorney is granted
to another, it revokes the general power of
attorney as regards the special matter
involved in the general power (Art. 1926,
NCC).
Necessity and sufficiency of notice of
revocation:
Between principal and third person –
If agent had general powers:
 Notice of revocation in a newspaper of
general circulation is a sufficient warning to
third persons (Art. 1922, NCC).
 Without such notice, revocation does not
prejudice third persons who acted in good
faith and without knowledge of the
revocation (Art. 1922, NCC).
If Agency is for contracting with specified
persons: The specified persons who acted in
good faith and without knowledge of the
revocation (Art. 1922, NCC).
Between principal and agent – Agent must
be notified.
Withdrawal by Agent
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Civil Law
Manner: By giving due notice to the principal
(Art. 1928, NCC).
Liabilities of agent incident to withdrawal:
 If the principal suffers damage by reason of
withdrawal, agent is liable for damages
unless he based his withdrawal upon the
impossibility of continuing the performance
of the agency without grave detriment to
himself (Art. 1928, NCC).
 If the withdrawal is for valid reason, agent
must continue to act until principal has had
reasonable opportunity to take necessary
steps to meet the situation (Art. 1929, NCC).
Death of Principal
General Rule: Death of principal results in the
extinguishment of agency (Art. 1919[3], NCC).
Exceptions:
1. It agency has been constituted in the
common interest of both principal and
agent.
2. If agency has been constituted in the
interest of a third person who has accepted
the stipulation in his favor (Art. 1930, NCC).
Obligation of agent upon extinguishment
of agency by reason of death of principal:
He must finish the business already begun on
the death of the principal, should delay entail
any danger (Art. 1884[2], NCC).
Acts done by agent prior to notice of death
of principal or of any other cause which
extinguished agency: Considered valid and
fully effective with respect to third persons who
may have contracted with the agent in good
faith (Art. 1931, NCC).
E. COMPROMISE
A compromise is a contract whereby the parties,
by making reciprocal concessions, avoid a
litigation or put an end to one already
commended (Art. 2028, NCC).
Bar Operations C ommissions 351
 Purple Notes
Civil Law
Kinds of Compromise:
1. Judicial Compromise – to end litigation; or
2. Extrajudicial compromise – to prevent
litigation (Armed Forces of the Philippines v. CA,
G.R. No. 126745, July 26, 1999).
Advantage of compromise:
A reciprocal concession inherent in a
compromise agreement assures benefits for the
contracting parties.
a. For the defeated litigant, liability arising
from the judgment may be reduced.
b. As to the prevailing party, a compromise
agreement assures receipt of payment
(Magbanua v. Uy, G.R. No. 161003, May 6, 2005).
Requisites of a valid compromise:
1. Must not be contrary to law, morals, good
customs and public policy;
2. Must have been freely and intelligently
executed between the parties (Magbanua v.
Uy, G.R. No. 161003, May 6, 2005).
3. It must comply with the law of contracts.
Matters which cannot be compromised:
1. Civil status of persons;
2. Validity of a marriage or legal separation;
3. Any ground for legal separation;
4. Future support;
5. Jurisdiction of courts; and,
6. Future legitime (Art. 2035, NCC).
Instances where civil action or proceeding
shall be suspended:
1. If willingness to discuss a possible
compromise is expressed by one or both
parties; and,
2. If it appears that one of the parties, before
the commencement of the action or
proceeding, offered to discuss a possible
compromise but the other party refused the
offer (Art. 2030, NCC).
352 Center for Legal Education and Research
Effect of compromise
It has an effect of res judicata but there shall be
no execution except in accordance with a judicial
compromise (Art. 2037, NCC).
Compromise After Final Judgement:
If a litigation has been decided by final
judgement, a compromise should be agreed by
the upon, either by either or both parties being
unaware of the existence of the final judgement,
the compromise may be rescinded (Art. 2040,
NCC.).
Status of the Compromise Agreement:
It is valid but rescissible at the option of the
parties (Magbanua v. Uy, G.R. No. 161003, May 6,
2005).
The principle of novation supports the validity of
a compromise after final judgment.
For an obligation to be extinguished by another,
the law requires either of these two conditions:
(1) the substitution is unequivocally declared, or
(2) the old and the new obligations are
incompatible on every point. A compromise of a
final judgment operates as a novation of the
judgment obligation, upon compliance with
either requisite (Magbanua v. Uy, G.R. No. 161003,
May 6, 2005).
Remedies of a party when the other
refuses or fail to abide by a valid
compromise:
1. The other party may enforce the
compromise; or
2. Regard it as rescinded and insist upon his
original demand (Art. 2041, NCC).
Compromise agreement between the
creditor and the principal debtor
A compromise between the creditor and the
principal debtor is valid if the compromise is
beneficial to the guarantor; otherwise, it is not
bindin1qqqg upon him (Art. 2063, NCC).
In a compromise between the creditor and the
guarantor to the principal debtor, if compromise
is beneficial to the principal debtor, it is valid;
otherwise, it is not binding upon him (Art. 2063,
 Purple Notes
NCC). To be binding, it must benefit both the
guarantor and the debtor.
E. LOAN
1. Loan
A contract wherein one of the parties delivers to
another, either something not consumable so
that the latter may use the same for a certain
time and return it, or money or other
consumable thing, upon the condition that the
same amount of the same kind and quality shall
be paid (Art. 1933, NCC).
Characteristics:
1. Real Contract – delivery of the thing
loaned is necessary for the perfection of the
contract
 An accepted promise to make a future
loan is a consensual contract, and
therefore binding upon the parties but it
is only after delivery, will the real
contract of loan arise. (Art 1934, NCC)
2. Unilateral Contract - once the subject
matter has been delivered, it creates
obligations on the part of only one of the
parties (i.e. borrower).
2. Commodatum
Commodatum – gratuitous contract where one
of the contracting parties delivers to another a
non-consumable thing so that the other may use
the same for a certain time and return after
using it, without compensation.
Kinds of commodatum:
1. Ordinary Commodatum – use by the
borrower of the thing is for a certain period
of time
2. Precarium- one whereby the bailor may
demand the thing loaned at will and it exists
in the following cases:
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Civil Law
a. Neither the duration nor purpose of the
contract is stipulated; or
b. The use of the thing is merely tolerated
by the owner
Obligations Bailor and Bailee
Obligations of the Bailor (Art. 1946 to Art.
1952, NCC)
1. To respect the duration of the loan because
the bailor is bound by the terms of the
contract of commodatum which is for a
certain time.
General Rule: Allow the bailee the use of
the thing loaned for the duration of the
period stipulated or until the
accomplishment of the purpose for which
the commodatum was instituted.
Exceptions:
a. In case of urgent need in which case the
bailor may demand its return or temporary
use;
Reason: Commodatum is essentially
gratuitous (Art. 1946, NCC)
b. The bailor may demand immediate return of
the thing if the bailee commits any act of
ingratitude specified in Art. 765 (Art. 1948,
NCC).
Acts of ingratitude under Art. 765:
 If the bailee should commit some offenses
against the person, honor or property of the
bailor, or of his wife, children under his
parental authority;
 If the bailee imputes to the bailor any
criminal offense, or any act involving moral
turpitude, even though he should prove it,
unless the crime or the act has been
committed against the bailee himself;
 If the bailee unduly refuses the bailor
support when the bailee is legally or morally
bound to give support; and
 If the loan is for illegal or immoral use
(Tolentino, Civil Code of the Philippines Vol.
5, 1992 ed., p.448)
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Reason: The contract is void (Art.1409[1] and
[7]).
2. To refund to the bailee extraordinary
expenses for the preservation of the thing
loaned, provided the bailee brings the same
to the knowledge of the bailor before
incurring them, except when they are so
urgent that the reply to the notification
cannot be awaited without danger (Art. 1949
[1], NCC).
3. To be liable to the bailee for damages for
known hidden flaws (Art. 1951, NCC).
Requisites:
a. Existence of Flaw or defect in the thing
loaned;
b. The flaw or defect is Hidden;
c. The bailor is Aware thereof;
d. The bailee is Not aware thereof; and
e. The bailee Suffers damages by reason
of said flaw or defect.
If the above requisites concur, the bailee has
the right of retention for damages. (Art. 1944
NCC)
The bailor cannot exempt himself from the
payment of expenses or damages by
abandoning the thing to the bailee.
Reason: The expenses or damages may exceed
the value of the thing loaned (Art. 1952, NCC)
If in making use of the thing, the bailee incurred
expenses other than ordinary and extraordinary
expenses he is NOT entitled to reimbursement
(Art. 1950, NCC)
Obligations of the Bailee (Arts. 1941-
1945)
Principal Obligations:
1. Take care of the thing with diligence of a
good father of a family (Art. 1163, 1169, 1170
and 1173).
354 Center for Legal Education and Research
2. Return the thing upon expiration of terms or
upon accomplishment of purpose (Art. 1933,
NCC).
The bailee has no right to retain the thing
loaned as security for claims he has against the
bailor even for extraordinary expenses except
for a claim for damages suffered because of the
flaws of the thing loaned (Art. 1944, NCC).
Other obligations:
1. To pay for the ordinary expenses for the use
and preservation of the thing loaned. (Art.
1941, NCC).
2. To be liable for the loss of the thing, even if
it should be through a fortuitous event, in
the following cases:
a. When he keeps it longer than the period
stipulated, or after the accomplishment
of its use;
Reason: Delay (Art. 1165, 1169, and
1170, NCC)
b. When he lends or leases it to third
persons who are not members of his
household;
Reason: Commodatum is purely
personal (Art. 1939, NCC).
c. When the thing loaned has been
delivered with appraisal of its value
unless there is a stipulation exempting
the bailee from responsibility in case of
fortuitous event;
Reason: The law presumes that the
parties intended that the borrower shall
be liable for the loss of the thing even if
due to a fortuitous event for otherwise
they would not have appraised the thing
(Republic v. Bagtas, GR. No. L-17474
October 25, 1962)
d. When, being able to save either of the
thing borrowed or his own things, he
chose to save the latter; or
e. When the bailee devoted the thing for
any purpose different from that for
which it has been loaned (Art. 1942,
NCC).
3. Liability for the deterioration due to the use
of the thing:

General Rule: Bailee is not liable (Art. 1943,
NCC)
Exceptions:
a. If expressly stipulated;
b. If guilty of fault or negligence (Art. 1170, NCC);
c. If he devoted the thing to any purpose
different from that for which it has been
loaned (Art.1942[1], NCC); or
d. If he uses the thing beyond the period
stipulated.
4. To pay for extraordinary expenses arising
from the actual use of the thing by the
bailee, which shall be borne equally by both
the bailor and the bailee, even though the
bailee acted without fault, unless there is a
stipulation to the contrary (Art. 1949[2],
NCC).
 The bailee has no right to retain the thing
loaned as security on the ground that the
bailor owes him something, even though it
may be by reason of expenses (Art. 1944,
NCC),
EXCEPT for damages suffered by the bailee
because of the hidden flaws of things known
to the bailor (Art. 1951, NCC).
 In a contract of deposit, when there are two
or more bailees to whom a thing is loaned in
the same contract, such relationship will be
deemed solidary (Art. 1945, NCC).
 This is an exception by express provision of
law to the general rule that the concurrence
of 2 or more parties in the same obligation
gives rise only to a joint obligation (Arts.
1207, 1208, NCC)
 As a general rule, under Art. 1933, the
subject matter of commodatum must be
non‐consumable because the thing must be
returned. Nonetheless, by way of an
exception, consumable goods may be the
object of commodatum if the purpose is not
to consume them such as when they were
loaned merely for ad ostentationem or
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Civil Law
exhibition purposes. After the affair, the
same and identical goods shall be returned
to the lender or bailor (Art. 1936, NCC).
 The bailee in commodatum acquires only
the use of the thing loaned but not its fruits
(Art. 1935, NCC).
3. Mutuum
Mutuum – A contract whereby one of the
parties delivers to another money or other
consumable thing with the understanding that
the same amount of the same kind and quality
shall be paid (Art. 1933, NCC)
It involves the return of the equivalent amount
only and not the identical thing because the
borrower acquires ownership of the money or
the consumable thing loaned (Art. 1978, NCC).
A loan of money may be payable in kind (Art.
1958, NCC)
 Mere issuance of checks to the debtor does
not perfect the contract of loan. It is only
after the checks have been cashed by the
debtor that the contract may be deemed
perfected (Art. 1249, NCC).
The destruction of the thing loaned does not
extinguish one‘s obligation to pay because his
obligation is not to return the thing loaned but
to pay a generic thing (De Leon, Comments and
Cases on Credit Transactions, 2016, p. 62).
Form of Payment
1. If the thing loaned is money, payment must
be made in the currency stipulated,
otherwise that which in legal tender in the
Philippines and in case of extraordinary
inflation or deflation, payment shall be in
the value of the currency at the time of the
creation of the obligation (Art. 1249, 1250 and
1255 [1], NCC).
2. If the thing loaned is other than money,
payment shall be of another thing of the
same kind, quality and quantity. In case it is
impossible to do so, the borrower shall pay
its value at the time of the perfection of the
loan (Art. 1955 [2], NCC).
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Civil Law
4. Interest on Loan
Kinds of Interest:
1. Simple interest – that which is paid for the
principal at a certain rate fixed or stipulated
by the parties
2. Compound interest – that which is
imposed interest due and unpaid. The
accrued interest is added to the principal
sum and the whole is treated as a new
principal upon which the interest for the
next period is calculated.
3. Legal interest – that which the law directs
to be charged in the absence of any
agreement as to the rate between the
parties.
4. Lawful interest – that which the laws
allow or do not prohibit
5. Unlawful or usurious interest – paid or
stipulated to be paid beyond the maximum
fixed by law (De Leon, Comments on Credit
Transactions, 2016 Ed p. 67-69).
Payment of unstipulated interest:
1. Where unstipulated interest is paid by
mistake, the debtor may recover, this would
be a case of solution indebiti or undue
payment
2. Where the unstipulated interest is paid
voluntarily because the debtor feels morally
obliged to do so, there can be no recovery
as in the case of natural obligations.
Requisites for Demandability of Interest
1. Must be expressly stipulated
Exceptions:
a. Indemnity for damages (Art. 2209,
NCC); and
b. Interest accruing from unpaid interest
(Art 2212, NCC)
2. Must be lawful
3. Must be writing
356 Center for Legal Education and Research
Requisites for Recovery of Compound
Interest
General Rule: Accrued/Unpaid interest shall
not earn interest.
Exceptions:
1. When judicially demanded as provided in
Art. 2212, interest due shall earn legal
interest from the time it is judicially
demanded although the obligation may be
silent upon this point.
2. When there is an express stipulation made
by the parties that the interest due and
unpaid shall be added to the principal
obligation and the resulting total amount
shall earn interest.
Guidelines for the application of proper
interest rates:
1. Stipulated rate shall apply
2. When an obligation is breached, the
contravener may be held liable for damages.
3. When the obligation breached consists of
forbearance of money, in the absence of
stipulation, the rate shall be the legal rate
computed from default. The interest due
shall itself earn legal interest from the time
it is judicially demanded.
4. If the obligation does not consist of
forbearance of money, the rate of interest
shall be 6% per annum.
In Nacar v. Gallery Frames, G.R. No. 189871,
August 13, 2013, the Supreme Court modified
the guidelines laid down in the case of Eastern
Shipping Lines to embody BSP Circular No. 799
s. of 2013:
1. Obligation regardless of source is breached –
the contravenor shall be liable for damages
under Title XVIII on Damages of the NCC;
2. Award of interest in the concept of actual or
compensatory damages the rate of interest
shall be as follows:
a. When the obligation breached consists of
payment of sum of money, the interest
 Purple Notes
due shall be that which may have been
stipulated in writing. Furthermore, the
interest due shall itself earn legal interest
from the time it is judicially demanded. In
the absence of stipulation, the rate of
interest shall be 6% per annum to be
computed from default.
b. When an oligation, not consisting of a
loan or foreberance of money, is
breached, an intetest on the amount of
damages may be imposed at the
discretion of the court at the rate of 6%
per annum.
No interest shall be adjudged on
unliquidated claims or damages, except
when or until the demand can be
established with reasonable certainty.
3. When the judgment of the court awarding the
sum of money becomes final and executory,
the rate of legal interest shall be 6% per
annum from finality until satisfaction.
 When the agreed rate is iniquitous and
unconscionable, the courts may reduce the
same as reason and equity demand.
(Imperial v. Jaucian, G.R. No. 149004 April 14,
2004)
 The right to interest arises by reason of the
contract (stipulation in writing) or by reason
of delay or failure to pay principal on which
interest is demanded (Baretto v. Santa Marina,
G.R. No. 11908, Feb. 4, 1918).
 If the obligation consists of the payment of
a sum of money, and the debtor incurs
delay, the indemnity for damages shall be
the payment of legal interest (Philrock, Inc. v.
Construction Industry Arbitration Commission,
G.R. Nos. 132848‐49, June 25, 2001)
 Payment of monetary interest is allowed
only if:
1. There was an express stipulation for the
payment of interest; and
2. The agreement for the payment of interest
was reduced in writing.
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Civil Law
The concurrence of the two conditions is
required for the payment of monetary interest.
Thus, collection of interest without any
stipulation therefor in writing is prohibited by
law (Siga‐an v. Villanueva, G.R. No. 173227, Jan. 20,
2009).
a. Convetional Interest
b. Interest on interest
c. Compensatory, penalty or indemnity interest
d. Finance charges
F. DEPOSIT
A contract constituted from the moment a
person receives a thing belonging to another
with the obligation of safely keeping it and
returning the same. If the safekeeping of the
thing delivered is not the principal purpose of
the contract, there is no deposit but some other
contract (Art. 1962, NCC)
Principal Purpose
SAFEKEEPING. If the safekeeping is not the
principal purpose it may be either: (a)
commodatum; (b) lease; or (c) agency.
The depositor need not be the owner of the
thing deposited because the purpose of the
contract is safekeeping and not transfer of
ownership. The depository cannot dispute the
title of the depositor (Art. 1984[1], NCC). The
depository is in estoppel (Art. 1436, NCC).
Characteristics of deposit:
1. Real Contract - contract is perfected by the
delivery of the subject matter. Where there
has been no delivery, there is merely an
agreement to deposit, which however is
binding and enforceable upon the parties.
2. Unilateral – when gratuitous because only
the depositary has an obligation.
3. Bilateral – If with compensation because it
gives rise to obligations on the part of both
the depositary and depositor.
4. Voluntary as a general rule
5. Gratuitous as a general rule (De Leon,
Comments and Cases on Credit Transactions,
2016, p. 144).
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 Purple Notes
Civil Law
Subject Matter of Deposit Exceptions:

1. Only MOVABLE/PERSONAL property may be 1. When there is a contrary stipulation;

the object of EXTRAJUDICIAL deposit, 2. The depositary is engaged in the business of
whether voluntary or necessary. The storing goods; and
provisions do not embrace incorporeal or 3. Property is saved from destruction without
intangible property, like rights and actions. the knowledge of the owner.
2. JUDICIAL deposit may cover MOVABLE as
well as IMMOVABLE property, its purpose RULES ON THE CAPACITY OF DEPOSITARY
being to protect the rights of the parties to a AND DEPOSITOR
suit. Depositary is Depositary is
capacitated and incapacitated and
Depositor is Depositor is
Kinds of Deposit:
incapacitated (Art. capacitated(Art.
1970) 1971)
A. Judicial (sequestration) – when an Depositary is subject to Depositary does not
attachment or seizure of property in ALL the obligations of a incur obligations of a
litigation is ordered (Art. 2005, NCC). depositary whether or depositary
B. Extra-judicial not the depositor is
1. Voluntary – delivery is made by the will capacitated.
of the depositor or by 2 or more persons Depositary must return Depositary, however is
each of whom believes himself entitled to the property either to: liable to:
the thing deposited. (Arts. 1968-1995, NCC) The legal representative Return the thing
of the incapacitated; deposited while still in
2. Necessary – made in compliance with
The depositor himself if his possession; and
(1) a legal obligation; or (2) on occasion he should acquire Pay the depositor the
of any calamity; or (3) by travelers in capacity amount by which he
hotels and inns; or (4) by travelers with may have benefited
common carriers. himself with the thing
or its price subject to
 The prevailing rule is that the relation the right of any third
between a bank renting out safety-deposit person who acquired
boxes and its customer with respect to the the thing in good faith.
contents of the box is that of a bailor and
bailee, the bailment being for hire and General obligations of Depositary
manual benefit (CA Agro-Industrial Dev. Corp.
v. C.A., Mar. 3, 1993, G.R. No. 90027) 1. To keep the thing safely (Art. 1972, NCC)

Another difference between a voluntary deposit Depositary is liable if the loss occurs through
and necessary deposit is that in the former, the his fault or negligence even if the thing is
depositor is free to choose the depositary, in the insured. The loss of the thing while in his
latter, there is lack of free choice in the possession ordinarily raises the presumption
depositor (De Leon, Comments and Cases on Credit of fault on his part.
Transactions, 2016, p. 158). The required degree of care is greater
when:
Extra-judicial deposit does not include
incorporeal/intangible property such as right and a. Stipulated;
actions for it follow the person of the owner. b. It is the depositary who voluntarily
offered to keep the thing;
General Rule: A contract of deposit is c. The deposit is compensated; or
gratuitous (Art. 1965, NCC). d. The deposit produces benefit to the
depositary (Tolentino, Civil Code of the
Philippines Vol. 5, 1992 ed., p. 460)

358 Center for Legal Education and Research

 Purple Notes
2. To return the thing (Art. 1972, NCC)
Person to whom the thing deposited must
be returned:
a. Depositor, to his heirs and successors, or
the person who may have been designated
in the contract.
 If 2 or more persons each claiming to be
entitled to a thing, the depositary can
file an action to compel the depositors
to settle their conflicting claims among
themselves in the nature of interpleader
(Sec. 1 Rule 62, ROC).
b. Guardian or administrator of the person who
made the deposit or the latter himself
should acquire capacity (Art. 1970, NCC).
c. Legal representative of the depositor should
the latter subsequently lose his capacity
during the deposit. (Art. 1986, NCC)
Time of return:
General Rule: Upon demand even though a
specified period of time for such return may
have been fixed.
Exceptions:
a. When the thing is judicially attached while in
the depositary‘s possession;
b. Should he have been notified of the
opposition of a 3rd person to the return or
removal of the thing deposited in such
instance, the depositary must immediately
inform the depositor of the attachment or
opposition (Art. 1988, NCC); or
c. If the deposit is gratuitous, the
depositary may return the thing
deposited notwithstanding that a period
has been fixed for the deposit if
justifiable reasons exists for its return. If
the depositor refuses to receive it, the
depositary may secure its consignation
from the court (Art. 1989, NCC).
 If the deposit is for a valuable
consideration, period must be followed
2018
Civil Law
even if the depositary suffers
inconvenience as a consequence.
(Art.1989, NCC)
What to return:
a. Product, accessories, and accessions of the
thing deposited (Art. 1983, NCC)
b. If by force majeure or government order,
the depositary loses the thing, and receives
money or another thing in its place, he shall
deliver the sum or other thing to the
depositor. (Art. 1990, NCC)
Where to return:
a. Place agreed upon by the parties, or
b. At the place where the thing deposited
might be even if it should not be the same
place where the deposit was made provided
there was no malice on the part of
depositary (Art. 1987).
3. Not to deposit the thing with a 3rd person
unless authorized by express stipulation (Art.
1973, NCC)
Reason: Deposit is founded on trust and
confidence.
The depositary is liable for the loss under
the following:
a. He transfers the deposit with a 3rd person
without authority, although there is no
negligence on his part and the third person;
b. He deposits the thing with a 3rd person who
is manifestly careless and unfit, although
authorized, even in the absence of
negligence; or
c. The thing is lost through the negligence of
his employees whether the latter are
manifestly careless or not.
4. To change the way of the deposit if under
the circumstances, the depositary may
reasonably presume that the depositor
would consent to the change if he knew of
the facts of the situation, provided, that the
former notifies the depositor thereof and
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Civil Law
wait for his decision, unless delay would
cause danger. (Art. 1974, NCC)
5. If the thing deposited should earn interest
(Art. 1975, NCC):
a. To collect interest and the capital itself
as it falls due; and
b. To take steps to preserve its value and
rights with regards to it.
 A contract for the rent of safety deposit
boxes is a special kind of deposit;
hence, it is not to be strictly governed
by the provisions on deposit. The
relation between the bank and its
customer is that of a bailor and bailee,
the bailment being for hire and mutual
benefit (CA Agro v. CA, G.R. No. 90027
March 3, 1993).
 It cannot be characterized as an
ordinary contract of lease because full
and absolute control of the safety
deposit boxes was not given to the joint
renters. (CA Agro v. CA, G.R. No. 90027
March 3, 1993)
6. Not to commingle things deposited if so
stipulated (Art. 1976, NCC)
Depositary can only commingle if the articles
are of the same kind and quality. In case of
commingling, each depositor shall be
entitled to each portion of the entire mass
as the amount deposited by him bears to
the whole.
7. Not to make use of the thing deposited
unless authorized (Art. 1977, NCC).
General Rule: Deposit is not for use of the
thing. Use by the depositary would make him
liable for damages.
Exceptions:
a. When the preservation of the thing
deposited requires its use;
360 Center for Legal Education and Research
b. When authorized by the depositor (the
authorization shall not be presumed and its
existence must be proved) (Art. 1977, NCC)
Effect if permission to use is given:
If the thing deposited is non-consumable, the
contract is a commodatum, unless safekeeping
is still the principal purpose.
If the thing deposited consists of consumable
things, the contract is converted into a simple
loan or mutuum unless safekeeping is still the
principal purpose in which case it is called an
irregular deposit (example: bank deposit) (De
Leon, Comments and Cases on Credit Transactions,
2016, p. 180)
8. To be liable for loss through fortuitous event
(Art. 1979, NCC):
a. If stipulated
b. If he uses the thing without the
depositor‘s permission
c. If he delays its return
d. If he allows others to use it
9. When the thing deposited is delivered sealed
and closed (Art. 1981, NCC):
a. To return the thing deposited in the same
condition;
b. To pay for damages should the seam or
lock be broken through his fault, which is
presumed unless proven otherwise; and
c. To keep the secret of the deposit when
the seal or lock is broken with or without
his fault.
 The depositary is authorized to open the
thing deposited which is closed and
sealed when (Art. 1982, NCC):
a. There is presumed authority; or
b. There is necessity to do so.
10. To pay interest on sums converted to
personal use if the deposit consists of
money (Art. 1983, NCC)
 Purple Notes
Fixed, savings, and current deposits of
moneys in banks and similar institutions
shall be governed by the provisions
concerning simple loans. (Art. 1980, NCC)
A bank can compensate or set-off the
deposit in its hands for the payment of any
indebtedness to it on the part of the
depositor. In true deposit, such
compensation or set-off is NOT allowed.
11. To advise the true owner that a deposit has
been made should he discover that the thing
deposited was stolen from the owner (Art.
1984, NCC)
If the owner despite such information does
not claim it within the period of 1 month,
the depositary shall be relieved from all
responsibility by returning the same to the
depositor (De Leon, Comments and Cases on
Credit Transactions. 2016, p. 198).
Rule when there are two or more
depositors (Art. 1985):
1. If the thing deposited is divisible and
depositors are not solidary. Each depositor
can demand only his proportionate share
thereto.
2. If obligation is solidary or if the thing is not
divisible.
 Rules on active solidarity shall apply, i.e.
each one of the solidary depositors may do
whatever may be useful to the others but
not anything which may be prejudicial to the
latter, (Art. 1212, NCC) and the depositary
may return the thing to anyone of the
solidary depositors unless a demand, judicial
or extrajudicial, for its return has been made
by one of them in which case, delivery
should be made to him (Art. 1214, NCC).
3. Return to one of depositors stipulated. The
depositary is bound to return it only to the
person designated although the latter has
not made any demand for its return.
 The depositary may retain the thing in
pledge until payment of what may be
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Civil Law
due him by reason of the deposit. (Art.
1994, NCC)
The depositor‘s heir who in good faith may have
sold the thing which he did not know was
deposited shall only be bound to return the price
he may have received or to assign his right of
action against the buyer in case the price has
not been paid him. (Art. 1991, NCC)
Obligations of the Depositor:
1. To pay expenses for preservation
(contemplates ordinary and extraordinary &
necessary expenses)
a. If the deposit is gratuitous, the
depositor is obliged to reimburse the
depositary for expenses incurred for the
preservation of the thing deposited (Art.
1992).
b. If the deposit is for valuable
consideration, expenses for preservation
are borne by the depositary due to the
character of the thing deposited.
General Rule: The depositor shall reimburse
the depositary for any loss arising from the
character of the thing deposited (Art. 1993, NCC).
Exceptions:
1. At the time of the deposit, the depositor was
not aware of the dangerous character of the
thing;
2. When the depositor was not expected to
know the dangerous character of the thing;
3. When the depositor notified the depositary
of the same; or
4. The depositary was aware of it without
advice from the depositor (Art. 1993, NCC).
Extinguishment of voluntary deposit (Art.
1995) - Same as the modes of extinguishment
of obligations in Art. 1231 of the New Civil Code:
1. Novation
2. Compensation
3. Merger
4. Remission
5. Payment
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6. Loss
7. Prescription
8. Rescission
9. Fulfillment of resolutory condition
10. Annulment
A deposit is extinguished:
1. Upon the loss or destruction of the thing
deposited;
2. In case of gratuitous deposit, upon the
death of either the depositor or the
depositary (Art. 1995, NCC); or
3. Other causes, such as return of the thing,
novation, merger, expiration of the term,
fulfillment of the resolutory condition, etc.
(Art. 1231, NCC).
 A deposit for compensation is not
extinguished by the death of either
party because, unlike a gratuitous
deposit, an onerous deposit is not
personal in nature (De Leon, Comments
and Cases on Credit Transactions, 2010 ed.,
p. 145).
Necessary Deposits:
1. Made in compliance with a legal obligation.
2. Made on the occasion of any calamity such
as fire, storm, flood, pillage, shipwreck or
other similar events (deposito miserable).
3. Made by travelers in hotels and inns or by
travelers with common carrier (Art. 1996,
NCC).
Deposit by travelers in hotels and inns
The keepers of hotels or inns shall be
responsible as depositaries for the deposit of
effects made by travelers, provided:
1. Notice was given to them or to their
employees of the effects brought by the
guest; and
2. The guest takes the precautions, which said
hotel-keepers or their substitutes advised,
relative to the care and vigilance of their
effects.
This also applies to deposits made to
common carriers. (Art. 1754, NCC)
362 Center for Legal Education and Research
 Liability extends to vehicles, animals and
articles, which have been introduced or
placed in the annexes of the hotel. (Art.
1999, NCC)
 Liability shall EXCLUDE losses, which
proceed from force majeure. The act of
a thief or robber is not deemed force
majeure unless done with the use of
arms or irresistible force. (Art. 2000, NCC)
 The hotelkeeper cannot free himself
from responsibility by posting notices to
the effect that he is not liable for the
loss of articles brought by the guest.
Any stipulation to such effect shall be
void. (Art. 2000, NCC)
 Notice is necessary only for suing civil
liability but not criminal liability. (Art.
2003, NCC)
When hotelkeeper liable: When the loss or
injury is caused:
1. By his servants or employees as well as by
strangers provided that the notice has been
given and proper precautions (Art. 2180,
NCC); and
2. By the act of a thief or robber done without
the use of arms and irresistible force, for in
this case, the hotel-keeper is apparently
negligent. (Art. 2001, NCC)
When hotel-keeper not liable: When the
loss or injury is caused by:
1. Force majeure, theft or robbery by a
stranger with the use of irresistible force;
2. The acts of guests, his family, servants or
visitors; or
3. Arises from the character of the things
brought into the hotel.
C. Judicial or Sequestration Deposit
Judicial Deposit or sequestration takes place
when an attachment or seizure of property in
litigation is ordered (Art. 2005, NCC).
 Purple Notes 2018
Civil Law
JUDICIAL EXTRA-JUDICIAL earn interest. All kinds of bank deposits,
Creation whether fixed, savings or current, are to be
By order of the court. By the will of the treated as loans and are to be covered by
parties or by contract. the law on loans. Current and savings
Purpose deposits are loans to a bank because it can
For security or to insure For custody and use the same. Serrano, in making time
the right of a party to a safekeeping
deposits that earn interest with OBM was in
property or to recover in
case of favorable reality a creditor of the respondent bank,
judgment and not a depositor. The bank was in turn a
Subject Matter debtor of Serrano. Failure of OBM to honor
Movables or immovable, Movables only. the time deposits is failure to pay its
but generally immovable obligation as a debtor and not a breach of
Cause trust arising from a depositary‘s failure to
Always onerous Maybe onerous or return the subject matter of the deposit
gratuitous (Serrano v. Central Bank, G.R. No. 30511, Feb.
When must the thing be returned 14, 1980).
Upon order of the court Upon demand of the
or when litigation is depositor G. LEASE
ended.
I. GENERAL PROVISIONS
 The depositary may change the manner of
the deposit if he may own reasonably A contract of lease is a consensual, bilateral,
presume that the depositor would consent onerous and commutative contract by which h
to the change if he knew of the facts of the the owner temporarily grants the use of his
situation. However, before the depositary property (Chua Tee Dee v. Court of Appeals, G.R.
may make such change, he shall notify the No. 135721, May 27, 2004) or rendering of some
depositor thereof and wait for his decision, service to another who undertakes to pay the
unless delay would cause danger (Art. 1974, rent.
NCC)
Being a consensual contract, it is perfected at
If the depositary has permission to use the the moment there is a meeting of the minds on
thing deposited: the thing and the cause and consideration,
which are to constitute the contract (Bugatti v.
General Rule: The contract loses the concept Court of Appeals, G.R. No. 138113, October 17,
of a deposit and becomes a loan or 2000), citing Vitug, Compendium of Civil Law and
commodatum. Jurisprudence, 1993 edition, 653-654).

Exception: Where safekeeping is still the
principal purpose of the contract (Art. 1978, NCC).
 The permission shall not be presumed, and
its existence must be proved.
If the depositary has not been paid the amount
due to him the depositary may retain the thing
in pledge until full payment of what may be due
him by reason of the deposit (Art. 1994, NCC).
 Bank deposits are in the nature of irregular
deposits. They are really loans because they
General Rule: Without the agreement of both
parties, no contract of lease can be said to have
been created or established. Nobody can force
an owner to lease out his property if he is not
willing (Pagurayan v. Reyes, G. R. No. 15477, July
23, 2008).
Exception: In industrial accession where both
the landowner and the builder may not be
compelled to buy the land because the value of
the building or of trees, the builder can be
required to pay reasonable rent (Art. 448, NCC)

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 Purple Notes
Civil Law
"Rent" may be defined as the compensation Consent
either in money, provisions, chattels, or labor,
received by the owner of the soil from the As in all contracts, consent is an essential
occupant thereof. It is defined as the return or requisite in a contract of lease.
compensation for the possession of some
corporeal inheritance, and is a profit issuing out But take note that the people who are prohibited
of lands or tenements, in return for their use. It from entering in a contract of sale under Arts.
is that, which is to be paid for the use of land, 1490 and 1491 cannot also enter into a contract
whether in money, labor or other thing agreed of lease. Thus, spouses who are prohibited from
upon (Tolentino and Manio v. Gonzales SyChiam, selling to each other are similarly prohibited
G.R. No. 26085, August 12, 1927). from entering in a contract of lease as spouses.
Also, guardian cannot lease property of the ward
Characteristic of Lease of things: as much as the agent cannot lease the property
of the principal which he is suppose to
1. Consensual Contract administer.
2. Onerous (essentially onerous)
3. Bilateral Kinds of Lease according to subject
4. Nominate matter:
5. Principal
6. Cumulative Lease of thing – the consideration for the
lessor is the payment of rental
Kinds: Lease of work or service - it is the
compensation to be paid by the other party
1. Lease of things, whether real or personal Lease of right – it is the payment of royalties
property; which is the cause and consideration of the one
2. Lease of service, including household leasing the right to another (De Leon, Comments
service, contract of labor, and common and Cases on Sales and Lease, 2005, p. 561)
carriers; and
3. Lease of work, which properly should be Lease v. Sales
termed a contract for a piece of work, since
the phrase ―lease of work‖ may erroneously LEASE SALES
be confused with the lease of service (Art. Only use or enjoyment Ownership is
1642, NCC). is transferred transferred
Transfer is temporary Transfer is permanent
Ownership of Thing Lessor need not be the Seller must be the
owner owner at the time the
The lessor need not be the owner of the thing property is supposed to
be delivered
leased (De Leon, Sales, supra at 706).
The price of the object, Usually, selling price is
distinguished from rent, mentioned
The lessee may sublet the thing leased, in whole is usually not mentioned
or in part, without prejudice to his responsibility (De Leon, Comments and Cases on Sales and Lease,
for the performance of the contract toward the 2005, p. 575)
lessor (Article 1650).
Lease v. Simple Loan
Consideration of Lease
LEASE SIMPLE LOAN
Rent – It is the cause of the contract of lease, Lessor does not lose Lender loses ownership
in money or in its equivalent, such as products, ownership
fruits or other useful things or some prestation Relationship is one of Relationship is one of
which the lessee binds himself to undertake. (De lessor and lessee obligor and obligee
Leon, supra at 707). Not governed by the Governed by the Usury

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 Purple Notes 2018
Civil Law
Usury Law Law memorandum signed by the party charged,
If what is leased is real Not governed by the if ―the agreement for the leasing is for a
Property for more than statute of frauds longer period than one year (Art. 1403[2][e],
One year, the statute of NCC).
Frauds must be 3. The requirement of the Statute of Frauds is
complied with
also necessary in case of agreement to
Refers to real and Refers only to personal
renew the lease. In (Fernandez v. CA, G.R. No.
personal property property
(De Leon, Comments and Cases on Sales and Lease, 80231, October 18, 1988), where it was
2005, p. 577) alleged that the respondent had assured the
petitioner over a telephone conversation
Lease v. Commodatum that the former would willingly renew the
lease for another ten years upon expiration
LEASE COMMODATUM of the original, the Court held that such
Onerous contract This is essentially alleged verbal assurance of renewal of a
(although the rent may gratuitous; if there is a lease is inadmissible to qualify the terms of
later on be remitted) price or rent, the the written lease agreement under the
contract ceases to be a parole evidence rule and unenforceable
commodatum under the Statute of Frauds.
Not essentially personal Personal in character, 4. In lease of real property, the recording of
in character, hence thus death of either
the lease contract is only for the purpose of
right may be bailor or bailee ends the
binding third persons (Art. 1648, NCC).
transmitted to commodatum
heirs
Lessor need not be owner:
Consensual contract Real contract —
requires delivery for
perfection 1. The lessor need not be the owner of the
De Leon, Comments and Cases on Sales and Lease, property leased (Ballesteros v. Abion, G.R. No.
2005, p. 576) 143361, February 9, 2006), because lease does
not involve transfer of ownership.
RULE FOR LEASE OF CONSUMABLE GOODS 2. However, the lessor must have a right (e. g.
usufructuary or lessee) or at least an
Consumable goods cannot be the subject matter authority (e.g. as an agent of the owner,
of a contract of lease of things. To use or enjoy usufructuary, or lessee), otherwise, the
them, they will have to be consumed. This contract is legally inexistent for lack of an
cannot be done in lease since ownership over object certain. Under Articles. 1318 and
them is not transferred by the contract of lease 1409(3) of the CC, contracts the cause or
(De Leon, Comments and Cases on Sales and Lease, object of which did not exist at the time of
2005, p. 589). the transaction are inexistent and void ab
initio (Ballesteros v. Abion, supra.).
Exceptions:
Usufruct v. Lease
1. If they are merely exhibited
2. If they are accessory to an industrial USUFRUCT LEASE
establishment. (Art. 1645, NCC) as to EXTENT
Covers all fruits and Generally covers and
Formalities required: uses as a rule uses as a rule only a
particular or specific use
as to NATURE of the right
1. A contract of lease is not required to be in
is always a real right is a real right only if, as
any form in order to be valid.
in the case of a lease
2. But for the purpose of enforceability, the over REAL PROPERTY,
Statute of Frauds requires that the contract the lease is
be in writing or be in some note or REGISTERED, or is for

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MORE THAN ONE YEAR,
otherwise, it is only a
personal right
as to the CREATOR
can be created only by the lessor may or
the owner, or by duly may not be the
authorized agent, acting owner (as when there is
in behalf of the owner a sublease)
as to ORIGIN
may be created by law, may be created as a
contract, will, or rule only by contract;
prescription(Art. 563) and by
way of exception by law
(as in the case of an
implied new lease, or
when a builder has built
in good faith a building
on the land of another,
when the land is
considerably worth
more in value than the
building) (See
Art. 448)
as to CAUSE
The owner is more or The owner or lessor
less PASSIVE is more or less ACTIVE,
and he ALLOWS the and he MAKES the
usufructuary lessee enjoy
to enjoy the thing given
in usufruct
as to REPAIRS
The usufructuary The lessee generally
has the duty to make has no duty to pay for
the ordinary repairs repairs
as to TAXES
The usufructuary The lessee generally
pays for the annual pays no taxes.
charges and taxes on
the fruits
as to other things
A usufructuary may The lessee cannot
lease the property itself constitute a usufruct on
to another. (Art. 572) the property leased
(De Leon, Comments and Cases on Sales and Lease,
2005, p. 577)
Persons disqualified to become lessees:
1. The persons disqualified to buy under
Articles 1490 and 1491 of the NCC are
likewise disqualified to become lessees of
the things mentioned therein (Art. 1646,
NCC).
2. If the lease is to be recorded in the Registry
of Property, the following cannot constitute
the same without proper authority; (a) the
husband, with respect to the paraphernal
property of the wife; (b) the father or
guardian as to the property of the minor or
ward; (c) and the manager, without special
power (Art. 1647, NCC).
II. LEASE OF RURAL AND URBAN LANDS
Lease of Rural Lands v. Lease of Urban
Lands
RURAL LANDS URBAN LANDS
Product producing lands Non-product producing
lands
Regardless of site, if the Lands leased principally
principal purpose is to for purposes of
obtain products from residence are called
the soil, the lease is of urban lands.
rural lands.
(De Leon, Comments and Cases on Sales and Lease,
2005, p. 590)
Rule on Assignment of Lease or sublease:
Sublease - A separate and distinct contract of
lease wherein the original lessee becomes a
sublessor to a sublessee.
General Rule: Lessee cannot assign without
the consent of the lessor.
Exception: Unless expressly prohibited (Art.
1650, NCC).

 The assignment constitutes a novation

Subject matter or object of contract:
by substituting the person of the debtor-
1. Either personal or real property.
lessee; hence, creditor-lessor‘s consent
2. But consumables generally cannot be the
is necessary.
object of the contract, except:
a. When they are merely to exhibited; or
b. When they are accessory to an industrial
establishment (Art. 1645, NCC).

366 Center for Legal Education and Research

 Purple Notes
Effects of sublease:
1. The sublease is without prejudice to the
responsibility of the lessee for the
performance of the contract toward the
lessor (Art. 1650, NCC);
2. Sublessee is bound to the lessor for all acts
which refer to the use and preservation of
the thing leased in the manner stipulated
between lessor and the lessee (Art. 1650,
NCC);
3. Sublessee is subsidiarily liable to lessor for
any rent due from the lessee. However,
sublesee shall not be responsible beyond the
amount of rent due from him, in accordance
with the terms of the sublease, at the time
of the extra-judicial demand by the lessor
(Art. 1652, NCC);
4. Payments of rent in advance by sublesee
shall be deemed not to have been made, so
far as the lessor‘s claim is concerned, unless
said payments were effected in virtue of
custom of the place (Art. 1652, NCC).
III. RIGHTS AND OBLIGATIONS OF
LESSOR AND LESSEE
Obligations of Lessor:
1. Delivery of object of contract;
2. Making necessary repairs in order to keep
leased premises suitable for the use to
which it has been devoted, unless there is a
stipulation to the contrary;
3. Maintaining the lessee in the peaceful and
adequate enjoyment of the lease for the
entire duration of the contract (Art. 1654,
NCC).
Remedies of Lessee
In case lessor should not comply with the
foregoing obligations, lessee may:
1. Rescind the contract with damages; or
2. Recover damages only, allowing contract to
remain in force (Art. 1659, NCC); or
3. Simply suspend payment of rent in case the
lessor fails to make the necessary repairs or
to maintain the lessee in peaceful and
2018
Civil Law
adequate enjoyment of property leased (Art.
1658, NCC).
Alteration of Form
Lessor cannot alter the form of thing leased in
such a way as to impair the use to which the
thing is devoted under terms of the lease. (Art.
1661, NCC)
Rule in case of urgent repairs:
1. If repairs are urgent and cannot be deferred
until the termination of the lease, lessee is
obliged to tolerate it although it may be
annoying to him and he may be deprived of
a part of the property for which the lessee
has been deprived.
2. If repairs last more than 40 days, rent shall
be reduced in proportion to the time and the
part of the property for which to the time
and the part of the property for which the
lessee has been deprived.
3. If by reason of the repairs, the portion,
which the lessee and his family need for
their dwelling, becomes uninhabitable,
lessee may rescind the contract if main
purpose of the lease is to provide a dwelling
place for the lessee.
4. If lessor fails to make urgent repairs, the
lessee, in order to avoid an imminent
danger, may order the repairs at the lessor‘s
cost. (Art. 1663, last par., NCC)
Obligations of Lessee:
1. Pay rent according to terms stipulated;
2. Use the thing leased as a diligent father of a
family, devoting it to the use stipulated; and
in the absence of stipulation, to that which
may be inferred from nature of thing leased,
according to custom of place;
3. Pay expenses for the deed of lease (Art.
1657, NCC);
4. Lessee is obliged to inform the lessor, within
shortest possible time, of every usurpation
or untoward act which any third person may
have committed or may be openly preparing
to carry out upon the thing leased, failure to
do so shall render the lessee liable for
damages which, through his negligence,
Bar Operations C ommissions 367
 Purple Notes
Civil Law
may be suffered by the proprietor (Art. 1663,
NCC).
5. Lessee is obliged to advise the owner, with
the same urgency, of need of all necessary
repairs included in No. 2 of Article 1654.
Failure to do so shall render the lessee liable
for damages, which, through his negligence,
may be suffered by the proprietor (Art. 1663,
NCC).
6. Lessee is responsible for deterioration or
loss of thing leased.
a. Exception: He is not liable if he proves
that it took place without his fault.
b. Presumption of fault does not apply:
When destruction is due to earthquake,
flood storm, or other natural calamity
(Art. 1667, NCC).
7. Lessee is also liable for any deterioration
caused by members of his household and by
guests and visitors (Art. 1668, NCC).
8. Lessee is obliged to return thing leased,
upon termination of the leased, in the same
condition as when he received it, except
what has been lost or impaired;
a) By lapse of the time;
b) By ordinary wear and tear,
c) By reason of an inevitable cause (Art. 1665,
NCC).
Introduction of useful improvements:
1. Lessee may introduce useful improvements
on the leased premises provided he does
not alter the form and substance of the
property leased (Art. 1678, NCC).
2. But he has no right of retention and
reimbursement, which rightfully belongs to a
builder in good faith; otherwise, such a
situation would allow the lessee to easily
―improve‖ the lessor out of its property
(SulosaNayon, Inc. v. Nayong Pilipino
Foundation, G.R.No. 170923, January 20, 2009).
3. In this situation, the lessor has the option of
paying one-half of the value of the
improvements which the lessee made in
good faith, which are suitable for the use for
which the lease is intended, and which have
not altered the form and substance of the
land (Art. 1678, NCC).
368 Center for Legal Education and Research
4. Should the lessor refuse to reimburse said
amount, the lessee may remove the
improvement, even though the principal
thing may suffer damage thereby. He shall
not, however, cause any more impairment
upon the property leased than what is
necessary (Art. 1678, NCC).
 A lessee, in order to be entitled to one-half
the value of the improvements introduced
by him in the leased premises, or to remove
them should the lessor refuse to reimburse
the half value thereof, must show that the
same were introduced in good faith; are
useful; suitable to the use for which the
lease is intended without altering the form
and substance of the premises (Imperial
Insurance, Inc. v. Simon, G.R. No. 83545, August
11, 1989).
Introduction of Ornamental Objects:
1. Lessee may introduce ornamental objects on
the leased premises provided he does not
alter the form and substance of the property
leased (Art. 1678, NCC).
2. He is not entitled to any reimbursement with
regard to ornamental expenses.
3. But may remove the ornamental objects,
provided no damage is caused to the
principal thing, and the lessor does not
choose to retain them by paying their value
at the time the lease is extinguished (Art.
1678, NCC).
Duration and termination of lease
Duration:
1. Period may either be definite or indefinite.
2. But period cannot be more than 99 years
(Art. 1643, NCC). If the period is more than 99
years, the lease is considered terminated
after the end of 99 years. After that, it will
be a lease for an indefinite term (V Tolentino,
1992 ed., 209).
Lease for definite period:
1. It ceases upon the day fixed, without need
of demand (Art. 1669, NCC).
 Purple Notes
2. Implied new lease (tacitareconduccion) –If
at the end of the contract the lessee should
continue enjoying the thing leased for 15
days with the acquiescence of the lessor,
and unless a notice to the contrary by either
party has previously been given, it is
understood that there is an implied new
lease, not for the period of the original
contract, but for the time established in
Articles 1682 and 1687 of the NCC. The
other terms of the original contract shall be
revived (Art. 1670, NCC).
3. If the lessee continues enjoying the thing
after the expiration of the contract, over the
lessor‘s objection, the lessee shall be subject
to the responsibilities of a possessor in bad
faith (Art. 1671, NCC).
A notice to vacate constitutes an express act on
the part of the lessor that he no longer consents
to the continued occupation by the lessee of the
property (Josefa v. San Buenaventura, G.R. No.
163495, May 8, 2009).
XI:
QUASI-CONTRACTS
Quasi-Contract - Quasi-contracts are those
juridical relations arising from lawful,
voluntary and unilateral acts, by virtue of
which the parties become bound to each other,
based on the principle that no one shall be
unjustly enriched or benefited at the expense of
another (Art. 2142, NCC)
Characteristics of a quasi-contract
1. It must be Lawful;
2. It must be Unilateral; and
3. It must be Voluntary (Art. 2142, NCC)
The 2 Principal Kinds:
1. Negotiorum Gestio (unauthorized
management); - arises when a person
voluntarily takes charge of the management
of the business or property of another
without any power from the latter (Art. 2144,
NCC).
2018
Civil Law
2. Solutio indebiti (unjust enrichment)–takes
place when a person receives something
from another without any right to demand
for it, and the thing was unduly delivered to
him through mistake (Art. 2154, NCC).
A. NEGOTIORUM GESTIO
Definition: A juridical relation which arises
whenever a person voluntarily takes charge of
the agency or management of the business or
property of another without any power or
authority from the latter (Art. 2144, NCC).
Requisites:
1. An ―officious manager‖ or ―gestor‖
voluntarily assumes the management or
agency of the business or property of
another;
2. Property or business must be neglected or
abandoned; otherwise what results is a case
of unenforceable contract and not
negotiorum gestio.
3. No authorization from the owner, whether
express or implied, otherwise what results is
a contract of agency and not negotiorum
gestio; and
NB: A contract is unenforceable if entered into
the name of another by one who has been given
no authority or legal representation, or who has
acted beyond his powers (Art. 1403 [1], NCC);
4. Assumption of agency or management
must be done in good faith.
Obligations Created:
a. On the part of the officious manager:
1. He is obliged to continue with the
management or agency until the termination
of the affair and its incidents, unless he
requires the owner to substitute for him if
the latter is in a position to do so (Art. 2144,
NCC).
Bar Operations C ommissions 369
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Civil Law
2. He is personally liable to third persons with
whom he contracted with unless:
(a) the owner has ratified the management; or
(b) the contract refers to things pertaining to
the owner (Art. 2152, NCC).
b. On the part of the owner:
1. If he enjoys the advantages of the
unauthorized management, he shall be
liable to the officious manager:
(a) for obligations incurred in his interest;
(b) for reimbursement of necessary and useful
expenses incurred by the latter; and
(c) for reimbursement of damages which the
latter may have suffered in the
performance of his duties.
2. If he did not derive benefit but the
management had for its purpose the
prevention of imminent and manifest loss,
the owner shall also be liable for the
foregoing obligations.
3. If he did not derive benefit and although
there has been no imminent and manifest
danger, he shall still be liable for the
foregoing obligations provided that:
(a) the officious manager has acted in good
faith; and
(b) the property or business is intact, ready to
be returned to the owner (Arts. 2150 & 2151,
NCC).
B. SOLUTIO INDEBITI
Definition: If something is received when there
is no right to demand it and it was unduly
delivered through mistake, the obligation to
return it arises (Art. 2154, NCC).
Requisites:
1. Payment is made when there exist no
binding relation between the payor, who has
no duty to pay, and the person who
received the payment; and
2. Payment is made through mistake and not
through liberality or some other cause.
370 Center for Legal Education and Research
(Commissioner of Internal Revenue v. MERALCO,
G.R. 181459, June 9, 2014).
Compared to accion in rem verso: Accion in rem
verso is an action for recovery for what has been paid
or delivered without just cause or legal ground. It is
an auxiliary action available only when there is no
other remedy based on contract, quasi contract, crime
or quasi delict (Rabuya, Civil Law Reviewer I, 2017, p.
24-25). In solution indebiti, mistake is an essential
element while in accion in rem verso, it is not
necessary that there should be mistake in the
payment (I Tolentino, Civil Code of the Phil., 1992, p.
76).
Q: ―C‖, a Filipino resident of the US sent to
his father ―D‖ in Manila $500.00
through ―X‖ Bank which had a branch
in Manila. Due to mistake of the
employees of the Bank, ―D‖ was paid
$5,000.00. Upon delivery of the
mistake, the Bank demanded from ―D‖
the return of the $4,500.00. ―D‖
refused and the Bank sued him. Is the
Bank entitled to recover from ―D‖?
(Bar 1980)
A: Yes. The Bank is entitled to recover the
$4,500.00 from D. This is an example of a
quasi-contract of solution indebiti which
arises whenever a person unduly delivers a
thing through the mistake to another who
has no right to demand it (Jurado, Civil Law
Reviewer, 2009, p. 1151).
XII:
LAND TITLES AND DEEDS
Land Title
Evidence of the right of the owner or the extent
of his interest and by means of which he can
maintain control, and as a rule, assert his right
to exclusive possession and enjoyment of the
property.
Deed
A written instrument executed in accordance
with law, wherein a person grants or conveys to
another certain land, tenements or
hereditaments.
 Purple Notes
Land Registration
A judicial or administrative proceeding whereby
a persons‘ claim over a particular land is
determined and confirmed or recognized so that
such land and the ownership thereof may be
recorded in a public registry (Agcaoili, O., Property
Registration Decree and Related Laws, 2011).
Land laws
1. Public Land Act (C.A. No. 141)
2. Land Registration Act (Act No. 496)
3. Cadastral Act (Act no. 2259)
4. Property Registration Decree (P.D 1529)
A. TORRENS SYSTEM; GENERAL
PRINCIPLES
Torrens system (Founded by Richard
Robert Torrens)
A system for registration of land under which,
upon the landowner‘s application, the court
may, after appropriate proceedings, direct the
issuance of a certificate of title (Aquino, Land
Registration and Related Proceedings, 2007, p.1 citing
Black‘s Dictionary).
Purpose of land registration under the
Torrens system
1. To provide security of ownership, avoid
possible conflicts of title in and to real
property
2. To facilitate transactions relative thereto by
giving the public the right to rely upon the
face of the Torrens certificate of title and to
dispense with the need of inquiring further.
3. To guarantee the integrity of land titles and
to protect their indefeasibility once the claim
of ownership is established and recognized
(Agcaoili, O., Property Registration Decree and
Related Laws, 2006, p. 8).
Purpose of Registration:
1. Binds the land/ Third person (Aznar Brothers
Realty v. CA and Anying, et. al., G.R. No. 128102,
March 7, 2000)
2. Incontestability of Title (Estrellado v. Martinez,
G.R. No. L-23847, Nov. 18, 1925)
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3. Notice to the World (In Rem under sec. 2,
P.D. 1529) (Gatioan v. Gafud, G.R. No. L-21953,
March 28, 1969)
4. To Transfer Ownership (Reyes v. Noblejas, G.R.
No. L-23691, Nov. 25 1967)
Exception: When the party concerned has
actual knowledge of facts and circumstances
that should impel a reasonably cautious man to
make such further inquiry (Crisostomo v. Court of
Appeals, GR No. 91383, May 31, 1991).
Notes:
• Registration does not vest title.
• It is not a mode of acquiring ownership.
• It is merely evidence of such title over a
particular property
• Registration does not give the registrant a
better right than what the registrant had
prior to the registration (Agcaoili, O., Property
Registration Decree and Related Laws, 2006, p.
62).
Torrens Title – certificate of ownership issued
by the land Register of Deeds, naming and
declaring the owner of the real property
described therein, free from all liens and
encumbrances except such as may be expressly
noted thereon or otherwise reserved by law.
EFFECT: It can be conclusive against the whole
world, it is guaranteed to be indefeasible, un
assailable, and imprescriptible.
General rule: Title once registered cannot be
impugned, altered, changed, modified, enlarged
and cannot defeated by prescription.
Exception: Subject to the right of a third
person on principle of equity.
• Registration of lands under the Torrens
System, by itself, cannot convert public
lands into private lands(Chavez v. PEA, G.R.
No. 133250, May 6, 2003).
Effects of Registration under the Torrens
System: (Three Guiding Principles)
A. The Mirror Principle- The principle means
that the title to the property will reflect
Bar Operations C ommissions 371
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completely and accurately all the current
facts of the title so that it is free of adverse
claims or burdens unless they are
mentioned. In other words, the title should
show to the world all of the relevant
information about ownership and claims or
warnings about the property that an
interested party will want to know
Generally speaking, a title will show he
current owner and all outstanding registered
interest in the land such as mortgages,
caveats, easements and builder‘s liens.
The mirror principle is not absolute there
can be certain public rights or burden that
affect the title, such as a right to
expropriation or zoning restrictions, that
may not be shown on the title.
Two Components of ―Mirror Principle‖
1. Certainty to the Identity of the Land-
the identity or metes and bounds of the
land is accomplished through a survey;
survey is a requirement before a land
can be registered.
Under CA 141 Sec. 8, only the following
lands can be surveyed:
a. Declared open to disposition or
concession
b. Delimited and Classified
c. Not reserved for public or quasi-
public use
d. Not appropriated by the government
e. Not private property
2. Certainty as to the Ownership of the
Land - the identity of the landowners is
ensured during original registration
proceedings, cadastral registration
proceedings, or through application for a
public land grant; the personal
circumstances of applicants are secured
during the proceedings.
B. The Curtain Principle (or
Indefeasibility of Titles) – The principle
means that the current certificate of title
contains all the information about the title
372 Center for Legal Education and Research
and it is not necessary for an interested
person such as a potential purchases to
worry about any past dealings with the
property.
This does away with the need to search
back through history of a piece of a property
to be sure that the present registered owner
has good title
General rule: A historical search to verify that
the title is good is unnecessary.
Exceptions:
1. When the party concerned has actual
knowledge of facts and circumstances that
should impel a reasonably cautious man to
make further inquiry.
2. Fraud
C. The Insurance or Guarantee Principle –
The principle means that an insurance fund
is in place to compensate anyone who
suffers as a result of a mistake being made
concerning the validity or accuracy of a title
The idea behind the Torrens System is that
the registry must guarantee the accuracy of
every title to the land. If a result of human
error, there is a mistake about the title to a
piece of land and someone suffers a loss as
a result they will be compensated by the
fund.
Exceptions to the 3 principles of the
Torrens System:
1. Statutory liens and restrictions
2. Liens, claims, or rights which, under the law,
are not required to appear of record in the
Registry of Deeds
3. Unpaid real estate taxes levied and assessed
within 2 years
4. Public highways/canals or private way if the
title does not state that the boundaries of
such highway have been determined
5. Disposition pursuant to the Agrarian Reform
Law
 Purple Notes
6. Registered lands which are subject to
burdens and incident as may arise by
operation of law
7. Rights incidental to marital relation
8. Landlord and tenant relationship
9. Change the laws of descent
10. Restriction on Patents
11. Deferred Indefeasibility
12. Reconveyance
13. Reversion
14. Caveat Emptor
Nature of Torrens Title
▪ Judicial, not merely administrative
▪ Proceeding in rem (enforceable against the
whole world)
Concept of Torrens System
▪ Confirms and records pre-existing title
▪ Does not create or vest title
1. So that the owner may rest secure without
the necessity of waiting in the portals of the
courts, or sitting in the mirador de su casa,
to avoid the possibility of losing land (Alvienda
v. CA, G.R. No. L-61416, March 18, 1985).
2. To facilitate transactions relative to land
giving the public the right to rely upon the
face of the transfer Certificate of Title (TCT)
and to dispense with the need of inquiring
further, except when fraud is attendant
(Republic v. Umali, G.R. No. 80687, April 10,
1989).
Advantages of the Torrens System:
1. It substituted security for insecurity;
2. It reduced the cost of conveyances from
pounds to shillings and the time occupied
from months to days.
3. It exchanged brevity and clearness for
obscurity and verbiage;
4. It simplified ordinary dealings on land that
one may transact his own conveyancing;
5. It affords protection against fraud;
6. It restored just value on estates, held under
good holding titles, but depreciated, in
consequence of some blur or technical
defect in title, and barred the reoccurrence
of such similar faults (Agcaoili, Property
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Registration Decree and Related Laws: Land
Titles and Deeds, 2006, p. 10).
2. Certificate of Title:
It is a mere evidence of ownership. It is not the
title to the land itself, but a copy of the decree
of registration. It is not a source of right. It
merely confirms or records a title already
existing and the mere possession thereof does
not make one the true owner of the property.
1. It cannot be defeated by adverse, open and
notorious possession neither can it be
defeated by prescription.
2. It cannot be collaterally attacked.
3. The Certificate of Title is indefeasible and
imprescriptible and all claims to the parcel of
land are quieted upon issuance of the said
certificate
4. A person dealing with registered land may
safely rely upon the correctness of the
Certificate of Title (CoT) issued thereof and
the law will in no way oblige him to go
beyond the CoT to determine the condition
of the property (Dela Cruz v. Dela Cruz, G. R.
No. 146222, January 15, 2004).
Under the Torrens System, a certificate of
Title may be:
1. Original Certificate of Title -The first title
issued in the name of the registered owner by
the Register of Deeds covering a parcel of land
which had been registered by virtue of a judicial
or administrative proceeding.
2. Transfer Certificate of Title - the title
issued by the ROD in favor of the transferee to
whom the ownership of the already registered
land had been transferred by virtue of a sale or
other modes of conveyance.
General Rule: A title once registered cannot
be impugned, altered, changed, modified,
enlarged, or diminished. It shall not be subject
to collateral attack. Exception: Direct proceeding
permitted by law, usually for the protection of
innocent third persons.
Note: A certificate of title shall not be subject to
collateral attack. It cannot be altered, modified,
or cancelled except in a direct proceeding in
accordance with law (Sec. 48, P.D. 1529).
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Deferred Indefeasibility
In Decree – the case cannot be reopened
except if such decree was obtained by actual
fraud, action should be filed within 1 year after
the issuance of decree (Sec. 32, P.D. 1529).
CONSTITUTIONAL LIMITATIONS
Art. XII, Sec. 3 of the 1987 Constitution
classified lands of the public domain into
the following:
1. Agricultural – Those public lands acquired
from Spain which are not timber or mineral
lands (Mapa v. Insular Government, G.R. No. L-
3793, February 19, 1908).
2. Forest or timber – PD 705 Sec. 3 defines
the following:
Forest lands- include the public forest, the
permanent forest or forest reserves, and forest
reservations
Public forest- mass of lands of the public
domain which has not been the subject of the
present system of classification for the
determination of which lands are needed for
forest purposes and which are not
Permanent forest or forest reserves- those
lands of the public domain which have been the
subject of the present system of classification
and determined to be needed for forest
purposes
Under PD 705, lands, which are 18% in slope,
are not suitable to become alienable and
disposable. As such, lands, which are already
classified as alienable and disposable, revert to
forestlands if they are 18% in slope.
3. Mineral lands – Any area where mineral
resources are found (RA NO. 7923, Mining Act
of 1995)
4. National Parks – A forest reservation
essentially for national wilderness character
which has been withdrawn from settlement,
occupancy or form of exploitation (RA
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NO.7586, National Integrated Protected Areas
System Act)
B. AGRARIAN TITLES AND ANCESTRAL
LANDS AND DOMAINS
Agricultural Land
Refers to land devoted to agricultural activity
and not classified as mineral, forest, residential,
commercial or industrial land.
Ancestral Land
Refers to land occupied, possessed and utilized
by individuals, families and clans who are
members of the ICC/IPs since time immemorial,
by themselves or through their predecessor‘s-in-
interest, under claims of individual or traditional
group ownership, continuously , to the present
(Section 3 (b), R.A 8371 ).
Ancestral Domain
Refers to all areas generally belonging to
Indigenous Cultural Communities/Indigenous
Peoples comprising lands, inland waters, coastal
areas and natural resources therein, held under
a claim of ownership, occupied or possessed by
ICCs/IPs, by themselves or through their
ancestors, communally or individually since time
immemorial, continuously to the present
(Section 3 (a) R.A 8371).
1. Concept and Registration of Agricultural
Titles
A) Registration of Landowners
All persons , natural or juridical, including
government entities, that own or claim to own
agricultural lands, whether in their names or in
the name of others, except those who have
already registered pursuant to Executive Order
No.229 (Section 14, Republic Act. No, 6657).
B.) Filing a sworn statement
1.) Purpose: To help the Department of
Agrarian Reform identify the lands and their

owners for effective implementation of the
agrarian reform program
2.) Information Stated in the Sworn Statement
(a) The description and area of the property;
(b) The average gross income from the
property for at least three (3) years;
(c) The names of all tenants and farmworkers
therein
(d) The crops planted in the property and the
area covered by each crop as of June 1,
1987;
(e) The terms of mortgages, leases and
management contracts subsisting as of
June 1, 1987; and
(f) The latest declared market value of the
land as determined by the city or provincial
assessor (Section 14, Republic Act. No, 6657)
C) Registration of Beneficiaries
1.) Purpose: To develop a databank of potential
and qualified beneficiaries for the effective
implementation of the agrarian reform
program (Department of Agrarian Reform
Administrative Order No. 03, series of 2008).
2.) The DAR in coordination with the Barangay
Agrarian Reform Committee, shall register all
agricultural lessees, tenants
farmworkers who are qualified to be
beneficiaries of the CARP (Section 15, Republic
Act. No, 6657).
3) The BARC and the DAR shall provide the
following data:
(a) Names and members if their immediate
farm household;
(b) Owners or administrators of the lands they
work on and the length of tenurial
relationship
(c) Location and area of the land they work;
(d) Crops planted; and
(e) Their share in the harvest or amount of
rental paid or wages received (Section 15,
Republic Act. No, 6657).
2. Concept and Registration of Ancestral
Land and Domain
A) Terms:
Purple Notes 2018
Civil Law
Certificate of Ancestral Domain Title
Refers to a tile formally recognizing the rights of
possession and ownership of ICC/IPs over their
ancestral domains identified and delineated.
Certificate of Ancestral Lands Title
Refers to a tile formally recognizing the rights of
ICC/IPs over their ancestral lands
Communal claims
Refers to claims on land, resources and rights
thereon, belonging to the whole community
within a defined territory.
Native Title
Refers to pre-conquest rights to lands and
domains which, as far back as memory reaches,
have been held under a claim of private
ownership by ICC‘s/IPs, have never been public
lands and are thus indisputably presumed to
have been held that way since before the
Spanish Conquest
and
B) Rights of ownership and Possession
Rights to Ancestral Domains
1.) Right of Ownership
2) Right to Develop Lands and Natural
resources
3) Right to stay in the territories
4) Right in case if Displacement
5) Right to regulate entry of migrants
6) Right to Safe and Clean Air and Water
7) Right to Claim Parts of Reservations
8) Right to resolve Conflict
Rights to Ancestral Lands
1.) Right to transfer land/property
2.) Right to redemption
C) Option to Secure Certificate of Title
under Commonwealth Act 141, as
amended, or the Land Registration Act 496
Individual members of cultural communities,
with respect to their individually-owned
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ancestral lands who by themselves or through
their predecessors-in-interest, have been in
continuous possession and occupation of the
same in the concept of an owner since time
immemorial or for a period of not less than
thirty(30) years and uncontested by the
members of the same ICCs/IPs shall have the
option to secure title to their ancestral lands
under the provisions of Commonwealth Act 141,
as amended, or the Land Registration Act. 496
Individually-owned ancestral lands, which are
agricultural in character and actually used for
agricultural, residential, pasture and tree
farming purpose, including those with a slope of
eighteen percent (185) or more, are hereby
classified as alienable and disposable
agricultural lands
The option granted shall be exercises within
twenty (20) years from the approval of this Act
(Section 12, R.A 8371).
C. CITIZENSHIP REQUIREMENT
Constitutional provisions:
 Article XII, Sec. 2 of the 1987
Constitution
All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces
of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural
resources are owned by the State. With the
exception of agricultural lands, all other natural
resources shall not be alienated. The
exploration, development and utilization of
natural resources shall be under the full control
and supervision of the State. The State may
directly undertake such activities or it may
enter into co-production, joint venture or
production-sharing agreements with
Filipino citizens, or corporations or
associations at least sixty per centum of
whose capital is owned by such citizens.
Such agreements may be for a period not
exceeding twenty-five years, renewable for not
more than twenty-five years, and under such
terms and conditions as may be provided by
law. In cases of water rights for irrigation, water
supply, fisheries, or industrial uses other than
376 Center for Legal Education and Research
the development of water power, beneficial use
may be the measure and limit of the grant.
 Article XII, Article XII of the 1987
Constitution
Save in cases of hereditary succession, no
private lands shall be transferred or conveyed
except to individuals, corporations, or
associations qualified to acquire or hold lands of
the public domain
 Article XII of the 1987 Constitution
Notwithstanding the provisions of Section 7 of
this Article, a natural-born citizen of the
Philippines who has lost his Philippine citizenship
may be a transferee of private lands, subject to
limitations provided by law.
A. Individuals
1) Filipino Citizens
A.) Citizens of the Philippines may lease not
more than five hundred hectares, or acquire not
more than twelve hectares of the alienable lands
of the public domain, by purchase, homestead,
or grant. (Section 3, Article XII, 1987
Constitution)
B) Citizens may acquire private lands.
2) Former Natural-Born Citizens
A.) A natural-born citizen of the Philippines who
has lost his Philippine citizenship may be a
transferee of private lands, subject to limitations
provided by law. (Section 8, Article XII, Section 8,
1987 Constitution)
B.)Any natural born citizen who has lost his
Philippine citizenship and who has the legal
capacity to enter into a contract under Philippine
laws may be a transferee of a private land up to
a maximum area of five thousand (5,000)
square meters in the case of urban land or three
(3) hectares in the case of rural land to be used
by him for business or other purposes. In the
case of married couples, one of them may avail
of the privilege herein granted: Provided, that if
both shall avail of the same, the total area
 Purple Notes
acquired shall not exceed the maximum herein
fixed.
In case the transferee already owns urban or
rural land for business or other purposes, he
shall still be entitled to be a transferee of
additional urban or rural land for business or
other purposes which when added to those
already owned by him shall not exceed the
maximum areas herein authorized.
A transferee under this Act may acquire not
more than two (2) lots which should be situated
in different municipalities or cities anywhere in
the Philippines: Provided, that the total land
area thereof shall not exceed five thousand
(5,000) hectares in the case of rural land for use
by him for business or other purposes. A
transferee who has already acquired urban land
shall be disqualified from acquiring rural land
area and vice versa (Section 10 ,RA No. 7042, as
amended by RA No. 8179, dated March 28,
1996, Foreign Investment Act of 1991, implementing
Section 8, Article XII ,1987 Constitution).
3) Aliens
Alien Individuals may be transferees of private
lands only in cases of hereditary
succession (Section. 7, Article XII, 1987
Constitution).
B. Corporations
1.) Private corporations or associations may not
hold such alienable lands of the public
domain except by lease, for a period not
exceeding twenty-five years, renewable for
not more than twenty-five years, and not to
exceed one thousand hectares in area
(Section. 3, Article XII, 1987 Constitution).
2.) Only corporations or associations at least
60% of the capital stock of which is owned
by Filipinos, and the remainder by
foreigners, may own private lands.
3.) Condominium Corporation Owns the
Land - Transfers to aliens of a condominium
unit may be made only up to the point
where the concomitant transfer of
membership or stockholding in the
condominium corporation would not cause
the alien interest in such corporation to
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exceed 40% of its entire capital stock
(Section 5, Condominium Act).
4.) Corporation Leases the Land –
Any corporation which is owned 100% by a
foreign firm may establish a "condominium
corporation" under R.A. No. 4726 and set up
a condominium project on land leased for a
period not to exceed (50) years (DOJ Opinion
1973).
Foreign Investors may lease private lands for
a period not exceeding fifty (50) years,
renewable once for a period of not more than
twenty- five (25) years, provided that the
leased area shall be used solely for the
purpose of the investment, and provided
further that the leased premises shall
comprise such area as may reasonably be
required for the purpose of the investment
subject however to the Comprehensive
Agrarian Reform Law and the Local
Government Code (Section 4, Investor‘s Lease
Act,).
5.) Land is Co-owned by the Unit Owners –
Where the common areas in the
condominium project are owned by the
owners of separate units as co-
owners thereof, no condominium unit therein
shall be conveyed or transferred to persons
other than Filipino citizens, or corporations at
least 60% of the capital stock of which belong
to Filipino citizens, except in cases of
hereditary succession (Section 5, Condominium
Act).
D. ORIGINAL REGISTRATION
Nature:
Judicial proceedings for the registration of lands
throughout the Philippines shall be in rem and
shall be used based on the Torrens System
Proceeding is brought before the Courts of First
Instance to determine title or ownership of land
on the basis of an application or answer
opposition by a claimant ina cadastral
registration. (Sec. 2, P.D No.1529, )
The Torrens System provides for mechanism to
realize the purpose of obtaining the original
registration of title to land. The person asserting
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title, referred to as applicant, has to initiate and
apply before the proper court. Thereafter, a
hearing is conducted to determine whether or
not the applicant has title to the property and if
he does have, a decree of confirmation and
registration is entered to bind the land and quiet
the title. It is incumbent upon the Administrator
of land Registration Authority to issue the
corresponding decree in the prescribed form of
―Original Certificate of Title‖ (Executive Order No.
292, Administrative Code of 1987).
ORDINARY REGISTRATION PROCEEDINGS
UNDER ACT 496 as amended by PD 1529,
THE PROPERTY REGISTRATION DECREE
OF 1978:
Nature of the Proceeding (In Rem)
▪ Land registration or judicial titling is an action
in rem or property (subject matter of
registration) and seeks judgment with
respect to as against the whole world (Sec. 2,
PD 1529).
Jurisdiction
1. The Regional Trial Courts are generally
vested with exclusive original jurisdiction
over judicial titling (B.P. 129 as amended by
R.A. No.7691, otherwise known as the ―Judiciary
Reorganization Act of 1980‖).
2. The RTC has jurisdiction where the assessed
value of the property involved exceeds Php
300,000.00 or, for civil actions in Metro
Manila, where such value exceeds Php
400,000.00
Register of Deeds(RD): Constitutes a public
repository of records of instruments affecting
registered or unregistered lands and chattel
mortgages in the province or city wherein such
office is situated (Sec. 10, P.D. 1529).
RD’s duty to register is purely ministerial
The Register of Deeds is entirely precluded by
Sec. 10 of P.D. 1529 (formerly Sec. 4, R.A.
1151) from exercising his personal judgment
and discretion when confronted with the
problem of whether to register a deed or
378 Center for Legal Education and Research
instrument on the ground that it is invalid. The
determination of whether a document is valid or
not is a function that belongs properly to a court
of competent jurisdiction (Aquino, Land
Registration and Related Proceedings, p.11, 2007).
When RD may deny registration:
a. Where there are more than one copy of the
owner‘s duplicate certificate of title and not
all such copies are presented to the Register
of Deeds.
b. Where the voluntary instrument bears on its
face an infirmity. Thus, if the conjugal
character of the property subject of a deed
of donation by the husband ―is assumed‖
and 2/3 portion of the property was donated
by the husband alone, then such donation
clearly exceeds the 1/2 share that pertains
to him.
3. Where the validity of the instrument sought
to be registered is an issue in a pending suit.
The registration may be suspended to await
the final outcome of the case and the rights
of the interested parties could be protected
in the meantime by filing the proper notice of
lispendens (Aquino, Land Registration and
Related Proceedings, p.11-12, 2007).
1. WHO MAY APPLY FOR ORIGINAL
REGISTRATION UNDER P.D. 1529 (OPAL)
The following persons may file in the proper
court, an application for registration of title to
land:
1. Those who by themselves or through their
predecessors-in-interest have been in Open,
continuous, exclusive and notorious
possession and occupation of alienable and
disposable lands of the public domain under
a bona fide claim of ownership since June
12, 1945, or earlier; (OCENPO)
2. Those who have acquired ownership of
private lands by Prescription under the
provision of existing laws;
3. Those who have acquired ownership of
private lands or abandoned riverbeds by
 Purple Notes
right of Accession or accretion under the
existing laws;
4. Those who have acquired ownership of land
in any other manner provided for by Law
(Sec. 14, Chapter III, P.D. 1529).
Under Commonwealth Act 141
Public lands suitable for agricultural purposes
can be disposed of only as follows, and not
otherwise:
1. For Homestead Settlement
Who may apply?
Any citizen of the Philippines over the age of 18
years, or the head of a family, who does not
own more than twelve (12) hectares of land in
the Philippines or has not had the benefit of any
gratuitous allotment of more than twelve (12)
hectares of land since the occupation of the
Philippines by the United States, may enter a
homestead of not exceeding twenty-four
hectares of agricultural land of the public
domain.
2. By Sale
Who may apply?
Any citizen of lawful age of the Philippines, and
any such citizen who is a head of a family. They
may purchase any tract of public agricultural
land disposable under this Act, not to exceed
twelve (12) hectares.
3. By lease
Who may apply?
a. Any citizen of lawful age of the Philippines
b. Any corporation or association of which at
least sixty per centum (60%) of the capital
stock or of any interest in said capital stock
belongs wholly to citizens of the Philippines,
and which is organized and constituted
under the laws of the Philippines.
 They may lease any tract of agricultural
public land available for not exceeding a
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Civil Law
total of one thousand (1,000) hectares,
for corporations and five hundred
hectares, for individuals.
No member, stockholder, of officer,
representative, attorney, agent, employee or
bondholder of any corporation or association
holding or controlling agricultural public land
shall apply, directly or indirectly, for agricultural
public land shall apply, directly or indirectly, for
agricultural public land except under the
homestead and free patent provisions of this
act. Provided, That no lease shall be permitted
to interfere with any prior claim by settlement or
occupation, until the consent of the occupant or
settler is first had, or until such claim shall be
legally extinguished, and no person, corporation,
or association shall be permitted to lease lands
hereunder which are not reasonably necessary
to carry on his business in case of an individual,
or the business for which it was lawfully created
and which it may lawfully pursue in the
Philippines, if an association or corporation.
4. By Confirmation Of Imperfect or
Incomplete Titles:
By Judicial Legalization
Who may apply?
1. Those who, prior to the transfer of
sovereignty from Spain to the United States,
have applied for the purchase, composition or
other form of grant of lands of the public
domain under the laws and royal decrees
then in force and have instituted and
prosecuted the proceedings in connection
therewith, but have with or without default
upon their part, or for any other cause, not
received title therefore, if such applicants or
grantees and their heirs have occupied and
cultivated said lands continuously since the
filing of their applications.
2. Those who, by themselves or through their
predecessors in interest, have been in open,
continuous, exclusive, and notorious
possession and occupation of agricultural
lands of the public domain, under a bona fide
claim of acquisition or ownership, for at least
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thirty (30) years immediately preceding the
filing of the application for confirmation of
title except when prevented by war or force
majeure. These shall be conclusively
presumed to have performed all the
conditions essential to a Government grand
and shall be entitled to a certificate of title.
3. Members of the national cultural minorities
who by themselves or through their
predecessors-in-interest have been in open,
continuous, exclusive and notorious public
domain suitable to agriculture, whether
disposable or not, under a bona fide claim of
ownership for at least thirty (30) years shall
be entitled to the rights granted in sub-Sec.
(b) hereof.
5. By Administrative Legalization (Free
Patent)
a. Any natural-born citizen of the Philippines
who is not the owner of more than twelve
(12) hectares and who since July 4, 1926 or
prior thereto, has continuously occupied and
cultivated, either by himself or through his
predecessors-in-interest, a tract or tracts of
agricultural public lands subject to
disposition, or who shall have paid the real
estate tax thereon while the same has not
been occupied by any person shall be
entitled to have a free patent issued to him
for such tract or tracts of such land not to
exceed twelve (12) hectares.
b. A member of the national cultural minorities
who has continuously occupied and
cultivated, either by himself or through his
predecessors-in-interest, a tract or tracts of
land, whether disposable or not since July 4,
1955. Provided, that at the time he files his
free patent application he is not the owner
of any real property secured or disposable
under this provision of the Public Land Law.
Socialized Housing (R.A. 7292)
Socialized housing refers to housing programs
and projects covering houses and lots or
homelots only undertaken by the Government or
the private sector for the underprivileged and
homeless citizens which shall include sites and
services development, long-term financing,
380 Center for Legal Education and Research
liberalized terms on interest payments, and such
other benefits.
Eligibility Criteria For Socialized Housing:
1. Must be a Filipino citizen;
2. Must be an underprivileged citizen;
3. Must not own any real property;
4. Must not be a professional squatter (Sec. 16.
R.A. 7292).
Right to Adequate Housing under Magna
Carta of the Poor (R.A. 1129)
The Right to Adequate Housing is the right to
have a decent, affordable, safe and culturally
appropriate place to live in with dignity, security
of tenure in accordance with the "Urban
Development and Housing Act of 1992", in
peace, with access to basic services, facilities,
and livelihood (Sec. 4[d], R.A. 11291).
It shall be the duty of the Housing and Urban
Development Coordinating Council and other
implementing agencies to ensure:
1. That it shall prioritize the implementation of
socialized housing program with identified
appropriate subsidies;
2. To immediately construct and provide housing
facilities for families living in identified
hazardous/danger zones, and in areas affected
by disasters/calamities where the housing needs
of the poor are urgent;
3. Create an enabling environment that will
assist the poor gain access to security of tenure
with the least financial burden; and
4. Provide a system consisting of simple
requirements and procedures, and expeditious
processing and approval especially for
community-based socialized housing/people‘s
proposals (Sec. 4[d], R.A. 11291).
2. REGISTRATION PROCESS AND
REQUIREMENTS
Modes of registering land titles
1. Original registration proceedings under the
Property Registration Decree (P.D. 1529); and
 Purple Notes
2. Confirmation of imperfect or incomplete
title under Sec. 48(b) of the Public Land Act, as
amended.
REQUIREMENTS IN LAND REGISTRATION
1. Declassification – The land applied for has
been declassified from the forest or timber zone
and is a public agricultural land, is alienable and
disposable, or otherwise capable of registration;
2. Identity of the land; and
3. Possession and occupation of the land
for the length of time and in the manner
required by law.
Proof to establish declassification of land
1. Presidential proclamation;
2. Administrative Order issued by the Secretary
of Environment and Natural Resources;
3. Executive order;
4. Bureau of Forest Development (BFD) Land
Classification Map;
5. Certification by the Director of Forestry, and
reports of District Forester;
6. Investigation reports of Bureau of Lands
Investigator (Republic v. Javier, R.A. 214367, April
4, 2018); or
6. Legislative act, or by statute.
Identification and Designation of Lands for
Housing and Urban and Rural
Development (Sec. 24, R.A. 11201).
For the purpose of designating lands for housing
and urban and rural development the following
agencies shall identify lands for housing and
urban and rural development:
1. The Department of Human Settlements and
Urban Development (DHSUD)
2. The Department of Environment and Natural
Resources (DENR),
3. The Department of Agrarian Reform (DAR),
4. The Department of Agriculture (DA),
5. The Department of the Interior and Local
Government (DILG), and
6. The Land Registration Authority (LRA)
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Civil Law
 All government lands which have been
idle for more than ten (10) years, except
lands owned by the GOCCs and
government financial institutions
engaged in shelter financing as part of
its fiduciary obligation to its members
and/or are taken possession of in their
ordinary conduct of business are
prioritized for housing and urban
development purposes.
 lands exempted from conversion under
existing laws shall be excluded from the
coverage
 That the national lands identified shall
be transferred to or administered by the
Department, subject to the approval
of the President.
Note: The Court held that the CENRO/PENRO
certification is not sufficient evidence of the facts
stated therein ( Gaerlan v. Republic, G.R. No.
192717, March 12, 2014). ―In Republic v. Hanover
Worldwide Trading Corporation, the Court
declared that the CENRO is not the official
repository or legal custodian of the issuances of
the DENR Secretary declaring the alienability
and disposability of public lands. Thus, the
CENRO Certification should be accompanied by
an official publication of the DENR Secretary's
issuance declaring the land alienable and
disposable‖ (Republic v. Aboitiz, G.R. No. 174626,
October 23, 2013).
Requisites in ordinary registration
proceedings and judicial confirmation of
imperfect title (Commonwealth Act No.
141)
1. Survey of land by Bureau of Lands or any
duly licensed private surveyor;
2. Filing of application for registration by
applicant;
3. Setting of date for initial hearing by the
court;
4. Transmittal of application and date of initial
hearing with all documents or other pieces of
evidence attached thereto by clerk of court to
Bar Operations C ommissions 381
 Purple Notes
Civil Law
National Land Titles and Deeds Registration
Administration (NALTDRA);
5. Publication of notice of filing of application
and date and place of hearing;
6. Service of notice by sheriff upon contiguous
owners, occupants and those known to have
interest in the property;
7. Filing of answer or opposition to the
application by any person whether named in
the notice or not;
8. Hearing of case by court;
9. Promulgation of judgment by court;
10. Issuance of a decree by court declaring the
decision final, and instructing the NALDTRA
to issue a decree of confirmation and
registration;
11. Entry of decree of registration in NALDTRA;
12. Sending of copy of the decree of registration
to corresponding RD; and
13. Transcription of decree of registration in the
registration book and issuance of owner‘s
duplicate original certificate of title (OCT) of
applicant by RD, upon payment of prescribed
fees.
* After judgment has become final and
executory, the issuance of decree and OCT is
ministerial on the part of LRA and RD.
Application of Rules of Court in land registration
proceedings The Rules of Court could be applied
in land registration proceedings in a suppletory
character or whenever practicable or convenient.
Ordinary Registration Procedure (See
Section 14 to 40 of PD 1529)
a. Filing of the application (RTC)
b. Issuance of an Order setting the date
and hour of the Initial hearing which
shall not be earlier than 45 days nor later
than 90 days from the date of the order.
i. Notices - (Publication Official Gazette;
Mailing; and Posting)
ii. Filing of Opposition - Any Person claiming
an interest may appear and file an
opposition on or before the date of initial
hearing or anytime as may be allowed by
the court. The opposition shall state all the
objections to the application and shall set
382 Center for Legal Education and Research
forth the interest claimed by the party; the
remedy desired; signed and sworn.
iii. Initial/Jurisdictional hearing - Applicant
presents evidence of compliance to the
order of the court for notices on the setting
of initial hearing; court will ask if there are
oppositions
iv. Order of Default - if no person appears
and answers, upon motion of the applicant
the court may order a default to be recorded
and require the applicant to present
evidence. But when an appearance has been
entered and an answer filed, a default order
shall be entered against persons who did
not appear and answer.
v. Hearing / Referee / Commissioner - The
court may hear the case (applicant presents
evidence; oppositors presents evidence) or
refer the case or any part to a referee;
hearing at any place within the province;
submit his report thereon to the court within
15 days after the termination of such
hearing. Court may adopt the report or set it
aside for further proceedings.
vi. Judgment - within 90 days from the date
the case is submitted for decision. The
court, after considering the evidence and
the reports of the Commissioner of Land
Registration and the Director of Lands, finds
the applicant or the oppositor has sufficient
title proper for registration, judgment shall
be rendered confirming the title of the
applicant, or the oppositor, to the land. It
becomes final upon the expiration of 30
days to be counted from the date of receipt
of notice of the Judgment. An appeal may
be taken from the judgment of the court as
in ordinary civil cases.
Partial judgment - all conflicting claims of
ownership and interest in the land
subject of the application is determined by the
court but the court may render
partial judgment where only a portion of the
land is contested.
 Purple Notes
vii. Issuance of Decree - after judgment has
become final and executory, the court issue
an order to LR for the issuance of the
decree of registration and the corresponding
certificate of title in favor of the person
adjudged entitled to registration.
viii. Transmission of the Decree to the
Register of Deeds
APPLICATION
Form of the application for registration or
judicial confirmation
In writing:
1. Signed by the applicant or person duly
authorized in his behalf;
2. Sworn to before an officer authorized to
administer oaths for the province or city
where the application was actually signed;
and
3. If there is more than one applicant, they
shall be signed and sworn to by and in behalf
of each.
Documents that must accompany the
application
All muniments of titles and copies thereof with
survey plan approved by Bureau of Lands must
accompany the application.
Muniments of Title
They are instruments or written evidence which
the applicant holds/possesses to enable him to
substantiate and prove title to his estate. Rule
regarding application covering two or more
parcels An application may include two or more
parcels of land belonging to the applicant/s
provided they are situated within the same
province or city (P.D. 1529, Sec. 18).
Jurisdiction and venue where the
application can be filed
If the application covers a single parcel of land
situated within:
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Civil Law
1. Only one city or province:
RTC or MTC, as the case may be, of the
province or city where the land is situated.
2. Two or more provinces or cities:
a. When boundaries are not defined – In the
RTC or MTC of the place where it is
declared for taxation purposes.
b. When boundaries are defined – Separate
plan for each portion must be made by a
surveyor and a separate application for
each lot must be filed with the
appropriate RTC or MTC.
NOTE: MeTC, MCTC, and MTC has jurisdiction
to decide cadastral and land registration cases,
provided:
1. There is no controversy or opposition
(uncontested lots); or
2. Value of contested lots does not exceed P100,
000 (R.A. 7691, Sec. 4).
Note: In other cases, the RTC has jurisdiction.
Appeal is taken to the Court of Appeals.
The value of the property is ascertained in
three ways:
(1) By the affidavit of the claimant;
(2) By agreement of the respective claimants,
if there are more than one; or
(3) From the corresponding tax declaration
of the real property (B.P. 129, Sec. 34).
PUBLICATION
Within five days from the filing of the application
for registration, the court shall issue an order
setting the date and hour of initial hearing which
shall not be earlier than 45 days nor later than
90 days from date of the order.
Manner of giving notice
1) Publication once in the Official Gazette and
once in a newspaper of general circulation;
Bar Operations C ommissions 383
 Purple Notes
Civil Law
2) Mailing of the notice to persons named in the
application for registration and also to relevant
government officials; and
3) Posting of the notice on a conspicuous place
on the land itself and on the bulletin board of
the city or municipality where the land is
situated (P.D. No. 1529, Sec. 23).
Publication in the Official Gazette shall be
sufficient to confer jurisdiction (P.D. No. 1529,Sec.
24). However, publication of the notice in a
newspaper of general circulation remains an
indispensable requirement consistent with
procedural due process (Roxas v. Court of Appeals,
G.R. No. 118436, March 21, 1997; Director of Lands
v. Court of Appeals and Abistado, G.R. No. 102858,
July 28, 1997).
The requirement of mailing and posting are
mandatory. New publication necessary to
include additional area If amendment of the
application is made to include additional area, a
new publication of the amended application
must be made, but not when the amendment
consists in the exclusion of a portion form the
area originally applied for (Benin v. Tuason, G.R.
No. L-26127, June 28, 1974).
Purpose of the publication requirement
1. Confer jurisdiction upon the court over the
res; and
2. Apprise the whole world of the pending
registration case so that they may assert
their rights or interests in the land, if any,
and oppose the application.
Note: The settled rule is that once the
registration court had acquired jurisdiction over
a certain parcel, or parcels of land in the
registration proceedings by virtue of the
publication of the application, that jurisdiction
attaches to the land or lands mentioned and
described in the application (Agcaoili, Property
Registration Decree and Related Laws: Land Titles
and Deeds, 2006, p. 161).
384 Center for Legal Education and Research
Where must the said notice be published:
1. Once in the Official Gazette (OG) – this
confers jurisdiction upon the court; and
2. Once in a newspaper of general circulation.
Publication in a newspaper is necessary to
accord with due process requirement Sec. 23
of P.D. 1529 clearly provides that publication
in the Official Gazette suffices to confer
jurisdiction upon the land registration court.
However, absent any publication of the
notice of initial hearing in a newspaper of
general circulation, the land registration court
cannot validly confirm and register the title of
the applicants. The rationale behind the
newspaper publication is due process and the
reality that the Official Gazette is not as
widely read and circulated as newspapers
and is oftentimes delayed in its circulation.
This requirement is mandatory. For non-
compliance with the requirement of
publication, the application may be
dismissed, without prejudice to reapplication
in the future, after all the legal requisites are
complied with (Director of Lands v.CA and
Abistado, G.R. 102858, July 28, 1997).
Publication in the Official Gazette does not
dispense with the requirement of notice by
mailing and posting. Lack of personal notice
does not vitiate the proceedings Land
registration proceedings are proceedings in rem,
not in personam, and therefore it is not
necessary to give personal notice to the owners
or claimants of the land sought to be registered,
in order to vest the courts power or authority
over the res. Notice of hearing by proper
publication in the Official Gazette is sufficient to
clothe the court with jurisdiction, and the mere
fact that a person purporting to have a
legitimate claim in the property did not receive
persoanl notice is not sufficient ground to
invalidate the proceedings (Adez Realty Inc. v. CA,
G.R. No. 100643, December 12, 1995).
 Purple Notes
Defective publication
Defective publication in the following
instances:
1. Where what was published in the Official
Gazette is the description of a bigger lot which
includes the lands subject of registration.
Reasons:
a. Sec. 15, P.D. 1529 requires that the
application for registration should contain the
description of the land subject of registration
and this is the description to be published;
b. It is the publication of specific boundaries of
lands to be registered that would actually put
the interested parties on notice of the
registration proceedings and enable them, if
they have rights and interests in the
property, to show why the application for
registration should not be granted;
c. The adjoining owners of the bigger lot would
not be the same owners of the smaller lots
subject of registration. Hence, notice to
adjoining owners of the bigger lot is not
notice to those of the smaller lots.
2. Where the actual publication of the notice of
initial hearing was after the hearing itself.
Effect of a defective publication
It deprives the court of jurisdiction. Hence, the
proceeding will be void.
Rule: If it is later shown that the decree of
registration had included land or lands not
included in the publication, then the registration
proceedings and the decree of registration must
be declared null and void–but only insofar–as
the land not included in the publication
concerned. But the proceedings and the decree
of registration, relating to the lands that were
included in the publication, are valid.
Exception: If the difference is not as
substantial as would affect the identity of the
land, failure to publish the bigger area
(insubstantial inclusion) does not perforce affect
2018
Civil Law
the court‘s jurisdiction (Agcaoili, Property
Registration Decree and Related Laws: Land Titles
and Deeds, 2006, p. 164).
Necessity of publication and notice in the
amended application
Publication and notice are necessary where
the amendment to the application consists in:
1. Substantial change in the boundaries;
2. Increase in the area of the land applied for;
and
3. The inclusion of additional land. (Sec. 19, P.D
1529)
Note: Without such publication, the registration
court cannot acquire jurisdiction over the area
that is added. Situations when publication and
notice are not necessary
Amendments in Application (Changing
necessity for publication or notice of
amended application and situations on
amendments)
Refers to the change made in the allegations or
contents in the application. (Sec. 19. P.D No.
1529)
Kinds of amendments in application
Refers to changes in the allegations concerning
the applicants or the parties-in-
interest.
KINDS:
I. JOINDER - inclusion of additional applicants;
amended by adding names of
new applicants;
II. SUBSTITUTION - replacement of the original
party by another; and
III. DISCONTINUANCE - removal of names of
one or more applicants.
Amendments to the application, including
joinder, substitution, or discontinuance asto the
parties may be allowed by the court at any stage
of the proceeding upon justand equitable terms.
In such case publication is not necessary. (Sec.
19 par. 1, P.D No. 1529)
Bar Operations C ommissions 385
 Purple Notes
Civil Law
SUBSTANTIAL AMENDMENTS
I. Substantial change in the boundaries;
II. Increase in the area of the land: and
III. Inclusion of additional land (Sec. 19, par 2,
P.D No. 1529)
OPPOSITION
Persons who may oppose the application for
registration Any person claiming an interest,
whether named in the notice or not, may appear
and file an opposition on or before the date of
initial hearing, or within such further time as
may be allowed by the court (Sec. 24, Land
Registration Act).
Requisites for a valid opposition
1. The oppositor must have an interest in the
land applied for;
2. He should state the grounds for his objection
as well as the nature of his claimed interest;
3. He should indicate the desired relief;
4. The opposition should be signed and worn to
by him or his duly authorized representative.
The opposition partakes of the nature of an
answer with a counterclaim. Persons who may
oppose the application for registration or judicial
confirmation Any person whether named in the
notice or not, provided, his claim of interest in
the property applied for is based on a right of
dominion or some other real right independent
of, and not subordinate to, the rights of the
government (Agcaoili, Property Registration Decree
and Related Laws: Land Titles and Deeds, 2006, p.
10).
Persons who may oppose in specific cases
1. A homesteader who has not yet been issued
his title but who had fulfilled all the
conditions required by law to entitle him to a
patent;
2. A purchaser of friar land who is deemed to
have an equitable title to the land even
before the issuance of the patent;
3. Persons who claim to be in possession of a
tract of public land and have applied with the
Bureau of Lands for its purchase;
386 Center for Legal Education and Research
4. The Government relative to the right of
foreshore lessees of public land as the
latter‘s right is not based on dominion or real
right independent of the right of the
government; or
5. An awardee in a sales application who, by
virtue of the award, is authorized to take
possession of the land to enable him to
comply with the requirements for the
issuance of patent (De Castro v. Marcos, G.R.
No. L-26093, January 27, 1969).
*A private person may not oppose an application
for registration on the ground that the land
applied for is a property of the government
(Roxas v. Cuevas, GR. No. L-3637, August 31, 1907).
The oppositor also need not show title in
himself; he should however appear to have
interest in the property.
*The oppositor‘s interest over the land is
immaterial whether his interest is in the
character of legal owner or is of a purely
equitable nature as where he is a beneficiary of
a trust. Absence of opposition by the
government does not justify outright registration
Notwithstanding the absence of opposition from
the government, the applicant in land
registration cases is not relieved of the burden
of proving the imperfect right or title sought to
be confirmed (Director, Lands Management Bureau
v. CA, G.R. No. 112567, February 7, 2000).
*Courts are not justified in registering property
under the Torrens system, simply because there
is no opposition offered. Courts may, even in the
absence of any opposition, deny the registration
of the land under the Torrens system, upon the
ground that the facts presented did not show
that the petitioner is the owner, in fee simple, of
the land which he is attempting to have
registered (Director of Lands v. Agustin, G.R. No.
16179, October 6, 1921).
3. REMEDIES
I. Action for Reconveyance
This is a legal and equitable remedy granted to
the rightful owner of land which has been
wrongfully or erroneously registered in the name

of another for the purpose of compelling the
latter to transfer or reconvey the land to him
(Esconde v. Barlongay, G.R. No. 90380, September
13, 1990).
• After the lapse of one year, a decree of
registration is no longer open to review or
attack although its issuance is attended with
actual fraud. But if the property has not yet
passed to an innocent purchaser for value,
an action for reconveyance is still available,
which is an action in personam (Ching v. CA,
G.R. No. L-59731, January 11, 1990).
• An action for reconveyance presupposes the
existence of a defrauded party who is the
lawful owner of the disputed property. It is
thus essential for petitioners to prove by
clear and convincing evidence their title to
the property, and the fact of fraud
committed (Heirs of Brusas v. CA, G.R. No.
126875, August 26,1999).
Relevant allegations:
1. That the plaintiff was the owner of the land
2. That the defendant had illegally
dispossessed him of the same (Agcaoili,
Property Registration Decree and Related Laws:
Land Titles and Deeds, 2006, p. 330).
Prescription of Action for Reconveyance:
1. Action based on fraud - 10 years from the
issuance of title or date of registration of
deed (Caro v. CA, G.R.No. 76148, Dec. 20, 1989).
2. Action based on implied trust - 10 years after
issuance of title or date of registration
(Villagonzalo v. IAC, G.R.No. 71110, Nov. 22,
1988).
3. Action based on void contract
Imprescriptible (Solid State Multi-Products Corp.
v. CA G.R.No. 8338, May 6, 1991).
4. Action based on fictitious deed-
imprescriptible (Lacsamana v. CA, G.R.No.
121658, March 27, 1988).
5. Action to quiet title - imprescriptible when
in possession.
The prevailing rule is that the right of a plaintiff
to have his title to land quieted, as against one
who is asserting some adverse claim or lien
Purple Notes 2018
Civil Law
thereon, is not barred while the plaintiff or his
grantors remain in actual possession of the land,
claiming to be owners thereof, the reason for
the rule being that while the owner in fee
continues liable to an action, proceeding, or suit
upon the adverse claim, he has a continuing
right to the aid of a court of equity to ascertain
and determine the nature of such claim and its
effect on his title, or to assert any superior
equity in his favor. He may wait until his
possession is disturbed or his title is attacked
before taking steps to vindicate his right (Sapto
v. Fabiana, G.R. No. L-11285, May 16, 1958).
II. Action for Damages
An action for reconveyance is not feasible where
the property has passed into the hands of an
innocent purchaser for value. A person deprived
of his right or interest in the property has the
remedy to file an action for damages (Agcaoili,
Property Registration Decree and Related Laws: Land
Titles and Deeds, 2006, p. 351).
III. Action for Reversion
Reversion connotes restoration of public land
fraudulently awarded or disposed of to the mass
of the public domain and may again be the
subject of disposition in the manner prescribed
by law to qualified applicants (Agcaoili, Property
Registration Decree and Related Laws: Land Titles
and Deeds, 2006, p. 352).
State not bound by prescription (Republic v. Ruiz,
G.R.No. L-23712, April 29, 1968).
NOTE: Sec. 101 of Public Land Act (CA 141),
mandates that an action for reversion to the
- government of lands of the public domain or
improvements thereon shall be instituted by the
Solicitor General.
4. CADASTRAL REGISTRATION
THE CADASTRAL ACT, ACT NO. 2259
Nature and Purpose of Cadastral
Proceedings
All the private lands in the town are registered in
one single collective proceeding. This avoids
Bar Operations C ommissions 387
 Purple Notes
Civil Law
piecemeal or individual registration of lands
(Agcaoili, Property Registration Decree and Related
Laws: Land Titles and Deeds, 2006, p. 370).
Cadastral Registration Proceedings
(Sections 35-38 of PD 1529)
1. Cadastral Survey preparatory to filing of
the petition
Cadastral Survey of the Land - Order of the
Director of Lands to cause a cadastral survey of
the lands and the plans and technical description
be prepared.
• When, in the option of the President, the
public interest requires that title to any lands be
settled and adjudicated, he shall order the
Director of Lands to make a survey thereof, with
notice to all persons claiming interest therein
• Thereafter, the Director of Lands, represented
by the Solicitor General, shall institute
registration proceedings by filing a petition in
the proper court against the holders, claimants,
possessors, or occupants of such lands, stating
that the public interest requires that the titles to
such lands be settled and adjudicated
• Notice of the filing of the petition is published
twice in successive issues of the Official Gazette
• Decree shall be the basis for the issuance of
the certificate of title which shall have the same
effect as a certificate of title granted under the
Property Registration Decree(Sections 35-38 of PD
1529).
➢ Filing of Petition by DENR - after the
survey the DENR through the Solicitor General
shall institute original registration proceedings
by filing a petition in Regional Trial Court of the
place where the land is situated against the
holders, claimants, possessors, or occupants of
such lands stating that such titles to the land be
settled and adjudicated.
➢ Answer - Any claimant in cadastral
proceedings, whether named in the notice or
not, shall appear before the court and shall file
an answer on or before the date of initial
388 Center for Legal Education and Research
hearing or within such further time as may be
allowed by the court.
➢ Hearing - the trial of the case in a place
within the province in which the lands are
situated; claimant presents evidence. Orders for
default and confessions entered, in the same
manner as in ordinary land registration
proceedings and shall be governed by the same
rules.
➢ Judgment - same as ordinary registration
➢ Issuance of Decree - after judgment has
become final and executory, the court issue an
order to LRA for the issuance of the decree of
registration and the corresponding certificate of
title in favor of the person adjudged entitled to
registration.
E. SUBSEQUENT REGISTRATION
1. VOLUNTARY DEALINGS
General Principles:
The mere execution of deed of sale, mortgages,
leases or other voluntary documents serves only
as:
1. A contract between the parties, and
2. As evidence of authority to the Register of
Deeds to register such documents.
They do not, in themselves, affect a conveyance
or encumbrance on the land. The exception to
this rule is if the instrument is a WILL.
 The act of registration serves as
constructive notice to the whole world of
such voluntary or involuntary
conveyances, instruments, writs or court
processes (Sec. 51, PD 1529).
• It is settled in this jurisdiction that a sale of
real estate, whether made as a result of a
private transaction or of a foreclosure or
execution sale, becomes legally effective
against third persons only from the date of
 Purple Notes
its registration (Campillo v. CA, G.R. No. L-
564483, May 29, 1984).
Voluntary dealings with land refer to deeds,
instruments or documents, which are the results
of the free and voluntary acts of the parties
thereto. These include:
1. Sales, conveyances or transfer of ownership
over the titled property;
2. Mortgages and leases;
3. Powers of attorney;
4. Trusts (Aquino, Land Registration and Related
Proceedings, 2007, p. 184).
For entry to be considered as registration,
payment of fees mandatory
For the entry to be considered to have the effect
of registration there is still a need to comply
with all that is required for entry and
registration, including the payment of the
prescribed fees (Durawood v. Bona, G.R. No.
179884, January 25, 2012).
Conveyances and other Dealings by
Registered Owner:
1. Sale of Registered Land
The general rule is that one who buys from a
person who is not the registered owner is not a
purchaser in good faith. But in deciding the
question of good faith, the legal environment of
each case must be considered.
Purchaser in good faith is one who buys
property of another without notice that some
other person has a right to, or interest in such
property and prays in full and fair price for the
same, at the time of such purchase, and before
he has notice of the claim or interest of some
other person in the property (Inquimboy v. Cruz,
G.R. No. L-13953, July 26, 1960).
2. Encumbrances
It is a principal feature of the Torrens System of
registration that all encumbrances on the land or
special estates therein shall be shown or at least
intimated upon the certificate of title so that a
person dealing with the owner of the land need
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Civil Law
not go behind the certificate and inquire into
transactions the existence of which is not there
intimated (Bass v. Dela Rama, G.R. No. L-47662,
September 30, 1942).
The Supreme Court (Director of Lands v. Abad ,
G.R. No. L-36992, March 7, 1933) held that the
entry of an instrument in the entry book of the
register of deeds produces no legal effect unless
a memorandum of such instrument is noted on
the certificate of title.
3. Double Sale
In cases of double sale, the property belongs to
the purchaser who first registers the transaction
in his name in the registry of property.
Banks, their business being impressed with
public interest, are expected to exercise more
care and prudence than private individuals in
their dealings, even those involving registered
lands. The bank is a mortgagee in bad faith, for
merely relying on the certificates of title and for
its failure to ascertain the status of the
mortgaged properties (Consolidated Rural Bank,
Inc. v. CA G. R. No. 132161, January 17, 2005).
The provision on double sale, Article 1544 of the
Civil Code is not applicable in a case of multiple
sales by a single vendor. More specifically, it
covers a situation where a single vendor sold
one and the same immovable property to two or
more buyers.
It is necessary that the conveyance must have
been made by a party who has an existing right
in the thing and the power to dispose of it. It
cannot be invoked where the two different
contracts of sale are made by two different
persons, one of them being the owner of the
property sold.
Even if the sale was made by the same person,
if the second sale was made when such person
was no longer the owner of the property,
because it had been acquired by the first
purchaser in full dominion, the second purchaser
cannot acquire any right (Consolidated Rural Bank,
Inc. v. CA G. R. No. 132161, January 17, 2005).
Bar Operations C ommissions 389
 Purple Notes
Civil Law
Rules of Preference (Article 1544) in cases
of Double Sale of an Immovable:
a. The first registrant in good faith;
b. Should there be no entry, the first in
possession in good faith; and
c. In the absence thereof, the buyer who
presents the oldest title in good faith.
▪ Prior registration of the subject property
does not by itself confer ownership or a
better right over the property.
▪ Article 1544 requires that before the second
buyer can obtain priority over the first, he
must show that he acted in good faith
throughout (i.e., in ignorance of the first
sale and of the first buyer‘s rights) from the
time of acquisition until the title is
transferred to him by registration or failing
registration, by delivery of possession.
▪ While certificates of title are indefeasible,
unassailable and binding against the whole
world, they merely confirm or record title
already existing and vested. They cannot be
used to protect a usurper from the true
owner, nor can they be used for the
perpetration of fraud; neither do they permit
one to enrich him at the expense of other.
4. Double Title
General rule: Prior title prevails:
▪ A land registration court has no jurisdiction
to order the registration of the land already
decreed in the name of another in an earlier
land registration case (Heirs of Gonzaga v. CA,
G.R. No. 130841, February 26, 2008).
▪ Applies to subsequent owners who derives
his title from the earlier title (Sales Enterprise,
Inc. v. IAC, G.R. No. L-67451, September 28,
1987).
Exception: When there is infirmity in the prior
title (Azarcon v. Vallarta, G.R. No. L-43679, October
28, 1980).
390 Center for Legal Education and Research
Two apparently valid titles, which one held
valid : The principle that the earlier title prevails
over a subsequent one applies when there are
two apparently valid titles over a single property.
The existence of the earlier valid title renders
the subsequent title void because a single
property cannot be registered twice (Oliveros v.
SMC, G.R. No. 173531, February 1, 2012).
5. Effect of Failure to register
In the absence of an express stipulation to the
contrary, the payment of the purchase price of
the goods is not a condition precedent to the
transfer of title to buyer, but title passes by the
delivery of the goods (Suburban Development
Corporation v. Auditor General, G.R.No. L-19455, April
18, 1975).
As between the parties to a contract of sale,
registration is not necessary to make it valid and
effective, for actual notice is equivalent to
registration.
Sec. 50 of the Land Registration Act
provides that, even without the act of
registration, a deed purporting to convey or
affect registered land shall operate as a contract
between the parties. The registration is intended
to protect the buyer against claims of third
persons arising from subsequent alienations by
the vendor, and is certainly not necessary to
give effect to the deed of sale, as between the
parties to the contract.
6. Ministerial Duty To Register
Upon presentation of a deed of conveyance of a
registered land, together with the grantor‘s
duplicate certificate, the register of deeds shall:
a. Make out in the registration book a new
certificate of title;
b. Prepare and deliver to the grantee an
owner‘s duplicate certificate of title;
c. Note upon the original and duplicate
certificates the date of transfer, the volume
and page of the registration book where the
new certificate is registered, and a reference
by number to the last prior certificate;
 Purple Notes
d. Require the surrender of the grantor‘s
duplicate certificate for purposes of
cancellation;
e. Cancel likewise the original certificate and
f. File and indorse in the manner required the
deed of conveyance presented for
registration (Sec. 57, Act. No. 496).
▪ The duties enjoined upon the register of
deeds by Sec. 57 of the Land Registration
Act are clearly ministerial and mandatory in
character not only as is indicated by the
auxiliary ―shall‖ but by the nature of such
functions required to be performed by him
(In re Consulta filed by Attorney Vicente J.
Francisco on behalf of Domingo Cabantog, G.R.
No. L-45192, April 10, 1939).
7. Registration of Forged Deeds
▪ Although forged documents are generally
null and void, they can legally be the root of
a valid title when an innocent purchaser for
value intervenes. However, this does not
apply where the owner still holds a valid and
existing Certificate of Title covering the
same property.
▪ Where the mortgage is admittedly a forgery
and the registered owner was not shown to
have been negligent or in connivance with
the forger, the mortgage cannot be enforced
against the owner.
• ―As between two innocent persons, one of
whom must suffer the consequences of the
breach of trust, the one who made it
possible by his act of confidence must bear
the loss.‖ This is the principle of equity
applied when the fraud was made possible
by the owner‘s act in entrusting the
certificate of title to another (De Lara v.
Ayroso, G.R. No. L-6122, May 31, 1954 ).
8. Other important Voluntary Dealings
Mortgages and leases:
▪ Sec. 60, PD 1529 requires deeds of
mortgage or lease and all instruments which
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Civil Law
assign, extend, discharge or otherwise deal
with the mortgage or lease to be registered,
with the mortgage or lease to be registered,
and such deeds shall take effect upon the
title only upon registration. Unless recorded,
such deeds are not binding on third persons
even though they are binding between the
parties.
DISCHARGE: Sec. 62, PD 1529 allows the
discharge or cancellation of a mortgage or lease
on registered land by means of an instrument
executed by the mortgagee or lessee in a form
sufficient in law, which shall be filed with the
Register of Deeds who shall make the
appropriate memorandum upon the certificate of
title.
Mortgage is discharged only upon full payment
of all indebtedness. It is well settled that where
annotation at the back of the title about a 1st
mortgage states that ―mortgage secured the
payment of a certain sum of money plus interest
plus other obligations arising thereunder,‖ there
is no need for any (further) notation of later
loans on the title (Mojica v. CA, G.R. No. 94247,
September 11, 1991).
Discharge is done by:
a. Creditor executing a public instrument
canceling or releasing the mortgage; and
b. After foreclosure, by an order of the court
and submission of a final certificate of sale
which cancels old title. (Sec. 62, PD 1529)
2. INVOLUNTARY DEALINGS
Involuntary Dealings refers to an attachment, or
a copy of any writ, order or process issued by a
court of record, intended to create or preserve
any lien, status, right, or attachment upon
registered land. It shall be filed and registered in
the Registry of Deeds for the province or city in
which the land lies, and, in addition to the
particulars required in such papers for
registration, shall contain a reference to the
number of the certificate of title to be affected
and the registered owner or owners thereof, and
also if the attachment, order, process or lien is
Bar Operations C ommissions 391
 Purple Notes
Civil Law
not claimed on all the land in any certificate of
title a description sufficiently accurate for
identification of the land or interest intended to
be affected. A restraining order, injunction or
mandamus issued by the court shall be entered
and registered on the certificate of title affected,
free of charge (Sec 69, PD 1529)
1. Adverse Claim
• An adverse claim is a notice of a claim
adverse to the registered owner, the validity
of which is yet to be established in court at
some future date, and is no better than a
notice of lis pendens already pending in
court (Acap v. CA, G.R. No. 118114, December
7, 1995).
• Whoever claims any part or interest in
registered land adverse to the registered
owner, arising subsequent to the date of the
original registration, may, if no other
provision is made in this Decree for
registering the same, make a statement in
writing setting forth fully his alleged right or
interest, and how or under whom acquired,
a reference to the number of the certificate
of title of the registered owner, the name of
the registered owner, and a description of
the land in which the right or interest is
claimed (Sec. 70, PD 1529).
• Period of effectivity: 30 days from the date
of registration; lapse of the 30-day period
does not result in the automatic cancellation
of the adverse claim (a petition for
cancellation must first be filed) (Sec. 70 PD
1529)
How cancelled:
 Before lapse of 30 days
a. By party in interest: by filing a petition in the
proper RTC for cancellation
b. By claimant: by filing a sworn petition
withdrawing his adverse claim.
 After lapse of 30 days
392 Center for Legal Education and Research
a. By party in interest: by filing a verified
petition for cancellation;
b. No 2nd adverse claim based on the same
ground may thereafter be registered by the
same claimant.
1. After cancellation, no adverse claim shall be
registered by the same claimant
• Cancellation of the adverse claim is still
necessary to render it ineffective; otherwise,
the inscription will remain annotated and
shall continue as a lien upon the property
(Sajonas v. CA, G.R. No. 128563, March 25,
2004).
• The register of Deeds cannot unilaterally
cancel the adverse claim. There must be a
court hearing for the purpose (Diaz-Dutante
v. Ong. G.R. No. 130352, November 9, 1998).
Purpose of Adverse Claim
To apprise 3rd persons that there is a
controversy over the ownership of the land and
to preserve and protect the right of the adverse
claimant during the pendency of the
controversy. Such is registered by filing a sworn
statement with the RD of the province where
the property is located, setting forth the basis of
the claimed right together with other data
pertinent thereto.
Annotation is a measure designed to protect the
interest of a person over a piece of real property
where the registration of such interest or right is
not otherwise provided for by Act 496, now PD
1529. It serves as a warning to third parties
dealing with the said property that someone is
claiming an interest on the same or a better
right than the registered on the same or a better
right than the registered owner, and that any
transaction regarding the disputed land is
subject to the outcome of the disputed land is
subject to the outcome of the dispute.
• Subsequent sale of the property covered by a
certificate of title cannot prevail over an
adverse claim, duly sworn to and annotated
on the certificate of title previous to the sale
(Sajonas v. CA, G.R. No. 102377, July 5, 1996).
 Purple Notes
Requisites for Valid Adverse Claim:
1. The claimant‘s right or interest in registered
land must be adverse to the registered
owner;
2. Such right or interest must have arisen
subsequent to the date of original
registration; and
3. No other provision is made in the Decree for
the registration of such right or claim (Sec.
70, PD 1529; Arrazola v. Bernas, G.R. No. L-
29740, November 10, 1978).
2. Lis pendens
Lis pendens - literally means a pending suit.
The Doctrine of lis pendens refers to the
jurisdiction, power or control, which a court
acquires over property involved in a suit,
pending the continuance of an action, and until
final judgment.
A notice of lis pendens is proper in actions:
1. To recover possession of real estate;
2. To quiet title thereto;
3. To remove clouds upon the title thereof;
4. For partition; and
5. Any other proceeding of any kind in court
directly affecting the title to the land or the
use or occupation thereof or the building
thereon (Sec. 76, PD 1529, Sec. 14, Rule 13,
Rules of Court).
Purposes of lis pendens:
1. To protect the rights of the party causing
the registration of the lis pendens, and
2. To advise 3rd persons who purchase or
contract on the subject property that they
do so at the peril and subject to the result of
the pending litigation (Agcaoili, Property
Registration Decree and Related Laws: Land
Titles and Deeds, 2006, p. 548).
Notice of lis pendens
• This is an announcement to the whole world
that a particular real property is in litigation.
The inscription serves as a warning that one
who acquires an interest over litigated
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Civil Law
property does so at his own risk, or that he
gambles on the result of the litigation of the
property (Marasigan v. IAC, G.R. No. L-69303,
July 23, 1987).
• The doctrine of lis pendens is founded upon
reason of public policy and necessity, the
purpose of which is to keep the subject
matter of the litigation within the power of
the Court until the judgment or decree shall
have been entered; otherwise, by successive
alienations pending the litigation, its
judgment or decree shall be rendered
abortive and impossible of execution (Laroza,
et al. v. D Guia, G.R. L-45252, Jan. 31, 1985).
No action to recover possession of real estate,
or to quiet title thereto, or to remove clouds
upon the title thereof, or for partition, or other
proceedings of any kind of court directly
affecting the title to land or the use or
occupation thereof or the buildings thereon, and
no judgment, and no proceeding to vacate or
reverse any judgment, shall have any effect
upon registered land as against persons other
than the parties thereto, unless a memorandum
or notice stating the institution of such action or
proceeding and the court wherein the same is
pending, as well as the date of the institution
thereof, together with a reference to the
number of the certificate of title, and an
adequate description of the land affected and
the registered owner thereof. Shall have been
filed and registered (Sec. 76, PD 1529, Property
Registration Decree).
Effects of Lis Pendens:
1. Keeps the subject matter of the litigation
within the power of the court until the entry
of final judgment so as to prevent the defeat
of the latter by successive alienations.
2. Binds the purchaser of the land subject of
the litigation to the judgment or decree that
will be promulgated thereon whether such a
purchaser is a bona fide purchaser or not.
3. Does not create a non-existent right or lien
(Carrasco v. CA, G.R. No. 123672, Dec. 14,
2005).
Bar Operations C ommissions 393
 Purple Notes
Civil Law
Cancellation of Lis Pendens
Under PD 1529, a notice of lispendens may be
cancelled:
1. Upon order of the court, or
2. Upon action by the register of Deeds, upon
verified petition of the party who caused the
registration thereof (Sec. 77, PD 1529).
a. Before final judgment
May be done upon proper showing that the
notice is for the purpose of molesting the
adverse party, or that it is not necessary to
protect the rights of the party who caused it to
be recorded (Sec. 77, PD 1529)..
A mere incident to a court action, and may
therefore be ordered by the court having
jurisdiction of it at any given time (certificate of
finality issued by the court will not suffice;
should be done with judicial authority)(see
Agcaoili, Property Registration Decree and Related
Laws: Land Titles and Deeds, 2006, p. 556).
b. After final judgment
Deemed cancelled upon the registration of a
certificate of the Clerk of Court in which the
action or proceeding was pending stating the
manner of disposal thereof.
Under the Rules of Court, a notice of lispendens
may be cancelled on two grounds:
1. If the annotation was for the purpose of
molesting the title of the adverse party; or
2. When the annotation is not necessary to
protect the title of the party who caused it
to be recorded (Sec. 145, Rule 13 1997 Rules of
Court).
In case of subsequent sales or transfers, the
Registry of Deeds is duty bound to carry over
the notice of lispendens on all titles to be issued.
Otherwise, if he cancels any notice of lispendens
in violation of his duty, he may be held civilly
and even criminally liable for any prejudice
caused to innocent 3rd persons (Marasigan v. IAC,
G.R. No. L-69303, July 23, 1987).
394 Center for Legal Education and Research
Notice of Insolvency
Whenever proceeding in bankruptcy or
insolvency, or analogous proceedings, are
instituted against a debtor who owns registered
land, it shall be the duty of the officer serving
the notice of the institution of such proceedings
on the debtor to file a copy thereof with the
office of the Register of Deeds of the province or
city where the land of the debtor lies. The
assignee or trustee appointed by the court in
such proceedings shall be entitled to the entry of
anew certificate of the registered land of the
debtor or bankrupt, upon presenting and filing a
certified copy of the assignment in insolvency or
order or adjudication in bankruptcy with the
insolvent‘s or bankrupt‘s duplicate certificate of
title; but the new certificate shall state that it is
entered to him as assignee in insolvency or
trustee in bankruptcy or other proceedings, as
the case may be (Sec. 83, PD 1529).
Under the Insolvency law, creditors holding
security shall vote for the election of an
assignee. But if they fail to elect an assignee, or
if vacancy occurs, the court shall appoint an
assignee and fix the amount of his bond (Sec. 30
and 31, Act. No. 1956).
F. NON-REGISTERABLE PROPERTIES
All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces
of potential energy, fisheries, forests or timber,
wildlife, flora and fauna, and other natural
resources are owned by the State. With the
exception of agricultural lands, all other natural
resources shall not be alienated (Constitution
(1987), Art. XII, Sec.2).
Property of public dominion:
1. Those intended for public use, such as
roads, canals, rivers, torrent,ports and bridges
constructed by the State, banks, shores,
roadsteads,and others of similar character;
2. Those which belong to the State, without
being for public use, andare intended for some
public service or for the development of
thenational wealth‖(New Civil Code (2016), Art.
420).
 Purple Notes
Non-registrable lands - These are properties
of public dominion which, under existing
legislation, are not the subject of private
ownership and are reserved for public purposes.
NOTE: The properties of public dominion are
not susceptible to acquisitive prescription and
only properties of the State that are no longer
earmarked for public use, otherwise known as
patrimonial, may be acquired by prescription.
In Heirs of Mario Malabanan v. Republic, the
Supreme Court, in observance of the foregoing,
clarified the import of Sec. 14(2) and made the
following declarations:
a. The prescriptive period for purposes of
acquiring an imperfect title over a property of
the State shall commence to run from the date
an official declaration is issued that such
property is no longer intended for public service
or the development of national wealth; and
b. Prescription will not run as against the State
even if the property has been previously
classified as alienable and disposable as it is that
official declaration that converts the property to
patrimonial (Republic of the Philippines v. Metro
Index Realty and Development Corporation, G.R. No.
198585, July 2, 2012).
Reason behind their non-registrability
Property of the public domain is beyond the
commerce of man and not susceptible of private
appropriation and acquisitive prescription.
Occupation thereof in the concept of owner no
matter how long cannot ripen into ownership
and be registered as a title (Valiao v. Republic,
G.R. No. 170757, November 28, 2011).
Non-Registrable Lands
1. Property of public domain or those intended
for public use, public service or development of
the national wealth;
2. Forest or timber lands;
3. Water sheds;
4. Mangrove swamps;
5. Mineral lands;
6. National parks and plazas;
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Civil Law
7. Military or naval reservations;
8. Foreshore lands;
9. Reclaimed lands;
10. Submerged areas;
11. River banks;
12. Lakes, rivers, creeks and lagoons;
13. Reservations for public and semi-public
purposes;
14. Protected areas;
15. Resources within ancestral domains; and
16. Others of similar character (see Agcaoili,
Property Registration Decree and Related Laws: Land
Titles and Deeds, 2006).
Q: In 1913, Gov. Gen. Forbes reserved a parcel
of land for provincial park purposes. Sometime
thereafter, the court ordered said land to be
registered in Ignacio & Carmen Palomo‘s name.
What is the effect of the act of Gov. Gen Forbes
in reserving the land for provincial park
purposes?
A: As part of the reservation for provincial park
purposes, they form part of the forest zone. It is
elementary in the law governing natural
resources that forest land cannot be owned by
private persons. It is not registrable and
possession thereof, no matter how lengthy,
cannot convert it into private property, unless
such lands are reclassified and considered
disposable and alienable (Sps. Palomo, et. al. v.
CA, et. al., G.R. No. 95608, January 21, 1997).
Q: Does land classified as forest loses its
classification because it has been stripped of it
forest cover?
A: NO. A forested area classified as forest land
of the public domain does not lose such
classification simply because loggers or settlers
may have stripped it of its forest cover. Parcels
of land classified as forest land may actually be
covered with grass or planted with crops by
kaingin cultivators or other farmers. Forest lands
do not have to be on mountains or in out-of the-
way places. The classification of land is
descriptive of its legal nature or status and does
not have to be descriptive of what the land
actually looks like (Heirs of Jose Amunategui v.
Director of Forestry, G.R. No. L-27873, November 9,
1983).
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 Purple Notes
Civil Law
Foreshore land A strip of land that lies between
the high and low water marks and is alternately
wet and dry according to the flow of tide. It is
that part of the land adjacent to the sea, which
is alternately covered by the ordinary flow of
tides. Foreshore lands are inalienable unless
reclaimed by the government and classified as
agricultural lands of the public domain (Chavez v.
Public Estates Authority, G.R. No. 133250, November
11, 2003).
NOTE: Seashore, foreshore land, and/or
portions of the territorial waters and beaches,
cannot be registered. Even alluvial formation
along the seashore is part of the public domain
and, therefore, not open to acquisition by
adverse possession by private persons unless
subsequently declared as no longer needed for
public use (Id.).
Mangrove swamps
These are mud flats, alternately washed and
exposed by the tide, in which grows various
kindred plants which will not live except when
watered by the sea, extending their roots deep
into the mud and casting their seeds, which also
germinate there. These constitute the mangrove
flats of the tropics, which exist naturally, but
which are also, to some extent, cultivated by
man for the sake of the combustible wood of the
mangrove and like trees as well as for the useful
nipa palm propagated thereon (Montano v. Insular
Government, G.R. No. L-3714, January 26, 1909).
Mineral lands
Mineral land means any land where mineral
resources are found. Mineral resources, on the
other hand, mean any concentration of
mineral/rocks with potential economic value
(Sec. 4(aj) and (an), DENR Administrative Order No.
95-936, as amended).
NOTE : Possession of mineral land, no matter
how long, does not confer possessory rights
(Atok-Big Wedge Mining Co. v. Court of Appeals, GR
No. 88883, Jan. 18, 1991).
396 Center for Legal Education and Research
Watershed
It is a land area drained by a stream or fixed
body of water and its tributaries having a
common outlet for surface runoff.
Watershed reservation
It is a forest land reservation established to
protect or improve the conditions of the water
yield thereof or reduce sedimentation. (Sec.
3(l,m,n) , P.D. 1559, as amended)
G. DEALINGS WITH UNREGISTERED
LANDS
Registration of instruments dealing with
unregistered land The system of registration
under the Spanish Mortgage Law, by express
provision of Sec. 2 of the Property Registration
Decree, has been discontinued and all lands
registered under said system which are not yet
covered by Torrens titles shall be considered
unregistered lands. However, all instruments
affecting lands originally registered under the
Spanish Mortgage Law may be recorded under
Sec. 113 of the decree until the land shall have
been brought under the operation of the Torrens
system. The books of registration of the Revised
Administrative Code, as amended by Act No.
3344, shall continue to be in force, provided that
unregistered lands shall henceforth be registered
under Sec. 113 (Agcaoili, Property Registration
Decree and Related Laws: Land Titles and Deeds,
2006, p. 805).
Where registered land has been the subject of a
transaction and this was recorded under Act No.
3344, such recording does not bind third
persons since registration thereunder refers to
properties not registered under the Land
Registration Act, and, hence, not effective for
purposes of Art. 1544 of the Civil Code on
double sales. Registration of instruments, in
order to affect and bind the land, must be done
in the proper registry (Soriano v Magali, G.R. No. L-
15133, July 31, 1953).
 Purple Notes
Recording by ministerial officers
The opening paragraph of Sec. 113 declares in
substance that no instrument or deed affecting
rights to real property not registered under the
Torrens system (Land Registration Act, now
Property Registration Decree) shall be valid,
except as between the parties thereto, until such
instrument or deed shall have been registered in
the manner prescribed therein. This provision
cannot be interpreted to include conveyances
made by ministerial officers, such as sheriff‘s
deeds. It contemplates only such instruments as
may be created by agreement of the parties
(Williams v. Suner, G.R. No. 25795, November 6,
1926).
The fact that the vendee a retro of unregistered
land did not object to the auction sale thereof
does not safeguard the purchaser at auction
even if the sheriff‘s deed be registered in the
Registry of Deeds since the provisions of Act No.
3344 do not apply to judicial sales (Laxamana v.
Carlos, G.R. No. 25797, December 13, 1932).
The rule that the Register of Deeds must record
a sheriff‘s certificate of sale or sheriff's deed,
upon demand made by the purchaser and
tender of the necessary fee, is applicable not
only to the situation where a single sale has
been made by the sheriff but also to the
situation where there is a succession of sales
made at the instance of various creditors. The
fact that a similar certificate of sale in favor of
the first creditor has already been registered is
no obstacle to the recording of the others (Pua
Hermanos v. Register of Deeds, G.R. No. 274349,
September 10, 1927).
Recording shall be without prejudice to a third
party with "better right" It has been held that
the inscription of a mortgage of unregistered
land did not materially improve the petitioners'
situation, for such inscription is without
prejudice to third parties with a better right
(Rivera v. Moran, G.R. No. 24568, March 2, 1926).
The mere registration of a sale in one's favor
does not give him any right over the land if the
vendor was not anymore the owner of the land
having previously sold the same to somebody
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Civil Law
else even if the earlier sale was unrecorded
(Sabitsana v. Muertegui, G.R. No. 181359, August 5,
2013; Relate to Art. 1608 of the Civil Code).
Recording by Register of Deeds ministerial The
Register of Deeds does not exercise a judicial or
quasi-judicial power in the registration of
sheriff‘s deeds or certificates of sale. His duty
with respect to the notation or recording of
these instruments, so far at least as relates to
unregistered property, is ministerial only; and
the registration of such instruments adds
nothing to their intrinsic effect (Agcaoili, Property
Registration Decree and Related Laws: Land Titles
and Deeds, 2006, p. 807).
NOTE: Registration in such cases is required
merely as a means of notification of the
purchasers' rights to the public. If the Register
of Deeds refuses to register the instrument, he
shall advise the party in interest in writing of the
grounds for his refusal, and the latter may
elevate the matter to the Administrator, Land
Registration Authority, en consulta pursuant to
Sec. 117 of the Property Registration Decree
Agcaoili, Property Registration Decree and Related
Laws: Land Titles and Deeds, 2006, p. 807).
No deed, conveyance, mortgage, lease, or other
voluntary instrument affecting land not
registered under the Torrens system shall be
valid, except as between the parties thereto,
unless such instrument shall have been recorded
in the manner prescribed in the office of the
Register of Deeds for the province or city where
the land lies.
 Tax sale, attachment and levy, notice of
lis pendens, adverse claim and other
instruments in the nature of involuntary
dealings with respect to unregistered
lands, if made in the form sufficient in
law, shall likewise be admissible to
record.
Procedure for Registration of Instruments
dealing with unregistered land:
The Register of Deeds shall then record the
instrument. However, in case the Register of
Deeds refuses its administration to record, said
Bar Operations C ommissions 397
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Civil Law
official shall advise the party in interest in
writing of the ground or grounds for his refusal.
 It may be appealed to the Commissioner
of Land Registration in accordance with
Sec. 117.
Register of Deeds shall endorse among other
things, the file number and the date all well as
the hour and minute when the document was
received for recording as shown in the Primary
Entry Book, returning to the registrant or person
in interest the duplicate of the instrument, with
proper annotation, certifying that he has
recorded the instrument after reserving one
copy thereof to be furnished the provincial or
city assessor.
Register of Deeds shall collect the same amount
of fees prescribed for similar services for the
registration of deeds or instrument concerning
registered lands.
XIII:
TORTS
A. PRINCIPLES
1. Abuse of right; elements
(See further discussion F. Intentional Torts No. 2.
Interference with rights to persons and property)
Elements of abuse of right based on Article
19, NCC;
1) There is a legal right or duty
2) Which is exercised in bad faith
3) For the sole purpose of prejudicing or
injuring another (Aquino, Torts and Damages,
2004, p. 335-336) When a right is exercised in a
manner, which does not conform to the norms
in NCC 19, and results in damage to another, a
legal wrong is thereby committed (De Leon,
Comments and Cases on Torts and Damages, 2004,
p. 65).
� Article 19, known to contain what is
commonly referred to as the principle of
abuse of rights, is not a panacea for all
human hurts and social grievances. The
398 Center for Legal Education and Research
object of this article is to set certain
standards which must be observed not only
in the exercise of one‘s rights but also in the
performance of one‘s duties (Nikko Hotel
Manila Garden v. Reyes, G.R. No. 154259,
February 28, 2005).
Article 20, NCC. Every person who, contrary
to law willfully or negligently causes damage to
another, shall indemnify the latter for the same.
Article 21, NCC. Any person who willfully
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.
2. Unjust Enrichment
The doctrine provides that "no person should
unjustly enrich himself at the expense of
another" or that "no man ought to be made rich
out of another's injury" It is commonly accepted
this doctrine simply means that a person shall
not be allowed to profit or enrich himself
inequitably at another's expense (Sonano v Court
of Appeals, GR No 78975, September 7, 1989).
3. Liability without fault
Liability without fault, is predicated on the
theory that the actor, realizing the hazard of his
undertaking, nevertheless assumes the risk
connected therewith, and, notwithstanding he is
free from all wrong, and has used utmost care,
he nevertheless is liable for any invasion of the
person or property rights of another (De Leon,
Comments and Cases on Torts and Damages, p 51,
2004).
4. Acts contrary to law
Every person who, contrary to law, willfully or
negligently causes damage to another, shall
indemnify the latter for the same (Art 20, NCC).
REQUISITES
1) The act must be willful or negligent;
2) It must be contrary to law;
3) Damages must be suffered by the injured
party.
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Civil Law
5. Acts contrary to morals a. Natural persons
Human being created by God through
Acts contra bonus mores are those willful acts the intervention of the parents
causing loss or injury to another in a manner
that is contrary to morals, good customs or b. Juridical persons
public policy (Art 21, NCC). Juridical persons are artificial beings to
which the law grants a personality
ELEMENTS: distinct and separate from each
individual member composing it and
1) Legal action; susceptible of rights and obligations, or
2)Contrary to morals, public policy, good of being the subject of legal relations (2
customs; Sanchez Roman, 119).
3) Intent to injure.
2. Persons made responsible for others
B. CLASSIFICATION OF TORTS (Art. 2180, NCC)

1. Parents. The father and, in case of his

According to manner of commission
death or incapacity, the mother, are
responsible for the damages caused by the
1. Negligent torts – voluntary acts or
minor children who live in their company
omissions which results in injury to others,
(Art. 2180 [2], NCC).
without intending to cause the same.
2. Guardian. Guardians are liable for damages
2. Intentional torts – The actor desires to
caused by the minors or incapacitated
cause the consequences of his act or
persons who are under their authority and
believes the consequences are substantially
live in their company (Art. 2180 [3], NCC).
certain to result therefrom.
3. Owners and managers of
3. Strict liability – A person whose actions
establishments and enterprises.
caused harm to another may be held
responsible for that harm simply because he
The owners and managers of an
had acted. In other words, he is liable
establishment or enterprise are likewise
although without fault (De Leon, Comments
responsible for damages caused by their
and Cases on Torts and Damages, 2004, p 50).
employees in the service of the branches in
which the latter are employed or on the
According to scope
occasion of their functions.
As a general legal classification, tort
4. Employers. Employers shall be liable for
encompasses a number of different civil causes
the damages caused by their employees and
of action providing a private remedy, almost
household helpers acting within the scope of
always in the form of money damages, for an
their assigned tasks, even though the
injury to a person caused by the tortuous
former are not engaged in any business or
conduct of another Each tort is separately
industry.
named and defined Although some rules or
principles are common to various forts or group
5. State. The State is responsible in like
of torts, there is no universal formula for tort
manner when it acts through a special
liability (Aquino, Torts and Damages, 2002, p 1).
agent; but not when the damage has been
caused by the official to whom the task
C. THE TORTFEASOR
done properly pertains, in which case what
is provided in article 2176 shall be
1. Direct tortfeasor
applicable.

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 Purple Notes
Civil Law
6. Teachers and heads of establishments
of arts and trades.
Teachers or heads of establishments of arts and
trades shall be liable for damages caused by
their pupils and students or apprentices, so long
as they remain in their custody.
The responsibility of persons vicariously liable
shall cease when the persons prove that they
observed all the diligence of a good father of a
family to prevent damage.
Notes on Employers:
▪ Employers shall be liable for the damages
caused by their employees and household
helpers acting within the scope of their
assigned tasks, even though the former are
not engaged in any business or industry (Art
2180, par. 5, NCC).
▪ The defense of due diligence in the selection
and supervision of the employee is not
available if the defendant is sued under the
Revised Penal Code.
▪ One who hires an independent contractor
but controls the latter‘s works is responsible
also for the latter‘s negligence (Cuison vs.
Norton and Harrison Co., G.R. No. L-32774,
October 14, 1930).
� The State is liable when acting through a
special agent and not when the damage has
been caused by the official to whom the
task done properly pertains (Government v.
Springer, G.R. No. L-26979, April 01, 1927).
Special Agent – those specially commissioned
to carry out the acts complained of outside of
such agent‘s regular duties (Meritt v. Government,
G.R. No. L-11154, March 21, 1916).
● Teachers or heads of establishments of arts
and trades are liable for acts of their pupils
and students or apprentices who remain in
their custody. This applies to academic
institutions as well. Liability attaches to the
teacher-in-charge.
General rule: Schools are not liable as party
defendants
400 Center for Legal Education and Research
Exception:
1. Schools are expressly made liable (Art. 218,
FC)
2. School‘s liability as an employer (St. Francis
High School v. CA, G.R. No. 82465
February 25, 1991)
3. School has liability based on contract (PSBA
case); thus:
▪ If the culprit is a teacher, sue school as
employer (St. Francis High School v. CA, G.R.
No. 82465February 25, 1991)
▪ If culprit is a stranger, sue school based on
contract (PSBA v. CA, G.R. No. 84698, February
4, 1992).
▪ If culprit is a student apply Art. 2180
� Art. 2180 should apply to all schools,
academic and non-academic. As a general
rule, where school is academic, tort
committed by the student should attach to
the teacher. Except in cases of
establishments of arts and trade where it is
the head thereof, and only he may be held
liable. Thus, teachers in general shall be
liable for the acts of their students except
where the school is technical in nature, in
which case, it is the head thereof who
should be responsible (Amadora v. CA, G.R.
No. L-47745, April 15, 1988).
▪ Provinces, Cities and Municipalities are liable
for damages for the death or injuries
suffered by any person, by reason of the
defective condition of roads, streets,
bridges, public buildings, and other public
works under their control and supervision.
� Under Article 2189 of the Civil Code, it is not
necessary for the liability therein established
to attach that the defective roads or
streets belong to the province, city or
municipality from which responsibility is
exacted. What said article requires is that
the province, city or municipality have either
"control or supervision" over said street or
road (City of Manila v. Teotico G.R. No. L-23052
Jan. 29, 1968).
 Purple Notes
3. Joint tortfeasors
Joint Tortfeasors are two or more persons who
act together in committing a wrong, or
contribute to its commission, or assist or
participate therein actively and with common
intent, so that injury results to a third person
from the joint wrongful act of the wrongdoers
(De Leon, Comments and Cases on Torts and
Damages, 2004, p 17).
Joint tort-feasors are those who command,
instigate, promote, encourage, advise,
countenance, cooperate in, aid or abet the
commission of a tort, or who approve of it after
it is done, if done for their benefit (Malvar v. Kraft
Foods, G.R. No. 183952, September 9, 2013 citing
Chan, Jr. v. Iglesia ni Cristo, Inc., G.R. No. 160283,
October 14, 2005)
Joint tort-feasors are jointly and severally liable
for the tort which they commit. The person
injured may sue all of them, or any number less
than all. Each is liable for the whole damage
caused by all, and all together are jointly liable
for the whole damage (Worcester v Ocampo, G.R.
No. L-5932, February 27, 1912 citing
Forebrother vs. Ansley, 1 Campbell, English Reports).
Joint tort feasors are not liable pro rata. The
damages can not be apportioned among them,
except among themselves. They can no insist
upon an apportionment, for the purpose of each
paying an aliquot part. They are jointly and
severally liable for the full amount (Worcester v
Ocampo, G.R. No. L-5932, February 27, 1912 citing
Pardrige vs. Brady, English Case).
Liability of Joint Tortfeasor
Joint tortfeasors are solidarily liable for the
resulting damage of a wrongful act (Art. 2194,
NCC).
Joint tort-feasors are each liable as principals, to
the same extent and in the same manner as if
they had performed the wrongful act
themselves. It is likewise not an excuse for any
of the joint tort-feasors that individual
participation in the tort was insignificant as
compared to that of the other (Malvar v. Kraft
Foods, G.R. No. 183952, September 9, 2013).
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Civil Law
D. PROXIMATE CAUSE
1. Concept
Doctrine of Proximate Cause
The proximate cause is that ―which in natural
and continuous sequence, unbroken by any
efficient intervening cause, produces the injury
and without which the result would not have
occurred‖ (38 Am. Jur. 695; Fernando v. Court of
Appeals, G.R. No. 92087, May 8, 1992).
2. Cause in fact
Main test of cause-in-fact
Sine qua non test – refers to absolute
necessity
Substantial factor test - if the actor's conduct
is a substantial factor in bringing about harm to
another, the fact that the actor neither foresaw
nor should have foreseen the extent of the harm
or the manner in which it occurred does not
prevent him from being liable (Philippine Rabbit
Bus Lines, Inc. v. IAC G.R. No. 661102-04 August
30,1990).
3. Efficient intervening cause
An efficient intervening cause is one that
destroys the causal connection between the
negligent act and injury and thereby negatives
liability (Morril v. Morril, 60 ALR 102, 104 NJL 557).
4. Cause as distinguished from condition
Courts distinguish ―cause‖ from ―condition‖
maintaining that the defendant‘s act or omission
is not considered the cause if it merely created a
―passive static condition‖ (Aquino, Torts and
Damages, 2002, p 285).
5. Last clear chance
LAST CLEAR CHANCE
The doctrine of last clear chance instructs the
court to disregard the plaintiff‘s contributory
negligence if the defendant‘s negligence
occurred after the plaintiff‘s contributory
negligence. It is based purely on chronology (De
Leon, Comments and Cases on Torts and Damages,
2004, p. 61).
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ELEMENTS OF LAST CLEAR CHANCE:
1. The plaintiff placed themselves in the
situation of danger because of their own
negligence, became unable to escape from
such position by the use of ordinary care,
either because it became physically
impossible for him to do so or because he
was totally unaware of the danger;
2. The defendant knew that the plaintiff was in
a position of danger and further knew, or in
the exercise of ordinary care, should have
known, that the plaintiff was unable to
escape therefrom; and
3. That thereafter, the defendant had the last
clear chance to avoid the accident by the
exercise of ordinary care but failed to
exercise such last clear chance, and the
accident occurred as a proximate result of
such failure (De Leon, Comments and Cases on
Torts and Damages, 2004, p. 250).
� Where both parties are negligent but the
negligent act of one succeeds that of the
other by an appreciable interval of time, the
one who has the last reasonable opportunity
to avoid the impending harm and fails to do
so, is chargeable-with the consequences,
without reference to the prior negligence of
the other party (Picart v. Smith, GR No. 12219,
Mar 15, 1918).
� The doctrine of last clear chance applies
only in a situation where the defendant,
having the last fair chance to avoid the
impending harm and failed to do so,
becomes liable for all the consequences of
the accident notwithstanding the prior
negligence of the plaintiff.
In order that the doctrine of last clear
chance may be applied, it must be shown
that the person who allegedly had the last
opportunity to avert the accident was aware
of the existence of the peril or with exercise
of due care should have been aware of it
(Pantranco North Express, Inc. v. Baesa G.R.
Nos. 79050-51. November 14, 1989).
402 Center for Legal Education and Research
Exception:
This doctrine of last chance has no application to
a case where a person is to act instantaneously,
and if the injury cannot be avoided by using all
means available after the peril is or should have
been discovered (Ibid).
It applies in a suit between the owners and
drivers of colliding vehicles. It does not arise
where a passenger demands responsibility from
the carrier to enforce its contractual obligations.
For it would be inequitable to exempt the
negligent driver and its owners on the ground
that the other driver was likewise guilty of
negligence (Philippine Rabbit Bus Lines, Inc. v.
Intermediate Appellate Court, et al. G.R. Nos. 66102-
04, August 30, 1990).
E. LEGAL INJURY
1. Concept
� Injury is the illegal invasion of a legal right;
damage is the loss, hurt or harm which
results from the injury; and damages are
the recompense or compensation awarded
for the damage suffered.
Thus, there can be damage without injury in
those instances in which the loss or harm
was not the result of a violation of a legal
duty. In such cases the consequences must
be borne by the injured person alone, the
law affords no remedy for damages resulting
from an act which does not amount to a
legal injury or wrong (Equitable Banking
Corporation v. Calderon G.R. No. 156168
December 14, 2004).
2. Elements of right
a. A legal right in favor of a person by
whatever means and under whatever law
it arises or is created;
b. A correlative legal obligation on the part
of another to respect or not to violate
such night, and
c. A wrong in the form of an act or omission
in violation of said legal right and duty
with consequent injury or damage (De
 Purple Notes
Leon, Comments and Cases on Torts and
Damages, 2012, p 29).
3. Violation of right or legal injury
There can be damage without injury in those
instances in which the loss or harm was not the
result of a violation of a legal duty, In order that
a plaintiff may maintain an action for the injuries
of which he complains, he must establish that
such injuries resulted from a breach of duty
which the defendant owed to the plaintiff - a
concurrence of injury to the plaintiff and legal
responsibility by the person causing it (De Leon,
Comments and Cases on Torts and Damages, 2012, p
606).
4. Classes of injury
a. Injury to Persons
Personal injury does not necessarily involve
physical contact with the person injured, it may
also embrace all actionable injuries like injury
affecting reputation, character, conduct,
manner, and habits of a person. (74 Am Jur 2d
620-621)
b. Injury to Property
Even when an act or event causing damage to
another‘s property was not due to the fault or
negligence of the defendant, the latter shall be
liable for indemnity if through the act or event
he was benefited. (Art 23, NCC)
b. Injury to Relations
Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following and
similar acts, though they may not constitute a
criminal offense, shall produce a cause of action
for damages, prevention and other relief;
(1) Prying into the privacy of another‘s
residence;
(2) Meddling with or disturbing the private life
or family relations of another;
(3) Intriguing to cause another to be
alienated from his friends;
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Civil Law
(4) Vexing or humiliating another on account
of his religious beliefs, lowly station in life,
place of birth, physical defect, or other
personal condition. (Art 26, NCC)
F. INTENTIONAL TORTS
1. GENERAL
a. Concept
Intentional tort is a tort or wrong perpetrated
by one who intends to do that which the law has
declared wrong as contrasted with negligence in
which the tortfeasor fails to exercise that degree
of care in doing what is otherwise permissible
(Black‘s Law Dictionary, 2004).
Intentional torts are those which involve malice
or bad faith.
Doctrine of transferred intent
It arises when a person intends to commit a tort
against one person but instead inflicts injury to
another. For purposes of intentional tort, the
intent is deemed to have transferred from the
intended victim to the actual one (U.S. v. Maisa,
G.R. No. L-3728, September 25, 1907).
b. Classes
1. Intentional Physical Harm;
2. Intentional Non-Physical Harm; and
3. Interference with Relations.
2. INTERFERENCE WITH RIGHTS TO
PERSONS OR PROPERTY
ABUSE OF RIGHTS
The principle of abuse of rights as enshrined in
Article 19 of the Civil Code provides that every
person must, in the exercise of his rights and in
the performance of his duties, act with justice,
give everyone his due, and observe honesty and
good faith (De Leon, Comments and Cases on Torts
and Damages, 2004).
This article, known to contain what is commonly
referred to as the principle of abuse of rights,
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 Purple Notes
Civil Law
sets certain standards which must be observed
not only in the exercise of one's rights, but also
in the performance of one's duties. These
standards are the following: to act with justice;
to give everyone his due; and to observe
honesty and good faith. The law, therefore,
recognizes a primordial limitation on all rights;
that in their exercise, the norms of human
conduct set forth in Article 19 must be observed.
A right, though by itself legal because
recognized or granted by law as such, may
nevertheless become the source of some
illegality. When a right is exercised in a manner
which does not conform with the norms
enshrined in Article 19 and results in damage to
another, a legal wrong is thereby committed for
which the wrongdoer must be held responsible
(Ardiente v. Sps. Pastorfide, G.R. No. 161921, July 17,
2013).
Art. 19 was intended to expand the concept of
torts by granting adequate legal remedy for the
untold number of moral wrongs which is
impossible for human foresight to provide
specifically in statutory law. In civilized society,
men must be able to assume that others will do
them no intended injury — that others will
commit no internal aggressions upon them; that
their fellowmen, when they act affirmatively will
do so with due care which the ordinary
understanding and moral sense of the
community exacts and that those with whom
they deal in the general course of society will act
in good faith. The ultimate thing in the theory of
liability is justifiable reliance under conditions of
civilized society. (Ibid)
Test in determining Abuse of Rights
In determining whether or not the principle of
abuse of rights may be invoked, there is no rigid
test which can be applied. While the Court has
not hesitated to apply Article 19 whether the
legal and factual circumstances called for its
application, the question of whether or not the
principle of abuse of rights has been violated
resulting in damages under Article 20 or Article
21 or other applicable provision of law, depends
on the circumstances of each case (Globe Mackay
v CA, G.R. No. 81262, August 25, 1989).
404 Center for Legal Education and Research
Elements of Abuse of Rights
1. the existence of a legal right or duty;
2. which is exercised in bad faith
3. with the sole intent of prejudicing or injuring
another (Tan and Orencio v. Valeriano, G.R. No.
185559, August 2, 2017).
NOTE: The existence of malice or bad faith is
the fundamental element in abuse of right. In an
action to recover damages based on malicious
prosecution, it must be established that the
prosecution was impelled by legal malice.28
There is necessity of proof that the suit was
patently malicious as to warrant the award of
damages under Articles 19 to 21 of the Civil
Code or that the suit was grounded on malice or
bad faith (Id.).
CONTRA BONUS MORES
Art. 21 refers to acts contra bonos mores which
means any act evincing bad faith or intent to
injure.
Elements:
1. an act which is legal;
2. but which is contrary to morals, good
custom, public order or public policy; and
3. is done with intent to injure (Mata v.
Agravante, G.R. No. 147597 August 6, 2008).
INTENTIONAL PHYSICAL HARM
1. Assault;
2. Battery;
3. False Imprisonment;
4. Conversion; and
5. Trespass.
1. ASSAULT
It is the tort of acting intentionally and
voluntarily causing the reasonable and imminent
apprehension of an immediate harmful and
offensive contact. Assault refers to an attempt
or threat of violence, not the actual violence
itself (Reyes, The Revised Penal Code Book 2, 2017,
p. 354).
 Purple Notes
Elements:
1. The act of the person must be voluntary;
2. That the person‘s act created in another
person and Apprehension of immediate
harmful or offensive contact with the latter‘s
person;
3. The person Intended to cause either a
harmful or offensive contact or an
apprehension of such contact;
4. That there was a causal connection between
the attacker and the other person‘s
apprehension; and
5. The victim lacks consent. (Ibid)
Intent to Cause Apprehension
Assault requires intent, meaning that there has
been a deliberate, unjustified interference with
the personal right or liberty of another in a way
that causes harm. In the tort of assault, intent is
established if a reasonable person is
substantially certain that certain consequences
will result; intent is established whether or not
he or she actually intends those consequences
to result. Pointing a gun at someone's head is
substantially certain to result in apprehension for
the victim. (Reyes, The Revised Penal Code Book 2,
2017 p. 342)
2. BATTERY
A person commits battery of another if he acts
intending to cause a harmful or offensive
contact with a person or a third person or an
imminent apprehension of such contact (A. M.
TOLENTINO, Commentaries And Jurisprudence On
The Civil Code Of The Philippines 72 vol. 1, 1985).
Battery v Assault
Assault torts generally don't require that physical
contact actually occurred. Instead, assault as an
intentional attempt or threat to inflict injury
upon a person, coupled with an apparent,
present ability to cause the harm, which creates
a reasonable apprehension of bodily harm or
offensive contact in another. (Ibid)
Battery, on the other hand, is the intentional
touching of, or application of force to, the body
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Civil Law
of another person in a harmful or offensive
manner without consent. (Ibid)
Elements
1. There must be a voluntary act;
2. That the person either (a) intended to cause
a harmful or offensive contact with his body
or with the body of some third person or (b)
intended to cause a third person to have
apprehension of such harmful or offensive
contact;
3. That a harmful or offensive contact with the
body of a person actually resulted(Aquino,
Torts and Damages, 2005, p. 598)
NOTE: The protection extends to any part of
the body, or to anything which is attached to it
and practically identified with it. Thus, contact
with the plaintiff's clothing, or with a cane, a
paper, or any other object held in his hand will
be sufficient. The plaintiff's interest in the
integrity of his person includes all those things
which are in contact or connected with it (Fisher
v. Carrousel, 424 S.W.2d 627, 1967).
4. That the person in some sense ―caused‖ the
harmful or offensive contact, either because
he himself touched another person or
because he set in motion some force that
actually did the touching; and
5. That the person did not consent to the
contact (Ibid).
3. FALSE IMPRISONMENT
False imprisonment occurs when a person
(who doesn't have legal authority or
justification) intentionally restrains another
person's ability to move freely. This can also be
called Illegal detainment under the RPC.
Elements of false imprisonment as a basis
for tort liability
1. An Act or omission on the part of defendant
that confines or restrains plaintiff;
2. That plaintiff is confined or restrained to a
bounded area;
3. Intent;
4. Causation; and
Bar Operations C ommissions 405
 Purple Notes
Civil Law
5. Awareness of the defendant of the
confinement that the defendant was actually
harmed by it.
Moral damages may be awarded to a victim of
illegal arrest and detention, especially if the
victim is a minor, the accused poked a knife at
her, forcibly took her from school, tied her
hands and placed scotch tape on her mouth
(People v. Bisda, G.R. No. 140895, July 17, 2003).
CONVERSION
It is an intentional interference with the
plaintiff‘s personal property that is so substantial
that it is fair to require the defendant to pay the
property‘s full value (De Leon, Comments and
Cases on Torts and Damages, 2004, p. 407).
Elements
1. The defendant took a voluntary Act which
interfered with the plaintiff‘s right of
possession in the chattel. It could either be
dispossession (taking possession to the
exclusion of the owner) or intermeddling
(touching or harming it without removing it
from the owner‘s possession);
2. The defendant Intended the interference;
and
3. The plaintiff either Possessed or had the
immediate right to possess the same.
NOTE: Damages must be proven if the
act is intermeddling, but if the act is
dispossession, actual damages need not
be proven (Ibid).
TRESPASS
6. Generally, a trespass refers to a wrongful
use of another person's property without his
or her permission. Under intentional torts,
there are two types of trespass: (1)
trespass to chattels and (2) trespass to
land(Aquino, Torts and Damages, 2005, p. 367).
406 Center for Legal Education and Research
Trespass to Land
7. Trespass to real property is a tort that is
committed when a person unlawfully invades
the real property of another (Aquino, Torts
and Damages, 2005, p. 367).
Art. 451 of the New Civil Code provides that
damages may be awarded to the real owner if
he suffered such damages because he was
deprived of possession of his property by a
possessor in bad faith or by a person who does
not have any right whatsoever over the
property.
Elements
1. The defendant committed a voluntary act
against the plaintiff;
2. The defendant Physically invaded the real
property owned by the plaintiff;
3. Intent; and
4. The plaintiff had the immediate right to the
possession of the land (as an owner living
there or as a tenant renting it). (Ibid)
Trespass to chattel
Trespass to chattels is where a person
intentionally interferes with personal property in
someone else‘s possession. (Ibid)
Elements
1. The defendant took a voluntary Act which
interfered with the plaintiff‘s right of
possession in the chattel. It could either be
dispossession (taking possession to the
exclusion of the owner) or intermeddling
(touching or harming it without removing it
from the owner‘s possession);
2. The defendant Intended the interference;
and
3. The plaintiff either Possessed or had the
immediate right to possess the same.
NOTE: Damages must be proven if the act is
intermeddling, but if the act is dispossession,
actual damages need not be proven (Aquino,
Torts and Damages, 2005, p. 569-570).
 Purple Notes
Trespass to chattel v Conversion
The main difference between trespass to
chattels and conversion is the degree of
interference. Conversion occurs when a person
uses or alters a piece of personal property
belonging to someone else without the owner's
consent. The degree of interference for
conversion must be so serious that the
tortfeasor, or person accused of committing the
tort, may be required to pay the full value of the
property.
8. On the other hand, a trespass to chattels is
an act that falls short of conversion. The
tortfeasor is responsible only to the extent of
the damage done (not the full value of the
property) from dispossessing another of the
chattel, using or intermeddling with a chattel
in the possession of another, or damaging
the chattel (Aquino, Torts and Damages, 2005,
p. 369)
INTENTIONAL NON-PHYSICAL HARM
1. Infliction of Emotional Distress
2. Violation of Privacy
3. Violation of Personal Dignity
4. Defamation
5. Fraud / Deceit
6. Violation of Right by Public officer
7. Unjust Dismissal
8. Malicious Prosecution
9. Seduction
INFLICTION OF EMOTIONAL DISTRESS
An "emotional distress" tort action is personal
in nature. It is a civil action filed by an individual
to assuage the injuries to his emotional
tranquility due to personal attacks on his
character.
"Emotional distress" means any highly
unpleasant mental reaction such as extreme
grief, shame, humiliation, embarrassment,
anger, disappointment, worry, nausea, mental
suffering and anguish, shock, fright, horror, and
chagrin.
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Civil Law
"Severe emotional distress," in some
jurisdictions, refers to any type of severe and
disabling emotional or mental condition which
may be generally recognized and diagnosed by
professionals trained to do so, including post-
traumatic stress disorder, neurosis, psychosis,
chronic depression, or phobia (MVRS Publication v.
Islamic Da‘wah Council of the Phil., Inc., G.R. No.
135306 January 28, 2003).
Elements:
1. The conduct of the defendant was
intentional or in reckless disregard of the
plaintiff;
2. The conduct was extreme and outrageous;
3. There was a causal connection between the
defendant's conduct and the plaintiff's
mental distress; and
4. The plaintiff's mental distress was extreme
and severe (Ibid).
VIOLATION OF PRIVACY
Zones of Privacy
Zones of privacy are recognized and protected
in our laws. Within these zones, any form of
intrusion is impermissible unless excused by law
and in accordance with customary legal process.
The meticulous regard we accord to these zones
arises not only from our conviction that the right
to privacy is a ―constitutional right‖ and ―the
right most valued by civilized men,‖ but also
from our adherence to the Universal Declaration
of Human Rights which mandates that, ―no one
shall be subjected to arbitrary interference with
his privacy‖ and ―everyone has the right to the
protection of the law against such interference
or attacks (Disini v Secretary of Justice, G.R. No.
203335, February 18, 2014).
Zones of Privacy under our Laws
1. That every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons and any act of
a person of meddling and prying into the
privacy of another is punishable as an
actionable wrong;
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 Purple Notes
Civil Law
2. That a public officer or employee or any
private individual shall be liable for damages
for any violation of the rights and liberties of
another person, and recognizes the privacy
of letters and other private communications;
3. The RPC makes a crime the:
A. Violation of secrets by an officer;
B. Revelation of trade and industrial
secrets; and
C. Trespass to dwelling.
4. Invasion of privacy is likewise an offense in
special laws such as the:
A. Anti-wiretapping law; and
B. Secrecy of bank deposits act; and
5. The Rules of Court provisions on privileged
communication.
VIOLATION OF PERSONAL DIGNITY
Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following and
similar acts, though they may not constitute a
criminal offense, shall produce a cause of action
for damages, prevention and other relief:
(1) Prying into the privacy of another's
residence;
(2) Meddling with or disturbing the private
life or family relations of another;
(3) Intriguing to cause another to be
alienated from his friends;
(4) Vexing or humiliating another on account
of his religious beliefs, lowly station in
life, place of birth, physical defect, or
other personal condition. (Article 26 of the
NCC)
DEFAMATION
Defamation, which includes libel and slander,
means the offense of injuring a person's
character, fame or reputation through false and
malicious statements. It is that which tends to
injure reputation or to diminish the esteem,
respect, good will or confidence in the plaintiff
or to excite derogatory feelings or opinions
about the plaintiff. It is the publication of
anything which is injurious to the good name or
reputation of another or tends to bring him into
disrepute. Defamation is an invasion of a
408 Center for Legal Education and Research
relational interest since it involves the opinion
which others in the community may have, or
tend to have, of the plaintiff (MVRS Publication v.
Islamic Da‘wah Council of the Phil., Inc., G.R. No.
135306 January 28, 2003).
Requisites:
1. It must be Defamatory;
2. It must be Malicious;
3. It must be given Publicity; and
4. The victim must be Identifiable (Alonzo v. CA,
G.R. No. 110088, February 1, 1995).
Kinds of Defamation
1. Libel - is a defamation committed by means
of writing, printing, lithography, engraving,
radio, phonograph, painting or theatrical or
cinematographic exhibition, or any similar
means.
2. Slander - is an oral defamation.
3. Slander by deed - is a crime committed by
any person who performs an act that costs
dishonor, discredit or contempt upon the
offended party in the presence of other
person or persons. (Ibid)
Violation of Safe Spaces Act (R.A. 11313)
Safe Spaces Act penalizes catcalling, wolf-
whistling, misogynistic and homophobic slurs,
unwanted sexual advances, and other forms of
sexual harassment in public places, workplaces,
schools, as well as in online spaces.
1. Sexual Harassment in Streets and
Public Places (Sec. 4, R.A. 11313)
This may be committed in the following places:
o Streets and alleys, public parks
o Schools, buildings, malls, bars,
restaurants
o Transportation terminals, public markets
o Spaces used as evacuation centers
o Government offices
o Public utility vehicles as well as private
vehicles covered by app-based transport
network services
 Purple Notes
o Other recreational spaces such as, but
not limited to, cinema halls, theaters,
and spas
2. Online Sexual Harassment (Sec. 12, R.A.
11313)
This includes:
 Physical, psychological, and emotional
threats
 Unwanted sexual misogynistic,
transphobic, homophobic, and sexist
remarks and comments online whether
on public posts or through private
messages
 Invasion of the victim‘s privacy through
cyber stalking and incessant messaging
 Recording or sharing any of the victim‘s
photos, videos, or information without
permission
 Impersonating victims‘ identities
 Posting lies about victims to harm their
reputation, and filing false abuse reports
to online platforms to silence victim
FRAUD / DECEIT
Elements of misrepresentation in torts
cases:
1. Affirmative Misrepresentation of a material
fact;
2. Defendant knew that statement being made
was False;
3. Intent;
4. Causation;
5. Justifiable reliance; and
6. Damages (Aquino, Torts and Damages, 2005, p.
593)
VIOLATION OF A RIGHT BY PUBLIC
OFFICER
When a member of a city or municipal police
force refuses or fails to render aid or protection
to any person in case of danger to life or
property, such peace officer shall be primarily
liable for damages, and the city or municipality
shall be subsidiarily responsible therefor. The
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Civil Law
civil action herein recognized shall be
independent of any criminal proceedings, and a
preponderance of evidence shall suffice to
support such action. (Art. 34 of NCC)
UNJUST DISMISSAL
It is a basic rule that an employer has a right to
dismiss an employee in the manner and on the
grounds provided for under the Labor Code. If
the dismissal is for a valid cause, his dismissal is
consistent with the employer‘s right to protect
his interest in seeing to it that his employees are
performing their jobs with honesty, integrity and
good faith (Marilyn Bernardo v. NLRC, G.R. No.
105819, March 15, 1996).
NOTE: However, such exercise of the right to
terminate must be consistent with the general
principles provided for under Articles 19 and 21
of the New Civil Code. If there is non-
compliance with said provisions, the employer
may be held liable for damages (Quisaba v Sta
Ines-Melale Veneer and Plywood, Inc., G.R. No. L-
38088, August 30, 1974).
Rule when dismissal was done
oppressively
The right to dismiss an employee should not be
confused with the manner in which the right is
exercised and the effects flowing therefrom. If
the dismissal is done anti- socially or
oppressively then the employer should be
deemed to have violated Art. 1701, of the NCC
which prohibits acts of oppression by either
capital or labor against the other, and Art. 21 of
the NCC (Quisaba v. Sta. Ines-Melale Veneer &
Plywood, Inc., G.R. No. L-38088, August 30, 1974).
MALICIOUS PROSECUTION
Malicious has been defined as "an action for
damages brought by one against whom a
criminal prosecution, civil suit, or other legal
proceeding has been instituted maliciously and
without probable cause, after the termination of
such prosecution, suit, or other proceeding in
favor of the defendant therein." While generally
associated with unfounded criminal actions, the
term has been expanded to include unfounded
Bar Operations C ommissions 409
 Purple Notes
Civil Law
civil suits instituted just to vex and humiliate the
defendant despite the absence of a cause of
action or probable cause (Magbanua v. Junsay,
G.R. No. 132659, February 12, 2007).
Elements:
1. the prosecution did occur, and the defendant
was himself the prosecutor or that he
instigated its commencement;
2. the criminal action finally ended with an
acquittal;
3. in bringing the action, the prosecutor acted
without probable cause; and
4. the prosecution was impelled by legal malice
-- an improper or a sinister motive (Magbanua
v. Junsay, G.R. NO. 132659, February 12, 2007).
3. INTERFERENCE WITH RELATIONS
Kinds of interference:
1. Family relations;
2. Social relations; and
3. Economic relations.
FAMILY RELATION
Adultery
Adultery is committed by any married woman
who shall have sexual intercourse with a man
not her husband and by the man who has carnal
knowledge of her knowing her to be married,
even if the marriage was subsequently declared
void (Art. 333, RPC).
Concubinage
Concubinage is committed by a husband who
shall:
1. Keep a mistress in the conjugal dwelling;
2. Have sexual intercourse with her, under
scandalous circumstances, with a woman not
his wife; or
3. Cohabit with her in any other place (RPC,
Art. 334).
Liability for adultery or concubinage Liability for
adultery or concubinage based on the law on
410 Center for Legal Education and Research
torts, covers not only moral damages but also
other appropriate damages.
SOCIAL RELATIONS
Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following and
similar acts, though they may not constitute a
criminal offense, shall produce a cause of action
for damages, prevention and other relief:
(1) Prying into the privacy of another's
residence;
(2) Meddling with or disturbing the private life
or family relations of another;
(3) Intriguing to cause another to be alienated
from his friends;
(4) Vexing or humiliating another on account of
his religious beliefs, lowly station in life, place
of birth, physical defect, or other personal
condition. (Article 26 of the NCC)
ECONOMIC RELATION (Interference with
Contractual Relations)
Any third person who induces another to
violate his contract shall be liable for damages
to the other contracting party. (Art. 1314, NCC)
Nature of liability
The tort of interference with contracts may be
considered a quasi-delict under Article 2176
which may make the inducer liable to the other
party for damages. It is likewise actionable
under Articles 20 and 21 (De Leon, Comments and
Cases on Torts and Damages, 2004, p. 392).
Tort of interference distinguished from
deceit
This tort which has come to be known as
―inducing breach of contract‘‘ differs from deceit
as follows:
(1) The loss in deceit results immediately
from conduct of the plaintiff himself,
induced to take injurious action by reliance
upon the defendant‘s fraudulent
misrepresentations.
 Purple Notes
(2) Usually, although not invariably, the
business relations out of which the
damage arises in a deceit case are
between the plaintiff and the defendant
whereas, in the case of inducement to
breach of contract, the contract involved is
between the plaintiff and a third person. The
loss results from the action taken by the
third person, as a result of the defendant‘s
conduct (Harper and James, The Law of Torts,
1956 Ed., Vol. 1, p. 489).
Rationale for the rule:
1. Protection of the constitutional right to
contract — The right to enter into contract
is one of the liberties guaranteed by the
Constitution, and the right derived from a
contract is property that entitles each party
thereto to protection and to relief for the
harm caused in case of violation or
interference.
2. Violation of rights of parties to
fulfill a contract and have it fulfilled
— a contract confers certain rights on
the person with whom it is made, and
not only binds the parties to it by the
obligation entered into, but also imposes on
all the world the duty of respecting that
contractual obligation (De Leon, Comments and
Cases on Torts and Damages, 2004, p. 393).
Elements:
1. Existence of a valid contract;
2. Knowledge of existence of contract;
3. Existence of malice;
4. Causal relation;
5. Damage or injury;
6. Absence of legal justification or excuse;
and
7. Sufficient justification for interference
(Ibid).
G. NEGLIGENCE
The fault or negligence of the obligor consists in
the omission of that diligence which is required
by the nature of the obligation and corresponds
with the circumstances of the persons, of the
time and of the place. (Art. 1173, New Civil Code)
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Civil Law
1. CONCEPT
The defendant is not guilty of negligence if in
doing the alleged negligent act, he used that
reasonable care and caution which an ordinary
prudent person would have used in the same
situation (Picart v Smith, G.R. No. L-12219 March 15,
1918).
2. GOOD FATHER OF THE FAMILY OR
REASONABLE PRUDENT MAN
Standard of diligence provided for under
the NCC
Bonus Pater Familias or that of a good father of
a family (Art. 1163, NCC).
The law requires a man to possess ordinary
capacity to avoid harming his neighbors unless a
clear and manifest incapacity is shown; but it
does not generally hold him liable for
unintentional injury unless, possessing such
capacity, he might ought to have foreseen the
danger (Corliss v. Manila Railroad Co., G.R. No. L-
21291, March 28, 1969).
He is not and is not supposed to be omniscient
of the future; rather, he is one who takes
precautions against any harm when there is
something before him to suggest or warn him of
the danger or to foresee it (Picart v. Smith, G.R.
No. L-12219, March 15, 1918).
If the law or contract does not state the
diligence which is to be observed in the
performance, that which is expected of a good
father of a family shall be required ( Art. 1173 [2],
NCC).
Degrees of negligence
1. Simple Negligence - Want of slight of care
and diligence only.
2. Ordinary Negligence - results when an
individual fails to do something a reasonably
careful person would do or does something a
reasonably careful person would not do in
that type of situation.
Bar Operations C ommissions 411
 Purple Notes
Civil Law
3. Gross Negligence - heedless and palpable
violation of the legal obligation to others'
rights.
3. STANDARD OF CARE, Emergency Rule
One who suddenly finds himself in a place of
danger, and is required to act without time to
consider the best means that may be adopted to
avoid the impending danger, is not guilty of
negligence, if he fails to adopt what
subsequently and upon reflection may appear to
have been a better method, unless the danger in
which he finds himself is brought about by his
own negligence (DELSAN transport lines., v. C & A
construction, inc., G. R. No. 156034 - October 1,
2003).
Note: If a person is one confronted with a
sudden peril is not excused from all errors
of judgment. He is still required to exercise
that standard of care expected of an
ordinarily prudent man faced with the same
sudden or unexpected situation. The rule is
not applicable where the situation or danger
was caused by his own negligence (De Leon,
Comments and Cases on Torts and Damages, 2004,
p. 272).
Diligence required of motorists
While the duty of using reasonable care falls
alike on a motorist and a bicyclist, due to the
inherent differences in the two vehicles, more
care is required from the motorist to fully
discharge the duty than from the bicyclist.
Simply stated, the physical advantages that the
motor vehicle has over the bicycle make it more
dangerous to the bicyclist than vice versa (Heirs
of Completo v Albayda, G.R.172200, July 6, 2010).
Diligence required of gun store owners
A higher degree of care is required of someone
who has in his possession or under his control
an instrumentality extremely dangerous in
character, such as dangerous weapons or
substances (Pacis v Morales, G.R. No. 169467,
February 25, 2010).
Diligence required of children
412 Center for Legal Education and Research
The standard of conduct to which a child must
conform for his own protection is that degree of
care ordinarily exercised by children of the same
age, capacity, discretion, knowledge and
experience under the same or similar
circumstances (Ylarde v Aquino, G.R. No. L-33722
July 29, 1988).
Diligence required of pharmacists
The highest practicable degree of prudence,
thoughtfulness, and vigilance, and most exact
and reliable safeguards consistent with the
reasonable conduct of the business, in order
that human life may not be constantly be
exposed to the danger flowing from the
substitution of deadly poisons for harmless
medicine. In other words, the care required
must be commensurate with the danger
involved, and the skill employed must
correspond with the superior knowledge of the
business which the law demands (US v Pineda,
G.R. No. L-12858, January 22, 1918).
Diligence required of physicians
A physician‘s duty to his patient relates to his
exercise of the degree of care, skill and diligence
which physicians in the same general
neighborhood, and in the same general line of
practice, ordinarily possess and exercise in like
cases (Dela Torre v Imbuido,G.R. No. 192973
September 29, 2014).
4. UNREASONABLE RISK OF HARM
Degree of care required of every man
who offers his services to another.
An act may be negligent if it is done without
the competence that a reasonable person in
the position of the actor would recognize as
necessary to prevent it from creating an
unreasonable risk of harm to another. Those
who undertake any work calling for special
skills are required not only to exercise
reasonable care in what they do but also
possess a standard minimum of special
knowledge and ability.
 Purple Notes
Every man who offers his services to
another, and is employed, assumes to
exercise in the employment such skills he
possesses, with a reasonable degree of
diligence. In all these employments where
peculiar skill is requisite, if one offers his
services he is understood as holding himself
out to the public as possessing the degree
of skill commonly possessed by others in
the same employment, and if his
pretensions are unfounded he commits a
species of fraud on every man who employs
him in reliance on his public profession (De
Leon, Comments and Cases on Torts and Damages,
2004, p. 192).
5. EVIDENCE
QUANTUM OF PROOF
The quantum of proof is preponderance of
evidence (Rules of Court, Rule 133(1)).
Preponderance of evidence simply means the
evidence which is of greater weight, or more
convincing that that which is offered in
opposition to it (Montanez v. Mendoza, G.R. No.
144116, November 22, 2002).
Burden of proof
Plaintiff alleging damage due to negligent acts in
his complaint has the burden of proving such
negligence, except when the rules or the law
provide for cases when negligence is presumed.
6. PRESUMPTIONS OF NEGLIGENCE
In motor vehicle mishaps
Unless there is proof to the contrary, it is
presumed that a person driving a motor vehicle
has been negligent if at the time of the mishap,
he was violating any traffic regulation. (Art. 2185,
NCC)
There is no presumption of negligence if there
was no causal connection between the traffic
violation and the injury (Tison v Sps Pomasin,
G.R.173180, 2012).
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Civil Law
Possession of dangerous weapons or
substance
There is a prima facie presumption of negligence
on the part of the defendant if the death or
injury results from his possession of dangerous
weapons or substances, such as firearms and
poison, except when the possession or use
thereof is indispensable in his occupation or
business. (Art. 2188, NCC)
Common carriers
There is a presumption of negligence when
there is a breach of contract (Art. 1733, NCC).
Res ipsa loquitur
Res ipsa loquitur is a Latin phrase which literally
means ―the thing or the transaction speaks for
itself.‖ The phrase ―res ipsa loquitur‖ 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 (De Leon, Comments and Cases on
Torts and Damages, 2004, p. 263).
Respondent superior
When an injury is caused by the negligence of
an employee, there instantly arises a
presumption of law that there was negligence
on the part of the employer in the selection or in
the supervision of its employees. The
presumption, however, may be rebutted by a
clear showing on the part of the employer that
he has exercised the care and diligence of a
good father of a family in the selection and
supervision of his employees (China Air Lines, Ltd.
v CA G. R. No. 45985. 1990).
7. DEFENSES
1. Assumption of Risk
General Rule: no person shall be responsible
for those events which could not be foreseen, or
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Civil Law
which, though foreseen, were inevitable (Art.
1174, NCC).
Exceptions:
a. cases expressly specified by the law;
b. when it is otherwise declared by stipulation;
c. when the nature of the obligation requires
the assumption of risk (Art. 1174, NCC).
―Volenti non fit injuria‖ – One is not legally
injured if he consented to the act complained of
or was willing that it should occur.
• The exercise of a right ends when the
right disappears, and it disappears when it
is abused, especially to the prejudice of
others. The mask of a right without the
spirit of justice, which gives it life, is
repugnant to the modern concept of social
law. It cannot be said that a person
exercises a right when he unnecessarily
prejudices another. Over and above the
specific precepts of positive law are the
supreme norms of justice; and he who
violates them violates the law. For this
reason, it is not permissible to abuse our
rights to prejudice others (Amonoy v.
Gutierrez, G.R.No. 140420, 2001).
Elements of assumption of risk:
1. Plaintiff must know that the risk is present,
2. He must further understand its nature; and
3. His choice to incur is free and voluntary De
Leon, Comments and Cases on Torts and
Damages, 2004, p. 212).
Kinds of Assumption of risk:
1. Express waiver of the right to recover.
2. Implied Assumptions
a. Dangerous Activities
b. Contractual Relations
c. Defendant‘s negligence
414 Center for Legal Education and Research
Express waiver of the right to recover:
● The assumption may be express, when by
contract or otherwise, a plaintiff explicitly
agrees to accept a risk (De Leon, Comments
and Cases on Torts and Damages, 2004, p. 211).
● A person cannot contract away his right to
recover damages resulting from negligence.
Such waiver is contrary to public policy and
cannot be allowed. However, the waiver
contemplated by this prohibition is the
waiver of the right to recover before the
negligent act was committed. If waiver was
made after the cause of action accrued, the
waiver is valid and may be construed as a
condonation of the obligation (Aquino, Torts
and Damages 2nd ed., 2005, p. 238).
Implied Assumption
1. Dangerous Conditions. A person, who,
knowing that he is exposed to a dangerous
condition, voluntarily assumes the risk of
such dangerous condition, may not recover
from the defendant who maintained such
dangerous conditions.
2. Contractual Relations. There may be
implied assumption of risk if the plaintiff
entered into a contractual relation with the
defendant. By entering into a relationship
freely and voluntarily where the negligence
of the defendant is obvious, the plaintiff
may be found to have accepted and
consented to it. (e.g., when a passenger
boards a common carrier, he takes the risks
incidental to the mode of travel he has
taken.)
3. Dangerous Activities. Persons who
voluntarily participate in dangerous activities
assume the risks which are usually present
in such activities. (e.g., a professional
athlete is deemed to assume the risks of
injury to their trade.)
4. Defendant’s negligence. When the
plaintiff is aware of the risk created by the
defendant‘s negligence, yet he voluntarily
decided to proceed to encounter it, there is
 Purple Notes
an implied admission. (e.g.. if the plaintiff
has been supplied with a product which he
knows to be unsafe, he is deemed to have
assumed the risk of using such unsafe
product.)
2. Contributory negligence of plaintiff
Contributory negligence is conduct on the part
of plaintiff which falls below the standard of
conduct to which he should conform for his own
protection and cooperates with the negligence
of defendant in bringing about the plaintiff‘s
harm. The plaintiff may recover damages but
the courts shall mitigate the damages to be
awarded. (Art. 2179, NCC)
Note: What is applicable in our jurisdiction is
the ―modified‘‘ form of comparative negligence.
This is evident from the language of Article
2179. When negligence of the plaintiff is the
sole cause or the proximate cause of his injury,
he cannot recover, but if his negligence only
contributes remotely or otherwise but not
proximately, to his injury, he is deemed partly
responsible and his recovery shall be diminished
in proportion to the amount of fault attributable
to him (De Leon, Comments and Cases on Torts and
Damages, 2004, p. 239-240).
3. LAST CLEAR CHANCE
Even though a person‘s own acts may have
placed him in a position of peril an injury results,
the injured is entitled to recover if the defendant
through the exercise of reasonable care and
prudence might have avoided injurious
consequences to the plaintiff.
• Where both parties are negligent but the
negligent act of one succeeds that of the
other by an appreciable interval of time, the
one who has the last reasonable opportunity
to avoid the impending harm and fails to do
so, is chargeable-with the consequences,
without reference to the prior negligence of
the other party (Picart v. Smith, GR No. 12219,
Mar 15, 1918).
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Civil Law
• The doctrine of last clear chance applies
only in a situation where the defendant,
having the last fair chance to avoid the
impending harm and failed to do so,
becomes liable for all the consequences of
the accident notwithstanding the prior
negligence of the plaintiff.
In order that the doctrine of last clear
chance may be applied, it must be shown
that the person who allegedly had the last
opportunity to avert the accident was aware
of the existence of the peril or with exercise
of due care should have been aware of it
(Pantranco North Express, Inc. v. Baesa G.R.
Nos. 79050-51. November 14, 1989).
Exception:
This doctrine of last chance has no application to
a case where a person is to act instantaneously,
and if the injury cannot be avoided by using all
means available after the peril is or should have
been discovered. (Ibid)
It applies in a suit between the owners and
drivers of colliding vehicles. It does not arise
where a passenger demands responsibility from
the carrier to enforce its contractual obligations.
For it would be inequitable to exempt the
negligent driver and its owners on the ground
that the other driver was likewise guilty of
negligence (Philippine Rabbit Bus Lines, Inc. v.
Intermediate Appellate Court, et al. G.R. Nos. 66102-
04, August 30, 1990).
3. Consented Act
One cannot maintain an action for a wrong
occasioned by an act to which he has
consented, under the familiar maxim ―volenti
non fit injuria,‘‘ except where the act
involves the life of a person, or a breach of the
peace, or amounts to a public offense (De Leon,
Comments and Cases on Torts and Damages, 2004,
p. 59).
4. Other defenses
There is no tort liability and consequently, no
liability for damages in the following cases:
Bar Operations C ommissions 415
 Purple Notes
Civil Law
(1) When the defendant‘s conduct was
involuntary because force or intimidation
was employed upon him;
(3) When the act is in the exercise of a right or
the performance of a duty, unless there is
abuse (Art. 19)
(4) When the damage is caused by a fortuitous
event (Art. 1174, under Art. 2178)
(5) When the defendant acted under
emergency conditions or circumstances and
his conduct did not contribute to the
creation of the emergency (Art. 2179);
(6) When the defendant who is responsible for
acts or omissions of another proves the
exercise of due diligence (Art. 2180, 2184,
Ibid.);
(7) When the prescriptive period for quasi-delict
has expired (Art. 1146, under Art. 2194);
(8) When the defendant‘s conduct otherwise
tortious has not caused any damage or
injury; and
(9) When the plaintiff has voluntarily waived or
abandoned his right to enforce the civil
liability of the defendant for damages. (De
leon)
H. SPECIAL LIABILITY IN PARTICULAR
ACTIVITIES
1. In general; concepts
The person is made liable independent of fault
or negligence upon submission of proof of
certain facts; rests not on negligence but on
intentional doing of that which a person knows
or should, in the exercise of ordinary care, know
may reasonably cause loss to another in the
normal course of events.
2. Products Liability; Manufacturers and
Processors
Article 2187 imposes liability for death or
injuries without fault or negligence on the
part of manufacturers or processors and
without privity of contract between them
and the consumers (De Leon, Comments and
Cases on torts and damages, 2004, p. 367).
Requisites:
416 Center for Legal Education and Research
To establish liability for death or injury
under Art. 2187 of the NCC, the following
must be present:
1. Defendant is a manufacturer or processor
of foodstuffs, drinks, toilet articles and
similar goods;
2. 2. He used noxious or harmful
substances in the manufacture or
processing of the foodstuff, drink or toilet
article consumed or used by the
plaintiff;
3. Plaintiff‘s death or injury was caused by
the products so consumed or used; and
4. The damages sustained and claimed by
the plaintiff and the amount thereof
(Rabuya citing Sangco, Torts and Damages,
Vol. 2, 1994 Edition, 2017, p.716).
Liability even without fault or negligence
Even if there is no fault or negligence, public
policy demands that responsibility be fixed
whenever it will most effectively reduce the
hazards to life and health inherent in
defective products that reach the market. It
is evident that the manufacturer can
anticipate such hazards and guard against the
recurrence of others, as the public cannot.
Those who suffer injury from defective
products are unprepared to meet its
consequences (De Leon, Comments And Cases on
Torts and Damages, 2004, p. 368).
Requisites to cover on account of
hidden defects:
1. The defect must be hidden;
2. The defect must exist at the time the
sale was made;
3. The defect must ordinarily have been
excluded;
4. The defect must be important (it must
render the thing unfit or considerably
decrease fitness); and
5. The action must be instituted within the
statute of limitations (Nutrimix Feeds
Corporation v. CA, G.R. No. 152219, October
25, 2004).
 Purple Notes
3. Nuisance
Nuisance in Particular Activities
The term ―nuisance‘‘ is applied to that class of
wrongs which arises from the unreasonable,
unwarrantable, or unlawful use by a person
of his own property, and which produces
such material annoyance, inconvenience,
discomfort, or hurt, that the law will presume a
consequent damage. Anything that works an
injury, harm or prejudice to an individual or
the public is a nuisance. It embraces both
intentional harms and those caused by
negligence or recklessness. (58 Am. Jur. 2d 553-
554.)
Noise as Nuisance
A noise may constitute an actionable nuisance,
but it must be a noise which affects injuriously
the health or comfort of ordinary people in the
vicinity to an unreasonable extent. Injury to a
particular person in a peculiar position or of
specially sensitive characteristics will not render
the noise an actionable nuisance (Tortorella v.
Traiser & Co., Inc., 90 ALR 1206, November 29,
1933).
In the conditions of present living noise seems
inseparable from the conduct of many necessary
occupations. Its presence is a nuisance in the
popular sense in which that word is used, but in
the absence of statute noise becomes actionable
only when it passes the limits of reasonable
adjustment to the conditions of the locality and
of the needs of the maker to the needs of the
listener. What those limits are cannot be fixed
by any definite measure of quantity or quality.
They depend upon the circumstances of the
particular case. They may be affected, but are
not controlled, by zoning ordinances (Velasco v.
Manila Electric, G.R. No. L-18390 August 6, 1971).
Noise from electrical machinery and
appliances
It is no defense that skill and care have been
exercised and the most improved methods and
appliances employed to prevent such result.
Of course, the creation of trifling annoyance
and inconvenience does not constitute an
2018
Civil Law
actionable nuisance, and the locality and
surroundings are of importance. The fact that
the cause of the complaint must be substantial
has often led to expressions in the opinions that
to be a nuisance the noise must be deafening or
loud or excessive and unreasonable. The
determining factor when noise alone is the
cause of complaint is not its intensity or
volume. It is that the noise is of such
character as to produce actual physical
discomfort and annoyance to a person of
ordinary sensibilities, rendering adjacent
property less comfortable and valuable. If the
noise does that, it can well be said to be
substantial and unreasonable in degree; and
reasonableness is a question of fact
dependent upon all the circumstances and
conditions (Kentucky & West Virginia Power Co. v.
Anderson, 156 S.W. 2d 857, December 2 1941).
Test whether the Noise is actionable
nuisance
The test is whether rights of property of health
or of comfort are so injuriously affected by the
noise in question that the sufferer is subjected
to a loss which goes beyond the reasonable limit
imposed upon him by the condition of living, or
of holding property, in a particular locality in fact
devoted to uses which involve the emission of
noise although ordinary care is taken to confine
it within reasonable bounds; or in the vicinity of
property of another owner who though creating
a noise is acting with reasonable regard for the
rights of those affected by it (Stevens v. Rockport
Granite Co., 216 Mass. 486, February 26, 1914).
Lawful Business as Nuisance
There can be no doubt but that commercial and
industrial activities which are lawful in
themselves may become nuisances if they are so
offensive to the senses that they render the
enjoyment of life and property uncomfortable. It
is no defense that skill and care have been
exercised and the most improved methods and
appliances employed to prevent such result
(Kentucky & West Virginia Power Co. v. Anderson,
156 S. W. 2d 857, December 2, 1941).
Bar Operations C ommissions 417
 Purple Notes
Civil Law
One who settles in a district, which possesses
natural resources of a special kind, cannot
prohibit the development of those sources
merely because it may interfere in some degree
with personal satisfaction or aesthetic
enjoyment. No one can move into a quarter
given over to foundries and boiler shops and
demand the quiet of a farm. On the other hand,
the noisy or noisome factory cannot with
immunity invade territory stamped by use of
residence (De Ayala v. Barretto, G.R. No. L-9966,
February 14 1916).
The regulations for the conduct, control and
operation of garages that a Municipal Council
may promulgate should not encroach upon
the legitimate and lawful exercise by the
citizens of their property rights. Municipal
Ordinance No. 1, in question, which prohibits
the establishment or operation of bus or freight
truck-terminals within certain area of the town,
constitutes an unwarranted and unlawful
curtailment of the exercise of that right. The
plaintiff‘s bus terminal is not a nuisance per se
or per accidens because it is made of strong
materials and equipped with modern toilet
facilities and that it is other vehicles and not the
plaintiff‘s buses going in and out of the terminal
that obstruct the smooth flow of traffic and
produce traffic congestion, and said ordinance
has no bearing whatsoever on the health, safety
and general welfare of the inhabitants of the
defendant municipality (Pampanga Bus Co., Inc. v.
Municipality of Tarlac, GR No. L-15759, December 30,
1961).
A smoked fish factory is a legitimate
industry. It is a nuisance per accidens if it
be, in fact, a nuisance. Consequently, the order
of the municipal president and those of the
health authorities issued with a view to the
summary abatement of what they have
concluded, by their own findings, as a
nuisance, are null and void there having been no
hearing in court to that effect (Lucas v. Santos,
G.R. No. L-45519, April 26, 1939).
4. Violation of Constitutional Rights and
Liberties. (NCC, Article 32)
The creation of an absolutely separate and
independent civil action for the violation of
418 Center for Legal Education and Research
civil liberties is essential to the effective
maintenance of democracy, for these
reasons:
In most cases the threat to freedom originates
from abuses of power by government
officials and peace officers. Therefore, the
citizen has had to depend upon the prosecuting
attorney for the institution of criminal
proceedings, in order that the wrongful act
might be punished under the Penal Code and
the civil liability exacted.
Direct and open violations of the Penal Code
trampling upon the freedoms named are not so
frequent as those subtle, clever and indirect
ways which do not come within the pale of the
penal law. It is in these cunning devices of
suppressing or curtailing freedom, which are
not criminally punishable, where the greatest
danger to democracy lies. The injured citizen will
always have adequate civil remedies before the
courts because of the independent civil action,
even in those instances where the act or
omission complained of does not constitute a
criminal offense (De Leon, Comments And Cases on
Torts and Damages, 2004, p.90).
Defense of good faith not available
To allow the defense of good faith would defeat
the main purpose of the provision, which is the
effective protection of individual rights. Public
officials in the past have abused their
powers on the pretext of justifiable motives
or good faith in the performance of their
duties. Precisely, the object of the article is to
put an end to official abuse by the plea of
good faith (Lim v. Ponce de Leon, G.R. No. L-
22554, August 29, 1975).
5. Violation of rights committed by Public
officer
When a member of a city or municipal police
force refuses or fails to render aid or protection
to any person in case of danger to life or
property, such peace officer shall be
primarily liable for damages, and the city or
municipality shall be subsidiarily responsible
therefor. The civil action herein recognized shall
 Purple Notes
be independent of any criminal proceedings, and
a preponderance of evidence shall suffice to
support such action. (NCC, Art. 34)
6. Liability of Provinces , Cities and
Municipalities
Provinces, cities and municipalities shall be
liable for damages for the death of, or injuries
suffered by, any person by reason of the
defective condition of roads, streets, bridges,
public buildings, and other public works
under their control or supervision. (NCC, Art.
2189)
Note: Article 2189 does not require the
defective road, street, etc. to belong to the
province, city, or municipality for liability to
attach. It only requires that either control
or supervision is exercised over the road,
street, etc. (Jimenez v. City of Manila, G.R. No.
71049, May 29, 1987).
7. Liability of an owner of a motor vehicle
It is well settled that in case of motor vehicle
mishaps, the registered owner of the motor
vehicle is considered as the employer of the
tortfeasor-driver, and is made primarily liable for
the tort committed by the latter under Article
2176, in relation with Article 2180, of the Civil
Code (FILCAR TRANSPORT SERVICES v. JOSE A.
ESPINAS, G.R. No. 174156, June 20, 2012).
The main aim of motor vehicle registration is to
identify the owner so that if any accident
happens, or that any damage or injury is caused
by the vehicle on the public highways,
responsibility therefor can be fixed on a definite
individual, the registered owner. Instances are
numerous where vehicles running on public
highways caused accidents or injuries to
pedestrians or other vehicles without positive
identification of the owner or drivers, or with
very scant means of identification. It is to
forestall these circumstances, so inconvenient or
prejudicial to the public, that the motor vehicle
registration is primarily ordained, in the interest
of the determination of persons responsible for
damages or injuries caused on public highways
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Civil Law
(Erezo, et al. v. Jepte, G.R. No. L-9605, September
30, 1957).
8. Liability of proprietor of a building or
structure
The proprietor of a building or structure is
responsible for the damages resulting from its
total or partial collapse, if it should be due
to the lack of necessary repairs (NCC, Art. 2190).
Where the damage is caused by the total
or partial collapse of a building or any
structure, the proprietor or owner is prima
facie deemed negligent and is made liable, if it
should be due to lack of necessary repairs,
because it is his duty to maintain his
property in good condition at all times to
avoid causing injury or damage to another
person or property. To relieve himself from
liability, he must prove that property was in
a good state of repair or that the collapse
was due to a defect in its construction in
which case the engineer or architect and/ or
contract may be held responsible for the
damage (De Leon, Comments and Cases on Torts
and Damages, 2004, p. 373-374).
Proprietors shall also be responsible for
damages caused:
(1) By the explosion of machinery which has
not been taken care of with due diligence,
and the inflammation of explosive
substances which have not been kept in a
safe and adequate place;
(10) By excessive smoke, which may be
harmful to persons or property;
(11) By the falling of trees situated at or near
highways or lanes, if not caused by force
majeure;
(12) By emanations from tubes, canals,
sewers or deposits of infectious matter,
constructed without precautions suitable to
the place. (NCC, Art 2191)
Principle of created risk
When a person introduces in society a
dangerous object from necessity or profit,
he exposes others to danger. If it injures
Bar Operations C ommissions 419
 Purple Notes
Civil Law
another even without negligence on the part
of the owner or proprietor, he should be
liable for the damage caused (De Leon,
Comments and Cases on Torts and Damages, 2004,
p. 375).
Principle of presumed negligence
When an inanimate object causes damage to
another the owner thereof becomes liable;
proof of fault or negligence is unnecessary
because this is presumed (De Leon, Comments
and Cases on Torts and Damages, 2004, p. 375).
9. Head of the Family
The head of a family that lives in a building or a
part thereof, is responsible for damages caused
by things thrown or falling from the same.
(NCC, Art. 2193)
The term ―head of the family‘‘ may not be the
owner of the building and it may include a
lessee who lives in the building or a part
thereof. Thus, a manager of a hotel, who
was the lessee of the upper story of a
building, was held liable for the damages
caused to the goods of the owners of a store
located on the ground floor of the building,
by his failure to provide a hotel guest with
a drainage receptacle for defective faucet,
whose water damaged the goods and articles of
said owners (Dingcong v. Kanaan, G.R. No. L-
47033, April 25, 1941).
Solidary Liability
The head of the family who may have
been obliged to pay indemnity to the injured
party may recover from the person
responsible for the damage. Their liability is
solidary (Art. 2194, NCC).
10. Violation of Data Privacy
The National Privacy Commission (NPC) has
defined data privacy as the right of an
individual not to disclose his or her information
and to live free from surveillance. Protecting
personal information comes from one‘s free
will and is recognized by all democratic society.
420 Center for Legal Education and Research
Therefore, it is imperative that the government
provide measures that protect the interest of its
people when it comes to their personal data.
Hence, the creation of the Republic Act
No.10173, or commonly known as the Data
Privacy Act (DPA) of 2012.
Who are liable
Any person, public officer, corporation,
partnership or any juridical person found to be
guilty of any of the punishable acts under the
Data Privacy Act shall be liable.
If the offender is a corporation, partnership or
any juridical person, the penalty shall be
imposed upon the responsible officers, as the
case may be, who participated in, or by their
gross negligence, allowed the commission of the
crime. If the offender is a juridical person, the
court may suspend or revoke any of its rights
under this Act. If the offender is an alien, he or
she shall, in addition to the penalties herein
prescribed, be deported without further
proceedings after serving the penalties
prescribed. If the offender is a public official or
employee and lie or she is found guilty of acts
penalized under Sections 27 and 28 of this Act,
he or she shall, in addition to the penalties
prescribed herein, suffer perpetual or temporary
absolute disqualification from office, as the case
may be (Section 34, Data Privacy Act of 2012)
Acts punishable under Data Privacy Act
1. Unauthorized Processing of Personal
Information and Sensitive Personal
Information. (Sec. 25, Data Privacy Act)
2. Accessing Personal Information and Sensitive
Personal Information Due to Negligence (Sec.
26)
3. Improper Disposal of Personal Information
and Sensitive Personal Information (Sec 27).
4. Processing of Personal Information and
Sensitive Personal Information for
Unauthorized Purposes (Sec. 28)
5. Unauthorized Access or Intentional Breach
(Sec. 29)
6. Concealment of Security Breaches Involving
Sensitive Personal Information (Sec. 30).
 Purple Notes
7. Malicious Disclosure. – Any personal
information controller or personal information
processor or any of its officials, employees or
agents, who, with malice or in bad faith,
discloses unwarranted or false information
relative to any personal information or
personal sensitive information obtained by
him or her (Sec. 31).
8. Unauthorized Disclosure.
(a) Any personal information controller or
personal information processor or any of its
officials, employees or agents, who discloses
to a third party personal information not
covered by the immediately preceding
section without the consent of the data
subject
(b) Any personal information controller or
personal information processor or any of its
officials, employees or agents, who discloses
to a third party sensitive personal information
not covered by the immediately preceding
section (Sec. 32).
9. Combination or Series of Acts. – Any
combination or series of acts as defined in
Sections 25 to 32 (Sec. 33).
10. Large-Scale. – The maximum penalty in the
scale of penalties respectively provided for
the preceding offenses shall be imposed
when the personal information of at least one
hundred (100) persons is harmed, affected or
involved as the result of the above
mentioned actions (Sec. 35).
Philippine HIV and AIDS Act (R.A. 11166)
The confidentiality and privacy of any individual
who has been tested for HIV, has been exposed
to HIV, has HIV infection or HIV- and AIDS-
related illnesses, or was treated for HIV-related
illnesses shall be guaranteed.
Prohibited Acts:
1. Disclosure of Confidential HIV and AIDS
Information – It shall be unlawful to disclose,
without written consent, information that a
person has AIDS, has undergone an HIV related
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Civil Law
test, has HIV infection or HIV-related illnesses or
has been exposed to HIV.
This prohibition shall apply to any person,
natural or juridical:
a. Whose work or function involves the
implementation of the Philippine HIV and
AIDS Act;
b. whose work or function involves delivery of
HIV-related services (e.g. those who handle
or have access to personal data or
information in the workplace); and,
c. A person who, in pursuant to the receipt of
the required written consent from the subject
of confidential HIV and AIDS information,
have subsequently been granted access to
the same confidential information (Sec. 44).
Consent may be dispensed with when (Sec.
45, R.A. 11166):
1. Compliance with reportorial requirements of
the national active surveillance system of the
DOH;
 Provided that the identity of the subject
shall remain confidential.
2. When informing other health workers directly
involved in the treatment or care of a PLHIV
 Provided that such worker shall be
required to perform the duty of shared
medical confidentiality.
3. When responding to a subpoena duces
tecum and subpoena ad testificandum issued by
a court with jurisdiction over a legal proceeding
where the main issue is the HIV status of an
individual.
 Provided the confidential medical record,
after having been verified for accuracy
by the head of the office or department,
shall remain anonymous and unlinked
and shall be properly sealed by its lawful
Bar Operations C ommissions 421
 Purple Notes
Civil Law
custodian, hand delivered to the court,
and personally opened by the judge.
 The judicial proceedings be held in
executive session.
2. Media Disclosure - It shall be unlawful for
any editor, publisher, reporter or columnist, in
case of printed materials, or any announcer or
producer in case of television and radio
broadcasting, or any producer or director of
films in case of the movie industry, or any other
individual or organization in case of social
media, to disclose the name, picture, or any
information that would reasonably identify
persons living with HIV and AIDS, or any
confidential HIV and AIDS information (Sec. 44
(b), R.A. 11166).
Exception: when the subject has given his prior
written consent
Exception to the exception: The Subject
waived the confidentiality through their own acts
and omissions under the Cybercrime Prevention
Act of 2012 and the Data Privacy Act of 2012
(Sec. 44 (b), R.A. 11166).
Disclosure of HIV-related Test Results (Sec.
46, R.A. 11166)
It shall be disclosed by the trained service
provider who conducts pre-test and post-test
counselling only to the individual who submitted
the test.
 Patient is below 15 years old, an
orphan or mentally incapacitated:
The result may be disclosed to:
o Either of the patient‘s parents;
o Legal guardian;
o Duly assigned licensed social
worker or health worker.
 Patient is below 15 and not
suffering from any mental
incapacity: the result shall be disclosed
to the child provided that he should be
given age-appropriate counseling and
access to necessary health care and
sufficient support services.
422 Center for Legal Education and Research
Lability under RA 11166
Any person who has obtained knowledge of
confidential HIV and AIDS information and uses
such information to malign or cause damage,
injury or loss to another person shall face
liability under Arts. 19, 20, 21 and 26 of the NCC
and relevant provisions of the Data Privacy Act
(Sec. 50 [h], IRR of RA 11166).
I. STRICT LIABILITY
A person may be held liable independent of
fault, negligence or intent after establishing
certain facts specified by law. It includes
liability for conversion and for injuries caused
by animals, ultra-hazardous activities and
nuisance.
1. Animals; Possessor and user of
Animals
The possessor of an animal or whoever may
make use of the same is responsible for the
damage which it may cause, although it may
escape or be lost. This responsibility shall cease
only in case the damage should come from
force majeure or from the fault of the person
who has suffered damage. (Art. 2183, NCC).
The obligation imposed by Article 2183 is
not based on the negligence or the
presumed lack of vigilance of the possessor
or user of the animal causing the damage. It
is based on natural equity and on the
principle of social interest that he who
possesses animals for his utility, pleasure, or
service, must answer for the damage which
such animal may cause (Vestil v. Intermediate
Appellate Court, G.R. No. 74431, November 6, 1989).
Kind of animal covered
Article 2183 makes no distinction as to
what kind of animal is used or possessed.
Hence, it may be construed as applicable
generally to all animals, whether domestic,
domesticated, or wild. It would seem that birds
are covered since they can also cause
damage (De Leon, Comments and Cases on Torts
and Damages, 2004, p. 357)
 Purple Notes
Defenses available for the defendant:
1. Force majeure. — The possessor or
user of an animal is liable for acts of
the animal, whether they are instinctive
or due to its defects. But when the
instinctive act is due to force majeure
such as lightning, thunder, etc. or to the
act of a third person there is no liability
on the part of the possessor. (A.M.
Tolentino, op. cit., p. 623.)
NOTE: In order that an event may be
considered force majeure, it is necessary
that the same be extraordinary and
unforeseen (De Leon, Comments and Cases on
Torts and Damages, 2004, p. 358).
2. Fault of person suffering damage. —
The possessor of an animal is not liable if
the damage or injury is caused by the fault
or negligence of the injured person
himself.
3. Acts of a third person. — The possessor
or user of the animal is still liable even
if the damage or injury was caused
through the act or negligence of a third
person unless it can be shown that the
incident was extraordinary and unforeseen
as to be equated with force majeure. In
such case, the burden of proving fault
rests upon the defendant to make the
third person liable for the resulting
damage (De Leon, Comments and Cases on
Torts and Damages, 2004, p. 359).
2. Nuisance
The term ―nuisance‘‘ is applied to that class of
wrongs which arises from the unreasonable,
unwarrantable, or unlawful use by a person
of his own property, and which produces
such material annoyance, inconvenience,
discomfort, or hurt, that the law will presume a
consequent damage. Anything that works an
injury, harm or prejudice to an individual or
the public is a nuisance. It embraces both
intentional harms and those caused by
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Civil Law
negligence or recklessness. (58 Am. Jur. 2d 553-
554.)
Article 596 gives the statutory definition of
―nuisance‘‘ in terms of that which causes the
harm or damage, and not of the harm or
damage caused. Negligence is not an essential
ingredient of a nuisance but to be liable for a
nuisance, there must be resulting injury to
another in the enjoyment of his legal rights.
Classifications of nuisance
A. According to number of persons affected:
(a) Public;
(b) Private (Art. 695.); and
(c) Mixed.
B. According to their nature:
(a) Nuisance per se; and
(b) Nuisance per accidens.
C. According to liability:
(a) Civil; and
(b) Criminal
D. According to duration:
(a) continuing or recurrent;
(b) temporary or permanent.
E. According to right to relief:
(a) actionable; and
(b) non-actionable.
F. According to remedy available:
(a) nuisance abatable by criminal action;
(b) nuisance abatable by civil action;
(c) nuisance abatable without judicial
proceedings (Arts. 699, 704, 705, 706.
NCC); and
(d) nuisance abatable with judicial
proceedings. (Arts. 699, 701, 703. NCC)
Public and Private Nuisance defined;
A public nuisance has been defined as the
doing of or the failure to do something that
injuriously affects safety, health, or morals of
the public, or works some substantial
annoyance, inconvenience, or injury to the
public.
A private nuisance has been defined as one
which violates only private rights and produces
damage to but one or a few persons, and
cannot be said to be public (De Leon, Comments
and Cases on Torts and Damages, 2004, p. 108).
Bar Operations C ommissions 423
 Purple Notes
Civil Law
Test of a public nuisance
The test of a public nuisance is not the
number of persons actually affected, but the
possibility of injury or annoyance not to the
public, but to all who come within its sphere.
To constitute a public nuisance, it is
sufficient that there is a tendency to the
annoyance of the public, by an invasion of its
rights which all are entitled to exercise if
they see fit. And the fact that acts or
conditions may be beneficial to the public in
some degree will not prevent them from being a
nuisance, if their effects are such as to fall
within the definition of a nuisance. (De Leon,
Comments and Cases on Torts and Damages, 2004,
p. 109)
Mixed nuisances
Mixed Nuisances are both public and private in
character; it may be a public nuisance because it
violates public rights to the injury of many
persons, and it may also be private in
character in that it produces special injury to
private rights to any extent beyond the injury to
the public. (De Leon, Comments and Cases on Torts
and Damages, 2004p. 109)
Nuisance per se
An act, occupation, or structure which is
unquestionably a nuisance at all times and
under any circumstances, regardless of location
or surroundings. It is anything which of itself is a
nuisance because of its inherent qualities,
productive of injury or dangerous to life or
property without regard to circumstance (De
Leon, Comments and Cases on Torts and Damages,
2004, p. 110).
Nuisance per accidens
An act, occupation, or structure, not a nuisance
per se, but which may become a nuisance
by reason of circumstances, location, or
surroundings. Thus, raising and breeding pigs
in a house within city limits is a nuisance per
accidens. (De Leon, Comments and Cases on Torts
and Damages, 2004, p. 110).
Doctrine of attractive nuisance.
424 Center for Legal Education and Research
One who maintains on his premises dangerous
instrumentalities or appliances of a character
likely to attract children in play, and who fails
to exercise ordinary care to prevent children
from playing therewith or resorting thereto, is
liable to a child of tender years who is injured
thereby, even if the child is technically a
trespasser in the premises (Hidalgo Enterprises,
Inc. v. Balandan, G.R. No. L-3422, June 13, 1952).
Application to bodies of water
The attractive nuisance doctrine generally is
not applicable to bodies of water, artificial
as well as natural, in the absence of some
unusual condition or artificial feature other
than the mere water and its location. Thus,
a swimming pool or pond or reservoir of water is
not considered an attractive nuisance. (Ibid)
Degree of care required
A landowner has a right to maintain a
dangerous instrumentality on his premises that
are attractive to children, provided he
exercises ordinary care to prevent them
from being injured while playing
therewith. No more than ordinary care or
reasonable care under the circumstances is
required (De Leon, Comments and Cases on Torts
and Damages, 2004, p. 120).
3. Products Liability; Consumer Act
THE CONSUMER ACT OF THE PHILIPPINES
(RA 7394)
The consumer act prohibits deceptive sales, acts
or practices. It contains provisions imposing
liability for defective service and warranty
obligations on the manufacturers and sellers.
Strict liability is imposed on the manufacturers.
Pertinent Provisions:
Article 4: Definition of Terms
(as); Manufacturer: "Manufacturer" means
any person who manufactures, assembles or
processes consumer products, except that if the
goods are manufactured, assembled or
processed for another person who attaches his
own brand name to the consumer products, the
latter shall be deemed the manufacturer. In case
 Purple Notes
of imported products, the manufacturer's
representatives or, in his absence, the importer,
shall be deemed the manufacturer.
Article 50. Prohibition Against Deceptive
Sales Acts or Practices. – A deceptive act or
practice by a seller or supplier in connection with
a consumer transaction violates this Act whether
it occurs before, during or after the transaction.
An act or practice shall be deemed deceptive
whenever the producer, manufacturer, supplier
or seller, through concealment, false
representation of fraudulent manipulation,
induces a consumer to enter into a sales or
lease transaction of any consumer product or
service.
Without limiting the scope of the above
paragraph, the act or practice of a seller or
supplier is deceptive when it represents that:
a) a consumer product or service has the
sponsorship, approval, performance,
characteristics, ingredients, accessories,
uses, or benefits it does not have;
b) a consumer product or service is of a
particular standard, quality, grade, style, or
model when in fact it is not;
c) a consumer product is new, original or
unused, when in fact, it is in a
deteriorated, altered, reconditioned,
reclaimed or second-hand state;
d) a consumer product or service is
available to the consumer for a reason
that is different from the fact;
e) a consumer product or service has been
supplied in accordance with the previous
representation when in fact it is not;
f) a consumer product or service can be
supplied in a quantity greater than the
supplier intends;
g) a service, or repair of a consumer
product is needed when in fact it is not;
h) a specific price advantage of a consumer
product exists when in fact it does not;
i) the sales act or practice involves or does
not involve a warranty, a disclaimer of
warranties, particular warranty terms or
other rights, remedies or obligations if
the indication is false; and
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j) the seller or supplier has a sponsorship,
approval, or affiliation he does not have.
Article 97. Liability for the Defective
Products. – Any Filipino or foreign
manufacturer, producer, and any importer, shall
be liable for redress, independently of fault, for
damages caused to consumers by defects
resulting from design, manufacture,
construction, assembly and erection, formulas
and handling and making up, presentation or
packing of their products, as well as for the
insufficient or inadequate information on the use
and hazards thereof.
A product is defective when it does not offer the
safety rightfully expected of it, taking relevant
circumstances into consideration, including but
not limited to:
a) Presentation of product;
b) Use and hazards reasonably expected of it;
c) The time it was put into circulation.
A product is not considered defective because
another better quality product has been placed
in the market.
Article 98. Liability of Tradesman or Seller.
– The tradesman/seller is likewise liable,
pursuant to the preceding article when;
a) it is not possible to identify the
manufacturer, builder, producer or importer.
b) the product is supplied, without clear
identification of the manufacturer, producer,
builder or importer;
c) he does not adequately preserve
perishable goods. The party making payment to
the damaged party may exercise the right to
recover a part of the whole of the payment
made against the other responsible parties, in
accordance with their part or responsibility in
the cause of the damage effected.
Article 99. Liability for Defective Services.
– The service supplier is liable for redress,
independently of fault, for damages caused to
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 Purple Notes
Civil Law
consumers by defects relating to the rendering
of the services, as well as for insufficient or
inadequate information on the fruition and
hazards thereof.
The service is defective when it does not provide
the safety the consumer may rightfully expect of
it, taking the relevant circumstances into
consideration, including but not limited to:
a) The manner in which it is provided;
b) The result of hazards which may reasonably
be expected of it;
c) The time when it was provided.
A service is not considered defective
because of the use or introduction of new
techniques.
DEFENSE OF MANUFACTURER AND
SUPPLIER
1. The manufacturer, builder, producer or
importer shall not be held liable when it
evidences:
a. that it did not place the product on the
market;
b. that although it did place the
product on the market such product
has no defect;
c. that the consumer or a third party is
solely at fault. (Article 97, Consumer
Act)
2. The supplier of the services shall not be
held liable when it is proven:
a) That there is no defect in the service
rendered;
b) That the consumer or third party is
solely at fault. (Article 99, Consumer
Act)
XIII:
DAMAGES
A. GENERAL CONSIDERATIONS
Damages – A sum of money which the law
awards or imposes as pecuniary compensation,
recompense or satisfaction for an injury done or
a wrong sustained as a consequence of the
426 Center for Legal Education and Research
breach of some duty or violation of some right
(PNB v. RBL Enterprise, G. R. No. 149569, May 28,
2004).
The pecuniary compensation, recompense or
satisfaction for an injury sustained, or as
otherwise expressed, the pecuniary
consequences, which the law imposes for the
breach of some duty or violation of some rights
(People v. Ballesteros G.R. No. 120921, January 29,
1998).
Damage – is the detriment, injury or loss which
is occasioned by reason of fault of another in
the property or person (De Leon, Comments and
Cases on Torts and Damages, 2004, p. 628).
Injury v. Damage
Injury is the illegal invasion of a legal right.
Damage is the loss, hurt, or harm which results
from the injury. Damages is the recompense or
compensation awarded for the damage suffered
(Custodio v. CA , G.R. No. 116100, February 9, 1996).
Damages – A sum of money which the law
awards or imposes as pecuniary compensation,
recompense or satisfaction for an injury done or
a wrong sustained as a consequence of the
breach of some duty or violation of some right
(PNB v. RBL Enterprise, G. R. No. 149569, May 28,
2004).
The pecuniary compensation,
recompense or satisfaction for an injury
sustained, or as otherwise expressed, the
pecuniary consequences, which the law imposes
for the breach of some duty or violation of some
rights (People v. Ballesteros G.R. No. 120921,
January 29, 1998).
1. Classification
A. Under Art. 2197 of the New Civil Code:
1. Moral
2. Exemplary or corrective
3. Nominal
4. Temperate or moderate
5. Actual or compensatory
6. Liquidated
 Purple Notes
B. According to purpose
1. Compensatory
2. Punitive
C. According to manner of determining the
amount of indemnity
1. Conventional
It is conventional if stipulated by the
parties to a contract.
2. Non Conventional
It is non conventional if it is not agreed
upon or predetermined.
A. Special and ordinary
Ordinary damages are those which necessarily
and by implication of law result from the act or
omission complained of.
Special damages are those which result
directly but not necessarily or by implication of
law, from the act or omission complained of and
exist only because of special circumstances.
The first may be awarded without the second,
while the second, when proper, are added to the
first (De Leon, Comments and Cases on Torts and
Damages, 2004, p. 561).
2. Kinds of Damages
a. ACTUAL AND COMPENSATORY
DAMAGES
Actual or compensatory damages are those
awarded in satisfaction of, or in recompense for,
loss or injury sustained. They proceed from a
sense of natural justice and are designed to
repair the wrong that has been done, to
compensate for the injury inflicted and not to
impose a penalty. In actions based on torts or
quasi-delicts, actual damages include all the
natural and probable consequences of the act or
omission complained of (Art. 2199, NCC).
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Civil Law
Two kinds of actual or compensatory
damages:
1. One is the loss of what a person already
possesses (daño emergente),
2. Failure to receive as a benefit that would
have pertained to him (lucro cesante).
The purpose of the law in awarding actual
damages is to repair the wrong that has been
done, to compensate for the injury inflicted, and
not to impose a penalty. (Algarra v. Sandejas, G.R.
No. 8385, March 24, 1914)
Except as provided by law or by stipulation, one
is entitled to an adequate compensation only for
such pecuniary loss suffered by him as he has
duly proved. Such compensation is referred to
as actual or compensatory damages.
In the absence of competent proof on the actual
damage suffered, a party is entitled to nominal
damages, which, as the law says, is adjudicated
in order that a right of the plaintiff, which has
been violated or invaded by defendant, may be
vindicated and recognized, and not for the
purpose of indemnifying the plaintiff for any loss
suffered (PNOC Shipping and Transport Corporation
v. CA, G.R. No. 107518, October 8, 1998).
Manner of Determination:
To justify an award for actual damages, there
must be competent proof of the actual amount
of loss. Credence can be given only to claims
duly supported by receipts (ComSavings Bank,
G.R. No.170942, August 28, 2013).
Claimants must produce competent proof or the
best evidence obtainable such as receipts to
justify an award therefore. Actual or
compensatory damages cannot be presumed but
must be proved with reasonable certainty (People
v. Ereño, G.R. No.124706, February 22, 2000).
Requisites to award actual damages:
1. The loss is alleged and proved
2. The loss is not speculative (General
Enterprises, Inc. vs. Lianga Bay Logging, Co.,
Inc., G.R. No. L-18487, August 31, 1964)
Bar Operations C ommissions 427
 Purple Notes
Civil Law
Component elements of actual
damages/actual damages may be
recovered:
1. For loss or impairment of earning capacity in
case of temporary or permanent physical
injury. (Art. 2205, NCC)
2. For injury to the plaintiff‘s business standing
or commercial credit (Art. 2205, NCC)
3. For attorney‘s fees and expenses of litigation
4. Interest
5. For value of the loss suffered (Art. 2200, NCC)
6. Unrealized profits (Art. 2200, NCC)
7. Indemnity for Death and loss of earning
capacity of the deceased (Art. 2206 NCC)
8. Support for Compulsory Heirs
When victim is unknown
The fact that the victim remains unknown and
no heirs have come forward, does not warrant
the elimination of civil indemnity (People v.
Guzman, G.R. No. 8385, April 25, 1994).
Proving the loss
General Rule: Loss must be proved before one
can be entitled to damages.
Exception: Loss need not be proved in the
following cases:
1. Liquidated damages previously agreed upon
(Art. 2226, NCC) Liquidated damages take
the place of actual damages except when
additional damages are incurred.
2. Forfeiture of bonds in favor of the
government for the purpose of promoting
public interest or policy (Far Eastern Surety
and Insurance Co. v. CA, No. L-12019, October
16, 1958).
3. Loss is presumed (Manzanares v. Moreta, G.R.
No. 12306, October 22, 1918).
4. When the penalty clause is agreed upon in
the contract between the parties (Art. 1226,
NCC).
Civil liability ex delicto v. Actual or
compensatory damages distinguished
Civil Indemnity Ex Delicto can be awarded
without need of further proof than the fact of
428 Center for Legal Education and Research
commission of the felony while Actual or
Compensatory Damages to be recoverable must
additionally be established with reasonable
degree of certainty (People v. Dianos, G.R. No.
119311, October 07, 1998).
How to ascertain amount of actual and
compensatory damage (Evidence of Actual
Damage)
The amount of the damages should be
determined with reasonable certainty. It cannot
be simply based on the mere allegation of a
witness without any tangible claim, such as
receipts or other documentary proofs to support
such claim (Consolidated Industrial Gases, Inc. v.
Alabang Medical Center, Inc., G.R. No. 181983,
November 13, 2013).
� Rule applies to civil and criminal cases (People
v. Abaño y Cañares, G.R. No. 188323, February
21, 2011)
General Rule: Documentary evidence should
be presented to substantiate the claim for
damages for loss of earning capacity.
Exception: Damages for loss of earning
capacity may be awarded despite the absence of
documentary evidence when:
1. The deceased is self-employed and earning
less than the minimum wage under current
labor laws, in which case, judicial notice may
be taken of the fact that in the deceased's
line of work no documentary evidence is
available; or
2. The deceased is employed as a daily wage
worker earning less than the minimum wage
under current labor laws (Philippine Hawk
Corporation v. Vivian Tan Lee, G.R. 166869, Feb.
16, 2010).
If amount admitted by a party
Even if there are no receipts and yet the amount
claimed is admitted by a party, it should be
granted (People v. Abolidor, G.R. No. 133380,
February 13, 2004).
 Purple Notes
Determination of amount of damages
recoverable
Much is left to the discretion of the court
considering the moral and material damages
involved. There can be no exact or uniform rule
for measuring the value of a human life.
The life expectancy of the deceased or of the
beneficiary, whichever is shorter, is an important
factor. Other factors that are usually considered
are:
1. Pecuniary loss to plaintiff or beneficiary;
2. Loss of support;
3. Loss of service;
4. Loss of society;
5. Mental suffering of beneficiaries; and
6. Medical and funeral expenses.
� The formula that has gained acceptance
over time has limited recovery to net
earning capacity. The premise is
obviously that net earning capacity is
the person‘s capacity to acquire money,
less the necessary expense for his own
living (Philtranco Service Enterprises v. Felix
Paras and Inland Trailways Inc. G.R. No.
161909, April 25, 2012).
Computation of Unearned Income
Formula:
Net Earning Capacity (x) = Life Expectancy X
(Gross Annual Income LESS Living Expenses)
Legend:
Net Earning Capacity = Life Expectancy x (Gross
Annual Income – Living Expenses)
Life Expectancy = 2/3 x (80 – Age of the
Deceased)
Living Expenses = 50% of gross annual income.
Basis of Life Expectancy
Life expectancy should not be based on the
retirement age of government employees, which
is pegged at 65. In calculating the life
expectancy of an individual for the purpose of
determining loss of earning capacity under Art.
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Civil Law
2206 (1) of the NCC, it is assumed that the
deceased would have earned income even after
retirement from a particular job (Smith Bell
Dodwell Shipping Agency Corp. v. Borja, G.R. No.
143008, June 10, 2002).
Heirs cannot claim as damages the full
amount of earnings of the deceased
Said damages consist, not of the full amount of
his earnings, but of the support they received or
would have received from him had he not died
in consequence of the negligence of the bus'
agent. Stated otherwise, the amount
recoverable is not loss of the entire earning, but
rather the loss of that portion of the earnings
which the beneficiary would have received. In
other words, only net earnings, not gross
earning, are to be considered.
In fixing the amount of that support, the
"necessary expenses of his own living" should be
deducted from his earnings. Earning capacity, as
an element of damages to one's estate for his
death by wrongful act, is necessarily his net
earning capacity or his capacity to acquire
money, less the necessary expense for his own
living. (Villa Rey Transit, Inc. v. CA, et al., G.R. No. L-
25499, Feb. 18, 1970)
Medical Expenses are in the nature of
actual damage
Medical expenses are in the nature of actual
damages which should be duly proved and the
award for actual damages cannot be made on
the basis of the doctor‘s prescription alone.
(People v. Enguito, G.R. No. 128812, Feb 28, 2000)
Adjustment fees do not constitute actual
damages
Adjustment fees and expense of drivers in the
recovery of cargo lost at sea done voluntarily,
though unsuccessfully, does not constitute
actual damages. (Schmitz Transport & Brokerage
Corp. v. Transport Venture, Inc., G.R. No. 150255,
April 22, 2005)
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 Purple Notes
Civil Law
Attorney’s Fees and Expenses of Litigation
In the absence of stipulation, attorney‘s fees and
expenses of litigation, other than judicial costs,
cannot be recovered, except:
1. When exemplary damages are awarded;
2. When the defendant‘s act or omission has
compelled the plaintiff to litigate with third
persons or to incur expenses to protect his
interest;
3. In criminal cases of malicious prosecution
against the plaintiff;
4. In case of a clearly unfounded civil action or
proceeding against the plaintiff;
5. Where the defendant acted in gross and
evident bad faith in refusing to satisfy the
plaintiff‘s plainly valid, just and demandable
claim;
6. In actions for legal support;‘
7. In actions for the recovery of wages of
household helpers, laborers and skilled
workers;
8. In actions for indemnity under workmen‘s
compensation and employer‘s liability laws;
9. In a separate civil action to recover civil
liability arising from a crime;
10. When at least double judicial costs are
awarded;
11. In any other case where the court deems it
just and equitable that attorney‘s fees and
expenses fees is proper if the parties
stipulate it.
The law allows a party to recover attorney‘s fees
under a written agreement. Article 2208 of the
Civil Code provides that an award of attorney‘s
fees is proper if the parties stipulate it.
Article 2208 allows attorney‘s fees to be
awarded by a court when its claimant is
compelled to litigate with third persons or to
incur expenses to protect his interest by reason
of an unjustified act or omission of the party
from whom it is sought. The matter cannot and
should not be left to speculation and conjecture
(Spouses Hernandez, et al. v. Dolor, et al, G.R. No.
160286, July 30, 2004).
430 Center for Legal Education and Research
Two concepts of Attorney’s fees
1. Ordinary – reasonable compensation paid
to a lawyer by this client for the legal
services he has rendered to the latter.
Basis: The fact of employment of the
lawyer by the client
To whom payable: Lawyer
2. Extraordinary – indemnity for damages
ordered by the court to be paid by the losing
party in litigation to the prevailing party.
They are actual damages due to the
plaintiff. (Art. 2208, NCC)
Basis: Any cases authorized by law
To whom payable: Client
Payable not only to the lawyer but to the
client, unless they have agreed that the
award shall pertain to the lawyer as
additional compensation or as part thereof
(Benedicto v. Villaflores, G.R. No. 185020,
October 6, 2010).
� In all cases, the attorney‘s fees and
expenses of litigation must be
reasonable.
INTEREST
The code Commission included provisions in the
Civil Code allowing interest on damages because
they believed that ―such interest is in fact a part
of the loss suffered‖ (Arts. 2209-2213)
Interest may be recovered from:
1. Obligation consisting in payment of a sum of
money, and debtor incurs delay (Art. 2209,
NCC).
2. Breach of contract, in the discretion of the
court (Art. 2210, NCC)
3. Crimes and quasi-delicts, at the discretion of
the court (Art.2211, NCC)
4. When obligation is judicially demanded (Art.
2212, NCC)
 Purple Notes
5. Unliquidated claims or damages in which the
demand when established with reasonable
certainty (Art. 2213, NCC)
Interest on Damages:
1. Six percent (6%) per annum if the obligation
consists in the payment of a sum of money,
and the debtor incurs in delay and there
being no stipulation to the contrary. (Art.
2209, NCC)
2. Interest due shall earn legal interest (6%
per annum) from the time it is judicially
demanded, not from default, even if the
obligation is silent on the matter. (Art. 2212,
NCC)
3. Interest cannot be recovered upon
unliquidated claims or damages, except
when the demand can be established with
reasonable certainty. (Art. 2213, NCC)
4. In quasi-delicts, the contributory negligence
of the plaintiff shall reduce the damages
that he may recover. (Art. 2214, NCC)
When obligation is breached and it consists in
payment of a sum of money (ie. Loan or
forbearance of money), the interest due should
be that which may have been stipulated in
writing. (Art. 1956, NCC) Furthermore, the
interest due shall itself earn legal interest from
the time it is judicially demanded. (Art. 2212,
NCC) In the absence of stipulation, the interest
shall be computed from default, i.e., from
judicial or extrajudicial demand.
When an obligation, not constituting a loan or
forbearance of money, is breached, an interest
on the amount of damages awarded may be
imposed at the discretion of the court (Art. 2210,
NCC) at the rate of 6% per annum (Art. 2209,
NCC). No interest, however, shall be adjudged
on unliquidated claims or damages except when
or until the demand can be established with
reasonable certainty.(Art 2216, NCC) Accordingly,
where the demand is established with
reasonable certainty, the interest shall begin to
run from the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code) but when
such certainty cannot be so reasonably
established at the time the demand is made, the
interest shall begin to run only from the date the
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Civil Law
judgment of the court is made (at which time
the quantification of damages may be deemed
to have been reasonably ascertained). The
actual base for the computation of legal interest
shall, in any case, be on the amount finally
adjudged.
Extent or Scope of Actual Damages
To enable an injured party to recover actual or
compensatory damages, he is required to prove
the actual amount of loss with reasonable
degree of certainty premised upon competent
proof and on the best evidence available. The
burden of proof is on the party who would be
defeated if no evidence would be presented on
either side. He must establish his case by a
preponderance of evidence which means that
the evidence, as a whole, adduced by one side
is superior to that of the other. In other words,
damages cannot be presumed and courts, in
making an award must point out specific facts
that could afford a basis for measuring whatever
compensatory or actual damages are borne
(PNOC Shipping and Transport Corporation v. CA, G.
R. No. 107518, October 8, 1998).
Extent in Contracts and Quasi-Contracts:
In contracts and quasi-contracts, the damages
for which the obligor who acted in good faith is
liable shall be those that are the natural and
probable consequences of the breach of the
obligation, and which the parties have foreseen
or could have reasonably foreseen at the time
the obligation was constituted. (Art. 2201, NCC)
In contracts and quasi-contracts and in case of
fraud, bad faith, malice or wanton attitude, the
obligor shall be responsible for all damages
which may be reasonably attributed to the non-
performance of the obligation. (Art. 2202, NCC)
Extent in crimes and quasi-delicts:
In crimes and quasi-delicts, the defendant shall
be liable for all damages, which are the natural
and probable consequences of the act or
omission complained of. It is not necessary that
such damages have been foreseen or could have
Bar Operations C ommissions 431
 Purple Notes
Civil Law
reasonably been foreseen by the defendant (Art.
2202, NCC).
Restitutio in Integrum
The basic principle for the measure of damages
in integrum. The amount to be awarded to the
plaintiff should be that sum of money which will
put the party who has been injured or who has
suffered in the same position as he would have
been in if he had not sustained the wrong for
which he is now getting his compensation or
reparation. Consequently, the damages are
measured on plaintiff‘s loss and not on
defendant‘s gain. By way of exception, damages
are measured by the benefit that has accrued to
the defendant in certain cases.
Damage to Property
Where goods were destroyed by the wrongful
act of the defendant, the plaintiff is entitled to
their value at the time of destruction. Normally,
the award is the sum of money which plaintiff
would have to pay in the market for identical or
essentially similar good, plus in proper cases,
damages for the loss of use during the period
before replacement. In cases of profit-earning
chattels, what has to be assessed is the value of
the chattel to its owner as a going concern at
the time and place of the loss.
� With respect to real property, the
measure of damage for a permanent
injury is ordinarily the difference
between the reasonable market value of
the property immediately before and
after the injury.
� In case of total loss, the value of the
real property at the time and place of
the loss must also be assessed and such
assessed value is the measure of the
damage due to the plaintiff.
� Where the plaintiff was merely deprived
of his possession, said plaintiff is entitled
to the value or use of the premises.
Thus the rental value should be
assessed against the plaintiff for tress-
pass or illegal occupation of house
432 Center for Legal Education and Research
(Aquino, Torts and Damages, 2004, p. 853-
854).
Damages in crimes and quasi-delicts
causing death
The amount of damages for death caused by a
crime or quasi-delict shall be at least three
thousand pesos, even though there may have
been mitigating circumstances. In addition:
a. The defendant shall be liable for the loss of
the earning capacity of the deceased, and
the indemnity shall be paid to the heirs of
the latter; such indemnity shall in every case
be assessed and awarded by the court,
unless the deceased on account of
permanent physical disability not caused by
the defendant, had no earning capacity at
the time of his death;
b. If the deceased was obliged to give support
according to the provisions of article 291,
the recipient who is not an heir called to the
decedent‘s inheritance by the law of testate
or intestate succession, may demand
support from the person causing the death,
for a period not exceeding five years, the
exact duration to be fixed by the court;
c. The spouse, legitimate and illegitimate
descendants and ascendants of the
deceased may demand moral damages for
mental anguish by reason of the death of
the deceased. (Art. 2206, NCC)
� If the plaintiff is asking for damages for
his own injury or for the death of his
relative, said plaintiff is entitled to the
amount of medical expenses as well as
other reasonable expenses that he
incurred to treat his or his relative‘s
injuries. Courts may also award monthly
payments to that person who was
injured to answer for his future medical
expenses.
� In proper cases, the award of damages
may likewise include the amount spent
for the plastic surgery of the plaintiff or
any procedure to restore the part of the
body that was affected.

� In case of death, the plaintiff is entitled
to the amount that he spent during the
wake and funeral of the deceased.
However, it has been ruled that
expenses after burial are not
compensable.
Damages in Rape
Civil indemnity, which is actually in the nature of
actual or compensatory damages, is mandatory
upon the finding of the fact of rape. The case
law also requires automatic award of moral
damages to a rape victim without need of proof
because from the nature of the crime, it can be
assumed that she has suffered moral injuries
entitling her to such award. Such award is
separate and distinct from civil indemnity (People
v. Astrologo, G.R. No. 169873, June 8, 2007).
� The commission of an offense has a two
(2)-pronged effect, one (1) on the public as
it breaches the social order, and the other
upon the private victim as it causes
personal sufferings—each effect is
respectively addressed by the prescription
of heavier punishment for the accused and
by an award of additional damages to the
victim.
� Although it is essential to observe the
requirements imposed by Secs. 8 and 9 of
Rule 110 of the Revised Rules of Criminal
Procedure, as amended, the requirements
should affect only the criminal liability of
the accused, which is the State‘s concern,
and should not affect the civil liability of the
accused, which is for the benefit of the
injured party.
� Where the special qualifying circumstances
of age and relationship, although not
alleged in the information, are nonetheless
established during the trial, the award of
civil indemnity and moral damages in a
conviction for simple rape should equal the
award of civil indemnity and moral
damages in convictions for qualified rape
(People v. Bartolini, G.R. No. 179498, August 3,
2010).
Purple Notes 2018
Civil Law
b. MORAL DAMAGES
Designed to compensate the claimants for actual
injury and is not meant to enrich the
complainant at the expense of the defendant.
Moral damages include (FMP-BMW-SSS):
1. Physical suffering
2. Mental anguish
3. Fright
4. Serious anxiety
5. Besmirched reputation
6. Wounded feelings
7. Moral shock
8. Social humiliation
9. Similar injury (Art. 2217, NCC)
Though incapable of pecuniary computation,
moral damages may be recovered if they are the
proximate result of the defendant‘s wrongful act
for omission. (Art. 2217, NCC)
� Moral damages apply both to natural and
juridical persons. It is only when a juridical
person has good reputation that is
debased, resulting in social humiliation, that
moral damages may be awarded. (San
Fernando Regala Trading, Inc. v. Cargil
Philippines, Inc., G.R. No. 178008, October 9,
2013)
When recoverable:
1. In a criminal offense resulting in physical
injuries
2. In quasi-delicts causing physical injuries;
3. In cases of seduction, abduction, rape, or
other lascivious acts;
4. In cases of adultery or concubinage;
5. In illegal or arbitrary detention or arrest;
6. In illegal search;
7. In libel, slander or any other form of
defamation;
8. In malicious prosecution;
9. In acts mentioned in Article 309 of NCC;
10. In acts and actions referred to in articles 21.
26, 27, 28, 29,30, 32, 34, and 35
11. In breaches of contract where the defendant
acted fraudulently or in bad faith (Arts. 2219-
2220, NCC).
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Civil Law
� The parents of the female seduced,
abducted, raped, or abused may also
recover moral damages (Art. 2219, NCC).
� The spouse, descendants, ascendants,
and brothers and sisters may bring the
action mentioned in Article 309 CC, in
the order named.
Requisites:
1. There must be an injury, whether physical,
mental or psychological, clearly sustained by
the claimant;
2. There must be a culpable act or omission
factually established
3. The wrongful act or omission of the
defendant is the proximate cause of the
injury sustained by the claimant
4. The award of damages is predicated on any
of the cases stated in Article 2219 of the
NCC (Francisco vs. Ferrer, Jr. G.R. No. 142029,
February 28, 2001).
Article 309, NCC. Any person who shows
disrespect to the dead, or wrongfully interferes
with a funeral shall be liable to the family of the
deceased for damages, material and moral.
Corporations and other artificial beings are not
entitled to recover moral damages.
General Rule: A juridical person is generally
not entitled to moral damages because, unlike a
natural person, it cannot experience physical
suffering or such sentiments as wounded
feelings, serious anxiety, mental anguish or
moral shock (Filipinas Broadcasting v. Ago Medical,
G.R.No. 141994, January 17, 2005).
Exception: Unless the corporation enjoyed
good reputation that the offender debased and
besmirched.
� An appeal in a criminal case opens the
whole case for review and this 'includes
the review of the penalty, indemnity and
damages. Even if the offended party
had not appealed from said award, and
the only party who sought a review of
the decision of said court was the
accused, the court can increase
434 Center for Legal Education and Research
damages awarded (Sumalpong v. CA, G.R.
No. 123404, 1997).
c. NOMINAL DAMAGES
Nominal damages are adjudicated in order that
a right of the plaintiff, which has been violated
or invaded by the defendant, may be vindicated
or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered
by him. (Art. 2221, NCC)
When awarded: The court may award nominal
damages in every obligation arising from any
source enumerated in Article 1157, or in every
case where any property right has been invaded
(Art. 2222, NCC). Award of nominal damages is in
lieu of actual, moral, temperate or liquidated
damages.
Purpose of nominal damages
In order that a right of the plaintiff which has
been violated or invaded by the defendant may
be vindicated or recognized, and not for the
purpose of indemnifying the plaintiff for any loss
suffered by him (Art. 2221, NCC).
� Nominal damages cannot co-exist with
compensatory damages. Nominal damages
are adjusted in order that a right of the
plaintiff, which has been violated or invaded
by the defendant, may be vindicated or
recognized, and not for the purpose of
indemnifying the plaintiff for any loss
suffered by him (LRTA v. Navidad, G.R. No.
145804, February 6, 2003).
Elements:
1. There exists a right of plaintiff;
2. The resulting damage must not be capable
of pecuniary estimation;
3. There is a violation of such right; and
4. The purpose of the award is not to
indemnify but to vindicate or recognize right
violated.
� The adjudication of nominal damages
shall preclude further contest upon the
right involved and all accessory
questions. (Art. 2223, NCC)
 Purple Notes
� No proof of pecuniary loss is likewise
necessary in order that moral, nominal,
temperate, liquidated or exemplary
damages may be adjudicated, and it is
quite enough that proof of damage or
injury is adduced (People of the Philippines
v. Dianos G.R. No. 119311 October 7, 1998).
d. TEMPERATE OR MODERATE DAMAGES
These are damages, which are more than
nominal but less than compensatory, and may
be recovered when the court finds that some
pecuniary loss has been suffered, but its amount
cannot be proved with certainty (Art. 2224, NCC).
These are damages the amount of which is left
to the sound discretion of the court (Pineda, Torts
and Damages, 2004, p. 224).
e. LIQUIDATED DAMAGES
Liquidated damages are those agreed upon by
the parties to a contract, to be paid in case of
breach thereof (Art. 2226, NCC). It cannot co-
exist with actual damages (Art. 2226, NCC)
Liquidated damages, whether intended as an
indemnity or a penalty, shall be equitably
reduced if they are iniquitous or unconscionable.
(Art 2227, NCC)
It is necessary that there be a contract the
violation of which gives rise to the liquidated
damages stipulated upon (Pineda, Torts and
Damages, 2004, p. 232 ).
Rules governing in case of breach of
contract:
Interest recoverable for damages in a breach of
contract is left to the discretion of the court. It is
computed not from the date of filing of the
complaint but from the date the judgment of the
trial court is rendered (De Leon, Torts and
Damages, 2010, p. 669).
f. EXEMPLARY OR CORRECTIVE DAMAGES
Imposed by way of example of correction for
public good in addition to the moral, temperate,
2018
Civil Law
liquidated or compensatory damages. (Art.
2229, NCC)
Exemplary damages are required by public
policy, for wanton acts must be suppressed.
They are mere additions to actual, moral,
temperate and liquidated damages which may or
may not be granted at all depending upon the
necessity of setting an example for the public
good as a form of deterrent to the repetition of
the same act by any one (Pineda, Torts and
Damages, 2004, p. 234).
3. WHEN DAMAGES MAY BE RECOVERED
a. Actual Damages may be recovered
when the aggrieved party‘s property,
business, trade, profession, or
occupation suffered pecuniary loss.
There must be competent proof of
actual amount of loss to justify actual
damages. Credence can be given only to
claims which are duly supported by
receipts (People v. Guillermo, G.R. No.
113787. January 28, 1999).
b. Moral damages can be awarded if the
cases file fall within article 2219 and
article 2220 of the civil code. It must be
established that the act or omission of
the defendant is the proximate cause of
the damage or injury suffered by the
plaintiff (Pineda, Torts and Damages,
2004). It is not enough that injuries have
arisen; it is essential that they have
sprung from a wrongful act, omission,
fraud, malice, or bad faith which was
the proximate cause thereof (Guita v. CA,
G.R. No. L-60409, November 11, 1985).
c. Nominal damages for the vindication of a
right violated cannot be awarded together
with compensatory damages. Where the
court has already awarded compensatory
and exemplary damages, that is already a
juridical recognition that plaintiff‘s right was
violated. The award of actual, moral,
temperate or moderate damages precludes
damages. Nominal Damages may be
awarded together attorney‘s fees (Pineda,
Torts and Damages, 2004, p. 225).
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 Purple Notes
Civil Law
d. Temperate damages may be recovered
when the court finds that some
pecuniary loss has been suffered but the
loss is incapable of pecuniary estimation
and that such award is reasonable
(Article 2224-2225, NCC).
e. Exemplary Damages may be recovered
in criminal offenses (Art. 2230, NCC); In
quasi-delicts (Art. 2231, NCC) or ; In
contracts and quasi-contracts (Art.
2232, NCC)
It is for the court to decide
whether or not they should be
adjudicated. (Art. 2233, NCC) Claimant
must prove that he is entitled to moral,
temperate or compensatory damages
even if liquidated damages have been
agreed on in order that exemplary
damages may be awarded. (Art. 2234,
NCC)
B. DAMAGES IN CASE OF DEATH
The law requires payment of P3,000.00 to the
heirs of the deceased. The fixed amount of
three thousand pesos is in addition to any
damage that may have resulted because of the
act or omission of the defendant including
medical expenses and loss of earning capacity.
It should be noted, however that the SC had
repeatedly increased the amount of indemnity
from three thousand pesos in order to reflect
the current value of currency and prevailing
inflation. The current amount of fixed damages
as increased by the Court is P75, 000.00 (People
v. Buyagan, G.R. No. 187733, February 8, 2012).
Death indemnity was granted by the court in the
amount of P50,000 for the death of the
passengers. (Sulpicio Lines, Inc. v. Curso, et al.,
G.R. No. 157009, March 17, 2010)
� The plaintiff is entitled to the amount that
he spent during the wake and funeral of
the deceased. However, it has been ruled
that expenses after the burial are not
compensable Sulpicio Lines, Inc. v. Curso, et
al., G.R. No. 157009, March 17, 2010).
436 Center for Legal Education and Research
DAMAGES IN CASE OF DEATH
1. Moral damages
2. Exemplary damages
3. Attorney's fees and expenses for litigation
4. Indemnity for death
5. Indemnity for loss of earning capacity
6. Interest in proper cases (People v. Tolentino,
G.R. No. 176385, February 26, 2008).
C. GRADUATION OF DAMAGES
1. DUTY OF INJURED PARTY
Doctrine of avoidable consequences
The party suffering loss or injury must exercise
the diligence of a good father of a family to
minimize the damages resulting from the act or
omission in question. (Art. 2203, NCC)
The injured party is obligated to undertake
measures that will alleviate and not aggravate
his condition after the infliction of the injury, and
places upon him the burden of explaining why
he could not do so (Velasco v. MERALCO, GR No. L-
18390, August 6, 1971).
In one case, the Supreme Court lessened the
damages to be awarded on the ground of
petitioner‘s passivity in the face of the damage
caused to him by the noise of the substation.
Realizing as a physician that the noise was
disturbing or depriving him of sleep and
affecting both his physical and mental well-
being, he did not take any steps to bring action
to abate the nuisance or remove himself from
the affected area as soon as the deleterious
effects became noticeable. To evade them,
petitioner did not even have to sell his house; he
could have leased it and rented other premises
for sleeping and maintaining his office and thus
preserve his health as ordinary prudence
demanded. Instead he obstinately stayed until
his health became gravely affected, apparently
hoping that he would thereby saddle the
defendant with large damages (Velasco v.
MERALCO, GR No. L-18390, August 6, 1971).
It is a well-recognized principle of law that
damages resulting from avoidable consequences
of the breach of a contract or other legal duty
are not recoverable. It is the duty of one injured
by the unlawful act of another to take such
 Purple Notes
measures as prudent men usually take under
such circumstances to reduce the damages as
much as possible (Cerrano v. Tan Chuco, GR No.
12907, August 1, 1918).
Note: The existence of duty to minimize
damages by the injured party is NOT presumed.
The defendant has the burden to show
satisfactorily not only that the injured party
could have mitigated his damages but also the
amount thereof. If he fails in this regard, the
amount of damages cannot be proportionately
reduced (Lemoine v. Alkan, GR No. 10422, January
11, 1916).
The burden of proof rests upon the defendant to
show that the plaintiff might have reduced the
damages (Cerrano v. Tan Chuco, GR No. 12907,
August 1, 1918).
A discharged employee is under a continuous
obligation to use reasonable diligence to obtain
other suitable employment (Garcia v. Hotel de
France Co., GR No. L-15878, January 11, 1922).
The right of an employee to reinstatement after
an unlawful dismissal does not permit him or her
to stand idly by for a long time while awaiting
the settlement of the issue. Concomitant with
the right to be taken back is the obligation of
the dismissed employee or worker to endeavor
to secure gainful employment elsewhere. The
foundation of such a rule is the principle of no
work, no pay (Lina v. Purisima, GR No. L-39380,
April 14, 1978).
Where the injured party left the damaged
passenger jeepney by the roadside to corrode
and decay, the defendant should not be held
liable for the damages caused thereby (Lim v. CA,
GR No. 125817, January 16, 2002).
Whereas a consequence of the refusal of the
injured party to submit to an operation, a series
of infections ensued and which required
constant and expensive medical treatment for
several years, the defendant should not be
charged with the expenses (Lasam v. Smith, GR
No. L-19495, February 2, 1924).
2018
Civil Law
2. Rules in graduation of damages
A. Rules in graduation of damages in
crimes
In crimes, the damages to be adjudicated may
be respectively increased or lessened according
to the aggravating or mitigating circumstances.
(Art. 2204, NCC)
Mitigating circumstances, when present in the
commission of a crime, serve to reduce the
penalty imposed by law, while aggravating
circumstances serve to increase the penalty (De
Leon, Comments and Cases on Torts and Damages,
2004, p. 603).
In one case, the award of moral damages was
reduced because there was no aggravating
circumstance but there were three mitigating
circumstances (People v. Ruiz, GR No. L-33609,
December 14, 1981).
B. Reduction of damages in contracts,
quasi-contracts and quasi-delicts
The court can equitably mitigate the damages in
contracts, quasi-contracts and quasi-delicts in
the following instances, other than in Art. 2214:
1) That the plaintiff himself has contravened
the terms of the contract;
2) That the plaintiff has derived some benefit
as a result of the contract;
3) In cases where exemplary damages are to
be awarded, that the defendant acted
upon the advice of counsel;
4) That the loss would have resulted in any
event; and
5) That since the filing of the action, the
defendant has done his best to lessen the
plaintiff‘s loss or injury. (Art. 2215, NCC)
NOTE: The enumeration in Article 2215 is not
exclusive.
This is evident from the use of the phrase ―as in
the following instances‖ in the provision. This
means that the courts, in the exercise of
discretion, may mitigate the damages
recoverable in other cases when the
circumstances of the case so warrant (Comments
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 Purple Notes
Civil Law
and Cases on Torts and Damages, De Leon, 2004, p.
672) .

In quasi-delict, the contributory negligence of

the plaintiff shall reduce the damages he may
recover. (Art. 2214, NCC)
Remember that if the plaintiff‘s negligence is
merely contributory, the plaintiff is not barred
from recovering from the defendant (See Art.
2179, NCC).

Note: The contributory negligence referred to in

Art. 2214 NCC is negligence of the plaintiff
which merely contributes to his injury. Where
he contributes to the principal occurrence as one
of its determining factors, he cannot recover
(Rakes v. Atlantic Gulf & Pacific Co., GR No. 1719,
January 23, 190

C. Reduction of damages in liquidated

damages

General Rule: The assessment of damages,

except liquidated ones, is left to the
discretion of the court, according to the
circumstances of each case (Art. 2216, NCC).

Exception: Liquidated damages, whether

intended as an indemnity or a penalty, shall be
equitably reduced if they are iniquitous or
unconscionable (Art. 2227, NCC).

NOTE: While under the NCC, penalties (Art.

1229, NCC) and liquidated damages (Art. 2227)
are dealt with separately, nevertheless, the
fundamental rules governing them still remain
basically the same, making them subject to
reduction where equity so requires (Joe‘s Radio &
Electrical Supply v. Alto Electronics Corporation, GR
No. L-12376, August 22, 1958).

D. Reduction of damages in compromise

The courts may mitigate the damages to be paid
by the losing party who has shown a sincere
desire for a compromise (Art. 2031, NCC).

HAIL TO THE CHIEFS!

438 Center for Legal Education and Research

Purple Notes 2018
Civil Law

Bar Operations C ommissions 439