POWER NOTES diamond ring to Ric’s wife as a token of her love.
CIVIL LAW When Maria died, Ric’s wife immediately claims the
RONEY JONE P. GANDEZA
Professor, University of the Cordilleras
Gov. Pack Road, Baguio City
Unit 10 2ND Floor BBCCC Bldg.
No. 56 Assumption Road, Baguio City
gandezalaw@yahoo.com
QUESTION NO. 1
Abe gave Bea an engagement ring. Shortly before
their wedding, however, Abe was killed in a car
accident. Abe’s estate now brings an action to recover
the ring. How would a court rule?
I qualify my answer.
If Abe gave the ring to Bea in consideration of their
marriage, the gift is similar to a donation propter nuptias
which may be revoked on the ground of non-
celebration of the marriage under Article 86(1) of the
Family Code. The action to recover the ring prevails.
If Abe gave the ring to Bea because of his love for her,
the ring may be recovered if its value exceeds
Php5,000. This is so because of the rule that if the value
of the movable donated exceeds Php5,000, the
donation as well as the acceptance must be in writing
to be valid. (Art. 748, Civil Code) Here, there is no
showing that Abe gave the ring to Bea in writing. The
action to recover the ring also prevails.
If the value of the ring does not exceed Php5,000, the
donation and the acceptance need not be in writing to
be valid. Under Article 748 of the Civil Code, an oral
donation of this kind is valid if there is simultaneous
delivery. The action to recover the ring fails.
QUESTION NO. 2
Ric received a handwritten letter from his mother
(Maria) in which she expressed a desire to give her
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ring. Will she prevail?
No. Every will must convey clearly the intention of the
testator to dispose of his property after his death. (Art.
783, Civil Code) Here, Maria’s letter is merely an
expression of an intention to make a gift mortis causa
and, as the wishes Maria had not been carried out in a
will, the letter would have no legal effect upon the
distribution of her estate.
Maria’s letter does not even have the effect of a valid
donation inter vivos because there is no showing that
the donation was accepted by the donee during the
donor’s lifetime; neither is there any showing that the
donor during her lifetime came to know of the
acceptance. (Art. 748, Civil Code)
DOCTRINE: There is no law requiring that the spouse
to be declared psychologically incapacitated be
examined by a physician. But this is qualified by the
phrase, “if the totality of evidence presented is enough
to sustain a finding of psychological incapacity.” In
short, the psychologist’s findings must still be
subjected to a careful and serious examination as to its
basis, particularly the sources of information and
methods used. (Garlet v. Garlet, G.R. No. 193544,
August 2, 2017)
QUESTION NO. 3
Marissa, a Filipina entertainer, married Shintaro, a
Japanese businessman, in 2005 in Manila. After ten
years of marriage and two children, Marissa divorced
Shintaro under a decree issued by a Japanese court.
She now consults on you on whether the divorce
decree may be judicially recognized in the
Philippines. Is that even possible?
Yes. Paragraph 2 of Artilce 26 of the Family Code
speaks of “a divorce validly obtained abroad by the alien
spouse capacitating him or her to remarry.” Based on a
plain reading of this provision, it only requires that
there be a divorce validly obtained abroad. The letter
of the law does not demand that the alien spouse
should be the one who initiated the proceeding under
which the divorce decree was granted. It does not
distinguish whether the Filipino spouse is the
petitioner or the respondent in the foreign divorce
proceeding.
Even assuming that the word “obtained” should be
interpreted to mean that the divorce proceeding must
be actually initiated by the alien spouse, still, a
Philippine court will not follow the letter of the law
when to do so would depart from the true intent of the
legislature or would otherwise yield conclusions
inconsistent with the general purpose of the
act. (Republic v. Manalo, G.R. No. 221029, April 24, 2018)
DOCTRINE: Paragraph 2 of Article 26 of the Family
Code aims to avoid the absurd situation where the
Filipino spouse remains married to the alien spouse
who, after a foreign divorce decree that is effective in
the country where it was rendered, is no longer
married to the Filipino spouse.
Whether the Filipino spouse initiated the foreign
divorce proceeding or not, a favorable decree
dissolving the marriage bond and capacitating his or
her alien spouse to remarry will have the same result:
the Filipino spouse will effectively be without a
husband or wife. Therefore, the provision should not
make a distinction. In both instances, it is extended as
a means to recognize the residual effect of the foreign
divorce decree on Filipinos whose marital ties to their
alien spouses are severed by operations of of the
latter's national law. (Republic v. Manalo, G.R. No.
221029, April 24, 2018)
QUESTION NO. 4
Hanz, a German, married Greta, a Filipina nurse, in
Berlin. When their relationship soured, Hanz
divorced Greta. The divorce decree issued by a Berlin
court awarded custody of the couple’s minor children
to Hanz. This decision has since become final.
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When she arrived home in the Philippines, Greta
immediately petitioned the court to nullify her
marriage to Hanz under Article 36 of the Family
Code. More important, she prayed that she be given
custody of her minor children. Hanz moved to
dismiss the case on the basis that a divorce decree had
already been issued. The court granted this motion.
Greta moved to reconsider the dismissal order
insisting that her petition should proceed to
determine the issue of custody of the children. How
would a court rule?
Judgment for Greta. Divorce decrees obtained by
foreigners in other countries are recognized in our
jurisdiction. But the legal effects of such decrees must
still be determined by our courts.
Before our courts can give the effect of res judicata to a
foreign judgment, it must be shown that the parties to
the judgment had been given ample opportunity to do
so.
Here, it cannot be said that Greta was given the
opportunity to challenge the judgment of the Berlin
court. The court should therefore set the case for trial
to determine the issue of parental custody, care,
support and education of the children. (Roehr v.
Rodriguez, G.R. No. 142820, June 20, 2003)
DOCTRINE: If one spouse is incapacitated or is
otherwise unable to participate in the administration of
the conjugal properties, the other spouse may assume
sole powers of administration. These powers do not
include disposition or encumbrance without authority
of the court or without the written consent of the other
spouse. In the absence of such authority or consent, the
disposition or encumbrance is void. (Alejo v. Cortez,
G.R. No. 206114, June 19, 2017)
QUESTION NO. 5
Norma, a Filipina nurse, and Ernst, a Dutch doctor,
divorced after a six-year marriage. At that time, their
son, Roben, was only an infant. Heartbroken by the
failure of her marriage, Norma and her son came
home to the Philippines. Ernst followed suit after a
few months and remarried in Cebu where he has
since resided.
The problem arose when Ernst ignored Norma’s
demands for him to support their son. As a result,
Norma brought a criminal complaint against him for
violation of RA No. 9262. Ernst promptly moved to
dismiss the complaint on the basis that, under Dutch
law, he is not obliged to support his son. Should the
complaint be dismissed?
No. Ernst is correct in saying that he is subject to the
laws of his country, not to Philippine law, on whether
he is obliged to give support to his child, and the
consequences of his failure to do so. But in
international law, the party who wants to have a
foreign law applied to a dispute or case has the burden
of proving the foreign law. Here, Ernst hastily
concludes that being a Dutch national, he is governed
by his country’s laws on the matter of child support.
Here, Ernst has pleaded the laws of his country in
claiming that he is not obliged to support his son, but
he never proved it. With his failure to prove his
national law, the doctrine of processual presumption
applies. Under this doctrine, if the foreign law
involved is not properly pleaded and proved, our
courts will presume that the foreign law is the same as
our internal law.
Although Ernst’s national law states that parents have
no obligation to support their children or that such
obligation is not punishable by law, that national
would still not find applicability because when the
foreign law, judgment, or contract is contrary to a
sound and established public policy of the forum, the
foreign law, judgment or order will still not be applied.
(Wilsem v. Wilsem, G.R. No. 193707, December 10, 2014)
QUESTION NO. 6
Sumi, a Japanese, married Maria, a Filipina, in
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Manila. Because the marriage did not sit well with
Sumi’s parents, Sumi failed to bring Maria to Japan
where he resides. The couple then stopped
communicating with each other.
Three years later, Maria married Takuza, another
Japanese national. Unlike in Sumi’s case, Takuza
was able to bring Maria to Japan. The following year,
however, Maria left Takuza and renewed her
relationship with Sumi.
Sumi helped Maria obtain a judgment from a court
in Japan nullifyig her marriage to Takuza on the
ground of bigamy. Sumi also petitioned a Philippine
court for “Judicial Recognition of Foreign Judgment
or Decree of Absolute Nullity of Marriage.”
a. Is the Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable
Marriages under A.M. No. 02-11-10-SC applicable to
Sumi’s petition?
No. The Rule on Declaration of Absolute Nullity of
Void Marriages and Annulment of Voidable Marriages
under A.M. No. 02-11-10-SC does not apply in a
petition to recognize a foreign judgment relating to the
status of a marriage where one of the parties to the
marriage is a citizen of a foreign country. The rule
under the circular that only the husband or the wife
can file a declaration of nullity or annulment of
marriage “does not apply if the reason behind the
petition is bigamy.”
b. Does Sumi have standing to file the petition to
recognize a foreign judgment that will nullify a
subsequent marriage on the ground of bigamy?
Yes. The recognition of the foreign divorce decree may
be made in a Rule 108 proceeding itself, as the object of
special proceedings (such Rule 108) is precisely to
establish the status or right of a party or a particular
fact. There is no doubt that as the prior spouse, Sumi
has a personal interest in maintaining the integrity of
the marriage he contracted with Maria and the
property relations arising from it. (Fujiki v. Marinay,
G.R. No. 196049, June 26, 2013)
QUESTION NO. 7
Abe sold to Ben a condo unit in Baguio City. At the
behest of Ben, the sale made it appear that the price
was paid by Conrad, Ben’s eldest child. Ben died last
week. His other children now want to recover the
ownership of the condo unit. They argue that Conrad
was merely holding the property as a trustee of their
father. Will they succeed?
Yes, but only to the extent of preserving their rights to
their respective legitimes. Conrad is entitled to retain
his own share as Ben’s heir. The planned action will
succeed because there is a presumed donation in favor
of Conrad under Article 1448 of the Civil Code. Under
this provision, if the person to whom the title is
conveyed is a child of the one paying the price of the
sale, no trust is implied by law, it being disputably
presumed that there is a gift in favor of the child.
DOCTRINE: It is mandatory that the mother of an
illegitimate child signs the birth certificate of her child,
irrespective of whether the father recognizes the child
as his or not. The only legally known parent of an
illegitimate child is the mother of the child who
conclusively carries the blood of the mother. This
provision ensures that individuals are not falsely
named as parents. (Barcelote v. v. Republic, G.R. No.
222095, August 7, 2017)
QUESTION NO. 8
Donor donated to Donee a property if Donee builds
on the property a library within two years. Five years
later, Donor, with notice to Donee, sold the property
to a third person. At that time, Donee has not yet built
a library on the property. Is the sale a revocation of
the donation?
No. A formal action in court to revoke the donation
must be filed by Donor under Article 764 of the Civil
Code which speaks of an action that prescribes in four
years from non-compliance with the condition stated
in the donation.
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The rule that there can be automatic revocation
without the benefit of a court action does not apply in
this case because the donation is devoid of any
provision providing for automatic revocation if there
is non-compliance with the stipulated condition.
QUESTION NO. 9
Abe agrees to paint Rey’s house in a month. They also
agree that Abe has to pay a penalty of Php10,000 if he
fails to comply with his obligation. Before Abe could
start painting Rey’s house, he learns that Ben wanted
his services for a higher amount. Abe now goes to
Rey and tells him that he will not be able to paint his
house. He offers to pay Rey the penalty of Php10,000.
Is Abe allowed to pay the penalty?
Yes, but only if Abe had expressly reserved the right.
Article 1227 of the Civil Code provides that the debtor
cannot exempt himself from the performance of the
obligation by paying the penalty, unless the right has
been expressly reserved for him.
QUESTION NO. 10
Rey properly executes a notarial will. Assume the
following clauses in his will and the following
events. Discuss each situation and the legal effects of
the events on the testamentary provisions.
a) Rey’s will states, “I leave my white Mitsubishi
Montero with Plate No. AFB 346 to Abe.” At the time
of Rey’s death, Abe has already died, leaving his son,
Zandro.
Abe’s legacy is voided because he had predeceased
Rey. As a result, the property given to Abe devolves to
Rey’s heirs in intestacy. Zandro has no right to the
property because a voluntary heir who dies before the
testator transmits nothing to his heirs. (par. 1, Art. 856,
Civil Code)
b) Rey’s will states, “I leave to Abe my white
Mitsubishi Montero with Plate No. AFB 346.” Just
before his death, Rey sold the Montero.
The sale of the property constitutes a revocation of the
legacy. The law grants Rey the right to revoke because
of the ambulatory character of a will. Abe has no right
to question the sale because the right of an instituted
heir or legatee or devisee to the inheritance is merely
inchoate. (Art. 777, Civil Code)
QUESTION NO. 11
Bruno, an Austrian, married Belinda, a Filipina, in
Cebu. During their marriage, Bruno acquired
properties in Cebu with the money he inherited from
his parents. Bruno died last week survived by his
wife, Belinda; two legitimate children (Bea and
Carol); and an illegitimate child (Dina). Assume that
Austrian law does not allow an illegitimate child to
inherit. Is Dina allowed to inherit from Bruno’s estate
under Philippine law?
No. Dina’s capacity to inherit from her father is
determined not by Philippine law where the properties
are situated, but by Austrian law under which
illegitimate children are not allowed to inherit.
QUESTION NO. 12
When he was still a bachelor, Abe properly executed
a will naming his mother as sole heir to an estate
valued at Php1 million. A few years later, Abe
marries Bea. If Abe dies while married to Bea and
without changing his will, would Abe’s entire estate
go to his mother?
No. Article 889 of the Civil Code says that the legitime
of legitimate parents consists of one-half of the
hereditary estates of their children and descendants.
Under Article 893, if the testator leaves no legitimate
descendants, but leaves legitimate ascendants, the
surviving spouse has a right to one-fourth of the
5
hereditary estate which is to be taken from the free
portion.
Applying these provisions, Abe’s mother is entitled to
a legitime of Php500,000, while Bea is entitled to a
legitime of Php250,000 which is to be taken from the
free portion. The remainder of the estate (Php250,000)
makes up the disposable portion which goes to Abe’s
mother as instituted heir.
QUESTION NO. 13
Vic owns a house at Greenhills Subdivision. His
house is beside a park which is owned by the
Greenhills Association. He has an access door which
opens directly into the park. Last month, the
association started constructing a pavilion beside
Vic’s house. The construction includes a toilet which
is being built alongside the wall separating Vic’s
house and the park.
Vic objects to the construction. He alleges that, for the
past 33 years, he had an open, continuous, and
unhampered access to the park through his access
door and that the construction violates his access to
the park. He claims that the toilet is a nuisance per se
that must be abated immediately.
Through a recent ocular inspection, the HLURB
found that the construction blocked Vic’s access to
the park. As a result, it ordered the removal of the
pavilion and the relocation of the toilet which will
not be a nuisance to any resident.
a, Did HLURB properly classify the toilet as a
nuisance per accidens?
No. A nuisance per accidens is one which depends upon
certain conditions and circumstances. Its existence
being a question of fact, it cannot be abated without
hearing in a tribunal authorized to decide whether
such a thing or act constitutes a nuisance. It requires a
determination of such circumstances as to warrant the
abatement of the nuisance. That can only be done with
reasonable notice to the other party alleged to be
maintaining or doing the same thing or act of the time
and place of hearing before a tribunal authorized to
decide whether such a thing or act constitute a
nuisance per accidens. HLURB’s decision would easily
reveal that its conclusions were merely speculative.
b. Has Vic acquired an easement of right of way over
the park?
No. Vic’s unbridled access to the park effectively
constituted an easement of right of way, without any
basis, as against the clear statutory right of the
association as the owner of the park, to fence and
protect its property.
Under the Civil Code, Greenhills Association, as owner
of the park, has the right to enclose or fence his land or
tenements by means of walls, ditches, live or dead
hedges, or by any other means without detriment to
servitudes constituted thereon. It also has a right to
exclude others from access to, and enjoyment of its
property.
The association's legal right to block the access door is
beyond doubt. Courts have no business in securing the
access of a person to another property absent any clear
right on the part of the latter. (North Greenhills
Association, Inc. v. Atty. Morales, G.R. No. 222821,
August 9, 2017)
QUESTION NO. 14
Ben bought a registered piece of land from Simon.
He immediately took possession of the property and
employed a caretaker to harvest the fruits of the
mango trees on the property. A years later, he allowed
Pedro, a relative, to occupy a portion of the property.
Their good relationship ended when Pedro started to
harass the persons hired by Ben to spray the mango
trees with chemical fruit inducers. Ben promptly
filed a complaint for ejectment against Pedro. Pedro
in turn filed a complaint for quieting of title against
Ben, claiming absolute ownership over the property
citing a prior but unregistered notarized donation
6
executed in his favor by Simon. Will the action
prosper?
No. While it is true that a valid donation was executed
in Pedro’s favor even before the sale, Ben is the rightful
owner of the property. The prior unregistered
donation does not bind Ben, who is an innocent
purchaser for value who had no actual knowledge of
the prior donation.
Under Article 709 of the Civil Code, all rights over
immovable property must be duly inscribed on the
Registry of Deeds before they can affect the rights of
third persons. This rule is enunciated in PD 1529,
specifically Section 51, which provides that “the act of
registration shall be the operative act to convey or
affect the land insofar as third persons are concerned.
As between the parties to a donation of an immovable
property, all that is required is for the donation to be
contained in a public document. Registration is not
necessary for it to be considered valid. But to bind third
persons, the donation must be registered in the
Registry of Land Titles and Deeds. Although the non-
registration of a deed of donation will not affect its
validity, the necessity of registration comes into play
when the rights of third persons are affected. (Sps.
Cano-Aquino v. Sps. Cano, G.R. No. 188666, December
14, 2017)
DOCTRINE: An action for reconveyance of a parcel of
land based on implied or constructive trust prescribes
in ten years, the point of reference being the date of
registration of the deed or the date of the issuance of
the certificate of title over the property.
But an action for reconveyance is converted into one
for quieting of title despite the lapse of more than ten
years from the issuance of title if the plaintiff is in
possession of the property. (Ocampo v. Ocampo, G.R.
No. 227894, July 5, 2017)
QUESTION NO. 15
Jim obtained a loan from the bank where he worked
to buy a house. To secure payment of his loan, he
mortgaged the house to the bank.
For five years, the bank regularly deducted Jim’s
monthly loan amortizations from his salary. But the
monthly payments stopped when the bank
dismissed him for gross misconduct. The notice
dismissing him contained a demand for the full
payment of his outstanding loan.
When Jim failed to pay his outstanding loan, the
bank immediately filed a petition to foreclose the
mortgage on his house. Jim promptly opposed the
foreclosure for being premature. He claimed that his
obligation has not yet become due because of his
right to a grace period under the Maceda Law to pay
his unpaid monthly amortizations. Is Jim correct?
No. Jim’s argument would have been correct if the
monthly amortizations being paid to the bank arose
from a sale or financing of real estate. In his case,
however, the monthly amortizations represented the
installment payments of a housing loan that the bank
had extended to him as an employee’s benefit. The
monthly amortizations he was liable for was derived
from a loan transaction, not a sale transaction, thereby
giving rise to a lender-borrower relationship between
Jim and the bank.
The Maceda Law (RA 6552) aims to protect buyers of
real estate on installment payments, not borrowers or
mortgagors who obtains a housing loan to pay the
costs of their purchase of real estate and uses the real
estate as security for the loan. The “financing of real
estate in installment payments” referred to in RA 6552
should be construed only as a mode of payment vis-à-
vis the seller of the real estate, and excluded the
concept of bank financing that was a type of loan.
Accordingly, RA 6552 must be read as to grant certain
rights only to defaulting buyers of real estate on
installment, which rights are properly demandable
only against the seller of real estate. (Sps. Sebastian v.
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BPI Family Bank, Inc., G.R. No. 160107, October 22,
2014)
QUESTION NO. 16
Bea, a Filipina nurse, married Goku, a Japanese
national, in 2001. The couple’s marriage ended when
Goku divorced Bea the following year through a
divorce decree issued by a Japanese court. Believing
in good faith that the divorce decree capacitated her
to remarry, Bea married another Japanese, Masatomi,
in 2004.
Bea’s problem arose when she applied for the
renewal of her Philippine passport to indicate her
surname with her new husband. The DFA refused to
do so until she can prove by competent court decision
that her marriage with Masatomi is valid.
Undaunted, Bea filed with the RTC a petition for
declaratory relief praying that her marriage with
Masatomi be declared as valid and to order the DFA
to issue her Philippine passport. How should the
court rule?
Petition denied. Bea should have filed, instead, a
petition for the judicial recognition of her foreign
divorce from her first husband. A divorce obtained
abroad by an alien may be recognized in our
jurisdiction if the decree is valid according to the
national law of the foreigner. The presentation solely
of the divorce decree is insufficient; both the divorce
decree and the governing personal law of the alien
spouse who obtained the divorce must be proven.
Because our courts do not take judicial notice of foreign
laws and judgments, our law on evidence requires that
both the divorce decree and the national law of the
alien must be alleged and proven and like any other
fact.
While a petition for authority to remarry filed before a
trial court actually constitutes a petition for declaratory
relief, Bea’s petition should still be dismissed because
there appears to be insufficient evidence presented of
both the national law of her first husband, Goku, and
of the validity of the divorce decree under that national
law. Therefore, any declaration as to the validity of the
divorce can only be made upon her complete
submission of evidence proving the divorce decree and
the national law of her alien spouse, in an action
instituted in the proper forum. (Ando v. DFA, G.R. No.
195432, August 27, 2014)
QUESTION NO. 17
Abe, Ben, and Carl are co-owners of a registered land.
Abe sells his share to Dave. A few months later, Ben
sells his share to Eric.
a. Is Dave entitled to redeem Ben’s share?
Yes, because the right of legal redemption is not
limited to the original co-owners. What matters is that
Dave was already a co-owner when another co-owner
(Ben) sold his undivided share.
b. Suppose Ben has donated his share to Eric, may
Carl and Dave redeem Ben’s share?
No. The right of legal redemption may be exercised
only if the share of a co-owner is alienated to a third
person by onerous title. (Art. 1620, Civil Code) Because
Ben’s conveyance to Eric was not by onerous title but
by gratuitous title, Carl and Dave are not entitled to
redeem.
c. Suppose Ben has sold his share to Dave, may Carl
redeem?
No. The right of legal redemption may be exercised
only if the share of a co-owner is alienated to a third
person by onerous title. This right of legal redemption
is not available here because the buyer is himself a co-
owner. The reason behind the right of legal redemption
among co-owners is to reduce the number of co-
owners and avoid the entry of strangers into the co-
ownership. If the alienation is in favor of a co-owner,
the number of co-owners is already reduced and no
stranger has entered the co-ownership.
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QUESTION NO. 18
In the following situations, two parties lay claim to
the same goods sold. Discuss which of the parties
would prevail in each situation.
a. Abe steals Rey’s television set and sells it to Larry,
an innocent purchaser for value. Rey learns Larry has
the set and demands its return.
Rey is entitled to the return of the set even without
reimbursement because he had been unlawfully
deprived of it. Possession of a movable, even if
acquired in good faith, is not equivalent to title when
the true owner had lost it or had been unlawfully
deprived of it, unless the possessor had acquired it in
good faith at a public sale. (Art. 559, Civil Code)
Here, Larry’s acquisition of the set was not at a public
sale. His possession of the set, even if acquired in good
faith, is never equivalent to title
b. Rey takes his television set for repair to Abe who
sells new and used television sets. By accident, one of
Abe’s employees sells the set to Larry, an innocent
purchaser for value, who takes possession. Rey wants
his set back from Larry.
Rey can no longer recover the set, even if he offers
reimbursement. An owner of a movable who had lost
it or had been unlawfully deprived of it can no longer
recover the movable even with reimbursement if the
possessor had acquired the property in good faith by
purchase from a merchant’s stores, or in fairs. Since
Larry acquired the set from a merchant’s store, his
possession of the set amounts to a valid title.
QUESTION NO. 19
Amy married Ben in 2007. Amy is an actress and Ben
a businessman. In 2014, Amy figured that, even
before their marriage Ben and his family were
notoriously involved in a networking scam. This fact
was not disclosed to her at the time of the marriage.
Amy feels cheated and thinks that this can affect her
public image. Does she have a remedy?
Amy has no remedy because Ben’s concealment of his
involvement in a networking scam does not constitute
fraud that would annul the marriage. To annul a
marriage on the ground of fraud, only the
circumstances enumerated under Article 46 of the
Family Code constitute fraud. No other
misrepresentation or deceit as to character, rank,
fortune or chastity will constitute such fraud as will
give grounds for the annulment of marriage. Ben’s
involvement in a scam, although concealed, may
constitute misrepresentation as to his character, but
which would not annul the marriage.
QUESTION NO. 20
SM engaged Ben, a contractor, for the repainting of
all SM malls nationwide. The contract expressly
provided that Ben would use only “paint
manufactured and supplied by Boysen Paints.” Ben
used another paint brand. May Boysen Paints sue
Ben for damages?
No. Boysen Paints was named in the contract merely as
an incidental beneficiary. If a contract should contain
some stipulation in favor of a third person, he may
demand its fulfilment if he communicated his
acceptance to the obligor before its revocation. A mere
incidental benefit or interest of a person is not
sufficient. The contracting parties must have clearly
and deliberately conferred a favor upon a third person.
(par. 2, Art. 1311, Civil Code)
QUESTION NO. 21
BPI issued a credit card to William. Their credit
agreement stated that 3.5% finance charge and 6%
late payment charge are imposable monthly upon
unpaid credit availments.
William purchased items on several occasions using
his card, but he was remiss in his payment obligation.
9
He owed BPI Php533,000. Despite repeated demands,
William failed to pay BPI prompting the bank to file
a complaint for sum of money. William failed to file
a timely Answer, he only filed one more than three
months after the deadline for doing so. The court
declared William in default and found for BPI. The
award to BPI included the 3.5% finance charge and
6% late payment charge. What would be William’s
best argument in appealing the decision?
William’s best argument would be to question the
excessive and unconscionable interest and penalty.
While Central Bank Circular No. 905-82, which took
effect on January 1, 1983, effectively removed the
ceiling on interest rates, nothing in the circular could
possibly be read as granting a blanket authority to
lenders to raise interest rates to levels which would
either enslave their borrowers or lead to a
hemorrhaging of their assets. Because the stipulation
on the interest rate is void, it is as if there was no
express contract on it. Therefore, courts may reduce the
interest rate as reason and equity demand.
The same is true with respect to the penalty charge.
Article 1229 of the Civil Code states that even if there
has been no performance, the penalty may be reduced
if it is iniquitous or unconscionable.
BPI imposed a cumulative annual interest of 114%, The
finance and late payment charges to be imposed on the
principal amount should be reduced to 12% each per
annum. (Louh, Jr. v. BPI, G.R. No. 225562, March 8,
2017)
QUESTION NO. 22
On the occasion of Abe's marriage, his father donated
to him a house. A few years later, Abe’s marriage has
been invalidated because of Abe’s psychological
incapacity. May Abe's father revoke the donation and
get back the house?
Yes. Article 86 (1) of the Family Code states that a
donation propter nuptias may be revoked by the donor
if the marriage is judicially declared void. This
provision makes no distinction as to who furnished the
ground in connection with the nullification of the
marriage.
QUESTION NO. 23
Buyer and Seller enter into a contract under which
Seller is to sell all of the palay to be grown on his land
to Buyer. After the contract is entered into but before
the palay is harvested, the price of palay rises
dramatically. Both Buyer and Seller claim the crop.
Judgment for whom?
Judgment for Buyer. Things having a potential
existence may be the object of a sale, but the efficacy of
the sale is deemed subject to the condition that the
thing will come into existence. (Art. 1461, Civil Code)
While future things or goods may not be donated,
future things or goods may be sold, as in this case.
DOCTRINE: Every credit card transaction involves
three contracts, namely: (a) the sales contract between
the credit card holder and the business establishment
which accepted the credit card; (b) the loan agreement
between the credit card issuer and the credit card
holder; and lastly, (c) the promise to pay between the
credit card issuer and the merchant or business
establishment. (Bankcard, Inc. v. Alarte, G.R. No. 202573,
April 19, 2017)
QUESTION NO. 24
Husband filed in court a petition to declare Wife
presumptively dead, which the court granted.
Husband filed the petition for his remarriage.
Five years later, Wife petitioned the Court of Appeals
to annul the judgment declaring her presumptively
dead. She filed the petition on the argument that she
was deprived of her day in court because Husband
misrepresented her whereabouts. She claimed that it
10
was Husband who left the conjugal dwelling to
cohabit with another woman.
The Court of Appeals dismissed the petition for
being a wrong remedy. The court ruled that the
proper remedy was for Wife to file a sworn statement
before the civil registry declaring her reappearance
under Article 42 of the Family Code. Is the dismissal
order correct?
No. The choice of remedy here is important because
remedies carry with them certain admissions,
presumptions, and conditions. It is also important for
purposes of determining the status of the second
marriage and the liabilities of the spouse who, in bad
faith, claimed that the other spouse was absent.
If, as Wife contends, Husband was in bad faith when
he filed his petition to declare her presumptively dead
and when he contracted the subsequent marriage, this
subsequent marriage would be considered void for
being bigamous under Article 35(4) of the Family
Code. This is so because the circumstances lack the
element of well-founded belief which is essential for
the exception to the rule against bigamous marriages
to apply.
Furthermore, Wife seeks not merely the termination of
the subsequent marriage but also the nullification of its
effects. She is therefore correct in her contention that
reappearance is not a sufficient remedy because it will
only terminate the subsequent marriage but not nullify
the effects of the declaration of her presumptive death
and the subsequent marriage. Since an undisturbed
subsequent marriage under Article 42 of the Family
Code is valid until terminated, the “children of such
marriage shall be considered legitimate, and the
property relations of the spouses in such marriage will
be the same as in valid marriages.” If it is terminated
by mere reappearance, the children of the subsequent
marriage conceived before the termination shall still be
considered legitimate. Moreover, a judgment declaring
presumptive death is a defense against prosecution for
bigamy.
Therefore, for the purpose of not only terminating the
subsequent marriage but also of nullifying the effects
of the declaration of presumptive death and the
subsequent marriage, mere filing of an affidavit of
reappearance would not suffice. Wife’s choice to file an
action for annulment of judgment will, therefore, lie.
(Santos v. Santos, G.R. No. 187061, Oct. 8, 2014)
QUESTION NO. 25
Abe and Ben are co-owners of a parcel of land.
Unknown to Abe, Larry built a house on the property
with Ben’s consent. May Abe sue to eject Larry from
the property?
Yes. Under Article 491 of the Civil Code, none of the
co-owners may, without the consent of the others,
make alterations in the thing owned in common.
Consequently, none of the co-owners can, without the
consent of the other co-owners, validly consent to the
making of an alteration by another person in the thing
owned in common.
The consent given by Ben, but without Abe’s consent,
did not vest upon Larry any right to enter into the co-
owned property. Larry’s entry into the property falls
under the classification “through strategy or stealth.”
The holding that there is no forcible entry because
Larry’s entry into the property was not through
strategy or stealth because of the consent given to him
by one of the co-owners is wrong. Larry’s entry into the
property without the permission of Abe could appear
to be a secret and clandestine act done in connivance
with co-owner, Ben. Entry into the land effected
clandestinely without the knowledge of the other co-
owners could be categorized as possession by stealth.
(Cruz v. Catapang, G.R. No. 164110, Feb. 12, 2008)
QUESTION NO. 26
Abe leased to Rey a building for a monthly rental of
Php20,000. The contract states that non-payment of
the rent would automatically cancel the contract, but
otherwise Rey could stay on indefinitely. After five
11
years, Abe tried to eject Rey because he planned to
tear down the building and put up another. Rey
refused. Can Abe eject Rey?
Yes, because the condition in the contract is purely
potestative rendering it void. The continuance of the
contract depends solely upon Rey’s choice between
continuing paying the rentals or not, completely
depriving the owner of all say on the matter. So long as
Rey elected to continue the lease by continuing the
payment of the rentals, the owner would never be able
to discontinue it; conversely, although the owner
should desire the lease to continue, the lessee could
effectively thwart his purpose by simply stopping
payment of rentals. (Encarnacion v. Baldemar, 77 Phil.
470)
QUESTION NO. 24
Which of the following remedies, i.e., declaration of
nullity of marriage; annulment of marriage; legal
separation, or judicial separation of property, may an
aggrieved spouse resort to:
a. The wife goes to Kuwait to work as a nurse and
refuses to come home after the expiration of her
three-year contract.
If the wife refuses to come home within three months
after the expiration of her employment contract, she is
presumed to have abandoned the husband (last par.,
Art. 101, Family Code). If this happens, the husband
may file an action for judicial separation of property.
(Art. 135, Family Code)
If the wife’s refusal to come home continues for more
than one year from the expiration of her employment
contract, the husband may file an action for legal
separation under Article 55 of the Family Code on the
ground of abandonment of a spouse by the other
without justifiable cause for more than one year. The
wife is deemed to have abandoned the husband when
she leaves the conjugal dwelling without any intention
of returning. In any event, the intention of not
returning to the conjugal abode cannot be presumed
during the wife’s three-year employment contract.
b. The wife discovers after the marriage that her
husband has AIDS.
Because AIDS is a serious and incurable sexually-
transmissible disease, the wife may file an action for
annulment of the marriage on this ground regardless
of whether such fact was concealed by the husband
from his wife as long as the disease was present at the
time of the marriage. The marriage is voidable even
though the husband was not aware that he had the
disease at the time of marriage.
c. The husband discovers after the marriage that his
wife was a prostitute before their marriage.
The husband has no remedy in law if he discovers after
the marriage that his wife was a prostitute before their
marriage. The law is clear. No misrepresentation or
deceit as to character, health, rank, fortune or chastity
constitutes fraud as a legal ground for an annulment of
marriage. (Article 46, Family Code).
d. The husband has an affair with his secretary and
refuses to stop it despite advice of his friends and
relatives.
The wife may file an action for legal separation because
the husband’s sexual infidelity is a ground for legal
separation under Article 55 of the Family Code. She
may also file an action for judicial separation of
property for failure of her husband to comply with his
duty of fidelity. (Article 135 (4), Family Code)
QUESTION NO. 25
Tom properly made a will in 1998 giving to his friend,
Fidel, all his cars. In 1998, Tom had three cars, but in
2005, when Tom died, he already had eight cars. How
many cars will Fidel get upon Tom’s death?
Fidel is entitled to three cars only, the number of cars
Tom had when Tom made his will. Property acquired
12
between the execution of the will and the death of the
testator are not included among the properties
disposed of, unless it appears in the will that such was
the intention of the testator. (Art. 793, Civil Code)
DOCTRINE: The rule under Article 793 of the Civil
Code is applicable only to legacies and devises. As to
institution of heirs, Article 781 of the Civil Code
applies. Thus, an instituted heir is entitled to inherit
from the testator based on the testator’s net hereditary
estate at the time of his death, not at the time of
execution of the testator of his will.
QUESTION NO. 26
Husband is married to Wife. When their marriage
turned sour, Husband left the conjugal home to
cohabit with Lovely. Despite this arrangement which
lasted for 20 years, Husband continued to support
Wife and their children. On his deathbed, Husband
expressed the wish to be buried by Lovely at her
family’s mausoleum. If Husband dies, who between
Wife and Lovely is entitled to his remains?
Wife is entitled to Husband’s remains. Under the law,
the duty and the right to make funeral arrangements
are confined within the family of the deceased,
particularly the spouse of the deceased to the exclusion
of a common law spouse. The term spouse in the law
is to be construed as the legal spouse.
As applied here, it is clear that the law gives the right
and duty to make funeral arrangements to Wife, she
being the surviving legal wife of Husband. That she
was living separately from her husband and was in the
United States when he died has no controlling
significance. To say that Wife had, in effect, waived or
renounced, expressly or impliedly, her right and duty
to make arrangements for the funeral of her deceased
husband is baseless. The right and duty to make
funeral arrangements, like any other right, will not be
considered as having been waived or renounced,
except upon clear and satisfactory proof of conduct
indicative of a free and voluntary intent to that end.
While there was disaffection between Husband and
Wife and their children when he was still alive, the law
also recognizes that human compassion, more often
than not, opens the door to mercy and forgiveness once
a family member joins his Creator. (Valino v. Adriano,
G.R. No. 182894, April 22, 2014)
QUESTION NO. 27
Abe donated to Ben a piece of land on condition that
Ben will not sell it within ten years from the date of
the donation. In violation of the condition, Ben sold
the land to Carlos one year after Abe’s death. Ben in
turn died after the sale of the land.
Dan, Ben’s son, now brings an action to annul the sale
on the basis that it violated the restriction imposed
by Abe on his father. Carlos defends that Dan has no
personality to sue for annulment of the sale. Who
prevails?
Carlos prevails. The failure of the donee to comply
with a condition imposed by the donor gives rise to an
action to revoke the donation under Article 764 of the
Civil Code. But this right of action belongs to the donor
which is transmissible to his heirs, and may be
exercised against the donee's heirs.
Dan is an heir of the donee (Ben) but not of the donor
(Abe). On this ground alone, he has no legal capacity
to sue for revocation of the donation. Although he is
not seeking a revocation of the donation but an
annulment of the sale which his father, the donee, has
entered in violation of the condition imposed by the
donor, Dan’s action to annul the sale will fail.
Annulment may be brought only by those who are
principally or subsidiarily obliged under a contract
(Art. 1397, Civil Code). As an exception to the rule, a
person not so obliged may ask for the annulment of a
contract if he is prejudiced in his rights (DBP us. CA. 96
SCRA 342) and can show the detriment which would
result to him from the contract in which he had no
intervention (Teves vs. PHHC, 23 SCRA 1141).
13
Dan cannot show such detriment or prejudice. As a
forced heir, Dan’s interest in the property was, at best,
a mere expectancy. The sale of the land by his father
did not impair any vested right. The fact remains that
the premature sale made by his father was not voidable
at all because none of the vices of consent under
Article. 1390 of the Civil Code is present.
QUESTION NO. 28
Ana was an unmarried woman when a friend
entrusted to her the care of an abandoned infant.
Eager to have a child of her own, she registered the
child to make it appear that she is the child’s mother.
Ana reared and cared for the child as if she were her
own. She sent the child to exclusive schools, doted on
her, and used her surname in all of the child’s
scholastic records.
When the child was ten years old, Ana married Brad,
an American. Ana later decided to adopt the child by
availing of the amnesty given under the law to those
individuals who simulated the birth of a child. With
the consent of Brad, Ana filed the petition for
adoption.
a. Can Ana alone adopt the child?
No. The Domestic Adoption Act specifically provides
that the husband and wife shall jointly adopt, except if
one spouse seeks to adopt the legitimate child of the
other; or if one spouse seeks to adopt his or her own
illegitimate child; or if the spouses are legally
separated from each other. Ana does not fall under any
of these exceptions for the following reasons: First, the
child to be adopted is not the legitimate child of Ana or
of her husband; second, the child is not the illegitimate
child of Ana; and third, Ana and Brad are not legally
separated.
b. Can Ana and Brad file the petition jointly?
No. Under the Domestic Adoption Act, aliens are
qualified to adopt Filipino children only if a) they are
former Filipino citizens who seek to adopt their
relatives within the fourth degree of consanguinity; b)
they seek to adopt the legitimate or illegitimate
children of their Filipino spouses; and c) they are
married to Filipino citizens and seek to adopt jointly
with their spouses a relative within the fourth civil
degree of consanguinity or affinity of their Filipino
spouses.
Here, the child to be adopted is not a relative of Ana
within the fourth degree of consanguinity. Neither is
the child the legitimate or illegitimate child of Ana.
Therefore, Brad, being an alien, is not qualified to
adopt the child. While Ana is qualified to adopt, Brad
is not. Even if Ana is qualified, she still cannot file the
petition without being joined by her husband.
QUESTION NO. 29
Abe, owner of an antique shop, asked his friend, Rey,
to mind the store while he went to a local mall to mail
a package. While Abe was gone, Tessie came into the
store and purchased a rare painting for a very low
price. When Abe returned, Rey told him about the
sale. Abe immediately brings action against Tessie
for the return of the painting and claims that Rey did
not have authority to make the sale. Can Abe recover
the painting?
No. Abe can no longer recover the painting because he
is estopped from denying Rey’s authority. Agency by
estoppel arises when the principal (Abe) intentionally
or by want of ordinary care causes a third person
(Tessie) to believe another (Rey) to be his agent who is
not really employed by him.
When Abe placed Rey in charge of the store, Tessie had
the right to assume that Rey was Abe’s agent. Rey had
apparent authority because he appeared to be the
agent and Abe, the principal, is estopped from denying
the agency, even if none existed. (Art. 1883, Civil Code)
14
QUESTION NO. 30
Abe married Bea in 2005. Abe later meets with an
accident, and, as part of the treatment, receives a
blood transfusion. The blood was infected with a
communicable venereal disease, which Abe
contracts, and later transmits to Bea. Can Bea sue for
annulment?
No. Affliction of a contracting party with a serious and
incurable sexually-transmissible is a ground to annul a
marriage only if the illness was existing at the time of the
marriage. Moreover, affliction of a contracting party of
a sexually-transmissible disease, regardless of its
nature, existing at the time of the marriage and
concealed by such party, constitutes fraud that would
annul a marriage. Here, Abe contracted the venereal
disease only during the marriage. Therefore, Bea
cannot use it as a ground for annulment.
QUESTION NO. 31
Tito devised half of a parcel of land to Ana, and the
other half to Ben, on condition that “upon Ben’s
death, whether before or after that of Tito, the half
portion devised to Ben shall be delivered to Ana or
her heirs should Ben die before Tito.” Upon Tito’s
death, Ben immediately demanded partition of the
property. Ana refused because according to her, Ben
is only a second heir. Is Ana correct?
Ana is wrong. A fideicommissary substitution has no
effect unless it is made expressly. The clause under
consideration--upon Ben’s death, whether before or
after that of Tito, the half portion devised to Ben shall
be delivered to Ana or her heirs should Ben die before
Tito--is not a valid fideicommissary substitution. The
clause establishes only a simple substitution, the
necessary result of which is that Ben, upon the death of
Tito, became the owner of an undivided half of the
property. Being a co-owner of the property, Ben can
rightfully demand its partition.
QUESTION NO. 32
Mario recently filed a case against the Department of
Education to recover possession of a property. In his
complaint, he alleges that his grandparents had
allowed a school to use the property as an access road
for the schoolchildren in going to and from the
school. He alleges that he, his parents, and
grandparents had tolerated the use of the property by
the school. He finally alleges that he filed the case
only because the school has started to build a
structure on his property.
DepEd defends that Mario’s claim is already barred
by prescription or laches because the school’s
occupation of the property was adverse, peaceful,
continuous, and in the concept of an owner for more
than 32 years. How would a court rule?
Judgment for Mario. DepEd’s defense of laches has no
merit. While it is true that DepEd’s possession of the
property has been open, continuous, exclusive,
adverse, notorious and in the concept of owner for
more than 30 years already, DepEd's possession of the
land was by mere tolerance of Mario and of his
predecessors-in-interest.
More important, mere material possession of DepEd of
the land is not adverse as against Mario and is
insufficient to vest title, unless such possession is
accompanied by the intent to possess as an owner.
DepEd's possession can only be considered as adverse
from the time the structure was being built on Mario’s
property. When Mario discovered the construction, he
immediately demanded that DepEd stop from
continuing it. When DepEd refused, Mario filed his
complaint. Thus, only one year had elapsed when the
DepEd resisted Mario’s claims. Clearly, he did not
sleep on his rights. There was no prolonged inaction
that barred him from prosecuting his claims. (DepEd v.
Tuliao, G.R. No. 205664, June 9, 2014)
15
QUESTION NO. 33
Husband and Wife first met when they were students
at a university. After a brief courtship period, they
became sweethearts and got married.
Wife noticed that Husband was an introvert and was
prone to jealousy. He was jealous of everyone who
talked to her and would skip work to stalk her. His
jealousy was so severe that he once poked a gun at
his cousin, suspecting him to be her lover. He also
treated her like a sex slave, demanding that they have
sex four or five times a day, and he would tie her to
the bed or poke things at her. He also suggested that
they invite a third person or that she have sex with
another person in his presence. After an incident
where Husband poked a gun at her head, she left the
conjugal home and petitioned the court to declare the
nullity of her marriage, grounded on Husband’s
psychological incapacity.
Dr. Abe, a clinical psychologist, was not able to
interview Husband but was able to talk to his best
friend and his wife. He diagnosed him as having
paranoid personality disorder which, according to
the doctor, is a severe form of personality disorder
starting from late childhood, and was serious and
incurable. Will the action prosper?
Yes. The facts narrated by Wife show that Husband
failed to, or could not, comply with the obligations
expected of him as a husband. The non-examination of
one of the parties will not automatically render as
hearsay the findings of the psychiatrist. The case of
Molina does not require a physician to examine a
person and declare him/her to be psychologically
incapacitated. What matters is that the totality of
evidence establishes a party's psychological condition.
Psychological incapacity must be characterized by (a)
gravity, (b) juridical antecedence, and (c) incurability.
Gravity: Dr. Abe found that Husband’s disorder is a
severe form of personality disorder. He found
Husband to be suffering from a paranoid personality
disorder manifested by Husband’s damaging behavior
like extreme jealousy; his being distrustful and
suspicious; his severe doubts and distrust of friends
and relatives of the petitioner; his being irresponsible;
his resistance to treatment; and his emotional coldness
and severe immaturity.
Juridical antecedence: As to the root cause, the
disorder started during Husband’s late childhood
years and developed in his early adolescent years.
Incurability: Dr. Abe also found that this disorder is
very severe, serious and incurable because of the
severe paranoia of the patient; that patients with this
kind of personality disorder could never accept that
there is something wrong with them and if ever forced
to seek treatment, they would rather engage in an
intellectual battle with the therapist rather than
cooperate with him. (De La Fuente v. De La Fuente, Jr.,
G.R. No. 188400, March 8, 2017)
QUESTION NO. 34
Mr. and Mrs. Cruz, a wealthy couple, offered a
reward of Php2 million in a newspaper to the person
or persons who could furnish information resulting
in the arrest and conviction of the person or persons
guilty of the murder of their son. Shortly after the
advertisement, the police arrested a suspect.
The police learned that the suspect was the boyfriend
of a daughter of Ana who suggested the location at
which the suspect was later found and arrested. The
suspect was charged and convicted. Ana tried to
claim the reward money, arguing that the
information she gave to the police led to the arrest
and conviction of the murderer. When Ana gave the
information to the police, however, she had not
known about the reward. Is Ana entitled to the
reward?
Ana is not entitled to the reward because she did not
know that it had been offered. To be effective, an offer
of reward, as well as any other contractual offers, must
be communicated to the offeree resulting in the
offeree’s knowledge of the offer. An offer without
16
acceptance does not result into a contract. (Art. 1319,
Civil Code) One cannot agree to a bargain without
knowing that it exists.
QUESTION NO. 35
Tom died in 2005 leaving a holographic will. The will
contains insertions and cancellations which are not
authenticated by his signature. For this reason, Tom’s
relatives who stood to inherit intestate from him
opposed the probate of the will. May Tom’s will be
probated?
Yes, the will as originally written may be probated. The
insertions and alterations are void because they were
not authenticated by Tom’s full signature under Article
814 of the Civil Code. The original will remains valid
because a holographic will is not invalidated by the
unauthenticated insertions or alterations. (Ajero v. CA,
236 SCRA 468)
DOCTRINE: Paragraph 2 of Article 26 confers
jurisdiction on Philippine courts to extend the effect of
a foreign divorce decree to a Filipino spouse without
undergoing trial to determine the validity of the
dissolution of the marriage. It authorizes our courts to
adopt the effects of a foreign divorce decree precisely
because the Philippines does not allow divorce.
Philippine courts cannot try the case on the merits
because it is tantamount to trying a divorce case. Under
the principles of comity, our jurisdiction recognizes a
valid divorce obtained by a spouse of foreign
nationality, but the legal effects thereof e.g., on
custody, care and support of the children or property
relations of the spouses, must still be determined by
our courts. (Republic v. Manalo, G.R. No. 221029, April
24, 2018)
QUESTION NO. 36
Mr. Go leased his commercial building to PNB.
During the lease, PNB received a demand for
payment of rent from a third person claiming to be
the owner of the building, PNB stopped paying rents
to Mr. Go. Instead, the bank deposited its rents in a
separate non-drawing account.
A court later ordered PNB to pay rent plus interest
because of the late rental payments. The bank
appealed claiming that it was not late in paying rent
because it was depositing the amounts in a separate
non-drawing account. Will PNB succeed?
No. Consignation is the act of depositing the thing due
with the court whenever the creditor cannot accept or
refuses to accept payment. For consignation to be
valid, the amount or thing due must be placed at the
disposal of the court. Failure to do so is enough ground
to render a consignation ineffective.
PNB's deposit of the monthly rentals in a non-drawing
savings account is not the consignation contemplated
by law precisely because it is not placed at the disposal
of the court. Consignation is necessarily judicial; it is
not allowed in venues other than the courts.
Accordingly, PNB has to pay interest from the time it
failed to pay its rent and chose to instead to deposit the
amounts in a non-drawing account up to the time that
it successfully consigns the amount in court. (PNB v.
Chan, G.R. No. 206037, March 13, 2017)
DOCTRINE: The period to redeem a property sold in
an extrajudicial foreclosure sale is not extendible. A
pending action to annul the foreclosure sale does not
toll the running of the one-year period of redemption
under Act No. 3135. (Mahinay v. Dura Tire & Rubber
Industries, Inc., G.R. No. 194152, June 5, 2017)
QUESTION NO. 37
Abe has a van for sale. He offers to sell the van to Rey
for Php300,000. Discuss the legal effect of the
following events on the offer.
a. Abe dies before Rey’s acceptance, and at the time
Rey accepts, he is unaware of Abe’s death.
17
Abe’s death terminates the offer. An offeree’s power
of acceptance is terminated when the offeror or offeree
dies or is deprived of legal capacity to enter into the
proposed contract. An offer is personal to both parties
and cannot pass to the decedent’s heirs, assigns or
successors-in-interest. This rule applies whether or not
the other party had notice of the death or incapacity of
the other party.
b. The night before Rey accepts, fire destroys the
vehicle.
Abe’s offer is terminated. Abe need not even tell Rey
about the loss of the van for the offer to terminate. An
offer is automatically terminated if the subject matter
of the offer is destroyed before the offer is accepted.
c. Rey pays Php10,000 for a thirty-day option to
purchase the van. During this period, Abe dies, and
later Rey accepts the offer, knowing of Abe’s death.
Rey’s acceptance results in a perfected contract
notwithstanding Abe’s death. When an offeror
promises to hold an offer open for a specified period,
and the offeree pays for the promise, an option contract
is created. An option contract is a separate contract that
takes away the offeror’s power to revoke the offer for
the period of time specified in the option. The death or
incompetence of the offeror does not terminate an
option contract -- unless the offeror’s personal
performance is essential to the fulfillment of the
contract. Consequently, Rey can still exercise the
option against Abe’s estate, since Abe is not required
to perform the act of conveying the van to Rey.
QUESTION NO. 38
Abe owns a residential land worth Php500,000.
Unknown to Abe, Ben built a house valued at Php
100,000 on Abe’s property. Answer the following
questions on the premise that Ben is a builder in
good faith and Abe is a landowner in good faith.
a. May Abe acquire Ben’s house?
Yes. Abe may acquire Ben’s house by indemnifying
Ben of his necessary and useful expenses in building
the house. Article 448 of the Civil Code provides that
the owner of the land on which anything has been
built, sown or planted in good faith, has the right to
appropriate as his own the works, sowing, or planting,
after payment of necessary and useful expenses as
provided in Article 546 of the Civil Code.
b. May Abe require Ben to buy the land?
No. Article 448 of the Civil Code says that the owner of
the land on which anything has been built in good faith
has the right to oblige the one who built to pay the
price of the land if its value is not considerably greater
than that of the building, Here, the value of the land
which is Php500,000 is obviously considerably greater
than the value of the house which is Php100,000.
c. If Ben voluntarily buys the land as desired by Abe,
under what circumstance may Abe have the house
removed?
If Ben agrees to buy land but fails to pay, Abe can have
the house removed. (Depra vs. Dumlao, 136 SCRA 475)
d. In what situation may a “forced lease” arise
between Abe and Ben?
Article 448 of the Civil Code states that the builder
cannot be obliged to buy the land if its value is
considerably greater than that of the building. In such
case, he must pay reasonable rent, if the owner of the
land does not choose to appropriate the building after
proper indemnity. The parties must agree upon the
terms of the lease and, in case of disagreement, the
court must fix the terms
QUESTION NO. 39
Abe, a Filipino naturalized American, now a resident
of New York, comes back to the Philippines as a
balikbayan. He is arrested at the NAIA in possession
of a caliber .38 Smith and Wesson. Charged with
illegal possession of firearms, he moves to quash the
18
criminal complaint based on his constitutional right
as a New Yorker to bear arms. Decide.
Motion denied. The crime was committed within our
territorial jurisdiction and is therefore punishable here.
Under the principle of generality, no one is exempt
from our penal laws, except those who enjoy
diplomatic immunity under international law. (Art. 14,
Civil Code; Art. 2 Revised Penal Code; see also 3rd par., Art.
17, Civil Code)
QUESTION NO. 40
Abe and Amy are married in Baguio City. Abe goes
to Hong Kong and marries Bea, a Filipina domestic
helper. After a month of connubial bliss in the Crown
Colony, Abe goes to Singapore and marries Connie,
a Filipina “house manager.” After two months with
Connie, Abe goes to Brunei where he marries Annie,
a Filipina GRO. After three months of connubial
bliss in Brunei, Abe heads for home sweet home.
May Abe be prosecuted for bigamy in the
Philippines at the instance of his first wife, Amy?
No, because Abe did not commit any crime in
Philippine territory. (Art. 14, Civil Code) Bigamy is
committed by entering into a subsequent marriage.
The first marriage, which was entered into in the
Philippines, is not bigamous. The subsequent
marriages, which are bigamous marriages, were all
entered into abroad, or outside Philippine territory,
and therefore beyond our criminal jurisdiction.
QUESTION NO. 41
Amy and Bea, Filipinos, both women, enter into a
same-sex marriage in the United States, where such a
marriage is valid. Is the marriage also valid here?
The general rule enunciated in the first paragraph of
Article 26 of the Family Code should apply, under
which marriages valid where celebrated are also valid
here. The case does not fit into any of the exceptions
enunciated in the foregoing provision of Article 26 of
the Family Code. Therefore, same sex marriage is valid
here if valid where celebrated.
But it would seem that the case falls under one of the
exceptions to the application of the proper foreign law,
i.e., it runs counter to an important public policy of the
forum--that a marriage should be between a man and
a woman. Because of this important public policy,
same-sex marriage is void here.
QUESTION NO. 42
A ten-year old boy shot a girl with an air gun
resulting in her death. The court acquitted the boy in
the criminal case on the basis that he had acted
without discernment. The girl’s parents sued the
boy’s parents for damages. How would a court rule?
The court would hold the boy’s parents liable. Their
liability is made natural as a logical consequence of the
duties and responsibilities of parents exercising
parental authority which includes controlling,
disciplining and instructing their children.
In this jurisdiction, the liability of parents is vested by
law which assumes that when minor children living
with their parent commit a tortuous act, the parents are
presumed negligent in the performance of their duty to
supervise the children under their custody. (Tamargo
vs. CA, 209 SCRA 519)
DOCTRINE: Article 26 should be interpreted to mean
that it is irrelevant for our courts to determine if it is
the foreign spouse who obtained the divorce abroad.
Once a divorce decree is issued, the divorce becomes
validly obtained and capacitates the foreign spouse to
marry. The same status should be given to the Filipino
spouse. The national law of Japan does not prohibit the
Filipino spouse from initiating or participating in the
divorce proceedings. It would be inherently unjust for
a Filipino woman to be prohibited by her own national
laws from something that a foreign law may allow.
(Tanaka v. Civil Registrar General, G.R. No. 199515, June
25, 2018)
19
QUESTION NO. 43
A grade 6 teacher assigned Ana and Bea to weed the
grass in the school yard. Ana found a plastic
headband with an earthworm and tossed it to Bea
hitting Bea in her right eye resulting in the loss of the
eye. Are Ana’s parents liable?
No. It was not shown that the parents could have
prevented the damage as their child was in school and
they have the right to expect their child to be under the
care and supervision of their teacher. Besides, the act
was an innocent prank and usual among children at
play and which no parent could have any special
reason to anticipate much less guard against. (Cuadra
vs. Monfort, 35 SCRA 160)
QUESTION NO. 44
Abe sold his lot to Ben for Php1 million payable in
five equal annual installments. After registration of
the sale, the Register of Deeds issued a certificate of
title in Ben's name. When Ben failed to pay the last
two installments, Abe filed an action for collection of
sum of money. Upon filing his complaint, Abe tried
to cause the annotation of a notice lis pendens on
Ben's title. Is this proper?
No. The notice lis pendens is improper because the
case filed by Abe against Ben is one for collection of
sum of money. Annotation of a lis pendens can only be
done in cases for recovery of possession or of
ownership of real property, or to quiet title or to
remove cloud on it, or for partition or any other
proceeding affecting title to the land or its use or
occupation. The action filed by Abe does not fall under
any of these cases.
QUESTION NO. 45
Abe and Rey entered into a contract for the purchase
of a cow. Abe, the owner of the cow, told Rey that the
cow was barren (incapable of breeding and
producing calves). Based on this belief, Abe and Rey
negotiated a price several hundred pesos less than it
would have been had the cow been capable of
breeding. Just before delivery, Abe discovered the
cow had conceived a calf, and he refused to deliver
the much more valuable cow to Rey. Does Abe have
legal grounds to annul the contract?
Yes, Abe may annul the sale on the ground that he
committed a substantial mistake as to the substance of
the subject matter of the contract. The mistake is
substantial enough because a barren cow is a
substantially different cow than a breeding one. The
law is clear: Even though there may have been no
damage to the party seeking the annulment, a contract
may be annulled where the consent is vitiated by
mistake. (Art. 1390, Civil Code)
QUESTION NO. 46
ABC Co. insured Pedro’s house for Php1 million. As
stated in the policy, ABC Co. undertakes, upon total
loss, to either pay the insured value of the house, or
rebuild it, upon proof of total loss. If during the life
of the policy the insured property is completely
destroyed, may Pedro insist that ABC Co. rebuild his
house rather than being paid its insured value?
No, because in alternative obligations, the right of
choice is given to the debtor, unless it has been
expressly granted to the creditor. (par. 1, Art 1200, Civil
Code) In the absence of an agreement in the insurance
policy giving the right of choice to the insured, the
general rule applies, and therefore, the insurer may
choose which of the two prestations to perform, the
performance of one being sufficient.
DOCTRINE: If one spouse is incapacitated or
otherwise unable to participate in the administration of
the conjugal properties, the other spouse may assume
sole powers of administration. These powers do not
include disposition or encumbrance without authority
of the court or the written consent of the other spouse.
In the absence of such authority or consent, the
20
disposition or encumbrance shall be void. (Alejo v. Sps.
Cortez, et. al. G.R. No. 206114, June 19, 2017)
QUESTION NO. 47
For damage or injuries arising out of negligence in
the operation of a motor vehicle, what is the nature of
the liability of the registered owner?
The registered owner may be held civilly liable with
the negligent driver either subsidiarily or solidarily.
The owner may be held subsidiarily liable if the
aggrieved party seeks relief based on a delict or crime
under Articles 100 and 103 of the Revised Penal Code.
On the other hand, the owner may held solidarily if the
complainant seeks relief based on a quasi-delict under
Articles 2176 and 2180 of the Civil Code.
DOCTRINE: It is the option of the plaintiff whether to
waive completely the filing of the civil action, or
institute it with the criminal action, or file it separately
or independently of a criminal action. His only
limitation is that he cannot recover damages twice for
the same act or omission of the defendant.
QUESTION NO. 48
Abe works as a janitor in a building at night. On his
way to work, he found a piece of gold necklace that
contains several precious stones. The following day,
Abe decides to take the necklace to a jewelry store to
have it appraised. While pretending to weigh the
jewelry, an employee of the jeweler removes several
of the stones. Abe brings an action to recover the
stones from the jeweler. Will he succeed?
Yes. As the party in physical possession of the jewelry,
Abe is entitled to be respected in its possession which
he can enforce against anyone, except the true owner.
(Art. 559, Civil Code)
QUESTION NO. 49
When may a divorce decree validly obtained in a
foreign country be recognized in the Philippines?
A divorce obtained abroad by an alien may be
recognized in our jurisdiction if the decree of divorce
is valid according to the national law of the foreigner.
However, the divorce decree and the governing
national law of the alien spouse who obtained the
divorce must be proved. Our courts do not take judicial
notice of foreign laws and judgments. Like any other
facts, both the divorce decree and the national law of
the alien spouse must be alleged and proved according
to our law on evidence. (Garcia v. Recio, G.R. No.
138322, October 2, 2001)
QUESTION NO. 50
Tom died in 1990 with a will. There, he gave a house
and lot to Abe, as his first heir, and to Abe’s son, Ben,
as his second heir. Ben died in 1995 survived by his
two children (Eric and Fidel). Abe in turn died in 2000
survived by his two children (Chito and Dante).
In the settlement of Abe’s estate, Eric and Fidel (Ben’s
heirs) sought to exclude the house and lot originating
from Tom on grounds that they are the owners of the
property. Chito and Dante opposed the motion on
grounds that Ben, the second heir, predeceased Abe,
and that therefore, the fideicommissary substitution
did not produce any effect as far as Ben, the second
heir, is concerned. Who prevails?
Eric and Fidel, Ben’s heirs, prevail. Ben, the second
heir, acquires a right to the succession from the time of
the testator’s death, even though he, Ben, should die
before the first heir. Ben inherited from Tom as second
heir when the latter died in 1990. When Ben died in
1995, he transmitted his right as second heir to his own
heirs, Eric and Fidel, such that when Abe (first heir)
died in 2000, the right of Eric and Fidel over the
property became absolute.
21
QUESTION NO. 51
A passenger bus owned by Abe collided with and a
cargo truck owned by Ben. Carlito, a bus passenger,
suffered injuries, while Dante, another bus
passenger, died. The drivers of the two vehicles were
at fault. Carlito, the injured passenger, and the heirs
of Dante sued the owners of both vehicles for
damages.
a. May Abe successfully invoke the defense of due
diligence in the selection and supervision of his
employees to avoid liability?
No, he cannot. This is because his liability as a common
carrier is based on a breach of contract of carriage. Such
a defense will only serve to mitigate Abe’s liability
because by then he will be considered as a debtor in
good faith.
b. May Ben invoke the same defense?
Yes, Ben can properly and successfully invoke the
same defense of due diligence in the selection and
supervision of his employees because his liability is
based on a quasi-delict.
c. May Carlito claim moral damages from both
vehicle owners?
Yes, Carlito can claim moral damages against Ben, the
owner of the cargo truck, because of the injuries he
suffered, but as against Abe, Carlito can claim moral
damages only if he proves reckless negligence on the
part of the common carrier amounting to fraud.
d. May Dante’s heirs claim moral damages from both
vehicle owners?
The heirs of Dante can claim moral damages against
both vehicle owners because the rules on damages
arising from death due to a quasi-delict are also
applicable to death of a passenger caused by breach of
contract by a common carrier. (Arts. 1755, 1764, 2206
and 2219, Civil Code)
QUESTION NO. 52
John, Paul, and George are co-owners of an
unregistered land. Unknown to his co-owners, John
registered the land in his name. What is the effect of
the registration of the land in John’s name?
John did not acquire ownership of the land.
Registration of a parcel of land subject of co-ownership
in the name of one co-owner is not a repudiation of the
co-ownership for purposes of prescription. (Ceniza v.
Court of Appeals, 181 SCRA 552 [1990]) Under Article
494 (5) of the Civil Code, no prescription shall run in
favor of a co-owner or co-heir so long as he expressly
or impliedly recognizes the co-ownership. The
registration by John of the community property in his
name merely created a trust in favor of his co-owners.
QUESTION NO. 53
Ben was the winning bidder in the extrajudicial
foreclosure sale of the property owned by Abe. The
corresponding certificate title was then issued in
Ben’s name. Ben later sold the property to Conrad.
Ben’s title was cancelled and in its place a new one
was issued in Conrad’s name.
To acquire possession of the property, Conrad made
several demands for Abe to vacate it, but Abe
refused. This prompted Dante to file ex-parte a
petition for the issuance of a writ of possession.
Instead of issuing the writ, the court set the petition
for hearing and directed Abe to show cause. Abe
argues that Conrad cannot avail himself of a writ of
possession because he was not the purchaser in the
foreclosure sale. Is this correct?
No. In an extrajudicial foreclosure of real property, the
purchaser becomes the absolute owner if no
redemption is made within one year from the
registration of the certificate of sale by those entitled to
redeem. Being the absolute owner, he is entitled to all
the rights of ownership over a property recognized in
Article 428 of the Civil Code, not the least of which is
possession.
22
Possession being an essential right of the owner with
which he is able to exercise the other attendant rights
of ownership, after consolidation of title, the purchaser
in a foreclosure sale may demand possession as a
matter of right. Act No. 3135, as amended, imposes
upon the court a ministerial duty to issue a writ of
possession to the new owner upon a mere ex-parte
motion.
But unlike the original purchaser, Conrad’s right to
apply for a writ of possession is circumscribed and
cannot be made ex-parte; the issuance of a writ of
possession in favor of a subsequent purchaser must be
made only after hearing and after determining that the
subject property is still in the possession of the
mortgagor. (Sps. Reyes v. Sps. Chung, G.R. No. 228112,
September 13, 2017)
QUESTION NO. 54
If a marriage is annulled or declared void by final
judgment, how soon may the former spouses
remarry?
A decree of annulment or decree of absolute nullity
terminates a marriage. There being no more subsisting
marriage to speak of, the former spouses may marry
again, but only after they comply with Article 52 of the
Family Code. This provision requires the former
spouses to register the with the appropriate local civil
registry or registry of property the following: a)
judgment of annulment or of absolute nullity of
marriage; b) partition and distribution of the
properties of the spouses; and c) delivery of the
children’s presumptive legitimes. Failure to comply
with these (recording) requirements will render void
the remarriage of the former spouses.
QUESTION NO. 56
Abe is convicted by final judgment of a crime. Abe’s
wife later files an action for legal separation. Which
of the following facts would most likely have an
effect on the case?
A. Abe is sentenced to suffer imprisonment for more
than six years.
B. Abe is convicted of a crime involving moral
turpitude.
C. Abe is convicted of a crime which carries the
accessory penalty of civil interdiction.
D. Abe is a rescidivist.
(A) would most likely have an effect on the case. Under
Article 55 of the Family Code, a final judgment
sentencing the respondent spouse to imprisonment of
more than six years, even if pardoned, is a ground for
legal separation.
That Abe is convicted of a crime involving moral
turpitude as stated in (B) is of no consequence if the
penalty is less than six years.
That Abe is sentenced to suffer the accessory penalty
of civil interdiction as stated in (C) would have an
effect only if the crime to which Pedro is convicted
carries a sentence of more than six years.
Abe’s rescidivism in (D) has no effect because it is not
one of the grounds for legal separation.
QUESTION NO. 57
Abe met Bea at a garments factory where both were
working. After a brief courtship period, the two got
married, and lived for a time as husband and wife.
When the factory closed down, Bea went to Taiwan
to seek employment. That was the last time Abe saw
her. Abe recently obtained a court decree declaring
Bea presumptively dead.
The Solicitor General disagrees with the ruling on
the ground that Abe had failed to prove his well-
founded belief that Bea was already dead. The
Solicitor General assails the ruling through a Notice
of Appeal. Should the appeal be given due course?
23
No. The decision of the court granting Abe’s petition
for declaration of his wife’s presumptive death under
Article 41 of the Family Code is immediately final y
upon notice to the parties. (Art. 247, Family Code) The
decision is therefore not subject to ordinary appeal,
and the attempt to question it through a Notice of
Appeal is unavailing.
In sum, the losing party in a summary proceeding for
declaration of presumptive death under Article 41 of
the Family Code may file a petition for certiorari with
the Court of Appeals on the ground that, in rendering
judgment thereon, the trial court committed grave
abuse of discretion amounting to lack of jurisdiction.
From the decision of the Court of Appeals, the
aggrieved party may elevate the matter to the Supreme
Court via a petition for review on certiorari under Rule
45 of the Rules of Court. (Republic v. Granada, G.R. No.
187512, June 13, 2012)
QUESTION NO. 58
Abe leased to Rey a building for ten years. Abe has
repeatedly assured Rey that if he decides to sell the
building, he will give Rey the right of first refusal.
On the sixth year of the lease, Abe informed Rey that
he was willing to sell to Rey the building for Php5
million. Rey offered to buy the building for Php4.5
million. Abe did not reply. One week later, Rey
received a letter from Larry informing him that the
building had been sold to him by Abe for Php5
million, and that Larry will not renew Rey’s lease
when it expires.
a. Did Abe violate Rey’s right of first refusal?
No. The lessee’s right of first refusal does not go so far
as to give him the power to dictate on the lessor the
price at which the lessor should sell his property. Upon
the facts given, Abe had sufficiently complied with his
commitment to give Rey a right of first refusal when he
offered to sell the property to Rey for Php5 million,
which was the same price he got in selling it to Larry.
Abe certainly had the right to treat Rey’s counter-offer
of a lesser amount as a rejection of his offer to sell at
Php5 million. Thus, he was free to find another buyer
upon receipt of such counter-offer.
b. Suppose Abe gave Rey an option to purchase
instead of a right of first refusal, will that make any
difference in your answer?
No, the answer will still be the same. An option must
be supported by a consideration separate and distinct
from the purchase price. In this case, there was no
separate consideration. Therefore, the option may be
withdrawn by Abe at any time.
c. Is a right of first refusal governed by the Statute of
Frauds?
No. A right of first refusal is not among the contracts
which are required to be in writing under the Statute
of Frauds. The application of Article 1403, paragraph
2(e), of the Civil Code presupposes the existence of a
perfected contract of sale of real property. A right of
first refusal need not be written to be enforceable and
may be proved by oral evidence. (Rosencor Development
Corp. v. Inquing, 354 SCRA 119 [2001])
DOCTRINE: Habitual drunkenness, gambling, and
failure to find a job, while undoubtedly negative traits,
are nowhere nearly the equivalent of “psychological
incapacity,” in the absence of incontrovertible proof
that these are manifestations of an incapacity rooted in
some debilitating psychological condition or illness. A
cause has to be shown and linked with the
manifestations of the psychological incapacity.
(Singson v. Singson, G.R. No. 210766, Jan. 8, 2018)
QUESTION NO. 59
Abe agrees to lease to Rey an office space for five
years at a fixed rent. Before Rey takes possession of
the premises, Rey learns of a much more
advantageous opportunity and established his office
elsewhere. To force Rey to perform, Abe brings an
24
action to enforce the agreement. What is Rey’s
strongest argument?
The Statute of Frauds is Rey’s strongest argument. To
be enforceable, the Statute of Frauds requires certain
agreements to be reduced into writing and signed by
the party to be charged, including agreements creating
an interest in land. Leases for more than one year are
therefore generally covered by the Statute of Frauds.
Since the agreement between Abe and Rey is for a five-
year lease, the Statute of Frauds is Rey’s strongest
defense to the enforcement of the agreement. (Art.
1403, par. 2(e), Civil Code)
QUESTION NO. 60
Abe is a police officer. He got married twice during
his lifetime; the first with Bea, and the second, with
Carol. Upon Abe’s death, Bea and Carol separately
filed claims for benefits pertaining to Abe from
various government agencies. Because she received a
smaller amount, Carol brought an action for the
return of at least one-half of the amount which Bea
received.
Two important facts came to light during the trial.
First, Carol had no knowledge of Abe’s previous
marriage and that she became aware of it only at the
funeral. Second, the prior marriage of Abe to Bea was
solemnized without a marriage license. Is Carol
entitled to half of Abe’s death benefits?
The marriage of Abe and Bea is void for lack of a valid
marriage license. The same is true with respect to the
marriage of Abe and Carol for lack of a judicial decree
declaring the first marriage a nullity. Given that the
marriages are void, the applicable property regimes
would be governed by Articles 147 and 148 of the
Family Code.
Considering that the marriage of Abe and Carol is a
bigamous marriage, having been solemnized during
the subsistence of a previous marriage then presumed
to be valid, the application of Article 148 is in order.
The disputed death benefits clearly consists of benefits
from governmental agencies earned by Abe as a police
officer. Unless Carol presents proof to the contrary, it
could not be said that she contributed money, property
or industry in the acquisition of these monetary
benefits. Hence, they are not owned in common by
Carol and Abe, but owned by the deceased (Abe) alone
and Carol has no right whatever to claim the same.
By intestate succession, the “death benefits” of Abe
shall pass to his legal heirs. Carol, not being the legal
wife of Abe, is not one of them.
DOCTRINE: The failure to obtain the prior written
authority of HLURB to mortgage a condominium unit
will result in the bank not being considered a
mortgagee in good faith. The mortgage is void as
against the buyer of a condominium unit and thus
cannot be enforced against such buyer. Banks are
mandated to exercise the highest degree of diligence in
its affairs. (Prudential Bank (now BPI) v. Rapanot, G.R.
No. 191636, January 16, 2017)
QUESTION NO. 61
On May 1, Abe goes to Rey’s Clothing Store to
purchase a suit. Abe finds a suit he likes for Php7,000
and buys it. The suit needs alteration so Abe leaves
the suit at the store. Abe is to pick up the repaired
suit at the store on May 10. Consider the following
separate sets of circumstances:
a. One of Rey’s major creditors obtains a judgment
on the debt which Rey owes and has the court issue a
writ of execution to collect on that judgment all
clothing and other apparel in Rey’s possession.
Discuss Abe’s right to the repaired suit on which the
judgment creditor has levied.
Abe is entitled to demand the return of the suit. Upon
payment of the price and its delivery to him, Abe
became the owner of the suit. (Art. 1477, Civil Code)
While Rey was in possession of the repaired suit at the
time of the levy, Rey was in possession not as an owner
25
but in another capacity. The repaired suit therefore is
already beyond the reach of Rey’s judgment creditor at
the time of the levy.
b. On May 9, through no fault of Rey, his clothing
store is completely burned, and all contents are a total
loss. Between Abe and Rey, who suffers the loss of
the suit destroyed by fire? Explain.
Abe bears the loss of the suit under the res perit domino
rule, he being its owner. The obligation of Rey to return
the suit after May 10 is deemed extinguished by a
fortuitous event. (Art. 1174, Civil Code)
QUESTION NO. 62
Abe has a severe heart attack and is taken to the
hospital. He is not expected to live, and he knows it.
Because he is a bachelor without close relatives
nearby, Abe gives his car keys to Rey, telling Rey that
he is expected to die and that the car is Rey’s. Abe
survives the heart attack, but two months later he
dies from pneumonia. The administrator of Abe’s
estate wants Rey to return the car. Rey refuses,
claiming the car was given to him by Abe as a gift.
Discuss whether Rey will be required to return the
car to Abe’s estate.
Rey is required to return the car to Abe’s estate. The
donation is mortis causa, not inter vivos. It is a mortis
causa donation because Abe intended it to take effect
upon his death because of his heart attack. That Abe
died from a cause unrelated to the heart attack does not
detract from the fact that Abe’s death is the operative
cause that would have conveyed ownership of the car
to Rey. Since the donation was not expressed in
accordance with the formalities of wills, the donation
is void and Rey never acquired ownership of the car.
QUESTION NO. 63
Tom’s driveway runs the entire length of his property
and connects to Jerry’s property. Jerry has a right of
way over Tom’s driveway, which is obviously Jerry’s
only access to the nearest public road. The right of
way is duly recorded in the Registry of Property.
Jerry later sells his property to Larry. Is Larry entitled
to use the driveway?
Yes, he being the new owner of the dominant estate.
The owner of the dominant estate cannot use the
easement except for the benefit of the immovable
originally contemplated. Since the law makes no
distinction whether the owner of the dominant estate
be the original owner at the time of the establishment
of the easement, as in the case of Jerry, or a mere
transferee of the dominant estate, as in the case of
Larry, then there is no need to distinguish, and this is
so because the easement is constituted for the benefit
of the dominant estate, regardless of its owner. (Art.
626, Civil Code)
QUESTION NO. 64
Romeo and Juliet are married. A few weeks before
their wedding, Romeo donated to Juliet in a
notarized instrument a parcel of land on condition
that should Juliet die before Romeo and there be no
children, half of the property shall be given to Juliet’s
parents. Nine months after the wedding, Juliet died
without issue. Juliet’s parents now claim the half
share given to them in the deed of donation. Will they
succeed?
No. Insofar as the one-half share is concerned, it cannot
be a valid donation propter nuptias nor a donation inter
vivos nor a donation mortis causa.
The donation is not a donation propter nuptias because
the share was not given to one of the spouses. The
donation is not a donation inter vivos, for there was no
acceptance on the part of the parents. The donation is
not a donation mortis causa because the deed of
donation did not have the formalities of a will, aside
from the fact that the donor, Romeo, is still alive.
26
QUESTION NO. 65
A friend called Abe by cellular phone from Tarlac
City to say that his car had suffered a tire blow out
and that he must have a new tire for his car to get back
home to Baguio City. Over the telephone, Abe said to
the owner of the car repair shop, “Give him the tire
and I will pay for it.” Is Abe’s oral promise
enforceable?
Yes. Abe’s promise was not one of guaranty, but one in
which he made himself directly and primarily
responsible for the amount of credit extended. Thus,
Abe made his own contract with the repair shop
owner, as he was not guaranteeing his friend’s
obligation. Abe’s oral promise is binding on him. This
is not a case of a special promise to answer for the debt,
default or miscarriage of another which the law
requisites to be in writing to be enforceable.
QUESTION NO. 66
Abe, a door-to-door salesman of vacuum cleaners,
demonstrated one of the latest model cleaners at Mrs.
Go’s house. Mrs. Go said that she was interested in
buying the cleaner but would have to consult her
husband before deciding. Abe offered to leave the
machine with Mrs. Go, saying, “I’ll leave it here so
that you can show it to your husband. Here is my
number. If I don’t hear from you by the end of the
month, I’ll send you a bill for the machine.” She
agreed. A month passed and Abe’s bill arrived. Is
Mrs. Go liable to pay the vacuum cleaner?
Yes. By her silence, Mrs. Go accepted Abe’s offer and
would therefore be liable under the agreement
discussed with Abe. Both parties had agreed that
continued silence would be the manner of acceptance.
A contract may be perfected in any manner sufficient
to show a meeting of the offer and the acceptance upon
the thing and the cause which are to constitute the
contract, including conduct by both parties
manifesting such meeting of their minds. (Art. 1319,
Civil Code)
DOCTRINE: Payment by mistake gives rise to quasi-
contractual obligation of solutio indebiti.
Reimbursement must be made with an interest of 6%
per annum on the amount to be refunded and on the
damages and attorney's fees awarded, if any,
computed from the time of demand until its
satisfaction. (BPI v. Mendoza, G.R. No. 198799, March
20, 2017).
QUESTION NO. 67
Husband obtains a decree of legal separation because
of Wife’s infidelity. Is Wife entitled to inherit from
Husband?
It depends. By intestate succession, she cannot.
According to Article 63(4) of the Family Code, the
offending spouse is disqualified from inheriting from
the innocent spouse by intestate succession.
By testate succession, if the husband executed the will
prior to the decree of legal separation, the wife cannot
inherit from her husband. According to Article 63(4) of
the Family Code, provisions in favor of the offending
spouse made in a will is revoked by operation of law.
However, if the will was executed subsequent to the
decree of legal separation, the wife will then be able to
inherit from her husband. In such a case, there is a tacit
or implied pardon. (Art. 1033, Civil Code by analogy)
DOCTRINE: Article 213 of the Family Code provides
for the so-called tender-age presumption, stating that
“no child under seven years of age shall be separated
from the mother unless the court finds compelling
reasons to order otherwise.” According to
jurisprudence, the following instances may constitute
“compelling reasons” to wrest away custody from a
mother over her child although under seven years of
age: neglect, abandonment, unemployment,
immorality, habitual drunkenness, drug addiction,
maltreatment of the child, insanity or affliction with a
communicable disease. (Masbate v. Relucio, G.R. No.
235498, July 30, 2018)
27
QUESTION NO. 68
Abe and Bea were married in 1992. Shortly after their
marriage, Bea left to work abroad. While on vacation
in the Philippines in 2003, she found out that her
husband had married another woman in 2001. She
also found out that her husband had filed with the
Manila RTC a complaint for annulment of their
marriage under Article 36 of the Family Code.
Aggrieved by her husband’s actions, Bea retaliated
by filing with the Makati RTC a complaint for
bigamy.
While the bigamy case was pending, the Manila RTC
invalidated the marriage of Abe and Bea on the
ground that Bea was psychologically incapacitated.
This decision has become final. Should the Makati
RTC still convict Abe of bigamy?
Yes. When Abe contracted a second marriage in 2001,
his marriage with Bea was still subsisting. The finality
of the decision declaring the nullity of his first
marriage with Abe came about only in 2007 or about
six years after his second marriage. It is evident
therefore that Abe committed the crime charged.
The contention that Abe cannot be charged with
bigamy in view of the declaration of nullity of his first
marriage is without merit. The Family Code settled
once and for all the conflicting jurisprudence on the
matter. A declaration of absolute nullity of a marriage
is now explicitly required either as a cause of action or
a ground for defense. Where the absolute nullity of a
previous marriage is sought to be invoked for
purposes of contracting a second marriage, the sole
basis acceptable in law for said projected marriage to
be free from legal infirmity is a final judgment
declaring the previous marriage void. (Teves v. People,
G.R. No. 188775, August 24, 2011)
QUESTION NO. 69
Abe granted Rey a road right of way. Rey was at that
time using a cart and a carabao to transport his
products from his farm to the market. Ten years later,
Rey asked for a widening of the easement as he had
resorted to the use of a jeepney to transport his
products. Can Rey successfully demand a wider
easement?
Yes, because the width of an 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. (Art. 651, Civil Code) The needs of
the dominant estate determine the width of the
passage. (Sta. Maria v. Court of Appeals, 285 SCRA 351
[1998])
QUESTION NO. 70
Abe, a widower, has two children (Basilio and
Crispin). Basilio in turn has two children (Dante and
Eric), and Crispin has one child (Fidel). Abe died
without a will with an estate of Php600,000.
a. At the time of Abe’s death, Basilio and Crispin
have long died. How should Abe’s estate be
distributed?
The grandchildren inherit by representation and the
following distribution would then take place: Dante
and Eric; Php150,000 each, taking Basilio’s share. Fidel;
Php300,000, taking Crispin’s share.
The above distribution is per stirpes in accordance with
the rule that grandchildren always inherit by right of
representation, whether they concur with children of
the decedent or not. (Arts. 981 and 982, Civil Code)
b. Suppose Basilio and Crispin have renounced their
inheritance, how should Abe’s estate be distributed?
The grandchildren would inherit in their own right.
Hence, Dante, Eric, and Fidel will each receive a one-
third share, or Php200,000.
The above distribution is per capita in accordance with
the rule that heirs who repudiate their share may not
be represented (Art. 977, Civil Code) Because Basilio
and Crispin have repudiated their shares, the
grandchildren will then inherit in their own right being
28
the relatives (in the descending line) next in degree of
the decedent.
QUESTION NO. 71
Mar rented a car from Avis at the NAIA. No sooner
had he driven the car outside the airport when, by his
negligence, he collides with a taxi owned and driven
by Jong, causing damage to Jong’s taxi. Jong files an
action for damages against Mar and Avis based on a
quasi-delict. Avis defends that the complaint fails to
state a cause of action against the company. Is Avis
correct?
Yes. Avis is not the employer of Mar so there is no right
of action against Avis under Article 2180 of the Civil
Code. Not being the employer, Avis has no duty to
supervise Mar. Neither has Avis the duty to observe
due diligence in the selection of its clients. As lessee of
the car, Mar alone is liable to Jong.
QUESTION NO. 72
Abe and Rey are business partners in buying,
developing, and selling real estate. Abe learns
through the firm staff that five hectares of land will
soon come on the market and that the staff will
recommend that the partnership purchase the land.
Abe purchases the property secretly in his own name.
If the partnership discovers these facts and
immediately brings suit, what will the court say?
A court will create a constructive trust and declare that
Abe, as legal owner of the property, holds the title to
the property in trust for the partnership who, in equity,
is actually entitled to the property.
A constructive trust may be imposed when a party
holding legal title to property stands in a fiduciary
relation to another resulting in an equitable duty to
convey the property on the ground that he would be
unjustly enriched if he were permitted to retain it.
In the problem presented, Abe stood in a fiduciary
relation to the partnership and would be unjustly
enriched if allowed to retain the property. Because Abe
secretly purchased the property in his own name and
for his own benefit, Abe was under an equitable duty
to convey the property to the partnership.
DOCTRINE: A constructive trust arises by operation
of law as an equitable remedy that enables plaintiffs to
recover property (and sometimes damages) from
defendants who would otherwise be unjustly enriched.
In other words, when a transaction takes place in
which the person who takes the legal estate in property
cannot also enjoy the beneficial interest without
violating some established principle of equity, the
court will create a constructive trust. The legal owner
is declared to be a trustee for the parties who, in equity,
are actually entitled to the ownership of the property.
QUESTION NO. 73
Tom named his friend, Fidel, as one of his heirs on
condition that Fidel should not enter any gambling
casino here or abroad for one year after Tom’s death.
As an instituted heir, is Fidel immediately entitled to
receive the inheritance upon Tom‘s death?
Yes, but Fidel must give a security to guarantee that he
would not enter any gambling casino for one whole
year upon Tom’s death. The security is called caucion
muciana. If Fidel enters any casino during the
prohibited period, he should return whatever he may
have received, together with its fruits and interest. (Art.
879, Civil Code)
QUESTION NO. 74
Debtor owes Creditor Php400,000. The debt is the
subject of a lawsuit, and the court awards Creditor a
judgment of Php400,000. To satisfy the judgment, the
sheriff levies on Debtor’s family home in Baguio
valued at Php500,000. Debtor opposes the levy on
grounds that his family home is exempt from
execution. Judgment for whom?
29
Judgment for Creditor. Under Article 160 of the Family
Code, if judgment is rendered against the owner of a
family home, and the creditor has reasonable ground
to believe that the value of the family home is in excess
of Php300,00 (urban land) or Php200,000 (rural land),
the creditor may apply for an order directing the sale
of the family home. Here, the value of Debtor’s family
home is in excess of Php300,000 so the same may be
sold at public auction to satisfy the judgment against
him. The foregoing rule applies even if the increase in
value of Debtor’s family home resulted from
improvements introduced by Debtor.
REMINDER: Section 48 of PD 1529 (Property
Registration Decree) prohibits a collateral attack on a
certificate of title and allows only a direct attack on it.
A Torrens title cannot be altered, modified or cancelled
except in a direct proceeding under the law. When the
law says direct attack, it means that the object of an
action is to annul or set aside a certificate of title. On
the other hand, the attack is indirect or collateral when,
in an action to obtain a different relief, an attack on the
title is nevertheless made as an incident of the
proceeding. (Berboso, v. Cabral, G.R. No. 204617, July
10, 2017)
QUESTION NO. 75
Amy needs Php100,000, so Ben agrees to lend her the
money. To secure the loan, Amy delivers some of her
jewelry to Ben and signs a power of attorney giving
Ben the power, in case she fails to repay the loan, to
sell the jewelry as her agent for the best price that can
be obtained and to pay out of the proceeds the unpaid
amount of the loan, giving any surplus to her. Having
obtained the money, Amy tells Ben that she revokes
the power to sell. Is Amy’s power to sell revoked?
No, because Amy’s agency is coupled with interest and
therefore irrevocable. Even if Amy dies, the power is
still not affected. An agency coupled with an interest is
a relationship created for the benefit of the agent. The
agent actually acquires a beneficial interest in the
subject matter of the agency. Under these
circumstances, it is not equitable to permit a principal
to terminate the agency at will. Hence, this type of
agency is irrevocable.
QUESTION NO. 76
Abe owns a residential land in Baguio City. In need
of funds for his wife’s mounting hospital expenses,
he sold the land to Ben last year. But the deed of sale
was not registered. This year, Abe again sold the
land to Cesar who registered the sale and obtained a
transfer certificate of title over the property in his
name. Who has a better right over the land, Ben or
Cesar?
It depends on whether Cesar is an innocent purchaser
for value. Under the Torrens System, a deed or
instrument operates only as a contract between the
parties and as evidence of authority to the Register of
Deeds to make the registration. It is the registration of
the instrument that operates to convey or affect the
land. (Sec. 51, PD No. 1529).
In cases of double sale of registered land, it is a well-
settled rule that the buyer who first registers the sale in
good faith acquires a better right to the land. (Art. 1544,
Civil Code). Persons dealing with registered property
are not required to go beyond what appears on the face
of the certificate of title. (Orquiola v. CA 386, SCRA 301,
[2002]; Domingo v. Races 401 SCRA 197, [2003]). Absent
any showing that Cesar knew about, or ought to have
known the prior sale of the land to Ben or that he acted
in bad faith, and being first to register the sale, Cesar
acquired a good and a clean title to the property as
against Ben.
QUESTION NO. 77
Tony died with a will under which he left his estate
of Php2 Million to his common-law wife (Roshelle)
and nothing to his legitimate brother, Ronald, and
legitimate half-sister, Mimi.
30
a. Is the disposition of Tony's estate as set out in his
will a valid testamentary disposition?
Yes, because Tony has no compulsory heirs at the time
of his death. (Art. 887, New Civil Code) Brothers and
sisters are not compulsory heirs. Therefore, he can give
his entire estate to any person who is not otherwise
incapacitated to inherit from him. A common-law wife
is capacitated under the law as Tony was not married
to anyone.
b. Suppose Tony died intestate, will you have the
same answer?
No. I will give Ronald, a full-blood brother of Tony,
Php8 million from the estate, twice the share of Mimi,
the half-sister, who is entitled to receive Php4 million.
Roshelle is not entitled to receive anything from the
estate because she is not an intestate heir of Tony. (Art.
1006, Civil Code)
c. Suppose Tony died intestate and he was survived
by his brother Ronald, his half-sister, Mimi, and his
legitimate son Jayson, how will you distribute his
estate?
Jayson will inherit the entire estate of Php12 million to
the exclusion of Tony’s brother and half-sister. This
follows the principle of proximity under which the
relative nearer in degree exclude the more remote ones
and the principle of preference of lines under which
descendants exclude collateral relatives from the
inheritance.
QUESTION NO. 78
Seller, in reply to an inquiry from Buyer, sent a letter
dated December 8 stating terms upon which he
would sell 100 to 300 computer units of a certain
brand at a certain price. On December 16, Buyer sent
a letter to Seller ordering 90 computer units on those
terms. On December 18, Seller sent a telegram to
Buyer rejecting the order. The next day Buyer sent
Seller a telegram stating, “Please enter an order for
150 computer units per your letter of December 8.”
Seller refused the order, and Buyer sued for breach of
contract. Judgment for whom?
Judgment for Seller. Buyer’s telegram of December 16,
referring to the terms stated in Seller’s letter of
December 8, varied the number of computer units, and
was therefore a counter-offer. A counter-offer is a
rejection of the original offer. On December 8, the Seller
declined to fulfill the Buyer’s order, thus the
negotiations between the two parties was closed. As a
result, the Buyer’s attempt to fall back on the Seller’s
original offer by the telegram of December 19,
therefore, created no rights against the Seller.
QUESTION NO. 79
A Makati court rendered a decision nullifying the
marriage of Husband and Wife under Article 36 of
the Family Code because of their mutual
psychological incapacity. In its decision, the court
directed the spouses to partition the family dwelling
and other properties in equal shares.
Husband questions the decision regarding the
partition of the family dwelling. He claims that under
Articles 102 (absolute community) and 129 (conjugal
partnership) of the Family Code, the family dwelling
should be adjudicated to the spouse with whom
majority of the children choose to remain. Husband’s
move is expected because all the couple’s children
have chosen to live with him. Is Husband correct?
No. In a void marriage, regardless of the cause, the
property relations of the parties during their
cohabitation is governed by Article 147 of the Family
Code. Under this provision, a peculiar form of co-
ownership arises when a man and a woman who are
capacitated to marry each other, live exclusively with
each other as husband and wife without the benefit of
marriage or under a void marriage.
Article 147 of the Family Code presumes that property,
including the family dwelling, in the absence of proof
to the contrary, were acquired by the parties through
their joint efforts and will be owned by them in equal
31
shares. A party who did not participate in the
acquisition of property shall still be considered as
having contributed thereto jointly if the party’s efforts
considered mainly in the maintenance of the family
household.
The rules set up to govern the liquidation of either the
absolute community or the conjugal partnership, the
property regimes recognized for valid and voidable
marriages, in the latter case until the marriage is
annulled, are irrelevant to the liquidation of the co-
ownership that existed between Husband and Wife.
The first paragraph of Article 50 of the Family Code,
applying paragraphs (2), (3), (4) and (5) of Article 43,
relates only to valid and voidable marriages, and
exceptionally, to a void marriage under Article 40 of
the Family Code, i.e., the declaration of nullity of a
subsequent marriage contracted by a spouse of a prior
void marriage before the latter is judiciary declared
void. (Valdez v. RTC of Quezon City, 260 SCRA 221
[1996])
DOCTRINE: Articles 448 and 546 of the Civil Code on
builders in good faith are inapplicable in cases covered
by the Condominium Act where the owner of the land
and the builder are already bound by specific
legislation on the subject property (the Condominium
Act), and by contract (the Master Deed and the By-
Laws of the condominium corporation). Upon
acquisition of a condominium unit, the purchaser not
only signs his conformity to the sale; he also binds
himself to a contract with other unit owners. (Leviste
Management System, Inc., v. Marcorde, G.R. No. 199353,
April 4, 2018)
QUESTION NO. 80
Distinguish between ordinary and presumptive
legitimes.
Ordinary legitime arises only when a person dies. (Art.
777, Civil Code) The decedent may either be a child,
parent or spouse, ascendant or descendant. In a
presumptive legitime, the spouses whose marriage is
annulled or declared void are still alive. It is the
marriage itself which “died” or is terminated.
While in both kinds of legitimes the marriage is
terminated, the causes of termination are not the same.
In presumptive legitime, the cause is either the
annulment of the marriage or its nullification. In
ordinary legitime, the cause of termination is the death
of the decedent who is not necessarily a spouse.
The term legitime in the law on succession
presupposes the existence of a valid and effective will;
in presumptive legitime, no will is presupposed. It
applies without any relation to the existence or non-
existence of a valid and effective will of the “spouses.”
QUESTION NO. 81
Employer hired Driver to operate a delivery van.
Before allowing Driver to operate the van, Employer
checked Driver’s prior job references, required
Driver to undergo a physical examination by a doctor,
and provided Driver with extensive training in motor
vehicle safety.
Medic, the doctor who examined Driver, discovered
that Driver had a sleep disorder that caused Driver to
spontaneously fall asleep and that Driver had on
several occasions fallen asleep while driving. Driver
pleaded with Medic not to inform Employer of the
sleep disorder. Medic agreed, and omitted this
information from the physical examination form that
he sent to Employer. Medic also sent a letter to
Employer assuring Employer that Driver was “fit for
employment as a delivery van operator.” Employer
then provided Driver with a daily delivery route and
paid him a monthly salary.
While Driver was making deliveries for Employer,
the van left the road and struck Pedestrian, who
suffered severe injuries as a result. Pedestrian filed a
lawsuit for damages against Driver and Employer.
a. Is Driver guilty of negligence?
32
Yes. By operating the delivery van, Driver owes a duty
to exercise reasonable care to others on the road. Driver
failed to conform to the required standard of care when
his van left the road and struck Pedestrian. He knew
that he was susceptible to falling asleep and yet he took
the risk that he would not cause harm to others by
operating the van.
b. Can Pedestrian prevail under the res ipsa loquitor
rule concerning Driver’s alleged negligence?
Driver is guilty of negligence but not on the basis of res
ipsa loquitor. He was negligent because he operated the
van knowing that he was susceptible to falling asleep
while operating a vehicle.
The fact that Driver left the road and struck Pedestrian
is not a type of accident that happens only if the Driver
was negligent. There are many other situations that
could have caused the Driver to veer off the road,
including mechanical failure, defective steering
wheels, or emergency reaction. Thus, Driver’s
negligence is one of the many possible causes. This
factor makes it highly unlikely that res ipsa loquitur
could be used in such a situation.
c. What arguments will Pedestrian make in support
of his claim of negligence, what defenses can
reasonably be asserted, and who is likely to prevail
in a lawsuit filed by Pedestrian against Employer?
Pedestrian will argue that an employer is vicariously
liable for the negligence of his employees committed
within the scope of the employment relationship. Here,
Driver was negligent as discussed. Employer hired
Driver to operate the van and is thus an employer
within the meaning of vicarious liability. Driver’s
negligence occurred within the scope of the
employment relationship because Driver was making
deliveries for Employer when the van left the road and
struck the Pedestrian.
Employer will argue that he is liable for negligence
only if it can be determined that he failed to exercise
the diligence required in the selection and supervision
of his employees. Here, Employer made reasonable
efforts to investigate Driver’s prior job references and
physical conditions. By exerting such efforts, Employer
would not be liable for negligent hiring or supervision
of Driver.
QUESTION NO. 82
Abe and Bea Go were married in 1996. The following
year, Bea gave birth to Donald. Before Donald’s
birth, however, Abe left the conjugal home and
cohabited with another woman. Heartbroken, Bea
registered Donald as an illegitimate with an
“unknown” father. The item regarding the date and
place of marriage of parents was left blank.
Abe and Bea reconciled. Abe then discovered the
following: (a) The last name of Donald is Go, which
is Bea’s maiden last name; (2) His name as the father
of Donald is not entered, but marked “unknown,”
and (3) There is no information about the date and
place of marriage of the parents. May Abe seek a
correction of the entries in the certificate of birth of
his son, Donald, without judicial order under RA
9048?
No. The errors are not clerical within the meaning of
RA 9048 because the correction involves the change of
status of Donald from “illegitimate” to “legitimate.”
Abe has to file the proper court action to effect the
correction of the erroneous entries in the birth
certificate of his son, Don.
QUESTION NO. 83
Abe, a widower, has two married children (Ben and
Carla). Carla has two children (Drew and Eric), while
Ben has no children. Abe dies, leaving a will that
gives all his property equally to his children, Ben and
Carla, and provides that should a child predecease
him, leaving grandchildren, the grandchildren are to
inherit equally with the surviving child. Carla has
predeceased Abe. Abe dies with an estate valued at
Php180,000.
33
a. Discuss the distribution of Abe’s estate if the will
is invalid.
Should Abe’s will be denied probate, his estate will be
distributed as in intestacy. Under Article 981 of the
Civil Code, should children of the deceased and
descendants of other children who are dead, survive,
the former shall inherit in their own right, and the
latter by right of representation. Consequently, Ben
shall inherit in his own right Php90,000, while the
grandchildren (Drew and Eric) shall each inherit
Php45,000 by right of representation.
b. Discuss the distribution of Abe’s estate if the will
is valid.
Ben and Carla were the heirs originally instituted by
Abe in his will. Such institution concerns only the free
disposal. Because Carla predeceased Abe, the proviso
that the free disposal shall be received equally by Ben
and the children of Carla (Drew and Eric) is valid.
Consequently, Ben and the children of Carla are first
given their legitimes as follows: Ben, Php45,000 which
he shall receive in his own right; Drew and Eric shall
each inherit Php22,500 by representation. The free
disposal of Php90,000 is then divided equally among
the three instituted heirs, Ben, Drew and Eric. In sum,
the heirs shall inherit as follows:
Ben : 45,000 (in his own right)
30,000 (as voluntary heir)
Drew : 22,500 (by representation)
30,000 (as voluntary heir)
Eric : 22,500 (by representation)
30,000 (as voluntary heir)
QUESTION NO. 84
Abe owes Rey Php100,000 due on June 1. Abe has
been in a freak car accident, has already missed a
great deal of work, and consequently will not have
the money on June 1. Larry, Abe’s father, offers to pay
Rey Php25,000 in four equal installments if Rey will
excuse Abe from any further liability on the debt.
Rey accepts.
a. Is the transaction a novation?
Yes, the transaction is a novation because it involves
the substitution of Larry as new debtor in place of Abe,
the original debtor. This is true even if the substitution
is with the knowledge of Abe or without his
knowledge or against his will. (Art. 1290, Civil Code)
b. Does the agreement between Rey and Larry have
to be in writing to be enforceable?
No. Larry’s promise was not one of guarantee, but one
in which he made himself directly and primarily
responsible for the amount of credit extended. Thus,
Larry made his own contract with Rey, as he was not
guaranteeing his son’s obligation. Put otherwise,
Larry’s oral promise is binding on him because this is
not a case of a special promise to answer for the debt,
default or miscarriage of another which the law
requisites to be in writing to be enforceable. (Art. 1403,
par. 2(a))
QUESTION NO. 85
Mrs. Cruz leaves a painting worth Php50,000 in her
will to her grandson, Sam. Shortly before her death,
the painting is destroyed in a fire. Mrs. Cruz does not
change her will. What will Sam receive?
Sam is not entitled to receive anything from his
grandmother’s estate. Under Article 957 of the Civil
Code, the legacy or devise is without effect if the thing
bequeathed is totally lost during the lifetime of the
testator, or after the testator’s death without the heir’s
fault.
34
QUESTION NO. 86
What are the rules for the liquidation of the absolute
community of property or conjugal partnership of
gains in case of death of a spouse?
The rules regarding the liquidation of the absolute
community or conjugal partnership are the same.
These are:
1. If a special proceeding for the settlement of estate of
deceased persons under the Rules of Court has been
instituted after the death of one spouse, the absolute
community or conjugal partnership shall be
liquidated in the said proceeding.
2. If no special proceeding for the settlement of estate
of the deceased spouse is instituted, the surviving
spouse shall liquidate the absolute community or
conjugal partnership either judiciary or extra-
judiciary within one year from the death of the
spouse.
3. If no liquidation is made within one year from the
death of the deceased spouse, any disposition or
encumbrance involving any community or conjugal
property of the terminated marriage shall be void.
4. Should the surviving spouse contract a subsequent
marriage without liquidating the community
property or conjugal partnership, a mandatory
regime of complete separation of property shall
govern the property relations of the subsequent
marriage. This is to protect the heirs of the deceased
spouse. (Arts. 103 and 130, Family Code)
QUESTION NO. 87
Abe has a wife and two sons, both legitimate. His
estate, including a house, a car, shares of stocks, and
savings in a bank account, is worth Php2.1 million. If
Abe dies without a will, how shall his estate be
distributed?
Abe’s wife and two sons will each inherit Php700,000.
If a widow or widower and legitimate children or
descendants are left, the surviving spouse has in the
succession the same share as that of each of the
children. (Art. 996, Civil Code)
QUESTION NO. 88
Abe is married to Bea, while Chito is married to
Donna. Abe and Chito are brothers. Due to a property
dispute, Abe and Bea filed a possessory action
against Chito and Donna. Citing Article 151 of the
Family Code, Chito and Donna moved to dismiss the
complaint for failure to state a cause of action. Chito
and Donna claim that the absence of an allegation in
the complaint that earnest efforts toward a
compromise between members of the same family
had been made and that it was unsuccessful, renders
the complaint fatally defective. Should the court
dismiss the complaint?
No. Article 151 of the Family Code does not apply
because it is not exclusively between or among family
members. The inclusion of Donna as defendant and
Bea as plaintiff takes the case out of the ambit of Article
151 of the Family Code. The phrase “members of the
same family” refers to the husband and wife, parents
and children, ascendants and descendants, and
brothers and sisters, whether of the full or half-blood.
Here, Carol (Abe’s wife) and Donna (Chito’s wife) are
considered strangers to the family of Abe and Chito for
purposes of Article 151 of the Family Code. (Hontiveros
v. RTC Iloilo City, Br. 25, 309 SCRA 340)
QUESTION NO 89
Before their marriage, Abe and Bea lived together as
husband and wife resulting in the birth of two
children. To meet the needs of his family, Abe took
to work overseas while Bea stayed in the Philippines
to tend to their children. In 2003, Abe and Bea
eventually got married, but Abe had to return
overseas right away to continue his work.
35
While working abroad, Abe learned that Bea left
their house and never returned. Abe’s relatives took
care of the children. Abe came home to look for his
wife. He inquired about Bea's whereabouts from
their close friends and relatives, but they could offer
no help. He travelled as far as Bicol, where Bea was
born and raised, but he still could not locate her. Abe
then sought the help of Bombo Radyo to broadcast
his wife's disappearance. After almost seven years of
waiting and with the desire to marry again, Abe filed
a petition to have his wife declared presumptively
dead.
Did Abe comply with the requisites under Article 41
of the Family Code?
No. Prevailing jurisprudence has time and again
pointed out four requisites under Article 41 of the
Family Code that must be complied with for a
declaration of presumptive death to prosper:
a. The absent spouse has been missing for four
consecutive years, or two consecutive years if the
disappearance occurred when there is danger of
death under the circumstances laid down in Article
391 of the Civil Code;
b. The spouse present wishes to remarry;
c. The spouse present has a well-founded belief that
the absentee is dead;
d. The spouse present files a summary proceeding for
the declaration of presumptive death of the prior
spouse.
Abe has complied with the first, second, and fourth
requisites. Unfortunately, however, Abe failed to
discharge the third requisite which is to establish a
well-founded belief that his wife is dead.
Here, Abe’s efforts fall short of the degree of diligence
required by law for the following reasons:
First, he failed to present any of the alleged friends or
relatives to corroborate his “inquiries.” Moreover, he
gave no explanation for such omission. Failure to
present any of the persons from whom inquiries were
allegedly made tends to belie a claim of a diligent
search.
Second, he did not seek the help of concerned
government agencies, namely, the local police
authorities and the National Bureau of Investigation
(NBI). While a finding of well-founded belief varies
with the nature of the situation, it would still be
prudent for the spouse present to seek the aid of the
authorities in searching for the missing spouse. Absent
such efforts to employ the help of local authorities, the
spouse present cannot be said to have actively and
diligently searched for the absentee spouse.
Finally, aside from the certification of Bombo Radyo's
manager, Abe bases his “well-founded belief” on bare
assertions that he exercised earnest efforts in looking
for his wife. Again, Abe's bare assertions,
uncorroborated by any kind of evidence, falls short of
the diligence required to engender a well-founded
belief that the absentee spouse is dead. (Republic v.
Catubag, G.R. No. 210580, April 18, 2018)
QUESTION NO. 90
Seller and Buyer are cattle dealers. During an
extremely hot spell, Seller was worried over the fact
that he had too many cattle on the market.
Discovering this fact Buyer jokingly offered to buy
the cattle. After some dickering as to price, the parties
apparently came to an agreement. Buyer later insisted
that the whole transaction was a joke. Seller believed
that Buyer’s offer to buy the cattle was made
seriously. Seller sues for damages. Who wins?
Seller wins. A contract results from an offer and the
acceptance thereof. In other words, every contract
must have mutual consent of the parties which is
manifested by a meeting of the offer and the
acceptance upon the thing and the cause which are to
constitute the contract. The offer must be certain and
the acceptance absolute. (Art. 1319, Civil Code) The
elements of offer and acceptance are present in the
36
instant problem. Undisclosed intentions of one party
are not part of the contract. If the law were otherwise,
a party might successfully escape his obligations on a
contract by stating that he was only joking.
QUESTION NO. 91
Brenda orally offers to sell a number of household
items to Daria. No item is worth more than Php30.00,
but the total price for the items is Php550.00. Daria
orally accepts the offer. Brenda later receives an offer
from another buyer to buy all the items for Php750.00,
which Brenda accepts. Can Brenda argue that the
contract with Daria is not enforceable because it was
made orally and not in writing?
Yes, because the total price in the contract is Php550.00.
In sale of goods, the Statute of Frauds, under Article
1403 No. 2(d) of the Civil Code, requires that the
contract be in writing to be enforceable if the price
isPhp500.00 or more. The claim that the Statute of
Frauds does not apply because the unit price of each
item sold is less than Php500.00 is not tenable because
what controls is not the unit price but the total price of
the goods sold.
QUESTION NO. 92
PNB extended various loans to Mr. Go, a Chinese
businessman. As security, Mr. Go mortgaged his
house. Mr. Go defaulted in his loan payments
prompting the bank to extrajudicially foreclose on
the mortgage and buy the property at the auction sale.
The bank consolidated its title when Mr. Go failed to
redeem the property within the one-year redemption
period. To take possession of the property, the bank
filed a petition for the issuance of a writ of
possession.
The court issued two orders. The first order granted
PNB’s prayer for the issuance of writ of possession.
The second order ordered Mr. Go to deliver to the
property to the bank or deposit with the court the
monthly rentals on the property from the time the
bank consolidated its title on the property up to the
time Mr. Go vacates the house.
Mr. Go questioned the second order on the ground
that the bank should file an independent action and
not simply seek the payment of rentals in its petition
for issuance of a writ of possession. Mr. Go also
claimed that the court, sitting as a land registration
court, does not have jurisdiction to award back
rentals which should otherwise be sought in an
ordinary civil action. Is this correct?
No. When Mr. Go’s redemption period, PNB became
the owner of the property and was, from then on,
entitled to its fruits. Mr. Go ceased to be the owners of
the property, and had no right to the same as well as to
its fruits.
Under Section 32, Rule 39 of the Rules, on Execution,
Satisfaction and Effect of Judgments, all rents, earnings
and income derived from the property pending
redemption shall belong to the judgment obligor, but
only until the expiration of his period of redemption.
Thus, if Mr. Go leased out the property to third parties
after their period for redemption expired, as is the case
here, the rentals collected properly belonged to the
bank. Mr. Go has no right to collect them.
On the contention that the court--sitting as a land
registration court--does not have jurisdiction to award
back rentals which should otherwise be sought in an
ordinary civil action, this is no longer tenable. The
distinction between a trial court acting as a land
registration court with limited jurisdiction, on the one
hand, and a trial court acting as an ordinary court
exercising general jurisdiction, on the other, has been
removed by PD 1529. The change has simplified
registration proceedings by conferring upon the
designated trial courts the authority to act not only on
applications for “original registration” but also “over
all petitions filed after original registration of title, with
power to hear and determine all questions arising from
such applications or petition.” (Sps. Teves v. Aqui, G.R.
No. 216714, April 4, 2018)
37
QUESTION NO. 93
Petitioners Husband and Wife own a property. Wife
donated her interest in the property to Husband five
years before her death; Husband devised his half of
the property to his brother, Abe. Husband and Wife
died simultaneously in a car accident. Husband is
survived by his brother, Abe, while Wife is survived
by her brother, Rey. What interests do Abe and Rey
hold on the property?
Abe inherits half of the property, while Rey inherits the
other half, both as intestate heirs of the deceased
couple. The couple died simultaneously, and therefore,
there shall be no transmission of successional rights
from one to the other. (Art. 43, Civil Code). Because the
couple died simultaneously, they retained their
respective half interests in the property, which in turn
devolve to their heirs. Wife’s earlier donation of her
half share to Husband is void because it was made
during the marriage and is not a moderate gift under
the circumstances. (Art. 87, Family Code)
QUESTION NO. 94
Zirxthoussous Garcia filed a petition for change of
name with the Office of the Civil Registrar under the
administrative proceeding recognized by RA 9048.
He alleged that his name sounds ridiculous and is
extremely difficult to spell and pronounce. After
complying with the requirements of the law, the
Civil Registrar granted his petition and changed his
first name Zirxthoussous to Jesus. His full name now
reads "Jesus Garcia."
Jesus moved to General Santos City to work in a
multi-national company. There, he fell in love and
married Grace Garcia. Grace requested him to have
his first name changed because his new name, "Jesus
Garcia" is also the name of her father who abandoned
her family and became a drug lord. She wanted to
forget him.
In due time, Jesus filed another petition with the
Office of the Local Civil Registrar to change his first
name to "Roberto." He claimed that the change is
warranted because it will eradicate all vestiges of the
infamy of Grace's father. Will the petition prosper?
No. Under the law, Jesus may only change his name
once. In addition, the petition for change of name may
be denied on the following grounds:
A. The name Jesus is neither ridiculous, nor tainted
with dishonor nor extremely difficult to write or
pronounce.
B. There is no confusion to be avoided or created with
the use of the registered first name or nickname of the
petitioner.
C. The petition involves the same entry in the same
document, which was previously corrected or changed
under RA 9048.
DOCTRINE: In dacion en pago, property is alienated to
the creditor in satisfaction of a debt in money. The
debtor delivers and transmits to the creditor the
ownership of a thing as an accepted equivalent of the
payment of an outstanding debt. In such cases, Article
1245 provides that the law on sales shall apply, since
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, the payment for which
is to be charged against the debtor's obligation.
As a mode of payment, dacion en pago 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. 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 dacion 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.
(Dalisay Investments, Inc. v. SSS, G.R. No. 231053, April
38
04, 2018)
QUESTION NO. 95
Debtor owes Creditor Php100,000. Upon maturity of
the loan, Debtor fails to pay and so Creditor sues him
for collection sum of money. Debtor answers the
complaint and before actual hearing, Creditor
assigns Debtor’s promissory note to Stranger for
Php80,000. Stranger now demands payment from
Debtor. How much is Debtor obliged to pay
Stranger?
Debtor is liable for Php80,000 only, plus cost and
interest. Under Article 1634 of the Civil Code, when a
credit 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. In paying only such amount,
Debtor exercises his right of legal redemption.
REMINDER: The right of redemption granted in
Article 1634 of the Civil Code is proper only in case of
sale of the credit in litigation, and not to cases of barter,
donation, or other modes of acquisition.
QUESTION NO. 96
Aragon is indebted to Benitez and Chua in the
amount of Php200,000. Upon maturity of the debt,
Aragon fails to pay so Benitez and Chua sue him in a
complaint for sum of money. Aragon answers the
complaint and before actual hearing, Benitez assigns
his right to the credit to Chua (presumably ½ or
Php100,000) for only Php75,000. How much is Aragon
obliged to pay Chua?
Aragon is liable to pay Php200,000 to Chua because the
assignment was made to a co-owner. In other words,
Aragon cannot redeem the credit in litigation sold by
Benitez to Chua. Article 1635 of the Civil Code
enumerates the three instances when the debtor cannot
redeem a credit in litigation which is sold by his
creditor, one of them being an assignment or sale to a
co-owner.
QUESTION NO. 97
Tessie heard her neighbors talking about her son,
Abe, a minor and a polio victim. The neighbours said
that Tessie’s son is a cripple who has no future in life.
Does Tessie have a remedy against her neighbors?
Tessie is well within her right to institute a civil action
for damages against her neighbors because of their
vexing or humiliating comments about her son’s
physical condition. Article 26 of the Civil Code clearly
provides that every person shall respect the dignity,
personality, privacy, and peace of mind of his
neighbors. Talking about Tessie’s crippled son is a
clear sign of disrespect warranting a cause of action for
damages.
QUESTION NO. 98
Henry and Wilma are husband and wife. Since 1979,
Henry never came back from his tour of duty in
Arayat, Pampanga and he had never communicated
with Wilma or with his relatives. According to his
service record issued by the NAPOLCOM, he was
already declared missing since 1979. Wilma
constantly pestered the then Philippine
Constabulary for any news regarding her husband,
but the authorities had no answer to his whereabouts,
neither did they have any news of him going AWOL.
All they know was he was assigned to a place
frequented by the NPA.
Weeks became years and years became decades, but
Wilma never gave up hope, and after more than three
decades of waiting, Wilma is still hopeful, but the
times had been tough on her, especially with a
meager source of income coupled with her age, it is
now necessary for her to request for the benefits that
rightfully belong to her in order to survive.
After years of waiting, Wilma filed before the RTC a
39
petition for declaration of her husband’s
presumptive death to allow her to finally claim her
husband’s death benefits. Will the petition prosper?
No. Article 41 of the Family Code does not apply to
the petition because Wilma does not seek to remarry.
If anything, the petition invokes the presumption of
death under Articles 390 and 391 of the Civil Code, and
not that provided for under Article 41 of the Family
Code.
But this presumption of death under the Civil Code,
even if judicially made, would not improve Ester's
situation, because such a presumption is already
established by law. A judicial pronouncement to that
effect, even if final and executory, would still be a
prima facie presumption only. It is still disputable. It is
for that reason that it cannot be the subject of a judicial
pronouncement or declaration, if it is the only question
or matter involved in a case, or upon which a
competent court has to pass.
Accordingly, a decision of a court of law that Henry is
presumptively dead is not a requirement before the
Philippine Veterans' Affairs Office or the Armed
Forces of the Philippines can grant and pay the benefits
under the law. (Tadeo-Matias v. Republic, G.R. No.
230751, April 25, 2018)
QUESTION NO. 99
Because of a sudden burst of lightning, Abe’s carabao
which was tied to a tree in his farm scampered to a
nearby field. The crops on the field which were to be
harvested in a few days were totally destroyed.
Should Abe be held liable for the damages to the
crops?
No. Article 1174 of the Civil Code expressly provides
that no person shall be responsible for those events
which could not be foreseen, or which though foreseen,
were inevitable. Here, the incident under which Abe’s
carabao scampered to the nearby field because of a
sudden burst of lightning is an event which couldn’t
have been foreseen by Abe.
QUESTION NO. 100
Debtor owes Creditor the sum of Php20,000 on a
personal debt. Trudy, a third person, promises
Debtor that he would pay Creditor the full debt if
Debtor will give Trudy's children dance lessons.
Debtor faithfully provides dance lessons regularly
over an extended period. Can Creditor sue Trudy for
the payment of the debt?
Yes, because Creditor is an intended beneficiary of the
agreement between Debtor and Trudy. Under Article
1311 of the Civil Code, if a contract should contain
some stipulation in favor of a third person, he may
demand its fulfilment if he communicated his
acceptance top the obligor before its revocation. A
mere incidental benefit or interest of a person is not
sufficient. The contracting parties must have clearly
and deliberately conferred a favor upon a third person.
Such a stipulation obtains in this case.
QUESTION NO. 101
A seller shipped goods to a buyer by common carrier,
using a shipment contract. When the carrier arrived
at the buyer's location, the buyer refused to accept the
goods unless the driver unloaded them inside the
buyer's warehouse. The driver refused and the goods
were subsequently damaged. Who bears the risk of
loss?
The buyer bears the risk of loss, since this was a
shipment contract and the seller had completed the
performance obligations. Where actual delivery has
been delayed through the fault of either the buyer or
seller the goods are at the risk of the party in fault.
Since the buyer himself delayed the actual delivery of
the goods, he necessarily bears the loss of the goods.
(Art. 1504(2), Civil Code)
40
QUESTION NO. 102
Nilda and her husband Dante, were married in 1975.
A few weeks later, Dante, a member of the AFP, left
Nilda, and went to Jolo, Sulu where he was assigned.
Since then, Nilda heard no news from Dante and has
tried everything to locate him by making inquiries
with his parents, relatives, and neighbors as to his
whereabouts. In 2009, she filed before the RTC a
petition to declare Dante as presumptively dead for
the purpose of remarriage, alleging that after the
lapse of 33 years without any kind of communication
from him, she firmly believes that he is already dead.
Is Nilda correct?
No. Before a judicial declaration of presumptive death
can be obtained, it must be shown that the prior spouse
had been absent for four consecutive years and the
present spouse had a well-founded belief that the prior
spouse was already dead.
The well-founded belief in the absentee's death
requires the present spouse to prove that his/her belief
was the result of diligent and reasonable efforts to
locate the absent spouse and that based on these efforts
and inquiries, he/she believes that under the
circumstances, the absent spouse is already dead.
In this case, Nilda’s assertion that she tried to locate her
husband by making inquiries with his parents,
relatives, and neighbors as to his whereabouts, but
unfortunately, they also did not know where to find
him is not enough. Other than making the inquiries,
Nilda made no further efforts to find her husband. She
could have called or proceeded to the AFP
headquarters to request information about her
husband, but failed to do so. She did not even seek the
help of the authorities in finding him. (Republic v.
Tampus, G.R. No. 214243, March 16, 2016)
QUESTION NO. 103
Abe works for Yellow Cab delivering pizzas in a
motorcycle to customers across the city. One day, in
his haste to meet the “30 minutes or free pizza”
delivery standard, he causes an accident in which
Rey’s car is damaged. Against whom can Rey file a
civil action for damages?
Rey can file a civil action either against Abe for
breaching his duty and causing Rey harm, or against
Yellow Cab for being vicariously liable for Abe’s
actions, or against both. (Arts. 2176 & 2180, Civil Code)
DOCTRINE: The reckoning point is not the citizenship
of the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid
divorce is obtained abroad by the alien spouse
capacitating the alien spouse to remarry. But before the
divorced Filipino spouse can remarry, he or she must
file a petition for judicial recognition of the foreign
divorce.
The recognition of the foreign divorce decree may be
made in a Rule 108 proceeding itself, as the object of
special proceedings is precisely to establish the status
or right of a party or a particular fact.
Section 20 of A.M. No. 02-11-10-SC does not cover
cases involving recognition of foreign divorce because
the wording of Section 1 of this circular clearly states
that it applies to petitions for declaration of absolute
nullity of void marriages and annulment of voidable
marriages. A decree of absolute divorce procured
abroad is different from annulment as defined by our
family laws. A.M. No. 02-11-10-SC only covers void
and voidable marriages that are specifically cited and
enumerated in the Family Code of the Philippines.
(Republic v. Cote, G.R. No. 212860, March 14, 2018)
QUESTION NO. 104
Abe and Ana are engaged to be married. A month
before their wedding, Ana was forced to marry Rey.
Despite the marriage, however, Abe and Ana
continued their amorous relationship thru text
messaging and social networking expressing their
love for each other. Rey consults you on whether
41
these acts of Abe and Ana would constitute an
actionable wrong. Advise Rey.
I would advise Rey that he can bring an action against
Abe for damages for meddling with or disturbing
Rey’s married relations with Ana. This is an actionable
wrong recognized under Article 27 (2) of the Civil
Code.
QUESTION NO. 105
Tito dies with a will leaving his entire estate of Php6
million to his live-in partner, Marie. Tito is survived
by his brother, Sonny, and his legitimate half-sister,
Ana.
a. Is the disposition in Tito’s will valid?
Yes. Tito’s testamentary disposition of his entire estate
to his common-law wife is in accordance with the law
on succession. Tito has no compulsory heirs, who can
inherit from him. (Art. 887, Civil Code) Under the law,
brothers and sisters are not compulsory heirs.
Accordingly, Tito can bequeath his entire estate to
anyone who is not otherwise incapacitated to inherit
from him. A common-law wife is not incapacitated
under the law, as Tito is not married to anyone.
b. Suppose Tito dies intestate, how shall his estate be
distributed?
Assuming that Tito’s entire estate of Php6 million is his
net hereditary estate, Sonny is entitled to receive Php4
million which is twice the intestate share of Ana, a half-
sister, who is entitled to inherit Php2 million. Marie is
not entitled to inherit anything because she is not a
legal heir of Tito. (Art. 1006, Civil Code)
QUESTION NO. 106
Abe owns a farm land with no access to a public road.
He had been passing through Rey’s land with Rey’s
acquiescence for over 20 years. Abe recently
subdivided his property into ten residential lots and
sold them to different persons. Rey immediately
blocked the pathway and refused to let Abe’s buyers
pass through his land. Did Abe acquire an easement
of right of way over Rey’s land?
No. An easement of right of way is discontinuous in
nature - it is exercised only if man actually passes over
somebody’s land. Under Article 622 of the Civil Code,
discontinuous easements, whether apparent or non-
apparent, may only be acquired by title.
QUESTION NO. 107
To secure a loan from a bank, Abe assigned his
leasehold rights over a stall at the public market in
favour of the bank. The assignment provides that in
case of default in the payment of the loan, the bank
shall have the right to sell Abe’s rights over the
market stall as his attorney-in-fact, and to apply the
proceeds to the payment of the loan.
a. Is the assignment a cession or a mortgage?
The deed of assignment is a mortgage, not a cession of
leasehold rights. A cession would have transferred
ownership to the bank. The grant of authority to the
bank to sell the leasehold rights in case of default is
proof that no such ownership was transferred and that
a mere encumbrance was constituted. There would
have been no need for such authority had the deed of
assignment been a true cession.
b. If the assignment is a mortgage, is the stipulation
authorizing the bank to sell the leasehold rights in
case of default a pactum commissorium?
No, it is not. The stipulation is pactum commissorium
only when default in the payment of the loan
automatically vests ownership of the encumbered
property in the bank. Here, the bank does not
automatically become the owner of the property upon
default of the mortgagor. (Art. 2088, Civil Code) The
bank has to sell the property and apply the proceeds to
the loan.
42
QUESTION NO. 108
X, Y and Z are co-owners in equal shares of a
residential house and lot. During the co-ownership,
the co-owners performed the following acts on the
co-owned property: a) X caused the repair of the
foundation of the house, then titling to one side, to
prevent the house from collapsing; b) Y and Z
mortgaged the house and lot to secure a loan; c) Y
built a concrete perimeter fence on the lot; d) Z built
a beautiful grotto in the garden; and e) X and Z sold
the property to B for a good price.
A. Is the decision of X in repairing the foundation of
the house binding on Y and Z? May X require Y and
Z to contribute their 2/3 share of the expense?
Yes. Under the law, each co-owner has the right to
compel the other co-owners to contribute to the
expense of preservation of the thing (house) owned in
common in proportion to their respective interests in
the co-ownership. (Arts. 485 and 488, Civil Code) The
expense incurred by X in repairing the foundation of
the house is decidedly an expense to preserve the
house by preventing its collapse.
b. What is the legal effect of the mortgage executed
by Y and Z?
The mortgage does not bind X and shall be deemed to
cover only the respective rights and interests of Y and
Z in the house and lot. The mortgage shall be limited
to the portion which may later be allotted to Y and Z in
the partition of the property owned in common. (Art.
493, Civil Code)
c. Is the decision of Y in building a perimeter concrete
fence binding on X and Z? May Y require X and Z to
contribute their 2/3 share of the expense?
Y’s decision in building the perimeter fence is not
binding upon X and Z. Expenses to improve the thing
owned in common must be decided upon by a majority
of the co-owners who represent the controlling
interest. (Arts. 489 and 492, Civil Code) Since Y does not
constitute a majority with a controlling interest in the
co-ownership, his decision does not bind the other co-
owners.
d. Is the decision of Z in building a grotto binding on
X and Y? May Z require X and Y to contribute their
2/3 share of the expense?
Z’s decision in building a grotto is not binding upon X
and Y. Expenses to embellish the thing owned in
common must be decided upon by a majority of the co-
owners who represent the controlling interest. (Arts.
489 and 492, Civil Code) Since Z does not constitute a
majority with a controlling interest in the co-
ownership, his decision does not bind the other co-
owners.
e. What is the effect of the sale by X and Z?
The sale to B does not bind the 1/3 share of Y and covers
only the 2/3 share of X and Z in the land. (Art. 493, Civil
Code) Moreover, Y has the right to redeem the 2/3 share
sold to B by X and Z considering that B is a third person
to whom the ideal shares of the co-owners were
onerously alienated. (Art. 1620, Civil Code)
QUESTION NO. 109
Seller sells to Buyer his house and lot for Php1
million payable in five equal annual instalments.
The sale is registered and title is issued to Buyer.
Buyer later failed to pay the last three instalments
and Seller files an action for collection of sum of
money, damages and attorney’s fees. Seller
immediately proceeds to the Registry of Deeds for
annotation of a notice lis pendens on Buyer's
certificate of title. Is the notice lis pendens proper?
The notice lis pendens is not proper because Seller’s
action against Buyer is only for collection of sum of
money, damages, and attorney's fees. Annotation of a
notice lis pendens is proper only in cases involving the
recovery of possession of real property, quieting of title
or removal of a cloud thereon, or partition or any other
proceeding affecting title to the land or for the use or
43
occupation thereof. The action filed by Seller does not
fall on anyone of these.
QUESTION NO. 110
Abe lost Php100,000 in a card game, but he had no
more cash to pay Rey, the winner. When the card
game ended, Abe still owed Rey Php30,000 which
Abe promised to pay in two weeks. When Abe still
failed to pay after three months, Rey filed a suit to
collect.
a. Will the collection suit prosper?
The collection suit will not prosper. Under Article 2014
of the Civil Code, no action can be maintained by the
winner for the collection of what he has won in a game
of chance.
b. Could Tessie institute an action to recover the
amount which her husband lost?
If the money paid by Abe to Rey were conjugal or
community property, the wife could sue to recover it
pursuant to Article 117(7) of the Family Code which
expressly provides that losses in gambling are borne
exclusively by the loser-spouse. Conjugal or
community funds may not be used to pay for such
losses. And if the money were the exclusive property
of Abe, the wife may also sue to recover it under Article
2016 of the Civil Code if she and the family needed the
money for support.
QUESTION NO. 111
Dirk, a German national, and Maria, a Filipina, were
married. After several years, a Davao court declared
the nullity of their marriage on the basis of Dirk’s
psychological incapacity.
Consequently, Dirk filed a petition to dissolve the
conjugal partnership. In particular, he prayed that
Maria reimburse him of the funds he spent in buying
two lots which he claimed were acquired during their
marriage with the money he received from the Dutch
government as his disability benefit. He claimed that
Maria did not have sufficient income to pay for their
acquisition. How will the court rule?
Case dismissed. A claim for reimbursement of the
value of purchased parcels of Philippine land
instituted by a foreigner against his former Filipina
spouse cannot prosper on the ground of equity where
it is clear that he willingly and knowingly bought the
property despite the prohibition against foreign
ownership of Philippine land under Section 7, Article
XII of the 1987 Philippine Constitution.
Even on the grounds of equity, Dirk is not entitled to
reimbursement given that he acquired no right
whatsoever over the properties because of their
unconstitutional purchase. It is well-established that
equity as a rule will follow the law and will not permit
that to be done indirectly which, because of public
policy, cannot be done directly. Surely, a contract that
violates the Constitution and the law is void, vests no
rights, creates no obligations, and produces no legal
effect at all. (Beumer v. Amores, G.R. No. 195670,
December 3, 2012)
QUESTION NO. 112
Abe sold his car to Ben who issued a post-dated
check. Before the due date of the check, Ben sold the
car to Dave, an innocent purchaser for value. The
check issued by Ben was later dishonored because
Ben had already closed his checking account when he
issued the check. Abe sued to recover the car from
Dave on grounds that he had been unlawfully
deprived of the car by Ben’s deception. Will the suit
prosper?
The suit will not prosper because Abe was not
unlawfully deprived of the car although he was
unlawfully deprived of the price. The perfection of the
sale and the delivery of the car was sufficient to allow
Ben to acquire ownership of the car, which he can
lawfully transfer to Dave. Article 559 of the Civil Code
applies only to a person who is in possession in good
44
faith of the property, and not to the owner thereof.
Here, Ben was the owner, and, hence, Dave acquired
the title to the car. Non-payment of the price in a
contract of sale does not render ineffective the
obligation to deliver. The obligation to deliver a thing
is different from the obligation to pay its price.
QUESTION NO. 113
In 1980, Abe leased to Rey a piece of land for a term
of three years with an option to purchase the property
during the lease period for Php500,000. After the
expiration of the lease, Abe allowed Rey to remain in
the premises on a monthly basis at the same rental
rate. In 1984, Rey tendered Php500,000.00 to Abe and
demanded that Abe execute a deed of absolute sale of
the land in his favor. Abe refused on the basis that
Rey no longer had an option to buy the property. If
Rey files an action for specific performance against
Abe, who will prevail?
Abe will prevail. The implied renewal of the lease on a
month-to-month basis did not have the effect of
extending the life of the option to purchase which
expired at the end of the original lease period. Abe is
therefore correct in refusing to sell on the ground that
the option had expired.
QUESTION NO. 112
Abe loaned his passenger jeepney to Rey for him to
bring his wife to NAIA for his wife’s travel to
Hongkong. On the way back to Baguio, people
stopped the passenger jeepney. Rey stopped for them
and allowed them to ride on board, accepting
payments as if they were ordinary passengers of
jeepneys plying their route.
When Rey was cruising at moderate speed along the
highway in Sison, Pangasinan, a wayward vehicle
coming from the opposite direction hit the jeepney.
The jeepney was wrecked.
a. What kind of agreement did Abe and Rey enter
into with respect to the use of the passenger jeepney?
The contract is a commodatum. (Art. 1933. Civil Code)
Commodatum is a contract by which one of the parties
(bailor) delivers to another (bailee) something not
consumable so that the latter may use it for a certain
time and return it.
b. Is Rey liable to Abe for the loss of the jeepney?
Yes, because Rey devoted the thing to a purpose
different from that for which it has been loaned (Art.
1942, par. 2, Civil Code)
QUESTION NO. 113
Abe owns a mango plantation which he can no longer
properly manage because of a lingering illness. Since
Abe is indebted to Rey in the sum of Php500,000, he
asks Rey to manage the plantation and apply the
harvest to the payment of his obligation, until his
debt has been fully paid. Rey agrees.
a. What agreement did Abe and Rey enter into?
Abe and Rey entered into an accessory contract of
antichresis. Under Article 2132 of the Civil Code, by a
contract of 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 the
interest, and thereafter to the principal of his credit.
b. What obligations are imposed by law on Rey as a
consequence of his agreement with Abe?
Rey is obliged to pay taxes and charges upon the land
and bear the necessary expenses for preservation and
repair which he may deduct from the fruits. (Art. 2135,
Civil Code)
c. Does the law require any specific form for the
validity of the contract?
As to perfection, antichresis is a formal or solemn
contract. The amount of the principal and interest must
45
be specified in writing, otherwise the antichresis is
void. (Art. 2134, Civil Code)
d. May Abe reacquire the plantation before payment
of his indebtedness?
No. Article 2136 of the Civil Code specifically provides
that the debtor cannot reacquire the enjoyment of the
immovable without first having totally paid what he
owes the creditor. However, it is potestative on the part
of the creditor to do so in order to exempt him from his
obligation under Article 2135 of the Civil Code. The
debtor cannot reacquire the enjoyment, unless Rey
compels Abe to enter again the enjoyment of the
property.
Margie Santos Mitra filed a petition for the probate of
the notarial will of Remedios Legaspi. Mitra alleged
she is a de facto adopted daughter of Legaspi and
Legaspi left a notarial will instituting Mitra along with
Orlando Castro, Perpetua Sablan-Guevarra, and
Remigio LegaspiSablan, as her heirs, legatees and
devisees. Perpetua Sablan-Guevarra and Remegio
Sablan opposed the petition. They aver that the will
was not executed in accordance with the formalities
required by law since the last page of the will which
contained the Acknowledgment was not signed by
Legaspi and her instrumental witnesses. Further the
attestation clause failed to state the number of pages
upon which the will was written. The number of pages
was however supplied by the Acknowledgment
portion.
QUESTION NO. 114
Tomasa signed a notarial will naming Maria and
other persons as her heirs. Dionisia opposed the
probate of the will on grounds that the testator and
her witnesses did not sign the last page of the will
and the attestation clause did not state the number of
pages upon which the will was written. The number
of pages, however, was supplied by the
Acknowledgment portion.
a. Is the failure of the testator and her witnesses to
sign the last page of the will fatal to its validity?
No. When Article 805 of the Civil Code requires the
testator to subscribe (sign) at the end of the will, it
necessarily refers to its logical end, which is where the
last testamentary disposition ends. The last page of the
will does not contain any testamentary disposition, but
it is a mere continuation of the Acknowledgment.
b. Is the he failure to state the number of pages in the
attestation clause enough to invalidate the will?
No. What is imperative for the allowance of a will
despite the existence of omissions is that such
omissions must be supplied by an examination of the
will itself, without the need of resorting to extrinsic
evidence. However, those omissions which cannot be
supplied except by evidence aliunde would result in the
invalidation of the attestation clause and ultimately, of
the will itself.
An examination of the will reveals that the attestation
clause indeed failed to state the number of pages
comprising the will. However, this omission was
supplied in the Acknowledgment. It was specified
there that the will is composed of four pages, the
Acknowledgment included. (Mitra v. Sablan, et. al.,
G.R. No. 213994, April 18, 2018)
DOCTRINE: In dacion en pago, property is alienated to
the creditor in satisfaction of a debt in money. The
debtor delivers and transmits to the creditor the
former's ownership over a thing as an accepted
equivalent of the payment or performance of an
outstanding debt. In such cases, Article 1245 provides
that the law on sales shall apply, since 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, the payment for which is to be
charged against the debtor's obligation.
As a mode of payment, dacion en pago extinguishes
the obligation to the extent of the value of the thing
delivered, either as agreed upon by the parties or as
46
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. 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 dacion 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.
QUESTION NO.115
On January 5, Debtor obtains a loan of Php10 million
from Creditor. The promissory note does not state
any payment of interest and is due on December 31.
Before due date, however, Debtor and Creditor
become political enemies and Debtor deliberately
defaulted in paying the note, forcing Creditor to
bring suit.
a. How much can Creditor recover from Debtor?
Creditor can recover from Debtor Php10 million,
together with interest at the legal rate of 12% from the
date of judicial or extrajudicial demand. Because
Debtor acted in bad faith, he is also liable to pay all
damages which may be reasonably attributed to the
non-performance of the obligation. (Art. 2201(2). Civil
Code)
b. Can Creditor ask for moral damages?
Yes. Under Article 2220 of the Civil Code, moral
damages are recoverable in case of breach of contract
where the defendant acted fraudulently or in bad faith.
Here, Debtor acted in bad faith because he refused to
pay the value of the note to spite Creditor.
c. Can Creditor ask for nominal damages?
No, he cannot. Nominal damages are not recoverable
in this case because Creditor is already indemnified of
his losses with the award of actual and compensatory
damages. Nominal damages are adjudicated only 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. 2231. Civil Code)
d. Can Creditor ask for temperate damages?
Creditor may ask for, but would most likely not be
awarded, temperate damages considering that his
actual damages may already be compensated upon
proof thereof with the promissory note. Temperate
damages may be awarded only when the court finds
that some pecuniary loss has been suffered but its
amount cannot, from the nature of the case, be proved
with certainty. (Art. 2224, Civil Code)
e. Can Creditor ask for attorney’s fees?
Yes, because Debtor's act or omission has compelled
Creditor to sue to protect his interests. Furthermore.
attorneys' fees may be awarded by the court when it is
just and equitable. (Art. 2208, Civil Code)
QUESTION NO. 116
Abe, a widower, has three legitimate children (Allan,
Ben, and Charlie). He executed a will instituting as
his heirs to his estate of Php120,000 his two children,
Allan and Ben, and his friend, Fidel. Upon his death,
how should Abe's estate be divided?
The institution of Allan, Ben and Fidel to the entire
estate results in the preterition of Charlie, a
compulsory heir of Abe in the direct line. This
preterition of Charlie annuls the institution of Allan,
Ben and Fidel as Abe’s heirs. Intestacy results. Allan,
Ben and Charlie will each get Php40,000. Fidel gets
nothing.
QUESTION NO. 117
In the preceding question, suppose Abe instituted
his two children, Allan and Ben, as his heirsl, but he
47
gave a legacy of Php30,000 to his friend, Fidel. How
should Abe’s estate be divided upon his death?
Assuming that Charlie was preterited, the institution
of Allan and Ben is annulled, but the legacy of
Php30,000 to Fidel shall be respected for not being
inofficious. Therefore, the remainder of Php90.000 will
be divided equally among Allan, Ben, and Charlie.
QUESTION NO. 118
Rey and Abe are co-owners of a parcel of land. Rey
recently discovered that Abe had sold his (Abe’s)
share to Larry on January 1, 2015. The following year,
Rey offered to redeem Abe’s share from Larry, but
Larry replied that Rey's right to redeem had already
prescribed. Is Larry correct?
Larry is not correct. Rey can still enforce his right of
legal redemption as a co-owner. Article 1623 of the
Civil Code gives a co-owner 30 days from written
notice of the sale by the vendor to exercise his right of
legal redemption. Here, the 30-day period for the
exercise by Rey of his right of redemption had not even
begun to run because no notice in writing of the sale
appears to have been given to him by Abe.
QUESTION NO. 119
While sojourning in New York, A and B, both
Filipinos, exchanged marital vows through the
internet. Assuming such a marriage is valid in New
York, is the marriage valid here?
Yes, the marriage is also valid here. The case does not
appear to fall under any of the exceptions mentioned
in paragraph 1 of Article 26 of the Family Code. Such
being the case, the general rule on lex loci celebrationis
applies, that is, valid there, valid here.
QUESTION NO. 120
A and B are Filipino overseas workers in Libya. They
fell in love and decided to get married in accordance
with Libyan law. On the day of the wedding, A fell
ill and could not make it to the ceremony. Upon
advice of his Libyan lawyer, he requested his best
man to stand as proxy during the wedding. The
marriage was celebrated in accordance with Libyan
law and valid there as such. Is the marriage valid in
the Philippines?
Yes. Under Article 26 of the Family Code, a marriage
valid where celebrated is valid in the Philippines. To
this general rule, the law enumerates exceptions, but a
marriage by proxy is not one of those enumerated.
Hence, the marriage is valid. Expressio unius est exclusio
alterius.
QUESTION NO. 121
H, a Filipino, marries W, an American, in New York.
At the time of the marriage, H was psychologically
incapacitated to enter into marriage, although the
incapacity manifested itself five years after the
wedding. Assuming that the marriage is valid in New
York, is it also valid here?
No. The rule is: “valid there, valid here,” except those
prohibited under Arts. 35 (1), (4), (5) and (6), 36, 37 and
38 of the Family Code. The marriage is void under
Article 26 of the Family Code. The exception applies.
QUESTION NO. 122
Two Filipino second cousins got married in Japan
where such a marriage is void. Is the marriage valid
here?
No. The rule is: “valid there, valid here.” Hence, “void
there, void here” also. This notwithstanding the fact
that had the marriage been solemnized here, it would
have been perfectly valid.
48
QUESTION NO. 123
H, a Filipino, marries W, his French girlfriend, in
Paris. At the time of the marriage, H is
psychologically incapacitated to enter into marriage
under Philippine law. Under French law, the
marriage is voidable. Is the marriage also voidable in
the Philippines?
No. The marriage is void. The rule is: “valid there,
valid here”; “void there, void here”; “voidable there,
voidable here.” However, the case falls under one of
the exceptions, Article 36 of the Family Code.
QUESTION NO. 112
Abe built in good faith a house on Ben’s land. As
owner of the land, Ben opted to appropriate the
house and bound himself to pay the proper
indemnities.
a. Before the indemnities are given, may the builder
(Abe) retain the house?
Yes, Abe, the builder, is entitled to retain the house till
he is paid the full indemnities since he is a builder in
good faith. (Art. 448, Civil Code)
b. Is Abe entitled to the rents that accrue in the
meantime in case the building is leased to another?
No, because his possession is no longer that of a
possessor in good faith. If Abe receives the rents, he
must deduct them from whatever indemnity is due
him.
c. Is Abe legally entitled to the fruits that will accrue
during the time he retains the premises?
No, for again we may say that he is no longer a
possessor in good faith.
d. Is Ben entitled to collect rent from Abe while the
latter retains the house?
No, otherwise the right of retention till indemnity is
given would be rendered nugatory.
e. If Ben elects to compel Abe to pay the value of the
land (assuming that its value is not considerably
greater), is Abe, the builder, entitled to the right of
retention?
No, because he is the one required to pay. The right of
retention applies only when landowner appropriates
the building.
QUESTION NO. 124
Abe purchased a property adjacent to Ben’s. Abe
later discovered after a relocation survey that a 30-
square meter portion of his lot is occupied by Ben’s
house. Despite repeated demands, Ben refused to
vacate the encroached portion. He claims that under
Article 448 of the Civil Code, he has the pre-emptive
right to purchase the portion encroached upon. Is Ben
correct?
No. Article 448 of the Civil Code is unequivocal that
the option to sell the land on which another builds,
plants or sows in good faith, belongs to the landowner.
This advantage in Article 448 of the Civil Code is
accorded the landowner because “his right is older,
and by the principle of accession, he is entitled to the
ownership of the accessory thing.” (Benitez v. CA, 266
SCRA 242)
QUESTION NO. 125
A contract to sell states that “title will be transferred
by Seller to Buyer only upon complete payment of
the purchase price.” When Buyer failed to pay, Seller
filed for rescission. Is the action proper?
No. In a contract to sell, the seller retains title to the
thing sold until the buyer fully pays the purchase price.
The full payment is a positive suspensive condition,
the non-fulfillment of which is not a breach of contract
but merely an event that prevents the seller from
49
conveying title to the purchaser. The non-payment of
the purchase price renders the contract to sell
ineffective and without force and effect. (Ayala Life v.
Burton Development Corp., 479 SCRA 462).
Since the obligation of seller did not arise because of
the failure of buyer to fully pay the purchase price,
Article 1191 of the Civil Code (which provides for
rescission) would have no application.
QUESTION NO. 126
Seller agreed to sell to Buyer a parcel of land for
Php100,000. Buyer was given up to 30 days to raise the
necessary funds. Buyer paid nothing for the privilege
of making up his mind. Before the lapse of the 30-day
period, Seller backed out of the agreement. Buyer
now sues to compel Seller to sell. Is Seller required
to sell the property to Buyer?
No, for this was merely a unilateral promise on the part
of Seller to sell, without a corresponding promise on
the part of Buyer to buy. Seller’s promise is not binding
on him since there was no consideration distinct from
the price. Hence, even if Seller’s promise had already
been accepted by the would-be buyer, Seller could still
legally withdraw from the agreement.
QUESTION NO. 127
X, the owner of a certain jewelry, entrusts them to Y
for sale or return upon a specified period. Y sells the
jewelry to Z, but retains the price. Can X obtain
possession of the jewelry from Z?
It depends. If the phrase “on sale or return” refers to a
true case of sale from X to Y, it is clear that delivery to
Y transferred ownership to him, and the subsequent
sale and delivery of the jewelry by Y to Z also
transferred ownership to Z. Hence, X cannot obtain
possession of the jewelry from Z. X’s right would be to
proceed against Y as a buyer who has not paid.
If, on the other hand, the phrase “for sale or return”
merely meant that X was constituting Y as his agent
with authority to sell the jewelry, X would still have no
right to recover the jewelry from Z (for after all, Z had
already paid for it and therefore, there can possibly be
no rescission for non-payment of the price). But this
time, X’s remedy would be to proceed against Y not as
a buyer but as an agent who has failed to render an
account of his transaction and who has failed to deliver
to the principal whatever he may have received by
virtue of the agency. (Art. 1891, Civil Code)
QUESTION NO. 128
Seller sells to Buyer a house and lot for Php500,000
payable within 60 days after the execution of the deed
of sale. It is expressly agreed in the deed that the sale
would ipso facto be of no effect upon Buyer’s failure
to pay as agreed. Buyer fails to pay on maturity, so
Seller sues to declare the contract of no force and
effect. If Buyer tenders payment before the filing of
the action (but after the stipulated date of payment),
would the action still prosper?
The action would not prosper. According to the law,
“in the sale of immovable property, even though it may
have been stipulated that upon failure to pay the price
at the time agreed upon the rescission of the contract
shall of right take place, the vendee may pay, even after
the expiration of the period, so long as no demand for
the rescission of the contract has been made upon him
either judicially or by notarial act. After the demand,
the court may not grant him a new term. (Art. 1592,
Civil Code)
QUESTION NO. 129
Anton borrowed Ben’s truck. During a fire which
broke out in Anton’s garage, he had time to save only
one vehicle, and he saved his car instead of the truck.
Is Anton liable for the loss of Ben’s truck?
Yes. The bailee in commodatum is liable for the loss of
the thing loaned, even if it should be through a
50
fortuitous event if, being able to save either the thing
borrowed or his own thing, he chose to save the latter.
(Art. 1492, Civil Code)
QUESTION NO. 129
A, B, and C are co-owners of a parcel of land.
Unknown to his co-owners, A sold a specific portion
of the co-owned property to D, who immediately
takes possession and builds a house thereon. Per
deed of sale executed by A, the portion sold to D is to
be taken from the undivided share of A in the co-
owned property. Several years later, D sold his
portion to E.
Meanwhile, A, B and C sold the entire co-owned
property to F who caused the reconstitution of the
certificate of title of his sellers, by which title the
entire property was transferred to him. Is the sale by
a co-owner of a specific portion of a community
property valid?
Yes. The mere fact that A transferred a definite portion
of the co-owned property by metes and bounds to D
does not per se render the sale a nullity. There can be
no doubt that the transaction entered into by A and D
could be legally recognized in its entirely since the
object of the sale did not even exceed the ideal share
held by A in the co-ownership. A’s right to sell a part
of his undivided interest in the co-owned property is
absolute in accordance with the well-settled doctrine
that a co-owner has full ownership of his pro indiviso
share and has the right to alienate, assign and
mortgage it, and substitute another person in its
enjoyment. (Del Campo v. CA, 351 SCRA 1 (2001)
QUESTION NO. 130
A engaged B to build a residential condominium
building on his titled property. To finance the
construction, A obtained a loan from C, secured by a
mortgage on the condominium project. When the
loan was not paid. A entered into an agreement with
C to whom he conveyed all his rights and interests in
the realty project. In the same agreement, both A and
C recognized B’s contractor’s lien by virtue of which
C agreed to assign to him three bedroom units to
come from the condominium project. C later entered
into a lease agreement with AMA Computer School
which converted the condominium building into a
computer school.
Because the conversion included the bedroom units
assigned to him, B brought an action against C for
delivery of his condominium certificate of title. C
defends on the ground that B is not a condominium
buyer within the meaning of the Condominium Law.
Decide.
Yes. The term “buyer” under the Condominium Law
is not limited to those who enter into contract of sale.
Its concept is broad enough to include those who
“acquire for valuable consideration a condominium
unit.” In the instant case, B is a buyer within the
contemplation of the law (PD 957). He acquired the
three condominium units as they were assigned to him
by A in payment of his indebtedness as contractor’s
fees. Clearly, this acquisition of the units was for a
valuable consideration.
QUESTION NO. 131
A and B are neighbors. On his building’s wall, A
opened a window beneath the ceiling joists to admit
light in 1995. Even after 10 years, B may still obstruct
the light by constructing on his own lot a building
higher than A’s unless A makes a notarial
prohibition prohibiting B from making the
construction. If in 2003 A makes the prohibition, may
B still make the obstruction in 2007?
Yes, because it is only in 2013 (ten years after the
notarial prohibition) when A may be said to have
acquired the negative easement of light and view.
After 2013, B may no longer obstruct.
51
QUESTION NO. 132
About 15 years ago, A constructed a house on her lot
adjoining the lot owned by B. He provided it with
windows overlooking B’s lot half a meter away from
the boundary line. A month ago, B brought an action
against A for the closure of the windows on the
allegation that they violate the law on distances. Has
A acquired an easement of light of view by
prescription of ten years?
No. In the first place, there was no formal prohibition
under which A prohibited B from obstructing his light
and view. In the second place, A did not observe the
legal requirement that there should be a distance of at
least two meters between the windows and B’s lot,
since the view is direct. According to law, non-
observance of this distance does not give rise to
prescription.
QUESTION NO. 133
H and W are husband and wife. Believing that his
wife was sterile, H donated to C in 1990 a parcel of
land valued at Php40,000. In 1998, W gave birth to a
son, B. Assuming that the land is the exclusive
property of H and that the net value of H’s estate at
the time of B’s birth is Php40,000, what will be the
extent of the reduction of the donation?
The donation must be reduced by Php20,000, because
H’s free disposal is only to the extent of Php20,000.
Therefore:
40,000 value of donation
40,000 value of estate at B’s birth
80,000 Net Hereditary Estate
Legitime of B: 40,000
Legitime of W: 20,000
60,000
Free Disposal 20,000
Reduction 20,000
Judicial action is necessary for reduction or revocation
of donation. (Art. 763, Civil Code) Period of prescription
is four years.
QUESTION NO. 134
X has no child. At the time he gave a donation of
P100,000, he had P1 million. Therefore, after the
donation, he had P900,000 left. Later he adopted a
minor child. At the time he made the adoption, he
had only P50,000 left. Should the donation be
reduced? How much and within what period?
The donation of Php100,000 should be reduced by
Php25,000 because the legitime is impaired to that
extent (the free disposal being only Php75,000). Thus:
50,000 (value at the time of adoption)
100,000 (value of donation)
150,000
The action for reduction must be brought within 4
years from adoption.
QUESTION NO. 135
H died intestate survived by his wife (W) and their
two sons (A and B). During their marriage, the couple
acquired a property where they built their family
home. When H died, W and her son, A, informed B of
their desire to partition the property and terminate
the co-ownership. B refused on the basis that the
property which was a constituted family home
cannot be partitioned while a minor beneficiary is
still living there; namely, his minor son, C, who is the
grandson of the deceased. Is C a beneficiary of the
family home constituted by his paternal
grandparents?
To qualify as a beneficiary of a family home, three
requisites must concur: first, the beneficiary must be
among the relationships enumerated in Article 154 of
the Family Code; second, the beneficiary must live in
the family home; and, third, the beneficiary is
52
dependent for legal support upon the head of the
family.
Moreover, Article 159 of the Family Code provides that
the family home shall continue despite the death of one
or both spouses or of the unmarried head of the family
for a period of ten years or for as long as there is a
minor beneficiary, and the heirs cannot partition the
same unless the court finds compelling reasons
therefor. This rule shall apply regardless of whoever
owns the property or who constituted the family home.
As to the first requisite, the beneficiaries of a family
home under Article 154 of the Family Code are: (1) the
husband and wife, or an unmarried person who is the
head of a family; and (2) their parents, ascendants,
descendants, brothers and sisters, whether the
relationship be legitimate or illegitimate.
The term “descendants” includes all descendants of
the person or persons who constituted the family home
without distinction; hence, it must necessarily include
the grandchild and great grandchildren of the spouses
who constituted a family home. Thus, C, who is the
grandchild of H, satisfies the first requisite.
As to the second requisite, minor beneficiaries must be
actually living in the family home to avail of the
benefits derived from Article 159 of the Family Code.
There is no dispute that C, the son of B, lives in the
family home; hence, he satisfies the second requisite.
However, as to the third requisite, C cannot demand
support from his paternal grandmother, W, if he has
parents who are capable of supporting him. The
liability for legal support falls primarily on C’s parents,
especially his father, B, who is the head of his
immediate family. The law first imposes the obligation
of legal support upon the shoulder of parents,
especially the father, and only in their default is the
obligation imposed on the grandparents.
C is dependent on legal support not from his
grandmother, W, but from his father, B. Thus, despite
residing in the family home and his being a descendant
of H, C cannot be considered as beneficiary of the
family home under Article 154 of the Family Code
because he did not fulfill the third requisite of being
dependent on his grandmother for legal support.
(Patricio v. Dario III, G.R. No. 170829, November 20,
2006)
QUESTION NO. 136
X died intestate. He is survived by: (1) A, B, D and E,
his legitimate children; (2) F and G, legitimate
children of C (predeceased), a legitimate son of X; (3)
H and I, legitimate children of D; and (4) J and K,
legitimate children of E. D is incapacitated; while E
repudiated the inheritance. If the net value of the
estate is P/120,000, how shall the distribution be
made?
There are three vacant shares. The share which C
would have inherited if he had not predeceased X. The
share which D would have inherited if he had the
capacity to inherit from X. The share which E would
have inherited if he had not repudiated it.
The share of C in the estate goes to his legitimate
children, F and G, by right of representation. The share
of D in the estate goes to his legitimate children, H and
I, by right of representation. The share of E who
repudiated the inheritance goes to his co-heirs, A and
B, by accretion. This is so because an heir who
repudiates cannot be represented. Therefore, the final
distribution of X’s estate shall be as follows:
A 24,000 own right
12,000 accretion
B 24,000 own right
12,000 accretion
F 12,000 own right
G 12,000 own right
H 12,000 own right
I 12,000 own right
________
120,000
53
QUESTION NO. 137
Abe and Bea, Filipinos, got married and begot two
children. Abe later worked in Rome where he
acquired Italian citizenship. He got a divorce from
Bea in Rome but, on returning to the Philippines, he
realized his mistake, asked forgiveness of his wife,
and resumed living with her. They had two more
children. What is the status of the four children?
The first two children who were born before the
divorce are legitimate children, but the last two
children who were born after the divorce are
illegitimate children since Abe got the divorce when he
had ceased to be a Filipino. (Art. 15, Civil Code)
QUESTION NO. 138
Homeowner employed Broker to sell his house.
Broker sold the house to his wife for Php1 million.
Some months later, Broker sold the house to a third
person for Php2 million. Homeowner sues Broker for
the Php1 million profit. Judgment for whom?
Judgment for Homeowner. It is a breach of an agent’s
fiduciary duty to retain secretly benefits or profits that,
by right, belong to the principal. Under the law, every
agent is bound to render an account of his transactions
and to deliver to the principal whatever he may have
received by virtue of the agency, even though it may
not be owing to the principal. (par. 1, Art. 1891, Civil
Code)
QUESTION NO. 139
Agnetha wishes to purchase a parcel of land owned
by Tropical Gardens. She learns that Tropical
Gardens is a partnership owned by Abe, Ben, and
Chito. She also learns that the partnership needs
capital and that the need for capital is the major
reason the partners are selling their property.
Because Tropical Gardens is a partnership, Agnetha
has the following concerns. You are now called upon
to advise Agnetha of her concerns.
a. Can the partnership convey the land in the name of
the partnership?
Yes, because a partnership has a juridical personality
separate and distinct from that of each of the partners.
This is true even if the formalities under Article 772 of
the Civil Code which requires that the articles of
partnership which must be in a public instrument is
not recorded in the Office of the Securities and
Exchange Commission. (Art. 1768, Civil Code) Besides,
any immovable property or interest in immovable
property belonging to the partnership shall be
conveyed only in the partnership name. (Art. 1774,
Civil Code)
b. If there is a breach of contract, against whom may
Agnetha file a lawsuit?
If there is a breach of contract arising from the sale of
the property, Agnetha must maintain the lawsuit
against the partnership, not against the individual
partners. This is because a partnership has a juridical
personality of its own separate and distinct from that
of each of the partners. (Art. 1768, Civil Code)
c. If Agnetha obtains judgment against Tropical
Gardens, against whom can she execute it?
Partnership liability is first paid out of partnership
assets when a judgment is rendered against the firm
name. In a general partnership, the personal assets of
the individual members are subject to liability if the
partnership’s assets are inadequate. Even in limited
partnerships, at least one of the partners – the general
partner – subjects his personal assets to liability for the
partnership’s obligations.
QUESTION NO. 140
S contracts to sell his house and lot to B for Php3
million. The terms of the contract call for B to pay 10
percent of the purchase price as deposit or down
payment. B pays the deposit, but because his
expected financing of the balance falls through, he
breaches the contract. Two weeks later S sells the
54
house and lot to another buyer for Php3.2 million. B
demands his deposit back, but S refuses, claiming
that B’s breach entitles him to keep the deposit.
Decide who is correct.
B is correct because the deposit is in the nature of
earnest money. Under Article 1482 of the Civil Code,
whenever earnest money is given in a contract of sale,
it shall be considered as part of the purchase price and
as proof of the perfection of the contract. By its very
nature, an earnest money is an advance payment
which must be deducted from the purchase price.
Hence, the parties could not have intended that the
earnest money or advance payment would be forfeited
when the buyer should fail to pay the balance of the
price, especially in the absence of a clear and express
agreement thereon. Moreover, to allow the forfeiture
of the earnest money or advance payment in favor of
the seller would amount to unjust enrichment of the
seller at the expense of the buyer. (Goldenrod, Inc. v. CA,
299 SCRA 141 [1998])
QUESTION NO. 141
Under which of the following breach of contract
situations would specific performance be an
appropriate remedy?
a. Abe offers to sell his house and lot to Rey. Then,
upon finding another buyer willing to pay a
higher purchase price, he revokes his offer..
b. Amy contracts to sing in Abe’s bar for one month,
beginning May 1. She then refuses to perform.
c. Abe contracts to purchase a rare coin owned by
Rey, as Rey is breaking up his coin collection. Abe
gives Rey Php1,000 for the privilege of deciding
whether to buy the rare coin. At the last minute
Rey decides to keep his coin collection intact and
refuses to deliver the coin to Abe.
d. Abe contracts to sell to Rey 100 cavans of dinorado
rice that Abe intends to harvest from his farm.
 Because the price of rice rises dramatically, Abe
refuses to go on with his promise.
Specific performance would most likely be proper in
(c). If the offerer has allowed the offeree a certain
period to accept, the offer may be withdrawn at any
time before acceptance by communicating such
withdrawal, except when the option is founded upon
a consideration as something paid or promised. (Art.
1324, Civil Code)
In this case, Abe gave Rey Php1,000 for the option of
buying or not the rare coin. Being so, the option is valid
and cannot be withdrawn by Rey.
An action for specific performance in (a) would most
likely be dismissed by the court. This is so because Abe
can withdraw his offer to Rey at any time before Rey’s
acceptance; the option given to Rey is not founded
upon a consideration as something paid or promised.
(Art. 1324, Civil Code)
Specific performance is improper in (b) which involves
a personal obligation. To compel Amy to comply with
her contractual obligation would amount to
involuntary servitude.
The obligation in (d) involves the delivery of a generic
thing. When what is to be delivered is indeterminate or
generic, the creditor may ask that the obligation be
complied with by another person at the expense of the
debtor. (Art. 1165, Civil Code)
QUESTION NO. 142
Abe, who is eight months short of his eighteenth
birthday, buys a car from Delta Motors. Five months
later, Abe drives the car to Delta Motors to make the
fifth monthly payment and tells Delta Motors, “I love
this car.” Sixty days and two payments later, Abe
drives the car to Delta Motors and says, “I’m tired of
this junk. Take it and give me my money back.” Is
Abe too late to get his money back?
55
No. Contracts entered into by a minor are voidable at
the option of that minor, and the minor has four years
from the time the guardianship ceases to annul the
contract. (Art. 1391, Civil Code) Abe’s declaration that
he loves the car after five months of the sale does not
constitute ratification that would have cured the defect
in the contract. Besides, he was still a minor at the time
when he made such declaration.
QUESTION NO. 143
Abe bought a female miniature poodle dog from a pet
shop. Unknown to either party, the dog was
pregnant. When the litter was born, both Abe and the
pet shop claimed ownership. Who is correct?
Abe is correct. Under the law, a creditor has a right to
the fruits of the thing from the time the obligation to
deliver it arises. However, he shall acquire no real right
over it until the same has been delivered to him. (Art.
1164, Civil Code) Here, the litter was born after the
poodle dog was actually delivered to Abe. Upon
delivery of the dog, Abe necessarily became its owner
thereby giving him the ownership of the litter by
accession. (Art. 441, Civil Code)
QUESTION NO. 144
Isabella is the daughter of Carlos, a widower. Over
the objections of Carlos, Isabella adopted a 5-year old
girl named Barbara who grew up into a fine woman
and trained to be a nurse. When Carlos fell ill, he was
admitted to the hospital where Barbara took care of
him. They fell in love and got married. What is the
status of their marriage?
Their marriage is valid because Barbara and Carlos are
not related to each other, either by blood or by affinity
or by fiction of law. That Barbara is the adopted child
of Isabella does not make Barbara a direct descendant
of Carlos, adoption being personal between Isabella,
the adopting parent, and Barbara, the adopted child.
QUESTION NO. 145
Which of the following contract situations need not
comply with the Statute of Frauds?
a. Debtor is indebted to Creditor. Friend orally
agrees to pay Creditor if Debtor defaults in his
loan obligation.
b. Grandfather orally promises to give Grandson, a
first year law student, a particular car upon
Grandson’s graduation from law school.
c. Lessee orally assigns his leasehold rights to
Assignee for the remaining six years of a 10-year
lease term.
d. An oral sale of a car whereby Buyer takes delivery
of the car with a promise to pay the car after 15
months from delivery.
The contract situation in (d) need not comply with the
Statute of Frauds because the statute applies only to
executory contracts, not to partially executed contracts.
The delivery of the car to the buyer takes the contract
out of the ambit of the Statute of Frauds.
The Statute of Frauds governs the contract situation in
(a) because the promise of Friend to pay “if Debtor
defaults in his loan obligation” constitutes a special
promise to pay Debtor’s loan, a promise which is
subsidiary or collateral, like guaranty.
Grandfather’s promise to Grandson, as in the contract
situation in (b), is a promise that by its terms is not to
be performed within a year from the making thereof.
In other words, Grandfather’s performance (giving of
car) is to be made after one year from the making of the
contract. This is so because Grandfather’s promise was
made when Grandson was still a first year law student
who is expected to graduate from law school after
more than one year.
The Statute of Frauds requires that lease of real
property for a period longer than one year be in writing
56
to be enforceable. Therefore, the contract situation in
(c) is governed by the Statute of Frauds.
QUESTION NO. 146
Abe sold his land to Ben who began to possess it.
Carl, a stranger, sold the same land, unauthorized by
anyone, and in his own name, to Donald, who
registered the sale in good faith. Who owns the land,
Ben or Donald?
Ben should be considered as the owner even if he did
not register the land. This is so because Donald, who
registered the sale, did not buy the land from its owner,
but from a stranger totally unconnected with the land.
Article 1544 of the Civil Code cannot therefore apply,
because it cannot be said that the land had been sold
twice by the same person. (Art. 1544, Civil Code)
QUESTION NO. 147
Seller sells to Buyer a parcel of land under a
notarized deed of sale. On the same day and along
with the execution of the deed of sale, the parties
execute a separate instrument, denominated as
“Right of Repurchase” granting Seller the right to
repurchase the lot within four years. Within four
years, Seller offers to redeem but Buyer refuses. Who
is correct?
Buyer is correct. The right of repurchase is not a right
granted the vendor by the vendee in a subsequent
instrument, but a right reserved by the vendor in the
same instrument of sale as one of the stipulations of the
contract. Once the instrument of absolute sale is
executed, the vendor can no longer reserve the right to
repurchase, but some other right like an option to buy.
(Vasquez v. CA, 198 SCRA 102 [1991])
QUESTION NO. 148
Abe and Ben are childhood friends. Because of their
friendship, Abe gave to Ben in usufruct a parcel of
land to last up to the time their high school teacher,
Mrs. Aguada, reaches the age of 70. Mrs. Aguada
died at the age of 65. Is the usufruct extinguished?
No. Under Article 606 of the Civil Code, a usufruct
granted for a time that may elapse before a third
person attains a certain age shall subsist for the number
of years specified even if the third person should die
before the period expires, unless such usufruct has
been granted only in consideration of the existence of
such person. If the document constituting Bernard as a
usufructuary does not state that it will end the moment
Mrs. Aguada is dead, then it will continue.
QUESTION NO. 149
Buyer buys on instalment a residential subdivision
lot. After the 5th year, he is unable to make further
payments. Can Developer unilaterally cancel the
sale? Is Buyer entitled to any refund?
Yes. The Developer need not even go to court to obtain
cancellation of the sale, provided that the actual
cancellation takes place after 30 days from receipt by
Buyer of the notice of cancellation or demand for
rescission of the sale by a notarial act and upon full
payment of the cash surrender value to Buyer. (Sec. 3,
R.A. No 6552) Buyer is entitled to a cash surrender
value which is 50% of the total payments made by him.
QUESTION NO. 150
Seller contracts to sell to Buyer a parcel of land. They
agree that Buyer shall pay the purchase price on
October 25, and that in case of Buyer’s failure to pay,
the contract shall be automatically rescinded. If
Buyer does not pay on October 25, can he still pay on
October 29?
Yes, if no judicial or notarial demand for rescission of
the contract as of October 29 has been made by Seller
to Buyer. Under Article 1592 of the Civil Code, in the
sale of an immovable property, even though it may
have been stipulated that upon failure to pay the price
57
at the time agreed upon the rescission of the contract
shall of right take place, the vendee may still pay even
after 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.
QUESTION NO. 151
In a letter, Seller offers to Buyer the sale of a parcel
of land. Buyer sends a reply. Which of the following
statements in Buyer’s reply will NOT result in a
contract?
a. “I accept your offer to sell the land. I wish I could
have gotten a better price.”
b. “I accept your offer to sell the land, but can you
shave the price?”
c. “I accept your offer to sell the land, but only if I
can pay on 90 days credit.”
d. “I accept your offer to sell the land, provided that
you are the owner.”
The reply in (c) will not result in a contract. Acceptance
is a voluntary act by the offeree that shows agreement
to the offer. The acceptance must be unequivocal and
communicated to the offeror. The acceptance in (c) is
not an unequivocal acceptance because of the
condition to pay on credit which operates as a counter-
offer.
An acceptance may be unequivocal even though the
offeree expresses dissatisfaction with the offer, as in the
case of the replies in (a) and (b).
The condition imposed by Buyer in his reply in (d) that
the offeror owns the property is implied in every sale
of land, so the condition does not add any new or
different terms to the offer.
QUESTION NO. 152
Batman, Superman and Iron Man are co-owners of a
parcel of land. They later sold the land to Flash
Gordon with a right to repurchase. Only Batman
exercised the right of repurchase for which he
obtained a title to the property. Is the co-ownership
terminated by Batman’s repurchase of the property?
No. The repurchase of the land by Batman did not
terminate the co-ownership nor did it give him the title
to the entire land. Superman and Iron Man remain as
co-owners with obligation to reimburse Batman their
respective shares in the repurchase price of the land.
QUESTION NO. 153
Pedro owns a car. To raise money for his business
venture, he instructs Abe to sell the car. In his own
name, Abe sells the car to Menardo. Can Menardo sue
Pedro in case the car has hidden defects?
Yes. Although Abe acted in his own name, still the sale
involved a car belonging to Pedro, the principal. Here,
we apply the exception stated in the second paragraph
of Article 1883 of the Civil Code which provides, “In
such case the agent is the one directly bound in favor
of the person with whom he has contracted, as if the
transaction were his own, except when the contract
involves things belonging to the principal.” As a matter of
fact, the sale is completely valid.
QUESTION NO. 154
Principal appoints Agent, a minor, to sell a particular
car. Agent sells the car to Buyer. Principal afterwards
seeks to annul the sale, and brings an action to
recover the car on the ground that Agent’s act was
voidable, as a minor cannot be an agent. Judgment for
whom?
Judgment for Buyer. Agent is deemed to be an
extension of the personality of Principal who is himself
58
capacitated. Hence, Principal cannot annul the contract
on the ground of Agent’s incapacity.
QUESTION NO. 155
Martha died, leaving her son (Sam) as sole heir.
Among the items inherited by Sam were some old oil
paintings that had been stored in Martha’s attic for
several years. Sam knew nothing about art and had
no place to put them in his house. He placed an ad in
the paper offering to sell the paintings “at a price to
be mutually agreed upon.” Riza, a buyer for an art
gallery, responded to the ad and examined the
paintings. From the signature and the style, Riza
recognized that the artist was Ben Cab, a renowned
Filipino portrait artist. Sam and Riza agreed upon a
price and executed a contract.
Which of the following facts, if true, would give Sam
the best basis for annulling the contract with Riza?
a. Sam told Riza that his mother, Martha, had
dabbled in painting when she was younger and
had undoubtedly painted them herself.
b. Sam did not know that Riza was a buyer for an art
gallery and was very familiar with the works of
renowned artists.
c. Sam told Riza that he wanted to get rid of the
paintings as soon as possible because he was
angry at his mother for giving away most of her
possessions to her friend just before she died.
d. Riza falsely told Sam that the paintings were to be
used to furnish Riza’s newly-constructed vacation
house in Baguio.
The statement in (a) would enable Sam to annul the
contract on the ground of mistake if Riza was aware
that Sam was mistaken about the identity of the artist.
Under the facts in this choice, Riza knows that Sam is
mistaken about the identity of the artist, which mistake
refers to the substance of the thing which is the object
of the contract. (Art. 1311, Civil Code)
The statement in (b) is wrong because the fact that one
of the parties to the contract has superior knowledge
about the subject matter of the contract does not by
itself justify annulment, even if the other party is
unaware of that fact. Riza’s knowledge or lack of it was
not the principal cause on which the contract was made
and was not relied on by Sam in making the sale.
The statement in (c) is wrong because the fact that Sam
was angry when he agreed to the contract is not a
ground for annulment of a contract under the law.
Regardless of Sam’s state of mind, there was a meeting
of the minds between the parties.
The statement in (d) is incorrect because Riza’s
misrepresentations to Sam as to how she will use the
paintings does not appear to go to the substance of the
thing which is the subject matter of the contract or to
have been relied on by Sam. Hence, the
misrepresentation is not significant enough to serve as
a ground for annulling the contract.
QUESTION NO. 156
Is the sudden emergency rule an absolutory cause in
negligence cases?
Yes. A person who is confronted with a sudden and
unforeseeable occurrence, because of the shortness of
time in which to react, should not be held to the same
standard of care as someone confronted with a
foreseeable occurrence.
One who suddenly finds himself in a place 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 not to
adopt what subsequently and upon reflection may
appear to be the better method, unless the emergency
in which he finds himself is brought about by his own
negligence. (Gan vs CA, 165 SCRA 378) The rule
applies, for instance, in the following cases: 1) a child
suddenly darts into the road between parked cars; 2) a
load from a truck suddenly bounces across the
highway; or 3) a driver of a car is suddenly stricken by
59
a period of unconsciousness which he has no reason to
anticipate and which renders it impossible for him to
control the car he is driving.
QUESTION NO. 157
Husband and Wife were married in 1974. Their
marital union bore two children (Abe and Ben). The
birth certificates of the children identified Husband
as their father and their status as legitimate. Husband
died in 1990.
In a notarized document in 1991, Gigolo admitted his
illicit relations with Wife and acknowledged Abe
and Ben as his illegitimate children. After Gigolo’s
death in 1993 and on the strength of Gigolo’s
notarized acknowledgment, Abe and Ben brought an
action for the partition of Gigolo’s substantial estate.
Will the action prosper?
No. The attempt to establish the status of Abe and Ben,
as the illegitimate children of Gigolo would in effect
impugn their legitimate status as children of Husband
and Wife. This cannot be done because the law itself
establishes the legitimacy of children conceived or
born during the marriage of the parents. There is
perhaps no presumption of law more firmly
established and founded on sounder morality than
children born in wedlock are legitimate. (Tison v. Court
of Appeals, 276 SCRA 582 [1997])
The presumption indeed becomes conclusive in the
absence of proof that there is physical impossibility of
access between the spouses during the first 120 days of
the 300 days which immediately preceded the birth of
the child due to: a) the physical incapacity of the
husband to have sexual intercourse with his wife; b)
the fact that the husband and wife are living separately
in such a way that sexual intercourse is not possible; or
c) serious illness of the husband which absolutely
prevents sexual intercourse. (Art. 166, Family Code)
Considering that Abe and Ben were born during the
marriage of their parents, they are therefore considered
the legitimate children of Husband and Wife.
QUESTION NO. 158
Ann is a working student at a local university. In
need of funds to pay for tuition and books, she
attempts to secure a short-term loan from East Bank.
The bank agrees to make a loan if Ann will have
someone financially responsible guarantee the loan
payments. Betty, a businesswoman and a friend of
Ann’s family, agrees in writing to pay the loan if Ann
cannot. Because of Betty’s reputation, the loan is
made. Ann is making the payments, but because of
illness she is not able to work for one month. She
requests that East Bank extend the loan for three
months. East Bank agrees, raising the interest rate for
the extended period. Betty is not notified of the
extension. One month later Ann drops out of school.
All attempts to collect from Ann fail. Can East Bank
collect from Betty?
No. Unlike a surety who is primarily liable, a guarantor
is merely subsidiarily liable. The guarantor can be
required to answer for the obligation only after the
principal has defaulted. (Art. 2047, Civil Code) The
creditor must also have attempted to collect from the
principal, and the latter still has not paid. (Art. 2058,
Civil Code) Under Article 2079 of the Civil Code, an
extension granted to the debtor by the creditor without
the consent of the guarantor, as in this case,
extinguishes the guaranty.
QUESTION NO. 159
Ben, Calvin, and Don form a limited partnership. Ben
is a general partner, and Calvin and Don are limited
partners. Consider each of the separate events below,
and discuss fully which will constitute a dissolution
of the partnership.
A. Calvin assigns his partnership interest to Don.
B. Don goes into bankruptcy.
C. Ben dies.
60
The event in (C) dissolves the limited partnership of
Ben, Calvin, and Don. This is by express provision of
Article 1860 of the Civil Code which provides that the
death, insolvency, insanity or civil interdiction of a
general partner dissolves the limited partnership,
unless the business is continued by the remaining
general partners. The partnership here consists of only
one general partner (Ben), and there being no other
remaining general partner to continue the business, the
partnership is dissolved.
The event in (A) does not dissolve a partnership
because a limited partner’s interest is assignable (Art.
1859, Civil Code)
The insolvency of the other limited partner, an event
stated in (B,) does not likewise dissolve the limited
partnership because the partnership business can still
continue despite such insolvency.
QUESTION NO. 160
Abe took his car to a carwash station and asked to
have it washed. While it is being washed, Abe went
to a nearby mall for two hours. In the meantime, one
of the workers at the car wash had mistakenly hand-
waxed the car. When Abe came back, he was
presented with a bill for a wash job and a hand wax.
Is Abe liable to pay for the hand wax job?
No. The doctrine of quasi-contract does not apply
when there is a contract between the parties. Although
there was a benefit bestowed to Abe, Abe did not
receive an unjust benefit because the hand wax job was
not contemplated by his agreement with the owner of
the car wash station.
QUESTION NO. 161
Mr. Go, a Chinese national donated in Germany in
favor of Pedro, a Filipino, a parcel of land in the
Philippines.
a. The law of which country governs the formalities
of the donation?
Philippine law governs the formalities of the donation.
The lex loci celebrationis does not apply because the
transaction relates to land and must therefore be
governed by the law of the place where the land is
situated.
b. The law of which country governs the capacity of
Mr. Go to make the donation?
Philippine law, the situs of the property, governs the
capacity of Mr. Go, a Chinese national, to alienate.
Here, the doctrine of national law under Article 15 of
the Civil Code yields because the subject matter is land.
QUESTION NO. 162
Abe was coerced into marrying Bea. Abe sued for
annulment. During the pendency of the case, Abe
married Amy. When she learned of the first marriage,
Amy sued Abe for bigamy. Abe now alleges that the
pendency of the annulment case is a prejudicial
question. Is Abe correct?
Abe is wrong because the decision in the annulment
case is not important. The first marriage will either be
annulled or not. If not annulled, bigamy can prosper.
And if annulled, still bigamy can prosper, for when
Abe married the second time, he was still married to
Bea, a voidable marriage being valid until annulled.
QUESTION NO. 163
Bea forced Abe, a married man, to marry her. Abe
then sued for annulment of the second marriage. Bea
retaliated with a charge of bigamy. In the bigamy
case, Abe moved to suspend the criminal proceedings
until after the termination of the annulment case on
the ground that the annulment case is a prejudicial
question. Should the motion be granted?
61
Yes, because the annulment case poses a prejudicial
question. If Abe was really forced into marrying Bea,
then his consent was defective; hence, the second
marriage is to be annulled on that ground. He cannot
therefore be guilty of bigamy.
QUESTION NO. 164
If a marriage is dissolved because of the death of the
husband, what surname may the widow use?
Although the death of the husband dissolves the
marriage ties, still the widow may desire to cherish her
deceased husband’s memory by the continued use of
his surname. However, if she does not want to, she is
allowed to use her maiden surname again. Notice the
use of the word “may” in Article 373 of the Civil Code.
QUESTION NO. 165
If a marriage is annulled, is the wife required to
resume her maiden name and surname?
It depends. If the wife is the guilty spouse, she must
resume her maiden name and surname. But if the wife
is the innocent spouse, she may resume her maiden
name and surname, but 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,
Civil Code)
QUESTION NO. 166
What if legal separation occurs, is the wife entitled to
continue using the husband’s surname even if she is
the guilty spouse?
Article 372 of the Civil Code does not distinguish
whether the wife is the guilty spouse or not, unlike in
the case of annulment of marriage under Article 371,
because in legal separation the marriage ties still
subsist.
QUESTION NO. 167
Abe, an American, and Bea, a Filipina, cohabited as
husband and wife ten years ago without marriage.
While living together, the couple bought a property
in Baguio. Although the deed of sale was placed in
the names of the couple as buyers, the sale was
registered in the name of Bea alone because of Abe’s
American citizenship. It is sufficiently established,
however, that the funds used to buy the property
came solely from Abe, as Bea has no sufficient source
of income.
After their relationship turned sour and they went
separate ways, Abe sold all his rights in the property
to Rey, a Filipino. When Rey tried to register the
property in his name, he discovered that the title of
the property is registered in the name of Bea, and that
it had already been mortgaged.
a. If Abe is the true buyer of the property, what is the
effect of the registration of the property in the name
of Bea?
The registration of the property in the name of Bea
does not make her the owner of the property in
question. It is settled that registration is not a mode of
acquiring ownership. Certificates of title are not a
source of right. The mere possession of a certificate of
title does not make the holder the true owner of the
property. The mere fact that Bea has the title of the
disputed property in her name does not necessarily,
conclusively, and absolutely make her the owner.
b. Given that Abe is disqualified to own real
properties in the Philippines, what is the legal status
of the sale of the property by Abe to Rey?
Because aliens are disqualified to own real properties
in the Philippines, the sale of the property to Abe, who
is an American, would have been declared invalid if
challenged, had not Abe conveyed the property to Rey
who is a Filipino. According to jurisprudence, if the
land is invalidly transferred to an alien who
subsequently becomes a Filipino citizen (or transfers it
to a Filipino), the flaw in the original transaction is
considered cured and the title of the transferee is
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rendered valid. (Borromeo v. Descallar, G.R. No. 159310,
February 24, 2009)
QUESTION NO. 168
Ben, a minor, purchased a used car for Php250,000
from a used car dealer. Ben used the car for three
months and then damaged it in an accident. The car
is now worth Php100,000. Ben takes the car back to
the dealer and demands the return of the purchase
price. Dealer refused. Judgment for whom?
Judgment for Ben. A contract may be invalidated when
one of the parties to the contract does not have the legal
capacity to give consent to the contract. A minor is
certainly one who lacks legal capacity. (Art. 1390, Civil
Code)
QUESTION NO. 169
Club John Hay advertised an offer to pay Php500,000
to any person who, having paid Php2,000 for the
opportunity of attempting to do so, shoots a hole in
one on its golf course under certain conditions. Abe,
an avid golfer, complied with the conditions,
including the payment of the money, and shot a hole
in one. Club John Hay refuses to pay contending that
the contract was a wagering contract. Abe claims the
shooting of the hole in one was a feat of skill and not
a feat of chance. Who prevails?
Abe prevails. Gambling is essentially a “chance for a
prize for a price.” Gambling is illegal regardless of the
name attached to it. But if the result of a game does not
depend entirely on chance and may also depend upon
the skill of a person, such game is not a game of chance
as to make it a gambling game.
QUESTION NO. 170
Pedro wished to delay action by a government Bids
and Awards Committee for the execution of a public
works project in which he was interested. He agreed
with Abe to pay the latter Php1 million if Abe could
get the members of the bid committee to postpone the
committee’s scheduled bidding.
Abe gave a majority of the committee members and
their wives a round trip ticket to Hong Kong. Abe
also gave each of the wives shopping money and
convinced them to talk to their husbands regarding a
postponement of the bidding which the committee
did. Pedro now refuses to pay Abe. Decision?
Decision for Pedro. Pedro’s commitment to pay Abe
Php1 million for Abe to influence the postponement of
the scheduled bidding of a government agency to
execute a public works project is against public
interest. The agreement is unquestionably void and
cannot be enforced, especially so because both parties
are in pari delicto.
QUESTION NO. 171
Papa and Mama are the parents of Son. Upon the
death of Mama, Son immediately brings an action
against Papa for the partition of Mama’s estate. Papa
counterclaims for reconveyance of a property which
is registered in the name of Son. Papa claims that the
lot is owned by the conjugal regime but was
registered in the name of Son as a trustee because at
that time, Son was the only Filipino in the family.
Papa caused the annotation of a notice lis pendens on
Son’s certificate of title. Son objects on the ground
that the notice lis pendens amounts to a collateral
attack on his title obtained more than 20 years ago.
He argues that his sole ownership of the property
would be improperly assailed in the partition case
and that it should be done through a separate action.
Should the notice lis pendens be cancelled?
No. The annotation of a notice lis pendens does not in
any way amount to a collateral attack on the certificate
of title of a parcel of land. What cannot be collaterally
attacked is the certificate of title and not the title. The
certificate referred to is that document issued by the
Register of Deeds known as the Transfer Certificate of
63
Title. By title, the law refers to ownership which is
represented by the document.
Son apparently confuses certificate of title with title.
Placing a parcel of land under the mantle of the
Torrens system does not mean that ownership thereof
can no longer be disputed. Ownership is one thing,
registration is another. (Lee Tek Sheng v. CA, 292, SCRA
554 [1998])
QUESTION NO. 172
Manuel (judicially) adopts Minerva in Baguio. They
go to Paris and there get married. Assuming the
marriage to be valid under French law, is it also valid
here?
No. Even if the marriage is valid in Paris, where it is
celebrated, it is void here because it is “void from the
beginning for reasons of public policy” it being a
marriage between the adopting parent and the
adopted child. (Art. 35 (4), Family Code)
QUESTION NO. 173
Abe is engaged to be married after he completes his
college education. Abe’s parents do not approve of
the marriage and offer him a half interest in the
family business if he would give up his plans for
marriage. Abe agrees, but after he finished college
his parents refused to give him the share of the
business that they had promised. May Abe enforce
the promise made by his parents?
No. Promises not to marry in return for some benefit is
void because it is contrary to public policy. The law has
always regarded marriage as a sacred institution (Art.
1, Family Code) and a right and privilege of all persons,
not to be denied by private contract with other persons.
QUESTION NO. 174
After searching for months, a young married couple
found a house which fitted their needs perfectly. The
location, size, price, sale terms, proximity to church,
school, and shopping malls were all they had been
looking for. After discussion with the owner, they
agreed to buy the house and sealed their agreement
with the owner with a handshake. Is there a contract?
Yes. All the essential elements of a contract of sale are
present; namely, consent of the parties, a determinate
object, and a price certain in money or its equivalent.
But if the owner later refuses to perform, the sale could
not be enforced by court action because it was made
orally. This is because of the statutory requirement that
all contracts for the transfer of any interest in real
property must be in writing to be enforceable. (Art.
1403, par. 2(e), Civil Code)
QUESTION NO. 175
A land registration applicant failed to mark in
evidence the original tracing cloth plan of the land
applied for. Instead, he presented a blue print copy
of the plan as evidence. Is this sufficient?
Yes. It is true that the best evidence to identify a parcel
of land for registration is the original cloth plan, yet the
blue print copy of the plan suffices for the purpose
where the original tracing cloth plan was attached to
the application for registration. (Republic v. IAC, 144
SCRA 705) Moreover, even the true certified copy of
the white paper plan would suffice if it bears the
approval of the Land Registration Authority and
verified by the Bureau of Lands. The fact therefore that
the original survey plan was recorded on white paper
instead of a tracing cloth plan should not detract from
the probative value thereof. (Dir. of Lands v. CA, 158
SCRA 586 [1988])
64
QUESTION NO. 176
A fire broke out on the fifth floor of a Baguio hotel.
Although the fire was confined to that floor, several
guests on the other floors reported losing their
property due to the fire and water. The hotel was able
to prove that the fire had started from a cigarette
dropped on a bed by one of the guests. The careless
smoking violated a Baguio City ordinance and a rule
of the hotel. Is the hotel liable?
No. The loss of property because of accidental fire, in
which no negligence may be attributed to the hotel is
an exception to the hotelkeeper’s liability as a
depositary of valuables of hotel guests. This is in
keeping with the rule that no person may be held liable
for those events which could not be foreseen, or, even
though foreseen, were inevitable. (Art. 1174, Civil Code)
Here, the hotel would not be responsible for the losses
caused by the fire because it has not breached its duty
of care.
QUESTION NO. 177
Abe was eager to sell his house in Rainbow Hills
Subdivision. He made a lunch appointment with a
real estate broker and at that time requested the
broker to sell the house, agreeing on specific details
of price and commission. Because they were friends
of long standing, the two men did not discuss the
necessity of a written agreement and sealed their
agreement with a handshake.
If the broker finds a buyer, is Abe obliged to sell the
house and pay the broker his commission?
No. An agency may be oral, unless the law requires a
specific form. However, when a piece of land or any
interest therein is through an agent, the authority of the
latter shall be in writing. (Art. 1874, Civil Code) Here,
any attempt of the broker to hold Abe to his agreement
will not succeed since the broker’s authority was not in
writing and therefore void.
QUESTION NO. 178
In each of the following cases, name the party on
whom the loss due to damage to, or destruction of,
the goods falls, and give the reasons for your answer.
a. Abe purchased a used car. The seller was to put a
mechanic on it and make several mechanical
adjustments. After the adjustments had been made,
and while the seller was testing the car before
delivery, the car was badly damaged in a collision.
The seller bears the loss of the car pursuant to the res
perit domino rule -- the thing perishes with the owner.
Under the law, the goods remain at the seller’s risk
until the ownership therein is transferred to the buyer
(Art. 1504, Civil Code), either by actual or constructive
delivery thereof. (Art. 1477, Civil Code)
The extinguishment of the obligation to deliver affects
both vendor and vendee since their obligations are
reciprocal. If the obligation of the vendor to deliver is
extinguished, the correlative obligation of the vendee
to pay, which depends upon it, is also extinguished.
Besides, a contract of sale is onerous in character; the
cause, as far as the vendee is concerned, is the
acquisition of the thing which is the object thereof.
b. Abe bought a very expensive laptop, with the
understanding that he might return it within thirty
days if he found it to be unsatisfactory for his needs.
Abe found that the laptop did not suit his needs and
was preparing to return it within the stipulated
period when it was stolen.
Abe bears the loss of the laptop. When goods are sold
with right of return, the buyer becomes the owner
upon delivery, but he may revest the ownership of the
thing in the seller by returning it within the time fixed
in the contract, or if no time is fixed, within a
reasonable time. (par. 1, Art. 1502, Civil Code) Buyer
may return the thing sold to the seller event if he finds
nothing wrong with the quality of the thing. Until he
returns the thing, buyer owns the thing. And if it is lost,
regardless of the cause, buyer bears such loss.
65
c. Abe purchased a treadmill on ten days’ approval.
Before expiration of the ten-day period, the treadmill
was destroyed by fire of accidental origin.
Seller bears the risk of loss of the treadmill. When
goods are sold on approval, they remain the property of
the seller until the buyer has expressed his approval or
does any other act adopting the transaction. (par. 2, Art.
1502, Civil Code) The sale thus becomes absolute if the
buyer does not signify his approval or acceptance to
the seller, but retains the goods.
d. Abe purchased at Php5.00 per kilo all the potatoes
that farmer Rey had piled in a storage bin on his
vegetable farm. Rey was able to put the potatoes in
sacks to determine the price. Lighting struck the bin,
and the resulting heat and fire ruined the potatoes.
Seller bears the loss of the potatoes. Article 1504 of the
Civil Code is explicit: goods remain at the seller’s risk
until the ownership therein is transferred to the buyer
(Art. 1504, Civil Code), either by actual or constructive
delivery thereof. (Art. 1477, Civil Code). Parenthetically,
the seller’s obligation to deliver to Abe the same
quantity of potatoes stored at his storage bin is not
extinguished by the loss of the potatoes presently piled
at his storage bin. Genus nunquam peruit.
QUESTION NO. 179
Rey, a mechanic, performed Php5,000 worth of repair
work on Abe’s car, on a thirty-day credit terms. Abe
failed to pay the bill at the expiration of the credit
period, but returned the car to Rey two months later
for Php1,000 worth of additional repairs. When the
repairs were made, Rey refused to deliver the car to
Abe until Php6,000, the bill for the full amount due
him, was paid. Does Rey have the right to retain
possession of the car until the full amount of the bill
is paid?
Abe may demand delivery of his car upon payment of
the charges for the current repairs only. Rey’s obligation
to return the car arises from a contract of deposit (Art.
1968, Civil Code) under which Rey as depositary may
retain the car in pledge until the full payment of what
may be due him by reason of the deposit. (Art. 1994,
Civil Code) Until Rey is reimbursed of his expenses by
reason of the deposit, he may retain the car in pledge.
Accordingly, Rey’s lien does not extend to amounts
owed for previous service.
QUESTION NO. 180
Abe spent a night at a hotel, taking with him an
overnight bag. Because no rack was provided in the
room for a guest’s luggage, Abe placed his bag on the
floor. Later that night, when he came into the room
he tripped over the bag and injured himself. Both
Abe and the hotel are shown to have been negligent
in the creation of the situation that led to Abe’s
injuries. Is the hotel liable to Abe?
Abe’s contributory negligence relieves the hotel of any
liability to compensate Abe for Abe’s injury. The
hotelkeeper is not liable for compensation if the loss is
due to the acts of the guest himself, as in the case of
Abe in the problem. (Art. 2002, Civil Code)
QUESTION NO. 181
Donald, a Californian, and Ann, a poor girl from La
Union, are married. Two years into their marriage,
the couple purchased from Juan a house in Baguio
City. Although the sale was solely financed by
Donald, the sale document was issued in Ann’s name
as vendee. As a result, title to the property was issued
solely in Ann’s name as owner. When the couple
parted ways, Ann immediately sold the house to Ben
without her husband’s consent.
a. If Donald maintains an action to annul the sale,
what would be his strongest cause?
Donald has no other recourse but to anchor his suit on
the argument that the sale is void because it was made
without his consent; that in bringing the action, he is
merely exercising the prerogative of a husband in
respect to absolute community property.
66
b. If the case goes to trial, what would be the most
likely result?
Being an alien, Donald is prohibited from acquiring
private and public lands in the Philippines. Because
Ann appeared to be the designated vendee of the
property, she acquired sole ownership thereto. This is
true even if Donald’s claim that he provided the funds
for such acquisition is to be sustained. By entering into
such contract knowing that it was illegal, no implied
trust was created in Donald’s favor; no reimbursement
for his expenses can be allowed; and no declaration can
be made that the subject property was part of the
conjugal or community property.
In any event, Donald had, and has, no personality to
question the sale of the property by his wife on the
ground that in so doing, he was merely exercising the
prerogative of a husband in respect to conjugal
property. To sustain the argument would countenance
indirect violation of the constitutional prohibition. If
the property were to be declared conjugal, this would
accord the alien husband a substantial interest and
right over the land, as he would then have a decisive
vote as to its transfer or disposition. This is a right that
the Constitution does not permit him to have.
(Matthews v. Taylor, June 22, 2009)
QUESTION NO. 182
Abe intends to buy a new battery for his car. At an
auto parts supply store, a salesman tells Abe: “This is
the finest battery you can buy and we guarantee that
you will find it superior to any you have owned. This
battery will no doubt outlast the life of the car itself.”
Is the store liable for breach of express warranty if the
battery does not meet the salesman’s statements?
No express warranty is created simply by the seller
expressing his personal opinion to the buyer, nor do
his statements to the buyer constitute a warranty if he
is just “talking up” the merchandise (called “puffing”),
even though the buyer may rely on such statements.
Even the use of the word “guarantee” adds little,
considering how it was used. A statement of fact must
be of the essence of the subject matter.
QUESTION NO. 183
An airline pilot bought a watch from a reputable
watch dealer. He stressed the importance of great
accuracy in any watch bought by him, and the seller
said, “In my opinion you will find this watch the
most accurate of any watch sold today. You will be
able to keep exact schedules by it.” Suppose the
watch does not meet such specifications, does the
pilot have a cause of action?
Yes. Expressions of opinion by professionals or experts
may be accepted by others as statements of fact under
certain conditions. This is especially true when the
purchaser has no knowledge of the product that he is
buying. Although the seller prefaced his remarks with
the word “opinion,” under the circumstances, his
words would represent statements of fact because of
his position.
QUESTION NO. 184
Explain the requirement under Section 23 of PD 1529
that publication of the notice of initial hearing in the
Official Gazette “shall be sufficient to confer
jurisdiction upon the court.”
As explained by the Supreme Court in Republic v.
Marasigan, 198 SCRA 219, the provision under Section
23 of PD 1529 was never meant to dispense with the
requirement of notice by mailing and posting. What it
simply means is that insofar as publication is
concerned, there is sufficient compliance if the notice is
published in the Official Gazette. Although the law
mandates that it be published once in the Official
Gazette and once in a newspaper of general circulation
in the Philippines, publication in the latter alone would
not suffice. This is to accord primacy to the official
publication in the Official Gazette. According to the
Supreme Court, such provision was never meant to
67
dispense with the other modes of giving notice, which
remains mandatory and jurisdictional.
If the intention of the law were otherwise, Section 23
would not have stressed in detail the requirements of
mailing of notice to all persons named in the petition
who per Section 15 of the Decree, include owners of
adjoining properties and occupants of the land.
DOCTRINE: In Director of Lands v. Court of Appeals, 276
SCRA 276 [1997], the Supreme Court categorically
declared that publication of the notice of initial hearing
in a newspaper of general circulation is mandatory and
imperative. Without publication, the land registration
court cannot validly confirm the title of the applicant
for registration.
QUESTION NO. 185
Henry and Wilma are the conjugal owners of a ten-
hectare farm. Upon the death of Henry, Wilma
immediately sold to Ben a 2,000-square meter portion
of the farm. The children of Henry and Wilma later
brought an action to annul the sale on the ground that
it was made without prior liquidation of the conjugal
partnership of their parents. Will the action prosper?
No. Article 130 of the Family Code expressly provides
that if no liquidation of the conjugal partnership is
made within six months from the death of a spouse,
any disposition or encumbrance involving conjugal
partnership property of the terminated marriage shall
be void. This provision must be read with Article 493
of the Civil Code which allows a co-owner to alienate,
assign, or mortgage his undivided share in the co-
owned property.
However, the effect of such alienation or mortgage is limited
only to the portion which may be allotted to the co-owner
upon the termination of the co-ownership. The recourse of
co-owners in cases where their consent were not
secured in a sale of the entire property, as well as in the
sale merely of the undivided shares of some of the co-
owners, is an action for partition under Rule 69 of the
Rules of court. (Heirs of Go v. Go, G.R. No. 157537, Sept.
7, 2011)
QUESTION NO. 186
Ana, a Filipina nurse, married Brent, an American
engineer, in Baguio City. A few days after the
wedding, they immediately left for California to
reside there permanently. Anna then became a
naturalized American citizen. Five years later, Ana
and Brent came to the Philippines for a short visit.
When the couple visited Ana’s hometown, they
decided to adopt Ana’s younger brother to give him
a better future. Are Ana and Brent qualified to adopt
Ana’s younger brother?
No. Under the Domestic Adoption Act, an alien is
qualified to adopt a Filipino child only if a) he is a
former Filipino citizen who seeks to adopt a relative
within the fourth civil degree of consanguinity; b) he
seeks to adopt the legitimate or illegitimate child of his
Filipino spouse; and c) he is married to a Filipino
citizen and seeks to adopt jointly with his spouse a
relative within the fourth civil degree of consanguinity
or affinity of the Filipino spouse.
Here, Ana and Brent are aliens seeking to adopt a
Filipino child. Being a former Filipino citizen, Ana is
qualified to adopt because the child to be adopted is
her relative within the fourth degree of consanguinity.
While Ana is qualified, Brent is not because he does not
fall under one of the exceptions. First, he is not a former
Filipino citizen who seeks to adopt a relative within the
fourth civil degree of consanguinity. second, he is not
seeking to adopt the legitimate or illegitimate child of
Ana; and third, he is not married to a Filipino citizen
who seeks to adopt jointly with his spouse a relative of
the latter within the fourth civil degree of
consanguinity or affinity.
And even if Ana is qualified to adopt her brother, she
cannot file the petition for adoption by herself. The
Domestic Adoption Act specifically provides that the
husband and wife shall jointly adopt, except if one
spouse seeks to adopt the legitimate child of the other;
68
or if one spouse seeks to adopt his or her own
illegitimate child; or if the spouses are legally
separated from each other.
Here, Ana cannot file the petition for adoption by
herself because the child to be adopted is not the
legitimate child of Brent, nor is the child the
illegitimate child of Ana. Moreover, Ana and Brent are
not legally separated.
QUESTION NO. 187
Abe is a sales representative of a drug company who
looks exactly like Vic Sotto. In one of his provincial
sorties, he met Tessie, a winsome lass from an
affluent family. To win Tessie’s affection, Abe acted
and pretended to be Vic Sotto. After a brief courtship,
Tessie fell in love with Abe. In less than a year, Tessie
realized her mistake when she discovered that Abe is
not Vic Sotto. Does Tessie have a remedy?
Tessie does not have any remedy. She cannot seek to
declare the marriage void on the ground of mistaken
identity of the other party, Here, she married Abe who
was the very person she fell in love with. Neither can
she sue for annulment of marriage on the ground of
fraud. To annul a marriage, only the circumstances
enumerated under Article 46 of the Family Code
constitute fraud. No other misrepresentation or deceit
as to character, rank, fortune or chastity shall constitute
such fraud as will give grounds for the annulment of
marriage.
QUESTION NO. 188
Determine which of the following statements is
correct. Explain your answer.
a. When a right to sue upon a civil obligation has
lapsed by extinctive prescription, the obligor who
voluntarily performs the obligation can recover what
he has delivered or the value of the services he has
rendered.
b. Natural obligations grant a right of action to
enforce their performance, and after voluntary
fulfillment by the obligor, they authorize the
retention of what has been delivered or rendered by
reason thereof.
c. When a testate or intestate heir voluntarily pays a
debt of the decedent exceeding the value of the
property, which he received by will or by the law of
intestacy from the estate of the decedent, the payment
is valid and cannot be rescinded by the payor-heir.
The statement in (c) is correct because an heir who pays
the debt of a decedent in excess of his inheritance is
estopped from rescinding the payment. His only
recourse is to recover the excess from the decedent’s
estate.
The statement in (a) is wrong because a debtor’s
voluntary payment of the debt despite his knowledge
that the debt had already prescribed does not entitle
him to recover. His payment constitutes a natural
obligation under Article 1423 of the Civil Code.
The statement in (b) is wrong because a natural
obligation - unlike a civil obligation which is based on
positive law - derives its binding force from equity and
justice, and does not grant a right of action to enforce
its performance; but after voluntary fulfillment by the
obligor, it authorizes the retention of what has been
delivered or rendered by reason thereof.
QUESTION NO. 189
With prior court approval, Greg, guardian of Willy, a
minor, sells the 2010 Mitsubishi Montero which
Willy inherited from his deceased parents for
Php500,00 although the vehicle was worth PhpPhp1
million at the time of the sale. What is the legal
standing of the sale?
The sale is valid despite the fact that Willy suffered
lesion by more than one fourth of the value of the
vehicle. This is because the sale was made with prior
court approval. Had the sale been made without court
69
approval, the sale would have been a complete nullity
and even unenforceable against Willy.
QUESTION NO. 190
Abe and Bea, a childless couple, brought into their
home Christian, the infant son of their driver who
died in an accident. The couple took care of Christian,
doted on him and treated him as their own son. When
Christian went to Manila to study, Abe and Bea
became so lonely that they adopted Digna, a 10-year
old orphan.
After several years, Christian and Digna fell in love
and, when both were over 25, they got married
without informing Abe and Bea. Believing that it was
unfair not to have legally adopted Christian, Abe and
Bea decided to adopt him. The court granted the
adoption.
a. Is Christian’s adoption valid?
Yes. Even assuming that Christian was already of legal
age when Abe and Bea adopted him, the decree of
adoption is still valid because a person of age can be
adopted if he had been consistently considered and
treated by the adopter as his or her own child during
minority.
b. What is the standing of Christian’s marriage to
Digna?
Christian’s marriage to Digna is valid. Article 38 (8) of
the Family Code expressly declares by reason of public
policy that a marriage between adopted children of the
same adopter is void. This prohibition does not apply
here because at the time of their marriage, Christian
was not yet the legally adopted child of Abe and Bea.
QUESTION NO. 191
Abe and Ana travelled to Boracay with their friends
and co-employees on a company outing. While
swimming, Abe shouted for help. Because Abe
appeared to be frantic and drowning, the life guard
on duty swam to where Abe was and rescued Abe. At one for ineffective disinheritance, the estate would be
the beach, Abe begged Ana to marry him, declaring distributed as follows:
his undying love for her. Believing that Abe was at
the point of death, Bea consented, and they were Abe: 150,000 (legitime)
married instantly by a priest who was nearby.
Bea: 150,000 (legitime)
After the ceremony, Abe bounced back to life as if 225,000 (free portion)
nothing happened. He then confided to his friend
that he pretended to be drowning when he shouted Carl: 150,000 (legitime)
for help. Abe died of drowning the following day. 225,000 (free portion)
What is the legal standing of Abe’s marriage to Ana? ________
900,000
The marriage is void for lack of a valid marriage
license. A marriage in articulo mortis is exempt from a
marriage license. It is a marriage where either or both QUESTION NO. 193
parties are at the point of death. Abe was not at the
point of death when the marriage was performed. Pedro died without a will. He is survived by his
Consequently, the marriage is not a marriage in articulo legitimate children (Abe and Bea); his widow
mortis which would have excused Abe and Ana from (Wendy); and illegitimate child (Carl). The net value
securing a marriage license. That Abe died of of Pedro’s estate is Php1.4 million. Distribute Pedro’s
drowning the following day does not detract from the estate.
fact that at the time of the marriage, Abe was not at the
point of death. Satisfy the legitimes of the heirs first. The balance must
be divided among the heirs in the proportion of 2:2:2:1.

QUESTION NO. 192 LEGITIMES:

Tom, a widower, 89 years of age and suffering from Abe 350,000

minor ailments, including decreased hearing and Bea 350,000
impairment of vision, made a will a month before his Wendy 350,000
death leaving an estate valued at Php900,000. In his Carl 175,000
will, Tom disinherited his son, Abe, without stating ________
the reason therefor. Tom emphatically stated in his BALANCE 175,000
will that his two other children, Bea and Carl, are the
only heirs who are to inherit from his estate to the The balance of 175,000 is to be divided equally among
exclusion of Abe. Tom appointed Rey as executor of the heirs in the proportion of 2:2:2:1. Thus, Abe, Bea,
his will. Distribute Tom’s estate. and Wendy are entitled to 2/7 each of 175,000, or 50,000
each. Carl is entitled to 1/7 of 175,000, or 25,000. The
The institution of Bea and Carl as Tom’s heirs remains final distribution would be as follows:
valid, but their shares are to be reduced to allow Abe
to receive his legitime. Abe is entitled to his legitime Abe 350,000 plus 50,000
because he was disinherited for no cause by his father. Bea 350,000 plus 50,000
Had there been preterition here, as when Abe was Wendy 350,000 plus 50,000
omitted from the inheritance, Tom’s three children Carl 175,000 plus 25,000
would be entitled to receive Php300,000 each from the
estate. But because this is not a case of preterition but TOTAL 1.4 million

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QUESTION NO. 194
Determine the proper remedy of the aggrieved party
in the following cases. Explain your answer.
a. Abe, pretending to be a horticulturist, sells to
Tessie a bonsai plant which he claims will bear
cherry tomatoes. Tessie buys the bonsai plant only
to learn later that it won’t bear fruit.
b. Abe, a florist, agrees to decorate the tables at the
wedding reception of Tessie’s daughter. In the
purchase order form, Abe agreed to supply 12
table centerpieces made of a bunch of yellow roses
in elaborate floral arrangement. Instead, Abe
delivers 12 centerpieces made of a single yellow
rose surrounded by Malaysian mums.
c. Rey hires Abe to transport Rey’s friends to Mt.
Pinatubo for a trek to the summit on a 4x4 vehicle
due to the difficulty of the terrain. Abe borrows a
vehicle from Larry, but Larry lends Abe a vehicle
which is not 4x4.
d. Ana sells to Bea her diamond ring. Bea,
accompanied by Ana, brings the ring to an
appraiser who certifies the ring to be genuine.
Unknown to Bea, Ana had the appraiser examine
a different ring such that the ring that was brought
by Bea was not real.
Tessie has no remedy in (a). No express warranty is
created simply by the seller expressing his personal
opinion to the buyer, nor do his statements to the buyer
constitute a warranty if he is just “talking up” the
merchandise (called “puffing”), even though the buyer
may rely on such statements. Even the use of the word
“guarantee” adds little, considering how it was used.
A statement of fact must be of the essence of the subject
matter.
Abe is liable for damages in (b) for breach of the
obligation. Article 1170 of the Civil Code refers to
incidental fraud (dolo incidente) committed in the
performance of an obligation already existing because
of a contract. Here, Abe is liable because he deviated
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from his agreement with Tessie to decorate the
centerpieces with a bunch of yellow roses.
Abe is liable for damages in (c) because he deviated
from his undertaking to transport Rey and his friends
on board a 4x4 vehicle which is an essential element of
the undertaking given the difficult terrain of in
reaching the summit of Mt. Pinatubo.
Bea can sue for annulment of the sale with damages in
(d) on the ground that Ana committed fraud in
inducing Bea to agree to the sale. It is clear here that
had Bea known that she was not buying a genuine
diamond ring, she would not have consented to the
sale.
QUESTION NO. 195
Abe, 70, lends Rey Php1 million with interest at 15%
per annum. When the loan fell due, Rey attempted to
deliver a personal check to Abe, inclusive of the
stipulated interest, but Abe refuses to see him.
Apparently, Abe suffers from dementia; and there is
a pending proceeding to place him under
guardianship. The court has temporarily placed Abe
in the care of his nephew, Larry, as guardian ad litem
pending the issuance of letters of guardianship that
will officially appoint Larry as Abe’s guardian. What
is Rey’s remedy?
Rey is obliged to tender the payment to Larry pursuant
to Article 1240 of the Civil Code which provides that
payment shall be made to the person in whose favour
the obligation has been constituted, or his successor in
interest, or any person authorized to receive it. Since
Abe, the creditor, was placed in the care of a temporary
guardian ad litem who is authorized to administer
Abe’s estate pending the appointment of a permanent
guardian, the temporary guardian is decidedly a
person authorized to receive the payment.
QUESTION NO. 196
Paterno, 87, died of a heart attack without a will.
Surviving Paterno were his widowed mother (Marie);
his wife (Wendy); his legitimate children (Abe and
Bea); his grandson (Eric) who is the son of Bea;
another grandson (Fidel) who is a legitimate son of
Carl, Paterno’s legitimate son who died five years
ago; and another grandson (Greg) who is the
legitimate son of Dante, a legitimate son of Paterno
who repudiated his inheritance. How shall Paterno’s
estate of Php1.2 million be distributed?
The legal heirs of Paterno are Abe, Bea, Fidel, and
Wendy. Eric is excluded by his mother Bea who is still
alive. Fidel represents Carl who predeceased Paterno.
Greg is excluded because of the repudiation of Dante.
Marie is likewise excluded in view of the survival of
Paterno’s legitimate children.
In addition to their respective legitimes, Abe, Bea, Fidel
and Wendy are entitled to equal shares in the free
portion of Php400,000. Therefore, the final distribution
of Paterno’s estate is as follows:
Abe 200,000 plus 100,000
Bea 200,000 plus 100,000
Fidel 200,000 plus 100,000
Wendy 200,000 plus 100,000
QUESTION NO. 197
With her deceased first husband, Bea begot two
children, Don and Eric. With her deceased second
husband, Bea begot Fidel, Greg, Henry, and Inigo.
Bea died last year followed by Don who died this
year without a will. Don was survived by all his
siblings. The net value of Don’s estate is Php1.2
million.
a. How shall Don’s estate be distributed?
The rule of double share for full-blood relative applies.
Here, Eric is entitled to a share double that of his half-
siblings Fidel, Greg, Henry, and Inigo. Therefore:
72
Eric 400,000
Fidel 200,000
Greg 200,000
Henry 200,000
Inigo 200,000
1.2 million
b. Suppose Don’s siblings had predeceased him, and
the only survivors are his nephew, John, the
legitimate son of Eric, and his nephews, Kurt and
Lyle, the legitimate children of Henry, how should
the estate be divided?
The rule of double share for full-blood collateral still
applies. If there are nephews and nieces surviving the
decedent, relationship by the whole or half-blood
becomes material in the distribution of the estate. Here,
all the nephews inherit in their own right because they
do not concur with an uncle or aunt.
John 600,000
Kurt 300,000
Lyle 300,000
1.2 million
QUESTION NO. 198
After securing a marriage license, Abe and Bea, both
residents of Manila, went to the Office of the Mayor
of Baguio City, to get married. The mayor was not at
his office but a secretary at the office asked Abe and
Bea and their witnesses to fill up and sign the
marriage contract forms. Thereafter, the secretary
went out of the office to look for the mayor who she
found in another office holding a meeting. The
mayor signed all copies of the marriage contract and
gave them back to the secretary who returned to the
office. The secretary then gave a copy of the marriage
contract to Abe and Bea and told them they are
already married. What is the legal standing of the
marriage?
The marriage is void because the mayor did not
perform a ceremony. A marriage ceremony is one
which takes place with the appearance of the
contracting parties before the solemnizing officer and
their personal declaration that they take each other as
husband and wife in the presence of not less than two
witnesses of legal age. (Article 3[3], Family Code)
QUESTION NO. 199
Ana is the wife of Abe. Abe was among the
passengers on board a passenger plane that
mysteriously crashed in 2002. Five years after the
crash, and believing that her husband had died in the
crash, Ana married Rey. The marriage was performed
without Ana obtaining a prior judicial declaration of
her missing husband’s presumptive death. Ten years
later, the authorities found the remnants of the plane.
After a diligent search, Abe’s body was recovered.
Per official report submitted by government officials
on the cause of the accident, no passenger survived in
the plane crash. What is the status of Ana’s marriage
to Rey?
The marriage is valid because there was no
impediment to the valid celebration of Ana’s second
marriage, Ana’s husband being dead at that time. That
there was no prior judicial declaration of presumptive
death of Ana’s husband before Ana’s remarriage is of
no moment because it turned out that the husband
died in the plane crash thereby removing any
impediment to Ana’s remarriage.
QUESTION NO. 200
Maria, an illiterate widow, verbally sold to Pedro in
1978 the farm which she and her deceased husband
had acquired by way of free patent from the
government in 1974. After receiving the agreed
purchase price, Maria vacated the property and
turned over possession to Pedro. Shortly after
Maria’s death in 1994, Pedro attempted to resell the
farm, but failed to do so because the title remained in
Maria’s name. Informed of the attempted sale,
Maria’s only child, Juan, demanded that Pedro vacate
the property and return it to Juan. Juan is aware of the
73
previous sale but he was a still minor at the time of
the sale.
a. Does Juan still have a remedy?
Yes. Juan’s remedy is to file an action for the recovery
of the property or for declaration of nullity of the sale
on the ground that the contract of sale is void for being
contrary to public policy.
b. Has the action prescribed?
The action has not yet prescribed. The sale of the land
by Maria to Pedro four years after the issuance of the
free patent, being in violation of Section 118 of the
Public Land Act, is void from its inception. Juan’s
action to declare the nullity of the contract and to
recover the land should therefore be given due course.
The defense of prescription is even untenable because
an action which seeks to declare nullity of a contract
does not prescribe. (Art. 1410, Civil Code)
c. Can Pedro successfully invoke the pari delicto
doctrine rule in his defense?
No. While as a rule, parties who are in pari delicto have
no recourse against each other on the principle that a
transgressor cannot profit from his own wrongdoing
(Art. 1412[1], Civil Code), such rule does not apply to
violations of Section 118 of the Public Land Act. This is
so because of the underlying public policy in said law
to conserve the land which a homesteader has acquired
by gratuitous grant from the government for himself
and his family.
QUESTION NO. 201
Abe and Bertha, both of marriageable age and not
suffering from any impediment, are living together
as husband and wife without the benefit of marriage.
Not able to beget a child after five years of
cohabitation, they sought medical advice from a
doctor. After some tests, the doctor found Abe to be
sterile. Longing to have a child, Bertha underwent
artificial insemination using the sperm of Abe’s
brother, Rey. The consent of the three to the
procedure was reduced in writing. Lea later gave
birth to Larry. Which of the following statements
accurately describes Larry’s status?
a. Larry is the legitimate child of Abe and Bertha
because their consent to the medical procedure
was in writing pursuant to law.
b. Larry is the illegitimate child of Abe and Bertha
because the couple are not married.
c. Larry is the illegitimate child of Rey and Bertha
because they are the biological parents.
d. Larry is the illegitimate child of Bertha because
she is not married and there is no presumption as
to who the father is.
e. There is no presumption as to Larry’s status.
The statement in (e) is correct because there is no law
which provides for the status of a child born of artificial
insemination procured by persons who are not
lawfully married, as in the case of Abe and Bertha.
The statement in (a) is wrong. Larry is not the
legitimate child of Abe and Bertha because they are not
lawfully married. This is clear from the provision
under the second paragraph of Article 164 of the
Family Code which declares that children conceived as
a result of artificial insemination of the wife with the
sperm of the husband or that of a donor or both are
legitimate children of the husband and his wife
provided that both of them authorized or ratified such
insemination in writing before the birth of the child
and recorded in the civil registry together with the
birth certificate of the child.
The statement in (b) is wrong because Larry is not the
illegitimate child of Abe and Bertha. The provision
under Article 165 of the Family Code that “children
conceived and born outside a valid marriage are
illegitimate” is applicable only when the child was
naturally conceived, and not through artificial
insemination.
74
The statement in (c) is wrong for the same reason stated
in the preceding paragraph.
The statement in (d) is wrong for the same reason
stated in the preceding paragraph.
QUESTION NO. 202
Determine the validity of the following marriages:
a. Abe is married to Bea, while Carol is married to
David. Abe and Carol are legitimate brother and
sister, respectively. Upon the death of Abe and Carol
who died in the same plane crash, Bea marries David.
The marriage is valid because it is neither incestuous
nor contrary to public policy. Article 38 of the Family
Code enumerates the marriages which are void by
reason of public policy. Bea’s marriage to David is not
one of those prohibited.
b. Abe, the only son of Pedro, is lawfully married to
Bea, the only daughter of Maria. Pedro a widower,
later marries Maria who is herself a widow.
The marriage is valid because it is neither incestuous
nor contrary to public policy. Article 38 of the Family
Code enumerates the marriages which are void by
reason of public policy. Pedro’s marriage to Maria is
not one of those prohibited.
c. Pedro is a widower, while Maria is a widow. Being
sweethearts in high school, they rekindled their long
lost love and got married. After several years, Abe,
Pedro’s son by his former marriage, marries Bea,
Maria’s daughter by her deceased husband.
The marriage is valid because it is neither incestuous
nor contrary to public policy. Abe and Bea are
stepbrother and stepsister, respectively. Article 38 of
the Family Code enumerates the marriages which are
void by reason of public policy. Abe’s marriage to Bea
is not one of those prohibited.
d. Abe, a narcotics agent, kills Bene, a notorious drug
pusher. Abe is later acquitted of Ben’s killing, and
marries Cynthia, Ben’s widow.
Abe’s marriage to Cynthia is valid because Ben’s
killing by Abe was not for the purpose of marrying
Cynthia, but in line with his duty as a narcotics agent.
e. Arnold, single, adopted Brad. Carol, also single,
adopted Dina. Arnold and Carol get married. Fifteen
years later, Brad marries Dina.
The marriage is valid because it is not contrary to
public policy. While Article 38 (8) of the Family Code
prohibits the marriage between adopted children of
the same adopter, Brad and Dina are not the adopted
children of the same adopter – Brad being the adopted
child of Arnold, and Dina being the adopted child of
Carol.
f. Abe is Bea’s husband. Upon Abe’s death, Bea
marries Pedro, the widowed father of Abe.
The marriage is void because it is a marriage between
a father-in-law and a daughter-in-law which is
prohibited under Article 38 (3) of the Family Code for
being contrary to public policy.
g. Maria, single, adopted Carol, the infant daughter
of her driver. A few years later, Maria gives birth to
David out of her relationship with her boyfriend,
Abe, a good for nothing gigolo. Maria doted on Carol
and treated her as if she were her son. Maria also took
care of David and, together with Carol, sent both
children to exclusive schools. In college, David falls
in love with, and marries Carol.
The marriage is valid because it is not contrary to
public policy. While Article 38 (7) of the Family Code
prohibits the marriage between an adopted child and a
legitimate child of the adopting parent, there is no
similar prohibition regarding the marriage between an
adopted child and an illegitimate child of the adopting
parent.
75
QUESTION NO. 203
Pedro, an illegitimate person, dies without a will. He
is survived by his father (Fidel); his widow (Wanda);
his brother (Arnel); and his two other brothers (Ben
and Cosme), the children of his father from a lawful
marriage. The net value of Pedro’s estate is Php1.2
million. What are the distributive shares of the heirs?
Only Fidel and Wanda are entitled to inherit from
Pedro’s estate, at Php600,000 each. Illegitimate parents,
such as Fidel, do not exclude the surviving spouse.
Arnel, Ben, and Cosme, Pedro’s brothers, are not
entitled to inherit because they are excluded by Fidel
under the principle of preference of line.
QUESTION NO. 204
Tristan named his legitimate children (Arnel and
Ben) and his friend (Fidel) as his heirs to an estate of
Php6 million. Tristan dies. Divide the estate.
The institution of Arnel, Ben and Fidel concerns only
the free disposal of Php3 million. Arnel and Ben are
first given their respective legitimes (Php1.5 million
each. The free disposal is then divided equally among
the three instituted heirs:
Arnel: 1.5 million (compulsory heir)
1 million (voluntary heir)
Ben: 1.5 million (compulsory heir)
1 million (voluntary heir)
Fidel: 1 million (voluntary heir)
QUESTION NO. 205
Is a motion for intervention in a land registration case
proper?
No. Unlike in ordinary civil actions where parties may
include a plaintiff, a defendant, a third-party
complainant, cross-claimants, and intervenors, the
only parties in cases of original applications for land
registration are the applicant and the oppositor. (Secs.
14, 25 PD 1529) If a party desires to be heard in a land
registration case, he should ask for the lifting of the
order of general default, and then if lifted, file an
opposition to the application for registration.
QUESTION NO. 206
Is a motion to dismiss allowed in land registration
cases?
Yes. Both the Land Registration Act (Act No. 496) and
the Property Registration Decree of 1978 (PD No. 1529)
do not provide a prohibition for the filing of a pleading
similar to a motion to dismiss. Section 34 of PD 1529
specifically provides that, “the Rules of Court shall,
insofar as not inconsistent with the provisions of this
Decree, be applicable to land registration and cadastral
cases by analogy or in a suppletory character and
whenever practicable and convenient.”
QUESTION NO. 207
Husband is the operator of a public utility vehicle
which meets an accident resulting in the death of a
passenger. When judgment is rendered against him,
and execution is levied on a conjugal house and lot,
he claims that the share of his wife in the property
should not be made to answer for the debt. Is
Husband’s contention tenable?
Yes. The absolute community is not liable because of
par. 9, Article 94 of the Family Code, which provides
that “liabilities incurred by either spouse by reason of
a crime or quasi-delict, in case of absence or
insufficiency of the exclusive property of the debtor-
spouse…” presupposes that the husband alone is
liable, but the payment may be advanced by the
community property to be deducted from the
husband’s share upon liquidation of the community.
76
QUESTION NO. 208
Abe and Betty, husband wife, are the parents of Arnel
and Ben. By a previous marriage, Abe has a legitimate
child, Carl. Also by a previous marriage, Betty has a
legitimate child, Denver. Abe gave each of the four
children for their education a donation, but did not
get Betty’s consent. Who is liable for the value of the
donations?
The donations given to Arnel and Ben are valid
because they were made to the common children of
Abe and Betty in furtherance of the career of both
children. Therefore, the expenses are to be borne by the
absolute community despite the fact that Betty’s
consent had not been obtained.
On the other hand, the donation given to Carl is valid,
but the absolute community is not liable. Only the
husband is liable. It is true that it was given for the
purpose of finishing a career, but here the consent of
the wife was not obtained. Carl is not a common child
of Abe and Betty, but of Abe only. The donation given
to Denver is void. This is so because the donation
would be an indirect donation of Abe to Betty who is a
presumptive heir of Denver.
QUESTION NO. 209
If useful improvements can be removed by the
possessor in good faith without injury, may the
owner retain them? If so, how much should the
owner refund to the possessor in good faith?
A possessor in good faith has the right to remove his
useful improvements provided no substantial damage
or injury is caused to the principal, reducing its value,
unless the owner refunds to the possessor in good faith
the amount spent in the increase in value which the
thing may have acquired by reason of the
improvements.
QUESTION NO. 210
Abdul is a barter trader in Zamboanga City. He
communicates via text messaging to Kiram, who is
based in Jolo, to transact business. Last month, he
agreed with Kiram to exchange a cargo of batik
clothing, numbering 200 pieces of assorted shirts,
malong, and skirts, with a cargo of 50 boxes of canned
goods imported from Australia. Kiram received the
batik items, but did not send the canned goods to
Abdul because of news reports that the incursion of
Abu Sayyaf had stopped the barter trade. Is Kiram in
breach of his obligation?
Yes, because he failed to do what is incumbent upon
him upon delivery of the batik goods to him.
Moreover, Kiram is not even allowed to invoke the
defense of fortuitous event considering that he was
already in delay in the performance of his obligation.
QUESTION NO. 211
Abe promises to sell to Melany a parcel of land at a
reduced price on condition that Melany should stay
single and not marry anyone. Melany subsequently
enters a convent to become a nun. The following year,
Melany demands fulfilment of Abe’s promise. Is Abe
bound by his promise?
Abe is not obliged to sell the land to Melany because
the condition attached to it is contrary to law and
public policy as an undue restraint on individual
freedom.
QUESTION NO. 212
Abe owes Rey Php2 million payable on or before
December 31. To secure the loan, Abe executes a
mortgage in favor of Rey on Abe’s building. On
October 25, the mortgaged building is totally
destroyed in a fire of accidental origin. After the fire,
Rey immediately demands payment from Abe. Is
Rey’s demand valid?
77
Yes. The debt becomes due and demandable at once
because the security is lost even through a fortuitous
event, unless the debtor can furnish another security
for the loan which is equally satisfactory. (Art. 1198,
Civil Code) This is once instance where the debtor loses
the benefit of the period.
QUESTION NO. 213
Husband catches Wife having illicit relations with
Gigolo. Husband then tells Wife that he will file an
action against her for legal separation to which the
latter agreed provided she will not be charged
criminally. Husband promptly files a complaint for
legal separation. Wife defaults. When questioned by
the Public Prosecutor why she failed to file an
answer, Wife signifies her intention to the petition
for legal separation. Is there a confession of
judgment?
No. On the contrary, the petition for legal separation
should be granted in view of the presence of other
evidence. Here, there was only an extra-judicial
admission and not a confession of judgment (which
usually happens when the defendant appears in court
and confesses the right of plaintiff to judgment or files
a pleading agreeing to plaintiff’s demand).
Even if the statement of Wife really constitutes a
confession of judgment, still, inasmuch as there is
evidence of sexual infidelity on the part of the wife
independently of such statement, the decree of legal
separation would be premised not on her confession,
but on the strength of the evidence of sexual infidelity
on the part of the wife. What the law prohibits is a
judgment based exclusively on the confession of
judgment. If a confession can automatically and itself
defeat the suit, any defendant who opposes the legal
separation will immediately confess judgment,
purposely to prevent the giving of the decree.
QUESTION NO. 214
Under Article 58 of the Family Code, an action for
legal separation must not be tried before six months
have elapsed since the filing of petition, the purpose
being to provide the parties a cooling-off period. Is
this requirement absolute?
An action for legal separation requires a “cooling-off”
period of six months. However, when the ground
alleged is one of those falling under R.A. No.9262
(Anti-Violence Against Women and their Children
Act), there is no such “cooling-off” period because the
courts are mandated to proceed with the hearing of the
case as soon as possible. (Sec. 19, RA No. 9262)
QUESTION NO. 215
Homer is married to Winda. Before their marriage,
Winda confessed to Homer that she was two-month
pregnant with the child of an African-American
engineer who had already left the country. When the
child was born, Homer could not accept it for being
too black in complexion. What is the status of the
child?
The child is the legitimate child of Homer and Winda
because it was born within a valid marriage. This is so
because under the law, a child conceived and born
during lawful wedlock is almost conclusively
presumed legitimate. The presumption is almost
conclusive because the law allows certain grounds to
disprove it. (Art. 164, Family Code)
QUESTION NO. 216
Husband and Wife are living separately from each
other. After their separation, Wife cohabited with
Gigolo from 1985 up to the latter’s death in 2005. In
1994, Wife gave birth to Son. During the three-day
stay of Wife at the hospital, Gigolo visited and stayed
with her and the new-born baby. All the medical and
hospital expenses, food, and clothing of Wife and the
baby were paid under the account of Gigolo.
78
A few months later, Gigolo would bring Son to his
office, introduce him as his son, and had their
pictures taken together. On the occasion of Gigolo’s
last birthday, he expressly acknowledged Son to be
his son in the presence of a priest and other friends.
Since his birth, Son had been in continuous
possession and enjoyment of the status of a
recognized child of Gigolo by the latter’s direct and
overt acts. After Gigolo’s death, Wife, as guardian of
Son, brought an action to claim his son’s share in the
estate of Gigolo claiming that her son is the
illegitimate child of the deceased. Is Son the
illegitimate child of Gigolo?
No. A child born and conceived during a valid
marriage is presumed to be legitimate. While physical
impossibility for the husband to have sexual
intercourse with his wife is one of the grounds for
impugning the legitimacy of a child born to the wife,
the grounds for impugning such legitimacy under
Article 166 of the Family Code may only be invoked by
the husband, or in proper cases, his heirs under the
conditions set forth under Article 171 also of the Family
Code.
Outside of these cases, no one - even the heirs - can
impugn legitimacy. If the husband who is presumed to
be the father does not impugn the legitimacy of the
child, then the status of the child is fixed and the latter
cannot choose to be the child of his mother’s alleged
paramour. Moreover, it is settled that a child born
within a valid marriage is presumed legitimate even
though the mother may have declared against its
legitimacy or may have been declared as an adulteress.
(Liyao v. Liyao, 378 SCRA 563 [2002])
QUESTION NO. 217
In his will, Tom named his legitimate children (Abe
and Ben) and his friend (Fidel) as his universal heirs.
Abe predeceased his father (Tom) without any
descendant to inherit from him. Tom died with an
estate valued at Php600,000. Divide the estate.
Abe’s supposed share in the legitime (Php150,000)
goes to his brother, Ben, who will inherit it in his own
right since it is the legitime. Abe’s share in the free
portion (Php50,000) will go equally to Ben and Fidel by
accretion since it is the proportion in which they were
instituted to the free portion. If Fidel predeceases Tom,
his share in the free portion will go to Abe and Ben by
accretion. It is so because they were instituted as
voluntary heirs.
QUESTION NO. 218
Paco has three legitimate brothers (Abe, Ben, and
Chad) Abe predeceases Paco, but he is survived by
his legitimate child, Arnel. Ben is incapacitated, but
he has two legitimate children, Brad and Bien. Chad
repudiates the inheritance. How shall Paco’s intestate
estate of Php1.2 million be distributed?
The Php400,000 share of Abe who predeceased his
brother, Paco, goes to his legitimate child, Arnel, by
representation. The Php400,000 share of Ben who is
incapacitated to inherit goes to his legitimate children,
Brad and Bien, also by representation, or Php200,000
each. The Php400,000 share of Chad who repudiated
the inheritance goes to Arnel, Brad and Bien by
accretion in the same proportion that they inherit, or in
the proportion of 2:1:1.
Arnel 400,000 by representation
200,000 by accretion
Brad 200,000 by representation
100,000 by accretion
Bien 200,000 by representation
100,000 by accretion
QUESTION NO. 219
What are the essential characteristics of a decree of
registration or certificate of title?
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FIRST: A decree of registration or the corresponding
certificate of title binds the land, quiets title thereto,
and is conclusive against all persons, including the
government.
SECOND: After one year from its entry or even earlier
in cases where title to the land has been transferred to
an innocent purchaser for value, the decree becomes
final and incontrovertible.
THIRD: A torrens title issued pursuant to a homestead
patent, free patent, or sales patent under the Public
Land Act has the same force and effect as a Torrens
title.
FOURTH: The operative act that conveys or affects a
registered land is the act of registration insofar as third
persons are concerned.
FIFTH: No title to registered land in derogation of the
title of the registered owner shall be acquired by
prescription or adverse possession. However, the
registered owner may be barred from invoking the
imprescriptibility of his title by virtue of the equitable
principle of laches. (Heirs of Batiog-Lacamen v. Heirs of
Lauran, 65 SCRA 605)
SIXTH: Torrens titles are not subject to collateral
attack. It cannot be altered, modified, or cancelled,
except in a direct proceeding in accordance with law.
QUESTION NO. 220
Which of two titles is superior: an earlier title secured
administratively or a later title secured through a
judicial proceeding?
The person holding the prior certificate of title is
entitled to the land as against the person who relies on
the second certificate. Pursuant to Section 32 of P.D.
No. 1529, upon the expiration of one year from the
issuance or entry of the decree of registration, the
decree and certificate shall become indefeasible and
incontrovertible. This provision also applies to titles
acquired through homestead or other public land
patents. (Lahora v. Dayanghirang, 37 SCRA 346)
QUESTION NO. 221
If the title of a land applicant to a public agricultural
land is incomplete or imperfect, what is his ultimate
remedy under the law?
If the applicant of a parcel of land cannot sustain his
claim of private ownership or does not have enough
evidence to overcome the presumption that the land
belongs to the public domain under the Regalian
Doctrine, his ultimate recourse is to admit that the land
is a public land but invoke his right to confirm his
imperfect or incomplete title to the land under Section
48 of the Public Land Act, C.A. No. 141.
QUESTION NO. 222
Which of the following marriages would a court most
likely declare void?
a. Abe and Bea are married and have a son, Charlie,
who is 19. David and his girlfriend, Elnora, have a
daughter, Fiona, who is 18. Abe and David are
brothers. Charlie and Fiona got marriage last year
with the consent of their parents.
b. Arnulfo and Anabelle are husband and wife.
Anabelle died of pancreatic cancer two years ago.
Distraught by his wife’s death, Arnulfo married
Angela, 26. Anabelle and Angela are sisters.
The marriage in (a) between Charlie and Fiona would
most likely be declared void, but not the marriage in
(b) between Arnulfo and his sister-in-law, Angela.
The marriage in (a) is void because Charlie and Fiona
are first cousins. Their marriage is void under Article
38 (a) of the Family Code because they are collateral
relatives within the fourth civil degree of
consanguinity, and it doesn’t matter whether their
relationship is illegitimate.
80
The marriage in (b) is valid because Arnulfo was no
longer suffering from any impediment when he
married his sister-in-law, Angela. A marriage between
a brother-in-law and a sister-in-law is valid because it
is not one of those prohibited by law for reasons of
public policy. (Art. 38, Family Code)
QUESTION NO. 223
Tom executed a will giving a legacy of Php1 million
to his friend, Frank. Tom executed the will in the
presence of three instrumental witnesses. One of the
instrumental witnesses was Frank. Is the will valid?
The will is valid and binding because of the presence
of three instrumental witnesses, but Frank is
incompetent to receive the legacy. If a person attests
the execution of a will, to whom a devise or legacy is
given by such will, such devise or legacy, so far as such
person is concerned, shall be void, unless there are
three other competent witnesses to such will.
However, such person so attesting shall be admitted as
a witness as if such devise or legacy had not been made
or given. (Art. 823, Civil Code)
QUESTION NO. 224
Abe, single, died without a will with an estate valued
at Php1.2 million. He is survived by the following
relatives:
a. Ana, the daughter of Rey, the latter being Abe’s
legitimate brother. Rey has never been married.
b. Bea, the daughter of Sam, the latter being Abe’s
legitimate brother. Sam was not yet married to
Bea’s mother when Bea was born. Sam has since
married Bea’s mother.
c. Candy, the adopted daughter of Sam.
d. Dina, the daughter of Tina, the latter being Abe’s
legitimate sister. Shortly after Dina’s birth, Tina
 and her husband died in an accident. Dina was
later adopted by an American couple.
Who is entitled to inherit from Abe?
Only Bea and Dina are entitled to inherit from Abe. Bea
is entitled to inherit because she is Abe’s niece, she
being the legitimated daughter of Sam, Abe’s
legitimate brother. A legitimated child shall enjoy the
same rights as legitimate children. (Art. 179, Family
Code)
Dina is also entitled to inherit because she is the
legitimate daughter of Tina, Abe’s sister. That Dina
was adopted by an American couple does not
disqualify her to inherit from Abe because an adopted
child remains an intestate heir of his parents and other
blood relatives.
Ana is not qualified to inherit from Abe because of her
status as an illegitimate child of Rey. An illegitimate
child has no right to inherit ab intestato from the
legitimate relatives of his father or mother. (Art. 992,
Civil Code). Since Abe is a legitimate brother of Rey,
Ana is therefore excluded from Abe’s inheritance.
Candy is also not qualified to inherit from Abe
because of her status as an adopted child of Sam, Abe’s
brother. Candy’s relationship with Sam, her adoptive
father, is purely personal between them and does not
extend to Abe.
QUESTION NO. 225
Abe wanted to have his house remodeled. He called
a number of building contractors and received bids
ranging from Php1 million to Php1.5 million. Ben
submitted a bid to do the work for Php900,000. Abe
then entered into a notarized contract with Ben to
have the house remodeled.
Shortly before Ben was scheduled to begin work, he
called Abe and said, “I just found out my secretary
made a mistake in adding figures. I couldn’t possibly
81
do the work for Php900,000 or I’d lose money.” Abe
sues Ben for breach of contract. Judgment for whom?
Judgment for Abe if he did not have reason to know
Ben’s erroneous bid. Ben cannot refuse to perform on
grounds of unilateral mistake because mistake cannot
and ought not co-exist with negligence, as in this case.
(Art. 1331, Civil Code)
QUESTION NO. 226
Which of the following agreements need not comply
with the Statute of Frauds?
a. Abe is indebted to Ben which is now due. Clay, a
friend of Abe, promises to pay Ben what Abe owes
in case the latter defaults in his obligation to Ben.
b. Abe intends to borrow money from Ben to finance
a business. Clay, a friend of Abe, tells Ben to
extend the loan to Abe and represents that Abe
financially able in paying the loan obligation.
c. Abe sells to Rey a car for Php150,000.
d. Abe assigns his leasehold rights to Rey for the
remainder of the lease period.
The agreement in (d) need not comply with the Statute
of Frauds. The contracts which are required to be in
writing to be enforceable are those enumerated under
Article 1403 (2) of the Civil Code. The list is exclusive.
An assignment of leasehold rights, even if the lease
involves real property, is not among the contracts
which is required to be in writing to be enforceable.
Inclusio unius, est exclusio alterius.
The agreements in (a), (b), and (c) are required to be in
writing because they all fall under the Statute of
Frauds. The agreement in (a) constitutes a special
promise to answer for the debt, default or miscarriage
of another; the agreement in (b) constitutes a
representation as to the credit of another; while the
agreement in (c) involves the sale of personalty the
price of which is in excess of Php500.00.
QUESTION NO. 227
Ali and Raida, both of age and not suffering from any
impediment, have lived together for several years as
husband and wife without marriage. Following the
birth of a son, the couple got married. The marriage
proved to be a failure when it was annulled on
grounds that, at the time of the marriage, Ali
concealed to Raida his affliction with a serious and
incurable sexually-transmissible disease. What is the
child’s status?
The subsequent annulment of the marriage of Ali and
Raida does not affect the legitimated status of their son.
This is so because a voidable marriage is one which is
valid until annulled.
QUESTION NO. 228
Two years ago, Abe, an engineer, and Bea, a nurse,
were introduced to each other by a mutual friend.
Tessie was a single parent with a two-year old son,
Sam. Abe and Bea were married last year.
Immediately after the marriage, Abe, with Bea’s
consent, filed a petition to adopt Sam. Sam’s birth
certificate identified Rey as the father. When Sam
was a baby, Rey denied paternity and left the
Philippines. The court granted the adoption. Is the
adoption of Sam by Abe valid?
Sam’s adoption by Abe is void. Under the Domestic
Adoption Act, a person who is financially capable of
giving care and support may adopt a child. Although
Abe, being a lawyer, is financially capable of giving
care and support to Sam, his adoption of Sam is void.
The Domestic Adoption Act specifically requires that
the husband and wife shall jointly adopt, except if one
spouse seeks to adopt the legitimate child of the other;
or if one spouse seeks to adopt his or her own
illegitimate child; or if the spouses are legally
separated from each other. Abe does not fall under any
of these exceptions. His adoption of Sam, although
with Bea’s consent, is a complete nullity. To be valid,
the adoption should have been filed jointly with Bea.
82
QUESTION NO. 229
Abe and Bea, a childless couple, were married ten
years ago. Despite several trips to Obando, Bulacan,
Bea still failed to conceive a child. Bea attributes her
failure to conceive a child to the fact that Abe’s family
has a history of fertility problem. Anxious to have a
child, Bea secretly had herself artificially
inseminated with the sperm of an unnamed donor.
When Abe discovered Bea’s pregnancy through this
procedure, he immediately commenced an action for
legal separation. Will Abe prevail?
Abe will not prevail because Bea is neither guilty of
sexual infidelity nor of any other ground for legal
separation under Article 55 of the Family Code. Abe’s
only remedy in law is to impugn the legitimacy of the
child on grounds that his wife procured the artificial
insemination without his consent.
QUESTION NO. 230
Abe and Bea are common-law spouses. With Abe’s
advancing age, Bea became increasingly concerned
about her economic security in the event anything
should happen to Abe. Although Abe repeatedly
promised to take care of Bea in his will, Bea always
insisted that Abe must “do something now, not later”
to provide her with some security.
One day, Abe asked Bea to meet him at his lawyer’s
office. There, he signed a notarized deed donating to
her a parcel of land. Gratified by Abe’s generosity,
Bea accepted the donation in the same document.
Shortly thereafter, Abe died. Abe’s intestate heirs
immediately commenced an action against Bea for
recovery of the property. Who prevails?
Abe’s heirs prevail because the prohibition against
donation between spouses during the marriage also
applies to persons living together as husband and wife
without a valid marriage. If the rule were otherwise,
persons in common-law relationships would be in a
better position than those in lawful wedlock. This is
certainly not the intendment of the law.
QUESTION NO. 230
Abe gives Rey in usufruct a parcel of land, including
a residential building thereon, for a period of ten
years. During the life of the usufruct, the building is
totally destroyed in a fire of accidental origin. Abe
now demands that Rey vacate the land on grounds
that the usufruct has been extinguished by the total
destruction of the building. Is Abe correct?
Abe is wrong. Rey still has the right to use the land and
the materials left on it until the end of the ten-year
period.
QUESTION NO. 231
Abe promises to buy a new house for Tessie’s parents
if Tessie were to marry him. Tessie agrees. Abe later
refuses to make good his promise. Can Tessie compel
Abe to buy a house for her parents?
No. The promise of marriage was used as
consideration for the promise to buy a new house.
Therefore, if Tessie wants to enforce this promise, the
promise must be proved through something in
writing, and Abe needed to sign the writing. Abe’s
promise falls squarely within the Statute of Frauds.
QUESTION NO. 232
Andy and Ben inherited from their parents a farm.
On January 1, Andy sold his half interest over the
property to Celso for Php500,000. Ben learned of the
sale on May 5 when Andy gave him a copy of the sale
document. Ben went to Celso and offered to redeem
Andy’s share for Php550,000. Ben offered his check of
Php400,000 as partial payment, and promised to pay
the balance in 60 days upon the approval of his bank
loan. Celso refused. On July 20, Ben launched an
action against Celso for legal redemption.
a. Did Ben make a valid and effective offer to redeem
Andy’s share?
83
No. The law, in granting unto a co-owner the right of
redemption, intended that the offer to redeem must be
valid and effective, accompanied by an actual tender of
an acceptable redemption price. Here, Ben failed to
make a valid tender of the redemption price. Ben
merely offered a check for P400,000, which was not
even legal tender and which Celso rejected.
Celso was not obligated to accept Ben’s promise to pay
the balance by means of a loan to be obtained from a
bank. Bona fide redemption necessarily imports a
seasonable and valid tender of the entire repurchase
price, and this was not done. There is no cogent reason
for requiring Celso to accept payment by instalments
from a redemptioner, as it would ultimately result in
an indefinite extension of the 30-day redemption
period, when the purpose of the law in fixing a short
and definite term is clearly to avoid prolonged and
anti-economic uncertainty as to ownership of the thing
sold.
All told, the offer to redeem was not in pursuance of a
legal and effective exercise of the right of redemption
as contemplated by law; hence, refusal of the offer on
the part of Celso is justified. The conditions precedent
for the valid exercise of the right do not exist
b. Suppose Ben offered to pay in cash the redemption
price, and Celso refused, did Ben seasonably file his
complaint for legal redemption on July 20?
No, the complaint was filed out of time. Article 1623 of
the Civil Code does not prescribe any particular form
of notice, nor any distinctive method for notifying the
redemptioner. So long, therefore, as the redemptioner
is informed in writing of the sale and the particulars
thereof, the 30 days for redemption start running, and
the redemptioner has no real cause to complain.
Here, Andy showed Ben a copy of the sale document
in favor of Celso on May 5. The furnishing of this copy
is equivalent to the giving of written notice required by
law: it came from the vendor and made available in
writing the details and finality of the sale. It served all
the purposes of the written notice, in a more authentic
manner than any other writing could have done. As a
necessary consequence, the 30-day period for the legal
redemption by Ben began to run its course from and
after May 5, ending on June 5.
QUESTION NO. 233
What is Republic Act No. 9048?
Republic Act No. 9048 which took effect on April 22,
2001 is the law which expanded the basic quasi-judicial
duties and functions of Civil Registrars as provided
under paragraph c, Section 479 of the Local
Government Code. It amended Articles 376 and 412 of
the Civil Code by granting the city and municipal
registrars the authority to correct clerical or
typographical errors and to change first names or
nicknames in the civil registrar without need of judicial
order.
QUESTION NO. 234
What kind of clerical or typographical errors may be
corrected administratively under R.A. No. 9048?
The clerical or typographical errors which may be
administratively corrected under R.A. No. 9048 are
limited to those mistakes committed in the
performance of clerical work in writing, copying,
transcribing, or typing an entry in the civil register that
are harmless and innocuous, which are visible to the
eyes, obvious to the understanding, and can be
corrected or changed only by reference to other
existing record or records.
QUESTION NO. 235
What kind of errors are not correctible under RA
9048?
Those errors that involve the change of nationality,
age, or status of the petitioner are excluded from the
coverage of the law. Consequently, any petition to
correct any error that would subsequently change the
84
nationality, age, or status of a person shall be filed with
the proper court, and not with any local civil registrar.
QUESTION NO. 236
On what ground may a petition for change of first
name be filed under RA 9048?
Under RA 9048, the following are the grounds for the
change of a person’s first name: a) the petitioner finds
the first name or nickname to be ridiculous, tainted
with dishonor, or extremely difficult to write or
pronounce; b) 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; c) the change will avoid
confusion. Any of these grounds, if supported with
convincing proof, will be sufficient basis of changing a
person’s first name.
QUESTION NO. 237
Abe was born on February 12, 1975. What was
recorded as his date of birth in his birth certificate
was February 22, 1975, while all the other entries in
the birth certificate are February 15, 1975, the date
when the attendant signed the document; the date
when the informant gave the information; the date
when the clerk prepared the document; and the date
when the instrument was received at the office of the
civil registrar. May the error be corrected under RA
9048?
Yes. There is in this case an impossible event whereby
registration of birth was done ahead of the occurrence
of birth. That the birth was registered prior to its
occurrence indicates a glaring clerical error especially
if the date of birth, as recorded, is compared with the
other significant dates in the same document. This
error is visible to the eyes and is very obvious to the
understanding; hence, it can be considered a clerical
error, which can be corrected under RA 9048.
In this case, the correction is not an attempt to change
the age of Abe, but to correct the impression that
registration was done prior to the occurrence of birth.
QUESTION NO. 238
Abe was born on January 2, 1962, but the typist
entered the date of his birth as “2-1-62” which could
be interpreted as “February 1, 1962” or “January 2,
1962.” May Abe file for correction of his date of
birth?
Yes, because the date was misleading since a numeric
character or symbol was used for the month. In
accordance with the order of writing the date in the
birth certificate, the “day” should be entered first,
followed by the “month” and the last, the “year.” The
month should be spelled out and not represented by
numerical symbol, like “January” and not “1”. The
error in question is clearly a clerical error within the
meaning of RA 9048.
QUESTION NO. 239
Abe and Bea, both of age and not suffering from any
impediment, lived together as husband and wife
without a valid marriage. Bea gave birth to a son,
Rey, on October 25, 1995. Abe and Bea subsequently
got married on February 20, 1996. The following
month, March 5, 1996, Abe’s birth was belatedly
registered on March 5, 1996. Because Abe was born
illegitimate, he used in his birth certificate the
surname of his mother. In the entry under “Date and
Place of Marriage of Parents,” however, the entries
“20 February 1996, Baguio City” were made when it
should have been “not married.” May Abe seek a
correction under RA 9048?
Yes. The error here is a clerical error within the
meaning of R.A No. 9048 because a future event cannot
be recorded in the birth certificate. The correction will
not alter the status of the child who, by his recorded
name, is an illegitimate child who is legitimated by
virtue of the subsequent marriage of his parents. The
85
error here arose because only information obtaining at
the time of birth shall be recorded in the birth
certificate, and not information prevailing at the time
of registration.
QUESTION NO. 240
Maria Lourdes Cruz filed for correction of entry in
her certificate of live birth. She was baptized as
Maria Lourdes Cruz, the name entered in her
certificate of live birth. When she started schooling,
however, she used the name Ma. Lourdes Cruz.
Petitioner’s name was abbreviated to “Ma.” in all her
records, except her birth certificate. She now wants
her name corrected to Ma. Lourdes Cruz, instead of
Maria Lourdes Cruz. Will she prevail?
No. There is no clerical error in this case. Petitioner’s
name as recorded in her birth certificate is perfectly
correct. There is no misspelling, no misplaced letter,
no omitted letter, no unnecessary letter, and no
misplaced word. Petitioner’s remedy is to file for
change of first name and not for correction of clerical
error.
QUESTION NO. 241
Abe and Bea were married on January 15, 1996. On
February 7, 1997, Bea gave birth to Carla. Prior to
Carla’s birth, Abe left the conjugal abode and lived
with another woman. Because of Abe’s infidelity, Bea
registered Carla as illegitimate with an “unknown”
father. The item regarding the date and place of
marriage of parents was left blank.
In 1999, Abe and Bea reconciled. It was then that Abe
discovered the following: (a) The last name of Carla
is the maiden surname of his wife; (2) His name as
the father of Carla is not entered, but marked
“unknown,” and (3) There is no information about
the date and place of marriage of the parents. Are the
errors correctible under RA 9048?
The errors are not clerical within the meaning of R.A.
No. 9048 because the correction involves the change of
status of Carla from “illegitimate” to “legitimate.”
QUESTION NO. 242
Abe Cruz and Bea Santos, both of age and not
suffering from any legal impediment, lived together
as husband and wife without a valid marriage. On
October 25, 1995, Bea gave birth to Carol. A few
months later, Abe and Bea got married, particularly
on February 14, 1998. The following month, March 14,
1998, Bea registered the birth of Carol under the rules
governing the delayed registration of births. The
complete name of Carol which was recorded in her
birth certificate was Carol Santos Cruz, and the date
of marriage of her parents was entered as February
14, 1998 and the place of the marriage as Baguio City.
The Civil Registrar refuses to correct the entries.
Decide.
The entries are not clerical errors within the meaning
of RA. 9048. The correction of the date of marriage of
the parents will affect the status of the child.
The civil registrar was correct in denying the correction
of the entries in Caroline’s certificate of birth
considering that Carol’s surname should have
followed that of her mother’s because she was born
illegitimate. Moreover, the date and place of Carol’s
parents are erroneous because of the principle in civil
registration that only the facts obtaining at the time of
birth shall be recorded in the birth certificate and not
those facts prevailing at the time of registration.
QUESTION NO. 243
Abe and Bea, both 14 years old, eloped. A daughter,
Joy, was born to them when they were 16 years old.
When they reached the age of 19, they got marriage
with the consent of their parents. Is Joy legitimated
by the marriage of her parents?
86
Yes. Under RA 9858, children born to parents below
marrying age may now be legitimated. R.A. No. 9858
amended Article 177 of the Family Code to the effect
that if the child born to parents are disqualified to
marry each other because they are below 18 years of
age, the child may be legitimated by the subsequent
marriage of the parents. Article 177 of the Family Code,
as amended by R.A. 9858, now reads: “Children
conceived and born outside of wedlock of parents who, at the
time of the conception of the former, were not disqualified by
any impediment to marry each other, or were so disqualified
only because either or both of them were below eighteen (18)
years of age, may be legitimated.”
QUESTION NO. 244
The attestation clause of a will reads: “x x x and he
(the testator) signed at the bottom of the aforesaid will
in our presence and we at his request did the same in
his presence and in that of each other as witnesses to
the will, and lastly, the testator, as well as we, as
witnesses, signed in the same manner on the left
margin of each sheet.”
Is the attestation clause sufficient?
The attestation clause is sufficient because the words
“in the same manner” mean nothing but that the
testator and the witnesses signed on the left margin of
each sheet of the will “in the same manner” in which
they signed at the bottom thereof, that is, the testator
in the presence of the witnesses and the latter in the
presence of the testator and of each other (Fernandez v.
Vergel de Dios 46 Phil. 922 [1936)
QUESTION NO. 245
Abe executes a document in his handwriting
denominated as “Kasulatan sa Pag-aalis ng Mana.”
The document reads:
“Ako, si Abe, may asawa, naninirahan sa 465-
A Flores St., Ermita, Manila, at nagtataglay ng
maliwanag na pag iisip at disposisyon, ay
 tahasan at hayagang inaalisan ko ng lahat at
anumang mana ang panganay kong anak na si
Rey dahil siya ay naging lapastangan sa akin
at ilang beses s’yang nagsalita ng masama sa
harapan ko at kapatid niya na si Mimi na
labis kong ikinasama ng loob ko.”
Rey opposes the will on grounds that it does not
contain any disposition of estate and therefore does
not meet the definition of a will under Article 783 of
the Civil Code. Rey claims that the will only shows
an alleged act of disinheritance by Abe of his son,
Rey, and nothing else; that all other compulsory heirs
were not named nor instituted either as heirs, as
legatees or as devisees, hence; there is preterition
which would result in intestacy.
a. Is the document a valid holographic will?
Yes. A holographic will, as provided under Article 810
of the Civil Code, must be entirely written, dated, and
signed by the hand of the testator. It is subject to no
other form, and may be made in or out of the
Philippines, and need not be witnessed. An intent to
dispose mortis causa can be clearly deduced from the
terms of the instrument, and while it does not make an
affirmative disposition of the testator’s property, the
disinheritance results in the disposition of the property
of the testator in favor of those who would succeed in
the absence of Abe.
It is a fundamental principle that the intent or the will
of the testator, expressed in the form and within the
limits prescribed by law, must be recognized as the
supreme law in succession. Accordingly, the
document, even if captioned as Kasulatan sa Pag-aalis ng
Mana, was intended by Abe to be his last testamentary
act and was executed by him in accordance with law in
the form of a holographic will. Unless the will is
probated, the disinheritance of Rey cannot be given
effect.
b. Is there a valid disinheritance of Rey?
Yes. For disinheritance to be valid, Article 916 of the
Civil Code requires that the same must be effected
87
through a will wherein the legal cause therefore shall
be specified. With regard to the reason for
disinheritance that was stated by Juan in his document,
the same can be considered a form of maltreatment of
Abe by his son, Rey, and that the matter presents a
sufficient cause for the disinheritance of a child or
descendant under Article 919 of the Civil Code.
c. Is there preterition of compulsory heirs?
No. Abe’s holographic will was his last expression to
bequeath his entire estate to all his compulsory heirs,
with the sole exception of Rey. Also, Abe did not
institute an heir to the exclusion of his other
compulsory heirs. The mere mention of the name of
Abe’s daughter did not operate to institute her as a
universal heir. Her name was included plainly as a
witness to the alteration between Abe and his son, Rey.
Since the document is Abe’s holographic will, and that
the law favors testacy over intestacy, the probate of the
will cannot be dispensed with. Thus, unless the will is
probated, the rights of a person to dispose of his
property may be rendered nugatory. (Seangio v. Reyes,
508 SCRA 177 [2006])
QUESTION NO. 246
A will contains the following disposition: “I institute
my brother, Juan, as my universal heir because he had
killed my political rival.” The testator himself had
nothing to do with the crime. Is the institution valid?
The institution is valid. The mere statement of a cause
contrary to law will not invalidate a will nor invalidate
an institution, so long as it does not appear in the will
that such illegal cause is the only motivating factor for
the institution. The principle underlying the rule on the
statement of a false cause under Article 850 of the Civil
Code should also apply in the case of an illegal cause,
if the true cause is the generosity of the testator, and
the disposition is essentially based on the affection of
the testator, the mere statement of an illegal cause
should not impair the institution. But if it clearly
appears from the will itself that the testator’s only
reason for making the disposition is the illegal cause,
then the disposition should be void.
QUESTION NO. 247
Abe donated to his nephew, Rey, a house and lot
valued at Php1 million. Due to business reverses,
Abe died poor ten years later. Larry, Abe’s son,
immediately commenced an action to recover the
donated property on grounds that his legitime has
been impaired. The property is now valued at Php5
million. Decide.
The action, insofar as it seeks to reduce the donation,
will prosper because Larry’s legitime has been
impaired. Larry’s legitime is half of Abe’s estate.
However, what is to be collated to the estate is the
value of the property at the time of the donation and
not the value at the time of the donor’s death.
Accordingly, Larry is not entitled to half of the present
value of the property (Php5 million), but only to half of
its value of Php500,000 which Rey may pay in cash.
QUESTION NO. 248
Abe died in 1999. Before his death, he left a notarial
will instituting his five sons, Ben, Charlie, Dante,
Enrico and Fidel as his sole heirs. Ben died in 1997 in
a vehicular accident. He left two children, Greg and
Homer. Charlie, who has been convicted of an
attempt against the life of Abe, has a son Inigo. Dante
was disinherited for a cause not recognized by law.
He is the father of John, Karl, Lito and Manuel.
Enrico repudiated his inheritance because his father
never accepted his wife. They have two children,
Nomer and Orly. The net value of Abe’s hereditary
estate is Php1 million. Distribute the estate.
Since Ben predeceased Abe, the testator, his legitimate
children Greg and Homer shall represent him in the
succession. The same is true in the case of Charlie, since
he is incapacitated to inherit from his father because of
an act of unworthiness. His legitimate child, Inigo,
shall represent him in the succession. Also, John, Karl,
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Lito and Manuel shall inherit by right of representation
because their father, Dante, was disinherited. It is
different in the case of Enrico. An heir who repudiates
his inheritance cannot be represented. (Art 977, Civil
Code) The legitime of Enrico shall be distributed in
accordance with the rules on intestate succession,
while his share as a voluntary heir shall accrue to his
co-heirs, Ben, Charlie, Dante and Fidel. But Ben is
already dead, Charlie is incapacitated, and Dante was
disinherited. The only living and capacitated heir is
Fidel. Thus:
Fidel 100,000 as compulsory heir
100,000 as voluntary heir
100,000 by right of accretion from B
100,000 by right of accretion from C
100,000 by right of accretion from D
100,000 by right of accretion from E
25,000 as legal heir
Greg 50,000 by right of representation
12,500 as legal heir
Homer 50,000 by right of representation
12,000 as legal heir
Inigo 100,000 by right of representation
25,000 as legal heir
John 25,000 by right of representation
6, 250 as legal heir
Karl 25,000 by right of representation
6,250 as legal heir
Lito 25,000 by right of representation
6,250 as legal heir
Manuel 25,000 by right of representation
6,250 as legal heir
QUESTION NO. 249
Judge Abe, a municipal trial court judge of
Naguilian, La Union, performed a marriage in Tuba,
Benguet, upon written request of the parties. Is the
marriage valid?
Yes. The solemnization by a judge of a marriage
outside his court’s jurisdiction is merely a resultant
irregularity in a formal requisite laid down in Article 3
of the Family Code which, while it may not affect the
validity of the marriage, may subject the officiating
official to administrative liability. (Navarro v.
Domagtoy, 259 SCRA 137 [1996])
QUESTION NO. 250
Which voidable marriage is not susceptible of
ratification by cohabitation under the law?
Marriages which are voidable because of the physical
incapacity of a party to consummate the marriage and
those by reason of affliction of a party with a serious
and incurable sexually-transmissible disease are not
susceptible of ratification by cohabitation. (Art. 45, Nos.
5 & 6, Family Code)
QUESTION NO. 251
Abe and Amy were married in 1978, or ten years
before the Family Code. After 15 years of marriage,
Abe obtained a decree of legal separation after
catching his wife having illicit relations with their
neighbor. In the decree, the court forfeited Amy’s
share in the net profits earned by the conjugal
partnership in favor of her children pursuant to
Article 63(2) in relation to Article 129 of the Family
Code.
Amy quickly assailed the ruing claiming that the net
assets of the conjugal partnership shall be computed
in accordance with Article 102 of the Family Code,
instead of Article 129. She claimed that Article 102
applies because there are no other provisions under
the Family Code which defines net profits subject of
forfeiture as a result of legal separation. She argued
that her veste23d right over half of the common
properties of the conjugal partnership is violated
89
when the forfeiture is to be made pursuant to Article
129 in relation to Article 63(2) of the Family Code.
a. What law governs the property relations of the
spouses given that they were married before the
effectivity of the Family Code? What law governs the
dissolution of their common properties since the
decree of legal separation was issued after the Family
Code is already in effect?
As to property relations, the spouses are governed by
the regime of conjugal partnership of gains. This is so
because they were married when the operative law
was the Civil Code. But as to the liquidation of their
conjugal partnership assets, the Family Code is the law
applicable because it is already the operative law at the
time of the dissolution of their conjugal partnership.
The applicable law in so far as the liquidation of the
conjugal partnership assets and liabilities of Abe and
Amy is concerned is Article 129 of the Family Code
(provision on liquidation of the conjugal partnership) in
relation to Article 63 (effects of a decree of legal separation).
The latter provision is applicable because according to
Article 256 of the Family Code ”[t]his Code shall have
retroactive effect insofar as it does not prejudice or
impair vested or acquired rights in accordance with the
Civil Code or other law.”
Amy’s contention that her vested right over half of the
common properties of the conjugal partnership is
violated when her share in the conjugal partnership is
forfeited in favor of her children pursuant to Article
63(2) and 129 of the Family Code has no basis.
While it is true that the couple were married at the time
when the operative law was the Civil Code, the Family
Code should be given retroactive application for
purposes of determining the “net profits earned” by
the conjugal partnership which is subject to forfeiture.
A spouse’s claim of a vested right is not etched in stone.
To be vested, a right must have become a title – legal
or equitable – to the present or future enjoyment of
property. In one case, the Supreme Court reiterated its
long standing ruling that “prior to the liquidation of
the conjugal partnership, the interest of each spouse in
the conjugal assets is inchoate, a mere expectancy,
which constitutes neither a legal nor an equitable
estate, and does not ripen into title until it appears that
there are assets in the community as a result of the
liquidation and settlement. The interest of each spouse
is limited to the net remainder resulting from the
liquidation of the affairs of the partnership after its
dissolution. Thus, the right of the husband or wife to
one-half of the conjugal assets does not vest until the
dissolution and liquidation of the conjugal
partnership, or after the dissolution of the marriage,
when it is finally determined that, after settlement of
conjugal obligations, there are net assets left which can
be divided between the spouses or their respective
heirs.”
b. Is the computation of net profits earned in the
conjugal partnership of gains the same with the
computation of net profits earned in the absolute
community?
The term net profits is defined in Article 102(4) of the
Family Code. Under this provision, the term net 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.” Without any doubt, Article
102(4) applies to both the dissolution of the absolute
community regime under Article 102 of the Family
Code, and the dissolution of the conjugal partnership
regime under Article 129 of the Family Code. The
difference lies in the processes used under the
dissolution of the absolute community regime under
Article 102 of the Family Code, and in the processes
used under the dissolution of the conjugal partnership
regime under Article 129 of the Family Code.
ABSOLUTE COMMUNITY REGIME: Applying Article
102 of the Family Code, the “net profits” requires a
prior determination of the market value of the
properties at the time of the community’s dissolution.
From the totality of the market value of all the
properties, the debts and obligations of the absolute
community are to be deducted and this will result to
the net assets or net remainder of the properties of the
absolute community, from which the value of the
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properties at the time of marriage is to be deducted,
which then results to the net profits.
CONJUGAL PARTNERSHIP REGIME: Applying
Article 129 of the Family Code, the “net profits”
requires a prior determination of the separate
properties and debts of the spouses under the
following procedure a) an inventory shall be prepared,
listing separately all the properties of the conjugal
partnership and the exclusive properties of each
spouse; b) amounts advanced by the conjugal
partnership in payments of personal debts and
obligations of either spouse shall be credited to the
conjugal partnership as an asset thereof; c) each spouse
shall be reimbursed for the use of his or her exclusive
funds in the acquisition of property or for the value of
his or her exclusive property, the ownership of which
has been vested by law in the conjugal partnership; d)
the debts and obligations of the conjugal partnership
shall be paid out of the conjugal assets. In case of
insufficiency of said assets, the spouses shall be
solidarily liable for the unpaid balance with their
separate properties, in accordance with the provisions
of paragraph 2 of Article 121; e) whatever remains of
the exclusive properties of the spouses shall thereafter
be delivered to each of them; f) unless the owner had
been indemnified from whatever source, the loss or
deterioration of movables used for the benefit of the
family, belonging to either spouse, even due to
fortuitous event, shall be paid to said spouse from the
conjugal funds, if any; and g)the net remainder of the
conjugal partnership shall constitute the profits, which
shall be divided equally between husband and wife,
unless a different proportion or division was agreed
upon in the marriage settlements or unless there has
been a voluntary waiver or forfeiture of such share as
provided in the Family Code.
c. Suppose that Article 102 of the Family Code (which
is a provision under the regime of absolute
community of property) is to apply in the instant
case, is Amy entitled to receive anything from the
absolute community?
If Abe and Amy have no separate properties, the
remaining properties of the couple are all part of the
absolute community. And its market value at the time
of the dissolution of the absolute community
constitutes the “market value at dissolution.” When
Abe and Amy were legally separated, all the properties
which remained will be liable for the debts and
obligations of the community. Such debts and
obligations will be subtracted from the “market value
at dissolution.” What remains after the debts and
obligations have been paid from the total assets of the
absolute community constitutes the net remainder or
net asset. And from such net asset or net remainder of
the couple’s remaining properties, the market value at
the time of the marriage will be subtracted and the
resulting totality constitutes the “net profits.” Since
Abe and Amy have no separate properties, and
nothing would be returned to each of them, what will
be divided equally between them is simply the net
profits. However, the trial court forfeited the half-share
of Amy in favor of her children. Thus, if Article 102 is
used in the instant case (which should not be the case),
nothing is left to Amy since both parties entered into
their marriage without bringing with them any
property.
d. Given that Article 129 of the Family Code applies
to the liquidation of the conjugal assets of Abe and
Amy, is the latter entitled to receive any property
from the conjugal partnership?
No. What remains in the conjugal properties of Abe
and Amy (after payment of all debts and obligations)
should be divided equally between them. However,
since Amy is the guilty party, her share from the “net
profits” of the conjugal partnership is forfeited in favor
of the common children pursuant to Article 63(2) of the
Family Code. Nothing will be returned to Amy
because in the conjugal partnership regime, there is no
separate property which may be accounted for in the
guilty party’s favor. (Quiao v. Quiao, G.R. No. 176556,
July 4, 2012)
QUESTION NO. 252
Abe is the owner of a farm which he leased to a
married couple. When the couple failed to pay rent,
91
Abe sued for payment of their rental arrears. The
wife promptly moved to dismiss the complaint on
grounds that her husband is already dead, and that
therefore Abe’s claim must be filed in the
proceedings for the settlement of her husband’s
estate. May Abe sue the wife alone for collection of
a debt which is owed by the conjugal partnership?
No. A creditor cannot sue the surviving spouse of a
deceased person in an ordinary proceeding for the
collection of a sum of money chargeable against the
conjugal partnership. The proper remedy is for the
creditor to file a claim in the settlement of the estate of
the deceased spouse. This is so because upon the death
of one spouse, the powers of administration of the
surviving spouse ceases and are passed to the
administrator appointed by the court having
jurisdiction over the settlement of estate proceedings.
For marriages governed by the rules on conjugal
partnership of gains, an obligation entered into by the
spouses is chargeable against their conjugal
partnership and it is the partnership which is primarily
bound for its repayment. Thus, when the spouses are
sued for the enforcement of an obligation entered into
by them, they are joined in their capacity as
representatives of the conjugal partnership and not as
independent debtors such that the concept of joint or
solidary liability, as between them, does not apply.
(Alipio v. Court of Appeals, 341 SCRA 441 [2000])
QUESTION NO. 253
Can there be an easement over another easement? An
easement over a usufruct? A usufruct over an
easement?
As to the first question: Yes, there can be an easement
over another easement. Article 629 of the Civil Code
provides that the owner of the servient estate must
abstain from anything that will render the use of the
easement more inconvenient to the owner of the
dominant estate. This is a negative easement which
requires the owner of the servient estate not to impair
in any manner whatsoever the use of the easement
(such as a right of way).
As to the second question: No, there cannot be an
easement over a usufruct, but there can be an easement
over a property held in usufruct.
As to the third question: No, there cannot be a usufruct
over an easement, but a usufruct may be established in
a property burdened by an easement.
QUESTION NO. 254
In 1977, Amy donated to her sons (Art, Ben, and Cal)
a parcel of land under the following conditions: a) the
donation shall be irrevocable; b) the land shall
remain in the possession of the donor during her
lifetime; c) the land shall not be sold or mortgaged
during the lifetime of the donor; and d) the donation
shall take effect only upon the donor’s death. Amy’s
sons accepted the donation in the same public
instrument.
Two years later, or in 1979, Amy sold the land to her
eldest son, Art. The sale resulted in the issuance of a
certificate of title in the name of Art.
In 1985, Ben and Cal brought an action to annul the
sale and for reconveyance of the property. Art
defended on the ground of prescription. He argued
that more than four years have passed since the sale
and registration of the property and issuance of his
title. He insisted that an action for reconveyance of
property on the ground of fraud must be filed within
four years from the discovery of the fraud which is
from the date of registration of the sale in 1977; and
that the same prescriptive period also applies to an
action predicated on a trust relationship that is rooted
on fraud or breach of trust.
a. Was the donation to Art, Ben and Cal inter vivos or
mortis causa?
The donation was inter vivos. The express irrevocability
of the donation is the distinctive standard that
identifies the donation as inter vivos. The other
provisions which seemingly make the donation mortis
causa do not go against the irrevocable character of the
92
subject donation. The provisions which state that the
donation will only take effect upon the death of the
donor and the prohibition to alienate, encumber,
dispose or sell the property donated are provisions
which should be harmonized with its irrevocability.
Suffice it to say that these provisions are only necessary
assurances that during the donor’s lifetime, the latter
would still enjoy the right of possession over the
property; but his naked title has been passed on to the
donees; and that upon the donor’s death, the donees
would get all the right to use and possess the same.
Another indication that the donation is inter vivos is the
acceptance of the donation by the donees. An
acceptance is a mark that the donation is inter vivos. On
the other hand, donations mortis causa, being in the
form of a will, are not required to be accepted by the
donees during the donor’s lifetime.
b. Has the action prescribed?
The action has not yet prescribed. When one’s property
is registered in another person’s name without the
former’s consent, an implied trust is created by law in
favor of the true owner. Article 1144 of the Civil Code
provides for a ten-year prescriptive period from the
time the right of action accrues in case of a) a written
contract; b) an obligation created by law; and c) a
judgment. Thus, an action for reconveyance prescribes
in ten years from the issuance of the title. It is only
when fraud has been committed that the action will be
barred after four years.
However, the four-year prescriptive period is not
applicable to the instant case because there is no fraud.
The records do not show that Amy, the donor, and Art,
the donee, ever intended to defraud Ben and Cal with
respect to the sale and ownership of the subject
property. On the other hand, the sale was grounded
upon their honest but erroneous interpretation of the
deed of donation that it is mortis causa, not inter vivos,
and that the donor still had the right to sell or dispose
of the donated property and to revoke the donation.
There being no fraud, the trust relationship between
the donor and the donees, including the buyer Art, the
action for recoveyance prescribes in ten years.
Considering that the certificate of title in the name of
Art covering the subject property was issued only in
1977, the filing of the action in 1985 was well within the
ten-year prescriptive period.
c. Is the sale by Amy to Art a valid act of revocation
of the donation?
The sale to Art cannot be considered as a valid act of
revocation of the donation because a formal complaint
to revoke the donation must be filed pursuant to
Article 764 of the Civil Code which speaks of an action
that has a prescriptive period of four years from the
non-compliance with the condition stated in the deed
of donation. The rule that there can be automatic
revocation without benefit of a court action does not
apply to the case at bar because the subject deed of
donation is devoid of any provision providing for
automatic revocation in the event of non-compliance of
the condition violated. (Austria-Magat v. Court of
Appeals 375 [2002])
QUESTION NO. 255
Abe executes in favor of Amy a document
denominated as “Deed of Donation Inter Vivos”
involving a parcel of land. The deed of donation
contains a provision that it becomes effective only
upon the death of the donor, and that in the event the
donee should die before the donor, the donation shall
be deemed automatically rescinded and of no further
force and effect.
Shortly after Abe’s death, his heirs promptly filed an
action seeking to annul the donation. They contend
that the donation is mortis causa and not inter vivos
and therefore void for failure to comply with the
formalities of wills. Is the donation inter vivos or
mortis causa?
The donation is mortis causa. In a donation mortis causa,
the right of disposition is not transferred to the donee
while the donor is still alive. In determining whether
a donation is one of mortis causa, the following
characteristics must be taken into account: a) it conveys
93
no title or ownership to the transferee before the death
of the transferor, or what amounts to the same thing;
b) the transferor should retain the full or naked
ownership and control of the property while alive; c)
before his death, the transfer should be revocable by
the transferor at will; and d) the transferor should be
void if the transferor should survive the transferee.
In the present case, the nature of the donation as mortis
causa is confirmed by the fact that the donation does
not contain any clear provision that intends to pass
proprietary rights to Amy prior to Abe’s death. The
phrase “to become effective upon the death of the
donor” admits of no other interpretation but that Abe
did not transfer the ownership of the property to Amy
during his lifetime. Considering that the disputed
donation is a donation mortis causa, the same partakes
of the nature of testamentary provisions and as such,
must be executed in accordance with the requisites on
solemnities of wills and testaments under the Civil
Code. (Maglasang v. Heirs of Cabatingan, G. R. No.
131953, June 5, 2002)
QUESTION NO. 256
The National Irrigation Administration (NIA) filed
with the RTC a complaint for expropriation of a
parcel of land for an irrigation project. The committee
formed by the RTC pegged the fair market value of
the land at Php65.00 per square meter. It also added
to its computation the value of soil excavated from
the lot. The RTC adopted the committee’s findings
despite NIA’s objections to the inclusion of the value
of the excavated soil in the computation of the value
of the land. Is the value of the excavated soil to be
included in the computation of just compensation?
No. There is no legal basis to separate the value of the
excavated soil from that of the expropriated properties,
contrary to what the trial court did. In the context of
expropriation proceedings, the soil has no value
separate from that of the expropriated land.
Just compensation ordinarily refers to the value of the
land to compensate for what the owner actually loses.
Such value could only be that which prevailed at the
time of the taking.
This conclusion is drawn from Article 437 of the Civil
Code which provides: “The owner of a parcel of land
is the owner of its surface and of everything under it,
and he can construct thereon any works or make any
plantations and excavations which he may deem
proper, without detriment to servitudes and subject to
special laws and ordinances. He cannot complain of
the reasonable requirements of aerial navigation.”
That NIA will make use of the excavated soil is of no
concern to the landowner who has been paid the fair
market value of his land. The law does not limit the use
of the expropriated land to the surface area only. To
sanction the payment of the excavated soil is to allow
the landowners to recover more than the value of the
land at the time when it was taken, which is the true
measure of the damages, or just compensation.
(Republic v. Rural Bank of Kabacan, Inc., et al., G.R. No.
185124, 15 January 2012)
QUESTION NO. 257
Abe owns a travel agency. In February 2004, under a
deed of assignment, Abe transferred all his business
rights over the travel agency to Rey for Php150,000.
Abe and Rey agreed that Abe will pay the bills for
electricity, telephone, office rentals, and salaries of
employees up to December 2004.
Without Abe’s consent, Rey paid all the utility bills
amounting to Php107,000 after which he tendered to
Abe the amount of Php43,000. Abe refused to accept
the payment on the basis that the amount due is
Php150,000.00 and not just Php43,000. He asserted
that for the tender of payment to be valid, Rey must
tender the full amount of Php150,000 rather than just
Php43,000.
a. Is Rey entitled to claim legal compensation for his
payment of the utility bills?
94
Yes. There is legal compensation when (1) each one of
the debtors is bound principally, and that the debtor is
at the same time a principal creditor of the other; (2)
both debts consist of a sum of money, or if the things
due be consumable, they be of the same kind and also
of the same quality if the latter has been stated; (3) both
debts are due; (4) both debts are liquidated and
demandable; and (5) there be no retention or
controversy over both debts commenced by third
persons and communicated in due time to the debtor.
When all these elements are present, compensation
takes effect by operation of law and extinguishes both
debts to the corresponding amount, even though both
parties are without knowledge of the compensation.
All the elements of legal compensation are present in
this case.
First, in the assignment of business rights, Rey stood
as Abe’s debtor for the consideration amounting to
Php150,000. Rey, on the other hand, became Abe’s
creditor for the amount of Php107,000 through Rey’s
subrogation to the rights of Abe’s creditors against the
latter.
Second, both debts consist of a sum of money, which
are both due, liquidated, and demandable.
Finally, neither party alleged that there was any claim
raised by third persons against the obligation. In effect,
even without the knowledge and consent of Abe or
Rey, their obligation as to the amount of ₱107,000 had
already been extinguished. As a result, Rey owes Abe
the remaining due amount of ₱43,000.
b. Is Rey’s tender of payment of Php43,000 valid?
Yes. To be valid, tender of payment must be absolute
and must cover the amount due. Here, the remaining
amount due in Rey's obligation is P43,000. Because of
the creditor's refusal, without any just cause, to the
valid tender of payment, the debtor is released from his
obligation by the consignation of the thing or sum due.
(Figuera v. Ang, G.R. No. 204264, June 29, 2016)
(Note: The consent or approval of the debtor is
required only if a third person who is not interested in
the fulfilment of the obligation pays such. On the other
hand, no such requirement exists in cases of payment
by a person interested in the fulfilment of the
obligation)
QUESTION NO. 258
In 2008, Bea Robles bore a child out of wedlock with
a married man named Abe Silvela. She was not able
to register the birth of their child -- whom she named
Grace Robles -- because she did not give birth in a
hospital.
To hide her relationship with Abe, Bea stayed in her
home province while Abe lived with his legitimate
family in another province. After a few years, she lost
contact with Abe.
When her child needed a birth certificate for
school admission, Bea finally decided to register the
birth of her child. The Local Civil Registrar approved
the late registration after proof that the National
Statistics Office has no record of the child’s
birth on file.
But upon submission of the copies of the late
registration of the birth of the child to the NSO, Bea
was informed that there was a birth certificate with
the same name of mother and the year of birth of
the child in their office. This birth certificate states
the name “Noelle Robles Silvela.” Abe was the listed
informant in this birth certificate.
Is the birth certificate of an illegitimate child
registered by the father, which was not duly signed
by the mother, valid?
No. It is mandatory that the mother of an illegitimate
child signs the birth certificate of her child in all cases,
irrespective of whether the father recognizes the child
as his or not. The only legally known parent of an
illegitimate child, by the fact of illegitimacy, is the
mother of the child who conclusively carries
95
the blood of the mother. Thus, this provision ensures
that individuals are not falsely named as parents. The
mother must sign and agree to the information entered
in the birth certificate because she has the parental
authority and custody of the illegitimate child.
Because it appears on the face of the birth certificate
that the mother did not sign the document, the local
civil registrar had no authority to register the
subject birth certificate at the instance of the father and
without the mother’s signature. (Barcelote v. Republic,
G.R No. 222095, August 7, 2017)
QUESTION NO. 259
What are some of the prescriptive periods under our
laws?
The following are some of the prescriptive periods
under our laws:
40 days
Redhibitory action based on defects of animals. (Art.
1577, CC)
6 months
Action for reduction of price or breach of sale of real
estate. (Arts. 1543 and 1539, CC)
Action for reduction of price against hidden defects of
thing sold. (Art. 1571, CC)
1 year
Action to impugn child’s legitimacy, if husband
resides in the same place. (Art. 170, FC)
Action for revocation of donation for acts of
ingratitude. (Art. 769, CC)
Action for forcible entry or unlawful detainer. (Art.
1147, CC)
Action for defamation. (Art. 1147, CC)
Action for rescission or for damages if immovable sold
is encumbered with non-apparent burden. (Art. 1560,
CC)
Action for warranty of solvency in assignment of
credits. (Art. 1629, CC)
Action for loss or damage to goods under COGSA
2 years
Action to impugn child’s legitimacy, if husband is in
the Philippines but not residing in the same place (Art.
170, par. 2. FC)
3 years
Action to impugn child’s legitimacy, if husband is
abroad or outside the Philippines (Art.170, FC)
4 years
Action for revocation or reduction of donation based
on supervening birth, reappearance of a child or
adoption. (Art. 763, CC)
Action for revocation of donation due to non-
fulfilment of condition. (Art. 764, CC)
Action for recovery of movable (replevin) if possessor
is in good faith (Art. 1132, CC)
Action upon an injury to plaintiff’s rights (Art. 1146,
CC)
Action upon a quasi-delict (Art. 1146, CC)
Action for rescission of rescissible contracts (Art. 1389,
CC)
Action to annul voidable contracts on the ground of
vitiated consent (Art. 1391, CC)
96
Action for rescission of partition of decedent’s estate
on account of lesion (Art. 1100, CC)
5 years
Action for legal separation (Art. 57, FC)
Action for annulment of marriage, except on the
ground of insanity (Art. 47, FC)
Action to claim legitimacy or illegitimacy if child dies
during minority or in a state of insanity (Art. 173, FC)
Action to impugn legitimacy (Art. 182, FC)
Action for declaration of incapacity of an heir (Art.
1040, CC)
Action for warranty of solvency of debtor if credit is
assigned to a co-heir during partition (Art. 1095, CC)
All other actions whose periods are not fixed by law
(Art. 1149, Civil Code)
6 years
Action upon an oral contract (Art. 1145, CC )
Action upon a quasi-contract (Art. 1146, CC )
8 years
Action for recovery of movable (replevin) if possessor
is in bad faith (Art. 1132, par 2. and Art. 1140, CC)
10 years
Action for recovery of possession of immovables
(accion publiciana) if real right is lost (Arts. 555 and 1134,
CC)
Action for recovery of ownership of immovables
(reivindicatoria) if in good faith (Art. 1134, CC)
Action upon a mortgage contract (Art. 1142, CC)
Action upon a written contract (Art. 1144, CC) Action to demand partition in co-ownership or to
enforce an express trust
Action upon an obligation created by law (Art. 1144,
CC) Action to probate a will

Action upon a judgment to enforce warranty against Action to enforce a moral right (P.D. No. 49)
eviction in partition (Art. 1094, CC)
Action to recover possession of registered land under
30 years the Land Registration Act by registered owner or
hereditary successors.
Action for recovery of ownership of immovables
(reivindicatoria), if in bad faith (Art. 1141, CC)
GOOD LUCK!
Lifetime

Action for annulment of marriage based on insanity

(Art. 47, par. 2, FC)

Action for declaration of nullity of marriage (Art. 39,

FC)

Action to claim legitimacy (lifetime of child) (Art. 173,

FC)

Action to claim illegitimacy (lifetime of child; If by

other means, only during lifetime of parent) (Art. 175,
par. 2, FC)

Action for legal support

Action for reduction of donation due to failure of

donor to reserve property for his support and support
of others (during lifetime of donor or relatives) (Art.
750, CC)

No prescription

Action to declare a contract as inexistent or void.

Action to recover movable possessed thru a crime (no

prescription in favor of offender)

Action to demand a right of way under Article 649,

Civil Code

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