Civil Law 2017 - Preweek.pdf

University of Santo Tomas Faculty of Civil Law

CIVIL LAW Pre-week Notes 2017 ACADEMICS COMMITTEE SECRETARY GENERAL: CAMILLE ANGELICA B. GONZALES EXECUTIVE COMMITTEE: EMNIE VALERIE B. DURAN, IRVIN L. PALANCA, MARIELLA A. MARASIGAN, LARA NICOLE T. GONZALES

CIVIL LAW COMMITTEE COMMITTEE HEAD: KATHERINE ROSE F. KAPUNAN SUBJECT HEADS: ANNA FRANCHESCA D. DIZON, SHEEN JOSHUA B. BARRIETA, MARY LOUISE P. LEONARDO, JANE MARIE BIANCA B. CARILLO, PRINCESS ABBIE GREN V. VIRTUSIO, MA. DENISE JOLYN T. EISMA, JESSER CAPARAS, ALLEN MERCADO, NATASHA SARAH I. MURAD MEMBERS: RHOSE AZCELLE L. MAGAOAY, ROLANDO S. BASCON, JR., JOHN AL-NAIR SIMONE L. JUMAMIL, KIM ANGELI P. SOBREPENA, CHRISTINE KAREN L. BUMANLAG, ALYSSA ABIGAEL C. GOMEZ, JONATHAN SANTOS, ARIANNA LAINE T. SARMIENTO, JOAN ROSS C. EVANGELISTA, ANNE LIZETH R. VALLARIT, KARIZZA KAMILLE M. CRUZ, JESSAMYN M. DIMALIBOT, BION HENRIK A. PRIOLO ATTY. KING JAMES CARLO C. HIZON ATTY. KENNETH JAMES CARLO C. HIZON ADVISERS

UST LAW PRE-WEEK NOTES 2017 b.

PART I – GENERAL PRINCIPLES 3.

EFFECT AND APPLICATION OF LAWS

If date is specified – Upon the lapse of the said period following its complete publication.

XPNS: a. Succession as to order of succession, amount of successional rights and intrinsic validity of the testamentary provisions - governed by national law (in Philippines) not lex situs b. Contracts involving real property but do not deal with title or real rights over the property, the issue being the contractual rights and liabilities of parties - governed by the proper law of the contract (lex loci voluntatis or lex loci intentionis) c. In contracts where real property is given as security by way of mortgage to secure a principle contract (i.e. loan) - loan is governed by the proper law of the contract while the mortgage is governed by the lex situs d. While the validity of the transfer of land must be determined by the lex situs, the validity of the contract to transfer is determined by the proper law of the contract

If no date is specified – 15-day period, which may either be on the 15th or on the 16th day depending on the language used by the Congress in fixing the effectivity date of the statute (Rabuya, 2009). If the law provides for immediate effectivity or upon approval – It is effective immediately after its complete publication and not after signing by the President. If the law is voluminious – Reckoning shall begin from the release of the last of the series. Publication is indispensable in every case, but the legislature may in ‘its discretion provide that the usual fifteen-day period shall be shortened or extended (Umali v. Estanislao, G.R. No. 104037, May 29, 1992; Tañada v. Tuvera, G.R. No. L-63915, December 29, 1986).

4.

Administrative rules and regulations must also be published if their purpose is to enforce or implement existing laws pursuant also to a valid delegation. Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published (National Electrification Administration v. Gonzaga, G.R. No. 158761, December 4, 2007).

XPNs: Philippine law shall apply in the following cases even though performed abroad: a. b.

Application of laws Penal laws

Abuse of right (2006) When a right is exercised in a manner which does not conform to the norms enshrined in Art. 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible.

XPNs: Philippine penal laws will not apply by virtue of:

2.

Acts are executed before the diplomatic or consular officials of the Philippines. Prohibitory laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs (Art. 17). HUMAN RELATIONS

GR: Territoriality rule - Penal laws and laws of public security and safety shall be obligatory upon all who live or sojourn in the Philippine territory (Art. 14).

d.

Law governing extrinsic validity of contracts, wills and public instruments

GR: Lex loci celebrationis (Art. 17) – forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country in which they are executed.

Conflict of laws

a. b. c.

Real statutes – Laws on Property

GR: Lex Rei Sitae – Real property as well as personal property is subject to the law of the country where it is situated (Art. 16). (2001, 2002, 2004, 2007, 2009)

Effectivity of a law will depend on whether or not it has provided a specific date for its effectivity:

1.

Domiciliary rule applies to stateless persons

Treaty stipulations Principles of Public International Law Laws of Preferential Application (e.g. Ambassadors, Ministers) International agencies enjoying diplomatic immunity

Elements 1. 2. 3. 4.

Status laws

GR: Nationality rule (Lex Nationali) - Laws relating to: a. Family rights and duties b. Status and condition c. Legal capacity of persons are binding upon citizens of the Philippines even though living abroad (Art. 15) (1999, 2003, 2004, 2005, 2009) XPNs: a. In case of divorce obtained validly by an alien pursuant to the rules that governs his country, the Filipino spouse shall be considered also as divorced (Van Dorn v. Romillo, Jr., G.R. No. L-68470, October 8, 1985). The divorce decree must capacitate foreigner to remarry, otherwise, the Filipino cannot remarry.

There is a legal right or duty; Such duty is exercised in bad faith; It is for the sole intent of prejudicing or injuring another; The absence of good faith is essential to abuse of right (Elizabeth Diaz v. Georgina Encanto, G.R. No. 171303, January 20, 2016).

Principle of Damnum Absque Injuria One who merely exercises one’s rights does no actionable injury and cannot be held liable for damages. This is premised on the valid exercise of a right (Amonoy v. Guitierrez, G.R. No. 140420, February 15, 2001). The mere fact that the respondents suffered losses does not give rise to a right to recover damages. To warrant the recovery of damages, there must be both a right of action for a legal wrong inflicted by the plaintiff, and damage resulting to the respondent therefrom (The Orchard Golf & Country Club, Inc. v. Ernesto Yu, G.R. No. 191033, January 11, 2016).

Once it is proven however that a party was no longer a Filipino citizen when he obtained the divorce from his Filipino spouse, the ruling in Van Dorn would also apply. Thus, the validity of the divorce will be determined based on the law of the country of which he is a citizen at the time the valid divorce is obtained (Rabuya, 2009).

Article 19, 20 and 21 in the enforcement and sanctions of abuse of right

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CIVIL LAW While Art. 19 lays down the rule of conduct for the government of human relations, it does not provide a remedy. Generally, an action for damages under either Art. 20 or Art. 21 would be proper. Art. 21 deals with acts contra bonus mores or contrary to good morals and presupposes loss or injury, material or otherwise, which one may suffer as a result of such violation. Under Arts. 19 and 21, the act must be intentional (Rabuya, 2006).

PART II– PERSONS AND FAMILY RELATIONS PERSONS AND PERSONALITY (CIVIL CODE) Birth Birth determines personality, but the conceived child shall be considered born for all purposes that are favorable to it, provided, it is born later with the conditions specified in Art. 41 (Art. 40). (1999, 2003, 2008)

Furthermore, Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction. Article 21 on the other hand, speaks of act which is legal but is contrary to morals, good custom, public order or public policy and is done with intent to injure.

“Born later in accordance with law” (1995, 1999, 2008) A foetus with an intra-uterine life of: 1. Less than 7 months – Must survive for at least 24 hours after its complete delivery from the maternal womb. 2. At least 7 months – If born alive, it shall be considered born even if it dies within 24 hours after complete delivery.

Sanction for abuse of right under Article 20 of the NCC Generally, laws provide for their own sanctions and methods of enforcement thereof. Article 20 applies only in cases where the law does not provide for its own sanctions. Hence, every person who, contrary to law, wilfully or negligently causes damage to another shall indemnify the latter for the same (Art. 20). Said article provides for a general sanction – indemnification for damages (Pineda, 2009). (1996, 2006, 2009)

Death Rules to apply in case there is doubt as to who died first It depends on whether the parties are called to succeed each other. 1. If successional rights are involved – Art. 43 of the NCC: Survivorship Rule, and Rule 131, Sec. 3(kk): Presumption of simultaneous deaths between persons called to succeed each other, apply. 2. If no successional rights are involved – Rule 131, Sec. 3 (jj) of the Rules of Court applies. (Presumption of survivorship)

In view of the general sanction provided for under Art. 20, a person however does not have an absolute right to be indemnified, it is essential that some right of his be impaired. Without such, he is not entitled to indemnification (Pineda, 2009). Sanctions for abuse of right under Article 21 of the NCC

MARRIAGE (FAMILY CODE)

Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage (Art. 21). It fills countless gaps in the statutes, which leave so many victims of moral wrongs helpless, even though they suffered material and moral damages (Tolentino, 2013).

Essential Requisites of Marriage (1996, 2009) 1. 2.

Elements of an action under Art. 21, NCC (Contra Bonus Mores) (1996, 1998, 2006, 2009) 1. 2. 3.

Legal capacity of the contracting parties who must be a male and a female; Consent freely given in the presence of the solemnizing officer (Art. 2).

Legal capacity of the parties to marry (ASL)

There is an act which is legal; Such act is contrary to morals, good customs, public order or policy; It is done with intent to injure.

1. 2. 3.

Age – at least 18 years of age Sex – between male and female Lack of legal impediment to marry (Art. 37 & 38)

Formal Requisites of Marriage (CAL) (1996, 2009)

Accion In Rem Verso

1.

It is the remedy for unjust enrichment. It is an action for recovery of what has been paid or delivered without just cause or legal ground. If a person acquires or comes into possession of something at the expense of another without just or legal ground through an act or of performance by another or any other means has the obligation to return the same (NCC, Art. 22).

Marriage Ceremony That which takes place with the: a. Personal appearance of the contracting parties before the solemnizing officer; NOTE: There is no marriage ceremony if what transpired was a mere private act of signing a marriage contract by the contracting parties, without the presence of the solemnizing officer (Morigo v. People, G.R. No. 145226, February 6, 2004)

Accion in rem verso can only be availed of if there is no other remedy to enforce it based on contract, quasi-contract, crime or quasi-delict.

b.

Requisites (E-L-W-A) 1. 2. 3. 4.

c.

The defendant has been Enriched; The plaintiff has suffered a Loss; The enrichment of the defendant is Without just or legal ground; and The plaintiff has no other Action based on contract, quasicontract, crime or quasi-delict.

2.

Their personal declaration that they shall take each other as husband and wife; and In the presence of not less than 2 witnesses of legal age.

Authority of the solemnizing officer Persons authorized to solemnize marriage: 1.

Accion in rem verso v. Solutio Debiti

a.

In accion in rem verso, it is not necessary that there should have been mistake in the payment unlike in solution indebiti where mistake is an essential element (Rabuya, 2006).

Under ordinary circumstances: Incumbent judiciary member – Provided, it is solemnized in the place where the court exercises jurisdiction. NOTE: Where a judge solemnized a marriage outside his court’s jurisdiction, this is a mere irregularity in the formal requisite, which

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UST LAW PRE-WEEK NOTES 2017 while it may not affect the validity of the marriage, may subject the officiating official to administrative liability (Rabuya, 2009). b.

c. d.

b.

3. 4.

Priest, rabbi, imam or minister of any church/religious sect duly authorized – Provided at least one of the parties belongs to such church or religious sect. Consul general, consul or vice-consul – Provided both parties are Filipinos and marriage takes place abroad in the country where the consul holds office. Mayors (Arts. 444 and 445 of LGC) – including “Acting Mayor”

1. 2. 3. 4. 5.

Marriages in articulo mortis: a. Ship captain or airplane chief – provided the marriage is performed: i. During voyage, even during stopovers ii. Between passengers or crew members (Art.31)

3.

Marriages among Muslims or members of ethnic cultural communities – Provided they are solemnized in accordance with their customs, rites or practices (Art. 33). Marriages in Articulo mortis Marriages in Remote places (Art. 28). Marriages between parties Cohabiting for at least 5 years (Art. 34) Marriages solemnized Outside the Philippines where no marriage license is required by the country where it was solemnized

Requisites for the 5-year cohabitation as an exception to the marriage license requirement (2002, 2008) The requisites are: (5D PAS) 1. Living together as husband and wife at least 5 years before the marriage.

NOTE: Such authority may be exercised not only while the ship is at sea or the plane is in flight but also during stop-overs at ports of call (Rabuya, 2009). b.

Defect in essential requisites - Voidable Irregularity in formal requisites - Valid, but the party responsible for such irregularity shall be civilly, criminally or administratively liable. Marriages exempt from license requirement

NOTE: From the time of the effectivity of the Family Code on August 3, 1988 up to the time of the effectivity of the Local Government Code on January 1, 1992, mayors do not have the authority to solemnize marriage. 2.

Either or both parties believed in good faith that the solemnizing officer had the proper authority (Art. 35 [2]).

The 5 year period must be characterized by: a. Exclusivity – the partners must live together exclusively, with no other partners, during the whole 5-year period. b. Continuity – such cohabitation was unbroken.

Military commander of a unit who is a commissioned officer – provided the marriage is performed: i. In the absence of a chaplain; ii. Within the zone of military operation; iii. Between members of the armed forces or civilians

NOTE: The period is counted from the date of celebration of marriage. It should be the years immediately before the day of the marriage. 2.

Valid marriage License (Art. 3)

3.

No legal impediment to marry each other During the period of cohabitation. Fact of absence of legal impediment must be Present at the time of the marriage. Parties must execute an Affidavit that they are living together as husband and wife for 5 years and that they do not have any impediment to marry Solemnizing officer must execute a Sworn statement that he had ascertained the qualifications of the parties and found no legal impediment to their marriage (Manzano v. Sanches, .AM. No. MTJ-00-1329, March 8, 2001).

The license shall be valid in any part of the Philippines for a period of 120 days from the date of issue, and shall be deemed automatically cancelled at the expiration of said period if the contracting parties have not made use of it (Art. 20). If the parties contracted the marriage after the lapse of 120 days from the issuance of the marriage license, such marriage shall be considered void for lack of marriage license.

4.

Other requirements needed for the validity of such marriage depending upon the age of the contracting party:

Rules governing the validity of marriage (2002, 2004, 2006, 2009, 2010 BAR)

AGE 18 to 21 years old 22 to 25 years old

5.

ADDITIONAL REQUIREMENTS Parental consent and Marriage counseling Parental advice and Marriage counseling

2.

As to its intrinsic validity – Personal law

If the person involved is a stateless person, domiciliary rule applies, otherwise, lex nationalii applies.

Effect of absence of requisities in the status of marriage (1995, 1996, 1999, 2008)

2.

As to its extrinsic validity – Lex loci celebrationis NOTE: Locus regit actum (the act is governed by the law of the place where it is done) - is adhered to here in the Philippines as regards the extrinsic validity of marriage.

NOTE: Personal law may either be the national law or the law of the place where the person is domiciled.

Absence of the additional requirement of parental advice does not make the marriage void or voidable. It only affects the release of the marriage license to be postponed until (3) three months from the complete publication of the application.

1.

1.

The 1st paragraph of Article 26 of the Family Code (FC)on the validity of foreign marriages applies, however, only to Filipinos. Foreign marriages of foreigners or of a Filipino and a foreigner are governed by the Rules on Conflict of Laws (Sempio-Diy, 1995).

Absence of any of the essential requisites - Void ab initio (Art. 4) Absence of any of the formal requisites – Void ab initio (Art. 4)

Marriages between Filipinos solemnized abroad accordance with the law in force in said country

XPNs: Valid even in the absence of formal requisite: a. Marriages exempt from license requirement;

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CIVIL LAW 5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage. 6) The essential marital obligations must be those embraced by Articles 68 up to 71 of the Family Code as regards the husband and wife as well as Articles 220, 221, and 225 of the same Code in regard to parents and their children. 7) Interpretations given by the National Appellate Matrimonial Tribunal of the Catholic Church in the Philippines, while not controlling or decisive, should be given great respect by our courts.

GR: Marriages between Filipinos solemnized outside the Philippines in accordance with the law of the foreign country where it is celebrated, if valid there, shall be valid here as such. XPNs: It shall be void, even if it is valid in the foreign country where the marriage was celebrated, if any of the following circumstances are present: 1. 2. 3. 4. 5. 6. 7.

Lack of legal capacity even with parental consent (e.g. party is below 18); Incestuous; Contracted through Mistake of one party as to the identity of the other; Contracted following the annulment or declaration of nullity of a previous marriage but Before partition, etc.; Bigamous or polygamous except as provided in Art. 41 FC on terminable bigamous marriages; Void due to Psychological incapacity; Void for reasons of Public policy.

NOTE: The new Supreme Court Rule on Declaration of absolute nullity of Void Marriages and annulment of Voidable Marriages (A.M. No. 02-11-10-SC, effective March 15, 2003 provide that the appearance of the prosecuting attorney or fiscal and the Solicitor-General is no longer mandatory. Incestous Marriages

Requirements to prove a foreign marriage

1.

1.

2.

2.

The existence of the pertinent provision of the foreign marriage law. The celebration or performance of the marriage in accordance of said law.

Void marriages by reason of public policy 1.

Requirements for the application of par. 2 of Art. 26 of the Family Code 1. 2. 3.

Between ascendants and descendants of any degree, legitimate or illegitimate Between brothers and sisters, whether of the full or half blood, legitimate or illegitimate

2. 3. 4. 5.

It must be a case of mixed marriage (one party is Filipino and the other is an alien); The divorce must be obtained by the alien spouse and not by the Filipino spouse; and The divorce obtained by the alien spouse must capacitate him or her to remarry (Rabuya, 2009).

6. 7. 8. 9.

Void Marriages Q: What are void marriages?

Collateral blood relatives (legitimate or Illegitimate) up to the 4th civil degree; Step-parents & step-children; Parents-in-law & children-in-law; Adopting parent & the adopted child; Surviving spouse of the adopting parent & the adopted child; Surviving spouse of the adopted child & the adopter; Adopted child & legitimate child of the adopter; Adopted children of the same adopter; Parties where one, with the intention to marry the other, kills the latter’s spouse, or his/her spouse (Art. 38).

The prohibition under Nos. 2 and 3 applies even after the termination of the marriage which is the very source of the relationship by affinity, regardless of the cause of such termination.

A: The following are void marriages: Article 35 (Void from the Beginning) Article 36 (Psychological Incapacity) Article 37 (Incestuous) Article 38 (Against Public Policy) Article 41 (Bigamous Marriages, Absentee Spouse and Presumptive Death) Article 44 (Present spouse who contracts marriage in bad faith)

Subsequent marriage If a person contracts a subsequent marriage during the subsistence of a prior marriage, the subsequent marriage is: (1992, 2005, 2008) GR: Void for being bigamous or polygamous, even if celebrated abroad and valid there as such.

Q: What are the requisites for psychological incapacity (1996, 1997, 2002, 2006)

XPN: Valid if it is a terminable subsequent marriage.

A: In the case of Republic v. Molina (1997) the following rules in declaring a marriage void due to psychological incapacity: 1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. 2) The root cause of the psychological incapacity must be: (a) Medically or clinically identified, (b) Alleged in the complaint, (c) Sufficiently proven by the experts, (d) Clearly explained in the decision.

Elements: a. Prior spouse has been absent for a period of 4 years, or in case there is danger of death, 2 years. b. There is well-founded belief that the absent spouse is dead c. There is judicial declaration of presumptive death of the absentee spouse Effects of Declaration of Nullity

NOTE: A.M. No. 02-11-10-SC, effective March 15, 2003 and Barcelona vs. CA (2003) provide that expert opinion is not a condition sine qua non for proof of psychological incapacity. The root cause may be proven by the totality of evidence in actual trial. 3) The incapacity must be proven to be existing at “the time of the celebration” of the marriage. 4) Such incapacity must also be shown to be medically or clinically permanent or incurable.

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1.

Status of the Children (1990, 2010) GR: Illegitimate XPN: Legitimate if: i. If the marriage is void on the ground of psychological incapacity of either or both parties; or ii. If the marriage is void due to the non-compliance with the requirements set forth under Article 52 of the Family Code.

2.

Property Relations GR: Either Article 147 or 148 (Co-Ownership) will apply XPN: If the subsequent marriage is void due to non-

UST LAW PRE-WEEK NOTES 2017 compliance with Article 40, the property relations of the void subsequent marriage will either be absolute community or conjugal partnership of gains.

admits paternity, will only have visitation rights. XPN: If the marriage is declared void by the reason of psychological incapacity of either or both of the parties, the parental authority and the custody will be exercised by the parent designated by the court.

Q: Atty. Luna and his wife Eugenia agreed to live separately and to dissolve their conjugal property. On January 2, 1976, Atty. Luna obtained a divorce decree of his marriage with Eugenia from the Dominican Republic. On the same day, he married Soledad. Atty. Luna later on died and left a 25% share in a condominium, law books and other pieces of furniture from the law firm he organized with other lawyers shortly after his second marriage. All the said properties were taken over by his son from his first marriage, Gregorio. Soledad, the second wife, then filed a complaint against the heirs of Atty. Luna. According to her, the properties were acquired by Atty. Luna and her during their marriage, and because they had no children, 3/4 of the property became hers, 1/2 being her share in the net estate, and the other half bequeathed to her in a last will and testament of Atty. Luna. Is Soledad entitled to the properties left by Atty. Luna?

Effects of Decree of Annulment 1. 2. 3.

4.

A: NO. Atty. Luna’s marriage with Soledad was bigamous, and void from the very beginning, hence, their property relations is governed by the rules on co-ownership. In such a situation, whoever alleges co-ownership carried the burden of proof to confirm such fact. To establish co-ownership, therefore, it became imperative for the petitioner to offer proof of her actual contributions in the acquisition of property. Her mere allegation of co-ownership, without sufficient and competent evidence, would warrant no relief in her favor. SOLEDAD was not able to prove by preponderance of evidence that her own independent funds were used to buy the law office condominium and the law books subject matter in contention in this case. (Soledad L. Lavadia v. Heirs of Juan Luces, G.R. No. 171914, July 23, 2014) 3.

4.

5.

6.

5. 6.

Termination of the marital bond, as if it had never been entered into, but the effects thereof are not totally wiped out. Children conceived or born before the judgment of annulment has become final and executory are considered legitimate. Absolute community property regime or the conjugal partnership property regime is terminated of dissolved and the same shall be liquidated in accordance with the provisions of Arts. 102 and 129. The innocent spouse may revoke the designation of the other spouse who acted in bad faith as beneficiary in the insurance policy whether or not the designation is revocable. The spouse who contracted the marriage in bad faith shall be disqualified to inherit from the innocent spouse by testate and intestate succession Donation propter nuptias GR: It shall remain valid XPN: If the donee spouse acted in bad faith, the donor may revoke the donation.

Remarriage after declaration of nullity or annulment A person must comply with the requirements of Art. 52 before he can remarry, viz, the recording and registration of: 1. Judgement of Annulment 2. Partition 3. Distribution of properties; and 4. Delivery of presumptive legitime

Donations Propter Nuptias GR: Donations propter nuptias are revocable at the instance of the donor XPN: i. If the donation propter nuptias is embodied in a marriage settlement, the donation is void under Article 86 par. 1; ii. If the subsequent marriage is judicially declared void by reason of Article 40, the donation remains valid. XPN to the XPN: If the donee spouse contracted the marriage in bad faith, all donations are revoked by operation by law. iii. When both parties to a subsequent marriage contracted in bad faith under Article 44, all donations propter nuptias are revoked by operation by law.

Voidable Marriage A voidable marriage is considered valid and produces all its civil effects until it is set aside by final judgment of a competent court in an action for annulment (Rabuya, 2006). Simply, a voidable marriage is valid until it is annulled (Paras, 2016). Q: Under what conditions, respectively, may drug addiction be a ground, if at all, for the declaration of nullity of marriage, annulment of marriage, and legal separation? (1997 BAR)

Designation as Beneficiary in Insurance Policy If the subsequent marriage is judicially declared void by reason of Article 40, the innocent spouse may revoke such designation if the beneficiary spouse acted in bad faith, even if such designation be stipulated as irrevocable.

A:

Declaration of Nullity of Marriage

Right to Inherit a. Intestate Succession: The parties cannot inherit from each other by way of intestate succession since they are no longer considered as spouses b. Testate Succession: GR: Any testamentary provision by one in favour of the other shall remain valid. XPN: 1. If the subsequent marriage is rendered void by noncompliance with Article 40 of the Family Code, the spouse who contracted the subsequent marriage in bad faith is disqualified to inherit from the innocent spouse. 2. If the marriage is void by reason of the bad faith of both parties under Article 41 of the Family Code, all testamentary dispositions made by one in favour of the other are revoked by operation of law. Parental Authority and Custody of Children GR: Since the children are considered as illegitimate, the parental authority and the custody of the children will be exercised by their mother. The illegitimate father even if he

Annulment of Marriage

Legal Separation

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a. The drug addiction must amount to psychological incapacity to comply with the essential obligations of marriage; b. It must be antecedent (existing at the time of marriage), grave and incurable (.) a. The drug addiction must be concealed; b. It must exist at the time of marriage; c. There should be no cohabitation with full knowledge of the drug addiction; d. The case is filed within five (5) years from discovery. a. There should be no condonation or consent to the drug addiction;

CIVIL LAW b. The action must be filed within five (5) years from the occurrence of the cause. c. Drug addiction arises during the marriage and not at the time of marriage.

The fact of being afflicted

The act of concealing because it constitutes fraud

Concealment Not necessarily

Vitiated consent as a ground for annulment of marriage

Nature of the Disease

There is vitiation of consent when:

Must be serious and incurable

GR: Consent of either party was obtained by force, intimidation or undue influence. XPN: However, if the same having disappeared or ceased, such party thereafter freely cohabited with the other as husband and wife.

Grounds (1997, 2002, 2003, 2006, 2007) 1. Repeated physical violence or grossly abusive conduct against petitioner, common child, child of petitioner; 2. Attempt to corrupt or induce petitioner, common child, child of petitioner to engage in prostitution, or connivance in such corruption or inducement; 3. Attempt by respondent against life of petitioner; 4. Final judgment sentencing respondent to imprisonment of more than 6 years, even if pardoned; 5. Drug addiction or habitual alcoholism of respondent which must exist after celebration of marriage; 6. Physical violence or moral pressure to compel petitioner to change religious or political affiliation; 7. Bigamous marriage subsequently contracted by respondent in the Philippines or abroad 8. Sexual infidelity or perversion; 9. Lesbianism or homosexuality of respondent which must exist after celebration of marriage; 10. Abandonment of petitioner by respondent without justifiable cause for more than 1 year.

Impotence or physical incapacity Impotence (impotentia copulandi) refers to lack of power of copulation and not to mere sterility (impotentia genrandi) which refers to ability to procreate. The test is not the capacity to reproduce, but the capacity to copulate (Paras, 2008). Although impotency carries with it sterility, a sterile person is not necessarily impotent (Paras, 2016). Requisites for impotence to be a ground for annulment of marriage Exists at the time of the Celebration of marriage; Permanent (does not have to be absolute); Incurable; Unknown to the other spouse; and, The other spouse must not also be Impotent.

Abandonment as a ground for legal separation should be done without justifiable cause for more than one year. It shall not apply in a case where the spouse left the conjugal dwelling due to the abusive conduct of her husband. Such act does not constitute the abandonment contemplated in the said provision. (Ong Eng Kiam v. CA, G.R. No. 153206, October 23, 2006).

Presumption of potency of one spouse GR: Presumption is in favor of potency. XPN: Doctrine of triennial cohabitation. Doctrine Triennial cohabitation

Condonation

If after 3 years of living together with her husband, the wife remained a virgin, the husband is presumed to be impotent (Rabuya, 2009). The husband will have to overcome this presumption.

It is the forgiveness, express or implied, after the commission of the offense or act complained of and not before. There I implied condonation when the offended spouse having full knowledge and awareness of the offense, deliberately and wilfully cohabited or had sexual intercourse with the offender. (Pineda, 2011, pp. 167)

Relative impotency may now be invoked as a ground for annulment. The Committee has decided to include relative impotency of one party because there are cases where a person is impotent with respect to his spouse but not with other men or women (Sempio Diy, 1995).

Prescriptive Period for Legal Separation An action for legal separation shall be filed within five (5) years from the time of the occurrence of the cause. (Art. 57, Family Code)

Requisites of affliction of a SEXUALLY TRANSMITTED DISEASE (STD) as a ground for annulment 1. 2.

3. 4.

Does not have to be serious and incurable

LEGAL SEPARATION

A threat to enforce one's claim through competent authority however, if the claim is just or legal, does not vitiate consent.

1. 2. 3. 4. 5.

Necessary

The point of reckoning is simply the date of the occurrence of the cause. If five (5) years had already lapsed from the occurrence of the cause, the petition for legal separation shall be denied. It must be stressed however that in certain acts like adultery, each adulterous act is a separate cause for legal separation. Prescription will be based on the last act. (Pineda, 2011, p.172)

One of the parties is afflicted with STD; STD must be: a. Existing at the time the marriage is celebrated; b. Serious; c. Apparently Incurable; The other spouse is not aware of the other’s affliction; and, The injured party must be free from STD.

Filing of petition for legal separation

Art. 45 v. 46 of the FC on STD as ground for annulment ARTICLE 45

ARTICLE 46

Who may file When to file

Affliction

Concealment

Where to file

Ground for Annulment

6

Husband or wife Within 5 years from the time of the occurrence of the cause Family Court of the province or city where the petitioner or the respondent has been residing for at least 6 months prior to the date of filing or in case of a non-resident, where he may be found in the Philippines, at the election of the petitioner

UST LAW PRE-WEEK NOTES 2017 owned by the spouses at the time of marriage become community property

property before the marriage and only the fruits and income of such properties become part of the conjugal properties during the marriage (1995, 1998, 2004, 2005, 2008) Effect of Separation In Fact The separation in fact shall not affect the regime of ACP/CPG, but: 1. The spouse who leaves the conjugal home or refuses to live therein, without just cause, shall not have the right to be supported; 2. When consent of one spouse to any transaction of the other is required by law, judicial authorization shall be obtained in a summary proceeding. 3. In case of insufficiency of community or conjugal partnership property, separate property of both spouses shall be solidarily liable for the support of the family. Spouse present shall, upon proper petition in a summary proceeding, be given judicial authority to administer or encumber any specific separate property of the other spouse and use the fruits or proceeds thereof to satisfy the latter’s share (Arts. 100 & 127, FC). Effect of Dissolution Upon Upon dissolution dissolution of and the liquidation of partnership, the the separate community properties of property, the spouses are what is returned and divided only the net equally profits of the between the partnership are spouses or divided equally their heirs is between the the net spouses of their remainder of heirs. the properties of the ACP. BASIS ART. 147 ART. 148 (1997, 2000, (1992, 1998, 2000, 2006, 2009, 2006, 2009) 2010) Applicability 1. Parties With legal impediment without caused by: legal 1. Adulterous impediment relationships to marry; 2. Bigamous/polygamo 2. Void us marriages marriage on the ground

RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE Rights and obligations of the spouses (2010) 1.

2. 3. 4. 5. 6.

Essential marital obligations (LOR) (Art. 68): a. Live together, which includes consortium (cohabitation) and copulation (sexual intercourse) b. Observe mutual love, respect, fidelity c. Render mutual help and support Fix the family domicile (Art. 69) Jointly support the family (Art. 70) Manage the household (Art. 71) Not to neglect duties, or commit acts which tend to bring danger, dishonor, or injury to family (Art. 72) Either spouse may practice any legitimate profession/business, even without the consent of the other. PROPERTY RELATIONS OF THE SPOUSES

1. 2. 3. 4.

Absolute Community of Property (ACP) Conjugal Partnership of Gains (CPG) Absolute Separation of Property (ASOP) Any other regime within limits provided by the FC

Commencement of Property Regime A property regime commences at the precise moment of the celebration of the marriage (i.e. actual time the marriage is celebrated on a certain date). Any stipulation, express or implied, for the commencement of the community regime at any other time shall be void (Art. 88). Property regime governing the property relations of spouses in the absence of marriage settlement or when regime agreed upon is void (1992, 1995, 2005) GR: Absolute Community Property (Art. 75) XPNs: 1. For marriages contracted prior to the effectivity of the FC on August 3, 1988, conjugal partnership of gains shall govern the property relations because Art. 119 of the NCC will apply. The provisions of the FC shall have no retroactive effect because it shall impair vested rights. 2. Subsequent marriage contracted within one year from the death of the deceased spouse without liquidation of the community property or conjugal partnership of gains, either judicially or extrajudicially, as required under Arts. 103 and 130 of the FC. In such case, a mandatory regime of complete separation of property shall govern the subsequent marriage (Rabuya, 2009). ACP When spouses: 1. Adopt it in a marriage settlemen t; 2. Do not choose any economic system; or 3. Adopted a different property regime and the same is void.

All the properties

CPG ASOP When it applies 1. When the 1. When future spouses future adopt it in a marriage spouses settlement; adopt it in a 2. ACP or CPG is marriage dissolved; settlement; 3. Prior marriage is 2. If the dissolved due to death marriage is of one spouse and celebrated surviving spouse under the failed to comply with New Civil the requirements Code and under Art. 103 they have not (judicial settlement adopt any proceeding of the economic estate of deceased system. spouse); 4. By judicial order. Judicial separation of property may either be voluntary or for sufficient cause. Composition Each spouse retains his/her

7

CIVIL LAW of psychologic al incapacity. As to requisites

Salaries wages

&

Property exclusively acquired

Property acquired by both through their work or industry Presumption

1. The man and the woman must be capacitated to marry each other; 2. live exclusively with each other as husband and wife; and 3. their union is without the benefit of marriage or their marriage is void (MercadoFehr v. Fehr, 414 SCRA 288, 2003; Salas, Jr. v. Aguila, G.R. No. 202370, 2013) Owned in equal shares

Belongs to such party upon proof of acquisition through exclusive funds Governed by rules of coownership Property acquired while living together presumed obtained by their joint efforts, work or industry and owned by them in equal shares. If one party did not participate in acquisition: presumed to have contributed through care and maintenance of family and household (Buenaventura v. Buenaventura, G.R. No.

3. Incestuous void marriages under Art. 37 4. Void marriages by reason of public policy (Art. 38) 1. The man and the woman must be incapacitated to marry each other or they do not live exclusively with each other as husband and wife; and 2. Their union is without the benefit of marriage or their marriage is void (Art. 148).

Forfeiture

Separately owned by the parties. If any is married, his/her salary pertains to the ACP/CPG of the legitimate marriage. Belongs to such party

Proof of actual contribution

127358, March 31, 2005) When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the coownership shall be forfeited in favor of: 1. their common children 2. in case of default of or waiver by any or all of the common children or their descendants , each vacant share shall belong to the respective surviving descendants 3. In the absence of descendants , such share shall belong to the innocent party. Not necessary

If one of the parties is validly married to another, his/her share in the co-ownership shall accrue to the ACP or CPG existing in the marriage. If the party who acted in BF is not validly married to another or if both parties are in BF, such share be forfeited in manner provided in the last par. of Art. 147

Necessary

THE FAMILY Family relations include: 1. Between husband and wife 2. Between parents and children 3. Among other ascendants and descendants 4. Among brothers and sisters, whether of the full or half blood (Art. 150)

Owned in common in proportion to their respective contributions

Rules governing family relations

No presumption of joint acquisition.

Family relations are governed by law. No custom, practice or agreement destructive of the family shall be recognized or given effect (FC, Art. 149).

Actual joint contribution of money, property or industry shall be owned by them in common proportion.

NOTE: Even if not all forms of extra-marital relations are punishable under penal law, the sanctity of marriage is constitutionally recognized and likewise affirmed by our statutes as a special contract of permanent union. Accordingly, the Court has had little qualms with penalizing judicial employees for their dalliances with married persons or for their own betrayals of the marital vow of fidelity (Concerned Employee v. Mayor, A.M. No. P-02-1564, November 23, 2004).

However, their contributions are presumed equal, in the absence if proof to the contrary

Requisites before a suit between members of the same family may prosper 1. 2. 3.

8

Earnest efforts toward a compromise have been made; Such efforts failed; The fact that earnest efforts toward a compromise have been made but the same have failed appears in the verified complaint or petition (Art. 151).

UST LAW PRE-WEEK NOTES 2017 Family Home

1.

It is the dwelling house where the husband and wife and their family reside, and the land on which it is situated. It is constituted jointly by the husband and the wife or by an unmarried head of a family (FC, Art. 152).

2. 3.

Constitution of Family Home (FH) 4. The FH is deemed constituted on a house and lot from the time it is occupied as a family residence FC, (Art. 153).

Rights of legitimate children (FC, Art. 174)

Guidelines in the constitution of the Family Home 1. 2. 3. 4. 5. 6.

1. 2.

FH is deemed constituted from the time of actual occupation as a family residence; Only 1 FH may be constituted; Must be owned by the person constituting it; Must be permanent; Same rule applies to both valid and voidable marriages and even to common law spouses; (FC, Arts. 147 and 148) It continues despite death of one, both spouses, or an unmarried head of the family for 10 years or as long as there is a minor beneficiary (FC, Art 159).

3.

To bear the surname of the father and the mother; To receive support from their parents, their ascendants, and in proper cases, their brothers and sisters; To be entitled to the legitimate and other successional rights granted to them by Art. 174 of the Family Code.

Presumption of legitimacy (2006, 2008, 2010 BAR) Article 164 of the Family Code provides that the children conceived or born during the marriage of the parents are legitimate.

The heirs cannot partition the same unless the court finds compelling reasons therefor. This rule shall apply regardless of whoever owns the property or constituted the FH (FC, Art 159).

The presumption of legitimacy of children does not only flow out from a declaration contained in the statute but is based on the broad principles of natural justice and the supposed virtue of the mother. The presumption is grounded in a policy to protect innocent offspring from the odium of illegitimacy (Liyao, Jr. v. Tanhoti-Liyao, G.R. 138961, March 7, 2002).

The FH must be part of the properties of the absolute community or the conjugal partnership or the exclusive properties of either spouse, with the latter’s consent. It may also be constituted by an unmarried head of a family on his or her own property (FC, Art 156).

The presumption of legitimacy under Article 164 of the Family Code may be availed only upon convincing proof of the factual basis therefor, i.e., that the child’s parents were legally married and that his/her conception or birth occurred during the subsistence of that marriage. Else, the presumption of law that a child is legitimate does not arise (Angeles v. Maglaya, G.R. No. 153798, September 2, 2005).

NOTE: Property that is subject of a conditional sale on instalment(s) where ownership is reserved by the vendor to guarantee payment of the purchase price may be constituted as a FH. Beneficiaries of a Family Home (FC, Art. 154) 1. 2. 3. 4. 5. 6.

The artificial insemination is made on the wife, not on another woman; The artificial insemination on the wife is done with the sperm of the husband or of a donor, or both the husband and a donor; The artificial insemination has been authorized or ratified by the spouse on a written instrument executed and signed by them before the birth of the child; and The written instrument is recorded in the civil registry together with the birth certificate of the child (FC, Art. 164).

Husband and wife, or Unmarried head of the family, Parents (may include parents-in-law), Ascendants, Descendants Brothers and sisters (legitimate or illegitimate) living in the FH and dependent on the head of the family for support.

NOTE: The child by himself cannot choose his own filiation. Neither can he elect the paternity of the husband of his mother when the presumption of his legitimacy has been successfully overthrown.

Requisites to be considered as beneficiary (FC, Art 156)

Rule on status of child where the mother contracted another marriage within 300 days after termination of the former (1999)

1.

The child shall be considered as conceived during the:

2. 3.

They must be among the relationships enumerated in Art. 154 of the Family Code; They live in the FH; and They are dependent for legal support upon the head of the family.

1.

PATERNITY AND FILIATION

2.

Legitimate children GR: One who is conceived OR born during the marriage of the parents (FC, Art. 164).

ACTION TO IMPUGN LEGITIMACY V. ACTION TO CLAIM LEGITIMACY

XPN: Born outside of a valid marriage (void marriages) but considered as legitimate child: 1. 2.

Former marriage– if child is born: Before 180 days after the solemnization of the subsequent marriage, provided it is born within 300 days after termination of former marriage Subsequent marriage –if a child is born: 180 days after the celebration of the subsequent marriage, even though it be born within 300 days after the termination of the former marriage.

BASIS

Children of marriages which are declared void under Art. 36; and Children of marriages which are declared void under Art. 53 (Rabuya, 2009).

Remedy

Requisites for a child conceived by artificial insemination to be considered legitimate (FC, Art. 166 no. 3)

Real party in interest

9

ACTION TO IMPUGN LEGITIMACY Action to impugn legitimacy or illegitimacy. GR: Husband XPNs: Heirs, cases where:

in

ACTION TO CLAIM LEGITIMACY Action to claim legitimacy (compulsory recognition). GR: Child XPNs: Heirs of the child, in cases where:

CIVIL LAW

Prescription

1. Husband died before the expiration of the period for bringing the action; 2. Husband died after filing the complaint, without having desisted; 3. Child was born after the death of husband. 1 year – husband resides in the same municipality or city where birth took place 2 years – husband does NOT reside in the same municipality or city 3 years – husband is living abroad

which case the marriage will be considered valid and the children will be considered legitimate.

1. Child died in state of insanity 2. Child died during minority

Rights of an illegitimate child 1. 2. 3. 4.

NOTE: Must be filed within 5 years.

They shall use the surname of the mother; They shall be under the parental authority of the mother; They shall be entitled to support in conformity with the FC; They shall be entitled to a legitime which shall consist of ½ of the legitime of a legitimate child (Art. 176). Legitimated Children

Children conceived and born outside of wedlock of parents who, at the time of 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 (Art. 177, FC as amended by R.A. 9858). (1990, 2004, 2008, 2009)

GR: During the lifetime of the child XPN: Lifetime of the putative father In cases where the action is for the recognition of illegitimate child by “open and continuous possession” of the status.

ADOPTION Domestic Adoption Act of 1998 (RA 8552) Who can adopt 1. 2. 3.

Legitimacy of the child may be impugned only on the following grounds: 1. Physical impossibility for the husband to have sexual intercourse with his wife within the first 120 days of the 300 days which immediately preceded the birth of the child because of: a. Physical incapacity of the husband to have sexual intercourse with his wife; b. The fact that the husband and wife were living separately in such a way that sexual intercourse was not possible; or c. Serious illness of the husband which absolutely prevented intercourse. 2. Proved that for biological or other scientific reasons, the child could not have been that of the husband, except in the case of children conceived through artificial insemination. 3. In case of children conceived through artificial insemination, the written authorization or ratification of either parent was obtained through mistake, fraud, violence, intimidation or undue influence.

Filipino citizens; Aliens; Guardians with respect to their ward but only after the termination of guardianship and clearance of his financial accountabilities.

Qualifications of a Filipino who may adopt 1. 2. 3. 4. 5. 6. 7.

Must be of legal age; In a position to support and care for his children; Good moral character; Full civil capacity and legal rights; has not been convicted of any crime involving moral turpitude; Emotionally and psychologically capable of caring for children; GR: At least 16 years older than adoptee XPN: When the: a. Adopter is the biological parent of the adoptee, b. Adopter is the spouse of adoptee’s parent.

Kinds of proof of filiation (1995, 1999, 2010)

Qualifications of an alien who may adopt under R.A. 8552

1.

1.

2.

Primary proof consists of the ff: a. Record of birth appearing in civil registrar or final judgment; b. Admission of legitimate filiation in public document or private handwritten instrument signed by parent concerned. Secondary consists of the ff: a. Open and continuous possession of legitimacy; b. Any means allowed by the Rules of Court and special laws.

2. 3. 4. 5.

Illegitimate Children 1. Children conceived and born outside a valid marriage: 2. Children born of couples who are not legally married or of common law marriages; 3. Children born of incestuous marriage; 4. Children born of bigamous marriage; 5. Children born of adulterous relations between parents; 6. Children born of marriages which are void for reasons of public policy under Art. 38, FC; 7. Children born of couples below 18, whether they are married (which marriage is valid) or not; 8. Children born of void marriages under art. 35, except where the marriage is void for lack of authority on the part of the solemnizing officer, but the parties or either of them believed in good faith that the solemnizing officer had authority, in

Possesses same qualifications as those enumerated for Filipino adopters; His country has diplomatic relations with the Philippines; His government allows the adoptee to enter his country as his adopted child He has been certified by his diplomatic or consular office or any appropriate government agency that he has the legal capacity to adopt in their country GR: Has been living in the Philippines for at least 3 continuous years prior to the application for adoption and maintains such residence until adoption decree has been entered. XPNs: a. He is a former Filipino who seeks to adopt a relative within the 4th civil degree of consanguinity or affinity, b. He is married to a Filipino and seeks to adopt jointly with his spouse a relative within the 4th degree of consanguinity or affinity, c. He is married to a Filipino and seeks to adopt the legitimate or illegitimate child of his Filipino spouse.

Who may be adopted 1. 2.

10

Any person below eighteen (18) years of age who has been administratively or judicially declared available for adoption; The legitimate son/daughter of one spouse by the other spouse;

UST LAW PRE-WEEK NOTES 2017 3. 4. 5. 6.

An illegitimate son/daughter by a qualified adopter to improve his/her status to that of a legitimate; A person of legal age if, prior to the adoption, said person has been consistently considered and treated by the adopter(s) as his/her own child since minority; A child whose adoption has been previously rescinded; or A child whose biological or adoptive parent(s) has died: Provided, that no proceedings shall be initiated within six (6) months from the time of death of said parent(s). (Sec. 8, RA 8552).

4. 5. 6. 7. 8.

Rights of an Adopted Child 1. 2. 3.

9.

Right to use the surname of the adopter Right to support Right to succession

SUPPORT It comprises everything indispensable for: 1. Sustenance 2. Dwelling 3. Clothing 4. Medical attendance 5. Education – includes schooling or training for some profession, trade or vocation, even beyond the age of majority 6. Transportation – includes expenses going to and from school, or to from place of work

Instances when adoption may be rescinded The adoption may be rescinded on any of the grounds committed by the adopter: 1. 2. 3. 4.

Repeated physical and verbal maltreatment by the adopter(s) despite having undergone couselling; Attempt on the life of the adoptee; Sexual assault or violence; or Abandonment and failure to comply with parental obligations

Rules on support of illegitimate children of either spouse 1. ACP or CP- For the support of the following: a. spouses; b. common children of the spouses; and c. legitimate children of either spouse

Q: Who may file the action for rescission of domestic adoption?

NOTE: If the community property or the conjugal partnership is insufficient to cover them, the spouses shall be solidarily liable for the unpaid balance with their separate properties.

A: The adoptee has the sole right to severe the legal ties created by adoption and the one who will file the action for rescission. However, if the adoptee is still a minor or above 18 years of age but incapacitated, the Department of Social and Welfare Development as the adoptee’s guardian or counsel may assist the adoptee for rescinding the decree of adoption. The adopter cannot seek the rescission of the adoption but he may disinherit the adoptee.

2.

NOTES: 1. 2.

Joint adoption is only allowed between husband and wife. The use of the word “shall” in the above-quoted provision means that joint adoption by the husband and the wife is mandatory. This is in consonance with the concept of joint parental authority over the child which is the ideal situation. As the child to be adopted is elevated to the level of a legitimate child, it is but natural to require the spouses to adopt jointly. The rule also ensures harmony between the spouses. The law is clear. There is no room for ambiguity. Monina, having remarried at the time the petitions for adoption were filed, must jointly adopt. Since the petitions for adoption were filed only by Monina herself, without joining her husband, Olario, the trial court was correct in denying the petitions for adoption on this ground (In Re: Petition for Adoption of Michelle P. Lim, In Re: Petition for Adoption of Michael Jude P. Lim, Monina P. Lim, G.R. Nos. 168992-93, May 21, 2009).

Separate property of person- For the support of the following: a. illegitimate children; b. legitimate ascendants; c. descendants, whether legitimate or illegitimate; d. brothers and sisters, whether legitimately or illegitimately related (Rabuya, 2009).

Persons obliged to support each other (2008) 1. 2. 3. 4. 5.

Spouses; Legitimate ascendants & descendants; Parents and their legitimate children, and the legitimate and illegitimate children of the latter; Parents and their illegitimate children, and the legitimate and illegitimate children of the latter; Legitimate brothers and sisters whether full or half-blood (Art. 195). NOTE: Brothers and sisters not legitimately related are likewise bound to support each other. However, when the need for support of the brother or sister, being of age, is due to a cause imputable to the claimant’s fault or negligence, in this case, the illegitimate brother or sister has no right to be supported (Rabuya, 2009).

Intercountry Adoption Act of 1995 (R.A 8043)

The liability to support should be observed in the following order:

Who can adopt: 1. 2.

responsibilities of parental authority; Not been convicted of a crime involving moral turpitude; Eligible to adopt under his national law; In a position to provide for proper care and support and give necessary moral values; Agrees to uphold the basic rights of the child mandated by the UN convention of rights of Child and the Philippine Laws; Comes from a country with which the Philippines has diplomatic relations and adoption is allowed under his national law; Possesses all the qualifications and none of the disqualifications under the law or other applicable Philippine laws.

Any alien; Filipino citizen, both permanently residing abroad.

1. 2. 3. 4.

Qualifications needed for a Filipino or alien to adopt (Sec. 9) 1. At least 27 years old and 16 years older than the child to be adopted at the time of the application unless: a. adopter is the parent by nature of the child; b. adopter is the spouse of the parent by nature of the child to be adopted 2. If married, his spouse must jointly file for adoption; 3. Has the capacity to act or assume all rights and

Spouse Descendants in the nearest degree Ascendants in the nearest degree Brothers and sisters PARENTAL AUTHORITY

1.

11

Caring for and rearing of such children for civic consciousness and efficiency;

CIVIL LAW 2.

Development of their moral, mental and physical character and well-being. (Art. 209).

Q: Distinguish briefly but clearly between: Substitute parental authority and special parental authority A: In substitute parental authority, the parents lose their parental authority in favor of the substitute who acquires it to the exclusion of the parents. In special parental authority, the parents or anyone exercising parental authority does not lose parental authority. Those who are charged with special parental authority exercise such authority only during the time that the child is in their custody or supervision. Substitute parental authority displaces parental authority while special parental authority concurs with parental authority.

Exercise of parental authority 1.

2.

The father and the mother shall jointly exercise parental authority over the persons of their common children. In case of disagreement, the father’s decision shall prevail unless there is a judicial order to the contrary. If the child is illegitimate, parental authority is with the mother. (Art. 211)

Parental preference rule

EMANCIPATION (Arts. 234 and 236, Family Code, as amended by R.A No. 6809 which lowered the age of majority)

The natural parents, who are of good character and who can reasonably provide for the child are ordinarily entitled to custody as against all persons.

Emancipation takes place by attainment of majority at the age of (18) eighteen years (Art. 234, FC, as amended by RA 6809). (2010)

Exercise of parental authority in case of absence, death, remarriage of either parent, or legal or de facto separation of parents 1. 2.

3.

Effects of emancipation 1. Parental authority over the person and property of the child is terminated; 2. Child shall be qualified and responsible for all acts of civil life, save exceptions established by existing laws; 3. Contracting marriage shall require parental consent until the age of 21; 4. The responsibility of parents or guardians for children and wards below 21 under the second and third paragraphs of Art. 2180 of the NCC shall not be derogated.

Absence or death of either parent – parent present shall continue exercising parental authority Remarriage of either parent – it shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children (Art. 213). Legal or de facto separation of parents – the parent designated by the court.

Tender-Age Presumption

RETROACTIVITY OF THE FAMILY CODE

GR: No child below 7 years of age shall be separated from the mother because the law presumes that the mother is the best custodian. (2006) XPN: When the court finds compelling reasons to consider otherwise

The Family Code has retroactive effect insofar as it does not prejudice or impair vested or acquired rights in accordance with the Civil Code or other laws (Art. 256). (2005, 2010)

Order of substitute parental authority 1. Surviving Grandparent; 2. Oldest brother or sister, over 21 years unless unfit or disqualified 3. Actual Custodian over 21 year unless unfit or disqualified (Art. 216) 4. In case of foundlings, abandoned, neglected or abused children similarly situated, parental authority shall be entrusted in summary judicial proceedings to heads of children’s homes, orphanages and similar institutions duly accredited by the proper government agency (Art. 217).

General Guidelines:

Special Parental Authority (2003, 2004, 2005, 2010)

In case of ascendants, the paternal shall have a better right (NCC, Art. 305).

FUNERALS

1.

Duty and right to make arrangements in funerals in accordance with Art. 199, FC: a. Spouse; b. Descendants in the nearest degree; c. Ascendants in the nearest degree; d. Brothers and sisters.

NOTE: In case of descendants of the same degree, or of brothers and sisters, the oldest shall be preferred.

It is the parental authority granted by law to certain persons, entities or institutions in view of their special relation to children under their supervision instruction or custody. It is denominated as special because it is limited and is present only when the child is under their supervision instruction or custody. It can also co-exists with the parents’ parental authority.

2.

Funeral shall be: a. In keeping with the social position of the deceased; b. In accordance with the expressed wishes of the deceased; c. In absence of the expressed wishes, his religious beliefs or affiliation shall determine; d. In case of doubt, the form of funeral is to be decided upon by the person obliged to make arrangements for the same, after consulting the other members of the family (NCC, Art. 307).

3.

Any person who: a. Shows disrespect to the dead, or b. Wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral (NCC, Art. 309). Funeral expenses are chargeable against the property of the deceased. However, if the deceased is one of the spouses, they are chargeable against the conjugal partnership property (NCC, Art. 310).

The scope of special parental authority and responsibility applies to all authorized activities, whether inside or outside the premises of the school, entity or institution. The nature of the liability of persons having special parental authority over said minors for their acts or omissions causing damage to another is principal and solidary. The parents, judicial guardians or the persons exercising substitute parental authority over said minor shall be subsidiarily liable (NCC, Art. 219). (2003, 2010) Persons who may exercise special parental authority 1. School 2. School administrators 3. School teachers 4. Individual, entity or institution engaged in child care

4.

USE OF SURNAMES

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UST LAW PRE-WEEK NOTES 2017 Valid grounds for change of name 1. One has continuously used and has been known since childhood by a Filipino name and was unaware of alien parentage; 2. The change results as a legal consequence, as in legitimation; 3. There is a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anyone; 4. The change will avoid confusion; 5. The name is: a. Ridiculous, b. Extremely difficult to write or pronounce, c. Dishonorable.

All things which are or may be the object of appropriation considered as either real or personal property (NCC, Art. 414). It is an object or a right which is appropriated or susceptible of appropriation by man, with capacity to satisfy human wants and needs (Pineda, 1999). NOTE: Property does not only cover material things because it mentions of rights which could either be classified as real or personal right. CLASSIFICATION Real or Immovable Property

ABSENCE 1.

Land, buildings, roads and constructions of all kinds adhered to the soil; 2. Trees, plants, and growing fruits, while they are attached to the land or form an integral part of an immovable; 3. Everything Attached to an immovable in a fixed manner, in such a way that it cannot be separated therefrom without breaking the material or deterioration of the object; 4. Statues, reliefs, paintings or other objects for use or ornamentation, placed in buildings or on lands by the owner of the immovable in such a manner that it reveals the intention to attach them permanently to the tenements; 5. Machinery, receptacles, instruments or implements intended by the owner of the tenement for an industry or works which may be carried on in a building or on a piece of land, and which tend directly to meet the needs of the said industry or works; 6. Animal houses, pigeon-houses, beehives, fish ponds or breeding places of similar nature, in case their owner has placed them or preserves them with the intention to have them permanently attached to the land, and forming a permanent part of it; the animals in these places are included; 7. Fertilizer actually used on a piece of land; 8. Mines, quarries, and slag dumps, while the matter thereof forms part of the bed, and waters either running or stagnant; 9. Docks and structures which, though floating, are intended by their nature and object to remain at a fixed place on a river, lake, or coast; 10. Contracts for public works, and servitudes and other real rights over immovable property (Art. 415).

Kinds of absence 1. Physical Absence 2. Legal Absence 3 Stages of Absence 1. Provisional Absence – when a person disappears from his domicile his whereabouts being unknown, without leaving an agent to administer his property (Art. 381). 2. Declared Absence – when a person disappears from his domicile and 2 years thereafter have elapsed without any news about him or since the receipt of the last news, or 5 years have elapsed in case he left a person to administer his property (Art. 384). 3. Presumptive Death – the absentee is presumed dead (Jurado, 2011) Presumption of Death Kinds of presumed death 1. Ordinary presumption- disappears under normal conditions without danger or idea of death. 2. Extraordinary presumption- disappearance with great probability of death. Rules in ordinary presumption of death 1. In case of disappearance upon or before reaching the age of seventy five (75) years: a. After an absence of seven (7) years -the absentee is presumed dead for all purposes except, succession. b. After an absence of ten (10) years - the absentee is presumed dead for all purposes including succession. 2. Disappearance at the age of seventy six (76) years or older, after an absence of five (5) years -the absentee is presumed dead for all purposes including succession.

Categories of immovable property (NIDA) 1. 2.

Presumption of death of absentee under an ordinary presumption

3.

Absentee is presumed to have died under an ordinary presumption at the end of the 5, 7, or 10 year period, as the case may be.

4.

Nature – Those which cannot be carried from place to place. Incorporation – Those which are attached to an immovable in a fixed manner and considered as an integral part thereof, irrespective of its ownership. Destination – Things placed in buildings or on lands by the owner of the immovable or his agent in such a manner that it reveals the intention to attach them permanently thereto. Analogy – Classified by express provision of law. Personal or movable property

Presumption of death for all purposes The following are presumed dead for all purposes including the division of estate among heirs in case of extraordinary presumption of death (Art. 391): 1. Person on board a vessel lost during a sea voyage, or an airplane which is missing, who has not been heard of for four (4) years since the loss of the vessel or airplane; 2. Person in the armed forces who has taken at in war, and has been missing for four (4) years; 3. Person who has been in danger of death under other circumstances and his existence has not been known for four (4) years.

1.

PART III – PROPERTY

6.

2. 3. 4. 5.

CHARACTERISTICS

Movables susceptible of appropriation which are not included in Art. 415; Real property which by any special provision of law considers as personalty; e.g. growing crops under the Chattel Mortgage Law. Forces of nature which are brought under the control of science; In general, all things which can be transported from place to place without impairment of the real property to which they are fixed; Obligations and actions which have for their object movables or demandable sums; and Shares of stock of agricultural, commercial and industrial entities, although they have real estate (Art. 416). OWNERSHIP

Property

13

CIVIL LAW It is the juridical relation of a person over a thing by virtue of which said person has the exclusive power or authority to receive all the benefits and advantages arising from said thing, save those restricted by law or the recognized rights of others.

possession of the premises until he was deprived thereof NOTE: The fact that by the defendant. petitioners are in possession of the lot does not automatically entitle them to remain in possession (Ganilla v. CA, G.R. No. 150755, June 28, 2005).

Q: What are the remedies to recover possession? A: 1. 2.

As to when 1 year period is counted from

Personal property- Replevin Real property a. Accion Interdictal i. Forcible Entry ii. Unlawful detainer b. Accion Publiciana c. Accion Reinvindicatoria

1 year period is generally 1 year period is counted from counted from the date of the date of last demand or last actual entry of the land. letter of demand. Q: What are the requisites in an action to recover property?

Q: What are the distinctions between accion reivindicatoria, accion publiciana, accion interdictal? A: Accion interdictal It is a summary action to recover physical or material possession only and it must be brought within one year from the time the cause of action arises. It may be: 1. Forcible Entry 2. Unlawful detainer

2.

Prove that he has a better title than the defendant a. Best proof is a Torrens certificate. b. Tax receipts, tax declarations are only prima facie evidence of ownership; it is rebuttable.

A: It authorizes an owner or lawful possessor of a property to use reasonable counterforce to prevent or stop another person from taking the former’s property. There must be no delay in the pursuit, otherwise, his recourse will be to go to the court for the recovery of property. ACCESSION

Accion reinvindicatoria It is an action to recover real property based on ownership. Here, the object is the recovery of the dominion over the property as owner.

It may be defined as the right pertaining to the owner of a thing over everything which is produced thereby, or which is incorporated or attached thereto, either naturally or artificially (Art. 440).

Where the facts averred in the complaint reveals that the action is neither one of forcible entry nor unlawful detainer but essentially involves a boundary dispute, the same must be resolved in an accion reinvindicatoria (Sarmiento v. CA, G.R. No. 116192, November 16, 1995).

He who receives the fruits has the obligation to pay the expenses made by a third person in their production, gathering and preservation. NOTE: Only such as are manifest or born are considered as natural or industrial fruits. With respect to animals, it is sufficient that they are in the womb of the mother, although unborn.

Q: What are the distinctions between forcible entry and unlawful detainer? A:

Rule if the planter and owner of the land are different Gathered Fruits Planter in GF Planter in BF Planter Keeps fruits (Art. Reimbursed for 544 (1)) (2008 expenses for BAR) production, gathering and preservation (Art. 443) Owner No necessity to Owns fruits reimburse the provided he pays planter of expenses planter expenses since the planter for production, retains the fruits gathering and (Art. 544(1)) preservation (Art. 443) Standing Crops Planter in GF Planter in BF Planter Reimbursed for Loses what is built, expenses, for planted or sown production, without right to gathering and indemnity (Art preservation 449) (Art.443) Entitled to reimbursement for the necessary expenses of

Unlawful Detainer

As to when possession became unlawful Possession of the defendant is unlawful from the beginning as he acquired possession by force, intimidation, strategy, threat or stealth (FISTS).

Clearly identify the land he is claiming in accordance with the title/s on which he bases his right of ownership; and

Q: What is the principle of self-help?

Accion publiciana It is an ordinary civil proceeding to recover the better right of possession, except in cases of forcible entry and unlawful detainer. What is involved here is not possession de facto but possession de jure.

Forcible Entry

1.

Possession is inceptively lawful but becomes illegal from the time defendant unlawfully withholds possession after the expiration or termination of his right thereto. NOTE: The question of possession is primordial, while the issue of ownership is generally unessential in unlawful detainer (Rosa Rica Sales Center v. Sps. Ong, G.R. 132197, August 16, 2005).

As to necessity of demand No previous demand for the Demand is jurisdictional if the defendant to vacate is ground is non-payment of necessary. rentals or failure to comply with the lease contract. As to necessity of proof of prior physical possession Plaintiff must prove that he Plaintiff need not have been in was in prior physical prior physical possession.

14

UST LAW PRE-WEEK NOTES 2017

Owner

Owns fruits provided he pays planter expenses for production, gathering and preservation (Art. 443)

preservation of the land (Art. 452) Owns fruits (Art. 449)

The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof.

In such case, he shall pay reasonable rent.

Rule when the land owner is the builder, planter or sower (1999 BAR) Land Owner and Builder, Planter or Sower Good Faith Acquire building etc. after paying indemnity for value of materials (Art. 447)

2. Sells the land, Builder or Planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees.

Owner of Materials

Good Faith 1. Receive indemnity for value of materials; or 2. Remove materials if w/o injury to works, plantings or constructions (Art. 447) Bad Faith Good Faith Acquire building etc. after 1. Be indemnified for value paying value of materials of materials and AND indemnity for damages, damages; or subject to the right of the 2. Remove materials, w/ owner of materials to or w/o injury and be remove (Art. 447) indemnified for damages (Art, 447) Good Faith Bad Faith 1. Acquire w/o paying 1. Lose materials w/o indemnity and right to being indemnified and damages (Art 445 and pay damages (Art 445 449, by analogy) and 449, by analogy) 2. Pay necessary expenses 2. Recover necessary for preservation (Art. 452 expenses for & 546) preservation of land without the right to retain the thing until the indemnity is paid (Art. 452 & 546) Bad Faith Bad Faith As though both acted in good faith (in pari delicto) (Art. 453) (1999 BAR)

Good Faith The land owner can either: a. Acquire improvements without paying indemnity and collect damages (Art. 445 & 449) b. Order the demolition of work or restoration to former condition and collect damages in both cases (Art. 450) c. Sell the land to builder and planter or rent it to the sower, and collect damages in both cases (Art. 450) (2008 BAR) 2. Pay necessary expenses for preservation (Art. 452 & 546). Bad Faith Acquires improvements after paying indemnity and damages to builder, planter, sower, unless the latter decides to remove (Art. 454, 447) 1.

Rule when the land owner is NOT the builder, planter or sower Builder, Planter, Land Owner Sower and Owner of Materials Good Faith Good Faith He can either: (Art. 448) If the Land Owner: (1992, 1996, 2000, 2001 1. Acquires the BAR) improvements after 1. Acquire improvements paying indemnity, after paying indemnity for: Builder, Planter, or a. Necessary Sower has the right expenses, and to retain the thing b. Useful expenses (and cannot be which could required to pay rent) either be: until indemnity is a. Original costs of paid (Art. 546) improvements b. Increase in the If the useful value of the improvements can whole (Art. 443 & be removed without 546) damage to the principal thing, the 2. Sell the land to builder and Builder, Planter or planter or collect rent from Sower may remove sower unless the value of them, unless the the land is considerably person who recovers greater than the building the possession etc., in which case, the exercises the other builder and planter shall (Art. 547 & 447) pay rent.

He cannot compel the builder planter or sower to buy the land. The reason why said article (Art. 447) applies may be explained as follows: That if the land owner knew that something was being built, planted or sown on his land by another and he did not interpose any objection thereto, it is as if he was the one building, planting or sowing in bad faith on his own land with materials belonging to another, using the owner of the materials as his worker (Rabuya, 2008). Bad Faith

15

The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof (Art. 448). (1992, 1996, 1999, 2000, 2001 BAR) Bad Faith 1. Lose improvements without right to be indemnified unless the latter sells the land (Art. 449) (1996, 2000 BAR) 2. Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid (Art. 452 & 546) 3. Pay damages to land owner (Art. 451)

1.

2.

Good Faith Receive indemnity for improvements and receive damages; or Remove them in any event and receive damages (Art. 454 & 447).

Bad Faith

CIVIL LAW As though both acted in good faith (in pari delicto) (Art. 453) Rule when the land owner, builder, planter, sower and owner of materials are different persons Land Owner Builder, Planter, Sower Good Faith Good Faith He shall answer subsidiarily for their Pay value of materials to its owner (Art. 455). value and only in the event that the one who made use of them has no property and with which to pay (Art. 455). If the Land Owner: and 1. Acquires the improvement, Builder, He can either: (Art. 448) Planter, or Sower may demand from the 1. Acquire improvements after paying landowner the value of the materials and indemnity for: labor (Art 455). a. Necessary expenses, and b. Useful expenses which could And he has the right to retain the thing either be: (and cannot be required to pay rent) until a. Original costs of improvements indemnity is paid (Art. 546). b. Increase in the value of the whole (Art. 546 & 443) If the useful improvements can be 2. Sell the land to builder and planter or removed without damage to the principal collect rent from sower unless the thing, the possessor in good faith may value of the land is considerably remove them, unless the person who greater than the building etc., in recovers the possession exercises the which case, the builder and planter other (Art. 547 & 447) shall pay rent. 2. Sells the land or rents it, Builder or Planter cannot be obliged to buy the land if its The parties shall agree upon the value is considerably more than that of the terms of the lease and in case of building or trees. disagreement, the court shall fix the terms thereof. In such case, he shall pay reasonable rent.

1.

2.

Owner of Materials Good Faith Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (Art. 455) or Remove the materials only if w/o injury to the work constructed, or without the plantings, constructions or works being destroyed (Art. 447). NOTE: Landowner is subsidiarily liable only if he appropriates/acquires the improvements.

The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof (Art. 448). Good Faith Land Owner can either: (Art. 448) 1.

2.

Acquire improvements after paying 1. indemnity for: a. Necessary expenses, and b. Useful expenses which could either be: a. Original costs of improvements b. Increase in the value of the whole (Art. 546 & 443) Sell the land to builder and planter or collect rent from sower unless the value of the land is considerably 2. greater than the building etc., in which case, the builder and planter shall pay rent.

Acquires the improvement, Builder, Planter, or Sower has the right to retain the thing (and cannot be required to pay rent) until indemnity is paid (Art. 546).

The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof.

In such case, he shall pay reasonable rent.

Without subsidiary liability for cost of materials 1.

Good Faith If the Land Owner:

Good Faith Option to: a. Acquire improvements without paying indemnity and collect damages (Art. 445 & 449) b. Order the demolition of work or restoration to former condition and collect damages in both cases (Art. 450) c. Sell the land to builder and planter or rent it to the sower,

If the useful improvements can be removed without damage to the principal thing, the possessor in good faith may remove them, unless the person who recovers the possession exercises the other (Art. 547). Sells or rents it, Builder or Planter cannot be obliged to buy the land if its value is considerably more than that of the building or trees.

1. 2.

Bad Faith Loses materials without right to indemnity (Art. 449) Pays damages (Art. 451)

The builder, planter or sower would be considered merely an agent of the owner of materials. Therefore, the provisions of Article 449 of the Civil Code will apply by analogy. He is even liable for damages (Rabuya, 2008).

The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof (Art. 448). Without indemnity to owner of materials and collects damages from him. Bad Faith 1. Lose improvements without right to be indemnified unless the landowner sells the land (Art. 449) 2. Recover necessary expenses for preservation of land without the right to retain the thing until the indemnity is paid (Art. 452 & 546)

Bad Faith 1. Recover value from builder, planter, sower (in pari delicto) 2. If builder, planter, sower acquired improvements, remove the materials only if w/o injury to the work constructed, or without the plantings, constructions or works being destroyed (Art. 447) 3.

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No action against land owner; and

UST LAW PRE-WEEK NOTES 2017

2. 3. 4.

and collect damages in both cases (Art. 450) Has right to demand damages from both (Art. 451) Pay necessary expenses for preservation (Art. 452 & 546) Not subsidiarily liable to the owner of the materials because as to him, the two acted in bad faith (De Leon, 2006) Bad Faith

3. Pay the value of the materials to the owner of the materials.

4. May be liable to the land owner for damages (Art. 451)

Since both the owner of the materials and the builder, etc. acted in bad faith, as between them, they are treated as having both acted in good faith (De Leon, 2006) 4.

Pay damages to land owner (Art. 451). Bad Faith

Bad Faith

Same as though both acted in good faith (in pari delicto) (Art. 453) Bad Faith Good Faith 1. Acquires improvements after paying If he pays the owner of the materials, plants or indemnity and damages, unless the latter seeds: decides to remove (Art. 454, 447 & 443). i. He may demand from the landowner the 2. Cannot compel builder, planter and value of the materials and labor (Art 455) sower to buy land. and shall also be obliged to the reparation of damages (Art. 447) or ii. Remove the materials in any event, with a right to be indemnified for damages (Art. 454 & 447) Bad Faith Bad Faith The owner of the land shall answer subsidiarily for their value and only in Pay value of materials to its owner (Art. 455) the event that the one who made use of them has no property with which to pay and (Art. 455) If the Land Owner: and

1. Acquires the improvement, Builder, Planter, or Sower may demand from the Land Owner can either: (Art. 448) landowner the value of the materials and labor 1. Acquire improvements after paying (Art 455) indemnity for: And he has the right to retain the thing (and a. Necessary expenses, and b. Useful expenses which could cannot be required to pay rent) until indemnity is paid (Art. 546). either be:

Good Faith 1. Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (Art. 455) or 2. Remove the materials in any event, with a right to be indemnified for damages (Art. 447)

Good Faith 1. Collect value of materials primarily from builder, planter, sower, subsidiarily from land owner (Art. 455) or 2. Remove the materials in any event, with a right to be indemnified for damages (Art. 447)

i.

Original costs of If the useful improvements can be removed improvements ii. Increase in the value of the without damage to the principal thing, the possessor in good faith may remove them, whole (Art. 546 & 443) unless the person who recovers the possession Sell the land to builder and planter or exercises option 2. (Art. 547 & 447)

2. collect rent from sower unless the value of the land is considerably greater than 2. Sells or rents it, Builder or Planter cannot the building etc., in which case, the be obliged to buy the land if its value is considerably more than that of the building or builder and planter shall pay rent. trees. The parties shall agree upon the terms of the lease and in case of disagreement, the In such case, he shall pay reasonable rent. court shall fix the terms thereof. The parties shall agree upon the terms of the lease and in case of disagreement, the court shall fix the terms thereof (Art. 448). Good Faith 1. Option to: a. Acquire improvements without paying indemnity and collect damages (Art. 445 & 449). b. Order the demolition of work or restoration to former condition and collect damages in both cases (Art. 450). c. Sell the land to builder and planter or rent it to the sower, and collect damages in both cases (Art. 450). 2. Pay necessary expenses for preservation (Art. 452 & 546).

Bad Faith Good Faith 1. Lose improvements without right to be 1. Collect value of materials primarily indemnified unless the landowner sells the land from builder, planter, sower, subsidiarily (Art. 449) from land owner (Art. 455) or 2. Recover necessary expenses for 2. Remove materials in any event if preservation of land without the right to retain builder, planter, sower acquired materials. the thing until the indemnity is paid (Art. 452 & 546) 3. Pay value of materials to its owner plus damages (Art. 455) 4.

Pay damages to land owner (Art. 451)

3. Subsidiarily liable to owner of materials Bad Faith

Good Faith

17

Bad Faith

CIVIL LAW 1. Acquires improvements after paying If he pays the owner of the materials, plants or indemnity and damages, unless the seeds: builder, planter or sower decides to remove (Art. 454, 447 & 443). i. He may demand from the landowner the value of the materials and labor (Art 455) 2. Cannot compel builder, planter and and shall also be obliged to the reparation sower to buy land. of damages (Art. 447) or ii. Remove the materials in any event, with a right to be indemnified for damages (Art. 454 & 447)

Rights of owners over the thing in adjunction OWNER OF THE PRINCIPAL Good Faith 1. Acquire accessory and pay owner of the accessory for its value; or 2. Demand separation provided the thing suffers no injury.

1. Lose materials indemnity (Art. 449) 2.

without

right

to

Pay damages (Art. 451)

The builder, planter or sower would be considered merely an agent of the owner of materials. Therefore, the provisions of Article 449 of the Civil Code will apply by analogy. He is even liable for damages (Rabuya, 2008).

OWNER OF THE ACCESSORY Good Faith 1. Receive payment for value of accessory; or 2. GR: Demand separation provided the thing suffers no injury. XPN: If accessory is more precious than principal, he may demand separation w/ or w/o injury to the thing. Bad Faith Lose accessory and pay damages.

Good Faith Acquire accessory w/o paying the owner of accessory and entitled to damages. Bad Faith Good Faith 1. Pay value of accessory and pay damages; OR 1. Receive payment and damages; or 2. Have the things separated, even though there is injury to 2. Have accessory separated w/ or w/o injury to principal and the principal and pay damages. receive damages. Bad Faith Bad Faith Same as though both acted in good faith. Rules regarding mixtures 1st Owner

2nd Owner By Will of Both Owners or by Accident

Good Faith

Good Faith

1. Right is subject to stipulations; OR 2. Right is in proportion to the part belonging to him (Co-ownership arises) By Will of Only 1 Owner/ By Chance Good Faith

Good Faith

1. Have the things separated provided the thing suffers no injury; OR 2. If cannot be separated w/o injury, acquire interest on mixture in proportion to his part (co-ownership) Bad Faith (caused the mixture)

Good Faith

1st owner will lose his part on the mixture and pay damages to the 2 nd owner

2nd owner will acquire entire mixture and entitled to damages Good Faith (caused the mixture)

Bad Faith As if both acted in GF, because the 2nd owner in GF was the one who caused the ratification, because the 1st owner

As if both acted in GF, since the 1st owner is in BF and the 2nd owner who caused the mixture in GF in a way ratifies the BF of 1st owner.

As if both acted in GF, because the 2nd owner in GF was the one who caused the ratification, because the 1st owner

As if both acted in GF, since the 1st owner is in BF and the 2nd owner who caused the mixture in GF in a way ratifies the BF of 1st owner.

Respective rights of the maker and the owner of the materials in specification Maker (M) Owner of Materials (OM) Good Faith

1. Acquire the work and indemnify the maker for his labor; or 2. Demand indemnity for the material.

Good Faith

GR: Appropriate the thing Receive payment for value of transformed and pay the materials. owner of the materials for its value.

Good Faith

Good Faith

1. Receive payment for value 1. Appropriate new thing and of his work; or pay the maker for the work; 2. Appropriate the new thing or and pay the owner of 2. Receive payment for value materials for its value. of materials.

XPN: If the material is more precious than the thing transformed, the owner of the materials has the option to:

Bad Faith

18

Good Faith

UST LAW PRE-WEEK NOTES 2017 5.

1. Lose the new thing and 1. Appropriate the new thing pay damages to owner of without paying and receive the materials; or damages; or 2. Pay value of materials and damages to owner of the NOTE: Not available if materials. the new thing is more valuable than materials for scientific or artistic reasons.

6. 7. 8. 9.

2. Receive payment for the value of materials and damages.

10.

QUIETING OF TITLE TO OR INTEREST IN AND REMOVAL OR PREVENTION OF CLOUD OVER TITLE OT INTEREST IN REAL PROPERTY

11. 12. 13. 14.

Q: What are the requisites for quieting of title? A: 1. 2. 3.

4.

15. Plaintiff must have a legal or equitable title to, or interest in the real property which is the subject matter of the action; There must be cloud in such title; Such cloud must be due to some a. Instrument; b. Record; c. Claim; d. Encumbrance; or e. Proceeding which is apparently valid but is in truth invalid, ineffective, voidable or unenforceable, and is prejudicial to the plaintiff’s title; and Plaintiff must a. return to the defendant all benefits he may have received from the latter; or b. reimburse him for expenses that may have redounded to his benefit.

Duties/liabilities of co-owners 1. Share in charges proportional to respective interest; stipulation to contrary is void 2. Pay necessary expenses and taxes – May be exercised by only one co-owner 3. Pay useful and luxurious expenses – If determined by majority 4. Duty to obtain consent of all if thing is to be altered even if beneficial; resort to court if non-consent is manifestly prejudicial 5. Duty to obtain consent of majority with regards to administration and better enjoyment of the thing; controlling interest; court intervention if prejudicial – Appointment of administrator 6. No prescription to run in favor of a co-owner as long as he recognizes co-ownership; requisites for acquisition through prescription: a. He has repudiated through unequivocal acts b. Such act of repudiation is made known to other coowners c. Evidence must be clear and convincing 7. Co-owners cannot ask for physical division if it would render thing unserviceable; but can terminate coownership. 8. After partition, duty to render mutual accounting of benefits and reimbursements for expenses.

Q: What is the difference between an action to quiet title and action to remove cloud on title? A: ACTION TO QUIET TITLE

ACTION TO REMOVE CLOUD ON TITLE

To put an end to troublesome For the removal of a possible litigation with respect to the foundation for a future property involved hostile claim A remedial action

To oppose to any act of alteration (Art. 491) even if beneficial to the co-owners To protect against acts of majority which are prejudicial to the minority (Art. 492, (3)) To exercise legal redemption To ask for partition (Art. 494) Right to exempt himself from obligation of paying necessary expenses and taxes by renouncing his share in the proindiviso interest; but cannot be made if prejudicial to coownership Right to make repairs for preservation of things can be made at will of one co-owner; receive reimbursement therefrom; notice of necessity of such repairs must be given to co-owners, if practicable Right to full ownership of his part and fruits Right to alienate, assign or mortgage own part; except personal rights like right to use and habitation Right of pre-emption Right to be adjudicated thing (subject to right of others to be indemnified) Right to share in proceeds of sale of thing if thing is indivisible and they cannot agree that it be allotted to one of them.

A preventive action

Involving a present adverse To prevent a future cloud on claim the title

POSSESSION Q: What are the modes of acquiring possession (FAMS) 1. By Material occupation (detention) of a thing or the exercise of a right (quasi-possession). Includes constitutum possessorium or traditio brevi manu. 2. By Subjection of the thing/right to our will which does not require actual physical detention or seizure. Includes traditio longa manu and traditio simbolica.. 3. By constructive possession or proper Acts and legal Formalities such as succession, donation, execution of public instruments. (Art. 531)

CO-OWNERSHIP General rights of each co-owner as to the thing owned in common 1. To use the thing according to the purpose intended provided that: a. It is w/o prejudice to the interest of the co-ownership; and b. w/o preventing the use of other co-owners (Art. 486). 2.

Rights of a possessor

To share in the benefits in proportion to his interest, provided the charges are borne in the same proportion (Art. 485).

GOOD FAITH BAD FAITH As to fruits received Entitled to the fruits Shall reimburse the fruits received before the received and those which the possession is legally legitimate possessor could interrupted have received and shall have the a right only to necessary expenses (Art. 546, par. 1) and expenses in the production, gathering and preservation of such fruits (Art. 443) As to pending fruits

NOTE: A contrary stipulation is void. Hence, benefits cannot be stipulated upon by the co-owners. 3.

4.

Each co-owner may bring an action for ejectment (Art. 487). NOTE: Action for ejectment covers; forcible entry, unlawful detainer, accion publiciana, quieting of title, accion reivindicatoria, replevin. To compel other co-owners to contribute to expenses for preservation of the thing (Art. 488)

19

CIVIL LAW Exercise acts of ownership by a usufructuary

Liable with legitimate None possessor for expenses of cultivation and shall share in the net harvest in proportion to the time of their possession As to expenses: (Necessary expenses) Right of reimbursement and Right of reimbursement only retention (Useful expenses) Right of reimbursement, None retention and limited right of removal (Ornamental Expenses) Shall not be refunded but he Shall not be refunded but he has a limited right of has a limited right of removal, i.e. he may remove removal, i.e. he may remove if the principal thing suffers if the principal thing suffers no injury thereby, and if the no injury thereby, and if the lawful possessor does not lawful possessor does not prefer to refund the amount prefer to retain them by expended paying its value at the time he enters into possession As to liability in case of deterioration or loss No liability, unless due to his Always liable fraudulent act or negligence

GR: A usufructuary cannot exercise acts of ownership such as alienation or conveyance. XPNs: When what is to be alienated or conveyed is a: (CIA) 1. Consumable property 2. Property Intended for sale; 3. Property which has been Appraised when delivered. NOTE: If it has not yet been appraised or if it is not a consumable: return the same quality (mutuum) Rights of the usufructuary as to advances and damages The right to be: 1. Reimbursed for indispensable extraordinary repairs made by him in the amount equal to the increase in value of the property (Art. 594) 2. Reimbursed for taxes on the capital advanced by him (Art. 597, (2)) 3. Indemnified for damages caused by usufructuary to the naked owner (Art. 581) EASEMENTS There can be no easement over another easement because an easement may be constituted only on a corporeal immovable property. An easement, although it is a real right over an immovable, is not a corporeal right. (1995 BAR)

Possession cannot be recognized in two different personalities except in case of co-possession when there is no conflict. Criteria in case there is a dispute of possession of two or more persons 1. 2. 3.

Present/actual possessor shall be preferred If there are 2 possessors, the one longer in possession If the dates of possession are the same, the one with a title

If all of the above are equal, the fact of possession shall be judicially determined, and in the meantime, the thing shall be placed in judicial deposit (Art. 538).

Rights of the usufructuary as to the thing and its fruits

2. 3. 4. 5. 6. 7. 8.

SERVIENT ESTATE

Immovable in favor of which, the easement is established

That property or estate which is subject to the dominant estate

Which the right belongs

Upon which an obligation rests.

Requisites for easement of right of way (1996, 2005, 2010 BAR) 1. The easement must be established at the point least prejudicial to the servient estate (Art. 649) 2. Claimant must be an owner of enclosed immovable or with real right 3. There must be no adequate outlet to a public highway (Art. 649, (1)) 4. The right of way must be absolutely necessary not mere convenience 5. The isolation must not be due to the claimant’s own act (Art. 649) 6. There must be payment of proper indemnity.

USUFRUCT

1.

DOMINANT ESTATE

To receive the fruits of the property in usufruct and half of the hidden treasure he accidentally finds on the property (Arts. 566, 438) To enjoy any increase which the thing in usufruct may acquire through accession (Art. 571) To personally enjoy the thing or lease it to another (Arts. 572-577) generally for the same or shorter period as the usufruct To make such improvements or expenses on the property he may deem proper and to remove the improvements provided no damage is caused to the property (Art. 579) To set-off the improvements he may have made on the property against any damage to the same (Art. 580) To retain the thing until he is reimbursed for advances for extraordinary expenses and taxes on the capital (Art. 612) To collect reimbursements from the owner for indispensable extra ordinary repairs, taxes on the capital he advanced, and damages caused to him To remove improvements made by him if the same will not injure the property

Least prejudicial to the servient estate (1996, 2000, 2005, 2010 BAR) “Least prejudicial” in determining the right of way means it is the shortest way and the one which will cause the least damage to the property to the servient estate in favor of the dominant estate. Easements are extinguished by (MARINE-CREW) (2001, 2010 BAR) 1.

Merger of ownership of the dominant and servient owner NOTE: The merger must be absolute and complete, not temporary. In the latter case, there is only suspension of easement.

Rights of the usufructuary as to the usufruct itself 1. To alienate, pledge or mortgage the right of usufruct, even by gratuitous title (Art. 572) 2. In a usufruct to recover property/real right, to bring the action and to oblige the owner thereof to give him the proper authority and the necessary proof to bring the action (Art. 578). 3. In a usufruct of part of a common property, to exercise all the rights pertaining to the co-owner with respect to the administration and collection of fruits or interests.

2. 3. 4. 5.

Annulment of the title to the servitude Redemption agreed upon Permanent Impossibility to use the easement Non-user : 10 years Reckoning point:

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UST LAW PRE-WEEK NOTES 2017 a.

Discontinuous – counted from the day they ceased to be used. b. Continuous – counted from the day an act adverse to the exercise takes place. 6. Expiration of the term or fulfilment of the resolutory condition 7. Bad Condition – when either or both estates fall into such a condition that the easement could not be used but this is a mere suspension of easement since possibility of use revives the easement. 8. Resolution of the right of grantor to create the easement (as when the vendor a retro redeems the land) 9. Expropriation of the servient estate 10. Waiver by the dominant owner gathered from positive acts (NCC, Art. 631).

2.

Donation cannot comprehend future property except donations between future husband and wife (See Art. 84 FC). 3. No person may give by way of donation more than he may give by will Q: What are the formalities for donation of rel/personal properties? 1.

As regards movable property: (1998, 2000, 2007 BAR) a. With simultaneous delivery of property donated: i. For P 5,000 or less – May be oral/written ii. For more than P 5,000 – Written in public or private document b. Without simultaneous delivery: i. The donation and acceptance must be written in a public or private instrument (Statute of Frauds), regardless of value. Otherwise, donation is unenforceable.

2.

As regards immovable property: (1993, 2000, 2010 BAR) a. Must be in a public instrument specifying i. The property donated and ii. The burdens assumed by the donee b. Acceptance may be made: i. In the same instrument or ii. In another public instrument, notified to the donor in authentic form, and noted in both deeds. Otherwise, donation is void.

NUISANCE Any act, omission, establishment, business, condition of property, or anything else which: 1. 2. 3. 4. 5.

Injures or endangers the health or safety of others; or Annoys or offends the senses; or Shocks, defies or disregards decency or morality; or Obstructs or interferes with the free passage of any public highway or street, or any body of water; or Hinders or impairs the use of property (Art. 694). (2005, 2006 BAR).

Q: What is the doctrine of attractive nuisance?

Donations prohibited by law (1990, 2000 BAR)

One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child of tender years who is injured thereby, even if the child is technically a trespasser in the premises (Jarco Marketing Corp. v. CA, G.R. No. 129792, December 21, 1999).

Donations made: (LAW SCRA POP) 1. By individuals, associations or corporations not permitted by Law to make donations; (Art. 1027) 2. By persons guilty of Adultery or concubinage at the time of donation; (Art. 739) NOTE: The action for declaration of nullity may be brought by the spouse of the donor or donee; and the guilt of the donor and donee may be proved by preponderance of evidence.

MODES OF ACQUIRING OWNERSHIP 1. 2. 3. 4. 5. 6. 7.

Occupation Law Donation Tradition Intellectual creation Prescription Succession

3.

By a Ward to the guardian before the approval of accounts; (Art. 1027) 4. By Spouses to each other during the marriage or to persons of whom the other spouse is a presumptive heir. (Art. 87, FC) 5. Between persons found guilty of the same Criminal offense, in consideration thereof; (Art. 739) 6. To Relatives of such priest, etc. within the 4th degree, or to the church to which such priest belongs; (Art. 1027) 7. To an Attesting witness to the execution of donation, if there is any, or to the spouse, parents or children or anyone claiming under them; (Art. 1027) 8. To the Priest who heard the confession of the donor during the latter’s last illness, or the minister of the gospel who extended spiritual aid to him during the same period; (Art. 1027) 9. To a public Officer or his/her spouse, descendants or ascendants in consideration of his/her office; (Art. 739) 10. To a Physician, surgeon, nurse, health officer or druggist who took care of the donor during his/her last illness; (Art. 1027)

DONATIONS Requisites of donation (ACID) 1. 2. 3. 4.

Donor must have Capacity to make the donation He must have donative Intent (animus donandi) There must be Delivery in certain cases Donee must Accept or consent to the donation during the lifetime of the donor and of the donee in case of donation inter vivos (Art. 746); whereas in case of donation mortis causa, acceptance is made after donor’s death because they partake of a will (Art. 728)

Reversion in donation

NOTE: Any person who is forbidden from receiving any donation under Art. 739 cannot be named beneficiary of a life insurance policy by the person who cannot make any donation to him (Art. 2012).

It is a condition established in the deed of donation which has for its effect the restoration or return of the property donated to the donor or his estate or in favor of other persons who must be living at the time of the donation for any cause or circumstances (Art. 757). If the reversion is in favor of other persons who are not all living at the time of the donation, the reversion stipulated shall be void, but the donation shall remain valid.

Grounds for revocation or reduction 1.

Limitations imposed by law in making donations inter vivos 1. Donor must reserve sufficient means for his support and for his relatives who are entitled to be supported by him (Art. 750).

21

Under Art. 760 a. Birth of a donor’s child or children (legitimate, legitimated, or illegitimate) after the donation, even though born after his death. b. Appearance of a donor’s child who is missing and thought to be dead by the donor. c. Subsequent adoption by the donor of a minor child.

CIVIL LAW 2.

Under Art. 764 –When the donee fails to comply with any of the conditions which the donor imposed upon the donee.

3.

Under Art. 765 – by reason of ingratitude (EXCLUSIVE) a. If the donee should commit some offense against the person, the honor or the property of the donor, or of his wife or children under his parental authority b. If the donee imputes to the donor any criminal offense, or any act involving moral turpitude, even though he should prove it, unless the crime or act has been committed against the donee himself, his wife or children under his authority c. If he unduly refuses him support when the donee is legally or morally bound to give support to the donor

When it is possessed through a crime such as robbery, theft, or estafa.

By Offender

Revocation of perfected donations Once a donation is perfected, it cannot be revoked without the consent of the donee except on grounds provided by law (Arts. 760, 764, 765). Obligations of the donee upon the revocation or reduction of donation 1. 2.

3.

Registered Lands (PD 1529)

Return the thing or the object of the donation If the property had already been alienated and could not be recovered anymore, its value shall be paid to the donor. The value shall be the price of the property estimated at the time of the perfection of the donation If the property had been mortgaged, the donor may pay the mortgaged obligations, subject to reimbursement by the donee (Art. 762).

NOTE: The person who cannot invoke the right of prescription is the offender or person who committed the crime or offense, not a subsequent transferee who did not participate in the crime or offense, unless the latter knew the criminal nature of the acquisition of the property by the transferor. (NCC, Art. 1133, Pineda Succession and Prescription, p. 651, 2009)

1. An action to recover a registered land by the owner 2. Right to petition for the issuance for the issuance of a Writ of Possession filed by the applicant for registered land NOTE: Similarly, an action to recover possession of a registered land never prescribes.

PRESCRIPTION

1. Action legal to demand a right of way 2. To abate a nuisance

One acquires ownership and other real rights through the lapse of time in the manner and under the conditions laid down by law. In the same way, rights and actions are lost by prescription (NCC, Art. 1106).

Action to quiet title if plaintiff in possession

Imprescriptible

Imprescriptible

Acquisitive and extinctive prescription 1.

2.

Applies to defense.

Acquisitive prescription - the acquisition of right by the lapse of time under the conditions laid down by law (NCC, Article 1106, par. 1), which may be ordinary or extraordinary. a. Ordinary Acquisitive Prescription- requires possession of things in good faith and with just title for the time fixed by law which is 10 years. b. Extraordinary Acquisitive Prescription- the acquisition of ownership and other real rights without the need of title or of good faith or any other condition and would prescribe in 30 years (De Leon, 2011).

Void contracts

Action demand partition

both

action

and

NOTE: However, an action to annul a voidable contract prescribes after 4 years to

As long as the co‐ownership is recognized expressly or impliedly (NCC, Art. 494)

NOTE: Distinguished from laches

Extinctive prescription or limitation of actions- loss of property rights or actions through the possession by another of a thing for the period provided by law or failure to bring the necessary action to enforce one’s right with in the period fixed by law. Rights and actions are lost by the lapse of time (NCC, Arts. 1106 and 1139). NOTE: It is also referred to as prescription of actions, statute of limitations, and statute of repose.

Property of public dominion

Instances when prescription is not allowed NO PRESCRIPTION APPLICABLE

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Right of reversion or reconveyance to the State of the public properties registered and which are not capable of private appropriation or private acquisition does not prescribe Note: In contrast, where private property is taken by the Government for public use without first acquiring title thereto either through expropriation or negotiated sale , the owner’s action to recover the land or the value thereof does not prescribe.

UST LAW PRE-WEEK NOTES 2017 Prescription or limitation of actions ACTIONS Recover Movables

Recover Immovables

Mortgage Action Based on written contract Note: If contract is oral or quasi, prescriptive period is 6 years (NCC, Art. 1145) Based on obligation created by law Based on judgment Based upon an injury to the rights of plaintiff Based on quasi‐delicts

Non-compliance with any condition imposed

PRESCRIPTIVE PERIOD 8 years (good faith)or 4 years (bad faith) from the time the possession is lost (NCC, Art. 1140, Pineda Succession and Prescription, p. 666, 2009) 30 years (Recover ownership) (NCC, Art. 1141)

Act of ingratitude

OBLIGATIONS Essential elements of an obligation: 1. 2. 3. 4.

A: Civil obligation is a juridical necessity to give, to do and not to do. It gives the creditor the legal right to compel by an action in court the performance of such obligation.

10 years from the day judgment became final and executory (NCC, Art. 1144) 4 years

A natural obligation is based on equity and natural law. There is no legal right to compel performance thereof but if the debtor voluntarily pays it, he cannot recover what was paid.

4 years (NCC, Art. 1146)

SOURCES OF OBLIGATIONS

1 year

Q: What are the sources of obligations?

1 year (NCC, Art. 1147)

A: The sources of obligations are the following: (1) Law; (2) Contracts; (3) Quasi-contracts; (4) Acts or omissions punished by law; and (5) Quasi-delicts. (Art. 1157, NCC)

5 years (NCC, Art. 1149)

Period of prescription of action for revocation or reduction of donation BASIS Birth of child

PRESCIPTIVE PERIOD 4 years

Legitimation

4 years

Recognition of an illegitimate child

4 years

Adoption

4 years

Appearance of a child believed to be dead

4 years

Juridical tie or vinculum juris or efficient cause Active subject [creditor (CR) or obligee] Passive subject [debtor (DR) or obligor] Object or prestation

Q: Distinguish briefly but clearly between: Civil obligation and natural obligation. (2015, 2004, 1989 BAR)

10 years from the time the right of action accrues

All other actions not specified

1 year

From the time the donor had learned of the donee’s act of ingratitude, provided it was possible for him to file an action.

PART IV – OBLIGATIONS AND CONTRACTS

10 years (Recover real right of possession) (NCC, Art. 555 (4), Pineda Succession and Prescription, p. 667, 2009) 10 years from default of mortgagor (NCC, Art. 1142) 10 years

Forcible entry and detainer Defamation

4 years

From the noncompliance with the condition

Q: What are obligations without an agreement”? Give five examples of situations giving rise to this type of obligation. (2007 BAR)

RECKONING PERIOD From the birth of the first child From birth of the legitimated child, not from the date of marriage of the parents From the date the recognition of the child by any means enumerated in Article 712 of the Family Code From the date of filing of the original petition for adoption, provided a decree of adoption is issued thereafter From the date an information was received as to the existence or survival of the child believed to be dead

A: “Obligations without an agreement” are obligations that do not arise from contract such as those arising from: (1) delicts; (2) quasi-delicts; (3) solution indebiti; (4) negotiorum gestio; and (5) all other obligations arising from law. 1. Obligation Ex Lege Obligations derived from law are NOT presumed. Only those expressly determined in the Code or in special laws are demandable and shall be regulated by the precepts of the law which establishes them and as to what has not been foreseen by the provisions of Book IV of NCC (Art. 1158). What are the characteristics of a legal obligation? The following are the characteristics of a legal obligation: 1. Does not need the consent of the obligor; 2. Must be expressly set forth in the law creating it and not merely presumed; and 3. In order that the law may be a source of obligation, it should be the creator of the obligation itself (NCC, Art. 1158). 2. Obligation Ex Contractu What are the requisites of a contractual obligation?

23

CIVIL LAW The following are the requisites of a contractual obligation: 1. It must contain all the essential requisites of a contract (NCC, Art. 1318). 2. It must not be contrary to law, morals, good customs, public order, and public policy (NCC, Art. 1306).

Q: What is the effect of the acquittal of the accused in a criminal case to his civil liability arising from said crime of which he is charged? A: When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proven beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only preponderance of evidence (NCC, Art. 29).

What rules govern the obligations arising from contracts? GR: These obligations arising from contracts shall be governed primarily by the stipulations, clauses, terms and conditions of the parties’ agreements.

But where the judgment of acquittal contained a declaration that no negligence can be attributed to the accused and that the fact from whih the civil action might arie did not exist, such acquittal in the criminal action carried with it extinction of civil responsibility arising therefrom (Catillo v. CA, 176 SCRA 591).

XPN: Contracts with prestations that are unconscionable or unreasonable (Pineda, 2009). What is the principle of autonomy of will?

5. Obligations Ex Quasi- Delicto It is that principle which states that obligations arising from contracts have the force of law between the contracting parties and should be complied with in good faith (NCC, Art. 1159).

Q: What is a quasi-delict? A: A quasi-delict is a separate legal institution under the Civil Code entirely apart and independent from a delict or crime. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation is called a quasi-delict.

Q: Can damages suffered by a party during the period of negotiations be recovered, if the contract is not finally perfected? YES. This is a case of a “pre-contractual obligation”. The offer, however, must be clear and definite, thus leading the offeree in good faith to incur expenses in the expectation of entering into the contract; and the withdrawal of the offer must be without any legitimate cause.

What are the elements of a quasi-delict (DANC) 1. Negligent or wrongful act or omission; 2. Damage or injury caused to another; 3. Causal relation between such negligence or fault and damage; 4. No pre-exisitng contractual relationship between the parties (NCC, Art. 2176).

3. Obligation Ex Quasi- Contractu Q: What is a quasi-contract? A: A quasi-contract is a juridical relation which arises from certain lawful, voluntary, and unilateral acts, to the end that no one may be unjustily enriched or benefited at the expense of another. The act giving rise to quasi-contract must be lawful, thereby distinguishing it from crime, in which the act or omission is unlawful; it must be voluntary, thus differentiating it from quasi-delict, which is based on fault or negligence or mere lack of foresight; and it must be unilateral, to distinguish it from contract in which there are two parties who come to an agreement.

NATURE AND EFFECTS OF OBLIGATIONS In obligations to give, what are the different rights which are available to the creditor? We must distinguish between the rights which are available to the creditor when the obligation is determinate and those which are available to him when the obligation is indeterminate or generic. If the obligation is determinate in the sense that the object thereof is particularly designated or physically segregated from all others of the same class, the rights of the creditor are:

What are the characteristics of a quasi-contract? 1. It must be lawful 2. It must be voluntary 3. It must be unilateral (Pineda, 2000)

1. To compel specific performance (NCC, Art. 1165, par.1) 2. To recover damages in case of breach of the obligation (NCC, Art. 1170).

What does the concept of presumptive consent mean? It means that since a quasi-contract is a unilateral contract created by the sole act(s) of the gestor, there is no express consent given by the other party. The consent needed in a contract is provided by law through presumption (Pineda, 2000).

If the obligation is indeterminate or generic, the rights of the creditor are: 1. 2.

4. Obligations Ex Delicto 3. 1. 2. 3.

What is the extent of civil liability arising from crimes? (IRR)Restitution Reparation for damage caused Indemnity for consequential damages (Art. 104, RPC)

To ask for performance of the obligation (NCC, Art. 1246) To ask that the obligation be complied with at the expense of the debtor (NCC, Art. 1165, par. 2) To recover damages in case of breach of the obligation (NCC, Art. 1170)

1. Delay (Mora) What are the requisites of delay (mora)? 1. Obligation must be due, demandable and liquidated; 2. Debtor fails to perform his positive obligation on the date agreed upon; 3. A judicial or extra-judicial demand made by the creditor upon the debtor to fulfill, perform or comply with his obligation; and 4. Failure of the debtor to comply with such demand.

Q: What amount of proof or evidence is required in order to recover on civil liability arising from a crime? A: IT DEPENDS. If the claim is made in a criminal case, then the proof of the facts giving rise to the liability must be beyond reasonbale doubt; this degree of proof is necessary for the conviction of the accused, and unless there is a judgment of conviction, there can be no pronouncement of civil liability in the criminal case. But if the claim for indemnity is made in a civil case, a mere preponderance of evidence is necessary.

2. Mora Solvendi What are the requisites of mora solvendi? The following are its requisites:

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UST LAW PRE-WEEK NOTES 2017 1. 2. 3. 4.

Obligation pertains to the debtor; Obligation is determinate, due and demandable, and liquidated; Obligation has not been performed on its maturity date; There is judicial or extrajudicial demand by the creditor; (Pineda, 2009)

a. The obligation or the When different dates for law expressly so the performance of dictates; obligation is fixed by the parties. b. Time is of the essence;

When shall demand by the creditor be not necessary in order that delay may exist?

XPNs

In the following instances: 1. 2.

3.

When the obligation or the law expressly so declares; or When from the nature and the circumstances of the obligation it appears that the designation of time when the thing is to be delivered or the service is to be rendered was a controlling motive for the establishment of the contract; or When demand would be useless, as when the obligor has rendered it beyond his power to perform [Art. 1169 (2), NCC].

d. Debtor has acknowledged that he is in default. 5. Fraud What are the kinds of fraud under the Civil Code? The following are the kinds of fraud under the Civil Code.

What are the effects of mora solvendi?

Basis

The following are its effects: 1. 2. 3.

c. Demand would be useless, as debtor has rendered it beyond his power to perform; or

Time of occurrence

Debtor may be liable for damages or interests; When the obligation has for its object a determinate thing, the debtor may bear the risk of loss of the thing even if the loss is due to fortuitous event; and Rescission or resolution.

3. Mora Accipiendi

Consent

What are the requisites of mora accipiendi? (CPR) The following are its requisites: 1. Offer of Performance by a capacitated debtor; 2. Offer must be to Comply with the prestation as it should be performed; and 3. Refusal of the creditor without just cause.

Effect Remedy

Fraud in the performance It occurs after the valid execution of the contract. It is employed in the performance of a pre-existing obligation; Consent is free and not vitiated; It is not a ground for annulment of the contract; Action for damages only.

What are the effects of mora accipiendi?

They are the following: Basis Nature

Dolo causante It is the efficient cause to the giving of consent to the contract;

Effect

It renders the contract voidable;

Remedy

4. Compensatio Morae

Annulment damages.

with

What are the rules on Compensatio Morae? The following are the rules on compensatio morae:

Time of delay

Reciprocal Obligations

Default or delay begins from extrajudicial or judicial demand – mere expiration of the period fixed is not enough in order that debtor may incur delay.

Delay by the other party begins from the moment one of the parties fulfills his obligation.

Consent is vitiated by serious deception or misrepresentation; It is a ground for annulment of the contract; Action for annulment with damages.

What are the different classes of fraud in the perfection?

The following are its effects: 1. Responsibility of debtor is limited to fraud and gross negligence 2. Debtor is exempted from risk of loss of thing; creditor bears risk of loss 3. Expenses by debtor for preservation of thing after delay is chargeable to creditor 4. If the obligation bears interest, debtor does not have to pay it from time of delay 5. Creditor liable for damages 6. Debtor may relieve himself of obligation by consigning the thing

Unilateral Obligations

Fraud in the perfection It occurs before or simultaneous with the creation or perfection of the obligation;

Dolo incidente It is not the efficient cause for the giving of consent to the contract; It does not affect the validity of the contract; Contract remains valid. Remedy is claim for damages only.

What are the remedies of the defrauded party? He may avail of the following remedies: 1. Specific performance (NCC, Art. 1233) 2. Resolution of the contract (NCC, Art. 1191) 3. Damages, in either case 6. Fortuitous Event (2002, 2008 BAR) What are the requisites in order that an event be considered fortuitous? (CODE) The following are the requisites: 1. Cause of breach is independent of the will of the debtor; 2. The Event is unforeseeable or unavoidable; 3. Occurrence renders it absolutely impossible for the debtor to fulfill his obligation in a normal manner - impossibility

25

CIVIL LAW

4.

must be absolute not partial, otherwise not force majeure; and Debtor is free from any participation in the aggravation of the injury to the creditor.

2.

Personal obligations- the court determines the retroactive effect of the condition fulfilled (NCC, Art. 1187)

What are the effects of fulfillment of resolutory condition?

The fortuitous event must not only be the proximate cause but it must also be the only and sole cause. Contributory negligence of the debtor renders him liable despite the fortuitous event (Pineda, 2000). If the negligence was the proximate cause, the obligation is not extinguished. It is converted into a monetary obligation for damages.

The following are its effects in: 1. Real obligations: a. The parties shall return to each other what they have received (mutual restitution). b. Obligation is extinguished. c. In case of loss, deterioration or improvement of the thing, Art. 1189, with respect to the debtor, shall be applied to the party who is bound to return (NCC, Art. 1190). 2. Personal obligations – the courts shall determine, in each case, the retroactive effect of the condition that has been complied with (NCC, Art. 1187; Art. 1190).

Q: Is there a liability for loss due to fortuitous event? A: GR: There is no liability for loss in case of fortuitous event. XPNs: 1. Law 2. Nature of the obligation requires the assumption of risk 3. Stipulation 4. The debtor is guilty of dolo, malice or bad faith, has promised the same thing to two or more persons who does not have the same interest (NCC, Art. 1165) 5. The debtor contributed to the loss (Tan v. Inchausti & Co., G.R. No. L-6472, March 7, 1912) 6. The possessor is in bad faith (NCC, Art. 552) 7. The obligor is guilty of fraud, negligence or delay or if he contravened the tenor of the obligation (Juan Nakpil v. United Construction Co., Inc. v. CA, G.R. No. L-47851, April 15, 1988)

Q: Distinguish between the effects of suspensive and resolutory conditions upon an obligation. (1988 Bar) A: It is evident that a resolutory condition affects the obligation to which it is attached in a manner which is diametrically opposed to that of a suspensive condition. If the suspensive condition is fulfilled, the obligation arises or becomes effective if the resolutory condition is fulfilled, the obligation is extinguished. If the first is not fulfilled, the juridical relation is created; if the second is not fulfilled, the juridical relation is consolidated. In other words, in the first, rights are not yet acquired, but there is a hope or expectancy that they will soon be acquired; in the second, rights are already acquired, but subject to the threat of extinction (8 Manresa, 5th Ed., Bk. 1, p. 311.)

What are the effects of fortuitous events? 1. On determinate obligation – The obligation is extinguished 2. On generic obligation – The obligation is not extinguished

2. Obligations With a Period Q: What are the rules in an obligation with a period or a term?

KINDS OF OBLIGATIONS

A: GR: Whenever in an obligation a period is designated, it is presumed to have been established for the benefit of both the creditor and the debtor

1. Pure and Conditional Obligations Q: What is a pure obligation?

XPN: When it appears from the tenor of the period or other circumstances that it was established for the benefit of one of the parties (NCC, Art. 1196).

A: An obligation whose performance does not depend upon a future or uncertain event, or upon a past event or upon a past event unknown to the parties, demandable at once (NCC, Art. 1179).

1.

Q: What is a conditional obligation? A: An obligation subject to a condition and the effectivity of which is subordinated to the fulfillment or non-fulfillment of a future and uncertain event, or upon a past event unknown to the parties (Pineda, 2009).

2.

Q : What is a potestative Condition? (1997, 2000, 2003 BAR) A: A condition which depends upon the will of one of the contracting parties (NCC, Art. 1182).

What are the effects of the term/period?When it is for the benefit of the creditor – Creditor may demand the performance of the obligation at any time but the debtor cannot compel him to accept payment before the periode expires (e.g. “on demand”) When it is for the benefit of the debtor – Debtor may oppose any premature demand on the part of the creditor for performance of the obligation, or if he so desires, he may renounce the benefit of the period by performing his obligation in advance (Manresa).

Q: In what instances may the court fix the period for the parties? (1991, 1997, 2003 BAR)

What are the effects of fulfillment of the suspensive condition? (1999 BAR)

A: In the following instances: 1. If the obligation does not fix a period, but from its nature and circumstances it can be inferred that a period was intended by the parties. 2. If the duration of the period depends upon the will of the debtor. (1997, 2003 BAR) 3. In case of reciprocal obligations, when there is a just cause for fixing the period. 4. If the debtor binds himself when his means permit him to do so.

The following are its effects in: 1. Real obligations GR: Retroacts to the day of the constitution of the obligation. XPNs: There is no retroactive effect with respect to the fruits and interest: a. In reciprocal obligations, the fruits and interests shall be deemed to have been mutually compensated; b. In unilateral obligations, the debtor appropriates the fruits and interest received before the fulfillment of the condition unless from the nature and circumstances of the obligation it should be inferred that the intention of the person constituting the same was different (NCC, Art. 1187)

NOTE: Once fixed by the courts, the period cannot be changed by the parties. 3. Alternative Obligations

26

UST LAW PRE-WEEK NOTES 2017 Q: Distinguish between alternative obligations.

facultative

obligations

and

DUE TO FORTUITOUS DUE TO DEBTOR’S EVENT FAULT Choice Belongs to Debtor All are Debtor released Creditor shall have a lost from the obligation right to be indemnified for damages based on the value of the last thing which disappeared/ last service which became impossible Some but Debtor shall deliver Debtor shall deliver not all that which he shall that which he shall are lost choose from among choose from among the the remainder remainder without damages Only one Deliver that which remains remains Choice Belongs to Creditor All are Debtor released Creditor may claim the lost from the obligation price/value of any of them with indemnity for damages Some but Creditor may choose Creditor may claim any not all from among the of those subsisting OR are lost remainder or that he may choose any of which remains if those were lost, but it is only one subsists the price/value of with right to damages that can be claimed Only one Deliver that which remains. In case of fault of remains debtor, creditor has a right to indemnity for damages

A: BASIS Number of prestation Manner of compliance

FACULTATIVE OBLIGATIONS Only one object is due May be complied with by substitution of one that is due

Right to choose

Choice pertains only to debtor

Effect of fortuitous loss

Fortuitous loss extinguishes the obligation

Effect of culpable loss

Culpable loss obliges the debtor to deliver substitute prestation without liability to debtor

Liability of the debtor

When substitution has been made and communicated to the creditor, the obligor is liable for the loss of the thing on account of delay, negligence or fraud

Void prestation

If principal obligation is void, the creditor cannot compel delivery of the substitute

Impossibility of prestation

If there is impossibility to deliver the principal thing or prestation, the obligation is extinguished, even if the substitute obligation is valid

Loss of substitute

Loss of the substitute before the substitution is made through the fault of the debtor doesn’t make him liable

ALTERNATIVE OBLIGATIONS Several objects are due May be complied with by fulfilling any of those alternately due GR: Choice pertain to debtor XPN: Expressly granted to creditor or third person Fortuitous loss of all prestation will extinguish the obligation Culpable loss of any object due will give rise to liability to debtor The creditor shall have the right of indemnity for damages when, through the fault of the debtor, all the things which are alternatively the object of the obligation have been lost or the compliance of the obligation has become impossible. If one prestation is void, the others that are free from any vices of consent preserve the validity of the obligation If some prestations are impossible to perform except one - this one must be delivered. If all prestations are impossible to perform, the obligation is extinguished Where the choice is given to the creditor, the loss of the alternative through the fault of the debtor renders him liable for damages

4. Joint and Solidary Obligations What are the consequences of a joint obligation? The following are its consequences: 1. Each debtor is liable only for a proportionate part of the entire debt 2. Each creditor, if there are several, is entitled only to a proportionate part of the credit 3. The demand made by one creditor upon one debtor, produces effects of default only as between them 4. Interruption of prescription caused by the demand made by one creditor upon one debtor, will NOT benefit the cocreditors or the co-debtors 5. Insolvency of a debtor will not increase the liability of his co-debtor 6. Vices of each obligation emanating from a particular debtor or creditor will not affect the others 7. In indivisible or joint obligation, the defense of res judicata of one does not extend to the others. What are the rules in solidary obligations? The rules are the following: 1. Anyone of the solidary creditors may collect or demand payment of the whole obligation; there is mutual agency among solidary debtors (NCC, Arts. 1214, 1215). 2. Any of the solidary debtor may be required to pay the whole obligation; there is mutual guaranty among solidary debtors (NCC, Arts. 1216, 1217, 1222). 3. Each one of solidary creditors may do whatever maybe useful to the others, but not anything prejudicial to them (NCC, Art. 1212); however, any novation, compensation, confusion or remission of debt made by any solidary creditors or with any of the solidary debtors shall extinguish the obligation without prejudice to that solidary creditor’s liability for the shares of other solidary creditors (NCC. Art. 1215; Art. 1219).

Q: What are the effects of loss of objects in alternative obligations?

NOTE: Solidarity is never presumed. There is solidary liability only when:

A:

1. 2.

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The obligation expressly so states; The law expressly provided for solidarity;

CIVIL LAW 3. 4.

The nature of the obligation requires solidarity (Art. 1207); and A solidary responsibility is imposed by a final judgment upon several defendants (Tolentino, 2002).

The following persons: 1. Debtor himself 2. His heirs and assigns 3. His agents and representatives 4. Third persons who have a material interest in the fulfilment of the obligation

5. Divisible and Indivisible Obligations Q: What is the test of divisibility of the obligation?

Q: What is the rule in case payment is made by third persons?

A: The test is: whether or not the prestation is susceptible of partial performance, in the sense of the possibility of realizing the purpose which the obligation seeks to obtain. If a thing could be divided into parts and as divided, its value is impaired disproportionately, that thing is indivisible (Pineda, 2009).

A: GR: The creditor is not bound to accept payment or performance by a third person. XPNs: 1. When made by a third person who has interest in the fulfillment of the obligation 2. Contrary stipulation (NCC, Art. 1236)

What are the Effects of illegality of a part of a contract? 1. 2.

Divisible contract – illegal part is void and unenforceable. Legal part is valid and enforceable (NCC, Art. 1420). Indivisible contract – entire contract is indivisible and unenforceable.

Q: What are the rights of a third person who made the payment?

6. Obligations with a Penal Clause

A: The following are his/her rights: 1. If the payment was made with knowledge and consent of the debtor: a. Can recover entire amount paid (absolute reimbursement) b. Can be subrogated to all rights of the creditor.

GR: The creditor cannot demand the fulfillment of the obligation and the satisfaction of the penalty at the same time (NCC, Art. 1227). XPNs: 1. When the right has been clearly granted to him; 2. If the creditor has decided to require the fulfillment of the obligation, the performance thereof should become impossible without his fault, the penalty may be enforced (NCC, Art. 1227).

2.

EXTINGUISHMENT OF OBLIGATIONS

If the payment was made with without knowledge or against the will of the debtor – can recover only insofar as payment has been beneficial to the debtor (right of conditional reimbursement)

Q: To whom may payment be made? A: Payment may be made to: 1. The person in whose favor the obligation has been constituted 2. His successor in interest, or 3. Any person authorized to receive it (NCC, Art. 1240).

Q: What are the Principal modes of extinguishment of obligations? (PaLoCo3N) A: They are the following: 1. Payment or performance 2. Loss of the thing due 3. Condonation or remission of debt 4. Confusion or merger 5. Compensation 6. Novation (Art. 1231)

Q: What is the rule is payment was made to an unauthorized person? A: GR: Payment to an unauthorized person is not a valid payment (NCC, Art. 1241).

Other Modes (PARF) 7. Annulment 8. Rescission 9. Fulfillment of a resolutory condition 10. Prescription (Art. 1231)

Payment made by the debtor to a wrong party does not extinguish the obligation as to the creditor, if there is no fault or negligence which can be imputed to the latter (Allied Banking Corp. v. Wan, et al., G.R. No. 133179, March 27, 2008).

NOTE: The enumeration is not exclusive.

XPNs:

1. Payment or Performance

1.

Q: What is meant by payment?

2.

A: Payment is the fulfilment of the prestation due, a fulfilment that extinguishes the obligation by the realization of the purposes for which it is constituted (Jurado, 2010). (1998, 2009 BAR) Payment may consist not only in the delivery of money but also the giving of a thing (other than money), the doing of an act, or not doing of an act (NCC, Art. 1232).

Payment to an incapacitated person if: a. He kept the thing delivered, or b. It has been beneficial to him (Art. 1241) Payment to a third person insofar as it redounded to the benefit of the creditor Benefit to the creditor need not be proved: (RRE) a. If after the payment, the third person acquires the creditor’s Rights (Assignment); b. If the creditor Ratifies the payment to the third person (Ratification); c. If by the creditor’s conduct, the debtor has been led to believe that the third person had authority to receive the payment (Estoppel) (NCC, Art. 1241).

What are the requisites of a valid payment? (P3AD) The following are its requisites: 1. Capacity of the Person who pays 2. Capacity of the Person to whom payment is made 3. Propriety of the time, place, and manner of payment 4. Acceptance of the payment by the creditor 5. Delivery of the full amount or the full performance of the prestation

3.

Payment in good faith to the possessor of credit (NCC, Art. 1242)

Payment made to the creditor by the debtor after the latter has been judicially ordered to retain the debt shall not be valid (NCC, Art. 1243).

Who may effect payment and compel the creditor to accept the payment?

Special Forms of Payment

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UST LAW PRE-WEEK NOTES 2017 Q: What are the effects of partial loss?

Dation in Payment Dacion en pago is the delivery and transmission of ownership of a thing by the debtor to the creditor as an accepted equivalent of the performance of an existing obligation. It is a special mode of payment where the debtor offers another thing to the creditor who accepts it as equivalent to the payment of an outstanding debt (Oscar Villarta v. Gaudioso Talavera Jr., G.R. No. 208021, February 3, 2016). Application of Payment Designation of the particular debt being paid by the debtor who has two or more debts or obligations of the same kind in favor of the same creditor to whom the payment is made (Pineda, 2009). Payment by Cession Debtor cedes his property to his creditors so the latter may sell the same and the proceeds realized applied to the debts of the debtor (Pineda, 2009). Tender of Payment Voluntary act of the debtor whereby he offers to the creditor for acceptance the immediate performance of the former’s obligation to the latter. It is an antecedent of the consignation, that is an act preparatory to the consignation (Pineda, 2009). Consignation Act of depositing the object of the obligation with the court or competent authority after the creditor has unjustifiably refused to accept the same or is not in a position to accept it due to certain reasons or circumstances. It generally requires a prior tender of payment (Pineda, 2009).

1. 2.

Q: What are the effects when the thing is lost in the possession of the debtor? A: GR: It is presumed that loss is due to debtor’s fault. XPN: Presumption shall not apply in case loss is due to earthquake, flood, storm or other natural calamity (Art. 1262) XPN to the XPN: Debtor still liable even if loss is due to fortuitous event when: 1. Debtor incurred in delay; or 2. Debtor promised to deliver the thing to two or more persons with different interests [NCC, Art. 1165 (3)]? 3. Condonation and Remission of Debt (2000 BAR) Q: What are the requisites of condonation? A: Its requisites are the following: 1. Renunciation of the debt is purely gratuitous; 2. Acceptance by the debtor; 3. Must not be inofficious; 4. Formalities provided by law on donations must be complied with if condonation is express; and 5. An existing demandable debt.

2. Loss of the Things Due Q: When is a thing is considered lost? (DOPE) A: A thing is considered lost if: 1. It Disappears in such a way that its existence is unknown; 2. It goes Out of commerce; 3. It Perishes; or 4. Its Existence is unknown or if known, it cannot be recovered.

Q: What is the effect of the remission of the principal debt with respect to the accessory obligation and vice versa? A: The renunciation of the principal debt shall extinguish the accessory but the waiver of the latter shall leave the former in force (NCC, Art. 1273).

Q: What are the effects of loss of the thing/object of the obligation?

4. Confusion or Merger of Rights

A: If the obligation is a: 1. Determinate obligation to give:

Q: What are the requisites of confusion or merger of rights?

GR: The obligation is extinguished when the object of the obligation is lost or destroyed (NCC, Art. 1262). XPNs: (LAS-CD-PCG) a. Law provides otherwise (NCC, Art. 1262) b. Nature of the obligation requires the Assumption of risk (Ibid) c. Stipulation to the contrary (Ibid) d. Debtor Contributed to the loss (Ibid) e. Loss the of the thing occurs after the debtor incurred in Delay (Ibid) f. When debtor Promised to deliver the same thing to two or more persons who do not have the same interest (Art. 1165) g. When the debt of a certain and determinate thing proceeds from a Criminal offense (NCC, Art. 1268) h. When the obligation is Generic (NCC, Art. 1263) 2.

A: They are the following: 1. Merger in the same person of the characters of both a creditor and debtor (Art. 1275); 2. Must take place in the persons of a principal creditor and a principal debtor(Art. 1276); and 3. Merger is definite and complete. Q: What is the effect of confusion or merger of rights? A: The obligation is extinguished from the time the characters of creditor and debtor are merged in the same person (NCC, Art. 1275). Q: What is the effect of confusion or merger in one debtor or creditor in a joint obligation? A: GR: Joint obligation is not extinguished since confusion is not definite and complete with regard to the entire obligation. A part of the obligation still remains outstanding. XPN: Obligation is extinguished with respect only to the share corresponding to the DR or CR concerned. In effect, there is only partial extinguishment of the entire obligation. (NCC, Art. 1277; Pineda, 2000)

Generic obligation to give: GR: The obligation is not extinguished because a generic thing never perishes (genus nun guam perit) (NCC, Art. 1263). XPNs: a. In case of generic obligations whose object is a particular class or group with specific or determinate qualities (delimited generic obligation) b. In case the generic thing has already been segregated or set aside, in which case, it has become specific.

3.

A: Due to the fault or negligence of the debtor – Creditor has the right to demand the rescission of the obligation or to demand specific performance, plus damages, in either case. Due to fortuitous event: a. Substantial loss – obligation is extinguished. b. Unsubstantial loss – the creditor shall deliver the thing promised in its impaired condition (Art. 1264).

Q: What is the effect of confusion or merger in one debtor or creditor in a solidary obligation? A: If a solidary debtor had paid the entire obligation, the obligation is totally extinguished without prejudice to the rights of the solidary debtor who paid, to proceed against his solidary

An obligation to do – the obligation is extinguished when the prestation becomes legally or physically impossible without the fault of the obligor (NCC, Art. 1266).

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CIVIL LAW co- debtors for the latter’s individual contribution or liability (Pineda, 2000).

1. Autonomy (Art. 1306); (1996, 2004 BAR) 2. Mutuality (Art. 1308); (2001, 2004, 2008 BAR) 3. Obligatoriness and consensuality (Art. 1315); 4. Relativity (Art. 1311). (1991, 1996, 2002 BAR) NOTE: The basic principle of relativity of contracts is that contracts can only bind the parties who entered into it, and cannot favor or prejudice a third person, even if he is aware of such contract and has acted with knowledge thereof. Hence, one who is not a party to a contract, and for whose benefit it was not expressly made, cannot maintain an action on it (Juana Vda. De Rojales v. Marcelino Dime, G.R. No. 194548, February 10, 2016).

Q: When is confusion or merger of rights revoked? A: If the act which created the confusion is revoked for some causes such as rescission of contracts, or nullity of the will or contract, the confusion or merger is also revoked. The subject obligation is revived in the same condition as it was before the confusion. NOTE: During such interregnum, the running of the period of prescription of the obligation is suspended (Pineda, 2000).

CONSENT (2005 BAR)

5. Compensation

Q: What are the elements of consent?

Q: What are the requisites of compensation (1998, 2002, 2008, 2009 BAR)

A: The following are its elements: 1. Legal capacity of the contracting parties; 2. Manifestation of the conformity of the contracting parties; 3. Parties’ conformity to the object, cause, terms and condition of the contract must be intelligent, spontaneous and free from all vices of consent; and 4. The conformity must be Real.

A: They are the following: 1. Each one of the obligors must be bound principally, and that he be at the same time a principal creditor of the other except guarantor who may set up compensation as regards what the creditor may owe the principal (NCC, Art. 1279, 1280); 2. Both debts consist in sum of money, or if the things due are consumable, they be of the same kind and also of the same quality if the latter has been stated; 3. Both debts are due; 4. Both debts are liquidated and demandable; 5. Neither debt must be retained in a controversy commenced by third person and communicated in due time to the debtor (neither debt is garnished) (NCC, Art. 1279).

Q: What are the requisites of a valid consent? A: For consent to be valid, the following requisites should be present: 1. It must be Intelligent, or with an exact notion of the matter to which it refers; 2. Free; and 3. Spontaneous.

When all the requisites mentioned in Art. 1279 of the Civil Code are present, compensation takes effect by operation of law, and extinguishes both debts to the concurrent amount, even though the creditors and debtors are not aware of the compensation (NCC, Art. 1290).

Who are the persons incapacitated to give consent? They are the following: 1. Deaf-mutes who do not know how to read and write (illiterates) 2. Insane or demented persons, unless the contract was entered into during a lucid interval 3. Minors (Art. 1327) EXCEPT: a. Contracts for necessaries (NCC, Art. 1489) b. Contracts by guardians or legal representatives and the court having jurisdiction had approved the same c. When there is active misrepresentation on the part of the minor (minor is estopped) d. Contracts of deposit with the Postal Savings Bank provided that the minor is over 7 years of age e. Upon reaching age of majority – they ratify the same

6. Novation Q: What are the requisites of novation? A: They are the following: 1. Valid old obligation 2. Intent to extinguish or to modify the old obligation 3. Capacity and consent of all the parties to the new obligation (except in case of expromission where the old debtor does not participate) 4. Substantial difference of the old and new obligation – on every point incompatible with each other (implied novation) 5. Valid new obligation

What are the vices of consent? 1. 2. 3. 4. 5.

Novation is never presumed, it must be proven as a fact either by: 1. 2.

Explicit declaration – if it be so declared in unequivocal terms; or Material incompatibility – that the old and the new obligations be on every point incompatible with each other (Art. 1292).

Mistake Intimidation Violence Undue influence Fraud KINDS OF CONTRACT

Q: Distinguish consensual from real contracts and name at least four (4) kinds of real contracts under the present law. (3%) (1998 Bar)

CONTRACTS

A: Consensual contracts are those which are perfected by mere consent (NCC, Art. 1315). Real contracts are those which are perfected by the delivery of the object of the obligation (NCC, Art. 1316).

1. Essential Requisites of A Contract (2005 BAR) Q: What are the essential requisites of a contract? A: They are the following: 1. Consent; 2. Object or subject matter; and 3. Cause or consideration.

Examples of real contracts are deposit, pledge, commodatum and simple loan (mutuum). OBJECTS, CAUSE, AND FORMS OF CONTRACTS

Q: What are the characteristics of a contract ? (AMOR)

Object

A: The following are its characteristics:

Q: What are the requisites of an object? (DELiCT)

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UST LAW PRE-WEEK NOTES 2017 A: 1. 2. 3. 4. 5.

1. 2.

Determinate as to kind (even if not determinate, provided it is possible to determine the same without the need of a new contract); Existing or the potentiality to exist subsequent to the contract; Must be Licit; Within the Commerce of man; and Transmissible.

3.

4.

Cause 5. Q: What are the requisites of a cause? (LET) A: 1. It must Exist; 2. Be True; and 3. Be Licit. NOTE: Every contract is presumed to have a cause; and such cause is lawful.

REFORMATION OF INSTRUMENTS Q: What is reformation of instruments and what are its requisites?

Formality Q: What is the rule on formality of contracts?

A: It is a remedy to conform to the real intention of the parties due to mistake, fraud, inequitable conduct, accident (NCC, Art. 1359).

A: GR: Form is not required in consensual contracts. XPNs: When the law requires a contract be in writing for its: 1. Validity (formal contracts); or 2. Enforceability (under Statute of Frauds). 3. For the convenience of the parties

The following are its requisites: 1.

NOTE: The parties may compel each other to reduce the verbal agreement into writing. (2006 BAR)

3. 4.

5.

6.

Meeting of the minds to the contract NOTE: When there is no meeting of the minds, the proper remedy is annulment and not reformation (Pineda, 2000)

Formalities required in specific contracts 1. Donations a. Personal property- if value exceeds 5,000, the donation and acceptance must both be written (NCC, Art. 748). b. Real property: i. Donation must be in a public instrument, specifying therein the property donated and value of charges which donee must satisfy. ii. Acceptance must be written, either in the same deed of donation or in a separate instrument. iii. If acceptance is in a separate instrument, the donor shall be notified thereof in authentic form, and this step shall be noted in both instruments (NCC, Art. 749). 2.

Donation of real properties (NCC, Art. 719); Partnership where immovable property or real rights are contributed to the common fund (NCC, Arts. 1171 & 1773); Acts and contracts which have for their object the creation, transmission, modification or extinguishment of real rights over immovable property; sale of real property or of an interest therein is governed by Arts. 1403, No. 2, and 1405 [NCC, Art. 1358 (1)]; The cession, repudiation or renunciation of hereditary rights or of those of the conjugal partnership of gains [Art. 1358 (2)]; The power to administer property or any other power which has for its object an act appearing or which should appear in a public document or should prejudice a third person [Art. 1358 (3)]; The cession of actions or rights proceeding from an act appearing in a public document [Art. 1358 (4)].

2. 3. 4.

True intention is not expressed in the instrument By reason of: Mistake, Accident, Relative simulation, Fraud, or Inequitable conduct. Clear and convincing proof of those abovementioned.

The fundamental distinction between reformation of an instrument and annulment of a contract is that the first presupposes a perfectly valid contract in which there has been a valid meeting of the minds of the contracting parties while the second is based on a defective contract in which there has been no meeting of the minds because the consent is vitiated (Jurado, 2010). Q: What is the prescriptive period in reformation of instruments?

Partnership where real property contributed a. There must be a public instrument regarding the partnership; b. The inventory of the realty must be made, signed by the parties and attached to the public instrument (NCC, Art. 1773)

A: 10 years from the date of the execution of the instrument. INTERPRETATION OF CONTRACTS Q: What is the principle of effectiveness in contract interpretation?

Antichresis - the amount of the principal and interest must be in writing (NCC, Art. 2134).

A: Pursuant to this principle, where two interpretations of the same contract language are possible, one interpretation having the effect of rendering the contract meaningless while the other would give effect to the contract as a whole, the latter interpretation must be adopted (PNB v. Utility Assurance & Surety, Co., Inc., 177 SCRA 393, 1989).

Agency to sell real property or an interest therein authority of the agent must be in writing (NCC, Art. 1874). Stipulation to charge interest - interest must be stipulated in writing (NCC, Art. 1956). Stipulation limiting common carrier's duty of extraordinary diligence to ordinary diligence: a. must be in writing, signed by shipper or owner b. supported by valuable consideration other than the service rendered by the comon carrier c. reasonable, just and not contrary to public policy (NCC, Art. 1744).

Q: What is this together doctrine?

complementary-contracts-construed-

A: Under this doctrine, an accessory contract must be read in its entirety and together with the principal agreement (Rabuya, 2017). Thus, a promissory note and a deed of chattel mortgage must be contrued together (Rigor v. Consolidated Orix Leasing and Finance Corp., 387 SCRA 270, 2002); and the surety contract, being an accessory contract, must be interpreted with its principal contract, for instance, a loan agreement (Rabuya, 2017).

Chattel mortgage - personal property must be recorded in the Chattel Mortgage Register (NCC, Art. 2140).

Contracts which must appear in a public document:

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CIVIL LAW RESCISSIBBLE, VOIDABLE, UNENFORCEABLE, AND VOID AND INEXISTENT CONTRACTS Q: What are the kinds of defective contracts? Differentiate each other. BASIS

RESCISSIBLE

Origin of the defect

Economic damage or lesion to either one of the parties or to 3rd persons; declaration by law Suffered by – either one of parties or 3rd person Curable

Necessity of Damage/ prejudice Curable by Prescripiton Legal effect

Remedy Nature of action Who can file the action Susceptibility of ratification Susceptibility prescription

VOIDABLE (2004 BAR) Incapacity of one of parties to give consent or vitiated consent

UNENFORCEABLE

As to the other contracting party not necessary Curable

Not necessary

VOID/INEXISTENT (2004 BAR) Illegality (void) or absence of any of essential requisites of a contract (inexistent) Not necessary

Not curable

Not Curable

Valid & legally enforceable until judicially rescinded

Valid & legally enforceable until judicially annulled

Inoperative until ratified; not enforceable in court without proper ratification

A void or inexistent contract has no force and effect from the very beginning. This rule applies to contracts that are declared void by positive provision of law (Tomas Tan Jr. v. Tomas Hosana, G.R. No. 190846, February 3, 2016).

Rescission or rescissory action Must be a direct action GR: Contracting party; XPN: Defrauded Creditors Susceptible but not of ratification proper Action for rescission prescribes after 4 years

Annulment of contract Direct action needed

Only personal defense

Contracting party

Contracting party

Susceptible

Susceptible

Declaration of nullity of contract Can be attacked directly or indirectly 3rd persons cannot file unless their interest are directly affected Not Susceptible

Action for annulment prescribes after 4 years

Action for recovery; specific performance or damages prescribes (10 years if based on a written contract; 6 years if unwritten)

Entered without authority or in excess thereof; non-compliance with Statute of Frauds (2009 BAR); incapacity of both parties to give consent

Indirect attack allowed

Action for declaration of nullity or putting of defense of nullity does not prescribe

no notice or knowledge that the former would assert such rights and whose condition has so changed that the latter cannot, without injury or prejudice, be restored to his former state (Jose Go et al., v. BSP, G.R. No. 202262, July 8, 2015) (Bersamin, J.).

ESTOPPEL Q: What is the doctrine of estoppel and to whom is it applied?

NATURAL OBLIGATIONS

A: The doctrine of estoppel is an admission or representation rendered conclusive upon the person making it, and cannot be denied or disproved as against the person relying thereon (Art. 1431, NCC).

Natural obligations, not being based on positive law but on equity and natural law, do not grant a right of action to enforce their performance, but after voluntary fulfillment by the obligor, they authorize the retention of what has been delivered or rendered by reason thereof (NCC, Art. 1423).

The doctrine of estoppel is applied only to those who were parties to the contract and their privies or successors‐in‐interest (Mactan Cebu International Airport Authority v. Heirs of Ga Vina Jordan, G.R. No. 173140, January 11, 2016).

Q: Sara borrowed P50, 000.00 from Julia and orally promised to pay it within six months. When Sara tried to pay her debt on the 8th month, Julia demanded the payment of interest of 12% per annum because of Sara's delay in payment. Sara paid her debt and the interest claimed by Julia. After rethinking, Sara demanded back from Julia the amount she had paid as interest. Julia claims she has no obligation to return the interest paid by Sara because it was a natural obligation which Sara voluntarily performed and can no longer recover. Do you agree? Explain (2015 BAR).

Q: What are the different kinds of estoppel. A: There are three kinds of estoppels, to wit: (1) estoppel in pais; (2) estoppel by deed; and (3) estoppel by laches. Under the first kind, a person is considered in estoppel if by his conduct, representations, admissions or silence when he ought to speak out, whether intentionally or through culpable negligence, "causes another to believe certain facts to exist and such other rightfully relies and acts on such belief, as a consequence of which he would be prejudiced if the former is permitted to deny the existence of such facts." Under estoppel by deed, a party to a deed and his privies are precluded from denying any material fact stated in the deed as against the other party and his privies. Under estoppel by laches, an equitable estoppel, a person who has failed or neglected to assert a right for an unreasonable and unexplained length of time is presumed to have abandoned or otherwise declined to assert such right and cannot later on seek to enforce the same, to the prejudice of the other party, who has

A: NO. The case is not one of a natural obligation because even if the contract of loan is verbal, the delay of Julia made her liable for interest upon demand by Sara. This is not a case of a natural obligation but a civil obligation to pay interest by way of damages by reason of delay (NCC, Articles 1956; 1169; 2209).

PART V – SALES

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UST LAW PRE-WEEK NOTES 2017 Consummation stage in a contract of sale takes place by the delivery of the thing together with the payment of the price.

NATURE AND FORM OF CONTRACT Elements of a Contract of Sale 1.

2.

3.

Transfer of ownership

Essential elements – for validity: a. Consent b. Determinate subject matter c. Consideration Natural elements – those which are inherent in the contract, and which in the absence of any contrary provision, are deemed to exist in the contract a. Warranty against eviction b. Warranty against hidden defects Accidental elements – dependent on parties’ stipulations; Examples: a. Conditions b. Interest c. Time & Place of payment d. Penalty

It is tradition or delivery, which is a consequence of the sale that transfers ownership. Effect of Delivery GR: Title /ownership is transferred XPN: When the contrary is stipulated as in the case of: 1. Pactum reservatii in domini – agreement that ownership will remain with seller until full payment of price (Contract to sell). Contract to sell does not transfer ownership to the buyer. The seller retains ownership at the time of the execution of the contract to sell (Fabio Cahayag v. Commercial Credit Corporation, G.R. No. 168078, January 13, 2016). 2. 3. 4.

Perfection of Contract The parties must agree on the thing which is the object of the contract and the price, nothing can be left open for further arrangement. So long as there is any uncertainty or indefiniteness, or future negotiations or considerations to be had between the parties, there is not a completed contract, and in fact, there is no contract at all. (2002, 2006 BAR)

Sale on acceptance/approval Sale on return There is implied reservation of ownership

Delivery deemed effective Delivery should be coupled with intention of delivering the thing, and acceptance on the part of the buyer to give legal effect of the act. Without such intention, there is no such tradition.

Q: A real estate mortgage was executed by Julian as a security for loan they obtained from Pen. When the loans have become due and demandable, Julian failed to pay despite several demands which prompted Pen to institute foreclosure proceedings. Julian now alleges that he was required by Pen to sign an "undated, unfilled, and unnotarized" Deed of Sale, containing no consideration for the subject property. Julian offered to pay Pen the amount of P150,000.00 but the latter refused to accept the offer and demanded that he be paid the amount of P250,000.00. Upon verification with the Registry of Deeds of Quezon City, he was informed that the title to the mortgaged property had already been registered in the name of Pen. Was there a valid sale?

Delivery of incorporeal property 1. When sale is made through a public instrument (NCC, Art. 1498). 2. By placing the titles of ownership in the possession of the buyer. 3. When buyer uses and enjoys the rights pertaining to the incorporeal property with the consent of the seller (NCC, Art. 1501). When delivery does not transfer title 1. 2.

A: NO. In a sale, the contract is perfected at the moment when the seller obligates herself to deliver and to transfer ownership of a thing or right to the buyer for a price certain, as to which the latter agrees. The absence of the consideration from Julian's copy of the deed of sale was credible proof of the lack of an essential requisite for the sale. In other words, the meeting of the minds of the parties so vital in the perfection of the contract of sale did not transpire. Even assuming that Julian’s leaving the consideration blank implied the authority of Pen to fill in that essential detail in the deed of sale upon Julian's default on the loan, the deed of sale was a pactum commisorium (Sps. Pen v. Sps. Julian, G.R. No. 160408, January 11, 2016) (Bersamin, J.).

3.

4. 5.

Q: When is a contract presumed to be an equitable mortgages instead of a contract of sale? A: 1. Price unusually inadequate; 2. Possession retained by the seller as lessee or otherwise; 3. Period of redemption extended (or granted anew) upon or after the expiration of the right to repurchase; 4. Part of the purchase price retained by the seller; 5. Payment of taxes on the thing sold borne by the seller; 6. Any other case where it may be fairly inferred that the Real intention of the parties is for the transaction to secure a debt or other obligation (Art. 1602, NCC).

6. 7.

NOTE: Equitable mortgage vis-à-vis contract of sales was likewise asked in 1991 and 2005 Bar. Consummation

Sale on Trial, Approval, or Satisfaction When there is an EXPRESS RESERVATION a. If it was stipulated that ownership shall not pass to the purchaser until he has fully paid the price (NCC, Art. 1478) When there is an IMPLIED RESERVATION a. When goods are shipped, but the bill of lading states that goods are deliverable to the seller or his agent, or to the order of the seller or his agent b. When the bill of lading is retained by the seller or his agent c. when the seller of the goods draws on the buyer for the price and transmits the bill of exchange and the bill of lading to the buyer , and the latter does not honor the bill of exchange by returning the bill of lading to the seller When sale is not VALID GR: When the seller is not the owner of the goods XPNs: a. Estoppel: when the owner is precluded from denying the sellers authority to sell b. Registered land bought in good faith (Ratio: Buyer need not go beyond the Torrens title) c. Order of Courts in a Statutory Sale When the goods are purchased in a Merchant’s store, Fair or Market (NCC, Art. 1505) GR: When goods are held by a third party XPN: Third person acknowledges to the buyer that he holds the goods in behalf of the buyer (NCC, Art. 1521) On sale or return – The ownership passes to buyer upon delivery, but he may revest ownership in the seller by returning or tendering the goods within the time fixed in the contract or within reasonable time (NCC, Art. 1502).

Q: What is the effect of execution of public instrument in a contract of sale?

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CIVIL LAW A: The execution of a public instrument gives rise only to a prima facie presumption of delivery. Such presumption is destroyed when the instrument itself expresses or implies that delivery was not intended; or when by other means it is shown that such delivery was not effected, because a third person was actually in possession of the thing. In the latter case, the sale cannot be considered consummated (Equatorial Realty v. Mayfair Theater, G.R. No. 133879, November 21, 2001).

NOTE: Art. 1544 of NCC contemplates a case of double or multiple sales by a single vendor. It is necessary that the conveyance must have been made by a party who has an existing right in the thing and the power to dispose of it. CAPACITY TO BUY OR SELL GR: All persons, whether natural or juridical, who can bind themselves, have legal capacity to buy and sell [NCC, Art. 1489 (1)].

Price OPTION MONEY Money given as distinct consideration for an option contract Applies to a sale not yet perfected Prospective buyer is not required to buy. If buyer does not decide to buy, it cannot be recovered.

XPNs: 1. Minors, insane and demented persons and deaf-mutes who do not know how to write 2. Persons under a state of drunkenness or during hypnotic spell 3. Husband and wife - sale by and between spouses

EARNEST MONEY Forms part of the purchase price Given only when there is already a sale When given, the buyer is bound to pay the balance. If sale did not materialize, it must be returned. (Villanueva, 2014; Pineda, 2010)

XPN to XPN: 1. Where necessaries are sold and delivered to a minor or other person without capacity to act, he must pay a reasonable price therefor. 2. In case of sale between spouses: a. when separation of property was agreed upon in the marriage settlements; or b. when there has been a judicial separation of property agreed upon between them

Option Contract Q: Explain the nature of an option contract. (BAR 2002) A: An option contract is one granting a privilege to buy or sell within an agreed time and at a determined price. It must be supported by a consideration distinct from the price (Art. 1479 and 1482, NCC).

Absolute Incapacity Persons who are absolutely incapacitated to enter into a contract of sale 1. Unemancipated minors (NCC, Art. 1327); 2. Insane or demented persons, and deaf-mutes who do not know how to write (NCC, Art. 1327).

Effect of a simulated sale Where the deed of sale states that the purchase price has been paid but in fact has never been paid, the deed of sale is null and void ab initio for lack of consideration. Article 1471 of the Civil Code, provides that “if the price is simulated, the sale is void” (Catindig v. Vda. de Meneses, Roxas v. Court of Appeals, G.R. No. 165851 & G.R. No. 165851, February 2, 2011).

Contracts entered into during intervals by insane or demented persons are generally valid (NCC, Art. 1328); whereas, those entered into in a state of drunkenness, or during hypnotic spell, are merely voidable (NCC, Art.1328). Contracts entered into by such legally incapacitated persons are not void, but merely voidable, subject to annulment or ratification (NCC, Art. 1393).

NOTE: Annulment of contract is not a remedy because only voidable contracts may be annulled.

Relative Incapacity

Right of First Refusal

Persons who are relatively incapacitated to enter into a contract of sale 1. Spouses (NCC, Art. 1490) 2. Agents, Guardians, Executors and Administrators, Public Officers and Employees, Court Officers and Employees, and others specially disqualified by law (NCC, Art. 1491).

Q: How do you distinguish right of first refusal from an option contract? A: A right of first refusal is a contractual grant, not of the sale of a property, but of the first priority to buy the property in the event the owner sells the same. As distinguished from an option contract, in a right of first refusal, whole the object might be made determinate, the exercise of the right of first refusal would be dependent not only on the owner’s eventual intention to enter into a binding juridical relation with another but also on terms, including the price, that are yet to be firmed up (PUP v. Golden Horizon Realty Corp., 615 SCRA 478, May 15, 2010).

Lawyers are expressly prohibited from acquiring property or rights that may be the object of any litigation in which they may take part by virtue of their profession (NCC, Art. 1491(5); Peña v. De los Santos, et al., G.R. No. 202223, March 2, 2016). Special Disqualifications Persons specially disqualified by law to enter into contracts of sale (ALIEN-UnOS) 1. ALIENs who are disqualified to purchase private agricultural lands (Art. XII Secs. 3 & 7, 1987 Constitution) 2. Unpaid seller having a right of lien or having stopped the goods in transitu, is prohibited from buying the goods either directly or indirectly in the resale of the same at public/private sale which he may make (NCC, Art. 1533 [5]; Art. 1476 [4]) 3. The Officer holding the execution or deputy cannot become a purchaser or be interested directly or indirectly on any purchase at an execution (Sec. 21 Rule 39, RRC) 4. In Sale by auction, seller cannot bid unless notice has been given that such sale is subject to a right to bid in behalf of the seller (NCC, Art. 1476).

Double sales Rule governing sale of MOVABLES Ownership shall be transferred to the person who may have first taken possession in good faith. Rule governing sale of IMMOVABLES Ownership belongs to the person who: 1. In good faith first recorded the sale in the Registry of Property; or 2. If there is no inscription of sale on the title, ownership passes to the person who in good faith was first in possession; or 3. In the absence thereof, to the person who presents the oldest title, provided there is good faith.

Q: Which between Article 173 of the Civil Code and Article 124 of the Family Code should apply to the sale of the

34

UST LAW PRE-WEEK NOTES 2017 conjugal property executed without the consent of the spouse?

6.

A: Article 124, Family Code, applies to sale of conjugal properties made after the effectivity of the Family Code. The sale of conjugal property without the consent of the husband was not merely voidable but void; hence it could not be ratified. The vendees were not buyers in good faith because they did not exercise the necessary prudence to inquire into the wife’s authority to sell.

Obligations of the Buyer (PAE) 1. Payment of the price GR: Seller is not bound to deliver unless the purchase price is paid XPN: A period of payment has been fixed

In the absence of the other spouse’s consent, the transaction should be construed as a continuing offer on the part of the consenting spouse and the third person, and may be perfected as a binding contract upon the acceptance by the other spouse or upon authorization by the court before the offer is withdrawn by either or both offerors (Aggabao v. Parulan Jr., G.R. No. 165803, September 1, 2010) (Bersamin, J.).

2. Accept delivery of thing sold 3. Bear expenses for the execution and registration of the sale and putting the goods in a deliverable state, if such is the stipulation. Other Obligations of the Buyer 1. To take care of the goods without the obligation to return, where the goods are delivered to the buyer and he rightfully refuses to accept (NCC, Art. 1587); NOTE: The goods in the buyer’s possession are at the seller’s risk.

Q: What must buyers of conjugal property exercise? A: The buyers of conjugal property must observe two kinds of requisite diligence, namely: (a) the diligence in verifying the validity of the title covering the property; and (b) the diligence in inquiring into the authority of the transacting spouse to sell conjugal property in behalf of the other spouse. The omission to inquire indicated their not being buyers in good faith (Aggabao v. Parulan Jr., G.R. No. 165803, September 1, 2010) (Bersamin, J.).

2. 3.

EFFECTS OF THE CONTRACT WHEN THE THING SOLD HAS BEEN LOST Risk of Loss GR: It is understood that the thing is lost when it: 1. perishes, or 2. goes out of commerce, or 3. disappears in such a way that its existence is unknown or cannot be recovered (Art. 1189 (2)).

Maceda Law; Recto Law Q: What are the so-called "Maceda" and "Recto" laws in connection with sales on installments? Give the most important features of each law? (BAR 1999, 2000) SUGGESTED ANSWER:

Person who bears the risk of loss or deterioration

The MACEDA LAW (R.A. 6552) is applicable to sales of immovable property on installments.

Res perit domino – Seller is the owner so seller bears risk of loss (1999 BAR)

The most important features are:

Res perit domino AT PERFECTION AFTER PERFECTION BUT BEFORE DELIVERY

1.

Contract shall be without any effect – the seller bears the loss since the buyer is relieved of his obligation under the contract Seller; Deterioration & fruits – Buyer bears loss (Tolentino)

2.

Buyer becomes the owner so buyer bears risk of loss AFTER DELIVERY

Delivery extinguish ownership vis-a-vis the seller & creates a new one in favor of the buyer

Obligations of the seller (DDTWTP)

3. 4. 5.

After having paid installments for at least two years, the buyer is entitled to a mandatory grace period of one month for every year of installment payments made, to pay the unpaid installments without interest. If the contract is cancelled, the seller shall refund to the buyer the cash surrender value equivalent to 50% of the total payments made, and after five years of installments, an additional 5% every year but not to exceed 90% of the total payments made. In case the installments paid were less than 2 years, the seller shall give the buyer a grace period of not less than 60 days. If the buyer fails to pay the installments due at the expiration of the grace period, the seller may cancel the contract after 30 days from receipt by the buyer of the notice of cancellation or demand for rescission by notarial act (Rillo v. CA, G.R. No. 125347, June 19, 1997).

The RECTO LAW (Art. 1484 of the NCC) refers to sale of movables payable in installments and limiting the right of seller, in case of default by the buyer, to one of three remedies: a) demand exact fulfillment; b) cancel the sale if two or more installments have not been paid; c) foreclose the chattel mortgage on the things sold, also in case of default of two or more installments, with no further action against the purchaser.

OBLIGATIONS OF THE PARTIES

1. 2.

To be liable as a depositary if he voluntarily constituted himself as such (NCC, Art. 1587); To pay interest for the period between delivery of the thing and the payment of the price in the following cases (NCC, Art. 1589): a. should it have been stipulated; b. should the thing sold and delivered produces fruits or income; or c. should he be in default, from the time of judicial or extra-judicial demand for the payment of the price. BREACH OF CONTRACT

XPN: In an obligation to deliver a generic thing, the loss or destruction of anything of the same kind does not extinguish the obligation (Art. 1263).

BEFORE PERFECTION

Pay for the expenses of the deed of sale unless there is a stipulation to the contrary.

Deliver the thing sold (NCC, Arts. 1458&1459); Deliver fruits & accessions/accessories accruing from perfection of sale; Transfer the ownership; Warranties; Take care of the thing, pending delivery, with proper diligence;

EXTINGUISHMENT OF SALE Causes for extinguishment of sale

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CIVIL LAW 1.

2. 3.

Same causes as how an obligation is extinguished, namely: a. Payment or performance b. Loss of the thing due c. Condonation or remission of the debt d. Confusion or merger of the rights of creditor and debtor e. Compensation f. Novation g. Annulment h. Rescission i. Fulfillment of resolutory condition j. Prescription Conventional Redemption Legal redemption

the thing leased for fifteen days with the acquiescence of the lessor (Samelo v. Manotok Services, G.R. No. 170509, June 27, 2012) Q: What are the rights and obligations of parties in case of rescission? A: Rescission of the lease necessarily requires the return of the thing to the lessor. Hence, the judgment granting rescission of the contract should also order the lessee to vacate and return the leased premises to the lessor. However, since the sublessee can invoke no right superior to that of his sublessor, the moment the sublessor is duly ousted from the premises, the sublessee has no leg to stand on. The sublessee’s right, if any, is to demand reparation for damages from his sublessor, should the latter be at fault (Heirs of Sevilla v. CA, G.R. No. 49823, February 26, 1992).

ASSIGNMENT OF CREDITS Assignment is the process of transferring gratuitously or onerously the right of the assignor to the assignee, who would then be allowed to proceed against the debtor (Paras, 2008).

Q: The Spouses Mamaril parked their 6 passenger jeepneys inside the BSP compound for a monthly fee of P300.00 for each unit and took the keys home with them. One day, one of the vehicles was missing and was never recovered. Is BSP liable for the loss of the vehicle?

The assignment involves no transfer of ownership but merely effects the transfer of rights which the assignor has at the time to the assignee.

A: NO. A lessor-lessee relationship indubitably existed between them and BSP. Article 1664 of NCC provides that the lessor is not obliged to answer for a mere act of trespass which a third person may cause on the use of the thing leased; but the lessee shall have a direct action against the intruder. In the case at bar, BSP was not remiss in its obligation to provide Sps. Mamaril a suitable parking space for their jeepneys as it even hired security guards to secure the premises; hence, it should not be held liable for the loss suffered by Sps. Mamaril (Sps. Mamaril v. BSP, G.R. No. 179382, January 14, 2013).

It is an agreement by virtue of which the owner of a credit, known as the assignor, by a legal cause, such as sale, dacion en pago, exchange or donation, and without the consent of the debtor, transfers his credit and accessory rights to another, known as the assignee, who acquires the power to enforce it to the same extent as the assignor could enforce it against the debtor (South City Homes, Inc. v. BA Finance Corp, G. R. No. 135462, December 7, 2001). NOTE: In assignments, a consideration is not always a requisite, unlike in sale. Thus, an assignee may maintain an action based on his title and it is immaterial whether or not he paid any consideration therefor. Furthermore, in an assignment, title is transferred but possession need not be delivered.

Q: Explain judicial ejectment of the lessee by the lessor and how it is effected. A: Article 1673 of NCC mandates the rescission of the contract of lease and the judicial ejectment of the lessee. The judicial rescission of a contract of lease is essentially governed by Article 1659 of NCC, grounded on the breach of the parties’ statutory obligations: in the case of the lessee, for its failure to pay the rent or to use the property under lease for the purpose it was intended. Article 1673, read with Section 2, Rule 70 of the Rules, does away with the need for an independent judicial action to rescind prior to ejectment by combining these remedies in an unlawful detainer action.

PART VI – LEASE Kinds of Lease according to subject matter 1.

2.

Lease of things – whether real or personal, involving an obligation on the part of the lessor to deliver the thing which is the object thereof and the correlative right of the lessee to the peaceful and adequate enjoyment thereof for a price certain (NCC, Art. 1654); or Lease of work – which refers to a contract for a piece of work, involving an obligation on the part of the contractor (lessor) to execute a piece of work for the employer (lessee) in consideration of a certain price or compensation (NCC, Art. 1713);

The law of contracts (essentially, Art. 1191 for judicial rescission and Art. 1659 for the judicial rescission of lease agreements) firmly establishes that the failure to pay or to comply with the contractual term does not, by itself, give rise to a cause of action for rescission. The cause of action only accrues after the lessee has been in default for its failure to heed the demand to pay or to comply. With the contract judicially rescinded, the demand to vacate finds full legal basis (Cebu Automatic Motors v. General Milling Corp., G.R. No. 151168, August 25, 2010).

NOTE: Duties of a contractor who furnishes work and materials: a. To deliver b. To transfer ownership c. To warrant eviction and hidden defects 3.

Grounds for which lessor may judicially eject lessee (BAR 1994, 2004) 1. 2. 3. 4.

Lease of service – involving an obligation on the part of the housekeeper, laborer or employee, or common carrier to do or perform a service for the head of a family, or master, employer, or passenger or shipper of goods, respectively, in consideration of compensation.

When the period agreed upon had expired; Lack of payment of the price stipulated; Violation of any condition agreed upon in the contract; and Lessee devotes thing lease to any use or service not stipulated which causes the deterioration thereof.

NOTE: When the grounds relied upon for ejectment are nonpayment of rentals or violation of the conditions of lease, notice to vacate is crucial. A demand is pre-requisite to an action for unlawful detainer (Arquelada v. Philippine Veterans Bank, G.R. No. 139137, March 31, 2000).

NOTE: Since lease is consensual and is not imposed by law, only the lessor has the right to fix the rents. However, the increasing of the rent is not an absolute right on the part of the lessor. Implied new lease or a “tacita reconduccion”

Q: What are some instances where the purchaser of the thing leased cannot terminate the lease?

An implied new lease or tacita reconduccion will set in when the following requisites are found to exist: a) the term of the original contract of lease has expired; b) the lessor has not given the lessee a notice to vacate; and c) the lessee continued enjoying

A: 1.

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Where the lease is recorded in the Registry of Property;

UST LAW PRE-WEEK NOTES 2017 2. 3. 4. 5.

Where there is a stipulation that purchaser shall respect the lease; Where the purchaser knows the existence of the lease; Where sale is fictitious; Where the sale is made with right of repurchase (Jurado Reviewer, 2009).

1. 2.

Contribution of property (Art. 1786) Contribution of money and money converted to personal use (Art. 1788) 3. Prohibition in engaging in business for himself (Art. 1789) 4. Contribute additional capital (Art. 1791) 5. Managing partner who collects debt (Art. 1792) 6. Partner who receives share of partnership credit (Art. 1793) 7. Damages to partnership (Art. 1794) 8. Keep the partnership books (Art. 1805) 9. Render information (Art. 1806) 10. Accountable as fiduciary (Art. 1807)

PART VII – PARTNERSHIP CONTRACT OF PARTNERSHIP Essential elements of Partnership 1. 2.

RIGHTS OF PARTNERS AMONG THEMSELVES

Agreement to contribute money, property or industry to a common fund (mutual contribution to a common stock); and Intention to divide the profits among the contracting parties (joint interest in the profits) (Evangelista v. Collector of Internal Revenue, G.R. No. L-9996, October 15, 1987).

1. 2. 3.

Q: Jose conveyed his lots in favor of his four sons in order for them to build their residences. His sons sold the lots since they found the lots impractical for residential purposes because of high costs of construction. They derived profits from the sale and paid income tax. The sons were required to pay corporate income tax and income tax deficiency, on the theory that they formed an unregistered partnership or joint venture taxable as a corporation. Did the siblings form a partnership?

4. 5.

A: NO. The original purpose was to divide the lots for residential purposes. If later, they found out that it is not feasible to build their residences on the lots, they can dissolve the co-ownership by reselling said lots. The division on the profit was merely incidental to the dissolution of the co-ownership which was in the nature of things a temporary state (Obillos, Jr. v. CIR, G.R. No. L68118, October 29, 1985).

5. 6.

1. 2.

A: The co-ownership is automatically converted into a partnership. From the moment of partition, A and B, as heirs, are entitled already to their respective definite shares of the estate and the income thereof, for each of them to manage and dispose of as exclusively his own without the intervention of the other heirs, and, accordingly, he becomes liable individually for all the taxes in connection therewith. If, after such partition, an heir allows his shares to be held in common with his co-heirs under a single management to be used with the intent of making profit thereby in proportion to his share, there can be no doubt that, even if no document or instrument were executed for the purpose, for tax purposes, at least, an unregistered partnership is formed (Ona v. Commissioner of Internal Revenue, G.R. No. L-19342, May 25, 1972).

3. 4.

RESPONSIBILITIES OF A PARTNERSHIP TO PARTNERS

2. 3.

NOTE: Such partnership formed between a member of a partnership and a third person for a division of the profits coming to him from the partnership enterprise is termed subpartnership. (De Leon, 2010) Right to free access and to inspect and copy at any reasonable hour the partnership books (Art. 1805). Right to formal account as to partnership affairs: a. If he is wrongfully excluded from the partnership business or possession of its property by his copartners; b. If the right exist under the terms of any agreement; c. As provided by Art. 1807; d. Whenever there are circumstances render it just and reasonable. Right to have the partnership dissolved. Property rights of a partner (Art. 1810) OBLIGATIONS OF PARTNERSHIP/PARTNERS TO THIRD PERSONS

Q: A and B are co-owners of an inherited property. They agreed to use the said common properties and the income derived therefrom as a common fund with the intention to produce profits for them in proportion to their respective shares in the inheritance as determined in a project of partition. What is the effect of such agreement on the existing co-ownership?

1.

Right to reimbursement for amounts advanced to the partnership and to indemnification for risks in consequence of management (Art. 1796); Right on the distribution of profits and losses (Art. 1797). Right to associate another person with him in his share without the consent of the other partners (Art. 1804).

5.

Refund the amounts disbursed by partner in behalf of the partnership plus corresponding interest from the time the expenses are made, not from the date of demand. (e.g. loans and advances made by a partner to the partnership aside from capital contribution); Answer for obligations the partner may have contracted in good faith in the interest of the partnership business; Answer for risks in consequence of its management (Art. 1796).

6.

OBLIGATIONS OF PARTNERS AMONG THEMSELVES

37

Every partnership shall operate under a firm name. Persons who include their names in the partnership name even if they are not members shall be liable as a partner (Art. 1815) All partners shall be liable for contractual obligations of the partnership with their property, after all partnership assets have been exhausted: a. Pro rata b. Subsidiary (Art. 1816) (1993, 2010 BAR) NOTE: Any stipulation against the liability laid down in Art. 1816 shall be void except as among the partners. (Art. 1817) The subsidiary nature of the partners’ liability with the partnership is one of the valid defenses against a premature execution of judgment directed to a partner (Michael Guy v. Atty. Glenn Gacott, G.R. No. 206147, January 13, 2016). Partner as an agent of the partnership (Art. 1818) (1994 BAR) Conveyance of real property belonging to the partnership (Art. 1819) Admission or representation made by any partner concerning partnership affairs within the scope of his authority is evidence against the partnership (Art. 1820) Notice to partner of any matter relating to partnership affairs operates as notice to partnership except in case of fraud: a. Knowledge of partner acting in the particular matter acquired while a partner b. Knowledge of the partner acting in the particular matter then present to his mind c. Knowledge of any other partner who reasonably could and should have communicated it to the acting partner (Art. 1821)

CIVIL LAW 7. 8.

9.

Partners and the partnership are solidarily liable to 3rd persons for the partner's tort or breach of trust (Art. 182224) Liability of incoming partner is limited to: a. His share in the partnership property for existing obligations b. His separate property for subsequent obligations (Art. 1826) Creditors of partnership are preferred in partnership property & may attach partner's share in partnership assets (Art. 1827)

e. f.

Effects of dissolution (2010 BAR) 1. 2. 3.

It is during this time after dissolution that partnership business or affairs are being settled (De Leon, 2005).

Dissolution, Winding-up, and Termination Dissolution A change in the relation of the partners caused by any partner ceasing to be associated in carrying on the business.

Settling the partnership business or affairs after dissolution.

It is that point in time when the partners cease to carry on the business together. It represents the demise of a partnership. Thus, any time a partner leaves the business, the partnership is dissolved.

It is the final step after dissolution in the termination of the partnership.

Ways of winding up Termination

The winding up of the dissolved partnership may be done either:

Point in time when all partnership affairs are wound up or completed; the end of the partnership life.

1. 2.

2. 3. 4.

An action for the liquidation of a partnership is a personal one; hence, it may be brought in the place of residence of either the plaintiff or the defendant (De Leon, 2014).

It signifies the end of the partnership life. It takes place after both dissolution and winding up have occurred.

Persons authorized to wind up 1. 2. 3.

Partners designated by the agreement; In the absence of such, all partners who have not wrongfully dissolved the partnership; and, Legal representative of last surviving partner who is not insolvent (De Leon, 2014).

NOTE: The court may, in its discretion, after considering all the facts and circumstances of the particular case, appoint a receiver to wind up the partnership affairs where such step is shown to be to the best interests of all persons concerned.

Without violating the agreement: a. Termination of the definite term or specific undertaking b. Express will of any partner in good faith, when there is no definite term and no specified undertaking c. Express will of all partners (except those who have assigned their interests or suffered them to be charged for their separate debts) either before or after the termination of any specified term or particular undertaking d. Expulsion of any partner in good faith of a member Violating the agreement Unlawfulness of the business Loss a. Specific thing promised as contribution is lost or perished before delivery b. Loss of a specific thing contributed before or after delivery, if only the use of such is contributed

An insolvent partner does not have the right to wind up partnership affairs (De Leon, 2014). LIMITED PARTNERSHIP Characteristics 1. 2. 3.

4. 5.

NOTE: The partnership shall not be dissolved by the loss of the thing when it occurs after the partnership has acquired the ownership thereof. 5. 6. 7. 8.

Judicially, under the control and direction of the proper court upon cause shown by any partner, his legal representative, or his assignee; or Extrajudicially, by the partners themselves without intervention of the court (De Leon, 2014).

Action for liquidation

Causes of dissolution (NCC, Art. 1830) 1.

Partnership is not terminated; Partnership continues for a limited purpose; Transaction of new business is prohibited (De Leon, 2005). Winding up of the partnership

DISSOLUTION AND WINDING UP

Winding up

The business of the partnership can only be carried on at a loss Other circumstances render a dissolution equitable

It is formed by compliance with the statutory requirements. One or more general partners control the business and are personally liable to creditors. One or more limited partners contribute to the capital and share in the profits but do not participate in the management of the business and are not personally liable for partnership obligations beyond their capital contributions. The limited partners may ask for the return of their capital contributions under conditions prescribed by law. Partnership debts are paid out of common fund and the individual properties of general partners RIGHTS AND OBLIGATIONS OF A LIMITED PARTNER

Death of any of the partners Insolvency of any partner or of the partnership Civil interdiction of any partner By decree of court under Art. 1831 a. A partner has been declared insane or of unsound mind b. A partner becomes in any other way incapable of performing his part of the partnership contract c. A partner has been guilty of such conduct as tends to affect prejudicially the carrying on of the business d. A partner wilfully or persistently commits a breach of the partnership agreement

Rights of a limited partner 1. 2. 3. 4. 5.

38

To have partnership books kept at principal place of business; To inspect/copy books at reasonable hours; To have on demand true and full information of all things affecting partnership; To have formal account of partnership affairs whenever circumstances render it just and reasonable; To ask for dissolution and winding up by decree of court;

UST LAW PRE-WEEK NOTES 2017 6. 7.

To receive share of profits/other compensation by way of income; and To receive return of contributions, provided the partnership assets are in excess of all its liabilities.

Without or beyond scope of authority Contract is unenforceable as against the principal but binds the agent to the third person Binding on the principal when: 1. Ratified or 2. The principal allowed the agent to act as though he had full powers

Liabilities of a limited partner 1.

2.

To the partnership Since limited partners are not principals in the transaction of a partnership, their liability as a rule, is to the partnership, not to the creditors of the partnership. The general partners cannot, however waive any liability of the limited partners to the prejudice of such creditors.

Within the scope of authority but in the agent’s name 1. 2.

Not binding on the principal; Principal has no cause of action against the 3rd parties and vice versa

Within the scope of the written power of attorney but agent has actually exceeded his authority according to an understanding between him and the principal

To the partnership creditors and other partners a. A limited partner is liable for partnership obligations when he contributed services instead of only money or property to the partnership b. When he allows his surname to appear in the firm name c. When he fails to have a false statement in the certificate corrected, knowing it to be false d. When he takes part in the control of the business e. When he receives partnership property as collateral security, payment, conveyance, or release in fraud of partnership creditors f. When there is failure to substantially comply with the legal requirements governing the formation of limited partnerships

1. 2.

Insofar as 3rd persons are concerned (not required to inquire further than the terms of the written power), agent acted within scope of his authority; Principal stopped With improper motives Motive is immaterial; as long as within the scope of authority, valid With misrepresentations by the agent

1. 2.

Authorized – principal still liable Beyond the scope of the agent’s authority

GR: Principal not liable XPN: Principal takes advantage of a contract or receives benefits made under false representation of his agent

PART VIII – AGENCY

Mismanagement of the business by the agent 1.

Q: What is a Contract of agency (2000, 2003 BAR)

2.

Principal still responsible for the acts contracted by the agent with respect to 3rd persons; Principal, however, may seek recourse from the agent

A: By the contract of agency, a person binds himself to render some service or to do something in representation or on behalf of another, with the consent or authority of the latter (NCC, Art. 1868).

Principal civilly liable so long as the tort is committed by the agent while performing his duties in furtherance of the principal’s business

NATURE, FORMS AND KINDS OF AGENCY

Agent in good faith but prejudices 3rd parties

Tort committed by the agent

Principal is liable for damages Essential elements of an agency 1.

2. 3. 4.

Express v. Implied Agency

Consent (express or implied) of the parties to establish the relationship.

BASIS

NOTE: A person may express his consent: a. by contract (NCC, Art. 1868), orally or in writing; b. by conduct (NCC, Art. 1869); c. by ratification (NCC, Art. 1910); or d. the consent may arise by presumption or operation of law (De Leon, 2010). The object is the execution of a juridical act in relation to third persons. The agent acts as a representative and not for himself. The agent acts within the scope of his authority (De Leon, 2010).

As to definition

EXPRESS AGENCY One where the agent has been actually authorized by the principal, either orally or in writing.

IMPLIED AGENCY One which is implied from the acts of the principal.

When it is directly conferred by words.

When it is incidental to the transaction or reasonably necessary to accomplish the purpose of the agency, and therefore, the principal is deemed to have actually intended the agent to possess.

Appointment of an Agent GR: There are no formal requirements governing the appointment of an agent.

As to authority

XPN: When the law requires a specific form. i.e. – when sale of land or any interest therein is through an agent, the authority of the latter must be in writing; otherwise, the sale shall be void (Art. 1874). (2010 BAR) OBLIGATIONS OF THE AGENT

Apparent authority v. Authority by estoppel

Summary of rules; Acts of an agent

BASIS In behalf of the principal, within the scope of authority 1. 2.

As to the knowledge of

Binds principal; Agent not personally liable

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Apparent Authority That which is though not

Authority by Estoppel Arises when the principal, by his

CIVIL LAW the principal of the authority of the agent

As to the establishment of the authority

actually granted, the principal knowingly permits the agent to exercise or holds him out as possessing. Founded in conscious permission of acts beyond the powers granted.

objections to the venue of an action or to abandon a prescription already acquired. 14. Any other act of strict dominion. 15. To waive an obligation gratuitously (NCC, Art. 1878).

culpable negligence, permits his agent to exercise powers not granted to him, even though the principal may have no notice or knowledge of the agent’s conduct. Founded on the principal’s negligence in failing properly to supervise the affairs of the agent.

OBLIGATIONS OF THE PRINCIPAL Obligations of the principal to the agent To: 1. 2.

Implied agency v. Agency by estoppel BASIS As to liability between principal and agent

As to liability to third persons

3.

IMPLIED AGENCY Agent is a true agent, with rights and duties of an agent.

AGENCY BY ESTOPPEL If caused by the “agent”, he is not considered a true agent, hence, he has no rights as such.

1. The principal is always liable; 2. The agent is never personally liable.

1. If caused by the principal, he is liable, but only if the 3rd person acted on the misrepresenta tion; 2. If caused by the agent alone, only the agent is liable.

4. 5.

Irrevocable agency An agency is irrevocable 1. 2. 3. 4. 5.

Agency by operation of law

2.

1. 2.

When the agent withdraws from the agency for a valid reason, he must continue to act until the principal has had a reasonable opportunity to take the necessary steps like the appointment of a new agent to remedy the situation caused by the withdrawal (Art. 1929). In case a person declines an agency, he is bound to observe the diligence of good father of the family in the custody and preservation of the goods forwarded to him by the owner until the latter should appoint an agent (Art. 1885).

3. 4. 5. 6.

3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

Expiration of the period Death, civil interdiction, insanity or insolvency of principal or of the agent Withdrawal by the agent Accomplishment of the object or the purpose of the agency Revocation Dissolution of the firm or corporation which entrusted or accepted the agency (NCC, Art. 1919).

Q: Is the sale of the land by the agent after the death of the principal valid?

A special power of attorney is required (1992, 2004 BAR) 1. 2.

If a bilateral contract depends upon it. If it is the means of fulfilling an obligation already contracted. If partner is appointed manager and his removal from the management is unjustifiable (NCC, Art 1927). (2001 BAR) If it has been constituted in the common interest of the principal and the agent (NCC, Art. 1930). Stipulation pour atrui (NCC, Art. 1311). MODES OF EXTINGUISHMENT

Instances where an agency is created by operation of law 1.

Comply with all obligations which the agent may have contracted within the scope of his authority [NCC, Art. 1910(1)]. Advance to the agent, should the latter so request, the sums necessary for the execution of the agency (NCC, Art. 1912). Reimburse the agent for all advances made by him, even if the business or undertaking was not successful, provided the agent is free from fault (Ibid.). Indemnify the agent for all damages which the execution of the agency may have caused the latter without fault or negligence on his part (NCC, Art. 1913). Pay the agent the compensation agreed upon, or if no compensation was specified, the reasonable value of the agent’s services (De Leon, 2014).

A: Article 1931 provides that an act done by the agent after the death of the principal is valid and effective if these two requisites concur:

To create or convey real rights over immovable property. To enter into any contract by which the ownership of an immovable is transmitted or acquired either gratuitously or for a valuable consideration. To loan or borrow money, unless the latter act be urgent and indispensable for the preservation of the things which are under administration. To lease any real property to another person for more than one year. To make such payments as are not usually considered as acts of administration. To obligate principal as guarantor or surety. To bind the principal to render some service without compensation. To bind the principal in a contract of partnership. To ratify obligations contracted before the agency. To accept or repudiate an inheritance. To effect novation which put an end to obligations already in existence at the time the agency was constituted. To make gifts, except customary ones for charity or those made to employees in the business managed by the agent. To compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to waive

1. 2.

that the agent acted without the knowledge of the death of the principal; and that the third person who contracted with the agent himself acted in good faith.

Good faith here means that the third person was not aware of the death of the principal at the time that he contracted with said agent (Rallos v. Felix Go Chan, G.R. No. L-24332, January 31, 1978).

PART IX – TRUST It is the legal relationship between one person having an equitable ownership in a certain property and another person owning the legal title to such property (Jurado). NOTE: Trust is founded in equity and can never result from acts violative of law (Deluao vs Casteel, 26 SCRA 415, 1968 and 29 SCRA 350, 1969).

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UST LAW PRE-WEEK NOTES 2017 KINDS OF TRUST

Conversion of Implied Trust to Express Trust

Express trust v. Implied trust BASIS Definition (NCC, Art. 1441)

Manner of creation

Parole evidence

Laches or extinctive prescription

EXPRESS TRUST Created by the intention of the trustor or of the parties. Created by the direct and positive acts of the parties, by some writing or deed or will or by words evidencing an intention to create a trust.

An express trust concerning an immovable or any interest therein cannot be proved by parole evidence (NCC, Art. 1443). An action to enforce an express trust, so long as there is no express repudiation of the trust by the trustee and made known to the beneficiary, cannot be barred by laches or extinctive prescription.

An implied trust may converted to an express trust through recognition by the implied trustee of the right to the property of the owner (De Leon, 2014).

IMPLIED TRUST Come into being by operation of law. It may be either resulting or constructive. Those which, without being expressed, are deducible from the nature of the transaction by operation of law as matters of equity, independently of the particular intention of the parties. An implied trust concerning an immovable or any interest therein may be proved by parole evidence (NCC, Art. 1457). An action to enforce an implied trust, even when there is no express repudiation of the trust by the trustee and made known to the beneficiary, may be barred by laches or by extinctive prescription.

PART X – CREDIT TRANSACTIONS LOAN What is a Loan? It is a contract where one of the parties delivers to another, either something not consumable so that the latter may use the same for a certain time and return it, in which case is called a commodatum; or money or other consumable things, upon the condition that the same amount of the same kind and quality shall be paid, in which case the contract is simply called a loan or mutuum (NCC, Art. 1933). (1993, 2004, 2005 BAR) COMMODATUM What are the kinds of Commodatum? 1. Ordinary commodatum – bailor cannot just demand the return of the thing at will, because there is a period agreed upon by the parties. 2. Precarium – one whereby the bailor may demand the thing loaned at will in the following cases: a. If the duration of the contract had not been stipulated; b. If the use to which the thing loaned should be devoted had not been stipulated; or c. If the use of the thing is merely by tolerance of the owner NOTE: The word “owner” in Art. 1947 (2) is not proper because the bailor need not be the owner of the thing (Pineda, 2006; Art. 1938). What are the elements of Commodatum? 1. There must be a bailor and bailee; 2. the bailee acquires the use of the thing; 3. it must be gratuitous

Prescriptibility of actions to enforce trust under Art. 1456

Who are the parties in Commodatum? 1. Bailor/Comodatario/Commodans – The giver/ lender - The party who delivers the possession or custody of the thing bailed. 2. Bailee/Comodante/Commodatarius – The recipient/ borrower - The party who receives the possession or custody of the thing thus delivered.

An action for reconveyance of real property based upon a constructive or implied trust, resulting from fraud, may be barred by the statute of limitations. An action may be filed from the discovery of the fraud. In some cases, the discovery is deemed to have taken place when new certificates of title were issued exclusively in the name of another person. (Gerona v. De Guzman, 11 SCRA 153, May 29, 1964)

MUTUUM

Period of prescription BASIS Annulment of voidable contract based on fraudulent registration of the subject property. Declaration of nullity or inexistence of a void or inexistent contract based on fraudulent registration of the subject property. Based on fraudulent registration of the subject property but the action does not involve annulment of contract. If the legitimate owner of the subject property which was fraudulently registered in the name of another had always been in possession thereof

What are the characteristics of Mutuum?

PRESCRIPTIVE PERIOD Four (4) years from the discovery of the fraud. [Art. 1391 (4) Civil Code] Imprescriptible. 1410, Civil Code)

1. 2.

(Art. 3.

Ten (10) years from the discovery of the fraud. [Art. 1144 (2) Civil Code]

Borrower acquires ownership of the thing (Art 1953). If the thing loaned is money, payment must be made in the currency which is legal tender in the Philippines and in case of extraordinary deflation or inflation, the basis of payment shall be the value of the currency at the time of the creation of the obligation (Art 1249 and 1250). If fungible thing was loaned, the borrower is obliged to pay the lender another thing of the same kind, quality and quantity even if it should change in value.

Explain the rules on payment of loan If the object of loan is 1. Money – Governed by Arts. 1249 and 1250

An action to quiet title. Therefore, imprescriptible. (Caragay Layno v. Court of Appeals, 133 SCRA 718)

GR: Payment shall be made in the currency stipulated. XPN: If not, that currency which is legal tender in the Philippines. In case of extraordinary inflation – value of the currency at the time of the creation of the obligation.

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CIVIL LAW Loan of money can be payable in kind if there is an agreement between the parties 2.

1.

Consumable or fungible thing – Debtor or borrower shall pay another thing of the same kind, quality and quantity even if it should change in value. If cannot be done, the value of the thing at the time of its perfection (delivery) shall be the basis of the payment of the loan (Art 1955).

2.

Commodatum v. Mutuum (1996, 2004 BAR) BASIS

COMMODATUM Non-consumable and Non- fungible Gratuitous, otherwise it is a lease Use or temporary possession of the thing loaned but

Object Cause

3.

MUTUUM Money or consumable thing May or may not be gratuitous

DEPOSIT What is a deposit?

Consumption

Deposit is a contract whereby a person (depositor) delivers a thing to another (depositary), for the principal purpose of safekeeping it, with the obligation of returning it when demanded (Pineda, 2006)

GR: not its fruit because the bailor remains the owner Purpose

XPNs: use of the fruits is stipulated; enjoyment of the fruits is stipulated; or enjoyment of the fruits is incidental to its use Real or personal property

Subject Matter

Ownership of the thing Thing to be returned Who bears risk of loss When return

Contract

to

Generally nonconsumable things but may cover consumables if the purpose of the contract is for exhibition. Retained by the bailor Exact thing loaned Bailor In case of urgent need even before the expiration of term (the contract is in the meantime suspended) Contract of use

Central Bank Circular No. 799 – 6% per annum in cases of: a. Loans b. Forbearance of money, goods and credits c. Judgment involving such loan or forbearance Art. 2209, NCC – 6% per annum in cases of: a. Other sources (i.e. sale) b. Damages arising from injury from person. c. Loss of property which does not involve a loan. Interest accruing from unpaid interest (compound interest) – There must first be a stipulation for payment of interest due and this shall earn interest from the time it is judicially demanded although the obligation may be silent upon this point.

Only property

What are the characteristics of a deposit? 1. It is Real contract 2. The object of the contract must be a movable property XPN: Judicial deposit 3. The purpose is for the safekeeping of the thing deposited. 4. It is gratuitous, unless there is a: a. Contrary agreement; or b. The depositary is engaged in the business of storing goods, like a warehouseman (Art. 1965). c. Where the property is saved from destruction without knowledge of the owner, the latter is bound to pay the other person just compensation (as in case ofinvoluntary deposit). 5. The depositary cannot use the thing deposited, unless: a. Permitted by the depositor; or b. Preservation of the thing requires its use, but only for said purpose.

personal

Are fixed, savings and current deposits in banks governed by the rules on deposit?

Passes to the debtor Equal amount of the same kind and quality Debtor

Fixed, savings and current deposits in banks and other similar institutions are not true deposits but are considered simple loans because they earn interest (Art. 1980). Bank deposits are in the nature of irregular deposit but they are really loans governed by the law on loans (De Leon, 2010). (1997, 1998, 2009 BAR)

Only after expiration of term

What are the obligations of a depositary in voluntary deposit?

the the

1. 2. Contract consumption

of

3.

INTEREST AND THE SUSPENSION OF THE USURY LAW Explain the rules on interest GR: No interest shall be due unless it is stipulated in writing (Art. 1956) (2004 BAR). XPN: In case of interest on damages or indemnity for damages, it need not be in writing. 4.

The rate of interest for the loan or forbearance of any money, goods or credits and the rate allowed in judgments, in the absence of an express contract as to such rate of interest, shall be six percent (6%) per annum (BSP Circular No. 799, July 1, 2013).

5. 6.

Basis for the interest rate for compensatory interest

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To keep the thing safely and return it Exercise same diligence as he would exercise over his own property GR: Not to deposit the thing with a third person XPNs: a. When expressly authorized by stipulation; and b. When the preservation of the thing requires its use (Art. 1977) Depositary is liable for the loss if: i. He deposits the thing to a third person without authority, even though the loss is due to fortuitous events ii. Deposits the thing to a third person who is manifestly careless or unfit although there is authority. If the thing should earn interest: a. Collect interest as it falls due b. Take steps to preserve the value and rights corresponding to it Not to commingle things if so stipulated GR: Not to make use of the thing deposited XPNs: a. When preservation of thing deposited requires its use

UST LAW PRE-WEEK NOTES 2017 b.

When authorized by depositor

GUARANTY Collateral undertaking

GR: In such case, it is no longer a deposit but a contract of loan or commodatum, as the case may be. XPN: Principal reason for the contract is still safekeeping, it is still deposit. 7.

When the thing deposited is delivered sealed and closed: a. Return the thing in the same condition b. Pay damages if seal be broken through his fault c. Keep the secret of the deposit when seal is broken w/ or w/o his fault

i. ii. 8.

However, the depositary is authorized to open the seal or lock when: There is presumed authority (i.e. the key is delivered) Out of necessity

GR: Pay for any loss or damage that may arise due to his fault XPN: Liability of loss through fortuitous event

1. 2.

2.

3. a. b. c.

Guarantor can avail of the benefit of excussion and division in case creditor proceeds against him

Surety cannot avail of the benefit of excussion and division

The guarantor must set up the right of excussion against the creditor upon the latter’s demand for payment from him; and He must point out to the creditor the available property of the debtor (not exempted from execution) found within the Philippine territory (Art. 2060).

When does benefit of excussion unvailable? 1. 2. 3. 4. 5. 6.

When it is in compliance with a legal obligation; It takes place on the occasion of any calamity, such as fire, storm, flood, pillage, shipwreck, or other similar events (Art. 1996). Made by passengers with common carriers; or Made by travelers in hotels or inns (Art. 1998).

7. 8. 9.

When are keepers of hotels or inns may be held liable? 1.

Surety undertakes to pay if principal does not pay Insurer of the debt

What are the requisites for the exercise of the benefit of excussion?

When is deposit considered as necessary deposit?

3. 4.

Guarantor binds himself to pay if the principal cannot pay Insurer of solvency of debtor

EFFECTS OF GUARANTY: BENEFIT OF EXCUSSION

XPNs to XPN Even in case of loss through fortuitous event, still liable if: (Art. 1979) a. Stipulated b. He uses the thing without depositor’s permission c. He delays its return d. He allows others to use it (even if he himself is authorized to use it) 9. Return the thing deposited with all its fruits, accessions, and accessories (Art. 1983) 10. Pay interest on sums converted to personal use if the deposit consists of money

1. 2.

Guarantor-secondarily liable

SURETYSHIP Surety is an original promissory undertaking Surety-primarily liable

The keepers of hotels or inns shall be held responsible for loss of thing in case of deposit when both are present: a. They have been previously informed by guest about the effects the latter brought in, and b. The guest has taken precautions prescribed for their safekeeping. They are liable regardless of the degree of care exercised when: a. Loss or injury is caused by his employees or even by strangers (Art. 2000); or b. Loss is caused by act of thief or robber when there is no use of arms or irresistible force (Art. 2001). The keepers of hotels or inns are not liable for loss of thing in case of deposit when: Loss or injury is caused by force majeure; Loss due to the acts of guests, his family, his employees, or visitors; and Loss arises from the character of the goods (Art. 2002).

Guarantor has expressly renounced it; Guarantor has bound himself solidarily with the Debtor; Debtor is insolvent; Guarantor has absconded, or cannot be sued within the Philippines unless he left a manager or representative; If it may be presumed that an execution on the property of the Debtor cannot satisfy the obligation (Art. 2059); Guarantor does not invoke the benefit against Creditor upon demand to him for payment and he does not point out available property of the Debtor within the Philippines sufficient to cover the obligation (Art. 2060). Guarantor is a judicial bondsman or sub-surety (Art. 2084). A pledge or mortgage of his own property has been given by Guarantor as special security. Guarantor fails to interpose it as a defense before judgment is rendered.

The terms of a contract govern the parties’ rights and obligations. When a party undertakes to be “jointly and severally” liable, it means that the obligation is solidary. Furthermore, even assuming that the party is liable only as a guarantor, he can be held immediately liable without the benefit of excussion if the guarantor agreed that his liability is direct and immediate (Orix Metro Leasing and Finance Corp., v. Cardline Inc, G.R. No. 201417, January 13, 2016). EXTINGUISHMENT OF GUARANTY What are the grounds for the extinguishment of guaranty? 1. 2. 3.

When does judicial deposit takes place?

4.

Judicial deposit (sequestration) take place when an attachment or seizure of property in litigation is ordered by a court (Art. 2005).

5. 6.

It is auxiliary to a case pending in court. The purpose is to maintain the status quo during the pendency of the litigation or to insure the right of the parties to the property in case of a favorable judgment (De Leon, 2010).

Principal obligation is extinguished Same causes as all other obligations If creditor voluntarily accepts immovable or other properties in payment of the debt (even if he should afterwards lose the same through eviction or conveyance of property) (Art. 2077) Release in favor of one of the guarantors, w/o consent of the others, benefits all to the extent of the share of the guarantor to whom it has been granted (Art. 2078) Extension granted to debtor by creditor without consent of guarantor (Art. 2079) When by some act of the creditor, the guarantors even though they are solidarily liable cannot be subrogated to the rights, mortgages, and preferences of the former (Art. 2080) PACTUM COMMISSORIUM (1999, 2001, 2004, 2009 BAR)

GUARANTY AND SURETYSHIP (1992, 1997, 2010 BAR)

Explain Pactum Commissorium

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CIVIL LAW Pactum commisorium is a stipulation whereby the thing pledged or mortgaged or subject of antichresis shall automatically become the property of the creditor in the event of non-payment of the debt within the term fixed. Such stipulation is null and void (NCC, Art. 2085).

1.

What are the elements of Pactum Commissorium?

A juridical entity does not have the power to mortgage its properties in order to secure loans of other persons. Parties dealing with corporations cannot simply assume that their transaction is within the corporate powers. The acts of a corporation are still limited by its powers and purposes and provided in the law and its articles of incorporation (University of Mindanao, Inc. v. Bangko Sentral ng Pilipinas, G.R. No. 194964, January 11, 2016).

1. 2.

2. 3.

That there should be a pledge or mortgage wherein property is pledged or mortgaged by way of security for the payment of the principal obligation; and That there should be a stipulation for an automatic appropriation by the creditor of the thing pledged or mortgaged in the event of non-payment of the principal obligation within the stipulated period (Spouses Roberto Pen v. Spouses Santos, G.R. No. 160408, January 11, 2016).

It covers only immovable property and alienable real rights imposed upon immovables It must appear in a public instrument Registration in the Registry of Property is necessary to bind third persons

What are the things that are deemed included in the mortgage?

PLEDGE 1. 2. 3. 4. 5. 6. 7.

What are the requisites of a pledge? (1991, 1994, 1996, 1999, 2001 BAR) 1. 2. 3. 4.

Constituted to secure the fulfillment of a principal obligation; Pledgor is the absolute owner of the thing pledged; Persons constituting the pledge have the free disposal of their property, and in the absence thereof, that they be legally authorized for the purpose (Art. 2085). A contract of pledge is perfected when the thing pledged is placed in the actual possession of or delivered to the pledgee or a third person designated by the parties by common consent (Art. 2093).

What is a Dragnet clause? It is a mortgage provision which is specifically phrased to subsume all debts of past or future origin. It is a valid and legal undertaking, and the amounts specified as consideration in the contracts do not limit the amount for which the pledge or mortgage stands as security, if from the four corners of the instrument, the intent to secure future and other indebtedness can be gathered. A pledge or mortgage given to secure future advancements is a continuing security and is not discharged by the repayment of the amount named in the mortgage until the full amount of all advancements shall have been paid (Premiere Development Bank v. Central Surety & Insurance, Inc., G.R. No. 176246, February 13, 2009).

RIGHTS AND OBLIGATIONS OF THE PLEDGOR AND THE PLEDGEE What are the rights of a pledge? 1. 2. 3.

Natural accessions Improvements Growing fruits Rents Income Insurance proceeds Expropriation price (Art. 2127)

Retain the thing until debt is paid (Art. 2098). To be reimbursed for the expenses made for the preservation of the thing pledged (Art. 2099). Creditor may bring any action pertaining to the pledgor in order to recover it from or defend it against a third person (Legal Subrogation) (Art. 2103).

What are the obligations of a pledgee?

It is a clause which operates as a convenience and accommodation to the borrowers as it makes available additional funds without their having to execute additional security documents, thereby saving time, travel, loan closing costs, costs of extra legal services, recording fees etc.

1.

Kinds of foreclosure

2. 3. 4.

5.

Take care of the thing pledged with the diligence of a good father of a family (Art. 2099). GR: Pledgee cannot deposit the thing pledged to a third person. XPN: Unless there is stipulation to the contract (Art. 2100). Apply the fruits, income, dividends, or interests produced or earned by the property, to interests or expenses first, then to the principal (Art. 2102). GR: Cannot use the thing pledged without authority (Art. 2104). XPNs: a. If the pledgor had given him authority or permission to use it; b. If the use of the thing is necessary for its preservation but only for that purpose. Return the thing pledged to the pledgor when the principal obligation is fulfilled or satisfied it.

1. 2.

Judicial – Governed by Rule 68, Rules of Court Extrajudicial – Mortgagee is given a SPA to sell the mortgaged property (Act No. 3135)

Requisites for valid right of redemption 1. 2.

3.

Must be made within one year from the time of the registration of the sale. Payment of the purchase price of the property plus 1% interest per month together with the taxes thereon, if any, paid by the purchaser with the same rate of interest computed from the date of registration of the sale; and Written notice of the redemption must be served on the officer who made the sale and a duplicate filed with the proper Register of Deeds (Rosales v. Yboa, G.R. No. L-42282, February 28, 1983).

What are the rights of the pledgor? 1. 2. 3.

The redemptioner should make an actual tender in good faith of the full amount of the purchase price as provided above, i.e., the amount fixed by the court in the order of execution or the amount due under the mortgage deed, as the case may be, with interest thereon at the rate specified in the mortgage, and all the costs, and judicial and other expenses incurred by the bank or institution concerned by reason of the execution and sale and as a result of the custody of said property less the income received from the property (Heirs of Quisimbing v. PNB, G.R. No. 178242, Jan. 20, 2009).

Right to dispose the thing pledged, provided there is consent of the pledgee (Art. 2097) Right to ask that the thing pledged be deposited (Art. 2104 and Art. 2106) Right to substitute thing pledged (Art. 2107) REAL MORTGAGE

What are the requisites for a valid constitution of a real mortgage? (1991, 1994, 1996, 1999, 2001 BAR)

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UST LAW PRE-WEEK NOTES 2017 As instituted heirs only to a part of the free portion of Basilia’s estate, the grandchildren are entitled to receive their share, if any, only after payment of all debts, funeral charges, expenses of administration, allowance to the widow and inheritance tax. The disputed share was sold at a public auction to satisfy the judgment claim of Benita as creditor. When it was redeemed by Gepuela, no further redemption was made. Upon expiration of the periods to redeem, Gepuela became entitled, as a matter of right, to the consolidation of the ownership. The share no longer formed part of the estate which can theoretically be distributed to the grandchildren (Heirs of Jose Ma. Gepuela v. Bernita MenezAndres, G.R. No. 173636, January 13, 2016).

It is tantamount to the symbolic delivery of the mortgage to the mortgagee, which is equivalent to actual delivery (Meyers v. Thein, G.R. No. 5577, February 21, 1910). Registration period of the chattel mortgage The law does not provide period within which the registration should be made. Yet, the law is substantially and sufficiently complied with where the registration is made by the mortgagee before the mortgagor has complied with his principal obligation and no right of innocent third persons is prejudiced. Registration in Real Estate Mortgage and Registration in Chattel Mortgage

ANTICHRESIS Wha are the form of a contract of antichresis and its contents? 1. 2. 3. 4.

The difference in registration of real mortgage and chattel mortgage is that a deed of real estate mortgage is considered registered once recorded in the entry book. However, chattel mortgage must be registered not only in the entry book but also in the Chattel Mortgage Register.

Covers only the Fruits of real property Delivery of the property necessary so that CR may receive the fruits therefrom Amount of principal and interest must be specified in writing, otherwise, the contract shall be void. Express agreement that debtor will give Possession to the CR and that CR will apply the fruits to the interest and then to the principal.

Procedure in foreclosure of a chattel mortgage 1.

The fruits of the immovable which is the object of the antichresis must be appraised at their actual market value at the time of the application (Art. 2138).The property delivered stands as a security for the payment of the obligation of the debtor in antichresis. Hence, the debtor cannot demand its return until the debt is totally paid.

2. 3. 4. 5.

Who are the parties to an Antichresis? 1. 2.

Antichretic creditor – One who receives the fruits on the immovable property of the debtor. Antichretic debtor – One who pays his debt through the application of the fruits of his immovable property.

QUASI-CONTRACTS What is a Quasi-Contract?

What are the obligations of an antichretic creditor? 1. 2. 3. 4.

Lawful, voluntary, and unilateral acts which generally require a person to reimburse or compensate another in accordance with the principle that no one shall be unjustly enriched at the expense of another (Art. 2142).

Pay the taxes and charges assessable against the property like real estate taxes and others; Bear the necessary expenses for the preservation of the property; Bear the expenses necessary for the repair of the property; and Apply the fruits received for payment of the outstanding interests, if any, and thereafter of the principal.

What are the essential requisites of negostiorum gestio? 1. 2. 3.

CHATTEL MORTGAGE 4. Requisites 5. 1. 2. 3.

GR: It covers only movable property XPN: When the parties treat as personalty that which is according to its nature realty. Registration with the Chattel Mortgage Register. Description of the property.

Taking charge of another’s business or property The property or business must have been abandoned or neglected The officious manager (gestor) must not have been expressly or implicitly authorized The officious manager (gestor) must have voluntarily taken charge The officious manager or gestor must not be acting erroneously on the belief that he is the owner of the property or business.

What are the requisites for solutio indebiti? 1. 2. 3.

Section 7 of the Chattel Mortgage Law does not demand specific description of every chattel mortgaged in the deed of mortgage, but only requires that the description of the mortgaged property be such as to enable the parties to the mortgage or any other person to identify the same after a reasonable investigation and inquiry (Saldana v. Phil. Guaranty Co., Inc., G.R. No. L-13194, January 29, 1960); otherwise, the mortgage is invalid. 4.

The mortgagee may, after thirty (30) days from the time of the default or from the time the condition is violated, cause the mortgaged property to be sold at public auction by a public officer (Sec. 14, Act No. 1508). The 30-day period to foreclose a chattel mortgage is the minimum period after violation of the mortgage condition for the mortgage The creditor has at least ten (10) days notice served to the mortgagor The notice of time, place and purpose of such sale, is posted After the sale of the chattel at public auction, the right of redemption is no longer available to the mortgagor (Cabral v. Evangelista, 28 L-26860, July 30, 1969).

Receipt of something. There was no right to demand it Undue delivery was because of mistake. CONCURRENCE AND PREFERENCE OF CREDITS/ FRIA SECTION 133

What is a liquidation Process?

Accompanied by an affidavit of good faith to bind third persons.The absence of an affidavit of good faith does not affect the validity of the contract.

The proceeding where claims are filed and the assets of the insolvent debtor are disposed and the proceeds are divided among the creditors.

Registration of the Chattel mortgage

What is a Liquidation Plan? The Liquidation Plan shall, as a minimum enumerate all the assets of the debtor and a schedule of liquidation of the assets

45

CIVIL LAW and payment of the claims, which within 3 months from the Liquidators assumption to his office must prepare and submit to the court (FRIA, Sec, 129).

2.

The Liquidation Plan and its Implementation shall ensure that the concurrence and preference of credits as enumerated in the Civil Code of the Philippines and other relevant laws shall be observed, unless a preferred creditor voluntarily waives his preferred right. For purposes of this chapter, credits for services rendered by employees or laborers to the debtor shall enjoy first preference under Article 2244 of the Civil Code, unless the claims constitute legal liens under Article 2241 and 2242 thereof (FRIA, Sec. 133).

3.

4. NOTE: The liquidator shall be deemed an officer of the court with the principal duly of preserving and maximizing the value and recovering the assets of the debtor, with the end of liquidating them and discharging to the extent possible all the claims against the debtor (FRIA, Sec. 119)

Law Governing the Validity of Wills 1. As to Extrinsic validity - refers to the forms and solemnities required by law. It is governed by: a. As to time - the law in force at the time of the making of the will. b. As to place - the will can be executed in accordance to the formalities of the testator’s nationality, domicile, residence or the place where the will was executed depending on the place where it is executed and the nationality of the testator. 2. As to Intrinsic validity - refers to the legality of provisions in the will. It is governed by: a. As to time - the law in force at the time of the decedent’s death. b. As to place - the national law of the testator governs the intrinsic validity of the will regardless of the place of execution.

What are the preferred credits on specific movables as provided in Art. 2241? Summary: 1. Taxes 2. Malversation by public officials 3. Vendor’s lien 4. Pledge, chattel mortgage 5. Mechanic’s lien 6. Laborer’s wages 7. Salvage 8. Tenancy 9. Carrier’s lien 10. Hotel’s lien 11. Crop loan 12. Rentals – one year 13. Deposit In the foregoing cases, if the movables to which the lien or preference attaches have been wrongfully taken, the creditor may demand them from any possessor within thirty (30) days from the unlawful seizures through accion subrogatoria. Whar are the preferred credits on specific immovables as provided in Art. 2242?

Basis

Place of execution

Applicable Law

Testator is a Filipino

Philippines

NCC

Foreign country

Law of the place of execution

Philippines

NCC or National law

Foreign country

1. National law; 2. Law of the place of residence; 3. NCC

Testator is an Alien

Summary: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

them in another sense can be gathered, and that can be ascertained (Art. 790). Technical words are to be taken in their technical sense, unless: a. The context clearly indicates a contrary intention; or b. It satisfactorily appears that the will was drawn solely by the testator and that he was unacquainted with such technical sense (Ibid.). The invalidity of one of several dispositions contained in a will does not result in the invalidity of the other dispositions unless it is to be presumed that the testator would not have made such other dispositions if the first invalid disposition had not been made (Art. 792). Every devise or legacy shall cover all the interest which the testator could devise or bequeath in the property disposed of, unless it clearly appears from the will that he intended to convey a less interest (Art. 794).

Taxes Vendor’s lien Contractor’s lien Lien of materialmen Mortgage Expenses of preservation Recorded attachments Warranty in partition Conditional donations Premiums for 2 years – insurers

Testamentary Capacity and Intent Requisites of Testamentary Capacity 1. All persons not expressly prohibited by law The ability as well as the power to make a will must be present at the time of the execution of the will (2008 BAR).The capacity of a person to make a will shall be governed by his national law (Art. 15). 2. 3.

PART XI – SUCCESSION

At least 18 years of age; and Of sound mind To be of sound mind, it shall be sufficient if the testator was able at the time of making the will to know the: a. nature of the estate to be disposed of; b. proper objects of his bounty; and c. character of the testamentary act.

GENERAL PROVISIONS Requisites of succession (DATE) 1. Death of decedent; 2. Acceptance of the inheritance by the successor; 3. Transmissible estate; 4. Existence and capacity of successor, designated by decedent or law.

Formal requirements common to both Notarial and Holographic wills

Rules on the Construction of Wills

1. 2. 3.

1.

Formal Validity of Wills

TESTAMENTARY SUCCESSION

The words of the will are to be taken in their ordinary and grammatical sense unless there is a clear intention to use

Law governing extrinsic validity of wills; In writing; In a language or dialect known to the testator.

It is the law of the country where the will was executed that governs the form and solemnities of wills (Art. 17(1); Art. 815).

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UST LAW PRE-WEEK NOTES 2017 The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which the Civil Code prescribes (Art. 816). (1990, 1998, 2009 BAR)

Joint Wills (2000, 2008 Bar) Joint wills are NOT allowed in the Philippines. Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person (Art. 818).

Notarial Wills (1994, 2007, 2008 Bar)

Wills, prohibited by Art. 818, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed (Art. 819). (2000 BAR)

Formalities in the Execution of a Notarial Will (LaW-SPA2N2) 1. In Writing; 2. Executed in a Language or dialect known to the testator; 3. Subscribed at the end thereof by the testator himself or by the testator’s name written by some other person in his presence, and by his express direction; 4. Attested and subscribed by three or more credible witnesses in the presence of the testator and of one another; 5. The testator or the person requested by him to write his name must also sign every page, except the last, on the left margin in the presence of the witnesses; a. Mandatory – the signing on every page in the witnesses’ presence b. Directory – the place of the signing (on the left margin). The signature can be affixed anywhere on the page (Balane 2010). 6. All the pages shall be Numbered correlatively in letters on the upper part of each page; a. Mandatory – pagination by means of a conventional system purpose of which is to prevent insertion or removal of pages. b. Directory – pagination in letters on the upper part of each page (Balane, 2010). 7. Must contain an Attestation clause which expressly states the following: 1. The number of pages used upon which the will is written; 2. The fact that the testator signed the will and every page thereof, or caused some other person to write his name, under his express direction, in the presence of the instrumental witnesses; 3. The fact that the witnesses witnessed and signed the will and all the pages thereof in the presence of the testator and of one another. 8. Must be acknowledged before a Notary public by the testator and the witnesses.

Revocation of Wills (1997, 2003 Bar) Governing Law in case of Revocation 1. If the revocation takes place in the Philippines, whether the testator is domiciled in the Philippines or in some other country – Philippine laws 2. If the revocation takes place outside the Philippines: a. by a testator who is domiciled in the Philippines – Philippine laws b. by a testator who is not domiciled in this country – i. Laws of the place where the will was made, or ii. Laws of the place in which the testator had his domicile at the time of revocation (Art. 829). Allowance and Disallowance of Wills Grounds for Disallowance of a Will (IF2 SUM) 1. The Formalities required by law have not been complied with; 2. The testator was Insane or otherwise mentally incapable of making a will, at the time of its execution; 3. The will was executed through Force or under duress, or influence of fear or threats; 4. The will was procured by Undue and improper pressure and influence, on the part of the beneficiary or some other person; 5. The Signature of testator was procured by fraud. 6. The testator acted by Mistake or did not intend that the instrument he signed should be his will at the time of affixing his signature thereto (Art. 839). Institution of Heirs Conditions on the Prohibition to Marry GR: An absolute condition not to contract a first or subsequent marriage is not a valid condition and shall be considered as not written (Art. 874). However, the validity of the disposition itself shall not be affected.

Special Rules for Handicapped Testators Rules if the Testator is Deaf or Mute If the testator is able to read, he must personally read the will; or If the testator is unable to read, he must designate two persons to read it and communicate to him, in some practicable manner, the contents thereof (Art. 807, NCC).

XPN: If such condition was imposed on the widow or widower by the deceased spouse or by the latter’s ascendants or descendants, in which case, the condition is valid (Art. 874).

Rules if the Testator is Blind (2008 BAR) The will shall be read to him twice, once by one of the subscribing witnesses, and another time by the notary public before whom the will is acknowledged (Art. 808).

If the prohibition is relative with respect to persons, time or place, such conditions is valid and must be complied with unless the testator renders it impossible for the heir to marry at all.

Art. 808 applies not ONLY to blind testators but also to those who, for one reason or another, are incapable of reading their wills, either because of poor or defective eye sight or because of illiteracy.

Disposition Captatoria is any disposition made upon the condition that the heir shall make some provision in his will in favor of the testator or of any other person shall be void (Art. 875). Here, both the condition and the disposition are void but the validity of the other provisions, including the will itself, shall not be affected.

Witnesses Qualifications of witnesses (S18-ABCD)(2008 BAR) 1. Of Sound mind. 2. At least 18 years of age. 3. Able to read and write 4. Not Blind, deaf or dumb

Rules for Casual and Mixed Conditions GR: The condition may be fulfilled any time, either before or after the testator’s death unless the testator provides otherwise. XPN: a. If the condition is fulfilled at any time before the death of the testator, the condition is deemed fulfilled, unless the testator provides otherwise. b. If condition is already fulfilled at the time of the execution: 1. Testator is unaware - The condition is deemed complied with or fulfilled. 2. Testator is aware -

NOTE: While a blind or deaf may not be a witness, he could be a testator in a notarial will. 5. 6.

Not have been Convicted by final judgment of falsification of a document, perjury or false testimony. Domiciled in the Philippines – his habitual residence must be in the Philippines (Art. 50).

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CIVIL LAW i.

If the condition can no longer be fulfilled again, it is deemed fulfilled. ii. If the condition can still be fulfilled, there is a need to fulfill it again.

Rights of the Preterited Heirs They are entitled not only to their shares of the legitime but also to those of the free portion which was not expressly disposed of by the testator by way of devises and legacies.

Effect of a Suspensive Condition 1. Heir, Devisee, or legatee acquires no rights until the condition is fulfilled. 2. If he dies before the condition is fulfilled, he transmits no rights to his heirs, even though he survived the testator.

NOTE: The preterition of a compulsory heir in the direct line will result in total intestacy (Iris Morales v. Ana Maria Olondriz, G.R. No. 198994, February 3, 2016).

Reason: Capacity to succeed by the conditional heir must be determined both at the time of the death of the testator and at the time of the fulfillment of the condition.

The right of representation is allowed in compulsory succession with respect to the legitime in case the compulsory heir in the descending line dies before the testator or becomes incapacitated to succeed.

3. 4.

Right of Representation

Once the condition is fulfilled, its effects retroact to the moment of the death of the testator. If the suspensive condition is not fulfilled, the estate will be placed under administration until: a. The condition is fulfilled, in which case the estate should be given to the instituted heir; b. It becomes obvious that it cannot be fulfilled, in which case, the estate should be given to the intestate heirs.

Heirs who repudiated their share MAY NOT be represented. A voluntary heir MAY NOT also be represented. Rules in case of representation 1. It shall take place in cases of: a. Predecease b. Incapacity c. Disinheritance 2. Representation applies only to those acquired by virtue of provision of the law (legitime, intestate share, in case of reserva troncal); 3. No representation in cases of repudiation; 4. Representation only occurs in the direct descending line and never in the ascending; 5. In the direct collateral line, the right of representation only takes place in favour of children of brothers or sisters, full or half-blood; 6. The representation obtains degree by degree, and no jump is made.

Preterition Requisites 1. There is a total omission in the inheritance; 2. The person omitted is a compulsory heir in the direct line; 3. The omitted compulsory heir must survive the testator, or in case the compulsory heir predeceased the testator, there is a right of representation; 4. Nothing must have been received by the heir by gratuitous title. A spouse CANNOT be preterited. While a spouse is a compulsory heir, he/she is not in the direct line (ascending or descending).The surviving spouse shall only be entitled to recover his legitime but the institution of heirs shall not be annulled.

Substitution of Heirs (2002 Bar) Kinds of substitution 1. Simple/common (2002 BAR)– 2. Brief/compendious 3. Reciprocal 4. Fideicommissary Substitution

Effects of Preterition 1. Preterition annuls the institution of heirs; 2. Devices and legacies are valid insofar as they are not inofficious; 3. If the omitted compulsory heir dies before the testator, the institution shall be effectual, without prejudice to the right of representation.

Elements of Fideicommissary Substitution 1. There must be a first heir or fiduciary who takes the property upon the testator’s death; 2. An absolute obligation is imposed upon the fiduciary to preserve and to transmit to a second heir the property at a given time; 3. There is a second heir who takes the property subsequent from the fiduciary and must be one degree from the first heir; 4. The first and second heir must both be living and qualified at the time of the death of the testator.

Effect of Preterition on the Will Itself GR: The effect of annulling the institution of heirs will be, necessarily, the opening of a total intestacy except that proper legacies and devises must be respected. Here, the will is not abrogated. XPN: If the will contains a universal institution of heirs to the entire inheritance of the testator, the will is totally abrogated.

NOTE: It should be imposed on the free portion and not on the legitime. Fideicommissary substitution can never burden the legitime (Art 864).

TABLE OF LEGITIMES WHEN SURVIVING ALONE ½ of the hereditary estate (Free portion = ½) Surviving spouse where the marriage was solemnized under articulo mortis 1/3 of the hereditary estate (Free portion =2/3) and the deceased died within 3 months from the time of marriage. NOTE: The deceased was the spouse who was at the point of death at the time of marriage (Tolentino, Civil Code, 1992 ed.) Surviving spouse where the marriage was solemnized under articulo mortis and the deceased died within 3 months from the time of marriage but the parties have been living as husband and wife for more than 5 years prior to the marriage.

48

½ of the hereditary estate (Free portion = ½)

UST LAW PRE-WEEK NOTES 2017 PRIMARY HEIRS CONCUR WITH CONCURRING COMPULSORY HEIRS One legitimate child and the surviving spouse

Two or more legitimate children and the surviving spouse

Legitimate child Surviving spouse Free portion Legitimate children Surviving spouse Free portion

= ½ of the hereditary estate = ¼ of the hereditary estate =¼ = ½ of the hereditary estate in equal portions = a share equal to that of each child = whatever remains

Legitimate child

= ½ of the hereditary estate (if there are several, they shall divide the ½ share in equal portions) Illegitimate children = ½ of the share of each legitimate child (if the free portion is insufficient, the illegitimate children shall divide the free portion equally among themselves) Free portion = whatever remains

One legitimate child and illegitimate children

One legitimate child, the surviving spouse, and illegitimate children

Legitimate child = ½ of the hereditary estate Surviving spouse = ¼ of the hereditary estate Illegitimate children = ½ of the share of each legitimate child Free portion = whatever remains NOTE: The share of the surviving spouse shall have preference over those of the illegitimate children whose share may suffer reduction pro rata because there is no preference as among themselves. Legitimate children Surviving spouse Illegitimate children Free portion

Two or more legitimate children, surviving spouse, and illegitimate children

= ½ of the hereditary estate in equal portions = a share equal to that of each legitimate child = ½ of the share of each legitimate child = whatever remains

NOTE: The share of the surviving spouse shall have preference over those of the illegitimate children whose share may suffer reduction pro rata because there is no preference as among themselves.

SECONDARY HEIRS CONCUR WITH COMPULSORY HEIRS Legitimate parents and surviving spouse (1999 BAR)

Legitimate parents and illegitimate children

Legitimate parents, surviving spouse, and illegitimate children

Legitimate parents Surviving spouse Free portion Legitimate parents Illegitimate children Free portion

= ½ of the hereditary estate = ¼ of the hereditary estate =¼ = ½ of the hereditary estate = ¼ of the hereditary estate in equal shares =¼

Legitimate parents Illegitimate children Surviving spouse Free portion

= ½ of the hereditary estate = ¼ of the hereditary estate in equal shares = 1/8 of the hereditary estate = 1/8

Parents Children

Parents of the Illegitimate Decedent and children

Parents of the Illegitimate Decedent and the surviving spouse

= excluded = ½ if legitimate and ½ of the share of each legitimate child if illegitimate children Free portion = whatever remains Parents = ¼ of the hereditary estate Surviving spouse = ¼ of the hereditary estate Free portion =½

CONCURRENCE AMONG CONCURRING COMPULSORY HEIRS Surviving spouse and illegitimate children

Surviving spouse = 1/3 of the hereditary estate Illegitimate children = 1/3 of the hereditary estate (Rabuya, 2009).

Table of Intestate Shares Legitimate children alone Legitimate children and Illegitimate children Legitimate children and surviving spouse Legitimate Children, surviving spouse and illegitimate children Legitimate parents alone Legitimate ascendants (other than parents) alone Legitimate parents and illegitimate children Legitimate parents and surviving spouse

The whole estate divided equally The whole estate, each illegitimate child getting ½ share of one legitimate child The whole estate, divided equally (the surviving spouse counted as one legitimate child) The whole estate, the surviving spouse being counted as one legitimate child and each illegitimate child getting ½ share of one legitimate child The whole estate, divided equally The whole estate, observing in proper cases, the rule of division by line Legitimate parents = ½ of the estate Illegitimate children = ½ of the estate Legitimate parents = ½ of the estate Surviving spouse = ½ of the estate

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CIVIL LAW Legitimate parents, surviving spouse and illegitimate children Illegitimate children alone Illegitimate children and surviving spouse Surviving spouse alone Surviving spouse and illegitimate parents Surviving spouse and legitimate brothers and sisters, nephews and nieces

Surviving spouse and illegitimate brothers and sisters, nephews and nieces

Illegitimate parents alone Illegitimate parents and children of any kind Legitimate brothers and sister alone Legitimate brothers and sisters, nephews and nieces Nephews and nieces with Uncles and aunts Illegitimate brothers and sisters alone Illegitimate brothers, sisters, nephews and nieces Nephews and nieces alone Other collaterals State

Legitimate parents = ½ of the estate Surviving spouse = ¼ of the estate Illegitimate children = ¼ of the estate The whole estate, divided equally Illegitimate children = ½ of the estate Surviving spouse = ½ of the estate The whole estate No article governing, but Art. 997 may be applied by analogy, thus: Surviving spouse = ½ of the estate Illegitimate parents = ½ of the estate Surviving spouse = ½ of the estate Legitimate brothers, sisters, nephews, nieces = ½ of the estate (the nephews and nieces inheriting by representation in proper cases) Surviving spouse = ½ of the estate Illegitimate brothers, sisters, nephews and nieces = ½ of the estate (the nephews and nieces inheriting by representation in proper cases) NOTE: When the law speaks of brothers and sisters, nephews and nieces as legal heirs of an illegitimate child, it refers to illegitimate brothers and sisters as well as to the children, whether legitimate or illegitimate, of such brothers and sisters (Manuel v. Ferrer, 247 SCRA 476) The whole estate Illegitimate parents = excluded Children a. Child alone (legitimate or illegitimate) = whole estate b. Legitimate and illegitimate children = each illegitimate gets ½ share of one legitimate child The whole estate, with a brother/sister of the half-blood inheriting ½ the share of a brother/sister of the full blood The whole estate, observing the 2:1 proportion of full and half blood fraternity and the nephews and nieces inheriting by representation in the proper cases Uncles and Aunts = excluded Nephews and nieces = whole estate per capita, but observing the 2:1 proportion for the full and half blood The whole estate, observing the 2:1 proportion of full and half blood fraternity No article governing, but Arts. 1005 and 1008 may be applied by analogy, hence, they acquire the whole estate The whole estate per capita, but observing the 2:1 proportion for the full and half blood The whole estate, per capita, the nearer in degree excluding the more remote The whole estate Assignment and disposition 1. If decedent was a resident of the Philippines at any time: a. Personal property – to municipality of last residence b. Real property – where situated 2. If decedent was never a resident of the Philippines Personal and real property – where respectively situated How property is to be used: 1. For the benefit of public educational and charitable institutions in the respective municipalities/cities 2. Alternatively, at the instance of an interested party, or motu propio, court may order creation of a permanent trust for the benefit of the institutions concerned

Reserva Troncal Requisites that must exist in order that a property may be impressed with a reservable character 1. That the property was acquired by a descendant (called “praepositus” or propositus) from an ascendant or from a brother or sister by gratuitous title when the recipient does not give anything in return; 2. That said descendant (praepositus) died without an issue; 3. That the same property (called “reserva”) is inherited by another ascendant (called “reservista”) by operation of law

4.

(either through intestate or compulsory succession) from the praepositus; and That there are living relatives within the third degree counted from the praepositus and belonging to the same line from where the property originally came (called “reservatarios”) (Art. 891; Chua v. CFI of Negros Occidental, G.R. No. L-29901, August 31, 1977; Rabuya, 2009).

Three lines of transmission in reserva troncal 1. From the origin of the property (who must be an ascendant/brother/sister of propositus) to propositus, and the transmission must be thru gratuitous title;

50

UST LAW PRE-WEEK NOTES 2017 2.

3.

From the propositus (who died without issue) to the reservista (who must be an ascendant of the propositus) and the transmission is thru inheritance by operation of law; and From reservista to the reservatario, who must be a third degree relative by consanguinity of the propositus. (Mendoza v. Delos Santos, G.R. No 176422, March 20, 2013)

1. 2.

Order of preference under Art. 911

Disinheritance

1. Legitime of compulsory heirs; 2. Donations inter vivos; 3. Preferential legacies or devises; 4. All other legacies or devises pro rata

Requisites 1. Made in a valid will 2. Identity of the heir is clearly established 3. For a legal cause 4. Expressly made 5. Cause stated in the will 6. Absolute or unconditional 7. Total 8. Cause must be true and if challenged by the heir, it must be proved to be true.

Order of preference under Art. 950 1. 2. 3. 4. 5.

Remuneratory L/D; Preferential L/D; Legacy for support; Legacy for education; L/D of a specific, determinate thing which forms a part of the estate; 6. All others pro rata

NOTE: When the question of reduction is between and among legatees and devisees themselves, Art. 950 governs; but when there is a conflict between compulsory heirs and legatees/devisees, Art. 911 governs.

Grounds for Disinheritance 1. Common causes for disinheritance of children or descendants, parents or ascendants, and spouse: a. When the heir has been found guilty of an attempt against the life of the testator, his/her descendants or ascendants, and spouse, in case of children or parents. b. When the heir by fraud, violence, intimidation, or undue influence causes the testator to make a will or to change one already made. c. When the heir has accused the testator of a crime for which the law prescribes imprisonment of six years or more, if the accusation has been found groundless. d. Refusal without justifiable cause to support the testator who disinherits such heir. 2.

There are no compulsory heirs and the entire estate is distributed by the testator as legacy/devise; or There are compulsory heirs but their legitimes have already been provided for by the testator and there are no donations inter vivos.

Grounds for the Revocation of Legacy or Devise 1. Transformation of the thing in such a manner that it does not retain either the form or the denomination it had. 2. Alienation of the thing bequeathed. GR: The alienation of the property revokes the legacy or devise notwithstanding the nullity of the transaction. However, if the nullity is based on vitiated consent, the legacy or devise is not revoked because there was no intention to revoke (Fernandez v. Dimagiba, G.R. No. L23638,October 12, 1967). XPN: If the sale is pacto de retro and the testator reacquired it during his lifetime.

Peculiar Causes for Disinheritance a. Children and Descendants: i. Conviction of a crime which carries with it a penalty of civil interdiction ii. Maltreatment of the testator by word or deed by the children or descendant iii. When the children or descendant has been convicted of adultery or concubinage with the spouse of the testator iv. When the children or descendant leads a dishonorable or disgraceful life b. Parents or Ascendants: i. When the parent or ascendant has been convicted of adultery or concubinage with the spouse of the testator ii. When the parents have abandoned their children or induced their daughters to live a corrupt or immoral life, or attempted against their virtue iii. Loss of parental authority for causes specified in the Code iv. Attempt by one of the parents against the life of the other, unless there has been reconciliation between them c. Spouse: i. When the spouse has given cause for legal separation ii. When the spouse has given grounds for the loss of parental authority

3. 4.

Total loss of the thing bequeathedattributed to the heirs. If the legacy is a credit against a third person or the remission of a debt, and the testator, subsequent to the making of the will, brings an action against the debtor for payment. LEGAL OR INTESTATE SUCCESSION

Legal or Intestate succession takes place when: 1. There is no will; the will is void, or the will is revoked; 2. The will does not dispose all the property of the testator (partial intestacy); 3. The suspensive condition attached to the inheritance is not fulfilled; 4. The heir predeceased the testator or repudiates the inheritance and no substitution and no right of accretion take place. 5. The heir instituted is incapacitated to succeed. NOTE: The enumeration is not exclusive; there are other causes for intestacy which are not included in the enumeration. E.g. 1. 2. 3.

Legacies and Devises

4.

Order of Payment of Legacies and Devises 1. Remuneratory legacies or devises 2. Legacies or devises declared by testator to be preferential 3. Legacies for support 4. Legacies for education 5. Legacies or devises of a specific determinate thing which forms part of the estate 6. All others pro rata

Preterition; Arrival of the resolutory term or period; Fulfillment of a resolutory condition attached to the inheritance; Non-compliance or impossibility of complying with the will of the testator.

Rules on Exclusion and Concurrence in Intestate Succession 1. Legitimate children a. Exclude parents, collaterals and State b. Concur with surviving spouse and illegitimate children c. Are excluded by no one 2. Illegitimate children a. Exclude illegitimate parents, collaterals and State b. Concur with surviving spouse, legitimate children, and legitimate parents c. Are excluded by no one

The order of preference abovementioned is applicable when:

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CIVIL LAW 3.

4.

5.

6.

7.

8.

Legitimate parents a. Exclude collaterals and the State b. Concur with illegitimate children and surviving spouse c. Are excluded by legitimate children Illegitimate parents a. Exclude collaterals and State b. Concur with surviving spouse c. Are excluded by legitimate children and illegitimate children Surviving spouse a. Excludes collaterals other than brothers, sister, nephews and nieces, and State b. Concurs with legitimate children, illegitimate children, legitimate parents, illegitimate parents, brothers, sisters, nephews and nieces c. Is excluded by no one Brothers and Sister, nephews and nieces a. Exclude all other collaterals and the State b. Concur with surviving spouse c. Are excluded by legitimate children, illegitimate children, legitimate parents and illegitimate parents Other collaterals a. Exclude collaterals in remoter degrees and the State b. Concur with collaterals in the same degree c. Are excluded by legitimate children, illegitimate children, legitimate parents, illegitimate parents, surviving spouse, brothers and sisters, and nephews and nieces State a. Excludes no one b. Concurs with no one c. Is excluded by everyone (Balane, 2010).

Persons who are absolutely incapacitated to succeed: 1. 2. 3.

Those not living at the time of death of the testator Those who cannot be identified (NCC, Art. 845). Those who are not permitted by law to inherit. (NCC, Art. 1027)

Grounds for Relative Incapacity to Succeed (UMA) 1. 2. 3.

Undue influence or interest (NCC, Art. 1027) Morality or public policy (NCC, Art. 739) Acts of unworthiness (NCC, Art. 1032)

The following are incapacitated to succeed based on undue influence or interest (PRG-WPI) 1. 2.

3.

4.

PROVISIONS COMMON TO TESTATE AND INTESTATE SUCCESSION

The Priest who heard the confession of the testator during his last illness, or the minister of the gospel who extended spiritual aid to him during the same period; The Relatives of such priest or minister of the gospel within the fourth degree, the church, order, chapter, community, organization, or institution to which such priest or minister may belong; A Guardian with respect to testamentary dispositions given by a ward in his favor before the final accounts of the guardianship have been approved, even if the testator should die after the approval thereof; nevertheless, any provision made by the ward in favor of the guardian when the latter is his ascendants, descendant, brother, sister, or spouse, shall be valid; Any attesting Witness to the execution of a will, the spouse, parents, or children, or any one claiming under such witness, spouse, parents, or children; NOTE: Numbers 1 to 4 do not apply to legitimes.

Accretion

5.

Any Physician, surgeon, nurse, health officer or druggist who took care of the testator during his last illness;

Requisites of Accretion NOTE: Number 5 is an absolute disqualification. In order that the right of accretion may take place in a testamentary succession, it shall be necessary:

6.

1. That two or more persons be called to the same inheritance, or to the same portion thereof, pro indiviso; and 2. That one of the persons thus called die before the testator, or renounce the inheritance, or be incapacitated to receive it (NCC, Art. 1016).

Individuals, associations and corporations not permitted by law to inherit (NCC, Art. 1027).

The following are incapacitated to succeed based on morality or public policy (ACO) 1.

In testamentary succession, accretion takes place in case of:

2.

1. 2. 3. 4.

Predecease ; Incapacity ; Renunciation; Non-fulfillment of the suspensive condition imposed upon instituted heir ; and 5. Ineffective testamentary disposition

3.

In intestate succession, accretion takes place in case of:

1.

1. Predecease of legal heir; 2. Incapacity of legal heir ; and 3. Repudiation by legal heir

2.

Persons guilty of Adultery or concubinage with the testator at the time of the making of the will Persons guilty of the same Criminal offense, in consideration thereof A public officer or his wife, descendants and ascendants, by reason of his Office (Art. 1028 in relation to Art. 739 of NCC). (2000 BAR)

The following are incapacitated to succeed by reason of unworthiness (P-CAV-AFP-F)

3.

Determination of the Capacity to Succeed 4.

GR: In order to judge the capacity of the heir, devisee, or legatee, his qualification at the time of the death of the decedent shall be the criterion. XPN: If the institution, devise or legacy should be conditional (suspensive condition), the capacity is to be determined not only at the time of the death of the decedent but also at the time of the fulfillment of the condition.

Parents who have abandoned their children or induced their daughters to lead a corrupt or immoral life, or attempted against their virtues Persons Convicted of an attempt against the life of the testator, his or her spouse, descendants or ascendants Persons who Accused the testator of a crime for which the law prescribes imprisonment for six years or more, if the accusation has been found to be groundless Heir of full age who, having knowledge of the Violent death of the testator, should fail to report it to an officer of the law within a month unless the authorities have already taken action. NOTE: This prohibition shall not apply to cases wherein, according to law, there is no obligation to make an accusation.

5.

The governing law in determining the capacity to succeed of the heir, devisee, legatee is the law of the nation of the decedent. (1998, 2004 BAR)

52

Person convicted of Adultery or concubinage with the spouse of the testator

UST LAW PRE-WEEK NOTES 2017 6. 7. 8.

Person who by Fraud, violence, intimidation, or undue influence should cause the testator to make a will or to change one already made Person who by the same means Prevents another from making a will, or from revoking one already made, or who supplants, conceals, or alters the latter's will Person who Falsifies or forges a supposed will of the decedent (NCC, Art. 1032).

The partition may be effected either: 1. 2. 3. 4.

NOTE: Grounds 1, 2, 3, 5 and 6 are the same grounds as in disinheritance. Numbers 6, 7 and 8 cover six (6) acts which relate to wills: 1. 2. 3. 4. 5. 6.

Partition may be demanded by: 1. 2. 3. 4.

Causing the testator to make a will Causing the testator to change an existing will Preventing the decedent from making a will Preventing the testator from revoking his will Supplanting, concealing, or altering the testator's will. Falsifying or forging a supposed will of the decedent.

1. 2.

1. 2. 3.

3. 4.

It is voluntary and free It is retroactive Once made, it is irrevocable

Inheritance is deemed accepted:

3. 4.

Compulsory heir Voluntary heir Legatee or devisee Person who has acquired an interest in the estate

Partition cannot be demanded when: (PAPU)

Principal characteristics of acceptance and repudiation

1. 2.

By the decedent himself during his lifetime by an act inter vivos or by will By a third person designated by the decedent or by the heirs themselves By a competent court in accordance with the New Rules of Court

Expressly Prohibited by testator for a period not more than 20 years Co-heirs Agreed that estate not be divided for period not more than 10 years, renewable for another 10 years Prohibited by law To partition estate would render it Unserviceable for use for which it was intended

An estate can be partitioned inter vivos. Such partition shall be respected, insofar as it does not prejudice the legitime of compulsory heirs. (See Art. 1080)

When the heir sells, donates, or assigns his rights When the heir renounces it for the benefit of one or more heirs When renunciation is in favor of all heirs indiscriminately for consideration Other tacit acts of acceptance: a. Heir demands partition of the inheritance b. Heir alienates some objects of the inheritance c. Acts of preservation or administration if, through such acts, the title or capacity of the heir has been assumed d. Under Art. 1057 of the NCC, failure to signify acceptance or repudiation within 30 days after an order of distribution by the probate court.

Effects of the Inclusion of an Intruder in Partition 1. 2. 3.

Between a true heir and several mistaken heirs – partition is void. Between several true heirs and a mistaken heir – transmission to mistaken heir is void. Through the error or mistake; share of true heir is allotted to mistaken heir – partition shall not be rescinded unless there is bad faith or fraud on the part of the other persons interested, but the latter shall be proportionately obliged to pay the true heir of his share.

Ways by which the repudiation of the inheritance, legacy or devise may be made

In the partition of the estate, equality shall be observed as far as possible, dividing the property into lots, or assigning to each of the co-heirs things of the same nature, quality and kind. (NCC, Art. 1085)

1. 2. 3.

Indivisible thing

By means of a public instrument By means of an authentic instrument By means of a petition presented to the court having jurisdiction over the testamentary or intestate proceedings.

Should a thing be indivisible, or would be much impaired by its being divided, it may be adjudicated to one of the heirs, provided he shall pay the others the excess in case.

Effect of repudiation if an heir is both a testate and legal heir Nevertheless, if any of the heirs should demand that the thing be sold at public auction and that strangers be allowed to bid, this must be done (NCC, Art. 1086).

If an heir is both a testate and legal heir and he repudiated the inheritance as a testate heir, he is understood to have repudiated in both capacities. However, should he repudiate as a legal heir, without knowledge of being a testate heir, he may still accept the inheritance as a testate heir.

Heir selling his hereditary rights to a stranger Should any of the heirs sell his hereditary rights to a stranger before the partition, any or all of the co-heirs may be subrogated to the rights of the purchaser by reimbursing him for the price of the sale, provided they do so within the period of one (1) month from the time they were notified in writing of the sale by the vendor (NCC, Art. 1088).

Remedy if the heir repudiates the inheritance to the prejudice of his creditors If the heir repudiates the inheritance to the prejudice of his own creditors, the latter may petition the court to authorize them to accept it in the name of the heir.

Rescission and Nullity of Partition Partition and Distribution of Estate A partition may be rescinded or annulled for the same causes as contracts (NCC, Art. 1097).

Partition, in general, is the separation, division and assignment of a thing held in common among those to whom it may belong. The thing itself may be divided or its value (NCC, Art. 1079).

It may also be rescinded on account of lesion, when any one of the co-heirs received things whose value is less, by at least 1/4, than the share to which he is entitled, considering the value of the things at the time they were adjudicated (NCC, Art. 1098).

Every act which is intended to put an end to indivision among co-heirs and legatees or devisees is deemed to be a partition, although it should purport to be a sale, an exchange, a compromise, or any other transaction (NCC, Art. 1082).

Prescriptive Period

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CIVIL LAW later that the State ceded its right over the land in favor of Eljay by granting their patent application and issuing an original certificate of title in their favor. Prior to such conferment of title, Eljay possessed no right to dispose of the land which, by all intents and purposes, belongs to the State.

The action for rescission on account of lesion shall prescribe after 4 years from the time the partition was made.

PART – XII – LAND TITLES AND DEEDS TORRENS SYSTEM

The classification of public lands is an exclusive prerogative of the executive department of the government and not the Courts. In the absence of such classification, the land remains as an unclassified land until it is released therefrom and rendered open to disposition. Hence, the donation of the subject property is null and void from the very start (Heirs of Gozo v. PUMCO, G.R. No. 195990, August 05, 2015).

Q: What is a Torrens system? A: It is a system for registration of land under which, upon the landowner’s application, the court may, after appropriate proceedings, direct the Register of Deeds for the issuance of a certificate of title.

Q: Explain the nature of “Indefeasibility incontrovertibility of certificates of title”

The real purpose of Torrens System of land registration is to quiet title to land and stop forever any question as to its legality. Once a title is registered, the owner may rest secure without the necessity of waiting in the portals of court to avoid the possibility of losing his land.

A: The certificate, once issued, becomes a conclusive evidence of the title/ownership of the land referred to therein. What appears on the face of the title is controlling on questions of ownership of the property in favor of the person whose name appears therein and such cannot be defeated by adverse, open, and notorious possession; neither can it be defeated by prescription.

Q: Is registration a mode of acquiring ownership? A: NO. Registration of a piece of land under the Torrens System does not create or vest title, because it is not a mode of acquiring ownership. A certificate of title is merely an evidence of ownership or title over the particular property described therein. Thus, notwithstanding the indefeasibility of the Torrens title, the registered owner may still be compelled to reconvey the registered property to its true owners (Heirs of Tanyag vs. Gabriel, et. al.; G.R. No. 175763, April 11, 2012).

One who deals with property registered under the Torrens system need not go beyond the certificate of title, but only has to rely in the certificate of title (Mae Flor Galido v. Nelson Magrare, G.R. No. 208654, January 11, 2016). Rules as regards the indefeasibility and incontrovertibility of Torrens Title

Q: What are the modes of acquiring title over land? A: 1. 2. 3.

1.

By possession of land since time immemorial By possession of alienable and disposable public land By sale, donation, and other modes of acquiring ownership

2. 3.

Q: Enumerate the ways to acquire land titles. A: The acquisition of land titles can be made through the following: 1. 2. 3. 4. 5. 6. 7. 8.

Public grant Emancipation patent or grant Reclamation Adverse possession / acquisitive prescription Private grant or voluntary transfer Accretion Involuntary alienation Descent or devise

3. 4. 5.

The certificate of title serves as evidence of an indefeasible title to the property in favor of the person whose name appears therein. After the expiration of the one (1) year period from the issuance of the decree of registration upon which it is based, it becomes incontrovertible. Decree of registration and the certificate of title issued pursuant thereto may be attacked on the ground of actual fraud within one (1) year from the date of its entry and such an attack must be direct and not by a collateral proceeding. The validity of the certificate of title in this regard can be threshed out only in an action expressly filed for the purpose.

Q: Does the defense of indefeasibility of a Torrens title extend to a transferee who took it with notice of a flaw in the title of his transferor? A: NO. To be effective, the inscription in the registry must have been made in good faith. A holder in bad faith of a certificate of title is not entitled to the protection of the law, for the law cannot be used as a shield for fraud (Adoracion Rosales Rufloe, et al., v. Leonarda Burgos et al., G.R. No. 143573, January 30, 2009).

Q: What are the effects of the issuance of a Torrens title? A: 1. 2.

and

The land is placed under the operation of torrens system; Land is relieved from all claims except those noted thereon and provided by law; The land becomes incontrovertible and indefeasible; Title to the land becomes non-prescriptible; and The certificate of title is not subject to collateral attack.

REGALIAN DOCTRINE Explain the concept of “Regalian Doctrine” A time-honored constitutional precept that all lands of the public domain belong to the State, and that the State is the source of any asserted right to ownership in land, and charged with the conservation of such patrimony.

Q: Eljay donated a parcel of land embodied in a Deed of Donation to Kristoffer which is yet to be registered. Kristoffer took possession of the land in the concept of an owner. Two years thereafter, Eljay caused the registration of the land and obtained a homestead patent. Upon Eljay’s death, his heirs partitioned the lands and now claim that the donated land to Kristoffer also belongs to them. Interestingly, the land at the time it was donated was still part of the inalienable public domain and the State only ceded its rights over the land to Eljay two years from said donation. Was the donation valid?

Under the Regalian doctrine, land that has not been acquired from the government, either by purchase, grant, or any other mode recognized by law, belongs to the State as part of the public domain. Thus, it is indispensable for a person claiming title to a public land to show that his title was acquired through such means. To prove that the subject property is alienable and disposable land of the public domain, respondents presented the Community Environment and Natural Resources Office Certificate (CENRO). However, a CENRO or PENRO Certification is not enough to certify that a land is alienable and disposable (Republic v. San Mateo, et al., G.R. No. 203560, November 10, 2014).

A: NO. The donation is void. At the time the Deed of Donation was executed by Eljay the subject property was part of the inalienable public domain. It was only almost after two years

54

UST LAW PRE-WEEK NOTES 2017 The applicant for land registration must prove that the DENR Secretary had approved the land classification and released the land of the public domain as alienable and disposable, and that the land subject of the application for registration falls within the approved area per verification through survey by the PENRO or CENRO. In addition, the applicant for land registration must present a copy of the original classification approved by the DENR Secretary and certified as a true copy by the legal custodian of the official records.

disposable lands of public domain under a bona fide claim of ownership since June 12, 1945 or earlier (OCENCO); Q: In order that an alienable and disposable land of the public domain may be registered under Section 14(1) of P.D. 1529, should the land be classified as alienable and disposable as of June 12, 1945 or is it sufficient that such classification occur at any time prior to the filing of the applicant for registration provided that it is established that the applicant has been in open, continuous, exclusive and notorious possession of the land under a bona fide claim of ownership since June 12, 1945 or earlier?

Q: Rosario filed her application for land registration of a rice land that she had inherited, owning and possessing it openly, publicly, uninterruptedly, adversely against the whole world, and in the concept of owner since then; that the land had been declared in her name for taxation purposes. An opposition was interposed in behalf of the Government that whatever legal and possessory rights Rosario had acquired by reason of any Spanish government grants had been lost, abandoned or forfeited for failure to occupy and possess the land for at least 30 years immediately preceding the filing of the application; and that the land applied for, being actually a portion of a river control system that could not be subject of appropriation or land registration and that the land was within an unclassified region. Is the land subject of application for registration susceptible of private acquisition?

A: In the landmark case of Malabanan v. Republic, the Court en banc reiterated that the law does not require that the land subject of registration should have been alienable and disposable DURING the entire period of possession, or since June 12, 1945. It is sufficient that the land is already declared as alienable and disposable land AT THE TIME the application for registration is filed so as to entitle the possessor to registration (Malabanan v. Republic, G.R. No. 179987, April 29, 2009). 2.

GR: Properties of public dominion cannot be acquired by prescription.

A: NO. The land of the public domain, to be the subject of appropriation, must be declared alienable and disposable either by the President or the Secretary of the DENR. Unless public land is shown to have been reclassified or alienated to a private person by the State, it remains part of the inalienable public domain. Indeed, "occupation thereof in the concept of owner, no matter how long, cannot ripen into ownership and be registered as a title." In this problem, Rosario did not present any evidence of the land, albeit public, having been declared alienable and disposable by the state. (Republic vs. De Joson, G.R. No. 163767, March 10, 2014)

There must be an express declaration by the State that the public dominion property is no longer intended for public service or the development of the national wealth or that the property has been converted into patrimonial. Without such express declaration, the property, even if classified as alienable or disposable, remains property of the public dominion, and thus incapable of acquisition by prescription (Republic of the Philippines v. Andrea Tan, G.R. No. 199537, February 10, 2016). It is only when such alienable and disposable lands are expressly declared by the State to be no longer intended for public service or for the development of the national wealth that the period of acquisitive prescription can begin to run. Such declaration shall be in the form of a law duly enacted by Congress or a Presidential Proclamation in cases where the President is duly authorized by law.

CITIZENSHIP REQUIREMENT Q: Who are qualified to acquire private lands? A: 1. 2. 3. 4.

Filipino citizens; Filipino corporations and associations as defined in Sec. 2, Article XII of the Constitution and by exception; Aliens, but only by hereditary succession; and A natural-born citizen of the Philippines who has lost citizenship may be a transferee of private lands subject to limitations provided by law.

XPN: Where the law itself so provides. Thus, patrimonial property of the state may be the subject of acquisition through prescription. Under ordinary acquisitive prescription, a person acquires ownership of a patrimonial property through possession for at least 10 years, in good faith and with just title. Under extraordinary acquisitive prescription, a person’s uninterrupted adverse possession of patrimonial property for at least 30 years, regardless of good faith or just title, ripens into ownership.

NOTE: Filipino citizens can both acquire or otherwise hold lands of public domain. Q: May an alien acquire private lands?

NOTE: For one to invoke the provisions of Section 14(2) and set up acquisitive prescription against the state, it is primordial that the status of the property as patrimonial be first established. Furthermore, the period of possession preceding the classification of the property as patrimonial cannot be considered in determining the completion of the prescriptive period.

A: GR: An alien cannot acquire private lands. XPN: Acquisition by aliens is allowed when it is thru hereditary succession. Under R.A. No. 4726, foreign nationals can own Philippine real estate through the purchase of condominium units or townhouses. It expressly allows foreigners to acquire condominium units and shares in condominium corporations up to not more than 40% of the total and outstanding capital stock of a Filipino owned or controlled corporation. The land is owned by the condominium corporation and the unit owner is simply a member in this condominium corporation.

Adverse, continuous, open, public possession in the concept of an owner is a conclusion of law and the burden to prove it by clear, positive and convincing evidence is on the applicant. A claim of ownership will not proper on the basis of tax declarations if unaccompanied by proof of actual possession.

ORIGINAL REGISTRATION

The counting of the thirty (30)-year prescriptive period for purposes of acquiring ownership of a public land under section 14(2) can only start from the issuance of DARCO conversion order. Before the property was declared patrimonial by virtue of such conversion order, it cannot be

Q: Who are qualified for registration in ordinary registration proceedings? 1.

Those who have acquired ownership of private lands by prescription under provisions of existing laws;

Those who by themselves or through their predecessors-ininterest have been in open, continuous, exclusive, and notorious possession and occupation of alienable and

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CIVIL LAW acquired by prescription (Jean Tan, et al. v. Republic of the Philippines; G.R. No. 193443, April 16, 2012). 3. 4.

notice only of such burdens and claims as are annotated on the title. Considering that China Banks TCT was a clean title, that is, it was free from any lien or encumbrance, CDC had the right to rely, when it purchased the property, solely upon the face of the certificate of title in the name of China Bank. The CAs ascribing of bad faith to CDC based on its knowledge of the adverse possession of the respondent’s siblings at the time it acquired the property from China Bank was absolutely unfounded and unwarranted. That possession did not translate to an adverse claim of ownership that should have put CDC on actual notice of a defect or flaw in the China Banks title. (Casimiro Development Corporation v. Mateo, G.R. no. 175485, 27 July 2011)

Those who have acquired ownership of private lands or abandoned river beds by right of accession or accretion under the existing laws. Those who have acquired ownership of land by any other manner provided for by law.

Requisites for the filing of an application under Sec. 14(1) of PD. No. 1529 1. 2. 3.

4.

That the property is an agricultural land of public domain; That it has been classified by a positive act of government as alienable and disposable (A and D); That the applicant, by himself or through his predecessorsin-interest has been in open, continuous, exclusive and notorious possession and occupation of the land in the concept of owner (OCENCO); and That such possession and occupation is under a bona fide claim of ownership since June 12, 1945 or earlier.

SUBSEQUENT REGISTRATION It is where incidental matters after original registration may be brought before the land registration court by way of motion or petition filed by the registered owner or a party in interest. GR: Such deed, mortgage, lease, or other voluntary instrument shall operate only as a contract between the parties and as evidence of authority to the Register of Deeds to make registration. It is the act of registration which shall operate to convey or affect the land insofar as third persons are concerned, and in all cases, the registration shall be made in the office of the Register of Deeds for the province or city where the land lies. The act of registration creates a constructive notice to the whole world of such voluntary or involuntary instrument or court writ or process (Sec. 52, PD 1529).

Q: What are the instances when Register of Deeds may deny registration? A: 1. Where there are more than one copy of the owner’s duplicate certificate of title and not all such copies are presented in the Register of Deeds 2. Where the voluntary instrument bears on its face infirmity 3. Where the validity of the instrument sought to be registered is in issue in a pending suit in court 4. When the document is not verified and notarized.

XPN: A will purporting to convey or affect registered land shall take effect as a conveyance or bind the land, not merely as a contract or evidence of authority of the RD to make registration (Sec. 51, PD 1529).

Q: Discuss the rule where two or more certificates cover the same land.

VOLUNTARY DEALINGS

A: The general rule is that where two certificates of title are issued to different persons covering the same land in whole or in part, the earlier in date must prevail as between the original parties, and in case of successive registration where more than one certificate is issued over the land, the person holding under the prior certificate is entitled to the land as against the person who relies on the second certificate (Director of Lands v. CA, G.R. No. L-45168, January 27, 1981).

Q: Are voluntary dealings required to be registered? A: Voluntary Dealings are not required to be registered. Registration is not a requirement for validity of the contract as between the parties. However, the act of registration shall be the operative act to convey or affect the land insofar as third parties are concerned.

Q: Who is an innocent purchaser for value?

Q: What are the requirements for registrability of deeds and other voluntary acts of conveyance?

A: An innocent purchaser for value is one who buys the property of another without notice that some other person has a right to or interest in it, and who pays a full and fair price at the time of the purchase or before receiving any notice of another person’s claim (Locsin v. Hizon, et al., G.R. No. 204369, September 17, 2014).

A: 1. 2.

Q: What is the remedy if the property has already passed into the hands of an innocent purchaser for value?

3.

A: The remedy is to file action for damages from the person who allegedly registered the property from fraud, or if he had become insolvent or if the action is barred by prescription, to file an action for recovery against the Assurance fund within a period of 6 years from the time the right to bring such action accrues.

4.

Presentation of owner’s duplicate certificate whenever any duly executed voluntary instrument is filed for registration; Inclusion of one extra copy of any document of transfer or alienation of real property, to be furnished to the city or provincial assessor; Payment of prescribed registration fees and requisite documentary stamps; and Evidence of full payment of real estate tax as may be due.

Q: Is non-registration of property after judicial foreclosure and sale had the effect of invalidating the foreclosure proceedings, such that ownership reverts to the original owner?

Q: A parcel of land originally owned by Renato was mortgaged and foreclosed by China Bank. As a result, TCT was issued in favor of China Bank. China Bank later on sold the said land in favor of CDC Corporation and another TCT was issued in favor of the latter. CDC Corporation now brought an action for unlawful detainer in the MeTC against the Renato and the other occupants of the property. The Renato counters that CDC acquired the property from China Bank in bad faith as it had an actual knowledge of the possession of the property by him and his siblings and that CDC ignored the failure of China Bank to warrant its title. Is Renato correct?

A: NO. The effect of the failure of Apolinario Cruz to obtain the judicial confirmation was only to prevent the title to the property from being transferred to him. For sure, such failure did not give rise to any right in favor of the mortgagor or the respondents as his successors-in-interest to take back the property already validly sold through public auction. Nor did such failure invalidate the foreclosure proceedings. To maintain otherwise would render nugatory the judicial foreclosure and foreclosure sale, thus unduly disturbing judicial stability (Robles v. Yapcinco, G.R. No. 169568, October 22, 2014). INVOLUNTARY DEALINGS

A: NO. One who deals with property registered under the Torrens system need not go beyond the certificate of title, but only has to rely on the certificate of title. He is charged with

Q: Is registration required in involuntary dealings?

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UST LAW PRE-WEEK NOTES 2017 A: YES. Involuntary dealings, unlike the voluntary dealings, requires the registration. It is the act of registration which creates a constructive notice to the whole world of such instrument or court writ or process and is the operative act that conveys ownership or affects the land insofar as third persons are concerned.

Law may be recorded under Section 113 of the decree until the land shall have been brought under the operation of the Torrens system. The books of registration of the Revised Administrative Code, as amended by Act No. 3344, shall continue to be in force, provided that unregistered lands shall henceforth be registered under Section 113 (Agcaoili, 2015).

Involuntary dealings that must be registered 1. Attachment 2. Adverse claim 3. Notice of lis pendens

Where registered land has been the subject of a transaction and this was recorded under Act No. 3344, such recording does not bind third persons since registration thereunder refers to properties not registered under the Land Registration Act, and, hence, not effective for purposes of Article 1544 of the Civil Code on double sales. Registration of instruments, in order to affect and bind the land, must be done in the proper registry (Soriano v Magali, G.R No. L-15133, July 31, 1953).

Q: How is adverse claim registered? A: An adverse claim is registered by filing with the Register of Deeds a sworn petition stating the basis of the right claimed. The duty of the Register of Deeds to record the same on the title is ministerial. The notice of adverse claim is to apprise the third person that there is controversy over the ownership of the land, such that any transaction regarding the land is subject to the outcome of the dispute (Ching v. Enrile, GR. No. 156076, Sept 17, 2008).

PART XIII – TORTS AND DAMAGES GENERAL PRINCIPLES Q: What civil liabilities may arise due to an act or omission of one, causing damage to another?

Q: What is a notice of lis pendens?

A:

A: A notice of lis pendens is an announcement to the whole world that a particular real property is in litigation, serving as a warning that one who acquires an interest over the said property does so at his own risk or that he gambles on the result of the litigation of the said property Dela Merced v. GSIS, G.R. No. 125038, Nov. 16, 2001). Thus, one who buys land where there is a pending notice of lis pendens cannot invoke the right of a purchaser in good faith; neither can he have acquired better rights than those of his predecessor in interest (Yu v. CA, G.R. No. 109078, Dec. 25, 1995).

1.

NOTE: Every person criminally liable for a felony is also civilly liable (RPC, Art.100). 2.

Q: When may a notice of lis pendens be availed of? A: The litigation must involve the title to, or the use or occupration of, a specific property. It does not apply where the object of the suit is money judgment, or proceedings for the probate of will or administration of the estate of a deceased person, levy on execution or preliminary attachments (MR Holdings Ltd. V. Bajar, GR No. 153478, October 10, 2012). A notice of lis pendens subject the interest of the transferee to the result of pending suit.

A: 1. 2.

Q: What are non-registrable properties?

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

Independent civil liabilities, such as those: a. Not arising from an act or omission complained of as a felony, e.g., culpa contractual or obligations arising from law under Article 31 of the New Civil Code (such as breach of contract or tort), intentional torts under Articles 32 and 34, and culpa aquiliana under Article 2176 of the New Civil Code. b. Where the injured party is granted a right to file an action independent and distinct from the criminal action under Article 33 of the New Civil Code (in cases of defamation, fraud and physical injuries).

Q: What are the elements of quasi-delict? (1993, 1997, 2006, 2007, 2010 BAR)

NON-REGISTRABLE PROPERTIES

A: 1.

Civil liability ex delicto

3. Property of public domain or those intended for public use, public service or development of the national wealth. Forest or timber lands Water sheds Mangrove swamps Mineral lands Parks and plazas Military or naval reservations Foreshore lands Reclaimed lands Submerged areas River banks Lakes Reservations for public and semi-public purposes Other similar character.

Damage to the Plaintiff; Negligence, by act or omission, of which defendant, or some person for whose acts, must respond, was guilty; and Connection of cause and effect between such negligence and damage (FGU Insurance Corp. v. CA, G.R. No. 118889, March 23, 1998). CLASSIFICATION OF TORTS 1. NEGLIGENT TORTS

Q: What is the test of negligence? A: The test is would a prudent man, in the position of the tortfeasor, foresee harm to the person injured as a reasonable consequence of the course about to be pursued? If so, the law imposes a duty on the actor to take precaution against its mischievous results, and failure to do so constitutes negligence (Picart v. Smith, G.R. No. L-12219, March 15, 1918). Q: What is the doctrine of comparative negligence?

DEALINGS WITH UNREGISTERED LANDS

A: The negligence of both the plaintiff and the defendant are compared for the purpose of reaching an equitable apportionment of their respective liabilities for the damages caused and suffered by the plaintiff (Pineda, 2009).

Registration of instruments dealing with unregistered land The system of registration under the Spanish Mortgage Law, by express provision of Section 2 of the Property Registration Decree, has been discontinued and all lands registered under said system which are not yet covered by Torrens titles shall be considered unregistered lands. However, all instruments affecting lands originally registered under the Spanish Mortgage

The relative degree of negligence of the parties is considered in determining whether, and to what degree, either should be responsible for his negligence (apportionment of damages).

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CIVIL LAW 2. INTENTIONAL TORTS

c) place of birth; d) physical defect; or e) other personal condition (NCC, Art. 26).

Q: What is intent from the point of view of torts? A: It refers either to a person’s desire that certain consequences result from his actions or even his knowledge that those results are substantially certain to occur as a result of his actions (Garratt v. Dailey, 46 Wash 2d 197, 1955).

INFLICTION OF EMOTIONAL DISTRESS Requisites (ICE-D) The plaintiff must show that: 1. The conduct of the defendant was intentional or in reckless disregard of the plaintiff; 2. The conduct was extreme and outrageous; 3. There was a causal connection between the defendant’s conduct and the plaintiff’s mental distress; and 4. The plaintiff’s mental distress was extreme and severe (MVRS Publications Inc. v. Islamic Da’wah Council of the Philippines, G.R. No. 135306, January 28, 2003).

A. INTENTIONAL PHYSICAL HARM ASSAULT (GRAVE THREAT) Elements (LICA3) 1. 2. 3. 4. 5.

That a person committed a voluntary Act; That the person’s act created in another person an Apprehension of immediate harmful or offensive contact with the latter’s person; That the person Intended to cause either a harmful or offensive contact or an apprehension of such a contact; That there was a Causal connection between the attacker and the other person’s apprehension; The victim Lacks consent.

FALSE IMPRISONMENT DETENTION)

(DIGNITARY

NOTE: Even if there was no intentional infliction of emotional distress in one case, the SC recognized the possibility that one may be made liable for the tort of intentional infliction of emotional distress. VIOLATION OF PRIVACY

TORT/ILLEGAL

Q: What are the zones of privacy under the NCC, RPC, Rules of Court, and special laws?

Elements (CACAI)

A:

1.

1.

2. 3. 4. 5.

An Act or omission on the part of defendant that confines or restrains plaintiff; That plaintiff is confined or restrained to a bounded area; Intent; Causation; and Awareness of the defendant of the confinement that the defendant was actually harmed by it.

2.

TRESPASS TO CHATTELS (TROVER)

3.

Elements (PAI) 1.

2. 3.

That every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons and any act of a person of meddling and prying into the privacy of another is punishable as an actionable wrong; That a public officer or employee or any private individual shall be liable for damages for any violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications; The RPC makes a crime the: a. Violation of secrets by an officer; b. Revelation of trade and industrial secrets; and c. Trespass to dwelling. Invasion of privacy is likewise an offense in special laws such as the: a. Anti-wiretapping law; and b. Secrecy of bank deposits act; and The Rules of Court provisions on privileged communication.

The defendant took a voluntary Act which interfered with the plaintiff’s right of possession in the chattel. It could either be dispossession (taking possession to the exclusion of the owner) or intermeddling (touching or harming it without removing it from the owner’s possession); The defendant Intended the interference; and The plaintiff either Possessed or had the immediate right to possess the same.

4.

NOTE: Damages must be proven if the act is intermeddling, but if the act is dispossession, actual damages need not be proven.

Elements

5.

MALICIOUS PROSECUTION

In criminal cases 1.

B. INTENTIONAL NON-PHYSICAL HARMS

The fact of the prosecution and the further fact that the defendant was himself the prosecutor, and that the action was terminated with an acquittal; That in bringing the action, the prosecutor acted without probable cause; and The prosecutor was actuated or impelled by legal malice (Yasoña v. Ramos, G.R. No. 156339, October 6, 2004).

VIOLATION OF PERSONAL DIGNITY

2.

Q: What is the rule with respect to the right of a person to his dignity, personality, privacy and peace of mind?

3.

A: Every person shall respect the dignity, personality, privacy and peace of mind of his neighbors and other persons. The following and similar acts, though they may not constitute a criminal offense, shall produce a cause of action for damages, prevention and other relief:

To constitute malicious prosecution, there must be proof that the prosecution was prompted by a sinister design to vex and humiliate a person, and that it was initiated deliberately, knowing that the charges were false and groundless (Pineda, 2009).

1. 2.

In civil cases

3. 4.

Prying into the privacy of another's residence; Meddling with or disturbing the private life or family relations of another; Intriguing to cause another to be alienated from his friends; and Vexing or humiliating another on account of his:

1. 2. 3.

a) religious beliefs; b) lowly station in life;

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The defendant filed a civil action against the plaintiff previously; The action was dismissed for clear lack of merit or for being baseless, unfounded, and malicious; The defendant who filed the previous complaint as plaintiff was motivated by ill-will or sinister design; and

UST LAW PRE-WEEK NOTES 2017 4.

The present plaintiff suffered injury or damage by reason of the previous complaint filed against him (Pineda, 2009). NOTE: A disbarment proceeding being judicial in character may therefore be the basis for a subsequent action for malicious prosecution (Ponce v. Legaspi, et al., G.R. No. 79184, May 6, 1992).

NOTE: Court requires objective and subjective belief (reasonable person could have seen the situation as dangerous and subject believed that he was in danger).

DEFAMATION

There is no requirement to prove negligence or intent.

3. STRICT LIABILITY

Requisites (DIP-M) 1. 2. 3. 4.

A. POSSESSOR AND USER OF AN ANIMAL

It must be Defamatory; It must be Malicious; It must be given Publicity; and The victim must be Identifiable (Alonzo v. CA, G.R. No. 110088, February 1, 1995).

Q: What is the liability for damages caused by animals? A: GR: The possessor or whoever makes use of the animal is liable independent of fault. XPN: When the damage is caused by force majeure or by the person who suffered the damage.

NOTE: “Publicity” is the communication of the defamatory matter to some third person or persons.

B. NUISANCE

Q: Is the defense of expressing one’s opinion or belief tenable?

Q: What is the doctrine of Attractive Nuisance?

A: NO. Allegation that the offender merely expresses his opinion or belief is not a defense in defamation cases. To escape criminal responsibility, it is not enough for the offender to say that he expresses therein no more than his opinion or belief. The communication must be made in the performance of a “legal, moral, or social duty.”

A: One who maintains on his premises dangerous instrumentalities or appliances of a character likely to attract children in play, and who fails to exercise ordinary care to prevent them from playing therefrom is liable to a child of tender years who is injured thereby, even if the child is a trespasser (Hidalgo v. Balandan, G.R. No. L-3422, June 13, 1952).

VIOLATION OF RIGHTS COMMITTED BY PUBLIC OFFICERS THE TORTFEASOR Requisites 1. 2. 3. 4.

Q: What is the liability of tortfeasors?

Defendant is a public officer charged with the performance of a duty in favor of the plaintiff; He refused or neglected without just cause to perform such duty (ministerial); Plaintiff sustained material or moral loss as consequence of such non-performance; and The amount of such damages, if material.

A: The responsibility of two or more persons who are liable for quasi-delict is solidary (NCC, Art. 2194). Each are liable as principals, to the same extent and in the same manner as if they had performed the wrongful act themselves (Ruks Konsult and Construction v. Adworld Sign and Advertising Corp., G.R. No. 204866, January 21, 2015).

DEFENSES TO INTENTIONAL TORTS

ACT OR OMISSION AND ITS MODALITIES

Q: Can the consent of the injured party be considered as a defense by the tortfeasor?

Q: What is the forseeability test? It is the test to determine the existence of negligence is whether a prudent man could foresee harm as a result of the course actually pursued (Picart v. Smith, Jr., G.R. No. L-12219, March 15, 1918).

A: Typically, one cannot hold another liable in tort for actions to which one has consented. This is frequently summarized by the phrase "volenti non fit injuria" ("to a willing person, no injury is done" or "no injury is done to a person who consents"). It operates when the claimant either expressly or implicitly consents to the risk of loss or damage.

Q: When is negligence excused? A: GR: Negligence is excused when events that transpired were unforeseen or, which though foreseen, were inevitable (NCC, Art. 1174).

NOTE: Consent is willingness in fact for the conduct to occur. Q: Is consent a defense if the plaintiff or offended party is a minor?

XPN: 1. In cases specified by law; 2. When declared by stipulation; or 3. When the nature of the obligation requires the assumption of risk.

A: NO. For one to surrender the right to be free from intentional interference by others, one must have the mental capacity to consent. Defendant can be liable despite the fact that the plaintiff was subjectively willing and communicated that willingness to the defendant.

Q: What is the principle of vicarious liability or law on imputed negligence? (2001-2006, 2009, 2010 BAR)

Q: Can self-defense be used as a defense to escape liability?

A: The obligation imposed by Article 2176 of the NCC for quasidelicts is demandable not only for one's own acts or omissions, but also for those persons for whom one is responsible (NCC, Art. 2180).

A: YES. An actor is privileged to defend himself against another by force likely to cause death or serious bodily harm when he reasonably believes that: 1. 2.

NOTE: A person or juridical entity is made liable solidarily with a tortfeasor simply by reason of his relationship with the latter.

The other is about to inflict upon him an intentional contact and He is thereby put in peril of death or serious bodily harm which can safely be prevented only by immediate use of such force.

Q: What is the nature of responsibility of a vicarious obligor?

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CIVIL LAW A: Primary and direct, not subsidiary. He is solidarily liable with the tortfeasor. His responsibility is not conditioned upon the insolvency of or prior recourse against the negligent tortfeasor (De Leon Brokerage v. CA, G.R. 15247, February 28, 1962).

No. 11154, March 21, 1916). NOTE: Where the government commissions a private individual for a special governmental task, it is acting through a special agent within the meaning of the provision (Largo, 2007).

Q: What constitutes a common defense? VICARIOUS LIABILITY: TEACHERS AND HEADS OF ESTABLISHMENTS OF ARTS AND TRADES

A: The vicarious liability shall cease when the defendants prove that they observed all the diligence of a good father of a family to prevent damage (NCC, Art. 2180; Cuadra v. Monfort, G.R. No. L24101 September 30, 1970).

Q: Is the application of vicarious liability under Art. 2180 of the NCC limited to schools of arts and trade?

Persons Vicariously Liable (F-GOES-T) 1. 2.

3.

4.

A: The application of Article 2180 of the New Civil Code is not limited to schools of arts and trades. There is really no substantial distinction between the academic and the non-academic schools insofar as torts committed by their students are concerned. The same vigilance is expected from the teacher over the students under his control and supervision, whatever the nature of the school where he is teaching. There is no reason why different degrees of vigilance should be exercised by the school authorities on the basis only of the nature of their respective schools (Amadora v. CA, G.R. No. L-47745, April 15, 1988).

Father, or in case of death or incapacity, mother: a. Damage caused by minor children b. Living in their company Guardians: a. For minors or incapacitated persons b. Under their authority c. Living in their company Owners and managers of establishments: a. For their employees b. In the service of the branches in which they are employed, or; c. On the occasion of their functions Employers: a. Damages caused by employees and household helpers b. Acting within the scope of their assigned tasks c. Even if the employer is not engaged in any business or industry

PROXIMATE CAUSE It is that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. When the plaintiff's own negligence was the immediate and proximate cause of his injury, he cannot recover damages. But if his negligence was only contributory, the immediate and proximate cause of the injury being the defendant's lack of due care, the plaintiff may recover damages, but the courts shall mitigate the damages to be awarded (NCC, Art. 2179).

When an injury is caused by the negligence of an employee there instantly arises a presumption of the law that there was negligence on the part of the employer either in the selection of his employee or in the supervision over him after such selection. The presumption, however, may be rebutted by a clear showing on the part of the employer that it had exercised the care and diligence of a good father of a family in the selection and supervision of his employee (Travel & Tours Advisers, Inc., v. Alberto Cruz, et al., G.R. No. 199282, March 14, 2016). 5. 6.

TORT CONCEPTS AND DOCTRINES RES IPSA LOQUITUR Q: Gerald was born with an imperforate anus. Two days after his birth, he underwent colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal wall, enabling him to excrete through a colostomy bag attached to the side of his body. Three years later, Gerald was admitted at the Ospital ng Maynila for a pull-through operation. During the operation, Gerald experienced bradycardia, and went into a coma. His coma lasted for two weeks, but he regained consciousness only after a month. He could no longer see, hear or move. Agitated by her son’s helpless and unexpected condition, Luz lodged a complaint against the physician, Dr. Solidum, for reckless imprudence resulting in serious physical injuries with the City Prosecutor’s Office of Manila. She contends that the Dr. Solidum was negligent, applying the doctrine of res ipsa loquitur. Will the suit prosper?

State – acting through a special agent and not when the damage has been caused by the official to whom the task done properly pertains. Teachers or heads of establishments: a. Of arts and trades b. For damages caused by their pupils and students or apprentices c. So long as they remain in their custody (Art. 2180).

Q: What is the rule on vicarious liability of owners and managers of establishments under Article 2180(5)? (1991, 2001 BAR) A: GR: It is required that the employee must be performing his assigned task at the time that the injury is caused.

A: NO. For Res Ipsa Loquitur to apply, the following essential requisites must first be satisfied, to wit: (1) the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must not have been due to any voluntary action or contribution of the person injured.

XPN: However, it is not necessary that the task performed by the employee is his regular job or that which was expressly given to him by the employer. It is enough that the task is indispensable to the business or beneficial to the employer (Filamer Christian Institute v. IAC, G.R. No. 75112, August 7, 1992). NOTE: It is not required that the employer is engaged in some kind of industry or work (Castilex Industrial Corporation v. Vasquez, G.R. No. 132266 December 21, 1999).

The doctrine is inapplicable in this case. Although it should be conceded without difficulty that the second and third elements were present, the first element was undeniably wanting. Luz delivered Gerald to the care, custody and control of his physicians for a pull-through operation. Except for the imperforate anus, Gerald was then of sound body and mind at the time of his submission to the physicians. Yet, he experienced bradycardia during the operation, causing loss of his senses and rendering him immobile. Insufficiency of oxygen supply to the brain that caused the slowing of the heart rate, scientifically

Q: Who is a special agent? A: A special agent is one who receives a definite and fixed order or commission, foreign to the exercise of the duties of his office. An employee who on his own responsibility performs functions inherent in his office and naturally pertaining thereto is not a special agent (Meritt v. Government of the Philippine Islands, G.R.

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UST LAW PRE-WEEK NOTES 2017 termed as bradycardia, would not ordinarily occur in the process of a pull-through operation, or during the administration of anesthesia to the patient, but such fact alone did not prove that the negligence of any of his attending physicians had caused the injury. There was really no firm and competent showing how the injury to Gerald had been caused. That meant that the manner of administration of the anesthesia by Dr. Solidum was not necessarily the cause of the hypoxia that caused the bradycardia experienced by Gerard (Solidum v. People, G.R. No. 19212, March 10, 2014). (Bersamin, J)

VOLENTI NON FIT INJURIA “to which a person assents is not deemed in law as injury” It refers to self-inflicted injury or to the consent to injury which precludes the recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even if he is not negligent in doing so (Nikko Hotel Manila Garden, et al. v. Reyes, G.R. No. 154259, February 28, 2005). DOCTRINE OF LAST CLEAR CHANCE (DOCTRINE OF DISCOVERED PERIL or DOCTRINE OF SUPERVENING NEGLIGENCE)

MEDICAL NEGLIGENCE Q: What are the elements of medical negligence?

Q: What is the doctrine of last clear chance?

A: 1. 2. 3. 4.

A: This is also called as the “Humanitarian Negligence Doctrine.” Where both parties are negligent but the negligent act of one succeeds that of the other by an appreciable interval of time, the one who has the last reasonable opportunity to avoid the impending harm and fails to do so, is chargeable with the consequences, without reference to the prior negligence of the other party (Picart v. Smith, G.R. No. L-12219, March 15, 1918).

Duty Breach of duty Injury Proximate Causation

Q: What is the doctrine of captain of the ship? A: The surgeon is likened to a ship captain who must not only be responsible for the safety of the crew but also of the passengers of the vessel. The head surgeon is made responsible for everything that goes wrong within the four corners of the operating room. It enunciates the liability of the surgeon not only for the wrongful acts of those who are under his physical control but also those wherein he has extension of control (Ramos v. CA, G.R. No. 124354, December 29, 1999).

The doctrine of last clear chance is a theory adopted to mitigate the harshness of the contributory negligence of the plaintiff (Phoenix Construction Inc. v. IAC, G.R. No. L-65295, March 10, 1987).

Q: What is the doctrine of informed consent?

2.

Requisites: 1.

A: A physician has a duty to disclose what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risks of injury might be incurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare, and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits (Li v. Sps. Soliman, G.R. No. 165279, June 7, 2011).

3.

Plaintiff is placed in danger by his own negligent acts and he is unable to get out from such situation by any means; Defendant knows that the plaintiff is in danger and knows or should have known that the plaintiff was unable to extricate himself therefrom; and Defendant had the last clear chance or opportunity to avoid the accident through the exercise of ordinary care but failed to do so, and the accident occurred as a proximate result of such failure (Pineda, 2009). DOUBLE RECOVERY

Q: What is the prohibition against double recovery? (2003, 2006 BAR)

Q: What is the liability of a tortfeasor in case a fortuitous event and negligence concurs?

A: Responsibility for fault or negligence under quasi-delict is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant (NCC, Art. 2177).

A: When act of God combines with the negligence of man which results in injury, the defendant is liable for injury (Ilocos Norte Electric Co. v. CA, G.R. No. L-53401, November 6, 1989).

NOTE: What is barred by law is the double recovery of damages, not the availment double remedies.

DAMNUM ABSQUE INJURIA (DAMAGE WITHOUT PREJUDICE)

LEGAL INJURY

A person who only exercises his legal rights does no injury. If damages result from such exercise of legal rights, the consequences must be borne by the injured person alone. The law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong (Heirs of Purisima Nala v. Cabansag, G.R. No. 161188, June 13, 2008).

Q: Differentiate injury, damage and damages A: Injury Damage

CONTRIBUTORY NEGLIGENCE

Damages

Q: What is the extent of recovery of damages in case of contributory negligence?

The illegal invasion of a legal right. The loss, hurt, or harm which results from the injury. The recompense or compensation awarded for the damage suffered.

Q: Can tort arise from breach of contract? A: 1. 2.

A: YES. A quasi-delict can be the cause for breaching a contract that might thereby permit the application of principles applicable to tort even when there is a pre-existing contract between the plaintiff and the defendant.

Recovery completely barred - When the plaintiff’s own negligence was the immediate and proximate cause of his injury, he cannot recover damages (NCC, Art. 2179). Mitigated damages – If the plaintiff’s negligence was only contributory, the immediate and proximate cause of the injury being the defendants lack of due care, he may recover damages, but the courts shall mitigate the damages to be awarded (Ibid.).

Where, without a pre-existing contract between two parties, an act or omission can nonetheless amount to an actionable tort by itself, the fact that the parties are contractually bound is no bar

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CIVIL LAW to the application of quasi-delict provisions to the case. This rule can govern only where the act or omission complained of would constitute an actionable tort independently of the contract (Far East Bank and Trust Company v. CA, G.R. No. 108164, February 23, 1995). NOTE: The act that breaks the contract may be also a tort (Air France v. Carrascoso, G.R. No. L-21438, September 28, 1966).

DAMAGES Q: What are damages? A: In legal contemplation, the term “damages” is the sum of money which the law awards or imposes as a pecuniary compensation, a recompense or satisfaction for an injury done or wrong sustained as a consequence either of a breach of a contractual obligation or a tortious act (MEA Builders, Inc. v. CA, G.R. No. 121484, January 31, 2005). NOTE: A complaint for damages is personal in nature (personal action). Q: Can damages be paid in kind? A: NO. Damages can only be paid with money and not “palay” because “palay” is not a legal tender currency in the Philippines (Vda. Simeon Borlado v. CA, G.R. No. 114118, August 28, 2001). NOTE: In actions for damages, the courts should award an amount to the winning party and not its equivalent in property (Ibid.). Kinds of damages (MENTAL) 1. 2. 3. 4. 5. 6.

Moral Exemplary or corrective Nominal Temperate or moderate Actual or compensatory Liquidated

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