Civil Law Review Lecture and Recitation Notes o Yes, for instance, declarations of citizenship.

It still has to be
published. Same rule applies, even if only one locality is
Glenn Tuazon, 4-A affected
Atty. Ruben F. Balane  Read Tanada v. Tuvera.
SY 2010-11 o It is not whether you read the publication or not. It not whether
you understand the law or not. As long as there is opportunity
Midterms – Succession to read it, there is compliance with publication requirements.
Finals – Obligations and Contracts  Garcillano v. House:
o The rules of procedure for legislative inquiries of Senate must
TABLE OF CONTENTS:
be published in accordance to Art. 2 of the Civil Code, as
mandated by the constitution (“duly published”).
1. PRELIMINARY TITLE
 SEC v. GMA Network:
2. PERSONS AND FAMILY RELATIONS
o A memorandum circular regulating filing fees for submission of
3. PROPERTY
articles of incorporation or extension of corporate life must be
4. SUCCESSION
published because it regulates public rights at large.
5. OBLIGATIONS AND CONTRACTS
Mistake of fact v. mistake of law

 Mistake of fact can be a ground for vitiation of consent. But mistake of

PRELIMINARY TITLE
Publication
 When do laws become effective?
o 15 days after publication in OG or newspaper of general
circulation (EO 200), unless otherwise provided
 Is 15 days mandatory?
o No. It can be some other time period, less or more. What is
mandatory is fact of publication.
 Can the law provide that there is no need for publication?
o No. The phrase “unless otherwise provided” only refers to the
number of days, not fact of publication.
 What is required to be published?
o The entire text of the law.
 What is the interpretation of the term “law”?
o It can be executive issuances, regulations, et. al., and not just
republic acts, as long as it affects the public in general and it
requires public interest.
 Can a law affect just one person?
law is not a defense for vitiated consent.
 Specific instances where a mistake of law can have some effect?
o Good faith defense – must show that it is a difficult provision of
law to interpret, and this gave rise to mistake (Art. 526). BUT
this only gives rise to mitigation of liability, not complete excuse
there from.
o Mistake of payment or solutio indebiti
Prospectivity of laws
 General rule: laws are prospective in nature.
 When did the Family Code take effect?
o August 3, 1988
 When did the Civil Code take effect?
o August 30, 1950
 Exceptions to non-retroactivity?
o Regardless of what kind of law, it MUST have a retroactivity
clause. (IMPT)
o 1. Procedural laws
o 2. Curative laws
 o 3. Tax laws
o 4. Penal laws which benefit the accused
o 5. Substantive laws that do not impair vested rights
 Liam Law v. Olympic Sawmill:
o Ineffectivity of usury law should retroact as to change the
Rules of Court as to this matter.
Three types of termination of laws
 Effectivity of laws is a shared legislative and judicial function.
 (1) Repeal: Requires another law passed by Congress declaring that
the law is repealed, or a new law that is irreconcilable with the old law.
Implied repeal is not favored.
 What happens if the repealing law is itself repealed?
o It depends on law number 2. If law number 2 is a case of
express repeal, then law number 1 is not revived. There must
be a specific provision reviving it.
o If law number 2 is a case of implied repeal, then law number 1
is revived unless law number 3 is likewise incompatible or law
number 3 revives law 1.
 (2) When does a law lapse?
o When the law itself provides for its own lifespan. There is no
need for a further statute to give effect to its lapse.
 (3) Unconstitutionality declared by courts. How does this differ?
o When the court declares that a law is unconstitutional, it is null
and void from the beginning. Exception: operative fact, which
is based on equity.
Judicial decisions
 Considered as part of the law of the land. Stare decisis, however, only
applies to SC decisions.
 It does not, however, become a “law” per se – no need to publish.
 De Roy v. CA:
o Judicial decisions need not be published first in the OG before
becoming effective and binding jurisprudence. A lawyer must
keep abreast with judicial decisions.
Computation of period of laws
 Ordinary contracts: you can define your terms any way you want
(example, a year can be 300 days) For laws, however, a year is 365
days.
o UNLESS, one specifically names the year
 First day excluded, last day included.
 For contracts, it does not matter if the last day falls on a weekend.
Contrast with Rules of Court, where it adjusts to the next business day.
Principle of nationality
 What are the things covered by the principle of nationality?
o Family rights and duties,
o status and condition, (ex. legitimacy, whether marriage is valid)
o Legal capacity
 Wherever a Filipino citizen is, Philippine law governs the three realms
above.
 When there is an alien within our country, we still apply their national
laws as regards family rights and duties, status and condition, and legal
capacity.
 For purposes of legal capacity, when will the principle of
nationality not apply?
o Marriages – lex loci celebrationis but only as to authority of
solemnizing officer, marriage license, marriage ceremony
 General rule: still governed by nationality (IMPT)
o Contracts involving real or personal properties – lex situs
 Exception: when reason of acquisition of the thing is
succession: nationality of the decedent governs
o For the formal validity of wills – lex loci celebrationis
 3 things to determine:
o What law governs legal capacity
o What law governs extrinsic validity
o What law governs intrinsic validity
 CONTRACTS
o Legal capacity – nationality
 Except: contracts referring to properties, which is
governed by lex situs
o Extrinsic validity – lex loci celebrationis
o Intrinsic validity – there is freedom to stipulate governing law
 WILLS
 o Legal capacity – national law of decedent, not successor
o Extrinsic validity – lex loci celebrationis
 Aliens’ choices – national law, domicile, Philippine
law, lex loci celebrationis
 NOTE: for aliens’ wills, these refer to wills presented
for probate in the Philippines; we don’t care otherwise
o Intrinsic validity – national law of the decedent
 When does renvoi usually apply?
o This usually applies when an alien dies in the Philippines.
Basing this on general principle, basing it on the law of
nationality of decedent. If based on national law of decedent, it
refers back to the law of the domicile (which is the Philippines),
then we accept the renvoi and apply Philippines
 Llorente v. CA:
o A married Filipino man joined the US army and became a US
citizen. He divorced his wife after his wife cheated on him.
The divorce was valid because under American national laws,
he could initiate divorce.
Human relations
 Pardo de Tavera case – human relations chapter are just general
concepts guiding particular human conduct. In the absence of any
specific law or contract, then you use these provisions. You cannot
immediately use these provisions, if there is a specific governing law or
contract.
 Chato v. Fortune Tobacco Corp:
o In order for Art. 32 to apply, where a private individual can hold
a public officer personally liable of an act or omission only if
there is a particular injury to that person.
 Duty to act with justice, observe honesty, and good faith:
o Every person in the exercise of his rights and in the
performance of his duties must act with justice, give everyone
his due, and observe honesty and good faith.
o Lorente v. Sandiganbayan: An official who cleared three
other terminated employees for unpaid liabilities (which is
offset by gratuities later) and then suddenly “went legal” on
another employee for no apparent reason was not acting with
justice, honesty, good faith.
o Leads to civil liability even if perfectly legal.
 What is the difference between Art 20 and 21?
o Article 20 has to be contrary to law. Article 21 is legal, but
contrary to morals, public policy, customs.
o Article 20, the act is either done willfully or negligently. Article
21, intentional.
 Article 21 – breach of promise to marry. Is there any law that says
you have to comply with the promise to marry?
o No. You cannot demand for specific performance that the
other marry you.
o But you can recover actual damages for expenses, such as
down-payment for venue, dress, food, etc. But not moral
damages, in general.
o Exception: moral damages when there is deceit or fraud.
(Baksh case)
 There was breach of promise to marry. The teacher became
pregnant, and was dismissed from her job because she got
pregnant without a husband. Can she recover from the man loss
of income?
o Yes (old case).
o But now, you cannot be dismissed for this anymore, so it’s
moot.
 Hospital expenses – who is liable?
o Shared expenses, since it takes two to get pregnant.
 When are moral damages allowed?
o Criminal or moral seduction.
Provisions Dean Del just breezed through:
1. Unjust enrichment
a. Garcia v. PAL: If a dismissed employee is reinstated, and then
the reinstatement is reversed, the employee is not bound to
return salaries received. This is a case where social justice
outweighs unjust enrichment provisions.
2. Less in life = more in law
3. Thoughtless extravagance
4. Violation of privacy
Public officers
 Articles 19-21 bind even public officers. Take note. Though there are prejudicial question because the criminal case can still
specific provisions. proceed, because the act can be considered as ordinary
 Can a public officer invoke acting in public capacity as a defense? estafa.
o Aberca v. Ver
o No. “Your official function does not include acting with injustice Persons
and being unfair”
Natural persons
 What actions can you file against public officers?
o Action for nonfeasance
 Juridical capacity
 But this action cannot be brought against those
o Passive subject – the ability to be the subject of legal relations
officers exercising ministerial functions, ex. Register
o UPON BIRTH
of Deeds
o Exceptions: unborn fetus
o Violation of basic rights
 (A) Beneficial
o Policemen – failure to come to the aid of persons in danger
 (B) subsequent birth
o Birth
Civil liability in criminal prosecutions
 7 months + = just born alive
 Civil liability is always included  Less than 7 months = survive for 24 hours
 There is a distinction between being acquitted –  Capacity to Act
o For reasonable doubt: there is still civil liability o 18 years old, in general
o Because one did not commit the crime: no civil liability  Although you cannot marry without consent of parents
 General rule: civil case is simultaneously filed along with criminal case.  End of judicial capacity AND capacity to act = upon death of person
Criminal case suspends separate civil action.  Doubt as to who between two or more persons called to succeed each
 Independent civil actions other, as to who died first, whoever alleges the death must prove it
o NOT suspended upon filing criminal case. o PRESUMPTION: died at the same time
o When a civil case is filed ahead, it proceeds independently and
Juridical persons
need not wait for resolution of the criminal case.
o Assuming the criminal case is instituted ahead, the civil case
 Birth and death: from when created by law or for ordinary corporations,
can still be prosecuted separately.
upon registration/dissolution
 Prejudicial questions:
o Opposite – suspend criminal case, and wait for civil case to be Restrictions and limitations
resolved first, which is determinative of guilt or innocence of
accused in the criminal case.  Mere restrictions, which do not exempt the person from certain
o Questions on annulment or nullity of marriage are NOT obligations:
prejudicial questions for bigamy. Because now, before you get o Minority, insanity and imbecility, deaf-mutism, prodigality, civil
married, you need a judicial declaration of nullity for the prior interdiction
marriage. o [For juridical persons – this is the issue of ultra vires acts]
o Classic case: ownership of property v. crime of theft.  Modifications, which affect a person depending on the type of
o Ching – civil case was for annulment of K, and criminal case is transaction, who one is dealing with:
for violation of trust receipts law. HELD: not considered as o Age (because it is not minority per se), etc. (See Art. 39)
 o Ex. foreigners’ ownership of land

Domicile

 * Very little relevance in civil law now, but usually just for elections, etc.
 Domicile – place of habitual residence; based on intention and actual
connection
 Residency – based on actual facts
 Domicile is acquired from moment of birth
o Legitimate child – domicile of parents (correct the reviewer)
o Illegitimate – of mother
o Legitimated – of parents
o Foundling – wherever found
 One never loses a domicile under a new one is acquired.
 It is possible to be without residence, but one always has a domicile
 Domicile of juridical person
o Provided in charter
o If none, place of business or place of legal representation
PERSONS AND FAMILY RELATIONS  Essential requirements:
MARRIAGE o 1. Legal capacity
 A) Age
 Took effect 3 August 1988  Under 18: void
o Does not change the regime of property relations of those who  18 to under 21: need parental consent
got married prior to the FC o Without: voidable
o But those who selected CPG, they are affected by the new o Whose consent is required?
provisions as to this property relation, post 3 Aug 1988 Ideally, both. But one is allowed to
 Definition of marriage (elements) decide, if one is absent, has passed
o 1. Special contract away, lost capacity, etc. Ignore the
 Compare and contrast marriage from ordinary provision on legal guardians here,
contracts? because upon turning 18, then he
 As a general rule, ordinary contracts are subject to already has legal capacity.
parties’ stipulations, as long as not against law, PP,  21 to under 25: need parental advice
morals. But marriage contract is governed by law, o Without: issuance of ML is delayed
and is only subject to stipulation for regime of property for three months
relations – at the moment of marriage.  B) Sex
o 2. Permanent union  C) Absence of legal impediments: (see full discussion
 Only terminated by death below)
 Grounds for voiding or avoiding a marriage: because  37. Incestuous relationships
the marriage was never deemed to have existed  38. Relationships against PP
o 3. Between man and woman
 35. Prior existing marriage
 Note: P v. Silverio and other spec pro cases on
 36. Psychological incapacity
change of sex in registry
 52, 53. Failed to comply with distribution of
o 4. In accordance with law
properties and presumptive legitimes
o 5. Purpose: establish conjugal and family rights
 Is there such a thing as defective legal capacity?
Essential and formal requirements of marriage: No, it’s either you have it or not.
o 2. Consent freely given
 Effect of absence or defect:  Before a solemnizing officer, at the time of the
o Essential: celebration of marriage
 Lack/absence – void  Do you have to speak out your consent? No need
 Defect – voidable to verbally explicate it; as long as you can
o Formal: communicate your consent effectively to the
 Lack/absence – void solemnizing officer
 Irregularity – still valid, but the person responsible is  Is there such a thing as defective consent? Yes,
liable when it is vitiated. Ex. when one is of unsound mind.
A person actually said yes, but there was problem in
What are the essential and formal requisites of marriage? the voluntariness.
  Is it possible for a party not to give consent at all?
No. Ex. mistake in identity – there is total absence of
consent.
 Formal requirements:
o 1. Authority of solemnizing officer
 When does the good faith exemption apply, and
when does it not? Will NOT apply for mistakes of
law, such as if you thought one designation of people
(ex. president or senator) can solemnize a marriage,
when in fact he cannot. It applies to mistakes of fact.
(ex. you thought the janitor posing as a priest was the
parish priest.) Also, even if only one party believed in
good faith that the solemnizing officer had authority,
the marriage is valid.
 If the solemnizing officer committed fraud or an
irregularity in obtaining authority, it has no validity in
the marriage solemnized.
o 2. Valid marriage license
 A party thinks that the marriage license is valid,
when it is not. Can the rule on good faith apply?
No. There is no good faith exemption for marriage
license. The exceptions provided by the FC are not
based on GF, but on law.
 Aranes v. Occiano: A ML gotten after a marriage
without an ML does not cure the lack thereof. It is still
void.
o 3. Marriage ceremony
 There is no particular requirement for the ceremony,
except for:
 1. Both must personally appear before the
solemnizing officer
 2. Must openly declare that they take each other as
husband and wife
 3. Two witnesses of legal age
 In the absence of two witnesses, what is
the effect? Is it an absence or an
irregularity? No resolution yet.
 Other requirements:
o 1. Marriage certificate
 What is this? The document signed after marriage
ceremony. It is the evidence of the celebration of
marriage. This is neither a formal or essential
requisite. It is merely evidentiary, although the best
evidence.
 What is the difference between a ML and a MC?
The absence of a ML results in a void marriage. The
absence of a MC will not affect the marriage.
o 2. Place of celebration
 What about article 8? It is merely directory. If the
solemnizing officer agrees to marry you in another
place, then it is perfectly fine.
 Is there any instance where the place of the
celebration of marriage affects the marriage?
Yes, for those marriages celebrated by persons with
limited jurisdiction. For instance, the ship captain or
airplane captain can only solemnize the marriage in
the vessel or during a stopover. For instance, for
military commanders, it must be within the zone of
military operations.
 What about members of the judiciary? Within their
judicial region. If it is SC, CA, or Sandiganbayan, it is
nationwide.
 What is the effect of marriages celebrated by
judges outside judicial regions? As of now, it is a
mere irregularity, according to the SC. This rule is
different as opposed to ship captains, etc. (Navarro
v. Domagtoy)
 Can this decision apply to mayors? For instance,
the mayor of Makati solemnized a marriage in QC.
According to Dean Del, the SC rule on judges must
not extend to mayors – they must strictly comply with
their territorial jurisdiction.
 Legal impediments (in depth)
o A) Incestuous relationships:
 1. Ascendants and descendants, regardless of degree
 How many degrees does this rule cover?
Unlimited.
 2. Brothers and sisters, whether full or half blood
o B) Marriages against public policy
 By blood:
 1. Between collateral blood relative, up to fourth civil
degree (whether legitimate or illegitimate)
 Created by marriage:
 2. Between step-parents and step-children
 NOTE: no prohibition for step-brother and
step-sister
 3. Between parent-in-law and children-in-law
 If your wife dies, can you now marry your
parent in law? No. Not even death
terminates this relationship. Not unless you
terminate your marriage first through court
declaration that the marriage was not valid in
the first place.
 Created by adoptive relationship:
 4. Adopter and adopted
 5. SS of the adopter and adopted
 6. Adopter and SS of adopted
 7. Legitimate child of adopter and adopted
 NOTE: the reason is because legitimate
children are asked to give their consent to
the adoption. Illegitimate children are not
asked.
 Hence the illegitimate children and adopted
children may marry.
 8. Between adopted children of same adopter
 Created by criminal intent
 9. When one party kills his own spouse or the other
party’s spouse, with the intention of marrying the
other
 If the killing was to obtain insurance
benefits, but there was subsequent
marriage, is the latter valid? Yes, because
the killing was not with intent to marry.
o C) Prior existing marriage
 What if the prior marriage has a problem? There
must still be a judicial declaration that the prior
marriage is a nullity or is annulled. You have to wait
for this.
 Wiegel v. Sempio-Diy: Need to have prior judicial
declaration of nullity or annulment first, or else the
second marriage is bigamous.
 If the purpose is some other thing, like succession
issues, then there is no need for prior judicial
declaration prior to questioning the marriage.
Authority of solemnizing officer:
 Who can solemnize:
o 1) Any member of the judiciary, as long as:
 Incumbent
 When does incumbency start? From
when one has taken his oath of office.
 What if the judge was on leave or is on
vacation? Still incumbent.
 Is there a need for further authority or
license? None; it is an inherent function of
office.
 Within territorial jurisdiction
 Who in particular? RTC, MTC, CA, CTA, SC,
Sandiganbayan, etc. Even if their jurisdiction is
limited, like the CTA. Contrast this to executive
branch, where only the mayor can.
o 2) Member of religious group, authorized by religious group.
 Is the ordinary per se coming with the authority to
solemnize marriage? No. The authority does not
come from the office itself. They need special
authority from the group or sect first.
 What is the requirement for the group or sect?
The church, sect or group must be recognized.
 Either or both of the parties must be part of that
religion or church.
 What if both are not members of that religion?
Strictly, invalid. But a lot of people are invoking that
this is a gray area, where the good faith defense can
apply, or one can treat this as a mere irregularity.
o 3) Ship captain or airplane chief
 Who is the captain or chief? The head of the ship,
or the chief pilot.
 When can they solemnize marriages? In articulo
mortis, where one or both are at the point of death.
 A person is diagnosed as terminally ill,
and given two weeks to live. Is he in
articulo mortis? No, the person is not yet
at the point of death. Terminal illness is still
uncertain.
 Who can they solemnize?
 Members of crew or passenger
 What about stowaways?
 Can still marry them, as long as on board the
vessel.
 When and where can they solemnize?
 During the voyage, from the point of
embarkation, until one reaches the final
destination, including stops-over.
 The stop-over must be in a continuous flight.
This is different from a break where one
disembarked and put down all the luggage
and went around already.
 For purposes of marriage, do we adopt
transportation laws?
 No decision yet.
o 4) Military commander
 Who is a military commander?
 Commissioned officer, at least second
lieutenant up, must be the head of a
battalion
 There is a person who is preferred, before the
military commander is allowed. Who is this?
 There has to be a chaplain assigned to the
battalion in the zone of operations, and he
has to be absent.
 If he is present, then the chaplain must be
the one to solemnize.
 What if there is no chaplain assigned?
 Dean Del prefers the liberal interpretation:
when there is no chaplain assigned, then the
military commander can solemnize.
 What is military operation?
 Involves State action. This is different from
mere police operations for petty crimes.
 Who?
 No need to be a member of the military or a
combatant. As long as someone is within
the zone of military operation.
o 5) Consuls
 No need to be dying
 As long as abroad
o 6) Mayors
 Reinstated in the LGC of 1991
Marriage license
 Valid marriage license
o What is the consequence of lying in the place of
residence?
 It is a public document, so one can be charged for
falsification of a public document.
 BUT this is a mere irregularity, and should not affect
validity
o If you lie about your age, and you are not yet 18?
 VOID marriage, not because of the irregularity in the
ML, but because of lack of capacity.
Procedure to obtain a Marriage License
 1. What do you need to present when you get married (FIRST
MARRIAGE)?
o 1. Birth certificate, but just for the purpose of verifying legal
capacity based on age. Absent this, you can submit a
baptismal certificate.
 If none, either:
 Residence certificate
  Instrument containing sworn declaration of
two witnesses of lawful age testifying on this
o 2. Additional requirements:
 18-21: consent of parents; order –
 Father
 Mother
 Surviving parent
 Legal guardian (but ignore this provision,
since when they turn 18, there is no more
need for a legal guardian since he is of full
capacity.)
 What is the nature of the consent given
by the parents? The consent is with
respect to a specific person. If the child
decides to marry someone else, he or she
cannot use that same consent.
 21-25: parental advice
o 3. Certificate of marriage counseling.
 What if one party is 80 years old, but the
other is 23? BOTH must attend, even if the
other party is older than 25.
 Lack thereof results in 3 month suspension
of issuance of Marriage License
 2. What do you need to present for a SUBSEQUENT MARRIAGE?
o Proof of termination of marriage:
 Death certificate
 Judicial declaration of nullity
 Judicial declaration of annulment
o If one is previously married but is still 18-21 years old, do
you still need parental consent? Not anymore, because the
prior marriage has fully emancipated the person.
o What about those between 21-25, and this is the second
marriage, do you still need parental advice? Yes, because
there is no stated exception of emancipation for prior marriage,
unlike for parental consent. This is not anymore based on
parental authority, but is based on filial love and respect from
parents.
 3. What about alien applicants?
o The diplomatic or consular officials will issue a certificate of
legal capacity. This is usually taken by face value.
 4. What about Stateless persons?
o For these people without citizenship and if they can prove that
they are political refugees, all one needs is an affidavit
declaring oneself as having legal capacity. Again, this is taken
by face value.
 What is the nature of a marriage license?
o It is a license to marry a specific person. You cannot use it to
marry another person. The impediments and capacities of
people are different.
o There is no good faith exemption for a ML. A fake marriage
license is no good.
 What is the validity of the ML?
o For 120 days, then automatically cancelled after
o In any part of the Philippines
o An expired license is NOT a mere irregularity but an absence
of a requirement.
Marriages exempt from requirement of ML
What are the marriages exempt from the ML requirement?
 1. Marriages in articulo mortis.
o Because there is no time.
o The only exemption is the ML. There is no exception as to
other essential and formal requisites.
o The solemnizing authority determines whether there is legal
capacity between the parties to be married.
o Can the solemnizing officer refuse to solemnize the
marriage? Yes, the solemnizing officer has discretion to
refuse. There is no law compelling solemnizing officers to
marry.
o Are marriages in articulo mortis exempt from requirement
of ML limited to those in an airplane, military operation,
etc? No. It can occur anywhere, and the ML requirement is
still waived.
o If the person miraculously survives, is the marriage valid?
Yes.
 2. People who have been living together as husband and wife for at
least five years.
o Purpose: to save face, because they have already presented
themselves as husband and wife.
o When must there be an absence of impediment? The
entire five-year period of cohabitation. (Ninal v. CA)
o Another issue in Ninal: do the children have standing to
ask for the nullification of the parents’ marriage based on
lack of ML? The court held that the children have standing.
BUT this has been changed when the administrative rules
came out. Ninal was decided before these rules came out.
o What are the requisites:
 1. Exclusivity – absence of 3rd parties
 2. Continuity – cohabitation as husband and wife 5
years immediately preceding marriage
 3. No impediments during the 5 year period
 3. Parties who live in a remote place
o Ratio: no means of transportation to get to LCR
o Not based on distance: it doesn’t matter how many kilometers
there are. What matters is lack of means of transportation.
o Means of transportation need not be public.
 4. Muslims and cultural minorities
o Look into customs, rites, practices
 For marriages in articulo mortis and where a party lives in a remote
place, the law requires that the solemnizing officer state the
circumstances of the marriage in an affidavit. What is the effect of
the lack of such?
o No effect. It is merely evidentiary. It is not a replacement to
the ML requirement.
Marriages celebrated outside the Philippines
 What is the general rule?
o Art 26: Lex loci celebrationis. When the marriage is valid in
that country, it is valid in the Philippines.
 Does this provision apply to marriages of aliens outside the
country?
o No. It doesn’t matter, our law doesn’t care. Their own national
laws determine whether the marriage is valid.
 Two Filipinos get married outside the country. Do we apply Art
26?
o Yes.
o Art 26 only applies ONLY when at least one of the parties is a
Filipino.
 What are the exceptions to this rule?
o Art 35 (1, 4, 5, 6), Art 36, Art 37, Art 38
 (1) – under 18
 (4) – bigamous
 (5) – mistaken identity
 (6) – void under Art 53
o All of these exceptions deal with the essential requisites of
marriage. But as to the formal requisites, then that is
determined by the law of the place where the marriage is
celebrated.
 What if two male people get married abroad?
o No settled rule yet.
 What is the rule on divorces obtained abroad?
o If the alien obtained a divorce decree abroad allowing him to
subsequently remarry, then the Filipino may remarry as well.
o Van Dorn v. Romillo and Pilapil v. Ibay-Somera
 In Van Dorn, alien husband got a divorce abroad, but
sought to administer community property in the
Philippines. The basis of the court was estoppel
 Pilapil: “she is married to you but you are not married
to her”
 NOTE: both cases were decided before the Family
Code
 Requisites?
o 1. Marriage between Alien and Filipino
o 2. Alien files for divorce
o 3. Divorce decree capacitated the alien to remarry
 What if the Filipino obtains the divorce?
o Not allowed. The article only applies if the alien was the one
who obtained the divorce.
 The requirement that one is an alien and one is Filipino: must it
occur during the time of marriage, during the time of divorce, or
both?
Time of marriage Time of divorce Effect  EXCEPT: a) for those commenced before 15 March
2 Fil 2 Fil X 2003, b) marriages under CC
2 Fil 1 Alien, 1 Fil Old view: not allowed to  EXCEPT: for intestate and testate proceedings, allow
circumvent the law through this collateral attack
NOW: the Alien is not anymore
 So the rule in Ninal was technically not changed
under our jurisdiction, so he can
obtain divorce. Then Art. 26 o BUT the main determinant is whether the person has standing
applies. (as in an heir)
2 Fil 2 Aliens Amor-Catalan case: recognize as o In Carlos v. Sandoval, since the one questioning was the
being a divorce entered into by 2 brother of the deceased, it doesn’t matter if the marriage was
aliens. Art. 26 does not apply valid or not because he only inherits in default of descendants
because there is no Filipino to or ascendants.
equalize.
1 Alien 1 Fil 1 Alien 1 Fil Art. 26
 What are the grounds for nullity?
1 Alien 1 Fil 2 Aliens Valid as well
o Arts. 35, 36, 37, 38
 When is a marriage entered into without termination of a previous
Difference between void and voidable marriages: marriage valid?
o When there is a declaration of presumptive death. Article 41 is
VOID VOIDABLE the only article which provides for a situation where there can
Inexistent from the beginning Valid until annulled be 2 valid subsisting marriages.
Does not prescribe Generally, 5 years prescription  Four years for ordinary situations
No ratification May be ratified by free cohabitation  Two years for extraordinary situations
or prescription
o The declaration is not of DEATH but of PRESUMPTIVE
No community property. Only co- ACP – unless provided otherwise
ownership. DEATH.
Directly or collaterally attacked Must be directly attacked o This takes the place of the usual requirement of death
[but subject to recent rules: check certificate to allow the other spouse to remarry.
discussion below]  The declaration of presumptive death obviously only
empowers the present spouse to remarry.
o For other grounds, any subsequent marriage is automatically
null and void.
 The common statement is that void marriages can be collaterally
attacked. But what does Art. 40 say? Art. 41
o Art. 40 – For purposes of remarriage, one has to obtain a
judicial declaration of nullity.  What if the spouse who was declared presumptively dead
o So there has to be a direct proceeding. You cannot do this by reappears?
collateral attack. o If no one does anything, we have a situation where there are
 RULES ON STANDING re: nullity – two valid subsisting marriages
o SC 02-11-10 – only husband and wife have standing in a o Reappearing spouse files an affidavit of reappearance
direct action  But other people may file an objection to the affidavit
  If there is no objection: then the subsequent marriage
is deemed terminated upon filing of the affidavit
 Who can file – reappearing spouse or persons
interested (ex. children in first marriage)
 Legal effect: not void ab initio, just terminated
o If there are objections, then a court of law must rule on the
objections. The LCR cannot rule upon the objections.
o What is the basis for objection or opposition?
 The only basis: “this is an impostor.”
o Is there a prescriptive period for filing an objection for the
affidavit of reappearance?
 These questions have not been settled yet.
 What is required to be proved in declaration of presumptive death?
o Proof that there is reasonable ground to believe that the
spouse has died.
o Republic v. Nolasco: Not enough to just ask people around and
say that the people haven’t seen her to prove that a person is
presumptively dead. Need more than that.
Mistake in identity as ground for nullity
 Spirit of provision – consent to marriage is for a SPECIFIC person. If
there is mistaken identity, there is no consent.
 This is NOT mistake in particulars of a person (ex. you thought he was
rich, but he was actually a pauper)
Psychological incapacity
 One that has a lot of cases. Members of the committee who drafted the
FC did not define what psychological incapacity. They wanted
jurisprudence to develop the concept.
 What is the distinction between physical and psychological
incapacity?
o Psychological incapacity is NOT physical incapacity, which is
impotence. It is a ground for voidable marriage only.
o It is NOT mental incapacity, which is also for voidable
marriage.
 What is psychological incapacity?
o He is normal under any other circumstance, but he cannot
carry out the essential obligations of marriage
o “Narcissistic complex”
o Inability to perform obligations to the spouse and obligations to
the family (220, 221, 225)
 Santos: It was a cut and paste case from different sources. In the end,
it did not say how we should define it in the Philippines. Only value is
that it gave the 3 requirements:
o 1) gravity
o 2) juridical antecedence
o 3) incurability
 There is no case yet where the court says that psychological incapacity
is such that he will never be able to perform marital obligations. So after
declaration of nullity, both parties can still marry again. So
psychological incapacity is relative.
 Molina: Eight point test. This is the first case where the court actually
set down, point by point, what one should look for to establish Art. 36:
o 1) plaintiff has burden of proof to show P.I.
o 2) Root cause must be something medically proven and
clinically identified and clearly explained in the decision
 This has received so much flip-flopping from other
decisions
o 3) it must exist at the time of the celebration of the marriage
o 4) the PI is incurable [from Santos case]
o 5) it is grave and it prevents him from performing essential
marital obligations
 Molina included obligations to family and children too,
not just to the spouse
o 6) Essential marital obligations are Arts. 68-71 of FC, and Arts.
220, 221, 225 of FC
o 7) Interpretation of the National Marital Tribunal must be given
weight
 But its decision is not public in character; so its effect
is really just to the parties, and is not jurisprudence
 Paras: This should be the case to read if you want to know what is NOT
psychological incapacity. In this case the manifestation relied upon is
infidelity of the spouse, going out having drinks with friends, falsifying
signature – all these were struck down by Paras
 Marcos v. Marcos: You don’t need to have a psychiatrist or
psychologist to examine the party. Absence of such is not fatal. What
you need is the totality of evidence. (Totality of evidence approach)
You can use whatever evidence to prove PI.
 Te v. Te: Courts must be allowed to make a decision on a case-by-case
basis without being tied down by the Molina requirements. This came
out strong. “Molina gave us a straitjacket and we don’t want this.”
 Suazo v. Suazo: You don’t have to be strictly bound by cases (open
case policy). “We are not throwing away Molina” but the court must be
open to situational differences.
o The SC is not bound to accept with finality the findings of fact
by the TC.
 What is the end result of all this jurisprudence?
o It is still case-to-case. There is no set doctrine.
Declaration of nullity
 Domingo v. CA:
o Judicial declaration of nullity only needed for remarriage.
o Otherwise, no need for judicial declaration to establish nullity of
the marriage.
 Tamano v. Ortiz:
o RTC has jurisdiction over all actions relating to marriage and
marital relations.
o Jurisdiction based on allegations of the plaintiff in the
complaint; not dependent on the defenses set up. The
complaint said that the parties were married under the civil
code.
 Ninal v. Bayadog:
o There must be no impediment or interruption in the five-year
cohabitation period in the marriage license exemption.
o Declaration of nullity may be collaterally attacked after the
death of either party. (Ex. heirs, in succession.)
 De Castro v. De Castro
o As in Ninal, the nullity of a void marriage may be established
even collaterally in an action not for that purpose. (ex.
support). Here, the affidavit stating circumstances establishing
5-year cohabitation contained false statements; hence, there
was no ground to exempt from ML requirement. No ML = void.
Declaration of nullity v. bigamy
 Marbella-Bobis v. Bobis
o The question of nullity of a previous marriage not judicially
declared void is NOT a prejudicial question to a charge of
bigamy. The marriage lawfully subsists.
 Mercado v. Tan
o Subsequently getting a declaration of nullity will not invalidate a
conviction for bigamy.
 Morigo v. People
o The parties merely signed a marriage contract on their own,
without any ceremony – there is no semblance of any valid
marriage. No need for prior declaration of nullity. Bigamy
dismissed.
 Tenebro v. CA
o The subsequent declaration of nullity of the second marriage
under Art. 36 does not negate the criminal action for bigamy.
(The mere act of contracting a second marriage during the
first’s subsistence is punishable.) Article 36 marriages are not
completely without effect (ex. legitimacy of children). So this
means that there can be prosecution for bigamy.
Voidable marriages
Grounds
1. Lack of parental consent
a. Who has standing?
i. Parent/guardian who did not give consent
ii. Party whose parent/guardian did not give consent
b. What if both parties didn’t get parental consent?
i. Both can file, separate or joint
ii. Pari delicto doesn’t apply
c. When can the party who didn’t get consent file?
i. Upon reaching 21 years old
d. When can the action be filed?
i. BEFORE reaching 21 – parent or guardian who didn’t
consent
 ii. UPON reaching 21, until 26 – party whose parent or
guardian didn’t consent
e. How is marriage ratified?
i. Free cohabitation by the parties upon reaching 21.
f. Specific rules on form of consent:
i. Mere attendance in wedding is not automatically
consent. Must be in ML application.
ii. Consent must be before wedding.
2. Insanity
a. When should insanity exist?
i. Time of marriage
b. When is there a presumption of insanity?
i. If the party was insane right before and after the
precise moment of giving consent.
c. Who may file?
i. Sane spouse – if no knowledge of insanity
ii. Relative, guardian, etc.
1. No need to have no knowledge of insanity
iii. Insane spouse
d. What are the periods?
i. Sane spouse – 5 years from discovery of insanity of
the other spouse [because no period was provided]
ii. Relative, guardian, etc.
1. Anytime before death of either party
iii. Insane spouse – 5 years from regaining sanity
[because no period was provided]
e. How is the marriage ratified?
i. Free cohabitation by the parties upon regaining of
sanity by the insane spouse
3. Fraud
a. Grounds:
i. Non-disclosure of a previous conviction by FJ of the
other party for crime involving moral turpitude
ii. Concealment by wife that at the time of marriage, she
was pregnant with another man
iii. Concealment of STD, regardless of nature, at time of
marriage
iv. Concealment of drug addiction, habitual alcoholism,
homosexuality, lesbianism at time of marriage
b. No other misrepresentation is ground for fraud.
c. If the conviction is pending appeal, is the non-disclosure
fraudulent?
i. No. It must be by FINAL judgment.
d. What if the crime was alleged in the same annulment
case?
i. Can’t apply because there must be previous
conviction by final judgment.
e. Ratification?
i. Free cohabitation upon knowledge of fraud
4. Force, intimidation, undue influence
a. Intimidation: must be evil and imminent and based on a well-
grounded fear
b. What if intimidation has a legal basis?
i. It does not count. Ex. “I will prosecute you for rape,”
and the guy really committed rape anyway.
c. Prescriptive period?
i. 5 years from cessation of cause
d. Standing?
i. Injured party
e. Ratification?
i. Free cohabitation after cause ceases.
5. Impotency
a. Potency must be at the point of marriage. Becoming impotent
after is not a ground for annulment.
b. What if both are impotent?
i. Sempio-Diy: there is no “injured party”
ii. Dean Del: both are injured parties and can file
c. Period?
i. 5 years after marriage
d. Cannot be ratified by cohabitation.
6. Serious and incurable STD
a. Differentiate: if it is a ground for fraud, it has to be concealed,
but it need not be serious or incurable
b. Who can file?
i. Injured party
c. Cannot be ratified by cohabitation
Ground Who can file When Ratification o 2. Custody and support of common children
Lack of parental Underaged party Within 5 years Yes, but only  Consider mutual written agreement first
consent upon turning 21 upon reaching  Consider best interest of children
21  And Tender Years Doctrine
Parent, guardian Until child or No
 And choice of parent
who did not ward turns 21
consent  Visitation rights for other parent
Insanity Sane party Within 5 years of
discovery of Effects, et. al.
insanity
Insane party Within 5 years of Yes, but only in  Effects:
lucid interval a lucid interval o 1) share of party in BF over net profits forfeited in favor of:
Parent or Before death of  Common children
guardian, either party  If none, children of guilty spouse in previous marriage
relative of insane  If none, innocent spouse
party
o 2) donations propter nuptias: valid
Fraud Injured party 5 years from Yes
cessation of  Donations in favor of guilty spouse revoked by
cause operation of law
Force, Injured party 5 years from Yes o 3) designation of guilty spouse as beneficiary in life insurance:
intimidation, cessation of may be revoked
undue influence cause  Even if deemed irrevocable
Impotence Potent party 5 years from No o 4) spouse in BF cannot inherit from innocent spouse by testate
marriage or intestate succession
Serious and Healthy party 5 years from No
o 5) if both spouses guilty, revoke by operation of law:
incurable STD marriage
 Donations propter nuptias to each other
 Testamentary dispositions to each other
Procedure and effects of termination of marriage  [N.B. these two provisions were just included because
Art. 43 mentions an innocent and guilty spouse; in Art.
Procedure 44, both are guilty]
 Final judgment provides:
 For all cases of nullity or annulment: o 1) liquidation, partition, distribution of properties of spouses
o Court orders prosecutor or fiscal to appear on behalf of the  Includes adjudication of common lot
State o 2) custody and support of common children
o Take steps to: o 3) delivery of presumptive legitime
 1. Prevent collusion between parties  Computed based as of date of final judgment
 2. Make sure evidence snot fabricated or suppressed  Delivered through cash, property, or sound securities
 No judgment based on stipulation of facts or confession of judgment  Unless there was a judicially approved
 Pendency of action: mutual agreement
o Follow written agreement between spouses  Who may ask for enforcement of judgment:
o 1. Court provides for support of spouses  1. Children
  2. Guardian  Or connivance in such
 3. Trustee of property o 4. Attempt against the life of spouse
 Will not prejudice ultimate successional rights –  Character stuff
delivered presumptive legitimes are deemed o 5. Final judgment of more than 6 years in prison
advances  Even if pardoned
 Record judgment, partition, distribution, delivery of presumptive legitime o 6. Drug addiction or habitual alcoholism
 OR ELSE, it will not affect third persons o 7. Abandonment of spouse without justified cause for more
o Register in appropriate civil registry than a year
o Registry of properties in places where they are located  Sex stuff
 NON-COMPLIANCE with this  any subsequent marriage is null and o 8. Lesbianism or homosexuality
void o 9. Contracting bigamous marriage
 Which children are legitimate: o 10. Sexual infidelity or perversion
o Those born before annulment
o Those born before Art. 36 nullity Defenses:
o Those born of subsequent marriage which doesn’t comply with
 1. Condonation
Art. 53 (registration)
o Forgiveness/pardon
o Also, those who were born before reappearance of
o May be express or implied
presumptively dead spouse
o Sexual intercourse is implied condonation
 “SUPER DOCTRINE” c/o Breakfast Club, who painstakingly
 But not when it was just to save the marriage, and it
analyzed this particular provision:
was unsuccessful
o When do you not have to deliver presumptive legitime?
o Each sexual intercourse with another person is a separate act
 1. Legal separation (because marriage not dissolved)
of adultery. Forgiveness for the first does not extend to
 2. Death (failure to liquidate and stuff will only make
subsequent acts
dispositions post-one-year void and mandate
 2. Consent
separation of properties for marriage #2)
o Express or implied
 3. Presumptive death (which has the same effects of
o Prior to the act
death)
o Agreement between spouses against law and morals may be
LEGAL SEPARATION null and void, but it may be considered consent that would bar
litigation.
Grounds:  3. Connivance
o “Luring” but not entrapment
 Violent stuff  4. Mutual guilt
o 1. Repeated physical violence or grossly abusive behavior v. o May be on different grounds
spouse, common child, or child of spouse o Even when one party has pardoned the other and the other
o 2. Physical violence or moral pressure to change has not
religious/political affiliation  5. Collusion
o 3. Attempt to corrupt or induce to engage in prostitution: o Agreement between the spouses
spouse, common child, child of spouse
 o Covered by proscription of legal separation based on
stipulation of facts
 6. Prescription
o Even if not alleged, court can take judicial notice
o If there are multiple acts, count from the last separate act
o From knowledge of the ground, not just from mere hearsay
 Prescription: within 5 years of occurrence of cause
Procedure
 “Cooling off period”
o Only try an action for LS after 6 months have elapsed since
filing of petition
 Court must take steps towards reconciliation of the spouses, and satisfy
itself that despite such efforts, reconciliation is highly improbable
 No decree of LS based on:
o Stipulation of facts
o Confession of judgment
 Prosecutor or fiscal assigned to take steps to prevent collusion between
parties and ensure evidence is not fabricated or suppressed
Effects pendente lite/after finality
 Pendency
o After filing petition:
 Spouses entitled to live separately from each other
 Administration:
 Based on written agreement
 If none, court designates either or a third
person
 Same powers and duties as those of a
guardian
o Support of spouses
 Lerma v. CA: The court may make a preliminary
ruling of the case during its pendency, to determine
whether support is justified. In this case, where one
spouse was adulterous, the court deemed it proper to
deny him support pendente lite.
 Sabalones v. CA: A decree of LS was issued, where
the husband was denied share in the profits and
denying him support from the wife. The husband
appealed. Pendente lite of the appeal, the wife filed a
petition for preliminary injunction against the husband
alienating conjugal properties. The court said this
was valid to preserve the wife’s rights in the pendency
of the appeal
o Support and custody of children
 Effect of death of a party:
o Action is dismissed
o Since action is purely personal between the spouses
o Lapuz v. Eufemio:
 Spouse died during pendency of LS case. The
proceeding was dismissed.
o Macadangdang v. CA:
 Spouse died after the decree of LS was issued but
before liquidation. The LS was deemed final
o However, now Rules say that if this happens, the decision in
the LS case, where there has been entry of judgment is final
and binding, and will be accorded such finality in the settlement
of the estate proceedings.
o Dean Del’s interpretation: Because the finding in LS case is
final, even in the settlement of estate, one may invoke
forfeiture provisions.
o You don’t do liquidation and partition in the same LS case
anymore when one party dies after entry of judgment. But the
decision of the LS case is already final and binding in the
settlement of estate proceedings of the deceased person.
(IMPT!!)
 Effects of decree:
o 1. Spouses entitled to live separately
o 2. Dissolve ACP or CPG
 Offending spouse not entitled to net profits
 Siochi v. Gozon: what is forfeited are net profits and
not the undivided share in the community property
o 3. Custody of minor children to innocent spouse
 o 4. Disqualify offending spouse from inheriting by intestate  Creditors protected by court
succession AND revoke testamentary provisions by operation o Record order in proper registries of property
of law  Will not prejudice a creditor not listed or notified
 Optional effects:  Unless debtor-spouse has sufficient separate
o 1. Innocent spouse may revoke his or her donations to properties to satisfy debtor’s claim
offending spouse  FIVE YEAR period
 Record revocations in the registries of property where RIGHTS AND OBLIGATIONS BETWEEN HUSBAND AND WIFE
located
 Alienations, liens, encumbrances prior to recording  Became important due to Molina doctrine (if you cannot perform these,
the revocation are respected it can indicate psychological incapacity)
o 2. May revoke designation of spouse as beneficiary in life  Obligations:
insurance policy o 1. Live together
 Takes effect upon written notification to the insured o 2. Mutual love, respect, fidelity
o [N.B. so while life insurances are still optionally revocable, the o 3. Render mutual help and support
difference between Art. 43/44 and this provision in LS   Family residence: jointly fixed by husband and wife
donations are just revocable here] o Otherwise, court decides
 If you don’t want to live in the same dwelling, what is the
Reconciliation consequence?
o As a rule, they must live together. If they cannot, they go to
 Procedure court, and ask for an exemption. Can only be granted
o Joint manifestation under oath exemption for valid and compelling reasons.
o Signed by both o Consequences:
o Filed with court in same proceeding  You are not going to be entitled to support.
 Effects:  You can be charged with abandonment.
o If proceedings pending, terminate in whatever stage  There can be transfer of administration
o If final, set aside final decree  “Respect”:
o What shall persist: o Lack thereof can lead to criminal and civil consequences
 Separation of property o Includes the woman being allowed to work and exercise her
 Forfeiture of shares profession
o UNLESS spouses agree to revive former property regime o When can a spouse object to profession?
 Agreement to revive former property regime:  Valid, serious, moral grounds
o Under oath  What happens when you incur liability pursuant to this profession
o Will specify: objected to? Who bears the liability and charges?
 1. Properties contributed anew to restored regime o RULE: no prior consent necessary
 2. What are retained as separate properties of each o This should be the rule:
spouse  Before any objection  absolute community
 3. Names of all known creditors (addresses, amounts)  After objection  liabilities towards separate property
o Filed in the same proceeding for legal separation o BUT this is what was erroneously printed:
 Copies furnished to creditors  Before any objection  separate property
 o Nancy Go case: obligations charged against separate property.
Principle: because this is a separate endeavor by the liable
spouse and the contract cannot bind both spouses. (This is
the fall back analysis)
 Support of the family comes from:
o 1. Community or conjugal property
o 2. Income from separate property
o 3. Separate property
Administration of community properties
 Who is the admin of the community properties?
o Spouses, jointly
o Regardless of ACP or CPG
 There are certain cases where it is possible for one spouse to have
admin of the community property. When does this happen?
o Before the marriage – place in the marriage settlement that the
H or W alone will administer the property.
o During the marriage –
 In case of disagreement, decision of H prevails. No
need to go to court for this.
 What is the relief the wife and ask for in court?
 Must establish in court that it amounts to
mismanagement and it prejudices the
community property
 Can ask for receivership, transfer of admin,
or in extreme cases, separation of property
 NOTE: NOT to overturn the husband, but to
get certain reliefs (stated above)
o Need approval of court  became guardian of the other
spouse, etc.
o ONLY ground where there is no need for court approval: when
there is incapability of spouse to jointly administer
 Acts of ownership:
o Both spouses MUST give consent.
 Other spouse must give written consent
 Or there must be court order
o Ex. selling the house.
o Ex. making donation, except for small donations
o What is the effect if one of the spouses does not give
consent to these acts?
 It’s void.
 It’s a continuing offer from the spouse who gave
consent and the third party.
 It can be validated by the objecting spouse’s consent.
o How much time does the non-consenting spouse have?
 The law does not provide. But the parties (consenting
spouse or third party) may withdraw the offer any
time.
 Rule on donations?
o General rule: cannot donate to each other
o To third party: must be a joint act
 Except moderate donations for charity or family
rejoicing
 What about making a donation to the children?
o As long as it is for education, etc.
o But it would need consent of the other spouse.
o Otherwise, still valid, but charged to the separate property of
the other spouse.
 Management of household:
o Used to be traditional role of wife.
o Now, it is a joint role between both spouses.
 On professions:
o Either spouse may exercise any legitimate profession without
consent of the other.
o Only grounds to object: valid, serious, moral grounds
o In case of disagreement:
 1) Court decides whether objection is proper
 2) Court decides whether benefit accrued to family
before objection or not
 If benefit prior to objection  obligation
enforced against community
 If after  enforced against separate property
of spouse who did not get consent
PROPERTY RELATIONS BETWEEN HUSBAND AND WIFE
How governed o 3. CSP
o 4. Other regime
In the ff order:  ACP governs:
o When none chosen
1. MS executed before the marriage o When regime chosen is void. Examples:
2. FC provisions  Prohibited one party from marrying another, or a
3. Local customs second marriage for surviving spouse
 Spouses live separately
Marriage settlements (MS)
 Imposing fine on infidelity
 When can you enter into marriage settlement?  Depriving parties from asking for LS when there is
o Anytime before you celebrate marriage. sufficient ground to do so
o And as long as you have legal capacity to enter into contracts  Third person will manage conjugal properties
o And as long as the marriage takes place after  All properties of the wife belong to the husband
 N.B. Invalidity of some provisions will not nullify valid
 Can the parents enter into a marriage settlement on behalf of
ones.
minor children?
o No, it must be the parties themselves who enter into the  When a regime is chosen, all properties are governed by that regime.
contract. Cannot exclude particular properties from the regime.
o If it’s 18-21, the parents must be part of the marriage  When parties expressly rejected ACP but did not agree on any system
settlement. to govern:
 When can there be a change of property regime? o Determine intent of the parties. If it cannot be ascertained,
o 1, separation of property then apply local custom. When there is no local custom, apply
o 2. Legal separation co-ownership.
o 3. Ordinary dissolution  Any modification in marriage settlements are valid only if made before
 Is there need for judicial approval? the celebration of marriage.
o No. Only need to register with the civil registrar o Subject to exception: judicial separation of property
o To bind third persons  In any case, the only change is from ACP/CPG 
CSP, with court approval
 If the marriage doesn’t take place, what happens to the MS??
 There can be no situation where CSP changes to
o Void.
ACP or CPG because what is only allowed is revival
o Except for provisions not dependent on the marriage taking
of the old property regime
place (ex. recognition of children)
o Extrajudicial agreement between spouses to separate their
 Formalities?
properties: void
o 1. In writing
 Formal requisites for MS:
 Else, unenforceablee
o 1. In writing [private/public document, but it must be public
o 2. Registered in civil registry  to have effect on third parties
document for it to be registered]
 If not in writing  unenforceable
 Choices:
 Can compel to be reduced to writing
o 1. ACP
o 2. Signed by the parties
o 2. CPG
  NOTE: general rule is ONLY the future spouses are Donations propter nuptias (DPN) Ordinary donations
parties to the MS Does not require express Requires express acceptance
o 3. Executed before the marriage acceptance
o 4. Those who need parental consent  make parents party to May be made by minors Cannot be made by minors
the MS May include future property Cannot include future property
If present property donated and Only limit: non-impairment of
 Otherwise, MS is void (for lack of consent)
regime is not ACP, limited to 1/5 legitimes
o 5. If under civil interdiction or disability  make guardian party Grounds for revocation in FC Grounds for revocation in CC
to the MS  If future spouses agree upon regime other than ACP, cannot donate to
 Otherwise, MS is void each other in MS more than 1/5 of present property.
 To affect third persons: o Excess: considered void
o 1. All above requirements o Reason: in ACP, their properties will become part of AC
o 2. MS registered in LCR where marriage contract is recorded anyway (except for some)
and in the property registries of property  Donations of future property: governed by law on wills
o N.B. or else, as to these third persons, ACP will be presumed o Therefore, these are revocable, unlike donation of present
to govern properties in MS
 General rule: Property relations of spouses governed by Philippine laws  Property subject to encumbrances can be donated. If foreclosed to
o Regardless of place of celebration of marriage secure an obligation:
o And regardless of residence o In case of deficiency, donee not liable for difference
o In absence of contrary stipulation in MS o In case of excess, donee entitled to difference
 Exceptions:
o 1. Both spouses are aliens Possibilities – i.e. how to resolve whether the DPN is revoked by
o 2. Extrinsic validity of contracts affecting property located operation of law (43, 81) or by option (86)
abroad, executed there
o 3. Extrinsic validity of contracts affecting property located 1: Marriage is not celebrated
abroad, executed here
 Rule if marriage does not take place:  Art. 81 and 86
o Everything stipulated in MS in consideration of future marriage  If DPN is included in MS, then the DPN is considered void if the
is void marriage does not result
o Including donations between respective spouses contained  86: revocable if not in MS
therein
o Does NOT invalidate stipulations that do not depend on 2: Marriage is celebrated, but then terminated
celebration of the marriage
 43: By operation of law if the donee is in bad faith
Donations by reason of marriage  Everything else covered by 86: if you’re the spouse in GF, it remains to
be revocable due to 86
 Requisites:
o 1. Made before marriage
o 2. In consideration of the marriage  Grounds for revocation of DPN:
o 3. To one or both of future spouses o N.B. “MAY be revoked” so it is not automatic.
 o 1. Marriage not celebrated, declaration of nullity
 Except donations in MS  governed by Art. 81
(automatically revoked if the marriage does not take
place)
 Declaration of nullity  if donor is one spouse and
donee is in bad faith, automatically revoked by
operation of law
 Prescriptive period:
 Written donation  10 years
 Oral donation  6 years
o 2. No consent of parents or guardians to the marriage
 Prescriptive period: 4 years
o 3. Marriage annulled and donee in bad faith
 Again, if donor is other spouse, then donation is
revoked by operation of law
 Prescriptive period: 4 years
o 4. LS and donee is guilty spouse
 Prescriptive period: 5 years
o 5. Resolutory condition attached is complied with
 Prescriptive period:
 Written  10 years
 Oral  6 years
o 6. Donee commits act of ingratitude:
 Offense against person, honor, or property of donor,
spouse, children under parental authority
 Donee imputes to donor criminal offense or any act
involving moral turpitude, even if proven
 Except if act is against donee, spouse,
children under authority
 Donee unduly refuses to support donor when legally
or morally bound to do so
o Prescriptive period: 1 year from knowledge of the fact
 Donations during marriage between spouses: VOID
o EXCEPT: moderate gifts on family rejoicing
 Determined by social position of the family, and
customs
o Same prohibition applies to persons living as spouses without
valid marriage
 Ex. common law marriage
 Ex. adulterous relationship
o Prohibitions include grants of gratuitous advantage, direct or
indirect
 Ex. donation to a child of the other spouse by another
marriage (since if the child dies, the other spouse
inherits)
o Who has standing to question: ONLY persons prejudiced, like
the donor or his heirs
 Case: husband donates a car to his wife. The wife
insured it. It was destroyed and the wife sought to
collect insurance. The insurance company
challenged the validity of the donation. HELD: The
insurance company has no standing to question,
since it has no rights or interests over the car in
question.
 Donor is included in those with standing since there
can be a case where the weaker spouse is taken
advantage of by the stronger
Absolute Community of Property (ACP)
 ACP commences at the precise moment of celebration of marriage
o Any stipulation which makes the commencement at any other
time is VOID
 Basic concept: all properties brought into marriage and acquired during
marriage are included in ACP
o Upon dissolution, the entire common mass is divided between
the spouses
o Contra: in CPG, only the net profits are divided between them
 Waiver of rights, interests, shares, and effects of ACP: DISALLOWED
o Except:
 Judicial separation of property
 Dissolution of marriage (ex. death) or annulled
o How made:
 1. In a public instrument
 2. Recorded in LCR
o Provided: creditors of waiving spouse may petition to the court
to rescind the waiver to extent of amount sufficient to cover
credits
 What is included in AC:
o All properties belonging to spouses before marriage and during
marriage
o Cannot exclude specific properties from the community
 Exclude:
o 1. Property acquired during marriage by gratuitous title
(donation, succession)
 Exclude fruits and income as well
 Except if the donor expressly provides that the
property is included in the AC
o 2. Property for personal and exclusive use by either spouse
 Except jewelry
o 3. Property acquired before marriage of spouse with legitimate
descendants from prior marriage
 Exclude fruits and income as well
 Property acquired during marriage are presumed to be included in the
AC, unless proven otherwise
o There must be strong, clear, and convincing evidence
 Apply rules on co-ownership, suppletorily
Conjugal Property of Gains (CPG)
 What does onerous mean?
o There is a consideration.
o Barter is a consideration.
o Including redemption and pacto de retro.
o When will retirement benefits be conjugal or exclusive?
 If the employees contribute, this is considered
onerous – conjugal
 If the employees do not contribute, this is gratuitous –
exclusive
o What about tips?
 If it is beyond the service charge, which he is entitled
to, then it is separate (gratuitous)
o What about damages?
 If actual damages  conjugal
 But can be separate if losses are based on
losses from separate/exclusive funds
 If moral, etc.  separate because these are paid for
suffering, etc. and not actual loss
 What is the rule on gambling?
o Winnings – conjugal
o Losses – separate
 What is the rule on industry/skill?
o Conjugal
 Rule on fruits?
o Fruits from conjugal  gross fruits belong to conjugal property
o Fruits from separate  net fruits (total fruits minus expenses
incurred) are conjugal [IMPT!!!]
 Compare with ACP? There, fruits from separate
properties are always separate
 Hidden treasure rules?
o Finders’ fee is always conjugal since it involves effort
 Rule on improvements?
o Goes against usual rules on accession (“accessory follows the
principal”)  usual rule doesn’t care about value, just which
attaches to what
o In CPG, whichever is more valuable becomes the principal 
NOTE that this rule only applies if the land is separate
 So if the conjugal house is more valuable than the
separate land, then the land becomes conjugal
o When should reimbursement be made?
 Not required UNTIL there is liquidation of the CP
property.
 But there is no prohibition against early
reimbursement.
o If the land is conjugal, the usual rule on property applies (the
land is always the principal)
 CPG applies when chosen by the spouses in the MS (and those
marriages before the FC, by default)
 What is included in COMMON FUND:
o 1) Fruits, income, proceeds, products of separate property
o 2) Acquired through their efforts
o 3) Acquired through chance
 Upon dissolution: divide net gains equally, unless they agreed to a
different division in the MS
o Each spouse has a mere inchoate right over conjugal property.
Cannot alienate ½ of the interest. Cannot be attached by
creditors. Only ripens into actual title upon dissolution and
liquidation of partnership.
 Apply same rules on:
o Commencement: upon precise moment of marriage
o No waiver of rights, shares, interest unless in JSP or
dissolution, and only in public instrument recorded in LCR
 Apply rules on contract of partnership, suppletorily
o If the CP is not enough, use separate properties
o But unlike ordinary partnership (pro rata), liability is solidary
 Exclusive property:
o Property by direct acquisition as exclusive:
 1. Brought into marriage as his or her own
 Includes installment-basis property, if
ownership vested before marriage (but
reimburse CP for payments on installments)
 Includes property alienated before marriage
but reacquired through rescission,
annulment, or revocation of contract
 2. Acquired during marriage through gratuitous title
 Includes unearned increments
 Includes moral damages (but not
hospitalization expenses, medical
assistance, or loss of salary)
o Property by substitution:
 3. Acquired by right of redemption, barter, or
exchange of exclusive property
 If money used for redemption was CP, just
reimburse CP
 4. Purchased with exclusive money of wife or
husband
 Spouses retain ownership, possession, administration, enjoyment of
exclusive properties
o But may transfer administration to other spouse (or even
another person) by public instrument
 Record in registry of property, where property located
o Alienation of the property terminates administration by the
other spouse. Obviously, proceeds go to the owner-spouse
 May mortgage, encumber, alienate, dispose separate property without
consent of other spouse. May appear in court alone to litigate it.
 Join donations of property to the spouses
o If shares therein are designated, those shares are their
exclusive property (NOTE: because the disposition is
gratuitous)
o If no designation of shares, it is 50-50
o Right of accretion exists
 A) when one spouse refuses to accept
 B) incapacitated to accept
 C) predeceases or dies before perfection of donation
 Onerous donations:
o Still exclusive property of donee-spouse
o But reimburse CP for advances made
 On benefits, pensions, annuities, usufructs, etc.:
o General rule applies. Gratuitous = exclusive; onerous =
conjugal.
o Annuities:
 The annuity itself (ex. purchased for P100K) is
exclusive property
 Pensions from that annuity (ex. P5K a month) is
conjugal
o Usufruct: the harvests or fruits of the land given as usufruct is
conjugal
 All property acquired during marriage is presumed to be conjugal.
o Regardless of registration.
 Specific enumeration of conjugal property:
o 1) Those acquired by onerous title through common fund
(EFFORTS)
 Even if placed in the name of one spouse
o 2) obtained from labor, industry, work of either spouse
(EFFORTS)
o 3) fruits (natural, industrial, civil) from common property and
net fruits of exclusive property of each spouse (FRUITS)
 Net fruits only because use the income first to pay for
administration, preservation, etc.
 o 4) share of either spouse in hidden treasure
(EFFORTS/CHANCE)
 Even if it belongs to the exclusive property of either
spouse, because effort was involved
o 5) acquired through occupation such as hunting or fishing
(EFFORTS)
o 6) livestock in excess of number of each kind brought into the
marriage of each spouse (only matters upon dissolution)
(FRUITS)
o 7) acquired by chance (CHANCE)
 But losses borne exclusively by the loser spouse
 Rules on life insurance:
o If the beneficiary is the insured himself or his estate:
 If paid out of conjugal funds, proceeds are conjugal
 If paid out of separate funds, proceeds are separate
 If party conjugal, part separate, proceeds are part
conjugal and part separate
o If the beneficiary is the other spouse
 Proceeds belong to the beneficiary spouse, even if
paid out of conjugal funds
 Deemed a donee of the premiums paid.
(Must return ½ of premiums to conjugal
partnership)
 If both spouses are jointly insured in a single policy,
proceeds belong to the surviving spouse (obviously),
even if paid from conjugal funds
 No obligation to return ½ of the premiums,
because it is deemed a reciprocal donation
 If the insured is a third person, then the beneficiary
spouse owns it as separate property (deemed a
donation)
 Special cases:
o For SSS, the beneficiary is the exclusive owner of the
proceeds
o Intellectual property like copyright and patent is the exclusive
property of the creator-spouse (since it is part of one’s person
and is just external manifestation of his genius)
 For loans and credit:
o Principal  exclusive property of lending spouse (if form own
money)
o Interests falling during marriage  conjugal property
 On improvements upon separate property of either spouse:
o If increase in value exceeds original value, then it becomes
conjugal (subject to reimbursement)
o Otherwise, still exclusive (subject to reimbursement)
o BUT change in ownership only vests upon respective
reimbursements, which only happens during liquidation of the
partnership
 But determine whether there is a change in ownership
upon the time the improvement was made
Charges upon the ACP/CPG
ACP CPG
Support of: a) spouses, b) common Same
children, c) LC of either spouse
Debts and obligations: a) contracted Same
by both spouses, or b) by one
spouse for benefit of community
Expenses, taxes, repairs: a) major or Same, except for: b) for mere
minor upon CP; b) for mere preservation during marriage of
preservation during marriage of separate property (no qualification)
separate property used by the family
Expenses for: a) either spouse’s Same
self-improvement b) what both
spouses donated or promised to
common LC’s self-improvement
Ante-nuptial debts of either spouse Same
that redounded to the benefit of the
family
Expenses of litigation between Same
spouses, unless found to be
groundless
If community property is insufficient, N/A
but subject to deduction of share of
debtor-spouse upon liquidation: 1)
ante-nuptial debts not redounding to
benefit of family; 2) support for
illegitimate children; 3) liabilities due
to crime or quasi-delict
  No need to prove first that o Exception: MODERATE donations for
the other obligations of the  Charity
AC have been covered  Family rejoicing or distress
(unlike in CPG where the  Only for AC  may dispose by will interest in the community property
other charges must first be
o Not specific properties
covered), because usually
there are no separate
properties in ACP EXCLUSIVE PROPERTY BY SPOUSES

 Administration of exclusive property may be transferred by the court to

 Rule for ACP: if community property insufficient to cover for expenses the other spouse, when:
(except for the last one, which has a special rule), then spouses are o 1. Spouse becomes the other’s guardian
solidarily liable with separate properties for unpaid portion o 2. Spouse judicially declared an absentee
o Reimbursement from AC due upon liquidation o 3. Spouse sentenced to penalty carrying with it civil interdiction
 For CPG: debts (ante-nuptial or during marriage) not redounding to o 4. Spouse becomes fugitive from justice or in hiding as
benefit of family, support of IC, and liabilities for crimes  will only be accused in criminal case
covered by CP after covering other charges  If other spouse is incompetent, has conflict of interest, or for any other
just cause  court appoints other person as administrator
Administration of property  N.B. Distinguish this from administration of conjugal property where
there is no need for court approval to assume administration
CONJUGAL PROPERTY  Administrating spouse cannot dispose of other spouse’s separate
properties
 Administration of property – jointly by the spouses
 In case of disagreement: Dissolution of ACP/CPG  same rules
o Husband’s decision prevails
o But wife may file for proper remedy within 5 years of contract  Grounds
implementing the decision o Where marriage is dissolved:
 If one spouse is unable to participate or incapacitated:  1. Death of one party
o Other spouse may assume sole powers of administration (no  2. Nullity
need for judicial declaration)  3. Annulment
o Does not automatically include power to encumber or dispose, o Where marriage is not dissolved:
unless:  4. LS
 With consent of other spouse  in writing  5. Judicial separation of property
 With judicial authorization
o Without this, deemed void. But it is a continuing offer on the  Grounds for judicial separation of property:
part of the offering spouse and the third person. Perfected by o 1. Civil interdiction
other spouse’s consent or judicial authorization. o 2. Judicially declared an absentee
 Donation: o 3. Judicial declaration of loss of parental authority
o Cannot make donations from community/conjugal property o 4. Abandonment by spouse or failure to comply with familial
unless with other spouse’s consent obligations
 o 5. Administrator-spouse has abused privilege
o 6. At time of petition, spouses are sep-in-fact for at least 1 year
and reconciliation is highly improbable
o N.B. For grounds 1, 2, and 3  enough to present judicial
declaration
 Voluntary dissolution:
o May be jointly filed in a verified petition by the parties
o Notify all creditors. Court takes measures to protect them.
 Contra: mere separation in fact. This does not affect the property
regime, except that:
o 1) spouse who leaves conjugal home without just cause  no
right to be supported
o 2) when consent is needed from that spouse by law, judicial
authorization is in summary procedure
o 3) in absence of sufficient community property, separate
property of spouses are solidarily liable for support. Present
spouse, in summary proceedings, may be given judicial
authority to administer or encumber specific separate property
of the other spouse and use fruits/proceeds to cover absent
spouse’s share.
 Compare to: abandonment by one spouse, or failure to comply with
familial obligations (marital, parental, property)
o Aggrieved spouse may petition court for:
 1. Receivership
 2. Judicial separation of property
 3. Sole administration of the AC/CP
o Abandonment: left conjugal dwelling without intention of
returning
 Prima facie assumed: left conjugal dwelling for 3
months
 or failed to give any information about his
whereabouts for same period
Liquidation of ACP/CPG and liabilities
 ACP
o 1. Inventory – list community properties and exclusive
properties
o 2. Debts and obligations of community paid from assets
 If insufficient, solidarily liable with separate properties
o 3. Deliver remaining exclusive property
o 4. Deliver net assets of community (those remaining)
 According to agreed division
 If none, equal division
 Unless there is voluntary waiver
 TAKE NOTE of forfeiture of net profits (increase of
value of community property at time of dissolution
from time of marriage)  for:
 Termination of subsequent marriage and
spouse in BF
 Void ab initio and spouse in BF
 Annulment and spouse in BF
 LS and spouse is offender
o 5. Deliver presumptive legitimes of children
o 6. Conjugal dwelling and lot delivered to spouse with majority
of common children
 Children below 7 deemed to choose mother unless
court decides otherwise
 If no majority, court decides based on best interest of
children
 CPG
o 1. Inventory – list community properties and exclusive
properties
o 2. Credit CP for amounts advanced to cover spouses’ personal
obligations and debts
o 3. Reimburse spouses for:
 Use of exclusive funds for acquiring CP
 For value of exclusive property which became part of
CP
o 4. Debts and obligations of CP paid from assets
 If insufficient, solidarily liable with separate properties
o 5. Deliver remaining exclusive properties
o 6. Pay spouse for deterioration of movables used to benefit
family from conjugal funds
 Unless indemnified from some other source
o 7. Net remainder of CP  profits:
 Divide according to agreement
 If none, equally
  Unless there is waiver or forfeiture of share
o 8. Deliver presumptive legitimes
o 9. Conjugal home  same rules as ACP
 Rule on dissolution by death (ACP and CPG)
o Liquidation in judicial proceeding to settle estate of deceased
o In no judicial proceeding, within one year, must:
 Judicially liquidate AC/CP
 Or extra-judicially liquidate AC/CP
o If no liquidation within 1 year period:
 Any disposition or encumbrance of the
community/conjugal property = VOID
o If there is subsequent marriage without liquidation = mandatory
regime of CSP for the subsequent marriage
 Simultaneous liquidation of two marriages contracted before FC:
o Depending on agreement
o If none, determine the capital, fruits, income of each
community  prove by evidence
o If there is doubt, divide between two communities in proportion
to capital and duration of each
 For CPG  support during liquidation:
o Taken from fruits and income pertaining to their shares in
properties under liquidation
o If the support exceeds fruits and income pertaining to them 
excess is considered advances on shares
o If the liabilities of the CP exceed the assets, SS is not entitled
to any support during liquidation
 No need for publication
o 4. Pendency: AC or CP supports spouses or children
o 5. Court enters decree  converts regime to CSP
o 6. Record in LCRs and registries of property
 Effects:
o ACP or CPG dissolved and liquidated
o CSP will apply
o Liability of creditors  spouses still solidary with separate
properties
o Mutual obligation to support still continues unless there was LS
o Rights of creditors not prejudiced
 Revival of prior property regime:
o File motion in court for decree of revival
o When:
 1. Civil interdiction terminates
 2. Absentee returns
 3. Court satisfied that abusive admin will not abuse
again
 4. Parental authority restored
 5. Abandoner returns
 6. Separated-in-fact spouses resume common life
 7. Agreement, after voluntarily dissolving regime
 NO voluntary separation may be granted
again
CSP Regime

Separation of properties during marriage  Chosen through MS

 Kinds of separation of property:
 GENERAL RULE: o Extent:
o Separation of property can only take place by judicial order  1. Total
o Either: voluntary or for sufficient cause  2. Partial  those not agreed upon as separate shall
 List of sufficient causes [see above] be AC property
 Voluntary dissolution [see above] o As to kinds of property:
 How to [see above]  1. Present property
 Procedure for voluntary separation:  2. Future property
o 1. Spouses file verified joint petition to court  3. Both
o 2. Petition lists all creditors  Simple rules:
o 3. Creditors personally notified
 o Each spouse administers and owns, disposes, encumbers, etc.  1. Common children
own property without other’s consent  2. In case of predecease of common child, to
o Each spouse gets his earnings from profession, business, and descendants of that child
all fruits from property  Repudiation  leads to representation for
 Family expenses: descendants
o Borne by both spouses, in proportion to income  3. If none, to innocent party
o In case of insufficiency or default: in proportion to market value o Forfeiture upon termination of cohabitation
of separate properties
 Liability to creditors: Parties not capacitated to marry or not living together exclusively
o Liability is solidary [note!]
 Applies to:
PROPERTY REGIME OF UNIONS WITHOUT MARRIAGE o Bigamous marriages
o Adultery or concubinage
Parties capacitated to marry and living together exclusively (147) o Both man and woman are married to other persons
o Multiple alliances of same married man
 Requisites:  ONLY properties actually acquired by joint contribution is owned in
o 1. Man and woman capacitated to marry each other common, proportionate to contributions. So:
o 2. Live exclusively with each other as husband and wife o Wages and salaries are EXCLUSIVE
o 3. Without marriage or under void marriage o Care by other party to home, children, etc. or moral inspiration
 Void marriage  except having existing valid is not included
marriage with someone else o Default: actual contributions deemed to be equal
 Effect:  If one party is married to another:
o Wages and salaries  owned in equal shares o Share in co-owned properties accrue to AC or CP of prior
o Property acquired jointly through work or industry  governed marriage
by co-ownership (proportionate ownership) o If party in BF, forfeit shares to:
 Thus, according to shares actually put in  1. Common children
 Presumption: party who did not participate in  2. Descendants of that child in case of predecease
acquisition of property contributed jointly (through  3. Innocent party
care and maintenance of family and household) o If both are in BF  rules on forfeiture still apply. [Dean Del:
 DOES NOT apply to: “so magpapalitan lang sila ng property.”]
 Gratuitous title
 Acquired in exchange for exclusive PATERNITY AND FILIATION
properties
o Disposition of properties owned in common  Kinds of filiation
 Cannot dispose unless with consent of the other (this
is different from normal co-ownership)  1. By nature
 Until termination of cohabitation o Legitimate
o illegitimate
 If marriage is void, and only one party is in GF:
o Share of party in BF in co-ownership forfeited in favor of:  2. Adoption
Children by nature  Cause of action accrues from death of
putative parent (From minutes of committee
 Legitimate: meeting)
o During marriage of parents:
 Conceived Actions regarding filiation
 Born
o Includes children conceived through artificial insemination of  To claim filiation (LC/IC)
wife o Legitimate children:
 Either:  Primary methods:
 with sperm of husband  1. Record of birth in civil registrar
 or donor  2. Admission of legitimate filiation in:
 or both o Public document
 must authorize or ratify procedure in written o Private handwritten instrument and
instrument signed by parent concerned
 record in civil registry, with birth certificate  Secondary:
 before the birth of the child  1. Open and continuous possession of status
 Illegitimate: of legitimate child
o Conceived AND born outside valid marriage  2. Other means in ROC and special laws
o Not counted as illegitimate:  When to bring action:
 Void marriages where solemnizing officer had no  By child, during his or her lifetime
authority, but at least one spouse in GF  Transmitted to heirs (for up to FIVE years),
 Art. 36 nullity if:
 Art. 53 nullity o Child dies during minority
 Legitimated o Or in state of insanity
o Children conceived and born outside of wedlock of parents  Action filed by child survives even if either
NOT disqualified by any impediment to marry each other party dies
o Through subsequent valid marriage between the parents o Illegitimate children:
 Annulment of voidable marriage does not affect this  Establish illegitimate filiation in same way and same
o Effects retroact to time of child’s birth evidence
o Legitimation of children who died before the marriage:  When to bring action:
 Benefit descendants  PRIMARY methods: up to child’s lifetime
o Action to impugn legitimation:  SECONDARY methods: up to alleged
 Only by those prejudiced in their rights parent’s lifetime
 Ex. testamentary and intestate heirs  To impugn filiation
 Creditors excluded – because they only step o NOTE: legitimacy of child can only be attacked in a direct
into the picture when there is repudiation of action or proceeding. (Sayson v. CA)
inheritance by heirs o Who may impugn:
 From five years from time their cause of action arises  1. Husband ONLY, by default
 2. Heirs of husband, if:
  Husband dies before expiration of period
fixed to bring action
 Husband dies after filing complaint, and did
not desist
 Child born after death of husband
o Only on the following grounds:
 1. Physically impossible for H to have sexual
intercourse with W within first 120 days of 300 days
which immediately preceded birth of the child; due to:
 Physical incapacity of H to have sexual
intercourse with W
 H and W living separately, and sexual
intercourse not possible
 Serious illness of H preventing sexual
intercourse with W
 2. Proved for biological or scientific reasons, that the
child could not have been that of the H
 Human Leukocyte Antigen (HLA) test 
conclusive determination
 Blood tests can disestablish paternity
 DNA tests  A.M. No. 06-11-5-SC
o CONCLUSIVE of non-paternity
o If probability of paternity value is
less than 99.9% = corroborative
o If probability of paternity value =
99.9% or higher, then it creates a
disputable presumption of paternity
 3. Artificial insemination: no written authorization or
ratification
 Or gotten through mistake, fraud, violence,
intimidation, undue influence
o When to impugn:
 Within 1 year from knowledge of birth or recording in
civil register
 If husband (or heirs) reside in city where
birth took place or was recorded
 2 years, if residing in Philippines but not in place of
birth or recording
 3 years, if abroad
 If birth concealed or unknown, when do you start
counting the period?
 From knowledge of birth or recording,
whichever came first
o Considered legitimate even if:
 Mother declared against its legitimacy
 Or mother has been sentenced as adulteress
o Mother contracting a second marriage within 300 days after
termination of first marriage:
 First marriage:
 Child born within first 180 days after second
marriage is solemnized
 AND MUST BE within 300 days after first
marriage terminated
 Second marriage:
 Child born after 180 days after second
marriage solemnized
 {Even if within 300 days after first marriage
terminated)
 So the rule is: BOTH periods must concur
for the first marriage to have the child. Else,
second marriage wins.
 N.B. these are mere presumptions. And regardless,
the child will be legitimate
o Child born after 300 days of termination of first marriage: no
default status. Up to the one alleging legitimacy or illegitimacy.
ADOPTION
RA 8552
Who may adopt
 Filipino:
o 1. Legal age
o 2. Full civil capacity and legal rights
o 3. GMC, and not convicted of crime involving moral turpitude
o 4. Emotionally and psychologically capable of caring for
children
 o 5. At least 16 years older than adoptee, except if:
 Adopter is biological parent
 Spouse of adoptee’s parent
o 6. In position to provide care/support
 Alien:
o 1. SAME as above
o 2. Country has diplomatic relations with Philippines
o 3. Living in Philippines at least 3 years before adoption
application, and maintains residence until adoption decree
entered, except:
 Former Filipino who seeks to adopt relative by
consanguinity within 4th degree
 Adopting legitimate son/daughter of Filipino spouse
 Married to Filipino spouse and seeks to jointly adopt a
relative by consanguinity within 4th degree of Filipino
spouse
o 4. Certified by diplomatic/consular office that he has legal
capacity to adopt under his laws and that the country allows
the adoptee to become his son/daughter
 Guardians
o With respect to ward
o After termination of guardianship and clearance of liabilities
 Default rule: H and W must jointly adopt. Except:
o 1. Spouse adopted legitimate child of the other
o 2. Spouse seeking to adopt own child
 Other spouse must consent
o 3. Spouses legally separated
Who may be adopted
 1. Person below 18 judicially or administratively declared available for
adoption
 2. Legitimate child of one spouse by the other spouse
 3. Illegitimate child of adopter, to improve status
 4. Person of legal age, if prior to adoption and since minority,
consistently treated and considered as own child by adopter
 5. Child whose adoption has been previously rescinded
 6. Child whose biological/adoptive parents died
o But not within 6 months of death
Whose consent needed
 Adoptee, if 10 years old or above
 Biological parents of child if known or government instrumentality caring
for the child
 Legitimate/adopted children of adopter and adoptee, if over 10 years old
 Illegitimate children, if over 10 years old and living with adopter and
spouse
 Spouse of adopter or adopted, if any
Rescission of adoption
 Grounds:
o 1. Repeated physical or verbal abuse by adopter
o 2. Attempt on life of adoptee
o 3. Sexual assault or violence
o 4. Abandonment/failure to comply with obligations
 Adopter CANNOT rescind adoption. Only adopted.
 Restores parental authority of biological parents, if adoptee is still a
minor/incapacitated
Inter-country adoption act (RA 8043)
Sec. 9. Who May Adopt. — An alien or a Filipino citizen permanently
residing abroad may file an application for inter-country adoption of a Filipino
child if he/she:
(a) is at least twenty-seven (27) years of age and at least sixteen (16) years
older than the child to be adopted, at the time of application unless the
adopter is the parent by nature of the child to be adopted or the spouse of
such parent:
(b) if married, his/her spouse must jointly file for the adoption;
(c) has the capacity to act and assume all rights and responsibilities of
parental authority under his national laws, and has undergone the
appropriate counseling from an accredited counselor in his/her country;
(d) has not been convicted of a crime involving moral turpitude;
(e) is eligible to adopt under his/her national law;
(f) is in a position to provide the proper care and support and to give the
necessary moral values and example to all his children, including the child to
be adopted;
(g) agrees to uphold the basic rights of the child as embodied under
Philippine laws, the U.N. Convention on the Rights of the Child, and to abide
by the rules and regulations issued to implement the provisions of this Act;
(h) comes from a country with whom the Philippines has diplomatic relations
and whose government maintains a similarly authorized and accredited
agency and that adoption is allowed under his/her national laws; and
(i) possesses all the qualifications and none of the disqualifications provided
herein and in other applicable Philippine laws.
Sec. 10. Where to File Application. — An application to adopt a Filipino child
shall be filed either with the Philippine Regional Trial Court having
jurisdiction over the child, or with the Board, through an intermediate agency,
whether governmental or an authorized and accredited agency, in the
country of the prospective adoptive parents, which application shall be in
accordance with the requirements as set forth in the implementing rules and
regulations to be promulgated by the Board.
The application shall be supported by the following documents written and
officially translated in English.
(a) Birth certificate of applicant(s);
(b) Marriage contract, if married, and divorce decree, if applicable;
(c) Written consent of their biological or adoptive children above ten (10)
years of age, in the form of sworn statement;
(d) Physical, medical and psychological evaluation by a duly licensed
physician and psychologist;
(e) Income tax returns or any document showing the financial capability of
the applicant(s);
(f) Police clearance of applicant(s);
(g) Character reference from the local church/minister, the applicant's
employer and a member of the immediate community who have known the
applicant(s) for at least five (5) years; and
(h) Recent postcard-size pictures of the applicant(s) and his immediate
family;
The Rules of Court shall apply in case of adoption by judicial proceedings.
SUPPORT
 Everything necessary for sustenance
o Food, clothing, medicine, education, transportation
 Support doesn’t end at age of majority
o It is still the parents’ obligation
 There is a system of priority in support
o This is valuable if there is not much resources to provide
support with
o System of priority found in FC
 Who are the persons required to support each other?
o 1. Ascendants and descendants
 No matter how far removed
 In the case of illegitimate ascendants or descendants
in the direct line:
 Seems to stop at parents, and their
children, whether legitimate or illegitimate,
and their descendants, whether legitimate or
illegitimate
 But the effect is really just the same. The
code just wants to make it clear that there
are no illegitimate parents or illegitimate
ascendants. But basically it is the same.
o 2. Collateral relatives: limited to brothers and sisters
 No other collateral relatives
  Half-brothers and sisters are considered legitimate o When you have enough, you do not have to worry about the
and are entitled to support priority of support. Just give enough to everyone.
 If the illegitimate brother or sister is a minor, you are o It will be prorated based on the ability of the provider to give.
required to support him or her So a child who earns more must support the parent more than
 If he or she is no longer a minor, you ask for the the child who earns less.
reason why he needs support o The court can demand one person to advance, and then the
 E.g. he is indolent, then you are not required person demands from the rest.
 E.g. he is a paraplegic, sick, and has no job  Legal support is exempt from attachment and execution. But
opportunities, then you are required to contractual and testamentary support is NOT exempt from attachment
o 3. Spouses and execution.
 The only thing that binds them together is the o The latter are in excess of what one is required to give
marriage contract. If you remove the validity of the
marriage, then there is no obligation to give support.
 This is why the guilty spouse may still be required to
provide support to the innocent spouse. PARENTAL AUTHORITY
 Can you refuse to give support to a philandering
 Time-bound – only until the children reach age of majority
spouse?
o Thus, the only “freak” situation is the giving of consent for
 No. Unless there is actual LS, there is no
marriage, even until 21 years old. This is the outlier.
legal defense to deny support.
 Parental authority:
 However, an unjustifiable refusal to live with
o 1. Custody
one’s spouse is a ground to refuse to give
o 2. Discipline (proportionate to offense)
support.
 Obligations
 Priority of support:
o Support
o 1. Spouse
o Moral and spiritual guidance
 Different from succession, where spouse is only #4
o Provide good environment, etc. (PD 603)
o 2. Nearest descendant
 Two types:
o 3. Nearest ascendant
o 1. Parental authority over the person
o 4. Brothers/sisters
 Parents
o Order:
 ARE ALWAYS FIRST
 Spouse
 Parents only lose if shown to be unfit
 Children
 Parents  Having more resources has never been the
 Grandchildren criteria
 Grandparents  Take note of tender years doctrine
 Etc.  If parents are gone, substitute parental authority
 N.B. Thus the rule is you do not exhaust going down (BOTH parents must be gone)
before going up. It alternates  1. Grandparents – no preference, whether
 Rule on plurality: parental or maternal line. If there is clash,
they go to court
  2. Eldest B/S over 21
 3. Anyone with custody over the child
 And concomitantly, special parental authority
 Teacher, in the classroom or outside the
classroom, for recognized school activity
 Implication: responsible for injury or death
over child
o Defense: due diligence
 The teacher exercising special parental
authority is SOLIDARILY AND PRIMARILY
liable. The parents and those with substitute
parental authority: subsidiarily liable
o 2. Parental authority over property of the children
 Legal guardianship
 Automatic if value of child’s assets are less
than P50,000
 If more than P50,000: required to file a bond
and must be appointed by the court in a
summary proceeding
 Even if you are granted authority by the
court, legal guardianship authorizes only
acts of administration; NOT acts of
ownership
 There is separate approval if you want to sell the
child’s properties
 Rules on property of minor children:
 1. Properties of children (regardless of how
acquired)
o OWNED by the children. Even
minors can own property.
o Parents only have legal
guardianship. They can administer
it, and must account in a fiduciary
capacity.
o If LC – joint admin by F and M; if
disagreement, M wins, but F can
seek court redress
 2. Fruits and income of the property
o Can be used by the parents
o Not for their own; ONLY to support
the child
o If there is excess, it can be used for
collective needs of the family
 3. Properties owned by parents
o There can be minor children tasked
to administer certain parents’
properties
o OWNED by parents
o Fruits and income  go to:
 Parents (but parents must
pay the children, which
should be the same
amount they would’ve paid
a 3rd person administrator)
 Children (as earnings, not
treated as advance on
legitime)
Funerals  just read
Emancipation  out already; just reaching 18
 Still pegged at 21:
o A) Parental consent for marriage
o B) Art. 2180 of civil code
Retroactivity of the FC  as long as not affecting vested rights (ex.
Illegitimate children)
Surnames
 Purpose:
o 1. Interest of the State: because it seeks to prevent confusion
of identity
 o 2. To prevent escaping from criminal liability  Rules:
 What is the legal name of a person? o ANNULMENT –
o What appears in the birth certificate  If guilty spouse, MANDATED to return to maiden
 To change: Rule 103 of ROC surname
 If innocent spouse, may retain husband’s surname or
What can you use as surname? revert, unless she or the husband has remarried
o NULLITY – same
 Legitimate and legitimated children: o LEGAL SEPARATION
o MUST use father’s surname  Whether guilty or not, retain since they are still
 Illegitimate children: married
o Only mother’s surname o DEATH of husband
o Revilla law: allows use of father’s surname even if illegitimate,  Can still use the husband’s surname
if recognized in a private handwritten instrument or public  May revert to maiden name
document  Or add “Vda. de Surname”
 This is not mandatory  What is the rule on junior?
 Adopted children: o You can only give junior to the son.
o If adopted by both H and W, use husband’s surname o There is no rule on giving daughters “junior”
o If solely adopted, use sole adopter’s surname
o If solely adopted by married woman, use married woman’s Absence
surname
 Married women: Stages:
o Not required to use surname of the husband. Can retain
maiden name  1. Provisional absence
 If you change your surname to your husband’s, o An ad hoc stage, since there are certain things that have to be
there’s no turning back done (ex. Signing contracts, withdrawing from bank)
o Options: o Legal representation: spouse is preferred
 1. Keep maiden name  Only exception: when there is legal separation
 Ms. Gloria Macapagal  But court can appoint someone else if there is
 2. Use maiden name plus husband’s surname reasonable ground
 Ms. Gloria Macapagal-Arroyo  2. Declaration of absence
o Two years from time of disappearance, unless administration
 3. Use Mrs., then husband’s surname
of power of attorney was left with someone else, then five
 Mrs. Jose Miguel Arroyo
years
 Remo v. DFA
o Procedure; prove that he has been missing/absent for a certain
o Woman adopted legally her husband’s surname. Her passport
period of time
was under that name. In renewal, she asked the DFA if she
 Administrator of absentee is appointed
can return to her maiden surname. But there is no annulment,
o If he reappears, he takes back his properties
or whatever ground to revert. She claimed that she had the
 3. Presumptive death
option.
o Here, transfer to administrator of presumptively dead person
o HELD: Cannot do this.
o If proven to be dead, then transfer to administrator or executor
of estate
 Then proceed to settlement of estate
o New periods:
 4 years for ordinary absence
 2 years for extraordinary absence
o What is the difference?
 Four years – there is no danger of death
o If the person reappears, return his assets to him
 If the spouse remarried, then follow Arts. 42 and 43 of
FC
PROPERTY  Machines placed in a chocolate-making factory were subjected to a
CLASSIFICATION OF PROPERTY writ of seizure, which can only apply to personal property. The
lease agreement stated that they are considered personal property.
 How does the code define property? What are they?
o Those subject to appropriation by man. o Personal property, based on stipulation between the two
o “Things” would thus be a broader concept since it covers even parties.
those not subject to appropriation. o As to third persons in GF, they are real property, consistent
o The code weirdly interchanges the use of these two words. with the code.
 What are the classifications?  What is the controlling factor for immovable by destination?
o Real/immovable or personal/movable properties o Intention of the owner of the property in question.
o Public dominion or private ownership  Give examples of immovable properties by destination.
 What are real properties? o Statues, etc, used for embellishment.
o Those under Art. 415  If a painting is embedded into the cement wall of a house, thus
o 1. Immovable by nature becoming part of the wall, what happens to it?
 Land o The painting becomes immovable by incorporation. Because
o 2. Immovable by incorporation the painting will be destroyed when you try to remove it.
 Buildings, constructions adhered to the soil o It doesn’t matter what the intent is; the fact of incorporation is
 Trees, plants and growing fruits, while attached to the the controlling factor.
land o Does ownership of the painting and the wall matter?
 Those that cannot be separated without damage  No. The fact of incorporation is what matters.
o 3. Immovable by destination  X constructs a building on a piece of land he is leasing from Y. Is
 Ornaments it real or personal?
 Machines o Real. It doesn’t matter that who owns the land if by
 Animal houses incorporation.
 Loading docks  But if X and Y enter into a contract that deems the building as
 Fertilizer actually used chattel, can it be treated as such?
o 4. Immovable by analogy o Yes (Navarro v. Pineda). So while constructing the building on
 Contracts for public works leased property does not per se affect the building’s status,
 Servitudes and other real rights over immovable coupled with the declaration, it can. (Tumalad v. Vicencio)
property o But as to third persons, it’s considered real property. So if it’s
 Actually, the only one that is real property by its very nature is land. publicly sold, one must compl with conditions precedent for the
 Buildings, etc. only become immovable property because they are sale of real property. Else, it is void. (Manarang v. Ofilada)
incorporated/adhered to the soil. o When there is a chattel mortgage between two persons over a
o If the bahay kubo can easily be moved and transported, then it building and a real estate mortgage over the same property
is personal property, not real property. towards another, the latter wins out because the CM is void as
 Incorporation can be to another immovable; need not be to the soil per regards third persons. (Associated Insurance v. Isabel Iya)
se. Also, a consideration is if it cannot be separated without breaking  What about a CM over machinery?
the material or the object (this refers to the attached object, obviously, o It can be valid even as to third persons, since the machine is
because even if land breaks, it still has value.) only real property by destination if it directly meets the needs of
 the business. If it’s just stored in the factory, then it’s personal
property.
 If I hang the painting on the wall of Justitia (and I don’t own
Justitia)?
o It does not become immovable by destination because it has to
be placed by the owner of the place where the painting is
found, and he intends that it be an embellishment.
 Ateneo owns a St. Thomas More painting and hangs it in the walls
of Justitia. What happens?
o It is immovable property by destination, because there is intent
to make it an ornament and to keep it there indefinitely.
 Machinery/equipment/receptacles placed in building or tenement where
work or industry is done.  Also by destination.
o They are immobilized by intent of the owner.
o Ex. Computers used in a computer shop, and owned by the
owner of the building.
o NOTE: does not apply to rented spaces in malls, because you
do not own the place; it is just for lease.
o Ex. Sewing machines in a clothing manufacturing warehouse,
if the machines and the warehouse are both owned by the
person.
 Animal houses:
o If you intend to keep it there forever, then it and the animals
become immovable property.
o Ex. Dog house in one’s house, and the dog himself become
immovable property.
 Loading docks
o This covers, for instance, a floating platform made of
wood and metal where machinery of a petroleum
corporation are attached. The platform was tethered to a
ship, which was anchored on the seabed. Real or
personal?
 If intended to remain at a fixed place, real.
 If it can be moved around and towed to other vessels,
personal.
 Fertilizers
 What are those by analogy?
o Contracts for public works, and real rights over immovable
properties.
o Is a mortgage on land movable or immovable?
 Immovable if registered in ROP
 Movable if just between parties
 What about shares of stock for real estate property?
o PERSONAL property. Shares of stock are always personal
property.
 What are the tests to determine personal property?
o 1. Exclusion test
 If not included in the list of immovable property, it is
personal property
o 2. Description test
 Can move from one place to another without
impairment to the real property to which they are fixed
o 3. Considered movable properties by law
 Ex. Growing fruits and plants – because under Chattel
Mortgage Law, they are movables
 Even if they are listed as immovable property in 415.
 How to resolve: only considered as chattels under
Chattel Mortgage Law. Otherwise, immovable under
415
o 4. Considered as personal property by analogy
 Contracts, choses of action (right to sue or be sued)
 Radio frequencies
 Shares of stock of ANY corporation, even if the
corporation owns immovable property
 Classification in fungible or non-fungible/consumable or non-
consumable:
o Only applies to personal or movable properties
o Fungible/non-fungible: based on intent of the parties
 Fungible: can be substituted by others of same kind
or quality
o Consumable/non-consumable: based on nature
 Cannot be used in manner appropriate to their nature
without being consumed
o Money is ALWAYS fungible
 Although “Arrovo” bills are not fungible
 Other classifications?
o Constitution:
 Public domain
  Private land
o Civil Code: - for purposes of ownership
 A. Properties of public dominion
 1. Properties intended for public use
 2. Properties intended for public service
o Being used by the government to
render some service to the people,
but not open to everybody
o Ex. Police car
 3. Patrimonial property
o “Private property” of the State; used
for entering into some business or
utility
o Also includes those from first two
classifications that are not anymore
for public use/service
 B. Privately-owned property
 What are the characteristics of property of public dominion?
o 1. Cannot be appropriated
o 2. Cannot be subject matter of contracts (no alienation or
encumbrance)
o 3. Cannot be acquired by prescription
o 4. Cannot be subject to attachment or execution
o 5. Cannot be burdened by voluntary easement
OWNERSHIP
 What are the rights of the owner?
o 1. Right to enjoy the property
 Jus possidendi
 Jus fruendi
 Jus utendi
 Jus abutendi
o 2. Right to dispose of the property (Jus disponendi)
 Sell, encumber, dispose, etc.
o 3. Right of action to recover (Jus vindicandi )
 Note: there is no such thing as absolute ownership. What are these
restrictions?
o 1. Those in the Constitution
 Eminent domain
 Police power
 National economy/patrimony powers
o 2. Contractual restrictions
o 3. Provisions in the NCC
 Nuisance
 Right of way
 Art 431: use property the way you want it, but not in
manner injurious to others
 Art 432: doctrine of incomplete privilege – the greater
right of more people can prevail
 Ex. Destroying one’s fence to fervent
flooding
 What are means to protect one’s rights?
o Doctrine of self-help Art 429: can use reasonable force to repel
actual or imminent aggression
 Elements?
 1. Force employed by owner or lawful
possessor
 2. Actual or threatened physical invasion
 3. Invasion/usurpation is unlawful
 4. Force employed is necessary to repel
 When does this not apply?
 When the property has already been stolen.
The provision only applies to repel the
aggressor.
o What are your actions when you lose your property?
 Accion publiciana
 Accion reivindicatoria
 Physical boundaries of property
o Horizontal aspect
o Vertical aspect
 Until Rules of Aerial Navigation
 Ex. If your property is near an airport, you have
special requirements to comply with
 What are the rules on hidden treasure?
o If you own the building, it is yours
o Unless it is deemed to have been part of national treasure
 o If of interest to the science or arts, the State may acquire it at
their just price – divided 50-50 as well
o Ownership must not be indicated
 Ex. Golden spoon engraved: Imelda Marcos
o Only manufactured products
 Because if it is gold in raw state  belongs to State
 To whom does the property belong to, and what are the rules on
finder’s fee?
o Finder owns property – 100%
o Finder and owner – split 50/50
 As long as the finder is NOT a trespasser
 X owned a piece of land. He knew Y had a metal detector that
could be used to find treasure. Y agreed and he found treasure.
To whom does it belong?
o To X. For there to be 50-50 split, the other person must have
found the treasure by mere chance. Remember, the requisites
are:
 1. Treasure is money, jewelry, precious objects
 2. Hidden and unknown
 3. Lawful ownership does not appear
 4. Discovery is by chance
 5. Discover is not a trespasser
o If the thing is of interest to science or the arts, the State may
acquire it by paying just price.
Accession
 It’s an incident of ownership. Not a means of acquiring originally.
 Two things:
o 1. Those produced from property (fruits) whether real or
personal (Accession discreta)
 “internally generated accession”
 Natural fruits
 Industrial fruits
 Civil fruits
o 2. Those attached or incorporated into one’s property and
cannot be separated without damage (Accession continua)
 External forces or additions to the property
 Accessory follows the principal
Accession discreta
 What are the kinds of fruits (accession discreta)?
o 1. Natural
o 2. Industrial
o 3. Civil
 What are civil fruits?
o Income from use of property, ex. Lease, rent of buildings
o These are synthetic because it is based on income of property.
o Who gets dividends?
 For corporate law – whoever is the registered owner
as far as dividends are concerned,
 For civil law – if you only bought the shares the day
before, you don’t get all the dividends. You have to
split it proportionately.
 What is the difference between natural and industrial fruits?
o Natural fruits – spontaneous products of the soil; products and
the young of animals
 “Spontaneous” – they just grow, without planting,
effort, cultivation
 “Spontaneous” only qualifies soil products. No need
to qualify animal products and young.
 For young of animals, what is the rule?
 If one person owns both father and mother,
then it doesn’t matter.
 If there are different owners, the owner of the
mother gets the young.
o Industrial fruits – products of the land through cultivation or
labor
 These are mostly products of the soil. Does not cover
animals.
 One must cultivate, process, plant, etc.
 But the difference between natural and industrial fruits is mostly
academic, unlike planting and sowing. What is the difference
between planting and sowing?
 o Planting – produces something relatively long-term or
permanent, like trees
o Sowing – a one-crop harvest like rice, corn, etc.
o N.B. the rules that apply to planting differ from rules applicable
to sowing.
 How does the rule differ?
o When someone plants something in one’s property, there is a
situation where you can compel the person to buy your
property.
o In contrast, there is NEVER a situation where a sower can be
compelled to buy the property. You can only require him to
pay rents.
 What is the rule as to expenses for planting and sowing? Who
pays for cost of the seeds, labor, gathering, preservation, etc.?
o In general, these are charged to the person who receives the
fruits.
o And as a general rule, it is the owner who gets these. But
there are instances when the law gives these fruits away to
some other person apart from the owner.
o What is the exception?
 Antichretic creditor (antichresis) – the fruits are given
to the creditor, and the creditor deducts it from the
amount of the obligation, first to interest then the
principal
 KNOW Planter and sower in good faith <stepped out>
 Know difference of Art. 443 and 449
o 449 – you don’t get reimbursement if it’s not yet harvested
 Fruits have not yet been harvested
o 443 – even if you’re in BF you still get compensated for
necessary expenses
 Those fruits already harvested
 448 – planter or builder in good faith
o Gets the fruits by law, regardless of whether fruits have been
harvested or not
Accession continua
 General rules in accession continua:
o 1. Owner receives the extension/increase
o 2. Accessory follows the principal
o 3. The things must be so united that they cannot be separated
without injuring or destroying the property
o 4. Punitive liability attaches to the party in BF; party in GF is
not punished
 Accession continua – those external in character, forming one single
object
o Apply the “accessory follows the principal” rule
o There are different accessions for movable and immovable
o Immovable property:
 Accession industrial – persons who employ industry
to make certain constructions, plantations, sowings
 Accession natural – brought about by forces of
nature; no industry involved
 Alluvium
 Avulsion
 Change in river course
 Formation of islands
o Movable property:
 -ions
 Accession industrial
o Building, planting, or sowing
o Building – constructions, improvements using unnatural
materials
o Does it matter whether the building construction is
permanent or transient (ex. Slums, kubo)?
 For purposes of accession, yes. Because for there to
be accession, the joining together must have some
degree of permanence.
o How many persons are involved in the B/P/S problems?
 2 or 3
 There is always a land owner (LO)
 Second personality is B/P/S (BPS)
 Third person is the owner of the materials (OM)
LO/BPS/OM scenarios
 1. The ideal scenario is the LO, BPS, and OM is just one person. There  He doesn’t know he is not the owner of the land. (So
is no problem here. Accessory follows the principal. The presumption he has to own land in the same area also, to think the
is that the LO is also the BPS and OM. LO’s land was his.) This is why most cases involving
 2. LO and BPS is the same person; OM is a second person this involves only portions or property and boundary
o When is the LO in GF here? disputes.
 When he does not know the materials do not belong o In all likelihood, there is going to be accession here, unlike in
to him. scenario 2 since here, he builds, plants, or sows. But if it can
o When is the OM in GF here? be removed without damage, just allow removal.
 When he does not know someone else is using it, or o If both are in GF, what happens?
he thinks the materials used by the LO+BPS belongs  1. LO can acquire what was built, planted, or sown,
to the LO+BPS. but pay indemnity.
o FIRST THING TO DO: determine whether accession exists. If  This option is always present.
the materials can be removed, then there is no problem. (Ex.  Building 
Light bulbs – take them out and return them) o If necessary improvement –
o Note the basic rule: when two persons are involved and both  Measure of indemnity:
are in GF, give preference to the LO. actual costs.
o If both are in GF, what are the rights of the LO? o If useful improvement –
 Can acquire materials by paying indemnity to the  Measure of indemnity:
owner of the materials. Measure of expenses: cost of actual costs or plus value
the materials at the time of payment. (amount of increase of
o If the LO was in GF and the OM was in BF, what happens? value in land).
 Anyone who is in BF loses everything. He loses the o If luxurious improvement –
value of the materials and the owner can acquire the  Measure of indemnity:
materials without need for payment. value at the time you enter
o If the LO was in BF and the OM was in GF, what happens? into possession.
 OM can remove the materials, whether or not this  (Strange rule because it
causes damage gives the LO option to
 AND at the same time, OM is entitled to acquire the property or
damages. Measure: cost of materials. not. But it would have to
 Or if OM doesn’t want to remove the materials, the LO stay in the property
has to pay the OM cost of materials + damages. regardless, because there
o If both are in BF, what happens? is accession.)
 Both are in GF.  2. LO can compel the BPS to purchase the land.
 3. LO is one person; BPS+OM is another person  NOTE: you can only exercise this option
o When is the LO in GF here? when the value of the land is not
 He is not aware that someone has B/P/S in his considerably [key word] higher than what is
property. planted or built. (Depra v. Dumlao)
o When is the BPS in GF here?  Alternative: Can ask for rentals instead.
 o Value – agree on a lease contract,
or if they cannot, court decides.
o When the lease period is done,
cannot compel to renew.
o If he cannot pay the rentals, then
you can eject him.
 BPS’s rights:
 1. Receive indemnity
 2. If there has been no indemnity given yet,
there is right of retention and no need to pay
rents.
 When is there right of removal by the LO against a
BPS, if both are in GF?
 Note that this is NOT a principal remedy. It is
subsidiary: you have to choose option #2,
and then the BPS is unable to pay the
purchase value of the land.
o If the LO is in GF, and the BPS is in BF?
 NOTE: EVEN IF what was built, planted, or sown can
be removed without damage, it cannot be removed.
 1. LO can acquire what was built, planted, or sown,
BUT with different rules.
 The only time he must pay indemnity is for
NECESSARY improvements.
 MWSS case: for USEFUL expense – can
acquire without indemnity.
 LUXURIOUS improvements – LO will pay, if
he wants it. If LO doesn’t want it, he doesn’t
have to take it. Problem is, of course, it’s
going to be attached so LO really gets it free
of charge.
 2. LO can always compel the BPS to purchase the
land, regardless of valuation.
 For sower in BF – cannot be compelled to
purchase the land, whether in GF or in BF.
Sower only pays rent. If in GF, just rentals.
If in BF, rentals and payment of damages.
 3. LO can demolish/remove what was built or planted.
 This is now a principal remedy in this case.
 BPS:
 If LO takes first option:
o Is entitled to indemnification ONLY
for necessary expenses.
o BPS also has no right of retention,
even if not paid.
 If LO takes second option:
o BPS must purchase it. If he doesn’t
pay, LO may sue.
 Sulo ng Nayon v. Nayong Filipino: rights of parties in
this case not governed by these NCC rules. Instead,
the rights are governed by the lease agreement
existing between the two entities. The lease is an
acknowledgement of the rights of the parties; thus, a
lessee neither a builder in GF or BF. He is just a
lessee, governed by the laws on lease.
o If the LO is in BF, and the BPS is in GF?
 First, ask the BPS in GF what he wants to do. He has
first dibs.
 BPS can:
 1. Ask for removal. It doesn’t matter whether
it causes damage or not.
 2. If he doesn’t want to remove it, the ball
passes to the LO, who has the following
choice [just one valid] –
 LO’s choice:
 1. LO can acquire it, with indemnity plus
damages.
 2. N/A. NOTE: cannot compel the BPS to
purchase the land
 3. N/A. NOTE: cannot compel the BPS to
remove what was built or planted.
 BPS here cannot compel the LO to sell him the land.
It is just an option available to the LO.
o If they are both BF?
 Then both are in GF.
 4. Three persons: LO, BPS, and OM
o When is the LO in GF?
 If he did not know that some BPS’ed in his land.
o When is the BPS in GF?  Just apply the rules in scenarios #2 and #3.
 He thought he owned the land.
o When is the OM in GF?
 He did not know someone used his materials. Illustration of LO, BPS, OM all in GF:
o As a general rule, the claims are:
 OM, as against the BPS LO BPS OM
 BPS, as against the LO
o First thing to consider: Is there accession? The BPS can
Can acquire BPS (pay Until payment, has right  Cannot remove
indemnity for materials of retention; what was
remove if there is no damage to materials AND the LO did not
+ labor) built/planted,
choose to buy what was built, planted, or sown. regardless of
Pays OM for cost of
o What if they are all in GF? whether there
materials
 Primary option belongs to the LO. would be damage
 1. LO can acquire was has been built, planted, or of not.
sown with payment of indemnity including for  Right to receive
materials (to the OM). payment from
BPS. If BPS is
 2. LO can sell the land, as long as not considerably
insolvent, can
more valuable. Etc. subsidiarily go
 NOTE: These are the same rules as scenario 3. after LO. [In latter
 BPS: scenario, LO in
 IF LO chooses to acquire the thing, BPS has effect pays twice
no right to remove the thing. for the same
materials]
 OM 
 No right of
 LO chooses OPTION #1: retention in case of
o Principal remedy is against the non-payment
BPS, since he took your materials. Can sell land (if not BPS pays for land. Right of removal comes
o Subsidiary remedy is against the considerably more Becomes new owner of in (if it wouldn’t cause
LO if the BPS is insolvent. (Basis: expensive) the land and what was any damage only, since
“material rent lien” because in this built or planted both in GF).
case, the LO received what was
built or planted) No subsidiary liability of
 LO chooses OPTION #2: LO.
o OM can choose to remove the thing
if there is no damage suffered.
o If there is damage suffered –
Illustration of LO, BPS, OM; OM in BF:
 Remedy is against the
BPS.
LO BPS OM (in BF)
 There is no subsidiary
remedy against LO. Can acquire BPS (pay Until payment, has right Loses everything. Not
o For the scenarios in BF,
indemnity for materials of retention; even subsidiary action  3) OM is in good faith
+ labor) against LO.  What is the basic rule on BPS liability in favor of LO?
Pays OM for cost of o BPS is always liable in favor of the LO, if the LO is in GF.
materials o [Or both BPS and LO are in BF – becomes GF]
 When is there right of removal?
Can sell land (if not BPS pays for land. Loses everything
o Only enforceable against BPS, by the OM. So the LO has
considerably more Becomes new owner of
to always choose option 1.
expensive) the land and what was
o The only modification: whether BPS is in GF or BF
built or planted
 If in GF – must not cause damage
 If in BF – regardless

Illustration of LO, BPS, OM; BPS and OM both in BF:
LO BPS (in BF) OM (in BF)
Can acquire BPS. No Receive payment only Entitled to receive
indemnity, except for for necessary indemnity from BPS,
necessary improvements. No who used his materials.
improvements. right of retention. [Since both in BF –
becomes in GF as
regards BPS]
But no right to
subsidiarily go against
LO [since LO in GF]
Can sell land Pays for land. Can exercise right of
regardless. removal only when it
does not cause
damage. [Since both
OM and BPS in BF –
becomes in GF]
Alluvium
 What are the remedies of the LO-gf if the chooses to compel
the BPS-gf to buy the land, and the BPS-gf fails to pay?
o 1. Leave things as they are and assume lessor-lessee
relation (Miranda v. Fadullan)
o 2. LO entitled to have improvement removed when the
BPS-gf fails to pay (Ignacio v. Hilario)
o 3. Sale of land and improvement in public auction,
applying proceeds to payment of value of land first to LO-
gf, and the excess delivered to BPS-gf
 There is LO-gf, and BPS-gf. LO-gf filed an action to recover
the lot, including the portion upon which the BPS-gf built his
house. The Trial Court ordered the BPS-gf to vacate and pay
monthly rental until the time they vacate. Correct?
o NO. First since, both are in GF, look at the options of the
LO. Since the LO doesn’t want to buy the house, it looks
as if the LO chose option 2.
o The TC mistakenly ordered the BPS to pay monthly rental,
because being in GF, he has the right of retention until the
LO pays for the value of the expenses incurred by the
BPS.

 Alluvium is gradual deposit.

 When does subsidiary liability of LO occur?  Four things to remember:
o Three requisites: o 1. Gradual deposit of SOIL
 1) LO chose to acquire what was built or planted o 2. Must deposit in banks of rivers (and maybe lakes and
 2) BPS is insolvent [not mere refusal to pay] creeks, since they empty into a larger body of water too)
  Not applicable to seas, etc. since these are public
property
 For banks of inland waters (like lagoons), do not apply
alluvium
o 3. Deposit must be done on basis of natural current of the river
 Meaning, not man-made
o 4. Right of ownership belongs to the riparian owner
 No need to report, ask permission, etc. By provision of law, the gradual
deposit becomes yours, automatically.
 Does this mean you are protected in this additional area?
o No. Any land in the additional area is unprotected.
o So better if you subject it to the Torrens system, or else you
can lose it through acquisitive prescription.
o Even if the land receiving the alluvion is registered, the new
land is not yet. So it can be acquired by prescription by other
people. (Grande v. CA)
Avulsion
 This is abrupt. The transfer of a perceptible piece of land caused by the
current of the river, but involving a VIOLENT and SUDDEN action of the
water.
 Prescription: two years to remove
o Or for uprooted trees carried by the current to another land: six
months to remove
 What happens if you don’t take it out after two years?
o Dean Del thinks if you don’t remove it after two years, it’s gone.
It’s not yours anymore.
o It belongs to the person to whom that property is incorporated
into
o BUT some commentators don’t think it will belong to the
person
 What about trees?
o If trees were uprooted and transferred to the other side, they
do not become trees. They are just logs.
o Same two year rule  I’m not sure if I heard this right, because
the codal says six months.
Change of river course
 Anything beneath the river is public property. So by default, when a
river bed dries up, it’s public land. The “change in river course
provision” is an exception.
 Example, a river goes through A’s property. But it changed course to
B’s and C’s properties.
 What happens?
o B and C, the ones who lost property, own the new dry land due
to the change of course.
o In proportion to the land lost (ex. 2 meters of water for B, 4
meters for C, so 1:2 ratio for B and C on the new dry land)
 What is A’s right?
o He can choose to acquire the new dry land. Pay B and C what
is due, in proper proportion.
 The government may choose to redirect the water.
 Under the Water Code: the owners of the affected lands may undertake
to return the river/stream to its old bed at their own expense; but they
have to secure a permit from the Minister of Public Works, and they
must commence works within 2 years of the change in course
 If the new area is smaller or bigger than the land lost, it doesn’t make a
difference. The law doesn’t qualify.
Formation of islands
 How are islands formed?
o When the water goes to a lower level
 What is the rule?
o If in the seas or navigable rivers, they become part of public
property.
o If not in seas or navigable rivers, then the island belongs to the
nearest riparian owner near the island.
 Ex. A and B on opposite river banks, are riparian
owners. If the island appears on the left side, it goes
to A. If on the right, to B. If in the middle, split
equidistantly
Accession in movable properties
 N.B. Just one set of rules
1. Adjunction
 Ex. The table and the varnish
 Form one single object – cannot distinguish one from the other.
 The two objects must belong to different owners
 Who owns the single object?
o If you can separate them without injury (close to impossible) –
then just return
o If it cannot be separated without damage – the accessory
follows the principal
 How do you know why is the principal, which is the accessory?
o First test: What property is attached to what?
o Second test: What is more valuable?
 Only apply this if you cannot determine which is
attached to what
o Third test: Based on volume
 Only apply this is values are the same or you cannot
determine what is more valuable.
 In a diamond ring, which is the accessory and which is the
principal?
o The band is the principal, the diamond is the accessory. This
is notwithstanding relative values.
 But if the accessory is worth much more than the principal, owner of the
accessory can ask for separation, but he has to pay for the value of the
principal since there would be damage caused.
o Ex. Diamond ring
 For art, and similar materials which employ skill:
o DIFFERENT rule.
o The work of art or intellect is the principal. The canvass or
medium is the accessory.
 If one of the parties is in bad faith, how do the rules change?
o If the owner of the accessory is in BF, the owner of the
accessory simply loses his accessory without remuneration,
and he is liable for damages.
o If the owner of the principal is in BF, the owner of the A has
two choices:
 1. Demand return of the accessory whether there is
damage or not
 2. Demand value of accessory, plus damages
 Measure of indemnity:
o Of same kind and quality, or give cash equivalent based on
valuation.
2. Mixture
 The two properties must lose their respective identities, so you cannot
determine which is which.
 Ex. Two piles of rice get mixed together. You cannot determine who
owns which grain.
 Two types of mixture:
o 1. Commixtion – If solids are mixed
o 2. Confusion – if liquids are mixed
 What is the rule on mixture?
o 1. If the mixture occurred with the will of each owner:
 There is a co-ownership on the basis of the
agreement.
 They agree on the sharing. If there is none,
determine by proportion of contribution.
o 2. If not by the will of parties, but by chance:
 Pro-rata sharing by both
 Determine proportionate share – based on VALUE,
and not anything else
o 3. If only one owner was the cause of the mixture – determine
if in GF or BF:
 In GF (thought other sack of rice was his): apply same
rule on co-ownership by chance
 In BF: he loses whatever is his share in the mixture,
and he can be required to pay damages
3. Specification
 There is a thing, and it is turned into a finished product through the labor
of another
 (“Labor of one + material of another”)
 The labor is ALWAYS the principal, and the material, the accessory –
regardless of value
 What is the rule?
o Determine whether the worker is in GF or BF.
 o If in GF, he gets the appropriate the thing, but indemnify the
other guy for the cost of the materials
o If the worker is in BF, the owner of the materials can simply get
his stuff, and charge the worker with damages
 Exception: work of art or scientific work – the worker
can appropriate the whole thing:
 But if with BF – pay damages + value of
materials
 But if with GF – no damages
Quieting of title
 Requisites for quieting?
o 1. Plaintiff has legal or equitable title, or interest in the real
property
o 2. There is cloud on such title
o 3. Cloud is due some instrument, record, claim, encumbrance,
or proceeding which is apparently valid or effective but is
actually invalid, ineffective, voidable, unenforceable, and
prejudicial to plaintiff’s title
o 4. Plaintiff must return to defendant all benefits he received
from latter or reimburse defendant for expenses that benefited
plaintiff
 Are tax declarations conclusive evidence of ownership?
o No. It’s just an indicia of possession in concept of an owner at
best, but it’s not considered as title to property per se.
Co-ownership
 What are the elements of co-ownership?
o 1. Two or more owners
o 2. Unity of object
o 3. Recognition that there is a co-ownership
 If I say “this part is yours, this part is mine, etc.” – is it a co-
ownership?
o No. Because there has to be undivided, aliquot shares.
 How is co-ownership created?
o 1. By law
 Ex. Party walls, etc.
o 2. By succession
 Ex. Co-heirs before there is actual partition
o 3. By agreement of the parties
o 4. By chance
 Ex. Mixture by chance
o 5. By occupation
 Ex. Getting a wild pig together
 Distinguish partnership from co-ownership.
o You cannot register a co-ownership as having separate
juridical personality.
o Co-ownership can be created by various ways (above), while
partnership must be based on agreement (since it is based on
fiduciary relationship, trust, confidence)
 What is the right of a co-owner over the entire property?
o A co-owner has “borderless” rights; one can use the entire
thing. So an owner of one third of a table can use the whole
table.
 What are the limitations on the right to use the thing owned in
common?
o 1. It must be according to the purpose for which it was
intended
o 2. It must not injure the interest of the co-ownership
o 3. It must not prevent other co-owners from using it according
to their rights
 Does he have right to possession?
o Yes, over the whole thing.
o You cannot prevent other co-owners from using the thing.
o One co-owner can file for a suit for ejectment, no need to bring
in the others.
 If he wins the ejectment suit, it will benefit the other
co-owners.
 If he loses the ejectment suit, what happens?
 This is a point of contention among authors.
 Can a co-owner sell the entire property?
o No, not without the consent of other co-owners.
o But if one does, the sale is only over the undivided share of the
co-owner
 What is one’s right over one’s aliquot share?
 o As far as one’s share is concerned, this is aliquot – so there is
no specific possession. One talks about RIGHTS. You are an
absolute owner of that right; you can sell or transfer it without
the others’ consent.
o The buyer will stand in the same shoes as you did before the
disposition.
 Do the co-owners have a right of first refusal?
o No. They do not have right of first refusal or preemptive right
to purchase one’s share, under law.
o N.B. Of course if there is an agreement otherwise, respect that.
 What is the right of redemption?
o Co-owners have right to redeem.
o Upon receipt of notice of sale.
o Ratio: the law does not like co-ownership. As long as there is
a means to constrict co-ownership, the law favors that.
Redemption brings the thing back to the original co-owners;
thus there will be fewer co-owners.
 How do you exercise this right?
o Provided the buyer is a third person (not one of the original co-
owners)
o Within 30 days from notice of sale
o Can repurchase the thing from the buyer – pay amount that
was paid by the purchaser
o But if one paid a value grossly excessive, pay reasonable
prince – as determined by courts
 Is there any preference among the remaining co-owners as to who
can exercise of redemption?
o Ex. There are 5 of us, 1 sold his 1/5 share. How do you divide
this?
o Take the proportion among the remaining co-owners. So if the
other four have equal shares, each can purchase 1/20 of the
1/5th share.
o If one does not exercise – example, only 3 want to exercise his
right, what happens the other 1/20?
 The 1/20 is divided into 3. It becomes 1/60.
 What if one of the co-owners advances the share of the others to
the purchaser – does he gain interest over the whole redeemed
thing?
o No. He acquires only his own share, and he has right to get
reimbursement from the others.
o If the others don’t pay their share, the shares still do not go to
the one person – he can attach over their properties:
 Properties
 And even the pro rata share over the co-ownership
 Cabales case – was a minor at time of sale. He became of age, the
court told him he had 30 days to exercise right of redemption. [Re-check
facts]
 How do you determine one’s pro rata share in the co-ownership?
o Respective interest in the property – how much the person
actually contributed
o Can you agree over the proportionate interest of each? Or
should you fix it to the amount of contribution?
 Yes, you can agree over the proportionate interest; it
need not correspond to amount of contribution.
 Ex. A gave 1M, B gave 2M, C gave 3M. They can all
own the thing by 1/3.
 If there is no agreement, it is pro rata (1/6, 1/3, 1/2)
o But with respect to income and expenses, can the parties
stipulate?
 Nope. The law renders it void.
o So you can agree on the proportionate interest, but you cannot
stipulate on the share on income and expenses, which must
follow the proportionate interest.
 Property must be used for the purpose that it is intended for.
 For an act of alteration, what is the rule?
o To change the purpose of the thing, there must be unanimous
consent of the co-owners.
o Same with sale, mortgage, or another act tantamount to
alteration
o What is the rule on lease?
 If it is either recorded in the ROP or is more than one
year: it is an act of ownership and requires unanimous
consent.
 If neither: it is an act of administration and just
requires a majority.
 A, B, C co-own a house and lot in equal shares. What is the status
of the following acts?
 o A repaired the foundation of the house, which was tilting
to one side – Binding upon B and C. They must contribute 23
of the expense, since it is for preservation.
o B and C mortgaged the house and lot to secure a loan –
Will only bind B’s and C’s interest, so A’s 1/3 is not covered by
the mortgage.
o B built a concrete fence around the lot – Not binding upon B
and C since expenses to improve the thing must be decided by
majority of the controlling interest.
o C built a grotto in the garden – Does not bind A and B, since
it is for mere embellishment, and it was not decided by majority
of the controlling interest.
o A and C sold the land to X – The sale does not bind B’s 1/3
share of the property. B can redeem the 2/3 share sold by A
and C to X, since X is a third person.
 Distinguish:
o Preservation: may be at the will of any one co-owner; but he
must notify other co-owners first as far as practicable
o Administration: only with concurrence of majority of co-
owners
 But they may designate one co-owner as
administrator; the latter becomes an agent
o Alteration: only with unanimous concurrence of the other co-
owners
 If you perform an act of ownership or administration, and you do
not get the required number of votes, what happens?
o Your act is considered not authorized, and the other co-owners
can require you to undo what you have done.
o The other co-owners can ask you to destroy what you have
built, and you have to restore it in its original condition.
 What if a co-owner wants to make an improvement on the property
but he cannot secure the majority’s consent, or if the majority
resolution is seriously prejudicial?
o At the instance of an interested co-owner, may petition the
court to order measures it deems proper – ex. Appointing an
administrator
 If you want to get out of the co-ownership, what is the remedy?
o 1. Sell your undivided share.
o 2. Partition – absolute right of any co-owner
 No need to give a reason
 It is a RIGHT by any co-owner
 The other co-owners can remain to be co-owners as
to the remaining shares, after there was distribution to
the “outing” co-owner of his share.
 Is there a way to prevent a co-owner from asking for partition?
o Providing a provision preventing partition until a certain time is
valid.
o Any prohibition for division including transfer – good only for
TEN YEARS
o Can extend again, but for another 10 year period. In the
intervals, those who want out can get out again.
o N.B. For testators – can stipulate a longer period (20 years) but
this is not extendable
o What is the exception provided in the FC?
 For family homes, there can be no partition of FH as
long as there are still minor beneficiaries.
 What is the rule on party walls?
o You cannot partition party-walls, and it will continue forever.
Partitioning it would injure the building. So as long as
someone is using it, it will persist.
 If partition would render the thing chop-chopped, what should one
do?
o Sell the entire thing, and then divide the proceeds among the
co-owners.
 How does a co-ownership terminate?
o 1. Consolidation of ownership in one co-owner
o 2. Destruction of the thing
o 3. Prescription in favor of a third person or a co-owner
o 4. Partition
 How do you terminate the co-ownership?
o Main way: by partition.
 As to the process of partition, see the ROC. There is
judicial and extra-judicial partition.
 No need for a reason. You can ask anytime.
o What happens about total partition?
 There is obligation of mutual accounting for the co-
owners. This is for the benefits and profits earned by
the co-ownership.
  E.g. If one lot is divided into three equal parts (30
sqm. Each) – A, B, and C, then A loses his part to a
real owner with title, because it wasn’t actually part of
the co-ownership, he can receive 10 sqm. each from
B and C. Same if A ends up with a ravine, as
opposed to B’s and C’s flatlands. Same rule for
proceeds (150K for B, 150K for C, 0K for A, but they
agreed to equal sharing – 50K each from the
proceeds of B’s and C’s lands.)
o Another way: prescription
 Requisites:
 1. Repudiates the rights of other co-owners
 2. Repudiation is brought to the knowledge
of the other co-owners
 3. Evidence is clear and conclusive that he
may acquire exclusive ownership
 4. After lapse of period fixed by law
 One co-owner sets up prescription against the other
co-owners, claiming the property to be entirely his.
 You must have an act considered adverse to the co-
owners; you repudiate the co-ownership through overt
acts or express communication to the other co-
owners.
 From the time of repudiation, count the period
necessary provided for by law for acquisitive
prescription. If completed without protest by the
others, a co-owner can acquire the entire property.
 If you expressly start in co-ownership and you
repudiate it after, then you are surely in BF, so you
have to follow the 30 year period.
 Spouses H and W mortgaged their house to a bank. They failed to
pay, so the bank foreclosed the property. They died and left
behind 3 heirs. One of the heirs redeemed the property within the
one year period for redemption. Is she the sole owner or a co-
owner?
o Co-owner with her co-heirs. Redemption by one would benefit
the others.
 What should the heir do to receive sole ownership?
o Wait for redemption period to expire, and then wait for the
mortgagee/purchaser to consolidate his title, and a new title is
issued in the mortgagee/purchaser’s name. Then the heir can
offer to purchase the property from the mortgagee.
Condominium Act
 There is an aspect of co-ownership in the Condo Act.
 Art. 490 is the predecessor of the Condo Act. (Building with several
stories, and with different owners. There are common areas, too.)
o Art. 490: You only share on the expenses of the stairs that you
actually use. So GF person spends nothing on stairs. 2nd F
person and up spend on the first floor stairs. And so on.
 Two things in condominium system:
o 1. Interest in separate and independent unit (inside inner wall)
– you get a CCT (Condominium Certificate of Title)
o 2. Interest in the common areas (elevator, lobby, gym, etc.)
 NOTE: there is constitutional restriction on ownership of land (not the
building). But the land is always part of the common area, since it is
constructed on the land.
 Two options in so far as ownership of common areas:
o 1. Direct ownership – unit owners own the common area in
common (1 unit, and there are 20, you own 1/20 of the
common areas, including the lot)
o 2. Indirect ownership – Condominium corporation, and the unit
owner owns shares in proportion to the number of units owned
(see below)
 How do you get around the restriction on land?
o “Condominium Corporation”: it is a corporate entity. As long as
60% of the ownership is for Filipinos, then the condominium
corporation can own land.
o Transfer of this land to the Condominium Corporation is not
subject to transfer taxes (tax incentive)
 Can you build a condominium on leased land?
o Not many are, but actually, in this case, there are no ownership
restrictions unlike if the land is owned.
o But apparently, this is not marketable; some people think that
when the lease expires, there would be no security.
 How do you register a condominium project?
 o 1. Master deed
 Indicates how many units, how big each is, etc.
 Because in the Condo Act, 1 unit = 1 share/vote POSSESSION
regardless of the size of unit
 The master deed changes this, usually: a studio gets  Requisites of possession:
1 vote, two bedroom condominiums get 2 votes, o 1) modes of possession
penthouses get 3 votes, etc. o 2) intention to possess
o 2. Deed of restrictions o 3) own rights
o Most of these documents are drawn up by the developers  How do you determine GF/BF?
before the building has been constructed. o GF: 1) possessor acquired thing through title or mode of
 It’s hard to physical partition for common areas. So the only way you acquisition, 2) there is a flaw or defect in the title or mode, 3)
can partition is to sell the entire project (the whole building, including he is not aware of it
your units), because there is no one who will just buy the common o BF: 1) Same, 2) Same, 3) he is aware of it
areas. o When does possession cease to be in GF?
 How do you partition if there is direct co-ownership?  When facts exist which show that the possessor is
o If DIRECT co-ownership: It is not like ordinary co-ownership aware that he possesses the thing wrongly
where a partition can be for no reason. There has to be a  Else, from the moment possessor receives judicial
ground under Sec. 8 of the Condominium Act. (ex. Destruction summons to appear in trial
or damage for period of three years; 50% damage or injury and  What are the modes of possession?
more than 30% are opposed to repairing the building, etc.) o 1) Actual possession
o If owned by a CONDOMINIUM CORP: Unlike Corp. Code o 2) Symbolic delivery
where 2/3 vote would lead to dissolution regardless. But here,  Ex. Giving someone a key to a car – it’s symbolic
you need any of the grounds in Sec. 13 (similar to grounds in possession of the thing the key pertains to
Sec. 8). So it’s vote + reason for partition.  Ex. Pointing to a property and saying “that is yours”
 Another difference with other corporations, where o 3) Constructive delivery
there is a 50 year maximum life span; condominium  On the basis of execution of legal formalities
corporations have no life span and will exist as long  What does intention to possess mean?
as the project exists o Subjective element
 What does “own rights” mean?
Water Code o Excludes those who possess something on behalf of other
people (so the principal is actually the one in possession of the
 Waters are owned by the State (waters in their natural state – not thing possessed). Example:
commodity water)  Agent
 Right to appropriate water – based on beneficial use  Guardian
o You have to ask for a water permit before you can draw water  Attorney-in-fact
from these natural sources of water (if commercial), not small  Etc.
drawings of water o An agent’s possession could never ripen into ownership,
 For those who want to bathe/swim in the waters unless ratified by the principal
 What are the kinds of possession?
o 1) Possession with no title
 Has no legal right at all.
 Ex. Squatter
 Ex. Your phone was stolen by a thief. You took
efforts to get it back. After a week you gave up.
Does the thief gain legal possession of the
property?
 The property becomes res nullius, because it
has been abandoned. Thus, occupation is
the mode of acquiring ownership.
 Contrast: this cannot ripen into ownership
through acquisitive prescription because he
is not considered to be in legal possession of
a property, because the law does not
consider him as such.
 Possession acquired through violence can never
ripen into ownership.
o 2) Possession with juridical title
 You recognize that ownership belongs to another
person, but has turned over possession to you
 Ex. A lessee
 Generally, this does not and cannot ripen into
ownership.
 Exception: repudiation of juridical title – may
lead into acquisition of the property
 Can fall under #3 under extraordinary
acquisitive prescription (always BF)
o 3) Possession with a just title
 Possession acquired through just title but there a flaw
in the title
 Ex. The transferor has no right to transfer
 Basis of just title: there is a mode of acquisition
 Ex. Tradition (through sale), donation,
succession
o 4) possession with just title and there is no flaw
 Titulo verdadero
 In the concept of an owner, just like #3, but in this
case, he really is the owner
 Need two things:
 A) Just title
 B) possession in the concept of an owner
o Movables: 4 years (GF) 8 years
(BF)
o Immovables: 10 years (GF) 30
years (BF)
 In case of conflict between 2 persons regarding possession of a
certain property, who shall be preferred?
o As a general rule, there can be no simultaneous possession of
more than 2 distinct personalities, except for co-possession
(see below)
o Rules:
 1. Present possessor
 2. If both are present, longer possession
 3. If same length, one with a title
 4. If all are equal, place the thing in judicial deposit
pending determination by court
 What kind of possession can serve as title for acquiring dominion?
o ONLY possession acquired and enjoyed in the concept of an
owner. Must be Titulo verdadero y valido.
o BUT it’s possible that one acquires possession by some
recognized mode, but from a person who could not transfer
right of ownership – yet he can still become an absolute owner.
But he has to prove acquisitive prescription, whether ordinary
or extraordinary. The title here can be Titulo Colorado.
 Acquisitive prescription – must it be only your own possession
that could lead to this?
o No. There is principle of “tacking.” – Those that came before
the person claiming possession.
o You have to trace your title directly to those preceding you.
 There must be someone before you and you can
point at the relationship of the predecessor with you
(there must be privity of title)
o If all the possessors are in possession of such character (ex.
BF), just add all of the years together to figure out how many
years are left
 Ex. A = 3 years, B = 3 years, C = 3 years  21 years
left
o Once the line is broken, you have to start counting again.
 o On issue of ratio: you cannot take credit for BF possession
preceding yours. No credit, no tacking, no ratio.
 While Paras says you can use ratio (ex. Credit 1 year
of possession for 3 years of BF possession), Dean
Del Castillo disagrees. If the preceding possession is
in BF, your possession is already tainted.
Inheritance
- If repudiated, deemed to have never possessed it in the first place.
- Transfer of possession, once accepted, is seamless. You are
deemed to have possessed it since death of decedent.
Rights of Legal Possessor
 Peaceful and uninterrupted possession
o Co-possession
 Is there such a thing as co-possession? In co-
possession, you don’t have rights of ownership.
Transfer to them, but no title, since there is a flaw.
The difference with co-ownership is that in there,
there is right of ownership.
 Can co-possession ripen to co-ownership?
 YES. Same rules on acquisitive prescription
will apply.
 If there is partition, before ownership is acquired, the
co-possessors can take credit for the years of
possession before partition, in counting acquisitive
prescription,
 It is possible that one co-possessor is possessor in
BF, and one co-possessor is possessor in GF. Each
of you will have to take your own character of
possession. If you have 3 years of co-possession,
and you are in BF, and other is GF, then the BF
doesn’t affect period or number of years of GF co-
possessors.
 Interruption
 Two kinds: natural interruption and legal
interruption
 How long should natural interruption be
before you say that acquisitive prescription is
lost? 1 year. If gone for 6 months, but you
came back and redeemed possession, you
are deemed never to have lost possession. 6
months will be counted in favor of acquisitive
period.
 In legal interruption, there are judicial
summons against you.
o Actions in case of deprivation of possession:
 For immovable property?
 Forcible entry/unlawful detainer – within 1
year from cause of action
o Within 10 days from filing this
complaint, may secure preliminary
mandatory injunction to restore
possession
 Accion publiciana – within 10 years after
possession was lost
o Plenary action to recover
possession of property
 Accion reivindicatoria – within 10 or 30
years, as the case may be
o Action to recover possession based
on ownership of the property
 For movable property?
 Action for replevin
Fruits
 Civil fruits – rents, profits, and other forms of compensation for use of
property during time when you were in possession
o When do you not give the civil fruits back?
 From time you start possession until time you lost
good faith
 Possessor in GF gets to appropriate fruits, and there
is no need to pay rentals for possession.
o What happens when GF is lost?
 Once good faith is lost, you have to give the fruits
after that to the owner, and you have to pay rent.
o What is the effect of a legal interruption?
 If legal interruption, you have to allocate time when
you received summons and were still in GF. After
summons, you have to turn over fruits and pay rent.
 Natural and Industrial Fruits
 o What is the rule on gathered fruits?
 Possessor in GF entitled to gathered fruits during
possession.
 Possessor in BF is not entitled to such and he must
deliver the gathered fruits from time he lost GF or
reimburse the true owner for their value. He is also
liable also for interest.
 He shall also reimburse the true owner for
fruits the true owner could have received
with exercise of due diligence.
 But he can deduct expenses he incurred in
production, gathering, harvesting.
o What about pending fruits?
 Pending fruits are those that have not been gathered,
and are still standing in the property.
 2 options if possessor is in GF:
 (1) allow previous possessor to cultivate or
o If the previous possessor refuses
this concession, he loses all
indemnity
 (2) sharing based on period of possession,
but possession not from the time you
actually took possession, but from time of
pending fruits.
 Possessor in BF:
 Only entitled to be reimbursed for necessary
expenses.
Indemnity for Necessary, Useful, Luxurious Expenses
 What is the right of a possessor who was dispossessed of his
property, from the person who defeated his possession, if he
introduced necessary improvements?
o Rights of possessor in GF:
 1) Right of reimbursement
 2) Right of retention
o Rights of possessor in BF:
 1) Right of reimbursement only
 No right of retention
 Useful improvements?
o Rights of possessor in GF:
 1) Right of reimbursement
 Either actual amount of expenses
 OR the increase in value of the property
 2) Right of retention
 3) Limited right of removal
 There must be no damage caused
 And the new possessor must not have
chosen to reimburse the prior possessor
o Rights of the possessor in BF:
 NONE.
 Luxurious improvements?
o Rights of possessor in GF:
 Limited right of removal.
o Rights of possessor in BF:
 Limited right of removal as well.
 For deterioration or loss?
o Rights of possessor in GF:
 No liability
 Unless due to fault or negligence after he had
become possessor in BF.
o Rights of possessor in BF:
 Always liable, even if due to his fault or negligence, or
fortuitous event
 Once acquired property through acquisitive prescription all bets are off it
is now his.
Special Rule re: movables
1. Rules on acquisitive prescription applies to movables and immovables.
Only that the period for immovables is longer.
2. Legal Interruption –a suit of replevin. Still need summons, still have
rules on legal interruption.
3. Natural Interruption – even if lose physical possession as long as it
remains under your control. As long you did not abandon property it is
still subject to your control. You are still trying to gain back possession.
a. Control means - Patrimonial Control?
b. Misplaced – still have possession
c. Unlawful Deprivation – still have possession but you have to
recover
a. Mere physical possession, by force, intimidation, violence
 What is the rule on recovery of movables?
o If the possessor is in BF:
 The owner can recover it from him without any
obligation whatsoever
o If the possessor is in GF:
  The owner cannot recover it because possession in
GF is equivalent to title.
 Two exceptions: - where the true owner can still
recover without obligation
 1) True owner lost the movable
 2) True owner unlawfully deprived thereof
 Exception to the exceptions: when the present
possessor acquired the movable in GF in a public
sale
 Remedy: true owner has to reimburse the
price paid for it
 Sample problem: G lost his ring. After a few days, he found it in
the possession of H who had loaned money to Z and received the
ring as security, in GF. What are the relative rights of G and H?
o Default rule: possession of movable in GF is already equivalent
to title.
o BUT in this case, G lost the ring. So he can still recover from
H without obligation.
o The exception to the exception does not apply because H
received it as pledge, and not from purchase in a public sale.
Besides, only the lawful owner can pledge a movable, so the
pledge is void.
 A agreed to sell his car to B, and they registered it in the name of
B. While waiting to get paid money in B’s sala, A never saw B or
the papers again. B sold the car to C, who sold it to D, both in GF.
Can A recover the car from D?
o Yes, since A was unjustly deprived of his car. The usual
common law rule that where two people (A and D here) would
suffer from a fraud, the one whose acts enabled the fraud to be
committed should suffer does not apply by mandate of Art.
559.
 What if the car above was bought in a public sale?
o The possessor is entitled to reimbursement
 What if the car was bought from a merchant’s store?
o The possessor wins. As between a purchaser at a mechant’s
store and a legitimate oner of the thing who lost it, the former
wins (Art. 1505, NCC)
 When can the owner of a movable who has lost it or who has been
unlawfully deprived thereof can no longer recover it?
o 1) Prescription
o 2) Possessor acquired thing from a person whose authority the
owner is estopped from denying
o 3) Possessor acquired the thing from a merchant’s store, fairs,
markets, etc.
o 4) Thing is a negotiable instrument and possessor is purchaser
in GF and for value
o 5) Possessor is owner of thing in accordance with finders-
keepers principle in Art 719
How do you lose possession of property, aside from interruption:
(1) Absolute loss or destruction
(2) Assignment
(3) Abandonment
(4) Possession by another
Usufruct
 A person owning right over property owned by another person
 Because you have been given the right to use
 A real right
 What is the most important aspect of usufruct?
o The right of possession over property held in usufruct is not
matter of legal necessity. What will make it usufruct, where you
are entitled to, is the right to receive fruits.
 Creation of usufruct
o Voluntary act of owner not possessor. Possessor can lease,
but not usufruct.
o Legal usufruct. But no more na to.
 If children, mere act of administration by parents.
 Husband now no longer owns properties of wife.
 Ta-da!
 Usufruct has ABSOLUTE right over fruits of property.
 Preservation of substance and form of thing: only if you have been
granted possession of property in the first place. If not, you only really
get the fruits.
 You cannot control how usufruct uses the fruits.
 There can be usufruct over movable, immovable properties, or even
rights, but not personal rights
 Usufruct v. easement. Easement only for immovable properties.
 What is the usufructuary’s obligation?
o Preserve the form and substance of the thing lent in usufruct.
o Substance: no operation, except with consent of owner, that
would prejudice the thing given
 o Cannot appropriate the thing subject of usufruct o No. There is a conflict.
o But can appropriate the fruits o Pledged property – it is the pledgee who is entitled to the fruits.
 What are the exceptions? The fruits stand as security as well for the obligation.
o 1. Can appropriate the thing o So you cannot give the fruits to a usufructuary.
 “Abnormal usufruct”  What about a leased property? Can it be given in usufruct? (Ex. A
o 2. Can alter the form of the thing, leading to a slightly leased to B, A gave usufructuary rights to C)
deteriorated form o Yes.
 “Quasi usufruct” o Use and possession goes to the lessee.
 What is a abonormal usufruct? o The usufructuary need not have use and possession; all he
o For consumable things. So when returned, there is some or all needs to get are fruits. The usufructuary gets the rentals from
of it consumed. that property.
o Instead, you have to pay the property’s value based on  Requirements for usufruct?
appraisal (for movable properties) o Form is not a matter of validity, just a matter of convenience.
 If there was appraisal at the beginning, that is. o It is valid between the parties.
 If there was no appraisal, replace with another object o You want it to be in a public instrument, so that you can
of same quality and quantity register it.
 What is quasi usufruct?  Bottomline: the owner has parted with not of his rights over his property:
o For properties that easily depreciate o Jus affruendi
 Ex. Cars o [And if giving use and possession: Jus utendi and jus
o You cannot really return the thing in the same form and possidendi]
substance.  Modes of extinguishing a usufruct?
o Instead, you return the object itself. As long as it’s normal o 1. Death of usufructuary, unless contrary intent appears
wear and tear, you have no other obligation to the owner. o 2. Expiration of period or fulfillment of resolutory condition
 Is the fact that a property has been encumbered, can it still be o 3. Merger of usufruct and ownership in one person
subject to usufruct? o 4. Renunciation of usufruct
o Yes. o 5. Total loss of the thing
o The usufructuary does not compete with the mortgagee as far o 6. Termination of the right of the person constituting usufruct
as fruits. o 7. Prescription
o There is no inconsistency.  A sold a parcel of land to B. There were two buildings on the land.
 If the mortgagor defaults in the principal obligation, what There was a condition that 1/3 of the rents of the two buildings
happens? should go to A. Subsequently, without B’s fault, the buildings
o The mortgagee can foreclose the property. This is his right. were totally destroyed. Did this extinguish the obligation?
 If you are the usufructuary, how do you stop the foreclosure? o No. What was constituted was a usufruct. Rentals are not
Should you pay the obligation? only due from buildings, but also the land. There can be no
o No need; there is no legal obligation to pay for the principal building without land. So the loss was not a total loss that
obligation. would extinguish the usufruct.
o His right to usufruct continues. It is a real right and can be o A is thus entitled to 1/3 of the land + materials thereon, as a
enforced against any mortgagee. temporary measure until the buildings are reconstituted.
 Can there be usufruct over pledged properties?
Default provisions of usufruct
 The other provisions in the Code: are those that apply by default, in the
absence of specific stipulations of the parties.
 If the property has pending fruits, when the contract of usufruct
was entered into, to whom do these belong?
o Growing fruits at the time usufructuary enters into the property:
belong to the usufructuary
o No indemnification
 At the time the usufruct terminates, what happens to the pending
fruits?
o Belongs to the owner
o Owner pays indemnification for expenses to plant, cultivate,
and other expenses for the fruits
 Gathered fruits?
o Belong to the usufructuary.
 What is the nature of the usufructuary’s possession?
o Possession with juridical title
 Can the usufructuary grant possession to another person (ex.
Lease)?
o Yes. Here, it is mere possession that is transferred, the right of
which the usufructuary possesses
 What is the exception to this right?
o Caution juratoria - Giving possession to a person who has
nothing
 What happens if the period of the lease is longer than the period of
the usufruct?
o Rentals after termination of the usufruct belong to the owner.
o If the lease has become a real right, then the owner must
respect
 1. Leases longer than 1 year
 2. Leases of property registered in the ROD
 Obligations of the usufructuary?
o 1. Make an inventory of the property
o 2. Give necessary security
 Exceptions to bond requirement?
 1. No one will be injured by lack thereof
 2. Donor has reserved usufruct of the
property donated
 [3. Parents, who are usufructuaries of
unemancipated children’s property, except
when the parents contract a second
marriage] – I don’t think this applies anymore
 4. Caucion juratoria
 Obligations of the usufructary during the usufruct?
o 1. Take care of the property as a GFF
o 2. Make ordinary repairs
o 3. Inform owner for extraordinary repairs
o 4. Pay annual charges and taxes and those considered as lien
on fruits
 Note: if the taxes, charges, or liens are over the
property itself, the owner is liable
o 5. Notify owner of any act of a third person that may be
prejudicial to right of ownership
o 6. Pay expenses, costs, liabilities in suits with regard to
usufruct
 Obligations upon termination of the usufruct?
o 1. Deliver the thing to the owner
o 2. Right to retention for taxes and extraordinary expenses,
which must be reimbursed
 Rights over necessary, useful, and luxurious expenses?
o Necessary expenses: right to demand reimbursement
o Useful and luxurious:
 No reimbursement
 But may remove these if there is no damage to
property caused
o May set-off these improvements against damage on the
property
Easements
 Also a real right. The right attaches to a specific property until the right
is extinguished. Only difference from usufruct: it is something that
attaches to personal property, while easement only applies to real
property
 o Further qualify: easement is applicable to land, buildings,
tenements, and not other kinds of immovables
o No easement over another easement, for instance, even if the
easement is also a real property. Likewise, those by analogy:
cannot receive easements.
 What is an easement?
o It is an encumbrance over an immovable property, for the
benefit of:
o Another immovable property belonging to someone else (Real
easement)
o Or a person or community (Personal easement)
 Dominant estate is the one benefited.
 Is there any difference between easement and servitudes?
o For purposes of the NCC, these are used interchangeably
o Servitude – used in common law (personal and real
easements), and they only use “easement” only for real
properties
 Distinguish between positive and negative easements:
o Positive – the servient estate is either obliged to allow
someone to do something on his property, or to do it himself
o Negative – the servient estate is prohibited from doing
something on his property which he could otherwise do
 Give examples of positive easement.
o Right of way, because the servient estate is required to let
other people pass through his property
o Tree with branch hanging out over neighbor’s property –
required to cut
 Give examples of negative easement.
o Easement of light and view – cannot block neighbor’s view
 Distinguish from continuous and discontinuous.
o Discontinuous – only used in intervals, and with intervention of
man
o Continuous – constant, no need for intervention of man
 Apparent from non-apparent.
o Non-apparent – no external signs
o Apparent – made known and with external signs
 Why is the classification needed?
o Positive/negative – determines rights
o Continuous/discontinuous and apparent/non-apparent –
determines how to acquire
 Prescription only applies to apparent continuous
 How to acquire easement?
o Title
 Juridical act (there is a mode of acquiring ownership
ex. Donation, succession, etc.)
 Or law
o Prescription
 10 years of use of servient estate
 Only covers apparent continuous easements
 E.g. Easement of right of way can never be
acquired by prescription, because it is
apparent, but discontinuous
 Ex. On another note, easement over
aqueducts can never be acquired by
prescription even if it is A + C, by express
provision of the Water Code.
 If you are entitled to acquire it by prescription (A + C),
 Positive: Count period from actual use
 For negative: from notarial act  will contain the
prohibition. Not just sending a letter to a neighbor.
You have to have a basis; that you are a dominant
estate.
 X owned a piece of property, where there was a house on the
southern portion overlooking the northern portion through doors
and windows. X subdivided the property into two: the empty
northern portion and the southern portion with the house. He sold
it to Y and Z respectively. Y wanted to build a house on the
northern property. Z said that it should be not less than 3 m from
their boundary. Who wins?
o Z wins. Under the NCC, when there is an apparent sign of
easement between two properties maintained by the same
owner and these are subsequently alienated to different
owners – and there is no intent to the contrary – the new
owners must respect the easement.
o Apparent easement here is of light and view: demonstrated by
the windows and doors overlooking the northern portion.
 Title – is there a specific form?
 o Under Statute of Frauds, any transaction over real right over
immovable property, it must be put into writing
 E.g. if you acquire it through tradition, you have to put
it into writing
 If not put into writing, it is unenforceable
o If granted on basis of donation: it must be a public writing (both
donation and acceptance) and in writing
 Otherwise, it is void
o If through succession, it must be through a will
 What is the meaning of permanence as a characteristic of
easement?
o General use: non-use will not extinguish easement
o Although, non-user for ten years will also extinguish the right
 E.g. drainage – you are required to have neighbor’s
water pass by you. You see the water and block it. It
is an act contrary to the easement. Non-use kicks in
upon the blocking.
 Inseparability?
o You cannot separate the easement from the immovable.
 When you sell the servient estate, what is the effect when you do
not tell the buyer that there is an easement?
o If the easement is not registered, it dies
o If it’s registered, then it persists
 When you sell property, and you do not inform the buyer about the
registered encumbrance?
o The encumbrance exists
o But you are guilty for breach of warranty, and the buyer can
sue you for not telling him about the encumbrance
 Indivisibility
o Increase in number of owners do not increase the burden on
the servient estate. There is just one easement.
o If servient estate partitioned or alienated, it still doesn’t change
anything.
 Rights of the Dominant Estate
o To make all works necessary for the use and preservation of
the servitude
 Obligations of the Dominant Estaete
o 1. Can’t alter the easement (only for the benefit of the movable
originally contemplated)
o 2. Can’t make the easement more burdensome
 Villanueva v. Velasco – it is the need of the dominant
estate that determines the width of the easement
 Rights of the Servient Estate
o To register the easement, even without permission from
dominant estate
 If servient estate registers land without mentioning
easement, the voluntary easement is extinguished. If
dominant estate registers his land without mention of
the easement, the easement still subsists.
o [complete this]
 How does an easement terminate?
o 1. Merger in the same person of ownership of both dominant
and servient estates
o 2. Non-use for 10 years
o 3. When either or both of the estates fall into condition that the
easement cannot be used
 But it shall revive if the condition of either or both
should again permit its use
 Except if prescription has set it
o 4. Expiration of term or fulfillment of condition
o 5. Renunciation of owner of dominant estate
o 6. Redemption agreed upon both owners
Legal easements
 Not an exclusive list. There are other kinds.
o Ex. Easements for aerial navigation
 1. Easements relating to waters
o Water code governs
o To extent not covered by Water code, use Civil Code
o So lower estates still obliged to receive waters from higher
estates; and higher estates cannot construct something to
hasten down-flow of water
 Addition by Water Code: servient estate can block this
flow, but must provide an alternative method of
drainage
o Banks of rivers, etc. – 3 m, etc. covered by Water code
 2. Right of way
 o Most common right of way: road right of way
o Requisites:
 1. Dominant estate surrounded by other immovables Modes of acquiring ownership
and there is no adequate outlet to a public highway
 How do you acquire property?
 There must be NO outlet, not merely
inconvenient o Occupation
 2. Payment of proper indemnity o Law
 3. Isolation not due to acts of dominant estate o Donation
 4. Right of way claimed is at the point least prejudicial o Tradition
to the servient estate o Intellectual Creation
 5. Shortest distance to public highway o Prescription
o Generic rule: you have to pay indemnity to get road right of o Succession
way  Sale is not a mode, it is tradition
 You are not paying rentals, because you have a right  Mode:
of way o Process of acquiring ownership
 It is a one-time indemnity o Mode does not need a corresponding title
o Exception: Isolation on account of sale/transfer or donation  Title:
[N.B. the rules on sale and donation are inverse] o Juridical justification for a mode
 If you are the buyer of the property and you property o Title needs a corresponding mode
is in the middle, and is isolated. You are entitled to  Formalities of donation
ask the vendor to give you a right of way. You do not o Movable:
have to pay for that.  Orally or written
 If the one that is isolated is the seller’s property, he is  Simultaneous delivery + document representing
also entitled to demand right of way. But he has to o Personal property above 5,000 pesos
pay  Law does not require delivery
 Donation: if you receive property through donation,  Private instrument
 But some people think delivery is still necessary.
you can demand for right of way, but you have to pay,
because it’s too much to ask if you get it for free na  Succession is a mode, because you do not need a prior title
nga, you burden the donor more pa.  Occupation
 Original Mode – not dependent on former owner
 If it’s the donee’s property that surrounds the property
of the donor, the donor can demand right of way and o Occupation
he doesn’t have to pay indemnity.  Seizing of the property physically
 Not owned by anyone or because there is a previous
 3. Party walls
owner and has abandoned it
o Rules on co-ownership can apply
 You do not occupy land; you occupy corporeal things.
o You cannot open a window on a party-wall
Land is never without an owner – the State owns it by
 If someone does and the other does not object, you
default. Except if land was previously owned and it
can acquire it after 10 years by prescription
has been abandoned: this does not revert to the
o Ma’am did not choose to discuss the dimensions, heights, etc.
State.
of windows in detail.
  If intangible – acquired by (1) intellectual creation, or Conditional
(2) tradition  Imposes a charge or burden on the donee
 Occupation of animals less than the thing given
 If the animal is wild – a person becomes the  Onerous
owner upon capture.  Given in consideration of demandable debt
 Occupation over domesticated animals, after  Actually governed by rules on contract
20 days, unless claim has been made. o 2. Donations mortis causa
Domesticated animals are those taken from  Actually governed by rules on wills
the wild and then tamed.  Distinguish between inter vivos and mortis causa donations:
 Occupation over domestic animals cannot be
acquired by occupation unless they had Inter vivos Mortis causa
been abandoned. Domestic means that they
are never wild to begin with. Takes effect independently of Takes effect upon death of donor
o Intellectual creation donor’s death
o Acquisitive Prescription Title or ownership conveyed before Title or ownership conveyed only
 Possession + just title (acquired through mode of death of transferor upon death of the transferor
acquiring ownership) + 30 years
 So valid only if acquired through res nullius (in this Valid if transferor survives transferee Void if transferor survives transferee
case, it’s really occupation)
 Derivative Mode – dependent on former owner or title of another Generally irrevocable Always revocable
person
o Succession – from whom you inherit Comply with formalities on donations Comply with formalities on wills
o Donation – from donor
o Law
 A donation provides that it will take effect after the death of the
o Tradition
donor, that the donor will not dispose of it or take it away from the
Donation donee, that he had beneficial ownership while he lived. Is it inter
vivos or mortis causa?
 Requisites of donation: o Inter vivos, since the donor intended to part with ownership
o 1. Decrease or reduction in the patrimony of the donor during his lifetime. Providing that the donor will not dispose of
o 2. Increase of patrimony of the donee it or take it away means that the donation is irrevocable; thus,
o 3. Animus donandi or intent to make a donation inter vivos. It is also clear that he parted with naked title, while
 Classes of donation: maintaining beneficial ownership.
o 1. Donations inter vivos  What does a habendum clause and a reddendum clause signify?
 Simple o Inter vivos. Habendum cause indicates a grant of the property
 pure liberality before death of the donor, while the reddendum, in so far as it
 Remunerative imposes a condition on how the donees should spent some of
 On account of services rendered by the the income of the property and limits on how to dispose it
donee, but not a demandable debt
 indicates that the donor parted with ownership of the land prior
to his death.
 Property is donated in a deed named “donation inter vivos.” It
said that the land donated shall be delivered immediately to X
upon the perfection of the donation, with all the fruits thereof, but
“title shall only pass to the donee upon the donor’s death.” What
is this?
o Mortis causa: the fact that no title or ownership is conveyed
until the death of the transferor controls.
 Capacity of donor and donee:
o Donor:
 1. Must have capacity to enter into contracts
 2. Must be able to dispose of property
 3. Must not be prohibited or disqualified by law from
making the donation
o Donee:
 1. Must not be prohibited or disqualified by law from
accepting the donation
 A, from Manila, offered B, who lived in Cebu, in writing to donate
his car. Two days after , B’s letter of acceptance reached A, but
before it reached A, A has been confined in the psychiatric/mental
ward. Is the donation binding?
o No. The donor’s capacity is determined from the perfection of
donation. A donation is perfected the moment the donor
knows of the acceptance. Here, before he found out, he
already lost capacity.
 Prohibited donations:
o By reason of relationship
 1. Between husband and wife, except moderate gifts
in family rejoicing or distress
 2. And those with amorous relationships, living
together as husband and wife [here, there is no
criminal act, unlike adultery/concubinage]
o By reason of public policy
 1. Parties guilty of adultery/concubinage at the time
the donation is made
 Do they have to be convicted? No.
 If they have already parted, then it is valid.
 2. Guilty of committing the same crime AND in
consideration thereof
 You don’t have to be both principals
 When must it be given?
o It can be given before committing a
crime (donation as the inducement)
o It can be during or after (reward)
 Distinguish: for adultery/concubinage – it
cannot be after, and it must be in
consideration of the relationship. Here, it
can be after, but it must be in consideration
of the crime.
 3. Made to public officers, spouses, etc. by reason of
his office
 4. Those disqualified under wills apply as well:
 A. Priest who heard confession or minister
who extended spiritual aid during last illness
 B. The relatives within 4th degree of
abovementioned person, or his church/sect
 C. Ward to guardian, before final accounting
o Except if guardian is ascendant,
descendant, or sibling
 D. Physician, or other health officer who took
care of donor during last illness
 E. Made by individuals, associations,
corporations not permitted by law to do so
 Formalities of a donation:
o MOVABLE
 Oral
 Must have simultaneous delivery of thing
 Or simultaneous delivery of document
representing the right
 Writing
 If the property’s value exceeds P5K
 Acceptance must be in writing too
o IMMOVABLE
 Public document – specifying the property + charges
 Acceptance must be:
  In same deed
 Or separate public document. Here, the
donor must be notified in an authentic form,
and the step noted in both instruments.
o Special rules on form:
 Onerous donation  ordinary contract
 Mortis causa donation  formality of wills
 What is the effect of non-registration? Registration? Actual
knowledge?
o Non-registration, although the donation of immovable is in a
public document  only binds the parties thereto
o Registration  binds the whole world
o Third party with actual knowledge  bound by the donation
between the parties, even if unregistered
 X wrote Y, donating in the letter a piece of land. Y accepted by
means of public instrument. X died. His surviving son, B, wanted
to cure the defect of the donation by executing a public instrument
of ratification. Effect?
o No effect. A void contract cannot be ratified. The contract is
void because it was not in a public instrument.
 X donated land to Y in a public instrument. Y accepted in a
separate public instrument. X died before the acceptance could be
communicated to him. Valid?
o No. The constancia autentica (notification of the donor in
authentic form) is an essential formal requisite not complied
with. The donation has no effect.
 X donated land to Y. Y accepted in a separate instrument, but did
not communicate it formally to the donor. Y paid taxes over the
land, since it was in the black list for non-payment of taxes. Was it
an onerous donation? Was the donation valid?
o It was a gratuitous donation, because payment of the taxes
was not a condition/burden imposed upon Y. It was just a
consequence of the donation.
o Thus, since it was NOT an onerous donation, it must follow the
formal requisites of a contract. The formal requisite of
constancia autentica was not complied with; thus, the donation
was invalid until communicated formally.
 Incapacity that would prevent a person from succeeding:
o Testamentary – Art. 1027
 Applicable to testamentary succession, but not to
donation: Witnesses to the will, because there are no
witnesses required to a donation
o Intestate – unworthiness (Art. 1032)
 Limitations on donations:
o 1. Donor must reserve sufficient means to support himself and
all relatives, who at the time of the acceptance of the donation,
are entitled to support
 Reduce upon petition of such persons
o 2. Donations cannot comprehend future property
o 3. No more than he may give or receive by will
 Reduce what is inofficious
 A donated all his property to a foundation bearing his name,
ignoring claims of wife and children, except for a provision for
their maintenance and education during their lifetime. Effects of
this donation during A’s lifetime and after A’s death?
o Valid during lifetime of A. The donee can appropriate all the
fruits.
o Once A dies, it is inofficious. It must be reduced to avoid
impairing the heirs’ legitimes, upon petition.
 Is there a right of accretion in donation?
o None, by default.
o Exception: H and W jointly.
 Revocation of donations:
o As a general rule, these are irrevocable. These cover
donations inter vivos. Donations mortis causa are really based
on succession, so they are revocable.
o 1. BAR
 A. Birth
 B. Adoption
 C. Reappearance of child
 These apply to those who have made donations
thinking they will not have successors, and these
would affect their legitime.
 Subject to reduction or revocation. This ground does
not consider the donation per se as revoked. It is only
reduced to the extent that it is inofficious
  Determine the legitimate at that point in time (this is
where presumptive legitime is first introduced in the
NCC), then determine if what was given exceeded.
 Period of four years – can be brought by any of the
children whose legitime has been affected
o 2. Ingratitude:
 1. Donee commits an offense against person or
property of donor, spouse, or children under parental
authority
 2. Imputation of a crime involving moral turpitude
 Is veracity of the claim a defense? No.
 The only time it is a defense, is if the crime is
committed to the donee, his spouse, or
children under parental authority.
 3. When donee unduly refuses to support the donor
when there is a legal or moral obligation
 Prescriptive period? One year from knowledge of
the donor.
 It is purely personal and thus intransmissible
to one’s heirs.
 What are the exceptions to
intransmissibility?
o 1. Donor already brought action but
died
o 2. Donor prevented from filing
action due to sickness, fortuitous
event, etc.
o 3. Donee killed the donor
o 4. Donor died without knowing act
of ingratitude
o 5. Donor already instituted criminal
proceedings but died before filing
civil case for revocation
o 3. Inofficiousness of the donation
 This action ONLY arises when the donor dies
 Only compulsory heirs and heirs/successors in
interest may bring action
 Prescription of four years is counted from the death of
the donor. So even if he donated the inofficious
donation in 1960, and he died in 1984, the heirs have
up until 1988 to challenge the donation.
o 4. Non-compliance with a condition imposed
 This is a modal issue
 The donor has discretion
 The action also prescribes in four years
 X donated property to Y, with a condition. Y failed
to comply. X sold the property to Z. Valid?
 No. He has to file a judicial action first within
4 years to revoke, unless there is an
automatic revocation clause in the donation.
 Rule on fruits for these revoked donations?
o Based on BAR  donee entitled to fruits until filing of
complaint
o Based on non-fulfillment of condition  donee must return the
fruits which he may received after failing to fulfill the condition,
along with the property
o Based on inofficiousness  done entitled to fruits while the
donor lives
CIVIL LAW
 We are part of the civil law tradition. This is our mindset in approaching
problems.
 Most of Western Europe countries follow the civil law tradition, as well
South America – except for the former British Colonies. Include:
Louisiana, Quebec, and parts of Black Africa (Senegal, Ivory Coast,
Congo). Asia: Philippines (Spain), Indonesia (Portuguese/Dutch
influence), China, Japan.
 Common Law: UK, Ireland, All of US except for Louisiana, etc.
 Civil Law was founded in 450 BC. It is older than the Church. “Rome
conquered the world 3 times: by its arms, faith, and law.” - Thus what
we study are developments of the Civil Law tradition.
 Common Law began around 1066 AD.
SUCCESSION
General provisions
 (774) A mode of acquiring ownership
o It is not delivery (tradition) that vests ownership. Succession
itself is the mode. You do not need delivery of the thing to the
successors.
o In due time, the successor acquires a right to possession of the
thing, which may be in the hands of someone else. But this is
an action of assertion/vindication of possession based on
ownership.
 What is transferred?
o The inheritance.
o Inheritance is defined in 776 as the transmissible rights and
obligations of a person
o Are there intransmissible rights and obligations?
 Yes.
 1. Purely personal;
 2. Intransmissible by stipulation
 3. Intransmissible by operation of law
 Are these conveyed by succession?
 No.
 What are examples?
 A purely personal obligation or right
 Ex. Right to receive support from one’s
parents
 Give an example of a transmissible obligation.
 X entered into a perfect contract to sell his
car to Y, but it has not been consummated.
X died. This transfers to his heirs.
o Is a money debt a transmissible obligation?
 Yes.
 But is it transmitted directly to the heirs?
 No. It is paid by the estate, upon claim by
the creditor. (Unionbank v. Santibanez)
 Does this not violate Article 774?
 No. Although the creditors do not claim
directly from the heirs, the effect is the same
– what the heirs would have otherwise
gotten is diminished, so they are indirectly
and ultimately paying the debt.
 Does this provision on money claims affect other
claims?
 No. They are still transmitted to the heirs.
 When does transmission take place?
o (777) Transmission takes place from the moment of death
o This is legal fiction, because you don’t really physically get it
the inheritance at the moment of death.
o Why is it proper to say the rights to succession “vest”
instead of “get transmitted”?
 Because you already have that right, albeit inchoate.
It only vests upon death of the predecessor.
 What are the consequences of Art. 777?
o 1. Determination of who the heirs will be is determined at the
moment of death; also, what law is in effect; what portions they
will get, etc.
 Uson v. Del Rosario: Decedent died during
effectivity of the old Civil Code, so the spurious
children are excluded (unlike in the NCC, where they
would get something)
o 2. Even before the actual partition of the estate, the heir can
dispose can dispose of his/her interest over the inheritance.
 De Borja v. De Borja – the heir was allowed to
onerously dispose of her share even if she did not
know how much exactly she would get.
 Could she have disposed of it gratuitously?
 Yes.
o 3. Heirs have a right to substitute their predecessor in an
action that survives.
 Bonilla v. Barcena
 Patrimonial right – right to prosecute an action
 Updates on the abovementioned jurisprudence:
o Lee v. RTC (423 SCRA 497)
 An heir can sell his right/interest in property under
administration. However, an heir can only alienate
such portion of the estate allotted to him in the
division of estate.
  So he can only sell his ideal or undivided share in the o A part of the testator’s property
estate, and not specific properties.  An aliquot or fractional part
o Liu v. Loi (405 SCRA 316) o Which he cannot dispose of gratuitously
 An heir can sell his interest in the decedent’s estate,  Why is “gratuitously” underlined?
but always subject to the rights of the creditors and  Because he can dispose of it onerously. He
the result of the partition. cannot donate to an extent that will eat into
 So if you end up having no share in the estate, then the value of the legitime.
what you sold is subject to the creditor’s claim.  But he can sell his properties. Onerous
o Heirs of Conti v. CA (300 SCRA 345) dispositions do not impair the legitime.
 Reiterated Bonilla case: prior settlement of estate not (Joaquin v. CA)
necessary for heirs to commence action or continue  So he can gratuitously dispose?
action pertaining to the estate.  YES. But, he cannot eat into the legitime.
o Heirs of Pinchay [?] v. Del Rosario  Manongsong v. Estimo: Sale does not affect the
 Prevented from filing action because the plaintiffs value of the decedent’s estate. There is an exchange
have not established proof that they are the of value.
decedent’s heirs.  Who are the compulsory heirs? – (887)
 How to resolve: you can continue an action if you are o 1. LC and descendants
indisputably an heir. o 2. LPs and ascendants (in default of #1)
 What are the three kinds of succession? o 3. Widow or widower
o 1. Compulsory o 4. ICs
o 2. Testamentary  Which are primary and which are secondary?
o 3. Intestate o Primary – those who are never excluded
 In absence or default of valid will  Legitimate children/descendants
 (781)  is a WRONG provision. The heirs acquire rights to the o Secondary – those who receive only in default of the primary
inheritance upon death. Any fruits/accruals after will indeed belong to  Legitimate parents/ascendants
the heirs, but not through succession, but through accession discrete or  Illegitimate parents
continua.  N.B. does not go beyond parents
 What is the importance of distinguishing between heirs and o Concurring compulsory heirs
legatees/devisees?  Surviving spouse
o This is an important distinction because of the rules on  Illegitimate children/descendants
preterition.  What are the two principles?
o Heirs – succeeds to an aliquot part of the estate, whether o A) Exclusion and B) concurrence
through testate or intestate o These two principles simultaneously operate to establish
combinations of compulsory heirs
COMPULSORY SUCCESSION
 Legitimary combinations – [recit]
Legitimes
1 LC, 1 IC LC = ½; IC = ¼
1 LC, 2 IP LC = ½
 (886) Legitime –
3 IC, 2 LP, SS LP = ¼ each; 3 IC = 1/12 each; SS =
 1/8 o Does the adopted child retain the right to succeed his
2 IP; SS IP = 1/8 each; SS = ¼ biological parents?
2 AC; 1 LC; 1 IC LC = 1/6 each; IC = 1/12  This is still an open question. There is an obiter in the
1 LC; 2 IC; SS LC = ½; SS = ¼; IC = 1/4 each, but Stephanie Garcia case that the adopted child does,
reduced to 1/8 but it is a mere obiter, and it cites a Family Code
6 LC; 3 IC LC = 1/12; IC = 1/24
provision that might have been repealed by the
5 IC; SS SS = 1/3; IC = 1/15
Domestic Adoption Act.
1 AC; 2 LP; SS AC = ½; SS =1/4; LP = 0
3 LGP; SS 1 LGP (one line) = ¼; 2 LGP (other  Legitimate parents or ascendants
line) = 1/8; SS = ¼ o Nearer exclude more remote. Parents exclude grandparents.
1 IC; SS IC = 1/3; SS =1/3 o Equal division by line. So paternal and maternal lines split by
2 AC; 2 LP AC = ¼ each half then divide between the parents.
3 LC; 2 IC; SS LC = 1/6 each; IC = 1/12 each; SS =  Surviving spouse
1/6 o Before, in the Spanish Code, she cannot concur with LC; she
2 AC; 1 LP; SS AC = ¼ each; SS = ¼
would only get usufructuary right over the property of the LC.
Now, she can concur, and is in fact always an heir. But her
 Legitimate children or descendants share is variable.
o What kind of marriage is needed to become a SS?
o Get a constant ½
 Valid or voidable
 Note: There are only three cases where nobody gets
o What is the effect of legal separation?
½:
 Final decree will disqualify the guilty spouse from
 SS – 1/3; IC – 1/3
inheriting through compulsory, testamentary, or
 SS, exceptional circumstance of in articulo
intestate succession.
mortis – 1/3
 Unless there is reconciliation.
 SS – 1/4; IP – 1/4
 Lapuz v. Eufemio: If pending a case for legal
o They are the primary compulsory heir
separation, one of the spouses dies, the action is
o The nearer exclude the more remote. So children exclude
automatically extinguished and there will be no LS.
grandchildren.
o What are the prerequisites to have the SS inherit only 1/3?
o BUT the grandchildren can inherit if representation is proper
 1. SS inherits alone
 Predecease
 2. The marriage was in articulo mortis
 Disinheritance
 3. Decedent dies within 3 months of the marriage
 Incapacity/Unworthiness
 4. Couple did not live together for at least 5 years
o N.B. If all the children renounce, then the grandchildren will all
 5. The decedent was the one at the point of death
inherit equally (per capita)
upon marriage
 But if only a few renounce and not all, the remaining
 Illegitimate Children or descendants
child/children will get what is left to the exclusion of
o No more distinction between natural and spurious children.
the grandchildren
o What if they concur with legitimate children?
o The adopted child is, for purposes of succession, in the exact
 Always get ½ of one LC’s share
position as a LC
 Must be legally, not de facto adopted
  Their share can be reduced pro rata if the shares
exceed 1 whole. They are less preferred than SS and
LC.
o What if they do not concur with legitimate children?
 Variable shares. If with SS, then 1/3. If with IP, then
¼. Alone, ½ collectively. If with LP and SS, then ¼.
o What is the rule on representation?
 The illegitimate children of an illegitimate child can
represent the latter. The illegitimate children of a
legitimate child cannot represent the latter.
 Illegitimate Parents
o Excluded by BOTH legitimate and illegitimate children.
o No succession for illegitimate ascendants beyond IPs
Preterition (854)
 What is preterition?
o Total omission of a compulsory heir in the direct line from the
inheritance.
o What is the mistake of the judge in Seangio?
 He said that it is total omission from the will. It must
be total omission from the inheritance.
 When is a compulsory heir completely omitted?
o When he gets nothing in the way of:
 1. testamentary (institution of heir) disposition
 2. legacy or devise
 3. intestate succession
 4. donation inter vivos
 Don’t forget donation inter vivos!
 …and he was not disinherited.
 Why does it mention “compulsory heirs in the direct line”? Who is
a compulsory heir not in the direct line?
o The surviving spouse.
o So who is covered?
 It can be LC, IC, and as circumstances apply, LP or
IP
o How do you determine who are the compulsory heirs?
 Determine only at the time of death because that is
only when the rights to succession vest.
 What if there is something is given but is insufficient?
o Remedy is completion of legitime (906)
 What is the effect of preterition?
o Annulment of the institution of heir. But legacies and devises
are valid in so far as they are not inofficious.
o If there are no legacies or devises, the entire estate is thrown
open to intestacy.
 Does the fact that an heir is not mentioned in the will mean that he
is preterited?
o No, if the will does not dispose of the entire estate. (Seangio)
 If someone dies intestate, can there be preterition?
o No.
 Does the fact that an heir is mentioned in the will mean he is not
preterited?
o Not always! [ex. there was no disposition in his favor]
 X has two children, A and B. X made a will giving B ½ of his
estate, and the other half to Ateneo. X did not give A anything by
way of donation inter vivos either. But A predeceased X. Is there
preterition?
o No. A predeceased. You only determine fact of preterition
upon death of testator. (JLT Agro)
 [Same facts] A, however, had a son A1. A predeceased X still. Is
there preterition?
o Yes. But not of A, but of A1.
o Does it matter than A1 was born after the will was made?
 It does not matter. The reckoning point is still time of
death of the testator, not time of making the will.
o What is the effect?
 The entire estate is thrown open to intestacy because
there are no legacies or devises.
 X said “I will disinherit my son B because he took up law, not
medicine.” Is this a valid disinheritance?
o No. It is not one of the grounds. It is rendered ineffective, and
therefore, there is no preterition.
 [Same facts] But the second sentence now says, in addition, “…so
I give ½ of my estate to Ateneo, and the other 1/2 to my brother Z.”
What happens here?
 o There was no preterition. So X will get his legitime because
the disinheritance is ineffective. The dispositions in favor of
Ateneo and Z are valid but inofficious, so these will just be
reduced but not rendered invalid. [Take note of this
scenario]
o Why does it become like this? Because preterition will only
apply when there is inadvertent omission from the will (“without
the heir being expressly disinherited”). An ineffective
disinheritance, thus only results into the heir being able to
demand his rightful share. Preterition does not vest.
Disinheritance (915-923)
 What is the effect of disinheritance?
o Primary effect – exclusion from the legitime
o Actual effect – TOTAL exclusion of the heir from all manner of
succession: exclusion of the heir from the legitime and the
intestate portion, if any, and also from testamentary succession
is instituted in an earlier will.
 Requisites?
o 1. Made in a will
 Can you disinherit in a medium other than a will?
 No. ONLY through a will.
o 2. Done for a cause specified by law.
o 3. Specify the cause
o 4. Must be unconditional
o 5. Must be total
o 6. Cause must true
o 7. If the truth of the cause is challenged, the truth of the cause
must be proved by the proponent
 What is the policy of the law?
 It is reluctant to grant disinheritance. This is
why the burden of proof is automatically with
the proponent of the will. The rebutting heir
is not tasked to prove the denial.
 Take note of the following:
o 1. Some of the requisites require conviction by final judgment.
 Example: Number 1. Mere attempt to take the life is
not enough; there must be conviction.
 But some do not need final conviction, like –
 Maltreatment by word or deed
 Living a dishonorable life
o 2. The grounds are exclusive.
o Self-study the grounds – RFB
 Is there representation in disinheritance?
o Yes, if the disinherited heir is a descendant.
o No, if the disinherited heir is an ascendant.
o N.B. representation does not apply to testamentary succession
(obviously).
 How can disinheritance be lifted?
o Reconciliation between the parties.
o It may be oral, in writing, or by conduct (implied).
 What is the effect of reconciliation?
o It removes the disinheritance.
o Does he recover legitime?
 Definitely. The heir recovers his right to the legitime.
o Does he receive anything by intestate succession?
 He recovers the right to the intestate portion, if there
is any left.
o Does it revive testamentary dispositions in a prior will?
 Yes, unless it was revoked.
Unworthiness (1032-1040)
 1032 enumerates causes for incapacity to succeed/unworthiness and
there is a close parallel with disinheritance. As with disinheritance,
there is need for final conviction for some, not for others, and one
requires exoneration.
 First ground (actually three):
o 1. Abandonment of child
o 2. Inducement by parent for daughters to live a corrupt or
immoral life
o 3. Attempt against virtue of daughter
 This article refers to unworthiness of compulsory heirs. Parents
who have abandoned their children. But what if the child is under
the authority of grandparents, will this apply?
o RFB thinks so. It should probably be “ascendants who
abandon descendants.”
 Abandonment has no precise meaning. How do we understand it o Ex. X is the son of Y. X attempts to take Y’s life. A case for
here? frustrated parricide was filed, and he was convicted with final
o When the parent/ascendant culpably neglects the support of judgment. It is a common ground in unworthiness and
the child. “Culpably” means without justification. disinheritance. So in this case, he is automatically unworthy.
o What about giving consent to adoption, is it But Y still disinherits X, which he can do. There is no problem
abandonment? here; he is just “double dead.” But what if X and Y reconcile?
 No. It is not a culpable act. It is encouraged by law. Y admitted X back into his house, and forgave him orally.
 Re: inducement. What about grandchildren/granddaughters? Under the rules on disinheritance, reconciliation is enough to
What about grandsons? set aside the disinheritance. But because there is no written
o A liberal interpretation would include all these. pardon, the unworthiness persists.
 Attempt against virtue? o How do we resolve this?
o This should include grandparents  Commentators like Tolentino say that it is the rules on
o Does this need conviction? disinheritance that prevail, because disinheritance is
 No. the express will of the aggrieved party. It should
o What does “attempt” cover? prevail over unworthiness.
 All stages of commission.  If the facts are the same but Y did not disinherit X,
 Also not limited to rape: it should cover other offenses unworthiness will apply. So there has to be a written
against chastity. pardon.
 Are the grounds exclusive?
o Yup. D of child/des D of parent/as D of spouse Unworthiness
Attempt against Attempt against Attempt against Attempt against
 Do you need actual disinheritance?
life life life life
o No. The law itself excludes the heir. Accusation of Accusation of Accusation of Accusation of
 What is the extent of the disqualification? crime crime crime crime
o Total, like in disinheritance – no compulsory, testamentary, Adultery/conc. Adultery/conc. Adultery/conc.
intestate Force to change Force to change Force to change Force to change
 Is there representation here? will will will will
o Yes, in the same way as disinheritance. But again, it has to be Refuse to Refuse to Refuse to
support support support
a descendant.
Maltreatment by
 How does one set aside unworthiness? word/deed
o 1. Written condonation Dishonorable life
o 2. Execution by offended party of a will with knowledge of the Crime with civil
cause of unworthiness interdiction
 Why is the code stricter in unworthiness than disinheritance? Abandoned, Abandoned,
o This is an inconsistency, because there are many grounds induced to induced to
corrupt life, corrupt life,
common between both unworthiness and disinheritance. This
attempt v. virtue attempt v. virtue
happens when if the offended party avails himself of that Loss of P.A. Loss of P.A.
ground and actually disinherits. Attempt by one
parent against
 life of other
Cause for LS
Prevent from
making will or
revoking one
Falsification or
forgery of will
Representation
 Definition of representation?
o Article 970.
o Comment on “fiction of law”?
 This is unnecessary. It is a right created by law, after
all.
o Comment on the term “representation”?
 It’s a misnomer. Because what he gets in succession
belongs to him! He is actually subrogated.
 When does representation apply?
o ONLY Predecease, Disinheritance, Unworthiness/incapacity
o There is no representation in renunciation
 In what kinds of succession does representation operate?
o 1. Compulsory
o 2. Intestate
 In what lines does representation obtain?
o N.B. In both compulsory and intestate succession there is a
direct line and a collateral line. The direct line you have the
ascending and descending. Collateral are not ascendants or
descendants, but are related to you up to the 5 th degree.
o Representation – operates ONLY in the descending direct
line. NEVER in ascending.
 What is the rule on adopted children?
o Cannot represent nor be represented, because the legal
relationship in adoption is strictly between adopter and
adopted.
 What is the rule on representation by illegitimate children?
o This is the “iron curtain” provision.
o An illegitimate child of a legitimate child cannot represent the
latter.
o An illegitimate child of an illegitimate child can represent the
latter.
o If the child is legitimate, he can obviously represent either
illegitimate or legitimate parent.
 What is the rule on shares of the succeeding representatives?
o Since they are only stepping into the shoes of the person
represented, they could get unequal shares. Ex. A had 2
children, B had 3. Both A and B predecease their father, X.
The 2 children of A split A’s share by ½ each and the 3
children of B split B’s share by 1/3 each.
o N.B. Take note that the rule changes when ALL, not just some,
of the children renounce. The grandchildren will inherit per
capita.
o What if all children predecease?
 The grandchildren still inherit by representation, and
not per capita.
o IMPT. How does the rule change for the sole case of
representation in the collateral line?
 A, B, and C are brothers and sisters of X. If A and B
predecease X, then the children of A and B inherit per
representation.
 But if ALL of A, B, and C predecease – the nieces and
nephews of X will inherit per capita. NOTE that this is
different because in the descending line, it will be still
succession by representation.
o Is it even relevant to talk about disinheritance or
unworthiness for collateral heirs?
 It’s not. You cannot disinherit a brother or sister
because he’s not a compulsory heir.
o What if there is renunciation by all collateral heirs?
 Same rule as direct line heirs: the nephews and
nieces will inherit per capita.
 What are the 3 rules on qualification?
o 1. Representative must be qualified to succeed the decedent
(e.g. C must be qualified to represent A)
o 2. Representative need not be qualified to succeed the person
represented (e.g. C need not be qualified to succeed B)
o 3. The person represented need not be qualified to succeed
the representative (e.g. B need not be qualified to succeed C)
 What is the difference between representation OF and BY a renouncer?
o Representation OF renouncer  does not happen
o Representation BY renouncer  can happen.
 Illustrate this rule. ABC. C renounced B’s
inheritance. But C can represent B if B predeceases
A, because C is inheriting from A, not B.
Reserva troncal
 What is Reserva Troncal?
o See Article 891
 What’s the purpose of reserve troncal?
o To keep property or return property to the line of origin.
(Sanchez Roman view)
 What are the requisites of RT?
o 1. Person acquires property from ascendant or brother/sister
through gratuitous title
o 2. Dies without legitimate issue
o 3. Inherited by another ascendant through operation of law
o 4. There are relatives within the 3rd degree of consanguinity
belonging to the line from where the property came
 Why is the reserve troncal included in compulsory succession?
o The RT can limit the operation of the legitime
o If that part which is reservable passes as legitime, the law says
that it should pass with no burden. But if it passes as RT, it will
be under the burden of RT because the law says so.
o It’s better to take it up as part of compulsory succession
because it can become an encumbrance on the legitime.
 What are the two transmissions that have to take place?
o 1. By gratuitous title, from the origin to the prepositus
 This can include donation or any kind of succession
o 2. By operation of law, from the prepositus to the reservista
 ONLY compulsory or intestate succession
 What if there is only one transmission?
o There is no RT. There have to be two transmissions for there
to be RT.
o Solivio: there was just one transmission from the mother to the
son, by donation. When the son died, he had no ascendants
at all or descendants either. Because there was no other
ascendant, the second transmission could not happen. The
closest relatives are two aunts, who are not ascendants.
 Who are the parties in RT?
o But first, two basic rules:
 1. All of these parties must be legitimate. If any of the
relationships is illegitimate, there can be no RT.
 2. No further inquiry beyond the origin is required
o 1. The origin –
 Ascendant of prepositus, of any degree, of either line
 Or brother/sister of prepositus, either full or half blood
 If full blood, Manresa says “yes.” JBL says
“no, because there is no possibility of the
property leaving the line. The ascendant
lines are common.”1
o 2. Prepositus
o 3. Reservista
 Has to be a different ascendant from the origin
 Must he be another ascendant from another line
or can it be same line?
 If another line, no question he can be a
reservista. (Ex. F  S  M)
 If same line (Ex. GF  grandson  F [same
line as grandfather, since he is the son of the
grandfather]), according to JBL, there is no
RT. According to Manresa and Sanchez-
Roman, there is an RT.2
o 4. Reservatarios
 They must be related within the third degree, in
relation to the prepositus
1
The difference is explained by different theories. JBL’s view is that RT is
curative or remedial; if it does not leave the line, no need for RT. Manresa
says that it is preventive, too – the RT seeks to prevent the property from
leaving the line as well.
2
Again, the source of disagreement is a different in theories on nature and
purpose of RT. RFB leans towards Manresa’s and Sanchez Roman’s view.
 Of course exclude legitimate descendants, since if the
prepositus had decendants, there would have been
no RT
 Who are these possible reservatarios?
 Parent, grandparent, great grandparent
 Brother, sister, nephew, nieces, uncles,
aunts
 Note: in the situation that JBL seeks to exclude (but
Manresa favors), there is no need to make a
distinction since there is no change in lines.
 When do you determine who the reservatarios?
 When the reservista dies. They do not have
to exist when the prepositus dies.
 If there are several, but of different degrees, how
do you determine who gets what?
 Tolentino: Selection is made on preferential
basis, not integral and indiscriminate, as
Scaevola believed.
 Apply the rules on intestate succession
(direct over collateral). Another rule of
intestacy that applies is representation of
nephews or nieces of brothers/sisters [so the
brothers/sisters do not exclude
nieces/nephews].
 What is the consequence?
 Gonzales: The reservista cannot choose, by
will who the reservatarios will be. The law
chooses for her.
 Should the reservatario be related to the origin?
 A1 and A2 have a child, B1. B1 is married to
B2, and have a child C. A1 donates property
to C. B1 died, when C dies, it goes to B2.
Thus, there is an RT here. When B2 dies,
A2 survives and claims the property as
reservataria (since she is related by 2nd
degree to C, the prepositus).
 MANRESA – she is a reservataria, she
meets the purpose and requirements
 SANCHEZ ROMAN – she is not, because
you didn’t return it to A1’s line and A1’s
relatives. A2 is not related .
 So what is the majority view?
 The reservatarios must be related by blood
to the origin.
 This is not yet established by jurisprudence,
but this is a good view point.
 What is the nature of the right of the reservista? (Edroso)
o 1. Right of ownership
o 2. Subject to the resolutory condition that there will be
reservatarios present upon the reservista’s death
o 3. The right is alienable, subject to the same resolutory
condition
4. The right of ownership is registrable
 What is the right of the reservatarios? (Sienes)
o 1. Right of expectancy
o 2. Subject to a suspensive condition, that there will be
reservatarios present upon the reservista’s death
o 3. The right is alienable, subject to the same suspensive
condition
o 4. The right of expectancy is registrable
o Don’t these two rights of registration conflict with each
other?
 No. There’s only one title. The right of the reservista
is annotated as ownership; the right of the
reservatario is annotated as an encumbrance.
 What kind of property can be reserved?
o Any type
 What are the rights and obligations of the reservatarios and
reservistas?
o Reservista prepares inventory
o Right of reservatarios to annotate in case the reservista
alienates (within 90 days from acceptance by the reservista)
o Appraise the movables
o Secure by means of mortgage
o Registration is demandable Sumaya
 What are the causes for extinguishment of RT?
o 1. Death of reservista (causes it to transfer)
 o 2. Death of all the reservatarios  Who are the two classes of disqualified persons?
o 3. Renunciation by all the reservatarios, and none is born  Those below 18 years old
subsequently  Those of unsound mind
o 4. Total fortuitous loss of the property  Putting it positively, one must be a natural person 18
o 5. Merger or confusion of rights years old or above and of sound mind.
o 6. Prescription or adverse possession  What must you know to establish a sound mind?
 1. Character of estate
TESTAMENTARY SUCCESSION  2. Proper objects of your body
 3. Nature of the testamentary act
In general
 Is there a presumption?
 Testamentary succession can never impair the legitime  Yes, a rebuttable presumption of
 What is a will? testamentary capacity
o An act whereby a person is permitted, with the formalities  When is there no presumption?
prescribed by law, to control to a certain degree the disposition o 1. If the testator, 1 month or less
of his estate to take effect after his death before the making of the will, was
o Why is this inaccurate? publicly known to be of unsound
 “Act” is too broad. Instrument is a better word. mind
 What are the two kinds of wills? o 2. When the testator has been
o Holographic and attested/notarial placed under guardianship for
 What are the three common requisites (first two, textual; one is insanity
non-textual)?  What is the presumption then?
o 1. It must be in writing (textual requirement) o There is a presumption of insanity,
o 2. Executed in a language or dialect understood by the not just a presumption of sanity.
testator(textual requirement) Again, this is rebuttable
 Is this rule mandatory?  A requirement is that the testator must sign the will and every page at
 Definitely. the left hand margin, except the last.
 So can the will be translated to the testator?  How can the testator usually sign?
 No. It must be written in a language known o He writes his name
to him. Do not confuse this with the  What are the other recognized ways?
attestation clause, which can be translated. o Affixing thumbmark (Matias v. Salud)
 Must the will state it was written in a language  Is the thumbmark for the testator always a valid
known to the testator? way to sign the will?
 No. It can be shown by extraneous  Yes. Under all circumstances, even if not
evidence/evidence aliunde. infirm or ill.
o 3. Testamentary capacity o Is a cross allowed (Garcia v. Lacuesta)?
 Who can make a will?  No, in general.
 Natural person (juridical person cannot make  THE EXCEPTION: If that is his usual way of signing.
a will)
 There are two ways of interpreting the word “the end,” where the
testator’s signature should be. What are these?
o 1. The physical end, where the writing stops
o 2. The logical end, if there are non-dispositive portions written
in the will
 Must the signing always be at the left margin?
o No. It can be any margin.
o Why is there no requirement for marginal signing on the
last page?
 Because it would be superfluous. He also signs at
the end.
 The testator must sign in the presence of the witnesses. The
witnesses must also sign in the presence of the testator and of one
another. What does the law mean by “in the presence”?
o Nera: The requirement of presence does not mandate that the
person must actually see the other party signing; what is
required is that he could have seen, by casting his eyes in the
proper direction (without changing his physical position).
 One of the options given to the testator is that he/she may ask
someone else to sign for him, provided some conditions are
present (1. Express direction; 2. In his presence).
o Should the testator be physically prevented from signing
or have any particular reason to get an agent?
 No.
o What should the agent write?
 He must write the testator’s name
 It must be in the agent’s own handwriting
o Must the agent write his own name?
 It is not required.
 Must the attestation clause be signed?
o Yes.
o By whom?
 The witnesses.
o What about the testator?
 No. The attestation clause is purely an affair of the
witnesses.
 Where should the witnesses sign the attestation?
o At the end of the attestation clause.
o Can they sign at the margin or elsewhere (beside)?
 No. The attestation clause is deemed unsigned.
 What must the attestation clause state?
o 1. Number of pages of the will
o 2. Fact that the testator signed the will and all the pages
thereof, or caused some other person to write his name under
his express direction, and in the presence of the instrumental
witnesses
o 3. That the witnesses signed the will and all the pages thereof
in the presence of the testator and of one another
 Must the attested will bear a date?
o No.
o Why?
 The certification of the acknowledgement will be
dated anyway.
o Who certifies?
 The notary public – as required by the notarial law.
 Should a holographic will be dated?
o Yes.
 What if the notary public acted outside his notarial jurisdiction?
o It is void and tantamount to not being notarized.
 If the will was notarized by one of the witnesses, who was also a
notary public, will this make the will void?
o No, if there are three other witnesses apart from the notary.
o If there are less than three witnesses including him?
 The will is void. There is a failure to meet the
required number of witnesses.
o But can a notary public be a witness?
 Definitely. But the notary public cannot be counted as
a witness, and the witness cannot be the notary public
too. For the latter, you are undermining the notary
public’s impartiality.
 What is the requirement if the testator is blind?
o Two readings – by the notary public and by one of the attesting
witnesses.
o Is this mandatory?
 Yes. Non compliance makes the will void.
 Should this mandatory nature extend to illiterate
deaf mutes?
 Yes.
 o Must the will or attestation clause mention compliance
with this mandatory requirement?
 No. It can be established by extrinsic evidence.
o Garcia: The lawyer who assisted the testator read the will.
It was read only once. The lawyer, however, read it aloud
in the presence of the attesting witnesses and the notary
public, who had their own copies of the will. The testator
was also listening. Art. 808 was hence not complied with.
But is this valid?
 This is valid, because there was substantial
compliance. The intent of the law was achieved – to
prevent fraud upon the testator.
o Alvarado: Invalid because it was done by the lawyer who
drafted the will who read it aloud, so it wasn’t even one of the
two parties enumerated. And he read it out loud only once.
 Art 809 is the provision on substantial compliance with respect to the
attestation clause, which needs three things (# of pages, fact that the
testator signed at the end in the presence of the witnesses, and that the
witnesses did the same in the presence of the testator and of one
another). How strict must this be in light of Art. 809?
o In the code itself, there is no clear rule about how liberal
interpretation could be.
o Caneda: defect was failure to state that the witnesses signed
in the presence of the testator and of one another. HELD:
This was a fatal defect. Adopting JBL Reyes’s suggested
standard, it could not be remedied by visually examining the
will.
o Azuela: Deficiency was failure of the clause to state the
number of pages, which was left blank. HELD: valid omission,
because it can be supplied by a visual examination of the will.
 Requirements of a Holographic will?
o Completely written, dated, and signed by the testator
o Roxas v. de Jesus: Feb/61 was held as a sufficient date – this
is a problematic decision. Fortunately, there was no other will
also made in Feb/61, which could have possibly repealed it. In
a very liberal decision, it was upheld.
o Where should the date be?
 There was no mention where it should be. It could be
in the body.
o Can you sign by a thumbmark, as in an attested will?
 Seems unlikely. It must be “written by the hand” – not
a thumbmark. Though there is no jurisprudence on
this.
 813-4 – dispositions after the signature
o Some commentators say that this implies that the signature
must be at the bottom of the holographic will.
o If there is only one additional disposition, it must be written and
signed by the testator.
o If there are several, what is the rule?
 1. Dated and signed
 2. Or each additional disposition may be signed,
provided the last one is dated and signed
 Kalaw v. Relova: Cancellation of the name of the original heir and
writing above it of the name of another heir – invalid because it was not
validated, because it was not signed.
o But the court weirdly held that the cancellation was valid! But it
was not signed. This is an odd decision, because it had an
internal contradiction.
 Rules on probate 
 Codicils and incorporation by reference (825 and 827)
o Article 825 defines a codicil. This is exam material. It assumes
the existence of a prior will. You cannot have a codicil without
a prior will. It can explain or alter the prior will.
o Sometimes it’s hard to determine whether it is a codicil or a
second will.
 If it makes an independent disposition, it is a second
will.
 If it alters, modifies, changes, it is a codicil.
o But honestly, this distinction is academic, because the
requirements of a codicil and a will are just the same.
o 827 – An incorporated document. It is attached to a will and is
intended to explain. It cannot make a testamentary disposition
because otherwise, it has to comply with the requisites and
form of a will.
 Requisites?
 1. It must predate the will
  2. It must be signed on every page by the o The rest of the free portion goes into intestacy.
testator and witnesses, except if it is o But what if it is shown that the testator intended to
voluminous dispose the entire free portion?
 3. It must be clearly referred to in the will  If the disposition is less than the portion, you increase
 4. It must referred to in probate as that proportionately. If more, you decrease
document proportionately.
 So since it requires witnesses, can you not have
an incorporated document with holographic wills? 924-959 – Legacies and devises
 Some say you cannot because there are no
 Some provisions are inaccurate. It is estate that is liable for legacies
witnesses. RFB says that you must interpret
and devises, not compulsory heirs as 925 says. You cannot charge the
it liberally, and since there are no witnesses,
compulsory heir for the legacies and devises. Exception: indirect legacy
then it just means it’s just the testator that
 929-937 outline:
signs.
o 1. General rule: you give away what your interest covers. No
 Two modes of testamentary succession:
more, no less. If you own the whole thing, you give the whole
o 1. Institution of an heir
thing.
o 2. Institution of devisee or legatee
 Exception – you can give more than you own. This
 What is the permissible form of instituting a successor, whether
estate will attempt to acquire it, but if the estate fails,
heir, devisee, or legatee?
the monetary equivalent is given.
o Only thing required is that the identity of the successor is
 Exception 2 – you give less than you own.
adequately determined in the will. No need to mention by
o 2. Legacy or devise of a thing belonging to another – under the
name, as long as the successor’s identity is determinable.
ff rules, you can:
 “I institute my brothers and sisters to ½ of the share of my estate.”
 A) if the testator gives an order to acquire it, the
What does this mean?
estate tries. If the owner refuses to sell, the estate
o Siblings, whether legitimate, illegitimate, or half, inherit in equal
gives the monetary equivalent.
shares.
 B) If the testator wrongfully believed he owned the
o This is different from intestacy, where whole, half, and
thing, the disposition is void.
illegitimate siblings inherit in 2:1:0 ratio. (You cannot inherit
 Exception – if subsequent to making the
from your illegitimate sibiling)
disposition, the testator acquires the thing
 What is the rule on statement of false causes on a will?
gratuitously or onerously.
o In general, it is deemed not written.
 If he knew he did not own it, but did not order for its
o Unless it is shown that:
acquisition  there is an implied order to acquire.
 1. Cause must be false
o 3. The legacy or devise of a thing already belongs to the
 2. It must be shown to be false
devisee or legatee
 3. It must appear on the face of the will that the
 If a thing given already belongs to the legatee or
testator would not have made the institution had he
devisee, the disposition is void
known of the falsity of the cause
 Subsequent alienation is not validated,
 If heirs are given different fractions each, and the total is less than
unless as Manresa says, the alienation is to
the free portion, what happens? (852/3)
the testator himself
  If the thing belongs to somebody else when the will
was made, and he erroneously believed it belong to
him, and later, the legatee or devisee acquired the
thing –
 It is still void, because the testator was in
error
 If the testator knew it did not belong to him,
and the thing was acquired onerously by the
devisee/legatee, the estate pays
o Except – if acquired gratuitously,
then there is nothing else to be
done
 If the thing was owned by the testator at the making of
the will, but the legatee/devisee acquired the thing
from the testator after, the disposition is void
(because subsequent disposition, even to the
recipient himself, renders the legacy/devise useless)
o 4. Legacy/devise directing the estate to remove the
encumbrance of property of another  the estate pays for it
 Pledge/mortgage  estate must pay for it first
 Any other kind of encumbrance like easement or
encumbrance  passes with the things
o 5. Legacy of credit or remission
 i.e. giving to the recipient the debt owed to me by
another person  effective as to remaining debt owed
upon the testator when he dies
 If the testator sues after making the disposition 
ipso facto the legacy is revoked. Mere filing revokes
the disposition. Extrajudicial demand does not revoke
the disposition. It must be a complaint for collection.
 If generic, on the debts existing when the disposition
was made. Ex. X owed Y 2 debts in 1999. Y, in his
will, gave Z the debts X owed Y. X owed Y 3 more
debts in 2001. Y died. What debts transfer?
 Just the 2 existing when the will was made.
 What is the order in 950 for reduction?
o 1. Remuneratory
o 2. Preferred
o 3. Legacy for support
o 4. Education
o 5. Specific
o 6. All other, pro rata
 What is the rule in 911?
o 1. Reduce pro rata non-preferred legacies and devises
o 2. Reduce pro rata preferred legacies and devises
 When do you use which?
o If the reason for reduction is impairment of legitimes, use Rule
in 911.
o If the reason for reduction is something else, use Rule 950.
o What other reasons could exist?
 A testator has no compulsory heirs, but he gave away
too many legacies and devises, by sheer
mathematical necessity. Rule 950 is followed.
 Or maybe the testator already covered for the
compulsory heirs’ legitimes through donations inter
vivos, so the remaining parts are all free portion.
 When is a legacy or devise without effect?
o 1. Transformation –
 Converted the thing
o 2. Alienation
 Either onerous or gratuitous, and even if the thing
reverts to the testator
 Exceptions?
 1. Reversion was caused by annulment of
alienation because there was vitiated
consent
 2. Reversion due to redemption in a pacto de
retro sale
o 3. Total loss before the testator’s death
Rules common to heirs, legatees, and devisees
 Capacity to succeed:
o In fact, the basic rules are common to all kinds of succession
(Alive + qualified to succeed at the time succession opens.
There is no exception here.)
 Art 1025 – The heir, legatee, or devisee must be living when the
testator dies. There is NO exception, contrary to what this provision
suggests.
o Representation is not an exception because the representative
must at least be conceived already.
o For juridical persons, it must exist juridically when the testator
dies.
 1027 – First 5 paragraphs are important because they enumerate
instances where one is incapacitated to succeed in testamentary
succession. It does not apply to other kinds of succession.
o Just memorize this list:
 1. Priest who head confession of testator during last
illness or minister of gospel extending spiritual aid in
this period. Requisites:
 A. Will executed during last illness
 B. Spiritual ministration extended during last
illness
 C. Will executed during or after the spiritual
ministration
 2. Relatives of priest/minister within 4th degree or his
institution
 3. Guardian, from ward before final accounts of
guardianship approved
 Except if guardian is A/D/sibling/spouse
 4. Attesting witness to the execution of a will, spouse,
parents, children, or anyone claiming under that
witness, spouse, parent, or children
 Put in the exception, where there are three
other competent witnesses to the will, under
here too
 5. Physician or health officer who took care of the
testator during last illness
o Take note especially for the priest and the doctor.
 1028 – only applies to testamentary succession: extend to prohibited
donations in 739
 1032 disqualifications – these are general; these bar the DQ heir from
compulsory, testamentary, or intestate succession
Substitutions
 857-870 – Substitutions. You cannot have substitution in compulsory
and intestate succession.
 What are the two kinds of substitutions?
o 1. Vulgar
o 2. Fideicomissary
o The code seems to enumerate two more:
 1. Reciprocal
 2. Compendious
 (Several heirs one substitute)
 …but these actually are just variations. They go into
mode.
 What is substitution vulgar?
o Instituting an heir in default of the one instituted
 Predecease, incapacity, renouncement
o How do you make it?
 Enumerate all the three causes
o Can you restrict vulgar to 1 or 2 grounds?
 Yes. Just specify.
 What are the requisites for fideicomissary?
o 1. First heir takes the inheritance
o 2. Second heir takes the thing after tenure of the first heir
o 3. The second heir must be one degree from the first heir
 What does “first degree” mean?
 It refers to relationship.
o 4. The first heir must have absolute obligation to preserve and
transmit
o 5. Both heirs are alive and capacitated at the death of the
testator
 What is the tenure of the first heir?
o What is specified by the testator
o If not specified, it is the lifetime of the testator
 Does the first heir have a right to alienate?
o NO. This rule is unlike the reserve troncal.
Conditions, terms, modes
 These all burdens in succession, especially since the testator has free
disposal of his property.
 What are the types of conditions?
 o Suspensive
o Resolutory
 What are the special rules on suspensive conditions?
o An impossible condition (873) – considered not imposed. The
disposition is valid and becomes pure.
o What about condition not to contract first marriage?
 ALWAYS considered not written
o What about subsequent marriages?
 Generally void, unless imposed by the deceased
spouse or the latter’s ascendants/descendants
o BUT what is allowed is to impose a usufruct or some personal
prestation as long as one remains unmarried or a widow is
valid.
o A disposition on condition that the heir/legatee/devisee
must also in turn make a disposition in favor of the
testator or another person?
 The entire disposition is void. Take note of this. The
purpose is to prevent the whole system from being
corrupt.
 When does a suspensive condition take effect?
o If both conditions exist: 1) the heir is alive when the testator
dies, 2) the heir is alive when the condition happens
 What happens while waiting for the suspensive condition to
happen?
o Place the property under administration of
executor/administrator
 What is the difference between a term and condition?
o A term is certain, a condition is not.
 What are the two types of terms?
o Suspensive term
o Resolutory term
 When does an institution based on a term vest?
o A disposition with a term vests upon the death of the testator,
unlike a conditional disposition (esp. suspensive) which only
vests upon the happening of the condition. Since a term is
certain to happen, it follows the general rule in 777 that it vests
upon death.
 So must the heir be alive when the term arrives?
 No. Just when the testator dies.
 So he can transfer his vested right upon his
own successors.
 What do you do as you wait for a suspensive term to arrive?
o Governed by 885. While you wait for the term to arrive, you
give it to the legal heirs (intestate heirs).
 For resolutory terms?
o After the testator’s death, you give it to the instituted heirs, and
when the term arrives, they turn it over to the legal heirs.
 A condition suspends, but not obligates. A term obligates, but does not
suspend. A term does not delay the efficacy of the disposition, but it
places an obligation upon the instituted heir (even suspensive, since the
instituted heirs have an obligation to turn the property over to the
instituted heir when the term arrives).
 What is a mode?
o You have to do something alongside the disposition.
 What if the heir fails or refuses to perform the act required?
o The beneficiary can ask for the performance of the obligation.
o The legal heirs can ask for the forfeiture of the disposition.
 How must a mode be stated?
o It must be a clear command, not just a request.
 When is a caucion muciana needed?
o 1. In a potestative suspensive condition (879)
 It is under the sole control of the heir (ex. I give X my
house and lot, as long as he doesn’t use it as a drug
den. In order to guarantee that the legal heirs, who
will then be entitled to the property upon violation of
the condition, then X has to put up a bond – the
caucion muciana).
o 2. Resolutory term, before the term arrives
 The legal heirs have the right to enjoin disposition of
the property, but they have to put up a caucion
muciana
o 3. In case of a mode (882)
 As security for compliance with the testator’s wishes
Accretion (1015-23)
 To which kinds of succession does it apply?
o Applies only to testamentary and intestate succession.
 Requisites?
o 1. Two or more heirs, legatees, devisees, called to the same
inheritance or portion thereof pro indiviso
 What does “pro indiviso” here mean?
 Some commentators say they must have
equal shares (like Tolentino), but this is
wrong. There’s no requirement of equality,
just as long as they have aliquot shares.
This means even the shares can be unequal.
 There is no accretion is the shares are
earmarked.
o 2. One or more must predecease the testator, become
incapacitated, or renounce the inheritance.
 X gives his BPI account to A, Citibank account to B, PNB to C. C
predeceases. Is there accretion?
o No. The shares are earmarked.
 X gives ½ of his estate to A, 1/3 to B, 1/6 to C. C predeceases. Is
there accretion?
o Yes, because they got aliquot shares. A and B receive C’s
shares according to the proportion they received their shares.
 In testamentary disposition, what wins out, accretion or
substitution?
o Substitution
 In intestate disposition, what wins out, accretion or
representation?
o Representation, when proper
Revocation of wills (828-834)
 There is no such thing as an irrevocable will. It only becomes
irrevocable when the testator dies.
 What are the three ways of revoking a will, whether total or partial?
o 1. By operation of law
 Legal separation (offending party is instituted as a
beneficiary in a will)
 Preterition
 Where the testator disposes property that is given as
legacy or devise in a will (the legacy/devise is
revoked)
o 2. Subsequent will/codicil
 1. The will must comply with the requirements of wills
 2. Testamentary capacity
 3. Either an express revocatory clause or
incompatibility in the dispositions
 4. The will must be admitted to probate
o 3. Physical destruction
 Either by the testator personally or in the case of
attested wills, it can be done by his agent acting
under his express direction and in his presence
 Molo: There must be both a) corpus (actual
destruction), and b) animus (intent)
 What if the revocation was unauthorized?
o If it is an attested will, it can be proved, if there are people
available who can attest to the contents of the will
o If it is a holographic will, too bad if no copies survive. There’s
no way of probating it.
Republication and revival
 835 and 836 are inconsistent with each other.
 Republication/revival is giving efficacy to a will which somehow lost its
efficacy?
o Ex. it has been revoked, and now you want to revive it.
 If it is defective as to form?
o You have to reproduce it in the form of a valid will or codicil.
o You cannot revive it by reference.
 What if it is inoperative by some other reason other than form?
o You can merely revive it by reference.
Executors and administrators (1058-1060)
 What if the decedent dies with a will? With no will?
o It has to be probated, and if the will has appointed someone to
take care of the estate, then he becomes the executor.
o If there is none appointed or no will, then the court appoints an
administrator.
Probate
 Two aspects of validity of a will?  If it is challenged as a forgery. If it is
o Formal (Extrinsic validity) admitted as genuine but admitted on other
 including capacity of witnesses grounds such as mistake, fraud, or duress, it
o Substantive (intrinsic validity) is not a contest under 811 and you do not
 Ex. impairment of legitimes, preterition, capacity of need three witnesses.
heirs, legality or possibility of conditions
 What is probate? Conflicts rules
o Mandatory proceeding to determine only the formal validity of
the will  Substantive validity?
o There is no substitute for probate. o Time – law as of time of death
o Guevarra v. Guevarra, Seangio v. Reyes, Heirs of Lasam: o Place – law of citizenship of decedent
All lay down the rule that probate is mandatory.  Formal validity?
 Probate is determinative or conclusive of the validity and due execution o There are always five choices:
of the will. o 1. Law of citizenship
 How does it become final? o 2. Philippine law
o Just like any decision of court. o 3. Law of residence
o Once it becomes final, it becomes res judicata – it becomes o 4. Law of place of execution
unassailable as to matters of form of the will. o 5. Law of domicile
o Even if the decision is wrong.
INTESTATE SUCCESSION
 What cannot be assailed after finality of probate decree?
o 1. Testamentary capacity In general
o 2. That he acted freely
o 3. Followed all the requirements of the will, as to witnesses,  What is intestate succession?
etc. o Takes place by operation of law in default of a valid will
o 4. It is genuine and not forged  Look at the instances in 960 where total or partial intestacy occur:
 For probate of holographic wills, what must one remember? o 1. No will, void will, or ineffectual will
o 1. You have to present the will itself (Gan v. Yap) o 2. Does not dispose of all property (partial intestacy)
 Except there is a photocopy that survives (Rodella v. o 3. Suspensive condition did not occur, predecease, repudiation
Aranza)  And there is no substitution (testate)
o 2. If the holographic will is contested as probate, three  And there is no accretion (testate/intestate)
witnesses who can identify the will and attest to its validity o 4. Heir is incapacitated/unworthy
must be presented. o 5. Resolutory condition happens
 Is this mandatory? o 6. Resolutory term expires
 The leading case of Azaola says that it is o 7. Preterition
only directory  What are the principles of intestacy?
 Godoy: Says that it is mandatory, although it o Exclusion and concurrence, just like compulsory succession
is criticized  What is the rule of relationship?
 When is it deemed contested? o The intestate heir must be related to the decedent
 o Jus familiae (ascendant/descendant)
o Jus sanguinis (collaterals up to fifth degree)
o Jus xxx (husband and wife)
o Jus imperii (decedent and State)
 Just familiae and sanguinis requires blood relationship. What is
the exception?
o Legally adopted children and legally adoptive parent
 What are the limits?
o Going down, there is no limit
o Going up, there is no limit
o Collateral line, the limit is up to the fifth degree
 How do you count degrees?
o For direct line, count degrees
o For collaterals, count up to the nearest ancestor
 2nd – brothers, sisters
 3rd – nephews, nieces, uncles, aunts
 And so on
 Rule of preference of lines?
o Direct excludes collaterals
o As a general rule, descending excludes ascending
 Except: legitimate ascendants not excluded by
illegitimate descendants
o Is there representation in the direct line?
 Yes, only in the descending
o Collateral – nearer excludes more remote
o Is there representation if the collateral line?
 Nephews and nieces exclude predeceased or
unworthy brothers/sisters of decedent
 What is the nature of the spouse?
o Concurs with both direct and collateral (up to third degree)
 What is the rule of proximity of degree?
o Nearer exclude the more remote
o What is the exception?
 Representation (see above – direct descending and
nephews/nieces only for collateral)
 What is rule of equality of relatives of the same degree?
o Relatives of equal degree inherit equally
o Exceptions?
 1. Preference of lines
 ex. legitimate direct descendant of 1 degree
excludes legitimate direct ascendant of 1
degree
 2. In collateral relationships, full blood and half-blood
distinction
 Siblings
 Nephews and nieces
 3. Representation
 See the combinations in the book.
 Can the adopted succeed to his biological parents?
o This is the same problem as in compulsory succession so see
the discussion above.
 Combinations 2 and 4 in the book are dangerous, so take note that
here (children and illegitimate children) – each legitimate child gets
double what the illegitimate children will get. What is the usual
pitfall?
o If you observe the 2:1 ratio intestacy, remember that you still
have the legitimes. You might end up impairing the legitime of
the legitimate children, which cannot be impaired. The
illegitimate children can suffer impairment if there are a lot of
them, but never the legitimate children.
o This problem doesn’t apply in any other instance apart from
these two cases.
 What is the successional bar?
o Art. 992. An illegitimate child has no right to inherit ab intestato
from the legitimate children and relatives of his father or
mother; nor shall such children or relatives inherit in the same
manner from the illegitimate child.
o Manuel v. Ferrer: Article 1006 [?] applies as an exception if
both are … [something like if both are illegitimate. I spaced
out]
 Situations to take note of:
o In case of the concurrence of the SS and 1 LC, the SS will get
½, and the LC gets ½.
o SS, brothers, sisters, nephews, nieces – SS gets ½, brothers
sisters nephews nieces get ½.
 According to the rules of division.
 o Nephews and nieces concurring with aunts/uncles of the
decedent – nephews and nieces exclude the aunts/uncles
even if they are in the same degree.
 What is the difference in rules for brothers/sisters in testate and
intestate succession?
o TESTACY: Difference in the rule of brothers and sisters – if
they are instituted indiscriminately, they receive equal shares
whether full or half blood.
o INTESTACY: Take note of the 2:1 ratio [for full and half blood]
and the successional bar.
 Is partial intestacy possible?
o Yes, there is a will but it doesn’t dispose of the entire free
portion.
 Give an example of the difference between total and partial
intestacy.
o Full intestacy:
 Legitimes – ½ to LC, ¼ to SS
 Thus, ½ to LC, ½ to SS (entire ¼ free portion went to
the SS)
o Partial intestacy: Ex. I gave 1/8 of my estate to Ateneo.
Note that the legitimes are ½ to LC, ¼ to SS.
 ½ to legitimate children, 1/8 to Ateneo, 3/8 to spouse
 Note: the entire remaining free portion of 1/8 went to
the SS.
Acceptance and repudiation of the inheritance (1041-57)
 Acceptance and repudiation are always free acts. A person may always
accept or reject, whether compulsory, testatamentary, intestate.
 Exception: accion pauliana
o If there are creditors and the decedent does not have enough
property to pay the creditors, the creditors can compel the heir
to accept to the extent of the credit
 What is the difference in form?
o Laxer rules in acceptance, and stricter rules in renouncement,
because it is prejudicial
 There is need for judicial approval for renouncement
of incapacitated person. For acceptance, no need.
o Acceptance – there can be express acceptance in writing, oral,
or there can be tacit acceptance (by doing nothing).
o Renouncement – you have to do it in writing or by judicial
approval.
Partition
 What is the effect upon death of the decedent?
o The immediate effect of death is the vesting of successional
rights. But at this point, nobody knows what part of the estate
goes to whom.
o The heirs co-own the mass of properties.
 You have to collate:
o 1. Inventory
 What results are his gross assets
o 2. Deduct debts
 This is where the Santibanez and Hemady doctrines
come in. The estate, after all pays money debts, prior
to the heirs receiving their shares.
 What results: available assets
o 3. Add the value of donations inter vivos
 Net hereditary estate results.
 What if the recipients of the donations are the
compulsory heirs?
 You impute against their legitimes what they
have received as donations inter vivos.
 What if the recipients of the donations are
strangers?
 You impute it against the free portion.
 What if the donation to the compulsory heir
exceeds his legitime?
 The excess is taken out of the free portion
 What if the free portion can accommodate all
those donations?
 You take it all out from there
 Does collation mean you have to physically obtain the assets?
o No. Collating means a purely mathematical computation.
 If he died with a will and the free portion cannot accommodate all
the dispositions?
 o Reduce testamentary dispositions
o First to be reduced are the non preferred testamentary
dispositions
 After reducing them to zero, what if the legitimes are still
impaired?
o Reduce the donations to strangers or donations to compulsory
heirs considered strangers
o How do you reduce?
 NOT pro rata but in reverse order. The latest
donation gets reduced first.
 Afterwards, the heirs can agree on a partition or go to settlement
proceedings. Partition here is the physical division of the estate.
OBLIGATIONS
Trends in Obligations and Contracts:
 1. Obligations have been progressively spiritualized
o There is very little requirement as to form. Upon meeting of
the minds, in general, there is a K.
 2. The principle of autonomy of will, which is still the general rule in K
law, has been restricted.
o There are prohibited obligations from being entered into
o Art. 1306 – Contracting parties may establish clauses and
terms as they may deem convenient
 Provided they are not contrary to law, morals, public
order, good customs, or public policy
 There are five categories of restrictions. They restrict
freedom but promote the greater good.
 Ex. labor contract with consideration less than the
minimum wage.
 Ex. Those that violate environmental considerations,
social justice, gender issues, etc.
 3. Mitigation of the principle that the debtor must answer with all his
property
o Before: you enter into a K and the creditor can pursue all your
properties to exact fulfillment of the obligation
o Now: In the interest of social justice, there are many things that
the creditor cannot levy upon, although the principle is still
good – the creditor csan pursue the property of the debtor to
exact fulfillment of the obligation
o In the Rules of Court, there is a list of properties exempt from
attachment, for instance:
 1. The Family Home
 2. What you receive from support
 Etc.
 4. Weakening of the principle that liability results from responsibility
o In general, under the law, you are only liable if you are
responsible. Ex. if you are guilty of driving recklessly.
o Ex. employer can be responsible for employee’s wages if not
paid
 5. Unity in modern legislation
o This is especially important in global commerce
o Ex. Bills of Lading, Trust Receipts, Intellectual Property, etc.
Essential requisites of obligations
 What are the requisites of obligations?
o Four generally accepted requisites:
o 1. Active subject
 A.K.A. Creditor (to give) or obligee (to do)
 Has right to demand that the obligation be performed
o 2. Passive subject
 A.K.A. Debtor or obligor
 Has to perform the obligation (reciprocal obligations)
 Note: In a sale of a thing, both parties are
debtors and creditors of each other, with
correlative obligations (as to the thing; and
as to the money)
o 3. Object
o 4. Vinculum juris
 For both the active and passive subject, what is required?
o They must be determined or determinable.
 What are the types of determined/determinable subjects?
o 1. Obligations where subjects are completely and absolutely
determined at the birth of the obligation
 Most common type
o 2. One of the parties is determined, but one is determinable
with a previously-established criterion
 Ex. Negotiable instrument: “I promise to pay X or
order the amount of P5000, on November 15, 2011.”
One of the parties (i.e., me) is determined. The other
is determinable, because X can negotiate it. The
instrument lays down the criterion.
o 3. Subject/s is/are determined in accordance with their relation
to a thing. (Real contracts)
 The subject/s may change at the thing passes from
one person to another.
 Ex. X borrowed 3M from Y, and placed his house and
lot as security. There is a K of loan and a K of
mortgage, which is registered. X sold his house and
lot to Z, who registered the property in her name. The
 mortgage in favor of Y is still annotated. X doesn’t
pay by the due date. Y sought to foreclose the
mortgage, and Z cannot deny the mortgage, because
Z is the mortgagor now.
 What is the object of the obligation?
o It’s the prestation. It consists of conduct or an activity to be
performed by the debtor or obligor.
o It’s not the physical thing to be delivered in an obligation to
give. That is merely the object of the prestation.
o Ex. Y has to deliver a car to X on Feb 15, 2011. The object of
the obligation of sale is the act of delivering to X the ownership
the car (tradition). The car is the object of the prestation.
o This distinction is, not, however always observed even by the
NCC.
o What are the requisites for the prestation?
 1. Licit
 Cannot enter into contract of sale for shabu,
because the object of the prestation is illicit.
 2. Possible
 Cannot deliver Mount Apo
 3. Determinate or determinable
 Cannot enter into a K with no defined
prestation
 4. With pecuniary value
 What is the vinculum juris?
o The compulsive element; the obligatory element in an
obligation. It makes an obligation an obligation.
o This is why an obligation dependent solely on one’s will is void.
o Ex. X tells Y, “I will sell my car to you when I feel like it.” Here,
there is no obligatory force.
 Yu v. Asuncion: Enumerated requisites of an obligation.
o 1. Vinculum juris, “the efficient cause of the obligation”
o 2. The object (prestation/conduct to be observed)
o 3. Subject persons, the active and passive subject
 Combined #s 1 and 2 into one.
 What is the fifth element, according to Castan?
o The causa. It is the “why” of the contract.
o Ex. Why is Y bound to deliver the car to X? Because X will
deliver P400000 to Y. Why is X bound to give P400000 to X?
Because Y will deliver the car to X.
o What is the causa for a gratuitous contract?
 Liberality.
o What is the causa for a quasi-delict?
 Causing an injury to the other.
 What is the sixth requisite?
o The form. But it does not refer to a specific form, like putting it
in writing. It refers to the outward or external manifestation of
the obligation.
Sources of obligations
 Art 1157 – Obligations arise from:
o 1. Law
o 2. Contracts
o 3. Quasi-contracts
o 4. Crimes
o 5. Quasi-delicts
 Arts. 1158-62 regulate these five sources
 Is this list exclusive?
o Sagrada Orden v. NACOCO: The Japanese during the war
seized the Sagrada Orden’s property during the war. Upon
liberation, the US seized enemy property, which included
Sagrada’s property. The US entered into a custodianship
agreement with NACOCO. Sagrada Orden wanted to collect
rentals from NACOCO. Issue: is there an obligation to pay
rentals to Sagrada? HELD: No obligation to pay rentals. The
court, to arrive at this answer, the court looked at the five
sources of obligations – there was no contract, quasi-delict, no
provision of law that requires payment of rental, crime, or
quasi-contract. The implication the court forwarded is that this
is a closed list.
 But is it, really? Or should it, really?
o Many commentators believe it is not exclusive.
 What are the other obligations?
o Public offer is a sixth source of obligation, for instance
(auslobung in the German code – or the unaccepted offer). A
 person who by public notice advertises an award in exchange
for a particular result is bound to grant this award.
 Ex. Proctor and Gamble announces on TV: “For 30
wrappers of Tide, you get a glass imported from
Switzerland. Offer good until Feb 28, 2011 only!” X
saw this advertisement, and on Feb 27, 2011,
presents 30 wrappers to the P&G office. Issue: is
there an obligation here? Held: yes. There is a public
offer here.
 Ex. X left his important papers inside a cab. X
advertised that whoever returns his papers will get a
P20000 reward. – There is a public offer here.
 Some commentators say there are only two sources: law and contract.
Some say: laws and acts of persons (whether voluntary or involuntary).
 What is the nature of a contract as a source of obligation?
o What the contracting parties establish has the force of law
between them, and must be complied with in GF. They are
free to enter into any contract, provided the stipulations do not
violate Art. 1306. In general, there is no specific form needed.
o How must compliance be done?
 1. It must be complied with according to its terms (ius
civile – pacta sunt servanda)
 2. And according to good faith (ius gentium – bona
fide).
 What is the general rule for obligations arising from delicts
(crimes)?
o If you commit a crime, you are liable both criminally and civilly,
except if there is no private offended party.
 Distinguish a quasi-delict form a contractual obligation:
o Quasi-delict only arises when there is a violation. The breach
itself gives rise to the obligation.
o In contractual obligations, the obligation precedes breach and
is not dependent on one in order to exist.
 Are quasi-delicts and contracts mutually exclusive?
o No.
o They can co-exist separately.
 Ex. a bus and car collided, and a bus passenger
suffered injuries. The car’s driver was a minor and
incompetent driver. The passenger sued them all.
The liability of the owner of the bus and bus driver
rests on contract. The father’s responsibility for his
child’s act is based on quasi-delict.
o They can also overlap.
 Ex. A bus driver drives recklessly and the bus hits a
tree. A passenger is injured and sues. The bus
driver is liable based on quasi-delict or crime (criminal
negligence). The bus company is liable based on
contract of carriage or quasi-delict (negligence is
selection and supervision of driver).
 You are driving a car. Your car gets into an accident with a bus.
Who do you sue? What are your options?
o 1. Bus driver
o 2. Bus company
o 3. Sue both – because they’re joint tortfeasors, and thus
solidarily liable
 Do you have to prove negligence when you sue under quasi-
delict?
o Yes, you have to prove negligence of the bus driver. It is not
presumed.
 Do you also have to prove the negligence of the bus company?
o Yes, in the selection and supervision of the bus driver. (Culpa
in eligiendo, culpa in vigilando)
o This is a rebuttable/disputable presumption.
 As opposed to conclusive and quasi-conclusive
presumptions
 In a situation where damage or injury is caused to a party, and
there is a contract between him and the person who caused the
damage, there is no question he can sue under contract. But can
he also sue under quasi-delict?
o There is an old line of SC decisions in this country which says
that you cannot sue under quasi-delict if there is a contract.
There is some basis for this, because Art. 2176 says that the
act or omission must occur “when there is no pre-existing
contractual relation between the parties.”
o There is, however, the theory of concentric circles (the smaller
circle of contract is always within the bigger circle of quasi-
delict). So if you sue under quasi-delict, you are disregarding
the contract between the parties. This is valid.
 o You can sue under quasi-delict if it is the tort breaches the o A sold B a mango orchard to be
contract. If an act that constitutes breach of contract would in delivered Jan 1. A did not deliver
itself constitute the source of a quasi-delictual liability had there on Jan 1, and instead sold fruits
been no contract, then there is breach of contract through tort. to C, a buyer in GF. B sued for
o So you can choose to sue under quasi-delict or contract. specific performance and won.
 Theory of vicarious liability: Can B recover the fruits?
o If you sue under quasi-delict and you choose to sue the  As against A, yes.
company and not the employee, you are really suing under Art.  But as against C, no
2180. because B’s right is merely
o This is actually a wrong term because vicarious means you are personal, not real. He can
answering for the liability of someone else. sue A for the fruits’ value.
o But the theory under 2180 is that the company/employer itself  3. To deliver accessories
is negligent as well.  What are the creditor’s remedies for an obligation to give a
determinate thing?
Nature and effect of obligations o 1. Specific performance
o 2. Equivalent performance – damages
 What are the kinds of prestations?  Either exclusively or in addition to specific
o 1. To give performance
 To give a determinate thing  Rules on improvement, deterioration, and loss
 To give a generic thing o When do these rules apply – requisites?
o 2. To do  1. Obligation has suspensive condition (1189),
o 3. To not do resolutory condition (1190), or a term (1194)
 What is the primary obligation in giving a determinate thing? The  2. Obligor is obligated to deliver a determinate thing
accessory obligations?  3. There is improvement, loss, or deterioration before
o Primary obligations – give what must be given the fulfillment of the condition or arrival of the period
o Accessory obligations:  4. The condition is fulfilled or period arrives
 1. After constitution of obligation and before delivery: o What are the rules on loss?
take care of the thing with diligence of GFF  Without fault of debtor:
 Except when law or stipulation requires  Extinguish obligation
another standard  With fault of debtor:
 If the thing is damaged, debtor is liable for  Pay damages
damages o What are the rules on deterioration?
 2. Account and deliver to creditor the fruits of the thing  Without fault of debtor:
from the time of obligation to deliver  Creditor must accept the thing (bear loss)
 What is the nature of the right of the  With fault of debtor, either:
creditor?  1. Resolution and damages
o Before delivery, merely personal  2. Fulfill obligation and damages
o Upon delivery, real o What are the rules on improvement?
 Improved by time or nature:
  Creditor benefits
 Improved by debtor’s expense:
 Same rights as a usufructuary Irregularity in performance
o (579) he can remove improvements
 What are the types of irregularity of performance?
if no damage is caused to the
property o I. Culpable (1170)
o (580) he may set-off the  1. Malice (fraud)
improvements he made against any  2. Negligence
damage to the same  3. Delay
o II. Non-culpable
 What are the creditors’ remedies if the obligation is to give a
 Fortuitous event/force majeure
generic thing?
o 1. Specific performance  MALICE (FRAUD):
o 2. Substitute performance o Responsibility arising from fraud is demandable in all
 Done by someone else at the debtor’s expense obligations. Any waiver of an action for future fraud is void.
o What about waiver of malice already committed?
o 3. Equivalent performance
 Damages, by itself  This can be waived.
o What is another word for “fraud”?
 Damages in addition to #1 and #2
 Malice (This means it is intentional or deliberate
 What are the creditors’ remedies if the obligation is to do?
evasion of the normal fulfillment of an obligation.)
o Something only the obligor can do (personal):
o Differentiate this from the other kind of fraud mentioned in
 Equivalent performance (damages)
Obligations and Contracts (1338).
o Anyone else can do it:
 Deceit. This refers to vitiation of consent by a party
 1. Substitute performance
(through insidious words or machinations without
 2. Equivalent performance
which the other party would not be induced to enter
 What are the creditor’s remedies if the obligation is not to do?
into the contract).
o 1. Substitute performance
o Is there a difference in effect?
o 2. Equivalent performance
 Yes.
 Exclusive or in addition
 Deceit makes the obligation annullable, because it
SPECIFIC EQUIVALENT SUBSTITUTE preceded the obligation.
PERFORMANCE PERFORMANCE PERFORMANCE  Malice only succeeds the obligation. The creditor
To give may insist on performance (specific or substitute),
Determinate Yes Yes No resolution, and in either case, damages.
thing o What are the effects of malice?
Determinable Yes Yes Yes  1. Creditor may insist on specific/substitute
thing performance, whichever applies
To do
 2. Resolution [for reciprocal obligations]
Very personal No Yes No
 3. Damages, either way
Not very No Yes Yes
personal  NEGLIGENCE:
Not to do No Yes Yes
 o Always refers to the omission of something that should be
there  required degree of diligence. This differs depending
on attendant circumstances.
o What are the kinds of negligence?
 Simple
 Gross/wanton – if it is so reckless, that it practically
amounts to malice, and is treated as such
o What is the default standard of diligence required?
 The fictional standard of a “good father of a family.”
(In common law, they refer to it as “diligence of a
prudent businessman.”)
o Is waiver of future negligence allowed?
 Accepted view: waiver of future gross negligence is
not allowed, because it’s tantamount to malice
 Waiver of future simple negligence is allowed
o Effects of negligence?
 1. Creditor may insist on specific/substitute
performance, whichever applies
 2. Resolution [for reciprocal obligations]
 3. Damages, either way
 DELAY/DEFAULT (MORA)
o What are the three kinds of mora?
 1. Solvendi
 Delay in performance
 This applies here, in this provision
 2. Accipiendi
 Delay of creditor in accepting performance.
 This applies in payment/performance
(particularly, consignation).
 3. Compensatio morae
 Reciprocal delay. (Taken alongside mora
solvendi)
o What is mora solvendi?
 Non-performance with respect to time, whereas
malice and negligence are with respect to quality.
o What are the requisites?
 1. Obligation is liquidated and demandable
 2. Debtor delays in the performance due to dolo or
culpa (thus, w/o justifiable reason)
 3. The creditor requires performance, judicially or
extra-judicially (demand)
 General rule: demand is required prior to
mora solvendi applying (this requirement is
called mora solvendi ex persona. If demand
is not required mora solvendi ex re).
 When is demand not required?
o 1. The obligation/law expressly so
declares.
 It is not enough that the
contract states specific
dates. Mere setting of
date is not enough. Need
to demand still.
o 2. Time is of the essence.
 Look at intent of the
parties and attendant
circumstances.
o 3. Demand is useless
o Can you have mora solvendi in negative obligations?
 You cannot have mora in negative obligations
o What are the effects of mora solvendi?
 Obligations to deliver a determinate thing: place the
risk on the debtor
 Liable for damages
 Basic remedy: performance or resolution
 The provision also mentions “contravene the tenor of the
obligation.” What is this?
o Just as all-around term that encapsulates all the culpable
violations. But actually nothing will get through the three
above.
 What is compensatio morae?
o If both sides are in delay, these cancel out.
o But when one party complies or is ready to comply with his
obligation, delay by the other begins
 FORCE MAJEURE
o What are the requisites of casa fortuito?
 1. The cause was unforeseen and unexpected and
was independent of human will
  2. Impossible to foresee, or if foreseen, impossible to
avoid
 3. Impossible for the debtor to fulfill his obligation in
the normal manner
 4. Obligor must be free from participation in the
aggravation of the injury to the creditor
o If any of the four is not present, there is no fortuitous event
o If there is a fortuitous event, what is the effect?
 As a general rule, the debtor is free from liability
 What are the exceptions?
 1. If the parties agree
 2. If the law so declares (ex. in delay)
 3. Nature of the obligation requires
assumption of risk
o Ex. insurance
Other provisions
 What are the presumptions re: interest and debt?
o 1. If principal has been received without reservation re: interest
– presume the interest has been paid
o 2. If later installment has been received without reservation re:
prior installments – presume the prior installments have been
paid
o N.B. these are rebuttable presumptions
 What are the fourt types by which creditors can satisfy their
claims?
o 1. Levy and execution on debtor’s non-exempt property
o 2. Accion subrogatoria
 Creditor sues on behalf of his debtor, against his
debtor’s debtor
 Requisites?
 1. Creditor has credit against the debtor
 2. Credit is due and demandable
 3. Failure of debtor to collect his own credit
from a third person (through malice or
negligence)
 4. Insufficiency of assets of debtor to satisfy
creditor’s credit
 5. Right is not intuit personae
o 3. Accion pauliana
 Right of creditors to rescind alienations by their
debtors to defraud them
 Requisites?
 1. There is credit in favor of plaintiff
 2. Debtor performed an act subsequent to
the contract giving advantage to other
persons
 3. Creditor is prejudiced by the debtor’s act
 4. Creditor has no other legal remedy
 5. Debtor’s acts are fraudulent
o 4. Accion directa
 Direct action by the creditor against his debtor’s
debtor – the creditor acts in his own name
 Exception to relativity of contracts
 Give examples:
 1. Lessor against sublessee (skip lessee)
 2. Laborer against principal (skip
independent contractor)
 3. Principal against subagent (skip agent)
 4. Vendor-a-retro against transferee of
vendee (skip vendee)
Types of obligations
 Classes of obligations?
o Pure
o Conditional
 Happening gives birth/death to the obligation
o With a term
 Happening makes it demandable
 What is a potestative condition?
o Something that depends solely on one of the parties
 What is casual?
o Depends solely on chance or a third party’s will.
 What condition will make obligation void?
o Suspensive, potestative, and is dependent on the sole will of
the debtor  the obligation is void.
 o Ex. “I will sell you my car when I feel like it.”
o Because there is no juridical tie here.
 What if it’s a suspensive, potestative condition dependent on the
sole will of the creditor?
o Ex. “I will sell you my car when you feel like it.”
o It’s VALID. In fact, it becomes pure.
 Obligation that depends on an impossible or illegal suspensive condition
o What is contemplated by this provision, original or
supervening impossibility?
 ORIGINAL impossibility.
 The supervening impossibility does not annul the
obligation; it just extinguishes it.
o A positive obligation to do an impossible thing:
 Both the condition and obligation are void.
o Negative obligation not to do an impossible thing:
 Condition is disregarded. The obligation is valid.
 Ex. X sells Y his house and lot on condition that Y
does not transfer the house and lot to California.
o Negative condition not to do an illegal thing:
 Both the condition and obligation are valid.
 Ex. X sells Y his house and lot on condition that Y
does not turn the house into a shabu den.
 Obligations with supensive conditions:
o That X will happen by a certain time –
 Extinguished when time passes
 Or indubitable that it will happen
o That X will not happen by a certain time –
 Extinguished when time passes
 Or indubitable that it will not happen
 What are the requisites of constructive compliance/fulfillment?
o 1. Intent of the obligor to prevent fulfillment of the obligation
o 2. Actual prevention
o What is the effect?
 The condition is deemed complied with.
o To which does constructive compliance apply?
 Only to potestative conditions or mixed conditions
with potestative conditions.
 Ex. X sells Y a lot, if Y builds a road from the lot to the
highway. The only road Y can build must go through
X’s property, but X refuses to allow.
 X sells Y a piece of land in year 2000, subject to the condition that
Y pass the Bar examinations. Y passes the Bar in 2005. What is
the effect?
o The condition is deemed to have arisen in year 2000.
o But not fruits.
 X sold the land to Z in 2001, when the condition had
not yet happened. Y sold the land to W in 2002. Y’s
sale wins out because the sale of X to Y retroacted to
2000.
o What is the right of the creditor in the mean time?
 The creditor can take any action that protects his
rights.
 Ex. He can put an adverse annotation on the title.
 When can the debtor recover due to payment by mistake?
o 1. Performance by mistake
o 2. Action for recovery is brought before condition happened or
it’s apparent the condition will not happen
 What are the rules re: deterioration and improvement and loss
before the happening of the suspensive condition?
o 1. Fortuitous loss – obligation is extinguished
o 2. Culpable loss – debtor liable for damages
o 3. Fortuitous deterioration – borne by creditor
o 4. Culpable deterioration – creditor chooses:
 A) rescission with damages
 B) fulfillment with damages
o 5. Fortuitous improvement – benefit to the creditor
o 6. Intentional improvement – governed by Art. 579 of the
usufruct
 Can take it out if it does not lead to damage
 If it would cause damage, no compensation
 Rule on fruits:
o Those produced from the constitution of the obligation to the
happening of the condition: not covered by the rule on
retroactivity
 Resolution in 1191 – what is the effect?
o Mutual restitution. They are returned to status quo ante.
 1191 –
o Compare rescission and resolution:
 Resolution – primary remedy
 Rescission – subsidiary
 There must be no other remedy
 It has to be a last recourse
o Compare the basis:
 Resolution – non-fulfillment of obligation
 Rescission – based on economic prejudice (lesion)
o Resolution can be extrajudicial or judicial. Either is valid, but
extrajudicial resolution is always subject to court checks and
balance, so it’s at the risk of the party who resolution.
o Is an express provision allowing extra-judicial resolution
mandatory?
 No. Parties can resolve even without an express
provision allowing so.
 Outline of 1191 (resolution):
o 1. Only applies to reciprocal obligations
 Elements:
 1. 2 prestations arising from same source
 2. Each prestation designed to be the
counterpart or equivalent of the other
 Ex. Contract of sale
o 2. There is a tacit resolutory condition: breach
o 3. The party seeking to rescind must be ready to comply with
the obligation, otherwise he is in BF
o 4. The injured party can elect resolution even without court
action
o 5. Effect: mutual restitution –
 What if the other party does not want to return
what you have given him, after resolution?
 Go to the court to recover. The action is not
for resolution, but recovery, because
resolution does not need court action.
 Obligations with a term/period – what is the difference from a
condition?
o Term is certain, condition is uncertain. They are alike in the
sense that they’re both future.
o Only demandable when the day arrives.
 In case of loss, deterioration, or improvement before the day
certain, what do you follow?
o Follow the same rules as in suspensive conditions.
 Anything paid before the day arrives
o If made consciously, what is the implication?
 Nothing can be recovered, because the term was
effectively waived.
o What if it was made out of mistake?
 Old code: only fruits and interests can be recovered
 Now: The thing and the fruits and interests can be
recovered.
 Who is entitled to the fruits received from the constitution of the
obligation until the arrival of the term?
o One view: fruits belong to the debtor
o Other view: fruits belong to the creditor, even if they should not
be delivered ‘til the term arrives
o RFB’s view: The debtor keeps the fruits in the interim.
 What are the instances when the fruits cannot be recovered
notwithstanding premature delivery?
o 1. When the obligation is reciprocal and there is pre-payment
on both sides (so both things are fruit producing)
o 2. The obligation is a loan where the debtor is bound to pay
interest
o 3. When the period is exclusively for the benefit of the creditor
o 4. When the debtor, aware that the period has not yet arrived,
pays anyway
 When is a term for the benefit of the debtor? For the creditor?
o Presumption: a term is beneficial for both
o What is the consequence of this?
 The creditor cannot demand, and the debtor cannot
insist on pre-payment
o If it is for the benefit of the debtor:
 “I promise to pay you on or before March 2011” – this
is for the benefit of the debtor.
 This is an example of a term benefit for the debtor
 When can the court fix the duration of the period?
o 1. If it does not fix a period but a term is assumed to have
been intended
o 2. If the period entirely depends upon the will of the debtor
 o Two requisites for the application of this article?
 1. Parties did not fix the period but from the nature of
the circumstances, it can be inferred that the period
was intended by them
 OR there was a period, but it was made
dependent on the will of the debtor
 2. The court must decide what period the parties
probably intended. The court cannot decide for itself,
it must infer the parties’ intent
o Action for 1197 can only be for the fixing of the period. It
cannot be for fixing of the period and specific performance at
the same time, because the period is presumed not to have
arrived yet.
o Exception: if a separate action for performance would be only
dilatory (i.e. whatever the period was, it already has passed)
 When can the court fix the period for an obligation?
o 1. 1197, par. 1 (above)
 Exceptions:
 A. 1682, 1687 – these are leases payable
monthly or yearly; these terminate at the end
of the month/year (the K fixed the period)
 B. Pacto de retro under 1606 – the law fixes
the period of redemption for four years
 C. Contracts of service for indefinite period
(involuntary servitude)
o 2. 1197, par. 2 (above)
o 3. 1191, par. 3
 This is resolution – instead of decreeing the
resolution, the court decides to fix a period instead
o 4. 1687
 Contracts of lease falling under the 2nd-4th sentences
o 5. 1180
 If the debtor binds himself to pay when his means
allow him to do so
 Deemed to be one with a term
 Supposing the court fixes a period, can the parties agree to extend
it further?
o Yes, it is contractual freedom. It is a novation – there has to be
an agreement between the parties, however.
 When does the debtor lose right to avail of the period? – these
obligations become pure
o 1. After the obligation have been contracted, he becomes
insolvent, unless he gives security/guarantee for the debt
 This is not limited to judicial insolvency
o 2. He does not furnish to the creditor the guarantees/securities
promised
o 3. By his own acts, he impaired said guarantees/securities, and
by fortuitous event, they are lost. UNLESS he replaces them
with securities just as good.
o 4. He violates undertaking in consideration of which the
creditor agreed to a period.
o 5. He attempts to abscond.
o 6. Article 2109 – Creditor is deceived as to the substance or
quality of the thing
 Classification according to number of prestations.
o Conjunctions – 2 or more prestations, all of which must be
performed. No special rules apply here.
o Alternative – 1199-1205
o Facultative – 1206
 What is an alternative obligation?
o Two or more obligations are agreed upon but one, some, or
not all have to be performed.
o Who has the choice?
 Depending on whom the parties name as having to
make that choice.
 If there is no choice, the debtor chooses.
o How must a choice be made?
 Any form – writing, oral, or implied/passive
o Why must a choice be communicated?
 If it depends on the creditor, duh, because the debtor
is not a mind reader.
 Ong: But even if it depends on the debtor, it gives the
creditor the chance to consent to or impugn the
choice. RFB does not agree with this, because the
creditor has no right to impugn because the debtor is
acting within his right.
 What is the real reason?
  1. To give the creditor the chance to prepare
for acceptance.
 2. Because once the choice is
communicated, it is irrevocable – and the
obligation ceases to be alternative
 Implications when debtor has right of choice?
o 1. Limitation of choice
 What if there is one choice left due to the
fortuitous event?
 The debtor has no choice but to perform it
 What if is limitation of choice left due to the
creditor’s acts?
 Right to resolution, with damages.
o 2. Own fault
 If all of the things are lost due to the debtor’s
fault?
 Creditor entitled to damages
 If some of the things are lost due to the debtor’s
fault?
 Can perform what remains
o 3. All lost
 If all are lost due to fortuitous event?
 Obligation is extinguished
 If all but one are lost due to fortuitous event, and
the last one lost due to debtor’s fault?
 Creditor can demand damages.
 If all but one are lost due to debtor’s fault, and the
last one lost due to fortuitous event?
 Obligation is extinguished
 Implications when creditor has right of choice?
o 1. Some lost
 If some lost due to fortuitous event?
 Perform what remains
 If some are lost due to debtor’s fault?
 Creditor can ask for performance of any of
them or value of one of them + damages
 If some are lost due to creditor’s fault?
 Creditor can choose from remainder
o 2. All lost
 If all are lost due to debtor’s fault?
 Creditor can choose value of any of them +
damages
 If all lost due to fortuitous event?
 Obligation extinguished
 If all lost due to creditor’s fault?
 Obligation extinguished
 What is a facultative obligation?
o There is only one obligation agreed upon, but the debtor has
the right to substitution.
o What is the difference from alternative obligation?
 If one or some of the obligations are impossible or
illegal, then there can still be performance of the
others.
 In facultative, if the principal obligation is impossible
or illegal, then the obligation is extinguished
o Who has the right to substitution?
 Always the debtor.
o What if through the debtor’s fault, the principal prestation
is lost? Can you compel him to perform the substitute
obligation?
 No. You cannot compel substitution – it always
belongs to the debtor as a choice. But you can ask
for damages.
o What if the substitute prestation is lost due to the debtor’s
fault, and then before the due date, the main prestation is
lost due to fortuitous event?
 You cannot, unless there is abuse of right. Because
even if the substitute prestation has not been lost,
loss of the main prostation due to fortuitous event will
extinguish the obligation anyway.
 What is a joint obligation? (or mancomunada or pro rata)
o The debtors are liable only for a proportionate part of the debt
o Or the creditors are entitled only for a proportionate part of the
debt
 What is a solitary obligation? (or joint and several, in solidum, or
solidaria)
 o Debtors can be held liable for the entire part of the debt
o Or the creditors can demand the entire part of the debt
o What does “individually and jointly” mean?
 Solidary
o Where there are several debtors and the obligation
mentions a singular (“I” or “notice to me”) and then
signed by several people, what does this mean?
 Solidary
 What is the essential nature of jointness?
o Active joint (many creditors, one debtor) – You have as many
obligations as creditors multiplied by debtors
o Passive joint (many debtors, one creditor)
o Mixed joint (many debtors, many creditors)
 What is the essential nature of solidarity?
o Active – There is mutual agency, up to a certain point (because
if there are multiple creditors, and one collects, he must deliver
what is not his. So it’s not complete agency because he keeps
some for himself)
o Passive – There is mutual guarantee among the multiple
debtors, as to the single creditor
o Mixed solidary –
 What is the presumption?
o In favor of joint obligations.
 When is there soldarity?
o 1. When the law so states (ex. joint tortfeasors)
o 2. When parties stipulate
o 3. When the nature of the obligation demands solidarity
 What is the effect of demand by any of the solidary creditors?
o The debtor may pay any of the creditors, but if any demand,
judicial or extrajudicial, is made on him, he must pay only the
one demanding payment
o What is the problem here?
 If one of the creditors demands, but fails to follow up
on it, the rest cannot demand anymore. The debtor
will get off scot-free.
o What if the debtor paid the wrong creditor (non-demanding
creditor)? Can the demanding creditor still demand?
 He can only recover the amount the whole obligation
minus the share of the creditor whom he paid. In
effect, the debtor pays a little less than twice the
amount
o Commentary: if the debtor paid the share of the wrong creditor,
this is fine. The demanding creditor can still recover the whole
amount minus the share of the creditor whom he had paid.
o What if there are multiple creditors (A B C) and debtors (X
Y Z), and A demanded Z. Can B demand X?
 Yes, and X can pay B. A’s demand on Z is moot and
academic.
 What is the conflict between 1212 and 1215?
o According to 1212, in the case of active solidarity, the solidary
creditors can do what is beneficial but not prejudicial
o Whereas in 1215, the creditor can perform acts like remission,
novation, compensation, or confusion and this extinguishes the
debt
o Ex. (A B and C) are soldiary creditors, X is the debtor. Can
B remit X’s debt?
 1212 disallows this because B’s remission is
prejudicial to A and C.
 1215 seems to allow it.
o How do you reconcile these?
 The remission was a true remission. The debt is
extinguished. But B will be liable for A and C for their
shares.
 A remits one of the solidary debtor’s shares.
o Can A go against one of the other debtors for the
remaining amount?
 Yes.
o Can A go against the debtor whose share he remitted for
the remaining amount?
 Yes, because that debtor can recover form the rest
anyway.
o One of the other solidary debtors becomes insolvent. Will
the debtor whose share was remitted share in covering for
the insolvent debtor’s share?
 Yes. The remission only extended to that debtor’s
original shares, and not to that insolvent debtor’s
shares which has to be covered for now.
 What defenses are available to a solidary co-debtor?
 o 1. From nature of obligation
o 2. Personal to him
o 3. Personal to a co-debtor
 What is the effect of each of these defenses?
o Nature of the obligation – total defense (ex. the obligation is
void because the prestation is illegal)
o Person to him – partial (ex. there is a special term or condition
as to him)
o Person as to a co-debtor – partial (ex. when the co-debtor
entered into the obligation, he was insane)
 What is a divisible obligation?
o One susceptible of partial performance
o It does not follow that because the object of the prestation is
divisible that the obligation is also divisible
 What is the general rule?
o Obligations are indivisible, as a general rule because the law
says so
 When are obligations divisible?
o 1. Parties provide so
o 2. Nature of the obligation necessarily entails performance in
parts (Ex. 1225, par. 2 – first clause)
o 3. The law provides otherwise
 See these in “payment or performance” under the
topic of indivisibility of payment
 Obligations with a penal clause:
o This is especially common in construction projects
o Sometimes there is an incentive too
o What is the nature of the punishment?
 Civil punishment. Usually a penalty or a fine.
o Purposes?
 1. To provide for liquidated damages, saving him the
trouble of having to prove damages
 2. To strengthen the coercive force of the obligation
o What is the safeguard?
 The courts can reduce it if unconscionable
o Characteristics?
 1. Subsidiary
 Only upon non-performance can the penalty
be demanded, nothing else
 Debtor cannot save himself from performing
the obligation by paying the clause
 Exception: cumulative, when both the
principal obligation and the penalty can be
demanded
 2. Exclusive
 It takes the place of liquidated damages.
 When are the cases when both the
penalty and actual damages can be
demanded?
o 1. Express stipulation
o 2. Debtor refuses to pay the penalty
o 3. Debtor is guilty of fraud in the
fulfillment of the obligation (fraud as
malice)
o Pamintuan: There was an obligation with a penalty clause.
It called for liquidated damages or penalty in the form of
100K. There was fraud in the fulfillment of the obligation.
The aggrieved party was able to prove actual damages in
the amount of 190K. HELD: Since the amount of actual
damages is bigger (190K), it absorbs the 100K. So if greater, it
absorbs the penalty. BUT this is wrong.
o Country Bankers: interpreted the rule corrected. The
aggrieved party can collect BOTH, without absorption.
Extinguishment of obligations
 What are enumerated?
o 1. Payment
o 2. Loss
o 3. Condonation/remission
o 4. Confusion/merger
o 5. Compensation/set-off
o 6. Novation
 Is this an exclusive enumeration?
o It’s not.
 What else are there?
 o 1. Death, for certain obligations (purely personal)  What does identity mean?
o 2. Renunciation by the creditor o The very thing itself must be done or delivered
o 3. Compromise o If it’s a specific thing?
o 4. Arrival of resolutory term  Cannot compel the creditor to receive the same thing,
o 5. Mutual desistance/dissent even if it’s the same value
 Ex. Landlord and lessee agree to cut short the lease  Cathay Pacific: Business class has been fully
o 6. Unilateral withdrawal booked, so X was being upgraded to first class, but X
 Ex. partnership refused. Cathay bumped them off. X sued for
o 7. Change of civil status damages. HELD: Won, because you can demand the
o 8. Rebus sic stantibus very thing to be done or delivered – even if the
o 9. [spaced out] alternative was superior.
o 10. Judicial insolvency o If it’s a generic obligation?
 Cannot demand what is superior and cannot be given
PAYMENT what is inferior.
 What is the special rule on money debts?
 Payment or performance: (1232-1251)
o Made in the currency stipulated
o This is the “normal” way of extinguishing an obligation o If not possible, whatever is legal tender in the Philippines
o Distinguish payment from performance.
o There was a time when you cannot stipulate currency other
 Payment is the proper term for obligations to give than peso, but now you can.
 Performance is the proper term for obligations to do
 What about payment in negotiable paper?
o Outline this provision:
o General rule: payment of money debt must be in legal tender
 I. As to prestation
o Seneris: Manager’s check  same as legal tender
 Identity  Corrected in subsequent cases which said that
 Integrity manager’s, cashier’s, or certified check is not legal
 Indivisibility tender and can be rejected by the creditor
 II. As to parties o BUT the creditor can accept, and if he does, this payment is
 Payer only provisional.
 Payee o X issued a check to Y or order. Y endorsed it to Z. Z lets it go
 III. As to time/place stale and he goes to the depositary bank and gets refused.
o Special forms of payment: This is the case where due to the creditor’s fault, there was
 A. Dacion en pago prejudice.
 B. Imputacion  Namarco: Impairment has to be by someone else,
 C. Cession because if it was Y who impaired, X can just issue
 D. Consignation again.
 Requisites of payment?  Rule on inflation or deflation?
o For the prestation: o It must be extraordinary – there must be a declaration from the
 1. Identity Bangko Sentral.
 2. Integrity  What are the exceptions to the requirement of identity?
 3. Indivisibility o 1. Dacion en pago
 o 2. Novation
 What does integrity mean?
o One must deliver the whole prestation
o Exceptions to integrity?
 1. Substantial performance in good faith
 2. Waiver by the debtor/obligee
 3. Application of payments/imputacion (several debts
are equally onerous)
 What does indivisibility mean?
o Performance must be in one act
o Exceptions to indivisibility?
 1. Waiver/agreement between the parties
 2. Prestations that necessarily entail partial
performance
 3. Cases when the law itself provides for divisibility:
 A. Debt is liquidated in part and unliquidated
in part (1248)
 B. Joint divisible obligation (you have as
many obligations as creditors divided by
debtors)
 C. Solidary obligation where the debtors are
bound under different terms and conditions
 D. Compensation, where there is a balance
left
 E. Work is to be delivered partially
 F. Where there are several guarantors that
demand division (2065)
 G. Impossibility or difficulty of single
performance
o This is an equity measure
 The payor (1236-8) –
o Who can the payor be (and the payee cannot refuse)?
 The debtor/obligor himself
 Debtor’s heir or assignee
 Debtor’s agent (provided there is proof of agency)
 Anyone interested in the fulfillment of the obligation
(ex. guarantor)
o Who can the payor be with the payee’s consent?
 Anyone.
o What is effect of payment by a third person, if accepted?
 If it is done with the debtor’s consent, then there is
subrogation. The one who pays becomes the creditor
and he can go after the debtor.
 Exception: if the third person intended it as
a donation.
 What if it is without the debtor’s consent?
 Payment, but only to the extent of the
benefit.
 Ex. X has a debt to Y for P70K. Y reduced
the debt to P50K. Z did not know about this,
so Z paid Y P70K on X’s behalf. How much
can Z demand from X?
o Only P50K.
o [Beyond topic: Z can demand as
the P20K from Y as solution
indebiti]
 Who can you pay?
 1. Creditor/obligee
 2. His successor or transferee
 3. Agent
 4. Third person, as long as:
o It redounded to the creditor’s
benefit, and the payment is good
only to the extent of the benefit
o When is the benefit deemed to be
total?
 [Check the law]
 5. Anyone in possession of the credit
o Ex. NIL
 What if the debt has been garnished?
 The payment is no good, provided that the
notice of garnishment has been served on
the payee. This is because the funds are
held in escrow on behalf of another person.
 When is time/place of payment?
o Time – when it is due
  Generally, when there is judicial or extra-judicial
demand
 Except – the three exceptions on mora solvendi ex re
o Place –
 Primary rule: stipulated place
 Secondary rule: place where the thing was located
at the time of constitution of obligation (only if the
obligation is to deliver a determinate thing)
 Tertiary rule: (for instance, if it is a generic thing, or
an obligation to do) – debtor’s domicile
 1. Dacion en pago (dation in payment)
o Filinvest: The delivery and transmission of the ownership of a
thing by the debtor to the creditor as an accepted equivalent of
the performance of an obligation.
o Go: A special form of payment by virtue of which the debtor
offers another thing to the creditor who accepts it as the
equivalent of payment for an outstanding debt.
o Note: There is no requirement that it must be to satisfy a
money debt. It can be for some other obligation.
o What is the legal effect, as stated before?
 The debtor becomes the seller, the creditor becomes
the buyer, and the debt becomes the purchase price
 Since it is governed by the law of sales, there are
implications: warranty against eviction, etc.
 This has been criticized precisely because of this.
o What is the other point of view?
 Dacion en pago is a novation.
 This has also been criticized because in a novation,
the original obligation is extinguished and a new one
takes its place. Here, there is no new obligation that
takes the place of the old one.
o So what is it, really (Castan)?
 It’s a special form of payment.
 Because it departs from the rule on identity
o To what extent is the obligation extinguished?
 To the extent of the value of the thing given
 Unless the parties agree on total extinguishment –
generally the parties do
o What is the essential requirement?
 Both parties must consent
o What are the requisites of dacion en pago?
 1. Performance of a prestation in lieu of payment
 2. Some difference between the prestation due and
that which is given
 3. Agreement between the debtor and creditor that
the debt is extinguished by the performance of the
substitute prestation
 2. Imputacion (application of payment)
o What is it?
 Designation of debt which is being paid by the debtor
who has several debts of the same kind to the creditor
who is paid
o Give an example.
 X owes Y four debts: 10k, 20k, 30k, 40k. They are all
due. X remits 100k to Y. No need to apply the rules
on imputacion.
 X remits 90k to Y. In this case, this is less than what
he owes in total. How is the payment applied?
o What are needed?
 1. Debtor
 2. Creditor
 3. Several debts which are due
 4. Remittance of a payment which is less than the
total
o How do you apply the amount paid to the several debts?
 Primary rule – apply according to the agreement of
the parties (1)
 Next – the debtor may apply if there is no agreement,
subject to rules on indivisibility of performance (2)
 What if the debtor does not apply?
 The creditor may apply (3)
 What if neither the debtor nor creditor applies?
 Apply to the most onerous first. (4)
 Ex. interest-bearing debt > non-interest
bearing debt
 Ex. secure debt > non-secure debt
 Ex. debt with penal clause > without one
 What if there are equally onerous?
  Apply proportionally to all (5)
o What makes imputacion a special form of payment?
 It departs from the rule on indivisibility and integrity
 3. Payment by cession
o When does it apply?
 When there is one debtor and many creditors.
o What happens?
 The debtor turns over all his assets to the creditors,
allows them to sell the assets, and then the creditors
divide the proceeds proportionally
o Does cession require creditor’s acceptance?
 Yes.
o Does ownership over the thing pass to the creditors?
 No, they just receive authority to sell.
 As opposed to dacion en pago, where ownership
transfers.
o What is the extent of extinguishment of the debts?
 Only to the extent of the proceeds.
 Unless there is an agreement that the entire debt is
extinguished.
o Why is it a special form of payment?
 Departs from integrity and indivisibility
o Does this contemplate voluntary or legal cession?
 Voluntary. It is extra-judicial.
 It is legal if the debtor goes to court and applies for
public auction and receives an acquittal (under
Insolvency Law)
 4. Consignation
o N.B. “Tender of payment on consignation” is not the correct
term
o What is this?
 Act of depositing the thing due with the court or
judicial authorities whenever the creditor cannot
accept or refuses to accept payment
 It generally presupposes or requires prior tender of
payment
o Requisites?
 1. There must be a debt due
 2. Consignation was made due to some legal cause
 There was a prior tender which was unjustly
refused
 Or there exist circumstances that make a
prior tender unnecessary or impossible
 3. First notice of consignation given to interested
parties
 4. Actual deposit with court
 5. Second notice given after consignation
o What is a tender?
 Manifestation made by debtor of his desire/willingness
and ability to make immediate payment
o When is prior of tender dispensed with?
 1. Creditor is absent or unknown or does not appear
in place of payment
 2. Creditor incapacitated during time of payment
 3. When without just cause, he refuses to give a
receipt
 Odd: this still presupposes tender of
payment
 4. When two or more persons claim the same right to
collect
 5. Title of the obligation has been lost
o Why is consignation a special form of payment?
 Departs from requisite of parties
o What if it is a case of mora accipiendi, where the creditor
unjustifiably refuses payment?
 Go to court and consign it there. (The French and
German Codes just provide that the obligation is
extinguished. This is probably better and easier.)
LOSS/IMPOSSIBILITY (fortuitous event)
 When is it loss, when is it impossibility?
o Loss, if to give
o Impossibility, if to do
 What happens when loss occurs in an obligation to give a
determinate thing (1262)?
o The obligation is extinguished
 Does it apply to an obligation to give a generic thing? (1263)
 o No.
o Genus nunquam perit- the genus never perishes
 Except: if the thing is deemed contraband before
delivery, so the genus perished
o Ex. X had an obligation to deliver a sack of rice, and the stocks
perished. X just has to buy rice.
 What about a limited generic thing?
o The obligation can be extinguished.
o Ex. X entered into an agreement to sell Y one of his cars. If he
lost all of them in a fortuitous event, the obligation perishes.
 What about obligations to do? (1266)
o Released from the obligation is the prestation becomes
impossible.
 What do all of these presuppose?
o That when the obligation was entered into, the obligation was
possible. The loss or impossibility simply supervened.
o If the obligation was initially impossible, there is no obligation
to begin with.
 In a reciprocal obligation, one of the prestations is lost under
fortuitous event. Does it affect the other obligation? (Ex. X
promised to sell Y his Innova for P1M. Does Y still have the
obligation to give the money?)
o One view (Germanic view) – the entire obligation is
extinguished
 Res perit domino – the debtor in effect bears the
burden
o Other view (Romanic view) – Y still has to pay the money
 Res perit creditori – the creditor in effect bears the
burden
 Exceptions:
o 1504 – sales of goods: just look at the provisions
o 1655 – destruction of the thing lease
o 1717 – contract for a piece of work, where the contractor
furnishes the material
 What is another mode of extinguishment hidden in the folds of this
provision?
o Rebus sic stantibus – When the services become so difficult as
to be manifestly beyond the contemplation of the parties, the
obligor is excused
o Contracts which have stipulations on successive performances
(several prestations) or dependent on the future
o Must interpreted in accordance with the situation that existed
when the obligation was entered into
o Requisites?
 1. The event of change could not have been foreseen
at the time of the agreement
 2. Makes the performance extremely difficult, but not
impossible
 What if it makes it impossible?
o You can invoke impossibility of
performance
o You do not need to invoke rebus sic
stantibus
 3. The event was not due to the act of any of the
parties
 4. The K of the obligation was a future prestation
o To what kind of obligation does it apply?
 Only to do, but not to give
 But in the Philippines, it has evolved into including
even obligations to give, see Naga Telephone
 Because it just says “obligations” in general
CONDONATION/REMISSION
 What is this?
o Act of liberality wherein without receiving any equivalent, the
creditor renounces the debt
o Extinguishes the debt in whole or in part
 Requisites?
o 1. Debt existing at the time the remission is made
 No need for the debt to be due, as long as it exists
o 2. The remission or the waiver must be gratuitous
o 3. Acceptance by the debtor
o 4. Capacity between the parties to enter into a contract of
donation
 What is the form?
o If it is express remission, it must follow the rules on donations
as to form
 o If it is an implied remission, and thus not governed by any
form. (Here, the creditor just does not collect)
 In case there is a debt evidenced by a private document and then
later on, it is voluntarily surrendered by the creditor to the debtor,
what is the implication?
o The creditor is impliedly remitting the obligation
 Because he will lose his proof to collect
o It does not apply to a public document because there will be a
copy of the document in the notarial archives
o What if there is delivery by mistake?
 The creditor can claim this and rebut the presumption
 What is the debtor’s defense in this case?
 He can claim that he actually paid the debt
o What is the presumption that gives rise to this
presumption above?
 If the debtor has the instrument in his possession, it is
presumed the creditor delivered it to him
MERGER/CONFUSION
 What is this?
o When the debtor and the creditor in the obligation is the same
person
 Requisites?
o 1. Takes place between the creditor and the principal debtor
o 2. The very same obligation is involved
 What is the most common cause of merger?
o Intestate succession, where you inherit your own debt/credit.
Ex. X owes his brother Y a sum of money. Y dies intestate and
X receives the credit, so there is confusion.
 Y has a debt to X. The debt is guaranteed by Z. X assigns the debt
to Z. Did remission happen?
o No. Z is not the principal debtor, he was just a guarantor.
o The guaranty is extinguished, and Z can go after Y.
COMPENSATION/SET-OFF
 What is this?
o Concurrent amount of two persons who in their own right are
reciprocal debtors and creditors of each other
 How similar is this to merger?
o There are at least two debts in both, but in merger, it is
concentrated in one person. In compensation, in two persons.
 What are the kidns of compensation?
o 1. Legal compensation (1279) –
 Automatically when all requisites are present
o 2. Facultative compensation
 Can only be claimed by one party, but not the other
(READ 1287-8)
o 3. Conventional/contractual compensation
 Parties agree to compensate, even if the requisites
are not complete (1282)
o 4. Judicial compensation
 By means of court order/decree
 What is legal compensation?
o 1. Parties are mutually debtors and creditors of each other
 as principals
 and in their own right
o 2. Both debts consist of sum of money, or fungible goods of the
same kind/quality
 Note: it must be “fungible” – the code wrongly says
“consumable”
o 3. The two debts are due
o 4. They be liquidated and demandable
 Liquidated  the amount is determined already
o 5. Neither of the debts must be garnished
o 6. Must not be prohibited by law
 Conventional – requisites?
o 1. Each of the parties …
o 2. The parties agree to mutually extinguish the credit
 (See 1285) Assignment of credits – confusing wording in the
provision, so here’s the explanation
o Y owes a debt to X (credit 1). X owes a debt to Y (credit 2).
In any other case, when both debts fall due, there is automatic
compensation. This is not the concern of 1285.
 o But now, before legal compensation takes place, X
assigns to A credit 1. So for credit 1, A becomes the new
creditor. There are three possibilities:
 1. The assignment was with Y’s consent –
 A goes against Y when the assigned
credit becomes due. Can Y set up
against A credit 2 (what X owes Y)?
o No, because Y consented to the
assignment.
 2. The assignment was with Y’s knowledge, but
without his consent –
 A goes against Y. Can Y set up against A
credit 2?
o Yes, as long as credit 2 existed by
the time credit 1 was assigned.
Does not cover subsequent debts.
 3. The assignment was without Y’s knowledge –
 A goes against Y. Can Y set up against A
credit 2?
o Yes, as long as it arose before he
learned of the assignment
 Facultative compensation
o 1287 – when legal compensation does not automatically take
place
 1. Deposit
 X deposited 1000kg rice with Y (depositary).
In another unrelated transaction, Y owes X
1000kg rice. – There is no legal
compensation here because one of the
contracts is a contract of deposit.
 But the depositor can claim in his favor
compensation. (Facultative in his favor)
 2. Commodatum
 3. Support
o 1288 – one of the debts arises from civil liability from a crime
 The victim of the crime from which the liability arises
can invoke this
 When do the modes of compensation take place?
o 1. Legal – when all the requisites concur
o 2. Conventional – upon agreement of the parties
o 3. Facultative – when the creditor entitled to the option
communicates his decision
o 4. Judicial – final judgment
NOVATION
 When does it arise?
o 1. Changing object or principal conditions
o 2. Changing the debtor
o 3. Subrogating third person to rights of the creditor
 Types?
o 1. Subjective/personal novation
 Change in one or more parties
 Active subjective – change in person of creditor
 Passive subjective – change in person of debtor
 Expromission
 Delegacion
o 2. Objective/real novation
 Change in the object or in the principal conditions
o 3. Mixed novation
 Requisites of novation?
o 1. Previous valid obligation
 Includes voidable
o 2. Agreement by the parties to the new obligation
o 3. Extinguishment of the old obligation
 This is actually a consequence
o 4. Validity of new
 Two types of novation?
o 1. Express
o 2. Implied
 The two obligations must be incompatible
 What is expromission?
o The consent of the creditor and the new debtor are required,
but the consent of the old debtor is not required
o X owes Y 50000. Z approaches Y and tells him that he will
pay the debt. Is this valid?
 Yes.
o Consequence?
  The release of the old debtor is absolute, even if the CONTRACTS
new debtor becomes insolvent.  Definition of contract?
 What is delegacion? (conventional subrogation) o Meeting of the minds between two or more parties
o The consent of all three – creditor, original debtor, new debtor o Can one contract with oneself?
– are all required. The initiative comes from the old debtor.  Yes, an “auto-contract” – one person acting as two
 Delegante – old debtor parties. (Ex. an agency to borrow money: he can also
 Delegatario – creditor act as the lender)
 Delegado – new debtor  This is why “party” is the proper term.
o X owes Y 50000. X approaches Z to ask him to pay for his  Characteristics of obligations?
debt. Y agreed. Is this valid? o 1. Obligatory force
 Yes. o 2. Mutuality
o Consequence?  Performance cannot be left to the will of one of the
 The old debtor is absolved, in general. Exceptions: parties
 1. If the new debtor was already insolvent at o 3. Relativity
the time of the novation AND o 4. Autonomy of parties
 2. Such insolvency was known to the old  Elements of contract?
debtor or public knowledge o A. Essential
o What about assignment of credit, do you need the consent  1. Consent
of all three parties too?  2. Subject matter
 No. Just the old creditor and the new creditor. The  3. Cause
consent of the debtor is not required. He must just be o B. Natural
notified.  Those incorporated by law into the contract
 When the principal obligation is extinguished, are the accessory automatically
obligations extinguished too?  Ex. Warranties in sales (against eviction, of
o As a general rule, yes. (Art. 1296) fitness, etc.)
o So pledge, mortgage, antichresis, guaranty, etc. are  Ex. Right to resolve in reciprocal contracts
extinguished. o C. Accidental
o Exception?  Need to be stipulated by the parties
 When there is benefit for a third person (stipulations  Ex. Purchase price in sales
pour autrui)  Ex. Conditions for performance of the
o What is problem, as to subrogation? contract
 In subrogation, Art. 1303, the guarantors, sureties,  Classification of contracts?
mortgagors, etc. continue to be bound. o A. Degree of dependence
 How to resolve the conflict – Art. 1303 is the  1. Preparatory
exception to 1296. It only refers to one kind of  One intended to lead into another K (ex. K of
novation: active subjective novation. (When the agency)
change is just from one creditor to another.)  2. Principal
 Complete in themselves
  3. Accessory  Ex. sales, lease, etc.
 Cannot exist alone (ex. mortgage)  2. Innominate
o B. According to perfection  “Do ut des” – I give, you give
 1. Consensual  “Do ut facias” – I give, you do
 Most Ks are consensual  “Facio ut des” – I do, you give
o Ex. Sales  “Facio ut facias” – I do, you do
 2. Real  What is autonomy of will?
 Perfected by consent + delivery of the o Generally, you can enter into contracts depending on what you
property want
o Ex. deposit, pledge, commodatum o This principle, however yields to various restrictions:
 3. Formal  1. Law
 Need form for validity  2. Public policy
o Ex. donation of property  3. Public order
o C. According to purpose [just theoretical]  4. Morals
 1. Transfer of ownership  5. Good customs
 2. Conveyance of use  What is the rule on usury?
 3. Rendition of service o It’s now not a crime anymore.
o D. According to subject matter o The only limit is that it is not unconscionable
 1. Involving things o When is it unconscionable?
 2. To render service  It changes from decision to decision. Some decisions
o E. According to the nature of the obligation produced say that 5.5%/month is invalid, while some say
 1. Bilateral 7%/month is valid
 2. Unilateral  Latest – Macalinaw v. BPI: Interest rate of the credit
 Ex. commodatum card is 3%/month (36%/annum). HELD: Any interest
o F. According to cause of 3%/month and above is invalid, and will be reduced
 1. Onerous to 1%.
 2. Gratuitous/lucrative  What is mutuality of contracts?
 Implication? o The K must bind both contracting parties. The legal tie must
 Can determine degree of diligence required. be mutual.
For instance a gratuitous deposit requires o What about contracts with escalation clause (adjustment
less diligence of interest)?
o G. According to risk  It is valid as long as it is tied to a factor not entirely
 1. Commutative dependent on the will of the creditor (purely
 Exchange of value, so there is no risk potestative)
 2. Aleatory  What is relativity of contracts?
 Contract of risk/chance/hazard o Acts between two persons cannot affect, positively or
o Ex. buying a lotto ticket negatively, a third person
o H. According to name
 1. Nominate
 o Third persons neither can sue or be sued for the benefits of the
contract
o What if the contract is transmissible?
 If the contract is transmissible, it can pass on to heirs,
assignees, or successors-in-interest
o When do contracts affect third parties?
 1. Stipulation pour autrui
 2. Accion pauliana
 3. Accion directa
 4. Contracts involving real rights
 Ex. mortgages, etc.
 What is a stipulation pour autrui – requisites?
o 1. Contracting parties clearly and deliberately conferred a
favor/benefit to a third person
 Not merely incidental
o 2. The stipulation in favor of a third person is a part, not the
whole of the entire contract
o 3. It must not be compensated by any obligation whatsoever
o 4. Neither of the contracting parties must bear the legal
representation of the third party
o 5. The third party communicated his acceptance to the obligor
before the revocation by the original parties
 Give examples showing/not showing stipulations pour autrui.
o There were squatters living in Krus na Ligas, near UP. For
humanitarian considerations, UP entered into a contract with
the QC government to develop the area. The contracting
parties are QC and UP. The informal settlers were third
parties. Later on, there were snags in the arrangements, so
the squatters filed a suit under the contract to carry out the
project. HELD: it is a stipulation pour autrui
 N.B. the most important element is the clear and
deliberate benefit conferred
o There was a sale of two parcels of property which was on a
precipice. The sale was eventually rescinded because the
land was unsuitable. The commission agents protested, saying
that their commissions must be paid nonetheless, suing under
the contract. HELD: not a stipulation pour autrui because
there was no deliberate benefit intended for the agents.
 When can you sue a third party for damages due to tortuous
interference?
o 1. There is a valid contract
o 2. Knowledge by the third party of the existence of that contract
o 3. Interference by that third person on the contractual
relationship without legal justification
 Is it required that third person act malicious?
 No. As long as it was deliberate.
 For instance, in an old case, the Augustinian
fathers thought an old lady was being
cheated in a contract so they induced her to
break it.
 What if one enters into a contract in the name of another without
authority or beyond the scope of his authority?
o The contract is unenforceable
Consent
 What are the elements of consent?
o 1. Plurality of subjects
o 2. Capacity
o 3. Intelligent and free will
o 4. Express/tacit manifestation of the will
o 5. Conformity of the internal will and its manifestation
 What are the requisites of a valid offer?
o 1. Definite
o 2. Complete
o 3. Intentional
 What are the requisites of acceptance?
o 1. Unequivocal
o 2. Unconditional
 If it is qualified, it is a counter-offer
 What about an amplified acceptance?
 It may or may not be an acceptance. It
depends on the circumstances
o Is silence acceptance?
 Depends on the circumstances. For instance, X
delivers rice to A and B, who own rice stalls. X
delivers rice to A every Sunday, and when A is not
 there, his employee takes the rice. There is no such
prior arrangement with B. If both A’s and B’s
employees were silent when X delivered rice to them,
A is deemed to have accepted, and B not.
 What is the cognition theory of acceptance?
o Offer and acceptance take effect only from the time knowledge
is acquired by the other person. If during the intervening time,
the party dies or becomes insane, the acceptance (or offer)
has no effect.
o X made an offer in Davao on Feb 1, through mail to Y, who
received it Feb 5. Y accepted the offer Feb 5 through mail
to X. On Feb 8 Y becomes insane. The mail reaches X on
Feb 13. Is the offer accepted?
 No, under the cognition theory.
o X made an offer in Davao on Mar 1, through mail to Y, who
received in Mar 3. On Mar 4, Y sent his acceptance to X.
On Mar 5, X countermanded the offer. Both the
acceptance and countermand are in the mail. Which
prevails?
 Whichever reaches the other party first.
 Can an offeror withdraw his offer even if he gave the offeree a
certain time to accept?
o In general, yes.
 What is the exception?
o When there is an option contract, which is supported by a
separate consideration.
o Give an example.
 S is offering to sell B a car. B asked for 30 days to
think about it and paid S P5000 for this period. This is
a distinct contract – an option contract.
 What if S sells the car to someone before the
period is done?
 S is guilty of contractual breach.
 What if there is no consideration given?
 S can withdraw the offer anytime.
 Does S still have to communicate the
withdrawal?
o No. There is no separate option
contract that requires him to do so.
 Original facts (B gave consideration). Within the
30 day period, B told S that he wanted to buy the
car. S refused. What is B’s remedy?
 Specific performance.
 What if S had already sold the car to X
when B communicated his acceptance –
what is B’s remedy?
o Recover damages from S.
o He cannot sue for specific
performance because X is an
innocent purchaser.
 Differentiate an option contract from the Right of First Refusal
(RFR):
o RFR is the right to have first opportunity to purchase, or the
right to meet any other offer.
o An option contract limits the offeror’s power to revoke the offer.
o What is determined in an RFR? What is undetermined?
 The object is determined.
 The terms are not.
 Does RFR need separate consideration?
o Equatorial v. Mayfair says no. RFB disagrees with this.
o Lintonjua v. CA says that the consideration for the loan or
mortgage is already the consideration for the RFR.
 Does RFR allow actions for specific performance?
o Yes. The actual vendee may be required to sell the property to
the holder of the RFR at the price which he bought it for.
o Contrast: not allowed for option contracts.
 What if the one with the RFR refuses to exercise his option?
o If the one with the RTFR refuses to exercise his option, the
seller cannot sell the property to another person on better
terms. It has to be equal or more onerous.
 Who cannot give consent to a contract?
o 1. Minors
 Only the minor can sue to annul the contract.
 What about a minor who actively misrepresents
himself as a non-minor? Can the minor still sue
to annul the contract?
  He still can. If he is too young to enter into a
contract, he is also too young to be held in
estoppel.
o 2. Insane or demented persons, and illiterate deaf-mutes
 N.B. Different from insanity of in testamentary law
 Being a deaf-mute is not enough; you have to be
illiterate too.
 What is the exception to the insanity rule?
 When he entered into the contract during a
lucid interval
 What are the situations where there is vitiation of consent?
o 1. Mistake
 If the mistake is mutual and it frustrates the real intent
of the parties
 To which must the mistake refer to?
 1. Substance of the thing which is the object
of the contract
 2. Conditions which principally moved either
or both parties to enter into the contract
 What if mistake is as to identity?
 Generally, not a ground to annul a contract.
 EXCEPT if the identity or qualifications is the
principal cause of the contract
o 2. Fraud
 Different from fraud in 1170
 It must be dolo causante, or one that has a decisive
effect on the giving of consent
 Requisites:
 1. Employed by one party against the other
 2. Induced the other to enter into the contract
 3. It must have been serious
 Compare with dolo incidente?
 Does not annul the contract because it did
not induce the giving of consent
 The consequence of incidental fraud is
merely damages
 What about dolus bonus?
 This is “tolerable fraud” and does not lead to
damages
 (Usual exaggerations in trade, when the
other party had an opportunity to know the
facts) – Art.1340
o 3. Violence
 Requisites of violence?
 1. Physical force is irresistible
 2. It is the determining factor to give consent
o 4. Intimidation
 Requisites?
 1. Threat is determining factor to give
consent
 2. Threat is unjust and unlawful
o What if the threatened act is
lawful, for instance, “You, Mr. X
from Surigao Institute of Law, got
my daughter pregnant. You
better marry her, or I will report
to the SC that you got her
pregnant”?
 This is a lawful threat, so it
does not vitiate consent.
o When will there be intimidation
even if the threatened act is
lawful?
 When there is no
connection between the
threatened act and the
situation behind it (ex. sell
me your house or else I
will report the crime I saw
you did).
 3. Threat is real and serious
 4. Threat produces a well-grounded fear that
the person making it can and will inflict harm
o 5. Undue influence
 What do you consider for undue influence?
  Consider both the person invoking influence o 2. It must be licit
and one being influenced o 3. It must be possible
 Consider:  At the time of perfection of the contract
o Confidentiality, family, relations  What if it is impossible from the very start?
 If the person was mentally weak, ignorant, or  The contract does not exist because the
financially distressed prestation does not exist
 It must be influence that deprives one of freedom. So  What if it becomes impossible in the middle of the
it can’t be lawful or due influence (ex. parental contract?
guidance).  Extinguishes the obligation
 What is the effect of violence if perpetrated by a third person (Art. o 4. It must be determinate as to its kind and determinable as to
1336)? quantity
o It still makes it voidable. The contract is still voidable even if
employed by a third person who did not take part in the Causa
contract.
o What about undue influence by a third person?  What is the causa in onerous reciprocal obligation, like a contract
of sale?
 By analogy, same rule.
o What about fraud by a third person (Art. 1342)? o For the seller, the payment of the money to him
 Does not vitiate consent o For the buyer, the delivery of the thing bought
 Unless it led to substantial mistake and it is mutual  What about a remuneratory obligation?
 What are the two kinds of simulation of contract? o The service performed
o 1. Absolute  For donations?
 There is no underlying contract, and no intent to be o Gratuity or liberality
bound  Distinguish object form causa:
 What is the effect? o Object is – what is owed?
 It is void, because there is no consent o Causa – the proximate “why” of the contract.
o 2. Relative  Not the ultimate “why,” which is motive
 They intend to be bound, but concealing the real  Requisites?
agreement o 1. It must exist
 Ex. making a donation to a son seem like a o 2. It must be real
sale as to not make siblings jealous o 3. It must be licit
 What is the effect?  Is there any instance when failure of the motive will lead the
 It will be treated in accordance with the rules contract to fail?
of the concealed contract o Yes.
o 1. When the motive is stipulated to be a suspensive condition
Object o 2. The realization of the motive is the cause of the contract and
there is an intervening serious mistake of fact
 Requisites of object of contract?
o 1. It must be within the commerce of man, whether existing or Form
in potency
 General rule: no specific form required o Valid until annulled
 When is it required?  When is it unenforceable?
o Donation of property o For lack of authority, or writing, or incompetence of parties
o Sale of large cattle  How does the law see it?
o Antichresis o Cannot be given effect unless ratified
 Requires statement of the principal and interest in  When is it void?
writing o Lack of requisites
o Interests in mutuum  Which can be cured?
 Must be expressly stipulated o Voidable and unenforceable
o Sale of land by an agent
o Can one party require the other to follow the correct form? Rescissible
 No, because that would presuppose a valid contract.
There is none here for failure of form.  What is rescission?
 There are cases when form is required but not for validity but for o A process or remedy designated to render inefficacious a
registration. What are these? contract validly entered into and normally binding by reason of
o Those in Art. 1358 external conditions creating an economic prejudice, either to a
 [Learn this enumeration] party or to his creditors
o Failure to follow form makes it valid and enforceable but  What are the requisites for rescission?
cannot be registered o 1. The contract must be rescissible under 1381-2
o Can one party require the other to follow the correct form? o 2. The plaintiff must have no other legal means to obtain
 Yes. One party can require the other party to follow reparation for damages suffered (it is a last resort)
the correct form needed (since they are valid) o 3. Plaintiff must be able to return what he would be obliged to
return if rescission takes effect
Defective contracts  Sometimes, there is nothing to return, like a creditor in
action pauliana
 What are the types of defective contracts? o 4. The object of the contract must not have passed to an
o 1. Rescissible innocent third person
o 2. Voidable  What are the rescissible contracts?
o 3. Unenforceable o 1. Entered into by guardians when wards suffer lesion by more
o 4. Void/inexistent than ¼ of the value of the thing
 When is it rescissible?  Ex. the guardian of a ward who owns harvest with
o When there is particular economic damage to one of the value of P100K sells it for P80K.
parties or a third person  Is there lesion?
 How does the law treat the contract? o Yes.
o It is intrinsically valid but external factors allow it to be  Is there rescissible lesion?
rescinded o No, because P20K is less than ¼ of
 When is it voidable? the harvest’s property.
o Defect in consent in one of the parties  A guardian is judicially appointed. If the sale is
 How does the law see it? made with court consent, what is the effect?
  There can be no rescission.
Sale of fruits and personalties are acts of
administration. These do not need judicial approval,
so lesion can result. But for sale of real property, for
instance, where there must be court approval, there
can be no rescission.
o 2. Same, but for representatives of absentees
o 3. Disposition in favor of third person in fraud of creditors
 What is the extent of rescission?
 Only to the extent of creditor prejudice
o 4. Refer to things under litigation if entered into without
knowledge of litigants or consent of judicial authority
 Rescissible at plaintiff’s instance
o 5. By special provision of law
o (1382) 6. Payments made under state of insolvency for
obligations to whose fulfillment the debtor would not be
compelled at the time they were effected
 Does this require judicial insolvency?
 No, just actual insolvency
 What is the effect?
o Return what he may be obliged to return
o When does it apply?
 Only instances #3 and 4 since for the rest there is
nothing to return
Voidable contract
 What are the characteristics of voidable contracts?
o 1. Effective unless set aside
o 2. It may be assailed only for an action specifically for that
purpose
 Cannot attack it collaterally
o 3. It can be confirmed
 N.B. the law uses “ratify” – “confirm” is a better term
 Ratification is for 1403 par. 1
 Acknowledgement is for 1403 par. 2
o 4. May be assailed only by the party with vitiated consent, his
heirs, or subsidiaries
 What are the requisites of confirmation?
o 1. Contract is voidable
o 2. Confirmation made with knowledge voidability
o 3. The cause for voidabilty has been removed
o 4. The one who is doing so if the one whose consent is
defective
 When will action for annulment not prosper?
o 1. If it has been confirmed
o 2. Prescription
o 3. Loss of the thing due to fraud or fault of person with right to
institute proceedings
o 4. Estoppel
 1400 and 1401 – In a voidable contract, upon annulment, there
must be mutual restitution (just like resolution and rescission).
Are there any instances when the duty of mutual restitution is not
present?
o The thing is lost due to defendant’s fault or fraud
 Return the fruits, value of the thing at the time of the
loss, interest
 What if it is lost fortuitously?
 Return fruits and value of the thing at the
time of the loss, but no interest
 What if the thing the plaintiff must return is lost
through fault or fraud?
 Action is extinguished
 What if it is lost fortuitously?
 Tolentino: action is extinguished unless the
plaintiff offers to pay the value of the thing
 Caguioa: plaintiff can still recover
Unenforceable
 What are the kinds?
o 1. Entered into in the name of another by one with no authority
or legal representation, or acting beyond powers
o 2. Both parties are incapable of giving consent
 What if one becomes capacitated and confirms it?
 It becomes voidable
 And if the other does so too?
 Becomes valid
 o 3. Falling under the Statute of frauds
 A. Agreement whereby its terms, cannot be begun
within one year from the agreement
 Refers to commencement, not completion
 B. Special promise to answer for debt, default, or
miscarriage of others
 Contract of guaranty or suretyship
 C. Agreement made in consideration of marriage
except mutual promise to marry
 D. Sale of chattel/goods/things in action for price
P500 or more
 Unless there is payment of price or delivery
of goods
 E. Agreement for leasing for period longer than 1 year
or sale of real property/interest therein
 Amount is immaterial for real property
 F. Representation as to the credit of a third person
 G. (Art. 1443) – no express trust concerning an
immovable or any interest therein may be proved by
parol evidence
 What are the rules re: Statute of frauds?
o 1. Only applies to actions which are for specific performance or
breach
o 2. Does not make void the contracts falling under the
enumeration if not in writing. It just bars action for specific
performance or breach
o 3. Applies only to executory, and not executed contracts in
whole or in part
 Executory – one where there is no performance in
either side
 If either side has performed, then it gets out of SOF
(1405 – acceptance of benefit)
o 4. Cannot be proved by parol evidence.
 How do you resist a claim on an unenforceable contract?
o File a motion to dismiss
o Or use SOF as affirmative defense
o Or object to presentation of parol evidence during trial
Void
 What is it?
o No force and effect, as if never entered into
o Never validated, either by time or ratification
 See enumeration in 1409
o See #3 – it says “those whose cause or object did not exist at
the time of the transaction.” This is wrong, because there can
be a contract over a future thing. It must be “cause or object
could not exist” – original impossibility.
 Characteristics?
o 1. No effect whatsoever
o 2. No action for annulment necessary because the nullity exists
ipso jure
 Judgment of nullity is merely declaratory
o 3. It cannot be confirmed, ratified, or acknowledge
o 4. If performed, the restoration of what has been given is in
order
o 5. Right to set-up defense of nullity cannot be waived
 What are the special instances of void contracts?
o 1490, 1491 – ex. contract between husband and wife
 What is the pari delicto rule (1411-2)?
o It literally means “in equal fault.”
 If the act constitutes a criminal offense, it’s a void contract which
happens to constitute a criminal offense. If they are in pari delicto, there
can be no action for specific performance, nor restitution on either side
o What if only one party is guilty?
 For the guilty party, no action for restitution
 For the innocent party, there can be
 What if the object/cause is unlawful but not criminal?
o There can be no specific performance or restitution.
o What if only one party is guilty?
 For the guilty party, no action for restitution
 For the innocent party, there can be
 N.B. So whether criminal offense or not, no action for specific
performance. Restitution depends on guilt/innocence.
 Article 1412-19: exceptions to pari delicto rule
o The parties are in pari delicto, but despite that, due to social
considerations, allows one of the parties recovery.
o [See enumeration]
o Ex. employer and employee voluntarily agreeing on wages
below the minimum wage.