CIVIL LAW

Atty. Stephani Rachel Castro

Faculty Adviser

Sheena Mae Sison

Committee Head

Committee Members:
Ronalyn Banaken
Kaye Luminang
Yvette Mateo
Kimberly Rose Padilla

Jean Clarence Cariaga

Cover Designer
 2. Defenses ......................................... 36
3. Procedure ....................................... 36
Table of Contents 4. Effects of Filing Petition ..................... 37
5. Effects of Pendency ........................ 37
I. IN GENERAL .......................................... 8 6. Effects of Decree of Legal Separation . 38
A. WHEN LAW TAKES EFFECT .......... 8 7. Reconciliation .................................... 38
B. RETROACTIVITY OF LAWS .......... 8 8. Effect of Death of One Of The Parties 38
C. MANDATORY AND E. RIGHTS AND OBLIGATIONS
PROHIBITORY LAWS ........................... 9 BETWEEN HUSBAND AND WIFE ..... 38
D. WAIVER OF RIGHTS.......................10 F. PROPERTY RELATIONS BETWEEN
E. REPEAL OF LAWS .............................10 HUSBAND AND WIFE ......................... 40
1. Marriage settlements........................... 40
F. CONFLICT OF LAWS........................13
2. Donations by reason of marriage ......... 42
G. HUMAN RELATIONS .....................15
3.Void donations by the spouses ............. 43
H. APPLICABILITY OF PENAL LAWS
20 4. Absolute Community of Property ....... 44
5. Conjugal Partnership of Gains ............ 49
II. PERSONS AND FAMILY RELATIONS
20 6. Regime of Separation of Property ....... 54

A. PERSONS ..........................................20 7. Judicial separation of property ........ 55

8. Property Regime of Unions Without
1. Kinds of Persons ................................. 20
Marriage ................................................ 55
2. Capacity to Act ................................... 21
G. THE FAMILY ..................................... 59
3. Domicile And Residence of Persons .... 22
1. Concept of Family .......................... 59
B. RIGHTS AND OBLIGATIONS OF
2. Effects on Legal Disputes ............... 59
COUPLES IN INTIMATE
RELATIONSHIPS (RA 9262).................22 3. Family Home...................................... 60

C. MARRIAGE.......................................26 H. PATERNITY AND FILIATION....... 63

1. Requisites ........................................... 26 1. Legitimate children ............................. 64

2. Marriages Celebrated Abroad .............. 29 2.Proof of Filiation ................................. 64

3. Foreign Divorce .................................. 30 3. Illegitimate children............................ 65

4. Void Marriages ................................... 30 4. Action to impugn legitimacy ............... 66

5. Voidable Marriages ............................. 33 5. Legitimated children ........................... 67

6. Unmarried Cohabitation ...................... 34 I. ADOPTION ......................................... 70

D. LEGAL SEPARATION......................35 1. Domestic Adoption Law ................. 71

1. Grounds .......................................... 36 2. Law on Inter-Country Adoption .......... 74

J. SUPPORT .............................................78 4. Presumption of death .......................... 91
1. What it comprises ............................... 79 P. CIVIL REGISTRAR ........................... 91
2. Who are obliged to give support .......... 79 III. PROPERTY ........................................... 92
3. Sources of support .............................. 79 A. CLASSIFICATION OF PROPERTY 93
4. Order of support .................................. 80 1. Immovables ........................................ 93
5. Amount of support .............................. 80 2. Movables............................................ 95
6. Manner and time of payment ........... 80 B. OWNERSHIP ..................................... 95
7. Renunciation and termination .......... 81 1. Bundle of rights .................................. 96
8. Support pendente lite....................... 81 2. Distinction between real and personal
9. Procedure in applications for support .. 81 rights ...................................................... 97
K. PARENTAL AUTHORITY ...............82 3. Modes of acquiring ownership ............ 98

1. General provisions .............................. 82 4. Limitations of ownership .................... 98

2. Substitute parental authority ................ 83 C. ACCESSION ...................................... 99

3. Special parental authority .................... 83 1. Right to hidden treasure ...................... 99
4. Effect of parental authority over the 2. Rules of accession .............................. 99
child's person .......................................... 84
D. QUIETING OF TITLE .................... 106
5. Effects of parental authority over the
1. Requisites ......................................... 106
child's property ....................................... 85
2. Distinctions between quieting title and
6. Suspension or termination or parental
removing/preventing a cloud ................ 107
authority ................................................. 85
3. Prescription / non-prescription of action
7. Solo parents (RA 8972) ....................... 86
............................................................ 107
L. EMANCIPATION ..............................87
E. CO-OWNERSHIP ............................ 107
1. Cause of emancipation ........................ 87
1. Characteristics of co-ownership ........ 107
2. Effect of emancipation ........................ 88
2. Sources of co-ownership ................... 108
M. SUMMARY JUDICIAL 3. Rights of co-owners .......................... 109
PROCEEDINGS IN THE FAMILY
4. Termination of co-ownership ............ 111
CODE .......................................................88
F. POSSESSION ................................... 111
N. USE OF SURNAMES ........................89
1. Characteristics .................................. 111
O. ABSENCE ...........................................90
2. Acquisition of possession ................. 112
1. Provisional measures in case of absence
............................................................... 90 3. Effects of possession ........................ 113

2. Declaration of absence ........................ 90 4. Loss or unlawful deprivation of a

movable ............................................... 114
3. Administration of the property of the
absentee .................................................. 90
 5. Possession in concept of owner, holder, J. MODES OF ACQUIRING
in one's own name, and in name of another OWNERSHIP ........................................ 131
............................................................. 115
1. Occupation ....................................... 131
6. Rights of the possessor ...................... 116
2. Donation .......................................... 132
7. Loss or termination of possession ...... 116
3. Prescription ...................................... 134
G. USUFRUCT ...................................... 116
IV. PRESCRIPTION ................................ 134
1. Characteristics .................................. 116
A. TYPES OF PRESCRIPTION ........... 135
2. Classification .................................... 117
1. Acquisitive ....................................... 135
3. Rights and obligations of usufructuary
............................................................. 117 2. Extinctive ......................................... 136
4. Rights of the owner ........................... 118 B. WHEN PRESCRIPTION IS
5. Extinction, termination, and INAPPLICABLE ................................... 137
extinguishment ..................................... 119 1. By offender ...................................... 137
H. EASEMENTS ................................... 119 2. Registered lands ................................ 137
1. Characteristics .................................. 120 3. Actions to demand right of way; to abate
2. Classification .................................... 120 a nuisance ............................................ 137

3. Modes of acquiring easements........... 125 4. Action to quiet title if plaintiff is in

possession ............................................ 137
4. Rights and obligations of the owners of
the dominant and servient estates .......... 125 5. Void contracts .................................. 137

5. Modes of extinguishment .................. 126 6. Action to demand partition;

distinguished from laches ..................... 138
I. NUISANCE ........................................ 127
7. Property of public dominion ............. 138
1. Nuisance per se ................................. 128
C. PRESCRIPTION OR LIMITATION
2. Nuisance per accidens ....................... 128 OF ACTIONS........................................ 138
3. Liabilities.......................................... 128
1. To recover movables ........................ 138
4. No prescription ................................. 128
2. To recover immovables .................... 139
5. Criminal prosecution ......................... 128
3. Other actions .................................... 139
6. Judgment with abatement .................. 129
D. INTERRUPTION............................. 139
7. Extrajudicial abatement ..................... 129
V. SUCCESSION...................................... 140
8. Special injury to individual ............... 129
A. GENERAL PROVISIONS ............. 140
9. Right of individual to abate a public
nuisance................................................ 130 1. Definition ..................................... 140

10. Right to damages ............................ 130 2. Succession occurs at the moment of

death .................................................... 140
11. Defenses to action ........................... 130
3. Kinds of Successors .......................... 142
12. Who may sue on private nuisance.... 130
B. TESTAMENTARY SUCCESSION143
 1. Wills ............................................. 143 6. Remedies available to creditor in cases of
breach .................................................. 204
2. Institution of heirs ............................. 155
3. Substitution of heirs .......................... 158 C. KINDS OF OBLIGATIONS.......... 206

4. Conditional testamentary dispositions 1. Pure.................................................. 207

and testamentary dispositions with a term 2. Conditional ....................................... 207
............................................................. 159
3. Obligation with a period or a term .... 212
5. Legitime ........................................... 162
4. Alternative or facultative .................. 214
C. LEGAL OR INTESTATE
5. Joint and solidary obligations............ 216
SUCCESSION ....................................... 175
6. Obligations with a penal clause ......... 220
1. General provisions ............................ 175
D. EXTINGUISHMENT OF
2. Order of Intestate Succession ........ 181
OBLIGATIONS .................................... 221
D. PROVISIONS COMMON TO
1. Payment or performance ............... 222
TESTATE AND INTESTATE
2. Loss of determinate thing due or
SUCCESSION ....................................... 184
impossibility or difficulty of performance
1. Right of Accretion ............................ 184 228
2. Capacity to Succeed By Will or 3. Condonation or remission of debt.. 229
Intestacy ............................................... 186
4. Confusion ..................................... 230
3. Acceptance and Repudiation of the
5. Compensation ............................... 231
Inheritance ............................................ 189
6. Novation....................................... 233
4. Collation ........................................... 191
5. Partition and Distribution of the Estate VII. CONTRACTS ................................... 236
............................................................. 192 A. GENERAL PROVISIONS ............. 237
VI. OBLIGATIONS .................................. 195 1. Stages of contracts ........................ 237
A. GENERAL PROVISIONS.............. 195 2. Classification ................................ 237
1. Definition...................................... 195 3. Essential requisites ....................... 239
2. Elements of an obligation .................. 196 B. FORMALITY................................... 247
3. Sources of obligations ....................... 196 C. REFORMATION OF
B. NATURE AND EFFECT OF INSTRUMENTS ................................... 248
OBLIGATIONS .................................... 197 D. INTERPRETATION OF
1. Obligation to give ............................. 197 CONTRACTS ....................................... 250
2. Obligation to do or not to do ............. 198 E. DEFECTIVE CONTRACTS .......... 251
3. Transmissibility of obligations .......... 198 1. Rescissible contracts ..................... 251
4. Performance of obligations ............... 199 2. Voidable contracts ........................ 254
5. Breaches of obligations ..................... 199 3. Unenforceable contracts ................ 256
4. Void or inexistent contracts........... 257
 5. Distinguish: resolution and rescission General Provisions ............................... 358
of contracts ........................................... 259 Obligations of The Lessor And The Lessee
VIII. NATURAL OBLIGATIONS .......... 259 ............................................................ 361

IX. ESTOPPEL ........................................... 260 Assignment and Sublease ..................... 362

X. SPECIAL CONTRACTS...................... 262 Extinguishment of Lease ...................... 363

A. SALES .............................................. 262 XI. QUASI - CONTRACTS ..................... 363

1. General provisions ............................ 262 A. NEGOTIORIUM GESTIO .............. 364

2. Parties ............................................... 276 B. SOLUTIO INDEBITI ...................... 365

3. Obligations of the vendor .................. 279 XII. LAND TITLES AND DEEDS .......... 366

4. Obligations of the vendee .................. 282 A. TORRENS SYSTEM ...................... 366

5. Transfer of ownership ....................... 287 1. Concept and background .................. 367
6. Risk of loss ....................................... 290 2. Certificate of title ............................. 369
7. Documents of title............................. 295 B. AGRARIAN TITLES AND
8.Warranties ......................................... 297 ANCESTRAL LANDS AND DOMAINS
370
9. Breach of contract ............................. 309
1. Concept and registration of agrarian titles
10. Performance of contract .................. 324
............................................................ 371
11. Extinguishment ............................... 324
2. Concept and registration of ancestral
B. TRUST ............................................... 329 lands and domains ................................ 373
Express Trusts ...................................... 331 C. CITIZENSHIP REQUIREMENT ... 374
Implied Trusts ...................................... 333 1. Individuals ....................................... 374
C. AGENCY ........................................... 335 2. Corporations ..................................... 374
Nature, Form and Kinds of Agency ....... 335 D. ORIGINAL REGISTRATION ....... 375
Obligations of The Agent ...................... 340 1. Who may apply ................................ 375
Obligations of The Principal ................. 344 2. Registration process and requirements
Modes of Extinguishment of Agency .... 345 ............................................................ 377
3. Remedies.......................................... 387
D. COMPROMISE ................................ 346
4. Cadastral registration ........................ 394
E. LOAN ............................................... 348
E. SUBSEQUENT REGISTRATION .. 394
1. Loan ............................................. 348
2. Commodatum ............................... 349 1. Voluntary dealings ............................ 395

3. Simple loan ....................................... 351 2. Involuntary dealings ......................... 396

4. Interests on loan ................................ 352 F. NON-REGISTRABLE PROPERTIES

400
F. DEPOSIT ......................................... 354
G. LEASE ............................................... 358
 G. DEALINGS WITH UNREGISTERED G. NEGLIGENCE ................................. 411
LANDS ................................................... 401 1. Concept ............................................ 411
XIII. TORTS .............................................. 401 2. Good father of a family or reasonably
A. PRINCIPLES ................................... 401 prudent person ...................................... 413

1. Abuse of right; elements ................... 401 3. Standard of care; emergency rule ...... 413
4. Unreasonable risk of harm ................ 414
2. Unjust enrichment ............................. 402
3. Liability without fault ....................... 402 5. Evidence .......................................... 414
6. Presumption of negligence ................ 415
4. Acts contrary to law .......................... 402
5. Acts contrary to morals ..................... 403 7. Defenses ........................................... 416

B. CLASSIFICATION OF TORTS .... 403 H. SPECIAL LIABILITY IN

PARTICULAR ACTIVITIES............... 419
1. According to manner of commission . 403
1. In general; concepts .......................... 419
2. According to scope ........................... 403
2. Products liability; manufacturers or
C. THE TORTFEASOR ........................ 404 processors ............................................ 419
1. Direct tortfeasor ................................ 404 3. Nuisance .......................................... 419
2. Persons made responsible for others .. 404 4. Violation of constitutional rights;
3. Joint tortfeasors................................. 405 violation of civil liberties ...................... 419

D. PROXIMATE CAUSE ..................... 405 5. Violation of rights committed by public

officers ................................................. 420
1. Concept ............................................ 405
6. Provinces, cities and municipalities... 421
2. Cause in fact ..................................... 406
7. Owner of motor vehicle .................... 421
3. Efficient intervening cause ................ 407
8. Proprietor of building or structure or
4. Cause as distinguished from condition thing..................................................... 421
............................................................. 407
9. Head of family.................................. 422
5. Last clear chance............................... 407
10. Violations of data privacy ............... 422
E. LEGAL INJURY ................................ 408
I. STRICT LIABILITY .......................... 422
1. Concept ............................................ 408
1. Animals; possessor and user of an animal
2. Elements of right............................... 408 ............................................................ 422
3. Violation of right or legal injury ........ 408 2. Nuisance .......................................... 422
4. Classes of injury ............................... 408 3. Products liability; Consumer Act ...... 423
F. INTENTIONAL TORTS .................. 409 XIV. DAMAGES ...................................... 423
1. General ............................................. 409 A. GENERAL CONSIDERATIONS . 423
2. Interference with rights to persons and
1. Classification.................................... 423
property ................................................ 409
2. Kinds of damages ............................. 424
3. Interference with relations ................. 410
3. When damages may be recovered ..... 428
B. DAMAGES IN CASE OF DEATH . 429
C. GRADUATION OF DAMAGES .... 430
1. Duty of injured party......................... 430
2. Rules ................................................ 430
 CIVIL LAW
s
I. IN GENERAL B. RETROACTIVITY OF LAWS

A. WHEN LAW TAKES EFFECT Q. What is the rule on the application of laws?
Is it absolute?
Q. When does law take effect?
ANS. As a general rule, laws shall have
ANS. Laws shall take effect after fifteen days prospective effects only. There are, however,
following the completion of their publication in certain exceptions, such as:
the Official Gazette, or in a newspaper of a) when the law provides for its retroactivity;
general circulation in the Philippines, unless it b) when the law is penal in nature and which
is otherwise provided. (Art. 2, NCC, as is favorable to the accused who is not a
amended by E.O. 200) habitual delinquent or recidivist;
c) when the law is procedural in nature;
Q. Can Congress do away with publication of d) when it creates new substantive rights;
a law? Can Congress provide a law to become e) when the law is curative in nature;
effective even in the absence of publication? f) when it is interpretative of other laws.
Exceptions to the Exceptions:
ANS. In Tanada vs Tuvera case, the Court ruled a) when the retroactivity of a penal statute
that Art. 2 of the NCC does not preclude the will make it an ex post facto law;
requirement of publication in the Official b) when the retroactive effect of the statute
Gazette even if the law itself provides for the will result in impairment of obligation of
date of effectivity since the clear object of the contracts.
law is to give the general public adequate notice
of the various laws which are to regulate their Exception: Laws enacted in the exercise of
actions and conduct as citizens. Police power could be given retroactive
effect and may reasonably impair vested
Q. If the law says that it shall take effect rights or contracts. (Ortigas & Co.,
immediately upon its approval and the law Limited v CA)
was approved by Congress on January 1,
passed by Congress on January 1, approved by Q. Ignorance of the law excuses no one from
the President on January 31, published compliance therewith. (Art. 3, NCC) What are
completely in a newspaper of general the exemptions?
circulation on March 1. When will that law
become effective? ANS.
a) Ignorance of fact may excuse a party from
ANS. March 31. A statute which its terms the legal consequences of his conduct.
provides for its coming to effect immediately (Ignoratia Facti)
upon approval thereof, is properly interpreted Ex: Ignorance of foreign law is a mistake of
as coming into effect immediately upon fact.
publication thereof in the Official Gazette as b) Mistake as to difficult questions which is
provided in the Art. 2 of the NCC. the same as mistake of fact.

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 CIVIL LAW

C. MANDATORY AND PROHIBITORY

Q. Is there a conclusive presumption of LAWS
knowledge of foreign laws?
Q. What are the kinds of mandatory
ANS. No. Even our courts cannot take judicial legislation?
notice of them. They must be specifically
alleged and proved. ANS.
a) Positive — when something must be done
Q. If a foreign law will be necessary in b) Negative or prohibitory — when
resolving a case pending before a Philippine something should not be done
Court, will our court take cognizance of said Example: Generally, in order to be valid, a simple
foreign law? donation inter vivos of a parcel of land must be
in a public instrument. If orally made, or if
ANS. No. Even our courts cannot take judicial effectuated in a private instrument, the
notice of them. They must be specifically donation is null and void.
alleged and proved otherwise the Doctrine of
Processual Presumption applies. Q. Distinguish mandatory laws from
prohibitory laws.
Q. What is the doctrine of presumed identity
approach? ANS. If the law commands that something be
done, it is mandatory. If the law commands that
ANS. A foreign law must be properly pleaded something should not be done, it is prohibitory.
and proved as a fact. Thus, if the foreign law If the law commands that what it permits to be
involved is not properly pleaded and proved, done should be tolerated or respected, in which
our courts will presume that the foreign law is case, it is permissive or directory.
the same as our local or domestic or internal
law. It is also known as the Doctrine of Q. Acts executed against the provisions of
Processual Presumption. mandatory or prohibitory laws shall be void.
(Art. 5, NCC) What are the exemptions?
Q. What is an ex post facto law?
ANS.
ANS. An ex post facto law is one that would 1) When the law itself authorizes its validity
make a previous act criminal although it was although generally they would have been
not so at the time it was committed. It is penal void.
in nature. To be an ex post facto law, the law 2) When the law makes the act valid, but
must: punishes the violator.
1) refer to criminal matters; 3) Where the law merely makes the act
2) be retroactive in its application voidable, that is, valid unless annulled.
3) prejudicial to the accused. 4) Where the law declares the act void, but
recognizes legal effects as arising from it.

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 CIVIL LAW

D. WAIVER OF RIGHTS Q. Law A is impliedly repealed by Law B. Law

B is later repealed by Law C. Is Law A revived?
Q. What are the requisites of a valid waiver?
ANS. Yes, unless Law C provides otherwise.
ANS.
1) A person should have knowledge of its Q. When the laws says that this Act “All laws,
existence; presidential decrees and issuances which are
2) Has intention to relinquish it. inconsistent with this Act are hereby deemed
Requisite of valid renouncement: repealed”, is that an express repeal?
a) he must actually have the right which
he renounces; ANS. No. It fails to identify or designate the act
b) he must have the capacity to make the or acts that are intended to be repealed.
renunciation; (Rabuya)
c) the renunciation must be made in a
clear and unequivocal manner Q. What are the requisites of an implied
repeal?

E. REPEAL OF LAWS ANS.

1) The laws cover the same subject matter,
and
Q. How are laws repealed?
2) The latter is repugnant to the earlier.
ANS. Laws are repealed in two ways:
Q. If the repealing law itself is repealed, what
1)express – that contained in a special
is the effect upon the law which it previously
provision of a subsequent law; or
repealed?
2) implied – takes place when the provisions
of the subsequent law are incompatible
ANS. The effect of a repeal of the repealing law
with those of an earlier law and there is no
shall depend on whether the previous repeal
express repeal.
was express or implied:
Implied repeals are not favored because they rest only
a) Express Repeal: When a law which
on the presumption that because the old and the new
expressly repeals a prior law is itself
laws are incompatible with each other, there is an
repealed, the law first repealed shall not be
intention to repeal the old.
thereby revived unless expressly so
provided.
Q. Law A is expressly repealed by Law B. If
b) Implied Repeal: When a law which
Law B is itself repealed by Law C, is Law A
impliedly repeals a prior law is itself
revived?
repealed, the prior law is itself repealed,
the prior law shall thereby be revived,
ANS. No, unless Law C expressly so provides.
unless the repealing law provides
otherwise. (Rabuya)

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 CIVIL LAW

Q. What is the difference between repealed of Q. What is obiter dicta?

a law and the declaration of
unconstitutionality? ANS. Opinions not necessary to the
determination of a case. They are not binding,
ANS. Both are ways of rendering a law and cannot have the force of judicial precedents.
ineffective but the former is a legislative act
while the latter is a judicial act. Q. How may judicial decisions be abrogated?

Q. What is the effect of declaration of ANS.

unconstitutionality? a) By a contrary ruling by the Supreme Court
itself; or
ANS. Our Court adopted the view that before b) By corrective legislative acts of Congress
an act is declared unconstitutional it is an
“operative fact” which can be the source of Q. Is there a Philippine common law?
rights and duties. (Rabuya)
ANS. In general, the Philippines is not a
Q. Are judicial decisions laws? common law country. But if what is meant by
the phrase is case law, based almost exclusively
ANS. While it is true that decisions which apply on Anglo-American common law which is not
or interpret the Constitution or the laws are part in conflict with local laws, customs and
of the legal system of the Philippines, still they constitution, then we have some sort of
are NOT laws. If this were so, the courts would Philippine Common Law — a common law that
be allowed to legislate contrary to the principle supplements and amplifies our statute law
of separation of powers.
Q. Art. 9 of the NCC provides that “No judge
Judicial decisions, though not laws, are or court shall decline to render judgment by
evidence, however, of what the laws mean, and reason of the silence, obscurity or
this is why they are part of the legal system of insufficiency of the laws.”. Does this apply to
the Philippines. criminal cases?

Q. What is the doctrine of stare decisis? ANS. In a way, yes. An offense is not a crime
unless prohibited and punished by the law,
ANS. When the Court has once laid down a applying the rule “nullum crimen, nulla poena
principle of law as applicable to a certain state sine lege” (there is no crime and there is no
of facts, it will adhere to that principle and penalty in the absence of law).
apply it to all future cases where the facts are
substantially the same. It enjoins adherence to
judicial precedents.

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 CIVIL LAW

Q. Distinguish law from custom. 5) There must be a juridical intention

(convictio juris seu necessitatis) to make a
ANS. While ordinarily a law is written, rule of social conduct,
consciously made, and enacted by Congress, a 6) There must be a sufficient lapse of time.
custom is unwritten, spontaneous, and comes
from society. Moreover, a law is superior to a Q. When the law speaks of a year, what does it
custom as a source of right. mean?

Q. Custom is a rule of conduct formed by ANS: A year shall be 365 days. (Art 13, NCC).
repetition of acts, uniformly observed as a However, in the Administrative Code (1987), it
social rule, legally binding and obligatory. composed of 12 calendar months. The SC
What are the requisites? declared that the provision of 1987
Administrative Code, being the more recent
ANS. law, governs the computation of legal periods
1) Plurality of acts, or various resolutions of with respect to counting “a year”.
a juridical question raised repeatedly in
life; Q. Is 12 calendar months the same with 12
2) Uniformity, or identity of acts or various months?
solutions to the juridical question;
3) General practice by the great mass of the ANS. No. The provision of the law under Sec.31,
social group; Chapter VIII, Book I of the 1987 Administrative
4) Continued performance of these acts for a Code speaks of twelve calendar months which
long period of time; differs on 12 months which is only 360 days
5) General conviction that the practice (12x30).
corresponds to a juridical necessity or that
it is obligatory; Q. When the law speaks of a month, what does
6) The practice must not be contrary to law, it mean?
morals or public order.
ANS. It is understood to be 30 days unless it
Q. What are the requisites before the courts refers to a specific calendar month in which case
can consider customs? it shall be computed according to the number of
days the specific month contains. (Art. 13, NCC)
1) A custom must be proved as a fact,
according to the rules of evidence; Q. When the law speaks of a day what does it
otherwise, the custom cannot be mean?
considered as a source of right.
2) The custom must not be contrary to law ANS. A days means 24 hours. (Art. 13, NCC)
(contra legem), public order, or public
policy.
3) There must be a number of repeated acts.
4) The repeated acts must have been
uniformly performed.

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 CIVIL LAW

Q. When the law speaks of a night, what does Q. What are the exceptions to lex rei sitae?
it mean?
ANS. In the matter of testate and intestate
ANS. It means from sunset to sunrise. (Art. 13, succession, the national law of the decedent
NCC) shall apply with respect to the
1) order of succession,
Q. What is the principle of generality? 2) amount of successional rights,
3) intrinsic validity of the will, and
ANS. Philippine penal laws and those of public 4) heir’s capacity to succeed (Art. 1039, NCC)
security and safety are obligatory upon all who Exception to the exception: Renvoi doctrine
live or sojourn in Philippine territory. (Art. 14,
NCC) Q. An American living in Texas married to a
Filipina. They have an illegitimate child of
Filipino nationality following the citizenship
Q. What are the exceptions to the principle of of the mother. The foreigner died. The
generality? brothers of the foreigner claim that the
illegitimate child is not an heir of the father
ANS. under the law of Texas. In resolving that issue
a) Treaty stipulations; of whether or not the child is an heir of the
b) Laws of preferential application; father even if the properties subject of
c) Principles of public international law succession are in the Philippines, what law do
we apply?

F. CONFLICT OF LAWS ANS. Texas law will apply because the issue is
order of succession. Order of Succession refers
Q. What is the nationality principle? to who are the heirs under the law. (Rabuya)

ANS. Laws relating to family rights and duties, Q. The father executed a will with an
or to the status, condition and legal capacity of illegitimate child which he later recognized as
persons are binding upon citizens of the his. When he executed his will, he gave all of
Philippines, even though living abroad. (Art. 15, his properties to his siblings, none was given
NCC) to the illegitimate child and the properties are
here in the Philippines. The will is to be
Q. What is lex rei sitae? probated in the Philippines. The illegitimate
child opposed the probate alleging that the
ANS. Real and personal property is subject to will is not valid because he was preterited. The
the law of the country where it is situated. siblings claimed no preterition because under
Texas Law, there is no compulsory heir and an
illegitimate child is not a legal heir. In
resolving the issue of preterition, what law do
we apply?

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ANS. Texas law will apply because the issue is Q. An American is married to a Filipina. The
whether one is a compulsory heir or not which couple is interested in buying a house and lot
is the primary question in resolving the issue of in Baguio City. For the purpose of determining
preterition which is a matter involving order of the legal capacity of the parties to acquire that
succession or amount of successional rights and house and lot, which law are we going to
also the intrinsic validity of testamentary apply?
disposition even though the property is located
in the Philippines. (Rabuya) ANS. Philippine law applies following the lex
situs. Foreigners are prohibited from acquiring
Q. What is the renvoi doctrine? private lands except by way of hereditary
succession. On the matter of real property, it is
ANS. Renvoi literally means referring back. It is not the nationality principle that will apply on
a process of referring a case to the jurisdiction of the matter of legal capacity, it is the lex situs that
another country when there is a conflict rule. will apply even on the matter of legal capacity
by way of exception to Art. 15 of the NCC. All
It is applied when there is a doubt as to whether issues affecting properties, even legal capacity
a reference to a foreign law is a reference to the or formalities are to be governed by lex situs
internal law of said foreign law; or a reference and not by lex loci celebrationis especially on
to the whole of the foreign law, including its lands. (Rabuya)
conflict rules.
Q. What is lex loci celebrationis?
Q. What is lex situs?
ANS. The forms and solemnities of contracts,
ANS. Lex situs is based on the state’s power wills, and other public instruments shall be
over its territory. The state where property is governed by the laws of the country in which
located has the sole power to decide the validity they are executed. (Art. 17, NCC)
and effects of transfer of the property.
Q. What are the exceptions to the rule of lex
Q. What are the exception to the lex situs rule? loci celebrationis?

ANS. ANS. Lex nationalii

a) The transaction does not affect transfer of a) Either/both parties are below 18 years old
title to/ownership of the land – LEX b) Bigamous or polygamous marriages
INTENTIONIS or LEX VOLUNTATIS c) Subsequent marriage without recording:
b) Contracts where real property is offered i. The judgment of nullity of the first
by way of a security for the performance marriage
of an obligation such as a loan. ii. Partition and distribution of the
i. LOAN – covered by rules on properties of the spouses
ordinary contracts iii. Delivery of the children’s
ii. MORTGAGE – LEX SITUS presumptive legitimes
c) Testate or intestate succession and d) Mistake as to identity of the contracting
capacity to succeed – LEX NATIONALII party

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e) One of the parties was psychologically G. HUMAN RELATIONS

incapacitated to comply with the essential
marital obligations Q. What is the cardinal law on human conduct
f) Incestuous marriages as provided in the Civil Code?
g) Void by reason of public policy
ANS. Every person must, in the exercise of his
Q. What is lex loci intentionis? rights and in the performance of his duties, act
with justice, give everyone his due, and observe
ANS. It is the law as intended by the parties. honesty and good faith. (Art. 19, NCC)
Intent may be expressed in a choice-of-law
provision, unless contrary to law, morals, good Q. What is contra bonus mores?
customs, public order or public policy of the
Philippines. (Art. 1306, NCC) or may be implied ANS. Every person who, contrary to law,
from the parties’ contemporaneous and wilfully or negligently causes damage to
subsequent acts. another, shall indemnify the latter for the same.
(Art. 20, NCC)
Q. What governs the intrinsic validity of
contracts? Q. What are the elements of contra bonus
mores?
ANS. The intrinsic validity of a contract is
governed by the proper law of the contract or ANS.
“lex contractus,” which may either be: 1) There is an act which is legal;
1) the law of the place voluntarily agreed 2) which is contrary to morals, good customs,
upon by the contracting parties (“lex loci public order, or public policy; and
voluntatis”) or 3) it is done with intent to injure.
2) the law of the place intended by them
expressly or impliedly (“lex loci Q. What is damnus absque injuria?
intentionis”).
ANS. The legitimate exercise of a person’s
Q. What are the effects of contracts, judgments rights, even if it causes loss to another, does not
or laws agreed upon in a foreign country? automatically result in an actionable injury.
Damage resulting from the legitimate exercise
ANS. Prohibitive laws concerning persons, their of a person’s rights is a loss without injury for
acts or property and those which have for their which the law gives no remedy.
object public order, public policy and good
customs shall not be rendered ineffective by Q. What is abuse of rights as contemplated in
laws or judgments promulgated, or by the Civil Code?
determinations or conventions agreed upon in a
foreign country. ANS. When a right is exercised in a manner
which does not conform with the norms
enshrined in Art. 19 of the NCC and results in
damage to another, a legal wrong is thereby

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committed for which the wrongdoer must be determining the property is the contract
held responsible. the personal situated is the was executed
law applicable basis for is the basis for
Q. What are the elements of abuse of rights? determining determining
law applicable law applicable
Covers family Covers both Covers only
ANS. LBPA
rights and real and the forms and
1) There is a legal right or duty;
duties, status, personal solemnities
2) Exercised in bad faith; condition and property (extrinsic
3) Sole intent of prejudicing or injuring another. legal capacity validity)
4) The absence of good faith is essential to abuse of persons.
of right. (Rabuya) Exception: Exceptions: Exceptions:
Art. 26, par. 2 Capacity to Art. 26, par. 1
Q. What is accion in rem verso as contemplated of Family succeed; of Family
in the Civil Code? Code Intrinsic Code
validity of the Intrinsic
ANS. Every person who through an act of will; validity of
Amount of contracts
performance by another, or any other means,
successional
acquires or comes into possession of something
rights;
at the expense of the latter without just or legal Order of
ground, shall return the same to him. (Art. 22, succession.
NCC)
Q. In country X, even recognized illegitimate
Q. What are the requisites of accion in rem children are not allowed to inherit. A citizen of
verso? country X dies in the Philippines, with some
of his parcels of land located in our country.
ANS. Under our laws, recognized illegitimate
1) That the defendant has been enriched; children can inherit. Will Y, a recognized
2) That the plaintiff has suffered a loss; illegitimate child of the deceased, be entitled
3) That the enrichment of the defendant is to inherit?
without just or legal ground;
4) That the plaintiff has no other action based ANS. No, because under the law of his father’s
on contract, quasicontract, crime or quasi- country, he has no right to inherit. This is so
delict even if the lands are found in the Philippines.
What should control is the national law of the
Q. Distinguish lex nationalii, lex rei sitae and deceased.
lex loci celebrationis.
Q. A power of attorney was executed in
ANS. Germany giving the recipient authority to
Lex Loci bring an action in the Philippines. Said power
Lex Nationalii Lex Rei Sitae
Celebrationis
of attorney was not authenticated by a notary
Art. 15, CC Art. 16, CC Art. 17, CC
public. In Germany, no such authentication
Citizenship is Law of the Law of the
the basis for place where place where was needed, contrary to Philippine rules. Was

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the power of attorney properly made insofar as b) In Art. 21 — The act is done willfully.
form was concerned? NOTE: “Willful’’ may mean not merely
voluntarily but with a bad purpose.— The
ANS. Yes, because it was executed in Germany. act is done either willfully or negligently
There is no reason why the lex loci celebrationis Example, Art. 21: A student willfully humiliates
should not apply. a professor, causing her to have a nervous
breakdown. This would be contrary to good
Q. In case of conflict with the Civil Code, customs and morals, and the professor can sue
which shall prevail? for damages.

ANS. In matters which are governed by the Example, Art. 20: An institution of learning has
Code of Commerce and special laws, their a contractual obligation to afford to students a
deficiency shall be supplied by the provisions of fair opportunity to complete the course they
this Code. (Art. 18, FC) seek to pursue, but when a student commits a
In case of conflict with the Code of Commerce serious breach of discipline or fails to maintain
or special laws, the Civil Code shall only be the required academic standard, he forfeits his
suppletory, except if otherwise provided for contractual right.
under the Civil Code. In general, therefore, in
case of conflict, the special law prevails over the Q. What is meant by independent civil action?
Civil Code, which is general in nature.
ANS. Independent civil action is one that is
Q. A applied for a life annuity. The insurance brought distinctly and separately from a
company accepted, and intended to mail its criminal case allowed for considerations of
acceptance, but never actually mailed the public policy, because the proof needed for civil
same. So the applicant never received the letter cases is LESS than that required for criminal
of acceptance. Later, the applicant died. Was cases; but with the injunction in general that
the contract ever perfected? success in financially recovering in one case
should prevent a recovery of damages in the
ANS. No, because acceptance was never made other.
known to the applicant. This rule in the Civil
Code, which requires knowledge by the offeror Q. What are the instances when the law grants
of the acceptance, can be applied because the an independent civil action?
Insurance Law (a special law) contains no rule
on the matter. In other words, the Civil Code ANS.
can supply the deficiency. a) Art. 32 — (breach of constitutional and other
rights)
Q. Distinguish Art. 21 from Art. 20 of the NCC. b) Art. 33 — (defamation, fraud, physical
injuries)
ANS. c) Art. 34 — (refusal or failure of city or
a) In Art. 21 — The act is contrary to morals, municipal police to give protection)
good customs, or public policy. In Art. 20 d) Art. 2177 — (quasi-delict or culpa aquiliana)
— The act is contrary to law.

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Q. On the matter of validity of divorces, the SC

Example: tells the applicability of Art. 15, why are we
A civil action for recovery of government funds following the nationality rule in determining
in the hands of a postmaster can prosper the validity of a divorce?
independently of a charge of malversation,
since in the fi rst, the obligation arises from law ANS. It talks about the status or condition of the
(ex lege), while in the second the obligation to person. In divorce, Philippine nationals are
return the money arises ex delicto. A civil covered by the policy against absolute divorce
complaint for separation of property can as against public policy and morality whereas
continue even if a criminal action for aliens may obtain divorces abroad, which may
concubinage is subsequently fi led. While it is be recognized in the Philippines, provided they
true that the first is not a prejudicial question for are valid according to their national law.
the determination of the latter, still it is (Rabuya)
completely DIFFERENT from the second.
Q. Can foreigners obtain a decree of divorce
Q. Persons apprehended and imprisoned here in the Philippines?
without charges during the Martial Law
regime, upon their release after a new ANS. No because divorce is not recognized in
administration took over, fi led suits for our jurisdiction. A decree of divorce can only be
damages against General Fabian Ver and obtained abroad. (Rabuya)
company who effected their arrest and
detention. Q. Filipino citizens are married but living in a
foreign country where a divorce decree is
ANS. Art. 32 of the NCC, which renders any recognized as valid. One of them obtained a
public officer or employee or any public decree of divorce capacitating him to remarry.
individual liable in damages for violating the Is the decree of absolute divorce obtained by
constitutional rights and liberties of another, as the citizen of the Philippines valid?
enumerated therein, does not exempt military
officials and officers from responsibility. ANS. No. The Nationality principle (Art.15)
governs matters affecting the status or condition
Q. What are the matters covered by the of a person. Philippine law does not provide for
application of the nationality principle rule? absolute divorce. A marriage between two
Filipinos cannot be dissolved even by a divorce
ANS. Family rights and duties, status, obtained abroad, because of Art. 15 and 17 of the
condition, and legal capacity are governed by NCC. (Rabuya)
the personal law (Law of Domicile-if this
country is following the domiciliary theory or Q. What if the one who secured a divorce is a
the National Law-if this country is following the foreigner married to another foreigner? One of
nationality theory of the person concerned) them wants to remarry in the Philippines and
(Rabuya) applied for recognition of the judgment of
divorce. Can our courts recognize the existence

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of such judgment providing for an absolute ANS. Mistake is an essential element in solutio
divorce obtained by the foreigner? indebiti. But in the accion in rem verso, it is not
necessary that there should have been mistake
ANS. Yes. Aliens may obtain divorces abroad, in the payment.
which may be recognized in the Philippines,
provided they are valid according to their Q. Distinguish accion in rem verso from
national law. (Rabuya) unjust enrichment.

Q. If the issue is the extrinsic validity and ANS. An accion in rem verso is merely an
intrinsic validity of a contract, what is the law auxiliary action available only when there is no
applicable? other remedy on contract, quasi-contract, crime,
and quasi-delict while unjust enrichment,
ANS. Art. 17 1st Paragraph on Lex Loci wherein one is unjustly enriched at the expense
Celebrationis. Intrinsic validity of a contract is of or from the efforts or obligations of others,
governed by the proper law of the contract or may be availed of as a prerequisite for the
“Lex Contractus”, which may either be the law enforcement of the doctrine of restitution.
of the place voluntarily agreed upon by the (Shinryo Philippines Company v. RRN Incorp.
contracting parties (lex loci voluntatis) or the G.R. No. 172525, October 20 2010)
law of the place intended by them expressly or
impliedly (lex loci intentionis). (Rabuya) Q. What is a prejudicial question?

Q. What is solutio indebiti? ANS. A prejudicial question is one that arises in

a case, the resolution of which is a logical
ANS. If something is received when there is no antecedent of the issue involved therein, and the
right to demand it, and it was unduly delivered cognizance of which pertains to another
through mistake, the obligation to return it tribunal.
arises. In prejudicial matters, there are always two
cases involved – a civil and a criminal one. The
Q. What are the requisites of solutio indebiti? criminal case is always suspend because the
issue in the civil case is determinative of the
ANS. outcome of the criminal case.
1) A payment is made when there exists no
binding relation between the payor, who Q. What are the elements of prejudicial
has no duty to pay, and the person who question?
received the payment;
2) The payment is made through mistake and 1) The previously instituted civil action
not through liberality or some other cause. involves an issue similarly or intimately
related to the issue raised in the
Q. Distinguish solutio indebiti from accion in subsequent criminal action; and
rem verso. 2) The resolution of such issue determines
whether or not the criminal action may
proceed.

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Q. A was lawfully married to B. At the point of II. PERSONS AND FAMILY

a gun, A was threatened if he would not marry RELATIONS
C. So A married C. Out of jealousy, B asked the
fiscal to fi le bigamy charges against A, who A. PERSONS
had in the meantime asked that the second
marriage be annulled in view of the 1. Kinds of Persons
intimidation committed on him. Should the
criminal action proceed at once? Q. What are the kinds of persons?

ANS. No. For the decision in the civil case ANS. Persons could be natural or juridical.
would affect A’s criminal liability, and this 1) Natural persons refer to individuals or
therefore is a prejudicial question. human beings who are created by
procreation.
2) Juridical persons are artificial, abstract
H. APPLICABILITY OF PENAL LAWS entities created through laws.

Q. What is the territoriality principle? Q. What determines personality?

ANS. Penal laws and those of public security ANS. Birth determines personality. The law
and safety shall be obligatory upon all who live considers the conceived child as born for all
or sojourn in the Philippine territory, subject to purposes favorable to it if born alive. Therefore,
the principles of public international law and to the child has a presumed personality, which has
treaty stipulations. (Art. 14, NCC) two characteristics:
1) limited; and
Q. What are the exemptions to the territoriality 2) provisional/conditional (Quimiguing vs.
principle under international law? Icao)

ANS. Under the Theory of Extraterritoriality, Q. When is a child considered born?

the following are the exemptions to the
territoriality principle: ANS. For civil purposes, the fetus is considered
1) When the offense is committed by a born if it is alive at the time it is completely
foreign sovereign while in Philippine delivered from the mother’s womb.
territory If the fetus had an intrauterine life of less than 7
2) When the offense is committed by months, it is not deemed born if it dies within 24
diplomatic representatives hours after its complete delivery from the
3) When the offense is committed in a public maternal womb.
or armed vessel of a foreign country.

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Q. What is the presumption of survivorship? 2. Capacity to Act

ANS. Two or more persons, called to succeed Q. Distinguish juridical capacity from capacity
each other, shall be presumed to have died at to act.
the same time, subject to the following
conditions: Juridical Capacity to Act
1) parties are heirs to one another Capacity
2) no proof as to who died first Fitness to be the Power to do acts
3) with doubt as to who died first subject of legal with legal effects
relations
Q. Give examples of juridical persons. Passive Active
Inherent Merely acquired
ANS. Lost only through Lost through
a) State and its political subdivisions; death death and other
b) Corporations, institutions and entities for causes
public purpose or interest; Can exist without Cannot exist
c) Corporations, partnership and capacity to act without juridical
associations for private interest capacity
Cannot be limited Can be restricted,
NOTE: The Roman Catholic Church is a
or restricted modified or
corporation by prescription, with
limited
acknowledged juridical personality. (Barlin vs.
Full civil capacity is the existence of both capacity to
Ramirez)
act and juridical capacity.

The estate of a deceased person should be

Q. What circumstances modify, limit, or
considered an artificial or juridical person for
restrict the capacity to act?
the purposes of the settlement and distribution
of his estate which, of course, include the
ANS.
exercise during the judicial administration
a) Minority
thereof of those rights and the fulfillment of
b) Insanity or imbecility
those obligations of his which survived after his
c) Deaf-mutism
death. (Limjoco vs. Intestate Estate of Pedro
d) Civil Interdiction (Penalty)
Fragrante)
e) Prodigality
f) Family relations
Q. When does civil personality cease?
g) Alienage
h) Absence
a) If natural persons  by death
i) Insolvency and trusteeship
b) If juridical persons  by termination of
existence
Only religious belief and political opinion are
the circumstances which do not limit capacity to
act. (Art. 39, NCC)

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Q. What are the effects of minority on Q. What is the domicile of juridical persons?
contracts?
ANS. The place where their legal representation
ANS. is established, or where they exercise their
1) They cannot give consent to a contract primary functions, unless there is a law or other
(Art. 1327 (1), NCC) provision that fixes the domicile. (Art. 51, NCC)
2) A contract where one of the parties is a
minor is voidable (Art. 1390(1), NCC) Domicile v. Residence: While domicile is
3) Minority cannot be asserted by the other permanent (there is intent to remain), residence
party in an action for annulment (Art. is temporary and may be changed anytime
1397, NCC) (there is no necessary intent to remain).
4) Not obliged to make restitution except
insofar as he has been benefited (Art. 1399, Q. What are the elements of domicile?
NCC)
5) A contract is unenforceable when both of ANS.
the parties are minors (Art. 1403(3), NCC) a) Physical presence in a fixed place
6) Minor has no right to demand the b) Intention to remain permanently (animus
thing/price voluntarily returned by him manendi)
(Art. 1426, NCC) c) Intention to abandon the old domicile
7) Minor has no right to recover voluntarily (animus non revertendi).
paid sum or delivered thing, if consumed
in good faith (Art. 1427, NCC) Q. What are the kinds of domicile?
8) Must pay reasonable amount for
necessaries delivered to him (Art. 1489, ANS.
NCC) 1) Domicile of origin - received by a person
at birth.
Q. What are the effects of minority on 2) Domicile of choice - the place freely chosen
marriage? by a person sui juris.
3) Constructive domicile - assigned to a child
ANS. by law at the time of his birth.
1) May not yet contract marriage (Art. 5, FC)
2) Marriages, where one of the parties is
below 18, even with the consent of B. RIGHTS AND OBLIGATIONS OF
parents/guardians, are void (Art. 35, FC) COUPLES IN INTIMATE RELATIONSHIPS
(RA 9262)

3. Domicile And Residence of Persons

Q. What is the scope of violence covered in RA
Q. What is the domicile of natural persons? 9262?

ANS. The domicile of natural persons is the ANS. Violence, as prohibited under this
place of their habitual residence. (Art. 50, NCC) Act, includes, but is not limited to:

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1) Physical Violence or acts that include restricting the woman's or her child's
bodily or physical harm; movement or conduct:
2) Sexual Violence or acts which is sexual in 1) Threatening to deprive or actually
nature, committed against a woman or her depriving the woman or her child of
child; custody to her/his family;
3) Psychological Violence or acts or 2) Depriving or threatening to deprive
omissions causing or likely to cause the woman or her children of
mental or emotional suffering of the financial support legally due her or
victim; and her family, or deliberately providing
4) Economic Abuse or acts that make or the woman's children insufficient
attempt to make a woman financially financial support;
dependent. (Sec. 3(a), RA 9262) 3) Depriving or threatening to deprive
the woman or her child of a legal
Q. What acts are considered as acts of violence right;
under R.A. 9262? 4) Preventing the woman in engaging
in any legitimate profession,
ANS. The crime of violence against women and occupation, business or activity or
their children is committed through any of the controlling the victim's own mon4ey
following acts: or properties, or solely controlling
a) Causing physical harm to the woman or the conjugal or common money, or
her child; properties;
b) Threatening to cause the woman or her f) Inflicting or threatening to inflict physical
child physical harm; harm on oneself for the purpose of
c) Attempting to cause the woman or her controlling her actions or decisions;
child physical harm; g) Causing or attempting to cause the woman
d) Placing the woman or her child in fear of or her child to engage in any sexual
imminent physical harm; activity which does not constitute rape, by
e) Attempting to compel or compelling the force or threat of force, physical harm, or
woman or her child to engage in conduct through intimidation directed against the
which the woman or her child has the right woman or her child or her/his immediate
to desist from or desist from conduct family;
which the woman or her child has the right h) Engaging in purposeful, knowing, or
to engage in, or attempting to restrict or reckless conduct, personally or through
restricting the woman's or her child's another, that alarms or causes substantial
freedom of movement or conduct by force emotional or psychological distress to the
or threat of force, physical or other harm woman or her child. This shall include, but
or threat of physical or other harm, or not be limited to, the following acts:
intimidation directed against the woman 1) Stalking or following the woman or
or child. This shall include, but not limited her child in public or private places;
to, the following acts committed with the 2) Peering in the window or lingering
purpose or effect of controlling or outside the residence of the woman
or her child;

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3) Entering or remaining in the Q. Who may file petition for protection orders?
dwelling or on the property of the
woman or her child against her/his ANS. A petition for protection order may be
will; filed by any of the following:
4) Destroying the property and a) the offended party;
personal belongings or inflicting b) parents or guardians of the offended
harm to animals or pets of the party;
woman or her child; and c) ascendants, descendants or collateral
5) Engaging in any form of harassment relatives within the fourth civil degree of
or violence; consanguinity or affinity;
i) Causing mental or emotional anguish, d) officers or social workers of the DSWD or
public ridicule or humiliation to the social workers of local government units
woman or her child, including, but not (LGUs);
limited to, repeated verbal and emotional e) police officers, preferably those in charge
abuse, and denial of financial support or of women and children's desks;
custody of minor children of access to the f) Punong Barangay or Barangay Kagawad;
woman's child/children. (Sec. 5, RA 9262) g) lawyer, counselor, therapist or healthcare
provider of the petitioner;
Q. What is a protection order? h) At least two (2) concerned responsible
citizens of the city or municipality where
ANS. A protection order under R.A. 9262 is an the violence against women and their
order issued under this act for the purpose of children occurred and who has personal
preventing further acts of violence against a knowledge of the offense committed. (Sec.
woman or her child and granting other 9, RA 9262)
necessary relief.
The relief granted under a protection order Q. Where shall a protection order be filed?
serves the purpose of safeguarding the victim
from further harm, minimizing any disruption ANS. The petition may be filed with the Family
in the victim’s daily life, and facilitating the Court of the place where the offended party
opportunity and ability of the victim to resides. If there is no existing Family Court, it
independently regain control over her life. The may be filed with the Regional Trial Court,
provisions of the protection order shall be Metropolitan Trial Court, Municipal Trial Court
enforced by law enforcement agencies. The in Cities, Municipal Trial Court or Municipal
protection orders that may be issued under this Circuit Trial Court with territorial jurisdiction
Act are the barangay protection order (BPO), over the place of residence of the offended
temporary protection order (TPO) and party. (Sec. 9, RA 9262)
permanent protection order (PPO). (Sec. 8, RA
9262)

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 CIVIL LAW

Q. What reliefs are available in a protection respondent's removal of personal

order? belongings;
f) Granting a temporary or permanent
ANS. The protection order shall include any, custody of a child/children to the
some or all of the following reliefs: petitioner;
a) Prohibition of the respondent from g) Directing the respondent to provide
threatening to commit or committing, support to the woman and/or her child if
personally or through another, acts of entitled to legal support;
violence against the offended party; h) Prohibition of the respondent from any
b) Prohibition of the respondent from use or possession of any firearm or deadly
harassing, annoying, telephoning, weapon and order him to surrender the
contacting or otherwise communicating same to the court for appropriate
with the petitioner, directly or indirectly; disposition by the court, including
c) Removal and exclusion of the revocation of license and disqualification
respondent from the residence of the to apply for any license to use or possess a
petitioner, regardless of ownership of the firearm;
residence, either temporarily or i) Restitution for actual damages caused by
permanently where no property rights the violence inflicted, including, but not
are violated; limited to, property damage, medical
d) Directing the respondent to stay away expenses, childcare expenses and loss of
from offended party and designated income;
family or household member at a distance j) Directing the DSWD or any appropriate
specified by the court or directing the agency to provide petitioner may need;
respondent to stay away from the and
residence, school, place of employment or k) Provision of such other forms of relief as
any specified place frequented regularly the court deems necessary to protect and
by the offended party and any designated provide for the safety of the petitioner and
family or household member; any designated family or household
e) Directing lawful possession and use by member, provided petitioner and any
petitioner of an automobile and other designated family or household member
essential personal effects, regardless of consents to such relief.
ownership, and directing the appropriate
law enforcement officer to accompany the Any of the reliefs provided under this section shall be
offended party to the residence of the granted even in the absence of a decree of legal
parties to ensure that the petitioner is separation or annulment or declaration of absolute
safely restored to the possession of the nullity of marriage. (Sec. 8, RA 9262)
automobile and other essential personal
effects, or to supervise the petitioner's or

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Q. Does RA 9262 violate the equal protection come into being, irrespective of the wish of the
clause? parties. Marriage is also a social institution
regulated and controlled by the state.
ANS. No. RA 9262 does not violate the
equal protection clause. The unequal power Q. Distinguish marriage from ordinary
relationship between women and men; the fact contract.
that women are more likely than men to be
victims of violence; and the widespread gender ANS.
bias and prejudice against women all make for 1) Marriage cannot be revoked, dissolved or
real differences justifying the classification otherwise terminated by the parties, but
under the law. (Garcia v. only by the sovereign power of the state.
Drilon (2006), GR 179267). 2) The nature, consequences and incidents
are marriage are governed by law and not
subject to agreement.
C. MARRIAGE 3) Only two person of opposite sex may enter
into a contract of marriage.
4) It is a social institution.
1. Requisites

Q. What is marriage and what is the policy of

Q. What are the essential requisites of
the government on marriage? Explain.
marriage?

ANS. Marriage is a special contract of

ANS. No marriage shall be valid, unless these
permanent union between a man and a woman essential requisites are present:
entered into in accordance with law for the
1) Legal capacity of the contracting parties
establishment of conjugal and family life. It is who must be a male and a female; and
the foundation of the family and an inviolable
2) Consent freely given in the presence of a
social institution whose nature, consequences solemnizing officer. (Art. 2, FC)
and incidents are governed by law and not
subject to stipulation, except that marriage
Q. What are the formal requisites of marriage?
settlements may fix the property relations
during the marriage within the limits provided
ANS. The formal requisites of marriage are:
by this code. (Art. 1, FC)
1) Authority of the solemnizing officer;
2) A valid marriage license except in the
Q. Why is marriage considered as a special
cases provided for in Chapter 2 of this
contract?
Title; and
3) A marriage ceremony which takes place
ANS. It is considered as a civil contract because
with the appearance of the contracting
it is entered into by agreement of the parties. parties before the solemnizing officer and
However, unlike ordinary contract, it is also a
their personal declaration that they take
status or personal relation, founded on contract
each other as husband and wife in the
and established by law, under which certain
rights and duties incident to the relationship
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presence of not less than two witnesses of 3) Testimony of the person who officiated the
legal age. (Art. 3, FC) solemnization of marriage.
4) The couple’s public and open cohabitation
Q. What happens in the absence of, defect or as husband and wife after the wedlock
irregularity of any of the essential or formal 5) Birth and baptismal certificate of children
requisites in marriage? born during such union
6) Mention of such nuptials in subsequent
ANS. The absence of any of the essential or documents
formal requisites shall render the marriage void The burden of proof to show the nullity of marriage
ab initio, except as stated in Article 35 (2): “Those rests upon the party seeking its nullity.
solemnized by any person not legally authorized to
perform marriages unless such marriages were Q. What are the components of legal capacity
contracted with either or both parties believing in in a marriage?
good faith that the solemnizing officer had the legal
authority to do so”. ANS.
A defect in any of the essential requisites shall 1) Age requirement: Must be 18 years old on the
not affect the validity of the marriage but the date of marriage. Additional requirements:
party or parties responsible for the irregularity a) if any of the parties is below 21 years
shall be civilly, criminally and administratively old, the concerned party should seek
liable. (Art. 4, FC) parental consent
b) If any of the parties is 21 years old and
Q. What is presumption of marriage? below 25 years old, the party concerned
should first seek parental advice
ANS. A man and a woman deporting 2) Sex of the parties
themselves as husband and wife have entered 3) Absence of legal impediments mentioned in
into a lawful contract of marriage.’ Persons Art. 37 and 38 (Incestuous marriage and
living together as husband and wife are married marriage prohibited by the reason of public
to each other. “Semper praesumitur pro policy)
matrimonio” —Always presume marriage.
Q. How is consent manifested in a marriage?
Q. What is the best proof of marriage? Is
failure to present such a proof of no marriage? ANS. The only way of manifesting consent is to
appear personally before a solemnizing officer
ANS. The best proof of marriage would be the and declare the marriage in the presence of not
marriage contract itself. But failure to present it less than two witnesses of legal age.
is not a proof that no marriage took place as Consent must be given freely, voluntarily and
these other evidence may be presented to prove intelligently.
marriage:
1) Testimony by one of the parties to the
marriage;
2) Testimony by one of the witnesses of
marriage;

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Q. Who are authorized to solemnize marriage? solemnized in accordance with their

customs, rites or practice
ANS. Marriage may be solemnized by: 4) Ratification of marital cohabitation
1) Incumbent members of the judiciary within between a man and a woman who have
the court’s jurisdiction; lived together for at least five (5) years,
2) Priest, rabbi, imam or minister of any church provided that they have no legal
or religious sect duly authorized by his impediment to marry.
church or religious sect, provided that any of
the parties are member of the church or Q. Is a marriage ceremony a prerequisite to
religious sect; marriage validity?
3) Ship captain or airplane chief, in cases of
articulo mortis while the parties are on board ANS. The solemnization of a marriage is a
the vessel; prerequisite to its validity because in this
4) Military commanders of a unit, in cases of jurisdiction, informal or common-law
articulo mortis when one of the parties is marriages are not recognized.
involved in the military operation;
5) Consul-general, consul or vice-consul, in Q. What are the authorized venues of
limited cases e.g. for citizens abroad. (Art. 7, marriage?
FC)
6) Mayors. (LGC) ANS. As a general rule, marriage must be
solemnized publicly, and not elsewhere, in the:
Q. When is a marriage license valid? 1) Chambers of the judge or in open court
2) Church, chapel or temple
ANS. A marriage license to be valid must be 3) Office of consul-general, consul or vice-
issued by the local civil registrar of the place consul
where the marriage application is filed. It has Exceptions:
only a lifetime of 120 days from the date of issue 1) Marriage at the point of death (articulo
and is effective in any part of the Philippines. mortis);
2) Marriage in remote places
Q. What are the instances recognized by the 3) Marriage at a house or place designated by
Family Code wherein a marriage license is the parties with the written request to the
dispensed with? solemnizing officer

ANS. Q. A, a married man, and B, an unmarried

1) Articulo mortis—either or both of the woman, entered into a written agreement to
parties are at the point of death marry each other when A becomes a widower.
2) If the residence of either party is so located After becoming a widower, A married another
that there is no means of transportation to woman. Can B sue A for breach of promise?
enable such party to appear personally
before the local civil registrar ANS. No, insofar as moral damages are
3) Marriages among Muslims and other concerned. Moreover, to engage in such a
ethnic groups, provided that they are promise during the lifetime of another’s spouse

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would be contrary to good morals and good damages under CERTAIN conditions, as when
customs, and the agreement, even on that there has been a deliberate desire to inflict loss
ground alone, must be considered void. or injury, or when there has been an evident
abuse of a right. Thus, a man who deliberately
Q. In an action based on a breach of promise to fails to appear at the altar during the scheduled
marry, what rights has the aggrieved party in wedding simply because it was his intention to
cases: embarrass or humiliate the girl no doubt inflicts
a) When there has been carnal knowledge? irreparable injury to her honor and reputation,
b) When there has been NO carnal wounds her feelings, and leads the way for her
knowledge? possible social ostracism. The girl in such a case
can recover not only actual but also moral and
ANS. exemplary damages.
a) When there has been carnal knowledge, the
aggrieved party may: 2. Marriages Celebrated Abroad
1) ask the other to recognize the child,
should there be one, and give support Q. What is the rule on marriages solemnized
to said child. abroad and what are the exceptions?
2) sue for moral damages, if there be
criminal or moral seduction, but not if ANS. As a general rule, marriages solemnized
the intercourse was due to mutual lust. outside the Philippines. in accordance with the
(In other words, if the CAUSE be the law of the foreign country shall be valid in the
promise to marry, and the EFFECT be Philippines (lex loci celebrationis) (Art. 26, FC)
the carnal knowledge, there is a chance Exceptions:
that there was criminal or moral 1) Where either or both parties are below
seduction, hence, recovery of moral 18years old
damages will prosper. If it be the other 2) Bigamous or polygamous marriage
way around, there can be no recovery of (except Art. 41 on presumptive death of
moral damages, because here mutual spouse)
lust has intervened). However, moral 3) Mistake in identity
damages may be recovered by the girl if 4) Marriages void under Art. 53 – contracted
the man, in his effort to make the girl following the annulment or declaration of
withdraw a suit for support of the child, nullity of a previous marriage but before
deliberately calls the attention of the partition
girl’s employer to her condition as an 5) Psychological incapacity
unwed mother — a maneuver causing 6) Incestuous marriages
her mental anguish and even physical 7) Marriage void for reasons of public policy
illness and suffering.
3) sue for ACTUAL damages, should there
be any, such as the expenses for the
wedding preparations.
b) When there has been NO carnal knowledge,
there may be an action for actual and moral

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Q. What are the requirements to prove a ANS. Yes, the Filipino spouse may remarry.
foreign marriage? Divorce validly obtained abroad by the alien
spouse capacitating him/her to remarry will
ANS. likewise allow the Filipino spouse to remarry
1) The existence of the pertinent provision of the (Art. 26, par. 2, FC).
foreign marriage law; and NOTE: Under the nationality principle
2) The celebration or performance of the embodied in Art. 16 of the NCC, only Philippine
marriage in accordance of said law. nationals are covered by the policy against
absolute divorces.
Q. Discuss briefly the Mail Order Bride Act.
Q. Are divorces obtained by a Filipino abroad
ANS. RA 6995 (Mail Order Bride Act) declares valid?
as unlawful the practice of matching Filipino
women for marriage to foreign nationals on a ANS. Divorces obtained abroad by Filipino
mail-order basis and other similar practices citizens may now be validly recognized in the
including the advertisement, publication, Philippines but only in cases of mixed
printing or distribution of brochures, fliers, and marriages involving a Filipino and a foreigner.
other propaganda materials in furtherance This is because Art. 26(2), FC makes no
thereof. distinction as to who obtains the divorce. All
that is required is that it is validly obtained
3. Foreign Divorce abroad. A Filipino who initiates the divorce
proceeding against a foreign spouse still ends
Q. What are the requisites for a Filipino to up in the same position as one whose foreign
obtain divorce? spouse initiated proceedings: they both no
longer have spouses. There should be no
ANS. distinction between the two cases in order to
a) There is a valid marriage that had been avoid the absurd situation where a Filipino
celebrated between Filipino citizen and a spouse is still married to the alien spouse even
foreigner though the latter is capacitated by his own laws
b) A valid divorce is obtained abroad by the to remarry and is no longer married to the
alien spouse capacitating him or her to Filipino. (Republic v. Manalo, GR 221029
remarry (2018))
The traditional rule applies when parties at the
time of celebration are a Filipino and an alien. 4. Void Marriages

Q. Suppose in a valid mixed marriage the Q. What are the types of void marriages?
foreign spouse obtained a divorce decree
abroad and was capacitated to remarry. May ANS.
the Filipino spouse remarry despite the fact 1) Absence of any formal/essential requisites
that divorce is not valid in the Philippines? (Art. 35, FC)
2) Bigamous and polygamous marriages
(Art. 35(4), FC)

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3) Psychologically incapacitated spouse (Art. Q. For purposes of declaring a marriage void,

36, FC) what is meant by psychological incapacity?
4) Incestuous marriages (Art. 37, FC)
5) Void by reasons of public policy (Art. 38, ANS. Psychological incapacity is not a medical
FC) but a legal concept. It refers to a personal
6) Bad faith of both spouses in the condition that prevents a spouse to comply with
subsequent marriage (Art. 41, FC) fundamental marital obligations only in relation
7) Void subsequent marriages (Art. 35(6), FC) to a specific partner that may exist at the time of
8) Subsequent marriage, upon reappearance the marriage but may have revealed through
of spouse (Art. 42, FC) behavior subsequent to the ceremonies. It need
not be a mental or personality disorder. It need
Q. What marriages are considered void ab not be a permanent and incurable condition.
initio? Therefore, the testimony of psychologist or
psychiatrist is not mandatory in all cases. The
ANS. The following marriages shall be void totality of the evidence must show clear and
from the beginning: convincing evidence to cause the declaration of
1) Those contracted by any party below nullity of marriage. (Tan-Andal v. Andal, GR
eighteen years of age even with the 196359 (2021))
consent of parents or guardians;
2) Those solemnized by any person not Q. What marriages are void for being
legally authorized to perform marriages incestuous?
unless such marriages were contracted
with either or both parties believing in ANS. Marriages between the following are
good faith that the solemnizing officer had incestuous and void from the beginning,
the legal authority to do so; whether relationship between the parties be
3) Those solemnized without license, except legitimate or illegitimate:
those covered the preceding Chapter; 1) Between ascendants and descendants of
4) Those bigamous or polygamous marriages any degree
not failing under Art. 41; 2) Between brothers and sisters, whether full
5) Those contracted through mistake of one or half blood (Art. 37, FC)
contracting party as to the identity of the II.
other; and Q. What marriages are void for reason of
6) Those subsequent marriages that are void public policy?
under Art. 53. (Art. 35, FC)
7) A marriage contracted by any party who, ANS. The following marriages shall be void
at the time of the celebration, was from the beginning for reasons of public policy:
psychologically incapacitated to comply 1) Between collateral blood relatives up to
with the essential marital obligations of the 4th civil degree.
marriage, shall likewise be void even if 2) Between step-parents and step-children
such incapacity becomes manifest only 3) Between parents-in-law and children-in-
after its solemnization. (Art. 36, FC) law

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4) Between adopting parent and adoptive Q. What are the elements of a bigamous
child marriage?
5) Between surviving spouse of the adopter
and the adopted ANS.
6) Between surviving spouse of the adopted a) Offender legally married
and the adopter b) Marriage not legally dissolved
7) Between adopted and legitimate child of c) Offender contracts a subsequent marriage
adopter d) Subsequent marriage has all the essential
8) Between adopted children of same requisites for validity, except legal
adopter capacity (Capili v. People (2013), G.R. No.
9) Between parties where one, with the 183805)
intention to marry the other, killed that
other person’s spouse or his/her own Q. What are the rules on bigamous marriages?
spouse (Art. 38, FC)
ANS. General Rule: Marriage contracted by any
NOTE: Under the new Family Code, the person during the subsistence of a previous
following can now marry each other: marriage is VOID (Art. 41, FC)
1) Brother-in-law and sister-in-law Exception: If before the celebration of the
2) Stepbrother and stepsister subsequent marriage:
3) Guardian and ward a) the previous spouse had been absent for
4) Adopted and illegitimate child of the consecutive years (ordinary absence) or 2
adopter years (extraordinary absence) and
5) Parties who have been convicted of b) the remaining spouse has a well-founded
adultery or concubinage belief that the absent spouse was already
dead
Q. When shall the action for declaration for c) judicial declaration of presumptive death-
nullity of marriage prescribe? In this case, the subsequent marriage is
valid but it shall be automatically
ANS. The action or defense for the declaration terminated by the recording of the
of absolute nullity of a marriage shall not affidavit of reappearance of the absent
prescribe. (Art. 39, FC) spouse.

Q. What is bigamy? Exception to the Exception:

If both spouses of the subsequent marriage
ANS. Bigamy is when a person contracts a acted in bad faith, such marriage is void ab
second or subsequent marriage before the initio (Art. 44)
former marriage has been legally dissolved, or
before the absent spouse has been declared
presumptively dead by means of judgment
rendered in the proper proceedings (Art. 349,
RPC).

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Q. What are the requisites for declaration of 3) If either spouse acted in bad faith, his/her
presumptive death? share in the net profits shall be forfeited:
a) In favor of the common children
ANS. b) If none, in favor of the children of the
1) That the absentee spouse has been missing guilty spouse by previous marriage
for 4 consecutive years if the disappearance c) In default of children, in favor of the
occurred where there is danger of death innocent spouse
under circumstances in Art. 391 of New Civil 4) Donations by reason of the marriage remain
Code. valid except if the donee contracted the
2) The present spouse wishes to remarry marriage in bad faith
3) The present spouse has a well-founded belief 5) The innocent spouse may revoke the
that the absentee is dead designation of the spouse in bad faith as the
4) The present spouse files a summary beneficiary in any insurance policy, and
proceeding for the declaration of 6) The spouse who contracted the subsequent
presumptive death. marriage in bad faith shall be disqualified to
inherit from the innocent spouse by testate or
Q. What is the effect of reappearance of the intestate succession.
absent spouse?
NOTE: The above effects apply in voidable
ANS. As a general rule, the subsequent bigamous marriages. Except for (1), the above
bigamous marriage under Art. 41 remains valid effects also apply to marriages which are
despite reappearance of the absentee spouse. annulled or declared void ab initio under Art.
Exception: If the reappearance was made in as 40.
worn statement recorded in the civil registry,
the subsequent marriage is automatically 5. Voidable Marriages
terminated.
Exception to the Exception: If there was a Q. What are the grounds for annulment of
previous judgment annulling or declaring the marriage?
first marriage a nullity, the subsequent
bigamous marriage remains valid. ANS. A marriage may be annulled for any of the
following causes, existing at the time of the
Q. What are the effects of termination of marriage: PUFFIS
subsequent marriage? 1) Lack of parental consent
2) Either party is of unsound mind
ANS. LDDRI 3) Fraudulent means of obtaining consent of
1) Children of the subsequent marriage either party
conceived prior to its termination shall be 4) Force, intimidation or undue influence
considered legitimate 5) Physical incapability of either party to
2) The absolute community or conjugal consummate the marriage with the other,
partnership shall be dissolved and and such incapacity continues and
liquidated. appears to be incurable

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6) Affliction of sexually transmissible disease

found to be serious and which appears Q. What are the elements of sexually
incurable (Art. 45, FC) transmissible disease to be found serious and
incurable as ground for annulment?
Q. What are the circumstances constituting
fraud as a ground for annulment of marriage? ANS.
a) Existing at the time of marriage
ANS. b) Sexually transmissible disease
a) Nondisclosure of conviction by final c) Serious
judgment of crime involving moral turpitude d) Appears incurable
b) Concealment of pregnancy by another man
c) Concealment of sexually transmissible Q. Distinguish Art. 45 from Art. 46 of the
disease, regardless of nature, existing at the Family Code.
time of marriage
d) Concealment of drug addiction, habitual Article 45 Article 46
alcoholism, homosexuality and lesbianism The STD is a The STD is a type
ground for of fraud which in
Q. What is the doctrine of triennial annulment turn is aground
cohabitation? for annulment
The STD does not The STD must be
ANS. It is the presumption that the husband is have to be concealed
impotent should the wife still remain a virgin concealed
after 3 years of living together with her The STD must be The STD does not
husband. serious and have to be serious
incurable and appears
Q. What are the requisites of annulment due to incurable
impotence? It is the The STD itself is
concealment, and the ground for
ANS. not the STD, annulment
a) Impotence exists at the time of the celebration which gives rise
of marriage to the annulment
b) Permanent
c) Incurable
6. Unmarried Cohabitation
d) Unknown to the other spouse
e) The other spouse must not also be impotent
Q. What is the effect of husband and wife
(Art. 46, FC)
living together without being lawfully
married?

ANS. Though there is no technical marital

partnership between persons living as husband
and wife, without being lawfully married,
nevertheless there is between them an informal
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civil partnership which would entitle the parties benefit of marriage. When Danielle reached 18
to an equal interest in property acquired by years of age, her parents forcibly took her back
their joint efforts (Lesaca v. Lesaca, G.R. No. L- and arranged for her marriage to Dan.
3605 (1952)). Property regimes for common-law Although Danielle lived with Dan after the
marriages are also provided for in Art. 147 and marriage, Daniel continued to regularly visit
148 of the Family Code. Danielle while Dan was away at work. During
their marriage, Daniel gave birth to a baby
Q. What are the requisites for the 5-year boy, Ben. When Danielle was 25 years old, Dan
cohabitation as an exception to the marriage discovered her continued liaison with Daniel
license requirement? and in one of their heated arguments, Danielle
shot Dan to death. She lost no time in
ANS. marrying her true love Daniel, without a
1) Living together as husband and wife at least marriage license, claiming that they have been
5 years before the marriage – exclusively, continuously cohabiting for more than 5 years.
with no other partners, during the whole 5- Was the marriage of Daniel and Danielle
year period and such cohabitation was valid?
unbroken.
NOTE: The period is counted from the date ANS. NO, the marriage is void because there
of celebration of marriage. It should be the was no marriage license. Their marriage was not
years immediately before the day of the exempt from the requisite of a marriage license
marriage. because Daniel and Danielle have not been
2) No legal impediment to marry each other cohabiting for at least 5 continuous years before
during the period of cohabitation. the celebration of their marriage. Their lovers’
trysts and brief visitations did not amount to
NOTE: The five-year period of cohabitation “cohabitation”.
must have been a period of legal union had it
not been for the absence of marriage.
3) Fact of absence of legal impediment must be D. LEGAL SEPARATION
present at the time of the marriage.
4) Parties must execute an affidavit that they are Q. What is legal separation?
living together as husband and wife for 5
years and that they do not have any ANS. Legal separation is a legal remedy
impediment to marry. available to parties in a valid but failed marriage
5) Solemnizing officer must execute a sworn for the purpose of obtaining a
statement that he had ascertained the decree from the court entitling him or her
qualifications of the parties and found no certain reliefs such as the right to live separately
legal impediment to their marriage. from each other, the dissolution and liquidation
of their absolute community or conjugal
Q: Daniel and Danielle were high school partnership property regime and the custody of
sweethearts. When Daniel was 18 and their minor children.
Danielle, 16 years old, they started living
together as husband and wife without the

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1. Grounds 2) Consent by aggrieved party to the

commission of the offense – before the
Q. What are the grounds for legal separation? commission of the offense; May be express
3) Connivance between parties in the
ANS. PRC-FAL-BILA commission of the offense
1) Repeated physical violence or grossly 4) Collusion between parties to obtain decree of
abusive conduct directed against legal separation
petitioner, a common child or a child of the 5) Mutual guilt or recrimination between
petitioner spouses in the commission of any ground for
2) Physical violence or moral pressure to legal separation
compel the petitioner to change religious 6) Prescription – action for legal separation
or political affiliation must be filed within five years from the time
3) Attempt of respondent to corrupt or of the occurrence of the cause of action
induce the petitioner, a common child, or 7) Death of either party during the pendency of
a child of the petitioner, to engage in the case (Lapuz-Sy v. Eufemio 43 SCRA 177
prostitution, or connivance in such [1972])
corruption or inducement 8) Reconciliation of the spouses during the
4) Final judgment sentencing respondent to pendency of the case
imprisonment of more than 6 years (even
if pardoned) 3. Procedure
5) Drug addiction or habitual alcoholism
6) Lesbianism or homosexuality Q. Who may file the action for legal
7) Subsequent bigamous marriage separation?
8) Sexual infidelity or perversion ANS. A petition for legal separation may be
9) Attempt by respondent against the life of filed only by the husband or the wife. (Sec. 2,
the petitioner A.M. No. 02-11-11-SC)
10) Abandonment for more than one year
without justifiable cause (Art. 55, FC) Q. Where shall the action for legal separation
be filed?
2. Defenses
ANS. The petition shall be filed in the Family
Q. What are the grounds to deny legal Court of the province or city where the
separation? petitioner or the respondent has been residing
for at least six months prior to the date of filing
ANS. “or in the case
1) Condonation by aggrieved party – after the of a non-resident respondent, where he may be
commission of the offense; may be expressed found in the Philippines, at the election of the
or implied. – Note: Failure of the husband to petitioner.” (Sec. 2, A.M. No. 02-11-11-SC)
look for his adulterous wife is not
condonation to wife’s adultery

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Q. When shall the action for legal separation 4) Filed in six copies. (Sec. 2, A.M. No. 02-11-11-
be filed? SC)

ANS. An action for legal separation shall be 4. Effects of Filing Petition

filed within five years from the time of the
occurrence of the cause. (Art. 57, FC and A.M. Q. What are the effects of filing a petition for
No. 02-11-11-SC) legal separation?

Q. What is cooling-off under legal separation? ANS.

The spouses are entitled to live separately, but
ANS. An action for legal separation shall in no the marital bond is not severed. (Art. 61(1), FC)
case be tried before six months shall have Administration of community or conjugal
elapsed since the filing of the petition. (Art. 58, property – If there is no written agreement
FC) between the parties, the court shall designate
Actions cannot be tried unless the court has one of them or a third person to administer the
attempted to reconcile the spouses, and ACP or CPG. (Art. 61, par. 2, FC)
determined that despite such efforts,
reconciliation is highly improbable. (Art. 59, FC) NOTE: No motion to dismiss the petition shall
be allowed except on the ground of lack of
NOTES: jurisdiction over the subject matter or over the
 This is without prejudice to judicial parties; provided, however, that any other
determination of custody of children, ground that might warrant a dismissal of the
alimony, and support pendente lite. case may be raised as an affirmative defense in
Courts can still resolve other issues, an answer. (Sec. 4, A.M. No. 02-11-11-SC)
pending the waiting period or cooling off
period.
5. Effects of Pendency
 The mandatory 6-month cooling-off
period does not apply in cases where
Q. What are the effects of pendency of a
violence is alleged. (RA 9262)
petition for legal separation?
Q. What are the contents and form of the
ANS. In the absence of adequate provisions in a
petition for legal separation?
written agreement between the spouses, the
Court shall provide for:
ANS.
1) Support of spouses;
1) Complete facts constituting the cause of
2) Custody and support of their common
action;
children. The Court shall give paramount
2) Names and ages of the common children of
consideration to the moral and material
the parties, specify the regime governing
welfare of said children and their choice of
their property relations, the properties
the parent with whom they wish to
involved, and creditors, if any;
remain; and
3) Verified and accompanied by a certification
3) Visitation rights of the other spouse (Art.
against forum shopping;
49, FC)
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6. Effects of Decree of Legal Separation Q. What are the effects of reconciliation of the
spouses in an action for legal separation?
Q. What are the effects of legal separation?
ANS.
ANS. a) Proceedings for legal separation shall be
1) Spouses are entitled to live separately terminated at whatever stage (Art. 66(1),
2) Marriage bond is not severed FC)
3) Dissolution of property regime b) If there is a final decree of legal separation,
4) Forfeiture of the share of the guilty spouse in it shall be set aside (Art. 66(2), FC)
the net profits of the ACP/CPG c) The separation of property and forfeiture
5) Custody of minor children to innocent of share of guilty spouse shall subsist,
spouse (subject to Art. 213 which provides unless the spouses agree to revive their
that parental authority shall be exercised by former property regime or to institute
parent designated by the court) another property regime (Art. 66 cf. Art.
6) Guilty spouse is disqualified from intestate 67, FC).
succession and provisions made by innocent d) Joint custody of children is restored.
spouse in his favor in a will shall be revoked e) The right to intestate succession by guilty
by operation of law spouse from innocent spouse is restored.
7) Innocent spouse may revoke the donation f) The right to testamentary succession
made by him in favor of the offending depends on the will of the innocent
spouse. However, alienations, liens and spouse.
encumbrances registered in good faith before
the recording of the complaint for revocation 8. Effect of Death of One Of The Parties
in the registries of property shall be
respected. Q. What is the effect of death of one of the
8) Innocent spouse may revoke designation of parties during the pendency of an action for
guilty spouse as beneficiary in the insurance legal separation?
policy even if such designation be stipulated
as irrevocable ANS. The death of either party to a legal
separation proceeding, before final decree,
7. Reconciliation abates the action. There is no more need for
legal separation because the marriage is already
Q. What should the spouses do in case they dissolved by the death of one of the parties. An
reconcile during the pendency of the action for action for legal separation is also purely
legal separation? personal between the spouses. (Lapuz Sy v.
Eufemio)
ANS. If the spouses should reconcile, a
corresponding joint manifestation under oath
duly signed by them shall be filed with the court E. RIGHTS AND OBLIGATIONS
in the same proceeding for legal separation. BETWEEN HUSBAND AND WIFE
(Art. 65, FC)
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Q. What are the obligations of a husband and Q. Where shall the expenses for support of the
wife? family be taken from?

ANS. ANS. The expenses for such support and other

1) Live together conjugal properties shall be paid:
2) Observe mutual love, respect and fidelity a) From the conjugal property;
3) Render mutual help and support b) If none, income or the fruits of their
4) Management of the household separate properties;
5) Fix the family domicile c) If none, from their separate properties,
6) Joint responsibility for the support of the wherein they shall be liable in proportion
family to their properties (Art. 70, FC).

Q. What is the exemption that husband and Q. Can either spouse exercise any legitimate
wife should live together? profession/business without the consent of the
other?
ANS. The court may exempt one spouse from
living with the other if the latter should live ANS. As a general rule, either spouse may
abroad or there are other valid and compelling exercise any legitimate profession/business
reasons for the exemption. without the consent of the other, except that the
other spouse may object on valid, serious and
Exception to the Exception: If the same is not moral grounds. In case of disagreement, the
compatible with the solidarity of the family. court shall decide whether
(Art. 69, FC) a) The objection is proper AND
b) Benefit has accrued to the family before
NOTE: If the wife abandons the family domicile and after the objection.
with justifiable cause (i.e. being forced to  If benefit accrued to the family before
perform lewd sexual acts), the husband’s the objection, the resulting obligation
obligation to support her is not terminated. The shall been forced against the separate
law will not permit the husband to terminate the property of the spouse who has not
obligation obtained consent
to support his wife by his own wrongful acts  If benefit accrued to the family after
driving the wife to seek protection in her the objection has been made, the
parents’ home (Goitia v. Campos Rued, GR resulting obligation shall be enforced
11263 (1916)). against the community property

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Q. What are the requisites of a valid marriage

F. PROPERTY RELATIONS settlement?
BETWEEN HUSBAND AND WIFE
ANS.
Q. What are the rules governing property 1) In writing
relations between spouses? 2) Signed by the parties
3) Executed before the celebration of the
ANS. marriage
1) Marriage settlements executed before the 4) Confined to terms and conditions of property
marriage relations only
2) Provisions of the Family Code 5) Not containing provisions contrary to Law,
3) Local customs (Art. 74, FC) Morals, Good Customs, Public Policy and
Public Order (ART 6, NCC), or against the
Q. What are the different property regimes dignity of either spouse (Paras)
governing marriage?
Q. What are the additional requirements in a
ANS. marriage settlement?
1) Absolute Community Property (ACP)
2) Conjugal Partnership of Gains (CPG) ANS.
3) Absolute Separation of Property (ASOP) FACTUAL ADDITIONAL
4) Any other regime within the limits of the SITUATION REQUIREMENT
Family Code (Art. 75, FC) If one or both The ff. must be
parties are: made
1. Marriage settlements party/parties to
the marriage
settlement
Q. What is a marriage settlement?
18-21 years old Father, mother,
surviving parent
ANS. It is a contract entered into by future
or guardian, or
spouses fixing the matrimonial property regime
persons having
that should govern during the existence of the
charge of
marriage. (Paras) It is also known as ante
party/ies
nuptial agrementor matrimonial contract.
concerned
Sentenced with Guardian
Q. What is the subject of marriage settlements?
civil interdiction appointed by a
competent court
ANS. Parties may enter into stipulations
relating only to their property relations during Disabled Guardian
the marriage, within the limits provided by the appointed by a
Family Code (Art. 1, FC). However, the nature, competent court
consequences and effects of marriage cannot be
the subject of stipulation (Rabuya).

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Q. How is the registration of marriage made? to comply with marital obligations by one
spouse (Arts. 101 & 128, FC)
ANS. Registration of marriage settlements is 3) Judicial SEPARATION of property for
necessary to bind third persons. It should be sufficient cause (Art. 135, FC)
made in: 4) VOLUNTARY dissolution of absolute
1) Local civil registry where marriage community property/conjugal partnership
contract was recorded; and property through a verified petition for
2) Proper registries of property. separation of property (Art. 136, FC)
If not registered, marriage settlement will
NOT prejudice third persons. Absolute Q. What law governs property relations
Community of Property (ACP) will apply. between spouses?

Q. When is the marriage settlement not ANS. As a general rule, Philippine law shall
applicable? govern property relations between spouses
regardless of celebration of the marriage or
ANS. residence of said spouses.
1) When both are aliens, even if married in the However, Philippine law will not apply when:
Philippines 1) A contrary stipulation was agreed upon in
2) As to extrinsic validity of contracts the marriage settlement;
3) Contrary stipulation 2) In the following cases, in which lex rei sitae
applies:
Q. May a marriage settlement be modified? a) Where both spouses are aliens
b) With respect to the extrinsic validity of
ANS. Yes, any modification to be valid must: contracts affecting property not
1) Comply with the requisites of a valid situated in the Philippines and executed
marriage settlement; and in the country where the property is
2) Must be judicially approved. located
c) With respect to the extrinsic validity of
Q. What are the effects of the modifications of contracts entered into in the Philippines
marriage settlement after the marriage but affecting property situated in a
ceremony? foreign country whose laws require
different formalities for its extrinsic
ANS. validity. (Art. 80, FC)
1) REVIVAL of former property regime
between reconciling spouses after a decree Q. What is the effect of non-celebration of
of legal separation has been issued and marriage?
any forfeiture executed (Arts. 66 & 67, FC)
2) PETITION for receivership, for judicial ANS. As a general rule, everything stipulated in
separation of property, or for authority to marriage settlements or contracts, in
be the sole administrator of absolute consideration of the marriage, shall be rendered
community property/conjugal partnership void. (Art. 81, FC)
property in case of abandonment or failure

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Exception:¨Stipulations not dependent upon or 2) Donations in favor of future spouses

is not made in consideration of the marriage before the marriage but NOT IN
shall subsist. CONSIDERATION thereof; or
3) Donations made IN FAVOR of persons
Q. Is waiver of rights allowed in marriage OTHER THAN the future spouses, even If
settlement? founded on the intended marriage.

ANS. As a general rule, it is not allowed. Q. What are the requisites of donation by
Exceptions: reason of marriage?
a) In judicial separation of property
b) In legal separation ANS.
c) In cases when marriage is dissolved 1) Made prior to the celebration of the
d) In cases when marriage is annulled marriage
When the waiver takes place upon a judicial 2) Made in consideration of the intended
separation of property, or after the marriage has marriage
been dissolved or annulled, the same shall 3) Made in favor of one or both future
appear in a public instrument and shall be spouses (Art. 82, FC)
recorded as provided in Art. 77. The creditors of 4) Not contrary to law, morals, good
the spouse who made such waiver may petition customs, public policy and public order
the court to rescind the waiver to the extent of (Art. 6, NCC)
the amount sufficient to cover the amount of
their credits. (Art. 89, FC) Q. What are the additional requisite if between
future spouses and property regime agreed
NOTE: Same rule applies to ACP and CPG. upon is other than ACP?

ANS. Donation must not be more than one-fifth

2. Donations by reason of marriage (1/5) of their present property. (Art. 84, FC)

Q. What are donations propter nuptias? Q. Who may donate?

ANS. Donations propter nuptias are those made ANS.

prior to the celebration of the marriage, in 1) Spouses to each other;
consideration of the same, and in favor of one or 2) Parents of either spouse; or
both future spouses. (Art. 82, FC) 3) Third persons.

Q. What donations are excluded? Q. Who may be donee(s)?

ANS. ANS. Only the either or both of the future

1) Ordinary wedding gifts given AFTER spouses may be donee(s).
celebration of marriage;

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Q. What are the requisites of donations propter 5) If it is with a resolutory condition and the
nuptias between spouses under regime other condition is complied with;
than ACP? 6) When the donee has committed an act of
ingratitude as specified by the provisions
ANS. of the Civil Code on donations in general.
1) Valid marriage settlement stipulating a (Art. 86, FC)
property regime other than ACP
2) Donation is not more than 1/5 of his/her Q. What are acts of ingratitude as
present property (Art. 84, FC) contemplated in Art. 765 of the NCC?
3) Acceptance by the other would-be spouse
(Art. 745, NCC) ANS.
4) It must comply with the other requisites 1) If the donee should commit some offense
established in donation (Sta. Maria) against the person, the honor , or the
property of the donor, or of his wife, or
Q. Is a donation propter nuptias of property children under his parental authority;
with encumbrance valid? 2) If the donee imputes to the donor any
criminal offense, or any act involving
ANS. Yes. In case of foreclosure of the moral turpitude, even though he should
encumbrance and the property is sold for less prove it, unless the crime or act has been
than the total amount of the obligation secured, committed against the donee himself, his
the donee shall not be liable for the deficiency. wife or children under his authority;
If the property is sold for more than the total 3) If he unduly refuses him support when the
amount of said obligation, the donee shall be donee is legally or morally bound to give
entitled to the excess. (Art. 85, FC) support to the donor.

Q. When may revocation of donation by 3.Void donations by the spouses

reason of marriage be done?
Q. What is the rule on donation between
ANS. A donation by reason of marriage may be spouses?
revoked by the donor in the following cases:
1) If the marriage is not celebrated or ANS. Every donation or grant of gratuitous
judicially declared void ab initio except advantage, direct or indirect, between the
donations made in the marriage spouses during the marriage shall be void.
settlements, which shall be governed by
Art. 81; Exception: Moderate gifts on occasion of family
2) When the marriage takes place without the rejoicing. (Art. 87, FC)
consent of the parents or guardian, as *The foregoing rules also apply to common law
required by law; spouses.
3) When the marriage is annulled, and the
donee acted in bad faith;
4) Upon legal separation, the donee being the
guilty spouse;

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Q. What is the rationale for the rules in Section 2. What Constitute Community
donation between spouses? Property

ANS. Q. What are the properties included in the

 To protect unsecured creditors from being ACP?
defrauded
 To prevent the stronger spouse from 1) All property owned by spouses:
imposing upon the weaker spouse transfer a) At the time of the celebration of the
of the latter’s property to the former marriage, or
 To prevent indirect modification of the b) Acquired thereafter (Art. 91, FC);
marriage settlement 2) Property acquired during the marriage by
gratuitous title, if expressly made to form
4. Absolute Community of Property part of the ACP by the grantor (Art. 92[1],
FC);
3) Jewelries (Art. 92[2], FC); and
Section 1. General Provisions
4) Winnings in gambling or other games of
chance (Art. 95, FC).
Q. When is the absolute community of
partnership applicable?
Q. What are the properties excluded in the
ACP?
ANS.
1) When no marriage settlement was validly
ANS.
made
1) Property acquired during the marriage by
2) When property regime chosen in the
gratuitous titled and its fruits
marriage settlement is void
Exception: If transformed, or grantor
3) When spouses expressly adopt ACP in the
provides that it shall form part of the ACP
marriage settlement
2) Property for personal and exclusive use of
NOTE: ACP is the default regime after the
either spouse
effectivity of the Family Code.
Exception: Jewelries
3) Property acquired before the marriage by one
Q. When shall ACP commence?
with legitimate descendants by former
marriage, and its fruits and income
ANS. ACP shall commence at the precise
4) Those excluded, if any, in the MS
moment that the marriage is celebrated. Any
stipulation, express of implied, for the
Q. What is the presumption on properties
commencement at any other time shall be void.
acquired during the marriage?
(Art. 88, FC)

ANS. Properties acquired during the marriage

NOTE: Same rule applies to CPG (Art. 107, FC)
belong to the ACP, unless proved to be one of
the exclusions from the ACP.
*Same rule applies to CPG (Art. 116, FC)

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Section 3. Charges and Obligations of The spouse upon liquidation of the

Absolute Community community;
10) Expenses for litigation between spouses,
Q. What are charges upon and obligations of unless suit is groundless. (Art. 94, FC)
the CPG? (D2-E2-T2-VASA) *Same charges and obligations can be charged
to CPG, EXCEPT (9). (Art. 121, FC)
ANS. (D2-E2-T2-VASA)
1) Support of spouses, their common Q. What is the effect of insufficiency of
children, and legitimate children of either community property?
spouse;
2) Debts and obligations contracted during ANS. Spouses shall be solidarily for the unpaid
the marriage by the designated balance with their separate property.
administrator-spouse for the benefit of the Exception: The following shall be borne by the
CPG, or by both spouses, or by one with exclusive property of the spouse who incurred
the other’s consent; the same:
3) Debts and obligations contracted by one a) Ante-nuptial debts of either spouse other
without the other’s consent to the extent than those falling in ART 94(7);
that the family has been benefited; b) Support of illegitimate children of either
4) Taxes, liens, charges and expenses upon spouse;
the conjugal property; c) Liabilities incurred by either spouse by
5) Taxes and expenses for mere preservation reason of a crime or quasi-delict.
of separate property of either spouse; Any payment made by the community property
6) Expenses for professional, vocational or shall be considered as advances to be deducted
self-improvement course of either spouse; by debtor-spouse upon liquidation of the
7) Ante-nuptial debts of either spouse insofar community.
as they have redounded to the benefit of
the family; Q. To whom shall loss in gambling be
8) Value of what is donated or promised to charged?
common legitimate children for
professional, vocational or self- ANS. Any loss during the marriage in any game
improvement course; of chance or gambling, whether permitted by
9) Ante-nuptial debts of either spouse other law or not, shall be borne by the loser. (Art. 95,
than those falling under paragraph (7) of FC)
this Article, the support of illegitimate
children of either spouse, and liabilities Q. To which shall pertain the winnings in
incurred by either spouse by reason of a gambling?
crime or a quasi-delict, in case of absence
or insufficiency of the exclusive property ANS. Any winnings from any game of chance
of the debtor-spouse, the payment of or gambling, shall form part of the community
which shall be considered as advances to property. (Art. 95, FC)
be deducted from the share of the debtor- *Same rules apply in CPG. (Art. 123, FC)

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ANS. The husband’s decision shall prevail. But

Section 4. Ownership, Administration, this is without prejudice to recourse to the court
Enjoyment and Disposition of Community by the wife for proper remedy
Property Prescriptive period for recourse: 5 years from
date of the contract implementing such
Q. To whom does the administration and decision. (Art. 96, FC)
enjoyment of community property belong? *Same rule applies to CPG (Art. 124, FC)

ANS. To the spouses jointly. (Art. 96, FC) Q. Who may dispose by will his/her interest in
Exception: In case one spouse is incapacitated or the ACP?
otherwise unable to participate in the
administration of common properties, in which ANS. Either spouse may dispose by will of his
case capacitated or able spouse to assume sole or her interest in the community property. (Art.
powers of administration. BUT such powers do 96, FC)
not include: (ADE)
a) Alienation Q. What are the rules on disposition by
b) Disposition donation?
c) Encumbrance of the community property
without: ANS. Either spouse cannot donate any
1) Authority of the court, or community property without the consent of the
2) Written authority of the other other.
spouse. Exception: Moderate donations for charity or on
*Same rule applies to CPG (Art. 124, FC) occasion of family rejoicing or distress. (Art. 98,
FC)
Q. When is consent or authority required? *Similar rules apply to CPG (Art. 125, FC)

ANS. The consent or authority required must be Q. What is the rule on sale between spouses?
obtained before the ADE. Otherwise, such ADE
would be void. ANS. Spouses may not sell property to each
However, the transaction shall be construed as other. Any such sale shall be VOID.
a continuing offer on the part of the consenting
spouse and of the third person concerned which Exceptions:
may be perfected upon acceptance of the other 1) When separation of property was agreed
spouse or authority of the court before said offer upon in the marriage settlement;
is withdrawn. (Art. 96, FC) 2) When there has been a judicial separation
Same rule applies to CPG (Art. 124, FC) of property. (Art. 1490, NCC).

Q. In case of disagreement in administration NOTE: Proscription against such sale extends to

and enjoyment of the community property, common law relationships for being contrary to
whose decision shall prevail? morals and public policy. (Ching v CA, GR No.
165879, 10 November 2006)

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Section 5. Dissolution of The Absolute Q. What is the effect of abandonment or failure

Community Regime to comply with obligations to the family by
one spouse?
Rules under this Section are similar to those
applicable to CPG under Section 6, Chapter 4. ANS. The aggrieved spouse may petition the
court for any of the following:
Q. When does absolute community terminate? 1) Receivership;
2) Judicial separation of property; or
ANS. 3) Authority to be the sole administrator of
1) Upon death of either spouse; the absolute community. (Art. 101, par. 1;
2) When there is a decree of legal separation; Art. 128, par. 1, FC)
3) When the marriage is annulled or declared
void; Q. What do obligations to the family include?
4) In case of judicial separation of property
during the marriage; or ANS.
5) Upon the filing of affidavit of 1) Marital obligations
reappearance of absent spouse (Art. 42, 2) Parental obligations
para 2, FC) 3) Property relations

Q. What are the effects of separation in fact? Q. When is there abandonment?

ANS. ANS. There is abandonment when a spouse

1) Does not affect the regime of ACP or CPG; leaves the conjugal dwelling without the
2) Spouse who left the conjugal home or refused intention of returning.
to live therein, without just cause, shall not be
entitled to support; Q. What is the presumption if a spouse left the
3) When consent of one spouse to any conjugal dwelling for a period of three months
transaction of the other is required by law, or has failed within the same period to give
judicial authorization shall be obtained in a any information as to his or her whereabouts?
summary proceeding;
4) Spouse present shall, upon proper petition in ANS. The spouse who has left the conjugal
a summary proceeding, be given judicial dwelling for a period of three months or has
authority to administer or encumber any failed within the same period to give any
specific separate property of the absent information as to his or her whereabouts shall
spouse and use fruits or proceeds thereof to be prima facie presumed to have no intention of
satisfy the latter’s share for the support of the returning to the conjugal dwelling.
family, in case the community property is
insufficient. (Art. 100; Art. 127)

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Q. What is the meaning of net profits under the

Section 6. Liquidation of Absolute FC?
Community Assets and Liabilities
ANS. For purposes of forfeiture in accordance
Q. What are the procedure for liquidation in with Arts. 43(2) and 63(2), net profits shall be the
ACP? increase in value between the market value of
the community property at the time of the
ANS. celebration of the marriage and the market
1) INVENTORY – separate list of all properties value at the time of its dissolution. (Art. 102[4],
of the absolute community and the exclusive FC)
properties of each spouse.
Q. What procedure is applicable in case the
NOTE: ACP should also include receivable marriage is terminated by death?
from each spouse for:
a) Amounts advanced for personal debts ANS. Community property shall be liquidated
of each spouse; in the same proceeding for the settlement of the
b) Support pendente lite of each spouse; estate of the deceased.
2) PAYING OUT of debts and obligations – If there is no such judicial proceeding, surviving
First, from community property assets. In spouse shall, judicially or extrajudicially,
case of insufficiency, spouses shall be liquidate the community property within 6
solidarily liable for the unpaid balance with months from death of the other spouse. (Art.
their separate property in accordance with 103, FC)
Art. 94(2).
3) DELIVERY of remaining exclusive Q. What is the effect for failure to liquidate
properties. within the period provided in
4) DIVISION of net remainder of ACP Art. 103 of the Family Code?
properties and forfeiture of shares, if any.
ANS. It would render any disposition or
NOTE: Division shall be equal. encumbrance involving community property of
Exceptions: the terminated marriage VOID. (Art. 103, FC)
a) When a different proportion or division
was STIPULATED in the marriage Q. What is the effect should the surviving
settlements; or spouse subsequently marries without
b) When there has been a VOLUNTARY compliance in (3)?
WAIVER of such share.
5) Delivery of presumptive legitimes of ANS. Should the surviving spouse
common children. subsequently marries without compliance in
6) ADJUDICATION of conjugal dwelling. (3), a mandatory regime of complete separation
of property shall govern property relations of
the subsequent marriage. (Art. 103, FC)
*Same rules in 3, 4 and 5 apply to CPG (Art. 128,
FC)

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2) In cases of conjugal partnerships already

Q. What is the rule in case of liquidation of the established before effectivity of the Family
community properties of two or more Code, without prejudice to vested rights
marriages contracted by the same person already acquired. (Art. 105, FC)
before the effectivity of the Family Code?

ANS. Respective capital, fruits and income of Section 2. Exclusive Property

each community shall be determined upon such of Each Spouse
proof as may be considered according to the
rules of evidence. In case of doubt as to which Q. What are exclusive properties of spouses?
community the existing properties belong, the
same shall be divided between the different ANS.
communities in proportion to the capital and 1) Those brought into the marriage as his or her
duration of each. (Art. 104, FC) own.
*Same rule applies for CPG (Art. 130, FC) NOTE: Property purchased before the
marriage but fully paid during the marriage
remains a separate property of the spouse
5. Conjugal Partnership of Gains concerned. But conjugal partnership is
entitled to reimbursement of paid
Section 1. General Provisions installments as useful expenditure. (Lorenzo v
Nicolas, GR No. L-4085, 30 July 1952; also read
Q. What is the regime of CPG? Art. 119, FC)
ANS. It is the property regime formed by 2) Those acquired during the marriage by
husband and wife by placing in a common fund: gratuitous title, subject to the following rules:
1) Proceeds, products, fruits and incomes of a) Property donated or left by will to
their separate properties; and spouses, jointly and with designation of
2) Those acquired by either or both spoused determinate shares, shall pertain to the
through their efforts or by chance; donee-spouse as his or her exclusive
AND upon dissolution of the marriage or of the property; in the absence of designation,
partnership, net gains or benefits obtained shall share and share alike, without prejudice
be divided equally between them, unless to the right of accretion when proper.
otherwise agreed in the marriage settlements. (Art. 113, FC)
(Art. 106, FC) b) If donations are onerous, the amount of
charges shall be borne by the exclusive
Q. In what instances will the provisions on property of the donee spouse,
CPG apply? whenever they have been advanced by
the conjugal partnership of gains. (Art.
ANS. 114, FC)
1) In cases the future spouses agree in the MS c) Retirement benefits, pensions,
that the regime of conjugal partnership shall annuities, gratuities, usufructs and
govern (suppletory application); similar benefits shall be governed by
rules on gratuitous or onerous

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acquisitions as may be proper in each

case. (Art. 115, FC) Section 3. Conjugal Partnership Property
3) Those acquired by right of redemption,
barter or exchange with exclusive property of Q. What are deemed conjugal partnership
either spouse. property?
4) Those purchased with exclusive money of
either spouse. ANS.
1) Those acquired during the marriage with
NOTE: The controlling factor is the SOURCE conjugal funds;
of the money used or the money promised to 2) Those obtained from labor, industry, work or
be paid (Rivera v Bartolome, CA, 40 OG 2090) profession of either or both spouse;
3) Fruits of conjugal property due or received
Q. What are the rights of each spouse in their during the marriage and net fruits of separate
exclusive property? property;
4) Share of either spouse in hidden treasure;
ANS. 5) Those acquired through occupation such as
1) Retain the ownership, possession, hunting or fishing;
administration and enjoyment of their 6) Livestock in excess of each kind brought to
exclusive property. (Art. 110, para 1, FC) the marriage;
2) During the marriage, transfer the 7) Those acquired by chance such as winning in
administration of his or her exclusive gamblings and bettings. (Art. 117, FC)
property to the other by means of a public
instrument, which shall be recorded in the Q. What are the rules if property is bought on
registry of property of the place where the instalments paid partly from exclusive funds
property is located. (Art. 110, para 2, FC) and partly from conjugal funds?

NOTE: Alienation of any exclusive property ANS.

of a spouse administered by the other 1) If full ownership was vested before the
automatically terminates the administration marriage – it shall belong to the buyer
over such property and the proceeds of the 2) If full ownership was vested during the
alienation shall be turned over the owner- marriage – it shall belong to the conjugal
spouse. (Art. 112, FC) partnership (Art. 118, FC)
3) Mortgage, encumber, alienate or otherwise
dispose of his or her exclusive property NOTE: In either case, any amount advanced
without the consent of the other spouse, and shall be REIMBURSED by the owner upon
appear alone in court to litigate with regard liquidation of the partnership
the same. (Art. 111, FC)
Q. Abe asserts that a parcel of land, which was
purchased at auction, belonged to the conjugal
partnership of his and his late wife. In the title,
his name appeared to be merely descriptive of
the civil status of the registered owner, his late

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wife. The purchase took place prior to the 2) Fines and indemnities imposed upon either
advent of the Family Code. Is the property spouse
conjugal or paraphernal property of his late 3) Support of illegitimate children of either
wife? spouse

ANS. Conjugal. In this case the provisions of the NOTE: however, that payment of the
Civil Code would apply since the purchase took foregoing may be enforced against the CPG
place before the FC took effect. Under Art. 160 AFTER its responsibilities (see under
of the NCC, all property of the marriage is Charges upon ACP) has already been
presumed to belong to the conjugal partnership, covered, and ONLY if:
unless it be proved that it pertains exclusively to a) Debtor-spouse has no exclusive
the husband or the wife. In this case, there was property, or
no proof that the property had been acquired b) Debtor-spouse’s exclusive property is
exclusively by Yamane's late wife. The mere insufficient.
registration of a property in the name of one In case of payment, such debtor-spouse shall be
spouse does not destroy its conjugal nature in charged with the amount paid at the time of
the absence of strong, clear and convincing liquidation of the CPG. (Art. 122, FC)
evidence that it was acquired using the
exclusive funds of said spouse. (Spouses Go v. Section 7. Liquidation of The Conjugal
Yamane, G.R. No. 160762, May 3, 2006) Partnership Assets and Liabilities

Q. What is the rule when an amount or credit Q. What are the procedures in liquidation of
payable within a period of time belonging to the conjugal partnership assets and liabilities?
one of the spouses is collected during the
marriage? ANS. R2-D4-IPA
1) Inventory of all properties separately listed
ANS. It shall be the exclusive property of the as exclusive or conjugal;
spouse. However, interests falling due during 2) Restitution of advances made in favor of
the marriage on the principal shall belong to the either spouse;
conjugal partnership. (Art. 119, FC) 3) Reimbursement for use of exclusive funds;
4) Payment of Debts and obligations
5) Delivery of exclusive properties;
Section 4. Charges Upon and Obligations of 6) Payment of losses and deterioration of
The Conjugal Partnership movables belonging to either spouse;
7) Division of net conjugal partnership
Q. What are NOT chargeable upon CPG? remainder;
8) Delivery of common children’s presumptive
ANS. legitimes;
1) Personal debts contracted by either spouse 9) Adjudication of conjugal dwelling and
before or during the marriage custody of children. (Art. 129, FC)
Exception: When such have redounded to the
benefit of the family

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NOTE: The Rules of Court on the 4) Abandonment or failure to comply with

administration of estates of deceased persons family obligation;
shall be observed in the appraisal and sale of 5) Administrator spouse has abused
property of the conjugal partnership and other authority;
matters not expressly determined in Chapter 4, 6) Separation in fact for one year and
Section 7. (Art. 132, FC) reconciliation is highly improbable.

Q. Where shall support be taken during the Q. Distinguish sufficient causes for judicial
liquidation of CGP? separation of property from the grounds for
return to previous regime.
ANS. Support of spouses and their common
children during the liquidation of CPG and ANS.
until delivery of what pertains to them shall be Sufficient Grounds for
taken from the common mass of property. Causes for Return to
BUT, from this mass shall be deducted that Judicial Previous
amount received for support which exceeds the Separation of Regime
fruits or rents pertaining to them. (Art. 133, FC) Property (Art. (Art. 141)
135) (CALASA)
F. Separation of Property of the Spouses and Spouse of Termination of
Administration of Common Property by One petitioner has the civil
Spouse During the Marriage been sentenced interdiction
to a penalty
Q: In what ways can there be judicial which carries
separation of property? with it civil
interdiction
ANS. Judicial separation of property may either Spouse of Reappearance of
be voluntary or for sufficient cause. In the absence petitioner is absentee spouse
of an express declaration in the marriage judicially
settlements, the separation of property between declared an
spouses during the marriage shall not take place absentee
except by judicial order. (Art. 134, FC) Loss of parental Restoration of
authority of the parental
Q: What are the sufficient causes for judicial spouse of authority to the
separation of property? petitioner has spouse
been decreed by previously
ANS. CJ‐LASA the court deprived of it
1) Civil interdiction of the spouse of Spouse of When the spouse
petitioner; petitioner has who left the
2) Judicial declaration of absence; abandoned the conjugal home
3) Loss of parental authority as decreed by latter or failed to without legal
the court; comply with his separation
resumes

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or her obligations common life with Q. What are the rules in terms of family
to the family the other expenses?
The spouse When the court,
granted the being satisfied ANS.
power of that the spouse 1) Each spouse shall contribute to the family
administration in granted the expenses, in proportion to their income. In
the marriage power of case of insufficiency, the market value of
settlements has administration in their separate properties. (Art. 146, par. 1, FC)
abused that will not again 2) Liability of spouses to the creditors of the
power abuse that family shall be solidary. (Art. 146, par. 2, FC)
power,
authorizes the Q. What are the effects of separation of
resumption of property between spouses?
said
administration ANS.
At the time of the Reconciliation 1) ACP or CPG is dissolved and liquidated (Art.
petition, the and resumption 137, FC)
spouses have of common life of 2) Provisions on complete separation of
been separated in the spouse who property applies after dissolution of
fact for at least 1 have separated in ACP/CPG (Art. 138, FC)
year and facts for at least 1 a) Liability spouses to creditors shall be
reconciliation is year solidary with their separate properties
highly b) Mutual obligation to support each
improbable. continues except when there is legal
When after separation
voluntary 3) Petition and final judgment of separation of
dissolution of the property must be filed in the appropriate
ACP or CPG has registries (Art. 139, FC)
been judicially 4) Rights previously acquired by creditors are
decreed upon the not prejudiced (Art. 140, FC)
joint petition of
the spouses, they Q. When may the administration of all
agree to the classes of exclusive property of either spouse
revival of the be transferred by the court to the other
former property spouse?
regime. No
voluntary ANS. When one spouse.
separation of 1) Becomes the guardian of the other.
property may 2) Is judicially declared an absentee.
thereafter be 3) Is sentenced to a penalty which carries with
granted. it civil interdiction.

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4) Becomes a fugitive from justice or is in hiding 2) As to kinds of property:

as an accused in a criminal case. (Art. 142, FC) a) Present property
If the other spouse is not qualified by reason of b) Future property
incompetence, conflict of interest, or any other c) Both present and future property
just cause, the court shall appoint a suitable 3) Mandatory under Arts. 103 &130
person to be the administrator. 4) Default property regime when there is
reconciliation between spouses after
judicial separation of property.
6. Regime of Separation of Property
Q: What are the rights of the spouses under the
Q. When is the regime of separation of regime of separation of property?
property applicable?
ANS.
ANS. In the marriage settlements: 1) Each spouse shall administer, dispose of,
Separation of Property refers to own, possess, and enjoy his or her own
a) present or future property or both separate property, without need of the
b) total or partial – if partial, a property not consent of the other.
considered separate is presumed to 2) Each spouse shall own all earnings from his
pertain to the ACP or her profession, business and industry and
Effects— each spouse shall: all fruits, natural, industrial or civil, due or
a) own, dispose, posses, administer separate received during the marriage from his or her
estate w/o consent of the other separate property.
b) own earnings – profession, business &
industry Q. What is the rule on family expenses when
c) own fruits – natural, industrial or civil the marriage settlement is governed by the
from separate properties regime of separation of property?
Liability for family expenses & creditors:
a) family expenses: both spouses in ANS.
proportion to income, if insufficient, based  Both spouses in proportion to their
on current market value of separate income, if income is insufficient, it shall be
properties based on the current market value of the
b) creditors for family expenses: solidary separate properties.
 As to creditors, liability is solidary (Art.
Q: What are the kinds of separation of 146, FC)
property? Q: What are the liabilities for family expenses
of the spouses under the regime of separation
ANS. of property?
1) As to extent:
a) Total ANS. Both spouses shall bear the family
b) Partial‐ In this case, the property not expenses in proportion to their income.
agreed upon as separate shall pertain
to the absolute community.

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Exception: In case of insufficiency or default

thereof, to the current market value of their Q. What are the grounds for reviving the
separate properties. property regime that existed between the
Spouses shall be solidarily liable to creditors for husband and wife before the separation of
family expenses. property?

7. Judicial separation of property ANS.

1) Civil interdiction terminates;
Q. How is the separation of property executed? 2) Absentee spouse reappears;
3) Court, being satisfied that the spouse granted
ANS. the power of administration in the marriage
1) By express declaration in the marriage settlements will not again abuse that power,
settlements authorizes the resumption of said
2) By judicial order which may either be administration;
voluntary or for sufficient cause (Art. 134, 4) Spouse who has left the conjugal home
FC) without a decree of legal separation resumes
common life with the other;
Q. What are sufficient cause for judicial 5) Parental authority is judicially restored to the
separation of property? spouse previously deprived thereof;
6) Spouses who have separated in fact for at
ANS. least one year, reconcile and resume common
1) Spouse of the petitioner has been sentenced life; or
to a penalty which carries with it civil 7) After voluntary dissolution of the absolute
interdiction; community of property or conjugal
2) Spouse of the petitioner has been judicially partnership has been judicially decreed upon
declared an absentee; the joint petition of the spouses, they agree to
3) Loss of parental authority of the spouse of the revival of the former property regime. No
petitioner has been decreed by the court; voluntary separation of property may
4) Spouse of the petitioner has abandoned the thereafter be granted.
latter or failed to comply with his or her (Art. 141, FC)
obligations to the family as provided for in
Art. 101; 8. Property Regime of Unions Without
5) Spouse granted the power of administration Marriage
in the marriage settlements has abused that
power; and Q. What are the rules of property regime of
6) At the time of the petition, the spouses have unions without Marriage?
been separated in fact for at least one year
and reconciliation is highly improbable. ANS.
In (1), (2) and (3), the presentation of the final 1) Their wages and salaries shall be owned by
judgment against the guilty or absent spouse them in equal shares and the property
shall be enough basis for the grant of the decree acquired by both of them through their work
of judicial separation of property. (Art. 135, FC)

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 CIVIL LAW

or industry shall be governed by the rules on apply to joint deposits of money and
co-ownership. evidences of credit.
2) In the absence of proof to the contrary, 7) If one of the parties is validly married to
properties acquired while they lived together another, his or her share in the co-ownership
shall be presumed to have been obtained by shall accrue to the absolute community or
their joint efforts, work or industry, and shall conjugal partnership existing in such valid
be owned by them in equal shares. marriage. If the party who acted in bad faith
3) A party who did not participate in the is not validly married to another, his or her
acquisition by the other party of any property shall be forfeited in the manner provided in
shall be deemed to have contributed jointly the last paragraph of the preceding Article.
in the acquisition thereof if the former’s (Art. 148, FC)
efforts consisted in the care and maintenance
of the family and of the household. Q: What property relation governs in case
4) Neither party can encumber or dispose by marriage is declared null and void on the
acts inter vivos of his or her share in the ground of psychological incapacity?
property acquired during cohabitation and
owned in common, without the consent of ANS. The property relation between the parties
the other, until after the termination of their is governed by Art. 147 of the FC. Under this
cohabitation. property regime, property acquired by both
5) When only one of the parties to a void spouses through their work and industry shall be
marriage is in good faith, the share of the governed by the rules on equal co‐ownership.
party in bad faith in the co-ownership shall Any property acquired during the union is
be forfeited in favor of their common prima facie presumed to have been obtained
children. In case of default of or waiver by through their joint efforts. A party who did not
any or all of the common children or their participate in the acquisition of the property
descendants, each vacant share shall belong shall still be considered as having contributed
to the respective surviving descendants. In thereto jointly if said party's "efforts consisted in
the absence of descendants, such share shall the care and maintenance of the family
belong to the innocent party. In all cases, the household." Unlike the conjugal partnership of
forfeiture shall take place upon termination gains, the fruits of the couple's separate
of the cohabitation. (Art. 147, FC) property are not included in the co‐ownership.
6) In cases of cohabitation not falling under the
preceding Article, only the properties Q: Josefina’s petition for nullity of her
acquired by both of the parties through their marriage to Eduardo was granted on the
actual joint contribution of money, property, ground of existence of a prior marriage. She
or industry shall be owned by them in now asserts that since her marriage to Eduardo
common in proportion to their respective is void, their property relation is to be
contributions. In the absence of proof to the governed by the rules on co‐ownership under
contrary, their contributions and Art. 148 of the FC and not by Art. 144 of the
corresponding shares are presumed to be Civil Code. In this regime, Eduardo has no
equal. The same rule and presumption shall share at all in the properties since no proof was
adduced by him as regards his participation in

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their purchase. However, she did not prove efforts, work or industry. It further provides
that she acquired the properties using her that a party who did not participate in the
personal funds and prior to her cohabitation acquisition thereof shall be deemed to have
with Eduardo. Is her contention correct? contributed jointly in the acquisition thereof if
his or her efforts consisted in the care and
ANS. No. Art. 148 of the FC does not apply maintenance of the family and of the household.
since, in said article, a co‐ownership may ensue
in case of cohabitation where, for instance, one Note: In this case, Francisco himself testified
party has a pre‐existing valid marriage, that his wife was not a plain housewife but one
provided that the parties prove their actual joint who helped him in managing the family's
contribution of money, property or industry business. Hence, Erminda is rightfully entitled
and only to the extent of their proportionate to a joint share in their properties. (Gonzales v.
interest thereon. Petitioner failed to adduce Gonzales,G.R. No. 159521, Dec. 16, 2005)
preponderance of evidence that she contributed
money, property or industry in the acquisition Q: Romeo and Juliet lived together as husband
of the subject property and, hence, is not a co‐ and wife without the benefit of marriage.
owner of the property. Since the subject During their cohabitation, they acquired a
property was acquired during the subsistence of house. When they broke up, they executed an
the first marriage of Eduardo, under normal agreement where he agreed to leave the house
circumstances, the same should be presumed to provided Juliet will pay his entire share in
be conjugal property of Eduardo and Josefina. their properties. She failed to do so but she
(Francisco v. Master Iron Works Construction also ignored his demand for her to vacate.
Corp.,G.R. No. 151967. Feb. 16, 2005) Romeo sued her for ejectment which the court
granted. Was the court correct in granting the
Q. Francisco and Erminda’s marriage was same?
nullified by the trial court due to
psychological incapacity. He did not contest ANS. No. Under Art. 147 of the FC, the property
the decree of nullity but he assailed the is co‐owned by the parties. Under said
division in the properties which was provision, in the absence of proof to the
contained in the decree. He asserted that the contrary, any property acquired by common‐
properties were acquired through his efforts law spouses during their cohabitation is
and that she had no contribution whatsoever presumed to have been obtained thru their joint
in their acquisition and maintenance; hence, efforts and is owned by them in equal shares.
she should not be entitled to a joint share in Their property relationship in such a case is
their properties. Is Francisco’s contention essentially governed by the rules on co‐
correct? ownership. Thus, Romeo cannot seek the
ejectment of Juliet therefrom. As a co‐owner, she
ANS. No. The property relation between the is as much entitled to enjoy its possession and
parties is governed by Art. 147 of the FC. Under ownership as him. (Abing v. CA,G.R. No. 146294,
this article, there is a presumption that the Jul. 31, 2006)
properties which they acquired during their
cohabitation were acquired through their joint

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Q: In 1973, Mauricio, a Filipino pensioner of After living together for a little over twenty
the US Government, contracted a bigamous years, Luis was able to save from his salary
marriage with Erlinda, despite the fact that his earnings during that period the amount of
first wife, Carol, was still living. In 1975, P200,000.00 presently deposited in a bank. A
Mauricio and Erlinda jointly bought a parcel house and lot worth P500,000.00 was recently
of rice land with the title being placed jointly purchased for the same amount by the couple.
in their names. Shortly thereafter, they Of the P500.000.00 used by the common‐law
purchased another property (a house and lot) spouses to purchase the property, P200.000.00
which was placed in her name alone as the had come from the sale of palay harvested
buyer. In 1981, Mauricio died and Carol from the hacienda owned by Luis and
promptly filed an action against Erlinda to P300,000.00 from the rentals of a building
recover both the rice land and the house and belonging to Rizza. In fine, the sum of
lot, claiming them to be conjugal property of P500.000.00 had been part of the fruits received
the first marriage. Erlinda contends that she during the period of cohabitation from their
and the late Mauricio were co‐owners of the separate property, a car worth P100.000.00
rice land, and with respect to the house and lot being used by the common‐law spouses, was
she claims she is the exclusive owner. donated just months ago to Rizza by her
Assuming she fails to prove that she had parents.
actually used her own money in either
purchase, how do you decide the case? Luis and Rizza now decide to terminate their
cohabitation, and they ask you to give them
ANS. Carol's action to recover both the rice land your legal advice on how, under the law
and the house and lot is well‐founded. Both are should the bank deposit of P200,000.00 the
conjugal property, in view of the failure of house and lot valued at P500.000.00 and the car
Erlinda, the wife in a bigamous marriage, to worth P100.000.00 be allocated to them?
prove that her own money was used in the
purchases made. The Supreme Court in a case ANS. Art. 147 of the Family Code provides in
applied Art. 148, Family Code, despite the fact part that when a man and a woman who are
that the husband's death took place prior to the capacitated to marry each other, live exclusively
effectivity of said law. However, even under with each other as husband and wife without
Art. 144, Civil Code, the same conclusion would the benefit of marriage or under a void
have been reached in view of the bigamous marriage, their wages and salaries shall be
nature of the second marriage. (1998 Bar owned by them in equal shares and the property
Question) acquired by both of them through their work or
industry shall be governed by the rules of co‐
Q: Luis and Rizza, both 26 years of age and ownership. In the absence of proof to the
single, live exclusively with each other as contrary, properties acquired while they lived
husband and wife without the benefit of together shall be presumed to have been
marriage, Luis is gainfully employed, Rizza is obtained by their joint efforts, worker industry,
not employed, stays at home, and takes charge and shall be owned by them in equal shares. A
of the household chores. party who did not participate in the acquisition
by the other party of any property shall be

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 CIVIL LAW

deemed to have contributed jointly in the Q. What are included in family relations?
acquisition thereof if the former's efforts
consisted in the care and maintenance of the ANS.
family and of the household. Thus: 1) Between husband and wife
2) Between parents and children
1) the wages and salaries of Luis in the 3) Among other ascendants and descendants
amount of P200,000.00 shall be divided 4) Among brothers and sisters, full or half
equally between Luis and Rizza. blood. (Art. 150, FC)
2) the house and lot valued at P500.000.00
having been acquired by both of them 2. Effects on Legal
through work or industry shall be divided Disputes
between them in proportion to their
respective contribution, in consonance Q. No suit between members of the same
with the rules on co‐ownership. Hence, family shall prosper. (Art. 151, FC) What are
Luis gets 2\5 while Rizza gets 3\5 of the requisites before a suit between members
P500.000.00. of the same family may prosper?
3) the car worth P100,000.00 shall be
exclusively owned by Rizza, the same ANS. For a suit between members of the same
having been donated to her by her parents. family to prosper, the following are required:
(1997 Bar Question) 1) Earnest efforts towards a compromise
have been made
2) Such efforts have failed
G. THE FAMILY 3) Such earnest efforts and the fact of failure
must be alleged.
1. Concept of Family
Note: The case will be dismissed if it is shown
that no such efforts were made.
Q. What is the concept of family under the
The rules shall not apply to cases which may not
Family Code?
be the subject of compromise.
ANS. The family, being the foundation of the
Q. What are the exceptions to the general rule
nation, is a basic social institution which public
that suits between family cannot be subject of
policy cherishes and protects. Consequently,
compromise?
family relations are governed by law and no
custom, practice or agreement destructive of the
ANS.
family shall be recognized or given effect. (Art.
1) Civil status of persons,
149, FC)
2) Validity of marriage or a legal separation,
3) Any ground for legal separation,
Q: What governs family relations?
4) Future support,
5) Jurisdiction of courts,
ANS. The law.
6) Future legitime

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Q: In a complaint filed by Manolo against his 3. Family Home

brother, Rodolfo, it was alleged that the case
"xxx passed through the Barangay and no Q. What is meant by family home (FH) and
settlement was forged between the plaintiffs how is it constituted?
and defendant as a result of which
Certification to File Action was issued xxx". ANS. It is the dwelling house where the
Rodolfo moved to dismiss for failure to husband and wife and their family reside, and
comply with a condition precedent - that the land on which it is situated; it is constituted
earnest efforts for an amicable settlement jointly by the husband and the wife or by an
among the parties had been exerted but that unmarried head of a family.
none was reached. Decide.
Q. What does family home include?
ANS. The case will prosper. There was in fact
substantial compliance with Art. 151 of the ANS.
Family Code since the spouses alleged in the 1) Dwelling house where they and their
complaint for ejectment that the case "xxx family reside
passed through the Barangay and no settlement 2) The land on which it is situation (Art 152)
was forged between the plaintiffs and
defendant as a result of which Certification to NOTE: A person may constitute and be the
File Action was issued by Barangay 97, Zone 8, beneficiary of only one family home (Art. 161,
District I, Tondo, Manila xxx". It bears stressing FC)
that under Sec. 412 (a) of R.A. 7160, no
complaint involving any matter within the Q. Give the guidelines on family home.
authority of the Lupon shall be instituted or
filed directly in court for adjudication unless ANS.
there has been a confrontation between the 1) It is deemed constituted from time of actual
parties and no settlement was reached. occupation as a family residence
2) It must be owned by person constituting it
Moreover, the phrase "members of the same 3) It must be permanent
family" found in Art. 151 of the Family Code 4) Rule applies to valid and voidable and even
must be construed in relation to Art. 150 thereof. to common-law marriages under Arts.147
(Martinez, et al. v. Martinez, G.R. No. 162084. and 148
Jun. 28, 2005) 5) It continues despite death of one or more
spouses or unmarried head of family for 10
NOTE: A sister-in-law or a brother-in-law is not years or as long as there is a minor
covered by these two provisions. Being an beneficiary (Art.159)
exception to the general rule, Art. 151 must be 6) Can only constitute one family home
strictly construed. (Gayon v. Gayon, G.R. No. L-
28394, Nov. 26, 1970)

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Q. When is the family home deemed 3) Debts secured by mortgages on the premises
constituted? before or after such constitution.
4) Debts due to laborers, mechanics, architects,
ANS. The family home is deemed constituted builders, materialmen and others who have
on a house and lot from the time it is occupied rendered service or furnished material for the
as a family residence. It is exempt from (EFA) construction of the building. (Art. 156, FC)
from the time of its constitution and so long as
any of its beneficiaries actually resides therein Q. What are the requirements for the sale,
a) Execution alienation, donation, assignment, or
b) Forced sale encumbrance of the family home?
c) Attachment (Art 153, FC)
ANS.
Q. Who are the beneficiaries of the family 1) the written consent of the person
home? constituting it,
2) his/her spouse, and
ANS. 3) majority of the beneficiaries of legal age
1) Husband and wife, or an unmarried (Art. 158, FC)
person who is the head of the family
2) Parents (may include parent-in-laws), NOTE: If there is a conflict, the Court will
ascendants, descendants, brothers and decide.
sisters (legitimate/illegitimate), who are
living in the family home and who depend Q. In case of death of one or both spouses or
on the head of the family for support (Art. the unmarried head of the family, what shall
154, FC) happen to the family home?

Q. What are the requisites to be a beneficiary - The family home shall continue despite the
of a family home? death of one or both spouses or of the
unmarried head of the family for a period of
ANS. RLD ten years, or as long as there is a minor
1) The relationship is within those enumerated beneficiary.
2) They live in the family home - The heirs cannot partition the home unless
3) They are dependent for legal support on the the court finds compelling reasons therefor.
head of the family (Art. 159, FC)

Q. What are the exceptions in the exemption Q. What are the requisites for creditor to avail
of the family home from execution, forced of the right under Art. 160?
sale or attachment?
ANS. (If a claim of a creditor is not among the
ANS. exceptions mentioned in Art. 155 and has
1) Nonpayment of taxes. reasonable grounds to believe that the family
2) Debts incurred prior to the constitution of the home is worth more than the amount fixed in
family home. Art 157.)

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 CIVIL LAW

Requisites— levy and sale on the ground that it was her

1) He must be a judgment creditor; family home and therefore exempt from
2) His claim is not among those excepted execution. Decide.
under Article155, and
3) He has reasonable grounds to believe that ANS. It is not exempt. Under Art. 155 of the FC,
the family home is worth more than the the family home shall be exempt from
maximum amount fixed in Art. 157 execution, forced sale, or attachment except for,
among other things, debts incurred prior to the
Q. Can family home be constituted on a house constitution of the family home. In the case at
constructed on a land belonging to another? bar, the house and lot was not constituted as a
family home, whether judicially or extra-
ANS. No. The land where the house is erected judicially, at the time that the debtor incurred
is an integral part of the home and the home her debts. Under prevailing jurisprudence, it is
should be permanent in character. deemed constituted as such by operation of law
only upon the effectivity of the Family Code on
NOTE: A house constructed on rented land or August 3, 1988, thus, the debts were incurred
by tolerance of the owner is not a permanent before the constitution of the family home.
improvement on the land and the home will (Gomez-Salcedo, et al. v. Sta. Ines, et al.,G.R. No.
thus be temporary. 132537, Oct.14, 2005)

Q: What are the exceptions to the rule that the Q: What are the guidelines in the constitution
family home is exempt from execution, forced of the family home?
sale or attachment?
ANS.
ANS. LTPM 1) Family home is deemed constituted from
1) Debts due to Laborers, mechanics, the time of Actual occupation as a family
architects, builders, material men and residence;
others who rendered service or furnished 2) Only one family home may be constituted;
materials for the constitution of the 3) Must be owned by the person constituting
building; it;
2) Non-payment of Taxes; 4) Must be permanent;
3) Debts incurred Prior to constitution; 5) Same rule applies to both valid and
4) Debts secured by Mortgages on the family voidable marriages and even to common
home. law spouses; (Arts. 147 and 148)
Note: Exemption is limited to the value allowed 6) It continues despite death of one or both
in the FC spouses or an unmarried head of the
family for 10 years or as long as there is a
Q: A complaint for damages was filed against minor beneficiary.
Hinahon in 1986 when she incurred liabilities
as early as 1977, which action prospered in
1989. The house and lot that she owned was
levied upon and sold at auction. She assails the

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 CIVIL LAW

Q. Who are the beneficiaries of a family home? judgment for a writ of execution against the
family home;
ANS. 2) There will be a hearing on the motion where
1) Husband and wife, or unmarried head of the creditor must prove that the actual value
the family of the family home exceeds the maximum
2) Parents (may include parents-in-law), amount fixed by the Family Code, either at
ascendants, brothers and sisters the time of its constitution or as a result of
(legitimate or illegitimate) living in the improvements introduced after its
family home and dependent on the head constitution;
of the family for support 3) If the creditor proves that the actual value
exceeds the maximum amout, the court will
Q. What are the requisites in the sale, order its sale in execution;
alienation, donation, assignment or 4) If the family home is sold for more than the
encumbrance of the family home? value allowed, the proceeds shall be applied
as follows:
ANS. The following must give their written a) The obligations enumerated in Art. 155
consent: must be paid
1) The person who constituted the FH; b) The judgment in favor of the creditor
2) The spouse of the person who constituted will be paid, plus all the costs of
the FH; execution. The excess, if any, shall be
3) Majority of the beneficiaries of legal age. delivered to the judgment debtor (Art.
160, FC).
NOTE: In case of conflict, court shall decide.

Q: What are the requisites for the creditor to H. PATERNITY AND FILIATION
avail of the right to execute?
Q. What are the kinds of filiation?
ANS.
1) He must be a judgment creditor; ANS.
2) His claim must not be among those excepted 1) Natural
under Art. 155; a) Legitimate
3) He has reasonable grounds to believe that the b) Illegitimate
family home is worth more than the 2) Legal fiction (Adoption) (Arts. 163, 164, 165,
maximum amount fixed in Art. 157. NCC)

Q: What is the procedure in exercising the

right to execute?

ANS.
1) Creditor must file a motion in the court
proceeding where he obtained a favorable

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1. Legitimate children Q. What are the rules as to the legitimacy with

regard to the mother?
Q. Who are classified as legitimate children?
ANS.
ANS. 1) Child considered legitimate although (Art.
1) Conceived or born during the marriage of 167):
parents a) Mother may have declared against its
2) May be thru natural means or by artificial legitimacy
insemination b) Mother may have been sentenced as an
a) Natural/Biological adulteress
Liyao v. Liyao, (2002): A child conceived 2) If the marriage is terminated and the mother
or born during a valid marriage is contracted another marriage within 300 days
presumed to belong to that marriage, after the termination of the former marriage,
regardless of the existence of the rules shall govern in the absence of proof
extramarital relationships. to the contrary (Art 168):
b) Artificial insemination (Art. 164, FC) a) If child born before 180 days after the
solemnization of the subsequent
NOTE: Common children born before the marriage – child is considered
annulment are legitimate, and therefore entitled conceived during the former marriage,
to support from each of the spouses. provided it be born within 300 days
after termination of the former marriage
Q. What are the requisites for children b) If child born after 180 days following
conceived through artificial insemination to the celebration of the subsequent
be considered legitimate? marriage – child is considered
conceived during such marriage, even if
ANS. it be born within 300 days after the
1) Artificial insemination made on wife termination of the former marriage
Sperm comes any of the following:
a) Husband NOTE: The legitimacy or illegitimacy of a child
b) Donor born after 300 days following the termination of
c) husband and donor the marriage – burden of proof upon whoever
2) In case of donor sperm, husband and wife alleges the status (Art. 169, NCC)
must authorize/ratify insemination in a
written instrument
3) Executed and signed by husband and wife 2.Proof of Filiation
before the birth of the child. Q. How is filiation proven?
4) Recorded in the civil registry together with
the birth certificate of the child.
ANS. Legitimate or illegitimate children may
prove their filiation in the same way and on the

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same evidence. They may only prove their 3. Illegitimate children

status using the following pieces of evidence:
1) Their record of birth appearing in the civil Q. Who are classified as illegitimate children?
registry. What are the exceptions?
2) An admission of his filiation (legitimate or
illegitimate) by his parent or parents in a ANS. Those conceived and born outside of a
public document or a private handwritten valid marriage (Art. 165, FC).
instrument and signed by said parent or Exceptions:
parents. (SEMPIO-DIY) 1) Children of marriages void under Art.36
3) Proof of open and continuous possession (psychological incapacity).
of status as legitimate or illegitimate child 2) And under Art. 53 (the second marriage of
4) Any other means stated by the rules of a widow or widower who has not
court or special laws delivered to his or her children by his or
her first marriage the legitime of said
Q. When can a child bring an action claiming children).
for filiation?
Q. How shall an illegitimate child bring an
ANS. The child can bring the action during his action for claiming filiation?
or her lifetime and even after the death of the
parents. The action does not prescribe as long ANS. Art. 175, FC
as he lives. 1) The child can bring the action during his or
her lifetime and even after the death of the
Q. If the child is incapacitated, who can bring parents. The action does not prescribe as long
an action claiming for filiation? as he lives.
 If the child is a minor, or is
ANS. If the child is a minor, or is incapacitated incapacitated or insane, his guardian
or insane, his guardian can bring the action in can bring the action in his behalf.
his behalf. 2) During the lifetime of the alleged parent
when the action is based on open and
Q. What are the rights of legitimate children? continuous possession of the status of a
legitimate child and any other means
ANS. allowed by the Rules of Court and special
a) To bear the surnames of the father and the laws – action
mother, in conformity with the provisions
of the Civil Code on Surnames Q. What are the rights of an illegitimate child?
b) To receive support from their parents,
their ascendants, and in proper cases, their ANS.
brothers and sisters, in conformity with a) Must use the surname and be under the
the provisions of this Code on Support parental authority of the mother
c) To be entitled to the legitimate and other b) However, may use the surname of their
successional rights granted to them by the father if
Civil Code (Art. 174, FC)

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 Their filiation has been expressly Q. When may an action for impugning
recognized by the father through the legitimacy be brought?
record of birth appearing in the civil ANS. The action for impugning the legitimacy
register. of a child may be brought within 1, 2, or 3 years
 There is an admission in a public from the knowledge of the birth, or the
document or private handwritten knowledge of registration of birth.
instrument made by the father. 1) Within 1 year  if husband or any heirs
Provided, the father has the right to reside in the same city or municipality
institute an action before the regular where the child was born or his birth was
courts to prove non-filiation during his recorded.
lifetime (RA 9255) 2) Within 2 years  if the husband or all heirs
c) Shall be entitled to support in conformity live in the Philippines but do not reside in
with the Family Code the same city or municipality where the
d) Legitime shall consist of one-half of the child's birth took place or was recorded
legitimes of a legitimate child. Except for 3) Within 3 years  if the husband or all heirs
such modification, all other provisions of the live outside the Philippines when the
Civil Code governing successional rights child's birth took place or was recorded in
shall remain in force (Art. 176, FC) the Philippines (Arts. 170 and 171, FC)
If the birth of the child has been concealed or
4. Action to impugn legitimacy was unknown to the husband, the above
periods shall be counted:
Q. What are the grounds for impugning 1) from the discovery or knowledge of the
legitimacy of a child? birth of the child, or
2) from the discovery or knowledge of its
ANS. Grounds for impugning legitimacy of a registration,
child are: 3) whichever is earlier.
1) Physical impossibility for sexual intercourse
within the first 120 days of the 300 days Q. Who can impugn the legitimacy of a child?
which immediately preceded the child's
birth due to: ANS. As a general rule, only the husband can
2) Other biological or scientific reasons, except impugn the legitimacy of a child. If he does not
Artificial Insemination. bring action within the prescribed periods, he
3) And in case of Artificial Insemination, the cannot file such action anymore thereafter, and
consent of either parent was vitiated this is also true with his heirs.
through fraud, violence, mistake,
intimidation, or undue influence. (Art.
166, FC)

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Q. What is the exception that only the husband marriage shall not affect the legitimation.
can impugn the legitimacy of a child? (Art 178)

ANS. That the heirs of the husband may file the Q. What are the grounds for impugning
action or continue the same if it has already been legitimation?
filed.
If the husband died before the expiration of the ANS.
period fixed for bringing his action 1) The subsequent marriage of the child's
a) If he should die after the filing of the parents is void.
complaint without having desisted 2) The child allegedly legitimated is not
b) If the child was born after the death of natural.
the husband. (Arts. 170 and 171, FC) 3) The child is not really the child of the
Legitimacy can only be attacked directly (Sayson v. alleged parents. (SEMPIO-DIY)
CA)
Q. What are the rights of legitimated children?
5. Legitimated children
ANS.
Q. Who are legitimated children? 1) Shall enjoy same rights as legitimate
ANS. "Legitimated" children are illegitimate children (Art 179)
children who because of the subsequent 2) Effects of legitimation shall retroact to the
marriage of their parents are, by legal fiction, time of the child’s birth (Art 180)
considered legitimate. (Art. 177, FC) 3) Legitimation of children who died before
Q. What are the requisites for legitimation? the celebration of the marriage shall
benefit their descendants (Art 181)
ANS.
1) The child was conceived and born outside Q. How may legitimation be impugned?
of wedlock (Art. 177, FC)
2) General rule: The parents, at the time of ANS.
the child's conception, were not 1) Only by those who are prejudiced in their
disqualified by any impediment to marry rights
each other. 2) Within five years from the time their cause of
action accrues (Art 182, FC)
Exception: RA 9858 - Children born to parents
who were so disqualified only because either or Q. Rosanna, as surviving spouse, filed a claim
both of them were below eighteen (18) years of for death benefits with the SSS upon the death
age at the time of child’s conception may be of her husband, Pablo. She indicated in her
legitimated. claim that the decedent is also survived by
their minor child, Jeylynn, who was born in
Procedure: Legitimation shall take place by 1991. The SSS granted her claim but this was
a subsequent valid marriage between withdrawn after investigation, when a sister of
parents. The annulment of a voidable the decedent informed the system that Pablo
could not have sired a child during his lifetime

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because he was infertile. However in Jeylynn’s adoption in view of the contents of her birth
birth certificate, Pablo affixed his signature certificate. In this case, there is no showing that
and he did not impugn Jeylynn’s legitimacy she undertook such. It is well-settled that a
during his lifetime. Was the SSS correct in record of birth is merely prima facie evidence of
withdrawing the death benefits? the facts contained therein. It is not conclusive
evidence of the truthfulness of the statements
ANS. No. Under Art. 164 of the FC, children made there by the interested parties. (Rivera v.
conceived or born during the marriage of the Heirs of Romualdo Villanueva, GR No. 141501,
parents are legitimate. This presumption July 21, 2006)
becomes conclusive in the absence of proof that
there is physical impossibility of access under Q. In a complaint for partition and accounting
Art. 166. Further, upon the expiration of the with damages, Ma. Theresa alleged that she is
periods for impugning legitimacy under Art. the illegitimate daughter of Vicente, and
170, and in the proper cases under Art. 171, of therefore entitled to a share in the estate left
the FC, the action to impugn would no longer behind by the latter. As proof, she presented
be legally feasible and the status conferred by her birth certificate which Vicente himself
the presumption becomes fixed and signed thereby acknowledging that she is his
unassailable. In this case, there is no showing daughter.
that Pablo, who has the right to impugn the
legitimacy of Jeylynn, challenged her status Is the proof presented by Ma. Theresa
during his lifetime. Furthermore, there is sufficient to prove her claim that she is an
adequate evidence to show that the child was in illegitimate child of Vicente?
fact his child, and this is the birth certificate
where he affixed his signature. (SSS v. Aguas, et ANS. Yes. Citing the earlier case of De Jesus v.
al.,G.R. No. 165546, Feb. 27, 2006) Estate of Juan Dizon, (366 SCRA 499), the
Supreme Court held that the Ma. Theresa was
Q. In an action for partition of estate, the trial able to establish that Vicente was in fact her
court dismissed it on the ground that the father. The due recognition of an illegitimate
respondent, on the basis of her birth child in a record of birth, a will, a statement
certificate, was in fact the illegitimate child of before a court of record, or in any authentic
the deceased and therefore the latter's sole writing is, in itself, a consummated act of
heir, to the exclusion of petitioners. However, acknowledgment of the child, and no further
trial court failed to see that in said birth court action is required. The rule is, any
certificate, she was listed therein as “adopted”. authentic writing is treated not just as a ground
Was the trial court correct in dismissing the for compulsory recognition; it is in itself a
action for partition? voluntary recognition that does not require a
separate action for judicial approval. (Eceta v.
ANS. No. The trial court erred in relying upon Eceta,G.R. No. 157037, May 20, 2004)
the said birth certificate in pronouncing the
filiation of the respondent. However, since she
was listed therein as “adopted”, she should
therefore have presented evidence of her

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Q. Gerardo filed a complaint for bigamy

against Ma. Theresa, alleging that she had a Q. In a petition for issuance of letters of
previous subsisting marriage when she administration, Cheri Bolatis alleged that she
married him. The trial court nullified their is the sole legitimate daughter of decedent,
marriage and declared that the son, who was Ramon and Van Bolatis. Phoebe, the
born during their marriage and was registered decedent's second wife, opposed the petition
as their son, as illegitimate. What is the status and questioned the legitimate filiation of
of the child? Cheri to the decedent, asserting that Cheri’s
birth certificate was not signed by Ramon and
ANS. The first marriage being found to be valid that she had not presented the marriage
and subsisting, whereas that between Gerardo contract between her alleged parents which
and Ma. Theresa was void and non-existent, the would have supported her claim.
child should be regarded as a legitimate child
out of the first marriage. This is so because the In said birth certificate, it was indicated that
child's best interest should be the primordial her birth was recorded as the legitimate child
consideration in this case. of Ramon and Van Bolatis, and contains as
well the word "married" to reflect the union
Q. Gerardo and Ma. Theresa, however, between the two. However, it was not signed
admitted that the child was their son. Will this by Ramon and Vanemon Bolatis. It was merely
affect the status of the child? signed by the attending physician, who
certified to having attended to the birth of a
ANS. No. The admission of the parties that the child. Does the presumption of legitimacy
child was their son was in the nature of a apply to Cherimon?
compromise. The rule is that the status and
filiation of a child cannot be compromised. Art. ANS. No. Since the birth certificate was not
164 of the FC is clear that a child who is signed by Cher's alleged parents but was merely
conceived or born during the marriage of his signed by the attending physician, such a
parents is legitimate. (Concepcion v. CA,G.R. certificate, although a public record of a private
No. 123450. Aug. 31, 2005) document is, under Section 23, Rule 132 of the
Rules of Court, evidence only of the fact which
Q. What is the effect of Ma. Theresa’s claim gave rise to its execution, which is, the fact of
that the child is her illegitimate child with her birth of a child. A birth certificate, in order to be
second husband to the status of the child? considered as validating proof of paternity and
as an instrument of recognition, must be signed
ANS. None. This declaration – an avowal by the by the father and mother jointly, or by the
mother that her child is illegitimate – is the very mother alone if the father refuses. There having
declaration that is proscribed by Art. 167 of the been no convincing proof of respondent's
Family Code. This proscription is in consonance supposed legitimate relations with respect to
with, among others, the intention of the law to the decedent, the presumption of legitimacy
lean towards the legitimacy of children. under the law did not therefore arise in her
(Concepcion v. CA,G.R. No. 123450. Aug. 31, favor. (Angeles v. Angeles-Maglaya, G.R. No.
2005) 153798, Sept.2, 2005)

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Q. Are children born of parents, who at the

Q. On the basis of the physical presentation of time of conception and birth, were minors may
the plaintiff-minor before it and the fact that be legitimated?
the alleged father had admitted having sexual
intercourse with the child's mother, the trial ANS. Yes. RA 9858 amended Art. 177 of the
court, in an action to prove filiation with Family Code in allowing children conceived
support, held that the plaintiff-minor is the and born outside of wedlock of parents who, at
child of the defendant with the plaintiff- the time of conception of the former, were not
minor's mother. Was the trial court correct in disqualified by any impediment to marry each
holding such? other, or were so disqualified only because
either or both of them were below eighteen (18)
ANS. No. In this age of genetic profiling and years of age, to be legitimated.
DNA analysis, the extremely subjective test of
physical resemblance or similarity of features I. ADOPTION
will not suffice as evidence to prove paternity
and filiation before courts of law. This only Q. What is adoption?
shows the very high standard of proof that a
child must present in order to establish filiation. ANS. Adoption is a juridical act which creates
between two persons a relationship similar to
NOTE: The birth certificate that was presented that which results from legitimate paternity and
by the plaintiff-minor appears to have been filiation.
prepared without the knowledge or consent of
the putative father. It is therefore not a Q. Distinguish legitimation from adoption.
competent piece of evidence on paternity. The
local civil registrar in this case has no authority ANS.
to record the paternity of an illegitimate child on LEGITIMATION ADOPTION
the information of a third person. Similarly, a The law merely The law
baptismal certificate, while considered a public makes legal merely
document, can only serve as evidence of the what exists by creates by
administration of the sacrament on the date nature fiction a
specified therein but not the veracity of the relation
entries with respect to the child's paternity which did
(Macadangdang v. CA, 100 SCRA 73). Thus, not in fact
certificates issued by the local civil registrar and exist
baptismal certificates are per se inadmissible in Persons Only natural Generally
evidence as proof of filiation and they cannot be affected children applies to
admitted indirectly as circumstantial evidence strangers
to prove the same (Jison v. CA, 350 Phil. 138). Procedure Extrajudicial acts Always by
(Cabatania v. CA, G.R. No. 124814. Oct. 21, of parents judicial
2004) decree
Who Only by both Husband
applies parents and wife

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adopt days per 1 year for professional, business,

jointly with or emergency reasons are allowed) in RP
exceptions prior to the filing of application and
Effect Same status and Creates a maintains such residence until the decree
rights with that rel. only is entered
of a legitimate between the d) Has been certified by his/her diplomatic or
child not only in child and consular office or any appropriate
relation to the the government agency that he/she has the
legitimizing adopting legal capacity to adopt in his/her country
parents but also parents e) His/her government allows the adoptee to
to other relatives enter his/her country as his/her adoptee
f) Has submitted all the necessary clearances
1. Domestic Adoption and such certifications as may be required
Law
**Items numbers c, d and e may be waived
under the following circumstances:
Q. Who can adopt?
a) Adopter is a former Filipino Citizen who
seeks to adopt a relative within the 4th
ANS.
degree of consanguinity or affinity
I. Filipino Citizens
b) One who seeks to adopt the legitimate or
a) Of legal age
illegitimate child of his/her Filipino spouse
b) In possession of full civil capacity and
c) One who is married to a Filipino Citizen
legal rights
and seeks to adopt jointly with his/her
c) Of good moral character
spouse a relative within the 4th degree of
d) Has not been convicted of any crime
consanguinity or affinity of the Filipino
involving moral turpitude
spouse
e) Emotionally and psychologically capable
of caring for children
III. Guardians
f) At least sixteen (16) years older than
With respect to theirs ward after the termination
adoptee, except when adopter is biological
of the guardianship and clearance of his/her
parent of the adoptee or is the spouse of
accountabilities. (Sec. 7, RA 8552)
the adoptee’s parent
g) In a position to support and care for
Q. Husband and wife shall adopt jointly. What
his/her children in keeping with the means
are the exceptions?
of the family

ANS. Husband and wife shall jointly adopt,

II. Aliens
except in the following cases:
a) Possession of the same as the
1) if one spouse seeks to adopt the legitimate
qualifications for Filipinos
child of the other
b) His/her country has diplomatic relations
2) if one of the spouse seeks to adopt his/her
with the Philippines
illegitimate child provided that other
c) Has been living continuously for 3 years
spouse has signified his/her consent
(provided that absences not exceeding 60

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 CIVIL LAW

3) if spouses are legally separated from each proper government instrumentality which
other has legal custody of the child;
**If spouses jointly adopt, parental authority c) The legitimate and adopted
shall be exercised jointly. sons/daughters, ten (10) years of age or
over, of the adopter(s) and adoptee, if any;
Q. Who may be adopted? d) The illegitimate sons/daughters, ten (10)
years of age or over, of the adopter if living
ANS. The following may be adopted: with said adopter and the latter's spouse,
a) Any person below eighteen (18) years of if any; and
age who has been administratively or e) The spouse, if any, of the person adopting
judicially declared available for adoption; or to be adopted. (Sec. 9, RA 8552)
b) The legitimate son/daughter of one spouse
by the other spouse; NOTE: A decree of adoption shall be effective
c) An illegitimate son/daughter by a as of the date the original petition was filed. It
qualified adopter to improve his/her also applies in case the petitioner dies before the
status to that of legitimacy; issuance of the decree of adoption to protect the
d) A person of legal age if, prior to the interest of the adoptee.
adoption, said person has been
consistently considered and treated by the Q. What are the effects of adoption?
adopter(s) as his/her own child since
minority; ANS.
e) A child whose adoption has been 1) Parental Authority. – Except in cases where
previously rescinded; or the biological parent is the spouse of the
f) A child whose biological or adoptive adopter, all legal ties between the biological
parent(s) has died: Provided, That no parent(s) and the adoptee shall be severed
proceedings shall be initiated within six (6) and the same shall then be vested on the
months from the time of death of said adopter(s). (Sec. 16, RA 8552)
parent(s). (Sec. 8, RA 8552) 2) Legitimacy. – The adoptee shall be
considered the legitimate son/daughter of the
Q. Whose consent is necessary to the adopter(s) for all intents and purposes and as
adoption? such is entitled to all the rights and
obligations provided by law to legitimate
ANS. After being properly counseled and sons/daughters born to them without
informed of his/her right to give or withhold discrimination of any kind. To this end, the
his/her approval of the adoption, the written adoptee is entitled to love, guidance, and
consent of the following to the adoption is support in keeping with the means of the
hereby required: family. (Sec. 17, RA 8552)
a) The adoptee, if ten (10) years of age or 3) Succession. – In legal and intestate
over; succession, the adopter(s) and the adoptee
b) The biological parent(s) of the child, if shall have reciprocal rights of succession
known, or the legal guardian, or the without distinction from legitimate filiation.
However, if the adoptee and his/her

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biological parent(s) had left a will, the law on 3) When the surviving spouse or the
testamentary succession shall govern. (Sec. illegitimate children of the adopted concur
18, RA 8552) with the adopters, they shall divide the
entire estate in equal shares, one-half to be
Q. What are the other rights of the adopted inherited by the spouse or the illegitimate
child as provided in the NCC? children of the adopted and the other half,
by the adopters.
ANS. 4) When the adopters concur with the
Art. 189. Adoption shall have the following illegitimate children and the surviving
effects: spouse of the adopted, they shall divide
1) For civil purposes, the adopted shall be the entire estate in equal shares, one-third
deemed to be a legitimate child of the to be inherited by the illegitimate children,
adopters and both shall acquire the one-third by the surviving spouse, and
reciprocal rights and obligations arising one-third by the adopters;
from the relationship of parent and child, 5) When only the adopters survive, they shall
including the right of the adopted to use inherit the entire estate; and
the surname of the adopters; 6) When only collateral blood relatives of the
2) The parental authority of the parents by adopted survive, then the ordinary rules
nature over the adopted shall terminate of legal or intestate succession shall apply.
and be vested in the adopters, except that Art. 365. An adopted child shall bear the
if the adopter is the spouse of the parent surname of the adopter.
by nature of the adopted, parental
authority over the adopted shall be Q. Can adoption be rescinded?
exercised jointly by both spouses; and
3) The adopted shall remain an intestate heir ANS. Adoption, being in the best interest of the
of his parents and other blood relatives. child, shall not be subject to rescission by the
Art. 190. Legal or intestate succession to the adopter(s).
estate of the adopted shall be governed by the Adopted may request for rescission, with the
following rules: assistance of DSWD, if a minor, or over 18 but
1) Legitimate and illegitimate children and incapacitated, based on the following grounds:
descendants and the surviving spouse of 1) repeated physical and verbal
the adopted shall inherit from the maltreatment despite having undergone
adopted, in accordance with the ordinary counseling
rules of legal or intestate succession; 2) attempt on life of adoptee
2) When the parents, legitimate or 3) sexual assault or violence
illegitimate, or the legitimate ascendants 4) abandonment or failure to comply with
of the adopted concur with the adopter, parental obligations
they shall divide the entire estate, one-half However, the adopter(s) may disinherit the
to be inherited by the parents or adopted based on causes as enumerated in Art.
ascendants and the other half, by the 919 of the NCC.
adopters;

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Q. What are the effects of rescission of is the parent by nature of the child to be
adoption? adopted or the spouse of such parent
b) If married, his/her spouse must jointly file
ANS. for the adoption
1) The parental authority of the adoptee's c) Has the capacity to act and assume all
biological parents, if known, OR the legal rights and responsibilities of parental
custody of the DSWD shall be restored if the authority under his national laws, and has
adoptee is still a minor or incapacitated. undergone the appropriate counseling
2) The reciprocal rights and obligations of the from an accredited counselor in his/her
adopters and the adoptee to each other shall country
be extinguished. d) Has not been convicted of a crime
3) The court shall order the Civil Registrar to involving moral turpitude
cancel the amended certificate of birth of the e) Is eligible to adopt under his/her national
adoptee and restore his/her original birth law
certificate. f) Is in a position to provide the proper care
4) Successional rights shall revert to its status and support and to give the necessary
prior to adoption, but only as of the date of moral values and example to all his
judgment of judicial rescission. Vested rights children, including the child to be adopted
acquired prior to judicial rescission shall be g) Agrees to uphold the basic rights of the
respected. (Sec. 20, RA 8552) child as embodied under Philippine laws,
the U.N. Convention on the Rights of the
2. Law on Inter-Country Adoption Child, and to abide by the rules and
regulations issued to implement the
provisions of this Act
Q. What is inter-country adoption?
h) Comes from a country with whom the
Philippines has diplomatic relations and
ANS. Inter-country adoption refers to the socio-
whose government maintains a similarly
legal process of adopting a Filipino child by a
authorized and accredited agency and that
foreigner or a Filipino citizen permanently
adoption is allowed under his/her national
residing abroad where the petition is filed, the
laws; and
supervised trial custody is undertaken, and the
i) possesses all the qualifications and none of
decree of adoption is issued outside the
the disqualifications provided herein and
Philippines.
in other applicable Philippine laws. (Sec. 9,
RA 8043)
Q. Who may adopt?

Q. Who may be adopted?

ANS. Any foreign national or a Filipino citizen
permanently residing abroad who has the
ANS. Only a legally free child may be the
qualifications and none of the disqualifications
subject of inter-country adoption. In order that
under the Act may file an application if he/she:
such child may be considered for placement, the
a) Is at least 27 years of age and at least 16
following documents must be submitted to the
years older than the child to be adopted, at
Board:
the time of application unless the adopter

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a) Child study; needed, for the adoptees are already

b) Birth certificate / foundling certificate; emancipated.
c) Deed of voluntary commitment / decree of Is the trial court correct in dismissing the
abandonment/death certificate of parents; petitions for adoption?
d) Medical evaluation / history;
e) Psychological evaluation, as necessary; ANS. Yes. Section 7 Article 3 of R.A. 8552 reads:
and Sec. 7 – Husband and wife shall jointly adopt,
f) Recent photo of the child. (Sec. 8, RA 8043) xxx. The use of the word “shall” in the above-
quoted provision means that joint adoption by
Q. Who is a legally-free child? the husband and the wife is mandatory. This is
in consonance with the concept of joint parental
ANS. A legally-free child is one who has been authority over the child which is the ideal
voluntarily or involuntarily committed to the situation. As the child to be adopted is elevated
DSWD of the Philippines, in accordance with to the level of a legitimate child, it but natural to
the Child and Youth Welfare Code. require the spouses to adopt jointly. The rule
NOTE: No child shall be matched to a foreign also ensures harmony between the spouses.
adoptive family unless it is satisfactorily shown
that the child cannot be adopted locally. The law is clear. There is no room for ambiguity.
Monina, having remarried at the time the
Q: Spouses Primo and Monica Lim, childless, petitions for adoption were filed, must jointly
were entrusted with the custody of two minor adopt. Since the petitions for adoption were
children, the parents of whom were unknown. filed only by Monina herself, without joining
Eager of having children of their own, the her husband, Olario, the trial court was correct
spouses made it appear that they were the in denying the petitions for adoption on this
children’s parents by naming them Michelle P. ground. (In Re: Petition for Adoption of
Lim and Michael Jude Lim. Michelle P. Lim, In Re: Petition for Adoption of
Subsequently, Monina married Angel Olario Michael Jude P. Lim, Monina P. Lim, G.R. Nos.
after Primo’s death of her husband. She 168992-93, May 21, 2009)
decided to adopt the children by availing the
amnesty given under R.A. 8552 to those Q: Is joint adoption still needed when the
individuals who simulated the birth of a child. adoptees are already emancipated?
She filed separate petitions for the adoption of
Michelle, then 25 years old and Michael, 18. ANS. Yes. Even if emancipation terminates
Both Michelle and Michael gave consent to the parental authority, the adoptee is still
adoption. considered a legitimate child of the adopter
The trial court dismissed the petition and with all the rights of a legitimate child such as:
ruled that Monina should have filed the (1) to bear the surname of the father and the
petition jointly with her new husband. mother; (2) to receive support from their
Monina, in a Motion for Reconsideration parents; and (3) to be entitled to the legitime and
argues that mere consent of her husband other successional rights. Conversely, the
would suffice and that joint adoption is not adoptive parents shall, with respect to the
adopted child, enjoy all the benefits to which

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biological parents are entitled such as support (Landingin v. Republic,G.R. No. 164948, June
and successional rights. 27, 2006)

Q. Bernadette filed a petition for adoption of Q. On what grounds may an adoptee seek the
the three minor children of her late brother, rescission of the adoption?
Ian. She alleged that when her brother died,
the children were left to the care of their ANS.
paternal grandmother, Anna, who went to 1) Attempt on the life of the adoptee;
Italy. This grandmother died however, and so 2) Sexual assault or violence;
she filed the petition for adoption. The minors 3) Abandonment and failure to comply with
gave their written consent to the adoption and parental obligations;
so did all of her own grown-up children. The 4) Repeated physical or verbal maltreatment by
trial court granted the decree of adoption even the adopter.
though the written consent of the biological
mother of the children was not adduced by NOTE: Adopter cannot rescind but may
Bernadette. Was the trial court correct in disinherit the adoptee.
granting the decree of adoption?
Q: What are the grounds by which an adopter
ANS. No. The rule is adoption statutes must be may disinherit adoptee?
liberally construed in order to give spirit to their
humane and salutary purpose which is to uplift ANS.
the lives of unfortunate, needy or orphaned 1) Groundless accusation against the testator of
children. However, the discretion to approve a crime punishable by 6 years or more
adoption proceedings on the part of the courts imprisonment;
should not to be anchored solely on those 2) Found guilty of attempt against the life of the
principles, but with due regard likewise to the testator, his/her spouse, descendant or
natural rights of the parents over the child. The ascendant;
written consent of the biological parents is 3) Causes the testator to make changes or
indispensable for the validity of the decree of changes a testator’s will through violence,
adoption. Indeed, the natural right of a parent intimidation, fraud or undue influence;
to his child requires that his consent must be 4) Maltreatment of the testator by word or deed;
obtained before his parental rights and duties 5) Conviction of a crime which carries a penalty
may be terminated and vested in the adoptive of civil interdiction;
parents. In this case, since the minors' paternal 6) Adultery or concubinage with the testator’s
grandmother had taken custody of them, her wife;
consent should have been secured instead in 7) Refusal without justifiable cause to support
view of the absence of the biological mother. the parent or ascendant;
This is so under Sec. 9 (b) of R.A. 8552, otherwise 8) Leads a dishonorable or disgraceful life.
known as the Domestic Adoption Act of 1998.
Diwata failed in this respect, thus necessitating
the dismissal of her petition for adoption.

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Q: What are the effects of adoption?

Q. Despite several relationships with
ANS. different women, Andrew remained
1) Severance of all legal ties between the unmarried. His first relationship with Brenda
biological parents and the adoptee and the produced a daughter, Amy, now 30 years old.
same shall then be vested on the adopters His second, with Carla, produced two sons:
Exception: In cases where the biological Jon and Ryan. His third, with Donna, bore him
parent is the spouse of the adopter; two daughters: Vina and Wilma. His fourth,
2) Deemed a legitimate child of the adopter; while Elena, bore him no children although
3) Acquires reciprocal rights and obligations Elena has a daughter Jane, from a previous
arising from parent-child relationship; relationship. His last, with Fe, produced no
4) Right to use surname of adopter; biological children but they informally
5) In legal and intestate succession, the adopters adopted without court proceedings, Sandy,
and the adoptee shall have reciprocal rights now 13 years old, whom they consider as their
of succession without distinction from own. Sandy was orphaned as a baby and was
legitimate filiation. However, if the adoptee entrusted to them by the midwife who
and his/her biological parents had left a will, attended to Sandy’s birth. All the children,
the law on testamentary succession shall including Amy, now live with Andrew in his
govern. house.

Q. State the effects of rescission of the Is there any legal obstacle to the legal adoption
adoption in the Domestic Adoption Act of of Amy by Andrew; To the legal adoption of
1998 (RA 8552). Sandy by Andrew and Elena?

ANS. ANS. No, there is no legal obstacle to the legal

1) If adoptee is still a minor or is incapacitated: adoption of Amy by Andrew. While a person of
Restoration of: age may not be adopted, Amy falls within two
a) Parental authority of the adoptee’s exceptions: (1) she is an illegitimate child and
biological parents, if known’ or she is being adopted by her illegitimate father to
b) Legal custody of the DSWD; improve her status; and (2) even on the
2) Reciprocal rights and obligations of the assumption that she is not an illegitimate child
adopters and adoptee to each other shall be of Andrew, she may still be adopted, although
extinguished; of legal age, because she has been consistently
3) Court shall order the civil registrar to cancel considered and treated by the adopter as his
the amended certificate of birth of the own child since minority. In fact, she has been
adoptee and restore his/her original birth living with him until now.
certificate; There is a legal obstacle to the adoption of
4) Succession rights shall revert to its status Sandy by Andrew and Elena. Andrew and
prior to adoption, but only as of the date of Elena cannot adopt jointly because they are not
judgment of judicial rescission; married.
5) Vested rights acquired prior to judicial
rescission shall be respected.

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Q. In his old age, can Andrew be legally applicable, the petition being still pending with
entitled to claim support from Amy, Jon, Ryan, the lower court. Under the Act, Sarah and Sonny
Vina, Wilma and Sandy assuming that all of must adopt jointly because they do not fall in
them have the means to support him? any of the exceptions where one of them may
adopt alone. When husband and wife must
ANS. Andrew can claim support from them all, adopt jointly, the Supreme Court has held in a
except from Sandy, who is not his child, line of cases that both of them must be qualified
legitimate, illegitimate or adopted. to adopt. While Sarah, an alien, is qualified to
adopt, for being a former Filipino citizen who
Q. Can Amy, Jon, Ryan, Vina, Wilma and seeks to adopt a relative within the 4th degree
Sandy legally claim support from each other? of consanguinity or affinity, Sonny, an alien, is
not qualified to adopt because he is neither a
ANS. Amy, Jon, Ryan, Vina and Wilma can ask former Filipino citizen nor married to a Filipino.
support from each other because they are half- One of them not being qualified to adopt, their
blood brothers and sisters, and Vina and Wilma petition has to be denied. However, if they have
are full-blood sisters (Art. 195 [5], Family Code), been residents of the Philippines 3 years prior to
but not Sandy who is not related to any of them. the effectivity of the Act and continues to reside
here until the decree of adoption is entered, they
Q. Can Jon and Jane legally marry? are qualified to adopt the nephew of Sarah
under Sec 7(b) thereof, and the petition may be
ANS. Jon and Jane can legally marry because granted. (2000 Bar Question)
they are not related to each other. Jane is not a
daughter of Andrew. (2008 Bar Question) J. SUPPORT

Q. Sometime in 1990, Sarah, born a Filipino Q. What is support as contemplated in the

but by then a naturalized American citizen, Family Code?
and her American husband Sonny Cruz, filed
a petition in the Regional Trial Court of ANS. Support comprises everything
Makati, for the adoption of the minor child of indispensable for sustenance, dwelling,
her sister, a Filipina, can the petition be clothing, medical assistance and transportation,
granted? in keeping with the financial capacity of the
family, including the education of the person
ANS. It depends. If Sonny and Sarah have been entitled to be supported until he completes his
residing in the Philippines for at least 3 years education or training for some profession, trade
prior to the effectivity of R.A. 8552, the petition or vocation, even beyond the age of majority.
may be granted. Otherwise, the petition cannot (Art. 194, FC)
be granted because the American husband is
not qualified to adopt.

While the petition for adoption was filed in

1990, it was considered refiled upon the
effectivity of R.A. 8552. This is the law

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Q. What are the characteristics of support? 2. Who are obliged to give support

ANS. PRIM PEN Q. Who are obliged to give support?

1) Personal
2) Reciprocal on the part of those who are by ANS. The following are obliged to support each
law bound to support each other other to the whole extent set forth under Art.
3) Intransmissible 194:
4) Mandatory a) The spouses
5) Provisional character of support judgment b) Legitimate ascendants and descendants
6) Exempt from attachment or execution c) Parents and their legitimate children and
7) Not subject to waiver or compensation the legitimate and illegitimate children of
the latter
1. What it comprises d) Parents and their illegitimate children and
the legitimate and illegitimate children of
Q. What comprises support? the latter
e) Legitimate brothers and sisters, whether of
ANS. Support comprises of everything full or half-blood
indispensable for: SDC MET f) Brothers and sisters not legitimately
1) Sustenance related, whether of the full or half-blood,
2) Dwelling are likewise bound to support each other
3) Clothing to the full extent set forth, except only
4) Medical attendance when the need for support of the brother
5) Education – includes schooling or or sister, being of age, is due to a cause
training for some profession, trade. imputable to the claimant’s fault or
negligence. (Art. 194, FC)
Q. What are the kinds of support?
3. Sources of support
ANS.
a) As to amount: Q. Where shall support be taken?
i. Natural (bare necessities of life)
ii. Civil (in accordance with financial ANS.
standing) 1) CPG or ACP shall answer for the support of
b) As to source of obligations: the:
i. Legal (from provision of law) a) spouse,
ii. Voluntary (from agreement or from b) their common children, and
provision of a will) c) the legitimate children of their spouse.
c) Special kind (alimony pendente lite) 2) The separate property of the obligor shall
answer for the support of the:
a) Legitimate ascendants,
b) All other descendants, whether
legitimate or illegitimate, and

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c) Brothers and sisters, whether legitimate The order of liability among ascendants and
or illegitimately related. descendants would be:
3) If no separate property, the ACP/CPG (if 1) Legitimate children and descendants,
financially capable) shall advance the 2) Legitimate parents and ascendants, and
support, to be deducted from the obligor’s 3) Illegitimate children and their
share upon liquidation of such regime descendants (Tolentino)

Q. What is the effect if support was given by a 5. Amount of support

stranger?
Q. What is the basis for the amount of support
ANS. When, without the knowledge of the given?
person obliged to give support, it is given by a
stranger, the latter shall have the right to claim ANS. The amount of support, in the cases
the same from the former, unless it appears that referred to in Art. 195 and 196, shall be in
he gave it without intention of being proportion to the resources or means of the
reimbursed. giver and to the necessities of the recipient.

Q. What is the effect when the person obliged Q. In case of contractual support, what
to support another unjustly refuses or fails to happens to the excess in amount beyond that
give support when urgently needed by the required for legal support?
latter?
ANS. It shall be subject to levy on attachment or
ANS. Any third person may furnish support to execution.
the needy individual, with right of Furthermore, contractual support shall be
reimbursement from the person obliged to give subject to adjustment whenever modification is
support. This Article shall particularly apply necessary due to changes in circumstances
when the father or mother of a child under the manifestly beyond the contemplation of the
age of majority unjustly refuses to support or parties.
fails to give support to the child when urgently
needed.
6. Manner and time of payment

4. Order of support
Q. What are the options of the person obliged
to give support?
Q. What is the order of support in case two or
more persons are obliged to give support? ANS. He may fulfill the obligation either by:
a) paying the allowance fixed; or
ANS. The liability shall devolve upon the b) receiving and maintaining in the family
following persons in the order herein provided: dwelling the person who has a right to
1) The spouse receive support.
2) The descendants in the nearest degree The latter alternative cannot be availed of in
3) The ascendants in the nearest degree case there is a moral or legal obstacle thereto
4) The brothers and sisters (Art. 199, FC)

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Q. When shall support be given? ANS.

1) Pending legal separation or annulment, and
ANS. The obligation to give support shall be for declaration of nullity, support pendente
demandable from the time the person who has lite for spouses and children will come from
a right to receive the same needs it for the ACP/CPG.
maintenance, but it shall not be paid except 2) After final judgment granting the petition,
from the date of judicial or extrajudicial mutual support obligation between spouses
demand. ceases.
Support pendente lite may be claimed in 3) In legal separation, the court may order the
accordance with the Rules of Court. guilty spouse to give support to the innocent
Payment shall be made within the first five days spouse. (Art. 198, FC)
of each corresponding month or when the
recipient dies, his heirs shall not be obliged to 9. Procedure in applications for support
return what he has received in advance.(Art.
203, FC) Q. Who has original jurisdiction over petitions
for support?
7. Renunciation and termination
ANS. Family Court
Q. When is support terminated?
Q. What are the procedures in filing a petition
ANS. for support?
a) Once the marriage has been declared null
b) In case of separation in fact between husband ANS. (Based on Rule 61, RoC)
and wife, the spouse who leaves the conjugal 1) Application – A verified application for
home or refuses to live therein, without just support pendente lite may be filed by any
cause, shall not have the right to be party stating the grounds for the claim and
supported the financial conditions of both parties, and
c) For a child upon reaching the age of majority accompanied by affidavits, depositions or
other authentic documents in support
8. Support pendente lite thereof.
2) Comment – A copy of the application and all
Q. What is support pendente lite? supporting documents shall be served upon
the adverse party, who shall have five (5)
ANS. It is a provisional remedy which grants a days to comment thereon unless a different
person entitled to support an amount enough period is fixed by the court upon his motion.
for his “sustenance, dwelling, clothing, medical The comment shall be verified and shall be
attendance, education and transportation” (Art. accompanied by affidavits, depositions or
194, FC) while the action is pending in court. other authentic documents in support
thereof.
Q. What are the guidelines for support 3) Hearing – After the comment is filed, or after
pendente lite? the expiration of the period for its filing, the

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application shall be set for hearing not more Q. What is meant by joint parental authority?
than three (3) days thereafter.
ANS. The father and the mother shall jointly
exercise parental authority over the persons of
K. PARENTAL AUTHORITY their common children. In case of disagreement,
the father’s decision shall prevail, unless there is
a judicial order to the contrary.
1. General provisions
Children shall always observe respect and
reverence towards their parents and are obliged
Q. What does parental authority comprise?
to obey them as long as the children are under
parental authority. (Art. 211, FC)
ANS. Pursuant to the natural right and duty of
parents over the person and property of their
Q. In case of absence or death of either parent,
unemancipated children, parental authority
how shall parental authority be exercised?
and responsibility shall include the caring for
and rearing of such children for civic
ANS. The parent present shall continue
consciousness and efficiency and the
exercising parental authority. The remarriage of
development of their moral, mental and
the surviving parent shall not affect the parental
physical character and well-being. (Art. 209, FC)
authority over the children, unless the court
appoints another person to be the guardian of
Q. What is the nature of parental support?
the person or property of the children. (Art. 212,
FC)
ANS. Parental authority and responsibility may
not be renounced or transferred except in the
Q. In case of separation of the parents, how
cases authorized by law.
shall parental authority be exercised?

Q. When is parental support waivable?

ANS. Parental authority shall be exercised by
the parent designated by the Court. The Court
ANS. Exceptions - Waivable in the following
shall take into account all relevant
cases:
considerations, especially the choice of the child
a) When there is guardianship approved by
over seven years of age, unless the parent
the court
chosen is unfit.
b) When there is adoption approved by the
No child under 7 years of age shall be separated
court
from the mother, unless the court finds
c) When there is emancipation by concession
compelling reasons to order otherwise. (Art.
d) When there is a surrender of the child to
213, FC)
an orphan asylum

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Q. In case of death, absence or unsuitability of 3) The child’s actual custodian, over 21 years
the parents, who shall exercise substitute of age, unless unfit or disqualified.
parental authority? Whenever the appointment of a judicial
guardian over the property of the child becomes
ANS. It shall be exercised by the surviving necessary, the same order of preference shall be
grandparent. In case several survive, the one observed. (Art. 216, FC)
designated by the court, taking into account the Parental authority for Foundlings: In case of
same consideration mentioned in the preceding foundlings, abandoned, neglected or abused
article, shall exercise the authority. (Art. 214 , children and other children similarly situated,
FC) parental authority shall be entrusted in
summary judicial proceedings to heads of
Q. Can a descendant be compelled, in a children’s homes, orphanages and similar
criminal case, to testify against his parents and institutions duly accredited by the proper
grandparents? government agency.

ANS. Filial privilege – No descendant shall be 3. Special parental authority

compelled, in a criminal case, to testify against
his parents and grandparents, except when such Q. Who has special parental authority and
testimony is indispensable in a crime against the responsibility over the minor child while
descendant or by one parent against the other. under their supervision, instruction or
(Art. 215, FC) custody?

2. Substitute parental authority ANS.

1) The school,
Q. What is the order of substitute parental 2) Its administrators and teachers, or
authority? 3) The individual, entity or institution
engaged in child care
ANS. In default of parents or a judicially Authority and responsibility shall apply to all
appointed guardian, the following persons shall authorized activities whether inside or outside
exercise substitute parental authority over the the premises of the school, entity or institution.
child in the order indicated: (Art. 218. FC)
1) The surviving grandparent: in case of
death, absence or unsuitability of the Q. What are the liabilities of persons given
parents, substitute parental authority shall substitute or special parental authority?
be exercised by the surviving grandparent.
In case several survive, the one designated ANS.
by the court, taking into account the same 1) Those given the special parental authority
consideration mentioned under Art. 213, shall be principally and solidarily liable for
shall exercise the authority. damages caused by the acts or omissions of
2) The oldest brother or sister, over 21 years the unemancipated minor.
of age, unless unfit or disqualified. 2) The parents, judicial guardians or the
persons exercising substitute parental

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authority over said minor shall be civic affairs, and inspire in them compliance
subsidiarily liable. with the duties of citizenship;
4) To furnish them with good and wholesome
NOTES: educational materials, supervise their
 The respective liabilities shall not apply activities, recreation and association with
if it is proved that they exercised the others, protect them from bad company, and
proper diligence required under the prevent them from acquiring habits
particular circumstances. detrimental to their health, studies and
 All other cases not covered by this and morals;
the preceding articles shall be governed 5) To represent them in all matters affecting
by the provisions on quasi-delicts. their interests;
3) Parents and other persons exercising 6) To demand from them respect and
parental authority shall be civilly liable for obedience;
the injuries and damages caused by the acts 7) To impose discipline on them as may be
or omissions of their unemancipated children required under the circumstances; and
living in their company and under their 8) To perform such other duties as are imposed
parental authority subject to the appropriate by law upon parents and guardians (Art. 220,
defenses provided by law. FC)
4) In no case shall the school administrator,
teacher or individual engaged in child care Q. What is the liability of parents for the
exercising special parental authority inflict injuries and damages caused by the acts or
corporal punishment upon the child. omissions of their unemancipated children?

ANS. Parents and other persons exercising

4. Effect of parental authority over the child's parental authority shall be civilly liable for the
person injuries and damages caused by the acts or
omissions of their unemancipated children
Q. What are the rights and duties of persons living in their company and under their
exercising parental authority upon the person parental authority subject to the appropriate
of a child? defenses provided by law. (Art. 221, FC)

ANS. Q. What is the authority of parents or persons

1) To keep them in their company, to support, exercising substitute parental authority?
educate and instruct them by right precept
and good example, and to provide for their ANS. Persons exercising parental authority over
upbringing in keeping with their means; a child may petition the proper court of the
2) To give them love and affection, advice and place where the child resides for an order
counsel, companionship and understanding; providing for disciplinary measures over the
3) To provide them with moral and spiritual child. The person exercising substitute parental
guidance, inculcate in them honesty, authority shall have the same authority over the
integrity, self-discipline, self-reliance, person of the child as the parents. (Art. 223, FC)
industry and thrift, stimulate their interest in

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5. Effects of parental authority over the child's thus given in whole or in part shall not be
property charged to the child’s legitime. (Art. 227, FC)

Q. How shall the parents of an unemancipated 6. Suspension or termination or parental

child exercise guardianship over the property authority
of the child?
Q. When shall parental authority ne
ANS. The father and the mother shall jointly terminated permanently?
exercise legal guardianship over the property of
the unemancipated common child without the ANS.
necessity of a court appointment. In case of a) Upon the death of the parents
disagreement, the father’s decision shall prevail, b) Upon the death of the child
unless there is a judicial order to the contrary. c) Upon emancipation of the child
d) If the person exercising parental authority
Q. What is the disposition of the property of has subjected the child or allowed him to be
an unemancipated child? subjected to sexual abuse, such person shall
be permanently deprived by the court of such
ANS. The property of the unemancipated child authority.
earned or acquired with his work or industry or
by onerous or gratuitous title shall belong to the Q. When shall parental authority ne
child in ownership and shall be devoted terminated temporarily?
exclusively to the latter’s support and
education, unless the title or transfer provides ANS. Unless subsequently revived by a final
otherwise. (Art. 226, FC) judgment, parental authority also terminates:
a) Upon adoption of the child
The right of the parents over the fruits and b) Upon appointment of a general guardian
income of the child’s property shall be limited c) Upon judicial declaration of abandonment
primarily to the child’s support and secondarily of the child in a case filed for the purpose
to the collective daily needs of the family. d) Upon final judgment of a competent court
divesting the party concerned of parental
Q. What are the effects of parents entrusting authority
the management or administration of any of e) Upon judicial declaration of absence or
their properties to an unemancipated child? incapacity of the person exercising
ANS. If the parents entrust the management or parental authority.
administration of any of their properties to an
unemancipated child, the net proceeds of such Q. When is parental authority suspended?
property shall belong to the owner. The child
shall be given a reasonably monthly allowance ANS. Parental authority is suspended upon
in an amount not less than that which the owner conviction of the parent or the person exercising
would have been paid if the administrator were the same of a crime which carries with it the
a stranger, unless the owner, grants the entire penalty of civil interdiction. The authority is
proceeds to the child. In any case, the proceeds automatically reinstated upon service of the

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penalty or upon pardon or amnesty of the Provided, That the mother keeps and raises
offender. the child;
Also, the court in an action filed for the purpose
or in a related case may also suspend parental 2) Parent left solo or alone with the
authority if the parent or the person exercising responsibility of parenthood due to death of
the same: spouse;
a) Treats the child with excessive harshness 3) Parent left solo or alone with the
or cruelty responsibility of parenthood while the
b) Gives the child corrupting orders, counsel spouse is detained or is serving sentence for
or example a criminal conviction for at least one (1) year;
c) Compels the child to beg 4) Parent left solo or alone with the
d) Subjects the child or allows him to be responsibility of parenthood due to physical
subjected to acts of lasciviousness and/or mental incapacity of spouse as
certified by a public medical practitioner;
NOTES: 5) Parent left solo or alone with the
 The grounds enumerated above are responsibility of parenthood due to legal
deemed to include cases which have separation or de facto separation from spouse
resulted from culpable negligence of the for at least one (1) year, as long as he/she is
parent or the person exercising parental entrusted with the custody of the children;
authority. 6) Parent left solo or alone with the
 If the degree of seriousness so warrants, or responsibility of parenthood due to
the welfare of the child so demands, the declaration of nullity or annulment of
court shall deprive the guilty party of marriage as decreed by a court or by a church
parental authority or adopt such other as long as he/she is entrusted with the
measures as may be proper under the custody of the children;
circumstances. 7) Parent left solo or alone with the
 The suspension or deprivation may be responsibility of parenthood due to
revoked and the parental authority abandonment of spouse for at least one (1)
revived in a case filed for the purpose or in year;
the same proceeding if the court finds that 8) Unmarried mother/father who has preferred
the cause therefore has ceased and will not to keep and rear her/his child/children
be repeated. instead of having others care for them or give
them up to a welfare institution;
7. Solo parents (RA 8972) 9) Any other person who solely provides
parental care and support to a child or
Q. Who is a solo parent? children;
10) Any family member who assumes the
ANS. "Solo parent" - any individual who falls responsibility of head of family as a result of
under any of the following categories: the death, abandonment, disappearance or
1) A woman who gives birth as a result of rape prolonged absence of the parents or solo
and other crimes against chastity even parent.
without a final conviction of the offender:

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Q. What are the benefits granted to a solo children in institutions of basic,

parent? tertiary and technical/skills
education; and
ANS. ii. Nonformal education
1) Any solo parent whose income in the place of programs appropriate for solo
domicile falls below the poverty threshold as parents and their children (Sec.
set by the National Economic and 9, RA 8972)
Development Authority (NEDA) and subject f) Housing benefits (Sec. 10, RA 8972)
to the assessment of the DSWD worker in the g) Medical assistance (Sec. 11, RA 8972)
area shall be eligible for the following 2) Any solo parent whose income is above the
assistance: poverty threshold shall enjoy only the
a) Comprehensive package of Social following benefits:
Development and Welfare Services, a) Flexible work schedule (Sec. 6, RA 8972)
consisting of: b) Right to be protected against work
i. Livelihood development discrimination with respect to terms
services; and conditions of employment (Sec. 7,
ii. Counseling services; RA 8972)
iii. Parent effectiveness services; c) Parental leave of not more than seven
iv. Critical incidence stress (7) working days every year, in addition
debriefing; to current leave privileges, provided the
v. Special projects for individuals solo parent employee has already
in need of protection (Sec. 5, RA rendered service of at least one (1) year
8972) (Sec. 8, RA 8972)
b) Flexible work schedule or the right
granted to a solo parent employee to
vary his/her arrival and departure time L. EMANCIPATION
without affecting the core work hours
as defined by the employer (Sec. 6, RA
1. Cause of emancipation
8972)
c) Right to be protected against work
Q. When does emancipation take place?
discrimination with respect to terms
and conditions of employment (Sec. 7,
ANS. By attainment of majority, at the age of
RA 8972)
eighteen years (Art. 234, FC, as amended by
d) Parental leave of not more than seven
R.A. No. 6089)
(7) working days every year, in addition
to current leave privileges, provided the
solo parent employee has already
rendered service of at least one (1) year
(Sec. 8, RA 8972)
e) Educational benefits, consisting of:
i. Scholarship programs for
qualified solo parents and their

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The final deed duly executed by the parties shall

2. Effect of emancipation be submitted to and approved by the court.
(Art. 239, FC)
Q. What are the effects of emancipation?
Q. What are the proceedings necessary in cases
ANS. of separation in fact between husband and
1) Termination of parental authority over the wife, abandonment by one of the other, and
person and property of the child incidents involving parental authority?
emancipated (Art. 228, FC);
2) Becoming qualified and responsible for all ANS.
acts of civil life. 1) Claims for damages by either spouse, except
Exceptions: costs of the proceedings, may be litigated
 Persons possessing parental authority only in a separate action. (Art. 240, FC)
over the emancipated individual need to 2) Jurisdiction over the petition shall, upon
give their respective parental consent until proof of notice to the other spouse, be
the emancipated individual is at the age of exercised by the proper court authorized to
twenty-one. hear family cases, if one exists, or in the
 Other exceptions established by existing regional trial court or its equivalent sitting in
laws in special cases. the place where either of the spouses resides.
(Art. 241, FC)
3) Upon the filing of the petition, the court
shall notify the other spouse, whose
M. SUMMARY JUDICIAL PROCEEDINGS
consent to the transaction is required, of
IN THE FAMILY CODE
said petition, ordering said spouse to
show cause why the petition should not
Q. When is a verified petition necessary when
be granted, on or before the date set in
husband and wife are separated by fact?
said notice for the initial conference. The
notice shall be accompanied by a copy of
ANS. A verified petition alleging the following
the petition and shall be served at the last
facts is required when:
known address of the spouse concerned.
a) A husband and wife are separated in fact,
(Art. 242, FC)
or, one has abandoned the other, and;
4) A preliminary conference shall be
b) One of them seeks judicial authorization
conducted by the judge personally
for a transaction where the consent of the
without the parties being assisted by
other spouse is required by law but the
counsel. After the initial conference, if
same is withheld or cannot be obtained
the court deems it useful, the parties may
The petition shall attach the proposed deed, if
be assisted by counsel at the succeeding
any, embodying the transaction, if none, shall
conferences and hearings. (Art. 243, FC)
describe in detail the said transaction and state
5) In case of non-appearance of the spouse
the reason why the required consent thereto
whose consent is sought, the court shall
cannot be secured.
inquire into the reasons for his failure to

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appear, and shall require such Q. What are the rules as to the use of surname
appearance, if possible. (Art. 244, FC) by a married woman during marriage?
6) If, despite all efforts, the attendance of
the non-consenting spouse is not ANS. A married woman may use:
secured, the court may proceed ex parte 1) Her maiden first name and surname and add
and render judgment as the facts and her husband’s surname, or;
circumstances may warrant. In any case, 2) Her maiden first name and her husband’s
the judge shall endeavor to protect the surname, or;
interests of the non-appearing spouse. 3) Her husband’s full name, but prefixing a
(Art. 245, FC) word indicating that she is his wife, such as
7) If the petition is not resolved at the initial “Mrs.”. (Art. 370, NCC)
conference, said petition shall be decided
in a summary hearing on the basis of Q. What are the rules as to the use of surname
affidavits, documentary evidence or oral by a married woman after marriage?
testimonies at the sound discretion of the
court. If testimony is needed, the court ANS.
shall specify the witnesses to be heard 1) In case of annulment of marriage and the
and the subject-matter of their wife is the guilty party, she shall resume her
testimonies, directing the parties to maiden name and signature. (Art. 371, NCC)
present said witnesses. (Art. 246, FC) 2) In case of annulment of marriage and the
8) Upon the filing of the petition for wife is the innocent party, she may choose to
incidents involving parental authority, continue employing her former husband’s
the court shall notify the parents or, in surname, unless:
their absence or incapacity, the a) The court decrees otherwise, or;
individuals, entities or institutions b) She or the former husband is married
exercising parental authority over the again to another person
child. (Art. 251, FC) 3) When legal separation has been granted, the
wife shall continue using her name and
N. USE OF SURNAMES surname employed before the legal
separation. (Art. 373, NCC)
Q. What are the rules as to the use of surname 4) A widow may use the deceased husband’s
by children? surname as though he were still living, in
accordance with Art. 370.
ANS.
a) Legitimate and legitimated children –
principally use the surname of the father.
b) Adopted child – bear the surname of the
adopter.
c) Natural child acknowledged by both parents
–principally use the surname of the father
d) Illegitimate child – surname of their mother.

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ANS.
O. ABSENCE 1) The spouse present;
2) The heirs instituted in a will, who may
present an authentic copy of the same;
1. Provisional measures in case of absence
3) The relatives who may succeed by the law of
intestacy;
Q. When may a court appoint a person to
4) Those who may have, over the property of
represent the absentee?
the absentee, some right subordinated to the
condition of his death. (Art. 385, NCC)
ANS.
1) A person disappears from his domicile.
Q. When shall the judicial declaration of
2) His whereabouts are unknown.
absence take effect?
3) He did not leave an agent to administer his
property. (Art. 381, NCC)
ANS. The judicial declaration of absence shall
not take effect until six months after its
Q. Who may be appointed to represent an
publication in a newspaper of general
absentee?
circulation. (Art. 386, NCC)

ANS.
1) In the appointment of a representative, the 3. Administration of the property of the
spouse present shall be preferred when there absentee
is no legal separation.
2) If the absentee left no spouse, or if the spouse Q. Can the wife appointed as an administratrix
present is a minor, any competent person alien the property of the husband?
may be appointed by the court. (Art. 383,
NCC) ANS. The wife who is appointed as an
administratrix of the husband’s property cannot
alienate or encumber the husband’s property; or
2. Declaration of absence
that of the conjugal partnership, without
judicial authority. (Art. 388, NCC)
Q. When may absence be declared?

Q. When shall administration cease?

ANS. A person’s absence may be declared
1) After two years have elapsed without any
ANS.
news about the absentee or since the receipt
1) When the absentee appears personally or by
of the last news, or;
means of an agent;
2) After five years have elapsed, in case the
2) When the death of the absentee is proved and
absentee left a person in charge of the
his testate or intestate heirs appear;
administration of his property (Art. 384,
3) When a third person appears, showing by a
NCC)
proper document that he has acquired the
absentee’s property by purchase or other
Q. Who may ask for the declaration of
title. (Art. 389, NCC)
absence?

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Q. What are the effects of cessation of Q. If an absentee reappears, what is the effect
administration? on his property?

ANS. ANS. If the absentee appears, or without

1) The administrator shall cease in the appearing, his existence is proved, he shall
performance of his office, and; recover his property in which it may be found,
2) The property shall be at the disposal of those and the price of any property that may have
who may have a right thereto. been alienated or the property acquired
therewith; but he cannot claim either fruits or
4. Presumption of death rents. (Art. 392, NCC)

Q. When is an absentee presumed dead?

P. CIVIL REGISTRAR
ANS.
a) Seven years, for all purposes, except
succession. Q. Who may file a petition for the correction of
b) Ten years, for the purpose of opening his error in name?
succession.
Exception: If the absentee disappeared at the ANS. Any person having direct and personal
age of seventy-five years, an absence of five interest in the correction of a clerical or
years shall be sufficient to open his succession. typographical error in an entry and/or change of
(Art. 390, NCC) first name or nickname in the civil register may
file, in person, a verified petition with the local
Q. Who are the absentees who are presumed civil registry office of the city or municipality
dead when their absence is due to dangerous where the record being sought to be corrected
circumstances? or changed is kept or with the nearest
Philippine Consulates for citizens who are
ANS. The following shall be presumed dead for presently residing or domiciled in foreign
all purposes, including the division of the estate countries.. (Sec. 3, RA 9048)
among the heirs:
1) A person on board a vessel lost during a sea Q. What are the grounds for change of first
voyage, or an aeroplane which is missing, name or nickname?
who has not been heard of for four years
since the loss of the vessel or aeroplane; ANS. The petition for change of first name or
2) A person in the armed forces who has taken nickname may be allowed in any of the
part in war, and has been missing for four following cases:
years; 1) The petitioner finds the first name or
3) A person who has been in danger of death nickname to be ridiculous, tainted with
under other circumstances and his existence dishonor or extremely difficult to write or
has not been known for four years. (Art. 391, pronounce.
NCC) 2) The new first name or nickname has been
habitually and continuously used by the

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petitioner and he has been publicly known by a) Public dominion or ownership (like
that by that first name or nickname in the rivers)
community: or b) Private dominion or ownership (like a
3) The change will avoid confusion. (Sec. 4, RA fountain pen)
9048) 3) Alienability
a) Within the commerce of man or which
may be the objects of contracts or
III. PROPERTY judicial transactions
4) Outside the commerce of man Existence
Q. What is property? a) Present property (res existentes)
b) Future property (res futurae)
ANS. It refers to all things which are or may be 5) Materiality or Immateriality
the object of appropriation considered as either a) Tangible or corporeal (objects which
real or personal property (Art. 414, NCC). can be seen or touched, like the paper
on which is printed a P1,000 Bangko
NOTE: “Thing” is broader in scope than Sentral Note)
“property” for it includes both appropriable b) Intangible or incorporeal (rights or
and non-appropriable objects. credits, like the credit represented by a
P1,000 Bangko Sentral Note)
Q. What are the classification of things? 6) Dependence or Importance
a) Principal
ANS. There are three kinds of things, b) Accessory
depending on the nature of their ownership: 7) Capability of Substitution
1) Res nullius (belonging to no one) – These a) Fungible – capable of substitution by
things belong to no one, and the reason is other things of the same quantity and
that they have not yet been appropriated quality
2) Res communes (belonging to everyone) – b) Non-fungible –incapable of such
While in particular no one owns common substitution, hence, the identical thing
property, still in another sense, res must be given or returned
communes are really owned by everybody 8) Nature or Definiteness
in that their use and enjoyment are given a) Generic
to all of mankind 9) Specific Whether in the Custody of the Court
3) Res alicujus (belonging to someone) or Free
a) In custodia legis (in the custody of the
Q. What are the classifications of property? court) — when it has been seized by an
officer under a writ of attachment or
ANS. under a writ of execution.
1) Mobility and non-mobility b) “Free’’ property – not in “custodia
a) Movable or personal property legis’’
b) Immovable or real property
2) Ownership Q. What are the requisites for a thing to be
considered as property?

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c) Trees and plants are classified as

ANS. immovable by nature if they are
1) Utility – Capacity to satisfy human wants; spontaneous products of the soil.
2) Substantivity/ Individuality – It has a 2) Immovable by incorporation – essentially
separate and autonomous existence. movables but are attached to an immovable
3) Appropriability - Susceptibility to (pars. 2, 3, 7)
ownership/possession, even if not yet a) Trees, plants, and growing fruits if they
actually appropriated. were planted thru labor;
b) Everything attached to an immovable in
Q. What properties are not susceptible of a fixed manner, in such a way that it
appropriation? cannot be separated therefrom without
breaking the material or deterioration
ANS. of the object;
1) Common things (res communes) – Those c) Fertilizer actually used on a piece of
properties belonging to everyone, e.g., air, land
wind, sunlight 3) Immovable by destination – essentially
2) Exception: Those that may be appropriated movables but by the purpose for which they
under certain conditions in a limited way, have been placed in an immovable (pars. 4, 5,
e.g., electricity 6, 9)
3) Not susceptible due to physical impossibility, a) Statues, reliefs, paintings or other
e.g., sun objects for use or ornamentation, placed
4) Not susceptible due to legal impossibility, in buildings or on lands by the owner of
e.g. human body the immovable in such a manner that it
reveals the intention to attach them
A. CLASSIFICATION OF PROPERTY permanently to the tenements;
b) Machinery, receptacles, instruments or
implements intended by the owner of
1. Immovables
the tenement for an industry or works
which may be carried on in a building
Q. What are the classifications of immovable
or on a piece of land, and which tend
property?
directly to meet the needs of the said
industry or works
ANS.
c) Animal houses, pigeon-houses,
1) Immovable by nature – cannot be moved
beehives, fish ponds or breeding places
from place to place (pars. 1 and 8)
of similar nature, in case their owner
a) Land, buildings, roads and
has placed them or preserves them with
constructions of all kinds adhered to the
the intention to have them permanently
soil;
attached to the land, and forming a
b) Mines, quarries, and slag dumps, while
permanent part of it; the animals in
the matter thereof forms part of the bed,
these places are included;
and waters either running or stagnant;
d) Docks and structures which, though
floating, are intended by their nature

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and object to remain at a fixed place on 2) Personal property – once trees are detached
a river, lake, or coast or uprooted from the land, except in case of
4) Immovable by analogy or by law (par. 10) uprooted timber, they are still not considered
a) Contracts for public works, and as personal property because timber is an
servitudes and other real rights over integral part of the timber land
immovable property (Art. 415, NCC)

NOTES: Q. What are the requisites for statues, reliefs,

 By its very nature, land is an immovable paintings or other similar objects to be
property. However, a truckful of soil taken considered as real property?
from the land becomes a personal
property because it is no longer adhered to 1) ANS.
the land. 2) It is an object of ornamentation or object of
 A building is always immovable whether use
erected by the owner of the land or by a 3) The property is placed on a building or a land
usufructuary or by a lessee subject to 4) Must be placed by the owner of the
provisions of the chattel mortgage law or immovable (or his representative or duly
the PPSA., except when a building is appointed guardian) and not necessarily by
merely superimposed on the soil or is sold the owner of the object
for immediate demolition. 5) Intention of permanent annexation or
 Fertilizers should be on the land where attachment even if adherence will not involve
they are to be utilized. Fertilizers kept in breakage or injury
the farmhouse are movable property, for
they have not been “actually” used on the Q. What are the requisites for machinery,
piece of land. receptacles, instruments or implements to be
 Floating house tied to a shore or bank post considered as real property?
and used as a residence is considered as
real property. Vessels are considered as ANS.
personal property but they partake to a 1) Must be placed by the owner of the tenement
certain extent of the nature and conditions or his duly authorized legal representative
of real property. 2) The industry or works must occur inside the
building or land
Q. Distinguish when trees and plants are real 3) The machinery must tend directly to meet the
property or personal property. needs of the said industry or works
4) Machineries must be an essential and
ANS. Trees may be either be: principal element of an industry or works,
1) Real property without which such industry or works would
a) By nature - If they are spontaneous be unable to function or carry on the
products of the soil; or industrial purpose for which it is established
b) By incorporation - If they have been
planted through cultivation or labor.

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Q. What are the requisites for animal houses, Q. What are the tests to determine whether a
pigeon-houses, beehives, fish ponds or property is a movable property or not?
breeding places of similar nature to be
considered as real property? ANS.
1) Whether it can be carried from place to place
ANS. (test by description)
1) Placed by the owner or his agent with the 2) Whether the change of location can be
intention of permanent attachment effected without injury to an immovable to
2) Forms a permanent part of the immovable which the object may be attached (test by
3) Such animals inside are to be regarded as mobility)
personal property 3) Whether the object is not included in any of
the 10 paragraphs of Art. 415 (test by
NOTE: Temporary structure of cages which are exclusion)
easily removable, or which may be carried from
place to place is a chattel.
B. OWNERSHIP
2. Movables
Q. What are the kinds of ownership?
Q. What are movable properties?
ANS.
ANS. 1) Full ownership – includes all the rights of an
1) Everything not included in Art. 415; owner
2) Real property which by any special provision 2) Naked ownership – the enjoyment of all the
of law considers as personal property, e.g., benefits and privileges of ownership, as
growing crops under the Chattel Mortgage against bare title to property; ownership
Law where the right to use and fruits has been
3) Forces of nature which are brought under the denied
control of science, e.g. electricity, gas, heat, 3) Beneficial ownership / usufruct – right to
oxygen enjoy the use and fruits, i.e., beneficial use is
4) In general, all things which can be the right to its enjoyment in one person
transported from place to place without where the legal title is in another.
impairment of the real property to which 4) Sole ownership – ownership is vested in only
they are fixed (Art. 416, NCC); one person
5) Obligations and actions which have for their 5) Co-ownership –ownership is vested in two or
object movables or demandable sums; and more persons
6) Shares of stock of agricultural, commercial
and industrial entities, although they have
real estate (Art. 417, NCC).

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Q. What are the classification of property by depending on the assessed value. It must be
ownership? brought before such court within a period of
10 or 30 years as the case may be.
ANS. Requisites:
1) In relation to the State a) Property must be identified; and
a) Public Dominion; and b) Plaintiff must rely on the strength of his
b) Patrimonial. title (Art. 434, NCC)
2) In relation to political subdivisions / local 2) Accion Publiciana – An action for the
government unit recovery of real right of possession of real
a) Public use; and property (possession de jure). It must be
b) Patrimonial. brought within a period of 10 years otherwise
3) In relation to private persons the real property to possess is lost.
a) Owned individually; and 3) Accion Interdictal – summary action to
b) Owned collectively. recover physical or material possession only.
It must be brought within one year from the
Q. What are the rights of an owner? time the cause of action arises.
a) Forcible Entry - is a summary action to
ANS. recover material or physical possession
1) Jus possidendi – the right to possess of real property when a person
2) Jus fruendi – the right to enjoy the fruits originally in possession was deprived
(natural, industrial, and civil) thereof by FISTS: force, intimidation,
3) Jus utendi – the right to use and enjoy strategy, threat or stealth. The action
4) Jus acessiones – the right to accessories must be brought within one year from
5) Jus abutendi – the right to abuse or to dispossession.
consume b) Unlawful Detainer – action that must be
6) Jus disponendi – the right to dispose brought when the possession by a
7) Jus vindicandi – the right to recover landlord, vendor, vendee, or other
person of any land or building is being
unlawfully withheld after the
1. Bundle of rights expiration of termination of the right to
hold possession, by virtue of any
contract, express or implied. The action
a. Actions to recover ownership and possession of
must be brought within one year from
real property and its distinction
last demand letter.
4) Writ of Injunction – A person deprived of his
Q. What are the actions to recover ownership
possession of real or personal property is
and possession of real property?
ordinarily not allowed to avail himself of this
remedy, the reason being that the defendant
ANS. The following are the actions to recover
in actual possession is presumed disputably
under jus vindicandi:
to have the better right.
1) Accion Reinvidicatoria – an action to recover
5) Writ of Possession – used in connection with
ownership of and dominion over real
the Land Registration Law, is an order
property, before the RTC or the MTC,
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 CIVIL LAW

directing the sheriff to place a successful

registrant under the Torrens system in b. Actions for recovery of possession of movable
possession of the property covered by a property
decree of the Court.
Q. What are the actions to recover ownership
NOTE: Nos. 4 and 5 are common to real and and possession of movable property?
personal property.
ANS.
Q. Distinguish forcible entry from unlawful 1) Replevin – an action or provisional remedy
detainer. where the complainant prays for the recovery
of the possession of personal property. It
ANS. must be brought within one year.
Forcible Entry Unlawful 2) Writ of Injunction
Detainer 3) Writ of Possession
Possession of the Possession is
defendant is inceptively lawful 2. Distinction between real and personal rights
unlawful from the but becomes illegal
beginning as he from the time
Q. Distinguish real and personal rights
acquires defendant
possession by unlawfully ANS.
force, intimidation, withholds Real Right Personal Right
strategy, threat or possession after the Created by a Created merely by
stealth expiration or “mode” or title a title
termination of his Generally Always
right thereto corporeal incorporeal
No previous Demand is There is a definite There is a definite
demand for the jurisdictional if the active subject who active subject and a
defendant to ground is has a right against definite passive
vacate is necessary. nonpayment of all persons subject
rentals or failure to generally as an
comply with the indefinite passive
lease contract. subjects
1 year period is 1 year period is Enforceable Enforceable only
generally counted counted from the against the whole against the original
from the date of the date of last world debtor or his
actual entry of the demand or last transferee charged
land letter of demand with notice of the
personal rights
Extinguished by Personal right
loss or destruction survives the
of the thing subject matter

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 CIVIL LAW

actual or threatened unlawful physical invasion

3. Modes of acquiring ownership or usurpation of his property. (Art. 429, NCC)

See Section J. Modes of Acquiring Ownership. Q. What are the requisites of the doctrine of
self-help?

ANS.
4. Limitations of ownership
1) Person who employs force or violence must
be the owner (actual or presumed) or a lawful
Q. What are the limitations of ownership?
possessor
2) That person must be in actual physical
ANS.
possession
1) Those imposed by the inherent powers of the 3) There must be actual or imminent aggression
State
4) Only reasonable force is employed by the
2) Those imposed by law; owner or lawful possessor
a) Legal easements (i.e., easements of
waters and of right of way) and
b) The requirement of legitime in
Q. What is the doctrine of state necessity?
succession;
3) Those imposed by the owner himself, e.g.,
ANS. The owner of a thing has no right to
voluntary easement, mortgage, pledge, lease
prohibit the interference of another with the
4) Those imposed by the party transmitting the
same, if the interference is necessary to avert an
property either by the contract or will, e.g.
imminent danger and the threatened damage,
onerous donations or easement constituted compared to the damage arising to the owner
when dividing one property
from the interference, is much greater. The
5) Those arising from conflicts of private rights owner may demand from the person benefited,
6) Those which take place in accession continua;
indemnity for the damage to him. (Art. 432,
7) Prohibition against the acquisition of private NCC)
lands by aliens under the Constitution;
8) Acts in state of necessity
Q. What are the requisites of the doctrine of
9) True owner must resort to judicial process –
state necessity?
When thing is in possession of another, law
creates a disputable presumption of
ANS.
ownership to those in actual possession.
1) The interference must be necessary to avert
(2008 Bar)
imminent danger.
2) The threatened damage must be greater than
Q. What is the doctrine of self help? the damage caused to the owner.
3) Only such interference as is necessary shall
ANS. The owner or lawful possessor of a thing be made in order to avert the damage.
has the right to exclude any person from the
enjoyment and disposal thereof. For this
NOTE: The law permits the injury or
purpose, he may use such force as may be
destruction of things belonging to others
reasonably necessary to repel or prevent an
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 CIVIL LAW

provided this is necessary to avert a greater  Fruits belong to the lessee in civil law lease
danger or dangers. of agricultural land; lessor gets rentals as
civil fruits
 Antichresis (Art. 2132, NCC)
C. ACCESSION

Q. What is accession? 1. Right to hidden treasure

ANS. It is the right by virtue of which the owner Q. What is hidden treasure?
of a thing becomes the owner of everything that
is produced thereby, or which is incorporated or ANS. Any hidden and unknown deposit
attached thereto, either naturally or artificially. of money, jewelry, or other precious objects, the
(Art. 440, NCC) lawful ownership of which does not appear.
NOTE: It is not a mode of acquiring property; it (Art. 439, CC)
does not depend upon a new title.
Q. Who has the right over hidden treasure?
Q. What are the kinds of fruits under the Civil
Code? ANS. Hidden treasure belongs to the owner of
the land, building, or other property on which it
ANS. is found. (Art. 438, BCC)
1) Natural – the spontaneous products of the Exceptions: The finder is entitled to ½ provided:
soil, and the young and other products of a) Discovery was made on the property of
animals. another, or of the State or any of its
2) Industrial – those produced by lands of any subdivisions
kind through cultivation or labor. b) Discovery was made by chance
3) Civil – the rents of buildings, the price of
leases of lands and other property and the NOTE: A trespasser is not entitled to any part of
amount of perpetual or life annuities or other the hidden treasure.
similar income (Art. 442, NCC)

Q. Who owns the fruits of a property? 2. Rules of accession

ANS. As a rule, to the owner of the principal Q. What are the kinds of accession?
belongs the natural, industrial, and civil fruits.
(Art. 441, NCC) ANS.
Exceptions: 1) Accession discreta – The right pertaining to
 Possessor in good faith is entitled to the the owner of a thing over everything
fruits received before the possession is produced thereby.
legally interrupted (Art. 526, NCC) 2) Accession continua – The right pertaining to
 In a usufruct, fruits belong to the the owner of a thing over everything that is
usufructuary. (Art. 556, NCC) incorporated or attached thereto either
naturally or artificially.

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a) With Respect to Real Property Q. What are the rules when the land owner
i. Accession industrial – Building, (LO) is different from the owner of the
planting and sowing materials (OM)?
ii. Accession natural – Alluvion,
avulsion, change of course of ANS. (Art. 447, NCC)
rivers, formation of islands OM is in GF OM is in BF
b) With respect to personal property OM may OM loses his
i. Adjunction or conjunction remove what is right to the
ii. Commixtion or confusion built IF it will materials. LO is
iii. Specification not cause entitled to

LO is in GF
damage to the consequential
thing built. If damages if the
a. For immovables OM removes materials are of
the construction an inferior
Q. What are the rule on ownership regarding or plantings, LO quality.
accession industrial? will no longer
pay the
ANS. The owner of the land is the owner of OM.
whatever is built, planted or sown on that land, OM may Parties will be
including the improvements or repairs made remove, even if treated as
thereon. it will cause though both
LO is in BF

damage OR OM acted in GF
Exceptions: may demand
1) When the doer is in good faith the rule is the value of the
modified; or materials.
2) Improvements on the land of one of the **OM is entitled
spouses at the expense of the conjugal to damages in
partnership will belong to the partnership or either case.
to the spouse who owns the land depending
on which of the two properties has a higher Q. What are the rules when the land owner
value (Art. 120, FC). (LO) is different from the builder (B)?

ANS. (Art. 448 to 454, NCC)

1) LO is in GF; B is in GF
a) The LO may appropriate the works. In
this case, he must pay B the amount of
the necessary expenses, useful
expenses, and luxurious expenses.
b) LO may require B to buy the land OR
pay rents.

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NOTE: The LO cannot oblige B to buy on the rights of LO and B, and whether he is in
the land if the value of the land is GF or in BF.
considerably more than the value of the 1) OM in BF
building. In this case, B may be required a) He loses all rights to the materials
to pay rents. (In case of disagreement, b) He is liable to consequential
the courts may fix.) damages if materials are of an
c) If LO opts to appropriate, B has the right inferior quality. (to the party who
of retention over the property until LO will acquire the building)
pays the value. If LO has not decided 2) OM in GF
yet, same rule applies. If LO decided to a) OM is entitled to reimbursement
sell the land to B and B fails to pay: from B. If B is insolvent, LO is
i. LO may remove the building. subsidiarily liable (only if LO
ii. LO may file for a case for appropriates).
collection of sum of money. b) If LO opts to destroy the building, or
sell the land to B (in case LO is in GF
NOTE: The choice is generally and B is in BF), LO cannot be held
irrevocable. subsidiarily liable.
2) LO is in BF; B is in GF c) If B pays OM, B may demand from
 Treat B as OM and apply number II LO the value of the materials and
under Art. 447. labor. BUT only if LO appropriates
3) LO is in GF; B is in BF (and B is in GF).
a) B loses what is built.
b) LO may appropriate without payment. Alluvium, Avulsion and Accretion
c) LO may demolish, at the expense of B.
d) LO may compel B to buy the land, and Q. What is alluvium or alluvion?
the Sower the proper rent. (No
qualification as to the price of the land ANS. It is the gradual deposit of sediment by
and the building.) natural action of a current of fresh water (not sea
e) LO is entitled to damages in any case. water), the original identity of the deposit being
f) B is entitled to reimbursement for the lost. Where it is by sea water, it belongs to the
necessary expenses of preservation of State (Government of Philippine Islands v.
the land. Cabangis, GR L-28379, March
4) LO is in BF; B is in BF 27, 1929).
 Both are considered in GF. To the owners of the lands adjoining the banks
of the rivers belongs the accretion which they
Q. What are the rules in case 3 parties are gradually receive from the effects of the current
involved: a builder (B) builds on the land of of the waters. (Art. 457, NCC)
another (LO), using the materials of a third
person (OM)? Q. Who is a riparian owner?

ANS. The rights of LO and B are determined ANS. He is the owner of the land adjoining
under Arts. 448 454. The rights of OM depends rivers.

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Q. What is accretion?
Q. What are the requisites of alluvium?
ANS. Accretion is the process whereby the soil
ANS. is deposited while alluvium is the soil
1) The accumulation of soil is gradual and deposited.
imperceptible.
2) It is the result of the action of the water of the Q. What are the requisites of accretion?
river.
3) Deposits made by human intervention are 1) Deposit be gradual and imperceptible;
excluded. 2) Resulted from the effects of the current of the
4) The land where the accretion takes place is water; and
adjacent to the bank of the river. 3) The land where the accretion takes place is
5) For accretion or alluvion to form part of adjacent to the banks of a river
registered land of the riparian owner, the
gradual deposit must be due to the effects of NOTE: If all the requisites are present, the
the river’s current. Deposits made by human riparian owner is automatically entitled to the
intervention are excluded. accretion.
Effect: The riparian owner automatically owns
the alluvion but it does not automatically Q. Distinguish alluvium from avulsion.
become registered property in his name.
Exception: Deposits due to human action or ANS.
intervention and abrupt or unanticipated Alluvium Avulsion
flooding brought about by extreme weather Deposit of soil is Deposit of soil is
conditions. gradual sudden and abrupt
Deposit of soil The owner of the
Q. What is avulsion? belongs to the property from
owner of the which a part was
ANS. A known portion of land is segregated property where the detached retains
from one estate by the forceful current of a river, same is deposited the ownership
creek or torrent and transferred to another. (Art. thereof (2 yrs)
459, NCC) The soil cannot be The detached
identified portion can be
Q. What are the requisites of avulsion? identified

ANS. Q. What is the rule in avulsion of uprooted

1) The segregation and transfer must be caused trees?
by the current of a river, creek or torrent.
2) The segregation and transfer must be sudden ANS. Trees uprooted and carried away by the
or abrupt. current of the waters belong to the owner of the
3) The portion of land transported must be land upon which they may be cast, if the owners
known and identifiable do not claim them within six months. If such
owners claim them, they shall pay the expenses

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incurred in gathering them or putting them in a ii.Must be sufficient not only to float
safe place. (Art. 460, NCC) bancas and light boats, but also
bigger watercraft;
Q. What are the rules in case of change of iii. Deep enough to allow
course of rivers? unobstructed movements of ships
and vessels.
ANS. 2) They belong to the private owner of the
1) River beds which are abandoned through the separated land if the island is formed in a
natural change in the course of the waters place not mentioned in Art. 464 above.
ipso facto belong to the owners whose lands
are occupied by the new course in proportion NOTE: There is no accession when islands
to the area lost. are formed by the branching of a river; the
2) The owners of the lands adjoining the old bed owner retains ownership of the isolated piece
shall have the right to acquire the same by of land.
paying the value thereof, which value shall 3) They belong to the owners of the nearest
not exceed the value of the area occupied by margins or banks if:
the new bed. a) Formed through successive
3) Whenever a river, changing its course by accumulation of alluvial deposits; and
natural causes, opens a new bed through a b) On non-navigable and non-floatable
private estate, this bed shall become of public rivers.
dominion.
Requisites: NOTE: If island is in the middle of the river,
a) The change in the river course must be divide longitudinally in half. If nearer to one
sudden margin or bank, to the nearer riparian owner.
b) The change must be permanent
c) The change must natural
d) The river bed must be abandoned by the b. For movables
government
Q. What is adjunction?
Q. What are the rules in case of formation of
islands? ANS. It is the process by virtue of which two
movable things belonging to different owners
ANS. (Art. 463 to 465, NCC) are united in such a way that they form a single
1) They belong to the State if object and each of the things united preserves its
a) Formed on the seas within the own nature (Art. 466, NCC).
jurisdiction of the Philippines;
b) Formed on lakes; or Q. What are the requisites of adjunction?
c) Formed on navigable or floatable rivers:
i. Capable of affording a channel or ANS.
passage for ships and vessels; 1) Two (2) movables;
2) Belonging to different owners;
3) United forming a single object; and

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4) Separation would impair their nature or b) Owner of the accessory is entitled to the
result in substantial injury to either thing. value of the accessory.
i. He may demand that this consist
Q. What are the kinds of adjunction? in the delivery of a thing equal in
kind and value, and in all other
ANS. respects, to that employed; or
a) Inclusion (engraftment) ii. He may demand the price thereof.
b) Soldering (adjoining two or more metals) 2) OP is in GF; OA is in BF
c) Ferruminatio (same metals)  OA shall lose the thing incorporated
d) Plumbatura (different metals) and shall have the obligation to
e) Escritura (writing) indemnify OP for the damages he may
f) Pintura (painting) have suffered.
g) Weaving 3) OP is in BF; OA is in GF
 OA can choose between:
Q. What are the tests to determine the i. Require the owner of the principal
principal thing? to pay the value of the accessory;
OR
ANS. ii. Require separation of the things,
1) That of greater value; even if it will cause the destruction
2) If two things are of equal value – that of of the principal; AND
greater volume; iii. He is entitled to damages in either
3) If two things are of equal volume – that to case.
which the other has been united as an 4) OP and OA are in BF
ornament, or for its use or perfection; and Apply Art. 466 and Art. 469.
4) That which has greater merits, utility and
volume if things. NOTE:
NOTE: In painting and sculpture, writings, Things united can be separated without
printed matter, engraving and lithographs, injury  owners may demand their
the board, metal, stone, canvas, paper or separation.
parchment shall be deemed the accessory Thing united for the use, embellishment or
thing (Art. 468, NCC). perfection of the other, is much more
precious than the principal thing  the
Q. What are the rules when two movables are owner of the former may demand its
united (OP: owner of the principal and OA: separation, even though the thing to which it
owner of the accessory)? has been incorporated may suffer some
injury. (Art. 469, NCC)
ANS. (Art. 446 to 472, NCC)
1) OP and OA are in GF
a) The owner of the principal thing
acquires the accessory, indemnifying
the former owner thereof for its value.
(Art. 466, NCC)

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Q. A painted his car with B’s paint believing elements are lost either voluntarily or by chance
that it was his own paint. B was unaware of (Arts. 472-473, NCC).
this activity. When B discovered that A used
his paint, he wanted to remove his paint off Q. What are the kinds of mixture?
the car. Can B legally do this?
ANS.
ANS. No, by its nature, the paint cannot be 1) Commixtion – Mixture of solid things
separated without causing injury to the car, the belonging to different owners.
principal object. 2) Confusion – Mixture of liquid things
belonging to different owners.
Q. Suppose B demanded that A replace the
paint used by A with the same brand of paint Q. How are two things mixed?
and with the same amount as to that used by
A. Can B legally do this? ANS.
1) By the will of their owners,
ANS. Yes, B is entitled to indemnity for the 2) By chance and it cannot be separated without
paint used by A, and he can demand it in the injury, or
form of a replacement for the paint used. 3) By will of only one owner in good faith

Q. Suppose A was aware that B owned the Q. What are the rules in cases where two
paint, but still continued to use it. Can B things are mixed (O1: owner 1, and O2: owner
demand the removal of the paint this time? 2)?

ANS. Yes, if the owner of the principal is in bad ANS.

faith, the owner of the accessory can demand 1) By will of both O1 and O2 in GF or by
the separation even if it will cause the accident:
destruction of the principal object. a) Right is subject to stipulations; or
b) Right is in proportion to the part
Q. Suppose B was aware that A was using his belonging to him (co-ownership arises)
paint but he did not prevent A from using such (Art.422, NCC).
paint, is B entitled to indemnity for the value 2) By will of only one owner or by chance and
of the paint? both are in GF:
a) Have the things separated provided the
ANS. No, if the owner of the accessory is in bad thing suffers no injury; or
faith, he shall lose his right to the thing b) If cannot be separated without injury,
incorporated. acquire interest on mixture in
proportion to his part (co-ownership).
Q. What is a mixture? 3) By will of only one owner or by chance BUT
O1 is in BF (caused the mixture) and O2 is in
ANS. It is the combination of materials where GF:
the respective identities of the component  O1 will lose his part on the mixture and
pay damages to O2.

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4) By will of only one owner or by chance BUT (so he can only demand for the value of the
O1 is in BF and O2 is in GF (caused the materials plus damages)
mixture):
 As if both acted in GF
D. QUIETING OF TITLE
Q. What is specification?
Q. What is an action for quieting of title?
ANS. It is the giving of a new form to another’s
material through application of labor. The ANS. It is a remedy for the removal of
material undergoes a transformation or change any cloud of doubt or uncertainty with respect
of identity. In this case, labor is considered the to title to real property.
principal object.
Q. What does cloud on title mean?
Q. What are the respective rights of the maker
(M) and the owner of the materials (OM) in ANS. It is a semblance of title, either legal or
specification? equitable, or a claim ora right in real property,
appearing in some legal form but which is, in
ANS. (Art. 474, NCC) fact, invalid or which would be inequitable to
1) M is in GF: enforce.
a) M shall appropriate the thing thus
transformed as his own; AND Q. Who may file an action to quiet title?
b) M shall indemnify OM of the material
for its value. (apply Art. 471) ANS.
BUT: If the material is more precious than the 1) Registered owner;
transformed thing: 2) A person who has an equitable right or
a) OM may appropriate but he must pay interest in the property; or
for the value of the work; or 3) The State
b) OM may demand indemnification from
the person who transformed the thing.
1. Requisites
2) M is in BF:
a) OM shall have the right to appropriate
Q. What are the requisites in an action for
the work to himself without paying
quieting of title?
anything; or
b) OM may demand the person who
ANS.
employed the materials to pay
1) Plaintiff or complainant has a legal or an
indemnity for the value of the materials
equitable title to or interest in the real
plus damages.
property subject of the action
2) There must be cloud in such title
NOTE: The owner of the materials cannot
3) Such cloud must be due to some instrument,
appropriate the work in case the value if the
record, claim, encumbrance, or proceeding
work for artistic or scientific reasons, is
which is apparently valid but is in truth
considerably more than that of the materials.
invalid, ineffective, voidable or
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unenforceable, and is prejudicial to the may be determined for the declaration

plaintiff’s title; and by the court of its validity
4) Plaintiff must Against people Against defendant
a) Return to the defendant all benefits he who have claims; who asserts claims
may have received from the latter; or claims are more based on an invalid
b) Reimburse him for expenses that may general in nature instrument
have redounded to his benefit. (but not apparent)

2. Distinctions between quieting title and 3. Prescription / non-prescription of action

removing/preventing a cloud
Q. When does an action to quiet the title
Q. Distinguish quieting of title and prescribe?
removing/preventing a cloud.
ANS.
ANS. 1) Plaintiff in possession – Imprescriptible;
Quieting of Title Removing A Cloud 2) Plaintiff not in possession –
Puts an end to Procures the a) 10 years (ordinary) or
vexatious litigation cancellation; b) 30 years (extra-ordinary)
in respect to the delivery; release of
property involved an instrument, E. CO-OWNERSHIP
encumbrance or
claim, which
Q. When is there co-ownership?
constitutes a claim
in plaintiff’s title,
ANS. There is co-ownership whenever the
and which may be
ownership of an undivided thing or right
used to injure or to belongs to different persons. (Art. 484, NCC) It
vex him in his
is the right of common dominion which two or
enjoyment of his more persons have in a spiritual (or ideal) part
title
of the thing which is not physically divided.
Remedial in nature Preventive in
nature
Plaintiff asserts Plaintiff declares
1. Characteristics of co-ownership
own claim and his own claim and
declares that the title and at the
Q. What are the characteristics of co-
claim of the same time
ownership?
defendant is indicates the
unfounded and source and nature
ANS.
calls on the of defendant’s
1) There are two or more co-owners.
defendant to justify claim pointing its
2) There is a single object which is not
his claim on the defect and prays
materially or physically divided and his ideal
property that same
share of the whole.
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3) There is no mutual representation by the co- title is taken in the name of one of them
owners. for the benefit of all, an implied trust is
4) It exists for the common enjoyment of the co- created in favor of the others in
owners. proportion to each to interest of each.
5) It has no distinct legal personality. (Art. 1452, NCC)
6) It is a trust and every co-owner is a trustee for d) Succession
the rest. i. Intestate succession—where there
7) It is governed first of all by the contract of the are two or more heirs, the whole
parties; otherwise, by special legal estate of the decedent is, before its
provisions, and in default of such provisions, partition, owned in common by
by the provisions of Title III of the New Civil such heirs
Code on co-ownership. ii. Testate—if property is given to
two or more heirs by the testator
Q. Is there such a thing as perpetual co- e) Donation
ownership? Donation to several persons jointly
ANS. No. Any of the co-owners may demand f) Commixtion in good faith (Art. 472,
partition any time. The law discourages co- NCC)
ownerships among individuals as oftentimes, it g) Hidden treasure – co-ownership
results in inequitable situations. No co-owner between finder and owner
can be compelled to stay in a co-ownership h) Easement of a party wall
indefinitely and may insist on a partition of the i) Occupation – harvesting and fishing
common property (Patricio v. Dario, 507 SCRA  The ambergris caught by the
438, 2006). hunters was undivided common
property of the plaintiffs and one
of the defendants. (Punsalan et al.
2. Sources of co-ownership v.Boon Liat et al., 1923)
j) Condominium law – unless otherwise
Q. What are the sources of co-ownership? provided, common areas are held in
common by the holders of the units in
ANS. equal shares, one for each unit. (Sec.
1) Law 6(c), RA 4726)
a) Cohabitation
i. Between man and woman 2) CONTRACT
capacitated to marry each other. a) Two or more persons agree to create a
(Art 147, FC) coownership— maximum of ten years
ii. Between man and woman not (Art. 494, par. 2, NCC), extendable by a
capacitated to marry each other new agreement
(Art. 148, FC) b) Universal partnership
b) Absolute community property (Art. 90, i. Of all present properties (Art.
FC) 1778-79, NCC)
c) Two or more persons agree to purchase ii. Of profits (Art. 1780, NCC)
property and by common consent, legal

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c) Associations and societies, whose b) Useful expenses-there must be consent

articles are kept secret wherein anyone of other co-owners
of the members may contact in his own Necessary expenses – Taxes and
name with third persons (no juridical expenses for the preservation of the
personality) thing, which if not made, would
endanger the existence of the thing or
reduce its value or productivity
3. Rights of co-owners Useful expenses – They increase the
income of the thing owned in common
Q. What are the rights of each co-owner as to for the benefit of all the co-owners;
the thing owned in common? 5) Right to exempt himself from obligation of
paying necessary expenses and taxes by
ANS. renouncing his share in the pro-indiviso
1) To share in the benefits in proportion to his interest; but cannot be made if prejudicial to
interest, provided the charges are borne in coownership (Art.488, NCC);
the same proportion. A contrary stipulation 6) Right to make repairs for preservation of
is void. things can be made at will of one co-owner;
receive reimbursement therefrom; notice of
NOTE: The portions belonging to the co- necessity of such repairs must be given to co-
owners in the co-ownership shall be owners, if practicable (Art.489, NCC)
presumed equal, unless the contrary is
proved. (Art. 485, NCC). NOTE: Failure to comply with the notice
2) To use the thing according to the purpose requirement when practicable does not
intended provided that: deprive the co-owner who incurred the
a) It is without prejudice to the interest of expenses of the right to recover but he
the co-ownership; and shall have the burden to prove the
b) Without preventing the use of other co- necessity of the repairs and the
owners reasonableness of the expenses;
7) To oppose to any act of alteration even if
NOTE: The purpose of the co-ownership beneficial to the co-owners (Art. 491, NCC)
may be changed by an agreement, express  Acts of alteration requires the consent
or implied. (Art. 486, NCC). of ALL the co-owners if it changes the
3) Each co-owner may bring an action for essence or nature of the thing because it
ejectment (Art. 487, NCC); is an act of ownership.
4) To compel the other co-owners to contribute  Acts of alteration that does not change
to the expenses of preservation of the thing or the essence or nature of the thing
right owned in common and to the taxes (Art. requires only the agreement of the
488, NCC) majority because it is merely an act of
a) Not included: merely produce benefits administration.
for the owner, mere luxury,  If the withholding of consent by one or
embellishment or pleasure more co-owners is clearly prejudicial to

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the common interest- courts may afford 14) Right to be adjudicated thing (subject to
adequate relief. right of others to be indemnified); and
15) Right to share in proceeds of sale of thing if
Alteration Administration thing is indivisible and they cannot agree
Relates to the use, For the better that it be allotted to one of them (Art.498,
substance or form enjoyment of the NCC).
of the thing property
Effect is more Effect is transitory Q. In case of a multi-story house, what are the
permanent rules as to the contribution on expenses?
Consent of all is Consent of the
necessary financial majority ANS. (Art. 490, NCC)
will be binding Part Contribution
Contrary to co- Does not give real Main and party All owners in
ownership right over the thing walls, the roof, and proportion to the
agreement owned in common the other things value of the story
8) To protect against acts of majority which are used in common belonging to each
prejudicial to the minority (Art. 492, par. 3, Floor of the All owners
NCC) entrance, front contribute pro rata
9) To exercise legal redemption; door, common or equally
10) Right to full ownership of his part and yard, and sanitary
fruits. (Art.493, NCC); works common to
11) Right to alienate, assign or mortgage own all
part, except personal rights like right to use The floor of each Each owner bears
and habitation (Art.493, NCC); co-owner’s story the cost of
12) To ask for partition at any time insofar as his maintaining the
share is concerned (NCC, Art. 494) floor of his story
Exceptions: Stairs First entrance to
a) When co-owners agreed to continue the first story – pro
coownership permitted by law ( not rata sharing of all
beyond 10 years) owners except the
b) Co-ownership is imposed as a condition owner of the
in a donation or a will (not exceeding 20 ground floor
years)
c) Prohibited by law First to the second
d) From the very nature of the community, story - pro rata
it cannot be legally divided, such as in sharing of all
part walls and conjugal partnership owners except the
e) Partition will render the thing owner of the
unserviceable for the purpose it is ground floor and
intended; that of the first
13) Right of pre-emption; story; and so on.

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any real rights belonging to them before the

4. Termination of co-ownership division was made. (Art. 499, NCC)

Q. What are the modes of terminating a co- Q. When shall the obligation of warranty
ownership? among co-heirs cease?

ANS. ANS.
1) Merger/consolidation in only one of the co- 1) When the testator himself has made the
owners of all the shares of others partition, unless it appears, or it may be
2) Destruction of the thing or loss of the right reasonably presumed, that his intention was
Exception: If a building is destroyed, there is otherwise, but the legitime shall always
still co-ownership over the land and the remain unimpaired;
debris. (Tolentino) 2) When it has been so expressly stipulated in
3) Prescription by repudiation the agreement of partition, unless there has
4) Prescription in favor of the third person been bad faith;
5) Sale/destruction of property co-owned 3) When the eviction is due to a cause
6) Termination of the period agreed upon subsequent to the partition, or has been
7) Expropriation caused by the fault of the distributee of the
8) Judicial or extrajudicial partition property. (Art. 1096, NCC)
F. POSSESSION
Q. What are the effects of partition?
1. Characteristics
ANS.
1) Confers exclusive ownership of the property
adjudicated to a co-heir (Art. 1091, NCC) Q. What are the requisites right of possession?
2) Co-heirs shall be reciprocally bound to
warrant the title to, and the quality of each ANS.
property adjudicated (Art. 1092, NCC) 1) Existence of the thing or right;
3) Reciprocal obligation of warranty shall be 2) Possession in fact or holding or control of a
proportionate to the respective hereditary thing or right;
shares of co-heirs. (Art. 1093, NCC) 3) Animus possidendi or the deliberate
4) An action to enforce the warranty must be intention to possess; and
brought within 10 years from the date the 4) Possession is by virtue of one’s own right,
right of action accrues. (Art. 1094, NCC) either as an owner or as a holder.
5) The co-heirs shall not be liable for the
subsequent insolvency of the debtor of the Q. What are the objects of possession?
estate, but only for his insolvency at the time
the partition is made. (Art. 1095, NCC) ANS. Only things and rights which are
susceptible of being appropriated may be the
NOTE: The partition of a thing owned in object of possession. Things and rights should
common shall not prejudice third persons, who be within the commerce of man.
shall retain the rights of mortgage, servitude, or

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ANS.
Possession Occupation
Apply to Applies only to
Q. Distinguish right of possession from right properties whether property without
to possession. with or without an an owner.
owner.
ANS. Possession does Occupation confers
Right of Right to not confer ownership.
Possession (jus Possession (jus ownership.
possessionis) possidendi) There can be There can be no
An independent An incident or possession without occupation
right, separate attribute of ownership. without
from ownership. ownership over a ownership.
thing
Possession in Possession in Q. What are the elements of acquiring
concept of holder concept of owner possession?
Possession in the Possession by
name of another oneself ANS.
1) Corpus – existence of the thing and its
holding; and
2) Animus –intent to possess the thing
2. Acquisition of possession
Q. Who acquires possession?
Q. What are the ways of acquiring possession?
ANS. (Arts. 532-533, NCC)
ANS. 1) The same person who is to enjoy it
1) By material occupation of a thing or the 2) His legal representative
exercise of a right 3) His agent
Examples: Traditio brevi manu and traditio 4) Any person without any power whatsoever
constitutum upon ratification
2) By the fact that it is subject to the action of our 5) His heirs
will a) If there is bad faith on the part of the
Examples: Tradicion simbolica and tradicion decedent: The effects of the decedent’s
longa manu wrongful possession will not affect his
3) By the proper acts and legal formalities for heirs if it is not shown that he was
acquiring possession aware of the flaws affecting it.
Examples: Donations, succession, etc. b) If there is good faith on the part of the
(Art. 531, NCC) decedent: The effects of the decedent’s
possession will benefit the heirs only
from the date of his death. (Art. 534,
Q. Distinguish possession from occupation. NCC)

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NOTE: Minors and incapacitated persons may 3. Effects of possession

acquire the possession of things; but they need
the assistance of their legal representatives. Q. What are the effects of possession?
(Art. 535, NCC)
ANS.
Q. What acts do not affect possession under
the Civil Code? 1) Only the possession acquired and enjoyed in
the concept of owner can serve as a title for
ANS. acquiring dominion. (Art 540, NCC)
1) Acts of violence as long as the possessor 2) Possessor in good is entitled to fruits
objects thereto (Art. 536, NCC) BEFORE possession is legally interrupted.
2) Acts merely tolerated (Art. 537, NCC) (Art. 544, NCC)
3) Acts executed clandestinely and without the 3) If at the time the good faith ceases, there
knowledge of the possessor (Art. 537, CC) should be any natural or industrial fruits, the
possessor shall have a right to a part of the
Q. Possession as a fact cannot be recognized at expenses of cultivation, and to a part of the
the same time in two different personalities net harvest, both in proportion to the time of
except in the cases of co-possession. Should a the possession.
question arise regarding the fact of possession, 4) The charges shall be divided on the same
what shall be preference of possession? basis by the two possessors.
5) The owner of the thing may, should he so
ANS. desire, give the possessor in good faith the
1) The present possessor shall be preferred; right to finish the cultivation and gathering
2) If there are two possessors, the one longer of the growing fruits, as an indemnity for his
in possession; part of the expenses of cultivation and the net
3) If the dates of the possession are the same, proceeds; the possessor in good faith who for
the one who presents a title; and any reason whatever should refuse to accept
4) If all these conditions are equal, the thing this concession, shall lose the right to be
shall be placed in judicial deposit pending indemnified in any other manner. (Art. 545,
determination of its possession or NCC)
ownership through proper proceedings.
(Art. 538, NCC)

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Q. Distinguish possessor in good faith from

possessor in bad faith. 4. Loss or unlawful deprivation of a movable

ANS. Q. When is possession of movables lost?

Possessor in Good Possessor in Bad
Faith Faith ANS. If the possessor has no idea at all about the
Not aware that Aware that there whereabouts of the movable, possession is lost,
there exists a flaw exists a flaw which but not when he more or less knows its general
which invalidates invalidates his location, though he may not know its precise or
his acquisition of acquisition of the definite location. In the former, he has lost
the thing. thing. juridical control; in the latter, the object remains
Honest intention to Conscious and within his patrimony. (Paras).
abstain from taking intentional design
any to do a wrongful Q. What is the doctrine of urrevindicability?
unconscientious act for a dishonest
advantage of purpose or moral ANS. Possession in good faith of a movable is
another. obliquity. equivalent to title. (Art. 559) However, it is
Mistake of law Fraud merely presumptive because it can be defeated
by the true owner.

Q. What are the rights of a possessor in bad Q. What are the requisites of the doctrine of
faith? irrevindicability?

ANS. ANS.
1) Right to be respected in possession (Art. 539, 1) The possession should be in good faith;
NCC) 2) The former owner voluntarily parted with
2) Right to necessary expenses and the expenses the possession of the thing; and
for production, gathering, and preservation 3) The possession is in the concept of owner.
of fruits (Arts. 545 and 546, NCC) Exception: One who has lost or has been
3) Does not have right to reimbursement of unlawfully deprived of a movable may
expenses for luxury but may remove them as recover it from whoever possesses it without
long as the principal thing suffers no injury reimbursement.
or may sell them to the owner who opts to
buy the removable ornaments. (Art. 549,
NCC)
4) No right to reimbursement for useful
improvements and no limited right of
removal.

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Q. A person who lost or has been unlawfully 1/10 of the sum or of the price of the thing
deprived of the movable, may recover it from found. (Art. 719 to 720, NCC)
the person who has possession of the movable.
What are the exceptions?
5. Possession in concept of owner, holder, in
ANS. one's own name, and in name of another
1) If the possessor obtained the movable in
good faith at a public sale, the owner cannot Q. How may possession be exercised?
get it back unless he reimburses the
possessor. ANS.
2) Purchases made in a merchant's store, or in 1) One’s own name – Possessor holds the thing
fairs, or markets, in accordance with the owned by him.
Code of Commerce and special laws. (Art. 2) Name of another – Possessor holds the thing
1505(3), NCC) owned by another.
NOTE: A possessor in the concept of holder
Q. What are the rules when someone finds a is one who possesses as a mere holder, or not
lost movable? in the concept of owner, acknowledges in
another a superior right which he believes to
ANS. be ownership, whether his belief be right or
1) Whoever finds a movable, which is not a wrong. (Art. 558, NCC)
treasure, must return it to its previous
possessor. Q. How is possession in another’s name
2) If the previous possessor is unknown, the made?
finder shall immediately deposit it with the
mayor of the city or municipality where the ANS.
finding has taken place. 1) Voluntary – In cases of agents or
3) The finding shall be publicly announced by administrators appointed by the owner of
the mayor for two consecutive weeks in the possessor
way he deems best. 2) Necessary – Exercised on behalf of the
4) If the movable cannot be kept without conceived child, juridical persons not sui
deterioration, or without expenses which juris and conjugal partnership, by their
considerably diminish its value, it shall be respective representatives
sold at public auction 8 days after the
publication.
5) Six (6) months from the publication having Q. Who is a possessor in the concept of a
elapsed without the owner having appeared, holder?
the thing found, or its value, shall be
awarded to the finder. The finder and the ANS.
owner shall be obliged, as the case may be, to 1) Lessees or those merely permitted to occupy;
reimburse the expenses. 2) Trustees (including parents over the
6) If the owner should appear in time, he shall properties of their unemancipated minor
be obliged to pay, as a reward to the finder, children or insane children (Art. 1109, NCC);

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and husband and wife over each other’s But the real right of possession is not lost till
properties, as long as the marriage lasts, and after the lapse of ten years. (Art. 555, NCC)
even if there be a separation of property e) By recovery of the thing by the legitimate
which had been agreed upon in a marriage owner
settlement or by judicial decree (Art. 1109, f) By acquisitive prescription
NCC);
3) Antichretic creditors;
4) Agents; G. USUFRUCT
5) Attorneys (regarding their client’s
properties) Q. What is a usufruct?
6) Depositaries; and ANS. Usufruct is a temporary real right which
7) Co-owners (unless the co-ownership is gives a right to enjoy the property as well as its
clearly repudiated by unequivocal acts fruits of another with the obligation of
communicated to the other co-owners). preserving its form and substance, unless the
title constituting it or the law otherwise
provides. (Art. 562, NCC)
6. Rights of the possessor

Q. What are the rights of the possessor? 1. Characteristics

ANS. Q. What are the characteristics of a usufruct?

1) Right to be respected in his possession;
2) Right to be protected in or restored to his ANS.
possession by legal means should he be 1) A real right that includes the use of the
disturbed therein; property and its fruits
3) Right to secure from a competent court in an 2) Temporary duration
action for forcible entry the proper writ to 3) Transmissible
restore him in his possession. 4) May be constituted on:
a) Real or personal property
7. Loss or termination of possession b) Consumable or non-consumable
c) Tangible or intangible
The usufructuary is bound to preserve the form
Q. When may a possessor lose his possession?
and substance of the thing in usufruct.
ANS.
Q. How is usufruct constituted?
a) By the abandonment of the thing;
b) By an assignment made to another either by
ANS. Usufruct is constituted by:
onerous or gratuitous title;
1) Law
c) By the destruction or total loss of the thing, or
2) Will of private persons expressed in acts inter
because it goes out of commerce;
vivos
d) By the possession of another, subject to the
3) Will of private persons expressed in a last
provisions of Article 537, if the new
will
possession has lasted longer than one year.
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4) Prescription useless to the usufructuary unless

they are consumed or expanded.
2. Classification
Q. What is the form required in a usufruct?
Q. What are the classifications of usufruct?
ANS. ANS. No form is required in constituting a
1) As to cause usufruct.
a) Legal – provided by law Exceptions:
b) Voluntary – created by will of the Usufruct over real property must be registered
parties to bind third person
c) Mixed – by prescription Statute of Frauds apply in case real property is
2) As to quantity or extent of object involved. If personal property, Statute of Frauds
a) Total – constituted on the whole thing will apply where the value is P 500 or higher
b) Partial – constituted only on a part and in case the agreement is not to be performed
3) As to number of usufructuaries in one year;
a) Simple – only one usufructuary enjoys 3. A usufruct by donation or by will must
the usufruct comply
b) Multiple – several usufructuaries with formalities of a donation or will
enjoy the usufruct
i. Simultaneous –at the same time
ii. Successive – one after the other 3. Rights and obligations of usufructuary
4) As to terms and conditions
a) Pure Q. What are the rights of a usufructuary?
b) Conditional
c) With a term ANS.
5) As to Quality or kind 1) To receive the fruits of the property in
a) Things usufruct and half of the hidden treasure he
b) Rights accidentally finds on the property (Art. 566,
6) As to extent of owner’s patrimony NCC)
a) Universal - pertains to the usufruct
over universal property NOTE: The usufructuary is entitled to the
b) Singular – only on particular property natural, industrial, and civil fruits that will
of the owner. accrue during the existence of theusufruct.
7) Whether impairment of object is allowed Those growing at the time the usufruct
a) Normal (or perfect or regular) – terminates, belong to the owner.
involves non-consumable things 2) To enjoy any increase which the thing in
where the form and substance are usufruct may acquire through accession (Art.
preserved; 571, NCC);
b) Abnormal (or imperfect or irregular) – 3) To make such improvements or expenses on
Involves consumable things – that the property he may deem proper and to
which involves things which would be remove the improvements provided no

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damage is caused to the property (Art. 579, 2) To give security to bind himself to fulfill his
NCC); obligations as usufructuary
4) To collect reimbursements from the owner Exceptions:
for indispensable extra ordinary repairs, a) Where the owner waives the giving of
taxes on the capital he advanced, and security or making the inventory;
damages caused to b) Where the title constituting the usufruct
him; exempts the usufructuary from any or
5) To personally enjoy the thing or lease it to both obligations;
another (Art. 572-577, NCC) generally for the c) Where the usufructuary asks to be
same or shorter period as the usufruct; relieved from these obligations and no
one will be injured from such
NOTE: As to the thing itself, the exemption.
usufructuary may lease the thing to another, 3) To take care of the thing given in usufruct as
even without the consent of the owner BUT a good father of the family;
all the contracts he may enter into as such 4) To undertake ordinary repairs
usufructuary shall terminate upon the 5) To notify owner of need to undertake
expiration of extraordinary repairs
the usufruct. 6) To pay annual charges and taxes on the fruits
6) To set-off the improvements he may have 7) To shoulder costs of litigation
made on the property against any damage to 8) To deliver the thing in usufruct to the owner
the same (Art. 580, NCC). in the condition received.
7) To retain the thing until he is reimbursed for 9) To pay debts when the usufruct is constituted
advances for extraordinary expenses and on the whole patrimony
taxes on the capital (NCC, Art. 612); 10) To replace animals that die
11) To make inventory and give security
Q. What are the obligations of a usufructuary?

ANS. 4. Rights of the owner

1) To make, after notice to the owner or his
legitimate representative, an inventory of all Q. What are the rights of the owner during
the property, which shall contain an the usufruct?
appraisal of the movables and a description
of the condition of the immovables (Art. 583 ANS.
(1), NCC) 1) The owner retains title to the thing or
Exceptions: property.
a) No one will be injured thereby (Art. 585, 2) To alienate the property (Art. 581, NCC)
NCC)
b) Title constituting usufruct excused the NOTE: He may not alter the form or
making of inventory. substance of the thing, nor do anything
c) Title constituting the usufruct already prejudicial to the usufructuary.
d) made the inventory (Art.583, NCC) 3) To construct buildings, make improvements
and plantings, provided:

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a) The value of the usufruct is not 3) By merger of the usufruct and ownership in
impaired; and the same person;
b) The rights of the usufructuary are not 4) By renunciation of the usufructuary
prejudiced. (Art. 595, NCC)
4) To constitute a voluntary easement over NOTE: It partakes the nature of a
land/building held in usufruct without the condonation or donation.It can be made
usufructuary’s consent. But if it affects the expressly or impliedly as long as done
usufructuary’s right, the latter must give his clearly.;
consent. (Art. 689, NCC) If the easement is 5) By the total loss of the thing in usufruct
perpetual, the consent of both must be
obtained. (Art. 690, NCC) NOTE: If the loss is only partial, the usufruct
continues with the remaining part.;
Q. If the usufructuary improperly use of the 6) By the termination of the right of the person
thing, what may the owner do? constituting the usufruct;
7) By (acquisitive) prescription (Art. 603, NCC)
ANS. The owner may demand the delivery of 8) Others:
and administration of the thing with a) Annulment of the act or title
responsibility to deliver net fruits to constituting the usufruct;
usufructuary. b) Rescission;
c) Expropriation;
d) Mutual withdrawal;
5. Extinction, termination, and extinguishment e) Legal causes for terminating legal
usufruct; or
Q. How is a usufruct extinguished? f) Abandonment or dissolution of
juridical entity (e.g.corporation)
ANS. granted with usufruct before the lapse
1) By the death of the usufructuary, unless a of the period.
contrary intention clearly appears
Exceptions: H. EASEMENTS
a) When a contrary intention clearly
appears (Art. 603, NCC) Q. What is an easement?
b) In cases of multiple usufructs, the
usufruct ends at the death of the last ANS. An easement or servitude is an
survivor (Art. 611, NCC) encumbrance imposed upon an immovable:
c) If the period is fixed using the life of a) for the benefit of another immovable
another person as reference or there is a belonging to a different owner.
resolutory condition; b) for the benefit of a community, or of one or
2) By the expiration of the period for which it more persons to whom the encumbered
was constituted, or by the fulfillment of any estate does not belong. (Art. 613 and 614,
resolutory condition provided in the title NCC)
creating the usufruct;

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1. Characteristics Limited to Includes all the

particular or uses and the fruits
Q. What are the characteristics of easement? specific use of the of the property
servient estate
ANS.
1) Always a real right but will affect third Q. Distinguish dominant estate from servient
persons only when registered estate.
2) A right limited by the needs of the dominant
owner or estate, without possession; ANS.
3) Inseparable from the estate to which it is Dominant Estate Servient Estate
attached (Art. 617, NCC) – Easements are Immovable in That property or
merely accessory to the tenements, and a favor of which, the estate which is
“quality thereof.” easement is subject to the
4) Cannot consist in the doing of an act unless established dominant estate
the act is accessory in relation to a real Which the right Upon which an
easement; belongs obligation rests
5) Involves two neighboring estates:
a) Dominant estate – to which the right
belongs; and 2. Classification
b) Servient estate – upon which an
obligation rests; Q. What are the classifications of an
6) A limitation on the servient owner’s rights of easement?
ownership;
7) Indivisible – not affected by the division of ANS.
the estate between two or more persons (Art. 1) As to benefit
618, NCC); a) Real – one in favor of another
8) It is enjoyed over another immovable never immovable – the dominant estate
on one’s own property; and b) Personal – in favor of a community, or
of one or more persons to whom the
Q. Distinguish easement from usufruct. encumbered estate does not belong
2) As to manner of exercise and as to indication
ANS. of existence
Easement Usufruct a) Continuous – those the use of which are
Always constituted May be constituted or may be incessant, without the
on real property on real or personal intervention of any act of man
Not extinguished Extinguished by b) Discontinuous – those which are used at
by the death of the death of intervals and depend upon the acts of
dominant owner usufructuary man
Non-possessory Involves a right of c) Apparent – made known and are
right over an possession over an continually kept in view by external
immovable immovable signs that reveal the use and enjoyment
of the same
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d) Non-Apparent – show no external

indication of their existence Easement relating to water
3) As to the nature of limitation
a) Positive – those which impose upon the Q. What are the kinds easements relating to
owner of the servient estate the waters?
obligation of allowing something to be
done or of doing it himself ANS. (provisions from NCC as superseded by
b) Negative – those which prohibit the PD 1067)
owner of the servient estate from doing 1) Natural drainage
something which he could lawfully do Scope: Lower estates are obliged to receive
if the easement did not exist. In the waters which naturally and without the
allowing someone to do something in intervention of man descend from higher
your estate, you are prohibited from estates, as well as the stones or earth which
preventing that person from doing that they carry with them.
something. Limitations:
4) As to source a) Dominant owner must not increase the
a) Voluntary or conventional – created by burden but he may erect works to avoid
the will of the parties inter vivos or erosion; and
mortis causa b) The servient owner must not impede
b) Legal – created by law, whether for the descent of water (but may regulate
public use or for the interest of private it).
persons Prescription: by non-use for 10 years (Paras)
c) Mixed – can be acquired through 2) Drainage of buildings
prescription. 3) Riparian property
Scope: The banks of rivers and streams, even
in case they are of private ownership, are
Legal Easement subject throughout their entire length and
within a zone of 3 meters for urban areas, 20
Q. What are the kinds of private legal meters for agricultural areas and 40 meters
easements provided by the Civil Code? for forest areas, along their margins, to the
easement of public use in the general interest
ANS. of navigation, floatage, fishing, recreation
1) Easement relating to water and salvage.
2) Easement of right of way NO person shall be allowed to stay in this
3) Easement of party wall zone bigger than what is necessary for
4) Easement of light and view recreation, navigation, floatage, fishing or
5) Drainage of building salvage or to build structures of any kind
6) Intermediate distances 4) Easement of a dam
7) Easement against nuisance Requisites:
8) Lateral and subjacent support a) The purpose is to divert or take water
from a river or brook, or to use any

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other continuous or discontinuous

stream; ANS.
b) It is necessary to build a dam; 1) The easement must be established at the
c) The person to construct it is not the point least prejudicial to the servient estate
owner of the banks or lots which must (Art. 649, NCC);
support it; and 2) Claimant must be an owner of enclosed
d) Payment of proper indemnity is made. immovable or with real right;
5) Drawing water and watering animals 3) There must be no adequate Outlet to a public
Requisites: highway (Art. 649, (1), NCC);
a) Owner of the dominant estate has the 4) The right of way must be absolutely
capacity to dispose of the water; necessary not mere convenience;
b) The water is sufficient for the use 5) The isolation must not be due to the
intended; claimant’s own act (Art. 649, NCC); and
c) Proposed right of way is the most 6) There must be payment of proper indemnity.
convenient and the least onerous to
third persons; and Easement of party wall
d) Pay indemnity to the owner of the
servient estate Q. What is a party wall?
6) Aqueduct
Requisites: ANS. A common wall which separates two
a) To prove that he can dispose of the estates, built by common agreement at the
water and that it is sufficient for the use dividing line such that it occupies a portion of
b) for which it is intended; both estates on equal parts. It is a special form
c) To show that the proposed right of way of co-ownership.
is the most convenient and the least
d) onerous to third persons; Q. When is there presumption of party wall?
e) To indemnify the owner of the servient
estate in the manner determined by the ANS. A party wall is presumed when a wall
f) laws and regulations. divides:
Easement of right of way 1) Adjoining buildings
2) Gardens or yards situated in cities, towns or
Q. Who may demand easement of right of in rural communities
way? 3) Rural lands

ANS. Q. What are the rights of owners of a party

1) The owner of the dominant estate; or wall?
2) Any person with the real right to cultivate or
use the dominant estate, e.g. a usufructuary, ANS.
a de jure possessor. (Art. 649, NCC) 1) To use the wall in proportion to their
respective interests (Art. 666, NCC],
Q. What are the requisites for easement on provided that:
right of way?

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a) The right to use by the other party is not 2) The opening must be at the height of the
interfered with; ceiling joists or immediately under the
b) The consent by the other owner is ceiling;
needed if a party wants to open a 3) There must be an iron grating imbedded in
window; and the wall; and
c) The condition of the building is 4) There must be a wire screen.
determined by experts.
2) To increase the height of the wall (Art. 664, Q. What are the restrictions as to easement of
NCC) views?
3) To acquire a half-interest in any increase in
height or thickness of the wall, paying a ANS.
proportionate share in the cost of the work 1) Direct Views: The distance of two meters
and the value of the land covered (Art. 665, between the wall and the boundary must be
NCC). observed; and
4) To renounce his part ownership of a party 2) Oblique Views: Walls perpendicular or at an
wall if he desires to demolish his building angle to the boundary line must not be 60 cm
supported by the wall. [Art. 663, CC] to the nearest edge of the window (Art. 670,
NCC).

Easement of light and view NOTE: Any stipulation to the contrary is void
(Art.673, NCC).
Q. What is easement of light and easement of
view? Drainage of building

ANS. Q. What is the obligation of the owner of a

1) Easement of light (jus luminum) – the right to building with respect to the drainage of
admit light from the neighboring estate by rainwater?
virtue of the opening of a window or the
making of certain openings. ANS. He is obliged to construct its roof or
2) Easement of view (jus prospectus) – the right covering in such manner that the rain
to make openings or windows, to enjoy the water shall fall on his own land or on a street or
view through the estate of another and the public place, and not on the land of his
power to prevent all constructions or works neighbor, even though the adjacent land may
which would obstruct such view or make the belong to two or more persons, one of whom is
same difficult. the owner of the roof. Even if it should fall on
his own land, the owner shall be obliged to
Q. What are the restrictions for making an collect the water in such a way as not to
opening for light and air? cause damage to the adjacent land or tenement
(Art. 674, NCC).
ANS.
1) The size must not exceed 30 centimeter
square;

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Q. What are the requisites of easement giving Q. When branches, roots and fruits extend
outlet to rain water where house is surrounded over a neighboring estate, what are the
by other houses? remedies?
ANS. If the branches of any tree should extend
ANS. over a neighboring estate, tenement, garden or
1) There must be no adequate outlet to the rain yard, the owner of the latter shall have the right
water because the yard or court of a house is to demand that they be cut off. If it be the roots
surrounded by other houses; of a neighboring tree, which should penetrate
2) The outlet to the water must be at the point into the land of another, the latter may cut them
where egress is easiest, and establishing a off himself within his property. (Art. 680, NCC)
conduit for drainage; and
3) There must be payment of proper Q. Who owns the fruits which fall from the
indemnity(Art. 676, NCC). adjacent land?

ANS. Fruits naturally falling upon adjacent land

Intermediate distances belong to the owner of said land. (Art. 681,
NCC)
Q. Can construction and plantings be made
near fortified places?
Easement against nuisance
ANS. No constructions can be built or plantings
made near fortified places or fortresses without Every building or piece of land is subject to the
compliance with the conditions required in easement which prohibits the proprietor or
special laws, ordinances, and regulations possessor from committing nuisance through
relating thereto (Art. 677, NCC). noise, jarring, offensive odor, smoke, heat, dust,
water, glare and other causes. (Art. 682, CC).
Q. What are the rules as to planting of trees
near a tenement or piece of land belonging to Subject to zoning, health, police and other laws
another? and regulations, factories and shops may be
maintained provided the least possible
ANS. NO trees shall be planted near a tenement annoyance is caused to the neighborhood. (Art.
or piece of land belonging to another except at 683, NCC)
the distance authorized by the ordinances or
customs of the place. In the absence thereof: NOTE: Easement against nuisance is a negative
 At least 2 meters from the dividing line of easement because the proprietor or possessor is
the estates if tall trees are planted. prohibited to do something which he could
 At least 50 centimeters if shrubs or small lawfully do were it not for the existence of the
trees are planted. easement. However, a nuisance involves any act
In case of a violation, a landowner shall have the or omission which is unlawful.
right to demand the uprooting of the plant even
if it has grown spontaneously. (Art. 679, NCC)

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Lateral and subjacent support Exception: unless at the time the ownership
of the two estates is divided:
Q. Can the proprietor of land freely excavate a) There are contrary stipulations; or
within the boundaries of his property? b) The sign is removed before the
execution of the deed(Art. 624, NCC).
ANS. No. The proprietor is prohibited from
making dangerous excavations upon his land as Q. What is the doctrine of apparent sign?
to deprive any adjacent land or building of
sufficient lateral or subjacent support. (Art. 684, ANS. The existence of the apparent sign is
NCC) Any stipulation or testamentary equivalent to a title if no objection has been
provision allowing excavations that cause made by the servient owner for an
danger to an adjacent land or building shall be implied contract that an easement should be
void. (Art. 685, NCC) constituted is deemed to exist. (Art. 624, NCC)

Q. Distinguish lateral from subjacent support.

4. Rights and obligations of the owners of the
ANS. The support is lateral when both the land dominant and servient estates
being supported and the supporting land are
on the same plane; Q. What are the rights of the dominant estate
when the supported land is above the owner?
supporting land, the support is subjacent
(Paras) ANS.
1) To use the easement and exercise all rights
3. Modes of acquiring easements necessary for it (Art. 625, NCC)
2) The owner of the dominant estate is granted
Q. What are the modes of acquiring the right to use the principal easement, and
easements? all accessory servitudes
ANS. 3) To make, at his own expense, on the servient
1) By title (or by something equivalent to a title) estate, any works necessary for the use and
– the following easements may be acquired preservation of the servitude, but without
only by title: altering it or rendering it more burdensome
a) Continuous non-apparent easements (Art. 627(1), NCC)
(Art. 620, NCC); 4) In a right of way, to ask for change in width
b) Continuous non-apparent easements of easement sufficient for the needs of the
(NCC, Art. 622) (2005 Bar) dominant estate (Art. 651, NCC)
c) Discontinuous apparent easements; 5) To renounce totally the easement, if he
2) By prescription of 10 years desires to be exempt from contributing to the
3) By deed of recognition expenses. (Art. 628, NCC)
4) By final judgment
5) By Apparent sign established by the owner of
the two adjoining estates

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In case the easement becomes very

Q. What are the obligations of the dominant inconvenient for the servient estate owner, or
estate owner? if it prevents him from making any important
works, repairs, or improvements, the
ANS. easement MAY BE CHANGED, provided:
1) To use the easement for the benefit of a) He offers another place/manner equally
immovable and in the manner originally convenient.
established (Art. 626, NCC) b) Does not cause injury to the dominant
If established for a particular purpose, the c) estate owner.
easement cannot be used for a different one. 3. Does not cause injury to those who have a
However, if established in a general way, right to use the easement, if any.
without specific purpose, the easement can
be used for all the needs of the dominant Q. What are the obligations of the servient
estate. estate owner?
2) To notify the owner of the servient estate
before making repairs and to make repairs in ANS.
a manner least inconvenient to the servient 1) Not to impair the use of the easement (Art.
estate (Art. 627(2), NCC) 629(1), NCC)
3) Not to alter the easement or render it more 2) To contribute proportionately to expenses if
burdensome (Art. 627, NCC) he uses the easement (Art. 628(2), CC)
4) To contribute to expenses of works necessary Exception: Unless there is an agreement to
for use and preservation of servitude, if there the contrary.
are several dominant estates. (Art. 628, NCC) 3) To pay for the expenses incurred for the
The contribution is in proportion to the change of location or form of the easement
benefits which each may derive from the
work.
5. Modes of extinguishment
Q. What are the rights of the servient estate
owner? Q. What are the modes of extinguishing a
easement?
1) To retain the ownership of the portion of the
estate on which the easement is established ANS.
(Art. 630, NCC) 1) By merger in the same person of the
2) To use the easement, provided he shall also ownership of the dominant and servient
be obliged to pay the expenses necessary for estates
the preservation and use of the servitude. NOTE: The merger must be absolute and
(Art. 628, par. 2, NCC) complete, not temporary. In the latter’s case,
3) Exception to paying expenses: There is an there is only suspension of easement.;
agreement to the contrary 2) By nonuser for ten years
4) To change the place or manner of the use of a) Discontinuous easements – this period
the easement, provided it be equally shall be computed from the day on
convenient (Art. 629, par. 2, NCC) which they ceased to be used; and,

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b) Continuous easements – from the day Q. What are the classifications of nuisance?
on which an act contrary to the same
took place; ANS.
3) When either or both of the estates fall into 1) As to nature:
such condition that the easement cannot be a) Nuisance per se (law) – an act,
used; but it shall revive if the subsequent occupation or structure which is a
condition of the estates or either of them nuisance at all times and under any
should again permit its use, unless when the circumstances, regardless of location or
use becomes possible, sufficient time for surroundings.
prescription has elapsed, in accordance with b) Nuisance per accidens (in fact) – one
the provisions of the preceding number; that becomes a nuisance by reason of
4) By the expiration of the term or the circumstances and surroundings.
fulfillment of the condition, if the easement is 2) As to scope of injurious effects:
temporary or conditional; a) Public – the doing or the failure to do
5) By the renunciation of the owner of the something, that injuriously affects the
dominant estate; safety, health, or morals of the general
6) By the redemption agreed upon between the public or such part of the public.
owners of the dominant and servient estates. b) Private – one which violates only
(Art. 631, NCC) private rights and produces damages to
but one or a few persons.
c) Mixed – one that may be both public
I. NUISANCE and private in character.

Q. What is a nuisance? Q. What is the doctrine of attractive nuisance?

ANS. A nuisance is any act, omission, ANS. One who maintains on his premises
establishment, business, condition of property, dangerous instrumentalities or appliances of a
or anything else which: character likely to attract children in play, and
1) Injures or endangers the health or safety of who fails to exercise ordinary care to prevent
others; or children from playing therewith or resorting
2) Annoys or offends the senses; or thereto, is liable to a child of tender years who
3) Shocks, defies or disregards decency or is injured thereby, even if the child is technically
morality; or a trespasser in the premises. (Jarco Marketing
4) Obstructs or interferes with the free Corp. v. CA, GR 129792, December 21, 1999)
passage of any public highway or street, or
any body of water; or
5) Hinders or impairs the use of property.
(Art. 694, NCC)

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a) In an extrajudicial abatement;
1. Nuisance per se b) He causes unnecessary injury; or
c) An alleged nuisance is later declared by
Q. What is nuisance per se? the courts to be not a real nuisance. (Art.
707, NCC)
ANS. It is an act, occupation, or structure, which
is a nuisance at all times and under any Q. When shall a transferee be held liable in
circumstances, regardless of location or nuisance?
surrounding.
Examples: gambling houses, houses of ill fame, ANS. To render the transferees liable, he must
etc. knowingly continue the nuisance, and
generally, he is not liable for continuing it in its
original form, unless he has been notified of its
2. Nuisance per accidens
existence and requested to remove it, or has
knowledge that it is a nuisance and injurious to
Q. What is nuisance per accidens?
the rights of others.

ANS. It is a nuisance because of particular facts

4. No prescription
and circumstances surrounding the otherwise
harmless cause of the nuisance. Its existence
being Q. What is the effect of prescription on
a question of fact, it cannot be abated without nuisance?
due hearing thereon in a tribunal authorized to
decide whether such a thing does in law ANS.
constitute a nuisance. 1) Lapse of time cannot legalize any nuisance,
Example: raising and breeding pigs in a house whether public or private. (Art. 698, NCC)
within city limits 2) Extinctive Prescription – No extinctive
prescription to abate a nuisance or
acquisitive prescription for the right to use of
the property that creates such nuisance. The
3. Liabilities
action to abate a public or private nuisance is
not extinguished by prescription. (Art.
Q. Who are liable in nuisance?
1143(2), NCC)

ANS.
1) Person responsible for creating the nuisance;
5. Criminal prosecution
2) Every successive owner or possessor of
property who fails or refuses to abate a
nuisance in that property started by a former Q. What are the remedies against a public
owner or possessor is liable therefor in the nuisance?
same manner as the one who created it. (Art.
696, NCC); ANS.
3) A private person or public official shall be 1) A prosecution under the Penal Code or any
liable for damages if: local ordinance; or
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2) A civil action; or 7) The property must not be destroyed unless it

3) Abatement, without judicial proceedings. is absolute necessary to do so and its value
(Art. 699, NCC) does not exceed P3,000.
8) The right must be exercised with the
assistance of the local police.
6. Judgment with abatement

Q. What are the remedies against public 8. Special injury to individual

nuisance?
Q. What is the remedy of a private individual
ANS. in case the nuisance is specially injurious to
1) Prosecution under the RPC or local him?
ordinance;
2) Civil action; or ANS.
3) Abatement, without judicial A private person may file an action on account
proceedings.(Art. 699, NCC) of public nuisance, if it is specially injurious to
himself. (Art. 703, NCC) He may do so by
NOTE: If a civil action is brought by reason of removing or, if necessary, destroying the thing
the maintenance of a public nuisance, such which constitutes the same, without committing
action shall be commenced by the city or a breach of the peace, or doing necessary injury.
municipal mayor. (Art. 701, NCC) But if necessary:
1) That demand be first made upon the
owner or possessor of the property to
7. Extrajudicial abatement abate the nuisance;
2) That demand has been rejected;
Q. What are the requisites of extrajudicial 3) That the abatement be approved by the
abatement? district health officer and executed with
the assistance of the local police; and
ANS. 4) That the value of the destruction does not
1) The right must be exercised only in cases or exceed Three-Thousand Pesos. (Art. 704,
urgent or extreme necessity. NCC)
2) It should be resorted to within a reasonable
time after knowledge of the nuisance is
acquired.
3) Demand must be made upon the owner of
the property to abate the nuisance.
4) Such demand has been rejected.
5) It must be reasonable
6) The abatement must be approved by the
district health officer.

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NOTE: Abatement and damages are

cumulative remedies.
9. Right of individual to abate a public
nuisance 11. Defenses to action

Q. What is the process for extrajudicial Q. What are the remedies of the property
abatement? owner whose property is seized or destroyed
as a nuisance?
ANS.
1) The district health officer shall take care that ANS. He may resort to the courts to determine
one or all of the remedies against a public whether or not it was in fact a nuisance.
nuisance are availed of. (Art. 700, NCC) 1) An action for replevin;
2) The district health officer shall determine 2) To enjoin the sale or destruction of the
whether or not abatement, without judicial property;
proceedings, is the best remedy against a 3) An action for the proceeds of its sale and
public nuisance. (Art. 702, NCC) damages if it has been sold; or
4) To enjoin private parties from proceeding
Q. What is the process for judicial abatement to abate a supposed nuisance
(through civil action)?

ANS. If a civil action is brought by reason of the 12. Who may sue on private nuisance
maintenance of a public nuisance, such action
shall be commenced by the city or municipal Q. What are the remedies against a private
mayor. (Art. 701, NCC) nuisance?
Exception: A private person may file an
action on account of a public nuisance if it is ANS.
especially injurious to him. (Art. 703, NCC) 1) A civil action; or
2) Abatement, without judicial proceedings.
(Art. 705, NCC)
10. Right to damages
Q. What are the methods of abatement?
Q. When is a person liable for damages in case
of extrajudicial abatement of nuisance? ANS.
1) By removing the thing causing the nuisance
ANS. The private person or a public official 2) By destroying the thing causing the nuisance
extrajudicially abating a nuisance is liable for (Art. 706, NCC)
damages to the owner of the thing abated:
a) if he causes unnecessary injury; or
b) if an alleged nuisance is later declared by
courts to be not a real nuisance (Art. 707,
NCC).

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Q. What things are susceptible of occupation?

J. MODES OF ACQUIRING OWNERSHIP
ANS.
Q. What are the modes of acquiring 1) Things that are without an owner e.g., res
ownership? nullius, abandoned;

ANS. NOTE: Stolen property cannot be subject of

1) Occupation occupation.
2) Law 2) Animals that are the object of hunting and
3) Donation fishing (Art. 715, NCC);
4) Tradition (Delivery) 3) Hidden treasures (Art. 718, NCC)
5) Intellectual Creation 4) Abandoned movables – A thing is
6) Prescription (Acquisitive) abandoned when:
7) Succession a) The expectation to recover is gone (spes
recuperandi); and
b) The intent to return or have it returned
is given up (spes rivertandi).
1. Occupation
5) Swarm of bees that has escaped from its
owner, under certain conditions (Art. 716,
NCC);
Q. What are the requisites of occupation?
6) Domesticated animals that have escaped
from their owners, under certain conditions
ANS.
(Art. 716, NCC);
1) There must be seizure of a thing which is
7) Transfer of pigeons to another breeding place
appropriable by nature;
without fraud or artifice (Art. 717, NCC); and
2) The thing must be without owner;
8) Transfer of fish to another breeding place
3) The subject must have the intention to
without fraud or artifice (NCC, Art. 717).
acquire ownership and must have the
9) Acquisition of ownership over a wild animal
necessary capacity to consent;
by occupation
4) There must be an act of taking possession of
10) Wild animals are considered res nullius
the thing
when not yet captured. After its capture,
animals that escaped become res nullius
Q. How is occupation effected?
again.

ANS.
1) Hunting and fishing
2) Finding hidden treasures
3) Finding of abandoned movables
4) Finding movables which never had an owner
[Art. 713, CC]

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c) With a term – donor imposes on the

2. Donation donee a condition dependent upon the
happening of a future and certain event.
.
Q. What are the requisites of donation? Q. Who may make donations?

ANS. ANS. All persons who may contract and

1) Donor must have capacity to make the dispose of their property may make a donation.
donation; (Art. 735, NCC)
2) He must have donative intent (animus
donandi); Q. Who make accept donations?
3) There must be delivery in certain cases; and
4) Donee must accept or consent to the donation ANS.
during the lifetime of the donor and of the 1) All persons (juridical or natural) who are not
done in case of donation inter vivos (Art. 746, specially disqualified by law may accept
NCC); whereas in case of donation mortis donations. (Art. 738, NCC)
causa, acceptance is made after donor’s death 2) Minors and others who cannot enter into a
because they partake of a will (Art. 728, contract may become donees but the
NCC). acceptance shall be done through their
parents or legal representatives. (Art. 741,
Q. What are the kinds of donation? NCC)

ANS. Q. How is acceptance by a minor done made?

1) According to motive or cause:
a) Simple; ANS.
b) Remuneratory 1) By himself
c) Conditional or Modal; a) If the donation is simple.
d) Onerous donations. b) If the donation does not require
2) As to perfection or extinguishment: written acceptance.
a) Pure; 2) By his guardian or legal representative when
b) With a condition; or written acceptance of the donation is
c) With a term. required.
3) According to effectivity:
a) Inter vivos NOTE: Donations made to conceived and
b) Mortis causa unborn children may be accepted by those
4) According to perfection or extinguishment persons who would legally represent them if
a) Pure donation – not subject to any they were already born. (Art. 742, NCC)
condition;
b) Conditional – donor imposes on the
donee a condition dependent on the
happening of a future event or past
event unknown to the parties; and

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Q. What may be donated? made to the husband and wife jointly, between
whom there shall be a right of accretion, if the
ANS. All present property of the donor or part contrary has not been provided by the donor.
thereof. (Art. 750, NCC) (Art. 753, NCC)
Limitation:
1) The donor reserves, in full ownership or Q. What is the rule on double donation?
usufruct, sufficient means for support of
himself and all relatives entitled to be ANS. Priority in time, priority in right
supported by donor at the time of 1) If movable – one who first take possession in
acceptance. (Art. 750, NCC) good faith
2) The donor reserves property sufficient to 2) If immovable – one who recorded in registry
pay donor’s debts contracted before of property in good faith
donation, otherwise, donation is in fraud
of creditors. (Arts. 759, NCC) Q. When is donation inofficious?
3) Donations provided for in marriage
settlements between future spouses – ANS. Donation is inofficious if it impairs the
must be not more than 1/5 of present legitime. An inofficious donation will be
property. (Art. 84, FC) reduced in so far as it exceeds what the donor
4) Donation propter nuptias by an ascendant could have given by will to the donee – the free
consisting of jewelry, furniture or clothing portion. Whether a donation is inofficious or not
not to exceed 1/10 of disposable portion. can only be determined at the time of the death
(Art. 1070, NCC) of the donor.
The heirs of the donor have 10 years from the
Q. What properties may not be donated? death of the donor to revoke or reduce the
donation. If there is a subsequent appearance or
ANS. birth of a child and his legitime is impaired
1) Future property; those which the donor because of a donation, the donation may be
cannot dispose of at the time of the donation revoked or reduced to the extent that his
(Art. 751, NCC) legitime is prejudiced. (Arts. 760 and 761, NCC).
2) More than what he may give or receive by
wil. If it exceeds what he may give or receive Q. Give examples of void donations.
by will, then it is considered inofficious. (Art.
752, NCC) ANS.
The following donations shall be void:
Q. What is the effect if donation is made to 1) Those made between persons who are guilty
several persons jointly? of adultery or concubinage at the time of the
donation;
ANS. When a donation is made to several 2) Those who made between persons found
persons jointly, it is understood to be in equal guilty of the same criminal offense, in
shares, and there shall be no right of accretion consideration thereof;
among them, unless the donor has otherwise
provided. It shall not be applicable to donations

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3) Those made to a public officer or his wife, Q. What are the requisites of prescription as a
descendants and ascendants, by reason of his mode of acquiring ownership?
office. (Art. 739, NCC)
ANS.
1) Capacity to acquire by prescription;
3. Prescription 2) A thing capable of acquisition by
prescription;
3) Possession of the thing under certain
Q. What are the kinds of prescription? conditions; and
4) Lapse of time provided by law.
ANS.
1) Acquisitive prescription – acquisition of a Q. What are the two kinds of prescription?
right by the lapse of time.
a) Ordinary acquisitive prescription – ANS.
requires possession of things in good 1) Acquisitive prescription – the acquisition of a
faith and with just title for the time right by the lapse of time
fixed by law. (Art. 1117, NCC) also, Other names: adverse possession, usucapcion
possession must be in the concept of 2) Extinctive prescription – rights and actions
an owner; lastly, it must be public, are lost by the lapse of time
peaceful, and uninterrupted. Other names: limitation of action, liberatory
b) Extraordinary acquisitive Prescription prescription, litigation of action
– acquisition of ownership and other
real rights without need of title or of Q. Who may acquire property or rights by
good faith. prescription?
2) Extinctive Prescription – the loss of a right of
action by the lapse of time. Also known as ANS.
limitation of actions. 1) Those capable of acquiring property or rights
by the other legal modes;
**Please refer to the separate discussion on 2) Minors and other incapacitated persons,
Prescription.** either personally or through their parents,
guardians or legal representatives (Art. 1107,
NCC)
IV. PRESCRIPTION
Q. To whom shall prescription run against?
Q. What is prescription?
ANS. Prescription, both acquisitive and
ANS. Prescription is a mode of acquiring (or extinctive, runs against:
losing) ownership and other real rights thru the 1) Minors and other incapacitated persons
lapse of time in the manner and under the who have parents, guardians or other legal
conditions laid down by law. (Art. 1106, NCC) representatives;

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2) Absentees who have administrators, either A. TYPES OF PRESCRIPTION

appointed by them before their
disappearance, or appointed by the courts;
1. Acquisitive
3) Persons living abroad, who have
managers or administrators;
Q. What are the requisites of prescription as a
4) Juridical persons, except the State and its
mode of acquiring ownership?
subdivisions. (Art. 1108, NCC)
5) [In favor of], or against a married woman
ANS.
(Art. 1110, NCC).
1) Actual possession of a property, which is
*This presupposes a situation where the parties
susceptible of prescription;
involved are a married woman and another
2) Possession has to be in the concept of an
person not her husband.
owner, public, peaceful and uninterrupted
(Art. 1118, NCC)
Q. When is prescription not applicable?
3) Possession must be adverse, that is, exclusive
and not merely tolerated
ANS.
4) Possession must satisfy the full period
1) Between husband and wife even though
required by law (Pineda)
there be a separation of property agreed
upon in the marriage settlements or by
Q. What are the kinds of acquisitive
judicial decree;
prescription?
2) Between parents and children during the
minority or insanity of the latter;
ANS.
3) Between guardian and ward during the
1) Ordinary prescription – requires possession
continuance of the guardianship (Art. 1109,
of a thing in good faith and with just title for
NCC)
the time fixed by law.
2) Extraordinary prescription – ownership and
Q. What things are subject to prescription?
other real rights over immovable property
are acquired through uninterrupted adverse
ANS.
possession thereof for 30 years without need
1) All things within the commerce of men; and
of title or of good faith
2) Patrimonial property of the state. (Art. 1113,
NCC)
a. Ordinary
Q. What things are not subject to prescription?
Q. When is a possessor in good faith?
ANS.
ANS. The good faith of the possessor consists in
1) Public domain;
the reasonable belief that the person from whom
2) Intransmissible rights;
he received the thing was the owner thereof,
3) Movables possessed through a crime; and
and could transmit his ownership. (Art. 1127,
4) Registered land under the Torrens system
NCC)

Q. When must good faith exist?

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2. Extinctive
ANS. It must exist not only from the beginning
but a. Characteristics
throughout the entire period of possession fixed
by Q. What are the characteristics of extinctive
law. (Pineda) prescription?

Q. When does the possessor have just title? ANS.

1) It based on the probability, born of
ANS. There is just title when the adverse experience, that the alleged right which
claimant came into possession of the property accrued in the past never existed or has
through one of the modes recognized by law for already been extinguished; or if it exists, the
the acquisition of ownership or other real rights, inconvenience caused by the lapse of time
but the grantor was not the owner or could not should be borne by the party negligent in the
transmit any right. (Art. 1128, NCC) assertion of his right (Tolentino)
NOTE: Just title must be proved; it is never 2) The loss or extinguishment of property rights
presumed. (Art. 1131, NCC) or actions through the possession by another
of a thing for the period provided by law or
b. Extraordinary through failure to bring the necessary action
to enforce one’s right within the period fixed
Q. What are the requisites of extraordinary by law.
prescription? b. Requisites

ANS. Q. What are the requisites of extinctive

1) Capacity of the possessor to acquire by prescription?
prescription;
2) Susceptibility of object to prescription; ANS.
3) Adverse possession of the character 1) Capacity to acquire by prescription;
prescribed by law; 2) A thing capable of acquisition by
4) Lapse of time required by law; and prescription;
5) Good faith of possessor or proof of just title. 3) Possession of the thing under certain
conditions; and
4) Lapse of time provided by law

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c. Periods in the crime or offense, unless the latter knew

the criminal nature of the acquisition of the
Q. What are the periods as regards prescription property by the transferor. (Pineda)
as a mode of acquisition of ownership?

ANS. 2. Registered lands

Movables Immovables
Good faith 4 years 8 years Q. When is prescription not allowed in
Bad faith 10 years 30 years registered lands?

Q. What are the rules for the computation of ANS.

time necessary for prescription? 1) In an action to recover a registered land by
the owner; and
ANS. 2) In a right to petition for the issuance for the
1) The present possessor may complete the issuance of a Writ of Possession filed by the
period necessary for prescription by tacking applicant for registered land. (PD 1529)
his possession to that of his grantor or
predecessor in interest;
3. Actions to demand right of way; to abate a
2) It is presumed that the present possessor who
nuisance
was also the possessor at a previous time, has
continued to be in possession during the
Q. When do actions to demand right of way or
intervening time, unless there is proof to the
to abate a nuisance?
contrary;
3) The first day shall be excluded and the last
ANS. NEVER. Actions to demand right of way
day included. (Art. 1138, NCC)
or to abate a nuisance are imprescriptible.

4. Action to quiet title if plaintiff is in

B. WHEN PRESCRIPTION IS
possession
INAPPLICABLE

Q. When does the action to quiet title if

1. By offender plaintiff in possession prescribe?

Q. When is prescription not allowed by the ANS. NEVER. The action to quiet title if plaintiff
offender? is in possession is imprescriptible. The owner of
the property or right may wait until his
ANS. Movables possessed through a crime can possession is disturbed or his title is assailed
never be acquired through prescription by the before taking steps to vindicate his right.
offender. (Art. 1133, NCC)
NOTE: The person who cannot invoke the right
5. Void contracts
of prescription is the offender or person who
committed the crime or offense, not a
subsequent transferee who did not participate
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Q. When does action for nullity of void

contracts prescribe? ANS.
Prescription Laches
ANS. The action or defense for the declaration Concerned with Concerned with
of the inexistence of a contract does not the fact of delay the effect of delay
prescribe. (Art. 1410, NCC) A matter of time A question of
inequity of
permitting claim
6. Action to demand partition; distinguished to be enforced
from laches Statutory Not statutory
Cannot be availed Being a defense of
Q. When does action to demand partition in of unless it is equity, need not
co-ownership prescribe? especially be specifically
pleaded as an pleaded.
ANS. No prescription shall run in favor of a co- affirmative
owner or co-heir against his co-owners or co- allegation
heirs so long as he expressly or impliedly Based on a fixed Not based on a
recognizes the co-ownership. (Art. 494, NCC) time fixed time

Q. What is laches?
7. Property of public dominion
ANS. Laches (or “estoppel by laches”) is
unreasonable delay in the bringing of a cause of Q. Are property of public dominion subject to
action before the courts of justice. prescription?

Q. What are the requisites of laches? ANS. Property of the State or any of its
subdivisions not patrimonial in character shall
ANS. not be the object of prescription. (Art. 1113,
1) Conduct on the part of the defendant or one NCC) Both acquisitive and extinctive
under whom he claims, giving rise to the prescription do not run against the State in the
situation complained of. exercise of its sovereign function to protect its
2) Lack of knowledge or notice on the part of the interest.
defendant that the complainant would assert
the right on which he bases his suit; and
3) Injury or prejudice to the defendant in the
C. PRESCRIPTION OR
event relief is accorded to the complainant
LIMITATION OF ACTIONS
(Pineda);
4) Delay in asserting complainant’s right after
he had knowledge of the defendant’s conduct 1. To recover movables
and after he has opportunity to exercise it;
Q. When does an action to recover movable
Q. Distinguish prescription from laches. property prescribe?

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Judgment 10 years from the

ANS. The ownership of personal property time the right of
prescribes through uninterrupted possession action accrues
for eight (8) years, without need of any other (Art. 1144)
condition. (Art. 1132, NCC) Oral contract 6 years (Art. 1145)
NOTE: The action shall not prosper if it is Quasi-contract 6 years (Art. 1145)
brought after four years when the possessor has Injury to the 4 years (Art. 1146)
already acquired title by ordinary acquisitive rights of the
prescription. plaintiff
Quasi-delict 4 years (Art. 1146)
2. To recover immovables Forcible entry and 1 year (Art. 1147)
detainer
Q. When does an action to recover immovable Defamation 1 year (Art. 1147)
property prescribe? All other actions 5 years (Art. 1149)
not
ANS. Real actions over immovables prescribe specified
after thirty years. (Art. 1141, NCC)
Exception: Ownership and other real rights over
immovable property are acquired by ordinary D. INTERRUPTION
prescription through possession of ten years.
(Art. 1134, NCC) Q. What are the grounds for interruption of
prescriptive period?
3. Other actions
ANS.
Q. Provide the prescription period of other 1) When they are filed before the court;
civil actions. 2) When there is a written extrajudicial demand
by the creditors; or
ANS. 3) When there is any written acknowledgment
of the debt by the debtor (Art. 1155, NCC)
Action Prescription
Mortgage action 10 years from Q. What are the effects of interruption of
default of prescriptive period?
mortgagor (Art.
1142) ANS.
Written contract 10 years from the 1) All the benefits acquired so far from the
time the right of possession ceases.
action accrues 2) When the prescription runs again, it will be
(Art. 1144) reset.
Obligation 10 years from the
created by law time the right of
action accrues
(Art. 1144)
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V. SUCCESSION
The rights to the succession are transmitted
A. GENERAL PROVISIONS
from the moment of death of the decedent. The
1. Definition
estate of the decedent would then be held in co-
ownership by the heirs. The co-heir or co-owner
Q. What are the elements of succession? may validly dispose of his share or interest in
the property subject to the condition that the
ANS. portion disposed of is eventually allotted to him
a) Mode of acquisition in the division upon termination of the co-
b) Transfer of property, rights, and obligations ownership. (Maria Vda. De Reyes, et al. v CA,
to the extent of the value of the inheritance of GR 92436, July 26, 1991)
a person (called the grantor or transferor,
decedent, testator, or intestate) If a wife sells conjugal land without the
c) Transmission through death husband’s consent, the heirs may question the
d) Transmission to another (called grantee, or transaction but only after the death of the
transferee, heir, legatee, or devisee) husband for it is only at that time when their
e) By will or by operation of law (testamentary right to the property becomes choate. The wife
or legal succession) herself cannot sue for annulment or cancellation
because it was she who had unlawfully
Q. What are the scope of inheritance? alienated the property. It is of course
ANS. understood that the heirs may question only
General Rule insofar as their inherited share of the land is
a) All the property, rights, and obligations of concerned. (Felipe v. Heirs of Aldon, GR 60174,
a person which are not extinguished by his Feb. 16, 1983)
death. (Art. 776, NCC)
b) Those which have accrued thereto since Q. What are the conditions for the
the opening of the succession. (Art. 781, transmission of successional tights?
NCC)
ANS.
NOTE: Property acquired by the testator a) there has been a death (either actual or
between the time the will is made and the time presumed)
he dies, is NOT given to the designated heir b) the rights or properties are indeed
unless the contrary has been expressly transmissible or descendible
provided. (Art. 793, NCC) c) the transferee is still alive, willing, is
capacitated to inherit.
2. Succession occurs at the moment of death
NOTE:
Q. What is the rule on opening of succession? 1) Actual death
 The effects of the acceptance or
ANS. Rights to the succession are transmitted repudiation shall always retroact to the
from the moment of the death of the decedent. moment of death of the decedent. (Art.
(Art. 777, NCC) 1042, NCC)

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2) Presumed death ANS.

Kinds of presumed death 1) As to Effectivity
a) ordinary presumption because of a) Succession inter vivos
ordinary absence b) Succession mortis causa
 an absentee shall be presumed dead 2) As to whether a will exists or not (Art 778,
for the purpose of opening his NCC)
succession – at the end of ten years a) Testamentary succession
(at the end of 5 years in case he b) Intestate or legal succession
disappeared after the age of 75). (Art c) Mixed succession
390, NCC) 3) As to the transfer of the property
b) extraordinary presumption because of a) Compulsory succession (refers to the
extraordinary or qualified absence. legitime)
The following shall be presumed dead b) Voluntary succession (refers to the free
for all purposes, including the division disposal)
of the estate among the heirs: 4) As to the extent of rights and obligations
i. A person on board a vessel lost involved
during a sea voyage, or an a) Universal succession (covering ALL
aeroplane which is missing, who juridical relations involving the
has not been heard of for four deceased)
years since the loss of the vessel or b) Particular succession (covering only
aeroplane; certain items or properties)
ii. A person in the armed forces who 5) Special kind
has taken part in war, and has a) Contractual succession – that kind
been missing for four years; where a future husband and a future
iii. A person who has been in danger wife give to each other future property
of death under other effective mortis causa, by means of a
circumstances and his existence marriage settlement.
has not been known for four years.
(Art. 391, NCC) Q. What is testamentary succession?

Q. Who are the subjects of succession? ANS. Testamentary succession is that which
results from the designation of an heir, made in
ANS. a will executed in the form prescribed by law.
a) Decedent – person whose property is (Art. 779, NCC)
transmitted through succession, whether or
not he left a will (Art. 775, NCC) Q. What are some rules for testamentary
 Testator – a decedent who left a will Succession?
(Art. 775, NCC)
b) Successor – person who succeeds to the ANS.
property of the decedent. 1) Testamentary succession may be done thru a
will or thru a codicil.
Q. What are the kinds of succession? 2) The will or codicil may be:

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a) notarial (ordinary, attested, or 3. Kinds of Successors

acknowledged)
b) holographic (handwritten by the Q. What are the kinds of successors?
testator from beginning to end,
complete with date and signature) ANS.
3) In case of doubt, testamentary succession is 1) Heirs – those who are called to the whole or
preferred to legal or intestate succession. an aliquot portion of the inheritance either by
(Art. 791, NCC). will or by operation of law (Art. 782, NCC)
 Compulsory Heirs
Q. What is mixed succession?  Voluntary or Testamentary Heir
 Legal or Intestate Heirs
ANS. Mixed succession is that effected partly by 2) Devisees and Legatees
will and partly by operation of law. (Art. 780,  Devisees are persons to whom gifts of
NCC) real property are given by virtue of a
will. (Art. 782, NCC)
Q. A made a will, disposing half of his  Legatees are persons to whom gifts of
properties. If the will is later on declared null personal property are given by virtue of
and void for lack of the proper signature, is a will. (Art. 782, NCC)
this a case of legal or mixed succession?
NOTE: In case of preterition, the distinction
ANS. Legal because the will being void, the between heir and legatee/devisee is significant.
entire estate descends to the heirs by operation Preterition annuls the institution of heirs. It does
of law. not affect the institution of legatees and devisees
provided that the legitimes are not impaired
(Art. 854, NCC).

Q. Distinguish heir from legatee or devisee.

ANS. Legatee / Devisee

Heir Legatee/ Devisee
Represents the Does not represent
juridical personal regardless of the
obligations not legacy or device’s
extinguished by death value
Succeeds to the Succeeds only to the
remainder of the determinate thing
decedent’s properties or quantity which is
after all the debts and mentioned in the
all the legacies and legacy or device
devices have been
paid

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Can exist in either Can exist only in e) The testator must be capacitated to make a
testamentary or testamentary will. (Arts. 796-798, NCC).
intestate succession succession f) The will is strictly a personal act in all matters
that are essential. (Art. 784, NCC).
g) It is effective mortis causa - it produces effects
only after the death of the testator — hence,
B. TESTAMENTARY SUCCESSION
the will is termed “ambulatory”. (Art. 777,
NCC).
1. Wills h) It is essentially revocable or ambulatory. (Art.
828, NCC).
Q. Define will. i) It is free from vitiated consent - it must have
been executed freely, knowingly, and
ANS. A will is an act whereby a person is voluntarily, otherwise it will be disallowed.
permitted, with the formalities prescribed by (Art. 839, NCC).
law, to control to a certain degree the j) It is an individual act - A will must be
disposition of his estate, to take effect after his executed only by one person. A joint will
death. (Art. 783, NCC) executed by Filipinos even abroad is not
allowed in the Philippines.
Q. What are the characteristics of a will?
NOTE: Mutual wills – Separate wills
ANS. although containing reciprocal provisions
a) It is a statutory right - the making of a will is are not prohibited, subject to the rule on
a statutory right (not a natural right). The disposicion captatoria.
making of a will should be considered k) It disposes of the testator’s estate (whether
subordinated to both the law and public totally or partially) in accordance with his
policy. wishes (“to a certain degree” only, because
 A will has been defined as species of legitimes are reserved for compulsory heirs).
conveyance whereby a person is
permitted, with the formalities Q. What is the rule on non-delegability of will-
prescribed by law, to control to a certain making?
degree the disposition of his estate after
his death. (Caneda v. CA, 41 SCAD 968, ANS. The making of a will is a strictly personal
1993). act; it cannot be left in whole or in part to the
b) It is a unilateral act -. No acceptance by the discretion of a third person, or accomplished
transferees is needed while the testator is still through the instrumentality of an agent or
alive; any acceptance made prematurely is attorney. (Art. 784, NCC)
useless. The mechanical act of drafting may be entrusted
c) It is a solemn or formal act (executed in to another, as long as the disposition itself
accordance with the formalities prescribed expresses the testator’s desires, and all the
by law). (Art. 783, NCC). formalities of the law are complied with, such as
d) There must be animus testandi (intent to the signing by the testator and the witnesses (in
make a will). the case of a notarial will), or the copying by the

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testator in his own handwriting (in the case of

the holographic will). Q. What are the steps in resolving
ambiguities?
Q. What are the rules in the construction of a
will’s provision? ANS.
1) Examine the will itself;
ANS. If a testamentary disposition admits of 2) Refer to extrinsic evidence or the surrounding
different interpretations, in case of doubt, that circumstances, (except oral declarations of the
interpretation by which the disposition is to be testator as to his intention); and
operative shall be preferred. (Art. 788, NCC) 3) In the case of patent ambiguities, the extrinsic
The intention and desires of the testator if evidence acceptable is limited to those pertaining
clearly expressed in the will, constitute the fixed to the circumstances under which the will was
law of its interpretation. (Vda. De Villanueva v. executed.
Juico, L-16737, Feb. 28, 1962).
The will must be interpreted as a whole.
While testacy is preferred over intestacy, this is Q. What are the rules in interpreting words of
true only if the will has been validly made. a will?

Q. What are the kinds of ambiguity in a will? ANS.

1) Ordinary words have their ordinary
ANS. meanings.
a) Latent of intrinsic Ambiguity - that which Exception: If there is a clear intention that
does not appear on the face of the will, and is another meaning was used — provided that
discovered only by extrinsic evidence. other meaning can be determined.
NOTE: This kind of ambiguity arises when: Reason for exception: The supreme law for
a) when there is an imperfect description interpretation is INTENTION.
of the heir, legatee, or devisee; 2) Technical words have technical meanings.
b) when there is an imperfect description Exceptions:
of the gift being given; a) If there is a contrary intention.
c) when only one recipient is designated b) If it appears that the will was drafted by
but it turns out that there are two or the testator alone, who did not know
more who fit the description. the technical meaning.
b) Patent or Extrinsic Ambiguity - that which Reason: Wills drafted by experts like
appears on the face of the will itself; in other lawyers are construed more strictly than
words, by examining the provision itself, it is those made by ordinary laymen
evident that it — is not clear.
NOTE: An idiomatic translation is preferred to
a literal translation since the former expresses
more clearly the testator’s desires. (Dionisio v.
Dionisio, 46 Phil. 609).

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Q. What are the effects of invalid dispositions? b) From the viewpoint of PLACE or
COUNTRY — the national law of the
ANS. decedent, that is, the law of his country
a) Even if one disposition or provision is or nationality (Art. 16, NCC) —
invalid, it does not necessarily follow that all regardless of the place of execution or
the others are also invalid. the place of death.
b) The exception occurs when the various
dispositions are indivisible in intent or
nature. (Art. 792, NCC) Testamentary Capacity and Intent

Q. What are the general rules on validity of a Q. What are the requisites for capacity to make
will? a will?

ANS. ANS
1) EXTRINSIC VALIDITY 1. All persons who are not expressly prohibited
a) From the viewpoint of TIME — what by law may make a will. (Art 796)
must be observed is the law in force at 2. testator must be 18 years old or over;
the time the will is made. (Art. 795). 3. Testator must be of sound mind at the time
b) From the viewpoint of PLACE or the will is made.
COUNTRY — what law must be
observed depends: NOTE:
i. If the testator is a Filipino, he can  A convict under civil interdiction is allowed
observe Philippine laws; or those to make a will. This is because civil
in the country where “he may be”; interdiction prohibits a disposition of
or those in the country where he property inter vivos, not mortis causa.
executes the will.  Since the law does not disqualify them, it is
ii. If the testator is an alien who is believed that spendthrifts or prodigals, even
abroad, he can follow the law of if under guardianship, can make a will
his domicile, or his nationality or provided they are at least 18 years old and
Philippine laws or where he are of sound mind.
executes the will.  Art. 796 refers to “all persons,’’ but this
iii. If the testator is an alien in the should be understood to refer only to natural
Philippines, he can follow the law persons, not juridical ones, like corporations.
of his nationality or the laws of the
Philippines, since he executes the Q. What are the requisites for soundness of
will here. mind?
2) INTRINSIC VALIDITY
a) From the viewpoint of TIME — ANS
successional rights are governed by the (a) that testator knows the nature of the estate to
law in force at the time of the be disposed of (character, ownership of what he
DECEDENT’S DEATH. is giving)

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(b) that testator knows the proper objects of his will are interpreted or explained to the
bounty (by persons who for some reason expect testator.
to inherit something from him — like his This rule does NOT apply to witnesses in a
children) notarial or attested will because the witnesses
do not need to know the contents of the will.
(c) that testator knows the character of the The attestation clause, on the other hand,
testamentary act (that it is really a will, that it is must be understood by the witnesses even if
a disposition mortis causa, that it is essentially it is in a language not known to them.
revocable) Presumption that the testator knew the
language in which the will was written is
present when:
Testamentary Capacity and Intent a) the will must be in a language or dialect
generally spoken in the place of
Q. What are the kinds of wills allowed under execution
the New Civil Code? b) the testator must be a native or resident
of said locality (Abangan v. Abangan,
ANS. G.R. No. 13431, Nov. 12, 1919).
a) Ordinary or notarial will — requires, among 3) Subscribed (signed) at the end thereof by the
other things, an attestation clause, and testator himself or by the testator’s name
acknowledgment before a notary public. written by some other person in his presence,
b) Holograph or holographic will — the most and by his express direction;
important feature of which is its being
written entirely, from the date to the NOTES:
signature, in the handwriting of the testator. a) The signature of the testator of the will
Here, neither an attestation clause nor an must be at the end of the will, which
acknowledgment before a notary public is may be at the logical end (last
needed. testamentary disposition) or physical
end (non dispositive provisions).
Q. What are the formalities required in the b) A testator can sign with his thumbmark
execution of a notarial will? (Solar v. Diancin, 55 Phil. 479) or with
his initials (Yap Tua v. Yap Ka Kuan, 27
ANS. Phil. 579), or even with a rubber stamp
1) In writing (handwritten, typed, or printed; or an engraved dye, provided he
material on which it is written is immaterial); intends the same to be his signature.
2) Executed in a language or dialect known to (Thompson on Wills, Sec. 108, pp. 171-
the testator; 173).
c) Somebody else may write the testator’s
NOTE: This rule is mandatory. Otherwise, name for the latter, provided this is
the will is void (Suroza v. Honrado, Adm. done in the latter’s presence and at the
Matter No. 2026-CFI, December 19, 1981). It latter’s express direction.
is also applicable even if the provisions of the d) the person signing for the testator does
not have to put his own name.

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e) If the person who signs the name of the b) The last page need not be signed on the
testator is one of the subscribing margin, since the signatures already
witnesses, this is valid. (Barut v. appear at the end. (It is wrong to say
Cagacungan, 21 Phil. 461). that the last page needs no signature at
f) The delegate must sign in the testator’s all.).
presence - this does not necessarily c) If the last page contains only the
mean that the testator must actually see attestation clause, the testator need not
the signing; it is enough that he could sign on the margin. (Fernandez v.
have done so, or felt it — as when he is Vergel de Dios, 46 Phil. 922).
blind — without any physical d) Whenever the marginal signatures are
obstruction, had he wanted to. required, although the law says “left
(Jaboneta v. Gustilo, 5 Phil. 641; Yap margin,” the purpose is served if they
Tua v. Yap Ka Kuan, 27 Phil. 579). are on the “right, top, or bottom
g) “Express direction” means that the margin,” for the only purpose is to
delegate must be expressly authorized identify the pages used, and thus
to do so. prevent fraud. (Avena v. Garcia, 42 Phil.
4) Attested and subscribed by three or more 145; Nayue v. Mojal, 47 Phil. 152).
credible witnesses in the presence of the e) Failure to have the marginal signatures
testator and of one another; of the testator and of the witnesses,
when needed, is a FATAL defect. (In re
NOTE: “In the presence” does not Will of Prieto, 46 Phil. 700).
necessarily require actually seeing, but f) A credible witness is one possessed of
possibility of seeing without any physical the qualifications imposed by law. He
obstruction. (Jaboneta v. Gustilo, 5 Phil. must be able or competent to testify.
541) In case a testator is blind, the 6) All the pages shall be numbered
“presence” may be complied with if the correlatively in letters on the upper part of
signing or action is within the range of the each page;
other senses like hearing, touch, etc., of the
testator. What is important is that he NOTE:
realizes what is being done. (I Alexander a) the purpose is to guard against fraud,
on Wills, pp. 684-686) and to afford means of preventing
5) The testator or the person requested by him substitution or of detecting the loss of
to write his name must also sign every page, any of its pages.
except the last, on the left margin in the b) Correlative numbering in letter means
presence of the witnesses; “One,” “Two,” “Three,” etc. but “A,”
“B,” “C,” would be sufficient, or “Page
NOTES: 1,” “Page 2,” “Page 3,” or even plain
a) The law says “page” not sheet. (A sheet “1,” “2,” or “3,” since this would
has two pages, the front and reverse amount to substantial compliance with
sides; if both are used, both must be the law.
paged). (In Re Estate of Saguinsin, 41 c) It is not necessary to number the first
Phil. 875). page nor even the last page as long as,

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 CIVIL LAW

for example, said page, in its attestation present, said signature will be
clause states that “the will consists of treated as mere surplusage.
three pages, besides this one” for here, iv. the witnesses are not required to
it is evident that the last page is really know the language of the attestation
the fourth page. clause. It is sufficient that it be
7) Must contain an Attestation clause which translated to them.
expressly states the following: v. Purposes of the attestation clause
a) The number of pages used upon which  To preserve in permanent form a
the will is written; record of the facts attending the
b) The fact that the testator signed the will execution of the will so that in case
and every page thereof, or caused some of failure of the memory of the
other person to write his name, under subscribing witnesses, or any
his express direction, in the presence of other casualty, they may still be
the instrumental witnesses; proved.
c) The fact that the witnesses witnessed  To render available proof that
and signed the will and all the pages there has been a compliance with
thereof in the presence of the testator the statutory requisites for the
and of one another (Art. 805, par. 3, execution of the will.
NCC).  And, incidentally, to minimize the
commission of fraud or undue
NOTES: influence.
i. The absence of the attestation clause 8) Must be acknowledged before a Notary
is a fatal defect. if the attestation public by the testator and the witnesses (Art.
clause is not signed by the attesting 806, NCC).
witnesses at the bottom thereof, the
will is void since omission negates NOTES:
the participation of said witnesses. a) Acknowledgment – the act of one who
ii. While Art. 809 requires mere has executed a deed in going before
substantial compliance still the some competent officer or court and
failure of the attestation clause to declaring it to be his act or deed. It
state the number of pages is a fatal involves an extra-step undertaken
defect. However, even if not in the whereby the signor actually declares to
attestation itself, if the number of the notary that the executor of the
pages is put down somewhere else in document has attested to the notary that
the will, as long as no evidence the same is his own free act and deed.
aliunde or extrinsic evidence is b) The certification of acknowledgement
required, there is deemed a need not be signed by the notary public
substantial compliance with the law. in the presence of the testator and the
iii. The attestation clause is an act of the witnesses (Javellana v. Ledesma, G.R.
witnesses, hence, it need not contain No. L-7179, June 30, 1955).
the signature of the testator. If c) A jurat is insufficient as the law requires
an acknowledgment executed by the

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 CIVIL LAW

party before a notary public, not a Q. What is the effect of substantial

declaration of the notary public. compliance?
d) The notary public before whom the will
was acknowledged cannot be ANS. A will is not rendered invalid by reason of
considered as the third instrumental defects or imperfections in the form of
witness since he cannot acknowledge attestation or in the language used therein. In
before himself having signed the will. the absence of bad faith, forgery, or fraud, or
undue and improper pressure and influence,
Q. What are the formal requirements when defects and imperfections in the form of
testator is deaf, or a deaf-mute? attestation or in the language used therein shall
not render the will invalid if it is proved that the
ANS. will was in fact executed and attested in
1) Testator must personally read the will substantial compliance with all the
2) If he cannot read the will (illiterate), two requirements of Art. 805 (Art. 809, NCC).
persons must communicate its contents to
him. Q. What are the qualifications of witnesses to
notarial wills?
NOTE:
a) The two persons designated need not be ANS. At the time of attesting, the witness must:
the attesting witnesses. 1) Of Sound mind.
b) In a case involving an illiterate testator, 2) At least 18 years of age.
it was held that the fact that the will had 3) Able to read and write
been read to him, need not be stated in 4) Not Blind, deaf or dumb
the attestation, and that it is sufficient if NOTE: While a blind or deaf may not be a
this fact is proved during the probate witness, he could be a testator in a notarial
proceedings. (Mascarin v. Angeles, et will
al., L-1323, June 30, 1948). 5) Not have been Convicted by final
c) That this Article has been complied judgment of falsification of a document,
with must be proved in the probate perjury or false testimony.
proceedings. 6) Domiciled in the Philippines – his habitual
residence must be in the Philippines
Q. What are the formal requirements when
testator is blind? Q. What is the effect of Subsequent incapacity
of a witness?
ANS. The will shall be read to the testator twice:
a) once by one of the subscribing ANS. Subsequent incapacity is immaterial. If
witnesses; and the witness is incapacitated to testify at the time
b) once by the notary public. of probate, he cannot testify as a witness. This
does not mean, however, that the validity of the
will is impaired by such fact.

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Q. Define holographic will. dispositions or probable property

dispositions cannot be considered a valid
ANS. A holographic will is one entirely written, holographic will.
dated, and signed by the hand of the testator. 6) It must be executed at the time that
(Caneda v. CA, 41 SCAD 968 [1993]). holographic wills are allowed, not before, the
time of death being immaterial.
Q. What are the formalities required in the
execution of a holographic will? Q. What are the rules for the probate of
holographic will?
ANS.
1) The language must be known to the testator. ANS. In the post mortem probate of holographic
2) The will must be entirely written by the hand wills, the following rules are to be observed as
of the testator himself. to the number of witnesses to be presented:
3) The will must be dated. a) If the will is not contested, it shall be necessary
that at least one witness who knows the
NOTE: handwriting and signature of the testator
a) The will must be dated so that in case of explicitly declares that the will and the
signature are in the handwriting of the
a revision of the Will, that of later date
testator.
should be preferred as expressing truly
the last Will and testament. b) If the will is contested, at least three of such
b) Date in the holographic Will is a witnesses shall be required to explicitly
declare that the signature in the will is the
mandatory requisite.
genuine signature of the testator.
c) The date must be in the handwriting of
the testator, hence, if printed, the whole c) In the absence of any competent witness and if
Will is null and void. the court deems it necessary, expert testimony
d) The date must be complete, that is, it may be resorted to (Art. 811, NCC).
must contain the year, month, and day.
e) Generally, the date should be the true Q. What are the rules regarding dispositions
one, an incorrect date, as long as it was written below the signature?
made in good faith, does not invalidate
the will. ANS. Dispositions after the signature must be
4) The will must be SIGNED by the testator both dated and signed by the testator to be
himself. valid. If signed but not dated, or if dated but not
a) The full or customary signature is signed, the additional dispositions are void, for
needed, hence, the full name is not lack of an essential requisite. Said dispositions
required. are really considered independent of the will
b) The signature must appear at the end of itself.
the will.
5) There must be animus testandi. Therefore, a
will in the form of a letter is all right, as long
as the intent to leave a will is clear, but a letter
which incidentally contains testamentary

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Q. What are the rules for curing defects in a Q. What are the effects of insertion written by
holographic will? another person on the validity of a
holographic will?
ANS.
1) If the last disposition is SIGNED and DATED ANS.Made Effect
a) preceding dispositions which are When made Effect
SIGNED but NOT DATED are After the Insertion
validated. execution, considered not
b) preceding dispositions which are NOT without consent of written. Validity
SIGNED but DATED are VOID. testator cannot be
c) preceding dispositions which are NOT defeated by the
SIGNED and NOT DATED are VOID, malice or caprice
unless written on the SAME date and of a third person
occasion as the latter disposition. After execution, Will is valid,
2) The discussion in (1) presupposes that the with consent insertion is void
latter disposition was DATED and SIGNED Contemporaneous Will is void
by the testator HIMSELF. to the execution of because it is not
a) if done by ANOTHER, without the the will written entirely
testator’s consent, same will not affect by the testator
the previous dispositions, which
remain VOID if in themselves VOID;
and remain VALID if in themselves Q. Define reciprocal or mutual wills.
VALID.
b) if done by ANOTHER with the ANS. Reciprocal or mutual wills are those that
testator’s CONSENT, same effects as provide that the survivor of the testators will
(1), because the latter disposition is not succeed to all or some of the properties of the
really HOLOGRAPHIC (not done by decedent.
the testator himself).
NOTE: Mutual wills or reciprocal wills by
Q. What is required in case of alterations? themselves are VALID, but if made in one
instrument, they are void, not because they are
ANS. In case of any insertion, cancellation, reciprocal, but because they are joint
erasure or alteration in a holographic will, the
testator must authenticate the same by his full Q. What are the reasons why joint wills are
signature. (Art. 814, NCC) void?

ANS.
a) To allow as much as possible SECRECY, a
will being a purely personal act.
b) To prevent undue influence by the more
aggressive testator on the other. (Dacanay v.
Florendo, et al., 48 O.G. 81.).

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c) In case of death of the testators at different 3) It must be identified by clear and satisfactory
times, probate would be harder. proof as the document or paper referred to
d) It militates against the right of a testator to therein
revoke his will at any time. 4) It must be signed by the testator and the
e) In case of a husband and wife, one may be (same instrumental) witnesses on each and
tempted to kill the other. every page, except in case of voluminous
books of account or inventories.
Codicils and Incorporation by Reference

Q. Define codicil. Revocation of Wills and Testamentary

Dispositions
ANS. A codicil is a supplement or addition to a
will, made after the execution of a will and Q. When may a Will be revoked?
annexed to be taken as a part thereof, by which
any disposition made in the original will is ANS. A will may be revoked by the testator at
explained, added to, or altered. (Art. 825, NCC) any time before his death. Any waiver or
restriction of this right is void. (Art. 828, NCC)
Q. What is the rule in case of conflict between
will and codicil? Q. What law shall govern when there are
conflicts rule for revocation of wills?
ANS. In case of conflict between a will and a
codicil, it is understood that the latter should ANS.
prevail, it being the later expression of the 1) For revocation OUTSIDE the Philippines.
testator’s wishes. a) If not domiciled in the Philippines —
i. follow law of place where will was
Q. How shall a codicil be made effective? MADE
ii. or follow law of place where
ANS. In order that a codicil may be effective, it testator was DOMICILED at the
shall be executed as in the case of a will. (Art. time.
826, NCC) b) If domiciled in the Philippines (not
provided for in the law) —
Q. What are the requisites for validity of i. follow law of the Philippines
documents incorporated by reference? (since his domicile is here) —
ii. or follow the general rule of lex
ANS. loci celebrationis of the
1) The document or paper referred to in the will REVOCATION. (Art. 17, NCC).
must be in existence at the time of the 2) If revocation is IN the Philippines, follow
execution of the will. Philippine law.
2) The will must clearly describe and identify
(locations, general appearance) the same, NOTE: This is true whether or not the
stating among other things, the number of domicile is in the Philippines.
pages thereof.

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Q. What are the modes of revocation? 5) The revocation must be done by the testator
himself, or by some other person in his
ANS. presence and by his express direction.
1) By implication of law; or
2) By some will, codicil, or other writing Q. What is the effect of a revocation based on
executed as provided in case of wills; or false or illegal cause?
3) By burning, tearing, cancelling, or
obliterating the will with the intention of ANS. A revocation of a will based on a false
revoking it, by the testator himself, or by cause or an illegal cause is null and void. (Art.
some other person in his presence, and by his 833, NCC)
express direction. If burned, torn, cancelled,
or obliterated by some other person, without Q. What is the effect of revocation on the
the express direction of the testator, the will recognition of an illegitimate child?
may still be established, and the estate
distributed in accordance therewith, if its ANS. The recognition of an illegitimate child
contents, and due execution, and the fact of does not lose its legal effect, even though the
its unauthorized destruction, cancellation, or will wherein it was made should be revoked.
obliteration are established according to the (Art. 834, NCC)
Rules of Court. (Art. 839, NCC)
Q. What is the Principle of Instanter?
Q. What is revocation by implication of law?
ANS.
ANS. It is the kind of revocation produced by 1) The express revocation of the 1st will renders
OPERATION of LAW when certain acts or it void because the revocatory clause of the
events take place after a will has been made, 2nd will, not being testamentary in character,
rendering void or useless either the whole will operates to revoke the 1st will instantly upon
or certain testamentary dispositions therein. the execution of the will containing it.
2) In implied revocation, the first will is not
Q. What are the requisites of revocation by an instantly revoked by the second will because
overt act? the inconsistent testamentary dispositions of
the latter do not take effect immediately but
ANS. only after the death of the testator.
1) There must be an overt act specified by the The fact that the subsequent will is posterior
law. and incompatible with the first does not
2) There must be a completion at least of the mean that the first is entirely revoked
subjective phase of the overt act. because the revocation may be total or
3) There must be animus revocandi or intent to partial. Therefore, it is possible for a prior
revoke. will to subsist with a subsequent will even if
4) The testator at the time of revoking must have they are incompatible.
capacity to make a will.
NOTE: In case of inconsistent wills, the
subsequent will prevails over the prior will

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because it is the latest expression of

testamentary intent of the testator. Republication and Revival of Wills
A revocation made in a subsequent will shall
take effect even if the new will should
become inoperative by reason of the Q. How is republication made?
incapacity of the heirs, devisees or legatees
designated therein, or by their renunciation ANS. Republication may be made by:
(Art. 832, NCC). a) re-execution of the original will (the
original provisions are COPIED)
Q. What is the Doctrine of Dependent Relative b) execution of a codicil (also known as
Revocation? implied republication). (See Art. 836,
NCC).
ANS. Where the testator’s act of destruction is
connected with the making of another will, so as Q. What are the effects of republication by
fairly to raise the inference that the testator virtue of a codicil?
meant the revocation of the old to depend upon
the efficacy of the new disposition, the ANS.
revocation will be conditional and dependent a) The codicil revives the previous will.
upon the efficacy of the new disposition; and if, b) The old will is republished as of the date of
for any reason, the new will intended to be the codicil — makes it speak, as it were, from
made as a substitute is inoperative, the the new and later date.
revocation fails and the original will remains in
full force. NOTE: In case some parts of the will are
But a mere intent to make at some time a will in revoked by the codicil, those still remaining
place of that which is destroyed will not render speak as of the date of the codicil.
the destruction conditional. It must appear that c) A will republished by a codicil is governed
the revocation is dependent upon the valid by a statute enacted subsequent to the
execution of a new will. execution of the will, but which was
The theory on which this principle is predicated operative when the codicil was executed.
is that the testator did not intend to die intestate.
And this intention is clearly manifest when he
executed two wills on two different occasions Q. Distinguish republication from revival.
and instituted his wife as his universal heir.
There can therefore be no mistake as to his ANS.
intention of dying testate (Molo v. Molo, G.R. Republication Revival
No. L-2538, September 21, 1951). Takes place by an Takes place by
act of the testator operation of law
NOTE: Failure of the new testamentary Corrects extrinsic Restores a
disposition upon whose validity the revocation and intrinsic revoked will
depends is equivalent to the non-fulfillment of defects
a suspensive condition and thus prevents the
revocation of the original will.

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Allowance and Disallowance of Wills 2) If the testator was insane, or otherwise

mentally incapable of making a will, at the
Q. Define probate. time of its execution;
3) If it was executed through force or under
ANS. Probate is the act of proving before a duress, or the influence of fear, or threats;
competent court the due execution of a will by a 4) If it was procured by undue and improper
person possessed of testamentary capacity, as pressure and influence, on the part of the
well as approval thereof by said court. beneficiary or of some other person;
Probate is one thing; the validity of the 5) If the signature of the testator was
testamentary provisions is another. The first procured by fraud;
decides the execution of the document and the 6) If the testator acted by mistake or did not
testamentary capacity of the testator; the second intend that the instrument he signed
deals with descent and distribution. (Sumilang should be his will at the time of affixing his
v. Ramagosa, L-23135, Dec. 26, 1967). signature thereto. (Art. 839, NCC)

Q. What are the kinds of probate? Q. What are the distinctions between
revocation and disallowance.
ANS.
1) Post-mortem - Probate after the testator’s ANS.
death Revocation Disallowance
2) Ante-mortem - Probate during the testator’s Voluntary act of the Given by judicial
lifetime (this does not prevent the testator testator decree
from revoking his probated will or from With or without Must always be for
making another one). cause a legal cause
May be partial or Always total, except
Q. What are the matters that should be brought total when the ground is
up before the probate court? fraud or influence
which affects only
ANS. certain portions of
1) determination of heirs; the will
2) proof of filiation;
3) determination of estate of decedent; and 2. Institution of heirs
4) claims thereto.
Q. Define ‘institution of heir’.
Q. What are the grounds for disallowance of a
will? ANS. Institution of heir is an act by virtue of
which a testator designates in his will the person
ANS. The will shall be disallowed in any of the or persons who are to succeed him in his
following cases: property and transmissible rights and
1) If the formalities required by law have not obligations. (Art. 840, NCC)
been complied with;

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Q. What are the requisites for a valid Q. What is the effect of an error in the
institution? designation?

ANS. ANS. An error in the name, surname, or

1) The will must be EXTRINSICALLY VALID. circumstances of the heir shall not vitiate the
(The testator must be capacitated, the institution when it is possible, in any other
formalities must be observed, there must be manner, to know with certainty the person
no vitiated consent, the will must have been instituted. (Art. 844, NCC)
duly probated, the will must have been the Mere error in designation of name or
personal act of the testator.) circumstances is NOT important as long as the
2) The institution must be valid intent is clear, and there is positive
INTRINSICALLY. (The legitime must not be identification.
impaired, the heir must be certain or
ascertainable; there should be no preterition). Q. What is the rule in disposition in favor of
3) The institution must be EFFECTIVE (no an unknown person?
predecease, no repudiation by the heir, no
incapacity of the heir). ANS. Every disposition in favor of an unknown
person shall be void.
Q. What are the rules for freedom of Exceptions:
disposition of estate? 1) If the identity can become certain by some
event or circumstance, the disposition is
ANS. valid. It is important, however, that the
1) If one has no compulsory heirs: event or circumstance must appear in the
a) He can give his estate or any portion will itself; it cannot be shown by extrinsic
thereof to anybody qualified to inherit evidence, either oral or documentary.
from him (his corpse cannot be given 2) A disposition in favor of a definite class or
except for scientific or educational group of persons shall be valid.
purposes). Evidence aliunde CANNOT be presented
b) BUT he must respect the restrictions to identify the unknown person. The
imposed by special laws. determinate event or circumstance,
2) If one has compulsory heirs (those who sufficient to indicate with certainty the
cannot be deprived of their legitimes, like a person whom the testator wants to favor,
legitimate child, or an acknowledged natural must appear in the will itself; it cannot be
child) — shown by extrinsic evidence, either oral or
a) he must respect the legitimes (unless documentary.
there be a valid cause for an express If there is merely a latent ambiguity as to
disinheritance); the identity of the heir, extrinsic evidence
b) the free portion can, however, be given other than the oral declaration of the
to anybody (including the compulsory testator may be used, but if his identity is
heirs), provided always that restrictions unknown, extrinsic evidence is not
of special laws are complied with. allowed.

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Q. What are the principles in the institution of

heirs? Q. What is the effect of an institution to a part
of the estate?
ANS.
1) Equality – heirs who are instituted without a ANS. If the testator has instituted only one heir,
designation of shares inherit in equal parts. and the institution is limited to an aliquot part
of the inheritance, legal succession takes place
NOTE: Applies only when the heirs are of the with respect to the remainder of the estate.
same class or same juridical condition and The same rule applies, if the testator has
involves only the free portion. instituted several heirs each being limited to an
As between a compulsory heir and a aliquot part, and all the parts do not cover the
voluntary heir and they are instituted whole inheritance. (Art. 851, NCC)
without any designation of shares, the
legitime must first be respected and the free Preterition
portion shall then be equally divided
between them. Q. What is preterition?
2) Individuality – heirs collectively instituted
are deemed individually instituted unless ANS. Preterition or pretermission is the
contrary intent is proven. omission, whether intentional or not, of a
NOTE: Art. 847 of the NCC provides that compulsory heir in the inheritance of a person.
when the testator institutes some heirs
individually and others collectively as when Q. What are the requisites of preterition?
he says, “I designate my heirs A and B, and
the children or C,” those collectively ANS.
designated shall be considered as 1) There is a TOTAL omission in the
individually instituted, unless it clearly inheritance;
appears that the intention of the testator was 2) The omission must be of a COMPULSORY
otherwise. heir;
3) Simultaneity – when several heirs are 3) The compulsory heir omitted must be in the
instituted, they are instituted simultaneously DIRECT line.
and not successively, unless the contrary is
proved. Q. What are the effects of preterition?

Q. What is the effect of institution of heir ANS.

based on a false cause? a) The institution of heirs is annulled
b) Although the institution of heirs is indeed
ANS. The statement of a false cause for the annulled, the legacies and devises shall
institution of an heir shall be considered as not remain valid insofar as they are not
written, unless it appears from the will that the inofficious. (In other words, they are not
testator would not have made such institution if voided, but merely reducible if the legitime
he had known the falsity of such cause. (Art. has been impaired).
850, NCC)

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Q. Where shall the share of omitted heir be his affection and deserving of his bounty
taken? than intestate heirs.

ANS. The share of a child or descendant omitted Q. What are the kinds of substitution?
in a will must first be taken from the part of the
estate not disposed of by the will, if any; if that ANS. Substitution of heirs may be:
is not sufficient, so much as may be necessary 1) Simple or common;
must be taken proportionally from the shares of  The testator may designate one or more
the other compulsory heirs. (Art. 855, NCC) persons to substitute the heir or heirs
instituted in case such heir or heirs
Q. What are the effects in case an heir should die before him, or should not
predeceased the testator? wish, or should be incapacitated to
accept the inheritance.
ANS.  A simple substitution, without a
a) A voluntary heir who dies before the testator statement of the cases to which it refers,
transmits nothing to his heirs. shall comprise the three mentioned in
b) A compulsory heir who dies before the the preceding paragraph, unless the
testator, a person incapacitated to succeed, testator has otherwise provided. (Art.
and one who renounces the inheritance, shall 859, NCC)
transmit no right to his own heirs except in 2) Brief or compendious;
cases expressly provided for in this Code. a) Brief – Two or more persons were
(Art. 856, NCC) designated by the testator to substitute
for only one heir
3. Substitution of heirs b) Compendious – One person is
designated to take the place of two or
Q. What is substitution? more heirs
3) Reciprocal;
ANS. Substitution is the appointment of another  If heirs instituted in unequal shares should
heir so that he may enter into the inheritance in be reciprocally substituted, the substitute
default of the heir originally instituted. (Art. shall acquire the share of the heir who dies,
857, NCC) renounces, or is incapacitated, unless it
clearly appears that the intention of the
Q. What are the purposes of substitution? testator was otherwise. If there are more
than one substitute, they shall have the
ANS. Substitution was devised in order: same share in the substitution as in the
a) to prevent the property from falling into the institution. (Art. 861, NCC)
ownership of people not desired by the 4) Fideicommissary. (Art. 858, NCC)
testator.  A fideicommissary substitution by
b) to prevent the effects of intestate succession. virtue of which the fiduciary or first heir
c) to allow the testator greater freedom to help instituted is entrusted with the
or reward those who by reason of services obligation to preserve and to transmit to
rendered to the testator, are more worthy of a second heir the whole or part of the

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inheritance, shall be valid and shall take The second heir shall acquire a right to the
effect, provided such substitution does succession from the time of the testator’s
not go beyond one degree from the heir death, even though he should die before the
originally instituted, and provided fiduciary. The right of the second heir shall
further, that the fiduciary or first heir pass to his heirs. (Art. 866, NCC)
and the second heir are living at the b) While it is permissible for the second heir to
time of the death of the testator. (Art. predecease the first heir, neither must
863, NCC) predecease the testator.

Q. What are the requisites of fideicommissary Q. What is the effect of nullity of

substitution? fideicommissary substitution?

ANS. ANS. The nullity of the fideicommissary

a) There must be a FIRST HEIR called primarily substitution does not prejudice the validity of
or preferentially to the enjoyment of the the institution of the heirs first designated; the
property. fideicommissary clause shall simply be
b) There must be an obligation clearly imposed considered as not written. (Art. 868, NCC)
upon him to preserve and transmit to a third
person the whole or part of the inheritance 4. Conditional testamentary dispositions and
(part only if the substitution refers merely to testamentary dispositions with a term
that part).
c) A SECOND HEIR. Q. What are the kinds of testamentary
d) The 1st and the 2nd heirs must be only one dispositions?
degree apart. (Art. 863, NCC).
e) Both heirs must be alive (or at least ANS.
conceived) at the time of the testator’s death. 1) Conditional (Art. 871, NCC)
(Art. 863). Condition is a future or uncertain event, or a
past event unknown to the parties, upon
NOTE: A conceived child is already which the performance of an obligation
considered born for all purposes favorable to depends.
it. 2) Dispositions with a term (Art. 885, NCC)
f) Must be made in an EXPRESS manner. Term is the day or time when an obligation
g) Must not burden the legitime. either becomes demandable or terminates.
h) Must not be conditional. 3) Dispositions with a mode/modal dispositions
(Art. 882, NCC)
Q. What are the rules in case the second heir Modal institution —
predeceases the fiduciary? a) when the institution of an heir is made,
for a certain purpose or cause. (Art. 871,
ANS. NCC).
a) The second heir inherits, not from the first b) the statement of the object of the
heir, but from the testator. institution or the application of the
property left by the testator or the

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charge imposed upon him. (Art. 882, Q. What is the rule applicable regarding
NCC). potestative conditions?
NOTE: Such statement shall not be
considered a condition unless it appears ANS. Any purely potestative condition
that such was his intention. (Art. 882, imposed upon an heir must be fulfilled by him
NCC). as soon as he learns of the testator’s death.
c) “modo” also signifies every onerous Exception: This rule shall not apply when the
disposition by which the obligor condition, already complied with, cannot be
imposed upon another and thus limited fulfilled again. (Art. 876)
his promise, such as demanding a loan
in exchange for what the other person Q. Define ‘casual condition’ and ‘mixed
receive. condition’.

Q. What are the prohibited conditions? ANS. A condition is casual if it depends upon
chance and/or upon the will of a third person.
ANS. A condition is mixed if it depends partly both
a) Any charge, condition or substitution upon the will of the heir himself AND upon
whatsoever upon the legitimes (Art. 872, chance and/or the will of a third person.
NCC)
b) Impossible and illegal conditions (Art. 873, Q. What is the effect of substantial or
NCC) constructive compliance?
c) Absolute condition not to contract a first
marriage (Art. 874, NCC) ANS. Substantial or constructive compliance
d) Absolute condition not to contract a (“tried his best”) is sufficient for potestative
subsequent marriage unless imposed on the conditions; it is also sufficient for mixed
widow or widower by the deceased spouse, conditions when non-fulfillment is caused by a
or by the latter’s ascendants or descendants person interested in the non-fulfillment. In
(Art. 874, NCC) other cases, however, there must be actual, not
e) Scriptura captatoria or legacy-hunting merely constructive compliance.
dispositions - dispositions made upon the
condition that the heir shall make some Q. What is the effect of a suspensive
provision in his will in favour of the testator condition?
or of any other person (Art. 875, NCC)
Effect: Entire disposition is void. ANS.
1) Heir, devisee, or legatee acquires no rights
Q. What is a potestative condition? until the condition is fulfilled.
2) If he dies before the condition is fulfilled, he
ANS. A potestative condition is one the transmits no rights to his heirs, even though
fulfillment of which depends purely on the heir. he survived the testator.
He must perform it personally. 3) Once the condition is fulfilled, its effects
retroact to the moment of the death of the
testator.

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Reason: Capacity to succeed by the Q. Define ‘Caucion Muciana.’

conditional heir must be determined both at
the time of the death of the testator and at the ANS. It is a security to guarantee the return of
time of the fulfillment of the condition. the value of property, fruits, and interests, in
4) If the suspensive condition is not fulfilled, the case of contravention of condition, term or
estate will be placed under administration mode.
until:
a) The condition is fulfilled, in which case Q. What are the instances when caucion
the estate should be given to the muciana is needed?
instituted heir;
b) It becomes obvious that it cannot be ANS.
fulfilled, in which case, the estate 1) Suspensive term – the legal heir shall be
should be given to the intestate heirs. considered as called to the succession until
the arrival of the period. But he shall not
Q. What is the effect of suspensive term? enter into possession of the property until
after having given sufficient security, with
ANS. A suspensive term is one that merely the intervention of the instituted heir [NCC,
suspends the demandability of a right. It is sure Art. 885 (2)].
to happen. 2) Negative potestative condition – If the
potestative condition imposed upon the heir
Q. What is the distinction between a term and is negative, or consists in not doing or not
a condition? giving something, he shall comply by giving
a security that he will not do or give that
ANS. The classic distinction between a term and which has been prohibited by the testator,
a condition is that a term is sure to happen, and that in case of contravention he will
while a condition may or may not happen. return whatever he may have received,
together with its fruits and interests (Art. 879,
Q. What is a negative potestative condition? NCC)

ANS. Negative potestative condition consists in NOTE: If the heirs do not post the required
the non-performance of an act or not giving bond in case of a suspensive term or a
something and he shall comply by giving a negative potestative condition, the estate
security that he will not do or give that which shall be placed under administration (Art.
has been prohibited by the testator (Art. 879, 880, NCC).
NCC). In this case, the heir instituted has a right 3) Mode – That which has been left in this
to receive his share in the inheritance upon the manner may be claimed at once provided
death of the testator and loses his right only that the instituted heir or his heirs give
when he violates the condition. security for compliance with the wishes of
the testator and for the return of anything he
or they may receive, together with its fruits
and interests, if he or they should disregard
this obligation (Art. 882, NCC).

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5. Legitime Q. What are the rules governing succession in

the direct descending line?
Q. Define legitime.
ANS.
ANS. Legitime is that part of the testator’s 1) Rule on preference between lines–
property which he cannot dispose of because descending line is preferred over the
the law has reserved it for certain heirs who are, ascending line
therefore, called compulsory heirs. (Art. 886, 2) Rule on proximity– the nearer excludes the
NCC) more remote
3) Right on representation, in case of
Q. How to determine legitime? predecease, incapacity and disinheritance
4) If all the legitimate children repudiate their
ANS. To determine the legitime, the value of the legitimes, the next generation of legitimate
property left at the death of the testator shall be descendants, succeed in their own right.
considered, deducting all debts and charges,
which shall not include those imposed in the Q. What are the rules governing succession in
will. the ascending line?
Donations given to children shall be charged to
the legitime (Art. 908, NCC). ANS.
1) Rule of proximity– the nearer excludes the
Q. What are the kinds of legitime? more remote
2) Division by line
ANS. 3) Equal division within the line
1) Fixed – If the amount (fractional part) does
not vary or change regardless of whether Q. What are the rules governing donations
there are concurring compulsory heirs or not. made by the testator?
a) legitimate children and descendants
(legitimate children’s legitime is always ANS.
½) (2003, 2005, 2010 BAR) 1) Donations given to children shall be charged
b) legitimate parents and ascendants to their legitimes (Art. 909 par. 1, NCC).
(When there are no legitimate children 2) Donations made to strangers shall be charged
and descendants (Art. 887 (1), NCC). to that part of the estate of which the testator
2) Variable – If the amount changes or varies in could have disposed by his last will (Art. 909
accordance with whom the compulsory heir par. 2, NCC).
concur. 3) Insofar as they may be inofficious or may
exceed the disposable portion, they shall be
reduced according to the rules established by
this Code (Art. 909 par. 3, NCC).
4) Donations which an illegitimate child may
have received during the lifetime of his father
or mother shall be charged to his legitime.

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5) Should they exceed the portion that can be d) Other illegitimate children referred to
freely disposed of, they shall be reduced in in Article 287. (Art. 887, NCC)
the manner prescribed by this Code (Art. 910, NOTE: Illegitimate children, to be
NCC). compulsory heirs, must be recognized.
2) Secondary compulsory heirs:
Q. What are the remedies of a compulsory heir a) In default of the foregoing, legitimate
whose legitime has been impaired? parents and ascendants, with respect to
their legitimate children and
ANS. descendants;
1) In case of preterition – annulment of NOTE: The father or the mother of
institution of heir and reduction of devises illegitimate children is also a secondary
and legacies compulsory heir but only as provided
2) In case of partial impairment – completion of for in Art. 903.
legitime b) Concurring – Those who succeed
3) In case of inofficious donation – The together with the primary or secondary
renunciation or compromise of future compulsory heirs. E.g. Surviving
legitime is prohibited and considered null spouse and illegitimate children and
and void. descendants.

Q. What is the meaning of compulsory heirs? Q. Is an adopted child a compulsory heir?

ANS. Compulsory heirs are never compelled to ANS. Legitimate children include adopted
accept the legitime — they may accept or reject children and legitimated children.
— for no one can compel another to receive a Under R.A. 8552 or the Domestic Adoption
gift or an economic advantage. They are called Law, adopted children have the same rights
compulsory, only because the testator cannot granted to the legitimate children. Adopted
disregard them. children, for all intents and purposes are
considered as legitimate children. The
Q. What are the classes of compulsory heirs? relationship, however, does not extend to other
relatives of the adopter, thus, disqualifying the
ANS. There are two kinds of compulsory heirs: adopted from directly inheriting from the
1) Primary compulsory heirs – get their adopter’s ascendants.
legitime even in the presence of the other
primary compulsory heirs and even in the Since the adopted child enjoys successional
presence of the secondary compulsory heirs. rights as a legitimate child, then he excludes the
They are: adopter’s parents and ascendants.
a) Legitimate children and descendants,
with respect to their legitimate parents Formal or judicial adoption is necessary before
and ascendants; the adopted child can inherit from the adopter
b) The widow or widower; because adoption is a juridical act, a proceeding
c) Acknowledged natural children, and in rem, which creates between two persons a
natural children by legal fiction;

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relationship similar to that which results from previously as husband and wife (without
legitimate paternity and filiation. marriage) for more than five years. (Reason:
Suspicion of financial profit motive is more or
Q. What are the rules in case of legitimate and less erased because of the 5-year period.).
illegitimate children surviving together (with
or without the surviving spouse) Q. After the net hereditary estate has been
ascertained, what should be the order of
ANS. payment?
1) First, give the legitimes of the legitimate
children and of the surviving spouse (if any). ANS.
2) Secondly, give the legitimes of the 1) First, give the legitimes.
illegitimate children in proportion to the 2) Then the donations inter vivos.
legitime of the legitimate children (10, 5) — if 3) Then the preferred legacies and devises.
estate is SUFFICIENT (for in no case should 4) Then all other devises and legacies pro rata
the legitimes of the legitimate children and of (in case the estate is not sufficient).
the surviving spouse be reduced).
3) If estate is NOT SUFFICIENT, just give NOTE: The reduction should of course be made
whatever remains of the estate to the in the inverse order of payment.
illegitimate children.

Q. What is the rule if the surviving spouse is TABLE OF LEGITIMES

the only compulsory heir? WHEN SURVIVING SPOUSE ALONE
½ of the hereditary estate (Free portion =
ANS. ½)
General rule: Surviving spouse, if she is the Surviving spouse 1/3 of the
ONLY compulsory heir left, gets one-half. where the marriage hereditary estate
Exception: Surviving spouse gets one-third if: was solemnized (Free portion
a) the marriage was in articulo mortis; under articulo mortis =2/3)
b) the testator or testatrix died within three and the deceased
months from time of celebration of died within 3
marriage. (Applies only if it was the months from the
deceased who was the party in danger of time of marriage.
death at the time of the marriage; AND if NOTE: The deceased
the cause of death is the SAME as the was the spouse who
sickness, illness or injury existing at the was at the point of
time of the marriage — the purpose of death at the time of
the law being to avoid a marriage purely marriage (Tolentino,
for FINANCIAL GAIN.) Civil Code, 1992 ed.)
Surviving spouse ½ of the
Exception to exception: Surviving spouse gets where the marriage hereditary estate
one-half if despite presence of requirements was solemnized (Free portion =
under (exceptions), the couple had been living under articulo mortis ½)

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and the deceased each legitimate child

died within 3 months (if the free portion is
from the time of insufficient, the
marriage but the illegitimate children
parties have been shall divide the free
living as husband portion equally
and wife for more among themselves)
than 5 years prior to
the marriage. Free portion =
whatever remains
PRIMARY HEIRS CONCUR WITH
CONCURRING COMPULSORY CONCURRENCE AMONG
HEIRS (2005, 2010 BAR) CONCURRING COMPULSORY
One legitimate Legitimate child = ½ HEIRS
child and the of the hereditary Surviving spouse Surviving spouse =
surviving estate and illegitimate 1/3 of the hereditary
spouse children estate
Surviving spouse = ¼
of the hereditary Illegitimate children
estate = 1/3 of the
hereditary estate
Free portion = ¼ (Rabuya, 2009).
Two or more Legitimate children = One legitimate Legitimate child = ½
legitimate ½ of the hereditary child, the of the hereditary
children and the estate in equal surviving spouse, estate
surviving portions and illegitimate
spouse children Surviving spouse =
Surviving spouse = a ¼ of the hereditary
share equal to that of estate
each child
Illegitimate children
Free portion = = ½ of the share of
whatever remains each legitimate child
One legitimate Legitimate child = ½
child and of the hereditary Free portion =
illegitimate estate (if there are whatever remains
children several, they shall
divide the ½ share in NOTE: The share of
equal portions) the surviving
spouse shall have
Illegitimate children preference over
= ½ of the share of those of the

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illegitimate children SECONDARY HEIRS CONCUR

whose share may WITH COMPULSORY HEIRS
suffer reduction pro Legitimate Legitimate parents =
rata because there is parents and ½ of the hereditary
no preference as surviving estate
among themselves. spouse (1999
BAR) Surviving spouse = ¼
Two or more Legitimate children of the hereditary
legitimate = ½ of the hereditary estate
children, estate in equal
surviving spouse portions Free portion = ¼
and illegitimate Legitimate Legitimate parents =
children Surviving spouse = a parents and ½ of the hereditary
share equal to that illegitimate estate
of each legitimate children
child Illegitimate children =
¼ of the hereditary
estate in equal shares
Illegitimate children
= ½ of the share of
Free portion = ¼
each legitimate
Legitimate Legitimate parents =
child
parents, ½ of the hereditary
surviving estate
Free portion =
spouse, and
whatever remains
illegitimate Illegitimate children
children = ¼ of the hereditary
NOTE: The share of
estate in equal shares
the surviving
spouse shall have
Surviving spouse =
preference over
1/8 of the hereditary
those of the
estate
illegitimate children
whose share may
Free portion = 1/8
suffer reduction pro
Parents and Parents = excluded
rata because there is
children of the Children = ½ if
no preference as
Illegitimate legitimate and ½ of
among themselves.
Decedent the share of each
legitimate child if
illegitimate children

Free portion =
whatever remains

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Parents and Parents = ¼ of the ascendant or from a brother or sister by

surviving hereditary estate gratuitous title when the recipient does not give
spouse of the anything in return;
Illegitimate Surviving spouse = ¼ 2) That said descendant (praepositus) died
Decedent of the hereditary without an issue;
estate 3) That the same property (called “reserva”) is
inherited by another ascendant (called
Free portion = ½ “reservista”) by operation of law (either
through intestate or compulsory succession)
from the praepositus; and
Reserva Troncal 4) That there are living relatives within the third
degree counted from the praepositus and
Q. What is reserve troncal? belonging to the same line from where the
property originally came (called
ANS. The ascendant who inherits from his “reservatarios”) (NCC, Art. 891; Chua v. CFI
descendant any property which the latter may of Negros Occidental, G.R. No. L-29901,
have acquired by gratuitous title from another August 31, 1977; Rabuya, 2009).
ascendant, or a brother or sister, is obliged to
reserve such property as he may have acquired Q. Who is a propositus?
by operation of law for the benefit of relatives
who are within the third degree and who belong ANS. The propositus is the descendant (brother
to the line from which said property came. (Art. or sister) whose death gives rise to the reserva,
891, NCC) and from whom therefore the third degree is
counted.
Q. What are the purposes of reserva troncal?
Q. Who is a RESERVOR or RESERVISTA?
ANS.
1) “To keep the property in the family to which ANS. The reservor is the ascendant who inherits
the property belongs.” from the propositus by “operation of law.” It is
2) To prevent persons who are outsiders to the he who has the obligation to reserve.
family from acquiring, by chance or accident,
property which otherwise would have Q. Who are the RESERVEES or
remained with the said family. RESERVATARIOS?
3) To put back the property to the line from
which it originally came. ANS. The reservees are the relatives within the
third degree (from the propositus) who will
Q. What are the requisites that must exist in order become the full owners of the property the
that a property may be impressed with a reservable moment the reservor dies, because by such
character? death, the reserva is extinguished. The only
ANS. requisites for the passing of the title from the
reservista (reservor) to the reservatario
1) That the property was acquired by a descendant
(reservee) are: (1) death of the reservista; and (2)
(called “praepositus” or propositus) from an
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the fact that the reservista had survived the Q. Distinguish reserva minima from reserva
reservatario. (Cano v. Director of Lands, et al., maxima.
L-10701, Jan. 16, 1959).
ANS.
Q. When does the obligation to reserve cease? RESERVA RESERVA
MINIMA MAXIMA
ANS.
All of the All of the
1) Death of the reservor.
properties which properties which
2) Death of ALL the would-be reserves AHEAD
the descendant the descendant
of the reservor (reservista).
had previously had previously
3) LOSS of the reservable properties, provided
acquired by acquired by
the reservor had no fault or negligence.
gratuitous title gratuitous title
(Thus, LOSS must be ACCIDENTAL.)
from another from another
4) Prescription (as when the reservor or stranger
ascendant or from ascendant or from
holds property adversely against the
a brother or sister a brother or sister
reservees, as FREE from the reserva).
must be must be included
(Reservor — 30 years for real; 8 years for
considered as in the ascendants
personal property, because of his bad faith).
passing to the legitime insofar
5) Registration under the Torrens System as free
ascendant- as such legitime
from the reservation (without prejudice to
reservista partly can contain.
the liability of the reservor to the reservees).
by operation of
(However, while the property is still under
law and partly by
the name of the reservor, an action for
force of the
CONVEYANCE may be brought against his
descendant’s will.
estate after his death.)
6) Renunciation or waiver by ALL the reserves
AFTER the death of the reservor. (But the
renouncer’s share alone is affected; thus, if Disinheritance
only one or some of the reservees waive, the
others may still get the property.) Q. What is disinheritance?

NOTE: There can be NO VALID waiver ANS. Disinheritance is the process or act, thru a
while the reservor lives because such a testamentary disposition of depriving in a will
waiver is contrary to the nature and purpose any compulsory heir of his legitime for true and
of the reserva. lawful causes.

Q. What are the requisites for a valid

disinheritance?

ANS.
1) Must be made in a valid will. (Art. 916, NCC).

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2) Must be made expressly (Art. 918, NCC) c) a cause not given in the law (NOT LEGAL
(thus, disinheritance is NOT presumed). CAUSE)
3) Must be for a LEGAL CAUSE. (Art. 916,
NCC). The cause must be one authorized by Q. What are the effects of ineffective
law; hence, even if graver than those set forth disinheritance?
in the law, if it be not one of those
enumerated, the disinheritance will be ANS.
ineffective. a) The institution of heirs is annulled but only
4) Must be for a TRUE CAUSE. (Arts. 917 and insofar as it may prejudice the person
918, NCC). disinherited, that is, insofar as the legitime of
5) Must be for an EXISTING CAUSE therefore, said heir is impaired.
there can be no conditional or preventive b) The devises, legacies, and other testamentary
disinheritance; although the REVOCATION dispositions shall be valid to such extent as
of a DISINHERITANCE may be conditional. will not impair the legitime.
6) Must be TOTAL or COMPLETE (not partial).
7) The cause must be STATED in the WILL itself Q. What are the distinctions between
(Art. 918, NCC). preterition and valid disinheritance?
8) The heir disinherited must be clearly
identified, so that there will be no doubt as to ANS.
who is really being disinherited. Preterition VALID
9) The will must not have been revoked — at Disinheritance
least insofar as the disinheritance is Omission may be Always
concerned. either intentional intentional (thus,
or unintentional it is an express
Q. Who bears the burden of proving the truth (thus, it is an deprivation)
of the cause for disinheritance? implied
deprivation)
ANS. The burden of proving the truth of the May be with Cause must
cause for disinheritance shall rest upon the cause or without always be stated in
other heirs of the testator, if the disinherited heir cause the will; must be
should deny it. (Art. 917, NCC) true and legal
Annuls the Disinherited heir
Q. What are some cases where disinheritance institution; inherits
is considered invalid or ineffective or illegal? therefore the NOTHING (either
omitted heir by way of
ANS. inherits legitime, or by
a) without giving the cause (NO CAUSE way of free
STATED) portion)
b) a cause denied by the heir concerned and not May exist with or A will is always
proved by the instituted heir (NOT TRUE without a will (as required
CAUSE) when everything
has been given to

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only one of the Q. What are the sufficient causes for the
compulsory heirs disinheritance of children and descendants,
by way of legitimate as well as illegitimate?
donation inter
vivos). ANS. The following shall be sufficient causes for
The institution is May be VALID — the disinheritance of children and descendants,
always VOID — when all the legitimate as well as illegitimate:
except when the requirements of 1) When a child or descendant has been
preterited heir the law are found guilty of an attempt against the life
predeceases the followed. of the testator, his or her spouse,
testator. descendants, or ascendants;
2) When a child or descendant has accused
the testator of a crime for which the law
Q. What is the distinction between preterition prescribes imprisonment for six years or
and imperfect or ineffective Disinheritance? more, if the accusation has been found
groundless;
ANS. 3) When a child or descendant has been
Preterition Imperfect convicted of adultery or concubinage with
Disinheritance the spouse of the testator;
The institution of The institution remains 4) When a child or descendant by fraud,
heirs is completely valid, but must be violence, intimidation, or undue influence
annulled. reduced insofar as the causes the testator to make a will or to
legitime has been change one already made;
impaired. 5) A refusal without justifiable cause to
support the parent or ascendant who
disinherits such child or descendant;
Q. What are similarities between preterition 6) Maltreatment of the testator by word or
and imperfect or ineffective disinheritance? deed, by the child or descendant;
7) When a child or descendant leads a
ANS. dishonorable or disgraceful life;
a) In both cases, the omitted heir and the 8) Conviction of a crime which carries with it
imperfectly disinherited heir get at least their the penalty of civil interdiction. (Art. 919,
legitime. NCC)
b) In both cases, the legacies and devises remain
valid insofar as the legitime has not been Q. What are the sufficient causes for the
impaired. disinheritance of parents or ascendants,
c) Both refer to compulsory heirs. whether legitimate or illegitimate?

ANS. The following shall be sufficient causes for

the disinheritance of parents or ascendants,
whether legitimate or illegitimate:

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1) When the parents have abandoned their 3) When the spouse by fraud, violence,
children or induced their daughters to live intimidation, or undue influence causes
a corrupt or immoral life, or attempted the testator to make a will or to change one
against their virtue; already made;
2) When the parent or ascendant has been 4) When the spouse has given cause for legal
convicted of an attempt against the life of separation;
the testator, his or her spouse, 5) When the spouse has given grounds for
descendants, or ascendants; the loss of parental authority;
3) When the parent or ascendant has accused 6) Unjustifiable refusal to support the
the testator of a crime for which the law children or the other spouse. (Art. 921,
prescribes imprisonment for six years or NCC)
more, if the accusation has been found to
be false; Reconciliation
4) When the parent or ascendant has been
convicted of adultery or concubinage with Q. What is reconciliation?
the spouse of the testator;
5) When the parent or ascendant by fraud, ANS. Reconciliation is the mutual restoration of
violence, intimidation, or undue influence feelings to the status quo. It is indeed the
causes the testator to make a will or to resumption of friendly relations.
change one already made;
6) The loss of parental authority for causes Q. What are the effects of reconciliation?
specified in this Code;
7) The refusal to support the children or ANS.
descendants without justifiable cause; a) If no disinheritance has been made yet, no
8) An attempt by one of the parents against disinheritance can now be done. (Art. 922,
the life of the other, unless there has been NCC).
a reconciliation between them. (Art. 920, b) Disinheritance already made is rendered
NCC) INEFFECTUAL; in other words, it is as if
there had been no disinheritance at all.
Q. What are the sufficient causes for the
disinheritance of a spouse? Q. How is disinheritance be revoked?

ANS. The following shall be sufficient causes for ANS. Disinheritance is revoked by:
disinheriting a spouse: a) subsequent reconciliation;
1) When the spouse has been convicted of an b) the making of a new will making the
attempt against the life of the testator, his disinherited heir an instituted heir.
or her descendants, or ascendants;
2) When the spouse has accused the testator
of a crime for which the law prescribes
imprisonment for six years or more, and
the accusation has been found to be false;

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Legacies and Devices ANS.

a) Legacy proper — when the estate has the
Q. Define legacy and devise. duty to give the legacy.
b) Pre-legacy — when the duty is given to the
ANS. Legacy is a gift of personal property given estate but the gift is given to a specific heir or
in a will. Devise is a gift of real property given legatee.
in a will.
Q. What is the rule when heirs are charged
Q. Who has the duty of giving the legacies and with legacy or devise?
the devises?
ANS. When the testator charges one of the heirs
ANS. If no one is charged with this duty, it is the with a legacy or devise, he alone shall be bound.
estate which must give the legacies and devises. Should he not charge anyone in particular, all
The estate is of course represented by the shall be liable in the same proportion in which
executor, or the administrator with a will they may inherit. (Art. 926, NCC)
annexed. Compulsory heirs charged with a sub-legacy
are liable in proportion not to how much each
NOTE: actually inherits, but only in proportion to their
a) Under the Rules of Court, this officer is institution to the free disposal.
bound to discharge the devises and
legacies. (Rule 81, Sec. 1{b}). As a matter of Q. What is the rule when two or more heirs
fact, for this purpose of discharging, he take possession of the estate?
may even be authorized by the court to
alienate personal and real properties, in ANS. If two or more heirs take possession of the
order to obtain the money or things estate, they shall be solidarily liable for the loss
needed. (See Secs. 1 and 2, Rule 81, Rules or destruction of a thing devised or bequeathed,
of Court). even though only one of them should have been
b) If the testator gives this duty to the negligent. (Art. 927, NCC)
compulsory heirs, or to the legatees and
devisees, they must comply with their Q. What is the rule in case there is a grant of a
duties, subject to the limitations imposed part interest?
by law.
ANS. If the testator, heir, or legatee owns only a
NOTE: The testator is allowed to charge part of, or an interest in the thing bequeathed,
them with this duty because the right to the legacy or devise shall be understood limited
dispose presumes the right in general to to such part or interest, unless the testator
impose conditions for the dispositions. expressly declares that he gives the thing in its
entirety. (Art. 929, NCC)
Q. What are the classification of legacies and General rule — that only the part owned by the
devises according to the person or institution testator should be given — applies whether or
burdened?

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not the testator knew that somebody else partly

owned the property. Q. What is the rule if thing is pledged or
mortgaged?
Q. What is the rule in case there is an error in
ownership? ANS. The estate must free the property given
from:
ANS. The legacy or devise of a thing belonging a) pledges
to another person is void, if the testator b) mortgages
erroneously believed that the thing pertained to c) any other encumbrance or lien (like
him. But if the thing bequeathed, though not antichresis), if given to secure or guarantee
belonging to the testator when he made the will, a recoverable debt.
afterwards becomes his, by whatever title, the Exceptions:
disposition shall take effect. (Art. 930, NCC) i. if there be a contrary intention
ii. if the pledge or mortgage was given
Q. What is the rule in case the legacy or devise not to secure a recoverable debt, but
of a thing already belongs to recipient? to secure, for example, dutiful
performance of the functions of a
ANS. position or office.
The legacy or devise of a thing which at the time
of the execution of the will already belonged to Q. What are the remedies of a mortgagee if the
the legatee or devisee shall be ineffective, even mortgaged property is given as a devise to
though another person may have some interest somebody by the testator?
therein.
If the testator expressly orders that the thing be ANS. The mortgagee has three alternative
freed from such interest or encumbrance, the remedies:
legacy or devise shall be valid to that extent. 1) He can ABANDON his security (disregard
(Art. 932, NCC) the mortgage) and prosecute his claim for
his now unsecured credit be fore the
Q. What is the effect of alienation by legatee or probate court. He can then share in the
devisee? general distribution of the estate to the
various creditors.
ANS. If the thing bequeathed belonged to the
legatee or devisee at the time of the execution of NOTE: Here, the mortgagee creditor
the will, the legacy or devise shall be without naturally loses preference, and he can
effect, even though it may have been claim only as an ordinary creditor.
subsequently alienated by him. When the estate has paid off this, and
If the legatee or devisee acquires it gratuitously other credits, the devisee can now get the
after such time, he can claim nothing by virtue property unencumbered.
of the legacy or devise; but if it has been 2) He can FORECLOSE the mortgage or
acquired by onerous title he can demand realize upon the security by an ordinary
reimbursement from the heir or the estate. (Art. action in court making the executor or
933, NCC) administrator the party defendant (at this

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stage, he DISREGARDS the probate In the latter case, the creditor shall have the
proceeding). In case of a deficiency right to collect the excess, if any, of the credit or
judgment, he can prove such deficiency of the legacy or devise. (Art. 938, NCC)
judgment later in the probate court against
the estate of the deceased. Q. What is the order of preference for legacies
3) He can RELY on the mortgage ALONE and devises?
and foreclose at any time within the
statute of limitations (10 years from date of ANS. If the estate should not be sufficient to
maturity). In the meantime, he will NOT cover all the legacies or devises, their payment
receive any share in the distribution of the shall be made in the following order:
other assets of the estate. 1) Remuneratory legacies and devises;
2) Legacies or devises declared by the
NOTE: At any time however, the executor testator to be preferential;
or administrator may redeem the property 3) Legacies for support;
secured, under the direction of the court, if 4) Legacies for education;
the court deems this best for the interest of 5) Legacies or devises of a specific,
the estate. (Rule 86, Sec. 7, Rules of Court). determinate thing which forms a part of
the estate;
Q. What is a generic legacy of release or 6) All others, pro rata. (Art. 950, NCC)
remission of debts?
Q. What is the rule regarding the delivery of
ANS. A generic legacy of release or remission of legacy/devise?
debts comprises those existing at the time of the
execution of the will, but not subsequent ones ANS. The very thing bequeathed shall be
(Art. 937, NCC) delivered and not its value
The legacy of release or remission is either a) With all its accessions and accessories
generic or specific. It is generic when no b) In the condition in which it may be upon
particular debt is mentioned, i.e., when all debts the death of the testator
are remitted. The law states however that in c) Legacies of money must be paid in cash
such a case, only those existing at the time the (Art. 952, NCC)
will was made, should be included. Subsequent
ones are excluded. The legacy is specific when a Q. What is the effect of incapacity or
particular debt mentioned is the one remitted. repudiation?
Generic — includes all debts whether pure,
conditional, or with a term. ANS. If the legatee or devisee cannot or is
unwilling to accept the legacy or devise, or if the
Q. What is the rule of non-applicability of legacy or devise for any reason should become
legacy to credit? ineffective, it shall be merged into the mass of
the estate, except in cases of substitution and of
ANS. Legacy or devise made to a creditor shall the right of accretion. (Art. 956, NCC)
not be applied to his credit, unless the testator
so expressly declares.

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Q. When is legacy or devise without effect? 1) If a person dies without a will, or with a
void will, or one which has subsequently
ANS. lost its validity;
a) Testator transforms the thing such that it 2) When the will does not institute an heir to,
does not retain its original form or or dispose of all the property belonging to
denomination the testator. In such case, legal succession
b) Testator alienates the thing by any title or for shall take place only with respect to the
any cause. Reacquisition of the thing by the property of which the testator has not
testator does not make the legacy or devise disposed;
valid, unless it is effected by right of 3) If the suspensive condition attached to the
repurchase. institution of heir does not happen or is
c) Thing is totally lost during the lifetime or not fulfilled, or if the heir dies before the
after the death of the testator testator, or repudiates the inheritance,
d) Other causes: nullity of will, noncompliance there being no substitution, and no right of
with suspensive condition, sale of the thing accretion takes place;
to pay the debts of the deceased during the 4) When the heir instituted is incapable of
settlement of his estate. (Art. 957, NCC) succeeding, except in cases provided in
this Code. (Art. 960, NCC)

C. LEGAL OR INTESTATE NOTE: In all cases where there has been an

SUCCESSION institution of heirs, the following are applied
successively (ISRAI):
Q. Define legal or intestate succession. a) Institution of an heir (Bequest, in case
of legacies or devises);
ANS. Legal or intestate succession is that which b) Substitution, if proper;
is effected by operation of law in default of a c) Representation, if applicable;
will. d) Accretion, if applicable; or
It is legal because it takes place by operation of e) Intestacy, if all of the above are not
law; it is intestate because it takes place in the applicable.
absence or in default of a last will of the
decedent. The enumeration under Art. 960 is not
Legal succession is a mode of transmission exclusive. There are other causes for intestacy,
mortis causa which takes place in the absence of such as:
the expressed will of the decedent embodied in a) Preterition;
a testament (Tolentino). b) Arrival of the resolutory term or period;
c) Fulfillment of a resolutory condition
1. General provisions attached to the inheritance; and
d) Non-compliance or impossibility of
complying with the will of the testator.
Q. What are the instances when legal or
intestate succession operates?

ANS. Legal or intestate succession takes place:

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Q. What are the rules on exclusion and 7) Other collaterals

concurrence in intestate succession? a) Exclude collaterals in remoter degrees
and the State;
ANS. b) Concur with collaterals in the same
1) Legitimate children degree; and
a) Exclude parents, collaterals and State; c) Excluded by legitimate children,
b) Concur with surviving spouse and illegitimate children, legitimate parents,
illegitimate children; and illegitimate parents, surviving spouse,
c) Excluded by no one. brothers and sisters, and nephews and
2) Illegitimate children nieces.
a) Exclude illegitimate parents, collaterals 8) State
and State; a) Excludes no one;
b) Concur with surviving spouse, b) Concurs with no one; and
legitimate children, and legitimate c) Excluded by everyone. (Balane, 2010)
parents; and
c) Excluded by no one. Q. What is the rule of preference between
3) Legitimate parents lines?
a) Exclude collaterals and the State;
b) Concur with illegitimate children and ANS. Those in the direct descending line shall
surviving spouse; and exclude those in the direct ascending and
c) Excluded by legitimate children. collateral lines.
4) Illegitimate parents Those in the direct ascending line shall, in turn,
a) Exclude collaterals and State; exclude those in the collateral line.
b) Concur with surviving spouse; and
c) Excluded by legitimate children and Q. What is the Rule of Proximity?
illegitimate children.
5) Surviving spouse ANS. The relative nearest in degree excludes the
a) Excludes collaterals other than farther one (Art. 962(1), NCC), saving the right
brothers, sister, nephews and nieces, of representation when it properly takes place.
and State;
b) Concurs with legitimate children, Q. What is the Rule of Equal Division?
illegitimate children, legitimate parents,
illegitimate parents, brothers, sisters, ANS. The relatives who are in the same degree
nephews and nieces; shall inherit in equal shares (Arts
c) Excluded by no one. 962(2), 987 and 1006, NCC).
6) Brothers and sisters, nephews and nieces Exceptions: (Balane)
a) Exclude all other collaterals and the 1) Rule of preference between lines
State; 2) Distinction between legitimate and
b) Concur with surviving spouse; and illegitimate filiation. The ratio under the
c) Excluded by legitimate children, present law is 2:1 (Art 983, in relation to
illegitimate children, legitimate parents Art 895 as amended by Art 176, Family
and illegitimate parents. Code).

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3) Rule of division by line in the ascending the legitimate children and relatives of the
line (Art. 987 (2), NCC) father or mother of said illegitimate child. They
4) Distinction between full-blood and half may have a natural tie of blood, but this is not
blood relationship among brothers and recognized by law for the purpose of Art. 992.
sisters, as well as nephews and nieces Between the legitimate family and the
(Arts. 1006 and 1008, NCC) illegitimate family there is presumed to be an
5) Right of representation intervening antagonism and incompatibility—
the law recognizes this truth, by avoiding
Q. What is the rule of double share for full further ground of resentment (Diaz v. IAC, G.R.
blood collaterals? No. L-66574, February 21, 1990; Paguirigan,
2017).
ANS. When full and half blood brothers or The law on succession is animated by a uniform
sisters, nephews or nieces, survive, the full general intent, and no part should be rendered
blood shall take a portion in the inheritance inoperative by any other part as to produce a
double that of the half blood (Arts. 895 and 983, harmonious whole. The rule in Art. 992 of the
NCC). NCC has consistently been applied by the
NOTES: Supreme Court in several other cases. Thus:
a) If one of the legitimate ascendants, a) where the illegitimate child had half
illegitimate parents, legitimate children or brothers who were legitimate, the latter
illegitimate children survives, the brother, had no right to the former’s inheritance;
sisters, nephews, and nieces (BSNN) are b) the legitimate collateral relatives of the
excluded. mother cannot succeed from her
b) If one of the legitimate ascendants, illegitimate child;
illegitimate parents, legitimate children, c) a natural child cannot represent his
illegitimate children or surviving spouse natural father in the succession to the
survives, the other collateral relatives and estate of the legitimate grandparent;
the state are excluded. d) the natural daughter cannot succeed to the
c) If any of the heirs concur in legitimes, estate of her deceased uncle who is a
then they also concur in intestacy. legitimate brother of her natural father;
and
Q. What is the Barrier Rule or Iron Curtain e) an illegitimate child has no right to inherit
Rule? ab intestato from the legitimate children
and relatives of his father (Manuel vs.
ANS. An illegitimate child has no right to Ferrer, 247 SCRA 476, G.R. No. 117246
inherit ab intestato from the legitimate children August 21, 1995)
and relatives of his father or mother; nor shall
such children or relatives inherit in the same
manner from the illegitimate child. (Art. 992,
NCC)
Reason: Art. 992 provides a barrier or iron
curtain in that it absolutely prohibits intestate
succession between the illegitimate child and

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a. Relationship Q. If the inheritance is repudiated by the

nearest relative or by all the nearest relatives
Q. How is proximity of relationship called by law to succeed, may those of the
determined? following degree inherit?

ANS. Proximity of relationship is determined ANS. Yes. If the inheritance should be

by the number of generations. Each generation repudiated by the nearest relative, should there
forms a degree. (Art. 963, NCC) be one only, or by all the nearest relatives called
A series of degrees forms a line, which may be by law to succeed, should there be several, those
either direct or collateral. A direct line is that of the following degree shall inherit in their own
constituted by the series of degrees among right and cannot represent the person or
ascendants and descendants. A collateral line is persons repudiating the inheritance. (Art. 969,
that constituted by the series of degrees among NCC)
persons who are not ascendants and
descendants, but who come from a common
ancestor. (Art 964, NCC) b. Right of representation

Q. What is full blood relationship? Q. What is representation?

ANS. Full blood relationship is that existing ANS. Representation is a right created by fiction of
law, by virtue of which the representative is raised
between persons who have the same father and
to the place and the degree of the person
the same mother. (Art. 967, NCC)
represented, and acquires the rights which the latter
would have if he were living or if he could have
Q. What is half blood relationship? inherited. (Art. 970, NCC)
In order that representation may take place, it is
ANS. Half blood relationship is that existing necessary that the representative himself be
between persons who have the same father, but capable of succeeding the decedent (Art. 973,
not the same mother, or the same mother, but NCC)
not the same father. (Art. 967, NCC)
Q. What is the rule on the division of the estate
Q. If there are several relatives of the same in the case of succession by representation?
degree, and one or some of them are unwilling
or incapacitated to succeed, how will his ANS. Whenever there is succession by
portion be distributed? representation, the division of the estate shall be
made per stirpes, in such manner that the
ANS. If there are several relatives of the same representative or representatives shall not
degree, and one or some of them are unwilling inherit more than what the person they
or incapacitated to succeed, his portion shall represent would inherit, if he were living or
accrue to the others of the same degree, save the could inherit (Art. 974, NCC).
right of representation when it should take
place. (Art. 968, NCC)

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NOTE: Per stirpes means inheritance by group, Q. May an illegitimate sibling of the decedent
all those within the group inheriting in equal be represented?
shares.
ANS. Yes. An illegitimate sibling of the
Q. When does the right of representation decedent can be represented. An illegitimate
arise? brother or sister of the deceased can be
represented by his children, without prejudice
ANS. Right of representation arises by reason to the application of the Iron Curtain Rule
of: (Tolentino, Civil Code, 1992 ed., p. 451)
1) Predecease
2) Incapacity Q. Does the right of representation apply to
3) Disinheritance adopted children?

Q. When is the right of representation not ANS. No. The right of representation does not
available? apply to adopted children. The right of
representation cannot be invoked by adopted
ANS. Right of representation is not available in children because they cannot represent their
the following instances: adopting parents to the inheritance of the
1) As to compulsory heirs: In case of latter’s parents.
repudiation, the one who repudiates his Reason: The law does not create any
inheritance cannot be represented. Their relationship between the adopted child and the
own heirs inherit in their own right; and relatives of the adopting parents, not even to the
2) As to voluntary heirs: Voluntary heirs, biological or legitimate children of the adopting
legatees and devisees who either: parents.
a) Predecease the testator; or
b) Renounce the inheritance cannot be NOTE: Under R.A. 8552 or the Domestic
represented by their own heirs, with Adoption Law, the adopted child and the
respect to their supposed adopting parents have reciprocal successional
inheritance. rights.
In representation, the representative does not
inherit from the person represented but from Q. What is the rule on equal division of lines?
the decedent.
ANS. Intestate heirs equal in degree inherit in
In the collateral line, it takes place only in equal shares.
favor of the children of brothers or sisters, Exceptions:
whether they are full or half blood (Art. 972, a) In the ascending line, the rule of division
NCC). by line is ½ to the maternal line and ½ to
NOTE: This rule applies only when the the paternal line, and within each line, the
decedent does not have descendants. Also, an division is per capita;
illegitimate child can represent his father, b) In the collateral line, the full-blood
provided that the father was also illegitimate. brothers/sisters will get double that of the
half-blood; and

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c) The division in representation, where ANS. Whenever there is succession by

division is per stirpes – the representative representation, the division of the estate shall be
divides only the share pertaining to the made per stirpes, in such manner that the
person represented representative or representatives shall not
inherit more than what the person they
NOTE: Compulsory heirs shall, in no case, represent would inherit, if he were living or
inherit ab intestato less than their legitimes as could inherit. (Art. 974, NCC)
provided in testamentary succession.
Q. When children of one or more brothers or
Q. How is the representative called to the sisters of the deceased survive, how shall they
succession? inherit from the latter?

ANS. The representative is called to the ANS. When children of one or more brothers or
succession by the law and not by the person sisters of the deceased survive, they shall inherit
represented. The representative does not from the latter by representation, if they survive
succeed the person represented but the one with their uncles or aunts. But if they alone
whom the person represented would have survive, they shall inherit in equal portions.
succeeded. (Art. 971, NCC) (Art. 975, NCC)

Q. How does the right of representation take Q. May a person represent him whose
place? inheritance he has renounced?

ANS. The right of representation takes place in ANS. Yes. A person may represent him whose
the direct descending line, but never in the inheritance he has renounced. (Art. 976, NCC)
ascending.
In the collateral line, it takes place only in favor Q. May heirs who repudiate their share be
of the children of brothers or sisters, whether represented?
they be of the full or half blood. (Art. 972, NCC)
ANS. No. Heirs who repudiate their share may
Q. What is the requisite in order that not be represented. (Art 977, NCC)
representation may take place?

ANS. In order that representation may take Application of the Iron Curtain Rule and the
place, it is necessary that the representative Right of Representation Distinguished
himself be capable of succeeding the decedent.
(Art. 973, NCC) Iron Curtain Rule Right of
Representation
Q. Whenever there is succession by
representation, how will the division of the Prohibits absolutely Right created by
estate be made? a succession ab fiction of law where
intestate between the the representative is
illegitimate child and

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the legitimate raised to the place Q. What is the order of intestate succession to
children and and degree a legitimate child?
relatives of the of the person ANS.
father or mother of represented, and 1) The legitimate children and descendants of a
said illegitimate acquires the rights person who is an illegitimate child are
child. which the latter preferred over other intestate heirs, without
would have if he prejudice to the right of concurrence of
Note: Iron curtain were living or could illegitimate children and the surviving
rule imposes a have inherited. spouse.
limitation on right of 2) In the absence of legitimate children and
representation. descendants, the illegitimate children (of the
Applies only in Applies to both illegitimate child) and their descendants
intestate succession intestate and testate succeed to the entire estate, without
succession prejudice to the concurrent right of the
surviving spouse.
3) In the absence of children and descendants,
2. Order of Intestate whether legitimate or illegitimate, the third
Succession in the order of succession to the estate of the
illegitimate child is his illegitimate parents.
If both parents survive and are entitled to
Q. Who are intestate heirs?
succeed, they divide the estate share and
share alike. Although the law is silent, if the
ANS. The following are the intestate heirs:
surviving spouse of the illegitimate child
1) Legitimate children/ descendants;
concurs with the illegitimate parents, the
2) Illegitimate children/descendants;
surviving spouse shall be entitled to ½ of the
3) Legitimate parents/ascendants;
estate while the illegitimate parents get the
4) Illegitimate parents;
other half.
5) Surviving spouse;
6) Brothers, sisters, nephews, nieces;
NOTE: In the ascending line, only the
7) Other collaterals – to the 5th degree;
illegitimate parents are entitled to inherit
8) State.
from the illegitimate child; the other
illegitimate descendants are not so entitled.
Q. What is the order of preference between
4) In default of children or descendants,
lines in legal or intestate succession?
legitimate or illegitimate, and illegitimate
parents, the surviving spouse shall inherit the
ANS.
entire estate. But if the surviving spouse
First, succession takes place in the direct
should survive with brothers and sisters,
descending line;
nephews and nieces, the surviving spouse
Second, in the direct ascending line; and
shall inherit ½ of the estate, and the latter the
Finally, in the collateral line.
other half. The brothers and sisters must be
by illegitimate filiation; otherwise, the Iron
Curtain Rule shall apply.

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5) Although the law is silent, illegitimate Illegitimate children

brothers and sisters who survive alone shall = ½ of the
get the entire inheritance. The legitimate estate
children of the illegitimate parents are not Legitimate parents Legitimate parents =
entitled to inherit from the illegitimate child and surviving ½ of the estate
by virtue of Art. 992 of the NCC. spouse
6) The State. Surviving spouse = ½
TABLE OF INTESTATE SHARES of the
estate
Table of Intestate Shares Legitimate parents, Legitimate parents =
(Arts. 979-1011, NCC) surviving spouse ½ of the estate
Legitimate children The whole estate and illegitimate
alone divided equally children Surviving spouse = ¼
Legitimate and The whole estate, of the estate
illegitimate children each illegitimate
child getting ½ share Illegitimate children
of one legitimate = ¼ of the estate
child Illegitimate children The whole estate,
Legitimate children The whole estate, alone divided equally
and surviving divided equally (the
spouse surviving spouse Illegitimate children Illegitimate children
counted as one and surviving = ½ of the estate
legitimate child) spouse
Legitimate children, The whole estate, the Surviving spouse = ½
surviving spouse surviving spouse of the estate
and illegitimate being counted as one Surviving spouse The whole estate
children legitimate child alone
and each illegitimate Surviving spouse No governing article,
child getting ½ share and illegitimate but Art. 997 may be
of one legitimate parents applied by
child analogy, thus:
Legitimate parents The whole estate,
alone divided equally Surviving spouse = ½
of the estate
Legitimate The whole estate,
ascendants observing in proper Illegitimate parents =
(other than parents) cases, the rule of ½ of the estate
alone division by line Surviving spouse Surviving spouse = ½
Legitimate parents Legitimate parents = and legitimate of the estate
and illegitimate ½ of the brothers and sisters,
children estate nephews and nieces

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Legitimate brothers, illegitimate) = whole

sisters, nephews, estate
nieces = ½ of the b. Legitimate and
estate (the nephews illegitimate
and nieces inheriting children = each
by representation in illegitimate
proper cases) gets ½ share of one
Surviving spouse Surviving spouse = ½ legitimate child
and illegitimate of the estate Legitimate brothers The whole estate,
brothers and sisters, and sister alone with a brother/sister
nephews and nieces Illegitimate brothers, of the half blood
sisters, nephews and inheriting ½ the share
nieces = ½ of the of a brother/sister of
estate (the nephews the full blood
and nieces inheriting Legitimate brothers The whole estate,
by representation in and sisters, nephews observing the 2:1
proper cases) and nieces proportion of full and
half-blood fraternity
Note: When the law and the nephews and
speaks of brothers nieces inheriting
and sisters, nephews by representation in
and nieces as legal the proper cases
heirs of an Nephews and nieces Uncles and aunts =
illegitimate child, it with uncles and excluded
refers to illegitimate aunts
brothers and Nephews and nieces
sisters as well as to = whole estate per
the children, whether capita, but observing
legitimate or the 2:1 proportion for
illegitimate, of such the full and half
brothers and sisters blood
(Manuel Illegitimate brothers The whole estate,
v. Ferrer, G.R. No. and sisters alone observing the 2:1
117246, proportion of full and
August 21, 1995). half-blood fraternity
Illegitimate parents The whole estate Illegitimate No governing article,
alone brothers, sisters, but Arts. 1005 and
Illegitimate parents Illegitimate parents = nephews and 1008 may be applied
and children of any excluded children nieces by analogy, hence,
kind a. Child alone they acquire the
(legitimate or whole estate

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Nephews and nieces The whole estate per respective

alone capita, but observing municipalities/cities;
the 2:1 proportion for or
the full and half 2. At the instance of
blood an interested party,
or motu propio, court
Other collaterals The whole estate, per may order creation
capita, the nearer in of a permanent trust
degree excluding the for the benefit of the
more remote institutions
concerned.
State The whole estate

Assignment and
disposition
1. If decedent was a D. PROVISIONS COMMON TO
resident of the TESTATE AND INTESTATE
Philippines at any SUCCESSION
time:
a. Personal property –
1. Right of Accretion
to municipality of
last residence; and
Q. What is accretion?
b. Real property –
where situated
ANS. Accretion is a right by virtue of which,
when two or more persons are called to the
2. If decedent was
same inheritance, devise, or legacy, the part
never a resident of
assigned to the one who renounces or cannot
the Philippines
receive his share, or who died before the
testator, is added or incorporated to that of his
 Personal and
co-heirs, co-devisees or co-legatees. (Art. 1015,
real property –
NCC)
where
respectively
Q. How can accretion be avoided?
situated
ANS. Accretion, which follows the decedent’s
How property is to be
implied desires may be avoided by the deceased
used:
himself —
1. For the benefit of
a) By expressly designating a substitute
public educational
(naturally, the express desire is superior to
and charitable
the implied desire).
institutions in the
b) By expressly providing that although
accretion may take place, still he does not
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want accretion to occur, that is, he desires NOTE: In case of predecease in legal succession,
no accretion in favor of those who there is really no vacant portion, and hence, no
ordinarily would be entitled to it. accretion for the survivors inherit in their own
right; but whether or not there is accretion is
Q. What are the requisites for accretion? really immaterial for the effect is the same,
namely, the part affected is given to the intestate
ANS. heirs.
a) unity of object (one inheritance)
b) plurality of subjects (two or more to inherit NOTE: Aside from the three causes
ordinarily) (predecease, incapacity, repudiation)
c) vacant portion example — repudiation of mentioned by the law, accretion may take place
his share by one of those called to inherit also:
d) acceptance (of the portion accruing — by a) If a suspensive condition is not fulfilled
the person entitled) (this is a form of “incapacity”).
b) if there is failure to identify one particular
NOTE: Accretion is a RIGHT (Art. 1015), not heir, devisee, or legatee (ineffectiveness of
an obligation, and may therefore be accepted institution) but the others can be
or repudiated by those entitled. This is true in identified.
both testate and legal succession.
Q. Distinguish substitution, representation
Q. What are some instances in testamentary and accretion in testate and intestate
succession where accretion takes place? succession.

ANS. ANS.
a) in case of predecease; TESTAMENTARY INTESTATE
b) in case of incapacity; or SUCCESSION SUCCESSION
c) in case of repudiation. (Art. 1016, NCC). In case of predecease and incapacity
With respect to the 1. If the right of
NOTE: In incapacity and predecease, legitime: representation
representation to the legitime takes precedence takes place, then
over accretion. 1. If the right of the representative
representation succeeds to the
Q. What are some instances in legal succession takes place, then vacant portion.
where accretion takes place? the representative
succeeds to the NOTE:
ANS. vacant portion. Representation
a) in case of repudiation; or takes place in case
b) in case of incapacity (Art. 1015, NCC) 2. If representation of predecease and
although Art. 1018 mentions only is not available, incapacity with
repudiation, without prejudice to the right of then the co-heirs of respect to
representation. the same degree inheritance
shall succeed to it in conferred by law.

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 CIVIL LAW

their own right and NOTE:

not by accretion Hence, it takes Representation In default thereof,
since there is no place in legal or does not take place it shall go to the
accretion with intestate in repudiation. heirs in the next
respect to the succession. NOTE: Substitution order of intestacy.
legitime. cannot take place
2. If with respect to
3. In default of the representation is legitime.
above, the vacant not available, then With respect to the FREE PORTION in
portion shall go to the vacant portion case of predecease, incapacity or
the other secondary shall go to the co- renunciation
and/or other heirs in their own 1. Substitution shall take place if
compulsory heirs. right. provided for by the testator

NOTE: Substitution 3. In default 2. If no substitution is provided, the

cannot take place thereof, then the vacant share shall go to the co-heir by
with respect to vacant share shall right of accretion if the requisites are
legitime. go to the heirs in present and the testator has not
the next order of provided the contrary
intestacy.
3. If the requisites of accretion are not
In case of repudiation present or when the testator provides
that no accretion shall take place, the
With respect to the The vacant vacant portion shall pass to the legal
legitime: portion shall go to heirs if no substitute has been
the other co-heirs designated
1. The other co- by right of NOTE: In testamentary succession,
heirs shall succeed accretion. In legal representation takes place only with
to it in their own succession, the respect to the legitime; it does not take
right and not by share of the place with respect to what is voluntarily
right of accretion person who given by will.
since there is no repudiates the
accretion with inheritance
respect to legitime. always accrues to 2. Capacity to Succeed By Will or
his co-heirs. Intestacy
2. In default
thereof, the vacant In default thereof, Q. Define ‘capacity to succeed’.
portion shall go to the vacant share
the other secondary shall go to the ANS. It is the ability to inherit and retain
and/or compulsory heirs of next property obtained mortis causa. (It is also
heirs. degree in their termed passive testamentary capacity.).
own right.

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Q. What are the kinds of incapacity to succeed? Q. What are the grounds for relative incapacity
to succeed?
ANS.
1) ABSOLUTE — can never inherit from ANS.
anybody regardless of circumstances 1) Undue influence or interest (Art. 1027, NCC)
2) RELATIVE — cannot inherit only from 2) Morality or public policy (Art. 739, NCC)
certain persons or certain properties, but can
inherit from others or certain other properties 3) Acts of unworthiness (Art. 1032, NCC)
a) because of possible undue influence.
(Art. 1027, NCC). Q. Who are those persons that are incapable of
b) because of public policy and morality. succeeding because of possible undue
(Arts. 739 and 1028, NCC). influence?
c) because of unworthiness. (Art. 1032,
NCC). ANS.
The following are incapable of succeeding:
Q. Who are the persons absolutely 1) The priest who heard the confession of the
incapacitated to succeed? testator during his last illness, or minister
of the gospel who extended spiritual aid to
ANS. him during the same period;
1) Those not living at the time of death of the 2) The relatives of such priest or minister of
testator the gospel within the fourth degree, the
2) Those who cannot be identified (Art. 845, church, order, chapter, community,
NCC). organization, or institution to which such
3) Those who are not permitted by law to priest or minister may belong;
inherit. (Art. 1027, NCC) 3) A guardian with respect to testamentary
dispositions given by a ward in his favor
Q. What is the rule in the determination of before the final accounts of the
capacity to succeed? guardianship have been approved, even if
the testator should die after the approval
ANS. In order to judge the capacity of the heir, thereof; nevertheless, any provision made
devisee, or legatee, his qualification at the time by the ward in favor of the guardian when
of the death of the decedent shall be the the latter is his ascendant, descendant,
criterion. brother, sister, or spouse, shall be valid;
Exception: If the institution, devise or legacy 4) Any attesting witness to the execution of a
should be conditional (suspensive condition), will, the spouse, parents, or children, or
the capacity is to be determined not only at the any one claiming under such witness,
time of the death of the decedent but also at the spouse, parents, or children;
time of the fulfillment of the condition. 5) Any physician, surgeon, nurse, health
The governing law in determining the capacity officer or druggist who took care of the
to succeed of the heir, devisee, legatee is the law testator during his last illness;
of the nation of the decedent.

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6) Individuals, associations and corporations 2) they “took care” of the testator — (this
not permitted by law to inherit. (Art. 1027, presupposes a continuing or regular
NCC) caring, and not an isolated service)

Q. What are the Requisites for a priest to be Q. Who are those persons that are
disqualified from inheriting? incapacitated to succeed based on morality or
public policy?
ANS.
1) The will was made during the last illness of ANS.
the testator; a) Those made between persons who were
2) The spiritual ministration must have been guilty of adultery or concubinage at the time
extended during the last illness; of the donation;
3) The will was executed during or after the b) Those made between persons found guilty of
spiritual ministration. the same criminal offense, in consideration
thereof;
Q. When is a guardian disqualified from c) Those made to a public officer or his wife,
inheriting by testate succession? descendants and ascendants, by reason of his
office.
ANS. The disqualification applies when the
disposition is made before the approval of final Q. Who are those persons that are
accounts or lifting of guardianship. incapacitated to succeed by reason of
Exception: It does not apply even when the unworthiness?
disposition is made after the guardianship
began or before it is terminated when the ANS.
guardian is an: 1) Parents who have abandoned their children
a) Ascendant or induced their daughters to lead a corrupt
b) Descendant or immoral life, or attempted against their
c) Brother virtues
d) Sister 2) Persons Convicted of an attempt against the
e) Spouse life of the testator, his or her spouse,
descendants or ascendants
Q. What are the requisites for physicians,
surgeons, etc. to be disqualified from 3) Persons who Accused the testator of a crime
inheriting? for which the law prescribes imprisonment
for six years or more, if the accusation has
ANS. To disqualify these people from inheriting been found to be groundless
as testamentary heirs, legatees, or devisees, it is 4) Heir of full age who, having knowledge of
essential that: the Violent death of the testator, should fail
1) the will or disposition in their favor was to report it to an officer of the law within a
made during the last illness and after the month unless the authorities have already
“care” by them had commenced taken action.

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NOTE: This prohibition shall not apply to b) If knowledge comes ONLY AFTER the
cases wherein, according to law, there is no execution of the will, CONDONATION must
obligation to make an accusation. be in WRITING (public or private).
5) Person convicted of Adultery or concubinage
Q. What are the requisites for a valid
with the spouse of the testator
disposition for prayers and pious works?
6) Person who by Fraud, violence, intimidation,
or undue influence should cause the testator ANS.
to make a will or to change one already made a) disposition is for PRAYERS and PIOUS
7) Person who by the same means Prevents WORKS disposition is in GENERAL TERMS
another from making a will, or from revoking b) disposition does NOT SPECIFY its
one already made, or who supplants, application. Therefore, if a particular heir,
conceals, or alters the latter's will devisee, legatee, or stranger is burdened with
the duty, or if a definite place or date is fixed
8) Person who Falsifies or forges a supposed
for the prayers, the Article does not apply.
will of the decedent (Art. 1032, NCC).
NOTE: Grounds 1, 2, 3, 5 and 6 are the same Q. What is the prescriptive period for
grounds as in disinheritance. Numbers 6, 7 and declaration of incapacity and for recovery of
8 cover six (6) acts which relate to wills: the inheritance?
a) Causing the testator to make a will
ANS. The action for declaration of incapacity
b) Causing the testator to change an existing
and for the recovery of the inheritance (devise
will
or legacy) SHALL be brought WITHIN 5
c) Preventing the decedent from making a YEARS from the time the DISQUALIFIED heir
will took POSSESSION thereof.
d) Preventing the testator from revoking his
will Q. Who can bring the action?

e) Supplanting, concealing, or altering the ANS. Anyone who may have an interest in the
testator's will. succession (that is, the person who would
f) Falsifying or forging a supposed will of the inherit in place of the incapacitated heir).
decedent.
3. Acceptance and Repudiation of the
Q. What are the rules for condonation? Inheritance

ANS. Q. What is the definition of Acceptance

a) If at the time he made the will, testator
ALREADY KNEW of the causes of ANS. The act by which the person called to
unworthiness, the mere fact of instituting the succeed by universal title either by the testator
person concerned, or giving him a devise or or by law manifests his will of making his own
legacy, is an IMPLIED CONDONATION. the universality of the rights and obligations
which are transmitted to him.

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2) If the heir renounces the same, even

Q. What are the requisites for the acceptance through gratuitously, for the benefit of one
and repudiation of the inheritance? or more of his co-heirs;
3) If he renounces it for a price in favor of all
ANS. his coheirs indiscriminately; but if this
a) The heir must be CERTAIN of the death of renunciation should be gratuitous, and the
the decedent. Hence, the act must not be co-heirs in whose favor it is made are those
made during the decedent’s, lifetime; upon whom the portion renounced should
however, presumed death for purposes of devolve by virtue of accretion, the
succession is enough, although of course in inheritance shall not be deemed as
such case, there may be a RETURNING. accepted. (Art. 1050, NCC)
b) The heir must be certain of his RIGHT to the
inheritance. Thus, acceptance by a legatee, Q. What are the reasons why repudiation must
when the will is void, is useless. be made expressly?

Q. What are the forms of acceptance? ANS. Repudiation should always be EXPRESS
because:
ANS. a) It is an act of disposing of property rights.
a) Express Acceptance – one made in a public b) It is unnatural and resultantly disturbs
or private document (Art. 1049, par. 1, NCC) juridical relations.
b) Tacit Acceptance – one resulting from acts by c) Creditors of the renouncer should be more
which the intention to accept is necessarily or less informed, hence, the need for an
implied or from acts which one would have express renouncing.
no right to do except in the capacity of an
heir. Q. What are the forms of repudiation?
c) Implied Acceptance - Within thirty days
after the court has issued an order for the ANS.
distribution of the estate in accordance with a) In a public instrument acknowledged before
the Rules of Court, the heirs, devisees and a notary public; or
legatees shall signify to the court having b) In an authentic document – equivalent of an
jurisdiction whether they accept or repudiate indubitable writing or a writing whose
the inheritance; if they do not do so within authenticity is admitted or proved; or
that time, they are deemed to have accepted c) By petition presented to the court having
the inheritance (Art. 1057, NCC). jurisdiction over the testamentary or intestate
proceeding
Q. What are some instances of implied
acceptance? Q. What is the effect of acceptance or
repudiation of an inheritance?
ANS. An inheritance is deemed accepted:
1) If the heir sells, donates, or assigns his ANS. The acceptance or repudiation of an
right to a stranger, or to his co-heirs, or to inheritance, once made, is irrevocable and
any of them; cannot be impugned.

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Exceptions: 2) All that may have been received from

a) When the acceptance or repudiation decedent during his lifetime.
suffers from any of the vices which annul 3) All that their parents have brought to
consent; and collation if alive.
b) When an unknown will appears (Art.
1056, NCC) Q. What are some properties not subject to
collation?
4. Collation ANS.
1) Absolutely no collation – expenses for
Q. Define collation. support, education (elementary and
secondary only), medical attendance, even in
ANS. Collation has at least two meanings: extra-ordinary illness, apprenticeship,
a) First, it means “computing or adding ordinary equipment or customary gifts. (Art.
certain values to the estate, and charging 1067, NCC)
the same to the LEGITIME.’’ 2) Generally not imputed to legitime:
b) Secondly, it means “computing or adding a) Expenses incurred by parents in giving
certain values to the estate, and charging their children professional, vocational,
the same to the FREE PORTION.’’ or other career unless the parents so
provide, or unless they impair the
Q. Who are the persons obliged to collate? legitimes.
b) Wedding gifts by parents and
ANS. Compulsory heirs are obliged to collate. ascendants consisting of jewelry,
Exceptions: clothing and outfit except when they
a) When the testator should have so exceed 1/10 of the sum disposable by
expressly provided (Art. 1062, NCC) – in will.
which case you collate against the
disposable free portion because there NOTE: Only the value of the thing
MUST be collation. donated shall be brought to collation. This
b) When the compulsory heir should have value must be the value of the thing at the
repudiated his inheritance (Art. 1062, time of the donation.
NCC) The wedding gifts here, although really
c) When there is only ONE compulsory heir donations, are not chargeable to the
 grandchildren who survive with their legitime in view of the sentimental
uncles, aunts, or first cousins and inherit importance of a wedding. Nevertheless,
by right of representation (Art. 1064, NCC) they may be reduced if they exceed (for
each child) one-tenth of the free disposal.
Q. What are the properties that are to be This is to prevent abuse and extravagance.
collated?

ANS.
1) Any property/right received by gratuitous
title during testator’s lifetime.

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The thing itself may be divided or its value (Art.

Q. What are the steps in determining the 1079, NCC).
legitime of compulsory heirs? Every act which is intended to put an end to
indivision among co-heirs and legatees or
ANS. devisees is deemed to be a partition, although it
1) Determination of the gross value of the estate should purport to be a sale, an exchange, a
at the time of the death of the testator. compromise, or any other transaction (Art. 1082,
2) Deduct all the debts and charges which are NCC).
chargeable against the estate.
3) Collate or add the value of all donations inter Q. What are the kinds of partition?
vivos to arrive at the net hereditary estate
which will serve as the basis of determining ANS.
the legitime. 1) Classified according to the duration of its
4) Impute all the value of donations inter vivos existence:
made to compulsory heirs against their a) provisional or temporary; or
legitime and of the value of all donations b) permanent. (Art. 1084, NCC).
inter vivos made to strangers against the 2) Classified according to the extent of the
disposable free portion. properties involved:
5) If the legitime is impaired, the following a) partial
reductions shall be made: b) total
a) First, reduce pro rata non-preferred 3) Classified according to who made the
legacies and devices, and the partition:
testamentary dispositions. a) judicial — this is made by the court
b) Second, reduce pro rata the preferred either in the course of administration
legacies and devises. proceedings; or in an ordinary action
c) Third, reduce the donations inter vivos for partition.
according to the inverse order of their b) extrajudicial —
dates. i. made by the testator. (Art. 1080,
6) If there are remaining portion of the estate, it NCC).
shall be distributed to the devisees and ii. made by the decedent in an act
legatees, if there are any, and according to the inter vivos. (Art.1080, NCC).
provisions of the will. iii. made by the heirs themselves.
(Rule 74, Sec. 1, Rules of Court).
iv. made by a third person entrusted
5. Partition and Distribution of the Estate by the testator or decedent. (Art.
1081, par.1, NCC).
Q. What is partition?
Q. What are the requisites for legal
ANS. Partition, in general, is the separation, redemption of co-heirs?
division and assignment of a thing held in
common among those to whom it may belong. ANS. The following requisites must all be
present:

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a) there must be two or more heirs;

b) one must sell his hereditary rights; Q. In what instances will the obligation of
c) the buyer must be a stranger; warranty cease?
d) the sale must be before partition;
e) at least one co-heir must demand the ANS. The obligation of warranty among co-
redemption; heirs shall cease in the following cases:
f) the demand must be made within a period 1) When the testator himself has made the
of one month from the time of notification partition, unless it appears, or it may be
in writing; reasonably presumed, that his intention
g) the redemptioner must reimburse the was otherwise, but the legitime shall
price of the sale. always remain unimpaired;
2) When it has been so expressly stipulated in
Q. What are the effects of partition? the agreement of partition, unless there
has been bad faith;
ANS. 3) When the eviction is due to a cause
a) A partition legally made confers upon subsequent to the partition, or has been
each heir the exclusive ownership of the caused by the fault of the distribute of the
property adjudicated to him (Art. 1091, property. (Art. 1096, NCC)
NCC).
b) No partition shall be construed so as to
prejudice, defeat, or destroy the right or title Rescission and Nullity of Partition
of any person claiming the real estate
involved in the action for partition by title Q. What are the causes of rescission or
under any other person, or by title annulment of partition?
paramount to the title of the parties among
whom the partition may have been made ANS.
(Rule 69, Sec. 12, ROC). 1) A partition may be rescinded or annulled for
the same causes as contracts (Art. 1097, NCC)
Q. What do the co-heirs bound to warrant? 2) A partition, judicial or extrajudicial, may also
be rescinded on account of lesion, when any
ANS. After the partition has been made, the co- one of the co-heirs received things whose
heirs shall be reciprocally bound to warrant the value is less by at least one fourth (¼) than
title to, and the quality of, each property the share to which he is entitled, considering
adjudicated (Art. 1092, NCC) the value of the things at the time they were
adjudicated (Art. 1098, NCC).
Q. What is the prescriptive period of the  This article applies only to cases of
warranty? partition among-coheirs
 Lesion is the injury suffered in
ANS. An action to enforce the warranty among consequence of inequality of situation
coheirs must be brought within ten years from by one party who does not receive the
the date the right of action accrues. (Art. 1094, full equivalent for what she gives in a
NCC) sale or any commutative contract

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3) The partition made by the testator cannot be disapproved by the court, it would have been
impugned on the ground of lesion, except void.
when the legitime of the compulsory heirs is
thereby prejudiced, or when it appears or Q. What are the options given to the suing
may be reasonably presumed that the heir?
intention of the testator was otherwise (Art.
1099, NCC). ANS. The defendant heir, despite a proper
4) Preterition of a compulsory heir in the ground for rescission, is still given an option:
partition (Art. 1104, NCC): a) indemnification
 Partition shall not be rescinded unless b) or a new partition
bad faith or fraud on the part of other
heirs is proved. NOTE: The plaintiff must necessarily be one
 The culpable heirs shall share in the who suffered the lesion referred to in the law,
damages of the prejudiced compulsory so, if he has in fact received more than his share,
heir proportionately. he cannot successfully ask for rescission.
5) A partition which includes a person believed
to be an heir, but who is not, shall be void Q. What is the effect of intrusion of a stranger
only with respect to such person (Art. 1105, in the partition?
NCC).
ANS. Partition which includes a person
Q. When will partition be rescinded because believed to be an heir, but who is not, shall be
of lesion? void only with respect to such person. (Art.
1105, NCC)
ANS. The partition made by the testator may
still be rescinded: Summary of important periods in partition
a) If the legitime is impaired.
b) If the intent of the testator is for his
partition to be rescinded should there be 1 month or Testator, if publicly
lesion. less before known to be insane,
making a burden of proof is on the
Q. What is the prescriptive period of will one claiming validity of
rescission? the will

ANS. 20 years Maximum period

The action for rescission on account of lesion testator can prohibit
shall prescribe after four years from the time the alienation of
partition was made. (Art. 1100, NCC) dispositions
It has been held that in case of a judicial
partition, the four-year period begins to run not 5 years To claim property
from the time of the project of partition but from From escheated
the time there is court approval, for had it been delivery to to the State
the State

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1 month To report knowledge of VI. OBLIGATIONS

violent death of
decedent lest he be A. GENERAL PROVISIONS
considered unworthy
1. Definition
5 years from Action for declaration of
the time incapacity and for Q. What is an obligation?
disqualified recovery of the
person took inheritance, devise or ANS. An obligation is a juridical necessity to
possession legacy give, to do or not to do. (Art. 1156, NCC)

30 days Must signify Q. What are the kinds of obligations?

from acceptance/repudiation;
issuance of otherwise, deemed ANS.
order of accepted 1) CIVIL OBLIGATIONS
distribution  Obligations which give to the creditor
1 month Right to repurchase or obligee a right of action in courts of
form hereditary rights sold to justice to enforce their performance are
written a known as civil obligations (because of
notice of stranger by a co-heir juridical necessity)
sale  Civil obligations give a right of action to
compel their performance
10 years To enforce warranty of 2) MORAL OBLIGATIONS
title/quality of property  Arises out of justice & equity, not
adjudicated to co-heir enforceable because it is not stated in
from any statute
the time the right of  Arises from ethical motives
action 3) NATURAL OBLIGATIONS
accrues  Natural obligations, not being based
5 years from To enforce warranty of on positive law but on equity and
partition solvency of debtor of the natural law, do not grant a right of
estate at the time action to enforce their performance,
partition is but after voluntary fulfillment by the
made obligor, they authorize the retention
of what has been delivered or
4 years from Action for rescission of rendered by reason thereof
partition partition on account of
lesion

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2. Elements of an obligation 3. Sources of obligations

Q. What are the elements of an obligation? Q. What are the sources of obligations?

ANS. ANS. Obligations arise from: (Art. 1157, NCC)

1) Active Subject (Creditor / Obligee) – a 1) Law
person who has the power to demand the  Obligations derived from law are not
fulfillment of the obligation presumed (Art. 1158, NCC);
2) Passive Subject (Debtor / Obligor) – a 2) Contracts
person who is bound to the fulfillment of  Obligations arising from contracts
the obligation have the force of law between the
3) Prestation (Object) – the subject matter of contracting parties and should be
the obligation or the conduct required to complied with in good faith (Art.
be observed by debtor or obligor 1159, NCC);
4) Vinculum Juris (Efficient Cause . Juridical 3) Quasi-contracts
Tie) –that which binds the parties to an  Certain lawful, voluntary and
obligation, without which, no obligation unilateral acts give rise to the
may exists juridical relation of quasi-contract to
the end that no one shall be unjustly
Q. What are the requisites of a prestation? enriched or benefited at the expense
of another (Art. 2142, NCC);
ANS. 4) Acts or omissions punished by law
1) Must be possible - physically and  Every person criminally liable for a
juridically. felony is also civilly liable (Art. 100,
2) Must be determinate or at least RPC); and
determinable according to preestablished 5) Quasi-delicts.
elements.  Whoever by act or omission causes
3) Must have possible equivalent in money damage to another, there being fault
4) Must have pecuniary value or possible or negligence, is obliged to pay for
equivalent in money. the damage done (Art. 2176, NCC)
Absence of any of the first three makes the object
void.

Q. How is vinculum juris established?

ANS. Vinculum juris established by:

a) Law;
b) Bilateral acts;
c) Unilateral acts.

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B. NATURE AND EFFECT OF a family unless obligation is to

OBLIGATIONS the law requires preserve the
or parties source.
stipulate another
1. Obligation to give
standard of care
(Art.1163, NCC).
Q. Distinguish specific from generic thing.
Deliver all Delivery of
accessions, another thing
ANS.
accessories and within the same
a) SPECIFIC/ DETERMINATE THING
fruits of the thing genus as the thing
 it is particularly designated or
even though they promised if such
physically segregated from all others
may not have thing is damaged
of the same class
been mentioned due to lack of care
 Ex: The watch I am wearing; this car;
(Art. 1166, NCC). or a general
the car with plate number ABC 123
breach is
b) GENERIC/ INDETERMINATE THING
committed.
 it refers only to a class or genus to
Pay damages in Pay damages in
which it pertains and cannot be
case of breach of case of breach of
pointed out with particularity
obligation by obligation by
 Ex: the sum of P10,000.00; a cavan of
reason of delay, reason of delay,
rice; a 2021 Toyata car
fraud, fraud,
negligence, negligence,
Q. What are the obligations of a debtor in an
contravention of contravention of
obligation to give?
the tenor thereof the tenor thereof
(Art. 1170, NCC). (Art. 1170, NCC).
ANS. The obligations of the debtor (in an
obligation to deliver) depends upon the kind
Q. What is meant by diligence of a good father
thing involved:
of a family?
SPECIFIC GENERIC
Deliver the thing Deliver the thing
ANS. It is that reasonable diligence which an
agreed upon (Art. which is neither of
ordinary prudent person would have done
1165, NCC). superior nor
under the same circumstances.
inferior quality if
quality and
Q. What is the nature of the right of the
circumstances
creditor with respect to fruits?
have not been
stated by the
ANS.
parties. (Art. 1246,
1) Before delivery – Personal right;
NCC).
2) After delivery – Real right.
Take care of the If the object is
The creditor has a right to the fruits of the thing from
thing with the generic, but the
the time the obligation to deliver it arises. However,
proper diligence source is specified
of a good father of or delimited, the
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he shall acquire no real right over it until the same ANS. In an obligation to deliver a generic thing,
has been delivered to him (Art. 1164, NCC). the loss or destruction of anything of the same
kind does not extinguish the obligation.
Q. Differentiate personal right from real right.
2. Obligation to do or not to do
ANS.
1) PERSONAL RIGHT Q. What are the obligations of a debtor in an
a) The right or power of a person obligation to do?
(creditor) to demand from another
(debtor), as a definite passive subject, ANS.
the fulfillment of the latter’s obligation 1) To do it or if he fails to do it, the obligation or
to give, to do, or not to do. if he does it in contravention of the tenor of
b) There is a definite active subject and a the obligation, the same shall be executed at
definite passive subject. his cost. (Art. 1167, NCC)
c) Binding and enforceable only against a 2) To undo what has been poorly done. (Art.
particular person. 1167, NCC)
2) REAL RIGHT 3) To pay damages in case of breach of
a) The right or interest of a person over a obligation by reason of delay, fraud,
specific thing, without a definite subject negligence, contravention of the tenor thereof
against whom the right may be (Art. 1170, NCC).
personally enforced.
b) There is only a definite active subject Q. What are the obligations of a debtor in an
without any passive subject. obligation not to do?
c) Directed against the whole world.
ANS.
Q. What is the effect of loss of a specific thing? 1) To not do what should not be done
2) To shoulder cost of undoing what should
ANS. An obligation which consists in the not have been done (Art. 1168, NCC)
delivery of a determinate thing shall be 3) To pay damages in case of breach of
extinguished if it should be lost or destroyed obligation by reason of delay, fraud,
without the fault of the debtor, and before he negligence, contravention of the tenor
has incurred in delay. thereof (Art. 1170, NCC).
When by law or stipulation, the obligor is liable
even for fortuitous events, the loss of the thing
3. Transmissibility of obligations
does not extinguish the obligation, and he shall
be responsible for damages. The same rule
Q. Are obligations transmissible?
applies when the nature of the obligation
requires the assumption of risk.
ANS.
General rule: Subject to the laws, all rights
Q. What is the effect of loss of a generic thing?
acquired in virtue of an obligation are
transmissible

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Exception: If there has been no stipulation to the 5. Breaches of obligations

contrary. (Art. 1178, NCC)
Q. What are the two kinds of breach of
4. Performance of obligations obligation?

Q. In an obligation, what does payment mean? ANS.

1) Voluntary – Debtor is liable for damages if he
ANS. Payment means not only the delivery of is guilty of:
money but also the performance, in any other a) Fraud (dolo)
manner, of an obligation. (Art. 1232, NCC) b) Negligence (culpa)
c) Delay (mora)
Q. When shall debt be understood as paid? d) Breach through contravention of the
tenor thereof (Art. 1170, NCC).
ANS. A debt shall not be understood to have 2) Involuntary –Debtor is unable to perform the
been paid unless the thing or service in which obligation due to fortuitous event thus not
the obligation consists has been completely liable for damages.
delivered or rendered, as the case may be. (Art.
1233, NCC) Q. Is the debtor liable in case of breach of
obligation?
Q. What are the exceptions that payment
should be complete to consider payment of ANS. As a general rule, the debtor is liable for
debt? damages in case of breach of obligation.
Exception: In case of fortuitous events, debtor
ANS. is not liable for damages.
If the obligation has been substantially
performed in good faith, the obligor may Q. What is meant by fortuitous event?
recover as though there had been a strict and
complete fulfillment, less damages suffered by ANS. It is an event which could not be foreseen,
the obligee. (Art. 1234, NCC) or which though foreseen, is inevitable. (Art.
When the obligee accepts the performance, 1174, NCC)
knowing its incompleteness or irregularity, and
without expressing any protest or objection, the Q. What are the requisites of fortuitous
obligation is deemed fully complied with. (Art. event?
123, NCC)
ANS. CODE
1) Cause of breach is independent of the will of
the debtor;
2) Occurrence renders it absolutely impossible
for the debtor to fulfill his obligation in a
normal manner - impossibility must be
absolute not partial, otherwise not force
majeure;

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3) Debtor is free from any participation in the

aggravation of the injury to the creditor.; and Q. What is fraud?
4) Event is unforeseeable or unavoidable.
ANS. Fraud or dolo is any form of deception,
NOTE: The mere difficulty to foresee the machination, or representation. It is the
happening is not impossibility to foresee the deliberate and intentional evasion of the normal
same (Republic v. Luzon Stevedoring Corp., fulfillment of obligations.
G.R. No. L-21749, September 29, 1967).
Q. What are the two kinds of fraud?
Q. As a general rule, there is no liability for
loss in case of fortuitous event. What are the ANS.
exceptions? a) Causal Fraud (Dolo Causante)
 there is no pre-existing contract
ANS.  fraud is used to entice or secure the
1) Law; consent of another contracting party
2) Nature of the obligation requires the  fraud is used to vitiate consent
assumption of risk; Example: Seller entices buyer to buy a smart
3) Stipulation; phone and lies that the phone came from
4) The debtor is guilty of dolo, malice or bad abroad. The buyer enters into a contract of
faith, has promised the same thing to two or sale (contract is voidable).
more persons who does not have the same b) Incidental Fraud (Dolo Incidente)
interest (Art. 1165, NCC); there is already a pre-existing contract
5) The debtor contributed to the loss (Tan v. fraud is used to breach the fulfillment of the
Inchausti & Co., G.R. No. L-6472, March 7, obligation
1912); Example: Seller sold a smart phone to a buyer
6) The possessor is in bad faith (Art. 552, NCC); and buyer enters into a contract of sale. On
or the day of delivery, seller changes it to an
7) The obligor is guilty of fraud, negligence or imitation (contract is valid).
delay or if he contravened the tenor of the
obligation (Juan Nakpil v. United Q. What are the requisites for fraud to vitiate a
Construction Co., Inc. v. CA, G.R. No. L- contract?
47851, April 15, 1988).
ANS. (Dolo Causante)
Q. What are the effects of fortuitous event on 1) It must have been employed by one
the obligation? contracting party upon the other;
2) It must have induced the other party to enter
ANS. into the contract;
a) On determinate obligation – The obligation is 3) It must have been serious; and
extinguished. 4) It must have resulted in damage or injury to
b) On generic obligation – The obligation is not the party seeking annulment.
extinguished (genus nun quam peruit –
genus never perishes).

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Q. When is breach of obligation due to fraud on the principle on the principle

demandable? that the that the
negligence of the negligence of the
ANS. Responsibility arising from fraud is employee is employee is prima
demandable in all obligations. Any waiver of an conclusively facie presumed to
action for future fraud is void. (Art. 1171, NCC) presumed to be be the negligence
the negligence of of the employer
Q. What is negligence? the employer (until proven)
Diligence in the Diligence in the
ANS. Negligence or culpa is any act or omission selection and selection and
without malice which prevent the normal supervision of the supervision of the
fulfillment of an obligation. It is simply the employees is not employees is
absence of due care required by the obligation. available as a available as a
defense defense
Q. What are the kinds of civil negligence? Quantum of Quantum of
Distinguish one from the other. evidence: evidence:
preponderance of preponderance of
ANS. Civil negligence includes culpa evidence evidence
contractual and culpa aquiliana.
CULPA CULPA Q. What is the nature of criminal negligence or
CONTRACTUAL AQUILIANA culpa criminal?
There is a pre- There is no pre-
existing existing ANS.
contractual contractual a) Negligence of defendant is substantive,
obligation obligation independent, and direct;
Negligence of Negligence of b) There is no pre-existing contractual
defendant merely defendant is obligation;
an incident of the substantive and c) Source of obligation: defendant’s criminal
performance of an independent act;
obligation d) Quantum of evidence: guilt beyond
Proof of the Negligence of the reasonable doubt;
contract and its defendant must e) Diligence in the selection and supervision of
breach is prima be proved the employees is not available as a defense
facie sufficient to f) The guilt of the employee is presumed to be
warrant recovery the guilt of the employer only if the employee
Source of Source of is insolvent.
obligation: breach obligation:
of contract defendant’s
negligent act or
omission
Liability of Liability of
employer is based employer is based

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Q. A student was shot accidentally by a guard Q. What are the requisites of delay?
in the campus. What kind of negligence is
present? ANS.
1) Obligation must be due, demandable and
ANS. Accidental shooting of a student inside liquidated.
the campus by a guard is culpa contractual 2) Debtor fails to perform his positive
because it is based on the breach of school- obligation on the date agreed upon.
student contract in which the school should NOTE: There is no delay in an obligation not
protect their student while inside the campus. to do.
3) A judicial or extrajudicial demand (not
Q. What is the effect when there is merely a notice or reminder) made by the
contributory negligence on the part of the creditor upon the debtor to fulfill, perform or
creditor? comply with his obligation; otherwise, he
will be in default; and
ANS. It reduces or mitigates the damages which 4) Failure of the debtor to comply with such
he can recover, except if the negligent act or obligation.
omission of the creditor
is the proximate cause of the event which led to Q. What are the kinds of legal delay or default?
the damage or injury complained of, he cannot
recover. ANS.
a) Mora solvendi;
Q. What is delay in the fulfillment of b) Mora accipiendi;
obligations? c) Compensatio morae

ANS. Delay or mora is the failure to comply Q. What is mora solvendi?

with the obligation in due time either because of
fraud or negligence. ANS. It is the delay on the part of the debtor to
fulfil his obligation either to give (ex re) or to do
Q. What are the two kinds of delay? (ex persona).

ANS. Q. What are the requisites of mora solvendi?

a) Ordinary delay – failure to perform an
obligation on time ANS.
b) Legal delay –failure to perform an obligation 1) Obligation must be liquidated, due and
on time which failure constitutes a breach of demandable;
the obligation (as constituted in Art. 1170, 2) Non-performance by the debtor within the
NCC) period agreed upon;
3) Demand, judicial or extra-judicial, by the
creditor, unless demand is not necessary
(Art. 1169, par. 2, NCC)

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Mora solvendi does not apply in natural obligations Q. What are the requisites of mora accipiendi?
because performance is optional or voluntary on the
debtor’s part. ANS.
1) Debtor offers performance.
Q. As a general rule, there is no delay when 2) Offer must be in compliance with the
there is no demand. What are the exceptions? prestation as it should be performed.
3) Creditor refuses performance without just
ANS. Demand by the creditor shall not be cause.
necessary in order that delay may exist when:
1) When the obligation or the law expressly so Q. What are the effects of mora accipiendi?
declare; or
2) When from the nature and the circumstances ANS.
of the obligation it appears that the 1) Responsibility of debtor is limited to fraud
designation of the time when the thing is to and gross negligence;
be delivered or the service is to be rendered 2) Debtor is exempted from risk of loss of thing;
was a controlling motive for the creditor bears risk of loss;
establishment of the contract; or 3) Expenses by debtor for preservation of thing
3) When demand would be useless, as when the after delay is chargeable to creditor;
obligor has rendered it beyond his power to 4) If the obligation bears interest, debtor does
perform. not have to pay it from time of delay;
In reciprocal obligations, neither party incurs in 5) Creditor liable for damages; and
delay if the other does not comply or is not ready to 6) Debtor may relieve himself of obligation by
comply in a proper manner with what is incumbent consigning the thing.
upon him. From the moment one of the parties fulfills
his obligation, delay by the other begins. (Art. 1169, Q. What is compensation morae?
NCC)
ANS. It is the delay of both parties in reciprocal
Q. What are the effects of mora solvendi? obligations.

ANS. Q. What are the effects of compensation

1) Debtor may be liable for damages or morae?
interests;
2) When the obligation has for its object a ANS.
determinate thing, the debtor may bear the 1) If neither party complies with his prestation,
risk of loss of the thing even if the loss is due default of one compensates for the default of
to fortuitous event; the other.
2) The liability of the first infractor shall be
Q. What is mora accipiendi? equitably tempered by the courts. If it cannot
be determined which of the parties first
ANS. It is the delay on the part of the creditor to violated the contract, the same shall be
accept the performance of the obligation. deemed extinguished, and each shall bear his
own damages. (Art. 1192, NCC)

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Q. What does the phrase “in any manner Q. What are the remedies of a creditor in case
contravene the tenor” of the obligation of breach of an obligation to give a generic
include? thing?

ANS. It includes any illicit act which impairs the ANS.

strict and faithful fulfillment of the obligation, 1) Ask the obligation be complied with at the
or every kind of defective performance. expense of the debtor. (Art. 1165, par. 2,
Example: failure of common carrier to take its NCC)
passenger to their destination safely 2) If a person obliged to do something fails to
do it, the same shall be executed at his cost
(Art. 1167, NCC)
6. Remedies available to creditor in cases of 3) What has been poorly done be undone.
breach (Art. 1167, NCC)
4) Rescission (Art. 1191)
Q. What are remedies available to creditor in 5) Damages (Art. 1170, NCC)
cases of breach of obligation?
Q. What is substitute performance?
ANS. In case of breach of obligation, the
following are the remedies available: ANS. It is a remedy of the creditor in case of
1) Specific performance, or substituted nonperformance by the debtor where another
performance by a third person in case of party performs the obligation or the same is
an obligation to deliver a generic thing, performed at the expense of the debtor.
and in obligations to do, unless it is a
purely personal act; Q. When is substitute performance
2) Rescission (or resolution in reciprocal applicable?
obligations);
3) Damages, in any case; or ANS.
4) Subsidiary remedies of creditors: 1) Positive personal obligation:
a) Accion subrogatoria a) If not purely personal – Substitute
b) Accion pauliana performance; the obligation shall be
c) Accion directa executed at debtor’s cost if he fails to do
it (NCC, Art. 1167).
Q. What are the remedies of a creditor in case b) Purely personal – No substitute
of breach of an obligation to give a specific performance may be demanded
thing? because of the personal qualifications
taken into consideration. The only
ANS. remedy is damages.
1) Compel the debtor to make delivery (specific 2) Real obligation:
performance) (Art. 1165, par. 1, NCC) a) Generic thing – Substitute performance;
2) Rescission (Art. 1191], NCC) delivery may be made by a person other
3) Damages (Art. 1170, NCC) than the debtor since the object is

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merely designated by its class or genus. ANS. No. The injured party can only choose
The creditor may ask that the obligation either fulfillment or rescission of the obligation,
be complied with at the expense of the and not both. However, if fulfillment has
debtor (NCC, Art. 1165). become impossible, Art. 1191 allows the injured
b) Specific thing – Specific performance party to seek rescission even after he has chosen
may be demanded, that is, the creditor fulfillment (Ayson-Simon v. Adamos,
may compel the debtor to make the G.R. No. L-39378, (1984)).
delivery.

Q. What is rescission as constituted in Art. Subsidiary Remedies of Creditors

1191 of the NCC?
Q. What is accion subrogatoria?
ANS. Rescission is the cancellation of the
contract or reciprocal obligation in case of ANS. It is an action whereby the creditor, whose
breach on the part of one, which breach is claim has not been fully satisfied, may go after
violative of the reciprocity between the parties. the debtor defendant debtor’s debtor (third
This is properly called resolution. person) (Art. 1177, NCC).

Q. When is rescission applicable? Q. What are the requisites of an accion

subrogatoria?
ANS. Rescission or resolution is applicable in
reciprocal obligations, since it is implied ANS.
therein. 1) The person to whom the right of action
NOTE: It is allowed only where the breach is pertains must be indebted to the creditor
substantial and fundamental to the fulfillment 2) The debt is due and demandable
of the obligation. (Cannu v. Galang, G.R. No. 3) The creditor must be prejudiced by the
139523 (2005)) failure of the debtor to collect his debts due
him from third persons, either through
Q. What is the effect of rescission under Art. malice or negligence
1191? 4) The debtors assets are insufficient
5) The right of action must not purely personal.
ANS. Rescission extinguishes the obligatory
relation as if it had never been created, the Q. What are the effects of a subrogatory
extinction having a retroactive effect. Both action?
parties must surrender what they have
respectively received and return each other as ANS.
far as practicable to their original situation. 1) The creditor may exercise the subrogatory
(Tolentino) action in behalf of the debtor not only up to
the amount of his credit but in its totality BUT
Q. Can the injured party choose both the the excess (if any) must be returned to the
fulfillment of obligation and rescission? debtor.

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2) The bringing of action does not entitle the b) Right of the lessor to go directly to sublessee
creditor to preference. for unpaid rents of the lessee (Art. 1652,
3) The defendant (the debtor of the debtor) may NCC)
avail himself of all defenses available against c) Right of the laborers or persons who furnish
the creditor. materials for a piece of work undertaken by a
contractor to go directly to the owner for any
Q. What is accion pauliana? unpaid claims due to the contractor (Art.
1729, NCC)
ANS. It is an action where the creditor files in
court for the rescission of acts or contracts
entered into by the debtor designed to defraud C. KINDS OF OBLIGATIONS
the former (Art. 1177, NCC).
Q. What are the primary classifications of
Q. What are the requisites of accion pauliana? obligations under the Civil Code?

ANS. ANS.
1) Defendant must be indebted to plaintiff; 1) Demandability
2) The fraudulent act performed by the debtor a) Pure
subsequent to the contract gives advantage to b) Conditional
another; c) With a period
3) The debtor’s acts are fraudulent to the 2) Plurality of object
prejudice of the creditor. a) Simple
4) The creditor must have pursued all b) Alternative
properties of the debtor subject to execution; c) Facultative
5) The creditor has no other legal remedy. 3) Plurality of subject
6) The third person who received the property a) Simple
is an accomplice to the fraud. b) Joint
c) Solidary
Q. What is accion directa? 4) Performance
a) Divisible
ANS. It is the right of a person to go directly b) Indivisible
against another who is not a privy to the 5) Sanctions for breach
contract. a) With a penal clause
b) Without a penal clause
Q. Give examples where accion directa may be
instituted.

ANS.
a) Right of sellers a retro to redeem property
from persons other than the buyer a retro
(Art. 1608, NCC)

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1. Pure 2) As to the origin of condition

a) Potestative condition
Q. What is a pure obligation? b) Casual condition
c) Mixed condition
ANS. It is an obligation whose performance 3) As to possibility
does not depend upon a future or uncertain a) Possible condition
event, or upon a past b) Impossible condition
event or upon a past event unknown to the 4) As to mode
parties, demandable at once (Art. 1179, NCC). a) Positive condition
Example: b) Negative condition
 “I promise to pay you P1 million” 5) As to divisibility
 “I’ll pay you P1 million on demand” a) Divisible condition
b) Indivisible condition
6) As to numbers
a) Conjunctive condition
2. Conditional
b) Alternative condition
7) As to form
Q. What is a conditional obligation?
a) Express condition
b) Implied condition
ANS. An obligation subject to a condition and
the effectivity of which is subordinated to the
Q. What is a suspensive condition?
fulfillment or non-fulfillment of a future and
uncertain event, or upon a past event unknown
ANS. It is a condition the fulfillment of the
to the parties (Pineda).
condition will give rise to the obligation. If
Example:
condition is not fulfilled, there is no juridical
 “I promise to give you my car if you pass
relation is created.
the bar exam.”
Example: “I promise to give you a car provided
 “I promise to give you my car on the 18th
that you pass the bar exam.”
birthday of your daughter.”

Q. What are the effects of fulfillment of the

Q. What is a condition?
suspensive condition?

ANS. A condition is a future AND uncertain

ANS.
event upon which the efficacy or
a) Real obligations – Retroacts to the day of the
extinguishment of an obligation depends.
constitution of the obligation except with
respect to the fruits and interest.
Q. What are the classifications of conditions?
 In reciprocal obligations, the fruits and
interests shall be deemed to have been
ANS.
mutually compensated; and
1) As to the effect of obligation
 In unilateral obligations, the debtor
a) Suspensive condition
appropriates the fruits and interest
b) Resolutory condition
received before the fulfillment of the
c) Obligation demandable at once
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condition unless contrary to the b) Debtor – May recover what, during the same
intention of the parties (Art. 1187, time, he has paid by mistake in case of a
NCC). suspensive condition (Art. 1188, NCC).
b) Personal obligations (obligations to do or not
to do) – the court determines the retroactive Q. When is a thing lost?
effect of the condition fulfilled (Art. 1187,
NCC). ANS. A thing is lost when it:
1) Perishes
Q. What is the Doctrine of Constructive 2) Goes out of commerce
Fulfillment of Suspensive Conditions? 3) Disappears in such a way that its existence
is unknown or it cannot be recovered
ANS. Suspensive condition is deemed fulfilled 4) A legal thing becomes illegal
when: 5) A possible thing becomes impossible
1) Obligor intends to prevent obligee from
complying with the condition Q. What does deterioration of a thing mean?
2) Obligor actually prevents obligee from
complying with the condition ANS. It is any reduction or impairment
in the substance or value of a thing which does
Q. What is Principle of Retroactivity in not amount to a loss.
Suspensive Conditions?
Q. What does improvement of a thing mean?
ANS. The effects of a conditional obligation to
give, once the condition has been fulfilled, shall ANS. It means anything added to, incorporated
retroact to the day of the constitution of the in, or attached to the thing that is due.
obligation. Nevertheless, when the obligation
imposes reciprocal prestations upon the parties, Q. What are the rules in case of the
the fruits and interests during the pendency of improvement, loss or deterioration of the
the condition shall be deemed to have been thing pending the happening of the condition
mutually compensated. (Art. 1187, NCC) in obligation to give?
NOTE: This applies to consensual contracts
only except for real contracts which can only be ANS. The following rules are applicable under
perfected by delivery. the following conditions:
 The obligation is real obligation (to give)
Q. What are the rights of the parties before the  The thing is applicable to specific or
fulfillment of the suspensive condition? determinate thing
 The obligation is subject to a suspensive
ANS. obligation
a) Creditor – May bring the appropriate actions  There is improvement, loss or
for the preservation of his right (Art. 1188, deterioration of a thing during the
NCC), pendency of the obligation

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1) If the thing is lost without the fault of the ANS.

debtor  the obligation shall be 1) Real obligations:
extinguished. a) The parties shall return to each other
2) If the thing is lost through the fault of the what they have received (mutual
debtor  the debtor shall be obliged to pay restitution);
damages. b) Obligation is extinguished;
3) When the thing deteriorates without the fault c) In case of loss, deterioration or
of the debtor  the impairment is to be borne improvement of the thing, the
by the creditor. provisions of Art. 1189, with respect to
4) If it deteriorates through the fault of the the debtor, shall be applied to the party
debtor  the creditor may choose between who is bound to return (NCC, Art.
the rescission of the obligation and its 1190).
fulfillment, with indemnity for damages in 2) Personal obligations – The courts shall
either case. determine, in each case, the retroactive effect
5) If the thing is improved by its nature, or by of the condition that has been complied with.
time  the improvement shall inure to the (Arts. 1187 and 1190, NCC)
benefit of the creditor.
6) If it is improved at the expense of the debtor Q. Distinguish between the effects of
 the debtor shall have no other right than suspensive and resolutory conditions upon an
that granted to the usufructuary. (Art. 1189, obligation.
NCC)
ANS. If the suspensive condition is fulfilled, the
NOTE: These rules do not apply to obligation arises or becomes effective. If the
indeterminate or generic things on the basis of resolutory condition is fulfilled, the obligation is
the maxim “genus nun quam peruit” (genus extinguished. If the first is not fulfilled, the
never perishes). It will only apply when the juridical relation is created; if the second is not
object or thing to be given is determinate. fulfilled, the juridical relation is consolidated. In
other words, in the first, rights are not yet
Q. What is a resolutory condition? acquired, but there is a hope or expectancy that
they will soon be acquired; in the second, rights
ANS. It is a condition where the rights already are already acquired, but subject to the threat of
acquired are lost upon fulfillment of the extinction. (Manresa)
condition. If condition is not fulfilled, juridical
relation is consolidated. It is also known as Q. Distinguish suspensive condition from
condition subsequent. resolutory condition.
Example: “My house is yours provided that you
shall not win in the presidential election.” ANS.
Suspensive Resolutory
Q. What are the effects of fulfillment of Condition Condition
resolutory condition? If the condition is If the condition is
fulfilled, the fulfilled, the
obligation arises

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or becomes obligation is c) If the condition is potestative and it depends

effective. extinguished. exclusively upon the will of the creditor, the
If condition is not If condition is not obligation shall be valid.
fulfilled, no fulfilled, juridical When the fulfillment of the condition depends upon
juridical relation relation is the sole will of the debtor, the conditional obligation
is created. consolidated. shall be void. (Art. 1182, NCC)
Rights are not yet Rights are already
acquired, but vested, but subject Q. What is a casual condition?
there is hope or to the threat or
expectancy that danger of ANS. The fulfillment of the condition depends
they will soon be extinction. upon chance and/or upon the will of a third
acquired. person.
Example: I will give you my house if it will rain
Q. What obligations are demandable at once? today; if I win lotto; if your daughter graduate
(3rd person)
ANS.
a) Pure obligation Q. What is a mixed condition?
b) Obligation subject to resolutory condition
c) Obligation subject to resolutory period ANS. The fulfillment of the condition depends
partly upon the will of a party to the obligation
Q. What is a potestative condition? and partly upon chance and/or the will of a
third person.
ANS. It is a condition the fulfillment which NOTE: Casual and mixed conditions are valid,
depends upon the will of one of the contracting unlike purely potestative conditions.
parties.
Example: “I will give you 1M if you like.” Q. What is a possible condition?

Q. What are the effects of potestative ANS. The condition is capable of

conditions upon the obligation? realization/fulfillment according to nature, law,
public policy, or good customs.
ANS.
a) If the condition is potestative and the same is Q. What is an impossible condition?
suspensive, both the condition and
obligation are VOID. ANS. The condition is not capable of
b) If the condition is a pre-existing one or the realization/fulfillment according to nature, law,
condition is resolutory, only the condition is public policy or good customs. It may either be:
void. The obligation itself is valid because a) Physical – that it is contrary to law of
what is left to the sole will of the debtor is not nature
the existence or the fulfillment of the b) Legal – that it is contrary to law, morals,
obligation but merely its extinguishment. good customs, or public policy

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Q. As a general rule, impossible conditions ANS. The condition that some event happen at
annul the obligation which depends upon a determinate time shall extinguish the
them; consequently both the condition and the obligation
obligation are void provided that it depends a) as soon as the time expires; or
upon the happening of the conditions. What b) if it has become indubitable that the event
are the exceptions? will not take place. (Art. 1184, NCC)

ANS. Q. What is a negative condition?

1) In indivisible obligation that part thereof
which is not affected by the impossible or ANS. The condition involves the non-
unlawful condition shall be valid. performance of an act or the nonfulfillment of
Example: A promise to give P5,000 to B if an event.
B will get the highest score in his Civil Law
review class and P50,000 additional if B Q. When shall a negative condition render the
kill C. obligation effective?
2) If the condition is negative, not to do an
impossible thing, it shall be considered as not ANS. The condition that some event will not
having been agreed upon. Thus, the happen at a determinate time shall render the
obligation is pure and valid. obligation effective
Example: A obliges to give B a house if B a) from the moment the time indicated has
will not inflict physical injury against his elapsed; or
opponent in basketball. b) if it has become evident that the event
3) If the obligation is pre-existing and not cannot occur.
depending on the fulfillment of the If no time has been fixed, the condition shall be
impossible condition for its existence, only deemed fulfilled at such time as may have
the condition is void probably been contemplated, bearing in mind
Example: A is indebted to B P100,000; the nature of the obligation. (Art. 1185, NCC)
before payment, A suggested a condition
that B will have to inflict injury to C before Q. What is a divisible condition?
paying said loan.
ANS. The condition is susceptible of partial
Q. What is a positive condition? fulfillment.

ANS. The condition involves the performance Q. What is an indivisible condition?

of an act or the fulfillment of an event.
Example: “I will give you my land if you marry ANS. The condition is not susceptible of partial
Jin this year.” fulfillment.

Q. When shall a positive condition extinguish Q. What is a conjunctive condition?

an obligation?
ANS. There are several conditions, all of which
must be fulfilled (and)

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2) Obligations with a resolutory period take

Q. What is an alternative condition? effect at once, but terminate upon arrival
of the day certain. (Art. 1193, NCC)
ANS. There are several conditions, one of which 3) When the debtor binds himself to pay
must be fulfilled (or). when his means permit him to do so, the
obligation shall be deemed to be one with
Q. What is an express condition? a period (Art. 1180, CC)

ANS. The condition is stated expressly. Q. What is meant by a day certain?

Q. What is implied condition? ANS. A day certain is understood to be that

which must necessarily come, although it may
ANS. The condition is tacit (understood or not be known when.
implied without being stated). NOTE: If the uncertainty consists in whether the
day will come or not, the obligation is
3. Obligation with a period or a term conditional. (Art. 1193, NCC)

Q. What is period or term? Q. What are the kinds of period (as to effect)?

ANS. It is the interval of time, which either 1) Ex die/ Suspensive Period – Obligation
suspends demandability or produces becomes demandable after the lapse of the
extinguishment of an obligation. period.
2) In die/ Resolutory period – Obligation
Q. What are the requisites of a valid period or becomes demandable at once but is
term? extinguished after the lapse of the period.
(Art. 1193, NCC)
ANS.
1) Future; Q. To whom is period presumed to have been
2) Certain; and established?
3) Possible, legally and physically (Paras)
ANS. Whenever in an obligation a period is
Q. When is an obligation with a period or a designated, it is presumed to have been
term? established for the benefit of both the creditor
and the debtor.
ANS. The following are obligations with a Exception: When it appears from the tenor of
period or term: the period or other circumstances that it was
1) Obligations for whose fulfillment a day established for the benefit of one of the parties
certain has been fixed shall be demandable (Art.1196, NCC).
only when that day comes. (Art. 1193,
NCC)

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Q. What is the effect of the term or period 2) When he does not furnish to the creditor
when it is for the benefit of the debtor? the guaranties or securities which he has
promised;
ANS. The debtor may oppose any premature 3) When by his own acts he has impaired said
demand on the part of the creditor for guaranties or securities after their
performance of the obligation, or if he so establishment, and when through a
desires, he may renounce the benefit of the fortuitous event they disappear, unless he
period by performing his obligation in advance. immediately gives new ones equally
satisfactory;
Q. What is the effect of the term or period 4) When the debtor violates any
when it is for the benefit of the creditor? undertaking, in consideration of which the
creditor agreed to the period;
ANS. The creditor may demand the 5) When the debtor attempts to abscond.
performance of the obligation at any time but (Art. 1198, NCC)
the debtor cannot compel him to accept
payment before the expiration of the period. Q. Distinguish condition from term or period.

Q. As a general rule, the court is not authorized Condition Term or Period

to fix a period for the parties. What are the Refers to an event Refers to an
exceptions? interval of time
Fact or event Interval of time
ANS. which is future which is future
1) If the obligation does not fix a period, but and uncertain and certain
from its nature and circumstances, it can be May or may not Will surely come
inferred that a period was intended; happen to pass, although
2) If the period is void, such as when it depends it may not be
upon the will of the debtor; known when
3) If the debtor binds himself when his means Gives rise to an No effect on
permit him to do so; and obligation or existence of the
4) If under circumstances, the parties extinguishes one obligation, only
contemplated a period (Art. 1197, NCC) already existing its demandability
or performance
Q. When shall the debtor lose every right to Has retroactive Has no retroactive
make use of the period? effects effects unless
there is an
ANS. The debtor shall lose every right to make agreement to the
use of the period: contrary
1) When after the obligation has been When the When the
contracted, he becomes insolvent, unless condition is left duration of a term
he gives a guaranty or security for the exclusively to the or period is left
debt; will of the debtor, exclusively to the
the very validity will of the debtor,

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of the obligation is the obligation is Loss/impossibility Loss/impossibility

affected (void) still valid of of
one of the the substitute/s
prestations does does not
4. Alternative or facultative not extinguish the extinguish
obligation. the obligation,
Q. What is an alternative obligation? provided the
obligation which
ANS. It is an obligation where there are two or is
more objects due but the performance of one is due subsists
sufficient. Culpable loss of Culpable loss of
any the
Q. What is a facultative obligation? of the objects object which the
alternatively due debtor may
ANS. It is an obligation where only one object is before the choice deliver in
due but the debtor may substitute another is substitution
object. made may give before
rise the substitution is
Q. Distinguish alternative obligation from to liability on the effected does not
facultative obligation. part of the debtor. give rise to any
liability on the
ANS. part of
Alternative Facultative the debtor.
Obligation Obligation If one prestation is If principal
Several objects are Of the two or void, the others obligation is void,
due more objects, only that are the creditor
one is due, while free from any cannot compel
the other/s may be vices of consent delivery of the
performed in preserve the substitute
substitution of the validity of the
one due obligation.
The right of choice Choice pertains Where the choice Loss of the
belongs to the only to debtor is given to the substitute before
debtor, unless it creditor, the the substitution is
has been loss of the made through the
expressly granted alternative fault of the debtor
to the creditor. through the fault doesn’t
(Art. 1200, NCC) of the make him liable.
debtor renders
Fortuitous loss of Fortuitous loss
him liable for
all prestations will extinguishes the
damages.
extinguish the obligation
obligation
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Q. Who has the right to choose the prestation 2) When only one prestation is practicable (Art.
in an alternative obligation? 1202, NCC)

ANS. The right of choice belongs to the debtor, NOTE: The choice made by the debtor does not
unless it has been expressly granted to the require the concurrence of the creditor.
creditor. (Art. 1200, NCC).
Q. When choice is rendered impossible
NOTE: The notice of selection or choice may be through the creditor’s fault, what is the
in any form provided it is sufficient to make the remedy of the debtor?
other party know that the election has been
made (Tolentino). ANS. The debtor may bring an action to
rescind the contract with damages (Art. 1203,
Q. When shall the choice of the prestation take NCC).
effect?
Q. What are the effects of loss of specific
ANS. The choice shall produce effect one the things or impossibility of performance of
other party is properly notified of the prestations in an alternative obligation?
selection. (Art. 1201, NCC)
ANS.
Q. What is the effect upon the obligation once 1) If debtor’s choice (Art. 1204, NCC)
the choice is made by the debtor (or by the a) Loss due to fortuitous event
creditor or by a third person as the case may i. ALL are lost / impossible  Debtor is
be)? released from the obligation.
ii. SOME are lost / impossible  Debtor
ANS. The obligation ceases to be alternative to perform that which he shall choose
from the moment the selection has been from among the remainder.
communicated to the other party. From that iii. ONE remains  Debtor to perform
moment, both debtor and creditor are bound by that which remains.
the selection. The debtor can only comply with b) Loss to the debtor’s fault
his obligation by performing the prestation i. ALL are lost / impossible  Creditor
which has been selected, while the creditor can shall have a right to indemnity for
only demand compliance in accordance there damages based on the value of the
with. (Jurado) last thing which disappeared or
service which become impossible,
Q. What are the instances when obligation is plus damages other than the value
converted into a simple obligation? may also be awarded
ii. SOME are lost / impossible  Debtor
to perform that which the debtor
ANS. shall choose from among the
1) The person with the right of choice has remainder, without liability for
communicated his choice (Arts. 1201 and damages.
1205, par.1, NCC);

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iii. ONE remains  Debtor to perform Q. What is a joint obligation?

that which remains.
2) If creditor’s choice (Art. 1205, NCC) ANS. It is an obligation where each debtor can
a) Loss due to fortuitous event be made to pay only his share in the obligation.
i. ALL are lost / impossible  Debtor is Other keywords: proportionate; conjoint;
released from the obligation. mancomunada simple; pro rata obligation
ii. SOME are lost / impossible 
Debtor to deliver that which he shall Q. What are the effects of joint liability?
choose from among the remainder.
iii. ONE remains  Debtor to perform ANS.
that which remains. 1) Each debtor is liable only for a proportionate
b) Loss to the debtor’s fault part of the entire debt.
i. ALL are lost  Creditor may claim 2) 2Each creditor, if there are several, is entitled
the price/value of any of them, with only to a proportionate part of the credit.
indemnity for damages. 3) Demand on one produces delay only with
ii. SOME are lost / impossible  respect to the debt.
Creditor may claim any of those 4) Interruption in payment by one does not
subsisting without a right to benefit or prejudice the other
damages OR price/value of the thing 5) Vices of one debtor to creditor has no effect
lost, with right to damages. on the others.
iii. ONE remains  Creditor may claim 6) Insolvency of one debtor does not affect other
the remaining thing without a right debtors.
to damages OR the price/value of the 7) The delay on the part of only one of the joint
thing lost with right to damages. debtors does not produce effects with respect
to the others, and if the delay is produced
Q. What are the effects of loss or deterioration through the acts of only one of the joint
of substitute in facultative obligations (Art. creditors, the others cannot take advantage
1206, NCC)? thereof.

ANS. Q. What is a joint indivisible obligation?

1) Before substitution is made:
 If due to bad faith or fraud of obligor: ANS. It is an obligation where the nature of the
obligor is liable. rights and obligations of the parties are joint and
 If due to the negligence of the obligor: the nature of the object of the obligation is
obligor is not liable. indivisible (not susceptible for partial
2) After substitution is made: performance).
 The obligor is liable for the loss of the
substitute on account of his delay,
negligence or fraud. (Art. 1206, NCC)

5. Joint and solidary obligations

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Q. When is an obligation indivisible? ANS. It is an obligation where one debtor can be

made to pay for the whole obligation subject for
ANS. Obligations to give definite things reimbursement
1) Obligations not susceptible of partial Other keywords: joint and several; several; in
performance solidum; individually and collectively
2) Indivisibility is provided by law or intended
by the parties, even though the object or Q. When is there solidary liability?
service may be physically divisible
3) In obligations not to do, when character of ANS. There is a solidary liability only when the
prestation requires indivisibility (Art. 1225, obligation expressly so states, or when the law
NCC) or the nature of the obligation requires
solidarity. (Art. 1207, NCC)
Q. What are the characteristics of a joint
indivisible obligation? Q. What are the kinds of solidary obligation as
to the parties bound?
ANS.
1) No joint creditor can act in representation of ANS.
the other joint creditor/s 1) Passive – Solidarity on the part of the debtors;
2) No joint debtor can be compelled to fulfill the 2) Active –Solidarity on the part of the creditors
obligation of the other joint debtor/s ;
3) Mixed –Solidarity on both sides.

Q. What are the effects of breach of joint Q. What are the effects of active solidarity?
indivisible obligation?
ANS. (Tolentino)
ANS. A joint indivisible obligation gives rise to 1) Death of solidary creditor does not transmit
indemnity for damages from the time anyone of solidarity to his heirs but rather to all of them
the debtors does not comply with his taken together (joint).
undertaking. The debtors who may have been 2) Each creditor represents the other in
ready to fulfill their promises shall not receiving payment and all other
contribute advantageous acts.
to the indemnity beyond the corresponding 3) Each one of the solidary creditors may do
portion of the price of the thing or of the value whatever may be useful to the others, but not
of the service in which the obligation consists. anything which may be prejudicial to the
(Art. 1224, NCC) latter. (Art. 1212, CC)
Example: A, B and C are jointly indebted to D an 4) The debtor may pay any one of the solidary
amount of 10k each. A paid; B is not willing to creditors; but if any demand, judicial or
pay (10k +damages); C is insolvent (D will wait extrajudicial, has been made by one of them,
for C to be solvent without damages) payment should be made to him. (Art. 1214,
NCC)
Q. What is a solidary obligation?

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5) One creditor does not represent all others in does not entitle him to reimbursement
acts such as novation (even if advantageous), from his co-debtors. (Art. 1220, NCC)
compensation and remission. In this case, 4) All debtors are liable for the loss of the
even if the debtor is released, the other thing due, even if only one of them is at fault,
creditors can still enforce their rights against or after incurring delay it is lost by fortuitous
the creditor who made the novation, event.
compensation or remission (Art. 1215, par. 1, 5) Interruption of prescription as to one debtor
NCC) affects all others, but renunciation of
6) The creditor who collects the debt, shall be prescription already had does not prejudice
liable to the others for the share in the the others.
obligation corresponding to them. (Art. 1215, 6) Interests due by delay of one is borne by all
par. 2, NCC) of them.
7) The credit and its benefits are divided
equally among them, unless there is an Q. What are the effects of the loss of the thing
agreement to the contrary. or impossibility of performance of the passive
(mixed) solidary obligation?
Q. What are the effects of passive solidarity?
ANS.
ANS. (Tolentino) a) Without the fault of the solidary debtors 
1) Each debtor can be required to pay the the obligation shall be extinguished;
entire obligation, but after payment he b) There was fault on the part of any one of the
can recover from the co-debtors their debtors  all shall be responsible to the
respective shares creditor, for the price and the payment of
2) The debtor who is required to pay may set up damages and interest, without prejudice to
by way of compensation his own claim their action against the guilty or negligent
against the creditor (the effect is the same as debtor;
that of payment); c) Through a fortuitous event after one incurred
3) Remission of the entire debt affects all in delay  all debtors shall be responsible to
debtors, but when remission is limited the creditor, for the price and the payment of
to the share of one debtor, the other debtors damages and interest, without prejudice to
are still liable for the balance of the their action against the guilty or negligent
obligation. debtor. (Art. 1221, NCC)
 The remission made by the creditor of the
share which affects one of the solidary Q. What kinds of defenses are available to a
debtors does not release the latter from solidary debtor in actions filed against him by
his responsibility towards the co-debtors, the creditor?
in case the debt had been totally paid by
anyone of them before the remission was ANS. A solidary debtor may, in actions filed by
effected. (Art. 1219, NCC) the creditor, avail himself of all defenses which
 The remission of the whole obligation, are:
obtained by one of the solidary debtors, a) Derived from the nature of the obligation

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Example: nonperformance of suspensive part of the entire

condition or non-arrival of period; res debt.
judicata; prescription Each creditor, if Each creditor has
b) Personal to him there are several, the right to
Example: minority, insanity, fraud, violence, is entitled only to demand from any
or intimidation a proportionate of the debtors, the
c) Pertaining to his own share part of the credit. payment or
d) Personally belonging to other co-debtors but fulfillment of the
only as regards that part of the debt for which entire obligation
the latter are responsible. (Art. 1222, NCC) (Tolentino).

Q. Does indivisibility imply solidarity? Q. Distinguish indivisibility from solidarity.

ANS. No. The indivisibility of an obligation ANS.

does not necessarily give rise to solidarity. Nor INDIVISIBILITY SOLIDARITY
does solidarity of itself imply indivisibility. Refers to the Refers to the
(Art. 1210) prestation that is juridical tie or
Solidarity may exist although the creditors and not capable of legal tie or
the debtors may not be bound in the same partial fulfillment vinculum juris
manner and by the same periods and Exists even if Exists only if there
conditions. (Art. 1211, NCC) there is only one are two or more
debtor and one debtors or two or
Q. Distinguish joint obligation from solidary creditor more creditors
obligation. Each debtor is not In solidarity, each
bound to fulfill debtor is bound to
ANS. the obligation the fulfillment of
Joint Obligation Solidary more than his the entire
Obligation share and each obligation and
Presumed by Not presumed by creditor cannot each creditor may
Law (Art. 1208, law. It must be demand demand the
NCC). expressly fulfillment of the fulfillment of the
stipulated by the obligation more entire obligation
parties, or when than his share
the law or the In case of breach In case of breach
nature of the of obligation, the of obligation, the
obligation indivisible solidary character
requires obligation is of the obligation
solidarity (Art. converted into remains
1207, NCC) indemnity for
Debtor is liable Debtor is obliged damages; thus,
for his to pay the entire the indivisible
proportionate obligation. character of the

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obligation is
terminated ANS. A thing is indivisible when, if separated
Only the debtors All the debtors are into parts, its essence is changed or its value is
guilty of breach ofliable for damages decreased proportionately.
the obligation is even if only one of
liable for damages them is guilty of Q. What obligations are deemed indivisible?
breach of
obligation ANS.
if one debtor is If one debtor is 1) Obligations to give definite things
insolvent, insolvent, all 2) Obligations which are not susceptible of
the other debtors the other debtors partial performance
are not liable for who are solvent 3) Obligation is indivisible if so provided by
his share are law or intended by the parties (Art. 1225,
proportionately NCC)
liable for the share Example: Taxes cannot be paid in installment
of the
former
Q. When shall obligations be divisible?
Q. What are divisible obligations? ANS.
1) When the obligation has for its object the
ANS. Divisible obligations are those which have execution of a certain number of days of
as their object a prestation which is susceptible work, the accomplishment of work by
of partial performance without the essence of metrical units, or analogous things which by
the obligation being changed. their nature are susceptible of partial
Example: to deliver 10 sacks of rice performance
Example: To paint a house in ten days
Q. What are indivisible obligations? 2) Obligations which are susceptible of partial
performance
ANS. Indivisible obligations are those which Exceptions: If so provided by law or intended
have as their object a prestation which is not by the parties. (Art. 1225, NCC)
susceptible of partial performance, because
otherwise the essence of the obligation will be 6. Obligations with a penal clause
changed
Example: obligation to deliver a specific car Q. What is a penal clause?

Q. When is a thing divisible? ANS. It is an accessory undertaking to assume

greater liability in case of breach. It is attached
ANS. A thing is divisible when, if separated into to an obligation in order to ensure performance.
parts, its essence is not changed or its value is
not decreased proportionately.

Q. When is a thing indivisible?

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Q. What is an accessory obligation? ANS. The creditor cannot demand the

fulfillment of the obligation and the satisfaction
ANS. It is an obligation, where its existence of the penalty at the same time.
depends upon a principal obligation. Exceptions:
1) When the right has been clearly granted to
Q. What is a principal obligation? him;
2) If the creditor has decided to require the
ANS. It is an obligation which exists without fulfillment of the obligation, the
depending upon another obligation. performance thereof should become
impossible without his fault, the penalty
Q. When is the penalty demandable? may be enforced (Art. 1227, NCC).

ANS. A penalty is demandable in case of non- NOTE: Proof of actual damages suffered
performance or late performance of the by the creditor is not necessary in order
principal obligation. that the penalty may be demanded. (Art.
1228, NCC)
Q. In an obligation with a penal clause, the
penalty shall substitute the indemnity for Q. When may penalty be reduced?
damages and payment of
interest in case of non-compliance. What are ANS. PUI
the exceptions? 1) If the principal obligation has been partly
complied with.
ANS. 2) If the principal obligation has been
a) There is an express provision to that effect; irregularly complied with.
b) The obligor refuses to pay the penalty; or 3) If the penalty is iniquitous or unconscionable,
c) The obligor is guilty of fraud in non- even if there has been no performance. (Art.
fulfillment. (Art. 1226, NCC) 1229, NCC)

Q: Can the debtor just choose penalty over

non-fulfillment of the obligation? D. EXTINGUISHMENT OF
OBLIGATIONS
ANS. The debtor cannot exempt himself from
the performance of the obligation by paying the Q. When are obligations extinguished?
penalty except when the right has been
expressly reserved to the debtor. (Art. 1227, ANS. Obligations are extinguished:
NCC) 1) By payment or performance:
2) By the loss of the thing due:
Q. Can the creditor demand both the 3) By the condonation or remission of the
fulfillment of the principal obligation and the debt;
penalty? 4) By the confusion or merger of the rights of
creditor and debtor;
5) By compensation;

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6) By novation. and without expressing any protest or

Other causes of extinguishment of obligations: objection (Art. 1235, NCC); or
1) Death of a party in case of personal 3) Debt is partly liquidated and partly
obligation unliquidated, but the liquidated part of the
2) Mutual desistance or withdrawal of debt must be paid in full.
parties
3) Arrival of a resolutory period Q. What is the doctrine of waiver of strict
4) Compromise agreement compliance?
5) Impossibility of fulfillment
6) Happening of a fortuitous event ANS. A creditor is deemed to have waived strict
compliance by debtor with an obligation when
the following elements are present:
1. Payment or 1) An intentional acceptance of the defective
performance or incomplete performance
2) With actual knowledge of the
Q. What is payment? incompleteness or defect
3) Under circumstances that would indicate
ANS. Payment is the fulfillment of the an intention to consider the performance
obligation by the realization of the purposes for as complete and renounce any claim
which it was constituted. (Jurado) arising from the defect
Payment means not only the delivery of money
but also the performance, in any other manner, Q. To whom shall the creditor accept payment?
of an obligation. (Art. 1232, NCC)
ANS.
Q. What is meant by the principle of integrity a) Debtor
of the prestation? b) Any person who has interest in the
obligation
ANS. A debt shall not be understood to have c) 3rd person who has no interest in the
been paid unless the thing or service in which obligation but there is a stipulation that he
the obligation consists has been completely can make payment. (Art. 1236, NCC)
delivered or rendered, as the case may be. (Art.
1233, NCC) Q. To whom shall payment be made?

Q. What are the exceptions that payment or ANS. Payment shall be made to
performance must be complete? a) the person in whose favor the obligation
has been constituted (debtor or his duly
ANS. authorized agent);
1) When there is substantial performance in b) the debtor’s successor in interest; or
good faith (Art. 1234, NCC); c) or any person authorized to receive it.
2) When the obligee accepts the performance, (Art. 1240, NCC)
knowing its incompleteness or irregularity

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Q. What is the effect of payment to creditor by

a third person? Q. What is the effect of payment made by an
incapacitated person?
ANS. The creditor is not bound to accept
payment or performance by a third person, ANS. The payment by an incapacitated person
except: is not valid (Art. 1239, NCC).
a) If he is authorized by the debtor; Exception:
b) If he has interest in the debt; or When a minor between eighteen and twenty-
c) If there is a stipulation to the contrary. one years of age, who has entered into a contract
(Art. 1236, NCC) without the consent of the parent or guardian,
voluntarily pays a sum of money or delivers a
Q. What is the effect if the debt has been paid fungible thing in fulfillment of the obligation,
by a third person? there shall be no right to recover the same from
the obligee who has spent or consumed it in
ANS. good faith. (Art. 1427., NCC)
a) If the payment was made without the
knowledge of or against the will of the
debtor, the reimbursement shall only be up to Q. What is the effect of payment to an
the amount or extent by which the debtor unauthorized person?
was benefited. The third person cannot
compel the creditor to subrogate him in his ANS. Generally, payment to an unauthorized
rights, such as those arising from a mortgage, person who is is not valid. Exception:
guaranty, or penalty. (Arts. 1236 and 1237, 1) Payment to a person who is incapacitated to
NCC) administer his property shall be valid
b) If the third person pays for the obligation of a) if he has kept the thing delivered; or
the debtor with the knowledge and consent b) insofar as the payment has been
of the latter, the payor is entitled to be beneficial to him. (Art. 1241, NCC)
reimbursed for the full amount. (Art. 1236, 2) Payment made to a third person insofar as it
NCC) has redounded to the benefit of the creditor.
c) If the third person pays for the obligation Such benefit to the creditor need not be
with the knowledge of the debtor and does proved in the following cases:
not object thereto at any time, the latter must a) If after the payment, the third person
pay the amount advanced by the former. acquires the creditor's rights
(subrogation);
Q. What is the effect of payment made by a b) If the creditor ratifies the payment to the
third person who does not intend to be third person (ratification);
reimbursed by the debtor? c) If by the creditor's conduct, the debtor
has been led to believe that the third
ANS. It is deemed to be a donation, which person had authority to receive the
requires the debtor's consent. But the payment payment (estoppel). (Art. 1241, NCC)
is in any case valid as to the creditor who has 3) Payment made in good faith to any person in
accepted it. (Art. 1238, NCC) possession of the credit. (Art. 1242, NCC)

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act or forbearance against the obligee's will.

**Dacion en pago is discussed under Sales.*** (Art. 1244, NCC) What are the exceptions?

ANS.
Q. What is meant by identity of the prestation? a) If the obligation is facultative (Art. 1206,
NCC)
ANS. The debtor of a thing cannot compel the b) When there is substantial performance by the
creditor to receive a different one, although the debtor (Art. 1234, NCC)
latter may be of the same value as, or more c) When the obligee accepts the performance,
valuable than that which is due. knowing its incompleteness or irregularity,
In obligations to do or not to do, an act or and without expressing any protest or
forbearance cannot be substituted by another objection, the obligation is deemed fully
act or forbearance against the obligee's will. complied with. (Art. 1235, NCC)
(Art. 1244, NCC) d) If the creditor agrees (dation in payment)
(Art. 1245, NCC)
Q. What is the doctrine of substantial
performance? Q. Generally, the creditor cannot be compelled
partially to receive the prestations in which
ANS. The debtor, when in good faith, has the obligation consists. Neither may the
attempted to perform the contract or prestation, debtor be required to make partial payments.
but through oversight, or any excusable neglect, (Art. 1248, NCC) When shall partial payment
he failed to make a full and complete be valid?
performance, such performance will still be
considered complete if the essential purpose is ANS. Partial payments are allowed in the
accomplished. following cases:
a) there is an express stipulation to that
Q. What are the requisites of a valid payment? effect;
b) when the debt is in part liquidated and in
ANS. part unliquidated;
1) The person who pays the debt must be the c) when there are different prestations
debtor; subject to different terms &
2) The person to whom payment is made must d) conditions
be the creditor;
3) The thing to be paid or to be delivered must Q. For debts in money, what shall be the form
be the precise thing or the thing required to of payment?
be delivered by the creditor;
4) The manner (if expressly agreed upon), time, ANS. The payment of debts in money shall be
and place of payment, etc.; and made in the currency stipulated, and if it is not
5) Acceptance by the creditor. possible to deliver such currency, then in the
currency which is legal tender in the
Q. In obligations to do or not to do, an act or Philippines. (Art. 1249, NCC)
forbearance cannot be substituted by another

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Q. What is legal tender? 5) Payment made is not sufficient to cover all

debts (Art. 1252, NCC)
ANS. It is the currency which in a given
jurisdiction can be used in the payment of debts, Q. What are the rules on application of
and which cannot be refused by the creditor. payment:?

Q. Where shall payment of obligation be ANS.

made? 1) The right to designate the debt to which the
payment shall be applied belongs primarily
ANS. to the debtor. (Art. 1252, NCC) He may
1) In the place designated in the obligation. declare at the time of making of the payment,
2) In the absence of stipulation— to which of them the same must be applied.
a) If obligation is to deliver a determinate 2) If the debtor does not apply the payment, the
thing: wherever the thing might be at creditor may designate which debt is made
the moment the obligation was by specifying in the receipt. (Art. 1252, NCC)
constituted. 3) If the creditor did not apply or is application
b) In any other case, in domicile of debtor is void, the debt which is most onerous to the
(Art. 1251, NCC) debtor, among those due, shall be deemed to
have been satisfied. (Art. 1254, NCC)
4) If the debts due are of the same nature and
Application or Payment burden, the payment shall be applied to all of
them proportionately. (Art. 1254, NCC)
Q. What is application of payment? 5) If debt produces interest, the payment is not
to be applied to the principal unless the
ANS. It is the designation of the debt to which interests are covered. (Art. 1253, NCC)
the payment must be applied when the debtor
has several obligations of the same kind in favor
of the same creditor. Payment by Cession

Q. What are the requisites for application of Q. What is payment by cession?

payment to apply?
ANS. It Is a special form of payment that
ANS. involves assignment and abandonment of all
1) There is a plurality of debts the properties of the debtor for the benefit of his
2) Debts are of the same kind creditors in order that the latter may sell the
3) Debts are owed to the same creditor and by same and apply the proceeds thereof to the
the same debtor satisfaction of their credits.
4) All debts must be due, unless parties so
stipulate, or when application is made by the
party for whose benefit the term has been
constituted

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Q. What are the requisites of payment by state of financial

relatively
cession? difficulty insolvent
Assignment of
Assignment
ANS. only some specific
involves all the
1) There must be two or more creditors; thing property of the
2) The debtor must be partially or completely debtor
insolvent; Consent of only Consent of all the
3) There must be an acceptance of the cession or one creditor is creditors is
assignment by the creditors; needed required
4) The assignment must involve the property of
the debtor.
Tender of Payment and Consignation
Q. Distinguish dation in payment from
payment by cession. Q. What is tender of payment?

ANS. ANS. It is the definitive act of offering the

Dation in Payment by creditor what is due him or her, together with
Payment cession the demand that the creditor accept the same.
In favor of only There are various
one creditor creditors Q. What is consignation?
Payment Extinguishes
extinguishes the credits only up to ANS. It is the act of depositing the thing due
obligation to the the extent of with the court or judicial authorities whenever
extent of the value proceeds from the creditor cannot accept or refuses to accept
of the thing sale of assigned payment, and it generally requires a prior
delivered, unless property, unless tender of payment. It should be distinguished
the parties agree otherwise agreed from tender of payment.
that the obligation upon
be totally Q. What are the requisites of a valid tender of
extinguished payment?
Ownership isOnly possession
transferred to the and ANS.
creditor upon administration 1) Offer of payment due to the creditor;
delivery with 2) It must be unconditional not subject to any
authorization to stipulation; and
convert property 3) It must be actually made.
to cash with
which the debts Q. What are the requisites of a valid
shall be paid consignation?
Debtor not Debtor must be
necessarily in partially or ANS. In order that consignation may be
effective, the debtor must show that:

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1) There was a debt due; Q. Who bears the expenses in consignation?

2) The consignation of the obligation had been
made because: ANS. The expenses of consignation, when
a) creditor is absent or unknown, or does properly made, shall be charged against the
not appear at the place of payment; creditor. (Art. 1259, NCC)
b) creditor is incapacitated to receive the
payment at the time it is due; Q. What are the effects of consignation?
c) creditor, without just cause, refuses to
give a receipt; ANS. Once the consignation has been duly
d) two or more persons claim the same made (accepted by the creditor or declared
right to collect; properly made by the Court)
e) title of the obligation has been lost. (Art. 1) Debtor is released in same manner as if he
1256, NCC); had performed the obligation at the time of
3) Previous notice of the consignation had been consignation
given to the person interested in the 2) Accrual of interest is suspended from the
performance of the obligation; moment of consignation.
4) The amount due was placed at the disposal 3) Deterioration or loss of the thing or amount
of the court; and consigned, occurring without the fault of
5) After the consignation had been made, the debtor, must be borne by creditor from the
person interested was notified of the action. moment of deposit.

Q. What constitutes valid consignation? Q. What are the effects if after proper
consignation, the debtor withdraws?
ANS. In order that the consignation of the thing
due may release the obligor, it must first be ANS.
announced to the persons interested in the 1) The obligations remains
fulfilment of the obligation. 2) The creditor shall lose preference which may
The consignation shall be ineffectual if it is not have over the thing
made strictly in consonance with the provisions 3) The co-0debtors, guarantors and sureties
which regulate payment. (Art. 1257, NCC) shall be released. (Art. 1261, NCC)

Q. How is consignation made?

Q. Distinguish tender of payment from
ANS. Consignation shall be made by depositing consignation.
the things due at the disposal of judicial
authority, before whom the tender of payment Tender of Consignation
shall be proved, in a proper case, and the Payment
announcement of the consignation in other Antecedent of Principal or
cases. The consignation having been made, the consignation or consummating act
interested parties shall also be notified preliminary act to for the
thereof. (Art. 1258, NCC) consignation extinguishment
of the obligation

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It does not by It extinguishes the Exception: The thing having been offered by
itself extinguish obligation when the debtor to the person who should receive
the obligation declared valid it, the creditor refused without justification to
Extrajudicial Judicial accept it.
b) When there is acceptance of payments in bad
faith. (Art. 2159, NCC)
2. Loss of determinate
thing due or Q. When is the legal excuse of fortuitous event
impossibility or not applicable?
difficulty of
performance ANS. When the legal excuse of fortuitous
event is not applicable, in cases of:
a) Delay or promise to deliver thing to two or
Q. When is a thing lost?
more persons. [Art. 1165 (3), CC]
b) Nature of the obligation requires assumption
ANS. A thing is lost when it:
of risk (Art. 1174, NCC)
1) Perishes
c) Liability of a bailee in fortuitous events. (Art.
2) Goes out of commerce
1942, NCC)
3) Disappears in such a way that its existence
d) Liability of a depositary in fortuitous events.
is unknown or it cannot be recovered
(Art. 1979, NCC)
4) A legal thing becomes illegal
e) Liability of the officious manager in
5) A possible thing becomes impossible.
fortuitous events. (Art. 2147, NCC)
Q. What is the effect of loss of a determinate
Q. What is the effect of loss of a generic thing?
thing?

ANS. The obligation is not extinguished. (Art.

ANS. Loss of determinate things extinguishes
1263, NCC)
the obligation when if it should be lost or
Exceptions:
destroyed without the fault of the debtor, and
a) In case of generic obligations whose object
before he has incurred in delay.
is a particular class or group with specific
Exceptions:
or determinate qualities (delimited generic
a) When law or stipulation provides
obligation);
otherwise
b) In case the generic thing has already been
b) When the nature of the obligation requires
segregated or set aside, in which case, it
the assumption of risk. (Art. 1262, NCC)
has become specific.
Q. When does loss not extinguish an
Q. What is the effect of partial loss of the
obligation to deliver a determinate thing?
object of the obligation?
ANS.
ANS. Partial loss of the object of the obligation
a) When the obligation to deliver a determinate
does not extinguish the obligation.
object arises from a criminal act. (Art. 1268,
NCC)

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Exception: When the courts determine the

partial loss of the object of the obligation is so
important as to extinguish the obligation (Art. ANS.
1264, NCC) 1) The event or change in circumstances could
not have been foreseen at the time of the
Q. What is the effect when the thing is lost in execution of the contract;
the possession of the debtor? 2) It makes the performance of the contract
extremely difficult but not impossible;
ANS. It is presumed that loss is due to debtor’s 3) The event must not be due to the act of any of
fault and the obligation is not extinguished. the parties; and
Exception: Presumption shall not apply in case 4) The contract is for a future prestation.
loss is due to earthquake, flood, storm, or other (Tolentino)
natural calamity. (Art. 1265, NCC).
Exception to the exception: Debtor still liable Q. What is the effect when the obligation is
even if loss is due to fortuitous event when: extinguished due to the loss of the thing?
a) Debtor incurred in delay; or ANS. Creditor shall have all rights of action
b) Debtor promised to deliver the thing to which the debtor may have against third
two or more persons with different persons by reason of the loss (subrogation of
interests (Art. 1165(3), NCC). rights). (Art. 1269, NCC)

Q. What is the effect when the prestation 3. Condonation or

becomes legally or physically impossible remission of debt
without the fault of the obligor?
Q. What is remission or condonation?
ANS. The obligation is extinguished. (Art. 1266, ANS. It is an act of liberality by virtue of which
NCC). the creditor, without receiving any price or
equivalent, renounces the enforcement of the
Q. What is the effect of difficulty of obligation.
performance in an obligation? The gratuitous abandonment by the creditor of
his right and the acceptance by the obligor is
ANS. When the service has become so difficult necessary.
as to be manifestly beyond the contemplation of
the parties, the obligor may also be released Q. What are the requisites of condonation or
therefrom, in whole or in part. This is also remission?
known as the doctrine of unforeseen event. (Art.
1267, NCC) ANS.
1) It must be gratuitous;
Q. What are the requisites in order to relieve 2) It must be accepted by the debtor;
the debtor from his obligation, in whole or in 3) The obligation must be demandable;
part, based on unforeseen difficulty of 4) The parties must have capacity;
fulfilment? 5) It must not be inofficious; (otherwise, it
would be reduced by the court since in

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donation, no one can give more than what he the waiver of the latter shall leave the former in
have) force. (Art. 1273, NCC)
6) Formalities of a donation are required in the
case of an express condonation. (Art. 1270, Q. When is an accessory obligation presumed
NCC) to be condoned?

Q. What is the effect of delivery of evidence of ANS. It is presumed that the accessory
credit to debtor? obligation of pledge has been remitted when the
ANS. If the creditor voluntarily delivers the thing pledged, after its delivery to the creditor,
private document evidencing the credit to the is found in the possession of the debtor, or of a
debtor, it implies the renunciation of the action third person who owns the thing. (Art. 1274,
which the debtor had against the creditor. (Art. NCC)
1271, NCC) There is a prima facie presumption
of condonation unless the contrary evidence is 4. Confusion
proved.
Q. What is merger or confusion?
Q. What are the requisites for the presumption
of condonation? ANS. It is the meeting in one person of the
qualities of creditor and debtor with respect to
1) The document evidencing the credit must the same obligation.
have been delivered by the creditor to the
debtor; Q. What are the requisites of merger or
2) The document must be a private document; confusion?
and
3) The delivery must be voluntary (Art. 1271, ANS.
NCC). 1) The merger of the characters of the creditor
and debtor must be in the same person;
Q. When is there presumption of delivery of 2) The merger must take place in the person of
private document? either the principal creditor or the principal
debtor;
ANS. Whenever the private document in which 3) The merger must be complete and definite.
the debt appears is found in the possession of
the debtor, it shall be presumed that the creditor Q. What is the effect of confusion or merger of
delivered it voluntarily, unless the contrary is rights?
proved. (Art. 1272, NCC)
ANS. The creditor and debtor become the same
Q. What is the effect of the renunciation of the person involving the same obligation. Hence,
principal debt? the obligation is extinguished (Art. 1275, NCC).

ANS. The renunciation of the principal debt NOTE: Obligation is not extinguished when
shall extinguish the accessory obligations; but confusion takes place in the person of
subsidiary debtor (i.e. guarantor), but merger in

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the person of the principal debtor shall benefit Compensation shall take place when two
the former. persons, in their own right, are creditors and
debtors of each other. (Art. 1278, NCC)
Q. What is the effect of confusion or merger in
relation to the guarantors? Q. What are the kinds of compensation?

ANS. ANS.
1) Merger which takes place in the person of the 1) As to cause
principal debtor or principal creditor benefits a) Legal – takes effect by operation of law
the guarantors. The contract of guaranty is from the moment all the requisites
extinguished; prescribed by law are present (Art.
2) Confusion which takes place in the person of 1279).
any of the latter does not extinguish the b) Voluntary or Conventional – takes
obligation. (Art. 1276, NCC) place by agreement of the parties
c) Judicial –takes effect by judicial decree
Q. What is the effect of confusion or merger in d) Facultative – can be set up only by one
one debtor or creditor in a joint obligation? of the parties
Example: An obligation with a period
ANS. Confusion does not extinguish a joint for the benefit of the debtor but the
obligation except as regards the share debtor renounces the period to make
corresponding to the creditor or debtor in the obligation become due
whom the two characters concur. (Art. 1277, 2) As to Effect
NCC) a) Total –when the two debts are of the
same amounts
Q. What is the effect of confusion or merger in b) Partial –when the two debts are not of
a solidary obligation? the same amounts

ANS. It extinguishes the entire obligation, but Q. What are the requisites of (legal)
the other debtors may be compensation?
liable for reimbursement if payment was made
prior to remission. ANS. In order that compensation may be
proper, it is necessary:
5. Compensation 1) That each one of the obligors be bound
principally, and that he be at the same time
Q. What is compensation? a principal creditor of the other;
2) That both debts consist in a sum of money,
ANS. It is the extinguishment to the concurrent or if the things due are consumable, they
amount of the debts of two persons who, in their be of the same kind, and also of the same
own right, are reciprocally principal debtors quality if the latter has been stated;
and creditors of each other. 3) That the two debts be due;
4) That they be liquidated and demandable;

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5) That over neither of them there be any ANS. They may be compensated against each
retention or controversy, commenced by other before they are judicially rescinded or
third persons and communicated in due avoided. (Art. 1284, NCC)
time to the debtor. (Art. 1279, NCC)
Q. What are the effects of assignment of rights
NOTE: When all the requisites are present, by the creditor to a third person?
compensation takes effect by operation of law, ANS. A legal compensation can still take effect
and extinguishes both debts to the concurrent before or after the creditor (assignor) assigned
amount, even though the creditors and debtors his right (debt) to a third person (assignee).
are not aware of the compensation. (Art. 1290, 1) With the consent of the debtor - the right to
NCC) the compensation is waived, unless the
debtor reserved his right to the
Q. What is the right of a guarantor in compensation.
compensation? 2) With the knowledge but without the consent
of the debtor - the right to the compensation
ANS. A guarantor may set up compensation as may be set to the debts due prior to the
regards what the creditor may owe the principal assignment, but not to subsequent ones.
debtor. (Art. 1280, NCC) 3) Without the knowledge of the debtor - the
right to the compensation may be set before
Q. What are the requisites of conventional or or after the assignment, until the debtor had
voluntary compensation? knowledge of such assignment. (Art. 1285,
NCC)
ANS.
1) That each of the parties can dispose of the Q. Give examples of obligations which cannot
credit he seeks to compensate; be compensated?
2) That they agree to the mutual
extinguishment of their credits ANS.
a) Contracts of depositum (Art. 1287, NCC)
Q. May the parties agree upon the b) Contracts of commodatum
compensation of debts which are not yet due? c) Future support due by gratuitous title
d) Civil liability arising from a penal offense
ANS. The parties may agree upon the (Art. 1288, NCC)
compensation of debts which are not yet due e) Obligations due to the government
(Art. 1282, NCC) However, in a voluntary f) Damage caused to the partnership by a
compensation, the parties should have the partner
capacity to dispose of credits which they
compensate. Q. If a person should have against him several
debts which are susceptible of compensation,
Q. When one or both debts are rescissible or what rules shall apply?
voidable, when may they be compensated?
ANS. The rules on the application of payments
shall apply to the order of the compensation.

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a) Total or extinctive – old obligation is

6. Novation terminated by the creation of a new one
that takes the place of the former
Q. What is novation? b) Partial or modificatory – merely
modificatory when the old obligation
ANS. Novation is the extinguishment of an subsists to the extent that it remains
obligation by a substitution or change of the compatible with the amendatory
obligation by a subsequent one which agreement
extinguishes or modifies the first either by: 4) As to origin
a) changing object or principal obligations; a) Legal – takes place by operation of law
b) by substituting the person of the debtor; b) Conventional – takes place by the
c) by subrogating a third person in the rights stipulation of the parties
of the creditor (Art. 1291, NCC)
Q. In payment of sum of money, when is the
Q. What are the kinds of novation? payment of the first obligation not novated by
a second obligation?
ANS.
1) As to the subject ANS. The first obligation is not novated by a
a) Real or objective –made either by second obligation in the following cases:
changing the object or the principal 1) Expressly recognizes the first obligation;
conditions 2) Changes only the terms of payment;
b) Personal obligation – made by 3) Adds other obligation not incompatible
substituting the person of the debtor or with the old ones; or
subrogating a 3rd person to the rights of 4) Merely supplements the first one.
the creditor
c) Mixed –made either by changing the Q. What are the requisites of express novation?
object or the principal conditions and by
substituting the person of the debtor or ANS. In order that a novation can take place, the
subrogating a 3rd person to the rights of concurrence of the following
the creditor requisites are indispensable:
2) As to constitution 1) There must be a previous valid obligation;
a) Express (explicit declaration) – the new 2) There must be an agreement of the parties
obligation declares in unequivocal concerned to a new contract;
terms that the old obligation is 3) There is substantial difference between old
extinguished (Art. 1292, NCC) and new obligations and, consequently,
b) Implied (material compatibility) – when there is extinguishment of the old
the new obligation is incompatible with obligation
the old one on every point 4) There must be the validity of the new
Test of Incompatibility: whether the contract.
two obligations can stand together, each
one with its own independent existence NOTE: Novation is NEVER presumed.
3) As to extent or effect

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Q. Is knowledge of the debtor always required Q. What is the effect of new debtor’s
in a novation? insolvency or non-fulfillment of obligation in
expromision?
ANS. Novation which consists in substituting a
new debtor in the place of the original one, may ANS. If the substitution is without the
be made even without the knowledge or against knowledge or against the will of the debtor, the
the will of the latter, BUT not without the new debtor's insolvency or non-fulfillment of
consent of the creditor. (Art. 1293, NCC) the obligations shall not give rise to any liability
on the part of the original debtor. (Art. 1294,
Q. What are the kinds of personal novation? NCC)

ANS. Q. What is the effect of insolvency by new

1) Substitution – substituting the person of the debtor in delegacion?
debtor
2) Subrogation – subrogating a third person in ANS. The insolvency of the new debtor, who
the rights of the creditor has been proposed by the original debtor and
accepted by the creditor, shall not revive the
Q. What are the kinds of substitution? action of the latter against the original obligor.
Exception:
ANS. a) when said insolvency was already existing
1) Expromision when he delegated his debt
 The initiative for the change does not b) when said insolvency was already of
come from the debtor and may even be public knowledge when he delegated his
made without his knowledge. debt (Art. 1295, NCC)
 Since a third person would substitute
for the original debtor and assume the Q. What is the effect of novation of a principal
obligation, his consent and that of the obligation on accessory obligation?
creditor would be required.
 It is essential that the old debtor be ANS. When the principal obligation is
released from his obligation; otherwise, extinguished in consequence of a novation,
there is no expromision. accessory obligations are also extinguished.
2) Delegacion Exception: accessory obligation may subsist
 Substitution of the person of the debtor only insofar as they may benefit third persons
may be effected by delegacion, who did not give their consent. (Art. 1296, NCC)
meaning, the debtor offers, and the
creditor (delegatario), accepts a third Q. What is the effect of novation where the
person who consents to the substitution new obligation is void?
and assumes the obligation.
 The original debtor is released from the ANS. If the new obligation is void, the original
obligation. one shall subsist.

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Exception: unless the parties intended that the

former relation should be extinguished in any ANS. All the parties must give their consent:
event. (Art. 1297, NCC) a) original parties
b) third person/new party
Q. What is the effect of novation where the old
obligation is void? Q. When is legal subrogation presumed?

ANS. The novation is void if the original ANS. It is presumed that there is legal
obligation was void. subrogation:
Exception: 1) When a creditor pays another creditor
a) when annulment may be claimed only by who is preferred, even without the
the debtor; or debtor's knowledge;
b) when ratification validates acts which are 2) When a third person, not interested in the
voidable. (Art. 1298, NCC) obligation, pays with the express or tacit
approval of the debtor;
Q. What is the effect of a suspensive or 3) When, even without the knowledge of the
resolutory condition in novation? debtor, a person interested in the
fulfillment of the obligation pays, without
ANS. If the original obligation was subject to a prejudice to the effects of confusion as to
suspensive or resolutory condition, the new the latter's share. (Art. 1302, NCC)
obligation shall be under the same condition,
unless it is otherwise stipulated. (Art. 1299, Q. What is the effect of total subrogation?
NCC) ANS. Subrogation transfers to the persons
subrogated the credit with all the rights thereto
Q. What are the kinds of subrogation? appertaining, either against the debtor or
against third person, be they guarantors or
1) As to cause or origin possessors of mortgages, subject to stipulation
a) Conventional Subrogation – takes place in a conventional subrogation. (Art. 1303, NCC)
by agreement of the parties
b) Legal Subrogation – takes place without Q. What is the effect of partial subrogation?
agreement but by operation of law
because of certain acts (Art. 1300, NCC) ANS. A creditor, to whom partial payment has
2) As to extent been made, may exercise his right for the
a) Total subrogation – Credits or rights of the remainder, and he shall be preferred to the
creditor in the transaction are totally person who has been subrogated in his place in
transferred to the third person. virtue of the partial payment of the same credit.
b) Partial subrogation – Only part of the (Art. 1304, NCC)
credit or rights of the creditor in the
transaction are transferred to the third
person.
Q. In a conventional subrogation, whose
consent is required?

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decision shall not be binding until it has been

VII. CONTRACTS made known to both contracting parties.
(Art. 1309, NCC)
Q. What is a contract? 3) Obligatoriness Consensuality (Art. 1315,
NCC) perfected by mere agreement consent
ANS. A contract is a meeting of minds between or agreement of the parties (Art. 1315, NCC)
two persons whereby one binds himself, with Effects:
respect to the other, to give something or to a) parties are bound to the fulfillment of
render some service. (Art. 1305, NCC) what has been expressly stipulated
b) parties are bound to all the
Q. Distinguish contract from obligation. consequences which, according to their
nature, may be in keeping with good
ANS. faith, usage and law
Contract Obligation Requisites: Before a contract may be
Contract is one of Obligation is the considered obligatory, it is necessary that
the sources of legal tie or that such is:
obligations. relation itself that a) Perfected
exists after a b) Valid
contract has been c) Enforceable (Rabuya)
entered into. 4) Relativity
There can be no An obligation Contracts take effect only between the parties,
contract if there is may exist without their assigns and heirs (Art. 1311, NCC)
no obligation. a contract. Exceptions:
a) Where the obligations arising from the
Q. What are the characteristics of a contract? contract are not transmissible by their
ANS. The following are the characteristics of a nature
contract (AMOR): b) Where the obligations arising from the
1) Autonomy contract are not transmissible by
The contracting parties may establish such stipulation
stipulations, clauses, terms and conditions as c) Where the obligations arising from the
they may deem convenient, provided they contract are not transmissible by provision
are not contrary to law, morals, good of law
customs, public order, or public policy. (Art. d) Contracts containing a stipulation in favor
1306, NCC) of a third person (stipulation pour autrui)
2) Mutuality e) Contracts creating real rights, third
The contract must bind both contracting persons who come into possession of the
parties; its validity or compliance cannot be object of the contract are bound thereby
left to the will of one of them. (Art. 1308, (Art. 1312, NCC)
NCC) f) Contracts entered into to defraud creditors
Exception: (Art. 1313, NCC)
The determination of the performance may
be left to a third person, whose

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g) Contracts which have been violated at the

inducement of the third person (Art. 1314, A. GENERAL PROVISIONS
NCC)
1. Stages of contracts
Q. What is stipulation pour autrui (stipulation
in favor of a third person)?
Q. What are the stages of contracts?

ANS. It is a stipulation in a contract clearly and

ANS.
deliberately conferring a favor upon a third
1) Preparation (conception or “generation” or
person who has a right to demand its
negotiation) – begins from time the parties
fulfillment, provided, he communicates his
manifest their interest and ends prior to the
acceptance to the obligor before its revocation
moment of agreement
by the obligee or the original parties. (Art. 1311,
2) Perfection (or birth) – when the parties
NCC)
agreed upon essential elements of contract
3) Consummation (or death) - when parties
Q. What are the requisites of stipulation pour
fulfill or perform the agreement
atrui?

ANS. 2. Classification
1) Stipulation in favor of a third person;
2) Stipulation is just part and not the whole Q. What are the classification of contracts?
obligations of the contract;
3) Contracting parties must have clearly and ANS.
deliberately conferred a favor upon third 1) According to perfection or formation:
person; a) Consensual
4) Third person must have communicated his  Perfected by mere agreement
acceptance; and consent or agreement of the
5) Neither of the contracting parties bears the parties
legal representation or authorization of the  Examples: Sale; lease
third party for otherwise the rules on agency b) Real
will apply.  Requires not only the consent of
the parties for their perfection, but
also the delivery of the object by
any one party to the other
 Examples: depositum, pledge,
commodatum
c) Formal or Solemn
 Special formalities are essential
before the contract may be
perfected
 Examples: donation inter vivos of
real property requires for its
validity a public instrument
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2) According to cause or equivalence of the a) Unilateral

value of prestations:  Only one of the parties has an
a) Onerous obligation
 Those in which each of the parties  Example: commodatum
aspires to procure for himself a b) Bilateral or Synallagmatic
benefit through the giving of an  both parties are required to render
equivalent valuable consideration reciprocal obligations
or compensation (for every  Examples: Sale; lease
benefit, there is compensation) 5) According to their name or designation:
 Examples: contract of sale, lease a) Nominate
b) Gratuitous or Lucrative  those which have their own
 those in which one of the parties individuality and are regulated by
proposes to give to the other a special provisions of law (the
benefit without any equivalent or contract is given a particular or
compensation. This is FREE. special name)
 Example: commodatum  Examples: Sale; lease
c) Remunerative b) Innominate
 one where one prestation is given  those which lack individuality
for a benefit or service that had and are not regulated by special
been rendered PREVIOUSLY provisions of law (the contract has
 Example: retirement benefit under no designated name)
CBA 6) According to the risk of fulfillment:
3) According to importance or dependence of a) Commulative
one upon another:  Parties contemplate a real
a) Principal fulfillment; equivalent values are
 the contract may stand alone by given
itself or independently from other  Examples: Sale; lease
contracts b) Aleatory
 Examples: Sale; lease  Fulfillment is dependent upon
b) Accessory chance; thus the values vary
 Depends for its existence upon because of the risk or chance
another contract  Example: insurance contract
 Example: mortgage 7) According to the time of performance or
c) Preparatory fulfillment:
 The parties do not consider the a) Executed
contract as an end by itself, but as  Completed at the time the contract
a means thru which future is entered into, that is, the
transaction or contracts may be obligations are complied with at
made this time
 Examples: agency (SPA),  Example: sale of property which
partnership has already been delivered, and
4) According to the parties obligated: which has already been paid for

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b) Executory  Example: Sale

 Prestations are to be complied b) Auto-Contracts
with at some future time  Only one person represents two
 Example: a perfected sale, where opposite parties, but in different
the property has not yet been capacities
delivered, and where the price has  Example: an agent representing
not yet been given his principal sells a specific car to
8) According to subject matter: himself, as a buyer
a) Things 12) According to the number of persons
 Examples: Sale; deposit pledge who participated in the drafting of the
b) Services contract:
 Examples: agency, lease of a) Ordinary
services, a contract of common  Both parties participated in the
carriage drafting of the contract
c) Rights or Credit  Example: Ordinary Sale: seller &
 Examples: provided these are buyer
transmissible, like a contract of b) Contract of Adhesion
usufruct, or assignment of credits  A contract whereby almost all of
9) According to obligations imposed and its provisions are drafted by one
regarded by the law: party; participation of the other
a) Ordinary party is limited to fixing his
 involves fulfillment of obligations signature as a sign of showing
between two or more contracting CONSENT to the contract. Strictly
parties construed against the party who
 Example: Sale drafted it
b) Institutional  Example: one prepared by an
 Impressed with public interests insurance company
 Example: contract of marriage
10) According to the evidence required for 3. Essential requisites
its proof:
a) Those requiring merely oral or parol Q. What are the essential requisites of a
evidence contract?
 in oral contract; present witnesses
b) Those requiring written proof ANS. There is no contract unless the following
 Example: contracts enumerated requisites concur:
under the Statute of Frauds 1) Consent of the contracting parties;
11) According to the number of persons 2) Object certain which is the subject matter
actually and physically entering into the of the contract;
contracts: 3) Cause of the obligation which is
a) Ordinary established. (Art. 1318, NCC)
 two parties are represented by
different persons

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Consent made as a joke. It must be free from different

interpretations.
Q. What is consent?
Q. What are the requisites of an effective offer?
ANS. It is the meeting of the minds between the
parties on the subject matter and the cause of the ANS.
contract, even if neither one has been delivered. 1) The one offering must have a serious
It is the manifestation of the meeting of the offer intention to become bound by his offer;
and the acceptance upon the thing and the cause 2) The terms of the offer must be reasonably
which are to constitute the contract. certain, definite and complete, so that the
parties and the court can ascertain the terms
Q. What are the requisites of meeting of the of the offer; and
minds? 3) The offer must be communicated by the
offeror to the offeree, resulting in the
ANS. offeree’s knowledge of the offer (Rabuya).
1) There must be an offer which is certain Q. What are the rules on advertisements as
2) There is acceptance of offer which is qualified offers?
and absolute
 If the acceptance be qualified or not ANS.
absolute, there is no concurrence of 1) Business advertisements of things for sale –
minds. There merely is a counter-offer. Not a definite offer, but mere invitation to
(Art. 1319, NCC) make an offer, unless it appears otherwise
(Art. 1325, NCC).
Q. What are the requisites of valid consent? 2) Advertisement for bidders –Simply
invitation to make proposals and advertiser
ANS. is not bound to accept the highest or lowest
a) It must be manifested by the concurrence of bidder, unless the contrary appears (Art.
the offer and acceptance; 1326, NCC).
b) The contracting parties must possess the
necessary legal capacity; Q. What are the requisites of acceptance?
c) It must be intelligent, free, spontaneous, and
real (not vitiated). ANS.
1) The acceptance must be absolute. A qualified
Q. What is an offer? acceptance constitutes a counter-offer. (Art.
1319, NCC)
ANS. It is a unilateral proposition which one 2) The acceptance must come to the knowledge
party makes to the other for the celebration of a of the offeror. (Art. 1319, NCC) An offer
contract. made through an agent is accepted from the
time acceptance is communicated to him.
Q. When is an offer certain? (Art. 1322, NCC)
ANS. In order that an offer can be considered 3) An acceptance may be express or implied
certain, it must not be vague, misleading, or (Art. 1320, NCC), but it is not presumed.

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4) Time, place and manner of acceptance may ANS. DIM

be fixed by offeror (Art 1321, CC). 1) Deaf-mutes who do not know how to read
. and write;
Q. When does an offer become ineffective? 2) Insane or demented persons, unless the
contract was entered into during a lucid
ANS. An offer becomes ineffective upon interval (Art. 1327 and 1328, NCC);
1) the death, 3) Minors (Art. 1327, NCC) except:
2) civil interdiction, a) Where necessaries are sold or delivered
3) insanity, or (Art 1489, NCC)
4) insolvency of either party before b) Where the minor actively misrepresents
acceptance is conveyed. (Art. 1323, NCC) his age (estoppel)
There are other instances when the offer c) When it involves a natural obligation and
becomes ineffective, namely: such obligation is fulfilled voluntarily by
1) When the offeree expressly or impliedly the minor (Art. 1425-27, NCC)
rejects the offer. d) Contracts entered into by guardians or
2) When the offer is accepted with a legal representatives
qualification or condition (for here, there e) When upon reaching the age of majority,
would merely arise a counter-offer). they ratify the same.
3) When before acceptance is communicated,
the subject matter has become illegal or Q. Who are disqualified to enter into a
impossible. contract?
4) When the period of time given to the
offeree within which he must signify his ANS. The following persons are also
5) acceptance has already lapsed. disqualified to enter into contracts:
6) When the offer is revoked in due time (that 1) Those under civil interdiction for the
is, before the offeror has learned of its management and disposal of property by
acceptance by the offeree). any act or any conveyance inter vivos (Art.
34, RPC)
Q. What is an option contract? 2) Undischarged insolvents (Sec. 24,
Insolvency Law)
ANS. It is a preparatory contract in which one 3) Husband and wife cannot donate to each
party grants to the other, for a fixed period, the other (Art. 123, FC)
option to decide whether or not to enter into a 4) Husband and wife cannot sell to each
principal other if the marriage is under the regime of
contract. (Art. 1324, NCC). absolute community of property (Art.
1490, NCC)
**Discussion of option money and earnest is 5) The following cannot purchase, whether
found in Sales.*** in public or private sale(Art. 1491, CC):
a) Guardian with respect to the
Q. Who are the persons incapacitated to give property of the ward
consent? b) Agent with respect to the property of
the principal

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c) Executors and administrators with 2) The error must be excusable (not caused by
respect to the property under negligence).
administration 3) The error must be a mistake of fact, and not
d) Public Officers for property under of law.
their administration
e) Justices, judges, prosecutors, clerks Q. What is the effect of simple mistake of
of court, lawyers for property account?
attached in litigation
ANS. A simple mistake of account shall give rise
NOTE: Contract entered into by a person who to its correction. (Art. 1331, NCC)
is incapacitated to give consent is voidable BUT Note: As a general rule, it is only a mistake of
contract entered into by a person disqualified to fact which will vitiate consent, thus, rendering
contract is void. the contract voidable.

Q. What are the vices of consent? Q. Can there be mistake if the party alleging it
knew the doubt, contingency or risk affecting
ANS. Aside from “incapacity to give consent,” the object of the contract?
the following are causes of vitiated consent:
a) mistake ANS. There is no mistake if the party alleging it
b) violence knew the doubt, contingency or risk affecting
c) intimidation the object of the contract. (Art. 1333, NCC)
d) undue influence Example: buying gayuma or land in litigation
e) fraud (Art. 1330, NCC)
Q. What are the requisites for mutual error to
Q. What is mistake? vitiate consent?

ANS. It is a false belief about something. or a ANS.

misunderstanding of the meaning or 1) There must be mutual error.
implication of something. 2) The error must refer to the legal effect of the
agreement.
Q. What are the requisites for mistake to 3) The real purpose of the parties is frustrated.
vitiate consent? (Art. 1334, NCC)

ANS.
1) The error must be substantial regarding:
the object of the contract
the conditions which principally moved or
induced one of the parties (error in quality or
in quantity)
identity or qualifications (error in personae),
but only if such was the principal cause of the
contract

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Q. Distinguish mistake of fact from mistake of ANS. To determine the degree of intimidation,
law. the age, sex and condition of the person shall be
borne in mind.
Mistake of Fact Mistake of Law A threat to enforce one's claim through
One or both One or both competent authority, if the claim is just or legal,
contracting parties has an does not vitiate consent. (Art. 1335, NCC)
parties believe erroneous
that a fact exists conclusion on the Q. What are the requisites for violence to
when in reality it interpretation of a vitiate consent?
does not, or vice question of law or
versa its legal effects ANS.
Vitiates consent Does not vitiate 1) Employment of serious or irresistible force;
consent except 2) It must have been the reason why the
when there is contract was entered into.
mutual error as to
the Q. What are the requisites for intimidation to
effect of an vitiate consent?
agreement
ANS.
Q. Distinguish violence from intimidation. 1) Reasonable and well-grounded fear of an evil
2) The evil must be eminent and grave
ANS. Violence refers to physical coercion, i.e. 3) The evil must be upon his person, property,
There is violence when in order to wrest or upon the person or property of his spouse,
consent, serious or irresistible force is descendants, or ascendants
employed. 4) It must have been the reason why the
Intimidation refers to moral coercion, i.e., there contract was entered into
is intimidation when one of the contracting 5) The threat must be of an unjust act, an
parties is compelled by a reasonable and well- actionable wrong.
grounded fear of an imminent and grave evil
upon his person or property, or upon the person Q. What is the effect of reverential fear in a
or property of his spouse, descendants or contract?
ascendants, to give his consent. (Art. 1335,
NCC) ANS. If a contract is signed merely because of
Example: If a person signs a contract only “fear of displeasing persons to whom obedience
because a gun is pointed at him, this is and respect are due,” the contract is still valid,
intimidation because he is afraid he would be for by itself reverential fear is not wrong.
killed. But if he signs because his left hand is
being twisted painfully, this is violence or force. Q. When is there undue influence?

Q. What determines intimidation? ANS. There is undue influence when a person

takes improper advantage of his power over the

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will of another, depriving the latter of a into a contract of sale (contract is

reasonable freedom of choice. (Art. 1345, NCC) voidable)
2) Incidental fraud (dolo incidente) – (Art. 1170,
Q. What are the requisites for undue influence NCC)
to vitiate consent?  There is already a pre-existing contract
 Fraud is used to breach the fulfillment
1) There must be improper advantage of the obligation
2) Power over the will of another  Applies for damages from breach of
3) Deprivation of the latter’s will of a reasonable obligations
freedom of choice  Example: Seller and buyer enters a
contract of sale of a smart phone. On the
Q. What are the circumstances to be day of delivery, seller changed it to an
considered for the existence of undue imitation (contract is valid)
influence?
Q. What are the requisites for fraud to vitiate
1) Confidential, family, spiritual and other consent?
relations between the parties;
2) Mental weakness; ANS.
3) Ignorance; and 1) The fraud must be serious;
4) Financial distress (Art. 1337, NCC). 2) The parties must not be in pari delicto
(mutual guilt), otherwise, neither party may
Q. When is there fraud? ask for annulment.

ANS. There is fraud when, through insidious Q. What are the requisites of dolo causante?
words or machinations of one of the contracting
parties, the other is induced to enter into a ANS.
contract which, without them, he would not 1) The fraud must be material and serious, that
have agreed to. (Art. 1338, NCC) is, it really induced the consent.
2) The fraud must have been employed by only
Q. What are the kinds of fraud? one of the contracting parties.
3) There must be a deliberate intent to deceive
ANS. or to induce.
1) Causal fraud (dolo causante) – (Art. 1338, 4) The other party must have relied on the
NCC) untrue statement, and must himself not be
 There is no pre-existing contract guilty of negligence in ascertaining the truth.
 Fraud is used to entice or secure the
consent of another contracting party Q. Give examples of acts considered not
 Fraud is used to vitiate consent fraudulent.
 Example: Seller entices buyer to buy a
smart phone and lies that the phone ANS.
came from abroad; then buyer enters 1) The usual exaggerations in trade and the
other party had an opportunity to know the

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facts are not themselves fraudulent (Art. Void (Art. 1346) Parties are bound
1340, NCC); to their real
2) A mere expression of an opinion does not Agreement when
signify fraud, unless made by an expert and it does not
the other party had relied on the former’s prejudice a third
special knowledge (Art. 1341, NCC); person and is not
3) Misrepresentation by a third person does not contrary to law,
vitiate consent, unless such morals, good
misrepresentation has created substantial customs, public
mistake and the same is mutual (Art. 1342, order or public
NCC); and policy. (Art. 1346,
4) Misrepresentation made in good faith is not NCC)
fraudulent but may constitute error (Art.
1343, NCC).
Object of Contracts
Q. What is simulation of a contract?
Q. What is an object of a contract?
ANS. It is the process of intentionally deceiving
others by producing the appearance of a ANS. It is the subject matter of the contract. It
contract that really does not exist (absolute can be a
simulation) or which is different from the true thing, right or service arising from a contract.
agreement (relative simulation).
Q. What are the requisites of an object?
Q. What are the requisites for simulation?
1) Within the commerce of men (Art. 1347,
ANS. NCC)
1) An outward declaration of will different from 2) Not legally or physically impossible (Art.
the will of the parties; 1348, NCC)
2) The false appearance must have been 3) In existence or capable of coming into
intended by mutual agreement; existence (Art. 1461, NCC)
3) The purpose is to deceive third persons. 4) Determinate or determinable, without the
need of a new contract between the parties
Q. Distinguish absolute simulation from (Art. 1349, NCC)
relative simulation.

Absolute Relative Q. Can future inheritance be an object of a

Simulation Simulation contract?
The parties have The parties
no intention to conceal their true ANS. Future inheritance cannot be the object of
be bound at all agreement a contract because it can be disposed by the
Fictitious contract Disguised current owner.
contract Exceptions:

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1) In the case of future spouses who agree in Q. Distinguish cause from motive.
their marriage settlements upon a regime
other than the absolute community of ANS.
property, they may donate to each other, Cause Motive
but with respect to their future property, Immediate or Remote or
such donations shall take effect only in the direct reason for indirect reason of
event of death (Art. 84, FC) the existence of a contract
2) In the case of partition of property by act the contract itself
inter vivos by a person to take effect upon Always known to Personal, hence
his death. (Art. 1080, NCC) the other
other party does
contracting party not need to know
the motive of the
Cause of Contracts other contracting
party
Q. What is the cause of a contract? An essential Not an essential
element of a element of a
ANS. It is the essential and impelling reason contract contract
why a party assumes an obligation or enters into The illegality of The illegality of
a contract. the cause affects one’s motive does
the validity of a not render the
Q. What are the requisites of a cause of a contract contract void
contract? * Motive can be considered as a cause.

ANS. LET
1) Lawful (Art. 1352, NCC]
2) Exists at the time the contract is entered into Q. What is the effect of absence of cause?
(Art. 1409, par. 3, NCC)
3) True or real (Art. 1353, NCC) ANS. Absence or want of cause means that there
is a total lack of any valid consideration for the
Q. What is the effect of motive in a contract? contract; hence it makes the contract null and
void.
ANS. The motive of a party does not affect the
validity or existence of a contract. Q. What is the effect if the cause is contrary to
Exception: The motives of a contracting party law, morals, good customs,
cannot be the basis for the annulment of the public policy and public order?
contract, unless the realization of such motives
has been made a condition upon which the ANS. If the cause is unlawful, the contract
contract is to depend. produces no effect. (Art. 1352, NCC) If parts of
a contract are illegal but the rest are supported
by lawful cause, claimant of such has the
burden of showing proof; otherwise, the whole
contract is void.

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all the essential requisites for their validity are

Q. What is the effect of falsity of cause? present.
Exceptions:
ANS. The statement of a false cause in contracts 1) When the law requires that a contract be in
shall render them void, if it some form in order that it may be valid
should not be proved that they were founded (Art. 1356, par. 2, NCC)
upon another cause which is true and lawful. 2) When the law requires that a contract be
(Art. 1353, NCC) proved in a certain way to be enforceable
(Statute of Frauds) (Art. 1356, par. 2, NCC)
NOTE: Just because the cause stated is false 3) When the law requires a contract to be in
does not necessarily mean that the contract is some form for convenience, or to be
void. The parties are given a chance to show that effective against third parties (Arts. 1357
a cause really exists, and that said cause is true and 1358, NCC)
and lawful.
Q. Give examples of formal or solemn
Q. If the cause is not stated in the contract, will contracts and their special form as required by
this render the contract void? law.

ANS. No. Although the cause is not stated in the ANS.

contract, it is presumed that it exists and is Contract Form
lawful, unless the debtor proves the contrary. Donation of real Public instrument
(Art. 1354, NCC) property
Donation of In writing (both
Q. What is the effect of inadequacy of cause? personal property the donation and
exceeding acceptance)
ANS. Lesion or inadequacy of cause does not of P5,000.00
itself invalidate a contract. (Art. 1355, NCC) Sale of land Authority of the
Exceptions: To invalidate contract the following through an agent agent must be in
must be present: writing
a) In cases specified by law otherwise, the sale
b) There has been fraud is void.
c) There has been mistake of fact
d) There has been undue influence Contract of Amount of
antichresis principal and
interest must be in
B. FORMALITY writing
Stipulation to pay In writing;
Q. What is the required form of contracts? interest otherwise, no
interest is due
ANS. Contracts shall be obligatory, in whatever Contract of If immovables are
form they may have been entered into, provided partnership contributed, it
must be in a

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public instrument
to which shall be C. REFORMATION OF
attached a signed INSTRUMENTS
inventory of the
immovable Q. What is reformation?
property
Contributed ANS. Reformation is a remedy in equity by
Transfer or sale of Registered (so it means of which a written instrument is made or
large cattle must be in a construed so as to express or conform to the real
public instrument intention of the parties when some error or
and a certificate of mistake has been committed.
transfer secured
Q. What are the requisites of reformation?
Q. What contracts must be in public
instrument under Art. 1358 of the NCC? ANS.
1) There is a meeting of the minds of the parties
ANS. The following must appear in a public to the contract;
document: 2) The written instrument does not express the
1) Acts and contracts which have for their true agreement or intention of the parties;
object the creation, transmission, 3) The failure to express the true intention is
modification or extinguishment of real due to mistake, fraud, inequitable conduct, or
rights over immovable property; sales of accident;
real property or of an interest therein; 4) There is clear and convincing evidence of the
2) The cession, repudiation or renunciation mistake, fraud, inequitable conduct, or
of hereditary rights or of those of the accident;
conjugal partnership of gains; 5) It must be brought within the proper
prescriptive period (10 years).
3) The power to administer property, or any
other power which has for its object an act Q. Distinguish reformation from annulment.
appearing or which should appear in a
public document, or should prejudice a ANS.
third person; Reformation Annulment
4) The cession of actions or rights proceeding Presupposes a Presupposes a
from an act appearing in a public valid contract but defective contract
document. the written because of
instrument vitiated consent
purporting to
embody the
contract does not
express the true
intention of the
parties by reason

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of mistake, fraud, state their real agreement, but concealed that

inequitable fact from the former, the instrument may be
conduct, or reformed. (Art. 1363, NCC)
accident  The remedy of reformation may be
Purpose is to Renders the availed of only by the party who acted
establish and contract in good faith.
perpetuate the inefficacious 4) Ignorance, etc. on the part of third person:
true agreement. When through the ignorance, lack of skill,
negligence or bad faith on the part of the
Q. What are the instances where the remedy of person drafting the instrument or of the clerk
reformation is available? or typist, the instrument does not express the
true intention of the parties, the courts may
ANS. order that the instrument be reformed. (Art.
1) Mutual Mistake: When a mutual mistake of 1364, NCC)
the parties causes the failure of the  Neither party is responsible for the
instrument to disclose their real agreement, mistake. Hence, either party may ask
said instrument may be reformed. (Art. 1361, for reformation.
NCC) 5) Mortgage or pledge stated as a sale: If two
Requisites: parties agree upon the mortgage or pledge of
a) The mistake must be of fact, for if it is real or personal property, but the instrument
one of law, the remedy is annulment; states that the property is sold absolutely or
b) Such mistake must be proved by with a right of repurchase, reformation of the
clear and convincing evidence; instrument is proper. (Art. 1365, NCC)
c) The mistake must be mutual, that is, 6) Relative Simulation: when the contract
common to both parties to the entered into by the parties is different from
instrument; and their true agreement or the parties state a
d) The mistake must cause the failure of false cause in the contract to conceal their real
the instrument to express their true agreement.
intention.
2) Unilateral Mistake: If one party was Q. When is reformation not the proper
mistaken and the other acted fraudulently or remedy?
inequitably in such a way that the instrument
does not show their true intention, the former ANS. There shall be no reformation in the
may ask for the reformation of the following cases:
instrument. (Art. 1362, NCC) 1) Simple donations inter vivos wherein no
 The right to ask for reformation is condition is imposed;
granted only to the party who was 2) Wills;
mistaken in good faith (injured party or 3) When the real agreement is void. (Art.
his heirs or assigns). 1366, NCC)
3) Concealment of mistake by other party: 4) When an action to enforce the instrument
When one party was mistaken and the other is filed (estoppel) (Art. 1367, NCC);
knew or believed that the instrument did not

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Q. Who may ask for reformation? cases that are different from those upon
which the parties intended to agree (Art.
ANS. 1372, NCC).
1) If the mistake is mutual, either party or his 5) If some stipulation of any contract should
successors in interest; admit of several meanings, it shall be
2) In all other cases: understood as bearing that import which is
a) the injured party; most adequate to render it effectual (Art.
b) his heirs and assigns. (Art. 1368, CC) 1373, NCC).
6) The various stipulations of a contract shall be
interpreted together, attributing to the
D. INTERPRETATION OF doubtful ones that sense which may result
CONTRACTS from all of them taken jointly. (Art. 1374.,
NCC)
Q. What is meant by interpretation of contact? 7) Words which may have different
significations shall be understood in that
ANS. Interpretation of a contract is the which is most in keeping with the nature and
determination of the meaning of the terms or object of the contract. (Art. 1375, NCC)
words used by the parties in their contract or the 8) The usage or custom of the place shall be
process of ascertaining the intention of the borne in mind in the interpretation of the
parties from the written words of the contract. ambiguities of a contract, and shall fill the
The intention or spirit of the contract prevail omission of stipulations which are ordinarily
over the written words of the contract. established. (Art. 1376, NCC)
9) The interpretation of obscure words or
Q. What are the rules in the interpretation of stipulations in a contract shall not favor the
contracts? party who caused the obscurity. (Art. 1377,
NCC)
ANS. Examples:
1) If the terms of a contract are clear and leave a) Contracts of adhesion: These contracts
no doubt upon the intention of the are so-called because almost all their
contracting parties, the literal meaning of its provisions have been drafted by one
stipulations shall control. (Art. 1370, NCC) party, and the only participation of the
2) If the words appear to be contrary to the other party is the signing of his
evident intention of the parties, the latter signature or his “adhesion’’ thereto on
shall prevail over the former (Art. 1370, the “take it or leave it’’ basis, without
NCC). the right to modify it.
3) In order to judge the intention of the b) Contracts of insurance: The rule in Art.
contracting parties, their contemporaneous 1377 is generally applied to contracts of
and subsequent acts shall be principally insurance which are liberally construed
considered (Art. 1371, NCC). in favor of the insured and strictly and
4) However the general terms of a contract may most strongly against the insurer,
be, they shall not be understood to resolving all ambiguities against the
comprehend things that are distinct and latter.

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c) Contracts between a lawyer and his unless it is ratified in the manner provided by
client: The rule also applies to a contract law.
of professional services between a 4) VOID CONTRACT is one that has no effect
lawyer and his client, and rightly so at all (null and void); it cannot be ratified or
because of the inequality of the validated.
situation between an attorney who
knows the technicalities of the law on 1. Rescissible
the one hand, and a client who usually contracts
is ignorant of the vagaries of the law, on
the other hand. Q, What are rescissible contracts?
10) When it is absolutely impossible to settle
doubts by the rules established in the ANS. Rescissible contracts are those validly
preceding articles, and the doubts refer to agreed upon and legally effective, but there is
incidental circumstances of a gratuitous injury or damage to one of the parties or to third
contract, the least transmission of rights and persons – external or extrinsic defect consisting
interests shall prevail. If the contract is of an economic damage or lesion.
onerous, the doubt shall be settled in favor of
the greatest reciprocity of interests. (Art. Q. What is lesion?
1378, NCC)
11) If the doubts are cast upon the principal ANS. It is the injury which one of the parties
object of the contract in such a way that it suffers by virtue of a contract which is
cannot be known what may have been the disadvantageous for him. To give rise to
intention or will of the parties, the contract rescission, the lesion must be known or could
shall be null and void. (Art. 1378, NCC) have been known at the time of making of the
contract. (Tolentino)
E. DEFECTIVE CONTRACTS
Q. What is rescission?
Q. What are the kinds of defective contracts?
ANS. Rescission is an equitable remedy granted
ANS. There are four kinds of defective contracts by law to the contracting parties and sometimes
(contracts which may be invalidated): even to third persons in order to secure
1) RESCISSIBLE CONTRACT is valid until reparation of damages caused them by a valid
rescinded. There is a sort of extrinsic defect contract, by means of the restoration of things to
consisting of an economic damage or lesion their condition prior to the celebration of said
to one of the parties or to a third person and contract.
which for equitable reasons, may be set aside
even if valid. NOTE: Rescission is only a subsidiary remedy.
2) VOIDABLE CONTRACT is valid until It can only be availed of only if the injured party
annulled unless there has been a ratification. proves that he has no other legal means to
The defect is caused by vice of consent. obtain redress for the damage caused (Art. 1177,
3) UNENFORCEABLE CONTRACT is one NCC)
where it cannot be sued upon or enforced

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6) All other contracts specially declared by law

Q. What are the requisites of rescission? to be subject to rescission. (Art. 1381, NCC)

ANS. Q. What are the effects of contracts entered

1) The contract must be validly agreed upon. into in behalf of a ward?
2) There must be an economic or financial
prejudice to one of the parties or to a third 1) If an act of ownership, court approval is
person. required; otherwise, contract is
3) The rescission must be based upon a case unenforceable, whether there is lesion or not.
especially provided by law. (Arts. 2) If merely an act of administration —
1380, 1381 and1382, NCC) a) if with court approval — valid,
4) There must be no other legal remedy to regardless of lesion.
obtain reparation for the damage. b) if without court approval — rescissible,
5) The party asking for rescission must be able if lesion is more than one-fourth.
to return what he is obliged to be restored by Contracts undertaken in fraud of creditors. —
reason of the contract. The action to rescind in fraud of creditors is
6) The object of the contract must not legally be known as accion pauliana. Here, as in No. (4),
in the possession of third persons who did the remedy of rescission may be availed of by a
not act in bad faith. third person. Such contracts are usually made
7) The period for filing the action for rescission without the
must not have prescribed (four years). (Art. knowledge of the creditors. In order that fraud
1389, NCC) of creditors may be a valid ground for
rescission, the following requisites must also be
Q. What contracts are rescissible? present:

1) The following contracts are rescissible: Q. What are the requisites before a contract
2) Those which are entered into by guardians entered into in fraud of creditors may be
whenever the wards whom they represent rescinded?
suffer lesion by more than one-fourth of the
value of the things which are the object ANS.
thereof; 1) There must be an existing credit prior to the
3) Those agreed upon in representation of contract to be rescinded, although it is not yet
absentees, if the latter suffer the lesion stated due or demandable later;
in the preceding number; 2) The subsequent contract made by the debtor
4) Those undertaken in fraud of creditors when conveys a patrimonial benefit to a third
the latter cannot in any other manner collect person;
the claims due them; 3) There must be fraud on the part of the debtor
5) Those which refer to things under litigation if which may be presumed or proved;
they have been entered into by the defendant 4) The creditor has no other legal remedy to
without the knowledge and approval of the satisfy his claim.
litigants or of competent judicial authority;

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NOTE: ANS.
 Here, the remedy of rescission may be 1) It was made in a state of insolvency;
availed of by a third person. Such contracts 2) Obligation must have been one which debtor
are usually made without the knowledge could not be compelled to pay at the time
of the creditors. such payment was effected. (Art. 1382, NCC)
 The action to rescind contracts in fraud of
creditors is known as accion pauliana. Q. What are the effects of rescission?

Q. Give examples of other contracts that are ANS. (Art. 1385, NCC)
subject to rescission. 1) Obligation of mutual restitution. —
There is no obligation to restore if nothing
ANS. has been received. When the court declares a
1) A partition, judicial or extrajudicial, may also contract rescinded, the parties must return to
be rescinded on account of lesion, when any each other:
one of the co-heirs received things whose a) the object of the contract with its fruits;
value is less, by at least one-fourth, than the and
share to which he is entitled, considering the b) the price thereof with legal interest.
value of the things at the time they were 2) Abrogation of contract. — When a rescission
adjudicated. (Art. 1098, NCC) is granted, it has the effect of abrogating the
2) Gross inadequacy of price does not affect a contract in all respects. The party seeking
contract of sale, except as it may indicate a rescission cannot ask performance as to part
defect in the consent, or that the parties really and rescission as to remainder except only to
intended a donation or some other act or the extent necessary to cover the damages
contract. (Art. 1470, NCC) caused. (Art. 1384, NCC)
3) If the lessor or the lessee should not comply 3) Obligation of third person to restore. — If the
with the obligations set forth in Art. 1654 third person has nothing to restore, the article
(referring to obligations of the lessor) and does not apply. Thus, where a contract is
1657 (referring to obligations of the lessee), rescinded on the ground that it has been
the aggrieved party may ask for the entered into in fraud of creditors, the
rescission of the contract and indemnification plaintiff-creditor has no obligation to return
for damages, or only the latter, allowing the anything since he has received nothing.
contract to remain in force. (Art. 1659, NCC)
4) The vendee may exercise the remedy of Q. When is rescission not allowed?
rescission, when the lack in the area of the
real estate sold be not less than one-tenth of ANS.
that stated or when the inferior value of the 1) If the party who demands rescission cannot
thing sold exceeds one tenth of the price return what he is obliged to restore under the
agreed upon. (Art. 1539, NCC) contract.
2) If the property is legally in the possession of
Q. What are the requisites before payment a third person who acted in good faith (Art.
made by insolvent can be rescinded? 1385, par. 2, NCC), that is to say, he acquired
the property and registered it in the Registry

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of Property unaware of the flaw in his title or 4) The transfer of all or nearly all of his property
mode of acquisition. by a debtor, especially when he is insolvent
or greatly embarrassed financially;
Q. When is gratuitous alienation presumed 5) Evidence of large indebtedness or complete
fraudulent? insolvency;
6) The fact that the transfer is made between
ANS. When the debtor did not reserve sufficient father and son (when this fact is considered
property to pay all debts contracted before the together with preceding circumstances);
donation. (Art. 1387, NCC) 7) The failure of the vendee to take exclusive
Example: A donated his land to B. Before the possession of all the property.
time he made the donation, he had several
debts, but he did not reserve enough property Q. Who are entitled to bring the action for
to pay all these debts. rescission?

Q. When is onerous alienation presumed ANS. The action for rescission may be brought
fraudulent? by:
1) the injured party or the defrauded creditor;
ANS. When made by persons: 2) his heirs, assigns, or successors in interest; or
a) against whom some judgment has been 3) the creditors of the above entitled to
rendered in any instance (thus, even if not subrogation (accion subrogatoria).
yet a final judgment); or
b) against whom some writ of attachment has Q. What is the prescriptive period of action for
been issued. (Art. 1387, NCC) rescission?

Q. What is meant by badges of fraud? ANS.

a) Within four years from the time the
ANS. These are some circumstances indicating termination of the incapacity of the ward;
that a certain alienation has been made in fraud b) Within four years from the time the domicile
of creditors. of the absentee is known; or
c) Within four years from the time of the
Q. Give circumstances attending sales which discovery of fraud. (Art. 1389, NCC)
have been denominated by the courts as
badges of fraud. 2. Voidable contracts

ANS. Q. What are voidable contracts?

1) The fact that the consideration of the
conveyance is fictitious or inadequate; ANS. Voidable or annullable contracts are
2) A transfer made by a debtor after suit has existent, valid and binding, although they can
been begun and while it is pending against be annulled because of want of capacity or
him; vitiated consent of one of the parties. (Tolentino)
3) A sale upon credit by an insolvent debtor;
Q. What contracts are voidable?

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ANS. The following contracts are voidable or ANS.

annullable, even though there may have been 1) The contract must be a voidable one.
no damage to the contracting parties: 2) The person ratifying must know the reason
1) Those where one of the parties is incapable for the contract being voidable i.e., the cause
of giving consent to a contract; must be known.
2) Those where the consent is vitiated by 3) The cause must not exist or continue to exist
mistake, violence, intimidation, undue anymore at the time of ratification.
influence or fraud. 4) The ratification must have been made
These contracts are binding, unless they are expressly or by an act implying a waiver of
annulled by a proper action in court. They are the action to annul.
susceptible of ratification. (Art. 1390, NCC) 5) The person ratifying must be the injured
party.
Q. What is the period for filing action for NOTE: Conformity of guilty party to ratification
annulment? not required. (Art. 1395, NCC)

ANS. Q. Who may institute an action for annulment?

a) In cases of intimidation, violence or undue
influence, from years from the time the ANS. An action for annulment may be
defect of the consent ceases. instituted by all who are thereby obliged
b) In case of mistake or fraud, four years from principally or subsidiarily.
the time of the discovery of the same. Exceptions:
c) For contracts entered into by minors or a) Persons capable of giving consent; and
other incapacitated persons, four years b) Parties who have caused the vitiation of
from the time the guardianship ceases. consent (Art. 1397, NCC)
(Art. 1391, NCC)
Q. What are the requisites to institute an action
Q. What is ratification? for rescission?

ANS. Ratification is the act of adopting the ANS.

contract in its entirety including the defects. 1) The plaintiff must have an interest in the
contract;
Q. What are the effects of ratification? 2) The victim and not the guilty party or the
party responsible for the defect is the person
ANS. who must assert the same.
a) The action to annul is extinguished (Art.
1392, NCC); thus, the contract becomes a Q. What are the effects of annulment?
completely valid one.
b) The contract is cleansed of its defect from the ANS.
beginning. (Art. 1396, NCC) a) If the contract has not yet been complied
with, the parties shall be released from the
Q. What are the requisites of ratification? obligations.

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b) If the contract has already been performed, ANS. Those contracts which cannot be
there must be mutual restitution. (Art. 1398, enforced by action or complaint, unless they
NCC) have been ratified by the party or parties who
did not give consent (Art.
Q. What is the effect of loss of thing to be 1403, NCC).
returned?
Q. What contracts are unenforceable?
ANS.
1) If the thing to be returned is lost without the ANS. The following contracts are
fault of the person obliged to make unenforceable, unless they are ratified:
restitution, there is no more obligation to 1) Those entered into in the name of another
return such thing. But in such a case, the person by one who has been given no
other cannot be compelled to restore what in authority or legal representation, or who has
virtue of the decree of annulment he is bound acted beyond his powers;
to return. 2) Those that do not comply with the Statute of
2) If it is lost through his fault, his obligation is Frauds as set forth in this number. In the
not extinguished but is converted into an following cases an agreement hereafter made
indemnity for damages consisting of the shall be unenforceable by action, unless the
value of the thing at the time of the loss with same, or some note or memorandum, thereof,
interest from the same date and the fruits be in writing, and subscribed by the party
received from the time the thing was given to charged, or by his agent; evidence, therefore,
him to the time of its loss. (Arts. 1400 to 1402, of the agreement cannot be received without
NCC) the writing, or a secondary evidence of its
contents:
Q. When is an action for annulment not a) An agreement that by its terms is not to
permitted? be performed within a year from the
making thereof;
ANS. b) A special promise to answer for the
1) Prescription of the action for annulment debt, default, or miscarriage of another;
(Art.1391, NCC) c) An agreement made in consideration of
2) Ratification or confirmation (Art. 1392-1396, marriage, other than a mutual promise
NCC) to marry;
3) By loss of the thing which is the object of the a. An agreement for the sale of goods,
contract through the fraud or fault of the chattels or things in action, at a price not
person who is entitled to institute the action less than five hundred pesos, unless the
for the annulment (Art.1401, NCC) buyer accept and receive part of such
goods and chattels, or the evidences, or
3. Unenforceable some of them, of such things in action
contracts or pay at the time some part of the
purchase money; but when a sale is
Q. What are unenforceable contracts? made by auction and entry is made by
the auctioneer in his sales book, at the

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time of the sale, of the amount and kind all. They are considered as inexistent from its
of property sold, terms of sale, price, inception or from the very beginning.
names of the purchasers and person on
whose account the sale is made, it is a Q. What are inexistent contracts?
sufficient memorandum;
d) An agreement of the leasing for a longer ANS. Inexistent contracts refer to agreements
period than one year, or for the sale of which lack one or some or all of the elements
real property or of an interest therein; (i.e., consent, object, and cause) or do not
e) A representation as to the credit of a comply with the formalities which are essential
third person. for the existence of a contract.
3) Those where both parties are incapable of
giving consent to a contract. (Art. 1403, NCC)
Q. What contracts are inexistent and void from
Q. What are the ways of ratification of the beginning?
contracts infringing the Statute of Frauds?
ANS. The following contracts are inexistent and
ANS. void from the beginning:
1) by failure to object to the presentation of oral 1) Those whose cause, object or purpose is
evidence to prove the contract. contrary to law, morals, good customs,
2) by acceptance of benefits under the contract public order or public policy;
(thus, the statute does not apply to executed 2) Those which are absolutely simulated or
or partially executed or performed contracts). fictitious;
(Art. 1405, NCC) 3) Those whose cause or object did not exist
at the time of the transaction;
Q. What is the right of a party where contract 4) Those whose object is outside the
enforceable under the Statute of Frauds? commerce of men;
5) Those which contemplate an impossible
ANS. If the law requires a document or other service;
special form, the contracting parties may 6) Those where the intention of the parties
compel each other to observe relative to the principal object of the
that form, once the contract has been perfected. contract cannot be ascertained;
This right may be exercised simultaneously 7) Those expressly prohibited or declared
with the action upon the contract. (Arts. 1357 void by law.
and 1406, NCC) These contracts cannot be ratified. Neither can
the right to set up the defense of illegality be
4. Void or inexistent waived. (Art. 1409, NCC)
contracts
Q. What are the characteristics of
Q. What are void contracts? void/inexistent contracts?

ANS. Void contracts are those which, because of ANS.

certain defects, generally produce no effect at 1) It produces no legal force and effect;

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2) It cannot be cured or validated by d) The innocent party cannot be compelled

prescription or ratification (Art. 1409, NCC); to comply with his promise. (Art. 1412,
3) The right to set up the defense of illegality NCC)
cannot be waived (Art. 1409, NCC).
4) It is imprescriptible. (Art. 1410, NCC) Q. What are the exceptions to the principle of
5) The defense of illegality of contract is not in pari delicto under the NCC?
available to third persons whose interests are
not directly affected (Art. 1421, NCC). ANS.
6) Cannot give rise to a valid contract (Art. 1422, 1) Recovery of usurious interest (Art. 1413,
NCC). NCC)
7) Can be assailed either directly or collaterally. 2) Recovery where contract entered into for an
illegal purpose
Q. What are the effects when both parties are Requisites:
in pari delicto? a) The contract is for an illegal purpose;
b) The contract is repudiated before the
ANS. purpose has been accomplished or
1) The parties shall have no action against each before any damage has been caused to a
other third person; and
2) Both shall be prosecuted; and c) The court considers that public interest
3) The things or the price of the contract, as the will be subserved by allowing recovery
effects or instruments of the crime, shall be (Art. 1414, CC)
confiscated in favor of the government. (Art. 3) Recovery by an incapacitated person. It is not
1411, NCC) necessary that the illegal purpose has not
been accomplished, or no damage has yet
Q. What are the rules where contract is illegal been caused. (Art. 1415, CC)
but act not a criminal offense? 4) Recovery where contract not illegal per se

ANS.
1) Where both parties in pari delicto Requisites:
a) Neither party may recover what he a) The agreement is not illegal per se but is
has given by virtue of the contract; and merely prohibited;
b) Neither party may demand the b) The prohibition is designed for the
performance of the other’s protection of the plaintiff; and
undertaking. c) Public policy would be enhanced by
2) Where only one party is guilty or both parties allowing the plaintiff to recover what he
are not equally guilty has paid or delivered. (Art. 1416, NCC)
a) The guilty party loses what he has given 5) Recovery of amount paid for commodity in
by reason of the contract; excess of ceiling price (Art. 1417, NCC)
b) The guilty party cannot ask for the 6) In labor, recovery of additional
fulfillment of the other’s undertaking; compensation for service rendered beyond
c) The innocent party may demand the time limit (Art. 1418, NCC)
return of what he has given; and

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7) In labor, recovery of amount of wage less obligations where unilateral or

than minimum fixed (Art. 1419, NCC) one party is guilty reciprocal
8) In case of divisible contracts, the legal terms of non-fulfillment obligations even
may be enforced separately from the illegal when
terms (Art. 1420, NCC); the contract has
been
Q. Can an illegal contract be novated? fully fulfilled.
In some cases, Court has no
ANS. No. A contract which is the direct result of court may grant power to impose a
a previous illegal contract, is also void and the period within period or term to
inexistent. (Art. 1422, NCC) which the parties which the parties
should comply. should comply.
5. Distinguish: Non-performance Non-performance
resolution and by the other party by the other party
rescission of is important. is immaterial.
contracts

Q. Distinguish resolution from rescission of VIII. NATURAL OBLIGATIONS

contracts.
Q. What are natural obligations?
ANS.
Resolution (Art. Rescission (Art. ANS. Natural obligations, not being based on
1191, NCC) 1381, NCC) positive law but on equity and natural law, do
For resolution to The controlling not grant a right of action to enforce their
be availed of, factor is the performance, but after voluntary fulfillment by
there must be presence of lesion the obligor, they authorize the retention of what
nonperformance or economic has been delivered or rendered by reason
Or non- injury to either of thereof. (Art. 1423, NCC)
fulfillment of the parties or to
obligation by one third persons Q. What are the requisites for natural
of the parties obligations to arise?
Action is Action is
instituted only by instituted by ANS.
the injured party. either party or by 1) The obligation is not prohibited by law or
a third person. contrary to morals and good customs;
Principal action, Subsidiary action, 2) There must be a previous juridical
retaliatory in in the absence of relationship between two persons but due to
character. any other legal certain intervening circumstances, it lost its
means to obtain legal enforceability leaving its fulfillment
reparation. entirely to the free will or discretion of the
Applies only to Applies to either supposed debtor (Pineda).
reciprocal

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Q. Give examples of natural obligations. b) The will is declared void because it was
not executed in accordance with the
ANS. formalities required by law;
1) Voluntary performance even after the civil c) Heir pays legacy in compliance with a
obligation has prescribed (Art. 1424, NCC); clause in the defective will (Art. 1430,
2) Reimbursement of a third person, without NCC).
the knowledge or against the will of the
debtor, for a debt that has prescribed (Art. Q. How may natural obligations be converted
1425, NCC); to civil obligations?
3) Restitution by minor of the thing or price
after annulment of contract even when he has ANS.
not been benefited 1) Novation
Requisites: 2) Ratification or confirmation
a) Minor, between 18 and 21, entered into
a contract without consent of parent or Q. Distinguish natural obligation from civil
guardian obligation.
b) Obligation is annulled after minor has
received the price or whole thing ANS.
c) Minor voluntarily returns whole thing Natural Civil Obligation
or price received (Art. 1426, NCC); Obligation
4) Delivery by minor of money or fungible thing Based on equity Based on positive
in fulfillment of obligation and natural law law: law,
Requisites: contracts, quasi-
a) Minor, between 18 and 21, entered into contracts, delicts,
a contract without consent of parent or and
guardian; quasi-delicts
b) Minor pays a sum of money or delivers Cannot be Can be enforced
a fungible thing voluntarily enforced in court in court
c) Obligee spends the money or consumes
the thing in good faith (Art. 1427, NCC);
5) Performance after action to enforce civil IX. ESTOPPEL
obligation has failed (Art. 1428, NCC);
6) Payment by the heir of a debt exceeding the Q. What is an estoppel?
value of property he inherited (Art. 1429,
NCC); ANS. Estoppel is an admission or
7) Payment of legacy after will has been representation rendered conclusive upon the
declared void person making it, and cannot be denied or
disproved as against the person relying thereon.
Requisites: (Art. 1431, NCC).
a) There is a will providing for a legacy; It is a bar which precludes a person from
denying or asserting anything to the contrary of
that which has, in contemplation of law, been

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established as truth, either by the acts of judicial parties from raising questions that
or legislative officers or by his own deed or could have been put in issue and
representation, either expressed or implied. decided in a previous case
*Art. 1433 only mentions estoppel in pais or by deed.
Q. What are the kinds of estoppel?
Q. In what cases is estoppel applicable?
ANS.
1) Estoppel in pais ANS.
a) A party is absolutely precluded from 1) Sale or alienation of a thing which does not
denying or asserting the contrary if by belong to the seller or grantor and later on
his (affirmative or negative) conduct or acquire title thereto – title passes by
(intentional or culpable) negligence operation of law to the buyer or grantee (Art.
b) Such conduct or negligence causes 1434, NCC)
another to believe certain facts to exist 2) Sale or alienation in representation of another
and rightfully relies and acts on such – such person cannot set up his own title as
belief against the buyer or grantee (Art. 1435, NCC)
c) The other party would be prejudiced if 3) Title of the lessee or bailee against the lessor
the former is permitted to deny the or bailor (Art. 1436, NCC)
existence of such facts. 4) Contract between third persons concerning
2) Estoppel by deed – precludes a party to a immovable property where one of them is
deed and his privies from asserting as against misled by a person with respect to the
the other and his privies any right or title in ownership or real right over the real estate
derogation of the deed, or from denying the Requisites: ALL must be present:
truth of any material fact asserted in it. a) There must be fraudulent
3) Estoppel by laches / silence – unreasonable representation or wrongful
delay in bringing a court action, even if the concealment of facts known to the party
period of prescription has not yet lapsed bars estopped;
an action to create a vested right (executory b) The party precluded must intend that
interest) but does not bar an action to protect the other should act upon the facts as
a vested right (executed interest) misrepresented;
4) Promissory estoppel – party may not c) The party misled must have been
renegade from his promises after the other unaware of the true facts; and
had complied with the former’s terms or d) The party defrauded must have acted in
conditions accordance with the misrepresentation.
5) Estoppel by judgment as a court record (Art. 1437, NCC)
 The preclusion to deny the truth of 5) Estoppel by acquiescence of benefits –one
matters set forth in record, whether who has allowed another to assume apparent
judicial or legislative, and also to deny ownership of personal property for the
the facts adjudicated by a court of purpose of making any transfer of it, if he
competent jurisdiction received the sum for which a pledge has been
 There could have been res judicata BUT constituted (Art. 1438, NCC)
estoppel by judgment prevents the

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Q. When is estoppel not applicable? certain in money or its equivalent. (Art. 1458,
NCC)
ANS.
1) If the act, conduct or representation of the Q. What are the stages in a contract of sale?
party sought to be estopped is due to
ignorance founded on innocent mistake; ANS. The stages of a contract of sale are:
2) Against a party who had no knowledge of a) Negotiation or generation – Begins from
nor gave consent to a transaction; the time the interest in the contract and
3) On illegal acts or those prohibited by law or ends at the moment of agreement of the
are against public policy; parties;
4) Against the government suing in its capacity b) Perfection –Takes place when the parties
as sovereign or asserting governmental agree upon the essential elements of the
rights contract; and
c) Consummation – Occurs when the parties
fulfill or perform the terms agreed upon in
Q. Who are the persons bound by estoppel? the contract culminating in the
extinguishment thereof.
ANS.
1) Parties thereto; and Q. When is contract of sale perfected?
2) Successors-in-interest (as well as privies and
grantees) (Art. 1439, NCC) ANS. The contract of sale being a consensual
*Third parties are not bound by estoppel. contract is perfected by mere consent.

Q. Suppose the contract didn’t specify that the

X. SPECIAL CONTRACTS seller must transfer the ownership of the
object, does he still have this obligation?

A. SALES ANS. Yes, for after all, this transfer of ownership

is clearly the fundamental aim of the contract. A
1. General provisions buyer is not interested in a mere physical
transfer: he is after ownership.
Nature
Q. What are the characteristics of the contract
of sale?
Q. Define sale.
ANS. A contract of sale is
ANS. Sale is a contract where one party a) Consensual – perfected by mere consent;
(seller/vendor) obligates himself to transfer the b) Onerous – the thing sold is conveyed in
ownership of and deliver the determinate thing, consideration of the price and vice versa;
while the other party (buyer or vendee) c) Commutative – thing sold is considered
obligates himself to pay for said thing a price equivalent of the price paid and vice versa;

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d) Principal – its existence and validity does Partial performance furnishes reliable evidence
not depend upon another contract; of the intention of the parties or the existence of
e) Nominate – given a special name and the contract. A contrary rule would result in
designation; and injustice or unfairness to the party who has
f) Bilateral – parties are bound to fulfill performed his obligation.
correlative obligations toward each other.
Q. Dan orally sold a parcel of land to Jerry. Is
Q. Classify or give kinds of a contract of sale. the sale valid?

ANS. Generally, they are: ANS. Yes, the sale is valid but it is
1) Absolute – when no condition is imposed unenforceable. The law requires that sale of real
and ownership passes to the vendee property must be in writing to be enforceable.
upon delivery of the thing subject of the
sale (Art. 1497, NCC); If the contract of sale is in private writing, then
2) Conditional- when the sale contemplates it is valid and binding only as between the
a contingency or is subject to a certain parties and not as against third persons without
condition. notice until sale is registered in the Registry of
Property. Dan has the right to compel Jerry to
Form put the contract in a public document so that it
be registered to effect third person.
Q. What is the form of a contract of sale?
Q. Is a sale of real property made through an
ANS. Contract of sale may be entered into in agent valid?
any form provided the essential requisites for its
validity are present. ANS. No. It is void unless the agent’s authority
is in writing. It must also be registered with the
Q. What is the effect of form of sale?
Register of Deeds to be effective against third
person.
ANS. This article is applicable whether sale is:
a) in public instrument; Q. What are the limitations on the forms of a
b) in private instrument;
contract of sale?
c) made orally.
There is no need to first compel the seller to
ANS. The limitations are:
execute a public instrument before the action is 1) by the provision of the Statute of Fraud; or
brought.
by the provision of applicable statute.

Q. When is Statute of Fraud applicable?

Requisites

ANS. Statute of Fraud is applicable only to Q. What are the elements of a contract of sale?
executory contracts, where no performance has
been done and not to contracts which are totally ANS. The elements of a contract of sale are
or partially performed. a) Consent or meeting of the minds;
b) Determinate subject matter;
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c) Price certain in money or its equivalent. * Seller need not own the thing to be sold, all that is
*The absence of any of the essential elements makes required of him is the right to transfer ownership
the contract of sale void. thereof at the time it is delivered.

Q. What are accidental elements in a contract Q. When is a thing determinate?

of sale?
ANS. It is determinate when the thing is
ANS. Those which may be present or absent in particularly designated or physically
the stipulation, such as place or time of segregated from all others of the same class. But
payment, or the presence of a condition. a thing is still determinate if at the time the
Examples: contract is entered into, the thing is capable of
a) Conditions; being made determinate without the necessity
b) Interest; of a new or further agreement between the
c) Time and place of payment; and parties. (Art. 1460, NCC)
d) Penalty.
Q. What are the goods which may form the
Consent subject of a contract of sale?

Q. Can there be sales without consent? ANS. They may either be:
a) Existing goods;
ANS. Yes, under the following conditions: b) Future goods.
1) Expropriation (Art. 1488, NCC);
2) Ordinary Execution Sale (Rule 39, Sec. 15, Q. What are future goods?
RoC);
3) Judicial Foreclosure Sale (Rule 68, RoC)]; ANS. Future goods are those still to be
and a) manufactured;
4) Extra-Judicial Foreclosure Sale (Act. 3135,
b) raised;
as amended) c) acquired by seller after the perfection of
the contract;
Object d) things whose acquisition depends upon
contingency which may or may not
Q. What are the requisites of the thing which
happen. (Art. 1462, NCC)
constitutes the object of sale?

NOTE: In the sale of future goods, the seller

ANS.
assumes the risk of acquiring the title to the
1) The thing must be existing.
future goods and making the conveyance, or
2) The thing must be licit or legal.
responding in damages for the buyer’s loss of
3) The thing must be determinate or capable
his bargain.
of being determined without the need of a
**Art. 1462 does not apply if the goods are to be
new contract.
manufactured ESPECIALLY for the buyer because
4) The vendor must have a right to transfer
that case is a contract for a piece of work and not of
ownership of the thing at the time it is
sale.
delivered. (Art. 1459, NCC)
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Q. Give examples of things having potential

Q. Is a sale of a future thing valid? existence and therefore may be objects of valid
sales.
ANS. Yes, provided that the sale of a mere hope
or expectancy is deemed subject to the condition ANS. Wine which a vineyard is expected to
that the thing will come into existence. (Art. produce; fruits to grow; milk that a cow may
1461, NCC) yield in the coming year; wool which may grow
upon a sheep.
Q. What is emptio rei speratae?
Q. May the sole owner of a thing sell an
ANS. Emptio rei speratae is a sale of a future thing undivided interest therein?
certain as to itself but uncertain as to its quality
or quantity. Such sale is subject to the condition ANS. Yes, the sole owner of a thing may sell an
that it shall come into existence. undivided interest therein. (Art. 1463, NCC)

Q. Distinguish emptio rei sperati from emptio Q. What is the effect if the sole owner of a
spei. thing would sell an undivided interest in such
thing?
Emptio Rei Emptio Spei
Sperati ANS. The buyer becomes a co-owner over the
Sale of a thing not Sale of hope itself thing.
yet in existence that the thing will
subject to the come into Q. May a property subject to reserva troncal be
condition that the existence even if sold?
thing will exist the thing does not
and on failure of eventually exist; ANS. Yes, Art. 1465 of the NCC states that
the condition, the what is important things subject to a resolutory condition may be
contract becomes is that the hope the object of a contract of sale.
ineffective and itself validly
hence, the buyer existed. Price
has no obligation
Q. What are the requisites of price in the
to pay the price
contract of sale?
Future thing is It is not certain
certain as to itself that the thing
ANS. Price must observe the following
but uncertain as to itself will exist,
requisites:
its quantity & much less its
1) Price must be in money or its equivalent.
quality quantity & quality
2) Price must be certain or ascertainable.
Deals with a Deals with a
3) Price must be real not simulated.
future thing present thing, that
is, the hope or
Q. When is price considered certain?
expectancy

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ANS. Price is considered certain when it is However, if the inadequacy of price results in
referred to another thing certain, or when it will lesion or badge of fraud against the creditors,
be determined by a specified person. then, the contract is rescissible.

Q. Rey’s right in Y Company was sold in 3/100 Q. If the price is simulated, what is the effect
of the entire net value of the business. Said on the contract of sale?
value was, in turn, to be fixed by a specified
board of assessors. Is the price certain? ANS. The sale is void but the act may be shown
to have been in reality a donation or some other
ANS. Yes, for there was no need of any further act or contract. (Art. 1471, NCC)
meeting of the minds on the price.
Q. When shall prices of securities, grain,
Q. As a rule, price fixed by a 3 person is
rd
liquid, and other things be considered certain?
binding upon the parties. What are the
exceptions? ANS. The price is considered certain when the
price fixed is that which the thing sold would
ANS. have on a definite day, or a particular exchange
1) When the 3rd person acts in bad faith or by or market or when an amount fixed is above or
mistake. In such a case, the courts may fix below the price on such day, or in such
the price. (Art. 1469, NCC) exchange or market, provided said amount be
2) When the 3rd person disregards specific certain. (Art. 1472, NCC)
instructions or procedure or data given
him. Q. Delia sold to Mar a fountain pen today at
3) When the 3rd person refuses or cannot fix the price equivalent to the stock quotation two
it. If this happens, the contract is void days from today of 100 shares of Jacks
unless the parties subsequently agree Corporation. Is the sale valid?
upon the price.
4) When the 3rd person is prevented from ANS. Yes provided the stock quotation price
fixing the price either by the seller or the two days later can be ascertained, otherwise if it
buyer. In this case, innocent party may cannot be ascertained at the time or two days
choose between rescission and fulfillment, from today the sale is inefficacious.
with damages in either case. (De Leon)
Q. May the fixing of a price left to the
Q. What is the effect of gross inadequacy of discretion of one of the contracting parties?
price?
ANS. No, as a general rule. However, if the price
ANS. As a rule, it does not affect the contract of fixed is accepted by the other party, the sale is
sale, except it may indicate: perfected. (Art. 1473, NCC)
1) Defect in the consent; or Price cannot be left to the discretion of one of the
2) The parties really intended a donation or contracting parties for it cannot be said that the
some other forms of contract. (Art. 1470, other consented to the price he did not and
NCC) could not previously know. Moreover, to be

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just, the price must be determined impartially Q. Ayson and Badz entered into a contract that
by both parties. is complete in itself, except that there was no
agreement with reference to the price. What
Q. What is the effect if determination of price would be the basis of the price of the object of
be left to the vendor? the contract?
ANS. If the terms of sale are complete except for
ANS. If left to the judgment of the vendor, the an agreement with reference to the price, the
transaction may be valid as donation if he can law implies a price equivalent to the reasonable
share that such was the intention of both parties value of the goods in case where the buyer has
to the contract and if there are no reasons of a appointed the thing sold. And where the buyer
different nature which militate against its accepts the delivery knowing the price claimed
validity. by the seller, he cannot thereafter refuse to pay
for it at price even when there is no agreement
Q. Is the contract perfected if the price fixed by as to price.
one party but accepted by the other?

ANS. Yes, where the price fixed by one party is Offer, Acceptance and Option
accepted by the other, the contract is deemed
perfected because in this situation there exist
Q. What are the kinds of promise (scope)
true meeting of minds upon the price.
provided in Art. 1479 of the NCC?
Q. Give the effect of failure to determine price
ANS. The scopes of Art. 1479 are:
where the contract is executory.
1. An accepted unilateral promise to sell where
the promise decides to buy;
ANS. If the price cannot be determined in
2. An accepted unilateral promise to buy when
accordance with the Civil Code, or any other
the promise decides to buy;
manner, the contract is inefficacious. (Art. 1474,
3. A bilateral promise to buy where the promise
NCC) Consequently, there is no obligation on
decides to sell reciprocally accepted, where
the part of the vendor to deliver the thing and
either party to decides to exact compliance.
the part of the vendee to pay.

Q. Give the effect if unilateral promise is

Q. What if delivery has been made but the
unaccepted.
price cannot be determined, what would be
the effect?
ANS. A unilateral promise or offer to sell or to
buy a thing which is not accepted creates no
ANS. If the thing or any part thereof has already
juridical effect or legal bond. Such accepted
been delivered or appropriated by the buyer,
offer is called policitation.
the latter must pay a reasonable price thereof.
The reasonable price or value of goods is
generally the market price of the object of the
contract.

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Q. What is the effect of bilateral promise 3) It imposes no binding obligation on the

(mutual promise)? person holding the option aside from the
consideration for the offer.
ANS. When one party accepts the other’s 4) It must be supported by a consideration
promise to sell, a determinate thing for a price distinct from the price, else it is void.
certain, it is reciprocally demandable. It (Atkins v Cua Hian Tek, Sanchez v Rigos,
generates a binding contract of sale. Sps. Trinidad v IAC)
5) Consideration need not be money or
Q. How must acceptance of unilateral promise actual cash. It must be something of value
be done? though. (Serra v CA & RCBC)

ANS. The acceptance of unilateral promise to Q. What is option money?

sell must be plain, clear, and unconditional.
Therefore, if there is a qualified acceptance with ANS. Option money is a money given as distinct
terms different from the offer, there is no consideration for the option contract.
acceptance, that is no promise to buy and there
is no perfected sale. Q. Define earnest money.

Q. How long is the offer bound by his promise ANS. Earnest money is a money given by the
when option is granted? buyer to the seller to have the bargain. It is
actually a partial payment of the purchase price
ANS. The offer is bound by his promise by the and is considered proof of perfection of the
stipulation of the parties. If there is no contract.
stipulation then the court will fix the term.
Q. Is earnest money deductible from the total
Q. What is the nature of an option contract? price?

ANS. ANS. Yes, since earnest money constitutes

1) It is a preparatory contract separate and advance payment, it must be deducted from the
distinct from the principal contract. total price.
2) It gives one party the right to decide
whether or not to enter into principal Q. Distinguish earnest money from option
contract, while it binds the other: money.
a) not to enter into the principal contract
with any other person during the agreed ANS. Earnest money as distinguish from option
time; and money is that:
b) to enter into the principal contract with Earnest Money Option Money
the party to whom the option was granted Part of purchase Money given as
if the latter should decide to use the option price distinct
within the agreed period. consideration for
the option
contract

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Given only when Applies to a sale Auction

there is already not yet perfected
Q. When is sale by auction perfected?
sale
When given, When the would-
ANS. The sale by auction is perfected when the
buyer is bound to be buyer gives
auctioneer announces its perfection by the fall
pay the balance. option money, he
of the hammer or in other customary manner.
is not required to
(Art. 1476, NCC)
buy.

Q. May the bidder retract his bid before the

Q. Can option money become earnest money?
hammer falls?

ANS. Yes, option money can become earnest

ANS. Yes. Every bidding is merely an offer and,
money when parties so stipulate.
therefore, before it is accepted, it may be
withdrawn. The assent is signified on the part of
the seller by knocking down the hammer.
Perfection of Contract of Sale
Q. May the auctioneer withdraw the goods
Q. What is the effect of perfection? from the sale before the fall of the hammer?

ANS. Once contract is perfected, the parties may ANS. Yes, unless the auction has been
reciprocally demand performance. (Art. 1475, announced to be without reserve. The bid is
NCC) Nothing is left to the parties to do except merely an offer, not an acceptance of an offer to
the execution of their mutual obligation, sell. Therefore, it can be rejected. What the
whereby it gives the vendee the right to compel auctioneer does in withdrawing is merely reject
the vendor to deliver the thing but acquire no the offer.
real right over it until the delivery is made.
Q. When can the seller bid in the auction?
Q. Give the exceptions where contract is
perfected by mere delivery. ANS. The seller or his agent may bid in an
auction sale provided:
ANS. The exceptions are: 1) Such right was reserved;
1) When by virtue of stipulation of parties or 2) Notice was given that the sale is subject to
law of the sale is subject to suspensive a right to bid on behalf of the seller; or
condition, the contract is perfected only 3) The right to bid by the seller is not
from the fulfillment of the condition. prohibited by law or stipulation.
2) Where the contract was expressly made
subject to the approval of higher Q. Can the seller employ others to bid for him?
authorities.
ANS. Yes, provided he has notified the public
that the auction is subject to the right to bid on

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behalf of the seller. Notice to public must not be of the goods correspond with the sample if they
fraudulent. do not also correspond with the description.

Q. Who may attack the auction sale? Q. Is it sufficient that the bulk of goods
ANS. Last sentence of paragraph 4, Art. 1476 of correspond with the sample, but not
the NCC does not limit the rest of paragraph correspond with the description?
that in case seller actually buys, he only can
complain. Objection to such sale is also available ANS. No, it is not sufficient that the bulk of
to the debtor in an auction for deficiency after goods correspond with the sample, but not
the sale. correspond with the description.

Q. What is transaction “on sale or return”?

Sale by Description, Sample and Approval
ANS. When goods are delivered to the buyer
Q. What is sale by description? "on sale or return" to give the buyer an option to
return the goods instead of paying the price, the
ANS. Sale by description accrues where the ownership passes to the buyer by delivery, but
seller sells things as being of particular kind, the he may revest the ownership in the seller by
buyer not knowing whether the seller’s returning or tendering the goods within the
representations are true or false but relying on time fixed in the contract, or, if no time has been
them as true; or as otherwise stated, where the fixed, within a reasonable time. (Art. 1502,
purchaser has not seen the article sold release on NCC)
the description given him by the vendor, or has This is a sale that depends on the discretion of
seen the goods but the want of identity is not the buyer; it is a sale with a resolutory condition.
apparent on inspection.
Q. What are transactions “on approval or on
Q. What is sale by sample? trial or satisfaction”?

ANS. Sale by sample is that where the seller ANS. When goods are delivered to the buyer on
warrants that the bulk of the goods shall approval or on trial or on satisfaction, or other
correspond with the sample in kind, quality, similar terms, the ownership therein passes to
and character. Only the sample is exhibited. The the buyer:
bulk is not present and so there is no 1) When he signifies his approval or
opportunity to exercise or inspect it. acceptance to the seller or does any other
act adopting the transaction;
2) If he does not signify his approval or
Q. What must be satisfied in a sale of goods by acceptance to the seller, but retains the
description and sample? goods without giving notice of rejection,
then if a time has been fixed for the return
ANS. Sale of goods by description and sample of the goods, on the expiration of such
must satisfy all warranties appropriate to either time, and, if no time has been fixed, on the
kind of sale, and it is not sufficient that the bulk expiration of a reasonable time. What is a

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reasonable time is a question of fact. (Art. buyer is at fault or

1502, NCC) there is a contrary
This is a sale really dependent on the quality of agreement.
the goods; it is a sale with suspensive condition.
Here, the buyer may in time become the owner Q. A delivered to B a refrigerator “on sale or
under the conditions specified in the law; return”. Did B become the owner upon
otherwise, the seller is still the owner. delivery?

NOTE: In both “sale or return” or “sale on trial ANS. Yes, in view of the delivery. Of course, B
or approval”, if the goods are injured or may revest the ownership in S by returning or
damaged substantially thru the negligence or tendering the refrigerator to him within the time
misuse of the buyer, his right to return is lost fixed in the contract; or if no time has been fixed,
and the sale becomes absolute. within a reasonable time.

Q. Distinguish “sale or return” from “sale on Q. In the preceding problem, can B return the
trial or approval”. goods even if he finds nothing wrong with the
quality of the goods?
ANS.
Sale or Return Sale on Trial or ANS. Yes, for discretion here is with the buyer.
Approval
Subject to Subject to Q. In the problem above, if B does not return
resolutory suspensive the refrigerator in due time, what will be the
condition condition consequences of his inaction?
(ownership is (ownership
extinguished iftransfers if goods ANS. The sale will be considered absolute, and
buyer decides to are satisfactory) the price may be recovered since after all,
return) delivery had been made.
Depends entirely Depends on the
on the will of the character or Q. In the problem above, if B had not yet
buyer quality of the returned the goods, does he have to pay for
goods them even if the refrigerator has been
Ownership of the Ownership destroyed by a fortuitous event?
goods passes to remains in the
the buyer on seller until the ANS. Yes, for ownership has been transferred to
delivery and buyer signifies his him, and being the owner, he bears the loss.
subsequent return approval or
of the goods acceptance to the Q. In a case of “on sale or return”, does the
reverts ownership seller buyer have the right to return if the thing is
in the seller abused?
Risk of loss/injury Risk still remains
rests upon buyer with the seller ANS. In case of “on sale or return”, the buyer
except when has no right to return if he has materially abused

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the condition of the thing. The sale in this case c) Buyer must give goods a trial except when
becomes absolute. it is evident that it cannot perform the
work intended.
Q. What about if the objects deteriorate d) Period within which buyer must signify
without the fault of the buyer? his acceptance commences to run only
when all the parts essential for the
ANS. In case of “on sale or return”, if the objects operation of the object have been
deteriorate without the fault of the buyer, the delivered.
buyer can still return, provided the reasonable e) If it is stipulated that a third person must
period for returning has not yet lapsed. satisfy approval or satisfaction, the
provision is valid, but the third person
Q. Give the difference between a contract “on must be in good faith. If refusal to accept is
sale or return” and a delivery of property with not justified, seller may still sue.
option to purchase. f) Generally, the sale and delivery to a buyer
who is an expert on the object purchased is
ANS. In the first, ownership is transferred at NOT obviously a sale on approval, trial, or
once; in the second, there is no transfer of satisfaction.
ownership until the owner agrees to buy.
Q. What is the exception in the second
Q. X, the owner of a certain jewelry, entrust paragraph of the above-mentioned rules?
them to Y for sale or return of the jewelry upon
a specified period of time. Y sells the jewelry ANS. The exceptions are:
to Z but retains the price. Can X obtain a) If buyer is at fault;
possession of the jewelry from Z? Why? b) If buyer had expressly agreed to bear loss.

ANS. This problem calls for a distinction in view

of the use of the words “for sale or return,” a Sale Distinguished From Other Contracts
phrase which has technical signification in the
law of sales although of course the phrase used Q. Distinguish contract of absolute sale from
in sales in “on sale or return” but there’s no such contract to sell.
technical meaning in the law of AGENCY. ANS.
Contract of Contract to Sell
Q. What are some rules on sale “on approval or Absolute Sale
trial or satisfaction”? Title passes upon Title shall not pass
delivery until buyer has
ANS. Some of the rules are: paid the price
a) The risk of loss remains with the seller, despite delivery
although there has been delivery, until the Non-payment of Full payment of
sale becomes absolute. the price may be the price is a
b) Risk of loss remains with the seller seen as a negative positive
although there has been delivery if the sale resolutory suspensive
has not yet become absolute. condition condition.

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(ownership will (ownership will conditional sale, dependent upon a

revert to the seller be vested upon since transfer of condition not
if he chooses to the buyer only title is necessarily the
rescind the when he pays the conditioned upon payment of the
contract) price) the full payment purchase price
Non-payment Non-payment is of the purchase
gives seller the not a breach but price
right to either simply an event Full payment of Fulfillment of the
demand specific that prevents the the purchase price suspensive
performance or obligation of the does not condition makes
rescind the vendor to convey automatically vest the sale absolute.
contract title from ownership or title If there has been
acquiring binding to the prospective previous delivery
force buyer as the to the buyer,
Seller loses Seller retains prospective seller ownership or title
ownership of the ownership until explicitly reserves automatically
thing sold and buyer’s its transfer. Seller transfers to the
delivered unless fulfillment of the still has to convey buyer.
the sale is condition title.
rescinded If seller sells the If seller sells the
Remedy of Remedy of object of sale to a object of sale to a
rescission is rescission is not 3rd person once 3rd person once
available (NOTE: available condition is condition is
rescission found fulfilled, the 3rd fulfilled, the 3rd
in Art. 1191 is not person’s right is person’s right
based upon the better than the cannot defeat that
non-payment of original buyer but of the original
the price but seller incurs buyer. (The
rather on the damages. original buyer
failure of the may even ask for
debtor to comply reconveyance if
with an already the object has
existing been delivered to
obligation) such 3rd person.)

Q. Distinguish contract to sell from Q. Distinguish sale from a lease contract.

conditional sale.
ANS. In a sale, the seller transfers ownership; in
ANS. a lease contract, the lessor or landlord transfers
Contract to Sell Conditional Sale merely the temporary possession and use of the
Similar to the Willingness of the property.
nature of a vendee to sell is

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Q. Distinguish sale from agency. instructions of his

Sale Agency principal.
Buyer receives the Agent receives the
goods as owner goods as the Q. What is a contract for a piece of work?
goods of the
principal who ANS. Contract for a piece of work – goods are to
retains ownership be manufactured specially for the customer and
over them and has upon his special order, and not for the general
the right to fix the market.
price and terms of
the sale and Q. What is the rule to determine if the contract
receive the is one of sale or a piece of work?
proceeds less the
agent’s ANS. If ordered in the ordinary course of
commission upon business, it is a contract of sale. If manufactured
the sales made specially and not for the market, it is a contract
Buyer has to pay Agent simply has for a piece of work. (Art. 1467, NCC)
the price to account for the
proceeds of the Q. Distinguish contract of sale and contract for
sale he may make a piece of work.
on the principal’s
behalf ANS.
Buyer, generally, Agent can return Contract of Sale Contract For A
cannot return the the object in case Piece Of Work
object sold he is unable to sell The object of the The object of the
the same to a 3rd sale would have sale never would
person existed and been have existed if not
Seller warrants Agent makes no the subject of sale for the order of
the thing sold warranty for to some other the party desiring
which he assumes person, even if the to acquire it
personal liability order had not
as long as he acts been given
within his Risk of loss before Risk of loss before
authority and in delivery is borne delivery is borne
the name of the by the buyer (at by the contractor
seller least according to
Buyer can deal Agent in dealing Art. 1480, NCC)
with the thing with the thing Within the Statute Not within the
sold as he pleases received, must act of Frauds Statute of Frauds
and is bound
according to the

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Q. If I ask someone to construct a house for me, Q. Distinguish sale from dation in payment
is this a contract of sale or for a piece of work? (dacion en pago or dacion en solutum)

ANS. It is a contract for a piece of work. But, if ANS.

he will construct on his own land, and I will get Sale Dation in
both the land and the house, it would seem that Payment
this can be very well treated as a sale. There is no pre- There is pre-
existing credit. existing credit.
Q. What is barter? Gives rise to Extinguishes
obligations. obligations.
ANS. By the contract of barter or exchange, one From the From the
of the parties binds himself to give one thing in viewpoint of the viewpoint of the
consideration of the other’s promise to give seller, the cause is debtor, the cause
another thing. the price; from the is the
viewpoint of the extinguishment of
Q. What is the rule to determine whether the buyer, the cause is debt; from the
contract entered into is one of sale or barter? the obtaining of viewpoint of the
the object. creditor, the cause
ANS. is the acquisition
1st rule- intent of parties. of the object
2nd rule- if intent does not clearly appear: offered in lieu of
a) Value of thing given > amount of money or the original credit.
its equivalent = BARTER There is greater There is limited
b) Value of thing given <= amount of money freedom in freedom in
or its equivalent = SALE (Art. 1468, NCC) determining the determining the
price. price.
Q. If I give my truck worth 1 million to Sacra Buyer still has The debtor
in consideration of Sacra’s giving to me .4 to pay the price. receives the
million cash, and a car worth .6 million, is the payment before
transaction a sale or a barter? the contract is
perfected.
ANS. It depends on the mutual intent of the
parties. If the intent is not clear, the transaction Q. When is lease construed as sale?
is barter.
ANS. Even if the word lease is employed, when
the sale on installment is evidently intended, it
must be construed as a sale.

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Q. May a party stipulate that the installments Q. What is the effect of purchase by minors?
or rent paid shall not be returned?
ANS. When minors buy, the contract is
ANS. Yes. In sale of personal property by generally voidable, but in the case of necessaries,
installment, a lease of personal property with “where necessaries are sold and delivered to a
option to buy, the parties may stipulate that the minor or other person without capacity to act,
installment or rents paid are not to be returned. he must pay a reasonable price therefor.
Such stipulation is valid insofar as not Necessaries – those things which are needed
unconscionable. for sustenance, dwelling, clothing, medical
attendance, education and transportation
Q. What will happen if the stipulation is according to the financial capacity of the
unconscionable? family of the incapacitated person (Art. 94,
FC)
ANS. If the stipulation is unconscionable, the
court has the power to order the return of a Q. A sale between husband and wife is void.
portion of the total amount paid in installment What are the exceptions?
or rents.
ANS.
Q. What happens when the parties have no 1) When a separation of property was agreed
stipulations that installment or rents be upon in the marriage settlements; or
returned? 2) When there has been a judicial separation
of property. (Art. 1490, NCC)
ANS. If there is no stipulation that installment *Prohibition of sale also applies to common-law
or rents paid be returned, the installment shall relationships.
be returned minus reasonable rent.
Q. In relation to the preceding question, what
2. Parties is the effect of sale?

Q. Who may be parties in a contract of sale? ANS. Generally, a sale by one spouse to another
is void. However, not everybody can assail the
ANS. Any person who has capacity to act may validity of the transaction. Thus, creditors who
enter into a contract of sale. became such after the transaction cannot assail
its validity for the reason that they cannot be
Q. Distinguish absolute incapacity to buy said to have been prejudiced. But prior creditors
from relative relative. as well as the heirs of either spouse may invoke
the nullity of the sale. When the proper party
ANS. Absolute incapacity is when a party brings the actions, the sale should be declared
cannot bind himself in any case. Whereas, void by the courts. The spouse themselves, since
relative incapacity is when certain persons, they are parties to an illegal act, cannot avail
under certain circumstances, cannot buy certain themselves of the illegality of the sale. The law
property. will generally leave them as they are.

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Q. A husband and his wife were living judicial approval. They have thus been living
together under the conjugal partnership apart for the last 10 years. Can they can now
system. May the husband sell his own parcel sell the property to each other?
of land to his wife?
ANS. They still cannot, for they are still
ANS. No, because such sale is expressly husband and wife, and there has been no
prohibited by law and is, therefore, considered separation of property agreed before the
VOID. marriage, nor a judicial separation of property
elected during the marriage.
Q. In the preceding problem, who can attack
the validity of the sale? Q. Would your answer to the preceding
problem be the same if there has been legal
ANS. Although the sale is void, not everybody separation?
is given the right to assail the validity of the ANS. No, the answer will not be the same. One
transaction. For instance, the spouses of the effects of legal separation is the
themselves, since they are parties to an illegal dissolution of the conjugal partnership. Once
act, cannot avail themselves of the illegality of the conjugal partnership ends, the system that
the sale, the law will generally leave them as will prevail is the separation of property system,
they are. And also, the creditors who became and here the sale can be validly done.
such only after the transaction cannot attack the
validity of the sale for the reason that they Q. May a husband validly sell the wife’s
cannot be said to have been prejudiced. Thus, property for her?
the only people who can question the sale are
the (i) heirs of either spouse, or (ii) prior ANS. Yes, but only if he acts as an agent for her,
creditors. with a specific or special power of attorney to
effectuate the sale.
Q. A husband sold his land to his wife. Later,
he borrowed money from C. The loan Q. What is the reason for a relative incapacity
matured. When C discovered that the husband to buy?
did not have any cash or any property, he
decided to question the sale that had ANS. Public policy prohibits the transactions in
previously been made in favor of the wife. Can view of the fiduciary relationship involved.
the creditor go after such property?
Q. Who are prohibited to acquire by purchase,
ANS. No, for he was not yet a creditor at the even at a public or judicial auction, either in
time the transaction took place. Therefore, it person or through the mediation of another as
cannot be said that he had been prejudiced by contemplated in Art. 1491 of the Civil Code?
the sale.
1) The guardian, the property of the person
Q. A husband and wife were living under the or persons who may be under his
conjugal partnership system. Later, because of guardianship;
a quarrel, the wife left the husband, without

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2) Agents, the property whose person disqualified; otherwise, the sale cannot
administration or sale may have been be set aside.
entrusted to them, unless the consent of
the principal has been given; Q. What is purchase by agent himself?
3) Executors and administrators, the
property of the estate under ANS. An agent is not allowed, without his
administration; principal’s permission, to sell to himself what he
4) Public officers and employees, the has been ordered to buy; or to buy for himself
property of the State or of any subdivision what he has been ordered to sell. The fiduciary
thereof, or of any government-owned or relations between them estop the agent from
controlled corporation, or institution, the asserting a title adverse to that of the principal.
administration of which has been Therefore, such a sale to himself would be
entrusted to them; this provision shall ineffectual and void because it is expressly
apply to judges and government experts prohibited by law.
who, in any manner whatsoever, take part
in the sale; Q. What is purchase by attorney?
5) Justices, judges, prosecuting attorneys,
clerks of superior and inferior courts, and ANS. A lawyer is not allowed to purchase the
other officers and employees connected property of his client which is in litigation. To
with the administration of justice, the do otherwise would be a breach of professional
property and rights in litigation or levied conduct and would constitute malpractice. But
upon an execution before the court within assigning the amount of the judgment by client
whose jurisdiction or territory they to his attorney, who did not take any part in the
exercise their respective functions; this case where said judgment was rendered, is
prohibition includes the act of acquiring valid.
by assignment and shall apply to lawyers,
with respect to the property and rights Q. What is the meaning of “any others
which may be the object of any litigation in specially disqualified by law”?
which they may take part by virtue of their
profession. ANS. This refers to those prohibited by reason
6) Any others specially disqualified by law. of the fiduciary relationship involved. This is so
by the principle of “ejusdem generis”. While
NOTE: Generally, sales entered into in aliens cannot buy land because of the
disregard of the prohibition under this article Constitution, they do not fall under the phrase
are not void but are merely voidable. “any others specially disqualified by law”.

Q. What is purchase thru another? Q. At a mortgage foreclosure sale carried out

as a result of a judicial proceeding, A, attorney
ANS. “Through the mediation of another” – this for the mortgage creditor, bought the
must be proved, that is, that there was really an mortgaged real estate. If A had bought the
agreement between the intermediary and the property for himself, is the sale void or
voidable?

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present, cannot exercise the right of legal

ANS. The sale is void being a contract redemption.
prohibited by law.
3. Obligations of the vendor
Q. If A had bought the property for his client,
did he violate the absolute terms of Art.1491 of Q. What are the obligations of the vendor?
NCC?
ANS. The following are the obligations of the
ANS. If A bought the property for his client, vendor:
there would be no violation of the prohibition a) To transfer ownership (cannot be waived);
stated in Art. 1491 because then, there would be b) To deliver the thing, with its accessions
no breach of trust or confidence in such a case. and accessories, if any (cannot be waived);
He would be merely acting as agent of his client; c) To warrant the object sold against eviction
and under the law, such client is not prohibited and against hidden defects (this can be
from buying the property. waived or modified since the warranty is
not an essential element of the contract of
Q. Suppose that a client executed a deed of sale);
assignment of the property which was the d) To take care of the thing pending delivery
object of litigation in favor of his lawyer who with proper diligence;
handled his case in said litigation, may such e) To pay for the expenses of the deed of sale
deed of assignment be ratified? unless there is a stipulation to the contrary.

ANS. The nullity of such prohibited contract is

Delivery
definite and permanent, and cannot be cured by
ratification. In this aspect, the permanent
disqualification of public and judicial officers Q. What is the meaning of tradition?
and lawyers grounded on public policy differs
from the first the cases of guardians, agents and ANS. Tradition, or delivery, is a mode of
administrators, as to whose transactions, it has acquiring ownership, as a consequence of
been opined that they may be ratified by means certain contracts such as sale, by virtue of
of and in the form of a new contract, in which which, actually or constructively, the object is
case its validity shall be determined only by the placed in the control and possession of the
circumstances at the time of the execution of the vendee.
contract.
Q. What are the different kinds of delivery or
Q. What is the applicability of relative tradition?
incapacity to legal redemption, compromises
and renunciation? ANS. The different kinds of delivery are:
a) Actual or real
ANS. If a ward’s property is sold, the guardian, b) Legal formalities
even if he be an adjacent owner, and even if all i. Legal formalities
the other requisites for legal redemption are ii. Symbolical tradition or traditio
simbolica
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iii. Traditio longa manu Q. What are the rules on constructive delivery?
iv. Traditio brevi manu
v. Traditio constitutum possessorium ANS.
c) Quasi-tradition a) If a seller has no actual possession, he
cannot transfer ownership by constructive
Q. What is constructive delivery? delivery. The reason is that in every kind
of delivery, the transferee should have
ANS. With regard to movable property, its control, but here control cannot be had
delivery may also be made by the delivery of the since it is in the possession of another.
keys of the place or depository where it is stored b) There can be no constructive delivery by
or kept. means of a public instrument if there is a
stipulation to that effect. Hence, the
Q. What are the two kinds of constructive Supreme Court has held that if there is a
delivery? clause to the effect that the buyer “will
take possession after four months,” at the
ANS. The two kinds of constructive delivery end of four months, it cannot be said that
are: there is an automatic delivery. At said
a) Legal formalities – This applies to real and time, there must still be a delivery. The
personal property since the law does not same is true in a case of a sale by
distinguish. installment, where it is stipulated that title
b) Tradition simbolica should not be transferred until after the
payment of that last installment; or where
Q. In constructive delivery, what are the three the vendor reserves the right to use and
requisites in order that ownership may be enjoy their property until the gathering of
transmitted? the crops still growing.
c) The Civil Code does not provide that the
ANS. execution of the deed is a conclusive
1) The seller must have control over the presumption of the delivery of possession.
thing; What it says is that the execution thereof
2) The buyer must be put under control; shall be equivalent to delivery which
3) There must be the intention to deliver the means that the disputable presumption
thing for purposes of ownership (not, for established can be rebutted by clear and
example, of merely allowing the convincing evidence, such as evidence of
ownership or examination of the keys, nor the fact that the buyer did not really obtain
for the purpose of having said keys the material possession of the building.
repaired). Hence, it may be said that the execution of
the contract is only presumptive delivery.

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Q. Give an example of symbolical tradition or

traditio simbolica. ANS. The incorporeal properties are delivered
by:
ANS. An example is the delivery of the key of 1) Constructive tradition – execution of
the place where the movable sold is being kept. public instrument
2) Quasi-tradition – placing of titles of
Q. What is traditio longa manu? ownership in the possession of the buyer,
or the use by the buyer of his rights, with
ANS. This is by mere consent or agreement that the seller’s consent.
if the movable sold cannot yet be transferred to
the possession of the buyer at the time of the Q. What is the effect of delivery of land title
sale. deeds?

Q. What is traditio brevi manu? ANS. The delivery of land title deeds is
equivalent to a delivery of the property itself.
ANS. If the buyer had already the possession of
the object even before the purchase, as when the Q. What is the effect if the seller continues to
tenant of the car buys the car, that is, his occupy the land as tenant?
possession as an owner.
ANS. Where a seller continues to occupy the
Q. What is traditio constitutum possessorium? land as a tenant, the possession, by fiction of
law, is deemed to be constituted in the buyer.
ANS. This is the opposite of tradition brevi
manu. The possession as owner has changed, Q. Is the seller bound to afford the buyer a
for example, to possession as a lessee. reasonable opportunity to inspect the goods
for the purpose of ascertaining whether they
Q. Give an example of traditio constitutum are in conformity with the contract?
possessorium.
ANS. Yes, when the seller tenders delivery of
ANS. I sold my car but continued to possess it goods to the buyer, he is bound, on request, to
as a lessee of the purchaser. afford the buyer a reasonable opportunity of
examining the goods for the purpose of
Q. What is quasi-tradition? ascertaining whether they are in conformity
with the contract, unless otherwise agreed (Art.
ANS. It is the delivery of rights, credits or 1584, NCC)
incorporeal property made by:
a) Placing titles of ownership in the hands of Q. When is the vendor not bound to deliver the
a lawyer; or goods subject of a contract of sale?
b) Allowing the buyer to make use of the ANS. The vendor shall not be bound to deliver
rights. the things sold if the vendee has not paid him
the price or if no period for the payment has
Q. How are incorporeal properties delivered? been fixed in the contract. (Art. 1524, NCC)

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Q. If no period for the payment has been fixed, ANS. Yes, the exception is provided under
is the vendor bound to deliver the things sold? Articles 1536 and 1198. The seller may refuse to
deliver the things if the vendee has lost the right
ANS. No, the vendor is not bound to deliver the to make use of the period and still refuses to
things sold if no period has been fixed for the pay.
period of payment. (Art. 1524) The reason is
because a sale is a reciprocal contract giving rise Expenses for Execution
to reciprocal obligations.

Q. Who pays for expenses in execution and

Q. If a period for the payment has been fixed
registration?
by the parties, can the seller refuse to deliver
the things sold until the period of payment
ANS. The vendor (seller) has the duty to pay not
arrives?
only expenses for execution of the sale, but also
for the registration of the same in the absence of
ANS. No, the seller must deliver the things sold
any agreement between the parties. (Art. 1487,
even if said period has not yet arrived (Florendo
NCC)
v. Foz, 20 Phil. 388). He will then have to wait
for the end of the period before he can demand
Q. B sells his car to C. They agree that the
the price, except if the buyer has lost the benefit
expenses for registration be borne by C. Is the
of the term (see Art. 1198 of the NCC – instances
stipulation valid?
when the debtor shall lose every right to make
use of the period).
ANS. Yes. Parties may stipulate as to who bears
the expenses of execution and registration
Q. If a period for the payment has been fixed
provided it is not unconscionable.
by the parties, can the seller nevertheless
refuse to deliver the things sold until the
Q. Who bears the expenses incurred
period of payment arrives?
subsequent to the transfer of title?
ANS. Generally, no, the seller must deliver the
ANS. Expenses incurred are to be borne by the
things sold and wait for the period of payment
buyer, unless caused by the fault of the seller.
to arrive. However, the seller may refuse to
deliver the things if the vendee has lost the right
to make use of the period and still refuses to pay 4. Obligations of the vendee
(see Arts 1536 and 1198).
Q. What are the principal obligations of the
Q. If a period for payment has been agreed buyers?
upon in a contract of sale, the vendor cannot
avail of the right under Art. 1524. Is there an ANS. The following are the principal
exception to this rule such that the vendor can obligations of the buyers:
nevertheless refuse to deliver the things sold 1) to accept the delivery of the thing sold; and
until period of payment arrives? 2) to pay the price of the sale at the time and
place stipulated in the contract (Art. 1583,
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NCC) Upon EXAMINATION , examination is a

condition precedent to transfer ownership. (Art.
Acceptance of Delivery 1584, NCC)

Q. Is the vendor bound to offer the thing for

Q. What is the effect when the goods are examination before delivery without the
delivered to the buyer without him having
request of the vendee?
previously examined them?
ANS. Examination before delivery should be
ANS. Where goods are delivered to the buyer, made by request. Vendor is not bound to offer
which he has not previously examined, he is not
the thing for examination before delivery
deemed to have accepted them unless and until without the request of the vendee. (Art. 1584,
he has had a reasonable opportunity of NCC)
examining them for the purpose of ascertaining
whether they are in conformity with the Q. When is the thing considered accepted?
contract if there is no stipulation to the contrary.
(Art. 1583, NCC) ANS. When the thing is delivered, the thing is
considered accepted if the vendee has examined
Q. In what instance/s is the buyer deemed to it or has reasonable opportunity to examine it
have accepted the goods which he has not
(Art. 1584, NCC).
previously examined?
Q. What is the rule in case of COD (collect on
ANS. Where goods are delivered to the buyer, delivery)?
which he has not previously examined, he is
deemed to have accepted them if he has had a ANS. The buyer is not entitled to examine until
reasonable opportunity of examining them for payment is made, EXCEPT when there is an
the purpose of ascertaining whether they are in
agreement or that the usage of trade permits the
conformity with the contract if there is no same. In COD, goods are not to be delivered by
stipulation to the contrary. (Art. 1584, NCC)
the carrier to the buyer unless the latter pays.
(Art. 1584, NCC)
Q. Is the buyer of goods bound to accept
delivery thereof by installments? Q. When does the buyer have the right to
examine?
ANS. No, he is not bound to accept delivery
thereof by installments unless otherwise
ANS. Generally, the buyer is entitled to examine
stipulated. the goods prior to delivery. This is true even if
the goods are shipped “free on board”.
Q. What are the buyer’s rights in relation to the
examination of goods?

ANS. Upon ACCEPTANCE, the buyer may

assent to become owner of the specific goods
when delivery of them is offered to the buyer.
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Q. In what instances does the buyer have no

right to examine? Q. SS sold and delivered to BB a parcel of land
for 2 Million pesos payable within 30 days
ANS. The buyer has a right to examine if there from the date of contract. Soon after the sale,
is a stipulation to this effect and when the goods XX claims ownership over the land by virtue
are delivered C.O.D, unless there is an of a prescriptive title. May BB suspend the
agreement or usage of trade permitting such payment of the price?
examination.
ANS. Yes, B may suspend the payment of the
Q. When is there acceptance of the goods? price because of a reasonable fear that an action
reinvidicatoria will be brought against him. It is
ANS. There are three ways of acceptance of not necessary that the vindicatory action has
goods: already been brought: reasonable fear thereof is
a) express acceptance of goods sufficient.(Art. 1590, NCC)
b) when buyer does an act which only an
owner can do Q. What are the exceptions to the right of a
c) failure to return after reasonable lapse of vendee to suspend payment of the price?
time (Art. 1585, NCC)
ANS. The exceptions are:
Q. When a buyer accepted goods despite delay 1) Should there be a stipulation to that effect;
and also promised later on to pay, may the 2) Should the vendor give security for the
buyer subsequently ask for damages on return of the price;
account of delay? 3) Should the vendor have caused the
disturbance or danger to cease; or
ANS. No, the buyer is estopped because of the 4) Should the disturbance consist of only of
acceptance without reservation at the time of a mere act of trespass. (Art. 1590, NCC)
acceptance. (Art. 1585, NCC)
Q. A sold a parcel of land to B. Thereafter, C
filed a suit against A and B for quieting of title.
Payment During pendency, may B suspend payment?

ANS. Yes. B has reasonable ground to fear that

Q. When may the vendee suspend the
his possession or ownership would be
payment of the price? disturbed by a vindicatory action. (Art. 1590,
NCC)
ANS. The vendee may suspend the payment of
the price in the following cases: Q. Suppose in the problem aforementioned, C
1) Should he be disturbed in the possession
only claims for a part of the land. May there be
or ownership of the thing sold; or suspension of payment?
2) Should he have reasonable grounds to
fear such disturbance by a vindicatory
ANS. Yes, B may still suspend payment for the
action or by a foreclosure of mortgage.
entire amount.
(Art. 1590, NCC)
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Interest
Q. Should the vendee be disturbed in the
Q. When is the vendee liable for interest on the
possession or ownership of the thing acquired,
price?
or should he have reasonable grounds to fear
such disturbance, may the vendee recover
ANS. The vendee is liable for interest on the
what has already been paid?
price in the following cases:
1) Should it have been so stipulated;
ANS. No, the vendee may retain only the price
2) Should the thing sold and delivered
that has not been paid to the vendor. He is not
produce fruits or income; and
entitled to recover what has already been paid.
3) Should he be in default, from the time of
judicial or extrajudicial demand for the
Q. May the seller immediately sue for the
payment of the price. (Art. 1589, NCC)
rescission of the sale?

Q. When is the buyer said to be in default with

ANS. The seller must have reasonable grounds
regards to legal interest?
to fear the loss of the immovable property and
the loss of the price. (Art. 1591, NCC)
ANS. If the buyer fails to give the money after
the contract is notarized, although he had
previously promised to do so, there is default
Q. What is the effect of delivery when no time
with liability for legal interest. (Art. 1589, NCC)
has been fixed for payment of the price?

Q. If it has been stipulated that vendee shall

ANS. If the seller has delivered but no time has
owe interest, is demand still necessary?
been fixed for the payment of the price, the
ANS. No demand is needed. Fruits or income is
seller may require the payment to be made at
sufficient to warrant the payment of interest.
anytime after delivery. The buyer here has the
(Art. 1589, NCC)
duty to pay the price immediately upon the
demand. (Ocejo v. Int. Bank, 37 Phil. 631)
Q. Should it have been so stipulated that the
vendee shall owe interest for the period
Q. What is the effect of deviations from the
between the delivery of the thing and the
provisions of the contract of sale?
payment of the price, must the stipulation be
in writing?
ANS. If the seller is forced to deviate from the
provision of the contract, but the purchaser
ANS. The stipulation on interest may be oral.
consents or agrees to such deviations, the
Interest which must be in writing refers only to
purchaser should still pay the price. (Engel v.
loan.
Velasco & Co., 47 Phil. 15)

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Rescission
Q. Is the vendor’s right to rescind absolute?

Q. What are the requisites in order for the

ANS. No, the vendor’s right to rescind is not
vendor to rescind sale of immovable property
absolute. The court may grant vendee a new
or in cases of anticipatory breach?
term. However, if there is already a demand, the
court may no longer fix a term. (Art. 1191, par.
ANS. The requisites are :
3, NCC)
a) There is delivery of immovable property
b) Vendee has not paid the price
Q. In what instances may the vendee no longer
c) Vendor has reasonable ground to fear the:
pay the price after the expiration of the time
i. LOSS of PROPERTY; AND
agreed upon although no demand has yet been
ii. LOSS of PRICE
made upon him by suit or notarial act?

Q. What is the rule if in the previous question

ANS. The vendee may no longer pay the price
neither ground exists?
in the following instances:
1) Sale on installment of real estate (Caridad
ANS. The provisions of Art. 1191 shall apply.
Estates vs Santero)– governed by Maceda
The article says:
Law
Art. 1191. The power to rescind obligations is
2) Mere promise to sell real estate /
implied in reciprocal ones, in case one of the
Conditional sale– there can be no
obligors should not comply with what is
rescission in contract to sell
incumbent upon him.
3) Cases under RA 6552 (RA 6552 recognizes
The injured party may choose between the
the vendor’s right to cancel unqualifiedly
fulfillment and the rescission of the obligation,
in case of industrial lots, commercial
with the payment of damages in either case. He
buildings, etc. with a refund of certain
may also seek rescission, even after he has
percentages of payments made on account
chosen fulfillment, if the latter should become
of cancelled contract)
impossible.
The court shall decree the rescission claimed,
Q. Does Art. 1592 of the NCC apply to a
unless there be just cause authorizing the fixing
promise to sell?
of a period. This is understood to be without
prejudice to the rights of third persons who
ANS. No, it does not apply to a promise to sell.
have acquired the thing, in accordance with
Art. 1592 speaks only of the rescission of
Articles 1385 and 1388 and the Mortgage Law.
contracts of sale of real property and does not
apply to contracts to sell real property on
Q. May the vendee still pay even if there is no
installments. (Roque vs. Lapuz, March 31, 1980)
judicial or notarial demand?

Q. AA failed to pay the price of a parcel of land

ANS. Yes, the vendee may still pay when there
within the agreed period. BB cancelled the
is no judicial or notarial demand Offer to pay is
contract before the period to pay arrived. Is
sufficient to defeat vendor’s prerogative. (Art.
AA guilty of failure to pay the price of land
1592, NCC)
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 CIVIL LAW

within the period agreed upon? ANS. The thing sold shall be understood as
delivered when it is placed in the control &
ANS. No, Art. 1592 contemplates of a situation possession of the vendee. (Art. 1497, NCC)
where the buyer who fails to pay the price at the
time agreed upon, may still pay, even after the Q. What is the effect of non-payment of the
expiration of the period, as long as no demand price?
for rescission of the contract has been made
upon him either judicially or by a notarial act. ANS. Execution of the deed of sale, in the
absence of any defect, transfers delivery, even if
Q. What are the rights of the vendor where the selling price, in whole or in part has not yet
automatic rescission of sale of movable been paid, for it is not payment that transfers
property is stipulated? ownership.

ANS. Vendor can rescind the contract as a Q. What is the effect of delivery to buyer (Who
matter of right if the vendee does not: used another money)?
a) Accept; or
b) Pay unless credit period for payment is ANS. In general, delivery of the property to a
stipulated. (Art. 1593, NCC) person who has purchased the property in his
own name will give title to said purchaser, and
5. Transfer of ownership not to the owner of the money used.

Q. When is ownership to the thing sold Q. What is the effect if ownership is not
transferred? transferred despite delivery?

ANS. Ownership is transferred from the ANS. The delivery of the thing to the warehouse
moment there is either actual or constructive of the buyer transfers ownership provided that
delivery thereof. (Art. 1477, NCC) Full payment the sale had already been perfected but
is not a requisite. However, when the sale is ownership is not transferred, although there has
conditional, the ownership is transferred not been perfection and delivery, if it was intended
upon delivery but payment of price. that no such transfer of ownership will take
place until full payment of the price.
Q. How is ownership transferred?
Q. What is the effect of sale that is made
ANS. As a rule, in the absence of agreement, through a public instrument?
ownership is not transferred, even if sold,
unless there has been a delivery. ANS. When the sale is made through a public
instrument, the execution thereof shall be
Q. When shall the thing sold be understood as equivalent to the delivery of the thing which is
delivered? the object of the contract, if from the deed the
contrary does not appear or cannot clearly be
inferred. (Art. 1498, NCC)

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Q. What is the concept of reservati domini or ANS. At the moment next after B had paid the
contractual reservation of title? P500,000 to A, ownership over the piano still
resided in A, the execution of the private
ANS. It is a stipulation where the parties agree instrument not being a mode of transferring
that despite delivery, the ownership of the thing ownership. Payment of the price without
shall remain with the seller even the purchaser tradition or delivery is not a mode of acquiring
has fully paid the price. ownership over the piano.

Q. Is contractual reservation valid? Q. A person bought in Iloilo a tractor for a

certain price. It was agreed that delivery of the
ANS. Yes. The parties may stipulate that despite tractor should be made within a certain time at
delivery, the ownership of the thing shall the warehouse of the purchaser in Manila, and
remain with the seller until the purchaser has the balance of the price should be paid at the
fully paid the price. (Art. 1478, NCC) moment of delivery. While enroute to Manila,
the tractor was delivered by the vendor to a
Q. Distinguish the concept of pactum reservati third person to secure a loan obtained by him
domini and contract to sell. for his personal convenience. Do you think
that the purchaser can recover the tractor from
ANS. the third person? Why?
Pactum Reservati Contract to Sell
Domini ANS. No, because no delivery was ever made to
A form of A contract the buyer, hence he never became the owner of
conditional preparatory to the tractor. Not being the owner, he had no real
contract contract of sale right over the property, so he cannot bring an
A contract There is no action to recover from an individual in lawful
preparatory to delivery yet. possession of the tractor.
contract of sale
In case of non- There can be no Q. If the thing sold cannot be transferred to the
payment, the action for it possession of the vendee at the time of the
injured party may merely prevents sale, what is the remedy?
file an action for execution of the
specific contract of sale. ANS. The delivery of movable property may
performance or likewise be made by the mere consent or
rescission of the agreement of the contracting parties, if the thing
contract. sold cannot be transferred to the possession of
the vendee at the time of the sale, or if the latter
Q. A sold a piano to B by private instrument already had it in his possession for any other
for P500,000. Who had ownership of the piano reason.
at the moment next after B had paid the
P500,000 to A? Explain.

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Q. What is reservation of ownership despite 2) where the law enables the apparent owner
delivery? to dispose of the goods as if he were the
true owner thereof;
ANS. This applies only to the sale of “specific 3) Where the sale is sanctioned by statutory
goods. Although delivery has been made, seller or judicial authority;
may reserve ownership until certain conditions 4) Where the sale is made at merchant’s
are fulfilled. Of course, the most important stores, fairs or markets;
controlling element is the intention. 5) When the seller has a voidable title which
has not been avoided at the time of the
Q. What are the instances when seller is still sale;
owner despite delivery? 6) Where seller subsequently acquires title
(Dizon v Suntay, EDCA Publishing v Sps.
ANS. The instances are: Santos)
1) Express stipulation. In these cases, the buyer’s right to the property
2) If under the bill of lading, the goods are is better than the owner, provided he is in good
deliverable to seller or agent or their order. faith.
3) In bill of lading, although stating that the
goods are to be delivered to buyer or his Q. A bought a pair of shoes from a shoe store
agent, is kept by the seller of his agent. and repair shop. It was later discovered,
4) When the buyer although the goods are however, that the shoes did not belong to the
deliverable to order of buyer, and store but to a customer who had left it there for
although the bill of lading is given to him, repair. Did A acquire good title to the shoes?
does not honor the bill of exchange sent
along with it. But of course, innocent third ANS. Yes, although the store was not the owner
parties (innocent holders and purchasers of the shoes. The shoes were purchased at a
for value) should not be adversely merchant’s store.
affected.
Q. B, in good faith, has purchase a diamond
Q. What did the buyer acquire after the seller ring from C, his friend. C gave B a bill of sale.
sold the thing to the former? Later on, A identified the ring as one she had
lost about a year ago. There is no question as
ANS. As a general rule, the buyer acquires only to the veracity of O’s claim. In the meantime,
the rights which would the seller have over the C has disappeared. What advice would you
thing sold to him. This rule is based on the give B in reference to O’s demand that the ring
principle “nemo dat quod non habet”. be returned to him?

Q. As a general rule, the buyer cannot acquire ANS. I would advise B to return the ring to O,
more rights than the seller. What are the and not expect to be reimbursed by O the
exceptions? amount he had paid C. The law says that one
who has lost any movable may recover it from
1) Owner is estopped from denying seller’s the person in possession of the same, without
authority to sell; such possessor being entitled to reimbursement,

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except if the acquisition in good faith had been 6. Risk of loss

at the public sale or auction, or at a merchant’s
store, fair, or market. Q. Who bears the lost or deterioration in a
contract of sale?
Q. Can a buyer acquire title from a theft, a ANS.
person who stole and then sold the goods to 1) Before perfection – SELLER (in accordance
him? with res perit domino)
2) At the time of perfection – contract is void
ANS. No, because the owner has been and inexistent, therefore SELLER (Art.
unlawfully deprived of the thing. Hence, the 1493, NCC)
true owner can get it back without 3) After perfection, before delivery –
reimbursement. a) BUYER, regardless whether or not
ownership has been transferred
Q. How about if the buyer acquired the stolen Note: When the sales is of fungible
automobile in good faith at a public auction? things sold for a price fixed in
Does he have a legal title over it? relation to weight, number, or
measure, the risk shall not be
ANS. No, under the law, even if he acquired it imputed to the vendee until they
at a public auction in good faith, he acquires have been weighed, counted, or
nothing over it. The true owner of the thing can measured, and delivered. (Art.
get it back however the buyer is entitled for 1480, par. 3, NCC)
reimbursement. b) SELLER, if ownership is yet to be
transferred; BUYER, if ownership
Q. What are the requisites for acquisition of has been transferred (Art. 1504,
good title by buyer? NCC)
Conflict between Art. 1480 and Art.
ANS. 1504. Art. 1480 is the general rule on
1) The seller’s voidable title is yet to be risk of loss and Art. 1504, the exception.
avoided; (De Leon)
2) Buyer buys in good faith and for value; 4) After delivery – BUYER
3) Buyer has no notice of the seller’s defect of
title. (Art. 1506, NCC) Q. Who bears the risk of loss of specific goods?
If the seller has NO title, then a buyer, even if he
purchases in good faith and for value, cannot ANS. The risk of loss of specific goods shall be
acquire a good title. (Dizon v Suntay Doctrine) borne by the seller.

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Q. Bea’s Hilux was sold on credit. Shortly after

Q. What are the remedies in case of loss of its delivery, it was destroyed by fortuitous
specific goods? event. Is the buyer still liable for the price?

ANS. The remedies are: ANS. Yes, because after its delivery to him, he
a) Cancellation (avoidance); or became the owner, and therefore it is who bears
b) Specific performance as to the remaining the loss.
existing goods (if the sale was divisible).
Q. Define accessions and accessories.
Q. A agreed to sell to B his cat. Before the
actual sale takes place, the cat dies without the ANS. Accessions are fruits of a thing; or
fault of A. Is A liable to B for the price? additions or improvements upon a thing such
as the young of an animals, house or trees on a
ANS. No, the destruction of the cat before land.
ownership having passed excuses performance. Accessories are anything attached to the
If the dog had died after ownership had passed, principal thing for its completion, ornament, or
the loss would be B’s even though there was no better use such as picture frame, key of a house.
delivery yet.
Q. What is the duty of the vendor in delivering
Q. A sold to B a cat for P200. It was agreed that the thing sold?
B will pay for and get the animal the next day.
Before B can pay the purchase price, the dog ANS. The vendor is bound to deliver the thing
dies through fortuitous event. Must B still pay sold in the condition in which they were upon
for the animal? the perfection of the contract including its
accessions and accessories. The vendor is,
ANS. Yes, since he was already the owner even therefore obliged to preserve the thing pending
if there was no delivery yet. There is no need for its delivery.
delivery to transfer ownership insofar as
specific goods are concerned if the contract is
one of sale, and not a contract to sell. Q. Who owns the fruit after the contract is
perfected?
Q. Who between the vendor and the vendee
must bear the risk of loss after the contract of ANS. All the fruits shall pertain to the vendee
sale has been perfected, but before the thing from the day on when the contract was
sold has been delivered? perfected, but it is evident that a contrary
ANS. If the object of a contract is lost before stipulation may be agreed upon, or a later date
delivery, it is the vendor who is still the owner may be set.
and must bear the loss and not the vendee. This ***The term fruits include natural, industrial, and
is in conformity with the principle of res perit civil fruits.
domini. The owner of the thing must bear the
risk of loss.

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Q. When is the vendee not entitled to the *if inferior value exceeds 1/10 of the price agreed
fruits? upon;
*regardless of extent of inferiority (inferior value), if
ANS. the buyer would not have bought the property had he
1) When the rule provided in Art. 1537(2) is known the inferiority.
modified by agreement of the parties, their
agreement shall govern. Q. Alvin buys from Dale a piece of land
2) If the vendee rescinds the contract of sale supposed to contain 1,000 square meters at the
instead of exacting the fulfillment thereof, rate of P10,000 a square meter, but the land has
he is entitled only to damages like interest, only 800 sq.m. Can Dale ask for rescission?
attorney’s fees & costs but he may not also
claim the fruits of the thing sold ANS. Yes, 200 sq.m. is 2/10 of 1,000. The
3) In a contract of promise to sell, the vendee additional 200 must be given to Dale should he
is not entitled to the fruits. demand them, otherwise Dale may pay only P 8
million (for 800 sq. m.) or rescind the contract.
Q. How is sale of real estate by unit made?

ANS. Sale of real property by unit shall be made

with the statement of its area, at the rate of Q. What is the right of the buyer if there is
certain price for a unit of measure or number, greater area or number of real property stated
the cause of the contract with respect to the in the contract?
vendee is the number of such units, and that the
entire area stated in contract must be delivered. ANS.
1) Accept the area included in the contract
Q. What are the rules if the delivery is less than and reject the rest;
what is stated? 2) Accept all at a contract price.
ANS.
1) Proportional reduction in the price Q. Sally buys from Garry a piece of land to
regardless of the extent of deficiency. contain 1,000 sq. m. at the rate of P1,000 a sq.
2) Rescission of contract. m. but the land really contains 1,599 sq. m.
*if deficiency is at least 1/10 of area stated What can Sally do?
*regardless of the extent of deficiency, if the buyer
would not have bought the property had he known ANS. Sally may accept 1,000 sq.m. and reject the
that the area was smaller. extra 500, in which case he will pay only P10
million. However, sally is allowed to accept all
Q. What are the rules if the delivery is of of the 1,500 sq. m., but he must pay P15 million.
inferior quality? Sally is in no case allowed to rescind the
contract, for such a remedy is not allowed of
ANS. him.
1) Proportional reduction in the price,
regardless of extent of inferiority.
2) Rescission of contract:

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Q. Give the rule when sale of real estate is ANS. No. The law presumes that the purchaser
made through lump sum (Cuerpo Cierto or Por had in mind a determinate piece of land and
Precio Alzado). that he ascertained its area and quality before
the contract was perfected. If he did not do so,
ANS. In the sale of real estate, made for a lump or if having done so, he made no objection and
sum and not at a rate of a certain sum for a unit consented to the transaction, he can blame no
measure or number, there shall be no increase one but himself.
or decrease in the agreed price whether actual
area is greater or lesser than that stated area.
Q. When shall action for sale of real estate by
Q. Enumerate the guidelines in a sale real unit or lump sum commence?
estate made for a lump sum.
ANS. In action of real estate by unit or lump-
ANS. The guidelines are: sum, action arising therefrom should be
a) What is mentioned are the boundaries, i.e, commenced within six (6) months from the day
the technical description of the property of delivery real or constructive.
which is indispensable requirement in the
sale of real property. Q. Give the rules as to preference of ownership
b) If area or number should likewise be in case double or multiple sale.
designated, all the areas designated within
the boundaries either actually greater in ANS. The rules are:
number of area stated should be delivered. 1) If the property is sold by the movable
c) If the area within boundaries is smaller (personal property), the ownership shall
than that stated, vendor should deliver be acquired by the vendee who first takes
only that included in the boundaries. possession in good faith.
2) If property sold is immovable (real
Q. For failure to deliver all area within the property), the ownership shall belong to:
boundaries even is said area is more than that a) The vendee who first registers the
stated, what is the remedy of the buyer? sale in good faith in the Registry of
Property (Registry of Deeds);
ANS. The remedies of the buyer are: b) In the absence of registration, the
1) Reduction in price proportionate to the vendee who first takes possession in
area not delivered; or good faith; and
2) Rescission of the contract. c) In the absence of both registration
and possession, the vendee who
Q. Jun buys a piece of land a cuerpo cierto. The presents the oldest title (who first
contract states certain number of square bought the property) in good faith
meters but the land included in the *** These applies also to double donation
boundaries happen to be Less. Is Jun entitled
to pay reduced price?

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Q. As with regards to the provision of Civil ANS. The applications of the mirror doctrine
Code what is meant by registration, are:
possession and title? 1) The mirror doctrine will apply where
ANS. person purchased a lot with knowledge of
a) Registration – refer to registration under facts and circumstances that should have
the Torrens System; requires the actual put him upon inquiry and investigation as
recording. If the property was never might be necessary to acquaint him with
registered as when the registrar forgot to the defects in the title of the owner.
do so although he has been handed the 2) A purchaser cannot close his eyes to facts
document, there is no registration. that should put reasonable man on his
b) Possession – either actual or constructive. guard and then claim that he acted in good
c) Title – means title because of the sale, and faith under the belief that there was no
not any other title or mode of acquiring defect in the title of the vendor.
property. 3) His mere refusal to believe that such defect
exists or the willful closing of eyes to the
Q. What is the basis of the right or priority of possibility of the existence of a defect in
the first buyer? the vendor’s title will not make him an
innocent purchaser for value if afterwards
ANS. The basis is that prius tempore, potior jure it develops that the title is in fact defective
or first in time, stronger in right. The rule can be and it appears that he has such notice of
invoked by the first buyer only. In order to the defects as would have led to its
preserve this right, he must register the deed of discovery had he acted with the measure
sale with the Registry of Property ahead of any of precaution which may reasonably be
registration in good faith by a second or required of a prudent man in like
subsequent buyer. situation.
4) Actual possession of land by person other
Q. Who is a buyer in good faith? than the vendor would have been enough
to arouse the suspicion as to the ownership
ANS. He is one who buys the property of of the land about the purchased.
another without notice that some other person 5) A buyer of a real property which is in
has a right or interest in such property and pays possession other than a seller must be
a full and fair price for the same at the time of wary and should investigate the rights of
such purchase or before he has notice of the those in possession. Without such inquiry,
claim or interest of some other person in the the buyer can hardly be regarded as in
property. good faith.
Good faith is innocence or lack of knowledge of 6) As a general rule, buyers can rely on the
the first sale until his contract ripens into full face of the title. This is, however,
ownership through registration. inapplicable especially when the property
is in possession of a person or persons
Q. Enumerate the application of mirror other than the vendor. In this case, the
doctrine on the law on double sale. mirror doctrine applies.

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Q. Is double sale applicable to unregistered Q. What does “quality of goods” include?

lands?
ANS. “Quality of goods” includes their state or
ANS. No. Since properties are of unregistered condition. (Art. 1636, NCC)
lands, subsequent buyer thereof bought the
properties at their peril. The object of double Q. What is meant by “specific goods”
sale must be registered so that the good faith can
be invoked. For this turns out that seller did not ANS. “Specific goods” means goods identified
own the property at the time of the sale. and agreed upon at the time a contract of sale is
One who buys from unregistered owner is not a made. (Art. 1636, NCC)
purchaser in good faith.
Q. What constitute value?
7. Documents of title
ANS. An antecedent or pre-existing claim,
Q. What does the “document of title to goods” whether for money or not, constitutes “value”
include? where goods or documents of title are taken
either in satisfaction thereof or as a security
ANS. Document of title to goods include any thereof. (Art. 1636, NCC)
bill of lading, dock warrant, quedan, or
warehouse receipt or order for the delivery of Q. When is a person insolvent?
goods or any other document used in the ANS. A person is insolvent if he has ceased to
ordinary course of business in the sale or pay his debts in the ordinary course of business
transfer of goods, as proof of the possession or or cannot pay his debts as they become due,
control of the goods, as authorizing or whether insolvency proceedings have been
purporting to authorize the possessor of the commenced or not. (Art. 1636, NCC)
document to transfer or receive either by
indorsement or by delivery, goods represented Q. When are goods in a “deliverable state”?
by such document. (Art. 1636, NCC)
ANS. Goods are in a “deliverable state” when
Q. What does the term “goods” include? they are in such a state that the buyer would,
under the contract, be bound to take delivery of
ANS. “Goods” includes all chattels personal but them. (Art. 1636, NCC)
not things in action or money of legal tender in
the Philippines. The term includes growing Q. What laws govern the registration of
fruits or crops. (Art. 1636, NCC) document or title pertaining to immovable
property?
Q. What is an “order”?
ANS. Immovable property is subject to the rule
ANS. “Order” relating to documents of title laid down by the Mortgage Law and the Land
means an order by indorsement on the Registration Law. (Art. 1637, NCC)
documents. (Art. 1636, NCC)

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Q. When is the holder of a negotiable broken by reason of the insolvency of the

instrument deemed an “unpaid seller”? buyer, what happens to the obligation of the
buyer to pay?
ANS. If the negotiable instrument has been
received as conditional payment, and the ANS. The obligation to pay is not extinguished
condition on which it was received has been because the seller becomes an unpaid seller
broken by reason of dishonor of the instrument, (Art. 1525, NCC).
the insolvency of the buyer, or otherwise, the
holder of such negotiable instrument shall be Q. If a negotiable instrument has been
deemed as an unpaid seller. received as conditional payment and the
condition on which it was received has been
Q. When is the agent of the seller to whom a broken by reason of the insolvency of the
bill of lading has been indorsed deemed an buyer, may the seller exercise the right of
“unpaid seller”? stoppage in transitu?

ANS. If the bill of lading has been received as ANS. The right of stoppage in transitu is
conditional payment and the condition on available to an unpaid seller if the buyer is
which it was received has been broken by insolvent and the seller has already parted with
reason of dishonor of the instrument, the the possession over the goods subject of the sale
insolvency of the buyer, or otherwise, the agent (Art. 1526, no. 2, NCC). In the given problem,
of the seller to whom a bill of lading has been the seller is deemed an unpaid seller under the
indorsed shall be deemed as an unpaid seller. provision of Art. 1525. Therefore, the remedies
under Art. 1526 are available to him.
Q. What is the reason why mere delivery of a
negotiable instrument does not extinguish the Q. If a negotiable document of title
obligation of the buyer to pay? representing the goods has been issued by the
carrier or other bailee, what is required for the
ANS. The obligation to pay is not extinguished unpaid seller to exercise his right of stoppage
because the seller may still be an unpaid seller in transitu and order the redelivery of the
if the negotiable instrument is dishonored. goods?

Q. What happens if a negotiable instrument ANS. Under the last sentence of Art. 1532, if a
that has been received as conditional payment negotiable document of title representing the
was subsequently dishonored? goods has been issued by the carrier or other
bailee, he shall not be obliged to deliver or
ANS. The obligation to pay is not extinguished justified in delivering the goods to the seller
because the seller becomes an unpaid seller unless such document is first surrendered for
(Art. 1525, NCC). cancellation.

Q. If a negotiable instrument has been Q. May the unpaid seller’s right of lien or
received as conditional payment and the stoppage in transitu still be exercised if a
condition on which it was received has been

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negotiable document of title has been issued subsequently dishonored. Is Brad deemed an
in favor of a purchaser for value in good faith? “unpaid seller” in this case?

ANS. No. If a negotiable document of title has ANS. Yes, Brad is an unpaid seller. If a
been issued for goods, no seller’s lien or right of negotiable instrument has been received as
stoppage in transitu shall defeat the right of any conditional payment, and the condition on
purchaser for value in good faith to whom such which it was received has been broken by
document has been negotiated, whether such reason of dishonor of the instrument, the
negotiation be prior or subsequent to the insolvency of the buyer, or otherwise, the holder
notification to the carrier or other bailee who of such negotiable instrument shall be deemed
issued such document, of the seller’s claim to a as an unpaid seller.
lien or right of stoppage in transit (Art. 1535,
par. 2, NCC). 8.Warranties

Q. If a negotiable document of title has been Q. What is condition as used in Art. 1545 of the
issued for goods and has been negotiated in Civil Code?
favor of a purchaser for value in good faith
subsequent to the notification to the bailee of ANS. Conditions means uncertain event or
the unpaid seller’s claim to a lien, which shall contingency on the happening of which the
prevail, the unpaid seller’s right of lien or the obligation of the contract depends.
purchaser’s right under the negotiable
document of title?

ANS. The right of the purchaser in good faith Q. What is the effect when the sale is subject
for value shall prevail over the unpaid seller’s to a condition?
right of lien. Under the second paragraph of Art.
1535, if a negotiable document of title has been ANS.
issued for goods, no seller’s lien or right of 1) If conditions are not fulfilled, the party
stoppage in transitu shall defeat the right of any may either:
purchaser for value in good faith to whom such a) Refuse to proceed with the contract; or
document has been negotiated, whether such b) Proceed with the contract, waiving the
negotiation be prior or subsequent to the performance of the condition
notification to the carrier or other bailee who 2) If the condition is in the nature of a
issued such document, of the seller’s claim to a promise that it should happen, the non-
lien or right of stoppage in transitu. fulfillment of such condition may be
treated by the other party as breach of
Q. On December 4, 2010, Angelina agreed to warranty. (Art. 1545, NCC)
buy the Toyota Innova (ABC 123) of Brad for
the price of Php 350,000.00. On the agreed date
for payment, Angelina issued a negotiable
instrument in favor of Brad as payment.
However, the negotiable instrument was

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Q. Distinguish condition from warranty. b) If the buyer is expected to have an opinion

and the seller has no special opinion, there
ANS. is no warranty.
Condition Warranty
Goes into the root Goes into the Q. Give the effect of expression of opinion.
of the existence of performance of ANS. Dealer’s talk like “excellent” cannot be
the obligation such obligation. considered as an express warranty. Sales talk
May constitute an like “little exaggerations allowed under by the
obligation itself. law as a concession to human nature. This is in
Must be May form part of accordance with the civil law maxim “simplex
stipulated by the the obligation by commendation non obligat” or the principle of
parties in order to provision of law caveat emptor (let the buyer beware).
form part of an without the
obligation parties having Q. What is implied warranty?
agreed thereto.
May attach itself Whether express ANS. Implied warranty is that which the law
either to the or implied relates derives from the nature of the transaction or the
obligation of the to the subject relative situation or circumstances of the
seller to deliver matter itself or to parties, irrespective of any intention of the seller
possession and the obligations of to create it.
transfer the seller with An implied warranty may be waived or modified by
ownership regard to the express stipulation & is deemed incorporated in the
subject matter of contract.
the sale
Q. When is there implied warranty in a
Q. What is express warranty? contract of sale?

ANS. Express warranty is any affirmation of ANS. In a contract of a sale, unless a contrary
facts or any promise by the seller relating to the intention appears, there is:
thing, the natural tendency of which is to induce 1) An implied warranty on the part of the
the buyer to purchase the thing, and the buyer seller that he has a right to sell the thing at
thus induced, thus purchased the same. (Art. the time when the ownership is to pass,
1546, NCC) It includes all warranties derived and that the buyer shall from that time
from the language of the contract, so long as the have and enjoy the legal and peaceful
language is express. possession of the thing;
2) An implied warranty that the thing shall be
Q. When is there a warranty? free from any hidden faults or defects, or
any charge or encumbrance not declared
ANS. The good tests on warranties are: or known to the buyer.
a) If the buyer is ignorant, there is warranty; However, a sheriff, auctioneer, mortgagee,
pledge, or other person professing to sell by
virtue of authority in fact or law, for the sale of

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a thing in which a third person has a legal or Q. What does the seller warrant in warranty
equitable interest shall not be held liable in against eviction?
accordance to this article. (Art. 1547, NCC)
ANS. Seller warrants:
Q. Give examples of implied warranty. 1) His right to sell at the time the ownership
is to pass;
ANS. 2) Buyer will have to enjoy legal and peaceful
1) Warranty that the seller has the right to sell possession of the thing.
2) Warranty against eviction.
3) Warranty against non-apparent servitude Q. Enumerate the essential elements of the
4) Warranty against hidden defects. warranty against eviction.
5) Warranty against redhibitory defects on
animals ANS. The essential elements are: NO FADS
6) Warranties for consumer goods 1) The vendee is deprived in whole or in part of
(Consumer Act of the Philippines) the thing purchased;
2) He is so deprived by virtue of a final
Q. When do actions based on implied judgment;
warranties prescribed? 3) The judgment is based on a right prior to the
sale or an act imputable to the vendor;
ANS. The actions based on implied warranties 4) The vendor was summoned in the suit for
prescribe in 10 years since these obligations are eviction at the instance to the vendee; and
imposed by law. 5) There is no waiver on the part of the vendee.

Q. When is implied warranty not applicable? Q. What must the seller give in case of
eviction?
ANS. It is not applicable in:
1) The sale where the phrase is “as is” and ANS. VICED :
“where is”. a) Value
2) Sale of second-hand articles. b) Income (or fruits)
3) Sale by virtue of authority in fact or law. c) Costs
d) Expenses; and
Warranty Against Eviction e) Damages (and interest and ornamental
expenses) if seller was in bad faith.

Q. Define eviction.
Q. If there is no agreement with regard to
warranty in case of eviction, what is the extent
ANS. Eviction is defined as the judicial process of the liability of the vendor?
whereby the vendee is deprived of the whole or
part of the thing purchased by virtue of a final ANS. When the warranty has been agreed upon
judgment based on a right based on a right prior
or nothing has been stipulated on this point, in
to the sale or an act imputable to the vendor.
case eviction occurs, the vendee shall have the
right to demand of the vendor:

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1) The return of the value which the thing Q. May a warranty against eviction be waived?
sold had at the time of the eviction be it
greater or less than the price of the sale; ANS. Yes. It could be:
2) The income or fruits, if he has been  Consciente where renunciation without
ordered to deliver them to the party who knowledge of the risk, seller pays only the
won the suit against him; value of the thing at the time of eviction.
3) The cost of the suit which caused the  Intencionada where renunciation with
eviction and, in a proper case, those of the knowledge.
suit brought against the vendor for the **If waiver is unclear, it is presumed to be consciente.
warranty; Intencionada must be proved.
4) The expenses of the contract, if the vendee **Waiver is void if seller acted in bad faith.
has paid them;
5) The damages and interests, ornamental Q. What are the effects of stipulation waiving
expenses, if the sale was made in bad faith liability for eviction?
(Art. 1555, NCC).
Should the vendee lose, by reason of the ANS. The effects are:
eviction, a part of the thing sold of such 1) If seller was in good faith – the exemption
importance, in relation to the whole that he is valid, but without prejudice to Art. 1554
would not have bought it without said part, he 2) If seller was in bad faith – the stipulation is
may demand the rescission of the contract; but VOID
with the obligation to return the thing without
other encumbrances that those which it had Q. Why is rescission not a remedy in case of
when he acquired it. He may exercise this right TOTAL eviction?
of action, instead of enforcing the vendor’s
liability for eviction. ANS. The remedy of rescission contemplates
The same rule shall be observed when two or that the one demanding is able to return
more things have been jointly sold for a lump whatever he has received under the contract;
sum, or for a separate price for each of them, if and when this cannot be done, rescission cannot
it should clearly appear that the vendee would be carried out. It is for this reason that the law
have purchased one without the other (Art. on sales does not make rescission a remedy in
1556, NCC). case the vendee is totally evicted from the thing
sold, for he can no longer restore the subject
Q. Is seller liable for violation of warranty matter of the sale to the vendor. Of course, in
against eviction in case of double sale? case of partial eviction, rescission may still be
allowed with respect to the subjected matter
ANS. Yes, the fact that he sold the same land that remains, as in the case contemplated in Art.
twice makes him responsible for his fraud or 1556.
bad faith in depriving any of the purchasers,
provided, however, that the deprivation be
upon final judgment by a court of competent
authority.

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Q. What is the remedy of the vendee in case of owner of the property sold under execution at
partial eviction? the instance of the judgment creditor is liable for
the eviction, unless otherwise decreed in the
ANS. The vendee’s remedy is either: judgment.
a) Rescission, or
b) Enforcement of warranty. Q. Neshia sells a parcel of land to Fe.
Subsequently, Fernando files an action for the
Q. Are there any other remedies to be attached recovery of possession claiming that he is the
with rescission? owner of the land. At the instance of Fe,
Neshia was summoned to defend his title. The
ANS. If he chooses rescission, there should be court renders final judgment declaring that
no new encumbrances, like a “mortgage.” Fernando has a better right. Fe is evicted. Is
(Andaya v Manansala, April 30, 1960). Neshia liable to Fe?

Q. What is the presumption in waivers? ANS. Yes, Neshia is liable to Fe for failure to
comply with his warranty against eviction.
ANS. The presumption that the waiver was only Here, the judgment is based on a right of third
in consciente. The waiver intencionada must be person prior to the sale.
clearly proved.
Q. Give the effect of prescription.
Q. In waiver consciente, what value should be
returned? ANS. By prescription, one acquires ownership
and the other real rights through the lapse of
ANS. The value at the time of eviction should be time in the manner and under the conditions
returned. This is a case of solution indebiti or prescribed by law. In the same way, rights and
“undue payment.” actions are lost by prescription.

Q. In waiver intencionada, what value should Q. What can the vendee enforce in case of
be returned? prescription if completed before sale?

ANS. Nothing need be returned. This is ANS. The vendee may lose the thing purchased
aleatory in nature, and buyer assumes the to a third person who has acquired title thereto
consequences. This is so even if there is a by prescription. When prescription has
stipulation that the warranty against eviction commenced to run against the vendor and was
exist, provided that said stipulation is completed before the sale, the vendee can
understood by the parties mere pro forma. enforce the warranty against eviction. In this
case, the deprivation is based on a right prior to
Q. Is government liable for the eviction of the the sale and an act imputable to the vendor.
purchaser at a tax sale?

ANS. No. government is not liable for the

eviction of the purchaser at a tax sale but still the

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Q. What can the vendee enforce in case of

prescription if completed after sale? Warranty Against Hidden Defects

ANS. Even if prescription has started before the

Q. What does the seller warrant in warranty
sale but has reached the limit prescribed by law
against hidden defects?
after the sale, the vendor is not liable for
eviction. The reason is because the vendee could
ANS.
easily interrupt the running of the prescriptive
1) Free from any hidden faults or defects;
period by bringing the necessary action.
2) Free from any charge or encumbrance not
declared or known to the buyer.
Q. Is the vendor liable for eviction when the
property is sold for non-payment of taxes due
Q. What are the requisites for reasonable in
and not made known to the vendee?
hidden defects? (redhibitory defects)
ANS. Yes. If the property is sold for non-
ANS. The requisites are:
payment of taxes due and not made known to
1) The defects must be hidden (not known
the vendee before the sale the vendor is liable
and could not have been known)
for eviction.
2) The defect must exist at the time the sale
was made;
Q. A sells a land to B, the taxes of the land was
3) The defect must ordinarily have been
not paid. The land was sold at a public auction
excluded from the contract;
for non-payment of taxes. B is evicted. Is A
4) The defect must be important;
liable?
5) The action must be instituted within the
prescribed time – i.e., six months from the
ANS. Yes. A is responsible to B, provided,
delivery of the thing sold or within 40 days
however, that at the time of the sale, the non-
form the date of delivery in case of
payment of taxes was not known to B, the
animals; and
vendee.
6) There must be no waiver of warranty on
the part of the vendee.
Q. In case of failure of title, what is the remedy
of the purchase in good faith?
Q. What is redhibition?
ANS. It has been held universally that in case of
ANS. Redhibition is the avoidance of a sale on
failure of title, a purchaser in good faith at a
account of some vice or defect in the thing sold,
judicial sale is entitled to recover the purchase
which renders its use impossible, or so
one from the officer if the funds are still in his
inconvenient and imperfect that it must be
hands or from the judgment debtor (Banzon &
supposed that the buyer would not have
Standard Oil Co, v Osorio, 27 Phil 142).
purchased it had he known of the vice.

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5) The action must be instituted within the

Q. What is a redhibitory vice or defect? prescribed time – i.e., six months from the
delivery of the thing sold or within 40 days
ANS. Redhibitory Vice or Defect is a defect in form the date of delivery in case of
the article sold against which defect the seller is animals, and
bound to warrant. 6) There must be no waiver of warranty on
 Defect must constitute an imperfection, of the part of the vendee.
certain importance;
 A minor defect does NOT give rise to Q. What are the requisites of the warranty
redhibition; against hidden encumbrances?
 Mere absence of a certain quality in the
thing sold which the vendee thought it to ANS. The requisites for this warranty are:
contain is NOT necessarily a redhibitory 1) The encumbrance must be so important;
defect. 2) The encumbrance is not registered;
3) The vendee has no knowledge of such
Q. What is the nature of the defect to be encumbrance; and
redhibitory? 4) Action brought within the reglementary
period – one year from the execution of the
ANS. To be redhibitory, it is not sufficient if the deed of sale. (Art. 1561, NCC)
defect was not discovered by an expert. What is
required is that the defect would not have been Q. When is defect deemed to be important?
discovered even with the aid of an expert.
However, if the expert through ignorance failed ANS. The defect is important when:
to discover it, or through bad faith, failed to 1) It renders the thing sold unfit for the use
reveal the same to the vendee, he shall be held for which it is intended;
liable for damages. 2) If it diminishes or decreases its fitness to
such an extent that the vendee would not
have acquired it had he been aware or
Q. What are the requisites to recover because would have given a lower price for it.
of hidden defects?
Q. What is the meaning of “unfit for the use
ANS. The requisites are: intended”?
1) The defects must be hidden (not known
and could not have been known) ANS. The use must have been stated in the
2) The defect must exist at the time the sale contract itself or can be inferred from the nature
was made; of the object or from the trade or occupation of
3) The defect must ordinarily have been the buyer.
excluded from the contract;
4) The defect must be important (renders
thing UNFIT or considerably decreases
FTINESS);

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Q. In what cases where the vendor may not be last installment ot be paid within one year
held liable for the defects of the thing sold? from the date of issuance of the Original
Certificate of Title over the property which
ANS. When the defects are so patent or those Raymundo obligated himself to secure. After
which may be visible or for those which are not the OCT was issued, the TCT was issued in the
visible if the vendee is an expert who by reason name if IDI. IDI later sold the land to Agencia
of his trade or profession, he should have for P456,000. As a result, the TCT was issued
known them (Art. 1561, NCC). in the name of Agencia. The land was later
transferred to Aguirre. In the meantime, the
Q. A lease purchase agreement was entered tenant on the property was forced to stop
into between Filinvest and Philrock over a rick cultivating the land because of the buildozing
crushing machine. It was agreed that after caused by the present owner. The tenant sued
payment of the price, Philrock would become IDI and Aguirre for disturbance
the owner of the same. After testing the compensation. IDI in turn filed a cross-claim
machine, Philrock complained that it could against Raymundo in case of a judgment
process only 5 tons of rock a day instead of the adverse to it. Agencia and Aguirre filed a
agreed 10 to 20 tons a day, hence it demanded cross-claim against IDI. The trial court
that Filinvest should make good of the same. rendered judgment in favor of the tenant and
Philrock went to court seeking for rescission ordered Aguirre to pay the tenant disturbance
of the lease, damages and injunction. Filinvest compensation in the amount of P24,000. It also
contented that it is not liable for warranty. ordered IDI to pay Aguirre P24,000 as
Decide. damages. Hence this appeal. If you were the
ponente, how would you decide? Why?
ANS. Filinvest is not liable. Philrock inspected
and tested the machine, and it is more ANS. I would decide against the petitioner. The
knowledgeable, if not, and expert on the object SC had the occasion to hold that “hidden faults
of the contract; hence, Philrock cannot hold or defects” pertain only to those that make the
Filinvest liable for damages. It is true that in object of sale until for use for which it was
Art. 1561, vendor shall be responsible for intended at the time of the sale. If the object of
warranty against hidden defects which the the sale is an agricultural land, the existing
thing sold may have should they render the tenancy relationship with respect to the land
thing unfit for the use it is intended or diminish cannot be a “hidden fault or defect”. It is not a
its fitness for such use, yet the law likewise lien or encumbrance that the vendor’s warrant
states that the vendor shall not be answerable did not exist at the time of the sale. It is a
for patent defects or those which are visible or relationship which any buyer of agricultural
for those which are not visible if the vendee is land would reasonable expect to be present and
an expert who, by reason of his trade or which it is its duty to specifically look into and
profession, should have known them. (Art provide for.
.1561, NCC).

Q. Raymundo sold a parcel of land to IDI for

P122,769.00 payable in three installments, the

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Q. If a person sells a second-hand motor Q. What is the effect of sale under patent name
vehicle, is he liable for damages in case there or trade name?
are defects or it is unfit for the purpose
intended? Is there any exception? Explain. ANS. There is generally NO warranty as to the
article’s fitness for any particular purpose.’
ANS. Generally, in the sale of a designated and
specific article sold as second hand, there is no Q. What is the significance of the usage of
implied warranty as to its quality or fitness for trade?
the purpose intended, at least where it is subject
to inspection at the time of the sale. On the other ANS. The parties are presumed to be
hand, there is also authority that in sale of acquainted with the usages of trade.
articles, there may be, under some
circumstances, an implied warranty of fitness Q. In the case of a contract of sale by sample,
for the ordinary purpose of the article sold for is there an implied warranty that the goods
the particular purpose of the buyer. shall be free from any hidden defect rendering
them unmerchantable which would not be
There is no implied warranty as to the apparent or reasonable examination of the
condition, adaption, fitness, or suitability for the sample?
purpose for which a thing was made or the
quality of an article sold as and for a second- ANS. Yes, if the seller is a dealer in goods sold
hand article. by sample. (Art. 1565, NCC)

The exception to the rule is found in Art. 1562 Q. Why is the seller responsible for hidden
which provides that in sale of goods, there is an defects even if he is in good faith?
implied warranty or condition as to the quality
or fitness of the goods as follows: where the ANS. Because he has to repair the damage done.
buyer, expressly or by implication, makes The object of the law is reparation, not
known to the seller the particular purpose for punishment. Thus, for example, the seller of an
which the goods are acquired, and it appears unworthy vessel is liable for hidden defects
that the buyer relies on the seller’s skill or even if he did not know of them.
judgment (whether he be a/the grower or
manufacturer or not), there is an implied Q. Seller and buyer agreed that seller would
warranty that the goods shall be reasonably fit be exempted from hidden defects. But seller
for such purpose. knew of hidden defects. Would seller be
liable?
Q. What is the meaning of merchantible ANS. Yes, because of his bad faith. To hold
quality? otherwise would be to legalize fraud.

ANS. For general purpose of a thing, and not

necessarily the particular purpose for which it
has been acquired.

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Q. Define “accion redhibitoria” and “accion Generally, the period of prescription is six
quantu minoris” months (Art. 1571, NCC). However, in
redhibitory actions based on the faults or
ANS. “Accion redhibitoria” is an action instituted defects of animals, the period is forty days (Art.
by the vendee against the vendor to avoid a sale 1577, NCC). Whether six months or forty days,
on account of some vice or defect in the thing the period must be counted from the date of
sold which renders it unfit for the use intended delivery to the vendee.
or which will diminish its fitness for such use to
such an extent that, had the vendee been aware Q. What is the effect of loss of thing on account
thereof, he would hot have acquired it. “Accion of hidden defects when the vendor was aware
quantu minoris”, on the other hand, is an action of such hidden defects?
to procure him return of a part of the purchase
price paid by the vendee to the vendor by ANS. The vendor shall bear the loss and the
reason of such defect. (Arts. 1561, 1562, 1564, vendee hall have the right to recover the price
1565, 1567, NCC) paid, expenses of the contract, with damages.

Q. What are the remedies in case of hidden Q. What is the effect of loss of thing on account
defects? of hidden defects when the vendor was not
aware of such hidden defects?
ANS. The remedies are:
a) Withdrawal or rescission (accion ANS. The vendor shall be obliged to return the
redibitoria) plus damages; price paid, interest thereon and expenses of the
b) Proportionate reduction (accion quanti contract if paid by the vendee.
minors o estimatoria) – reduction in the
price, plus damages. Q. If the thing with hidden defect was lost
through fortuitous event or through the fault
Q. Is this warranty applicable in lease? of the vendee, what right, and to what extent,
if any, has the vendee against the vendor?
ANS. Yes, this warranty in sales is applicable to
lease. (Yap v. Tiaoqui) ANS. The vendee may demand of the vendor
the price which he paid, less the value which the
Q. If there is a breach by the vendor of the thing had when it was lost. If the vendor acted
implied warranty against hidden defects of or in bad faith, he shall pay damages to the vendee.
encumbrances upon the thing sold, what are
the remedies of the vendee? What is the Q. What is the effect if the thing with hidden
period of prescription for such remedies? defect was lost due to fortuitous event or fault
of the vendee and the vendor has no
ANS. The vendee may elect between knowledge of such hidden defect?
withdrawing from the contract (accion
redhibitoria) and demanding a proportionate ANS. The vendor is liable to return the
reduction of the price (accion quantu minoris), difference between the price paid and the value
with damages in either case (Art. 1567, NCC). of the thing when it was lost. Such that, if the

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price is P10,000 and at the time of the loss of the Q. What is the effect of sale of two or more
thing sold as only P8,000, the vendee may still animals when one of the animals has
recover from the vendor P2,000. redhibitory defect?

Q. Antonio sold a car for P200,000 to ANS. In sale of animals, the redhibitory defect
Bartolome. Unknown to Bartolome, the car of one animal shall give rise only to its
then had a break defect, the replacement of redhibition and this will not apply to the other
which would cost P15,000. Despite his sound animal, unless the buyer could prove that
knowledge of this defect, Antonio obtained a he would not have purchased the sound animal
waiver from Bartolome of the latter’s right or animals without the defective one. This proof
under the warranty against hidden defects. is unnecessary when animals are bought as
Subsequently, the car was wrecked due to the team, yoke, pair or set, even if a separate has
recklessness of Bartolome who only then been fixed for each one of them. (Art. 1572,
discovered the defects. What right, and to what NCC)
extent, if any, has Bartolome against Antonio?
ANS. Bartolome can recover approximately Q. B bought from S two carabaos for P50,000 to
P15,000, which may represent the difference be used for breeding purposes. The male
between the purchase price and the true value. carabao in infected with mouth and foot
The waiver is void because Antonio knew of the disease (not contagious), while the female
defect. carabao is in sound state. What right, and to
what extent, if any, has B against A?
Q. Are the provisions under Arts. 1561 to 1569
of the NCC applicable also to judicial sales? ANS. The right of B is to ask for the rescission of
the contract because the two carabaos are
ANS. Yes, under Art. 1570 of the Civil Code, the bought in “set” for breeding purposes.
provisions under articles 1561 to 1569 shall be However, if these carabaos will not be used for
applicable to judicial sales, except that the breeding purposes, the only right of B is to ask
judgment debtor shall not be liable for damages. for rescission or reduction in the price
pertaining to the male carabao, or unless it is
Q. What are the actions that shall be barred shown that he would not have bought the
after six months from the delivery of the thing sound animal without the other.
sold?
Q. What are the instances when there is no
ANS. The following are the actions that shall be warranty against hidden defects of animals
barred after six months from the delivery of the sold?
thing sold:
1) breach of warranty against hidden defects ANS. The following are the instances when
2) rescission of contract because of hidden there is no warranty against hidden defects of
defects animals sold:
3) proportionate reduction in the price 1) Animals sold at fairs
because of hidden defects 2) Animals sold at public auctions

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3) Livestock sold as condemned, declared Q. What is the prescriptive period for

known to the buyer (Art. 1573, NCC) redhibitory action based on faults or defects of
animals?
Q. What are the two kinds of void sales with
respect to animals? ANS. The prescriptive period for redhibitory
action based on faults or defects of animals is
ANS. The two kinds of void sales with respect forty (40) days from the date of their delivery to
to animals are the following: the vendee.
1) Sale of animals suffering from contagious
disease Q. When can redhibitory action be exercised?
2) Sale of animals which are found to be unfit
for the use or service stated in the contract ANS. Redhibitory action can only be exercised
for which they are acquired. (Art. 1575, with respect to faults and defects which are
NCC) determined by law or by local customs.

Q. B manifested to S that he is buying a male Q. What are the requisites to concur before the
carabao for breeding purposes. S offered to B vendor is liable in sale of animals?
his carabao for P20,000, a “tested bore” for
breeding. However, it turns out that the ANS. The following are the requisites to concur
carabao is castrated. What is the effect of such before the vendor is liable in sale of animals:
sale? 1) Existence of the disease at the time of sale.
2) That disease must have been the cause of
ANS. The sale is void because the carabao will death.
be unfit for breeding purposes. Under Art. 1575 3) Death of the animal should take place
of the Civil Code, a contract of sale of animals within three days after purchase.
shall also be void if the use or service for which
they are acquired has been stated in the Q. Is the vendor liable if the animal should die
contract, and they are found to be unfit therefor. after its purchase?

Q. B bought from S a male carabao for P20,000 ANS. The vendor shall be liable only if the
to be used for breeding purposes. The service animal should die within three days after its
of a veterinarian was engaged to check if the purchase and the disease which causes the
carabao was in good condition for breeding death of the animal existed at the time of the
purposes. Unfortunately, the carabao has a contract.
redhibitory defect. What is the liability, if any,
of the veterinarian? Q. What is the effect if the sale of the animal is
rescinded?
ANS. The veterinarian shall be liable for
damages if through ignorance or bad faith has ANS. If the sale be rescinded, the animal shall
failed to discover or disclose the defect to the be returned in the condition in which it was sold
vendee. and delivered, the vendee being answerable for

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any injury due to his negligence, and not arising obligations.

from the redhibitory fault or defect.
Q. What are the remedies of buyer if the seller
Q. What are the remedies of buyer of animals fails to deliver?
with redhibitory defects?
ANS.
ANS. The following are the remedies of buyer a) Specific performance
of animals with redhibitory defects: b) Rescission, with damages
a) withdrawal or rescission (plus damages)
b) proportionate reduction in price (plus Q. When is the actions for the price or specific
damages) performance available to the seller in case of
breach of contract of sale of goods?
Q. What shall govern the form of sale of large
cattle? ANS.
a) when the ownership of the goods has
ANS. The form of sale of large cattle shall be passed to the buyer and he wrongfully
governed by special laws. neglects or refuses to pay for the goods
according to the terms of the contract;
9. Breach of contract b) when price is payable on certain day,
irrespective of delivery or transfer of title,
Q. When does the seller have a right of action and the buyer wrongfully neglects or;
for damages? refuses to pay [BUT it is a defense to such
action that seller has manifested an
ANS. inability or lack of interest to perform his
1) If the buyer without lawful cause neglects obligation before judgment]
or refuses to accept & pay for the goods he c) if goods cannot readily be resold for a
agreed to buy; reasonable price, although transfer of
2) In executory contract, ownership in the ownership has not passed– seller may
goods yet to pass and seller cannot offer to deliver the goods to the buyer; if
maintain an action to recover price; buyer refuses to receive, seller may notify
Goods are not yet identified at the time of the the buyer that he holds the goods as bailee
contract or subsequently. for the buyer. Thereafter, the seller may
treat the goods as buyer’s and may
Q. What actions are available to the seller of maintain an action for the price.
the goods?
Q. What is the measure of damages for non-
ANS. His remedies are: acceptance against the buyer when he
1) Maintain an action for damages. wrongfully neglects or refuses to accept and
2) Hold the goods as bailee for the buyer and pay for the goods?
bring an action for the price.
3) Ask for the resolution of the contract for ANS.
failure of the buyer to fulfill his a) The measure of damages is the estimated

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loss directly and naturally resulting in the

ordinary course of events from the buyer's Q. How does technical rescission take place?
breach of contract.
b) Where there is an available market for the ANS. Technical rescission takes place when the
goods in question, the measure of seller may totally rescind by giving notice of his
damages is, in the absence of special election to do so to the buyer provided there is
circumstances showing proximate no delivery of goods yet. (Art. 1597, NCC)
damage of a different amount, the
difference between the contract price and Q. What is the remedy of the buyer in case the
the market or current price at the time or seller has broken a contract to deliver a
times when the goods ought to have been specific or ascertained goods?
accepted, or, if no time was fixed for
acceptance, then at the time of the refusal ANS. Where the seller has broken a contract to
to accept. (Art. 1596, NCC) deliver specific or ascertained goods, a court
may, on the application of the buyer, direct that
Q. When may a seller rescind in case of breach the contract shall be performed specifically,
of contract of sale of goods? without giving the seller the option of retaining
the goods on payment of damages. The
ANS. When there is no delivery of goods yet the judgment or decree may be unconditional, or
seller may totally rescind by giving notice of his upon such terms and conditions as to damages,
election to do so to the buyer if: payment of the price and otherwise, as the court
a) Buyer has repudiated the contract of sale; may deem just. (Art. 1598 NCC)
b) Buyer has manifested his inability to
perform obligations; or Q. What is the remedy of the buyer when there
c) Buyer committed a breach (Art. 1597, is a breach of warranty by the seller?
NCC)
ANS. Where there is a breach of warranty by the
Q. Is there such a thing as an automatic seller, the buyer may, at his election:
rescission? 1) Accept or keep the goods and set up
against the seller, the breach of warranty
ANS. Yes, but such rescission requires notice by way of recoupment in diminution or
thereof to the buyer. extinction of the price;
2) Accept or keep the goods and maintain an
Q. What are the instances when seller may action against the seller for damages for
totally rescind the contract of sale? the breach of warranty;
3) Refuse to accept the goods, and maintain
ANS. The buyer may totally rescind the contract an action against the seller for damages for
where the goods have not been delivered to the the breach of warranty;
buyer, and the buyer has repudiated the 4) Rescind the contract of sale and refuse to
contract of sale, or has manifested his inability receive the goods or if the goods have
to perform his obligations thereunder, or has already been received, return them or offer
committed a breach thereof. to return them to the seller and recover the

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price or any part thereof which has been immediately after an offer to return the goods in
paid. (Art. 1599, NCC) exchange for repayment of the price. (Art. 1599,
NCC)
Q. Can the buyer exercise all the remedies
granted to him under Art. 1599? Q. What is the remedy of the buyer in case he
is entitled to rescind the sale and elects to do
ANS. No, under Art.1599, the law provides but the seller refuses to accept an offer of the
when the buyer has claimed and been granted a buyer to return the goods?
remedy in anyone of those enumerated, no
other remedy can thereafter be granted, without ANS. Where the buyer is entitled to rescind the
prejudice to the provisions of the second sale and elects to do so, if the seller refuses to
paragraph of Art. 1191. accept an offer of the buyer to return the goods,
the buyer shall thereafter be deemed to hold the
Q. Can the buyer rescind the sale if the goods goods as bailee for the seller, but subject to a lien
have been delivered? to secure payment of any portion of the price
which has been paid, and with the remedies for
ANS. Where the goods have been delivered to the enforcement of such lien allowed to an
the buyer, he cannot rescind the sale if he knew unpaid seller by Article 1526. (Art. 1599, NCC)
of the breach of warranty when he accepted the
goods without protest, or if he fails to notify the Q. How can you determine loss in case of
seller within a reasonable time of the election to breach of warranty of quality in the absence of
rescind, or if he fails to return or to offer to special circumstances showing proximate
return the goods to the seller in substantially as damage of greater amount?
good condition as they were in at the time the
ownership was transferred to the buyer. But if ANS. In the case of breach of warranty of
deterioration or injury of the goods is due to the quality, such loss, in the absence of special
breach or warranty, such deterioration or injury circumstances showing proximate damage of a
shall not prevent the buyer from returning or greater amount, is the difference between the
offering to return the goods to the seller and value of the goods at the time of delivery to the
rescinding the sale. (Art. 1599, NCC) buyer and the value they would have had if they
had answered to the warranty. (Art. 1599, NCC)
Q. When the buyer is entitled to rescind the
sales and elects to do so, is he still liable for the Q. Briefly discuss Recto Law.
price of the thing delivered?
ANS. The Installment Sales Law or more
ANS. Where the buyer is entitled to rescind the commonly known as the Recto Law is
sale and elects to do so, he shall cease to be liable embodied in Art. 1484 of the NCC, which
for the price upon returning or offering to return provides for the remedies of a seller in the
the goods. If the price or any part thereof has contracts of sale of personal property by
already been paid, the seller shall be liable to installments. It is not applicable to straight-term
repay so much thereof as has been paid, sales where the price is payable in full, after
concurrently with the return of the goods, or making a down payment. It is also applied to

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contracts purporting to be leases of personal ANS. The remedies are alternative and not to be
property with option to buy, when the lessor exercised cumulatively or successively and the
has deprived the lessee of the possession or election of one is waiver of the right to resort to
enjoyment of the thing (PCI Leasing and the others.
Finance Inc. v. Giraffe- X Creative Imaging, Inc.,
G.R. No. 142618, July 12, 2007). Q. When the vendor had chosen exact
fulfillment of the obligation, could he still
Q. What are the requisites of Recto Law? recover from the purchaser unpaid balance of
the price?
ANS.
1) Valid contract of sale; ANS. Yes. The vendor’s right is not limited to
2) Subject matter is personal property; the proceeds of the sale, on execution of the
3) Payable in installments; and mortgage goods.
4) In the case of the second and third remedies,
that there has been a failure to pay two or He may still recover from the purchaser the
more installments (Art. 1484, NCC). unpaid balance of the price, if any or the real
and personal properties of the purchase not
Q. Enumerate the remedies of vendor in sale exempt by law, from attachment or execution.
of personal property payable in installment.
Q. What is the remedy of the vendor who
ANS. The vendor of personal property payable chooses cancellation of the contract for the
in installments may exercise any of the vendee’s failure to pay two or more
following remedies: installments?
1) Exact fulfillment upon the vendee’s failure
to pay; ANS. The remedy of the vendor who chooses
2) Cancel the sale, if the vendee shall have cancellation of the contract for the vendee’s
failed to pay two or more installment; or failure to pay two or more installments is to
3) Foreclose the chattel mortgage if one has demand the return of payments already made
been constituted if the vendee shall have unless there is stipulation to the contrary.
failed to pay two or more installments.
(Art. 1484, NCC) Q. Can vendor who chooses foreclosure of
chattel mortgage recover unpaid balances?
Q. What is the purpose of the enumeration of
the remedies in Art. 1484 of the NCC? ANS. No, if the vendor has chosen the remedy
of foreclosure of chattel mortgage, he shall have
ANS. The purpose is to prevent abuse of the no further action against the vendee for the
foreclosure of chattel mortgage by selling at low recovery of the unpaid balance of the price and
price and then suing for deficiency. any agreement to the contrary is void.

Q. What is the nature of the remedies in Art.

1484 of the NCC?

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Q. How is foreclosure effected?

Q. When does the period of redemption
ANS. Foreclosure is effected by selling the commence?
mortgaged personal property at public auction
and applying the proceeds of the sale to the ANS. The period of redemption commences to
satisfaction of the claim secured by the run not from the date of the auction or tax sale
mortgage. but from the day the sale was registered in the
office of the Register of Deed, so that the
Q. Give instances that the remedies in Art. delinquent registered owner or third parties
1484 cannot be applied. interested in the redemption may know that the
delinquent property has been sold.
ANS. Remedies are not applied in:
1) Real estate mortgage; Q. A sold his piano to B, who immediately
2) Sale of personal property on straight terms paid the price. Because the piano was at the
or cash basis. repair shop at the time the contract was
perfected, no delivery was made. Before
Q. Del bought a particular automobile on delivery could be made, C, a creditor of A, who
installment plan. Del defaulted in the has filed a suit against him, attached the piano.
payment of one of the installments. Has the What right has B over the piano?
seller, Sal, the right to exact fulfillment of the
obligation to pay? ANS. The piano not having been delivered to
him by A, B has only a personal right to demand
ANS. Yes, specific performance does not require its delivery – for it is generally only delivery that
default in two or more installments, unlike transfers the real right of ownership.
cancellation and foreclosure of chattel
mortgage. Q. In the preceding problem, may B oppose
the attachment levied by C?
Q. B bought a particular laptop but defaulted
in the payment of two installments. May the ANS. Not having any right or ownership over
seller ask for the cancellation of the sale? the piano, B may not legally oppose the
attachment levied thereon by C.
ANS. Yes, because two installments are already
in default. Q. When is the seller deemed to be an “unpaid
seller”?
Q. What is the remedy of the judgment debtor
if the buyer takes actual possession of the ANS. The seller is deemed to be an unpaid seller
property within the redemption period? in the following instances:
ANS. The judgment debtor would be entitled to 1) when the whole price has not been paid or
get damages as well as possession of the tendered; and
property, unless the period of redemption has 2) when a bill of exchange or other negotiable
already expired, in which case he can only get instrument has been received as
damages. conditional payment, and the condition on

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which it was received has been broken by Q. What are the rights of an unpaid seller if
reason of dishonor of the instrument, the ownership has already passed to the buyer?
insolvency of the buyer, or otherwise. (Art.
1525, par 1, NCC). ANS. Notwithstanding that the ownership in
the goods may have passed to the buyer, the
NOTE: In Art. 1525-1535, the term “seller” unpaid seller of goods, as such, has the
includes: following remedies:
1) Agent of the seller; 1) possessory lien in the nature of a pledge;
2) Consignor or agent who has himself paid 2) right of stoppage in transitu if the seller has
or is directly responsible for the price; or parted with the possession;
3) Any Other person in the position of the 3) right or resale; and 4) right to rescind the
seller. sale (Art. 1526, NCC)

Q. On December 4, 2010, Angelina agreed to Q. What are the remedies of an unpaid seller if
buy the Toyota Innova (ABC 123) of Brad for ownership has not yet passed to the buyer?
the price of Php 350,000.00. On the agreed date
for payment, Angelina only paid Php ANS. Where the ownership in the goods has not
250,000.00. Is Brad deemed an “unpaid seller” passed to the buyer, the unpaid seller has, in
in this case? addition to his other remedies, a right of
withholding delivery similar to and co-existent
ANS. Yes, Brad is still an unpaid seller. Art. 1525 with his rights of lien and stoppage in transitu
provides that a seller who has not been paid the where the ownership has passed to the buyer
whole price is deemed an unpaid seller. (Art. 1526, last par. , NCC).
Therefore, unless Brad receives the balance of
the purchase price, he is deemed an unpaid Q. When is the right of possessory lien
seller. available to an unpaid seller?

Q. What are the remedies of an unpaid seller? ANS. The right of possessory lien is available to
the unpaid seller when the ownership has
ANS: SAR SPASMS already passed to the buyer but the seller still
1) Possessory lien (Art. 1527-1529) has possession over the goods.
2) Stoppage of goods in transitu (Art. 1530)
3) Special right of resale (Art. 1533) Q. What is the effect to the possessory lien if
4) Special right of rescission (Art. 1534) the unpaid seller losses possession of the
5) Action for the price (Art. 1595) goods?
6) Action for damages (Art. 1596)
7) Recto Law (Art. 1484) ANS. The possessory lien is lost after the seller
8) Maceda Law (Governs financing of real estate loses possession of the goods but his lien (no
on installment payment) longer possessory) as an unpaid seller remains;
9) Specific performance (Art. 1595) hence he is still a preferred creditor with respect
to the price if the specific goods sold (Art. 2241,
no. 3, NCC).

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ANS. The unpaid seller of goods who is in

Q. When is the right of stoppage in transitu possession of them is entitled to retain
available to an unpaid seller? possession of them until payment or tender of
the price in the following cases:
ANS. The right of stoppage in transitu is 1) where the goods have been sold without
available to an unpaid seller if the buyer is any stipulation as to credit;
insolvent and the seller has already parted with 2) where the goods have been sold on credit,
the possession over the goods subject of the sale but the term of credit has expired; and
(Art. 1526, no. 2, NCC) 3) where the buyer becomes insolvent (Art.
1527, par. 1, NCC).
Q. On December 4, 2010, Angelina agreed to
buy the Toyota Innova (ABC 123) of Brad for Q. Angelina sold Brad a specific diamond ring
the price of Php 350,000.00. On the agreed date to be paid 6 months later. By mutual
for payment, Angelina only paid Php agreement, Brad is made already the owner,
250,000.00. Can Brad withhold delivery of the but Angelina will act as the depositary of the
vehicle? ring in the meantime. If the term expires, and
Brad has not yet paid, may Angelina still
ANS. Yes, Brad is an unpaid seller in this case. continue possessing the ring even if she is no
Under the second paragraph of Art. 1526, an longer the owner?
unpaid seller has the right of withholding the
delivery of the goods subject of the sale. ANS. Yes, for she has not been paid. Her no
longer being the owner is not important, for the
Q. On December 4, 2010, Angelina agreed to law says: “The seller may exercise his right or
buy the Toyota Innova (ABC 123) of Brad for retention notwithstanding that he is in
the price of Php 350,000. On the agreed date for possession of the goods as agent or bailee for the
payment, Angelina only paid Php 250,000. buyer” (Art. 1527, par 2, NCC).
Claiming the right of possessory lien available
to an unpaid seller, Brad refuses to deliver the Q. Can the possessory lien of an unpaid seller
vehicle and retains it while he is in possession be exercised if there has already been partial
of said car. Is Brad correct? delivery of the goods?

ANS. Yes, Brad is correct. Under Article 1525, he ANS. Yes. Where an unpaid seller has made
is still an unpaid seller. Article 1526 provides part delivery of the goods, he may exercise his
that the right of possessory lien is available to right on the remainder, unless such part
the unpaid seller when the ownership has delivery has been made under such
already passed to the buyer but the seller still circumstances as to show an intent to waive the
has possession over the thing sold. lien or right of retention (Art. 1528, NCC).

Q. When is the right to retain the goods Q. Angelina bought 10 bottles of perfume
available to the unpaid seller? from Brad, only 7 of which arrived. Since
Angelina has not yet fully paid the purchase
price, may Brad exercise his right of

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possessory lien over the remaining 3 bottles of 2) when the buyer or his agent lawfully
perfume? obtains possession of the goods; and
3) by waiver thereof (Art. 1529, NCC)
ANS. Yes. Under Art. 1528 of the NCC, where
an unpaid seller has made part delivery of the Q. Is the lien of an unpaid seller over the goods
goods, he may exercise his right on the sold lost if he obtains judgment for the price
remainder, unless such part delivery has been of the goods?
made under such circumstances as to show an
intent to waive the lien or right of retention. ANS. No, such lien is not lost. The unpaid seller
of goods, having a lien thereon, does not lose his
Q. Angelina bought 10 bottles of perfume lien by reason only that he has obtained
from Brad, only 7 of which arrived. Since judgment for the price of the goods. (Art. 1529,
Angelina has not yet fully paid the purchase last par., NCC)
price, Brad exercised his right of possessory
lien over the remaining 3 bottles of perfume Q. Under the circumstances mentioned under
Angelina claims that Brad can no longer Art. 1529 of the NCC, the possessory lien of an
withhold delivery of the remainder because unpaid seller is lost. Is the vendor’s lien also
the right of possessory lien is available only if lost?
the goods are still in the possession of the
seller. Is Angelina correct? ANS. No, under the circumstances mentioned
in Art. 1529, the lien lost is only the possessory
ANS. No, Angelina is not correct. Brad has the lien and not the vendor’s lien.
right to withhold delivery of the remaining 3
bottles because under Art. 1528 of the NCC, Q. Angelina delivered the goods to the carrier
where an unpaid seller has made part delivery for transmission to the buyer, Brad. She,
of the goods, he may exercise his right on the however, reserved her right to the ownership
remainder, unless such part delivery has been in the goods. Does she lose her possessory
made under such circumstances as to show an lien?
intent to waive the lien or right of retention.
ANS. No, she does not lose her possessory lien
in view of the reservation. Under Art. 1529 of
Q. When does the unpaid seller lose his lien the NCC, one of the instances when the unpaid
on or right of retention over the goods? seller’s possessory lien is lost is when he
delivers the goods to a carrier or other bailee for
ANS. The unpaid seller loses his right of lien or the purpose of transmission to the buyer
retention in the following cases: without reserving the ownership in the goods or
1) when he delivers the goods to a carrier or the right to the possession thereof.
other bailee for the purpose of
transmission to the buyer without
reserving the ownership in the goods or
the right to the possession thereof;

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Q. An unpaid seller who is still in possession to the same rights in regard to the goods as he
of the goods sold brought an action to get the would have had if he had never parted with the
purchase price. Does he lose his lien? possession (Art. 1530, NCC).

ANS. No, the bringing of an action is not one of Q. When will the buyer’s insolvency give rise
the ways of losing the possessory lien. As a to the unpaid seller’s right of stoppage in
matter of fact, even if he has already obtained a transitu?
money judgment in his favor, the possessory
lien still remains with him (Art. 1529, NCC). ANS. The seller’s right of stoppage in transitu
exists whether the buyer is insolvent at the time
Q. What is meant by the right of stoppage in of or after the sale. This is because Art. 1530 of
transitu? the NCC provides that the right of stoppage in
transitu is available when the seller has already
ANS. The right of stoppage in transitu refers to the parted with the possession of the goods and the
right of the unpaid seller to resume possession buyer is or becomes insolvent.
of the goods at anytime while they are in transit
by virtue of which he will then be entitled to the Q. Under Art. 1530 of the Civil Code, the right
same rights in regard to the goods as he would of stoppage in transitu is available to the seller
have had if he had never parted with the when he has already parted with the
possession (Art.1530, NCC). possession of the goods and the buyer is or
becomes insolvent. What is the meaning of
Q. What are the requisites for the exercise of INSOLVENCY under this provision?
right of stoppage of goods in transitu?
ANS. The insolvency need not be judicially
1) Seller must be unpaid (Art. 1525, NCC) declared. It is enough that the obligations
2) Buyer must be insolvent (need not be exceed a man’s assets (Paras).
judicially declared)
3) Goods must be in transit Q. Angelina bought 100 cases of Manila Beer
4) Seller must either – from Brad with the understanding that the
a) take possession of the goods sold goods will be delivered by ship from Manila
b) give notice of his claim to the carrier or to Cebu. While the goods were being
other person in possession of the goods transported, Brad learns that Angelina has
5) Seller must surrender the negotiable become insolvent. Can Brad stop the delivery
document of title, if any, issued by the carrier of the goods and resume possession thereof?
6) Seller must bear the expenses of delivery of
the goods after the exercise of the right ANS. Yes, Brad can exercise his right of
stoppage in transitu. Under Art. 1530 of the
Q. What is the effect if the unpaid seller NCC, when the buyer of goods is or becomes
exercises his right of stoppage in transitu? insolvent, the unpaid seller who has parted with
the possession of the goods has the right of
ANS. Upon exercise of the right of stoppage in stopping them in transitu, that is to say, he may
transitu, the unpaid seller will then be entitled resume possession of the goods at any time

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while they are in transit, and he will then that behalf, takes delivery of them from
become entitled to the same rights in regard to such carrier or other bailee; or
the goods as he would have if he had never 2) if the goods are rejected by the buyer, and
parted with the possession. the carrier or other bailee continues in
possession of them, even if the seller has
Q. Angelina bought 100 cases of Manila Beer refused to receive them back (Art. 1531,
from Brad with the understanding that the NCC).
goods will be delivered by ship from Manila
to Cebu. While the goods were being Q. When are goods no longer considered “in
transported, Brad learns that Angelina has transit”?
become insolvent. Brad wants to stop the
delivery of the goods and resume possession ANS. Goods are no longer in transit within the
thereof. Angelina, on the other hands, claims meaning of Art. 1530 in the following instances:
that the right of stoppage in transitu is not 1) if the buyer, or his agent in that behalf,
available to Brad because she has not yet been obtains delivery of the goods before their
judicially declared insolvent. Is Angelina arrival at the appointed destination;
correct? 2) if, after the arrival of the goods at the
appointed destination, the carrier or other
ANS. No, Angelina is not correct and Brad can bailee acknowledges to the buyer or his
exercise his right of stoppage in transitu. Under agent that he holds the goods on his behalf
Art. 1530 if the NCC, when the buyer of goods and continues in possession of them as
is or becomes insolvent, the unpaid seller who bailee for the buyer or his agent; and it is
has parted with the possession of the goods has immaterial that further destination for the
the right of stopping them in transitu, that is to goods may have been indicated by the
say, he may resume possession of the goods at buyer; or
any time while they are in transit, and he will 3) if the carrier or other bailee wrongfully
then become entitled to the same rights in refuses to deliver the goods to the buyer or
regard to the goods as he would have if he had his agent in that behalf (Art. 1531, NCC).
never parted with the possession. The
insolvency need not be judicially declared. It is Q. If the goods already reached the place of
enough that the obligations exceed a man’s destination, can they still be considered “in
assets (Paras). transit”?

Q. When are goods considered “in transit”? ANS. Yes, goods that have reached the place of
destination are still considered” “in transit” if
ANS. Goods are in transit within the meaning of the goods are rejected by the buyer and the
Art. 1530 in the following instances: carrier or other bailee continues in possession of
1) from the time when they are delivered to a them (Art. 1531, NCC).
carrier by land, water, or air, or other
bailee for the purpose of transmission to
the buyer, until the buyer, or his agent in

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Q. If the goods are rejected by the buyer but ANS. Not anymore. If after the arrival of the
the seller refuses to receive them back, are the goods at the appointed destination, the carrier
goods considered “in transit”? or other bailee acknowledges to the buyer or his
agent that he holds the goods on his behalf and
ANS. Yes, goods that have reached the place of continues in possession of them as bailee for the
destination are still considered” “in transit” if buyer or his agent; and it is immaterial that
the goods are rejected by the buyer provided the further destination for the goods may have been
carrier or other bailee continues in possession of indicated by the buyer (Art. 1531, NCC)
them, even if the seller has refused to receive
them back (Art. 1531, NCC). Q. If upon arrival of the goods, the buyer
unjustifiably refuses to receive the goods, may
Q. Despite not having arrived at the appointed the seller still exercise the right of stoppage in
place of destination, can the goods, transitu?
nevertheless, be considered as no longer “in
transit”? ANS. Yes, because in this instance, the goods are
still considered “in transit” and therefore, the
ANS. Yes, goods that have not yet reached the seller may still exercise the right of stoppage.
place of destination may already be considered
as no longer “in transit” if the buyer, or his agent
in that behalf, has obtained delivery of the Q. If the goods are delivered to a ship, freight
goods (Art. 1531, NCC). train, truck, or airplane chartered by the buyer,
are the goods still considered “in transit” or
Q. If the goods have arrived at the appointed not anymore?
destination but the carrier or other bailee
continues possession of them, are the goods ANS. Under Art. 1531, if the goods are delivered
still “in transit”? to a ship, freight train, truck, or airplane
ANS. Not necessarily. If, after the arrival of the chartered by the buyer, it is a question
goods at the appointed destination, the carrier depending on the circumstances of the
or other bailee acknowledges to the buyer or his particular case, whether they are in possession
agent that he holds the goods on his behalf and of the carrier as such or as agent of the buyer.
continues in possession of them as bailee for the
buyer or his agent, the goods are no longer “in Q. If partial delivery of the goods has been
transit” (Art. 1531, NCC). made to the buyer, or his agent in that behalf,
is the right of stoppage in transitu still
Q. If the goods have arrived in the appointed available to the unpaid seller?
destination and the carrier or other bailee
continues possession of them as bailee for the ANS. Yes, the remainder of the goods may be
buyer or his agent but the buyer has indicated stopped in transitu, unless such part delivery
a further destination, are the goods still “in has been under such circumstances as to show
transit”? an agreement with the buyer to give up
possession of the whole of the goods (Art. 1531,
NCC).

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Q. If notice of stoppage in transitu is given by

Q. How is the right of stoppage in transitu the seller to the carrier, or other bailee in
exercised? possession of the goods, what is the obligation
of the latter?
ANS. The unpaid seller may exercise his right of
stoppage in transitu either by obtaining actual ANS. Upon receipt of the notice of stoppage in
possession of the goods or by giving notice of transitu, the carrier, or other bailee in possession
his claim to the carrier or other bailee in whose of the goods, must deliver the goods to, or
possession the goods are (Art. 1532, par. 1, according to the directions of, the seller (Art.
NCC). 1532, par. 2, NCC).

Q. What are the preconditions before the Q. Who shall bear the expenses if the goods are
unpaid seller may exercise the right of resale delivered back to the seller exercising his right
in the instances allowed by law? of stoppage in transitu?

ANS. In the exercise of the right of resale, ANS. The expenses for such delivery must be
Art.1532, 1st paragraph requires that the unpaid borne by the seller (Art. 1532, par. 2, NCC).
seller should have a right of lien or should have
stopped the goods in transitu.
Q. What are the effects of the exercise of the
Q. If the right of stoppage in transitu is right of stoppage in transitu?
exercised by giving a notice of the claim, to
whom should the unpaid seller give such ANS. After the exercise of the right of stoppage
notice? in transitu, the consequential effects are:
1) The goods are no longer in transitu;
ANS. The notice must be given either 2) The contract of carriage ends and the
1) to the person on actual possession of the carrier now becomes a mere bailee and he
goods; or will be liable as such;
2) to his principal (Art. 1532, par. 1, NCC). 3) The carrier should not deliver anymore to
the buyer or the latter’s agent; otherwise,
Q. If the notice of the seller’s exercise of the he will be liable for damages (Paras); and
right of stoppage in transitu is given to the 4) The carrier must redeliver to, or according
principal, what is the condition required by to the directions of, the seller (Art. 1532,
law? par. 2, NCC).

ANS. If the notice is given to the principal, it Q. When is the right of resale available to the
must be given at such time and under such unpaid seller?
circumstances that the principal, by the exercise
of reasonable diligence, may prevent a delivery ANS. The right of resale is available to the
to the buyer (Art. 1532, par. 1, NCC). unpaid seller of goods in the following cases:
1) where the goods are of perishable nature;

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2) where the seller has expressly reserved the

right of resale in case the buyer should ANS. No, it is not essential to the validity of a
make default; and 3) where the buyer has resale that notice of the time and place of such
been in default in the payment of the price resale should be given by the seller to the
for an unreasonable time. It is, however, original buyer (Art. 1533, par. 4, NCC).
essential before the resale can be made that
the unpaid seller should have a right of Q. May the seller buy the goods subject of the
lien or should have stopped the goods in resale?
transitu (Art. 1533, par. 1, NCC).
ANS. No, the seller cannot, directly or
Q. What is the effect of a resale under Art. 1533 indirectly, buy the goods (Art. 1533, last par.,
of the Civil Code? NCC).

ANS. Where a resale is made, as authorized Q. When is the right to rescind the sale
under Art.1533 (par. 2), the buyer acquires a available to an unpaid seller?
good title as against the original buyer.
ANS. The right to rescind the transfer of title is
Q. What is the rule regarding any deficiency in available when an unpaid seller has the right of
the price after the resale? lien or has stopped the goods in transitu and if
he expressly reserved to do so in case the buyer
ANS. The deficiency in the price may be should be in default or where the buyer has
obtained as damages from the buyer, as when been in default for an unreasonable time (Art.
the resale price is lower than the original selling 1534, par. 1, NCC).
price.
Q. What is the effect of the exercise of the right
Q. Is notice of an intention to resell the goods to rescind?
essential to the validity of a resale?
ANS. The buyer who exercises the right to
ANS. Notice of an intention to resell the goods rescind the transfer of title shall resume the
is not essential to the validity of the resale. ownership in the goods.
However, where the right to resell is not based
on the perishable nature of the goods or upon Q. What should be done in order to rescind the
an express provision of the contract of sale, the transfer of title?
giving or failure to give such notice shall be ANS. The unpaid seller must manifest by notice
relevant in any issue involving the question to the buyer or by some other overt act an
whether the buyer had been in default for an intention to rescind (Art. 1534, par. 2, NCC).
unreasonable time before the resale was made
(Art.1533, par. 3, NCC).

Q. Is notice of the time and place of the resale

of goods essential to the validity of such
resale?

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Q. Is it necessary that the overt act showing an failed to give the securities. Can B be
intention to rescind be communicated to the compelled to deliver?
buyer?
ANS. No. for failure of A to give the securities
ANS. It is not necessary that such overt act he loses the right to make use of the period. But
should be communicated to the buyer, but the if B so desires, he may voluntarily deliver.
giving or failure to give notice to the buyer of
the intention to rescind shall be relevant in any Q. Sam sold to Muel a car on credit. Does Sam
issue involving the question whether the buyer have the right to withhold the delivery of the
had been in default for an unreasonable time car?
before the right of rescission was asserted (Art.
1534, par. 2, NCC). ANS. Yes, Sam may withhold delivery, unless
Muel gives sufficient guaranty or security.
Q. What is the effect of any sale or disposition
of the goods by the buyer on the unpaid Q. Give other instances where seller may
seller’s right of lien or stoppage in transitu? withhold delivery of the thing sold.

ANS. Generally, the unpaid seller’s lien or ANS.

stoppage in transitu remains even if the buyer 1) Seller promise to mortgage his house to
has sold or otherwise disposed of the goods. secure the purchase price and he fails to
The exceptions are when the unpaid seller has furnish said security as promised;
given his consent thereto or when the purchaser 2) If the payment of the purchase price is
or buyer is a purchaser for value in good faith of secured by a mortgage on the house of
a negotiable document of title. buyer, but the house was partially burned
because of the buyer’s fault;
Q. If the buyer has already sold the goods, may 3) Where the buyer shows intent not to pay
an unpaid seller still exercise his right of lien the price after the thing is delivered to him.
or stoppage in transitu over the goods?
Q. What is the rule in the case of installment
ANS. Yes, the unpaid seller may still exercise deliveries and there is a separate price for each
right of lien or stoppage in transitu over said installment?
goods. This is because under Art. 1535, the
unpaid seller’s right of lien or stoppage in ANS. If the breach affects the whole contract,
transitu is not affected by any sale, or other the injured party may sue for breach of entire
disposition of the goods which the buyer may contract when seller makes defective or
have made, unless the seller has assented incomplete deliveries; or buyer wrongfully
thereto. neglects or refuses to accept delivery; or buyer
fails to pay any installment. If breach is
Q. A purchased goods from B. A promised to severable, only claim for compensation for
give certain securities, as a result of which, A particular breach may be allowed. (Art. 1583,
was given one year within which to pay. A NCC)

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Q. What are the effects of failure to deliver on a breach thereof by any of the parties?
time?
ANS. Breach in any installment affects the
ANS. The effects of failure to deliver on time whole contract. The injured party may sue for
are: breach of entire contract. (Art. 1583, NCC)
a) If the seller promised to deliver at a
stipulated period, and such period is of the Q. A and B entered into a contract of sale
essence of the contract, but did not comply whereby A bound himself to deliver a parcel
with his obligation on time, he has no right of land through a public document on 1 July
to demand payment of the price. As a 20xx, and B bound himself to pay on 31
matter of fact, the vendee-buyer may ask December 20xx. B did not pay A on 31
for the rescission or resolution of the sale. December 20xx. What is/are the remedy/ies of
b) If failure by seller to deliver on time is not A?
due to his fault, as when it was the buyer
who failed to supply the necessary credit ANS. A may choose between fulfillment and
for the transportation of the goods, delay rescission of the obligation with payment of
on the part of the seller may be said to be damages in either case on the ground that B
sufficiently excused. does not comply with what is incumbent upon
him (Art. 1191). Should there be a reasonable
Q. What is the effect of non- delivery? ground to fear the loss of property sold and its
price, A may immediately sue for rescission of
ANS. If the seller fails to deliver, and the buyer the sale. (Art. 1591, NCC)
has no fault, the latter may ask for the resolution
or rescission of the contract. Q. A and B entered into a contract of sale
whereby A bound himself to deliver a parcel
Q. What is the duty to deliver at execution of land through a public document on 1 July
sales? 20xx, and B bound himself to pay on 31
December 20xx. A real estate mortgage was
ANS. When the property is sold at an execution constituted on the property, having A as the
sale, the judgment debtor is not required to mortgagee. B did not pay A on 31 December
deliver the property sold right away because of 20xx. May A rescind the sale?
the redemption period.
ANS. No. Upon the constitution of real estate
The judgment debtor has a period of one year mortgage, the contract has been changed into
within which to redeem the property. In the one of payment of a loan.
meantime, the buyer should not take actual
possession of the property. If he does so, an Q. On July 1, AA sold BB a piece of land,
action of forcible entry may be brought against payment and delivery to be made on July 15.
him. It was stipulated that should payment not be
made on July 15, the contract would
Q. What is the effect in case when there is a automatically be rescinded. On July 20, can BB
separate price for each installment and there is still pay?

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ANS. Yes, as long as there has been no judicial depositary?

or notarial demand for the rescission of the
contract. But if, for example on July 18, AA had ANS. Buyer is not liable as DEPOSITARY unless
made a notarial demand for such a rescission he voluntarily constitutes himself as such.
then BB will not be allowed o pay anymore, and
the court may not grant him a new term. (Art. Q. What are the effects if the buyer justifiably
1592, NCC) refuses to accept the delivery?

10. Performance of contract ANS. The buyer has no duty to return the goods
to the seller. Mere notification to seller of
Q. What are the modes of manifesting refusal will suffice but the buyer may make
acceptance? himself a voluntary depositary-in which case he
must safely take care of them in the
ANS. The modes of manifesting acceptance are: meantime.(Art. 1587, NCC)
1) EXPRESS ACCEPTANCE – the buyer
intimates to the seller that he accepts the Q. What is the effect if the buyer unjustifiably
thing refuses to accept the delivery?
2) IMPLIED ACCEPTANCE – may be either
of the following: ANS. Title passes to the buyer the moment it is
a) Buyer does an act inconsistent with the placed at his disposal.
seller’s ownership; or
b) Buyer’s retention of goods without Q. What is the exception to the rule that title
intimating rejection after the lapse of passes to the buyer when he unjustifiably
reasonable time. refuses to accept delivery?

Q. Does acceptance of the goods by the buyer ANS. The exception is when there is a contrary
discharge the seller from liability in damages stipulation or when the seller reserves the
or other legal remedy for breach of any ownership as a sort of security for the payment
promise or warranty in the contract of sale? of the price. (Art. 1588, NCC)

ANS. No, acceptance is not a bar to action for 11. Extinguishment

damages. However, notice must be given to the
seller within a reasonable time. (Art. 1586, NCC) Q. How can sales be extinguished?

Q. When is the buyer’s refusal to accept ANS. Sales are extinguished by the same causes
justified? as all other obligations, by those stated in the
preceding articles of this Title, and by
ANS. He is justified in refusing to accept when conventional or legal redemption. (Art. 1600,
the risk of loss is still with the seller. (Art. 1586, NCC)
NCC)

Q. In a contract of sale, is the buyer liable as a

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Q. When does conventional redemption take reserved in a separate instrument, then the
place? document is not a sale with right to repurchase.
The same is merely a promise to sell which is
ANS. Conventional redemption shall take place discretionary on the part of the vendee a retro.
when the vendor reserves the right to (Sy vs. CA, 131 SCRA 116).
repurchase the thing sold, with the obligation to
comply with the provisions of Article 1616 and Q. When is a contract deemed to be an
other stipulations which may have been agreed equitable mortgage?
upon. (Art. 1601, NCC)
ANS. The contract shall be presumed to be an
Q. What is the obligation of the vendor to the equitable mortgage, in any of the following
vendee in case of conventional redemption? cases:
1) When the price of a sale with right to
ANS. The vendor is obligated to return the price repurchase is unusually inadequate;
delivered as well as the expenses of the contract 2) When the vendor remains in possession as
and necessary and useful expenses made on the lessee or otherwise;
thing. 3) When upon or after the expiration of the
right to repurchase another instrument
Q. Distinguish right of repurchase from extending the period of redemption is
option to buy. granted or an agreement granting a new
period is executed;
ANS. 4) When the purchaser retains for himself a
Right of Option to Buy part of the purchase price;
Repurchase 5) When the vendor binds himself to pay the
Reserved as a Given in another taxes on the thing sold;
stipulation in the instrument 6) In any other case where it may be fairly
contract inferred that the real intention of the
Granted at Granted after parties is that the transaction shall secure
moment of execution of the payment of a debt or the performance
perfection absolute sale of any other obligation.
Evidences pacto Does not evidence In any of the foregoing cases, any money, fruits,
de retro when pacto de retro or other benefit to be received by the vendee as
extension is when taken rent or otherwise shall be considered as interest
granted together with the which shall be subject to the usury laws. (Art.
contract of sale 1602, NCC)

Q. Is it necessary that the right to repurchase Q. A contract of sale over a parcel of land was
be reserved in the same instrument of sale? entered into by and between the parties for
Why? only P80,000.00. It was being questioned, as
the intention was one of equitable mortgage.
ANS. Yes, the right to repurchase must be It was found out that the payments amounted
reserved in the same deed of sale. If it is to P120,000.00, but evidence was shown that

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the amount of P 80,000.00 was placed in the Q. What rule shall apply to a contract
contract to reduce the documentary stamps, purporting to be an absolute sale?
transfer tax, etc.
Is the conveyance one of sale or merely a ANS. The provisions of Art. 1602 shall also
security for the payment of a loan? apply to a contract purporting to be an absolute
ANS. It is one of sale. The presumption of sale. (Art. 1604, NCC)
equitable mortgage will apply only if it is clearly
shown that the consideration was unusually Q. What is the effect of the execution of
inadequate such that the mind revolts at it and contract extending a contract of sale with right
such that a reasonable man would neither to repurchase?
directly nor indirectly be likely to consent to it.
(Vda. De Alvarez vs. CA, et al., G.R. no. 110970, ANS. The extension can be construed as
March 16, 1994, 49 scad 663) indicative of an equitable mortgage. (Claravall
vs. CA, 190 SCRA 439).
Q. X and Y entered into a contract of sale with
right to repurchase over a parcel of land. Q. What is the remedy of the vendor in cases
Despite the sale, X, the seller, retained referred to in Articles 1602 and 1604?
possession. The contract also provides for a
monthly escalation of the repurchase price. ANS. In the cases referred to in Art. 1602 and
What is the nature of the contract? Why? 1604, the apparent vendor may ask for the
reformation of the instrument. (Art. 1605, NCC)
ANS. It is an equitable mortgage. In Bundalian perforReformation is a remedy granted by law by
vs. CA, 129 SCRA 645, it was said that an means of which a written instrument is made or
equitable mortgage exists where vendors are construed so as to express or conform to the real
given the right to possess property pending intention of the parties when such intention is
redemption. In the same case, the SC said that not expressed in the instrument.
monthly escalation of repurchase price indicates
a loan transaction secured by an equitable Q. Within what period should the vendor a
mortgage. retro repurchase the property?

Q. How can you a construe a contract ANS. The right referred to in Art. 1601, in the
purporting to be a sale with a right to absence of an express agreement, shall last four
repurchase? years from the date of the contract. Should there
be an agreement the period cannot exceed ten
ANS. In case of doubt, a contract purporting to years. (Art. 1606, NCC)
be a sale with right to repurchase shall be
construed as an equitable mortgage. (Art. 1603, Q. Should there be an agreement regarding the
NCC) period of right to repurchase, what is the
maximum period allowed by law?

ANS. Should there be an agreement, the period

cannot exceed ten years. (Art. 1606, NCC)

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Q. What is the effect of failure of the vendor to

Q. What is the essence of a sale with right to comply with the provisions of Art. 1616 in case
repurchase? Explain. of consolidation of ownership in the vendee
with respect to real property?
ANS. The essence of a sale with right to
repurchase is that title and ownership of the ANS. In case of real property, the consolidation
property sold are immediately vested in the of ownership in the vendee by virtue of the
vendee a retro subject to the resolutory failure of the vendor to comply with the
condition of repurchase by the vendor a retro provisions of Art. 1616 shall not be recorded in
within the period stipulated. Failure to perform the Registry of Property without a judicial
said resolutory condition vests upon the vendee order, after the vendor has been duly heard.
by operation of law absolute title or ownership (Art. 1607, NCC)
over the property sold.
Failure of the vendee a retro to consolidate Q. The seller a retro failed to redeem within
ownership does not impair such title, for the the period agreed upon, hence, the buyer a
method prescribed under Art. 1607 is merely for retro filed a petition for registration of the
the purpose of registration of the consolidated consolidation of ownership, but did not name
title. the respondents.
What is the effect of the failure to redeem and
Q. Can the vendor still exercise the right to to name and notify the respondents? Explain.
repurchase after a finality of a judgment
declaring the contract one with right to ANS. In case of failure to redeem, there shall be
repurchase? consolidation of ownership in the vendee a
retro. Consolidation is a matter of law. (Art
ANS. Yes, the law provides that the vendor may 1607, NCC; BAyquen vs. Balaoro, L- 28161,
still exercise the right to repurchase within August 13, 1986). Such failure results in the loss
thirty days from the time final judgment was of the right to repurchase. ( Cruz vs. Leis, et al.,
rendered in a civil action on the basis that the G.R. No. 125233, March 09, 2000)
contract was a true sale with right to Registration of the consolidated ownership
repurchase. (Art. 1606, NCC) requires a judicial order after the vendor shall
Q. Under Art. 1606, the vendor may still have been notified.
exercise the right to repurchase within 30 days
from the finality of a judgment declaring the Q. Can the vendor bring his action against
contract one with right to repurchase. How every possessor whose right is derived from
does this apply? the vendee even if in the second contract no
mention should have been made of the right to
ANS. The rule applies where the party denies repurchase?
that the sale is one with right to repurchase, not
in those cases where the contract is conclusively ANS. Yes. The vendor may bring his action
a sale with right to repurchase. (Adorable vs. against every possessor whose right is derived
Inacala, 103 Phil. 481) from the vendee, even if in the second contract
no mention should have been made of the right

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to repurchase, without prejudice to the Q. Can the heirs of the person who sold an
provisions of the Mortgage Law and the Land immovable redeem more than what they may
Registration Law with respect to third persons. have acquired?
(Art. 1608, NCC)
ANS. No. The same rule shall apply if the
Q. What is the effect of legal redemption with person who sold an immovable alone has left
respect to the vendee? several heirs, in which case each of the latter
may only redeem the part which he may have
ANS. The vendee is subrogated to the vendor’s acquired. (Art. 1612, NCC)
rights and actions. (Art. 1608, NCC) Q. Can a vendee compel a co-owner to redeem
the whole of the property sold?
Q. When can the creditor make use of the right
of redemption against the vendee? ANS. A vendee cannot compel the co-owner to
redeem the whole property sold because each
ANS. The creditors of the vendor cannot make one of the co-owners may independently
use of the right of redemption against the exercise the right repurchase.
vendee, until after they have exhausted the
property of the vendor. (Art. 1610, NCC) Q. May a co-owner exercise his right to
repurchase independently from the co-owner?
Q. In a sale with a right to repurchase, can the
vendee compel the vendor to redeem the ANS. Yes, he may exercise his right to
whole property? repurchase independently as regards his own
share.
ANS. In a sale with a right to repurchase, the
vendee of a part of an undivided immovable Q. Can an action of redemption be bought
who acquires the whole thereof in the case of against all the heirs of the vendee should he
Art. 498, may compel the vendor to redeem the leave several heirs?
whole property, if the latter wishes to make use
of the right of redemption. (Art. 1611, NCC) ANS. No, the redemption should pertain only to
each share of the heir.
Q. If several persons, jointly and in the same
contract, should sell an undivided immovable Q. Can the vender avail the right of repurchase
with a right of repurchase, can anyone of them without returning the price of the sale?
exercise this right for more than their
respective share? ANS. No, the vender must return the amount of
the price to avail the right to repurchase as well
ANS. No. If several persons, jointly and in the as the expenses on the contract and the
same contract, should sell an undivided necessary expenses made.
immovable with a right of repurchase, none of
them may exercise this right for more than his
respective share. (Art. 1612, NCC)

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Q. What is a legal redemption? Q. Distinguish trust from bailment.

ANS. It is the right to be subrogated upon the ANS.

terms and conditions stipulated in the contract TRUST BAILMENT
in one who acquires the thing by purchase or A delivery of The bailee has
dation in payment or other transaction whereby property in trust possession of,
ownership is transferred by onerous title. necessarily involves without legal title
a transfer of legal to, the property
Q. Can a co-owner of a thing exercise the right title, or at least a subject to the
of redemption in case the shares of the other separation of bailment. (De Leon,
co-owner are sold to third person? equitable interest 2010)
and legal title, with
ANS. Yes, a co-owner may exercise the right to the legal title in the
redemption in case the share of other co-owners trustee (De Leon,
are sold to third person. 2010).

Q. When can the right of legal redemption be Q: Distinguish trust from contract.
exercised?
ANS.
ANS. It must be exercised within 30 days from TRUST CONTRACT
notice in writing by the prospective vendor or A trust always A contract is a legal
by the vendor as the case maybe. involves an obligation based on
ownership, an undertaking
embracing a set of supported by a
B. TRUST rights and duties consideration,
fiduciary in which obligation
Q. Define trust. character which may or may not be
may be created by a fiduciary in
ANS. A trust is the fiduciary relationship declaration without character. (De Leon,
between one person having an equitable a consideration. (De 2010)
ownership in property and another owning the Leon, 2010)
legal title to such property, the equitable
ownership of the former entitling him to the
performance of certain duties and the exercise
of certain powers by the latter (see 54 Am. Jur.
21) for the benefit of the former (De Leon, 2010).
It is a legal arrangement whereby a person
transfers his legal title to property to another to
be administered by the latter for the benefit of a
third party. It is a right of property held by one
party for the benefit of another (De Leon, 2010).

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The beneficiary of a A creditor has

Q. Distinguish trust from donation. trust has a merely a personal
beneficial interest in claim against the
ANS. the trust property. debtor.
TRUST DONATION In trust, there is a No such relation
An existing legal Transfer of fiduciary relation between a debtor
relationship and property which between a trustee and creditor.
involves separation involves a and a beneficiary.
of legal and disposition of both A trust refers to a A debt implies
equitable title (De legal and equitable duty to deal with a merely an
Leon, 2010). ownership except specific property obligation to pay a
gift in trust. for the benefit of certain sum of
The beneficiary of a Must comply with another (De Leon, money (De Leon,
trust may demand the legal 2010). 2010).
performance of the requirements in
obligation without accepting Q. Who are the persons involved in the
having formally donations. creation of an express trust?
accepted the benefit
of the trust in a ANS.
public document, 1) Trustor (creator/settlor/grantor) – a person
upon mere who establishes a trust.
acquiescence in the 2) Trustee – one in whom confidence is reposed
formation of the as regards property for the benefit of another
trust and person.
acceptance under 3) Beneficiary (cestui que trust) – the person for
the second whose benefit the trust has been created.
paragraph of (Art. 1440, NCC)
Article 1311 of the
Civil Code. Q. What are the classifications of trust?
(Cristobal vs.
Gomez, 50 Phil. 810 ANS.
[1927]) (De Leon, 1) Creation – From the viewpoint of the creative
2010). force bringing them into existence, they may
be either:
a) Express trust –created by the intention
of the trustor or of the parties (Art. 1441,
NCC); or
Q. Distinguish trust from debt. b) Implied trust – come into being by
operation of law (Art. 1441, NCC); this
ANS. latter trust being either:
TRUST DEBT

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i. Resulting trust or one in which Express Trusts

the intention to create a trust is
implied or presumed in law; or Q. Define express trust.
ii. Constructive trust or one imposed
by law irrespective of, and even ANS. Express trusts are those trusts
contrary to, any such intention for intentionally created by direct and positive act
the purpose of promoting justice, of the trustor, by some writing, deed, will, or
frustrating fraud, or preventing oral declaration evincing an intention to create
unjust enrichment. It is otherwise the trust (De Leon, 2010).
known in American law as a trust
ex maleficio, trust ex delicto, and NOTE: No particular words are required for the
de son tort (De Leon, 2010). creation of an express trust, it being sufficient
that a trust is clearly intended (Article 1444,
2) Effectivity — From the viewpoint of whether Civil Code).
they become effective after the death of the
trustor or during his life, they may be either: Q. What are the elements of express trust?
a) Testamentary trust or one which is to take
effect upon the trustor’s death. It is usually ANS.
included as part of the will and does not (1) A competent trustor and trustee;
have a separate trust deed (see Tuazon vs. (2) An ascertainable trust res; and
Caluag, [Unrep.] 96 Phil. 981 [1955]; (3) Sufficiently certain beneficiaries.
Lorenzo vs. Posadas, 64 Phil. 353 [1937].);
or NOTE: The trustee must also have some power
b) Trust inter vivos (sometimes called of administration other than a mere duty to
“living trust”) or one established effective perform a contract although the contract is for
during the owner’s life. The grantor some third-party beneficiary. A declaration of
executes a “trust deed,’’ and once the trust terms is essential and these must be stated with
is created, legal title to the trust property reasonable certainty in order that the trustee
passes to the named trustee with duty to may administer, and that the court, if called
administer the property for the benefit of upon so to do, may enforce the trust. (Mindanao
the beneficiary (De Leon, 2010). Development Authority vs. Court of Appeals,
3) Revocability – From the viewpoint of 113 SCRA 429 [1982].) Since the trustee takes
whether they may be revoked by the trustor, title to property and administers it, it follows
they may be either: that he must be capable of owning property.
a) Revocable trust – one which can be Consideration, is not required to establish a
revoked or cancelled by the trustor or trust. (De Leon, 2010)
another individual given the power; or
b) Irrevocable trust – one which may not
be terminated during the specified term
Evidence to prove express trust
of the trust (De Leon, 2010).

Q. Who has the burden of proving the

existence of a trust?
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ANS. Kinds of Express Trusts

The general rule is that the burden of proving
the existence of a trust is on the party alleging Q. What are the kinds of express trusts?
its existence; and to discharge this burden, it is
generally required that his proof be clear and ANS.
satisfactory and convincing. (54 Am. Jur. 465; 1) Charitable trust – one designed for the
Ramos vs. Ramos, 61 SCRA 284 [1974].) benefit of a segment of the public or of the
public in general. It is one created for
Q. What is the proof required in proving the charitable, educational, social, religious, or
existence of trusts over an immovable or any scientific purposes, or for the general benefit
interest therein? of humanity (De Leon, 2010).
2) Accumulation trust – one that will
ANS. By virtue of Art. 1443, a writing is accumulate income to be reinvested by the
necessary to prove an express trust concerning trustee in the trust for the period of time
an immovable or any interest therein. The specified (De Leon, 2010).
writing is required by said article not for 3) Spendthrift trust – one established when the
validity but for purposes of proof. Hence, by beneficiary need to be protected, because of
analogy, this requirement may also be included his inexperience or immaturity from his
under the Statute of Frauds. (Cuaycong vs. imprudent spending habits or simply
Cuaycong, 21 SCRA 1192 [1967].) because the beneficiary is spendthrift (De
Leon, 2010).
To affect third persons, a trust concerning an 4) Sprinkling trust – one that gives the trustee
immovable or any interest therein must be the right to determine the income
embodied in a public instrument and registered beneficiaries who should receive income
in the Registry of Property (De Leon, 2010). each year and the amount thereof (De Leon,
2010).
Q. What is the proof required in proving the
existence of trusts over a movable or any Q. Discuss acceptance of trust by the
interest therein? beneficiary.

ANS. An express trust over personal property ANS. Acceptance by the beneficiary is
or any interest therein, and an implied trust, necessary. Nevertheless, if the trust imposes no
whether the property subject to the trust is real onerous consideration upon the beneficiary, his
or personal, may be proved by oral evidence. acceptance shall be presumed, if there is no
(Art. 1457, NCC) proof to the contrary. (Art. 1446, NCC)
Acceptance of or assent to the trust by the
beneficiary is essential to the creation and
validity of a trust.
The trust, being beneficial to the beneficiary, his
acceptance is presumed if there is no proof to
the contrary. However, if the trust imposes

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some onerous condition, acceptance must be Implied trusts come into being by operation of
shown. Such acceptance may be express or law (Art.1441, NCC).
implied. (De Leon, 2010)
Q. What are the kinds of implied trusts?
Q. What are the kinds of acceptance?
ANS.
ANS. 1) Resulting Trust – A trust which is raised or
1) Express created by the act or construction of law.
2) Implied  It is a trust raised by implication of law
and presumed always to have been
Q. What are the modes of termination of contemplated by the parties, the
express trusts? intention as to which is to be found in
the nature of their transaction, but not
ANS. expressed in the deed or instrument of
1) Expiration of period fixed – Ordinarily, a conveyance. (89 C.J.S. 725)
trust instrument states the termination date 2) Constructive Trust – It is also a trust by
of the trust or the event on which the trustor construction of law or arising by operation of
wishes it to terminate (De Leon, 2010). law.
2) Accomplishment of purpose – If the purpose  Constructive trust is a trust nit created
is fulfilled before the date, the trust will by any words, either expressly or
terminate; otherwise, on the date specified impliedly, evincing a direct intention to
even when the purpose has not yet been create a trust but by the construction of
fulfilled (De Leon, 2010). equity in order to satisfy the demands
3) Mutual agreement of beneficiaries – The of justice and prevent unjust
trust may terminate by mutual agreement of enrichment [Salao v. Salao, GR No. L-
all beneficiaries (De Leon, 2010). 26699, (March 16, 1976).]
4) Exercise of power to terminate – The trustor,  It does not arise by agreement or
trustee, or someone else may have the power intention, but by operation of law (89
to terminate the trust (De Leon, 2010). C.J.S. 726-727).
Implied Trusts

Q. Define implied trusts. Q. Give examples of resulting trusts.

ANS. Implied trusts are those which, without ANS.

being express, are deducible from the nature of 1) There is an implied trust when property is
the transaction as matters of intent, or which are sold, and the legal estate is granted to one
superinduced on the transaction by operation of party but the price is paid by another for the
law, as matters of equity, independently of the purpose of having the beneficial interest of
particular intention of the parties. [89 C.J.S. 724; the property. The former is the trustee, while
Philippine National Bank v. Court of Appeals, the latter is the beneficiary. However, if the
217 SCRA 347 (1993)] person to whom the title is conveyed is a
child, legitimate or illegitimate, of the one

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paying the price of the sale, no trust is an obligation of the grantor toward the
implied by law, it being disputably grantee, a trust by virtue of law is established.
presumed that there is a gift in favor of the If the fulfillment of the obligation is offered
child. (Art. 1448, NCC) by the grantor when it becomes due, he may
2) There is also an implied trust when a demand the reconveyance of the property to
donation is made to a person but it appears him. (Art. 1454, NCC)
that although the legal estate is transmitted to 3) When any trustee, guardian or other person
the donee, he nevertheless is either to have no holding a fiduciary relationship uses trust
beneficial interest or only a part thereof. funds for the purchase of property and
(Article 1449, NCC) causes the conveyance to be made to him or
3) When land passes by succession to any to a third person, a trust is established by
person and he causes the legal title to be put operation of law in favor of the person to
in the name of another, a trust is established whom the funds belong. (Art. 1455, NCC)
by implication of law for the benefit of the 4) If property is acquired through mistake or
true owner. (Art. 1451, NCC) fraud, the person obtaining it is, by force of
4) If two or more persons agree to purchase law, considered a trustee of an implied trust
property and by common consent the legal for the benefit of the person from whom the
title is taken in the name of one of them for property comes. (Art. 1456, NCC)
the benefit of all, a trust is created by force of
law in favor of the others in proportion to the NOTE: The enumeration of the following cases
interest of each. (Art. 1452, NCC) of implied trust does not exclude others
5) When property is conveyed to a person in established by the general law of trust, but the
reliance upon his declared intention to hold limitation laid down in Art. 1442 shall be
it for, or transfer it to another or the grantor, applicable. (Art. 1447, NCC)
there is an implied trust in favor of the person
whose benefit is contemplated. (Art. 1453, Q. Distinguish express trust from implied
NCC) trust.

Q: Give examples of constructive trusts. ANS.

EXPRESS TRUST IMPLIED TRUST
ANS. Created by the Come into being by
1) If the price of a sale of property is loaned or intention of the operation of law
paid by one person for the benefit of another trustor or of the (Art. 1441, NCC).
and the conveyance is made to the lender or parties (Art. 1441,
payor to secure the payment of the debt, a NCC).
trust arises by operation of law in favor of the An express trusts An implied trust
person to whom the money is loaned or for concerning an may be proved by
whom it is paid. The latter may redeem the immovable or any oral evidence (Art.
property and compel a conveyance thereof to interest therein 1457, NCC).
him. (Art. 1450, NCC) cannot be proved
2) If an absolute conveyance of property is by parole evidence
made in order to secure the performance of (Art. 1443, NCC).

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A trustee may sue A trustee cannot

or be sued alone. sue and be sued C. AGENCY
In order that a alone.
trustee may sue or
Nature, Form and Kinds of Agency
be sued alone, it is
essential that his
Q. What is a contract of agency?
trust be express,
that is, a trust
ANS. By the contract of agency a person binds
created by the direct
himself to render some service or to do
and positive acts of
something in representation or on behalf of
the parties, by some
another, with the consent or authority of the
writing, deed, or
latter.
will or by
proceedings in
Q. What acts may be authorized for an agency?
court. (Phil. Air
Lines, Inc. vs. Heald
ANS. Any act a man may do in person, he may
Lumber Co., 101
do thru another.
Phil. 1031 [1957])
Exceptions:
An express trust An action to enforce
a) Personal acts
does not prescribe an implied trust
Examples:
Exception: when even when there is
i. Voting during an election;
the trustee no express
ii. Making a will;
repudiates the trust repudiation of the
iii. Making statements which are
(De Leon, 2010). trust by the trustee
required to be done under oath;
and made known to
iv. A member of the board of directors
the beneficiary,
or trustees in a corporation cannot
may be barred by
validly act as such by proxy
laches or by
v. An agent cannot delegate to a sub-
extinctive
agent the performance of acts which
prescription.
he has been appointed to perform in
person
b) Criminal acts
NOTE: If the intention to establish a trust is
c) Unlawful acts
clear, it is express; if such intention is to be taken
Examples:
from the circumstances or other matters
i. An alien principal using an agent to
indicative of such intent, then it is implied
acquire lands;
(Cuaycong vs. Cuaycong, 21 SCRA 1192 [1967].)
ii. Persons who, because of their
position and relation with the
persons under their charge or
property under control, are
prohibited from acquiring said

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 CIVIL LAW

property and cannot do so through Exceptions:

an agent. 1) When agency arises by operation of law;
or
Q. What are the characteristics of a contract of 2) When agency is presumed to prevent
agency? unjust enrichment.

ANS. Q. Who are the parties in a contract of agency?

1) Consensual: perfected by mere consent;
2) Nominate: it has its own name; ANS.
3) Principal: does not depend on another 1) Principal – One whom the agent represents
contract for its existence and validity; and from whom he derives his authority; he
4) Preparatory: entered into as a means to an is the person represented.
end; Other term: mandante, employer,
5) Onerous: the law presumes that an agency is constituent, chief
for compensation; 2) Agent – One who acts for and represents
6) Fiduciary: based on trust and confidence another; he is the person acting in a
7) Unilateral/Bilateral: representative capacity (De Leon).
a) Unilateral: if contract is gratuitous, it Other terms: mandatario, attorney-in-fact,
creates obligations for only one of the proxy, delegate, representative
parties, i.e. agent.
b) Bilateral: if for compensation, it gives Q. What are the qualifications of a principal?
rise to reciprocal rights and obligations.
ANS.
Q. What are the elements of a contract of 1) Natural or juridical person; and
agency? 2) Capacity to act.

ANS. The following are the essential elements Q. How is agency created?
of the contract of agency:
1) Consent, express or implied, of the parties ANS. Agency may be:
to establish the relationship; 1) express, or
2) Object, is the execution of a juridical act in 2) implied
relation to third parties; a) from the acts of the principal,
3) The agent acts as a representative and not b) from his silence or lack of action, or
for himself; and c) his failure to repudiate the agency,
4) The agent acts within the scope of his knowing that another person is acting on
authority. (Rallos v. Felix Go Chan & Sons his behalf without authority. (Art. 1874,
Realty Corp., 81 SCRA 251 (1978)) par.1, NCC)

Q. Can agency be presumed? Q. What is the form required of an agency?

ANS. No, because the relationship between the ANS. Agency may be oral, unless the law
principal and agent must exist as a fact. requires a specific form. (Art. 1869, NCC)

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Examples: Q. What are the ways of giving notice of

 In an agency to sell a piece of land or any agency?
interest therein, the authority of the agent
shall be in writing. Otherwise, the sale ANS.
shall be void (Art. 1874, par. 2, NCC) 1) By special information: the person appointed
 The authority of an agent to execute a as agent is considered such with respect to
contract of sale of real estate must be the person to whom it was given.
conferred in writing and must give him 2) By public advertisement: Agent is considered
specific authority, either to conduct the such with regard to any person. (Art. 1873,
general business of the principal or to NCC)
execute a binding contract containing
terms and conditions which are in the Q. What is an agency by estoppel?
contract he did execute. (Dizon et al. vs.
CA et al., GR 124741, January 28, 2003) ANS. There is really no agency at all, but the
alleged agent seemed to have apparent or
Q. How is the acceptance by the agent made? ostensible, although no real authority to
represent another.
ANS.
1) Express, or Q. Distinguish agency by estoppel from
2) Implied (from) implied agency.
a) His acts which carry out the agency, or
b) His silence or inaction according to the ANS.
circumstances (Art. 1870, NCC) Agency by Implied Agency
Estoppel
Q. What are the kinds of implied acceptance? The agent is a true The “agent” is not
agent, with rights a true agent;
ANS. and duties of an hence he has
1) Where persons are present agent. no rights as such.
a) principal delivers his power of attorney If the estoppel is The principal is
to the agent; and caused by the always liable.
b) agent receives it without any objection principal, he is
(Art. 1871, NCC) liable, but only if
2) Where persons are absent the third person
a) principal transmits his power of attorney acted on the
to the agent, who receives it without any misrepresentation.
objection; If the estoppel is In an implied
b) principal entrusts to him by letter or caused by the agency, the agent
telegram a power of attorney with respect agent, it is only the is never
to the business in which he is habitually agent who is personally liable.
engaged as an agent, and he did not reply liable, never the
to the letter or telegram (Art. 1872, NCC) alleged principal.

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Q. Does the law allow double agency? Q. What is an agency couched in general
terms?
ANS. No, such agency is disapproved by law
for being against public policy and sound ANS. An agency couched in general terms
morality. comprises only acts of administration, even if
Exception: Where the agent acted with full the principal should state that he withholds no
knowledge and free consent of the principals power or that the agent may execute such acts
as he may consider appropriate, or even though
In case the agent assumes a double agency, the agency should authorize a general or
what is his right to compensation? unlimited management. (Art. 1877, NCC)

ANS. Q. Give examples of acts of mere

1) If with knowledge of both principals – administration.
recovery can be had from both.
2) If without knowledge of both – agent can ANS.
recover from neither. 1) Sue for collection of debts;
3) If with knowledge of only one – as to the 2) Employ workers or servants and employees
principal who knew of that fact and as to the needed for the conduct of business;
agent, they are in pari delicto and the courts 3) Engage counsel to preserve the ownership
shall leave them as they were, the contract and possession of the principal’s property;
between them being void as against public 4) Lease real property to another person for one
policy and good morals. year or less, provided the lease is not
registered;
Q. What are the kinds of agent? 5) Make customary gifts for charity or to
employees in the business managed by the
ANS. agent
1) Universal Agent- one employed to do all acts 6) Borrow money if it be urgent and
that the principal may personally do, and indispensable for the preservation of the
which he can lawfully delegate to another the things under administration
power of doing. Q. What is a special power of attorney (SPA)?
2) General Agent- one employed to transact all ANS. An SPA is an instrument in writing by
the business of the principal, or all the which one person, as principal, appoints
business of a particular kind or in a particular another as his agent and confers upon him the
place, or in other words to do all acts, authority to perform certain specified acts or
connected with a particular trade, business or kinds of acts on behalf of the principal.
employment.
3) Special or Particular Agent- one authorized NOTE: It need not be notarized; except where
to act in one or more specific transactions, or it is executed in a foreign country, must be
to do one or more specific acts, or to act upon certified in accordance with the Rules of Court.
a particular occasion.

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Q. What are the instances where SPA is NOTES:

necessary?  A third person with whom the agent
wishes to contract on behalf of the
ANS. principal may require the presentation of
1) To make such payments as are not usually the power of attorney or the instructions as
considered as acts of administration; regards the agency; except private or
2) To effect novation which put an end to secret orders.
obligations already in existence at time the  The scope of the agent’s authority is what
agency was constituted; appears in the written terms of the power
3) To compromise, to submit questions to of attorney. While third persons are
arbitration, to renounce the right to appeal bound to inquire into the extent or scope
from a judgment, to waive objections to the of the agent’s authority, they are not
venue of an action or to abandon a required to go beyond the terms of the
prescription already acquired; written power of attorney. (Siredy
4) To waive any obligation gratuitously; Enterprises, Inc. vs. CA, et al. GR 129039,
5) To enter into any contract by which the September 27, 2002)
ownership of an immovable is transmitted or  Lack of SPA when it is required renders
acquired either gratuitously or foe a valuable the act unenforceable.
consideration;
6) To make gifts, except customary ones for Q. A special power to sell excludes the power
charity or those made to employees in the to mortgage; and a special power to mortgage
business managed by the agents; does not include the power to sell. (Art. 1879.
7) To loan or borrow money, unless the latter’s NCC). Give examples of acts included in a
act be urgent and indispensable for the power to sell.
preservation of the things which are under
administration; ANS.
8) To lease any real property to another person a) To find a purchaser or to sell directly;
for more than one year; b) To deliver the property;
9) To bind the principal to render some service c) To make the usual representation and
without compensation; warranty;
10) To bind the principal in a contract of d) To execute the necessary transfer documents;
partnership; e) To fix the terms of the sale unless there be set
11) To obligate the principal as guarantor or conditions stipulated by the principal;
surety; f) To sell only for cash;
12) To create or convey real rights over g) To receive the price unless he was authorized
immovable property; only to solicit orders.
13) To accept or repudiate an inheritance;
14) To ratify or recognize obligations
contracted before the agency;
15) Any other act of strict dominion. (Art. 1878,
NCC)

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Q. What acts are not included in the power to b) Where the limitation upon the power
mortgage by the agent? created by the principal could not have
been known by the 3rd person.
ANS. The power to: c) Where the principal has placed in the
1) Sell; hands of the agent instruments signed
2) Execute a second mortgage; by him in blank.
3) Mortgage for the agent’s personal benefit or d) Where the principal has ratified the acts
for the benefit of any third person, unless the of the agent.
contrary has been clearly indicated. 2) Latter acts within the scope of his authority
but in his own name
Does the principal have the power to revoke a Exception: when the transaction involves a
contract giving an agent exclusive authority to thing belonging to the principal (Art. 1883,
sell? NCC)

ANS. Yes, but he may not have the right to use Obligations of The Agent
such power if he has agreed not to exercise such
power during a certain period. Q. What are the general obligations of the
agent to the principal?
Q. When is the principal bound by the act of
the agent? ANS.
1) To act with utmost good faith and loyalty for
ANS. furtherance of principal’s interests
1) Agent acts within the scope of his authority; 2) To obey all lawful orders and instructions of
2) Agent acts in behalf of the principal. (Art. principal within the scope of the agency
1881, NCC) 3) To exercise reasonable care, skill and
diligence
NOTE: The limits of the agent’s authority shall
not be considered exceeded should it have been Q. What are the specific obligations of the
performed in a manner more advantageous to agent to the principal?
the principal than that specified by him. (Art.
1882, NCC) ANS.
1) To carry out the agency which he has
Q. When is a person not bound by act of accepted (Art. 1884, NCC)
another? 2) To answer for damages which through his
performance the principal may suffer (Art.
ANS. 1884, NCC)
1) Latter acts without or beyond the scope of his 3) To finish the business already begun on the
authority in the former’s name death of the principal should delay entail any
Exceptions: danger (Art. 1884, NCC)
a) Where the acts of the principal have 4) To observe diligence of a good father of a
contributed to deceive a 3rd person in family in the custody and preservation of the
good faith. goods forwarded to him by the owner in case

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 CIVIL LAW

he declines an agency, until an agent is principal at the time that they become due
appointed (Art. 1885, NCC) (Art. 1908, NCC)
5) To advance the necessary funds should there 17) To be responsible for fraud or negligence
be a stipulation to do so (Art. 1886, NCC) (Art. 1909, NCC)
6) To act in accordance with the instructions of
the principal, and in default thereof, to do all Q. What are the effects of an agent’s acts?
that a good father of a family would do (Art.
1887, NCC) ANS.
7) Not to carry out the agency if its execution 1) With Authority
would manifestly result in loss or damage to a) in principal’s name – valid; principal is
the principal (Art. 1888, NCC) bound; agent not personally liable
8) To answer for damages if there being a unless he bound himself (Art. 1897,
conflict between his interest and those of the NCC)
principal, he should prefer his own (Art. b) in his own name – not binding on the
1889, NCC) principal; agent and stranger are the
9) Not to loan to himself if he has been only parties
authorized to lend money at interest (Art. Exceptions:
1890, NCC) i. thing belongs to the principal; or
10) To render an account of his transactions and principal ratifies the contract or
to deliver to the principal whatever he may derives benefit therefrom.
have received by virtue of the agency (Art. 2) Without Authority
1891, NCC) a) in principal’s name – unauthorized and
11) To be responsible in certain cases for the unenforceable but may be ratified (Art.
acts of the substitute appointed by him (Art. 1407, NCC)
1892, NCC) b) in his own name – valid, whether or not
12) To pay interest on funds he has applied to the subject matter belongs to the
his own use (Art. 1896, NCC) principal, provided that at the time of
13) To distinguish goods by countermarks and delivery, the “agent” can transfer
designate the merchandise respectively legally the ownership of the thing.
belonging to each principal, in the case of a Otherwise, he will be held liable for
commission agent who handles goods of the breach of warranty against eviction.
same kind and mark, which belong to
different owners (Art. 1904, NCC) Q. When is the principal not bound by the acts
14) To inform the principal, where an of the agent?
authorized sale of credit has been made, of
such sale (Art. 1906, NCC) ANS. The principal is not bound by the acts of
15) To bear the risk of collection, should he the agent beyond his limited powers.
receive also on sale, a guarantee commission Exceptions:
(Art. 1907, NCC) 1) Where the principal’s acts have contributed
16) To indemnify the principal for damages for to deceive the third person in good faith;
his failure to collect the credits of his

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 CIVIL LAW

2) Where the limitations upon the power 2) Agent’s duty is not to disclose the
created by him could not have been known information (confidential information)
by the third person; 3) Where the person claiming the benefit of the
3) Where the principal has placed in the hands rule colludes with the agent to defraud the
of the agent instruments signed by him in principal
blank (Strong vs. Gutierrez Repide 6 Phil 680
(1906)) Q. Who is a sub-agent?
4) Where the principal has ratified the acts of
the agent. ANS. A person to whom the agent delegates, as
his agent, the performance of an act for the
Q. What is the doctrine of agency by necessity? principal which the agent has been empowered
to perform through his representative.
ANS. By virtue of the existence of an
emergency, the authority of an agent is NOTE: The agent may appoint a substitute if
correspondingly enlarged in order to cope with the principal has not prohibited him from doing
the exigencies or the necessities of the moment. so. (Art. 1892, NCC)

Q. What are the requisites of the doctrine of Q. When shall an agent be responsible for the
agency by necessity? acts of the substitute?

ANS. ANS.
1) Real existence of an emergency 1) When he was not given the power to appoint
2) Inability of the agent to communicate with one;
the principal 2) When he was given such power, but without
3) Exercise of the additional authority for the designating the person, and the person
principal’s own protection appointed was notoriously incompetent or
4) Adoption of fairly reasonable means, insolvent.
premises duly considered All acts of the substitute appointed against the
prohibition of the principal shall be void. (Art.
NOTE: Agency can never be created by 1892, NCC)
necessity; what is created is additional authority
in an agent appointed and authorized before the Q. Who are joint agents?
emergency arose.
ANS. They are agents appointed by one or more
Q. As a general rule, knowledge of an agent is principals under such circumstances as to
knowledge of principal. What are the induce the inference that it was the principal’s
exceptions? intent that all should act in conjunction in
consummating the transaction for which they
ANS. were appointed. Their responsibility is joint,
1) Agent’s interests are adverse to those of the except if solidarity has been expressly
principal stipulated. (Art. 1894, NCC)

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 CIVIL LAW

Q. When may an agent incur personal liability damage or deterioration suffered by the same
with whom he contracts? in the terms and conditions and as described
in the consignment. (Art. 1903, NCC)
ANS. 2) The commission agent who handles goods of
1) When the agent expressly binds himself (Art. the same kind and mark, which belong to
1897, NCC); different owners, shall distinguish them by
2) When agent exceeds his authority without countermarks, and designate the
giving such party sufficient notice of his merchandise respectively belonging to each
powers (Art. 1897, NCC); principal. (Art. 1904, NCC)
3) When agent by his acts prevents performance 3) A commission agent can sell on credit only
on the part of the principal; with the express or implied consent of the
4) When a person acts as an agent without principal. (Art. 1905, NCC) If such sale is
authority or without a principal; made without authority, the principal is
5) A person who acts as an agent of an given two alternatives:
incapacitated principal unless the third party a) He may require payment in cash, in
was aware of the incapacity at the time of the which case any interest or benefit from
making of the contract. the sale on credit shall belong to the
agent since the principal cannot be
Q. What is the effect if the agent contracts in allowed to enrich himself at the agent’s
the name of the principal, exceeding the scope expense;
of his authority, and the principal does not b) He may ratify the sale on credit in
ratify the contract? which case it will have all the risks and
advantages to him.
ANS. It shall be VOID if the party with whom 4) If the commission agent is authorized to sell
the agent contracted is aware of the limits of the on credit, he shall inform the principal with a
powers granted by the principal. However, the statement of the names of the buyers. With
agent is liable if he undertook to secure the such statement, the sale shall be deemed to be
principal's ratification. (Art. 1898, NCC) for cash as far as the principal is concerned.
(Art. 1906, NCC)
Q. Who is a factor or commission agent? 5) The commission agent who does not collect
the credits of his principal at the time when
ANS. He is one engaged in the purchase and they become due and demandable shall be
sale for a principal of personal property, which liable for damages, unless he proves the
for this purpose, has to be placed in his exercise of due diligence for that purpose.
possession and at his disposal. (Art. 1908, NCC)

Q. What are the obligations of a commission

agent?

ANS.
1) If the commission agent received goods
consigned to him, he is responsible for any

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 CIVIL LAW

Obligations of The Principal the agent if the former allowed the latter to act
as though he had full powers.
Q. What are the general obligations of the
principal to the agent? Q. Who are joint principals?

ANS. Duties and liabilities of the principal are ANS. Two or more persons who appoint an
primarily based upon the contract and the agent for a common transaction or undertaking.
validity of the contract between them
Q. What is the liability of joint principals?
Q. What are the specific obligations of the
principal to the agent? ANS. If two or more persons have appointed an
agent for a common transaction or undertaking,
ANS. CARIP they shall be SOLIDARILU liable to the agent
1) To comply with all the obligations which the for all the consequences of the agency.
agent may have contracted within the scope
of his authority and in the name of the Q. What are the rules on double sale by the
principal (Art. 1910, NCC) principal and agent?
2) To advance to the agent, should the latter so
request, the sums necessary for the execution ANS.
of the agency (Art. 1912, NCC) 1) When two persons contract with regard to
3) To reimburse the agent for what the latter has the same thing, one of them with the agent
advanced (plus interest), even if the business and the other with the principal, and the two
was not successful, provided the agent was contracts are incompatible with each other,
free from fault (Art. 1912, NCC) that of prior date shall be preferred, without
4) To indemnify the agent for all the damages, prejudice to Art. 1544.
which the execution of the agency may have 2) If the agent has acted in good faith, the
caused the latter without fault or negligence principal shall be liable in damages to the
on his part (Art. 1913, NCC) third person whose contract must be rejected.
If the agent is in bad faith, he alone shall be
NOTE: The agent may retain in pledge the responsible.
things which are the object of the agency until
the principal effects this reimbursement and Q. When is the principal not liable for the
pays the indemnity. expenses incurred by the agent?
5) To pay the agent the compensation agreed
upon, or if no compensation was specified, ANS. The principal is not liable for the expenses
the reasonable value of the agent’s services incurred by the agent in the following cases:
(De Leon) 1) If the agent acted in contravention of the
principal's instructions, unless the latter
Q. When is the estoppel by principal? should wish to avail himself of the benefits
derived from the contract;
ANS. Even when the agent has exceeded his 2) When the expenses were due to the fault
authority, the principal is solidarily liable with of the agent;

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 CIVIL LAW

3) When the agent incurred them with 3) If a partner is appointed manager of a

knowledge that an unfavorable result partnership and his termination is
would ensue, if the principal was not unjustifiable (Art. 1927, NCC); and
aware thereof; 4) If it is created not only for the interest of the
4) When it was stipulated that the expenses principal but also for the interest of third
would be borne by the agent, or that the persons, who have accepted the stipulation in
latter would be allowed only a certain their favor.
sum. (Art. 1918, NCC)
Q. How shall an agent withdraw from the
Modes of Extinguishment of Agency agency?

Q. What are the modes of extinguishing a ANS.

contract of agency? 1) With just cause –
 His withdrawal is based upon the
ANS. EDWARD impossibility of continuing the
1) Expiration of the period performance of the agency;
2) Death, civil interdiction, insanity or  He must continue to act until the
insolvency of the principal or of the agent principal has had reasonable
3) Withdrawal of the agent – agent may opportunity to take the necessary
withdraw by giving notice to the principal, steps to meet the situation. (Art.
but must indemnify the principal for 1929, NCC)
damages that he may suffer by reason of such 2) Without just cause
withdrawal.  He shall indemnify the principal
4) Accomplishment of the object or the purpose should the latter suffer any
of the agency damage by reason of such
5) Revocation withdrawal. (Art. 1928, NCC)
NOTE: Revocation may either be express or In both cases, the agent shall notify the
implied (Art. 1920, NCC) principal. (Art. 1928, NCC)
6) Dissolution of the firm or corporation, which
entrusted or accepted the agency. (Art. 1919, Q. What are the instances when death of
NCC) principal does not terminate agency?

Q. Agency is revocable at will of the principal, ANS.

regardless of the term of the agreement. What 1) If the agency has been constituted in the
are the exceptions? common interest of the principal and the
agent;
ANS. 2) If it has been constituted in the interest of a
1) If a bilateral contract depends upon it; third person who has accepted the
2) If it is the means of fulfilling an obligation stipulation in his favor. (Art. 1930, NCC)
already contracted; NOTE: Anything done by the agent, without
knowledge of the death of the principal or of
any other cause which extinguishes the agency,

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is valid and shall be fully effective with respect

to third persons who may have contracted with Q. What are the elements of a valid
him in good faith. (Art. 1931, NCC) compromise?
Q. When is there implied revocation may of
agency? ANS.
1) The consent of the parties to the compromise;
ANS. 2) An object certain that is the subject matter of
1) By the act of the principal in appointing the compromise; and
another agent for the same business or 3) The cause of the obligation that is
transaction (Art. 1923, NCC); established. (Magbanua v. Uy, GR 161003,
2) By the act of the principal in directly May 6, 2005)
managing the business entrusted to the agent
(Art. 1924, NCC); or Q. What are the effects of a compromise?
3) By the act the principal in subsequently
granting a special power of attorney as ANS.
regards the same business to another agent, 1) Suspension of civil action or proceeding:
where he had previously granted a general a) If willingness to discuss a possible
power of attorney to one agent (Art. 1926, compromise is expressed by one or both
NCC). parties; or
b) If it appears that one of the parties,
Q, When two or more principals appointed the before the commencement of the action
agent, who can revoke the agency? or proceeding, offered to discuss a
possible compromise but the other
ANS. When two or more principals have party refused the offer. (Art. 2030, NCC)
granted a power of attorney for a common 2) Effect and authority of res judicata upon the
transaction, any one of them may revoke the parties; but there shall be no execution except
same without the consent of the others (Art. in compliance with a judicial compromise.
1925, NCC). (Art. 2037, NCC)

D. COMPROMISE Q. What can be the objects of a compromise?

Q. Define compromise. ANS.

1) those definitely stated in the compromise; or
ANS. A compromise is a contract whereby the 2) those by necessary implication from its terms
parties, by making reciprocal concessions, avoid should be deemed to have been included
a litigation or put an end to one already *A general renunciation of rights is understood to
commenced. (Art. 2028, NCC) It may either be refer only to those that are connected with the dispute
extrajudicial (to prevent litigation) or judicial (to which was the subject of the compromise. (Art. 2036,
end a litigation). (Abinujar v. CA, 313 Phil. 407, NCC)
413, April 18, 1995)

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Q. What are the roles of the court in a 5) The jurisdiction of courts;

compromise? 6) Future legitime. (Art. 2035, NCC)

ANS. Q. When is a compromise voidable?

1) Endeavor to persuade the litigants in a civil
case to agree upon some fair compromise ANS. A compromise where there is mistake,
(Art. 2029, NCC) fraud, violence, intimidation, undue influence,
2) (May) mitigate the damages to be paid by the or falsity of documents is voidable. However,
losing party who has shown a sincere desire one of parties cannot set up a mistake of fact as
for a compromise (Art. 2031, NCC) against the other if the latter, by virtue of the
3) Approve compromises entered into by compromise, has withdrawn from a litigation
guardians, parents, absentee's already commenced. (Art. 2038, NCC)
representatives, and administrators or
executors of decedent's estates (Art. 2032, Q. When is a compromise annullable or
NCC) rescissible?

Q. When may juridical persons be allowed to ANS.

compromise? 1) Discovery of documents referring to one or
more but not to all of the questions settled in
ANS. Juridical persons may compromise only in a compromise:
the form and with the requisites which may be a) When the said documents were
necessary to alienate their property. (Art. 2033, concealed by one party; or
NCC) b) If compromise refers only to one thing
to which one of the parties has no right,
Q. Is compromise allowed in criminal as shown by the newly-discovered
offenses? documents (Art. 2039, NCC)
2) When either or both parties are unaware of
ANS. There may be a compromise ONLY upon the existence of the final judgment (may be
the civil liability arising from an offense; but rescinded) (Art. 2040, NCC)
such compromise shall not extinguish the
public action for the imposition of the legal Q. What is the remedy if one of the parties fails
penalty. (Art. 2034, NCC) or refuses to abide by the compromise?

Q. When is a compromise void? ANS. The other party may:

a) Enforce the compromise; OR
ANS. No compromise upon the following Regard the compromise as rescinded and insist
questions shall be valid: upon his original demand. (Art. 2041, NCC)
1) The civil status of persons;
2) The validity of a marriage or a legal
separation;
3) Any ground for legal separation;
4) Future support;

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E. LOAN Q. Distinguish mutuum from commodatum.

ANS. (Paras)
1. Loan
MUTUUM COMMODATUM
Equivalent Same thing to be
Q. Distinguish contract of loan from contract
amount to be returned (subject
to loan.
returned (subject matter is
matter is fungible) nonfungible)
ANS. A contract of loan is a real contract
perfected by delivery of the object of the May be gratuitous Essentially
contract. While a contract to loan is a consensual or onerous gratuitous
contract perfected by mere consent. Ownership goes Ownership
to borrower or retained by lender
Q. What are the kinds of loan? bailee or bailor
Personal property May involve real
ANS. only and personal
1) Commodatum – a contract where one property
party delivers to another something not Referred to as Referred to as loan
consumable so that the latter may use the loan for for use or
same for a certain time and return it. (Art. consumption temporary
1933, NCC) possession
2) Mutuum (Simple Loan) – a contract where Borrower, Lender, because of
one party delivers to another, money or because of his his ownership,
other consumable thing, upon the ownership, bears bears risk of loss
condition that the same amount of the risks of loss
same kind and quality shall be paid. (Art. Can be generallyWhile generally
1933, NCC) obliged to pay obliged to return
only at end of object at end of
Q. What is the cause or consideration in a period period, still in
contract of loan? some cases the
return can be
ANS. demanded even
1) As to the borrower  the acquisition of the before the end of
thing; the period
2) As to the lender  the right to demand its Not personal in Personal in
return or its equivalent. character character

Q. What is the object of a contract of loan?

1) Commodatum  The object is generally

not consumable;
2) Mutuum  The object is consumable.

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 CIVIL LAW

1) Ordinary commodatum – the use of the

2. Commodatum thing by the bailee is for a certain period of
time (Art. 1933, NCC), hence, the bailor
cannot just demand the return of the thing
Nature
at will, because there is a period agreed
upon by the parties.
Q. What is commodatum?
2) Precarium – One whereby the bailor may
demand the thing loaned at will in the
ANS. Commodatum is a contract where one of
following cases:
the parties (bailor) delivers to another (bailee)
a) If the duration and purpose of the
something not consumable so that the latter
contract had not been stipulated;
may use the same for a certain time and
b) If the use of the thing is merely by
thereafter returns the identical thing.
tolerance of the owner (Art. 1947,
NCC).
Q. What are the characteristics of a contract of
commodatum?
Q. May consumable goods be the subject of a
commodatum?
ANS. RUG TPP
1. Real contract – The delivery of the thing
ANS. Yes. Consumable goods may be the
loaned is necessary for the perfection of the
subject of commodatum if the purpose of the
contract;
contract is not the consumption of the object, as
2. Unilateral contract – once subject matter is
when it is merely for exhibition. (Art. 1936,
delivered, it creates obligations on the part of
NCC)
only one of the parties;
3. Essentially gratuitous;
Q. What may be an object of commodatum?
4. Purpose is to transfer the temporary use of the
thing loaned;
ANS. Movable or immovable property may be
5. Principal contract;
the object of commodatum. (Art. 1937, NCC)
6. Purely personal contract. (Art. 1939, NCC)

Q. Who may be a bailor in commodatum?

Q. Who are the parties in a commodatum?

ANS. Anyone. The bailor in commodatum need

ANS.
not be the owner of the thing loaned (Art. 1938,
1) Bailor (creditor): the giver/ lender – the
NCC], but as against the bailee, the bailor
party who delivers the possession or
retains ownership of the thing loaned.
custody of the thing bailed;
2) Bailee (debtor): The recipient/ borrower;
Q. What is the effect of death in a contract of
the party who receives
commodatum?
the possession or custody of the thing
delivered.
ANS. The death of either the bailor or the bailee
extinguishes the contract. (Art. 1939(1), NCC)
Q. What are the kinds of commodatum?

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Exception: By stipulation, the commodatum is accomplishment of the use for which it has
transmitted to the heirs of either or both party. been constituted. (Art. 1944, NCC)
Exception: Bailee has right of retention for
Q. Who may use the property loaned? damages when the bailor who, knowing
the flaws of the thing loaned, does not
ANS. advise the bailee of the same. (Art. 1944,
General rule: The bailee acquires permissive use NCC)
of the thing loaned only for himself. He may not 4) Not to lend the thing to a third person who
lend nor lease the thing loaned to him to a third is not a member of his household. (Art.
person. 1942(4), NCC)
Exception: The members of the bailee’s 5) Bear equally (with the bailor) the
household may make use of the thing loaned extraordinary expenses arising on the
Exceptions to the exception: occasion of actual use of the thing by the
1) If there is a stipulation to the contrary, or bailee even though bailee acted without
2) The nature of the thing forbids such use. fault. (Art. 1949, NCC)
(Art. 1939(2), NCC) Exception: Contrary stipulation
6) Solidarily liable when there are two or
Q. Who has the right to the use of fruits of the more bailees to whom a thing is loaned in
property in a commodatum? the same contract. (Art. 1945, NCC)
ANS. 7) Pay for the ordinary expenses for the use
General rule: The bailee in commodatum and preservation of the thing loaned. (Art.
acquires only the use of the thing loaned but not 1941, NCC)
its fruits (Art. 1935, NCC)
Exception: A stipulation that the bailee may
make use of the fruits of the thing loaned is Obligations of The Bailor
valid. (Art. 1940, NCC)
Q. What are the obligations of the bailor?

Obligations of The Bailee ANS. ARD

1) Allow the bailee the use of the thing
Q. What are the obligations of a bailee? loaned for the duration of the period
stipulated or until the accomplishment of
ANS. TURN BSP the purpose (Art. 1946, NCC)
1) Take care of the thing loaned with the 2) Refund the extraordinary expenses the
proper diligence of a good father of a bailee incurred for the preservation of the
family. (Art. 1163, NCC) thing
2) Use the thing loaned only for the purpose General Rule: The bailee must bring to the
for which it was loaned and not for any knowledge of the bailor such expenses
other purpose. (Art. 1935, 1942(1), NCC) before incurring the same.
3) Return the thing upon the expiration of the Exception: In case there is urgency and
period stipulated or after the delay would cause imminent danger.

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If the extraordinary expenses arise on the b) If the bailee imputes to the bailor any
occasion of the actual use of the thing criminal offense, or any act involving
loaned by the bailee, the expenses shall be moral turpitude, even though he
borne by the bailor and bailee equally, should prove it, unless the crime or
even though the bailee is without fault the act has been committed against
(Art. 1949, NCC) the bailee, his wife or children under
3) Be liable for damages suffered by the his authority; or
bailee, knowing the flaws of the thing c) If the bailee unduly refuses the bailor
loaned, does not advise the bailee of the support when the bailee is legally or
same (Art. 1951, NCC) morally bound to give support to the
bailor.
Q. Can the bailor abandon the thing to the
bailee to exempt himself from payment of 3. Simple loan
expenses or damages?
Q. What is mutuum or simple loan?
ANS. No. The bailor cannot exempt himself
from the payment of expenses or damages by ANS. Mutuum is a contract where one of the
abandoning the thing to the bailee. (Art. 1952, parties (lender) delivers to another (borrower)
NCC) money or other consumable thing upon the
condition that the same amount of the same
Q. Can the bailor demand the return of the kind and quality shall be paid. (Art. 1953, NCC)
thing loaned?
Q. What are the obligations of the borrower?
ANS.
General Rule: The return of the thing loaned ANS.
may be demanded by the bailor only 1) Pay the creditor an equal amount of the
a) after the expiration of the period same kind and quality. (Art. 1953, NCC)
stipulated; or 2) Pay value of the same kind, quantity and
b) after the accomplishment of the use for quality, even if it should change in value,
which it is constituted. at the time of perfection of loan, if
Exceptions: impossible, to deliver the same kind. (Art.
1) In case of urgent need by the bailor; 1955, NCC)
2) In case of precarium 3) Pay interest, if stipulated. (Art. 1956, CC)
3) If the bailee commits an act of ingratitude
specified in Art. 765 to the bailor(Art. 1948, Q. What are the rights of the borrower?
NCC), to wit:
a) If the bailee should commit some 1) Right of ownership upon receipt of the
offenses against the person, honor or loan of money or any fungible thing, the
the property of the bailor, or his wife person acquires ownership of the
or children under his parental money/fungible thing (Art. 1953, NCC)
authority; 2) Right to not pay interest, unless stipulated
(Art. 1956, CC)

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3) The interest must be lawful.

Q. What are the obligations of the lender?

ANS. The lender is barred from placing a. Conventional interest

stipulations under any cloak or device that
circumvent laws on usury. (Art. 1957, NCC) Q. What is meant by conventional interest?

Q. What are the rights of the lender? ANS. Conventional interest or simple interest is
1) Right to receive an equal amount of the the interest paid for the principal at a certain
same kind and quality (Art. 1953, NCC) rate fixed or stipulated by the parties.
2) Right to impose interest, if stipulated (Art.
1959, NCC)
b. Interest on interest
4. Interests on loan
Q. What is meant by interest on interest?
Q. What is interest?
ANS. Interest on interest or compound interest
ANS. It is the compensation to be paid by the is the interest imposed when interest due and
borrower for the use of the money lent to him unpaid is capitalized or added to the principal.
by the lender. (Art. 1959, NCC)

Q. What are the requisites for recovery of Q. When is compound interest allowed?
interest?
a) When there is an express written
ANS. stipulation to that effect; or
1) The payment of interest must be expressly b) Upon judicial demand.
stipulated (Art. 1956, NCC) NOTE: Debtor is not liable to pay compound
Exceptions: interest even after judicial demand when
a) The debtor in delay is liable to pay there is no stipulation for payment of
legal interest (6% per annum) as interest. (Art. 2212, NCC)
indemnity for damages (Art. 2209,
NCC)
b) Interest accruing from unpaid c. Compensatory, penalty or indemnity interest
interest –
i. Interest demanded shall earn Q. What is legal interest?
interest from the time it is
judicially demanded (Art. 2212, ANS. It is the rate of interest fixed by law or
NCC); or regulation that will be followed where there is a
ii. Where there is an express written agreement that interest will be paid or
stipulation (Art.1959, NCC) when the law or rule provides for payment of
2) The agreement to pay interest must be in interest, but the rate is not stipulated.
writing (Art.1956, NCC)

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 CIVIL LAW

NOTE: The legal rate is 6% per annum for loans b) Interest due on the principal amount
or forbearance of money, goods or credit under accruing as of judicial demand shall
BSP Circular No. 799, Series of 2013 that took SEPARATELY earn legal interest, from
effect on July 1, 2013. the time of judicial demand.
3. When the judgment of the court awarding a
Q. What is the nature of surcharge and penalty sum of money becomes final and executory:
stipulated in a loan agreement?  The rate of legal interest, whether the
case falls under par. 1 or par. 2, shall be
ANS. Also referred to as penalty clause, it 6% per annum from such finality until
partakes the nature of liquidated damages, and its satisfaction. (Lara’s Gifts & Decors,
is separate and distinct from interest payment. Inc. v. Midtown, GR 225433, August 28,
2019)
Q. What are the rules for the award of interest
in the concept of actual and compensatory
damages in loan and forbearance? d. Finance charges

ANS. With regard to an award of interest in the Q. What is finance charge?

concept of actual and compensatory damages,
the rate of interest, as well as the accrual thereof, ANS. Finance charge represents the amount to
is imposed, as follows: be paid by the debtor incident to the extension
1) When the obligation is breached, and it of credit such as interest or discounts, collection
consists in the payment of a sum of money: fees, credit investigation fees, attorney’s fees,
a) The interest due shall be that which is and other services.
stipulated in writing, which, in the The total finance charge represents the
absence of a stipulated reckoning date, difference between:
shall be computed from extrajudicial or 1) The aggregate consideration (down
judicial demand. payment plus installment) on the part of
b) If expressly stipulated by parties, the debtor; and
interest due shall itself earn interest 2) The sum of the cash price and non-
from the time it is judicially demanded. finance charges. (Sps. Silos v. PNB, GR
c) In the absence of stipulation, the rate of 181045, July 2, 2014)
interest shall be 6% per annum to be Under the Philippine Credit Card Industry
computed from default. Regulation Law, finance charges and other fees
2) In the absence of stipulated interest, arising from nonpayment in full or on time of
a) the rate of interest on the principal the outstanding balance shall be based on the
amount shall be 6% per annum which unpaid amount of the outstanding balance.
shall be computed from default,
without compounding any interest Q. How is finance charge imposed by credit
unless compounded interest is card issuers?
expressly stipulated by law or
regulation. ANS. They shall only charge interest or finance
charges arising from the non-payment in full or

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on time of the outstanding balance based on the F. DEPOSIT

unpaid amount of the outstanding balance as of
statement cut-off date, but excluding: Q. What is deposit?
a) the current billing cycle's purchase
transactions reckoned from the previous ANS. Deposit is a contract whereby a person
cycle's statement cut-off date; and (depositor) delivers a thing to another
b) deferred payments under zero-interest (depositary), for the principal purpose of
installment arrangements which are not safekeeping it, with the obligation of returning
yet due it when demanded. (Pineda)

e. Usury Q. When is deposited perfected?

Q. What is a usurious interest? ANS. A deposit, being a real contract, is

perfected by delivery (Art. 1316, NCC), but an
ANS. Usurious interest is the interest paid or agreement to constitute a deposit is merely
stipulated to be paid beyond the maximum consensual, and is therefore binding upon mere
fixed by law. consent. (Art. 1963, NCC).

NOTE: CB Circular No. 905 abolished interest Q. What is the purpose of deposit?
rate ceilings rendering usury “legally
inexistent” as the parties can now legally agree ANS. The principal purpose of a deposit is the
on any interest that may be charged on the loan. safekeeping of the thing delivered. If
The circular did not authorize either party to safekeeping is NOT the principal purpose, or is
unilaterally raise the interest rate without the only an accessory obligation, there is NO
other’s consent. DEPOSIT but some other contract. (Art. 1962,
NCC)
Q. What are the elements of usury?
Q. What are the kinds of deposit?
ANS.
1) A loan or forbearance of money ANS.
2) An understanding between parties that 1) Judicial (sequestration) — obligation
the loan shall and may be returned arises as a consequence of a law allowing
3) An unlawful Intent to take more than the the issuance of a judicial order constituting
legal rate for the use of money or its a deposit
equivalent 2) Extrajudicial —
4) The Taking or agreeing to take for the use a) voluntary — made by the will of the
of the loan of something in excess of what depositor. (Art. 1968, NCC); obligation
is allowed by law. arises as a consequence of contract
b) necessary —
i. made in compliance with a legal
obligation (Art. 1966, NCC).

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 CIVIL LAW

ii. on the occasion of a calamity. (Art. 1996, business of storing goods. (Art. 1965,
NC). NCC).
c) made by travelers in hotels or inns. (Art. 6) The contract is either unilateral or
1998, NCC) bilateral, according to whether it is
d) made by travelers with common carrier. gratuitous or compensated (onerous).
(Art. 1736, NCC).
Q. What are the obligations of a depositary in
Q. How is deposit extinguished? a voluntary deposit?

ANS. ANS.
1) Loss or destruction of thing deposited; or 1) Keep the thing safely and return it, when
2) In case of a gratuitous deposit, upon the required, to the depositor, or to his heirs
death of either the depositor or depositary and successors, or to the person who may
(Art. 1995, NCC). have been designated in the contract (Art.
NOTE: The depositary is not obliged to 1972, NCC), together with all its products,
continue with the contract of deposit accessories and accessions. (Art. 1983,
3) By other modes provided in the Civil NCC) at the place designated when
Code, e.g., novation, merger, etc. deposit was made or where the thing may
be if no place is designated for the return
Q. What are the characteristics of deposit? (Art. 1987, NCC)

ANS. Exception to return on demand: There is

1) It is a real contract perfected by delivery. no obligation to return on demand
(Art. 1316, NCC). Nonetheless, there can a) when the thing is judicially attached
be consensual contract to make or to while in the depositary’s possession;
constitute a deposit. (Art. 1963, NCC) or
2) The principal purpose is the safekeeping b) when depositary is notified of the
of the thing delivered. (Art. 1962, NCC) opposition of a third person (Art.
3) The depositary cannot use the thing 1988, NCC)
deposited except: 2) Bear the expenses for preservation of the
a) with the express permission of the thing deposited if the deposit is onerous
depositor; or (Art. 1992, CC)
b) when the preservation of the thing 3) Exercise same diligence as he would
deposited requires its use [but then it exercise over his own property
must be used only for that purpose. 4) Not to deposit the thing with a third
(Art. 1977, NCC) person.
4) Only movable things can be the object of a Exceptions:
deposit. (Art. 1966, NCC). a) When expressly authorized by
5) It is a gratuitous contract, except when stipulation; and
there is an agreement to the contrary or b) When the preservation of the thing
unless the depositary is engaged in the requires its use (Art. 1977, NCC).

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 CIVIL LAW

5) Not to commingle things unless so 1) Loss is through his fault or negligence

stipulated to commingle grain or other (Art. 1170, NCC) or the negligence of his
articles of the same kind and quality (Art. employee (Art. 1973), even if the thing was
1976, NCC) insured (Art. 2207, NCC);
6) Not to make use of the thing deposited; 2) Loss while in his possession, ordinarily
Exceptions: raises presumption of fault on his part.
a) When preservation of thing 3) Loss arose from the character of the thing
deposited requires its use; deposited, and the depositary was notified
b) When authorized by depositor. of, or was aware of such character at the
NOTE: This will now be a contract of time of the constitution of the deposit (Art.
loan, unless the principal reason of 1993, NCC)
the contract remains to be 4) Loss is through a fortuitous event, and if
safekeeping. a) It is stipulated that depositary will be
7) When the thing deposited is delivered liable;
sealed and closed: b) Depositary uses the thing without
a) Return the thing in the same depositor’s permission;
condition; c) Depositary delays its return; or
b) Pay damages if seal be broken d) Depositary allows others to use it.
through his fault; and (Art. 1979, NCC)
c) Keep the secret of the deposit when 5) Loss when depositary uses the thing
seal is broken with or without his Exception: Use with permission or for
fault (Art. 1981, NCC). preservation
8) Pay for any loss or damage that may arise 6) Loss when depositary deposits the thing
due to his fault; with a Third person
Exception: if deposit with a third person is
Q. When is the depositary presumed allowed Exception to the exception: if such
authorized to open a locked box or receptacle? third person is manifestly careless or unfit
(Art. 1973, NCC);
ANS. When it becomes necessary to open a 7) Loss occurs and the depositary receives
locked box or receptacle, the depositary is money/replacement, he must deliver such
presumed authorized to do so, to the depositor (Art. 1990, NCC)
a) if the key has been delivered to him; or
b) when the instructions of the depositor as Q. What are the obligations of a depositor?
regards the deposit cannot be executed
without opening the box or receptacle. ANS.
(Art. 1982, NCC) 1) Depositor is obliged to reimburse the
depositary for expenses incurred for
Q. The depositary is not liable in the event of preservation in a gratuitous deposit.
loss. What are the exceptions? (Art.1992, NCC)
2) Depositor is obliged to pay losses incurred
ANS. due to the character of thing deposited.
(Art. 1993, NCC)

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 CIVIL LAW

Exceptions: 1) When it is made in compliance with a legal

a) Depositor was not aware nor expected to obligation;
know of the dangerous character of the
thing; 2) When it takes place on the occasion of any
b) Depositor notified the depositary of such calamity, such as fire, storm, flood, pillage,
dangerous character; shipwreck, or other similar events. (Art.
c) Depositary was aware of the danger 1996, NCC)
without advice from the depositor.
Q. What are the requisites before keepers of
Q. When there are two or more depositors, can hotels or inns may be held responsible as
one demand the whole thing deposited? depositaries?

ANS. No. When there are two or more ANS. Before keepers of hotels or inns may be
depositors, if they are not solidary, and the held responsible as depositaries with regard to
thing admits of division, each one cannot the effects of their guests, the following must
demand more than his share. concur:
Exception: If there is a stipulation that the thing 1) Keepers or their employees have
should be returned to one of the depositors, the previously been informed about the effects
depositary shall return it only to the person brought by the guests; and
designated. (Art. 1985, NCC) 2) The latter have taken the precautions
prescribed regarding their safekeeping.
Q. If the depositor should lose his capacity to (Art. 1998, NCC)
contract after having made the deposit, to
whom shall the thing be returned? Q. The deposit of effects made by the
travelers in hotels or inns shall also be
ANS. If the depositor should lose his capacity to regarded as necessary. When shall keepers of
contract after having made the deposit, the hotels or inns be held responsible for them as
thing cannot be returned except to the persons depositaries?
who may have the administration of his
property and rights. (Art. 1986, NCC) ANS. The keepers of hotels or inns shall be held
responsible for loss of thing in case of deposit
Q. Can the depositary retain the thing? when both are present:
1) They have been previously informed by
ANS. Yes. The depositary may retain the thing guest about the effects the latter brought
until the full payment of what may be due him in; and
by reason of the deposit (Art. 1994, NCC) 2) The guest has taken precautions
prescribed for their safekeeping. (Art.
1998, NCC)
Q. When is deposit considered necessary?
Q. When is the hotel-keeper liable to the
ANS. A deposit is necessary: depositor regardless of the amount of care
exercised?

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ANS. Regardless of the amount of care ANS. Yes. The hotel-keeper has a right to retain
exercised, the hotel-keeper is liable when— the things brought into the hotel by the guest, as
1) The loss or injury to personal property is a security for credits on account of—
caused by his servants or employees as a) lodging,
well as by strangers (Art. 2000, NCC) b) supplies usually furnished to hotel guests
2) The loss is caused by the act of a thief or (Art. 2004, NCC).
robber done without the use of arms and
irresistible force. (Art. 2001, NCC) Q. When does judicial deposit take place?

Q. When is the hotel-keeper NOT liable to the ANS. A judicial deposit or sequestration takes
depositor? place when an attachment or seizure of property
in litigation is ordered. (Art. 2005, NCC)
ANS.
1) The loss or injury is caused by force Q. What may be the object of a judicial
majeure, like flood, fire, (Art.2000, NCC) deposit?
theft or robbery by a stranger—not the
hotelkeeper’s servant or employee—with ANS. Movable as well as immovable property
the use of firearms or irresistible force (Art. may be the object of sequestration (Art. 2006,
2001, NCC) NCC)
Exception: Hotel-keeper is guilty of fault
or negligence in failing to provide against Q. What are the obligations of a depositary of
the loss or injury from his cause. sequestered property?
2) The loss is due to the acts of the guests, his ANS. The depositary has the obligation
family, servants, visitors (Art. 2002, NCC) a) to take care of the property with the
3) The loss arises from the character of the diligence of a good father of a family (Art.
things brought into the hotel (Art. 2002, 2008, NCC); and
NCC) b) to continue with his responsibility until
the litigation is ended or the court so
Q. Can the hotel-keeper free himself from orders (Art. 2007, NCC).
responsibility by posting notices to the effect
that he is not liable for the articles brought by
the guest.? G. LEASE
General Provisions
ANS. No. The hotel-keeper cannot free himself
from responsibility by posting notices to the
Q. Define lease.
effect that he is not liable for the articles brought
by the guest. Such kind of stipulation shall be
ANS. It is a consensual, bilateral, onerous, and
void. (Art. 2003, NCC)
commutative contract by which one person
binds himself to grant temporarily the use of a
Q. Can hotel-keeper retain the things brought
thing or the rendering of some service to
into the hotel by the guest?

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 CIVIL LAW

another who undertakes to pay some rent, 7) The contract is onerous

compensation, or price. (Paras) a) The rent must not be fictitious or
nominal;
Q. What are the kinds of leases (from the b) The rent must be capable of
viewpoint of subject matter)? determination
c) The rent may be in form of products,
ANS. fruits, construction.
a) lease of things – one of the parties binds 8) The period is temporary
himself to give to another the enjoyment or 9) The period is either definite or indefinite.
use of a thing for a price certain, and for a If indefinite, for how long is the lease?
period which may be definite or indefinite a) If no term is fixed
(Art. 1643, NCC); either real or personal i. Lease of rural land – for all the
property time necessary for the gathering of
b) lease of work and service – one of the parties the fruits which the whole estate
binds himself to execute a piece of work or to leased may yield in one year, or
render to the other some service for a price which it may yield once, although
certain, but the relation of principal and two or more years have to elapse
agent does not exist between them (Art. 1644, for the purpose (Art. 1682, NCC)
NCC); includes household service, contract ii. Lease of rural land – from year to
of labor, and common carriers year, month to month, week to
week or day to day as agreed in
Q. Can consumable goods be the subject the rent. However, the court may
matter of a contract of lease? fix a longer term for the lease after
the lessee has occupied the
ANS. No, except premises for over one year (in a
a) when they are merely to be exhibited; or monthly rent), for over six months
b) when they are accessory to an industrial (in a weekly rent) or for over one
establishment. (Art. 1645, NCC) month (in a daily rent). (Art. 1687,
NCC)
Q. What are the characteristics for lease of b) If a term is fixed, but the term is
things? indefinite, as when the tenant may use
for as long as he desires, the court will
ANS. fix the term under the law of
1) It is consensual; Obligations and Contracts.
2) It is a principal contract 10) The lessor need not be the owner.
3) It is nominate
4) Its purpose is to allow enjoyment or use of a
thing
5) The subject matter must be within the
commerce of man
6) The purpose to which the thing will be
devoted should not be immoral.

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Q. Distinguish lease from sale. Q. Distinguish lease from commodatum.

ANS. ANS.
Lease Sale Lease Commodatum
Only use or Ownership is Onerous contract Essentially
enjoyment is transferred gratuitous
transferred Not essentially Personal in
Transfer is
Transfer is personal in character, thus
temporary. permanent. character, hence death of either
Lessor need not beSeller must be the right may be bailor or bailee
the owner owner at the time transmitted to ends the
the property is heirs commodatum
supposed to be Consensual Real contract —
delivered contract requires delivery
The price of the The price of the for perfection
subject matter is thing is usually Consist in the transmission of the
usually not fixed in the enjoyment or use of a thing to another
mentioned, being contract.
immaterial. Q. Distinguish lease from usufruct.

Q. Distinguish lease from mutuum. ANS.

Lease Usufruct
ANS. Generally covers covers all fruits
Lease Mutuum and uses as a rule and uses as a
Lessor does not Lender loses only a particular rule
lose ownership ownership or specifi c use
Relationship is Relationship is Real right only in Always a real
one of lessor and one of obligor and the case of the right
lessee oblige lease of real
If what is leased is Not governed by property where
real property for the Statute the lease is
more than one of Frauds registered
year, the Statute The lessor may Can be created only
of Frauds must be or may not be the by the owner, or by
complied with. owner. his duly authorized
Refers to real and Refers only to agent.
personal property personal property May be created May be created by
only by contract law, contract, last
will, or prescription
(Art. 563, NCC)
The lessor has The owner has the
the active

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obligation to passive duty to Example:

maintain the allow the If a shoemaker is If a shoemaker is
lessee in the usufructuary to asked to make employed by me for
enjoyment or use enjoy or use the shoes “to order” 8 hours a
of the property. same. day, with the duty
The lessee The usufructuary of making shoes.
generally has no has the duty to
duty to pay for make the ordinary NOTE: Lease of work as referred in Art. 1644 of
repairs. repairs. the NCC should be understood as contact for a
The lessee The usufructuary piece of work. (Paras)
generally pays pays for the annual
no taxes. charges and taxes Obligations of The Lessor And The Lessee
on the fruits.
The lessee A usufructuary Q. What are the obligations of a lessor?
cannot constitute may lease the
a usufruct on the property itself to ANS.
property leased. another. 1) To deliver the thing which is the object of the
contract in such a condition as to render it fit
Q. Distinguish lease of work from lease of for the use intended;
service. 2) To make on the same during the lease all the
necessary repairs, unless there is a stipulation
ANS. to the contrary;
Lease of Work Lease of Service 3) To maintain the lessee in the peaceful and
The object is the The object is the adequate enjoyment of the lease (Art. 1654,
work done (the labor performed for NCC);
result of the the lessor. 4) To not alter the form of the thing leased in
labor). such a way as to impair the use to which the
The result is The result is thing is devoted under the terms of the lease.
generally generally not (Art. 1661, NCC)
important – the important, hence, 5) Upon the termination of the lease, to pay the
price is not the laborer is lessee one-half of the value of the
payable until the entitled to be paid improvements if lessee makes improvements
work is even if there is in good faith, without altering form or
completed, and destruction of the substance. If payment is refused, lessee may
said price cannot work thru a remove the improvements, even though the
generally be fortuitous event. principal thing may suffer damage thereby.
lawfully (Art. 1678, NCC)
demanded if the
work is
destroyed before
it is finished and
accepted.

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Q. What are the obligations of a lessee? Assignment and Sublease

ANS. Q. Can a lessee assign the lease contract?

1) To pay the price of the lease according to the
terms stipulated; ANS. e lessee cannot assign the lease without
2) To use the thing leased as a diligent father of the consent of the lessor, unless there is a
a family, devoting it to the use stipulated; stipulation to the contrary. (Art. 1649, NCC)
and in the absence of stipulation, to that
which may be inferred from the nature of the Q. Can a lessee sublease the thing which is the
thing leased, according to the custom of the object of the contract?
place;
3) To pay expenses for the deed of lease (Art. ANS. When in the contract of lease of things
1657, NCC); there is no express prohibition, the lessee may
4) To make some urgent repairs which cannot sublet the thing leased, in whole or in part,
be deferred until the termination of the lease without prejudice to his responsibility for the
and to advise the lessor of such. performance of the contract toward the lessor.
(Art. 1650, NCC)
NOTES:
 If repairs last more than 40 days, rent Q. What is the obligation of the sublessee to
may be reduced. If the work is of such the lessor?
nature to render the dwelling
uninhabitable, lessee may rescind the ANS. Without prejudice to his obligation
contract. toward the sublessor, the sublessee is bound to
 If the lessor fails to make any urgent the lessor for all acts which refer to the use and
repairs, lessee may order the repairs at preservation of the thing leased in the manner
the lessor’s cost. Lessee shall be liable stipulated between the lessor and the lessee.
for any damages caused by his own (Art. 1651, NCC)
negligence. (Art. 1662 and 1663, NCC)
5) To notify the lessor of usurpation or Q. What is the obligation of the sublessee to
untoward act which any third person may or the lessor?
will commit (Art. 1663, NCC)
6) To return the thing leased upon termination ANS. The sublessee is subsidiarily liable to the
of lease just as he received it, except for lessor for any rent due from the lessee.
impairment due to lapse of time, ordinary However, the sublessee shall not be responsible
wear and tear or inevitable causes. (Art. 1665, beyond the amount of rent due from him, in
NCC) accordance with the terms of the sublease, at the
7) To be responsible for the loss or deterioration time of the extrajudicial demand by the lessor.
of the thing leased, unless he proves it is (Art. 1652, NCC)
without his fault (Art. 1667, NCC)
8) To be liable for any deterioration caused by
members of his household, guests or visitors
(Art. 1668, CC)

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Q. Distinguish assignment from sublease. NOTE: If the destruction is partial, the lessee
may choose between a proportional
ANS. reduction of the rent and a rescission of the
Assignment Sublease lease. (Art. 1655, NCC)
The lessee makes The lessee retains 2) By rescission due to nonperformance of the
an absolute an interest in the obligations of one of the parties
transfer of his lease; he remains a NOTE: If the aggrieved party ask
interest as lessee; party to the indemnification for damages, the contract
thus, he contract. remains in force. (Art. 1659, NCC)
dissociates 3) If a dwelling place or any other building
himself from the intended for human habitation is in such a
original contract condition that its use brings imminent and
of lease. serious danger to life or health (Art. 1660,
The assignee has The sublessee does NCC)
a direct action not have any direct 4) By the expiration of the period (Art. 1669,
against the action against the NCC);
lessor. lessor. 5) By mutual agreement to terminate the lease
Cannot be done Can be done even contract
unless the lessor without the 6) By the resolution of the right of the lessor,
consents permission of the such as when the lessor is usufructuary and
lessor (unless there the usufruct is terminated;
be an express 7) By the will of the purchaser or transferee of
prohibition) the things (Rabuya);

Q. When may the lessor judicially eject the ***For contract for a piece of work, refer to the
lessee? discussion on Sales.***

ANS.
1) Expiration of the period of the XI. QUASI - CONTRACTS
2) Lack of payment of the price stipulated;
3) Violation of any of the conditions agreed Q. What is quasi-contract?
upon in the contract;
4) Improper use or enjoyment of the property ANS. Quasi-contract is a juridical relation
leased (Art. 1673, NCC) arising from lawful, voluntary and unilateral
acts based on the principle that no one shall be
unjustly enriched or benefited at the expense of
Extinguishment of Lease
another (Art. 2142, NCC).
Q. When is a lease extinguished?

ANS.
1) By the total loss of the thing;

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Q. What are the characteristics of a quasi- 2) If in fact the manager has been tacitly
contract? authorized by the owner. (Art. 2144,
NCC).
ANS.
1) It must be lawful; Q. What are the obligations of the gestor
2) It must be unilateral; and (officious manager)?
3) It must be voluntary.
ANS.
Q. Distinguish quasi-contract from “implied 1) To perform his duties with all the diligence of
contracts”. a good father of a family, and pay the
damages which through his fault or
Quasi-Contract Implied Contract negligence may be suffered by the owner of
Dictated by equity
Intention of the the property or business under management
and by the
parties is not (Art. 2145, NCC);
principles of expressed, but an 2) To be liable for the acts of the persons to
absolute justice agreement in fact whom he delegated all or some of his duties
is implied from without prejudice to the direct obligation of
the acts of the the delegate to the owner of the business
parties or where
there are NOTE: The responsibility of two or more
circumstances officious managers shall be solidary, unless the
which show a management was assumed to save the thing or
mutual intent to business from imminent danger. (Art. 2146,
contract. NCC);
Does not require Requires consent
consent Q. When shall the officious manager be liable
Based on law Based on the will for any fortuitous event?
of the parties
ANS.
1) If he undertakes risky operations which the
A. NEGOTIORIUM GESTIO
owner was not accustomed to embark upon;
2) If he has preferred his own interest to that of
Q. When does negotiorium gestio take place?
the owner;
3) If he fails to return the property or business
ANS. Negotiorum gestio (officious manager)
after demand by the owner;
arises when a person voluntarily takes charge of
4) If he assumed the management in bad faith.
the management of the business or property of
(Art. 2147, NCC)
another without any power from the latter.
5) If he is manifestly unfit to carry on the
management;
NOTE: This juridical relation does not arise in
6) If by his intervention he prevented a more
either of these instances:
competent person from taking up the
1) When the property or business is not
management, except when the management
neglected or abandoned;

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 CIVIL LAW

was assumed to save property or business

from imminent danger (Art. 2148, NCC) ANS.
1) If the owner has expressly or tacitly ratified
Q. What is the effect of ratification of the the management, or
management by the owner of the business? 2) When the contract refers to things pertaining
to the owner of the business. (Art. 2152, NCC)
ANS. It produces the effects of an express
agency, even if the business may not have been Q. When shall the management of the property
successful. (Art. 2149, NCC) or business be extinguished?

Q. What are the obligations of the owner of the 1) When the owner repudiates it or puts an end
property or business? thereto;
2) When the officious manager withdraws from
ANS. the management, subject to the provisions of
1) Without ratification but owner enjoys the Art. 2144;
advantages of the same: 3) By the death, civil interdiction, insanity or
a) Liable for obligations incurred in his insolvency of the owner or the officious
interest; manager. (Art. 2153, NCC)
b) Reimburse the officious manager for the B. SOLUTIO INDEBITI
necessary and useful expenses and for
the damages which the latter may have Q. When does solutio indebiti take place?
suffered in the performance of his
duties ANS. Solutio indebiti (unjust enrichment) takes
*Applies when the management had for its place when a person received something from
purpose the prevention of an imminent and another without any right to demand for it, and
manifest loss, although no benefit may have the thing was unduly delivered to him through
been derived (Art. 2150, NCC) mistake (NCC, Art. 2154, NCC).
2) Owner did not derive any benefit and no
imminent and manifest danger to the Q. What are the elements of solution indebiti?
property or business, liable under Art. 2150,
provided: ANS.
a) The officious manager has acted in 1) Payment is made when there exist no binding
good faith, and relation within the payer and the person who
b) The property or business is intact, ready received it
to be returned to the owner. (Art. 2151, 2) Payment is made thru mistake and not thru
NCC) liberality

Q. Generally, the officious manager is NOTE: If the payer was in doubt whether the
personally liable for contracts which he has debt was due, he may recover if he proves that
entered into with third persons, even though it was not due. (Art. 2156, NCC)
he acted in the name of the owner. What are
the exceptions? Q. What are the obligations of the payee?

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ANS. Q. When is there presumption that payment

1) If in bad faith, be liable for: was made by mistake?
a) Legal interest if a sum of money is
involved; ANS. The presumption arises if something
b) Fruits received or which should have which had never been due or had already been
been received if the thing produces paid was delivered; but he from whom the
fruits; return is claimed may prove that the delivery
c) Any loss or impairment of the thing for was made out of liberality or for any other just
any cause; and cause. (Art. 2163, NCC)
d) Damages to the person who delivered
the thing, until it is recovered. (Art. XII. LAND TITLES AND DEEDS
2159, NCC)
2) If in good faith, be liable for: A. TORRENS SYSTEM
a) Impairment or loss of the thing certain
and determinate or its accessories and Q: What is Torrens System?
accessions insofar as he has thereby
been benefited. ANS. It is the system of registration of
b) Return of the price or assign the action transactions with interest in land whose
to collect the sum if he has alienated the declared object is, under governmental
same. (Art. 2160, NCC) authority, to establish and certify to the
ownership of an absolute and indefeasible title
NOTE: The responsibility of two or more to realty, and to simplify its transfer.
payees, when there has been payment of what NOTE: Registration is not a mode of acquiring
is not due, is solidary. (Art. 2157, NCC) ownership but is merely evidence of such title
over a particular property.
Q. What are the exemptions from the
obligation to restore the payment unduly Q: What are the purposes in adopting the
made? Torrens System of land registration?

ANS. A person who, believing in good faith that ANS.

the 1) To avoid possible conflicts of title regarding
payment was being made of a legitimate and real property; and
subsisting claim, 2) To facilitate transactions relative thereto by
a) destroyed the document; giving the public the right to rely on the face
b) allowed the action to prescribe; of the Torrens certificate of title and to
c) gave up the pledges; or dispense with the need of inquiring further
d) cancelled the guaranties for his right. 3) To decree land titles that shall be final,
The person who paid unduly may proceed only irrevocable, and indisputable, and to relieve
against the true debtor or the guarantors with the land of the burden of known and
regard to whom the action is still effective. (Art. unknown claims
2162, NCC)

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Q: What is the nature of the proceeding for 1) Mirror Principle – if there are several
land registration under the Torrens System? transfers, the TCT will be a ‘mirror’ in that it
ANS. The Torrens system is judicial in character should be identical to the current facts. If the
and not merely administrative. Under the seller sells the land, the old title must be
Torrens system, the proceeding is in rem, which identical to the new one in terms of technical
means that it is binding upon the whole world. description, so as to reinforce the concept that
the buyers should be able to rely on the face
Q. What are the effects of the issuance of a of the title.
Torrens title?
Exceptions:
ANS. a) when a person deals with a registered land
1) The land is placed under the operation of with someone that is not the registered
Torrens System; owner
2) Land is relieved from all claims except those b) when the party has actual knowledge of
noted thereon and provided by law; facts which should impel a reasonably
3) The land becomes incontrovertible and cautious mind to make such inquiry to the
indefeasible lack of title;
Exceptions: c) in cases of banking and financing
a) If previous valid title of the same land institutions
exists 2) Curtain Principle – the buyer should be able
b) When the land covered is not capable of to rely on the face of the title, and should not
registration go beyond the certificate. In a way, the buyer
c) When acquisition of certificate is does not have to go behind the curtain to
attended by fraud; ascertain the truth of the title because the
4) Title to the land becomes non‐prescriptible; Torrens Certificate guarantees him that.
and 3) Insurance Principle –equates registration to a
5) The certificate of title is not subject to guarantee by the State
collateral attack. 4)

Q. What is the probative value of a Torrens 1. Concept and background

title?
Q. What is the object of registration?
ANS. Torrens title may be received in evidence
in all courts of the Philippines and shall be ANS. Only real property or real rights may be
conclusive as to all matters contained therein, the object of registration under the existing land
principally as to the identity of the land owner, registration laws.
except so far as provided in the Land
Registration Act (LRA). Q. What are the classifications of land?
Q. Give the three principles in the Torrens
System. ANS.
ANS. 1) Private or public

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 CIVIL LAW

a) Private land – owned by private ANS.

individuals a) Alienable public agricultural lands
b) Public land – public domain, If the land is in the public domain, the land
unappropriated lands belonging to the must be classified as alienable and disposable
state. and must be classified as such at the time of
2) Alienable or inalienable filing the application for registration.
a) Alienable land – agricultural land b) Private lands
declared not needed by the government
b) Inalienable land – cannot be bought, Q. What government agencies are in-charge of
sold or transferred from on individual the administration of the Torrens System?
or another; owned by the State
3) Registered or unregistered ANS.
a) Registered lands - registered under the 1) Land Registration Authority – under the
Torrens System executive supervision of the DOJ charged
b) Unregistered land – not registered with the efficient execution of the laws
under the Torrens System. Proof of title relative to the registration of lands. It is
is based upon historical title deeds. composed of (1) Administrator and (2)
4) Registrable or Non-registrable Deputy Administrators.
a) Registrable land – alienated and not Functions of LRA:
reserved for public purposes a) Extend speedy and effective assistance
b) Non-registrable land – not subject to b) to the Department of Agrarian Reform, the
private ownership and reserved for Land Bank, and other agencies in the
public purposes. implementation of land reform program of
the government
Q. What are the [primary] classifications of c) Extend assistance to courts in ordinary
land under the Constitution? and cadastral land registration
proceedings; and
ANS. d) Be the central repository of records
a) Agricultural relative to original registration of lands
b) Forestland or timberland titled under the Torrens system,
c) Mineral lands e) including the subdivision and
d) National parks (Art. XII, Sec. 3, 1987 consolidation plans of titled lands.
Constitution)
2) Register of Deeds – public repository of
NOTE: Classification of lands is an exclusive records of instruments affecting registered or
prerogative of the executive department. In the unregistered lands and chattel mortgages in
absence of such classification, the lands remain the province or city wherein such office is
as unclassified until it is released therefrom and situated. It is composed of Register of Deeds
rendered open to disposition. and Deputy (as assistant).

Q. What lands are registrable? Functions of Registers of Deeds:

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 CIVIL LAW

a) Immediately register an instrument Q. What are the types of certificate of title?

presented for registration dealing with
real or personal property which complies ANS.
with the requisites for registration; 1) Original Certificate of Title (OCT) – The first
b) Shall see to it that said instrument bears title issued in the name of the registered
the proper documentary stamps and that owner by the Register of Deeds covering a
the same are properly cancelled; parcel of land which had been registered
c) If the instrument is not registerable, he under the Torrens system by virtue of a
shall deny the registration thereof and judicial or administrative proceeding.
inform the presentor of such denial in 2) Transfer Certificate of Title (TCT) – The title
writing, stating the ground or reason issued by the Register of Deeds in favor of a
therefore, and advising him of his right to transferee to whom the ownership of a
appeal by consulta in accordance with Sec. registered land has been transferred by any
117 of PD 1529. legal mode of conveyance.
d) Prepare and keep an index system which
contains the names of all registered Q. Define deed.
owners and lands registered.
ANS. A deed is the instrument in writing, by
which any real estate or interest therein is
2. Certificate of title created, alienated, mortgaged or assigned, or by
which title to any real estate may be affected in
Q: What is a Certificate of Title? law or equity.

ANS. Certificate of title is the transcript of the Q. What are the elements of deed?
decree of registration made by the Register of
Deeds in the registry. It accumulates in one ANS.
document a precise and correct statement of the a) Grantor
exact status of the fee simple title which an b) Grantee
owner possesses. (Agcaoili) c) Words of Grant
d) Description of the property involved
Q. Distinguish title from certificate of title. e) Signature of the grantor
f) At least two (2) witnesses
ANS. g) Notarial acknowledgment
Title Certificate of
Title
Lawful cause or Mere evidence of
ground of ownership; it is
possessing that not the title to the
which is ours. land itself
The title is a conclusive evidence of ownership
and it cannot be attacked collaterally.

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 CIVIL LAW

1) By possession of land since time immemorial

Q. Distinguish certificate of title from deed. 2) By possession of alienable and disposable
public land
ANS.  Under the Public Land Act (CA No.
Certificate of Deed 141), citizens of the Philippines, who by
Title themselves or through their
The transcript of The instrument in predecessors‐in‐interest have been in
the decree of writing, by which open, continuous, exclusive and
registration made any real estate or notorious possession and occupation of
by the RD in the interest therein is alienable and disposable agricultural
registry. It created, alienated, land of the public domain under a bona
accumulates in mortgaged or fide claim of ownership since June 12,
one document a assigned, or by 1945, or earlier, shall be conclusively
precise and which title to any presumed to have performed all the
correct statement real estate may be conditions essential to a government
of the exact status affected in law or grant and shall be entitled to a
of the fee simple equity. certificate of title.
title which an 3) By sale, donation, and other modes of
owner possesses. acquiring ownership

Q: Is title over land synonymous with Q. What are the modes of acquiring over land?
ownership?
ANS. OLD TIPS
A: No. Title is a juridical act or a deed which is 1) Occupation
not sufficient by itself to transfer ownership but 2) Law
provides only for a juridical justification for the 3) Donation
effectuation of a mode to acquire or transfer 4) Tradition
ownership. It provides the cause for the 5) Intellectual creation
acquisition of ownership. (Pineda) 6) Prescription
Ownership, on the other hand, is an 7) Succession
independent right of exclusive enjoyment and
control of the thing for the purpose of deriving
therefrom all advantages required by the B. AGRARIAN TITLES AND ANCESTRAL
reasonable needs of the owner and the LANDS AND DOMAINS
promotion of the general welfare but subject to
the restrictions imposed by law and the rights of Q: What is the Regalian Doctrine (jura
others. (Art. 427, NCC) regalia)?

Q. What are the modes of acquiring title over ANS. Jura regalia means that the State is the
land? original proprietor of all lands and the general
source of all private titles. All lands of whatever
ANS. classification and other natural resources not

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otherwise appearing to be clearly within private ANS. To overcome such presumption,

ownership belong to the state. It is reflected in incontrovertible evidence must be shown that
Art. 12, Sec 2 of the 1987 Constitution. the land subject of the application is alienable or
disposable. Private title to land must be traced
Q. What are the exceptions to Regalian to some grant, express or implied, from the
Doctrine? Spanish Crown or its successors, the American
colonial government, and the Philippine
ANS. government.
1) Native title – refers to pre-conquest rights to
lands and domains which, as far back as 1. Concept and registration of agrarian titles
memory reaches, have been held under a
claim of private ownership by indigenous Q. Define agricultural land.
cultural communities (ICC) and indigenous
people (IP), have never been public lands, ANS. Agricultural land refers to land devoted
and are thus indisputably presumed to have to agricultural activity and not classified as
been held the same way since before Spanish mineral, forest, residential, commercial or
conquest (Sec. 3(l), RA 8371) industrial land. (Sec. 3(c), RA 6657)
 Time immemorial possession –A period
of time when as far back as memory can Q. Define agricultural activity.
go, certain ICCs/IPs are known to have
occupied, possessed in the concept of an ANS. Agricultural Activity means the
owner, and utilized a defined territory cultivation of the soil, planting of crops,
developed to them, by operation of growing of fruit trees, raising of livestock,
customary law or inherited from their poultry or fish, including the harvesting of such
ancestors with their customs and farm products, and other farm activities and
traditions practices performed by a farmer in conjunction
2) Ancestral domain – all areas generally with such farming operations done by person
belonging to ICCs/IPs comprising lands, inland whether natural or juridical. (Sec. 3(b), RA 6657)
waters, coastal areas, and natural resources
therein held under a claim of ownership, Q. Define agrarian reform.
occupied or possessed by ICCs/IPs, by
themselves or through their ancestors, ANS. Agrarian reform means redistribution of
communally or individually since time lands, regardless of crops or fruits produced, to
immemorial, continuously to the present (Sec. farmers and regular farmworkers who are
3(a), RA 8371) landless, irrespective of tenurial arrangement,
to include the totality of factors and support
Q. According to the Doctrine, the state is the services designed to lift the economic status of
source of any asserted right to ownership in the beneficiaries and all other arrangements
land and charged with the conservation of alternative to the physical redistribution of
such patrimony. How should this lands, such as production or profit-sharing,
presumption be overcome? labor administration, and the distribution of
shares of stocks, which will allow beneficiaries

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to receive a just share of the fruits of the lands c) All other lands owned by the Government
they work. (Sec. 3(a), RA 6657) devoted to or suitable for agriculture;
d) All private lands devoted to or suitable for
Q. What is the Tenant Emancipation agriculture regardless of the agricultural
Doctrine? products raised or that can be raised
thereon. (Sec. 4, RA 6657)
ANS. PD 27 provides for the emancipation of
farmers of private agricultural lands primarily Q. What are the exemptions and exclusions to
devoted to rice and corn under a system of the CARP?
sharecrop or lease-tenancy, whether classified
as landed estate or not. ANS.
The tenant farmer shall be deemed owner of a 1) Lands actually, directly and exclusively used
portion constituting a family-size farm of and found to be necessary for
a) five (5) hectares if not irrigated; and a) parks, wildlife, forest reserves,
b) three (3) hectares if irrigated. reforestation, fish sanctuaries and
The landowner may retain an area of not more breeding grounds, watersheds, and
than seven (7) hectares if such landowner is mangroves,
cultivating such area or will now cultivate it. b) national defense,
c) school sites and campuses including
NOTE: No title to the land owned by the tenant- experimental farm stations operated by
farmers shall be actually issued to a tenant public or private schools for
farmer unless and until the tenant-farmer has educational purposes, seeds and
become a full-fledged member of a duly seedlings research and pilot production
recognized farmer’s cooperative. centers,
d) church sites and convents appurtenant
Q. What is the scope of the Comprehensive thereto, mosque sites and Islamic
Agrarian Reform Act? centers appurtenant thereto,
e) communal burial grounds and
ANS. The Law covers, regardless of tenurial cemeteries,
arrangement and commodity produced, all f) penal colonies and penal farms actually
public and private agricultural lands, as worked by the inmates,
provided in Proclamation No. 131 and g) government and private research and
Executive Order No. 229, including other lands quarantine centers; and
of the public domain suitable for agriculture. 2) all lands with eighteen percent (18%) slope
More specifically, the following lands are and over, except those already developed
covered by the CARP: (Sec. 10, RA 6657)
a) All alienable and disposable lands of the
public domain devoted to or suitable for
agriculture;
b) All lands of the public domain in excess of
the specific limits as determined by
Congress in the preceding paragraph;

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Q. How is the registration of agrarian lands in consequence of government projects and other
favor of the beneficiaries made? voluntary dealings entered into by government
and private individuals/corporations,
1) Under PD No. 27: including, but not limited to, residential lots,
a) Certificates of land transfer (CLTs) are rice terraces or paddies, private forests,
issued to entitle the beneficiaries to swidden farms and tree lots (Sec. 3(b), RA 8371)
possess lands
b) Emancipation patents (EPs) are issued Q. Define Certificate of Ancestral Domain
after compliance with all necessary Title.
conditions which shall then be the basis
for the issuance of the corresponding ANS. CADT refers to a title formally
TCTs by the RD recognizing the rights of possession and
2) Under RA No. 6657: ownership of ICCs/IPs over their ancestral
a) Only certificates of land ownership domains identified and delineated in
award (CLOAs) are issued after accordance with this law (Sec. 3(c), RA 8371).
compliance with all prerequisites
b) TCTs are issued upon presentation of Q. Define Certificate of Ancestral Lands Title.
the CLOAs to the RD
ANS. CALT refers to a title formally recognizing
NOTE: The issuance of EPs or CLOAs to the rights of ICCs/IPs over their ancestral lands
beneficiaries does not absolutely bar the (Sec. 3(d), RA 8371).
landowner from retaining the area covered
thereby. Under AO No. 2, series of 1994, an EP Q. What are the modes of acquiring ancestral
or CLOA may be cancelled if the land covered lands and ancestral domains?
is later found to be part of the landowner’s
retained area. (Agcaoili) ANS.
1) By native title over both ancestral lands and
domains; or
2. Concept and registration of ancestral lands 2) By Torrens title under the Property
and domains Registration Decree with respect to ancestral
lands only.
Q. Define ancestral lands.
Q. What are the requisites for registration of
ANS. Ancestral lands refers to land occupied, ancestral lands?
possessed and utilized by individuals, families
and clans who are members of the ICCs/IPs ANS.
since time immemorial, by themselves or 1) Applicant must be a member of the ICCs/IPs
through their predecessors-in-interest, under 2) Possession of ancestral land must not be less
claims of individual or traditional group than 30 years immediately preceding the
ownership, continuously, to the present except approval of IPRA on October 29, 1997
when interrupted by war, force majeure or
displacement by force, deceit, stealth, or as a

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3) By operation of law, the land is already right, as any Filipino citizen, to “enjoy full civil
classified as alienable and disposable even and political rights” upon the re-acquisition of
with a slope of 18% or more (Sec. 12, RA 8371) his Filipino citizenship (Agcaoili).

C. CITIZENSHIP REQUIREMENT 2. Corporations

Q. Who are qualified to acquire private Q. May a corporation own lands?

lands?
ANS. ANS. Private corporations may not hold
1) Filipino citizens; alienable lands of the public domain. (Sec. 3,
2) Filipino corporations and associations as Art. XII, 1987 Constitution)
defined in Sec. 2, Art. XII of the Constitution; Exceptions:
3) Aliens but only by hereditary succession; and 1) Corporation sole can acquire by purchase
4) A natural-born citizen of the Philippines who a parcel of private agricultural land
has lost citizenship may be a transferee of without violating the constitutional
private lands subject to the limitations prohibition since it has no nationality.
provided by law (Sec.8, Art.12, 1987 2) Through lease not exceeding 1,000
Constitution). hectares. Such lease shall not exceed
twenty five (25) years and renewable for
not more than twenty five (25) years. (Sec.
1. Individuals 3, Art. XII, 1987 Constitution)

Q. Can an alien acquire a private land in the NOTE: Determine whether the parcel of
Philippines? land is still public or already private –
when the registration proceedings were
ANS. An alien cannot acquire private lands. commenced. If it is already private,, the
Exception: Acquisition by aliens is allowed constitutional prohibition against
when acquisitions by a private corporation
a) it is thru hereditary succession (limited would not apply.
only to intestate succession)
b) the alien is a former natural‐born citizen of Q. What are the limitations to ownership of
the Philippines, provided he only acquires land by corporations?
1,000 square meters – urban land; or 1
hectare – rural land for residential ANS.
purposes (Sec. 2, BP 185) 1) Private Lands
a) At least 60% Filipino (Sec. 7, Art. XII,
NOTE: Where a Filipino citizen naturalized as a 1987 Constitution)
citizen in a foreign country has “reacquired” his b) Restricted as to extent reasonably
Philippine citizenship under the terms of RA necessary to enable it to carry out
9225, the area limitations may no longer apply purpose for which it was created
since the law expressly grants him the same
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c) If engaged in agriculture, it is restricted

to 1,024 hectares. Q. When is ordinary registration proper?
2) Patrimonial property of the State (Sec. 3, Art.
XII, 1987 Constitution) ANS. When property is acquired by:
a) Lease (cannot own land of the public 1) open, continuous, exclusive, and notorious
domain) for 25 years renewable for possession and occupation of alienable and
another 25 years disposable lands of public domain under a
b) Limited to 1,000 hectares bona fide claim of ownership since June
c) Applies to both Filipinos and foreign 12,1945 or earlier (OCENCO);
corporations. 2) prescription;
3) accession or accretion; or
4) any other manner provided by law. (PD 1529
D. ORIGINAL REGISTRATION
Q. What are the kinds of original registration?
Q. What are the purposes of land registration?
ANS.
ANS. 1) Judicial / voluntary / ordinary - Private
1) Quiet title to the land and to stop forever any individual files an application with the
question as to the legality of said title; proper court
2) Relieve land of Unknown claims; 2) Administrative / involuntary / cadastral –
3) Guarantee the Integrity of land titles and to Compulsory registration initiated by the
protect their indefeasibility once the claim of government, to adjudicate ownership of land
ownership is established and recognized; and involuntary on the part of the claimants,
4) Give every registered owner complete peace but they are compelled to substantiate their
of mind; claim or interest through an answer.
5) Issue a certificate of title to the owner which
shall be the best evidence of his ownership of
the land; and 1. Who may apply
6) Avoid conflicts of title in real estate and to
facilitate transactions. Q. Who may apply for registration in ordinary
registration proceedings?
Q. What is original registration?
ANS.
ANS. It is a proceeding brought before the MTC 1) Those who by themselves or through their
where there is no controversy or opposition, or predecessors-in-interest have been in open,
contested lots where the value of which does not continuous, exclusive and notorious
exceed P100,000.00 (Sec. 4, R.A. 7691) or in the possession and occupation of alienable and
RTC (as a land registration court) when the disposable lands of the public domain under
value exceeds P100,000 to determine title or a bona fide claim of ownership since June 12,
ownership of land on the basis of an application 1945, or earlier.
for registration or answer/opposition by a
claimant in a cadastral registration.

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2) Those who have acquired ownership of ANS. Reservista has the right to apply for
private lands by prescription under the registration but the reservable character of the
provision of existing laws. property will be annotated in the title.
3) Those who have acquired ownership of
private lands or abandoned river beds by Q. When is a person deemed to possess an
right of accession or accretion under the imperfect title over property?
existing laws.
4) Those who have acquired ownership of land ANS. When the applicant for confirmation of
in any other manner provided for by law. imperfect title has shown possession and
Where the land is owned in common, all the co‐ occupation that is open, continuous, exclusive
owners shall file the application jointly. (Sec. 14, and notorious in the concept of an owner.
PD 1529)
Q. What is the effect of possession of an
Q. Alpha, Beta, Charlie and Delta are co‐ imperfect title?
owners of a parcel of land. May Charlie seek
registration in his name of the land in its ANS. When the conditions set by law are
entirety? complied with, the possessor of the land, by
operation of law, acquires a right to government
ANS. Since a co‐owner cannot be considered a grant, without the necessity of a certificate of the
true owner of a specific portion until division or title being issued.
partition is effected, he cannot file an
application for registration of the whole area Q. Who may apply for judicial confirmation?
without joining the co‐owners as applicants.
(Agcaoili) ANS.
1) Filipino citizens who by themselves or
Q. Who may apply for registration of a land through their predecessors‐in‐interest have
subject to a pacto de retro sale? been in open, continuous, exclusive and
notorious possession and occupation of
ANS. Vendor a retro may apply for registration, alienable and disposable lands of public
except when the period for redemption expire domain under a bona fide claim of
during pendency of registration proceedings acquisition since June 12, 1945 or prior
and ownership to property is consolidated in thereto or since time immemorial;
vendee a retro. 2) Filipino citizens who by themselves or their
predecessors‐in‐interest have been, prior to
Q. Who may apply for registration of a land the effectivity of PD 1073 on January 25, 1977,
subject to trust? in open, continuous, exclusive and notorious
possession and occupation of agricultural
ANS. Trustee may apply for registration unless lands of the public domain under a bona fide
prohibited by the instrument creating the trust. claim of acquisition or ownership for at least
30 years, or at least since January 24, 1947;
Q. Who may apply for registration of a land 3) Private domestic corporations or associations
subject to reserva troncal? which had acquired lands from Filipino

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citizens who had possessed the same in the 2) Confirmation of imperfect or incomplete title
manner and for the length of time indicated under Section 48(b) of the Public Land Act, as
in paragraphs 1 & 2 above; or amended.
4) Natural‐born citizens of the Philippines who
have lost their citizenship and who has the Q. What are the steps or requisites in ordinary
legal capacity to enter into a contract under registration proceedings and judicial
Philippine laws may be a transferee of confirmation of imperfect title?
private land up to a maximum are of 5,000
sq.m., in case of urban land, or 3 hectares in ANS.
case of rural land to be used by him for 1) Survey of land by Bureau of Lands or any
business or other purposes. duly licensed private surveyor
2) Filing of application for registration by
Q. What must an applicant for judicial applicant at the RTC of the province, city, or
confirmation prove? municipality where the property is located
(Sec. 17. PD 1529)
ANS. 3) Setting of date for initial hearing by the
1) That the land is alienable and disposable land court
of public domain; and The public shall be given notice of the initial
2) That they have been in open, continuous, hearing of the application for land
exclusive, and notorious possession and registration by means of
occupation of the land for the length of time a) publication;
and in the manner and concept provided by b) mailing; and
law. c) posting. (Sec. 23, PD 1529)
NOTE: Extended period for filing of 4) Transmittal of application and date of initial
application – Sec. 1, R.A. 9176 provides in hearing together with all documents or
part that, “The time to be fixed in the entire other pieces of evidence attached thereto by
archipelago for the filing of applications shall clerk of court to National Land Titles and
not extend beyond December 31, 2020. Deeds Registration Administration
Provided that the area applied for does not (NALTDRA)
exceed 12 hectares.” 5) Publication of notice of filing of application
and date and place of hearing
6) Service of notice by sheriff upon contiguous
2. Registration process and requirements owners, occupants and those known to
have interest in the property
Q. What are the modes of registering land 7) Filing of answer or opposition to the
titles? application by any person whether named
in the notice or not
ANS. 8) Hearing of case by court
1) Original registration proceedings under the 9) Promulgation of judgment by court
Property Registration Decree (PD 1529), and 10) Issuance of a decree by court declaring the
decision final, and instructing the

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NALDTRA to issue a decree of b) If the marriage has been legally

confirmation and registration dissolved, when and how the marriage
11) Entry of decree of registration in relation was terminated
NALDTRA 3) Whether the property is conjugal,
12) Sending of copy of the decree of registration paraphernal, or exclusively owned by the
to corresponding RD applicant.
13) Transcription of decree of registration in the 4) Full names and addresses of all occupants of
registration book and issuance of owner’s the land and those of the adjoining owners, if
duplicate original certificate of title (OCT) known, and if not known, the applicant shall
of applicant by RD, upon payment of state the extent of the search made to find
prescribed fees them
5) Assessed value of the land and the buildings
NOTE: After judgment has become final and and other improvements based on the last
executory, the issuance of decree and OCT is assessment for taxation purposes
ministerial on the part of LRA and RD. (Aquino) 6) Manner of acquisition of land
7) Mortgage or encumbrance affecting the land
or names of other persons who may have an
Application Form and Contents interest therein, legal or equitable
8) If the application describes the land as
Q. What is the form of the application for bounded by a public or private way or road,
registration or judicial confirmation? it shall state whether or not the applicant
claims any portion of the land within the
ANS. limits of the way or road, and whether the
1) In writing; applicant desires to have the line of way or
2) Signed by the applicant or person duly road determined (Sec.15, PD 1529)
authorized in his behalf; 9) If the applicant is a non‐resident of the
3) Sworn to before an officer authorized to Philippines, he shall file an instrument
administer an oath for the province or city appointing an agent residing in the
where the application was actually signed; Philippines and shall agree that service of
and any legal process shall be of the same legal
4) If there is more than one applicant, they shall effect as if made upon the applicant within
be signed and sworn to by and in behalf of the Philippines (Sec.16, PD 1529).
each (Sec. 15, PD 1529)
Q: What documents must accompany the
Q. What are the contents of the application? application?

ANS. ANS. All muniments of titles and copies thereof

1) Description of the land with survey plan approved by Bureau of Lands
2) Citizenship and civil status of the applicant – must accompany the application.
a) If married, name of spouse

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Q. What are muniments of title? of the proceedings upon just and reasonable
terms. (Sec. 19, PD 1529)
A: They are instruments or written evidence
which the applicant holds/possesses to enable Q. Who may order that an amendment be
him to substantiate and prove title to his estate. done?

Q. If what is sought to be registered are two or ANS. The court may at any time, order an
more parcels of land, must the applicant file application to be amended by striking out one
separate applications for each? or more parcels of land or by severance of the
application. (Sec.18, PD 1529)
ANS. Generally, yes. However, an application
may include two or more parcels of land as long Q. What are the requirements in amending the
as they are situated within the same province or application?
city.
ANS.
Where Filed 1) Publication
2) Mailing of notice – Within 7 days after
Q. Who has jurisdiction over registration publication of said notice in the Official
cases? Gazette to:
a) Persons named in the notice
ANS. RTC of the province, city, or municipality b) Secretary of Public Highways,
where the property is situated shall have Provincial Governor, and Mayor, if the
exclusive jurisdiction over all applications applicant requests to have the line of a
original for registration of title, with power to public way or road determined
hear and determine all questions arising upon c) Secretary of Agrarian Reform, Solicitor
such applications or petition. (Sec. 2, PD 1529). General, Director of Lands, Director of
Fisheries, and Director of Mines, if the
Exceptions: The MTC, MeTC, and MCTC shall land borders on a river, navigable
have delegated jurisdiction in cadastral and stream, or shore, or on an arm of the sea
land registration cases if: where a river or harbor lies
a) There is no controversy over the land; or d) Other persons as the court may deem
Its value is less than P100,000 (Sec. proper
b) 34, BP 129)
NOTE: Service of notice upon contiguous
Amendment of The Application owners is indispensable and lack of service
constitutes extrinsic fraud.
3) Posting – In conspicuous place on subject
Q. When may an amendment of the
land and on bulletin board of the municipal
application be had?
building for at least fourteen (14) days before
the initial hearing.
ANS. Amendments to the application including
joinder, substitution, or discontinuance as to the
parties may be allowed by the court at any stage

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Q. Is publication and notice necessary in case Publication

the application is amended?
Q. May publication of the notice of filing of
ANS. Publication and notice are necessary application and date and place of hearing be
where the amendment to the application dispensed with?
consists in:
1) Substantial change in the boundaries ANS. No. Publication of the notice of filing of
2) Increase in the area of the land applied for application and date and place of hearing is
3) The inclusion of Additional land mandatory.

NOTE: If amendment includes a parcel of land

not previously included in the application as Q. Where must the said notice be published?
published, a new publication of the amended
application must be made (inclusion). ANS.
Without such publication, the registration court 1) Once in the Official Gazette (OG) – this
cannot acquire jurisdiction over the area that is confers jurisdiction upon the court; and
added. 2) Once in a newspaper of general circulation

Q. When is publication not necessary in case NOTE: Publication in the Official Gazette is
the application is amended? sufficient to confer jurisdiction upon the court.
(Sec. 23, P.D. 1529). It is not necessary to give
ANS. personal notice to the owners or claimants of the
1) If the amendment consists in the exclusion of land sought to be registered to vest the court
a portion of the area covered by the original with authority over the res.
application and the original plan as
previously published, a new publication is Q. When is publication defective?
not necessary (exclusion).
ANS.
NOTE: In this case, the jurisdiction of the 1) Where what was published in the Official
court is not affected by the failure of filing a Gazette is the description of a bigger lot
new application. which includes the lands subject of
2) Amendments to the application including registration.
joinder, substitution or discontinuance as to 2) Where the actual publication of the notice of
the parties. initial hearing was after the hearing itself.

NOTE: This may be allowed by the court at Q. What is the effect of a defective
any stage of the proceedings upon just and publication?
equitable terms.
3) An amendment due to change of name of the ANS. It deprives the court of jurisdiction. If the
applicant. registration had included land or lands not
included in the publication, then the
registration proceedings and the decree of

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registration must be declared null – but only 2) A purchaser of friar land before the issuance
insofar – as the land not included in the of the patent to him.
publication concerned. But the proceedings and 3) Persons who claim to be in possession of a
the decree of registration, relating to the lands tract of public land and have applied with the
that were included in the publication, are valid. Bureau of Lands for its purchase.
Exception: If the difference is not as substantial 4) The Government relative to the right of
as would affect the identity of the land, failure foreshore lessees of public land as the latter’s
to publish the bigger area (insubstantial rights is not based on dominion or real right
inclusion) does not perforce affect the court’s independent of the right of the government.
jurisdiction.
Q. May a private person oppose registration on
the ground that the land sought to be
Opposition registered is owned by the government?

Q. What are the requisites for a valid ANS. No. A private person may not oppose an
opposition? application for registration on the ground that
the land applied for is a property of the
ANS. government. (Agcaoili)
1) Set forth objections to the application;
2) State interest claimed by oppositor; Q. Should an oppositor have title over the
3) Apply for the remedy desired; and disputed land?
4) Signed and sworn to by him or by some other
duly authorized person. ANS. No. The oppositor need not show title in
himself; he should however appear to have
Q. Who may be an oppositor to the application interest in the property. (Agcaoili)
for registration or judicial confirmation?
Q. Should an oppositor’s interest over the land
ANS. Any person whether named in the notice be legal or may it be merely equitable?
or not, provided, his claim of interest in the
property applied for is based on a right of ANS. It is immaterial whether his interest is in
dominion or some other real right independent the character of legal owner or is of a purely
of, and not subordinate to, the rights of the equitable nature as where he is a beneficiary of
government. a trust.

Q. Who may be proper oppositors in specific

cases?

ANS.
1) A homesteader who has not yet been issued
his title but who had fulfilled all the
conditions required by law to entitle him to a
patent.

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from the government. The principle of estoppel

Absence of Opposition or Failure To Oppose does not operate against the government for the
Default acts of its agents.

Q. When may a person be declared in default Q. If an order of general default is issued, may
in land registration proceedings? the court automatically grant the application?

ANS. A person may be declared in default if he ANS. No. Even in the absence of an adverse
fails to file an opposition. claim, the applicant still has to prove that he
possesses all the qualifications and none of the
Q. What is the effect of failure to oppose? disqualifications to obtain the title. If he fails to
do so, his application will not be granted.
ANS. The court shall, upon motion of the (Agcaoili)
applicant, no reason to the contrary appearing,
order a default to be recorded and require
applicant to present evidence. Evidence

Q. What is the effect of an order of default in Q. What must the applicant for land
land registration proceedings? registration prove?

ANS. A default order in land registration ANS.

proceedings is entered “against the whole 1) Declassification – That the land applied for
world”, so that all persons, except only the has been declassified and is a public
parties who had appeared and filed pleadings agricultural land, alienable and disposable or
in the case, are bound by said order. otherwise capable of registration;
2) Identity of the land; and
Q. What is the effect of the absence of an 3) Possession and occupation of the land for the
opposition as regards allegations in the length of time and in the manner required by
application? law.

ANS. When there is no opposition, all Q. What may constitute sufficient proof to
allegations in the application are deemed establish declassification of land from forest
confessed on the part of the opponent. to alienable or disposable, or agricultural?

Q. What if a certificate of title was issued ANS.

covering non‐registrable lands without the 1) Presidential proclamation
government opposing such, is the government 2) Administrative Order issued by the Secretary
estopped from questioning the same? of Environment and Natural Resources
3) Executive order
ANS. The government cannot be estopped from 4) Bureau of Forest Development (BFD) Land
questioning the validity of the certificates of Classification Map
title, which were granted without opposition

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5) Certification by the Director of Forestry, and Q. What are some specific overt acts of
reports of District Forester possession which may substantiate a claim of
6) Investigation reports of Bureau of Lands ownership?
investigator
7) Legislative act, or by statute (Aquino) ANS.
1) Introducing valuable improvements on the
Q. What may be presented as proof of the property like fruit‐bearing trees;
identity of the land sought to be registered? 2) Fencing the area;
3) Constructing a residential house thereon; or
ANS. 4) Declaring the same for taxation purposes.
1) Survey plan in general NOTE: Evidence to be admissible must,
2) Tracing cloth plan and blue print copies of however, be credible, substantial and
plan satisfactory (Agcaoili)
3) Technical description of the land
4) Tax Declarations Q. What are the proofs of private ownership of
land?
Q. In case of conflict between areas and
boundaries, which prevails? ANS. STOP
1) Spanish title – now inadmissible and
ANS. Boundaries prevail over area. ineffective as proof of ownership in land
Exceptions: registration proceedings filed after Aug. 16,
1) Boundaries relied upon do not identify 1976.
land beyond doubt. 2) Tax declaration and tax payments – Though
2) Boundaries given in the registration plan not conclusive evidence of ownership, if
do not coincide with outer boundaries of presented as documentary evidence coupled
the land covered and described in the with proof actual possession for the period
muniments of title. required by law of the land, they are good
evidence of ownership.
Q. What may constitute proof of possession?  Even if belatedly declared for taxation
purposes, it does not negate possession
ANS. To prove possession, it is not enough to especially if there is no other claimant of
simply declare one’s possession and that of the the land.
applicant’s predecessors‐in‐interest to have  Mere failure of the owner of the land to
been “adverse, continuous, open, public, pay the realty tax does not warrant a
peaceful and in concept of owner” for the conclusion that there was abandonment
required number of years. The applicant should of his right to the property.
present specific facts to show such nature of 3) Others – testimonial evidence
possession because bare allegations, without 4) Presidential issuances and legislative acts –
more, do not amount to preponderant evidence constitutive of a “fee simple” title or absolute
that would shift the burden to the oppositor. title in favor of the grantee.
(Diaz v. Republic, GR 141031, August 31, 2004)

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Q. What proofs are insufficient to establish

private ownership or right over land? Judgment and Decree of Registration

Q. What must a judgment in land registration

ANS. proceedings contain?
1) Compromise agreement among parties to a
land registration case where they have rights ANS. When judgment is rendered in favor of the
and interest over the land and allocated plaintiff, the court shall order the entry of a new
portions thereof to each of them. certificate of title and the cancellation of the
original certificate and owner’s duplicate of the
NOTE: Assent of Director of Lands and former registered owner.
Director of Forest Management to
compromise agreement did not and could Q: What is decree of registration?
not supply the absence of evidence of title
required of the applicant. ANS. It is a document prepared in the
2) Decision in an estate proceeding of a prescribed form by the LRA Administrator,
predecessor‐in‐interest of an applicant which signed by him in the name of the court,
involves a property over which the decedent embodying the final disposition of the land by
has no transmissible rights, and in other cases the court and such other data found in the
where issue of ownership was not definitely record, including the name and other personal
passed upon . circumstances of the adjudicate, the technical
3) Survey plan of an inalienable land. description of the property, liens and
encumbrances affecting it, and such other
NOTE: Such plan does not convert such land matters as determined by the court in its
into alienable land, much less private judgment (Agcaoili)
property.
Q. What does a decree of registration cover?
Q. After due hearing for registration, what will
the court do? ANS. Only claimed property or a portion
thereof can be adjudicated. A land registration
ANS. If the court, after considering the evidence court has no jurisdiction to adjudge a land to a
and report of the LRA, finds that the applicant person who has never asserted any right of
or the oppositor has sufficient title proper for ownership thereof.
registration, it shall render judgment
confirming the title of the applicant, or the Q. May the court render a partial judgment in
oppositor, to the land or portions thereof, as the land registration proceedings?
case may be. (Sec. 29, PD 1529) ANS. Partial judgment is allowed in a land
registration proceeding, where only a portion of
the land, subject of registration is contested, the
court may render partial judgment provided
that a subdivision plan showing the contested
land and uncontested portions approved by the

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Director of Lands is previously submitted to

said court. NOTE: It may be issued only pursuant to a
decree of registration in an original land
Q. May the court reopen the judgment or registration proceeding.
decree of registration?
Q. How may possession of property be
ANS. The court has no jurisdiction or authority obtained?
to reopen the judgment or decree of registration,
nor impair the title or other interest of a ANS. Possession of the property may be
purchaser holding a certificate for value and in obtained by filing an ex parte motion with the
good faith, or his heirs RTC court of the province or place where the
and assigns, without his or their written property is situated. Upon filing of the motion
consent. and the required bond, it becomes a ministerial
duty of the court to order the issuance of a writ
of possession in favor of the purchaser. After the
Entry of Decree of Registration expiration of the one‐year period without
redemption being effected by the property
Q. What are the effects of the entry of the owner, the right of the purchaser to the
decree of registration in the National Land possession of the foreclosed property becomes
Titles and Deeds Registration Authority absolute. (PNB v. Sanao Marketing
(NALDTRA)? Corporation, GR 153951, July 29, 2005)

ANS. Q. Against whom may a writ of possession be

1) This serves as the reckoning date to issued?
determine the 1‐year period from which one
can impugn the validity of the registration. ANS. In a registration case, a writ of possession
2) 1 year after the date of entry, it becomes may be issued against:
incontrovertible, and amendments will not 1) The person who has been defeated in a
be allowed except clerical errors. It is deemed registration case; and
conclusive as to the whole world. 2) Any person adversely occupying the land
3) Puts an end to litigation. or any portion thereof during the land
registration proceedings up to the
issuance of the final decree (Agcaoili)
Writ of Possession
Q. If the court granted the registration, must
the applicant move for the issuance of a writ of
Q. What is writ of possession?
possession in case he is deprived of possession
over the land subject of the registration
ANS. It is a writ employed to enforce a
proceedings?
judgment to recover the possession of land,
commanding the sheriff to enter into the land
ANS.
and give the possession thereof to the person
1) Yes, if it is against:
entitled under the judgment.

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a) the person who has been defeated in a Q. Differentiate decree of confirmation and
registration case; and registration from decree of registration.
b) any person adversely occupying the
land or any portion thereof during the ANS. Decree of registration is issued pursuant
land registration proceedings up to the to the Property Registration Decree, where there
issuance of the final decree. already exists a title which is confirmed by the
2) No, if it is against persons who took court.
possession of the land after final adjudication Decree of confirmation and registration of title
of the same in a registration proceeding. In is issued pursuant to the Public Land Act, where
which case, the remedy is to file a separate the presumption always is that the land applied
action for: for pertains to the State, and that the occupants
a) unlawful entry; and possessors only claim an interest in the
b) unlawful detainer; or same by virtue of their imperfect title or
c) reinvindicatory action, as the case may continuous, open, and notorious possession.
be, and only after a favorable judgment (Limcoma Multi‐Purpose Cooperative v.
can the prevailing party secure a writ of Republic, GR 167652, July 10, 2007)
possession. (Agcaoili)
Q. What is the doctrine of non‐collateral attack
Q. Does petition for the issuance of a writ of of a decree or title?
possession prescribe?
ANS. A decree of registration and registered
ANS. No, except if a party has once made use of title cannot be impugned, enlarged, altered,
the benefit of a writ of possession, he cannot modified, or diminished either in collateral or
again ask for it, if afterwards he loses possession direct proceeding, after the lapse of one year
of the property obtained by virtue of the from the date of its entry.
original writ.
Q. In a case for recovery of possession based
on ownership, is a third‐party complaint to
Decree of Confirmation and Registration nullify the title of the third‐party defendant
considered a direct attack on the title?
Q. What is decree of confirmation and
registration? ANS. If the object of the third‐party complaint
is to nullify the title of the third‐party
ANS. It is issued by LRA after finality of defendant, the third‐party complaint
judgment, and contains technical description of constitutes a direct‐attack on the title because
land. It is subject only to an appeal. the same is in the nature of an original
It is conclusive evidence of the ownership of the complaint for cancellation of title.
land referred to therein and becomes
indefeasible and incontrovertible after one year
from the issuance of the decree. (Agcaoili)

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Q. If an attack is made thru a counterclaim, 5) Is barred or precluded from bringing an

should it be disregarded for being a collateral action for the recovery of such land or estate
attack? or interest therein. (Agcaoili)

ANS. No. A counterclaim is also considered an Q. What are the requisites for action for
original complaint, and as such, the attack on reconveyance?
the title is direct and not collateral.
ANS.
1) The action must be brought in the name of a
3. Remedies person claiming ownership or dominical
right over the land registered in the name of
Q. What are the remedies of an aggrieved party the defendant;
in registration proceedings? 2) The registration of the land in the name of the
defendant was procured through fraud or
ANS. other illegal means;
1) Relief from judgment 3) The property has not yet passed to an
2) Appeal innocent purchaser for value; and
3) Action for damages 4) The action is filed after the certificate of title
4) Action for compensation from the had already become final and
Assurance Fund incontrovertible but within 4 years from the
5) Action for reconveyance discovery of the fraud.
6) Cancellation of suits
7) Annulment of judgment Appeal
8) New trial
9) Quieting of title Q. In land registration cases, within what
10) Petition for review Decree of Registration period may an appeal be filed?
11) Criminal prosecution
ANS. It must be filed within 15 days from
Q. What are the requisites for action for receipt of the judgment or final order appealed
compensation from the Assurance Fund? from.

ANS. Q. Which courts have appellate jurisdiction

1) That a person sustains loss or damage, or is over land registration cases?
deprived of any estate or interest in land;
2) On account of the bringing of land under the ANS. Judgments and orders in land registration
operation of the Torrens System arising after cases are appealable to the CA or to the SC in
original registration; the same manner as ordinary actions.
3) Through fraud, error, omission, mistake or
misdescription in a certificate of title or entry
or memorandum in the registration book;
4) Without negligence on his part; and

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Q. Who may file an appeal in land registration ground that he was deprived of their
cases? opportunity to be heard in the original
registration case not later than 1 year after the
ANS. Only those who participated in the entry of the decree.
proceedings can interpose an appeal.
Q. On what grounds may a petition for review
Q. In land registration cases, may a party be filed?
validly move for execution pending appeal?
ANS. No. A motion for execution pending ANS.
appeal is not applicable to land registration 1) That a land belonging to a person has been
proceedings. The reason is to protect innocent registered in the name of another or that an
purchasers. interest has been omitted in the application;
2) Registration has been procured thru actual
fraud;
Petition for Review 3) Petitioner is the owner of the said property or
interest therein;
Q. What are the requisites for petition for 4) Property has not been transferred to an
review of Decree of Registration? innocent purchaser for value;
5) Action is filed within one year from the
ANS. issuance and entry of the decree of
1) The petitioner has a real and dominical right; registration; or
2) That he has been deprived thereof (through 6) Actual fraud (extrinsic) must be utilized in
fraud); the procurement of the decree and not
3) That the action is filed within one year from thereafter.
the issuance and entry of the decree of
registration; and Reconveyance
4) That the property has not been transferred to
an innocent purchaser for value. Q. What is action for reconveyance?
Innocent purchaser for value – one who buys
the property of another without notice that ANS. It is a remedy granted to the rightful
some other person has a right to or interest in owner of land which has been wrongfully or
it, and who pays a full and fair price at the erroneously registered in the name of another
time of the purchase or before receiving any for the purpose of compelling the latter to
notice of another person’s claim. It shall be transfer or reconvey the land to him.
deemed to include an innocent lessee,
mortgagee, or other encumbrancer for value. NOTE: This does not aim or purport to re‐open
the registration proceedings and set aside the
Q. In land registration cases, when may a decree of registration but only to show that the
petition for review be filed? person who secured the registration of the
questioned property is not the real owner
ANS. Any person may file a petition for review thereof. It may be filed even after the lapse of
to set aside the decree of registration on the one (1) year from entry of the decree of

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registration as long as the property has not been mistake, as the case may be, in successfully
transferred or conveyed to an innocent obtaining title over a disputed land claimed by
purchaser for value. the plaintiff. (Aquino)

Q. If the ground relied upon for an action for Q. When will a cancellation suit proper?
reconveyance is fraud, what is the period for
filing the same? ANS.
1) When two certificates of title are issued to
ANS. If ground relied upon is fraud, action may different persons covering the same parcel of
be filed within 4 years from discovery thereof. land in whole or in part;
Discovery is deemed to have taken place when 2) When certificate of title is issued covering a
said instrument was registered. It is because non‐registrable property; or
registration constitutes constructive notice to 3) Other causes such as when the certificate of
the whole world. title is issued pursuant to a judgment that is
not final or when it is issued to a person who
did not claim and applied for the registration
Damages of the land covered. (Aquino)

Q. When may an action for damages be Q. What are the rules as regards cancellation of
resorted to in land registration cases? certificates of title belonging to different
persons over the same land?
ANS. It may be resorted to when a petition for
review and an action for reconveyance is no ANS. Where two certificates are issued to
longer possible because the property has passed different persons covering the same land, the
to an innocent purchaser for value and in good title earlier in date must prevail. The latter title
faith. should be declared null and void and ordered
cancelled.
Q. When will an action for damages in land
registration cases prescribe? Q. What is meant by prior est temporae, prior
est in jura?
ANS. An ordinary action for damages
prescribes in ten (10) years after the issuance of ANS. It is a principle which means he who is
the Torrens title over the property. first in time is preferred in right. (Agcaoili)

Quieting of Title
Cancellation Suit
Q. What is action for quieting of title?
Q. What is cancellation suit? ANS. It is an action that is brought to remove
clouds on the title to real property or any
ANS. It is an action for cancellation of title interest therein, by reason of any instrument,
brought by a private individual, alleging record, claim, encumbrance, or proceeding
ownership as well as the defendant’s fraud or which is apparently valid or effective but is in

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truth and in fact invalid, ineffective, voidable or of Register of Deeds. The same title shall be
unenforceable, and may be prejudicial to said reproduced, after proper proceedings, in the
title. same form they were when the loss or
destruction occurred.
Q. Who may file an action to quiet title?
Q. Does reconstitution determine ownership
ANS. of land covered by a lost or destroyed
1) Registered owner; certificate of title?
2) A person who has an equitable right or
interest in the property; or ANS. A reconstituted title, by itself, does not
3) The State. determine or resolve the ownership of the land
covered by the lost or destroyed title. The
NOTES: reconstitution of a title is simply the re‐issuance
 Criminal action – State may criminally of a lost duplicate certificate of title in its
prosecute for perjury the party who original form and condition. It does not
obtains registration through fraud, such as determine or resolve the ownership of the land
by stating false assertions in the sworn covered by the lost or destroyed title. A
answer required of applicants in cadastral reconstituted title, like the original certificate of
proceedings. title, by itself does not vest ownership of the
 Action for damages – Filed in an ordinary land or estate covered thereby. (Alonso, et. al. v.
action for damages if the property has Cebu Country Club Inc., GR 130876, Dec. 5,
passed unto the hands of an innocent 2003)
purchaser for value.
Q. What are the elements of reconstitution of
Remedy in Case of Loss or Destruction of certificates of title?
Certificate of Title
ANS.
Q. What is the remedy in case a person lost his 1) Certificate has been lost or destroyed;
certificate of title? 2) Petitioner is the registered owner or has an
interest therein; and
ANS. 3) Certificate was in force at the time it was lost
1) If what is lost is the OCT or TCT – or destroyed.
Reconstitution of certificate of title;
2) If, however, it is the duplicate of the OCT or Q. What are the jurisdictional requirements in
TCT – Replacement of lost duplicate petitions for reconstitution of title?
certificate of title.
ANS. Notice thereof shall be:
Q. What is reconstitution of certificate of title? 1) Published twice in successive issues of the
Official Gazette;
ANS. The restoration of the instrument which is 2) Posted on the main entrance of the provincial
supposed to have been lost or destroyed in its building and of the municipal building of the
original form and condition, under the custody

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municipality or city, where the land is ANS.

situated; and 1) Judicial reconstitution for OCT (in the
3) Sent by registered mail to every person following order):
named in said notice a) Owner’s duplicate of the certificate of
title
NOTE: The above requirements are b) Co‐owner’s, mortgagee’s or lessee’s
mandatory and jurisdictional. duplicate of said certificate
c) Certified copy of such certificate,
Q. What are the kinds of reconstitution of title? previously issued by the Register of
Deeds
ANS. d) Authenticated copy of the decree of
1) Judicial – partakes the nature of a land registration or patent, as the case may
registration proceeding in rem. The be, which was the basis of the certificate
registered owners, assigns, or any person of title
having an interest in the property may file a e) Deed or mortgage, lease or
petition for that purpose with RTC where encumbrance containing description of
property is located. RD is not the proper property covered by the certificate of
party to file the petition. title and on file with the Registry of
2) Administrative – may be availed of only in Deeds, or an authenticated copy thereof
case of: f) Any other document which, in the
a) Substantial loss or destruction of the judgment of the court, is sufficient and
original land titles due to fire, flood, or proper basis for reconstitution
other force majeure as 2) For TCT (in the following order):
b) determined by the Administrator of the a) Owner’s duplicate of the certificate of
Land Registration Authority title
c) The number of certificates of title lost or b) Co‐owner’s, mortgagee’s or lessee’s
damaged should be at least 10% of the duplicate of said certificate
total number in the possession of the c) Certified copy of such certificate,
Office of the Register of Deeds previously issued by the Register of
d) In no case shall the number of Deeds
certificates of title lost or damaged be d) Deed of transfer of other document
less than P500 containing description of property
e) Petitioner must have the duplicate copy covered by the transfer certificate of title
of the certificate of title (R.A. 6732) and on file with the Registry of Deeds,
or an authenticated copy thereof
NOTE: The law provides for retroactive e) Deed or mortgage, lease or
application thereof to cases 15 years encumbrance containing description of
immediately preceding 1989. property covered by the certificate of
title and on file with the Registry of
Q. From what sources may a certificate of title Deeds, or an authenticated copy thereof
be reconstituted?

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f) Any other document which, in the 2) Petition for replacement should be filed with
judgment of the court, is sufficient and the RTC of the province or city where the
proper basis for reconstitution land lies.
3) Administrative reconstitution 3) Notice to Solicitor General by petitioner is not
a) Owner’s duplicate of the certificate of imposed by law but it is the Register of Deeds
title who should request for representation by the
b) Co‐owner’s, mortgagee’s or lessee’s Solicitor General.
duplicate of said certificate 4) A proceeding where the certificate of title
was not in fact lost or destroyed is null and
void for lack of jurisdiction and the newly
Replacement of Lost Duplicate of Lost issued duplicate is null and void.
Certificate of Title

Q. If what is lost or destroyed is the duplicate Amendment or Correction of Title

title, is reconstitution the proper remedy?
Q. What are the grounds for amendment or
ANS. No. When the duplicate title of the correction of certificate of title?
landowner is lost, the proper petition is not
reconstitution of title, but one filed with the ANS. When:
court for issuance of new title in lieu of the lost 1) registered interests of any description,
copy. whether vested, contingent or inchoate have
terminated and ceased;
Q. Who are the persons entitled to a duplicate 2) new interests have arisen or been created
Certificate of Title? which do not appear upon the certificate;
3) any error, omission or mistake was made in
ANS. entering a certificate or any memorandum
1) Registered owner thereon or on any duplicate certificate;
2) Each co‐owner 4) the name of any person on the certificate has
been changed;
Q. What are the requirements for the 5) the registered owner has been married, or
replacement of lost duplicate certificate of registered as married, the marriage has
title? terminated and no right or interest of heirs or
creditors will thereby be affected;
6) a corporation, which owned registered land
ANS. and has been dissolved, has not conveyed the
1) Due notice under oath shall be sent by the same within 3 years after its dissolution; or
owner or by someone in his behalf to the 7) there is a reasonable ground for the
Register of Deeds of the province or city amendment or alteration of title.
where the land lies as soon as the loss or theft
is discovered.

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3) Where the owner’s duplicate certificate is not

Q. What are the requisites for the amendment presented for amendment or alteration
or correction of title? pursuant to a court order.

ANS.
1) It must be filed in the original case; Reversion
2) By the Registered owner or a person in
interest; Q. What is meant by reversion?
3) On grounds enumerated;
4) All parties must be Notified; ANS. It is an action instituted by the
5) There is Unanimity among them; and government, through the Solicitor General, for
6) Original decree must not be Opened. cancellation of certificate of title and the
consequential reversion of the land covered
thereby to the State. (Aquino)
Cancellation of Title

Q. What are the grounds for cancellation of

title?
Q. When does reversion apply?
ANS.
1) When title is void; ANS. Generally, reversion applies in all cases
2) Title is replaced by one issued under a where lands of public domain and the
cadastral proceeding; or improvements thereon and all lands are held in
3) When condition for its issuance has been violation of the Constitution.
violated by the registered owner.
Q. What are the grounds for reversion of lands
covered by a patent?
Surrender of Withheld Duplicate Certificate of
Title ANS.
1) Violation of Secs. 118, 120, 121 and 122, Public
Q. What are the grounds for surrender of Land Act (e.g. alienation or sale of homestead
withheld duplicate certificate of title? executed within the 5 year prohibitory period
2) When land patented and titled is not capable
ANS. of registration
1) When it is necessary to issue a new certificate 3) Failure of the grantee to comply with the
of title pursuant to any involuntary conditions imposed by law to entitle him to a
instrument which divests the title of the patent grant
registered owner against his consent; 4) When the area is an expanded area
2) Where a voluntary instrument cannot be 5) When the land is acquired in violation of the
registered by reason of the refusal or failure Constitution (e.g., land acquired by an alien
of the holder to surrender the owner’s may be reverted to the State)
duplicate certificate of title; or

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If the judgment Does not constitute

4. Cadastral registration determines res judicata so
ownership, then it same claimant
Q. What is cadastral registration? is res judicata upon may subsequently
the parties. file an application
ANS. It is a proceeding in rem, initiated by the for judicial
filing of a petition for registration by the confirmation of
government, not by the persons claiming title to the same
ownership of the land subject thereof, and the land
latter are, on the pain of losing their claim
thereto, in effect compelled to go to court to Q. What is the procedure in cadastral
make known their claim or interest therein, and registration?
to substantiate such claim or interest.
ANS.
NOTE: Only unregistered lands may be the 1) Cadastral survey
subject of a cadastral survey. 2) Filing of petition
3) Publication of notice of initial hearing
Q. Distinguish ordinary registration from 4) Filing of answer
cadastral registration. 5) Hearing of case
6) Decision
ANS. 7) Issuance of decree & certificate of title
Ordinary Cadastral
Registration Registration
Voluntary Compulsory E. SUBSEQUENT REGISTRATION
Applicant is a Applicant is the
person Director of Lands Q. What is subsequent registration?
claiming title to the
land ANS. It is where incidental matters after
Involves private All classes of land original registration may be brought before the
land, or public are covered land registration court by way of motion or
agricultural lands (private and public petition filed by the registered owner or a party
if the object of the alienable lands) in interest.
action is judicial
confirmation of Q. What are the rules as to the necessity and
imperfect or effects of subsequent registration?
incomplete title
Applicant comes to Government asks ANS. The mere execution of deeds of sale,
court to confirm his the court to settle mortgages, leases or other voluntary documents
title and seek and adjudicate the serves only two purposes:
registration of the title of the land a) as a contract between the parties thereto
land in his name b) as evidence of authority to the RD to
register such documents (Sec. 51, PD 1529)

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Exception: Wills that purport to convey or affect documents which processes issued by
a registered land. are results of the the court of record
free and voluntary affecting registered
NOTE: It is only the act of registering the acts of the parties land, also other
instrument in the RD of the province or the city thereto instruments which
where the land lies which is the operative act are not willful acts
that conveys ownership or affects the land of the registered
insofar as third persons are concerned (Sec. 51, owner, executed
PD 1529). without his
The act of registration creates a constructive knowledge or
notice to the whole world of such voluntary or consent
involuntary instrument or court writ or process. Includes sale, real Includes
(Sec. 52, PD 1529) property attachment,
mortgage, Lease, mandamus, sale on
Q. Is mere registration in the entry or day book pacto de retro sale, execution of
of the deed of sale without the presentation of extra-judicial judgment or sales
the duplicate certificate enough to effect settlement, free for taxes, adverse
conveyance? patent or claims, notice of lis
homestead, power pendens,
ANS. of attorney, trusts expropriation,
1) No, in case of voluntary transfer. Such is the forfeiture, auction
willful act of the owner. It is presumed that sale on foreclosure
he is interested in registering the instrument. of mortgage
2) Yes, in case of involuntary transfer. Such Presentation of the Entry in the day
registration is contrary to the interests of the owner’s duplicate book of RD is
owner. Mere entry is enough. certificate of title is sufficient notice to
required all persons
NOTE: When a land subject of a sale is
registered in the name of the purchaser,
registration takes effect retroactively as of the 1. Voluntary dealings
date the deed was noted in the entry book by the
RD. Q. What are voluntary dealings?

ANS. Voluntary dealings are deeds,

Q. Differentiate voluntary from involuntary instruments, documents which are the results of
dealings. free and voluntary acts of parties thereto.

ANS. Q. Must voluntary dealings be registered?

Voluntary Involuntary
Dealings Dealings ANS. No. Registration is not a requirement for
Refer to deeds, Refer to the writs, validity of the contract as between the parties.
instruments, or orders, or However, the act of registration shall be the

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operative act to convey or affect the land insofar ANS. Yes. It is the act of registration which
as third parties are concerned. (Sec. 51, PD 1529) creates a constructive notice to the whole world
of such instrument or court writ or process and
Q. What are the requirements for registrability is the operative act that conveys ownership or
of deeds and other voluntary acts of affects the land insofar as third persons are
conveyance? concerned. (Aquino)

ANS. PIPE Q. What involuntary dealings affecting

1) Presentation of owner’s duplicate certificate registered land must be registered?
whenever any duly executed voluntary ANS.
instrument is filed for registration; a) Attachments (Sec. 69, PD 1529)
2) Inclusion of one extra copy of any document b) Adverse claim (Sec. 70, PD 1529)
of transfer or alienation of real property, to be c) Sale on execution or for taxes or for any
furnished to the city or provincial assessor; assessment (Sec. 74, PD 1529)
3) Payment of prescribed registration fees and d) Notice of lis pendens (Sec. 76, PD, 1529)
requisite doc stamps; and
4) Evidence of full payment of real estate tax as Attachment
may be due.
Q. What is attachment?
Q. What is the effect of registration of such
voluntary dealings? ANS. It is a writ issued at the institution or
during progress of an action commanding the
ANS. sheriff to attach the property, rights, credits, or
1) Creates a lien that attaches to the property in effects of the defendant to satisfy demands of
favor of the mortgagee; and the plaintiff.
2) Constitutes constructive notice of his interest
in the property to the whole world. Q. What is the duty of Register of Deeds in
attachment?

2. Involuntary dealings ANS. His duty is ministerial but may refuse

registration in the following:
Q. What are involuntary dealings? a) Title to land is not in the name of
defendant, except if petitioner is an heir;
ANS. Involuntary dealings refer to the writ, b) No evidence is submitted to show that he
order, or process issued by the court of record has present or possible future interest in
affecting registered land, also other instruments land
which are not willful acts of the registered
owner, executed without his knowledge or
consent.

Q. Must involuntary dealings be registered?

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Q. How are adverse claims registered?

Adverse Claim ANS. By filing a sworn statement with the

Register of Deeds of the province where the
Q. What is adverse claim? property is located, setting forth the basis of the
ANS. It is a notice to third persons that someone claimed right together with other data pertinent
is claiming an interest on the property or has a thereto. (Agcaoili)
better right than the registered owner thereof,
and that any transaction regarding the disputed NOTE: Entry of the adverse claim filed on the
land is subject to the outcome of the dispute. day book is sufficient without the same being
annotated at the back of the corresponding
Q. When is a claim of interest adverse? certificate of title (Director of Lands v. Reyes,
G.R. No. L‐27594, Feb. 27, 1976)
ANS.
1) Claimant’s right or interest in registered land Q. What claims may be registered as adverse
is adverse to the registered owner; claims?
2) Such right arose subsequent to the date of
original registration; or ANS. Any claim of part or interest in registered
3) No other provision is made in the decree for land that are adverse to the registered owner,
the registration of such right or claim. arising subsequent to the date of the original
registration (Sec. 70, PD 1529)
Q. What are the formal requisites of an adverse
claim for purposes of registration? NOTE: A mere money claim cannot be
registered as an adverse claim.
ANS.
1) Adverse claimant must state the following in Q. What is the effect of the registration of an
writing: adverse claim?
a) his alleged right or interest;
b) how and under whom such alleged ANS. It renders the adverse claim effective and
right of interest is acquired; any transaction regarding the disputed land
c) description of the land in which the shall be subject to the outcome of the dispute
right or interest is claimed; and (Aquino)
d) certificate of title number
2) Such statement must be signed and sworn to Q. What is the effect of non‐registration of an
before a Notary public; and adverse claim?
3) Claimant shall state his Residence or place to
which all notices may be served upon him. ANS. The effect of non‐registration or invalid
registration of an adverse claim renders it
ineffective for the purpose of protecting the
claimant’s right or interest on the disputed land,
and could not thus prejudice any right that may

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have arisen thereafter in favor of third parties remain annotated and shall continue as a lien to
(Aquino) the property. (Agcaoili)

Q. What are the limitations to the registration

of an adverse claim? Sale on Execution or For Taxes or For Any
Assessment
ANS.
1) No second adverse claim based on the same Q. What is sale on execution?
ground may be registered by the same
claimant. ANS. A sale of property by the sheriff under
2) A mere money claim cannot be registered as authority of a court's writ of execution in order
an adverse claim. satisfy an unpaid obligation.

Q. May an adverse claim exist concurrently Q. What is the process of registration for sale
with a subsequent annotation of a notice of lis on execution?
pendens?
ANS.
ANS. Yes, an adverse claim may exist 1) Officer’s return shall be submitted to RD
concurrently with a subsequent annotation of a together with duplicate title
notice of lis pendens. When an adverse claim 2) Register in the registration book
exists concurrently with a notice of lis pendens, 3) Memorandum shall be entered in the
the notice of adverse claim may be validly certificate as an adverse claim or
cancelled after the registration of such notice, encumbrance
since the notice of lis pendens also serves the 4) After the period of redemption has expired
purpose of the adverse claim. (Agcaoili) and no redemption is made two years from
registration of auction sale, the title shall be
cancelled and a new one will be issued
Q. What is the duration of a registered adverse 5) Before cancellation, notice shall be sent to
claim? registered owner to surrender title and show
cause why it shall not be cancelled
ANS. The adverse claim shall be effective for a
period of thirty (30) days from the date of NOTE: Actual knowledge of a person is
registration and it may be cancelled. (Agcaoili) equivalent to registration as against him.

Q. What is the effect of the expiration of the

period of effectivity of an adverse claim? Notice of Lis Pendens

ANS. The expiration does not ipso facto Q. What is notice of lis pendens?
terminate the claim. The cancellation of the
adverse claim is still necessary to render it ANS. Lis pendens literally means a pending suit.
ineffective, otherwise, the inscription will The doctrine of lis pendens refers to the
jurisdiction, power or control which a court

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acquires over property involved in a suit, Q. When is notice of lis pendens not proper?
pending the continuance of the action, and until
final judgment. (Agcaoili) 1) Proceedings for the recovery of money
It merely creates a contingency and not a lien. It judgments
does not produce any right or interest which 2) Attachments
may be exercised over the property of another. 3) Proceedings on the probate of wills
It only protects the applicant’s rights which will 4) Administration of the estate of deceased
be determined during trial. (Aquino) persons
5) Levies on execution
Q. What are the purposes of a notice of lis 6) Foreclosure
pendens?
Q. What are the effects of the annotation of
ANS. notice of lis pendens?
1) To protect the rights of the party causing the
registration of the lis pendens; and ANS.
2) To advise third persons who purchase or 1) It keeps the subject matter of litigation within
contract on the subject property that they do the power of the court until the entry of the
so at their peril and subject to the result of the final judgment to prevent the defeat of the
pending litigation. (Agcaoili) final judgment by successive alienation; and
2) It binds a purchaser, bona fide or not, of the
NOTE: A notice of lis pendens is intended to land subject of the litigation to the judgment
constructively advise, or warn all people who or decree that the court will promulgate
deal with the property that they so deal with subsequently (Agcaoili)
it at their own risk, and whatever rights they
may acquire in the property in any voluntary Q. What statutory liens affecting title are not
transaction, are subject to the results of the barred even though not noted in the title?
action, and may well be inferior and
subordinate to those which may be finally ANS.
determined and laid down therein. 1) Liens, claims or rights arising or existing
under the laws and the Constitution, not
required by law to appear of record in the
Q. When is notice of lis pendens proper? RD;
2) Unpaid real estate taxes levied and assessed
ANS. within two (2) years immediately preceding
1) To recover possession of real estate the acquisition of any right over the land by
2) To quiet title an innocent purchaser for value without
3) To remove clouds upon the title thereof prejudice to right of the government to collect
4) For partition taxes payable before that period from the
5) Other proceedings of any kind in court delinquent taxpayer alone;
directly affecting the title to land or the use or 3) Public highway or private way established or
occupation thereof or the buildings thereon recognized by law or any government
irrigation canal or lateral thereof; and

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4) Any disposition of the property or limitation

on the use thereof by virtue of laws or
regulations on agrarian reform (Sec. 44, PD F. NON-REGISTRABLE PROPERTIES
1529).
Q. What are non‐registrable lands?
Q. When may a notice of lis pendens be
cancelled? ANS. These are properties of public dominion
which, under existing legislation, are not the
ANS. A notice of lis pendens may be cancelled subject of private ownership and are reserved
in the following cases before final judgment for public purposes. (Aquino) They are outside
upon order of the court: the commerce of men and, therefore, not subject
1) When it is shown that the notice is for the to private appropriation.
purpose of molesting the adverse party;
2) Where the evidence so far presented by the Q. What lands are non‐registrable?
plaintiff does not bear out the main
allegations of the complaint; ANS.
3) When it is shown that it is not necessary to 1) Property of public domain or those
protect the right of the party who caused intended for public use, public service or
the registration thereof; development of the national wealth.
4) Where the continuances of the trial are 2) Forest or timber lands
unnecessarily delaying the determination 3) Water sheds
of the case to the prejudice of the 4) Mangrove swamps
defendant; 5) Mineral lands
5) Upon verified petition of the party who 6) Parks and plazas
caused the registration thereof; or 7) Military or naval reservations
6) It is deemed cancelled after final judgment 8) Foreshore lands
in favor of defendant, or other disposition 9) Reclaimed lands
of the action, such as to terminate all rights 10) Submerged areas
of the plaintiff to the property involved. 11) River banks
12) Lakes
Q. May a notice of lis pendens be cancelled 13) Reservations for public and semi‐public
despite the pendency of the case? purposes
14) Others of similar character (Agcaoili)
ANS. Yes. Though ordinarily a notice of lis
pendens cannot be cancelled while the action is
still pending and undetermined, the proper
court has discretionary power to cancel it under
peculiar circumstances.

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Q. Distinguish tort from breach of contract.

G. DEALINGS WITH UNREGISTERED
LANDS ANS. Tort duties are imposed as rules of law
while contract duties are created by the
Q. What are the effects of transactions promises of the parties. (De Leon).
covering unregistered land?
Q. What are the requisites of quasi-delict?
ANS.
1) As between the parties – The contract is ANS.
binding and valid even if not registered 1) Act or omission committed through fault or
2) As among third persons – There must be negligence;
registration for the transaction to be binding 2) Damage or injury is caused by such act or
against third persons omission;
3) Does not arise under a pre-existing
Q. Is the transfer of an unregistered land contractual obligation (Chan, Jr. v. Iglesia Ni
valid? Cristo, Inc., GR 160283, October 14, 2005)

ANS. Yes but only between the parties and does

not bind third persons. No deed, conveyance, 1. Abuse of right; elements
mortgage, lease, or other voluntary instrument
affecting land not registered under the Torrens Q. What is the principle of abuse of right?
system shall be valid, except as between the
parties thereto, unless such instrument shall ANS. The principle of abuse of right prescribes
have been recorded in the manner herein that a person should not use his right unjustly
prescribed in the office of the Register of Deeds or contrary to honesty and good faith, otherwise
for the province or city where the land lies. (Sec. he opens himself to liability. (Art. 19, NCC)
113, PD1529)
NOTES:
 It is the absence of good faith which is
XIII. TORTS essential for application of Art. 19.
 While the said provision lays down a rule
of conduct for the government of human
A. PRINCIPLES
relations and for the maintenance of social
order, the remedies for its violations may
Q. Define quasi-delict.
be found in Arts. 20 and 21.

ANS. Quasi-delict is act or omission that causes

Q. What are the requirements for an act to
damage to another, there being fault or
constitute an abuse of right?
negligence, BUT there is no pre-existing
contractual relation between the parties. (Art.
ANS.
2176, NCC).
1) There is a legal right or duty;
Other terms: tort, culpa aquiliana
2) Such is exercised in bad faith;

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3) For the sole intent of prejudicing or injuring ANS. Even when an act or event causing
another. damage to another’s property was not due to
the fault or negligence of the defendant, the
Q. What are the effects of application of Art. latter shall be liable for indemnity if through the
19? act or event he was benefited. (Art. 23, NCC)
After certain facts have been established as a
ANS. premise, liability under strict tort is almost
1) A right, though by itself legal, may absolute because the law expects every person
nevertheless become the source of some to comply with certain absolute duties to make
illegality, i.e., when a right is exercised in a society safe.
manner which does not conform with the Other terms: strict liability, strict tort, absolute
norms in Art. 19 and it results in damage to liability
another. Example: People presume that the food they
2) It precludes the defense of damnum absque buy is safe so they eat it immediately without
injuria. feeling the need to inspect with extreme care;
hence, there is a need for strict tort against food
2. Unjust enrichment makers.

Q. What is the principle of unjust enrichment? 4. Acts contrary to law

ANS. Every person who through an act of Q. What is the remedy in cases where the law
performance by another, or any other means, declares an act illegal but fails to provide for a
acquires or comes into possession of something relief to the party injured?
at the expense of the latter without just or legal
ground, shall return the same to him. (Art. 22, ANS. Every person who, contrary to law,
NCC) willfully or negligently causes damage to
another, shall indemnify the latter for the same.
Q. What are the elements of unjust (Art. 20, NCC)
enrichment? NOTE: “Willfully” connotes an evil or
malicious motive.
ANS.
1) that a person is benefited without a valid Q. What are the requisites of acts contra bonus
basis or justification; and mores?
2) that such benefit is derived at the expense of
another (Flores v. Spouses Lindo, Jr., 664 Phil. ANS.
210, 221 (2011)) 1) The act must be willful or negligent;
2) It must be contrary to law; and
3. Liability without fault 3) Damages must be suffered by the injured
party.
Q. What is liability without fault?
NOTE: The mala fide exercise of a legal right in
accordance with Art. 19 is penalized by Art. 21.

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Art. 19 imposes upon all persons exercising jurisdiction by granting adequate legal remedy
their legal rights the duty to act with justice, for the untold number of moral wrongs which
give everyone his due, and to observe honesty is impossible for human foresight to specifically
and good faith. Failure to discharge such duties enumerate and punish in statute books” (Baksh
is compensable under Art. 20 if the act is v. CA)
"contrary to law" and under Article 21 if the act
is legal but contrary to morals, good customs, or
public policy. (Mata v. Agravante, 583 Phil. 64 B. CLASSIFICATION OF TORTS
(2008).)
1. According to manner of commission
Q. Give examples of acts contra bonus mores.

Q. What are the classification of torts

ANS.
according to manner of commission?
a) Breach of promise to marry and moral
b) seduction
1) Negligent tort – involves voluntary acts or
c) Malicious prosecution
omissions which result in damage or injury
d) Public humiliation
to others without intending to cause the same
e) Oppressive dismissal
or because the actor fails to exercise due care
in performing such acts or omissions;
5. Acts contrary to morals 2) Intentional tort – perpetrated by one who
intends to do that which the law has declared
Q. What is the liability of a person whose acts wrong. It is a conduct where the actor desires
is contrary to morals and such causes damage to cause the consequences of his act or
to another? believes the consequences are substantially
certain to result therefrom.
ANS. Every person who through an act of
performance by another, or any other means,
2. According to scope
acquires or comes into possession of something
at the expense of the latter without just or legal
Q. What are the classification of torts
ground, shall return the same to him. Art. 22.
according to manner of commission?

Q. What are the elements of acts contrary to

ANS.
morals under Art. 22 of the NCC?
1) Human relations tort – liability for act or
omission causing damage or prejudice to
ANS.
another founded on the principle of justice
1) One willfully causes injury or loss to another;
*Includes Art. 19 (Abuse of Rights), Art. 20
2) It was done in a manner that is contrary to
(Acts Contrary to Law), Art. 21 (Acts contrary to
morals, good customs, or public policy
Morals), and Art. 26 (Violation of Human
3) Act done to cause injury or loss must be legal
Dignity) of the NCC
2) Strict liability tort – rests not on negligence
NOTE: This article is designed “to expand the
but on intentional doing of that which a
concept of torts and quasi-delict in this
person knows or should, in the exercise of
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ordinary care, know may reasonably cause 2. Persons made responsible for others
loss to another in the normal course of events.
Also known as “absolute liability” or Q. What is vicarious liability or doctrine of
“liability without fault” imputed negligence?
*Includes Art. 1711, 1723, 2183, 2187,
2189-2193 of the NCC ANS: A person is not only liable for torts
committed by himself, but also for torts
committed by others with whom he has a
C. THE TORTFEASOR certain relation or for whom he is responsible.
(Art. 2180, NCC)
Q. Who is a tortfeasor?
NOTE: A person or juridical entity is made
ANS. Any person legally responsible is liable liable solidarily with a tortfeasor simply by
for a tort committed by him provided, if it is the reason of his relationship with the latter.
proximate cause of an injury to another. He may
either be a natural or artificial being. Q. Mar rented a car from Avis at the NAIA. No
1. Direct tortfeasor sooner had he driven the car outside the
airport when, by his negligence, he collides
Q. Who is a direct tortfeasor? with a taxi owned and driven by Jong, causing
damage to Jong’s taxi. Jong files an action for
ANS. The person who is held liable for acting damages against Mar and Avis based on a
with an intention that the law treats as quasi-delict. Avis defends that the complaint
unjustified, or acting in a way that departs from fails to state a cause of action against the
a reasonable standard of care. company. Is Avis correct?

Yes. Avis is not the employer of Mar so there is

a. Natural persons
no right of action against Avis under Article
2180 of the Civil Code. Not being the employer,
Q. What are the requisites for a natural person
Avis has no duty to supervise Mar. Neither has
to be liable as a direct tortfeasor?
Avis the duty to observe due diligence in the
selection of its clients. As lessee of the car, Mar
ANS.
alone is liable to Jong.
1) Act or omission
2) Damage to another
Q. Is there a presumption of negligence on
3) Fault or negligence
persons indirectly responsible?
4) No pre-existing contractual relation
ANS. The presumption of law is that there was
b. Juridical persons negligence on the part of the master or employer
either in the selection of the servant or employee
For juridical persons, the rules on vicarious (culpa in eligendo) or in the supervision over
liability in the next section applies. him after the selection (culpa vigilando), or
both.

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Q. Who are joint tortfeasors?

Q. When is the doctrine of vicarious liability
not applicable? ANS. Two or more persons acting together in
committing a wrong, or contributing to its
ANS. When moral culpability can be directly commission, or participating therein actively
imputed to the direct tortfeasor, as when there and with common intent, so that injury results
is actual intent to cause harm to others. to a third person therefrom.

Q. Other the direct tortfeasor, who are the Q. What is the liability of joint tortfeasors?
persons made responsible for others?
ANS. The responsibility of two or more persons
ANS. who are liable for quasi-delict is solidary. (Art.
a) The father and, in case of his death or 2194, NCC)
incapacity, the mother – for the damages
caused by the minor children who live in
their company; D. PROXIMATE CAUSE
b) Guardians – for damages caused by the
minors or incapacitated persons who are
1. Concept
under their authority and live in their
company;
Q. Define proximate cause.
c) Owners and managers of an establishment or
enterprise – for damages caused by their
ANS. Proximate cause is that which, in natural
employees in the service of the branches in
and continuous sequence, unbroken by an
which the latter are employed or on the
efficient intervening cause, produces injury,
occasion of their functions;
and without which, the result would not have
d) Employers – for the damages caused by their
occurred.
employees and household helpers acting
within the scope of their assigned tasks, even
Q. Distinguish proximate cause from remote
though the former are not engaged in any
cause.
business or industry;
ANS. The proximate cause is distinguished
e) State – when it acts through a special agent;
from remote cause which
f) Teachers or heads of establishments of arts
is defined as that cause which some
and trades – for damages caused by their
independent force merely took advantage of to
pupils and students or apprentices, so long as
accomplish something not the natural effect
they remain in their custody.
thereof. (Aquino) It is one, which would have
The liability shall cease upon proof that they observed
been a proximate cause, had there been no
all the diligence of a good father of a family to prevent
efficient intervening cause after it and prior to
damage. (Art. 2180, NCC)
the injury.

Q. Distinguish proximate cause from

3. Joint tortfeasors concurrent cause.

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ANS. A concurrent cause is one, which along defendant’s negligence was a cause-in-
with other causes, produces the injury. Each fact.
cause is an efficient cause without which the
injury would not have happened. While, in NOTE: The question of proximate cause does
proximate cause, it is not necessarily the sole not only involve cause and effect analysis. It
cause of the accident. The defendant is still also involves policy considerations that limit the
liable in case there is concurrent causes liability of the defendants in negligence cases.
brought about by acts or omissions of third
persons. (Aquino) 2. Cause in fact

Q. Distinguish proximate cause from Q. Define cause-in-fact.

intervening cause.
ANS. It is such negligent conduct without
ANS. An intervening cause is an event that which the injury would not have occurred or is
takes place after the first cause and before the the efficient cause which set in motion the chain
injury. of circumstances leading to the injury.

Q. What proof is necessary to establish Q. What are the test to determine cause-in-fact?
proximate cause? ANS.
1) But-For Test or Sine Qua Non Test – The
ANS. Plaintiff must show that the violation of defendant’s conduct is the cause-in-fact if
the statute is the proximate or legal cause of the damage would not have resulted had there
injury or that it substantially contributed been no negligence on the part of the
thereto. (Sanitary Steam Laundry, Inc. vs. CA defendant. Conversely, defendant’s
300 SCRA 20) negligent conduct is not the cause in fact of
Exception: In cases where the damage to the the plaintiff’s damage if the accident could
plaintiff is the damage sought to be prevented not have been avoided in the absence thereof.
by the statute. In such cases, proof of violation
of statute and damage to the plaintiff may itself 2) Substantial Factor Test - makes the negligent
establish proximate cause. (Teague vs. conduct the cause in fact of the damage if it
Fernandez 51SCRA181). was a substantial factor in producing the
injuries. Such causes set in motion by the
Q. What are the tests of proximate cause? defendant must continue until the moment
of the damage or at least down the setting in
ANS. Two-part test: motion of the final active injurious force
1) Cause-in-fact test – determine if which immediately produced or preceded
defendant’s negligence was the cause-in- the damage.
fact of the damage to the plaintiff. If
defendant’s negligence was not a cause-in- NOTE: If the defendant’s conduct was
fact, the inquiry stops. already determined to be the cause in fact of
2) Policy test – inquiry shifts to the question the plaintiff’s damage under the but for test,
of limit of the defendant’s liability if

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it is necessarily the cause in fact of the ANS. Many courts have sought to distinguish
damage under the substantial factor test. between the active "cause" of the harm and the
3) Necessary and Sufficient (NESS) Test – The existing "conditions" upon which that cause
act or omission is a cause-in-fact if it is a operated but the distinction is now almost
necessary element of a sufficient set (NESS). entirely discredited. It is not the distinction
between “cause” and “condition” which is
3. Efficient intervening cause important, but the nature of the risk and the
character of the intervening cause. (Phoenix
Q. Define efficient intervening cause. Construction v. IAC, G.R. No. L-65295 (1987)).

ANS. An efficient intervening cause is one that 5. Last clear chance

destroys the causal connection
between the negligent act and injury and Q. What is Doctrine of Last Clear Chance?
thereby negatives liability.
Other term: novus actus interviens ANS. The negligence of the plaintiff does not
preclude a recovery for the negligence of the
Q. When is efficient intervening cause not defendant where it appears that the defendant,
applicable? by exercising reasonable care and prudence,
might have avoided injurious consequences to
ANS. There is no efficient intervening cause if the plaintiff notwithstanding the plaintiff’s
the force created by the negligent act or negligence.
omission have either: Other terms: Doctrine of Discovered Peril.
1) remained active itself; Doctrine of Supervening Negligence
2) created another force which remained
active until it directly caused the result; Q. What are the requisites of the doctrine of
3) created a new active risk of being acted last clear chance?
upon by the active force that caused the
result. ANS.
1) Plaintiff was in a position of danger and, by
Q. Can foreseeable intervening causes be his own negligence, became unable to escape
sufficient intervening causes? from such position by the use of ordinary
care;
ANS. Foreseeable intervening causes cannot be 2) Defendant knew that the plaintiff was in a
considered sufficient intervening causes position of danger or in the exercise of
because there is an opportunity to guard against ordinary care should have known such;
them. 3) Defendant had the last clear chance to avoid
the accident by the exercise of ordinary care
4. Cause as distinguished from condition but failed to exercise such last clear chance;
and
Q. Distinguish cause from condition. 4) The accident occurred as a proximate result
of such failure.

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Q. Who may invoke the doctrine of last clear NOTE: In order that the law will give redress
chance? for an act causing damage, that act must be not
only hurtful, but wrongful. (Aquino)
ANS.
a) Plaintiff or person injured Q. Distinguish injury from damage and
b) Defendant - he may prove that plaintiff had damages.
the last clear opportunity and establish that
plaintiff was guilty of contributory ANS.
negligence. a) Injury is the legal invasion of a legal right.
b) Damage is the loss, hurt, or harm which
Q. When is the doctrine of last clear chance not results from the injury.
applicable? c) Damages are the recompense or
compensation awarded for the damage
ANS. suffered.
1) If the plaintiff was not negligent;
2) The party charged is required to act NOTE: There can be damage without injury in
instantaneously, and if the injury cannot be those instances in which the loss or harm was
avoided by the application of all the means at not the result of a violation of a legal duty.
hand after the peril is or should have been
discovered; 2. Elements of right
3) If defendant’s negligence is a concurrent
cause and which was still in operation up to **Please refer to earlier discussions on the elements
the time the injury was inflicted; of Arts. 19 to 22.**
4) Where the plaintiff, a passenger, filed an
action against a carrier based on contract;
3. Violation of right or legal injury
5) If the actor, though negligent, was not aware
of the danger or risk brought about by the
Under Arts. 19 to 21 of the NCC, an act which
prior fraud or negligent act.
causes injury to another may be made the basis
for an award of damages. Discussions,
including elements for these abuses are
E. LEGAL INJURY
discussed earlier in the earlier part.
4. Classes of injury
1. Concept

Q. What are the classes of injury?

Q. Define legal injury.
ANS.
ANS. Legal injury is an act or omission which
1) Legal Injury
the law does not deem an injury. The law
2) Damnum absque injuria
affords no remedy for damages resulting from
such act or omission. These situations are often
**Please refer to earlier discussions.
called damnum absque injuria.

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F. INTENTIONAL TORTS Q. What are the kinds of interference with

rights to persons and property under the Civil
Code?
1. General
ANS.
1) Abuse of right (Art. 19)
a. Concept 2) Breach of statutory duty (Art. 20)
3) Contra bonus mores (Art. 21)
Q. What are intentional torts? 4) Damage to property – Even when an act or
event causing damage to another's property
ANS. Intentional torts include conduct where was not due to the fault or negligence of the
the actor desires to cause the consequences of defendant, the latter shall be liable for
his act or believes the consequences are indemnity if through the act or event he was
substantially certain to result from it. (Aquino) benefited. (Art. 23)

Q. Give examples of intentional torts. NOTE: The indemnity does not include
unrealized profits of the injured party,
ANS. because defendant’s enrichment is the limit
a) Assault of his liability. The plaintiff has the burden
b) Battery of proving the extent of the benefit or
c) False imprisonment (dignitary tort) enrichment of the defendant. (Tolentino)
d) Defamation 5) Rights under Art. 26
e) Invasion of privacy a) right to personal dignity;
f) Interference of property, e.g., trespass to land b) right to personal security;
g) Intentional Infliction of Emotional Distress c) right to family relations;
h) Conversion d) right to social intercourse;
e) right to privacy
Invasion of the right of privacy involves
b. Classes four distinct types of tort:
i. intrusion upon the plaintiff's
Q. What are the classes of intentional torts? physical and mental solitude;
ii. public disclosure of private facts;
ANS. (Carpio, PLJ, Vol. 47) iii. placing the plaintiff in false light
1) Those adopted from American jurisprudence in the public eye; and
(Arts. 26, 32, and 1314, NCC) iv. the commercial appropriation of
2) Those taken from the codes of civil law the plaintiff’s name or likeness; ;
jurisdictions (Arts.19, 20, 21, 23, 27, and 28, and
NCC) f) right to peace of mind.
Similarly, the following, though they may
not constitute a criminal offense, shall
2. Interference with rights to persons and produce a cause of action for damages,
property prevention and other relief:

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i. Prying into the privacy of 1) Adultery with the wife –the husband may
another’s residence; maintain an action not only where the
ii. Meddling with or disturbing the intercourse is the result of rape, but also
private life or family relations of where the wife consents to it, or where she
another; herself seduces the defendant.
iii. Intriguing to cause another to be 2) Alienation of affection – The Family Code
alienated from his friends; imposes on the spouses the obligation to live
iv. Vexing or humiliating another on together, observe mutual love, respect and
account of his religious beliefs, fidelity, and render mutual help and support.
lowly station in life, place of birth, (Art. 68, FC)
physical defect, or other personal  This refers to one spouse’s mental
condition. attitude toward the other and the
6) Dereliction of duty conjugal kindness of marital relations
Any person suffering material or moral loss resulting in some actual conduct which
because a public servant or employee materially affects it.
refuses or neglects, without just cause, to  The person who purposely entices the
perform his official duty may file an action spouse of another, to alienate his or her
for damages and other relief against the affections with his or her spouse, even if
latter, without prejudice to any disciplinary there are no sexual intimacies is liable
administrative action that may be taken. for damages under this article.
(Art. 27, NCC)  A person who prevented the
This applies only to acts of nonfeasance or reconciliation of spouses after their
the nonperformance of some acts which a separation is liable for alienation of
person is obliged or has responsibility to affections.
perform. 3) Parent and child –
7) Violation of civil and political rights  A child can bring a tort action for
injuries inflicted on him by the parent
3. Interference with relations through excessive punishment.
 Similarly, a parent can also institute a
Q. What are the kinds of interference with personal tort action against the child
relations? under Art. 26, like an action for assault
or battery.
ANS. Interference with: 4) Loss of consortium – Moral damages were
1) Family relations; awarded because of the wife’s refusal to
2) Social relations; perform her wifely duties, her denial of
3) Economic relations; and consortium and desertion of her husband.
4) Political relations. Her acts constitute a willful infliction of
injury upon her husband’s feelings in a
Q.What are the forms of family relations manner contrary to morals, good customs or
interference that may result in tort liability? public policy (Tenchaves v. Escaño, GR L-
19671, July 29, 1965).
ANS.

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Q.What are the forms of social relations acquisition the plaintiff knew of the untrue
interference that may result in tort liability? statement if he was are of the falsity

ANS. Q. What are the elements of interference with

1) Disturbance of private life or family relations contract?
of another – To be liable, a woman must have
done some active acts calculated to alienate ANS.
the affections of the husband. a) Existence of a valid contract;
2) Intriguing to cause another to be alienated b) Knowledge on the part of the third person of
from his friends (Art. 26, NCC) the existence of the contract; and
c) Interference of the third person without legal
Q.What are the forms of economic relations justification or excuse.
interference that may result in tort liability?
Q. What are the requisites for competition to
ANS. qualify as unfair?
1) Interference with contractual relations
 Any third person who induces another ANS.
to violate his contract shall be liable for 1) It must involve an injury to a competitor or
damages to the other contracting part. trade rival; and
(Art. 1314, NCC) 2) It must involve acts which are characterized
2) Unfair competition as “contrary to good conscience,” or
 Unfair competition in agricultural, “shocking to judicial sensibilities,” or
commercial or industrial enterprises or otherwise unlawful. In the language of our
in labor through the use of force, law, these include force, intimidation, deceit,
intimidation, deceit, machination or machination or any other unjust, oppressive
any other unjust, oppressive or or high-handed method.
highhanded method shall give rise to a
right of action by the person who
thereby suffers damage. (Art. 28, NCC) G. NEGLIGENCE
3) Interference with prospective advantage –
 There is no contract yet and the
1. Concept
defendant is only being sued for
inducing another not to enter into a
Q. What is meant by negligence?
contract with the plaintiff,
4) Securities related torts
ANS. It is the omission of that degree of
a) Fraudulent transactions
diligence which is required by the nature of the
b) Misstatements or omission of statement
obligation and corresponding to the
of a material fact required to be stated
circumstances of persons, time and place. (Art.
1173. NCC)
NOTE: Defendants are not liable if they
can prove that at the time of the
Q. What are the kinds of negligence?

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ANS. Only involves Affects the public

1) Culpa contractual (contractual negligence) private concern interest
2) Culpa aquiliana (quasi-delict) The NCC merely The RPC punishes
3) Culpa criminal (criminal negligence) repairs the damage or corrects criminal
by indemnification act
NOTE: The three kinds of negligence furnish Includes all acts in Punished only if
separate, distinct, and independent bases of which any kind of there is a penal law
liability or causes of action. fault or negligence clearly covering
intervenes them
Q. Distinguish culpa aquiliana from culpa Liability is direct Liability of the
contractual. and primary employer of the
actor-employee is
ANS. subsidiary in
Culpa Aquiliana Culpa Contractual crimes
Independent from Founded on a
a contract contract Q. What are the steps in determining
Negligence is Negligence is negligence?
direct, substantive merely incidental
and independent. to the performance ANS.
of the contractual 1) Determine the diligence required of the actor
obligation. under the circumstances
The defense of The defense of 2) Determine if the actor exercised the diligence
“good father of a “good father of a required
family” is a family” is NOT a
complete and complete defense NOTES:
proper defense in the selection of  Negligence is a conduct. The state of mind
insofar as parents, employees. of the actor is not important; good faith or
guardians, use of sound judgment is immaterial.
employers are  The determination of negligence is a
concerned. question of foresight on the part of the
No presumption of There is actor – FORESEABILITY.
negligence. The presumption of
party injured must negligence as long Q. What are the circumstances to consider in
prove the as it can be proved determining negligence?
negligence of the that there is a
defendant. breach of contract. ANS. PEST GAP
1) Time
Q. Distinguish culpa aquiliana from delict. 2) Place
3) Emergency
ANS. 4) Gravity of Harm to be avoided
Culpa Aquiliana Delict 5) Alternative Course of Action

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NOTE: If the alternative presented to the ANS. If the law or contract does not state the
actor is too costly, the harm that may result diligence which is to be observed in the
may be still be considered unforeseeable to a performance, that which is expected of a good
reasonable man. father of a family shall be required (Art. 1173(2),
6) Social value or utility of activity NCC).
7) Person exposed to the risk
Q. What is the rule in case of negligence
Q. What are the degrees of negligence? during an emergency?

ANS. ANS. An individual who suddenly finds

1) Simple negligence – Want of slight care and himself in a situation of danger and is required
diligence only to act without much time to consider the best
2) Gross negligence – There is a glaringly means that may be adopted to avoid the
obvious want of diligence and implies impending danger is not guilty of negligence if
conscious indifference to consequences he fails to undertake what subsequently and
upon reflection may appear to be a better
2. Good father of a family or reasonably solution.
prudent person Exception: When the emergency was brought
by the individual’s own negligence. (Valenzuela
Q. What are the tests of negligence? vs. CA 253 SCRA 303).
ANS.
1) Did the defendant in doing the alleged NOTE: The tortfeasor has the burden of proving
negligent act use the reasonable care and his allegation that he acted on an emergency.
caution which an ordinarily prudent person
would have used in the same situation? Q. Is the sudden emergency rule an absolutory
 If not then he is guilty of negligence. cause in negligence cases?
2) Could a prudent man, in the case under
consideration, foresee harm as a result of the ANS. Yes. A person who is confronted with a
course pursued? sudden and unforeseeable occurrence, because
 If so, it was the duty of the actor to take of the shortness of time in which to react, should
precautions to guard against harm. not be held to the same standard of care as
someone confronted with a foreseeable
NOTE: Pursuant to Art. 1173, the diligence of a occurrence.
good father of a family is the standard of The rule applies, for instance, in the following
conduct if the law or contract does not provide cases: 1) a child suddenly darts into the road
otherwise. between parked cars; 2) a load from a truck
suddenly bounces across the highway; or 3) a
driver of a car is suddenly stricken by a period
3. Standard of care; emergency rule
of unconsciousness which he has no reason to
anticipate and which renders it impossible for
Q. What is the standard of care necessary in the
him to control the car he is driving.
performance of an obligation?

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Q. Give the standard of care necessary in the 5) Children –

following circumstances: The care and caution required of a child is
1) Banks according to his maturity and capacity only,
2) Experts and this is to be determined in each case by
3) Doctors the circumstances of the case
4) Employers They will not necessarily be judged
5) Children according to the standard of an adult, except
if the minor is mature enough to understand
ANS. and appreciate the nature and consequences
1) Banks – The fiduciary nature of banking of his actions
requires banks to assume a degree of “Age brackets” standard – No contributory
diligence higher than that of a good father of negligence can be imputed to children below
a family. 9 years old (Jarco Marketing v. CA, G.R. No.
2) Experts – Those who undertake any work 129792 (1999)).
calling for special skills are required not only The age of absolute irresponsibility is 15
to exercise reasonable care in what they do years old.
but also possess a standard minimum of .
special knowledge and ability. (Far Eastern 4. Unreasonable risk of harm
Shipping v. CA, GR 130068 (1998)).
3) Doctors – Q. When is risk considered unreasonable?
Factors to consider in determining the ANS. In negligence, risk means a danger which
negligence of a doctor: is apparent, or should be apparent, to one in the
a) standard of care observed by other position of the actor. (Prosser and Keeton, pp.
members of the profession in good 169-170). Such type of risk is unreasonable risk.
standing under similar circumstances If
bearing in mind the advanced state of such unreasonable risk results in injury to the
the profession at the time of treatment plaintiff, the latter can recover from the
of present state of medical science. defendant. (Phoenix Construction vs. IAC, 148
(Cruz v. CA, GR 122445 (1997)). SCRA 353 [1987]). Unreasonable risk being
b) resident physician’s authority to make taken, its consequences are not confined to those
his or her own diagnosis; who might probably be hurt.
c) degree of supervision of the attending
physician over him or her;
5. Evidence
d) shared responsibility between him or
her and the attending physicians
Q. Who has the burden of proving negligence?
(Casumpang v. Cortejo, G.R. Nos.
171127, 171217 & 17122 (2015)).
ANS. If the plaintiff alleged in his complaint
4) Employers – degree of care as mandated by
that he was damaged because
the Labor Code or other mandatory
of the negligent acts of the defendant, the
provisions for proper maintenance of the
plaintiff has the burden of proving
work place or adequate facilities to ensure
such negligence. (Taylor vs. MERALCO
the safety of the employees
16 Phil 8)
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Exception: Upon proof of exercise of

Q. What is the quantum of proof required in extraordinary diligence
negligence?
Q. For damage or injuries arising out of
ANS. The quantum of proof required is negligence in the operation of a motor vehicle,
preponderance of evidence. (Rule 133, Sec. 1, what is the nature of the liability of the
RoC) registered owner?
Exceptions: Exceptional cases when the rules or ANS. The registered owner may be held civilly
the law provides for cases when negligence is liable with the negligent driver either
presumed. subsidiarily or solidarily.
a) Presumptions of Negligence The owner may be held subsidiarily liable if the
b) Res Ipsa Loquitur aggrieved party seeks relief based on a delict or
crime under Articles 100 and 103 of the Revised
6. Presumption of negligence Penal Code.
On the other hand, the owner may held
Q. Give examples of cases where there is solidarily if the complainant seeks relief based
presumption of negligence. on a quasi-delict under Articles 2176 and 2180
of the Civil Code.
ANS.
1) In motor vehicle mishaps, the owner is Q. What does res ipsa loquitur mean?
solidarily liable with his driver, if the
former, who was in the vehicle, could ANS. “The thing or transaction speaks for
have, by the use of the due diligence, itself.” It is a rule of evidence peculiar to the law
prevented the misfortune. (Art. 2184, of negligence which recognizes that prima facie
NCC) negligence may be established in the absence of
2) If a driver had been found guilty of reckless direct proof, and furnishes a substitute for
driving or violating traffic regulations at least specific proof of negligence.
twice for the next preceding two months.
(Art. 2184, NCC) Q. What are the requisites of res ipsa loquitor?
3) The driver of a motor vehicle, if at the time of
the mishap, he was violating any traffic ANS.
regulation. (Art. 2185, NCC) 1) The accident was of a kind which ordinarily
4) If death or injury results from the defendant’s does not occur in the absence of someone’s
possession of dangerous weapons or negligence;
substance. 2) The instrumentality which caused the injury
Exception: When such possession or use is was under the exclusive control and
indispensable to his occupation or business. management of the person charged with
(Art. 2188, NCC) negligence; and
5) In common carrier – in case of loss, 3) The possibility of contributing conduct,
destruction or deterioration of the goods, or which would make the plaintiff responsible
in case of death or injury of passengers. is eliminated.

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Q. When is the doctrine of res ipsa loquitor 8) Volenti non fit injuria;
commonly applied? 9) Last clear chance;
10) Prescription;
ANS.
1) In medical negligence cases; Q. When is due diligence a defense against
2) In cases where the exercise of judicial negligence?
discretion is abused; and
3) In practical instances. ANS. In order that due dilligence as a defense
may be availed of in the selection and
Q. When is the doctrine of res ipsa loquitor not supervision of employees, the mere formulation
applicable? of company policies is not enough. It is
necessary that they must be complied with
ANS. (Metro Manila Transit Corp. v. CA, G.R. No.
1) It is not applicable if there is direct proof of 104408, June 21, 1993). Proof that diligence of a
absence or presence of negligence. good father of a family was observed to prevent
2) If the injured party had knowledge or means damage is necessary. (Art. 2180, NCC)
of knowledge as to the cause of the accident,
or that the party to be charged with Q. When is fortuitous event a defense against
negligence has inferior knowledge or negligence?
opportunity for explanation of the accident.
3) If the plaintiff is guilty of contributory ANS. Fortuitous events by definition are
negligence. extraordinary events not foreseeable or
avoidable. It is therefore, not enough that the
7. Defenses event should not have been foreseen or
anticipated, as is commonly believed but it must
Q. What are the kinds of defenses? be one impossible to foresee or avoid. The mere
difficulty to foresee the happening is not the
ANS. impossibility to foresee the same. (Sicam v.
a) Complete – completely bars recovery Jorge, GR 159617, (2007))
b) Partial – mitigates liability
Q. What are the requisites of fortuitous
Q. What are the available defenses against events?
negligence?
ANS.
ANS. 1) The event must be independent of human
1) Due diligence; will;
2) Accident or fortuitous event; 2) The occurrence must render it impossible for
3) Damnum absque injuria; the debtor to fulfill the obligation in a normal
4) Presumption of regularity; manner;
5) Sudden peril doctrine/Emergency rule; 3) The obligor must be free from participation
6) Assumption of risk; in, or aggravation of the injury to the creditor;
7) Contributory negligence; and

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4) It must be impossible to foresee, or if it could Q. What are the elements of the doctrine of
be foreseen, must have been impossible to assumption of risk?
avoid.
ANS.
NOTE: When act of God combines with the 1) The plaintiff must know that the risk is
negligence of man which results in injury, the present;
defendant is liable for injury. 2) He must further understand its nature; and
3) His choice to incur it is free and voluntary.
Q. When is damnum absque injuria a defense Exception: The plaintiff is excused from the
against negligence? force of the rule if an emergency is found to exist
or if the life or property of another is in peril or
ANS. One who makes use of his own legal right when he seeks to rescue his endangered
does no injury. If damage results from a property.
person’s legal rights, it is damnum absque
injuria. The law, however, affords no remedy
for damages resulting from an act which does
not amount to a legal injury or wrong.

Q. When is presumption of regularity a

defense against negligence?

ANS. Mistakes committed by public officers are

not actionable absent any clear showing of
malice or gross negligence amounting to bad
faith (Farolan v. Solmac Marketing Corp., G.R.
No. 83589, March 13, 1991). However, a public
officer is by law not
immune from damages in his/her personal
capacity for acts done in bad faith which, being
outside the scope of his authority, are no longer
protected by the mantle of immunity for official
actions. (Vinzons-Chato v. Fortune, GR 141309
(2008)).

Q. What is the doctrine of assumption of risk?

ANS. A plaintiff who voluntarily assumes a risk

of harm arising from the negligent or reckless
conduct of the defendant cannot recover for
such harm

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Q. What are the kinds of assumption of risk? which he is required to conform for his own
protection.
ANS.
1) Express waiver of the right to recover – Q. When is contributory negligence a defense
plaintiff, in advance, has expressly waived against negligence?
his right to recover damages for the negligent
act of the defendant. ANS. To hold a person as having contributed to
2) Implied assumption his injuries, it must be shown that he performed
a) Dangerous Conditions - A person who, an act that brought about his injuries in
knowing that he is exposed to a disregard of warnings or signs of an impending
dangerous condition, voluntarily danger to health and body. It is necessary to
assumes the risk of such dangerous establish a causal link, although not proximate,
condition may not recover from the between the negligence of the party and the
defendant who maintained such succeeding injury.
dangerous condition.
b) Contractual Relations – By entering into NOTE: Contributory negligence is not
a relationship freely and voluntarily applicable in criminal cases committed through
where the negligence of the defendant reckless imprudence.
is obvious, the plaintiff may be found to
accept and consent to it, and to Q. What is the doctrine of volenti non fit
undertake to look out for himself and to injuria?
relieve the defendant of the duty.
c) Dangerous Activities - A person who ANS. It means “to which a person assents is not
voluntarily participates in dangerous deemed in law as injury”. It refers to self-
activities assumes the risks which are inflicted injury or to the
usually present in such activities, i.e. consent to injury which precludes the recovery
professional athletes who are deemed of damages by one who has knowingly and
to assume the risks of injury incident to voluntarily exposed himself to danger, even if
their trade. he is not negligent in doing so.
d) Defendant’s negligence - When the
plaintiff is aware of the risk created by NOTE: In Nikko Hotel v. Reyes, even if
the defendant’s negligence, yet he respondent Reyes assumed the risk of being
voluntarily proceeds to encounter it, asked to leave the party, petitioners, under Arts.
there is implied assumption of risk on 19 and 21 of the CC, were still under the
the part of the plaintiff. obligation to treat him fairly in order not to
expose him to unnecessary ridicule and shame.
Q. What is contributory negligence?

ANS. It is the conduct on the part of the injured

party, contributing as a legal cause to the harm
he has suffered, which falls below the standard

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3. Nuisance
H. SPECIAL LIABILITY IN
PARTICULAR ACTIVITIES Q. What is nuisance?

1. In general; concepts ANS. Any act, omission, establishment,

business, condition of property, or anything else
Any person may be liable for a quasi-delict or which:
tort. However, the law also identified specific a) Injures or endangers the health or safety of
individuals as being liable for particular types others;
of injuries under certain conditions. b) Annoys or offends the senses;
c) Shocks, defies or disregards decency or
morality;
2. Products liability; manufacturers or
d) Obstructs or interferes with the free
processors
passage of any public highway or street, or
any body of water; or
Q. When are manufacturers or processors
e) Hinders or impairs the user of property.
liable for quasi-delict?
(Art. 694, NCC)

ANS. Manufacturers and processors of

Q. When shall there be liability in case of
foodstuffs, drinks, toilet articles and similar
nuisance?
goods shall be liable for death or injuries caused
by any noxious or harmful substances used,
ANS. The test is whether rights of property, of
although no contractual relation exists between
health, of comfort are so injuriously affected by
them and the consumers. (Art. 2187, NCC)
the noise that the sufferer is subjected to a loss
which goes beyond the reasonable limit
Q. What are the requisites for liability of
imposed by him by the condition of living
manufacturers or processors in quasi-delict?
(Velasco v. MERALCO, G.R. No. L-18390,
August 6, 1971). There is strict liability on the
ANS.
part of the owner or possessor of the property
1) Defendant is a manufacturer or possessor of
where a nuisance is found because he is obliged
foodstuff, drinks, toilet articles and similar
to abate the same irrespective of the presence or
goods;
absence of fault or negligence.
2) He used noxious or harmful substances in the
Every successive owner or possessor of
manufacture or processing of the foodstuff,
property who fails or refuses to abate a nuisance
drinks or toilet articles consumed or used by
in that property started by a
the plaintiff;
former owner or possessor is liable therefore in
3) Plaintiff’s death or injury was caused by the
the same manner as the one
product so consumed or used; and
who created it. (Art. 686, NCC)
4) The damages sustained and claimed by the
plaintiff and the amount thereof.
4. Violation of constitutional rights; violation
of civil liberties

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Q. When shall persons who violate 16) The right of the accused to be heard by
constitutional rights and civil liberties be himself and counsel, to be informed of
liable for damages? the nature and cause of the accusation
against him, to have a speedy and public
ANS. trial, to meet the witnesses face to face,
Any public officer or employee, or any private and to have compulsory process to
individual, who directly or indirectly obstructs, secure the attendance of witness in his
defeats, violates or in any manner impedes or behalf;
impairs any of the following rights and liberties 17) Freedom from being compelled to be a
of another person shall be liable to the latter for witness against one's self, or from being
damages: forced to confess guilt, or from being
1) Freedom of religion; induced by a promise of immunity or
2) Freedom of speech; reward to make such confession, except
3) Freedom to write for the press or to when the person confessing becomes a
maintain a periodical publication; State witness;
4) Freedom from arbitrary or illegal 18) Freedom from excessive fines, or cruel
detention; and unusual punishment, unless the
5) Freedom of suffrage; same is imposed or inflicted in
6) The right against deprivation of property accordance with a statute which has not
without due process of law; been judicially declared
7) The right to a just compensation when unconstitutional; and
private property is taken for public use; 19) Freedom of access to the courts. (Art. 32,
8) The right to the equal protection of the NCC)
laws;
9) The right to be secure in one's person, 5. Violation of rights committed by public
house, papers, and effects against officers
unreasonable searches and seizures;
10) The liberty of abode and of changing the Q. When shall public officers be liable for
same; violation of rights committed?
11) The privacy of communication and
correspondence; ANS. When a member of a city or municipal
12) The right to become a member of police force refuses or fails to render aid or
associations or societies for purposes not protection to any person in case of danger to life
contrary to law; or property, such peace officer shall be
13) The right to take part in a peaceable primarily liable for damages, and the city or
assembly to petition the government for municipality shall be subsidiarily responsible
redress of grievances; therefor. The civil action herein recognized shall
14) The right to be free from involuntary be independent of any criminal proceedings,
servitude in any form; and a preponderance of evidence shall suffice to
15) The right of the accused against excessive support such action. (Art. 34, NCC)
bail;

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6. Provinces, cities and municipalities 8. Proprietor of building or structure or thing

Q. When shall provinces, cities and Q. When is proprietor of building or structure

municipalities be liable for death or injuries or thing liable for damages?
suffered by any person?
ANS.
ANS. Provinces, cities and municipalities shall 1) The proprietor of a building or structure is
be liable for damages for the death of, or injuries responsible for the damages resulting from
suffered by, any person by reason of the its total or partial collapse, if it should be due
defective condition of roads, streets, bridges, to the lack of necessary repairs. (Art. 2190,
public buildings, and other public works under NCC)
their control or supervision” (Art. 2189, NCC). 2) Proprietors shall also be responsible for
damages caused:
NOTE: It is not even necessary for the defective a) By the explosion of machinery which
road or street to belong to the province, city or has not been taken care of with due
municipality for liability to attach. The article diligence, and the inflammation of
only requires that either control or supervision explosive substances which have not
is exercised over the defective road or street been kept in a safe and adequate place;
(Guilatco v. City ofDagupan, GR 61516, March b) By excessive smoke, which may be
21, 1989). harmful to persons or property;
7. Owner of motor vehicle c) By the falling of trees situated at or near
highways or lanes, if not caused by
Q. When is the owner of a motor vehicle liable force majeure;
for damages caused? d) By emanations from tubes, canals,
sewers or deposits of infectious matter,
ANS. The owner is solidarily liable with the constructed without precautions
driver for motor vehicle mishaps when: suitable to the place. (Art. 2191, NCC)
a) The owner was IN the vehicle at the time; NOTE: If damage should be the result of any
and defect in the construction mentioned in Art.
b) The owner could have, by the use of due 1723, the third person suffering damages may
diligence, prevented the misfortune. (Art. proceed only against the engineer or architect or
2184, NCC) contractor in accordance with said article,
NOTE: The presumption is against the owner of within the period therein fixed. (Art. 2192,
the motor vehicle. He has the burden of proving NCC)
due diligence. Thus, once a driver is proven
negligent in causing damage, the law presumes
the vehicle owner equally negligent and
imposes upon the latter the burden of proving
proper selection and supervision of employee as
a defense.

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exercised and regardless of the state of

9. Head of family mind of the actor at that time.

Q. When is the head of a family liable for 1. Animals; possessor and user of an animal
things thrown from a building?
Q. When is there liability for damages caused
ANS. The head of a family that lives in a by the animals?
building or a part thereof, is responsible for
damages caused by things thrown or falling ANS. The possessor or whoever makes use of
from the same. (Art. 2193, NCC) the animal is liable independent of fault.
Exceptions:
NOTES: 1) If damage was caused by force majeure;
 Liability is absolute. It does not indicate a 2) If the damage was caused by the fault of
presumption or admit proof of care. the plaintiff or person injured; and
 Lessee is considered as the head of the 3) If the damage was caused by the act of a
family. It is enough that he lives in and has third person. (Art. 2183, NCC)
control over It. NOTE: Possession of the animal, not
ownership, is determinative of liability
10. Violations of data privacy
Q. What is the wild beast theory?
Q. When may a person claim compensation ANS. A person who for his own purposes
due to violations of data privacy? brings on his land and collects and keeps there
anything likely to do mischief if it escapes, must
ANS. An individual may claim compensation if keep it at his peril, and if he does not do so, is
he suffered damages due to inaccurate, prima facie answerable for all the damages
incomplete, outdated, false, unlawfully which is the natural consequence of its escape.
obtained or unauthorized use of personal data, It is therefore unnecessary for the plaintiff to
considering any violation of their rights and prove negligence, and it is no defense for a
freedoms as data subject. defendant to prove that he has taken all possible
precautions to prevent the damage (Ryland v.
Fletcher, 1868).
I. STRICT LIABILITY
2. Nuisance
Q. When is there strict liability in quasi-delict?
Q. What is the doctrine of attractive nuisance?
ANS. When the person is made liable
independent of fault or negligence upon ANS. One who maintains on his premises
submission of proof of certain facts specified by dangerous instrumentalities or appliances of a
law. character likely to attract children in play, and
who fails to exercise ordinary care to prevent
NOTE: Strict liability tort can be committed them from playing therefrom is liable to a child
even if reasonable care was of tender years who is injured thereby, even if
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the child is a trespasser. However, it is not the pecuniary consequences which the law
applicable to bodies of water, artificial as well as imposes for the breach of some duty or violation
natural, in the absence of some unusual of some rights. (People vs. Ballesteros, 285
condition or artificial feature other than the SCRA 438, 448 [1998]).
mere water and its location. (Hidalgo v.
Balandan, GR L-3422, June 13, 1952). NOTE: A complaint for damages is a personal
action.
3. Products liability; Consumer Act
Q. Distinguish damages from injury.
Q. What is the liability of the manufacturer
and the seller for defective product or service? ANS. Injury is the illegal invasion of a legal
right; damage is the loss, hurt, or harm which
ANS. results from the injury; and damages are the
1) Manufacturer – Liability shall be imposed compensation awarded for the damage
upon manufacturers independent of fault. suffered.
(Secs. 97 and 98, Consumer Act or R.A. 7394)
2) Tradesman or Seller – Not generally liable for Q. What does damnum absque injuria mean?
damages caused by defective products under
the Act. ANS. It literally means “damage without
Exceptions: injury”. A person may have suffered physical
a) It is not possible to identify the hurt or injury, but for long as no legal injury or
manufacturer, builder, producer or wrong has been done, there is no liability.
importer;
b) The product is supplied, without clear
identification of the manufacturer, 1. Classification
producer, builder or importer;
He does not adequately preserve perishable Q. What are the classifications of damages?
goods (Sec. 98, RA 7394)
ANS.
1) According to Purpose:
XIV. DAMAGES a) For adequate reparation of the injury:
i. Compensatory – reparation of
A. GENERAL CONSIDERATIONS pecuniary losses
ii. Moral – reparation for non-
Q. Define damage. pecuniary losses, e.g., injury to
feelings; physical
ANS. Damage is the detriment, injury, or loss suffering, etc.
which are occasioned by reason of fault of b) For vindication of the right violated:
another in the property or person. (Aquino) nominal damages
Damages has been defined as the pecuniary c) For less than adequate reparation:
compensation, recompense, or satisfaction for moderate damages
an injury sustained, or as otherwise expressed,

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d) For deterring future violations: exemplary ANS. These simply make good or replace the
or corrective loss caused by the wrong. They proceed from a
2) According to Manner of Determination sense of natural justice, and are designed to
a) Conventional or liquidated repair that of which one has been deprived by
b) Non-conventional: the wrong of another.
i. Statutory Q. What are the kinds of actual damages?
ii. Judicial
ANS.
2. Kinds of damages 1) Dano emergente (actual damages) – loss of
what a person already possesses
Q. What are the kinds of damages? 2) Lucro cessante (compensatory damages) –
failure to receive as a benefit that would have
ANS. MENTAL pertained to him.
1) Actual or compensatory;
2) Moral; Q. Aside from actual pecuniary loss, what
3) Nominal; other actual damages may be recovered?
4) Temperate or moderate;
5) Liquidated; or ANS.
6) Exemplary or corrective. (Art. 2197, NCC) 1) Loss or impairment of earning capacity in
cases of temporary or permanent personal
injury

a. Actual and Compensatory

NOTE: It is not necessary that the victim be
gainfully employed at the time of the injury
Q. What are actual damages?
or death. Actual damages are awarded for
the loss
ANS. Actual damages are such compensation or
of capacity to earn money;
damages for an injury that will put the injured 2) Injury to the plaintiff’s business standing or
party in the position in which he had been
commercial credit (Art. 2205, NCC)
before he was injured. It can be determined in
terms of money by presenting supporting
Q. What factors are considered in determining
documents such as receipts.
the damages for loss or impairment of earning
capacity?
NOTE: In moral, nominal, temperate,
liquidated or exemplary damages, no proof of
ANS.
pecuniary loss is necessary. Except liquidated
1) The life expectancy of the deceased or of
ones, the determination of damages is left to the the beneficiary, whichever is shorter; and
discretion of the court, according to the
2) The total of the earnings less expenses
circumstances of each case. (Art. 2216, NCC) necessary for the creation of such earnings
and less living or other incidental expenses
Q. What are compensatory damages?
(net income/earnings).

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NOTE: In case of death, heirs cannot claim as Q. In the absence of stipulation, attorney's fees
damages the full amount of earnings of the and expenses of litigation, other than judicial
deceased but only up to the support they costs, cannot be recovered. What are the
would have received had the victim not died. exceptions?

Q. What is the Abrazaldo Doctrine? ANS.

1) When exemplary damages are awarded;
ANS. Where the amount of the actual damages 2) When the defendant's act or omission has
cannot be determined because of the absence of compelled the plaintiff to litigate with third
receipts to prove the same, but it is shown that persons or to incur expenses to protect his
the heirs are entitled thereto, temperate interest;
damages may be awarded. (People v. 3) In criminal cases of malicious prosecution
Abrazaldo, 397 SCRA 137, 149-150) against the plaintiff;
4) In case of a clearly unfounded civil action or
Q. What is the extent of actual damages? proceeding against the plaintiff;
5) Where the defendant acted in gross and
ANS. evident bad faith in refusing to satisfy the
1) In contracts and quasi-contracts: plaintiff's plainly valid, just and demandable
a) Obligor in good faith – those that are the claim;
natural and probable consequences of 6) In actions for legal support;
the breach of the obligation, and which 7) In actions for the recovery of wages of
the parties have foreseen or could have household helpers, laborers and skilled
reasonably foreseen at the time the workers;
obligation was constituted. 8) In actions for indemnity under workmen's
b) In case of fraud, bad faith, malice or compensation and employer's liability laws;
wanton attitude – all damages which 9) In a separate civil action to recover civil
may be reasonably attributed to the liability arising from a crime;
non-performance of the obligation. 10) When at least double judicial costs are
(Art. 2201, NCC) awarded;
2) In crimes and quasi-delicts – all damages 11) In any other case where the court deems it
which are the natural and probable just and equitable that attorney's fees and
consequences of the act or omission expenses of litigation should be recovered.
complained of. It is not necessary that such (Art. 2208, NCC)
damages have been foreseen or could have
reasonably been foreseen by the defendant.
(Art. 2202, NCC) b. Moral
3) In crimes – may be increased or lessened
according to the aggravating or mitigating Q. What are moral damages?
circumstances. (Art. 2204, NCC)
ANS. Moral damages include physical
suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded

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feelings, moral shock, social humiliation, and Q. Can moral damages be recovered under
similar injury. (Art. 2217, NCC) culpa contractual?

Q. What are the requisites for the recovery of ANS. Moral damages are not recoverable in
moral damages? actions for damages predicated on a breach of
contract.
ANS. Exceptions: Those involving common carriers
1) An injury clearly sustained by the claimant; where:
2) A culpable act or omission factually 1) The passenger died by reason of negligence
established; of the carrier (Art. 1764, NCC);
3) Such act or omission is the proximate cause 2) It is proved that the carrier is guilty of fraud
of the injury; and or bad faith, even if the death does not result.
4) The award of damages predicated on any of
the cases stated in Art. 2219 of the NCC. Q. Can a juridical person be awarded moral
damages?
Q. When may moral damages be recovered?
ANS. No, it being a juridical person, it cannot
ANS. Moral damages may be recovered in the suffer from wounded feelings, serious anxiety,
following and analogous cases: mental anguish or moral shock.
1) A criminal offense resulting in physical Exception: In cases of libel, slander or any other
injuries; form of defamation which must be proved.
2) Quasi-delicts causing physical injuries;
3) Seduction, abduction, rape, or other c. Nominal
lascivious acts;
4) Adultery or concubinage; Q. What are nominal damages?
5) Illegal or arbitrary detention or arrest;
6) Illegal search; ANS. Nominal damages are adjudicated in
7) Libel, slander or any other form of order that a right of the plaintiff, which has been
defamation; violated or invaded by the defendant, may be
8) Malicious prosecution; vindicated or recognized, and not for the
9) Acts mentioned in Art: 309 (Disrespect to the purpose of indemnifying the plaintiff for any
dead, or wrongfully interfering with a loss suffered by him. (Art. 2221, NCC)
funeral);  Small sums fixed by the court without
10) Acts and actions referred to in Articles 21, regard to the extent of the harm done to
26, 27, 28, 29, 30, 32, 34, and 35 (human the injured party.
relations) (Art. 2219, NCC)  Damages in name only and are allowed
simply in recognition of a technical injury
based on a violation of a legal right.
 Cannot co-exist with actual or
compensatory damages

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Q. When may nominal damages be awarded? e. Liquidated

ANS. The court may award nominal damages in Q. What are liquidated damages?
every obligation arising from any source
enumerated in Art. 1157, or in every case where ANS. Liquidated damages are those agreed
any property right has been invaded. (Art. 2222, upon by the parties to a contract, to be paid in
NCC) case of breach thereof. (Art. 2226, NCC)
Ordinarily, the court cannot change the amount
d. Temperate of liquidated damages agreed upon by the
parties except if they are iniquitous or
Q. What are temperate damages? unconscionable.

ANS. These are damages, which are more than Q. Distinguish liquidated damages from
nominal but less than compensatory, and may penalty.
be recovered when the court finds that some
pecuniary loss has been suffered but its amount ANS.
cannot be proved with certainty. (Art. 2224, Liquidated Penalty
NCC) Damages
Measure of Punishment for
Q. What are the requisites for the recovery of compensation for default or security
temperate damages? breach of contract for actual
damages which
ANS. may be sustained
1) Actual existence of pecuniary loss; because of the
2) Nature and circumstances of the loss non- performance
prevents proof of the exact amount; of the contract
3) More than nominal BUT less than Pre-estimate of Amount fixed
compensatory; damages more than the
4) Causal connection between the loss and the actual damages
defendant’s act or omission; There will be no substantial difference
5) Amount is reasonable. between a penalty and liquidated
damages insofar as legal results are
Q. When is temperate damages not concerned (Filinvest Land, Inc. v. CA,
recoverable? GR 138980, September 20, 2005)

ANS. When there is an award of actual or

compensatory damages. Temperate and actual f. Exemplary
damages are mutually exclusive in that both
may not be awarded at the same time. (People Q. What are exemplary damages?
v. Gutierrez, G.R. No. 188602, 4 Feb 2010.)
ANS. Exemplary or corrective damages are
imposed, by way of example or correction for
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the public good, in addition to the moral, 2) For a wrong inflicted by the defendant
temperate, liquidated or compensatory 3) Damage resulting to the plaintiff
damages. (Art. 2229, NCC)
Other terms: punitive damages, vindictive Q. A passenger bus owned by Abe collided
damages with and a cargo truck owned by Ben. Carlito,
a bus passenger, suffered injuries, while
Q. What are the requisites for the recovery of Dante, another bus passenger, died. The
exemplary damages? drivers of the two vehicles were at fault.
Carlito, the injured passenger, and the heirs of
ANS. Dante sued the owners of both vehicles for
1) They are imposed by way of example in damages.
addition to compensatory damages and
imposed only after the claimants right to a) May Carlito claim moral damages from
them has been established; both vehicle owners?
2) They cannot be recovered as a matter of right,
their determination depending upon the ANS. Yes, Carlito can claim moral damages
amount of compensatory damages that may against Ben, the owner of the cargo truck,
be awarded; because of the injuries he suffered, but as
3) The act must be accompanied by bad faith or against Abe, Carlito can claim moral damages
done in wanton, fraudulent, oppressive or only if he proves reckless negligence on the part
malevolent manner. of the common carrier amounting to fraud.

Q. When may exemplary damages be b) May Dante’s heirs claim moral damages
recovered? from both vehicle owners?

ANS. ANS. The heirs of Dante can claim moral

1) Crimes – when committed with aggravating damages against both vehicle owners because
circumstance/s (Art. 2230, NCC) the rules on damages arising from death due to
2) Quasi-delicts – if defendant acted with gross a quasi-delict are also applicable to death of a
negligence (Art. 2231, NCC) passenger caused by breach of contract by a
3) Contracts and quasi-contracts – if defendant common carrier. (Arts. 1755, 1764, 2206 and
acted in a wanton, fraudulent, reckless, 2219, NCC)
oppressive, or malevolent manner (Art. 2232,
NCC) Q. On January 5, Debtor obtains a loan of
Php10 million from Creditor. The promissory
3. When damages may be recovered note does not state any payment of interest and
is due on December 31. Before due date,
Q. What are the elements for recovery of however, Debtor and Creditor become
damages? political enemies and Debtor deliberately
defaulted in paying the note, forcing Creditor
ANS. to bring suit.
1) Right of action

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a) Can Creditor ask for moral damages? B. DAMAGES IN CASE OF DEATH

ANS. Yes. Under Art. 2220 of the Civil Code, Q. When death occurs as a result of a crime,
moral damages are recoverable in case of breach what damages may be recovered by the heirs
of contract where the defendant acted of the deceased?
fraudulently or in bad faith. Here, Debtor acted
in bad faith because he refused to pay the value ANS.
of the note to spite Creditor. 1) Moral damages;
2) Exemplary damages;
b) Can Creditor ask for nominal damages? 3) Attorney's fees and expenses for litigation;
4) Indemnity for death;
ANS. No, he cannot. Nominal damages are not 5) Indemnity for loss of earning capacity; and
recoverable in this case because Creditor is 6) Interest in proper cases.
already indemnified of his losses with the
award of actual and compensatory damages. Q. In addition to the at least P3,000 damages
Nominal damages are adjudicated only in order death caused by a crime or quasi-delict, what
that a right of the plaintiff, which has been else can be awarded?
violated or invaded by the defendant, may be
vindicated or recognized, and not for the 1) Indemnity for the loss of the earning capacity
purpose of indemnifying the plaintiff for any of the deceased, unless the deceased on
loss suffered by him. (Art. 2231, NCC) account of permanent physical disability not
caused by the defendant, had no earning
c) Can Creditor ask for temperate damages? capacity at the time of his death;
2) If the deceased was obliged to give support,
ANS. Creditor may ask for, but would most the recipient who is not an heir called to the
likely not be awarded, temperate damages decedent's inheritance by the law of testate or
considering that his actual damages may intestate succession, may demand support
already be compensated upon proof thereof from the person causing the death, for a
with the promissory note. Temperate damages period not exceeding five years, the exact
may be awarded only when the court finds that duration to be fixed by the court;
some pecuniary loss has been suffered but its 3) The spouse, legitimate and illegitimate
amount cannot, from the nature of the case, be descendants and ascendants of the deceased
proved with certainty. (Art. 2224, NCC) may demand moral damages for mental
anguish by reason of the death of the
d) Can Creditor ask for attorney’s fees? deceased (Art. 2206, NCC).

ANS. Yes, because debtor's act or omission has NOTE: Civil indemnity for death has been
compelled creditor to sue to protect his increased through the years to consider the
interests. Furthermore. attorneys' fees may be economic conditions in the country. (People v.
awarded by the court when it is just and Oandasan, Jr., GR 194605, June 14, 2016)
equitable. (Art. 2208, NCC)

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C. GRADUATION OF DAMAGES b. In quasi-delicts

1. Duty of injured party Q. What are the rules in graduation of damages

in quasi-delicts?
Q. What is the duty of the injured party to
minimize the damages from the act or ANS. In quasi-delicts, the contributory
omission in question? negligence of the plaintiff shall reduce the
damages that he may recover. (Art. 2214, NCC)
ANS. He shall exercise the diligence of a good
father of a family. (Art. 2203, NCC) Q. What is the Doctrine of Avoidable
Consequences?

ANS. A party cannot recover damages flowing

2. Rules
from consequences which the party could
reasonably have avoided.
a. In crimes
Q. When is there contributory negligence?
Q. What are the rules in graduation of damages
in crimes? ANS. Plaintiff’s act or omission occurs before or
at the time of the act or omission of the
ANS. In crimes, the damages to be adjudicated defendant. In determining whether the plaintiff
may be respectively increased or lessened is guilty of contributory negligence, the age, sex,
according to the aggravating or mitigating and his or her physical condition should be
circumstances (Art. 2204, NCC). considered.

Q. What damages may be awarded by the court Q. What are the grounds for mitigation of
in criminal cases? damages for quasi-delicts?

ANS. ANS.
1) Where the imposable penalty is reclusion 1) That the loss would have resulted in any
perpetua to death – civil indemnity; moral event because of the negligence or omission
damages and exemplary damages. Actual of another, and where such negligence or
damages may be awarded or temperate omission is the immediate and proximate
damages in some instances. cause of the damage or injury;
2) When no documentary evidence of burial or 2) Defendant has done his best to lessen the
funeral expenses is presented in court – plaintiff’s injury or loss.
₱50,000.00 as temperate damages

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c. In contracts and quasi-contracts e. Compromise

Q. When may the court equitably mitigate the Q. When may the court mitigate the damages
damages in contracts, quasi-contracts, and to be paid by the losing party?
quasi-delicts?
ANS. The courts may mitigate the damages to
1) That the plaintiff himself has contravened the be paid by the losing party who has shown a
terms of the contract; sincere desire for a compromise. (Art. 2031,
2) That the plaintiff has derived some benefit as NCC)
a result of the contract;
3) In cases where exemplary damages are to be
awarded, that the defendant acted upon the
advice of counsel;
4) That the loss would have resulted in any
event;
5) That since the filing of the action, the
defendant has done his best to lessen the
plaintiff's loss or injury. (Art. 2215, NCC)

d. Liquidated damages

Q. When may liquidated damages be reduced?

ANS. Liquidated damages, whether intended as

an indemnity or a penalty, shall be equitably
reduced if they are iniquitous or
unconscionable. (Art. 2227, NCC)
NOTE: The question of whether a penalty is
reasonable or iniquitous can be partly subjective
and partly objective as its "resolution would
depend on such factors as, but not necessarily
confined to, the type, extent and purpose of the
penalty, the nature of the obligation, the mode
of breach and its consequences, the supervening
realities, the standing and relationship of the
parties, and the like, the application of which,
by and large, is addressed to the sound
discretion of the court. (Ligutan v. Court of
Appeals)

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