WHAT DOES “STATE” MEAN IN

CONFLICT OF LAWS CONFLICT OF LAWS?

(PRIVATE It includes not only foreign sovereign countries or
states but also political subdivisions of states or
INTERNATIONAL countries which have their own legal systems (Id. at
LAW) 3).

BASIC CAUSE FOR CONFLICT OF

LAWS CASE
CONFLICT OF LAWS OR PRIVATE They come into being through variance in the
INTERNATIONAL LAW municipal laws of the countries involved. Even
Conflict of Laws is that part of the municipal law of a assuming that laws in various countries are
state which directs its courts and administrative uniformly the same, different municipal tribunals may
agencies, when confronted with a legal problem still give identical laws varying interpretations
involving a foreign element, whether or not they (PARAS, Conflict, supra at 6).
should apply a foreign law(s) (PARAS, Philippine
Conflict of Laws (1996), p. 2 [hereinafter, PARAS, THREE-FOLD FUNCTIONS OF PRIVATE
Conflict]). INTERNATIONAL LAW:
1. Question of Jurisdiction
The law concerning the rights of persons within the – prescribes the conditions under which a court
territory and dominion of one nation, by reason of or agency is competent to entertain
acts, private or public, done within the dominion of proceedings with foreign elements.
another nation (Hilton v. Guyot, 159 U.S. 113, June
3, 1895).
2. Question of Applicability of a Foreign
It is fundamentally a problem of choice of law Judgment
between foreign law and local or municipal law, by – specifies the circumstances in which foreign
the forum court, with local or municipal law as its judgment will be recognized as valid and
starting point (AGPALO, Conflict of Laws (2004), binding in the forum.
p.11 [hereinafter, AGPALO, Conflict]).
3. Question of Choice of Law
– determines the particular system of law for
CONFLICT OF LAWS CASE
each class of cases to ascertain the rights of
Any case involving facts occurring in more than one parties (PARAS, Conflict, supra at 8).
state or nation that must choose between the laws
of different states or countries in deciding the case
(SEMPIO-DIY, Handbook on Conflict of Laws
ELEMENTS OF CONFLICT OF LAWS:
(2004), p. 1 [hereinafter, SEMPIO-DIY, Conflict]). 1. Legal problem or case involving a
foreign element; and

NOTE: Foreign element – factual situation

cutting across territorial lines, affected by
diverse laws of two or more States. The

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA TAMPUS, Vice Chairperson
for Secretariat | ARVY KEITH CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice Chairperson for
Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. LYAN DAVID M. JUANICO and Dean ULPIANO P. SARMINETO III

 presence of foreign element in a case
PUBLIC PRIVATE
determines the existence of a Conflict of Laws
INTERNATIONAL INTERNATIONAL
situation. Where there is no foreign element, no
LAW LAW
Conflict of Laws exists (AGPALO, Conflict,
supra at 12). As to Persons Involved
A foreign element is anything which is not
domestic and has a foreign component to it. It Sovereign states and Private individuals or
can be a foreigner, a foreign corporation, an entities possessed of corporations
incident happening in a foreign country, or a international personality,
foreign law chosen by the parties. Without a exceptionally, individuals,
foreign element, the case is only a domestic too
problem (PE BENITO, Conflict of Laws (2016),
p. 11 [hereinafter, PE BENITO, Conflict]). As to Transactions Involved

2. Determination of whether the law or Transactions entered into Strictly private in

judgments of other State/s will govern which generally affect nature
public interest;
and if so, the extent of its
transactions in which
recognition/application in the forum sovereign States are
(COQUIA & AGUILING-PANGALANGAN, interested
Conflict of Laws: Cases Materials and
Comments (2000) p. 57 [hereinafter, COQUIA, As to Remedies Applied
Conflict]).
In case of violation of Resort to municipal
REMEDIES OF CONFLICT OF LAWS International Law, resort tribunals
1. The enforcement of rights accrued in a foreign may be peaceful or
country in the form of an action filed in Philippine forcible:
courts by a citizen or aggrieved person; and
2. Recognition and enforcement of foreign Peaceful remedies:
judgment (AGPALO, Conflict, supra at 6). Diplomatic negotiation,
tender and exercise of
good offices, mediation,
PUBLIC INTERNATIONAL LAW inquiry and conciliation,
AND PRIVATE INTERNATIONAL LAW, arbitration, judicial
DISTINGUISHED settlement by the
PUBLIC PRIVATE International Court of
INTERNATIONAL INTERNATIONAL Justice
LAW LAW
Forcible remedies:
As to Source Severance of diplomatic
relations, retorsions,
International conventions, Domestic and reprisals, embargo,
international custom, the municipal laws, which boycott, non-intercourse,
general principles of law includes the pacific blockades,
recognized by civilized constitution and collective measures under
nations, and judicial statutes adopted by the U.N. Charter, and
decisions and the individual countries finally, war.
teachings of the most (PE BENITO,
highly qualified publicists Conflict, supra at 2). (PARAS, Conflict, supra at 10-11).
of the various nations
(Statute of the
International Court of SOURCES:
Justice, Art. 38(1)). 1. Direct Sources:
a. Treaties and international conventions;
As to Nature or Character b. Constitutions;
c. Codifications and statutes;
International in character National, municipal, d. Judicial decisions; and
or local in character e. International customs
(PE BENITO, 2. Indirect Sources:
Conflict, supra at 2). a. Natural moral law; and
 b. Writings and treatises of thinkers, famous of law, and recognition and enforcement of
writers, and jurists on the subject, among judgments. Corresponding to these phases are the
others (SEMPIO-DIY, Conflict, supra at 7). following questions:
1. Where can or should litigation be initiated;
A formal treaty is not the lone primary source of 2. Which law will the court apply; and
customary international law. Among other things, 3. Where can the resulting judgment be enforced
courts consider international custom as evidence of (Hasegawa v. Kitamura, G.R. No. 149177,
a general practice accepted as law. Where there is November 23, 2007).
no treaty, and no controlling executive or legislative
act or judicial decision, resort must be had to the
customs and usages of civilized nations (Abdullahi
v. Pfizer, Inc., 562 F.3d 163, January 30, 2009). JURISDICTION
HISTORY AND DEVELOPMENT
1. 14th century (Theory of Statutes) GENERAL RULE: It is the right of a State to exercise
– Bartolus, “Father of Conflict of Laws,” authority over persons and things within its
formulated the Theory of Statutes in which boundaries, subject to certain exceptions
Conflicts were resolved by classifying the issues (Hongkong and Shanghai Banking Corporation v.
based on real, personal, and mixed statutes. Sherman, G.R. No. 72494, August 11, 1989).
The classifications were overlapping.
KINDS OF JURISDICTION IN CONFLICT
2. 16th century
– Customs were used for resolving Conflicts.
OF LAWS:
1. Judicial Jurisdiction
3. 17 th
century (Doctrine of Comitas – power or authority of a court to try a case,
Gentium) render judgment and execute it in accordance
– relied on the theory of State sovereignty; with law.
denied that States were under any legal
obligation to apply foreign law, unless made out 2. Legislative Jurisdiction
of considerations of courtesy and expediency. – ability of the State to promulgate laws and
enforce them on all persons and property within
4. Beginning of codifications its territory (COQUIA, Conflict, supra at 20).
– Conflict of Laws provisions were included in
the civil codes of the states (SALONGA, Private Jurisdiction and choice of law are two distinct
International Law (1995), pp.15-17) [hereinafter, concepts. Jurisdiction considers whether it is fair to
SALONGA, Conflict]. cause a defendant to travel to this state. Choice of
law, on the other hand, asks the further question
whether the application of a substantive law which
PHASES IN CONFLICTS RESOLUTION will determine the merits of the case is fair to both
1. Jurisdiction parties. The power to exercise jurisdiction does not
– concerns the authority of a court of law to take automatically give a state constitutional authority to
cognizance of a case (Where can or should apply forum law. While jurisdiction and the choice of
litigation be initiated?). the lex fori will often coincide, the "minimum
contacts" for one do not always provide the
2. Choice of Law necessary "significant contacts" for the other. The
– refers to the applicable law to the problem question of whether the law of a state can be applied
(Which law will the court apply?). to a transaction is different from the question of
whether the courts of that state have jurisdiction to
3. Recognition and Enforcement enter a judgment(Saudi Arabian Airlines v.
– concerns the enforcement of foreign laws and Rebesencio, G.R. No. 198587, January 14, 2015).
judgments in another jurisdiction (Where can the
resulting judgment be enforced?). STEPS IN DEALING WITH A PROBLEM
IN CONFLICT OF LAWS:
These three phases are separate from each other
and a defense in one phase is not a defense in other 1. Determine whether the court has jurisdiction
over the case. If it has no jurisdiction, the case
phases (PE BENITO, Conflict, supra at 12).
should be dismissed on that ground.
2. If it has jurisdiction, it may:
In the judicial resolution of conflicts problems, three
consecutive phases are involved: jurisdiction, choice a. Refuse to assume jurisdiction on the ground
of forum non conveniens; or
 b. Assume jurisdiction, in which case it may as defined by law, such service may,
either: with leave of court, be effected
i. Apply the internal law of the forum (lex outside of the Philippines through
fori); any of the following means:
ii. Apply the proper foreign law (lex 1.) By personal service coursed
causae) (PARAS, Conflict, supra at 25). through the appropriate court in the
foreign country with the assistance
LONG-ARM STATUTES of the department of foreign affairs;
Legislative act which provides for personal 2.) By publication once in a newspaper
jurisdiction, via substituted service or process, over of general circulation in the country
persons or corporations which are non- residents of where the defendant may be found
the state and which voluntarily go into the state, and by serving a copy of the
directly or by agent or communicate with persons in summons and the court order by
the state for limited purposes, inactions which registered mail at the last known
concern claims relating to performance or execution address of the defendant;
of those purposes. These are statutes allowing the 3.) By facsimile;
courts to exercise jurisdiction when there are 4.) By electronic means with the
minimum contacts between the non-resident prescribed proof of service; or
defendant and the forum. (Black’s Law Dictionary, 5.) By such other means as the court,
5th Ed. 1979). in its discretion, may direct (RULES
OF COURT, Rule 14, Sec. 14).
TYPES OF JUDICIAL JURISDICTION
2. Jurisdiction over the Res
1. Jurisdiction over the person Jurisdiction over the particular subject matter in
The competence or power of a court to render a controversy, regardless of the persons who may
judgment that will bind the parties to a case be interested therein (PARAS, Conflict, supra at
(SEMPIO-DIY, Conflict, supra at 5). 29, SEMPIO-DIY, Conflict, supra at 7).

How Acquired: Referred to as in rem jurisdiction in contrast to in

a. Jurisdiction over the person of the plaintiff is personam jurisdiction, which binds only the
acquired from the moment he invokes the parties and their successors-in-interest. A
aid or power of the court by instituting an personal action, however, may be converted to
action through proper pleading. in rem by attachment of property, among others
b. Jurisdiction over the person of the defendant (SEMPIO-DIY, Conflict, supra at 7).
is acquired through:
i. Voluntary appearance where action is in How Acquired:
personam (RULES OF COURT, RULE a. Seizure of property under a legal process; or
14, Sec. 23); b. Institution of legal proceedings wherein,
ii. Coercive process through personal or under special provisions of law, the power of
substituted service of summons where the court over the property is recognized
action is in personam (RULES OF and made effective (Heirs of Morales v.
COURT, RULE 14, Secs. 5 and 6); Agustin, G.R. No. 224849, June 6, 2018).
iii. Constructive Service by Publication
where the identity/whereabouts of Quasi in rem jurisdiction affects only the
defendant is unknown (RULES OF interests of particular persons in the thing. In
COURT, RULE 14, Sec. 16); such case, the court may render valid judgment
iv. Extra-territorial Service (RULES OF when it has jurisdiction over the particular
COURT, Rule 14, Secs. 17 and 18); and persons whose interests are affected (SEMPIO-
v. Service upon a foreign private juridical DIY, Conflict, supra at 7).
entity which has transacted business in
the Philippines through its resident Long-arm Statute
agent designated in accordance with A law that allows a plaintiff to make a claim
law for that purpose, or if none, the against a non-resident defendant, provided
government official designated by law to there are minimum contacts with the forum to
that effect, or any of its officers, agents, justify its exercise of jurisdiction over him
directors or trustees within the (COQUIA, Conflict, supra at 36).
Philippines. If the foreign private
juridical entity is not registered in the
Philippines, or has no resident agent but
has transacted or is doing business in it,
3. Jurisdiction over the Subject Matter POINTS TO REMEMBER ON
It is conferred by law and is the power of the JURISDICTION
court to hear and determine cases of the general
1. In choosing a particular forum, the plaintiff
class to which the proceedings in question
accepts the forum’s entire judicial machinery, so
belong (SEMPIO-DIY, Conflict, supra at 5).
that he must accept not only its benefits but its
burdens as well (SEMPIO-DIY, Conflict, supra at
In Conflict of Laws, the court must consider in
10);
determining the matter of jurisdiction the
2. The jurisdiction of the court continues even if the
possible enforceability of its decision in foreign
defendant leaves the state of the forum prior to
states, subject to the rights of said states (Id. at
the final determination of the action against him
5)
(Id. at 10);
3. The parties to a contract may stipulate on the
NOTE: In the Philippines, jurisdiction over the
foreign law to govern disputes arising from the
subject matter is conferred by law, e.g., the
contract (AGPALO, Conflict, supra at 30);
Constitution and the Judiciary Reorganization
4. The parties may stipulate on a Jurisdiction
Act, as amended (B.P. 129, Judiciary Act of
Clause, a contract clause which provides that
1948, as amended by R.A. 9252).
any dispute arising from the contract shall be
tried before the competent/specific court of a
Test of Jurisdiction: Whether the law vests upon
particular State;
the tribunal the power to enter upon the inquiry
5. A court, in assuming jurisdiction over the case,
(Salvador v. Patricia, Inc., G.R. No. 195834,
may apply the internal law of the forum (lex fori),
November 9, 2016).
or the law of some other State(s) (AGPALO,
Conflict, supra at 25); and
BASIC PRINCIPLE UNDERLYING ALL 6. The case may be dismissed for lack of
RULES OF JURISDICTION jurisdiction of the court or its refusal to assume
A State does not have jurisdiction in the absence of jurisdiction over the case pursuant to forum non
some reasonable basis for exercising it, whether the conveniens (SEMPIO-DIY, Conflict, supra at
proceedings are in rem, quasi in rem, or in 10).
personam. To be reasonable, the jurisdiction must
be based on some minimum contacts that will not PRINCIPLE OF FORUM NON
offend traditional notions of fair play and substantial CONVENIENS
justice (SALONGA, Conflict, supra at 55).
A court's discretionary power to decline the exercise
of its jurisdiction where another court may more
Thus, an essential element of conflict rules is the
conveniently hear a case (SALONGA, Conflict,
indication of a "test" or "connecting factor" or "point
supra at 56). Accordingly, under the doctrine of
of contact". Choice-of-law rules invariably consist of
forum non conveniens, a court, in Conflict of Laws
a factual relationship (such as property right,
cases, may refuse impositions on its jurisdiction
contract claim) and a connecting fact or point of
where it is not the most 'convenient' or available
contact, such as the situs of the res, the place of
forum and the parties are not precluded from
celebration, the place of performance, or the place
seeking remedies elsewhere.
of wrongdoing (Continental Micronesia, Inc. v.
Basso, G.R. Nos. 178382-83, September 23, 2015).
The use of the word "may" (i.e., "may refuse
impositions on its jurisdiction") shows that the matter
MINIMUM CONTACTS TEST AND of jurisdiction rests on the sound discretion of a
FUNDAMENTAL FAIRNESS TEST court. Neither the mere invocation of forum non
To bind a defendant absent from the territory of the conveniens nor the averment of foreign elements
forum to a judgment in personam, due process operates to automatically divest a court of
requires that he should have certain minimum jurisdiction. Rather, a court should renounce
contacts with it and that the maintenance of the suit jurisdiction only "after 'vital facts are established, to
does not offend traditional notions of fair play and determine whether special circumstances' require
substantial justice (Shaffer v. Heitner, 433 U.S. 186, the court's desistance." As the propriety of applying
June 24, 1977). forum non conveniens is contingent on a factual
determination, it is, therefore, a matter of defense
NOTE: For in rem and quasi-in rem, due process is (Saudi Arabian Airlines (Saudia) v. Rebesencio,
satisfied when defendant is given adequate notice G.R. No. 198587, January 14, 2015).
and opportunity to be heard by service of summons
through publication (COQUIA, Conflict, supra at 24). NOTE: It relates to forum, not to the choice of
governing law (PE BENITO, Conflict, supra at 29).
Forum non conveniens is a device akin to the rule exercise jurisdiction does not automatically give a
against forum shopping. It is designed to frustrate state constitutional authority to apply forum law
illicit means for securing advantages and vexing (Hasegawa v. Kitamura, G.R. No. 149177,
litigants that would otherwise be possible if the November 23, 2007).
venue of litigation (or dispute resolution) were left
entirely to the whim of either party (Saudi Arabian JUSTIFICATIONS FOR THE
Airlines v. Rebesencio, G.R. No. 198587, January APPLICATION OF INTERNAL LAW OF
14, 2015).
THE FORUM (LEX FORI) TO CONFLICT
The doctrine should generally apply only if the OF LAWS CASES:
defendant is a corporation. If the defendant is an 1. When the local law expressly so
individual, the proper forum may not be able to provides (COQUIA, Conflict, supra at 145);
acquire jurisdiction over him (i.e., he may not be a. Law governing property transactions (CIVIL
residing there), leaving the plaintiff without any CODE, Art. 16, par. 1);
remedy (SEMPIO-DIY, Conflict, supra at 11 and 12).
REASON: Art. 16 of the Civil Code
INSTANCES WHERE FORUM NON mandates the application of lex situs or lex
CONVENIENS MAY BE INVOKED: rei sitae to all properties, whether real or
A court, though it has jurisdiction over a case, may personal, found and located here.
decline to exercise it, in view of any of the following b. Law governing the order and amount of
practical reasons: successional rights, intrinsic validity of
1. Evidence and witness may not be readily testamentary provisions, and capacity to
available in the forum; succeed (CIVIL CODE, Art. 16, par. 2);
2. Court dockets of the forum may already be c. Laws governing property relations of
clogged and permitting additional cases would marriage (FAMILY CODE, Art. 80); and
hamper the speedy administration of justice; d. Laws governing revocation of wills (CIVIL
3. Belief that the matter can be better tried and CODE, Art. 829).
decided in another jurisdiction, either because
the main aspects of the case transpired therein 2. When the foreign law or judgment has
or the material witnesses have their residence not been properly pleaded and proved
thereat; (COQUIA, Conflict, supra at 145);
4. To curb the evils of forum shopping;
5. Forum has no particular interest in the case; REASON: Our courts do not take judicial notice
6. Other courts are open and the case may be of foreign judgments and laws. Foreign
better tried therein; judgments and its authenticity must be proven
7. Inadequacy of the local judicial machinery; and as a fact under our rules on evidence, together
8. Difficulty of ascertaining the foreign law with the alien’s applicable national law to show
applicable (SEMPIO-DIY, Conflict, supra at 10- the effect of the judgment on the alien himself
11). (Medina v. Koike, G.R. No. 215723, July 27,
2016).
NOTE: The court will not dismiss the case under the
doctrine unless the plaintiff has another forum open 3. When the case involves any of the
to him (AGPALO, Conflict, supra at 498). exceptions to the application of the
On the other hand, courts may choose to assume proper foreign law (C2P2-FUL)
jurisdiction subject to the following requisites: "(1) a. The application of foreign law runs Counter
that the Philippine Court is one to which the parties to a sound and established public policy of
may conveniently resort to; (2) that the Philippine the forum (i.e., incestuous marriage or joint
Court is in a position to make an intelligent decision will) (SEMPIO-DIY, Conflict, supra at 14);
as to the law and the facts; and (3) that the Philippine
Court has or is likely to have power to enforce its Kinds of public policy as to extent of
decision" (Philippine National Construction Corp. v. operations:
Asiavest Merchant Bankers (M) Berhad, G.R. No. i. Operates no matter where the event or
172301, August 19, 2015). transaction takes place; and
ii. One which operates only where the
NOTE: Jurisdiction and choice of law are two distinct event or transaction takes place in the
concepts. Jurisdiction considers whether it is fair to forum and is not offended if the
cause a defendant to travel to this state; choice of transaction is completed abroad.
law asks the further question whether the application
of a substantive law which will determine the merits NOTE: Courts may use public policy to: (a)
of the case is fair to both parties. The power to refuse to entertain the case and dismiss it
 without prejudice because its enforcement is g. The case involves real or personal property
against public policy; (b) entertain the case Located in our country (CIVIL CODE, Art.
and apply domestic law; or (c) entertain the 16, par. 1).
case but invoke its own public policy to apply
the forum’s domestic law. INSTANCES EXEMPTING THE
APPLICATION OF INTERNAL LAW TO
b. The foreign law is Contrary to the almost
universally conceded principles of morality
CONFLICT OF LAWS CASES
(Contra Bonos Mores) (e.g. foreign laws 1. A foreign sovereign, diplomatic official, or public
recognizing prostitution) (Id. at 14); vessel or property of another state is involved
(SALONGA, Conflict, supra at 63);
c. The foreign law is Penal in character 2. The State accepted a limitation upon its
(AGPALO, Conflict, supra at 67); jurisdiction over certain persons or things of
another State through a treaty (Id.); or
Exception: 3. Foreign law has been pleaded and proved
When the local law adopts the penal law of (RULES OF COURT, RULE 132, Sec. 25).
other countries as part thereof (Id.).
MANNER OF PROVING FOREIGN LAWS
A “penal clause” in a contract entered into GENERAL RULE: In this jurisdiction, courts are not
abroad may be enforced here because such authorized to "take judicial notice of foreign laws."
is not criminal but civil in nature, providing The laws of a foreign country must "be properly
only for liquidated damages (SEMPIO-DIY, pleaded and proved" as facts, in accordance with the
Conflict, supra at 15). Rules on Evidence. Otherwise, under the doctrine of
processual presumption, foreign law shall be
NOTE: Enforcement of foreign penal laws presumed to be the same as domestic law (Chiquita
must be distinguished from their recognition; Brands, Inc. v. Omelio, G.R. No. 189102, June 7,
a state may recognize foreign penal laws for 2017).
various purposes, though it will not directly
enforce such laws in its jurisdiction (Id.at 1. Written Law
15). a. By official publication (SEMPIO-DIY,
Conflict, supra at 13);
d. The foreign law involves Procedural matters b. Copy attested by officer having legal
(AGPALO, Conflict, supra at 66); custody thereof. If the record is not kept in
the Philippines, a certificate with seal from a
REASON: If foreign procedural laws were to secretary of the embassy, legation, consul
be applied, it would involve a making over of general, consul, vice consul, consular
the machinery for the administration of agent, or any officer in the foreign service of
justice in the forum. Procedural issues are the Philippines stationed in the foreign
governed by forum law so as not to unduly country to the effect that said officer has
burden or complicate the task of the court custody is required (RULES OF COURT,
with the study of uncommon peculiarities RULE 132, Sec. 24); and
and refinements of another legal system c. A published treatise on the subject law
(COQUIA, Conflict, supra at 88). provided that the court takes judicial notice
of the competence of the writer, or evidence
e. Foreign law is purely Fiscal or administrative is introduced to establish the author’s
in nature (i.e., collection of taxes by foreign competence (RULES OF COURT, RULE
countries or relating to governmental 130, Sec. 48).
functions) (SEMPIO-DIY, Conflict, supra at
15); There can be no summary judgment where
NOTE: A sovereign has no legal duty to questions of fact are in issue or where material
assist foreign governments in the financing allegations of the pleadings are in dispute. The
of their activities. resolution of whether a foreign law allows only
the recovery of actual damages is a question of
f. The application of foreign law involves fact as far as the trial court is concerned since
Undeniable injustice to the citizens or foreign laws do not prove themselves in our
residents of the forum or endangers the courts. Foreign laws are not a matter of judicial
foreign relations or vital interests of the state notice. Like any other fact, they must be alleged
(Id. at 15 and 16); and and proven (Manufacturers Hanover Trust Co. v.
Guerrero, G.R. No. 136804, February 19, 2003).
2. Unwritten Law EFFECT OF FAILURE TO PLEAD OR
a. By oral testimony of expert witnesses PROVE FOREIGN LAW:
(SEMPIO-DIY, Conflict, supra at 13); or
1. Defendant may move for Demurrer to Evidence
if plaintiff’s cause of action rests on unproven
NOTE: The existence of a foreign law may
foreign law, resulting in no cause of action to the
be established through a testimony under
plaintiff’s case. If the defense rests on unproven
oath of an expert witness such as an
foreign law, the defense fails (AQUINO,
attorney-at-law in the country where the
Elements of Private International Law (2006) p.
foreign law operates wherein he quotes
101 [hereinafter, AQUINO, Elements of Private
verbatim a section of the law and states that
International Law]).
the same was in force at the time material to
2. The case will not be dismissed; the doctrine of
the facts at hand (Sobejana-Condon v.
processual presumption will become operative
Commission on Elections, G.R. No. 198742,
(Chiquita Brands, Inc. v. Omelio, G.R. No.
August 10, 2012).
189102, June 7, 2017).
Sec. 25, Rule 132 of the Rules of Court does
not exclude the presentation of other DOCTRINE OF PROCESSUAL
competent evidence to prove the existence PRESUMPTION OR PRESUMED-
of a foreign law (Asiavest Limited v. CA, IDENTITY APPROACH
G.R. No. 128803, September 25, 1998). In the absence of pleading and proof, the laws of the
foreign country or state will be presumed to be the
b. By printed and published books of reports of same as our local or domestic law. This is known as
decisions of the country involved, if proved processual presumption (Nedlloyd Lijnen B.V.
to be commonly admitted in its courts Rotterdam v. Glow Laks Enterprise, Ltd., G.R. No.
(RULES OF COURT, RULE 130, Sec. 47). 156330, November 19, 2014).

EXCEPTIONS TO THE PROCEDURAL

REQUIREMENTS FOR PROVING
FOREIGN LAW: CHOICE OF LAW
1. Presentation of a foreign-licensed attorney who
will testify in open court concerning her
knowledge of the law in question (Mercantile
Insurance Co., Inc. v. Yi, G.R. No. 234501, QUESTIONS THAT CHOICE-OF-
March 18, 2019); APPLICABLE-LAW SEEKS TO
2. Administrative agencies recognizing foreign ANSWER:
laws without proof thereof; 1. What legal system should control a given
3. Lack of objection to the improper presentation situation where some of the significant facts
by one party of proof of foreign law; and occurred in two or more states; and
4. Laws appearing in official websites of 2. To what extent should the chosen system
government agencies which have custody of regulate the situation (COQUIA, Conflict, supra
laws (PE BENITO, Conflict, supra at 80). at 57).
In International Law, jurisdiction is often defined as NOTE: Foreign law has no extraterritorial effect and
the right of a State to exercise authority over persons any exception to this right must be traced to the
and things within its boundaries subject to certain consent of the nation (AGPALO, Conflict, supra at
exceptions. Thus, a State does not assume 16).
jurisdiction over traveling sovereigns, ambassadors
and diplomatic representatives of other States, and It is appropriate to assume that Congress had
foreign military units stationed in or marching domestic concerns in mind. This assumption is
through State territory with the permission of the similar to the legal presumption that Congress
latter's authorities. This authority, which finds its ordinarily intends its statutes to have domestic, not
source in the concept of sovereignty, is exclusive extraterritorial application. The Court assumes a
within and throughout the domain of the State. A congressional intent that the phrase “convicted in
State is competent to take hold of any judicial matter any court” applies domestically, not extraterritorially,
it sees fit by making its courts and agencies assume unless the statutory language, context, history, or
jurisdiction over all kinds of cases brought before purpose shows the contrary (Small v. United States,
them (Hongkong and Shanghai Banking Corp. v. 544 U.S. 385, April 26, 2005).
Sherman, G.R. No. 72494, August 11, 1989).
THEORIES IN JUSTIFYING THE protected in other countries. The forum will not
APPLICATION OF FOREIGN LAW IN apply the foreign law but will simply recognize
the right vested by said law (SALONGA,
CONFLICTS CASES: (CVL-JH) Conflict, supra at 72).
1. Theory of Comity
The application of foreign legal systems in cases 3. Local Law Theory
involving foreign element is proper, otherwise, This involves the appropriation of a foreign rule
the non-application would constitute a disregard by the State of the forum and transforming it into
of foreign sovereignty or lack of comity towards a domestic rule. A foreign law is applied because
other States (PARAS, Conflict, supra at 65). our own law, by applying a similar rule, requires
us to do so, as if the foreign law has become part
Comity of our own internal or domestic law (SEMPIO-
It is the recognition which one nation allows DIY, Conflict, supra at 20).
within its territory, to the legislative, executive, or
judicial acts of another nation, having due regard Illustration: Art. 16, par. 2 of the Civil Code
to both international duty and convenience and requires the application of the national law of the
to the rights of its own citizens, of other persons deceased in the matter of his testate or intestate
who are under the protection of its laws (Sison succession (Id. at 20).
v. the Board of Accountancy, G.R. No. L-
2529, December 31, 1949, citing Hilton v. 4. Theory of Justice (Caver’s Principles of
Guyot). Preference)
The thesis of Prof. David F. Cavers’ article
Two Principles upon which Theory of Comity entitled “A Critique of the Conflict of Laws
Rests: Problem” was that choice of law should be
a. Comity based on reciprocity; and determined by “considerations of justice and
social expediency” and should not be the result
NOTE: If the laws and judgments of the of mechanical application of the rule or principle
forum are recognized in a foreign state, the of selection (COQUIA, Conflict, supra at 66).
forum in turn will recognize the laws and
judgments emanating from said foreign Foreign law should not be applied when its
state (Hilton v. Guyot, 159 U.S. 113, June 3, application would work undeniable injustice to
1895). the citizens or residents of the forum. A law or
judgment or contract that is obviously unjust
b. Comity based on the persuasiveness of a negates the fundamental principles of Conflict of
foreign judgment. Laws (Continental Micronesia, Inc. v. Basso,
G.R. Nos. 178382-83, September 23, 2015).
NOTE: If the forum is persuaded that a
foreign judgment is meritorious and has
5. Harmony of Laws Theory
been rendered by a court of competent
Identical or similar problems should be given
jurisdiction, it will not hesitate to enforce that
identical or similar solutions, thus resulting in
foreign judgment in the forum even if the
harmony of laws. The application of the same or
foreign forum does not reciprocate
similar solution prevents the bad practice of
(Johnston v. Compagnie Generale
forum shopping (SEMPIO-DIY, Conflict, supra at
Transatlantique, 243 N.Y. 541, July 11,
20).
1924).
NOTE: The foregoing theories do not mutually
A foreign final judgment or final order “is
exclude another; perhaps, the truth may be
presumptive evidence of a right as between
found in their combination (PARAS, Conflict,
the parties and their successors in interest
supra at 73).
by subsequent title” and “may be repelled by
evidence of a want of jurisdiction, want of
notice to the party, collusion, fraud, or clear
mistake of law or fact” (RULES OF COURT,
Rule 39, Sec. 48).

2. Vested Rights Theory

Courts enforce not the foreign law or foreign
judgment but the right/s vested under such law
or judgment. Thus, rights acquired in one
country must be recognized and legally
 countries following the domiciliary theory (SEMPIO-
NATURE, DIY, Conflict, supra at 38).

COMPOSITION & PARTS OF CONFLICT RULES

CHARACTERIZATION 1. Object or the Factual Situation
– the set of facts or situation presenting a
OF CONFLICTS RULES Conflicts problem because there is a foreign
element involved (Id. at 24).

CONFLICT RULES 2. Legal Consequences or the Point of

Contact or Connecting Factor
A provision found in our own law which governs a
– the law of the country with which the factual
factual situation possessed of a foreign element. It is
situation is most intimately connected (Id. at 24).
usually expressed in the form of an abstract
proposition that a given legal question is governed
by the law of a particular country (which may be an
CHARACTERIZATION OR DOCTRINE OF
internal law or the proper foreign law), to be QUALIFICATION OR CLASSIFICATION
ascertained in the manner indicated in the provision Before a choice of applicable law can be made, it is
(SEMPIO-DIY, Conflict, supra at 22). necessary to determine under what category a
certain set of facts or rules fall. This determination
ORDINARY INTERNAL RULES AND process is known as "characterization", or the
"doctrine of qualification". It is the "process of
CONFLICT RULES, DISTINGUISHED deciding whether or not the facts relate to the kind of
ORDINARY CONFLICT RULES question specified in a conflicts rule." The purpose
INTERNAL RULES of "characterization" is to enable the forum to select
the proper law (Saudi Arabian Airlines v. Court of
Authorize, command, or Decides on which law Appeals, G.R. No. 122191, October 8, 1998).
prohibit certain mode of or jurisdiction will give
conduct (e.g., Art. 796 of the final solution to the The law chosen should be applied only insofar as it
the Civil Code). Its legal question (e.g., Art. 16, brings about the good it intended to bring. The
effects are immediately par. 1 and Art. 17, par. selected proper law is applied to the factual situation
indicated (e.g., Express 2 of the Civil Code). to decide: (1) legal consequences resulting from the
prohibition). situation; or (2) interests created in the thing in
(Id. at 22) question.

TWO KINDS OF CONFLICT RULES STEPS IN CHARACTERIZATION:

1. One-sided rule (FSR-PProPleA)
– indicates when Philippine law will apply, e.g., 1. The determination of the Facts involved;
Art. 15 and Art. 818 of the Civil Code only apply 2. The characterization of the factual Situation;
to Filipinos (SEMPIO-DIY, Conflict, supra at 23). 3. The determination of the conflicts Rule which is
to be applied;
2. All-sided or multilateral rule 4. The characterization of the Point of contact
– indicates whether to apply the local law or the where the connecting factor;
proper foreign law, e.g., First paragraphs of Art. 5. The characterization of the Problem as
16 and Art. 17, Art. 1763 and Art. 1039 of the procedural or substantive;
Civil Code (Id. at 23). 6. The Pleading and proving of the proper foreign
law; and
NOTE: Justice Sempio-Diy observes that while Art. 7. The Application of the proper foreign law to the
15 of the Civil Code applies only to Filipinos and is problem (PARAS, Conflict, supra at 88).
actually a one-sided rule, the Supreme Court has
given it a multi-lateral application when it held that NOTE: Only steps 2-5 concern themselves with
foreigners, in their status and legal capacities, are characterization proper (PARAS, Conflict, supra at
governed by their national laws (Gibbs v. The 88).
Government of the Philippine Islands., G.R. No. L-
35694, December 23, 1933). NOTE: As to the first step, the starting point of
analysis is not a legal relation, but a factual situation,
The nationality theory has been applied by the event, or operative fact. An essential element of
Supreme Court even to persons who are citizens of conflict rules is the indication of a "test" or
"connecting factor" or "point of contact." One or more
circumstances may be present to serve as the
possible test for the determination of the applicable 2. Substance-Procedure Characterization
law. Directs the court to the extent it will apply foreign
law. If the issue is substantive, the court may
These "test factors" or "points of contact" or apply foreign law but if it is procedural, it is
"connecting factors" could be any of the following: supposed to follow the law of the forum (Id. at
1. The nationality of a person, his domicile, his 88).
residence, his place of sojourn, or his origin;
2. The seat of a legal or juridical person, such as a RULES ON CHARACTERIZATION OF
corporation;
PROCEDURAL AND SUBSTANTIVE
3. The situs of a thing, that is, the place where a
thing is, or is deemed to be situated. In RULES
particular, the lex situs is decisive when real GENERAL RULE: If an issue is substantive, apply
rights are involved; foreign law. If it is procedural, apply the forum law or
4. The place where an act has been done, the lex fori.
locus actus, such as the place where a contract
has been made, a marriage celebrated, a will DETERMINANTS OF AN ISSUE AS
signed or a tort committed. The lex loci actus is PROCEDURAL OR SUBSTANTIVE
particularly important in contracts and torts;
1. Questions of Evidence
5. The place where an act is intended to come into
– procedural
effect, e.g., the place of performance of
contractual duties, or the place where a power
2. Statute of Frauds
of attorney is to be exercised;
a. Substantive if the law forbids the obligation.
6. The intention of the contracting parties as to the
i.e., void contracts.
law that should govern their agreement, the lex
b. Procedural if the law forbids the
loci intentionis;
enforcement of the obligation. i.e.,
7. The place where judicial or administrative
unenforceable contracts, Art. 1403 of Civil
proceedings are instituted or done. The lex fori
Code (Id. supra at 92).
— the law of the forum — is particularly
important because matters of 'procedure' not
3. Borrowing Statutes and Statute of
going to the substance of the claim involved are
Limitations
governed by it; and because the lex fori applies
whenever the content of the otherwise
Borrowing Statutes
applicable foreign law is excluded from
Directs the state of the forum to apply the foreign
application in a given case for the reason that it
statute of limitations to the pending claims based
falls under one of the exceptions to the
on a foreign law (LWV Construction Corp. v.
applications of foreign law; and
Dupo, G.R. No. 172342, July 13, 2009).
8. The flag of a ship, which in many cases is
decisive of practically all legal relationships of
Statute of Limitations
the ship and of its master or owner as such. It
Specificity Test – Limitation is substantive
also covers contractual relationships particularly
when it is directed at the newly created liability,
contracts of affreightment (Saudi Arabian
warranting a qualification of the right (Bournias
Airlines v. Court of Appeals, supra).
v. Atlantic Maritime Co., Ltd., 220 F. 2d 152,
February 10, 1955).
SINGLE-ASPECT METHOD
In order to connect the case to a particular legal Limitation is procedural if it operates to bar only
community, choice-of-law theories have the legal remedy, without impairing the
concentrated on one element of a situation to foster substantive right involved.
simplicity, convenience, and uniformity of results
(COQUIA, Conflict, supra at 82). The characterization of a statute of limitation into
procedural or substantive becomes irrelevant
TWO TYPES OF CHARACTERIZATION when the country of the forum has a borrowing
UNDER THE SINGLE-ASPECT METHOD statute, which has the practical effect of treating
the foreign statute of limitation as one of
1. Subject-matter Characterization substantive law (GOODRICH, Conflict of Laws
Calls for classification by a court of a factual (1938), p. 152-153).
situation into a legal category. It is relevant in a
single-aspect method because the legal NOTE: A law on prescription is sui generis in
category to which an issue is assigned Conflict of Laws as it may be viewed as
determines the governing law (Id. at 84). procedural or substantive, depending on the
characterization given (Cadalin v. Administrator,
 Philippine Overseas Employment Matters of Substance – governed by the law of
Administration, G.R. No. 104776, December 5, the country where the action arose (AGPALO,
1994). Conflict, supra at 37).

The modern trend is to consider the prescriptive As a general rule, a foreign procedural law will
periods or the Statute of Frauds that the parties not be applied in the forum. Procedural matters,
had in mind at the time the transaction took such as service of process, joinder of actions,
place (SEMPIO-DIY, Conflict, supra at 27). period and requisites for appeal, and so forth,
are governed by the laws of the forum. This is
DÉPEÇAGE true even if the action is based upon a foreign
From the French "deceper” meaning “to dissect”. substantive law (Cadalin v. Administrator,
The different aspects of the case involving a foreign Philippine Overseas Employment
element may be governed by different systems of Administration, G.R. No. 104776, December 5,
law (LIPSTEIN, General Principles of Private 1994).
International Law, (1972), p. 214, 135 Recuile des
Cours). The characterization of a statute into a
procedural or substantive law becomes
Process whereby different issues in a single case irrelevant when the country of the forum has a
arising out of a single set of facts may be decided "borrowing statute." Said statute has the
according to the laws of different states, the practical effect of treating the foreign statute of
procedural matters being governed by forum law and limitation as one of substance (Cadalin v.
substantive matters by some other law (Buchanan v. Administrator, Philippine Overseas Employment
Doe, 246 Va. 67, June 11, 1993). Administration, G.R. No. 104776, December 5,
1994).
PROPOSED SOLUTIONS TO THE
6. Center of Gravity Doctrine (Grouping of
PROBLEM OF CHARACTERIZATION: Contracts Principle or State of the Most
1. The Lex Fori Solution Significant Relationship Theory)
GENERAL RULE: The facts and issues are Application of the law of the jurisdiction which
characterized based on forum’s own law. has the most significant relationship to or
Thereafter, the foreign or domestic law is contact with the event, parties, and issues (Id. at
applied to the lex fori-based characterization. 37).

REASON: Lex fori determines characterization 7. The Autonomous Theory

because of practical necessity. Forum considers the characterization of the
country referred to in lex causae (PARAS,
EXCEPTION: When lex fori characterization will Conflict, supra at 99).
result in clear injustice, lex fori characterization
will not apply (SEMPIO-DIY, Conflict, supra at
8. Totality Theory
27).
Determines the intended law of the parties and
applies the characterization given by the
2. The Lex Causae Solution intended law (Id.).
The characterization will depend on the
governing law.

3. The Analytic Jurisprudence and

PERSONAL LAW
Comparative Law Solution
The court determines the common patrimony of
juridical concepts and employs universal or The law which attaches to a person wherever he
quasi-universal characterization. may go and generally governs his status, capacity,
condition, family relations, and the consequences of
4. The Double Characterization Solution his actuations (SEMPIO-DIY, Conflict, supra at 36).
It couples the lex fori and lex causae solution.
It allows courts to exercise jurisdiction or determine
5. Substance v. Procedure Principle the governing choice-of-law rule on a specific
Matters of Procedure – governed by the law of situation or transaction involving a person wherever
the forum where the case is filed. he may be (COQUIA, Conflict, supra at 88).
DIFFERENT THEORIES OF PERSONAL NATIONALITY
LAW It refers to the membership in a political community,
1. The Nationality Theory or Personal one that is personal and more or less permanent. In
Theory Conflict of Laws, nationality and citizenship are used
– the status and capacity of a person is interchangeably (SEMPIO-DIY, Conflict, supra at
determined by the law of his nationality or 31).
national law (SEMPIO-DIY, Conflict, supra at
30). STATUS
Refers to the place of an individual in society and
NOTE: The Philippines follows the Nationality consists of more or less permanent personal
Theory (Id. at 30-31). qualities and relationships with which the state and
community are concerned (Id. at 29).
2. The Domiciliary Theory or Territorial
Theory CAPACITY
– the status and capacity of a person is It is a part of one’s status and is the sum total of
determined by the law of his domicile (Id.). one’s rights and obligations (Id. at 30).

NOTE: The United States, like other common ACQUISITION OF NATIONALITY

law countries, follows the domiciliary theory (Id.
at 30-31). 1. Birth
– Natural-born citizens are citizens of the
Philippines from birth without having to perform
3. The Situs or Eclectic Theory
any act to acquire or perfect citizenship (Id. at
– the particular place or situs of an event or
34).
transaction is generally the controlling law (Id. at
30).
a. Jus Soli – citizenship is acquired by being
born within the territorial boundaries of a
JUSTIFICATION OF PERSONAL LAW state (PE BENITO, Conflict, supra at 138).
Prof. R.H Graveson, a Professor Emeritus in the b. Jus Sanguinis – citizenship is acquired
University of London, writes that: “The idea of the through blood relationship with the parent
personal law is based on the conception of man as (Id.).
a social being, so that those transactions of his daily
life, which affect him most closely in a personal Foundlings, or those abandoned children with
sense, such as marriage, divorce, legitimacy, many no known natural parents, are natural-born
kinds of capacity, and succession maybe governed citizens because they are not an excluded class
universally by that system of law most suitable in under the Constitution. So long as there is a high
adequate for the purpose.” (1974) probability that the foundling’s parents are
Filipinos, that person will be considered natural-
NATIONALITY OR PERSONAL THEORY born (Poe-Llamanzares v. COMELEC, G.R.
OR LEX NATIONALII Nos. 221697-221700, March 8, 2016).
It is the theory by virtue of which the status and
capacity of an individual are generally governed by REASON: To deny full Filipino citizenship to all
the laws of his nationality (PARAS, Conflict, supra at foundlings and render them stateless just
104). because there may be a theoretical chance that
one among the thousands of these foundlings
The personal law of an individual is his national law. might be the child of not just one, but two,
This theory is adopted mostly by civil law countries foreigners is downright discriminatory, irrational,
like the Philippines where the identity and legal and unjust (Id).
position of their citizens are guaranteed by a
consistent application by their national laws on 2. Naturalization
status and family relations wherever they may go It is the process of confirming on an alien the
(SEMPIO-DIY, Conflict, supra at 31). citizenship of another country, by any of the
means provided by law (SEMPIO-DIY, Conflict,
Laws relating to family rights and duties, or to the supra at 44).
status, condition, and legal capacity of persons are
binding upon citizens of the Philippines even though Naturalization is a mode for both acquisition and
living abroad (CIVIL CODE, Art. 15). reacquisition of Philippine citizenship. As a
mode of initially acquiring Philippine citizenship,
naturalization is governed by Commonwealth
Act No. 473, as amended. Naturalization as a which case he will continue to be a
mode for reacquiring Philippine citizenship is Filipino citizen even after becoming
governed by Commonwealth Act No. 63 of age (Commonwealth Act No.
(Bengson III v. House of Representatives 473, Section 15).
Electoral Tribunal, G.R. No. 142840, May 7,
2001). b. Minor born after naturalization
i. Born in the Philippines – Filipino
Modes of Naturalization ii. Born outside the Philippines – shall be
a. Direct Naturalization considered a Filipino citizen, unless
i. Judicial Process – Commonwealth Act within one year after reaching the age of
No. 475 as amended by RA 530 (Id. at majority, he fails to register himself as a
45). Filipino citizen in the Philippine
ii. Legislative Process – Philippine consulate of the country where he
Citizenship conferred by Congress (Id. resides and to take the necessary oath
at 45). of allegiance (Commonwealth Act No.
iii. Administrative Process – “The 473, Section 15).
Administrative Naturalization Law of
2000” or RA 9139. A special committee In case of children already of age at the time of
is created to approve, deny, or reject parent’s naturalization – not a Filipino unless
applications for naturalization filed with they themselves be naturalized (PARAS,
said committee (Id. at 45). Conflict, supra at 128-129).
b. Derivative Naturalization The 1987 Constitution provides that citizens of
i. Wife of a naturalized husband; the Philippines who marry aliens shall retain
ii. Minor children of naturalized father; or their citizenship unless by their act or omission
iii. Alien wife of a natural-born or they are deemed, under the law, to have
naturalized citizen (Id. at 45). renounced it.

If a woman is repatriated, her repatriation If she became a widow before the effectivity of
does not carry with it the repatriation of the Commonwealth Act 63, which is on October 21,
child as the minor was never a Filipino 1963, she immediately reacquires Philippine
previously. Commonwealth Act No. 63 does citizenship (Talaroc v. Uy, G.R. No. L-5397,
not provide that upon repatriation of a September 26, 1952).
Filipina, her children acquire Philippine
citizenship. It would be illogical to consider If she became a widow on or after October 21,
his son repatriated like his mother, because 1963, she has to repatriate herself, otherwise
he never was a Filipino citizen and could not she remains a foreigner (Villahermosa v.
have reacquired such citizenship Commissioner of Immigration, G.R. No. L-1663,
(Villahermosa v. Commissioner of March 31, 1948).
Immigration, G.R. No. L-1663, March 31,
1948). PROBLEMS IN APPLYING THE
NATIONALITY PRINCIPLE IN DUAL OR
If instead of repatriation, the widow had
automatically regained Philippine MULTIPLE CITIZENSHIP
citizenship, the nationality of her minor child It arises from the concurrent application of jus soli
would follow hers (Talaroc v. Uy, G.R. No. and jus sanguinis at birth or from a refusal of certain
L-5397, September 26, 1952). States to accept a full application of the doctrine of
expatriation, from marriage, or from a formal and
Effect of Naturalization on Wife and voluntary act.
Children 1. In matters of status, a person is usually
a. Minor born before naturalization considered by the forum as exclusively its own
i. Born in the Philippines – Filipino national. His additional foreign nationality is
ii. Born outside the Philippines disregarded.
1.) Residing in the Philippines at the 2. In case litigation arises in a third country, the law
time of parent’s naturalization – most consistently applied is that of the country
Filipino of which the person is not only a national but
2.) Residing outside the Philippines at where he also has his domicile or habitual
the time of parent’s naturalization – residence, or in the absence thereof, his
Filipino only during his minority residence (Hague Convention on Conflict of
unless he resides permanently in Nationality Laws, Art. 5).
the Philippines when still a minor, in
DUAL CITIZENSHIP DISTINGUISHED TWO SENSES OF STATELESSNESS
FROM DUAL ALLEGIANCE 1. De Jure Statelessness
Dual citizenship is different from dual allegiance. The – A person has been stripped of his nationality
former arises when, as a result of the concurrent by his former government without having an
application of the different laws of two or more opportunity to acquire another;
states, a person is simultaneously considered a
national by the said states. Dual allegiance refers to 2. De Facto Statelessness
the situation in which a person simultaneously owes, – A person possessed of a nationality but whose
by some positive act, loyalty to two or more states. country does not give him protection outside its
While dual citizenship is involuntary, dual allegiance own territory (refugees) (Id. at 200-201).
is the result of an individual's volition (Mercado v.
Manzano, G.R. No. 135083, May 26, 1999). CAUSES OF STATELESSNESS (DRVB)
1. Deprivation of citizenship for any cause, e.g.,
GENERAL PRINCIPLES IN DEALING commission of a crime;
WITH CONFLICT OF NATIONALITY 2. Renunciation of nationality by express or implied
LAWS acts;
1. It is for each State to determine who are its 3. Voluntary release from original state; and
nationals under its own law, which shall be 4. If Born in a country recognizing only the principle
recognized by other States; of jus sanguinis of parents whose law
2. Any question as to the possession of nationality recognizes only the principle of jus soli (PARAS,
shall be determined in accordance with the law Conflict, supra at 110).
of that State;
3. A person having two or more nationalities may NOTE: The Convention on the Reduction of
be regarded as a national by each of the States Statelessness, adopted in 1961, mandates that
whose nationality he possesses; the jus sanguinis country grant its nationality to
4. A State may not afford diplomatic protection to a person born within its territory if he would
one of its nationals against a State whose otherwise be stateless, and the jus soli country
nationality such person also possesses; to extend its nationality to a person who would
5. Theory of Effective Nationality - A third state otherwise be considered stateless when one of
shall recognize exclusively in its territory either his parents is a citizen of the contracting state.
the nationality of the country of which one is
habitually and principally a resident, or the Stateless persons are generally subject to the
nationality of the country with which in the law of their domicile or habitual residence, and
circumstances one appears to be in fact most in default thereof, to the law of their temporary
closely connected; and residence (Hague Conference of 1928 on
6. A person possessing two nationalities acquired International Private Law).
without any voluntary act on his part may
renounce one of them without the authorization
of the State whose nationality he desires to
surrender (Hague Convention on Certain CITIZENSHIP
Questions Relating to the Conflict of Nationality
Laws).
RETENTION
AND RE-ACQUISITION
CAUSES OF MULTIPLE CITIZENSHIP ACT OF 2003
(FALV)
1. A naturalized citizen’s Failure to effectively (R.A. NO. 9225)
renounce his former nationality;
2. Application of Jus Soli and Jus Sanguinis
principles;
R.A. 9225 was enacted to allow the re-acquisition
3. The Legislative act of States; or
and retention of Philippine citizenship by:
4. The Voluntary act of the individual concerned
1. Natural-born citizens who were deemed to have
(COQUIA, Conflict, supra at 195-196).
lost their Philippine citizenship by reason of their
naturalization as citizens of a foreign country;
and
2. Natural-born citizens of the Philippines who,
after the effectivity of the law, became citizens of
a foreign country.
The law provides that they are deemed to have re- Absentee Voting Act of 2003" and other existing
acquired or retained their Philippine citizenship upon laws;
taking the oath of allegiance (Maquiling v. 2. Those seeking elective public office in the
Commission on Elections, G.R. No. 195649, April Philippines shall meet the qualifications for
16, 2013). holding such public office as required by the
Constitution and existing laws and, at the time of
SEC. 2 DECLARATION OF POLICY the filing of the certificate of candidacy, make a
All Philippine citizens of another country shall be personal and sworn renunciation of any and all
deemed not to have lost their Philippine citizenship foreign citizenship before any public officer
under the conditions of this Act. authorized to administer an oath;
In Sobejana-Condon v. COMELEC, et al. (G.R.
No. 198742, August 10, 2012), the Supreme
SEC. 3 RETENTION OF PHILIPPINE Court ruled that Section 5(2) of Republic Act No.
CITIZENSHIP 9225 compels natural-born Filipinos, who have
Any provision of law to the contrary notwithstanding, been naturalized as citizens of a foreign country,
natural-born citizenship by reason of their but who reacquired or retained their Philippine
naturalization as citizens of a foreign country are citizenship (1) to take the oath of allegiance
hereby deemed to have re-acquired Philippine under Section 3 of Republic Act 9225, and (2)
citizenship upon taking the oath of allegiance to the for those seeking elective public offices in the
Republic. Philippines, to additionally execute a personal
and sworn renunciation of any and all foreign
Natural-born citizens of the Philippines who, after the citizenship before an authorized public officer
effectivity of this Act, become citizens of a foreign prior or simultaneous to the filing of their
country shall retain their Philippine citizenship upon certificates of candidacy, to qualify as
taking the aforesaid oath. candidates in Philippine elections. The rule
applies to all those who have re-acquired their
Re-acquisition Distinguished from Retention Filipino citizenship, without regard as to whether
Although the heading of Section 3 is "Retention of they are still dual citizens or not. It is a pre-
Philippine Citizenship," the authors of the law requisite imposed for the exercise of the right to
intentionally employed the terms "re-acquire" and run for public office.
"retain" to describe the legal effect of taking the oath
of allegiance to the Republic of the Philippines. This Note however, in Maquiling v. COMELEC (G.R.
is also evident from the title of the law using both re- No. 195649, April 16, 2013), petitioner was
acquisition and retention. The reacquisition will apply repatriated under R.A. 9225 and made his oath
to those who lost their Philippine citizenship by virtue of allegiance and renunciation of US citizenship.
of Commonwealth Act 63. The second aspect is the Thereafter, he repeatedly used his US Passport.
retention of Philippine citizenship applying to future The Supreme Court ruled that the repeated use
instances (David v. Agbay, G.R. No. 199113, March of the US passport is a positive declaration that
18, 2015). he is a US citizen, reverting him back to the
status as if no oath of renunciation was made,
SEC. 4 DERIVATIVE CITIZENSHIP thus rendering him disqualified to run for public
The unmarried child, whether legitimate, illegitimate, office.
or adopted, below eighteen (18) years of age, of 3. Those appointed to any public office shall
those who reacquire Philippine citizenship upon subscribe and swear to an oath of allegiance to
effectivity of this Act shall be deemed citizens of the the Republic of the Philippines and its duly
Philippines. constituted authorities prior to their assumption
of office, provided, that they renounce their oath
of allegiance to the country where they took that
SEC. 5 CIVIL AND POLITICAL RIGHTS oath;
AND LIABILITIES 4. Those intending to practice their profession in
Those who retain or re-acquire Philippine citizenship the Philippines shall apply with the proper
under this Act shall enjoy full civil and political rights authority for a license or permit to engage in
and be subject to all attendant liabilities and such practice; and
responsibilities under existing laws of the Philippines 5. That right to vote or be elected or appointed to
and the following conditions: any public office in the Philippines cannot be
1. Those intending to exercise their right of exercised by, or extended to, those who:
suffrage must meet the requirements under Sec. a. Are candidates for or are occupying any
1, Article V of the Constitution, Republic Act public office in the country of which they are
9189, otherwise known as "The Overseas naturalized citizens; and/or
 b. Are in active service as commissioned or conduct indicative of such intention (Romualdez-
non-commissioned officers in the armed Marcos v. Commission on Elections, G.R. No.
forces of the country which they are 119976, September 18, 1995).
naturalized citizens.
LEGAL CLASSIFICATION OF DOMICILE
R.A. No. 9225 provides for a deeper effect by
1. Domicile of Origin or Birth
declaring it a State policy that under its terms "all
– the domicile assigned by law to a person at
Philippine citizens of another country shall be
the moment of his birth (SEMPIO-DIY, Conflict,
deemed not to have lost their Philippine citizenship"
supra at 53);
under the conditions provided therein (Arnado v.
Commission on Elections, G.R. No. 210164, August
a. Minors
18, 2015).
i. Legitimate – that of his parents at the
same time of child’s birth; if the parents
DOMICILIARY OR TERRITORIAL are separated, the domicile of the
THEORY/LEX DOMICILII custodial parent.
The person’s status, condition, rights, obligations ii. Illegitimate – that of the mother at the
and capacity are determined by the law of his time of child’s birth.
domicile (SEMPIO-DIY, Conflict, supra at 51). iii. Legitimated – domicile of the father at
the time of his birth controls, as the
It assumes that the attributes which make up one’s effects of legitimation retroacts to the
status and personal relations are intimately time of the child's birth (FAMILY CODE,
connected with the country where they have made Art. 180).
their home (Id. at 31 and 32). iv. Adopted Child – domicile of real parents
at the time of his birth, not the domicile
of the adopters (SEMPIO-DIY, Conflict,
supra at 54).
DOMICILE v. Foundling – domicile is the country
where foundling was found.

b. Married Women
DOMICILE The husband and wife shall fix the family
domicile. In case of disagreement, the court
It is the place wherein a person has a settled shall decide (FAMILY CODE, Art. 69).
connection for certain legal purposes, either
because his home is there or it is the place assigned
2. Constructive Domicile or Domicile by
to him by law (Id. at 51).
Operation of Law
– the domicile assigned by law to persons after
DOMICILE V. RESIDENCE V. birth on account of legal disability (i.e., minors,
CITIZENSHIP mentally disabled) (SEMPIO-DIY, Conflict,
DOMICILE RESIDENCE CITIZENSHIP supra at 53);

Fixed, Place of Indicates ties a. Minors

permanent abode, of allegiance i. Legitimate – the domicile of both
residence to whether and loyalty parents. In case of disagreement, that of
which, when permanent or the father, unless there is a judicial order
absent, one has temporary to the contrary (FAMILY CODE, Art.
the intention of 211).
returning ii. Illegitimate – domicile of the mother
(FAMILY CODE, Art. 176).
(Id. at 51-52).
In case of absence or death of either
NOTE: For political purposes the concepts of
parent, the domicile of the present
residence and domicile are dictated by the peculiar
parent shall fix the domicile. Even in
criteria of political laws. As these concepts have
case of the remarriage of the surviving
evolved in our election law, what has clearly and
parent, still his domicile determines the
unequivocally emerged is the fact that residence for
constructive domicile of the minor child
election purposes is used synonymously with
(SEMPIO-DIY, Conflict, supra at 55).
domicile, meaning that a person must not only intend
to reside in a particular place but must also have
personal presence in such place coupled with
 iii. Adopted – domicile of choice of the DOMICILE OF ORIGIN V.
adopter is the child's constructive CONSTRUCTIVE DOMICILE
domicile.
DOMICILE OF CONSTRUCTIVE
b. Insane, Idiots, Imbecile ORIGIN DOMICILE
They cannot select their own domicile. If the
insane, idiot or imbecile is: As to Acquisition
i. Below age of majority – rules on minors
Acquired at birth. Assigned after birth.
apply.
ii. Of age and has guardians – follow the As to Scope
domicile of choice of guardians.
iii. Does not have guardians – constructive Assigned only to Assigned to persons
domicile is his domicile of choice before infants. under legal disabilities.
he became insane (Id. at 55).
As to Nature
c. Married Women
If the marriage is valid, constructive Never changes. May change from time to
domicile of the wife is domicile of both time.
spouses, unless the law allows the wife to (Id. at 53-54).
have a separate domicile for valid and
compelling reasons (FAMILY CODE, Art. 3. Domicile of Choice or Voluntary
69).
i. If there is legal separation or
Domicile
– Place freely chosen by a person sui juris as his
separation de facto, the wife can have
home and to which, whenever he is absent, he
her own domicile of choice (De La Vina
intends to return (Id. at 53).
v. Villareal, G.R. No. 13982, July 31,
1920).
Requirements:
ii. If the marriage is voidable, apply the
a. Residence or bodily presence in a new
same rules as when the marriage is
locality;
valid. After annulment, the wife can
b. An intention to remain there (animus
freely select her own domicile of choice
manendi); and
(SEMPIO-DIY, Conflict, supra at 56).
c. An intention to abandon the old domicile
iii. If the marriage is void, as there is really
(animus non revertendi) (Romualdez v.
no marriage, the wife can have a
RTC, Branch 7, Tacloban City, G.R. No.
domicile separate from the husband (Id.
104960, September 14, 1993).
at 56).

d. Other Persons DOMICILE CONSTRUCTIVE DOMICILE OF

i. Convict or prisoner – he is not free to OF DOMICILE CHOICE
have a domicile of choice; his domicile ORIGIN
is that which he had possessed prior to
his incarceration. Assigned Assigned by law. Result of the
ii. Soldiers – since they are compelled to by law. voluntary will
follow the dictates of the military, and action of
domicile is that before their enlistment. the person
iii. Public officials or employees abroad like concerned.
diplomats, consular officials, etc. – since (SEMPIO-DIY, Conflict, supra at 54).
their stay abroad is in their official and
not in their personal capacity, their NOTE: Domicile of origin is not easily lost. To
domicile is the one before they were successfully effect a change of domicile, one must
assigned elsewhere, unless they demonstrate:
voluntarily adopt their place of 1. An actual removal or an actual change of
employment as their permanent domicile;
residence (SEMPIO-DIY, Conflict, 2. A bona fide intention of abandoning the former
supra at 56). place of residence and establishing a new one;
and
3. Definite acts which correspond with the purpose 5. The presumption is in favor of the continuance
(Romualdez-Marcos v. Commission on of domicile. The burden of proof is on the one
Elections, G.R. No. 119976, September 18, who alleges that a change of domicile has taken
1995; Neo v. Yapha, Jr., G.R. No. 209285 place.
(Notice), June 28, 2016). 6. To acquire a fresh domicile, residence and
intention must concur; to retain an existing
In other words, there must basically be animus domicile, either residence there or intention to
manendi coupled with animus non revertendi. The remain must be present; to abandon a domicile,
purpose to remain in or at the domicile of choice residence in a new place and intention to
must be for an indefinite period of time; the change abandon the old place must concur (Gallego v.
of residence must be voluntary; and the residence at Verra, G.R. No. 48641, November 24, 1941).
the place chosen for the new domicile must be actual
(Poe-Llamanzares v. Commission on Elections,
G.R. Nos. 221697-221700, March 8, 2016).
RENVOI
VENUE IN ESTATE PROCEEDINGS
The actual residence or place of abode of a person,
instead of his domicile, is significant in determining
the venue of estate proceedings and ordinary civil RENVOI
actions (Jao v. CA, G.R. No. 128314, May 29, 2002). A procedure whereby a jural matter presented is
referred by the Conflict of Laws rules of the forum to
For purposes of fixing venue under the Rules of a foreign state, the Conflict of Laws rule of which in
Court, the "residence" of a person is his personal, turn refers the matter back to the law of the forum
actual or physical habitation, or actual residence or (remission) or a third state (transmission) (COQUIA,
place of abode, which may not necessarily be his Conflict, supra at 102).
legal residence or domicile provided he resides
therein with continuity and consistency (San Luis v. It is sometimes called “table tennis” theory, as the
San Luis, G.R. No. 133743, February 6, 2007). law is being referred back and forth from the forum
law to the law of domicile of the foreign party which
SITUS OR ECLECTIC THEORY involves a Conflict of Laws rule, pointing back to the
The capacity, condition, or status of a person is forum law as applicable law (AGPALO, Conflict,
governed by the law of the place (situs) where an supra at 38).
important element of the problem occurs or is
situated (SEMPIO-DIY, Conflict, supra at 57). It is a French word which means “refer back” or
“return”. In Anglo-American countries, the term used
is “remission”, meaning to refer a matter for
TWO KINDS OF PARTICIPATION OF THE
consideration or judgment (SEMPIO-DIY, Conflict,
INDIVIDUAL CONCERNED supra at 59).
1. Active
– If the person acts voluntarily, the governing law In jurisdictions which have recognized the use of
is the law of the actual situs of the transaction or renvoi in choice-of-law analysis, it has been
event; and employed in cases where the domiciliary and
nationality laws are applied to the individual in issues
2. Passive involving succession, domestic relations, and real
– When the effects of the act are set forth or properties (COQUIA, Conflict, supra at 102).
determined by law, the governing law is the law
of the legal situs, i.e., the domicile of the The recognition of the renvoi theory implies that the
individual concerned (Id. at 57). rules of the Conflict of Laws are to be understood as
incorporating not only the ordinary or internal law of
GENERAL RULES ON DOMICILE: the foreign state or country, but its rules of the
1. No person shall be without domicile. Conflict of Laws as well. According to this theory 'the
2. A person cannot have two simultaneous law of a country' means the whole of its law (Aznar
domiciles. v. Garcia, G.R. No. L-16749, January 31, 1963).
3. Every natural person, as long as he is free and
sui juris, may change his domicile at his
pleasure.
4. Domicile, once acquired, is retained unless a
new one is gained.
FOUR WAYS OF TREATING THE thru Philippine Law, ultimately applies Italian law
RENVOI PROBLEM (Id.).
1. Rejection (Internal Law Solution)
– If the Conflict rules of the forum refer the case RENVOI OR DOUBLE
TRANSMISSION
to the law of another state, it is deemed to mean REMISSION RENVOI
only the internal law of that state. Thus, the court
will apply the foreign law (PARAS, Conflict, Reference is Reference is That which
supra at 216). made back to made to a third occurs when
the law of state; involves the local
forum; three laws. court, in
2. Acceptance (Single Renvoi or Single
involves two adopting the
Transmission) laws. foreign court
– If the Conflict rules of the forum refer the case theory,
to the law of another state, it is deemed to discovers
include the totality of the foreign law (internal law that the
and Conflict of Laws rules). Thus, the court will foreign court
recognize the referral back and apply local law accepts the
(Id.). renvoi.
3. Desistment Theory (Mutual Disclaimer of (SEMPIO-DIY, Conflict of Laws, supra at 62).
Jurisdiction Theory)
– The forum court upon reference to another HOW TO RESOLVE RENVOI PROBLEM
state’s law sees that such law is limited in IN THE ABSENCE OF DEFINITIVE LAWS
application to its own nationals domiciled in its ON THE MATTER
territory and has no provision for application to
The theory to be adopted should be that which,
nationals domiciled outside of the territory.
considering the circumstances of a given situation,
Hence, the local court will apply local law.
will best result in fairness, equity, and justice (Id. at
217).
This has the same result as the acceptance of
the renvoi doctrine but the process used by the
forum court is to desist applying the foreign law WAIVER OF RENVOI
(Id.). To prevent complications, parties may even waive
the application of renvoi in case the same is provided
4. Foreign Court Theory for by a foreign law. Rules of private international law
– Forum court assumes the same position that will find no application once a foreign law is chosen
the foreign court would take if the case is by the parties (PE BENITO, Conflict, supra at 96).
litigated in the foreign state (Id.).

DOUBLE RENVOI
– that which occurs when the local court, in adopting PERSONAL STATUS
the foreign court theory, discovers that the foreign AND CAPACITY
court accepts the renvoi (SEMPIO-DIY, Conflict,
supra at 62).

TRANSMISSION To restate, Status refers to the place of an individual

– the process of applying the law of a foreign state in society and consists of more or less permanent
through the law of a second foreign state (Id. at 62). personal qualities and relationships with which the
state and community are concerned (PARAS,
It is not the same as renvoi. Renvoi involves two (2) Conflict, supra at 222).
laws while transmission involves three (3) laws
(PARAS, Conflict, supra at 215). RULES ON STATUS
FACTUAL SITUATION POINT OF CONTACT
Illustration: An Italian domiciled in the Philippines
dies in England. If the case is tried in England, the Beginning of personality
English court (following the domiciliary theory) refers of natural persons
to the law of the Philippines, but discovers that the National law of the Child
Age of Majority
Philippines, in turn, refers the matter to Italy (CIVIL CODE, Art. 15)
(following our nationality theory). Hence, England, Use of Names and
Surnames
 FACTUAL SITUATION POINT OF CONTACT
FAMILY RELATIONS
Use of Titles of Nobility
Absence
Presumptions of Death Lex Fori Under the Civil Code, questions of family rights,
and Survivorship duties, status, conditions, and capacity are governed
(Id. at 222) by lex nationalii (CIVIL CODE, Art. 15).

As stated above, Capacity is a part of one’s status MARRIAGE

and is the sum total of one’s rights and obligations Marriage is a union of one man with one woman or
(Id.). the reciprocal blessings of a domestic home life, and
for the birth, rearing, and education of children
KINDS OF CAPACITY: (PARAS, Conflict, supra at 232).
1. Capacity to Act
– power to do acts with legal effect; and Of all domestic relations, marriage is the most
important. The validity of a marriage contracted in
2. Juridical Capacity one State may be at issue in another State in cases
– the fitness to be the subject of legal relations. of annulment, actions for support and custody of
children, proceedings involving legitimacy of
In the determination of status and capacity of children, tax cases, divorce suits, inheritance
persons, our Civil Code follows the nationality problems, or criminal prosecution for bigamy
principle when dealing with Filipinos (SEMPIO-DIY, (SALONGA, Conflict, supra at 255).
Conflict, supra at 70).
1. MARRIAGE AS A CONTRACT
When dealing with aliens, it depends on which a. Extrinsic Validity – governed by lex loci
principle their country follows, but if the alien is in the celebrationis.
Philippines, the nationality theory is applied by
implication (Id. at 70). REASON: The predictability and the
interstate order arising from society’s
A person's capacity to contract is governed by his interest in marriage (PE BENITO, Conflict,
personal law, whether it is the lex nationalii or the lex supra at 265).
domicilii. The exception in the Philippines are
contracts involving real or personal property in which Formal Requisites of Marriage under
cases the lex situs or lex rei sitae applies (Id. at 70). Philippine Law:
i. Authority of the solemnizing officer;
Illustration: A citizen of state X wants to apply for ii. Valid marriage license except in the
Philippine naturalization. In state X, he is already cases provided for in Chapter 2 of Title
considered of major age, being 15 years old. I; and
Philippine naturalization laws explicitly state that he iii. A marriage ceremony which takes place
must be 18 years old in order to be naturalized. At with the appearance of the contracting
the age of 15, may he already file his petition to be a parties before the solemnizing officer
Filipino citizen? and their personal declaration that they
take each other as husband and wife in
Answer: Yes, provided that at the time of the the presence of not less than two
hearing of the petition he is already 18 years old. If witnesses of legal age (FAMILY CODE,
at the said time he is not yet 18 years of age, the Art. 3).
hearing of the petition will have to be postponed,
notwithstanding the fact that in his own country, he GENERAL RULES:
has already reached the age of majority (PARAS, i. All states recognize as valid those
Conflict, supra at 226). marriages celebrated in foreign
countries if they comply with the
formalities prescribed therein (Hague
Convention).
ii. The forms and solemnities of contracts,
wills, and other public instruments shall
be governed by the laws of the country
in which they were executed (CIVIL
CODE, Art. 17).
 iii. All marriages solemnized outside the
Philippines, in accordance with the laws Marriage Contracted Outside the Philippines
in force in the country where they were The Philippines follows the imperative or
solemnized, and valid there as such, compulsory rule which means that a marriage
shall also be valid in this country formally valid where celebrated is valid
(FAMILY CODE, Art. 26). elsewhere (CIVIL CODE, Art. 17(1); FAMILY
CODE, Art. 26).
EXCEPTIONS:
The following are void marriages in the Marriage performed by a consular or diplomatic
Philippines even if valid in the foreign agent empowered by the sending state to
country where celebrated: officiate marriage is valid in the receiving state,
i. Same-sex marriages, as contracting only if the latter has agreed to his acting in that
parties must be male and female capacity (SALONGA, Conflict, supra at 263).
(FAMILY CODE, Art. 2);
ii. When either or both parties are below REASON: When the parties choose a place as
18 years of age even with parental the loci celebrationis of their marriage, they are
consent (FAMILY CODE, Art. 35, par. considered to have subjected all questions of
1); form to the law of that place, and if valid there it
iii. Bigamous and polygamous marriages should be considered valid everywhere (Id.).
(FAMILY CODE, Art. 35, par. 4);
iv. Mistake as to identity of a contracting Illustration:
party (FAMILY CODE, Art. 35, par. 5); a. Filipino first cousins got married in
v. A subsequent marriage performed California, where the marriage is considered
without recording in the Civil Registry valid. Will their marriage be recognized in
the judgment of annulment or the Philippines?
declaration of nullity, partition and
distribution of properties, and the Answer: No, because such marriage is
delivery of the children’s presumptive incestuous as determined by Philippine Law
legitimes (FAMILY CODE, Art. 53); (PARAS, Conflict, supra at 236).
vi. Marriages where either spouse is
psychologically incapacitated (FAMILY b. A Filipino step-brother wanted to marry his
CODE, Art. 36); Filipino step-sister in the Philippines, but
vii. Incestuous marriages (FAMILY CODE, because in our country, a step-brother
Art.37); and cannot validly marry his step-sister, the two
viii. Void marriages by reason of public decided to get married in California, where
policy (FAMILY CODE, Art. 38). the marriage is valid. Will our country
recognize the validity of their marriage
NOTE: These exceptions put into issue the abroad?
capacity of the parties to enter into the
marriage and relate to the substantive Answer: Yes, because it is valid in the place
requirement for marriage. Since the of celebration and the marriage is neither
personal law of the parties, e.g., the national bigamous, polygamous, or incestuous as
law of Filipinos, governs the questions of determined by Philippine law (Id. at 236;
intrinsic validity of marriages between FAMILY CODE, Art. 26).
Filipinos abroad, the above enumerations
are exceptions to lex loci celebrationis Note: If this marriage has been performed
precisely because they are controlled by lex inside the Philippine consulate in San
nationalii (SEMPIO-DIY, Conflict, supra at Francisco by our consul or vice-consul, the
77). marriage will be deemed to have taken
place in the Philippines, and will therefore be
b. Intrinsic Validity – controlled by the parties’ considered void (PARAS, Conflict, supra at
personal laws, i.e., either domiciliary or 237).
nationality.
RULES ON EXTRINSIC VALIDITY OF
Intrinsic Requirements of Marriage under CERTAIN SITUATIONS:
Philippine Law (FAMILY CODE, Art. 2): a. Proxy Marriages
i. Legal capacity of the contracting parties GENERAL RULE: Where permitted by the
who must be male and female; and law of the place where the proxy participates
ii. Consent freely given in the presence of in the marriage ceremony, they are entitled
the solemnizing officer. to recognition in countries adhering to lex
 loci celebrationis rule, at least insofar as b. Marriage between a Filipino and a
formal validity is concerned (SEMPIO-DIY, Foreigner in the Philippines
Conflict, supra at 77). – Philippine law should be followed;
otherwise, public policy would be violated
NOTE: Philippine law does not sanction (Id. at 78).
proxy marriages; but if celebrated in a
foreign state in accordance with the RULES ON MARRIAGE IF
formalities prescribed by its laws, it may be
recognized in the Philippines under the lex CELEBRATED ABROAD
loci celebrationis rule (Id. at 77). OR IN THE PHILIPPINES
FACTUAL
POINT OF CONTACT
b. Common Law Marriages SITUATION
If valid in the State where the parties
cohabited while holding themselves out as If Celebrated Abroad
man and wife, it is given recognition in sister Between Lex loci celebrationis without
States which do not permit this informal Filipinos prejudice to the exceptions
method of entering into the marital status. under Arts. 26, 35 (1), (4), (5),
and (6), 36, 37, and 38 of the
NOTE: Common law marriages are not FAMILY CODE (bigamous,
recognized under Philippine law (PARAS, polygamous, and incestuous
Conflict, supra at 235). marriages), and consular
marriages.
c. Marriage on Board a Vessel on High
Seas Between Lex loci celebrationis except if
Since the nation whose flag the ship is flying foreigners the marriage is:
has jurisdiction over the ship, compliance 1. Highly immoral (like
with this law is required for a marriage to be bigamous and polygamous
validly contracted (Id. at 77). marriages); or
2. Universally considered
incestuous.
d. Consular Marriages
Marriages between Filipino citizens abroad Mixed Apply above (number 2) – to
may be solemnized by a consul-general, uphold the validity of the
consul, or vice-consul of the Philippines marriage.
(FAMILY CODE, Art. 10).
If Celebrated in the
e. Plural Marriages Philippines
If the parties or at least the husband is a Between National law (Art. 21, FAMILY
Muslim (whose religion allows plural foreigners CODE), provided the marriage
marriages), it is believed that we would is not highly immoral or
recognize up to four marriages of the same universally considered
husband (as recognized by the Philippine incestuous.
Muslim Code on Personal Laws) to protect
the rights of the wives and children Mixed National law of the Filipino
(SEMPIO-DIY, Conflict, supra at 77). (otherwise, public policy may be
militated against).
MIXED MARRIAGES: Marriage by Lex loci celebrationis (with
a. Marriage Between a Filipino and a proxy prejudice to the foregoing
Foreigner abroad rules).
– If the marriage is valid under the law of one NOTE: A
of the spouses while void under the law of marriage by
the other, we should uphold the validity of proxy is
the marriage, unless the marriage is considered as
universally incestuous or highly immoral (Id. celebrated where
at 77). the proxy
appears.
NOTE: Same rule as to foreigners who
marry abroad. (PARAS, Conflict, supra at 233-234).
2. MARRIAGE AS A STATUS FACTUAL SITUATION POINT OF CONTACT
Marriage is not a mere contract but an inviolable
the wife's rights
social institution. Its nature, consequences, and
(SEMPIO-DIY,
incidents are governed by law and not subject to
Conflict, p. 80).
stipulation (FAMILY CODE, Art.1).
Property relations The Hague Convention
RULES ON NATURE, CONSEQUENCES, between husband and declares that the
AND INCIDENT OF MARRIAGE wife. governing law on
matrimonial property
FACTUAL SITUATION POINT OF CONTACT regime is:
Personal rights and National law of the 1. The internal law
obligations between husband. designated by the
husband and wife (mutual spouses before the
fidelity, cohabitation, Effect of subsequent marriage;
respect, assistance and change of nationality: 2. In the absence
support; right of wife to 1. If both will have a thereof, the internal
use husband's name; new common law of the state in
duty to follow husband's nationality – the new which the spouses
residence) one. fix their 1st habitual
2. If only one will residence.
change – the last
common nationality. NOTE: Effect of
3. If the spouses retain change of nationality –
their different no effect. This is the
nationalities after doctrine of
the marriage, it has immutability in the
been suggested that matrimonial property
the national law of regime.
both spouses (PARAS, Conflict, supra at 243-244)
should govern.
REASON: When the woman marries a foreigner,
Another writer she usually loses her nationality and instead follows
suggests that the that of the husband. Moreover, the husband is
law of the husband usually the head of the family, so the husband’s
at the time of the personal law governs the personal relations of the
marriage should be spouses (SEMPIO-DIY, Conflict, supra at 79).
applied.
In the Philippines, personal relations of the spouses
Reason: It will not are governed by Philippine law since we follow the
necessarily be nationality theory. In countries that follow the
unfair to the wife, domiciliary theory, the law of their domicile governs.
because the
national law of the It is the national law of the wife or Philippine law that
husband may be would govern the spouses’ personal relations by
even more favorable parity of reasoning with Art. 80 of the Family Code
to her. (Id. at 79).

Some exceptions to the The marriage of an alien woman to a Filipino

above rule are: husband does not ipso facto make her a Filipino
1. If the national law of citizen and does not excuse her from her failure to
the husband depart from the country upon the expiration of her
violates the public extended stay here as an alien (Djumantan v.
policy of the forum; Domingo, G.R. No. 99358, January 30, 1995).
or
2. The national law of PHILIPPINE RULE ON PROPERTY
the wife happens to
be the law of the
RELATIONS
forum, as it is In the absence of a contrary stipulation in the
intended to protect marriage settlements, the property relations of the
spouses shall be governed by Philippine laws,
regardless of the place of the celebration of the
FACTUAL SITUATION POINT OF CONTACT
marriage and their residence (SEMPIO-DIY,
Conflict, supra at 81). If obtained abroad National Law (if valid in
between foreigners the state granting it and
This rule shall NOT apply: valid according to the
1. Where both spouses are aliens, in which cases national law of the
the general rule in Conflict of Laws will apply (Id. parties, it will be valid
at 82); here)
2. With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines If obtained abroad If valid in the state
and executed in the country where the property between a Filipino and granting it and valid
is located; and a foreigner according to the
3. With respect to the extrinsic validity of contracts national law of the
entered into in the Philippines but affecting foreigner, it will be valid
property situated in a foreign country whose here (See Republic v.
laws require different formalities for their Manalo, G.R. No.
extrinsic validity (FAMILY CODE, Art. 80). 221029, April 24, 2018).
(PARAS, Conflict, supra at 263).
DOCTRINE OF IMMUTABILITY OF
MATRIMONIAL PROPERTY REGIME THE HAGUE CONVENTION ON THE
Regardless of the change of nationality by either or RECOGNITION OF DIVORCE AND
both of the spouses, the original property regime
existing at the start of their marriage prevails LEGAL SEPARATION
(SEMPIO-DIY, Conflict, supra at 82). A foreign divorce will be recognized in contracting
states if, at the date of the filing of the proceedings:
REASONS: 1. The petitioner or the respondent had habitual
1. Marital peace in the spouses' property relations residence in the state where the divorce was
is more or less guaranteed; obtained;
2. The spouses will not be able to prejudice 2. Both spouses were nationals of said state; or
creditors, who in turn can jeopardize the 3. Although the petitioner was a national of another
interests of the spouses; and country, he or she had his or her residence in
The spouses may protect themselves from each the place where the divorce was obtained
other (Id. at 82). (CONVENTION OF 1 JUNE 1970 ON THE
RECOGNITION OF DIVORCES AND LEGAL
ABSOLUTE DIVORCE (A VINCULO SEPARATIONS, Art. 2).
MATRIMONII)
RULES ON DIVORCE IN THE
The Hague Convention provides that the granting of
divorce or separation must comply with the national PHILIPPINES
law of the spouses and the law of the place where GENERAL RULE: We only observe relative divorce
the application for divorce is made. or legal separation (a mensa et thoro) in the
Philippines.
DIVORCE
EXCEPTIONS:
The legal dissolution of marriage bond rendered by 1. Where a marriage between a Filipino citizen and
a competent court for causes defined by law which a foreigner is validly celebrated and a divorce is
arose after a valid marriage (AGPALO, Conflict, p. thereafter validly obtained abroad capacitating
324). the alien spouse to remarry, the Filipino spouse
shall have capacity to remarry under Philippine
RULES ON DIVORCE law (FAMILY CODE, Art. 26);
FACTUAL SITUATION POINT OF CONTACT
Severing marital ties between parties in a mixed
If sought in the Lex Fori (will not be marriage and capacitating the Filipino spouse to
Philippines (whether by granted) remarry as a necessary consequence of
Filipinos or foreigners) Exception: Muslim upholding the validity of a divorce obtained
Divorce abroad by the alien spouse. If the foreigner
obtains a valid foreign divorce, the Filipino
If obtained abroad National Law (thus, not spouse shall have capacity to remarry under
between Filipinos valid here even if valid Philippine law. (San Luis v. San Luis, G.R. Nos.
abroad) 133743, February 6, 2007).
 can be given res judicata effect (Corpuz v. Sto.
2. Valid divorce obtained abroad between Tomas, G.R. No. 186571, August 11, 2010).
foreigners whose national laws allow divorce.
NATURE OF RECOGNITION OF
NOTE: The reckoning point is not the citizenship of DIVORCE PROCEEDINGS
the parties at the time of the celebration of the
marriage, but their citizenship at the time a valid A petition for recognition of foreign judgment is a
divorce is obtained abroad by the alien spouse special proceeding, which "seeks to establish a
capacitating the latter to remarry (Republic v. status, a right or a particular fact," and not a civil
Orbecido III, G.R. No. 154380, October 5, 2005). action which is "for the enforcement or protection of
a right, or the prevention or redress of a wrong"
Even if the marriage is not a mixed marriage, i.e., (Fujiki v. Marinay, G.R. No. 196049, June 26, 2013).
both are Filipino citizens at the time of celebration of
marriage, if one of the spouses later becomes a The recognition of the foreign divorce decree may be
foreign citizen and obtains a valid foreign divorce made in a Rule 108 proceeding itself, as the object
decree, the spouse who did not change his/her of special proceedings (such as that in Rule 108 of
citizenship, i.e., Filipino, will be considered the Rules of Court) is precisely to establish the
capacitated to remarry (Republic v. Orbecido III, status or right of a party or a particular fact (Fujiki v.
G.R. No. 154380, October 5, 2005). Marinay, G.R. No. 196049, June 26, 2013).

LIMITED RECOGNITION OF DIVORCE CORRECTION OF ENTRY

OBTAINED ABROAD Article 412 of the Civil Code declares that "no entry
in a civil register shall be changed or corrected,
If the non-recognition of divorce will work injustice without judicial order." The Rules of
and unfairness to Philippine nationals, the same may Court supplements Article 412 by specifically
be given limited recognition in our jurisdiction (PE providing for a special remedial proceeding by which
BENITO, Conflict, supra at 283). entries in the civil registry may be judicially cancelled
or corrected. This ruling should not be construed as
A divorce abroad is considered valid in the requiring two separate proceedings for the
Philippines, even if it is the Filipino spouse who files registration of a foreign divorce decree in the civil
for divorce abroad. Based on a clear and plain registry — one for recognition of the foreign decree
reading of the provision, Art. 26, Par. 2 of the Family and another specifically for cancellation of the entry
Code only requires that there be a divorce validly under Rule 108 of the Rules of Court (Corpuz v. Sto.
obtained abroad. The letter of the law does not Tomas, G.R. No. 186571, August 11, 2010).
demand that the alien spouse should be the one who
initiated the proceeding wherein the divorce decree
was granted. It does not distinguish whether the
EFFECTS OF DIVORCE OBTAINED
Filipino spouse is the petitioner or the respondent in ABROAD BY THE FOREIGNER SPOUSE
the foreign divorce proceeding. The Court is bound 1. The foreign national may not go against the
by the words of the statute; neither can we put words Filipino spouse for accounting of conjugal
in the mouths of the lawmakers (Republic v. Manalo, property after the issuance of a divorce decree
G.R. No. 221029, April 24, 2018). (Van Dorn v. Romillo, G.R. No. L-68470,
October 8, 1985);
Owing to the nationality principle embodied in Article 2. The foreign spouse can no longer claim to be the
15 of the Civil Code, only Philippine nationals are spouse of his or her Filipino partner (PE
covered by the policy against absolute divorces the BENITO, Conflict, supra at 283);
same being considered contrary to our concept of 3. The foreign spouse cannot maintain a criminal
public policy and morality. However, aliens may case of adultery and concubinage against the
obtain divorces abroad, which may be recognized in former spouse (Pilapil v. Ibay-Somera, G.R. No.
the Philippines, provided they are valid according to 80116, June 30, 1989);
their national law (Van Dorn v. Romillo, Jr., G.R. No. 4. The Filipino spouse is endowed with capacity to
L-68470, October 8, 1985). remarry, and his/her subsequent spouse can file
a petition for letters of administration (San Luis
RECOGNITION OF FOREIGN DIVORCE v. San Luis, G.R. No. 133743, February 6,
While the law requires the entry of the divorce 2007); and
decree in the civil registry, the law and the 5. The legal effects of the divorce on custody, care
submission of the decree by themselves do not ipso and support of the children must still be
facto authorize the decree's registration. The law determined by our courts (Roehr v. Rodriguez,
should be read in relation with the requirement of a G.R. No. 142820, June 20, 2003).
judicial recognition of the foreign judgment before it
RIGHT TO RE-MARRY AFTER DIVORCE 2. In the Philippines, foreigners may ask for legal
Filipinos are allowed to remarry once their foreign separation here, even if they did not get married
spouses are capacitated to remarry by a divorce in this country. What is important is that the court
decree (FAMILY CODE, Art. 26, par. 2). However, has jurisdiction over both parties;
the divorce must be judicially recognized first by 3. Most countries assume jurisdiction over cases
Philippine courts and annotated in the local civil for legal separation on the basis of the domicile
registry before the Philippine national can remarry of one of the parties or the matrimonial domicile
(PE BENITO, Conflict, supra at 292). (SEMPIO-DIY, Conflict, supra at 91).

NOTE: Whether the Filipino spouse initiated the NOTE: It is not necessary that the cause for legal
foreign divorce proceeding or not, a favorable separation takes place in this country for our courts
decree dissolving the marriage bond and to have jurisdiction over the case. What is important
capacitating his or her alien spouse to remarry will is that the court has jurisdiction over the parties and
have the same result: the Filipino spouse will that the procedural requirements of the Rules of
effectively be without a husband or wife. A Filipino Court are complied with (Id. at 91).
who initiated a foreign divorce proceeding is in the
same place and in like circumstance as a Filipino ANNULMENT AND DECLARATION OF
who is at the receiving end of an alien-initiated NULLITY
proceeding. Therefore, the subject provision (Article
26, par. 2 of the Family Code) should not make a
distinction (Republic v. Manalo, G.R. No. 221029, ANNULMENT
April 24, 2018). – remedy if the marriage is voidable; grounds are
those provided for by the law alleged to have been
LEGAL SEPARATION OR RELATIVE violated (Id. at 83).
DIVORCE (A MENSA ET THORO)
DECLARATION OF NULLITY
CONFLICT RULES ON LEGAL SEPARATION:
– remedy if the marriage is void ab initio; grounds
1. Parties of the Same Nationality
are the exceptions to the Lex Loci Celebrationis in
– grounds for legal separation are those given
Family Code, Art. 26.
by their personal law (SEMPIO-DIY, Conflict,
supra at 90).
NOTE: The above rules do not apply to consular
marriages to which either the national law or the law
2. Parties are of Different Nationalities of the domicile of the parties, as the case may be,
– grounds available under the personal law of applies (Id. at 86).
both spouses are all available grounds for
granting legal separation (Hague Convention on
Legal Separation, Art. 8).
JURISDICTION TO ANNUL
It is vested in the court of the nationality or domicile
SOME GROUNDS FOR LEGAL SEPARATION of the parties, not the place of celebration of
marriage or the locus celebrationis (AGPALO,
FACTUAL Conflict, supra at 333).
POINT OF CONTACT
SITUATION
REASON: It is the State of the domicile that has the
Grounds for legal National law of the parties
greatest interest in the domestic relations of the
separation: 1. If of the same or common
parties (SALONGA, Conflict, supra at 278).
1. Adultery nationality – national law
2. Concubinage governs
NOTE: Under Rule 14, Section 17 of the Rules of
3. Attempt by one 2. If of different nationalities
Court, when the defendant is not a resident of the
spouse against – the grounds given by
Philippines and the action affects the personal status
the life of the both national laws should
of the plaintiff, summons may be served by
other all be considered proper
publication in a newspaper of general circulation.
grounds (Hague
Convention on Legal
Separation, Art. 8). GOVERNING LAW
Lex loci celebrationis determines the consequences
of any defect to form (SEMPIO-DIY, Conflict, supra
WHERE LEGAL SEPARATION SHOULD at 85).
BE FILED:
1. In the case of aliens, jurisdiction is not assumed Generally, the same applies with reference to
by the forum unless the national law of the substantive or intrinsic validity. But with regard to
parties is willing to recognize its jurisdiction;
capacity of the parties to marry, their national law is Parental Authority over the Child
determinative. Derived from the Roman law concept of patria
potestas, a principle wherein the personal law of
PHILIPPINE RULE the father controls the rights and duties of
Since we follow the nationality theory, our courts parents and children (COQUIA, Conflict, supra
have jurisdiction over annulment and nullity suits in at 291).
marriage in cases of Filipino litigants. Philippine
domiciliaries can also file such suits in the NOTE: Reference to the personal law of the
Philippines (Id. at 86). father may result in joint exercise of parental
authority over the property of the child by the
father and the mother (i.e., Art. 221, Family
STATUS OF CHILDREN Code). Father’s personal law could also grant
1. LEGITIMACY AND ILLEGITIMACY parental authority to the mother of the
illegitimate children (i.e., Art. 176, Family Code).
Determination of Legitimacy of a Child
Governed by the common personal law of the 2. LEGITIMATION
parents, either domiciliary or nationality. In most It is a process whereby children who in fact were
countries, the personal law of the father is not born in a lawful wedlock, and should be
applied to determine the legitimate relationship ordinarily considered illegitimate children, are by
(COQUIA, Conflict, supra at 289). fiction of law and upon compliance with certain
legal requirements regarded by law as
Philippine Rule for Status and Personal Law “legitimate”, it being supposed that they were
Governing Rights and Duties between Child born after their parents had already been validly
and Parents married (SEMPIO-DIY, Conflict, supra at 97).
a. Legitimacy governed by parents’ national
law (SEMPIO-DIY, Conflict, supra at 94). The requisites of legitimation are those
b. Legitimacy governed by the national law of prescribed by the national law of the parents. If
the father, if parents have different the parents have different national laws, the
nationalities (Id. at 94). national law of the father is determinative (Id. at
c. Personal law of the illegitimate child is the 97).
mother’s personal law, unless the child is If the personal law of the parents or of the father
recognized by the father, in which case the changes, the legitimation of the child is not
personal law of the father applies (Id. at 96). affected as legitimation creates a permanent,
immutable status of the child (SALONGA,
NOTE: However, in the case of Tecson v. Conflict, supra at 326).
COMELEC, Ronald Allan Kelly Poe and Fornier,
G.R. No. 161434, March 3, 2004, the Supreme NOTE: Once legitimacy is created under the law
Court held that providing neither conditions nor of the parent, either by birth of the child or
distinctions, the 1935 Constitution (the legitimation, it is already a permanent status. But
fundamental law prevailing on the day, month the nature and extent of the rights and duties
and year of birth of respondent FPJ), states that flowing as incidents from the status of legitimacy
among the citizens of the Philippines are those may be modified by a change of the personal law
whose fathers are citizens of the Philippines, deemed to be decisive for the child’s status. In
regardless of whether the children are legitimate short, the child’s legitimacy is immutable; but the
or illegitimate. incidents of his status are mutable (Id. at 326).

Doctrine of Immutability of Status 3. ADOPTION

The status of the legitimate or illegitimate child A juridical act, a proceeding in rem, which
is not affected by a subsequent change of creates between two persons a relationship
nationality of the parents. If the child is later similar to that which results from legitimate
legitimated, the personal law of the child follows paternity and filiation (AGPALO, Conflict, supra
that of the father (SEMPIO-DIY, Conflict, supra at 277).
at 96).
The creation of a parent–child relationship by
However, the rights and duties of parent and judicial order between two parties who usually
child would be governed by the new national law are unrelated (BLACK’S LAW DICTIONARY, 8th
of the parents, and thus, may be mutable (Id. at ed., 2004).
96).
 The determinative law as to whether the The Requirement on Residency and Certificate
relationship of adoption has been created or not of Qualification to Adopt may be Waived for the
is as follows: following:
a. The child’s personal law, to protect his well- a. A former Filipino citizen who seeks to adopt a
being; relative within the fourth (4th) degree of
b. If the child does not reside in the country of consanguinity/affinity;
his citizenship, the personal law of the b. One who seeks to adopt the legitimate
adopter will govern, or the personal law of son/daughter of his/her Filipino spouse; or
the adopter and that of the child will be c. One who is married to a Filipino citizen and
applied concurrently (SEMPIO-DIY, seeks to adopt jointly with his/her spouse a
Conflict, supra at 100). relative within the fourth (4th) degree of
consanguinity or affinity of the Filipino spouse
GENERAL RULE: The legal effect of the (R.A. 8552, Sec. 7).
adoption is determined by the same law that
created the relationship of adoption (Id. at 100). NOTE: R.A. 8552 still requires that the husband and
wife must jointly adopt. Where the spouses are
EXCEPTION: Where public policy or the legally separated, the husband or the wife can adopt
interests of its inhabitants forbid its enforcement alone and the consent of the other spouse is no
and demand the substitution of the lex fori longer necessary (SEMPIO-DIY, Conflict, supra at
(AGPALO, Conflict, supra at 279). 102).

Legal Effects that Flow from Adoption: The requirement of sixteen (16) years difference
a. The successional rights of the adopted child; between the adopter and the adoptee may be
b. The parental authority of the adopter over waived if the adopter is:
the adopted child; and a. The biological parent of the adoptee; or
c. The entitlement of the adopted child to all b. The spouse of the adoptee’s parent (R.A. 8552,
the rights and obligations provided by law to Sec. 7).
legitimate children (R.A. No. 8552, Sections
16-18). NOTE: Justice Sempio-Diy is of the opinion that
under Sec. 48, Rule 39 of the Rules of Court, the
Under the Domestic Adoption Act of 1998 (R.A. Philippines can recognize a foreign decree of
No. 8552), an Alien (Who is Not a Former Filipino adoption provided:
Citizen) May Adopt, Provided that he is: a. The foreign court had jurisdiction to render said
a. Of legal age; decree, and
b. In possession of full civil capacity and legal b. There was no want of notice, collusion, extrinsic
rights; fraud, or clear mistake of law or fact leading to
c. Of good moral character; the foreign decree of adoption (SEMPIO-DIY,
d. Not convicted of any crime involving moral Conflict, supra at 104).
turpitude;
e. Emotionally and psychologically capable of Inter-Country Adoption
caring for children; A socio-legal process of adopting a Filipino child by
f. At least sixteen (16) years older than the a foreigner or a Filipino citizen permanently residing
adoptee; abroad where the petition is filed, the supervised trial
g. In a position to support and care for his children; custody is undertaken, and the decree of adoption is
h. His country has diplomatic relations with the issued outside the Philippines. This is an alternative
Philippines; means of child-care if the child cannot be cared for
i. A resident in the Philippines for at least three in any suitable manner in the Philippines (R.A. No.
continuous years prior to the filing of the 8043, Sec. 3).
application for adoption and he maintains such
residence until the adoption decree is entered; NOTE: Adoption is not one of the ways prescribed
j. Issued a certificate of legal capacity to adopt in by law for the acquisition of Filipino citizenship.
his country by his diplomatic or consular office;
and Adoption does not confer on the adopted child the
k. His government allows the adoptee to enter his citizenship of the adopter. Adoption is political, and
country as his adopted son/daughter (R.A. 8552, not civil, in nature, and the ways in which it should
Sec. 7). be conferred lay outside the ambit of the Civil Code
(In re Malkinson v. Agrava, G.R. No. L-36309,
November 26, 1973).
Law Governing the Adoption Proceeding RULES ON FUNERALS
An alien qualified to adopt under the Child and Youth
Welfare Code, which was in force at the time of the FACTUAL SITUATION POINT OF CONTACT
filing of the petition, acquired a vested right which Funerals – incidents Where the body is
could not be affected by the subsequent enactment thereof buried
of a new law disqualifying him. Consequently, the
enactment of the Family Code, effective August 3, (SEMPIO-DIY, Conflict, supra at 303)
1988, will not impair the right of respondents who are
aliens to adopt a Filipino child because the right has
become vested at the time of filing of the petition for
adoption and shall be governed by the law then in
force (Republic v. Miller, G.R. No. 125932, April 21,
PROPERTY
1999).

Recording of Foreign Adoptions Not Inimical to

Private International Law ELEMENTS OF CONFLICT OF LAWS ON
Private International Law offers no obstacle to PROPERTY OWNERSHIP:
recognition of foreign adoption, the principle being 1. There is a dispute over the title or ownership of
that the status of adoption, created by the law of a a property, such that the capacity to take and
State having jurisdiction to create it, will be given the transfer, the formalities of conveyance, the
same effect in another state as is given by the latter essential validity and effect of the transfer, or the
state to the status of adoption when created by its interpretation and effect of conveyance, are to
own law. The status of adoption, once created under be determined; and
the proper foreign law, will be recognized in this 2. A foreign law on ownership and conveyance is
country except where public policy or the interests of asserted to Conflict with a domestic law on the
its inhabitants forbid its enforcement and demand same matters (PE BENITO, Conflict, supra at
the substitution of the lex fori. Implicit in Art. 15 of the 250).
Civil Code is that the exercise of incidents to foreign
adoption remains subject to the local law (Marcaida Lex situs or lex rei sitae – real property as well as
v. Aglubat, G.R. No. L-24006, November 25, 1967). personal property is subject to the law of the country
where it is situated (CIVIL CODE, Art. 16).
(Please see Remedial Law Memory Aid for the
Procedure for Adoption and Persons and Family
RULES ON PROPERTY
Relations under this Book on the Domestic and Inter-
Country Adoption Laws.) FACTUAL
POINT OF CONTACT
SITUATION
RULES ON GUARDIANSHIP
Real Property Lex Rei Sitae (CIVIL CODE,
FACTUAL SITUATION POINT OF CONTACT Art. 16, par. 1).
EXCEPTIONS:
1. Over the person 1. Court of the domicile 1. Contracts not
a. Appointing court of the ward dealing with title
b. Powers of 2. Coextensive with over real
guardianship those of the property – Lex
appointing court Loci Voluntatis
(law of the or Lex Loci
appointing state) Intentionis.
2. Real property is
2. Over the property 1. Court where the
given as
a. Appointing court property is found
security –
b. Powers of (lex rei sitae)
mortgage
guardianship 2. Co-extensive with
governed by lex
those of the
rei sitae,
appointing court
principal
(law of the
contract
appointing state)
governed by
c. Over the person and Same as above proper law of
over the property the contract.
(general guardian)
 FACTUAL FACTUAL
POINT OF CONTACT POINT OF CONTACT
SITUATION SITUATION

Tangible Lex Rei Sitae Intangible 1. Voluntary transfer or

Personal Personal assignment of choses in
Property (Choses EXCEPTION: Artificial or Property (Choses action – Personal law of
in Possession) Constructive Situs is given in Action) the parties, law of the
Same Exceptions to those which do not have a place of execution of
under Real fixed situs (usually in assignment, law of place
Property but motion). where debt is
security is pledge, recoverable.
not mortgage. 2. Involuntary transfer of
choses in action, e.g.,
Means of Sea Going Vessels – Law of garnishment – law of the
transportation the flag. state where debtor may
be served summons.
In states consisting of 3. Debt for Taxation
several countries, e.g., Purposes – domicile of
United Kingdom, Law of the creditor, where the
place of registry, or Law of collectible credit may be
the depot. taxed.
4. Administration of debts –
Thing in Transitu Loss, destruction, where the assets of the
Loss, destruction, deterioration - Law of the debtor are usually
deterioration, destination (CIVIL CODE, situated.
validity/effect of Art. 1753).
seizure, Capacity to 1. Lex situs
disposition/ Seizure and arrest – Where transfer or EXCEPTION: Voluntary
alienation. the owner’s creditor seizes acquire property transfer of interests in
the goods in transit, the chattels (other than
result is that the transport is assignment for the benefit
discontinued and a of creditors) – validity and
temporary resting place is effect of conveyance
thereby created. The law of between the parties
this place will depend on determined by the local
whether the seizure was law of the State which has
lawful or whether he has the most significant
acquired a lien, pledge, relationship to the parties
privilege, or a similar right or with respect to the
what pertains to that right. particular issue;
2. Goodwill
Disposition of goods – Governed by the law of
questions arising from the principal place of
transactions involving business
movables in transit may be
resolved by law of any place Negotiability or The law governing the rights
having substantial non-negotiability embodied in the instrument
connection with the of an instrument
transaction which will uphold
its validity. The owner is thus Validity of In general, situs of the
permitted to choose between transfer, delivery instrument at the time of
several legal systems: or negotiation of transfer, delivery or
1. Law of the temporary the instrument negotiation
resting place (e.g., interim
port); Effect on a Law of the place of
2. Lex loci actus; corporation of incorporation
3. Law of the place of the sale of
destination; or corporate shares
4. Law of the last real situs of
goods.
 – the court may look into the law of another
FACTUAL
POINT OF CONTACT state which has a real interest in applying its
SITUATION
law;
Effect between Lex loci voluntatis or lex loci
the parties of the intentionis (proper law of the f. The validity of the contract to transfer an
sale of corporate contract) – for this is really a immovable;
shares contract; usually this is the
place where the certificate is g. Negotiable Instruments
delivered. i. Negotiability – law governing the rights
in the instrument
Taxation on the Law of the place of ii. Validity of the transfer, delivery, or
dividends of incorporation negotiation – law of the situs of the
corporate shares instrument at the time of transfer,
delivery, or negotiation;
Taxation on the Law of the place where the
income from the sale was consummated h. Corporate shares;
sale of corporate i. As against the corporation and third
shares persons – law of the place of
incorporation.
Franchises Law of the place that granted ii. As between the assignor and
them assignees – law most closely
connected to the transaction.
Goodwill of the Law of the place where the iii. Taxation on dividends received by
business & business is carried on corporate shares is governed by the
taxation thereto law of the place of incorporation
(SEMPIO-DIY, Conflict, supra at 119).
Patents, In the absence of a treaty,
iv. Sale of corporate shares between
copyrights, they are protected only by
parties – proper law of the contract, i.e.,
trademarks, trade the State that granted them
the lex loci voluntatis or lex loci
names
intentionis, which in many cases, is the
(PARAS, Conflict, supra at 318-322). place where the certificate is delivered
to the buyer.
RULES ON CONVEYANCE OF
PROPERTY i. Franchises – subject to the law of the state
that granted them; and
1. Interpretation and Effect of Conveyance
– Lex situs. j. Intellectual Properties
GENERAL RULE: Patents, copyrights,
2. Extrinsic and Intrinsic Validity of trademarks, trade names, and service
Conveyances marks are protected only by the state that
GENERAL RULE: Lex Situs granted/recognized them.

EXCEPTIONS: EXCEPTION: When a treaty provides

a. Art. 16, par. 2 of the Civil Code; otherwise.

b. Subject matter of contract is land, but issue Trade name, meaning, a corporate name, shall be
pertains to contractual rights and liabilities of protected in all the countries of the Union without the
the parties; obligation of filing of registration whether or not it
forms part of the trade name (Union Convention for
c. Security is immovable property but issue is the Protection of Industrial Property, Art. 8).
the validity and effect of the obligation which
the property secures; The ownership of a trademark is acquired by its
registration and its actual use by the manufacturer or
d. Under a policy-centered approach, when the distributor of the goods made available to the
situs of the movable at the time of the purchasing public (UFC Philippines v. Barrio Fiesta
transfer was insignificant or accidental; Manufacturing Corp., G.R. No. 198889, January 20,
2016).
e. When the issue involves consideration other
than the validity and effect of the transfer Under Sec. 160 of R.A. 8293 (Intellectual Property
Code, hereinafter IPC), a foreign corporation, even
if it is not engaged in business in the Philippines, Grounds for Refusal of Registration
may bring a civil or administrative action for a. Mark constitutes a reproduction of a well-
opposition, cancellation, infringement or unfair known mark.
competition. Sec. 156 of the same Act also provides b. Mark is an armorial bearing, flag, etc.
that only owners of registered marks may recover c. Mark infringes rights of others, is devoid of
damages from any person who infringes their rights distinctiveness, or is contrary to public
(SEMPIO-DIY, Conflict, supra at 121). morals.

PARIS CONVENTION FOR THE Territoriality or Independence of

PROTECTION OF INDUSTRIAL Registration
The Paris Convention provides that a “mark duly
PROPERTY (PHILIPPINES IS A MEMBER registered in a country of the Union shall be
COUNTRY) regarded as independent of marks registered in
Nationals of member countries shall be entitled to: the other countries of the Union, including the
1. Rights provided by the Paris Convention in the country of origin” (Paris Convention for the
Philippines which are consistent with Philippine Protection of Industrial Property, Art. 6).
Laws; and
2. Enjoy the privileges that Philippine laws grant or 3. File an action for infringement or unfair
may grant to its nationals (AGPALO, Conflict, competition;
supra at 366).
4. Oppose or cancel the registration of an
SOURCE OF RIGHTS OF FOREIGN identical mark or substantially similar to
NATIONALS their own marks or trade names;
1. Reciprocity
– The law of the alien’s country extends NOTE: For the enjoyment of these rights, it is
reciprocal rights to Filipino citizens; and necessary that foreign nationals submit proof
that their country grants substantially similar
2. Convention, treaty, or agreement where rights and privileges to citizens of the Philippines
the Philippines is also a party. and their marks should have been previously
registered in the Intellectual Property Office or
are well-known marks or trade names.
NOTE: Trademark protection has its source in, and
is subject to the limitations of Philippine law, not the
law of the foreign national’s own country (Id. at 398). 5. Protection in the Philippines against
unfair competition;
SOURCES OF RIGHT AND LEGAL
6. Right of Priority, subject to certain
REMEDIES FOR TRADEMARKS
conditions;
1. Prior use in commerce of the mark or trade
name in the Philippines from which grows Right of Priority
property rights thereto (INTELLECTUAL Right accorded to an applicant who has
PROPERTY CODE, Sec. 123.2); and previously filed an application in any of the
2. The trademark’s registration with the Intellectual member countries. His application filed in the
Property Office (INTELLECTUAL PROPERTY Philippines is considered as if it were filed on the
CODE, Sec. 122). date the first application was filed in the country
of origin (AGPALO, Conflict, supra at 391).
RIGHTS OF FOREIGN NATIONALS
PERTAINING TO TRADEMARKS 7. Assign trademark and protect trade
1. Sue in trademark or service mark names;
enforcement action (INTELLECTUAL
PROPERTY CODE, Sec. 160); NOTE: The Paris Convention requires the
protection of trade names even without
2. Register their marks or trade names registration. Sec. 165 of IPC incorporated this
under the same terms and conditions as requirement by protecting trade names even
prior to registration.
those applicable to local applicants or to
base their applications on their home
registrations, or to claim priority rights in
connection with pending foreign
applications;
8. Right to protect collective marks; and a prerequisite to filing and maintaining the
infringement suit (Id. at 446).
Collective Marks
Any visible sign designated as such in the RIGHTS GUARANTEED BY THE BERNE
application for registration and capable of CONVENTION FOR COPYRIGHT
distinguishing the origin or any other common
HOLDERS
characteristics, including the quality of goods or
services of different enterprises which use the 1. Authors shall enjoy in countries of the Union,
sign under the control of the registered owner of other than the country of origin, the rights which
the collective mark (INTELLECTUAL their respective laws do now or hereafter grant
PROPERTY CODE, Sec. 121.2). to their nationals, as well as rights specifically
granted by the Berne Convention;
9. Right to protect service marks 2. The enjoyment and exercise of these rights shall
not be subject to any formality and such
Service marks enjoyment and such exercise shall be
Any visible sign capable of distinguishing the independent of the existence of protection in the
services of an enterprise (INTELLECTUAL country of origin of the work; and
PROPERTY CODE, Sec. 121.1). 3. Where the author is not a national of the country
of origin of the work for which he is protected
under the Convention, he shall enjoy in that
LEGAL REMEDIES OF FOREIGN country the same right as national authors
NATIONALS (BERNE CONVENTION, Art. 5).
1. Action for damages and injunction based on
infringement, unfair competition or false
designation, and false description;
2. Petition to oppose and cancel registration; and CONTRACTS
3. Petition for seizure of prohibited goods
(INTELLECTUAL PROPERTY CODE, Sec.
160).
CONTRACT
RIGHTS PERTAINING TO PATENTS From the viewpoint of Conflict of Laws, a discussion
1. Nationals of member countries enjoy in other of contracts only includes those which are purely civil
member countries the advantages that their or commercial in nature. It excludes those which
respective laws grant on nationals; create a status (e.g., marriage) or those transferring
2. The inventor shall have the right to be mentioned real rights (PARAS, Conflict, supra at 374 and
as such in the patent; SEMPIO-DIY, Conflict, supra at 122).
3. The grant of a patent shall not be refused and a INSTANCES OF FOREIGN ELEMENT IN
patent shall not be invalidated on the ground that
CONTRACTS:
the sale of the patent product or of the product
obtained by the patented process is subject to 1. An alien individual becoming a party to the
restrictions or limitations resulting from domestic contract;
law; 2. Parties choosing a foreign law as their choice of
4. The importation by the patentee into the country law; and
where the patent has been granted of articles 3. The places of execution and performance are
manufactured in any of the countries of the union different from each other (PE BENITO, Conflict,
shall not entail forfeiture of the patent; supra at 87).
5. Industrial designs shall be protected in all
countries of the Union (AGPALO, Conflict, supra PRIMACY OF CONTRACTUAL
at 444); and STIPULATIONS
6. Entitled to file a suit for infringement of a patent. The contracting parties may establish such
stipulations, clauses, terms and conditions as they
REQUIREMENTS FOR FOREIGN may deem convenient, provided they are not
PATENTEE’S RIGHT TO FILE AN contrary to law, morals, good customs, public order,
INFRINGEMENT SUIT or public policy (CIVIL CODE, Art. 1306).
1. He is a national or is domiciled or has a real and
Counter-balancing the principle of autonomy of
effective industrial establishment in any of the
contracting parties is the equally general rule that
member countries of the Paris Convention; and
provisions of applicable law, especially provisions
2. If he is engaged in business in the Philippines,
relating to matters affected with public policy, are
he must first secure a license to do business as
deemed written into the contract. The governing
principle is that parties may not contract away where the offer was made (CIVIL CODE, Art.
applicable provisions of law especially peremptory 1319, par. 2); or
provisions dealing with matters heavily impressed 2. If the place of execution was merely casual or
with public interest. The law relating to labor and accidental, the law which has the most
employment is clearly such an area and parties are significant relationship to the transaction should
not at liberty to insulate themselves and their be applied.
relationships from the impact of labor laws and
regulations by simply contracting with each other Rule on Validation
(Pakistan International Airlines Corp. v. Ople, G.R. Parties entering into a contract upon equal terms
No. 61594, September 28, 1990). intend their agreement to be binding under any law
whose application the parties can reasonably be
NOTE: Even if there is a choice of law stipulated in assumed to have taken into account. Philippine
the contract, the law of the place of performance will courts may adopt this in interpreting Article 17 of the
always find applicability to ensure that local laws Civil Code, in cases where execution cannot be
thereof are not violated or public policy infringed by localized due to multi-state contracts (SALONGA,
the execution of the contract (PE BENITO, Conflict, Conflict, supra at 344).
supra at 87).

Generally, in a conflict-of-laws situation, a court must

INTRINSIC VALIDITY
determine at the outset the nature of the problem – the policy of our law is to give effect to the intention
presented to it for solution, specifically, if it relates to of the parties (CIVIL CODE, Art. 1306).
torts, contracts, property, or some other field, or to a
matter of substance or procedure (Erie Insurance Thus, we should apply the proper law of the contract,
Exchange v. Heffernan II, Misc. No. 2, June 13, i.e., the lex loci voluntatis (the law expressly agreed
2007). upon by the parties) or the lex loci intentionis (the
law impliedly agreed upon by the parties) (SEMPIO-
EFFECT OF INDETERMINATE DIY, supra at 126).
APPLICABILITY OF CHOICE OF LAW
THREE POSSIBLE LAWS THAT MAY
If the parties do not specify the extent of the
applicability of their chosen law, the chosen law will
GOVERN INTRINSIC VALIDITY:
normally apply to the following concerns: 1. Lex loci contractus
1. Interpretation; – Law of the place where the contract is made
2. Rights and obligations arising from the contract; or executed
3. Performance and the consequences of non- Reason: The parties’ mindsets are usually
performance including the assessment of focused on the law of the place of execution
damages; when they enter into contracts (PE BENITO,
4. Various ways of extinguishing obligations, and Conflict, supra at 98).
prescription and limitation periods;
5. Validity and the consequences of invalidity of the The rule that lex loci contractus, the law of the
contract; place where the contract is made, governs in this
6. Burden of proof and legal presumption; and jurisdiction. Courts of the forum will not enforce
7. Pre-contractual obligations (The Hague any foreign claim obnoxious to the forum's public
Principles on Choice of Law in International policy. Here in the Philippines, employment
Commercial Contracts, Art. 9). agreements are more than contractual in nature.
The Constitution itself, in Article XIII, Section 3,
ELEMENTS TO CONSIDER: (ECI) guarantees the special protection of workers
(Princess Talent Center Production, Inc. v.
1. Formal or Extrinsic Validity;
Masagca, G.R. No. 191310, April 11, 2018).
2. Capacity to enter into contracts; and
3. Intrinsic validity (PARAS, Conflict, supra at 374).
2. Lex loci celebrationis
– Law of the place of performance or
EXTRINSIC VALIDITY celebration
– governed by lex loci celebrationis or lex loci
contractus (CIVIL CODE, Art. 17). REASON: Since a contract is to be performed in
a particular place or state, it is proper that the
Variations: law of that state govern the relationship of the
1. A contract entered into by the parties in two parties (PE BENITO, Conflict, supra at 102).
different countries by cablegram, telex or fax is
presumed to have been entered in the place
3. State of the Most Significant Debtor may agree to be subject to the
Relationship Rule or the Center of jurisdiction of a specific court(s) in case of
Gravity Doctrine or the Grouping-of- contractual breach (COQUIA, supra at 379).
Contacts Theory
– Law of the place with the most connection to 2. Arbitration Clause
the dispute (Id.). A multistate or multinational contract that
contains an arbitration clause gives rise to the
REASON: Convenience and practicality. issue of whether one of the parties can compel
the other to submit to arbitration.
Factual contacts to consider: (CNPSB)
a. Place of Contracting; In the Philippines, the Civil Code and the
b. Place of Negotiating; Arbitration Law (R.A. 876) embody a clear
c. Place of Performance; legislative policy in favor of settling
d. Situs of the subject matter of the contract; controversies by a method considered more
and expeditious, less expensive, and with greater
e. Parties’ Bomicile, residence, nationality, chance in some cases for substantial justice.
place of incorporation, place of business.
3. Adhesion Contracts
These contacts are evaluated depending on GENERAL RULE: Adhesion contracts are not
their relative importance to the issue at hand entirely prohibited. It is valid in the absence of
(Restatement (Second) of Conflict of Laws, proof of arbitrariness, abuse of power, or gross
Section 188). negligence and if it is fairly and freely agreed
upon, reasonable, and just under the
CAPACITY TO ENTER INTO circumstances. One who agrees to it is free to
reject it entirely; if he adheres, he gives his
CONTRACTS consent.
GENERAL RULE: Capacity to enter into contracts is
determined by the personal laws of the contracting EXCEPTION: When there is an oppressive use
parties, either nationality or domiciliary. of superior bargaining power, a Philippine court
may be justified in refusing to apply the contract
EXCEPTIONS: Contracts involving alienation or or a stipulation on the ground that there is no real
encumbrance of real or personal properties wherein arm’s-length transaction between the
lex situs governs the capacity of the contracting contracting parties.
parties.
4. Special Contracts
In the Philippines, capacity is governed by the
nationality theory pursuant to Art. 15 of the Civil
Code (SEMPIO-DIY, Conflict, supra at 124).
RULES ON SPECIFIC CONTRACTS
FACTUAL POINT OF CONTACT
CHOICE OF LAW ISSUES IN CONFLICTS SITUATIONS
CONTRACT CASES Sales and Barter, Lease of Property, and
Questions on the validity of choice of law regarding Commodatum
venue in litigation, arbitration and contracts with
adhesion clauses. 1. Extrinsic validity 1. Lex situs
2. Capacity of parties 2. Lex situs
1. Choice of Forum Clause 3. Intrinsic validity 3. Lex situs
GENERAL RULE: Stipulation on the venue of
suit for litigation concerning the contract will be Lease of Services and Simple Loan or
given effect. Litigation in forum stipulated takes Mutuum
place only if parties specified the choice of forum
as the only venue. 1. Extrinsic validity 1. Lex loci celebrationis
2. Capacity of parties 2. National law
EXCEPTION: Choice of Forum clause will not 3. Intrinsic validity 3. Lex loci voluntatis or
be given effect when there is fraud or the lex loci
overreaching, and said clause would be intentionis situs
unreasonable and unjust.
Contract of Agency
Cognovit Clause or Confession-of-Judgment 1. Extrinsic validity 1. Lex loci celebrationis
 3. Several laws may be selected, each of which will
FACTUAL POINT OF CONTACT
govern different elements of the transaction.
SITUATIONS
4. If under the selected law, the contract is legal,
2. Capacity of parties to 2. National law of the but in the place of performance, it is illegal, the
be a principal or an parties selected law should prevail and the contract
agent 3. Lex loci voluntatis or should be considered legal.
3. Intrinsic validity lex loci intentionis 5. If the law of the performance can be ascertained,
the substantial and essential validity should still
EXCEPTION TO 1-3: be governed by the proper law of the contract.
Lex situs if agency 6. Choice of law should not be interpreted to oust
deals with conveyance the jurisdiction, which the court has already
or encumbrance of acquired over the parties and the subject matter.
property and the 7. The parties cannot contract away provisions of
property applies law especially peremptory provisions heavily
impressed with public interest.
Pledge, Chattel Mortgage, Real Mortgage, and 8. Cognovit clause (confession of judgment) is
Antichresis valid only if the parties were of equal bargaining
power and the debtor agreed to it voluntarily
1. Extrinsic validity 1. Lex situs (SEMPIO-DIY, Conflict, supra at 126-127).
2. Capacity of parties 2. Lex situs
3. Intrinsic validity 3. Lex situs TRANSPORTATION BY SEA
1. Philippine ports to Foreign ports
NOTE: Invalidity of the
– law of the country of destination (CIVIL CODE,
principal contract
Art. 1753).
results in invalidity of
this accessory.
2. Foreign ports to Philippine ports
Guaranty and suretyship a. Civil Code (primary law);
b. Code of Commerce; and
1. Extrinsic validity 1. Lex loci celebrationis c. Carriage of Goods by Sea Act (AQUINO &
2. Capacity of parties 2. National law HERNANDO, Essentials of Transportation
3. Intrinsic validity 3. Lex loci voluntatis or and Public Utilities Law, (2016), p.39
the lex loci [hereinafter, AQUINO & HERNANDO,
intentionis Transportation Law]).

Same Note as above. INTERNATIONAL AIR

TRANSPORTATION
Contract of Common Carrier of Goods
Warsaw Convention applies to all international
1. Extrinsic validity 1. Fixed situs of the carriage of persons, baggage, or goods performed
2. Capacity of parties carrier (depot or by aircraft for hire on the liability of airline in case of
3. Intrinsic validity resting place) death, injury to passengers, or loss or damage to
4. Liability for loss, 2. Fixed situs of the cargo, but not to carriage of mail and postal
destruction, or carrier packages (WARSAW CONVENTION, Art. 1, 2, 17 &
deterioration of 3. Fixed situs of the 18).
goods in transitu carrier
4. Law of the Recognition of the application of the Warsaw
destination (Art. Convention does not preclude the operation of the
1753, Civil Code). Civil Code and other pertinent laws in the
determination of the extent of the liability of the
(PARAS, Conflict, supra at 370 – 371). common carrier (Philippine Airlines v. CA, G.R. No.
119706, March 14, 1996).
LIMITATION ON CHOICE OF LAW
1. Generally, the parties cannot select a law, which GENERAL RULE: The limit of liability for baggage
has no connection at all with the transaction or lost is $1,000 and for death of passenger is
the parties. $100,000. However, the parties may stipulate a
2. If the law selected should change, it is the new higher limit of liability (Alitalia v. IAC and Pablo, G.R.
law that should be applied except if the change No. 71929, December 4, 1990).
is so revolutionary that it could never have been
contemplated by the parties. EXCEPTION: The carrier is liable for damages
beyond those limited by the Warsaw convention if
there is malice, gross negligence, bad faith, or the form of a single contract or of a series of
improper discrimination by carrier or its agents contracts, and it does not lose its international
(Lopez v. Pan Am, G.R. No. L-22415, March 30, character merely because one contract or a series
1966, KLM Royal Dutch Airlines v. CA, G.R. L- of contracts is to be performed entirely within a
31150, July 22, 1975). territory subject to the sovereignty of the same High
Contracting Party (WARSAW CONVENTION, Art.
Limits of liability shall not apply if it is proved that 1).
damage resulted from an act or omission of the
carrier or its servants/agents, with intent to cause Each of the carrier who accepts the passengers or
damage or done recklessly, with knowledge that baggage shall be subject to the rules set out in the
damage would probably result, provided it is proved convention and shall be deemed as one of the
that the servant/ agent was acting within the scope contracting parties insofar as the contract deals with
of the employment (WARSAW CONVENTION, Art. that part of the transportation which is performed
25). under his supervision (WARSAW CONVENTION,
Art. 30).
It does not operate as an exclusive enumeration of
instances when a carrier shall be liable for breach of The passenger or representative can take action
contract or as an absolute limit of the extent of only against the carrier who performed the
liability nor does it regulate or exclude liability for transportation during which the accident or delay
other breaches of contract by the carrier, misconduct occurred, unless by express agreement the first
of its employees, or for some particular or carrier has assumed the responsibility for the entire
exceptional type of damage (Lufthansa German journey (WARSAW CONVENTION, Art. 30).
Airlines v. Intermediate Appellate Court, G.R. No.
71238, March 19, 1992). With regard to baggage or goods, the passenger or
consignor shall have a right of action against the first
carrier, and the passenger or consignee shall have
PERIOD OF RESPONSIBILITY the right of action against the last carrier. Each may
Includes the time the baggage or goods are in the take an action against the carrier who performed the
charge of the carrier, wherever it may be (WARSAW transportation during which the loss, damage or
CONVENTION, Art. 18). delay took place. These carriers shall be jointly and
severally liable to the passenger, or to the consignor
or consignee (WARSAW CONVENTION, Art. 30).
VENUE OF SUITS AT OPTION OF
PLAINTIFF-PASSENGER In cases where the convention does not apply, the
1. Domicile of the carrier; Second Restatement holds that the validity of the
2. Principal place of business of the carrier; contract of carriage as well as the rights created
3. Where the carrier has a place of business thereby are determined, in the absence of an
through which the contract was made; or effective choice of law by the parties, by the local law
4. Place of destination (WARSAW CONVENTION, of the state from which the passenger departs or the
Art. 28). goods are dispatched, unless with respect to the
particular issue, some other State has a more
ACTION WILL PRESCRIBE IF NOT significant relationship to the contract and to the
BROUGHT WITHIN TWO (2) YEARS parties.
FROM THE:
ENFORCEMENT OF A FOREIGN
1. Date of arrival at the destination;
2. Date on which the aircraft ought to have arrived; CONTRACT CLAIM
or Philippine courts may assume jurisdiction as long as
3. Date on which the transportation stopped there is jurisdiction over the person of the defendant
(WARSAW CONVENTION, Art. 29). as a personal action is involved (SALONGA,
Conflict, supra at 385).
NOTE: Method of counting the period of limitation is
determined by the law of the forum or lex fori.

TRANSPORTATION BY SUCCESSIVE
CARRIERS
– a carriage to be performed by several successive
carriers is deemed to be one undivided carriage, if it
has been regarded by the parties as a single
operation, whether it had been agreed upon under
 FACTUAL POINT OF CONTACT
WILLS AND SITUATIONS
ADMINISTRATION OF or lex loci celebrationis
ESTATE (CIVIL CODE, Art. 819)

Made by a Filipino Void because of lex

abroad nationalii (CIVIL CODE,
TWO THEORIES IN DETERMINING THE Art. 819)
PROPER LAW FOR THE Made by an alien in the Lex loci celebrationis,
TRANSMISSION OF SUCCESSIONAL Philippines therefore void even if
RIGHTS: apparently allowed by
1. Unitary or Single System Art. 817 because the
Only one law determines transmission of real prohibition on joint wills
and personal properties, e.g., in countries is a clear expression of
following lex nationalii like the Philippines, our public policy
deceased’s national law governs (CIVIL CODE,
Made by an alien and a Valid as to the alien if
Art. 16); in common law countries or those that
Filipino abroad his national law or law of
follow lex domicilii, the law of deceased’s
his domicile, or the lex
domicile governs.
loci celebrationis allows
it, but void as to the
2. Split or Scission System Filipino, the same being
a. Succession to real property – lex situs against our public policy
b. Succession to personal property – law of the on joint wills (SEMPIO-
domicile of deceased at the time of death DIY, Conflict, supra at
(Adopted by Great Britain and United 143)
States).
Intrinsic Validity of Wills
RULES ON WILLS, SUCCESSION,
AND ADMINISTRATION Including order of Lex nationalii of the
succession, amount of deceased for countries
FACTUAL POINT OF CONTACT successional rights, and that follow the
SITUATIONS intrinsic validity of the nationality theory
provisions of the will regardless of the
Extrinsic Validity of Wills location and nature of
the property (CIVIL
Made by an alien Lex nationalii or lex
CODE, Art. 16 par. 2)
abroad domicilii or Philippine
law (CIVIL CODE, Art.
Lex domicilii at the time
816), or lex loci
of death, in countries
celebrationis (CIVIL
that follow the
CODE, Art. 17, par. 1)
domiciliary theory
Made by a Filipino Lex nationalii or lex loci Note: In case of
abroad celebrationis (CIVIL Conflict between lex
CODE, Art. 815) nationalii and lex
domicilii, case can be
Made by an alien in the Lex nationalii or lex loci treated as renvoi to
Philippines celebrationis (CIVIL apply Philippine law
CODE, Art. 817) even if deceased was
citizen of another
Note: Extrinsic validity is dependent on the country (SEMPIO-DIY,
observance of law in force at the time it is made. Conflict, supra at 107)

Extrinsic Validity of Joint Wills (made in the Capacity to Succeed

same instrument)
Capacity to Succeed Lex nationalii of the
Made by an alien Valid in the Philippines deceased – not that of
abroad if valid according to lex the heir (CIVIL CODE,
nationalii, lex domicilii Art. 1039)
 FACTUAL POINT OF CONTACT FACTUAL POINT OF CONTACT
SITUATIONS SITUATIONS

Probate of wills made abroad Philippines or in some

General Rule: lex fori because other country.
allowance/disallowance of a will is essentially
procedural If revocation takes Philippine laws.
place outside the
If not yet probated Lex fori of the Philippines, by a
abroad Philippines applies as to testator domiciled in the
procedural aspects – Philippines.
that is – the will must be
fully probated here and Revocation done 1. Law of the place
due execution must be outside the Philippines, where the will was
shown by a testator who does made; or
not have his domicile in 2. Law of the place in
If already probated Lex fori of the this country. which the testator
abroad Philippines again had his domicile at
applies as to the the time of
procedural aspects – revocation.
the will must also be
probated here because, Executors and Administrators
as a general rule, a
foreign judgment Where appointed Place of domicile of the
cannot have deceased at time of
extraterritorial effect. death or in case of non-
But instead of proving domiciliary, where
due execution, assets are found.
generally it is enough to
Powers Co-extensive with the
ask for the enforcement
qualifying or the
here of the foreign
appointing court – that
judgment of the probate
is – powers may be
abroad
exercised only within
Note: Wills proved and allowed in a foreign the territorial jurisdiction
country, according to the laws of each country, of the court concerned.
may be allowed, filed, and recorded by the proper
court in the Philippines (RULES OF COURT, Note: These rules also
RULE 77, Sec. 1). apply to principal
domiciliary, or ancillary
The foreigner may dispose after his death of his administrators and
property in the Philippines by testament and is not receivers even in non-
obliged to grant it in the Philippines; You can do it succession cases.
in your own country or in another, but in (PARAS, Conflict, supra at 344 - 345).
accordance with the laws of the country in which it
is granted. Article 635 of the Code of Civil OTHER RULES IN PHILIPPINE
Procedure, respecting the freedom of the testator
to grant his will in any place, provides that the
CONFLICTS LAW
testament that can be legalized in a foreign
country in accordance with the laws of that country INTERPRETATION OF WILLS
can also be legalized in the Philippines (Dalton v. 1. In accordance with the testator's intention;
Giberson, G.R. No. L-4113, June 30, 1952). 2. Verba legis if terms are clear and unambiguous;
3. Interpretation of ambiguous words made in
Revocation of wills accordance with the law which was most
probably in the mind of testator when he used
If revocation takes Philippine laws. those words and with which he is presumed to
place in the Philippines, be most familiar (SEMPIO-DIY, Conflict, supra
whether the testator is at 109);
domiciled in the 4. If the will admits of different interpretations, that
which will make the dispositions operative shall
 be preferred;
5. The interpretation that will give the will the most Ancillary administration is proper, whenever a
favorable construction to accomplish its purpose person dies, leaving in a country other than that of
shall be made; his last domicile, property to be administered in the
6. Every effort should be made to prevent intestacy nature of assets of the deceased liable for his
in keeping with the policy of respecting the will individual debts or to be distributed among his
of the testator, provided that this can be heirs (Tayag v. Benguet Consolidated, Inc., G.R.
ascertained; or No. L-23145, November 29, 1968).
7. The national law of the deceased should apply
since we may reasonably presume that this was REASON: Grant of administration does not ex
the testator's intent (PARAS, Conflict, supra at proprio vigore have any effect beyond the limits of
356). the country in which it is granted. Hence, an
administrator appointed in a foreign state has no
REVOCATION OF WILLS authority in the Philippines (Tayag v. Benguet
1. If revocation takes place in the Philippines, Consolidated, Inc., G.R. No. L-23145, November
whether the testator is domiciled in the 29, 1968).
Philippines or in some other country, it is valid if
in accordance with Philippine laws (PARAS, NOTE: It is a general rule universally recognized
Conflict, supra at 356). that administration, whether principal or ancillary,
2. If revocation takes place outside the Philippines, certainly extends to the assets of a decedent found
by a testator domiciled in the Philippines, it is within the state or country where it was granted,
valid when it is in accordance with the laws of the corollary being "that an administrator
the Philippines (Id.). appointed in one state or country has no power
3. Revocation done outside the Philippines, by a over property in another state or country" (Tayag
testator who does not have his domicile in this v. Benguet Consolidated, Inc., G.R. No. L-23145,
country, is valid when it is done according to the: November 29, 1968).
a. Law of the place where the will was made;
or DISTRIBUTION OF ESTATES
b. Law of the place in which the testator had – regulated according to the national law of the
his domicile at the time of revocation (Id. at person whose succession is under consideration
357). (CIVIL CODE, Art. 16 par. 2).

ADMINISTRATION OF ESTATES Domiciliary administration of the estate of a

Like probate, administration is procedural in nature. deceased American citizen in the U.S. has no power
Philippine law and procedure follow the main over and is not entitled to the possession of the stock
principle of territorialism. The law of the domicile certificates of shares of stock owned by the
governs distribution but the law of the State deceased in a Philippine corporation, which
appointing the administrator or executor governs certificates must be delivered to the ancillary
administration. Administration is governed by the administration of the deceased's estate in the
law where administration takes place, and that is the Philippines, to be administered by the latter in the
law of the country from which the administrator nature of assets of the deceased liable for his debt
derives his authority (SEMPIO-DIY, Conflict, supra or to be distributed among his heirs (SEMPIO-DIY,
at 110). Conflict, supra at 111, Tayag v. Benguet
Consolidated, Inc., G.R. No. L-23145, November 29,
NOTE: The Administration extends only to the 1968).
assets of the decedent found within the state or
country where it was granted. To administer the HOLOGRAPHIC WILLS
property situated in a foreign state, the administrator Must be entirely written, dated, and signed by the
must be re-appointed, or a new one named in that hand of the testator himself. It is subject to no other
state (Id. at 110). form, and may be made in/out of the Philippines, and
need not be witnessed (CIVIL CODE, Art 810,
PRINCIPAL DOMICILIARY SEMPIO-DIY, Conflict, supra at 106).
ADMINISTRATION
Administration granted in the country of the CONFLICT RULES IF A PERSON DIES
deceased's last domicile. INTESTATE
Civil Law Countries (Philippines)
ANCILLARY ADMINISTRATION – lex nationalii
Administration in other countries where the
deceased also left properties.
Common Law Countries 2. To compensate the victim for the damage or
– split or scission system, i.e., lex domicilii of the injury suffered (SEMPIO-DIY, Conflict, supra at
deceased at the time of death as to personality, and 131).
lex situs as to real property (SEMPIO-DIY, Conflict,
p. 105). EXCEPTION:
When the place of the tort is an insignificant contact,
CADUCIARY RIGHTS the factors that must be evaluated are:
1. The place where the conduct causing the injury
Two Theories Adopted by States to Claim
occurred;
Properties Left by Deceased with No Heirs and
2. The residence or place of business of the
No Will
parties; and
1. England and Most American States 3. The place where the relationship is centered
Said properties become bona vacantia or (Melton v. Stephens, 13 N.E. 3d 533, July 22,
ownerless and should revert to the state where 2014).
they are situated by escheat (Id. at 111).

2. Some Civil Law Countries (Philippines)

CONCEPTS OF PLACE OF
The State is the last heir of a deceased person. WRONG/LOCUS DELICTIS
Hence, the State succeeds to the properties left Illustration: A was hunting in State X, near the
by the said deceased as an heir (Id. at 111). boundary of State Y. A accidentally shot B, who was
standing in State Y.

1. Common Law Concept

TORTS – place where the wrongful act became
effective, e.g., last event necessary to make an
actor liable for an alleged tort occurs. Locus
Delicti is State Y.
GENERAL RULE:
Lex loci delicti comissi or law of the place where the REASONS:
tort was committed will govern (WEBSTER’S NEW a. Without an injury, there is nothing to protect
WORLD LAW DICTIONARY, 1st ed., 2006). and there is no necessity for judicial relief
(SEMPIO-DIY, Conflict, supra at 132);
Under this presumption, the court applies the b. Vested rights theory, i.e., if the harm does
substantive laws of the state where the last event not take place then the tort is not completed
necessary to make an actor liable for the alleged (COQUIA, Conflict, supra at 409).
wrong takes place (Shaw v. LDC Enterprises, 863
N.E. 2d 424, March 30, 2007). 2. Civil Law Rule
– place where the tortuous act began. Locus
In one case involving torts, the "connecting factor" or Delicti is State X.
"point of contact" could be the place or places where
the tortious conduct or lex loci actus occurred. Reason: The legality or illegality of one’s act
Philippines could be said as a situs of the tort, the should be determined by the law of the state
places where the alleged tortious conduct took where he is at the time he does the act (Id.).
place. That certain acts or parts of the injury
allegedly occurred in another country is of no 3. Theory of Dr. Rabel (jurist recognized in
moment. For, what is important here is the place comparative law)
where the over-all harm or the totality of the alleged – place where the important and substantial acts
injury to the person, reputation, social standing and leading to the tortuous act were committed/
human rights of complainant, had lodged (Saudi place having the most substantial connection
Arabian Airlines v. Court of Appeals, G.R. No. with the wrongful act, e.g., situs of radio station
122191, October 8, 1998). where libelous broadcast was made is the locus
delicti, even if broadcast is heard in many
BASIS: Vested rights theory, since the rights of the places (Id.).
parties vested are in the place of injury and nowhere
else (PE BENITO, Conflict, supra at 116). OBLIGATION THEORY
The tortuous act gives rise to an obligation, which is
REASONS: transitory and follows the person committing the
1. The state where the social disturbance occurred tortuous act and may be enforced wherever he may
has the primary duty to redress the wrong and be found (Id.).
determine the effects of the injury; and
MODERN THEORIES IN DETERMINING law of the jurisdictions involved, whether there is a
LIABILITY FOR TORTS true Conflict of Law, and if a true Conflict exists, the
court will apply the law of the state whose interests
1. Theory of Most Significant Relationship is more impaired (PE BENITO, Conflict, supra at
(MSR) 119).
An action for tort may be filed in the country that
has the most significant relationship to the STEPS IN COMPARATIVE IMPAIRMENT
occurrence and the parties and thus, has the
greatest concern with the specific issue of the TEST:
case. 1. The court determines whether the relevant law
of the affected jurisdictions with regard to the
Two-step analysis for the significant issue in question is the same or different.
relationship inquiry: 2. If there is a difference, the court examines each
a. Courts will continue to evaluate the contacts jurisdiction’s interest in the application of its own
with each interested jurisdiction; and law to determine whether a true Conflict exists.
b. Courts will continue to evaluate the interests 3. If the court finds that there is a true Conflict, it
and public policies of potentially concerned carefully evaluates and compares the nature
jurisdictions (Restatement (Second) of and strength of the interest of each jurisdiction
Conflict of Laws, Section 145). to determine which state’s interest would be
more impaired if its policy were subordinated to
2. The Interest-Analysis Approach the policy of the other state (Id. at 68).
Considers the relevant concerns that two or
more states may have in the case and their CHOICE-INFLUENCING
respective interests in applying their laws to it. CONSIDERATIONS APPROACH
The State which has the more relevant and To determine the applicable law, the following
weighty interests in the case should be factors are considered:
considered the locus delicti. 1. Predictability of result;
2. Maintenance of the interstate and international
3. Caver’s Principle of Preference order;
A higher standard of conduct and financial 3. Simplification of the judicial task;
protection given to the injured party by one State 4. Advancement of the forum’s governmental
is applied by the State where the injury interest; and
happened, if the latter State adopts a lower 5. Application of the better rule of law (Dowis et al.
standard of conduct and financial protection to v. Mud Slingers, 279 Ga. 808, October 24, 2005)
the injured (SEMPIO-DIY, Conflict, supra at 132-
134). KILBERG DOCTRINE
Where a wrongful death occurred in A state and the
4. German Rule or Elective Concurrence action for damages is brought in B state, B is not
The injured person may choose to sue either
bound by A’s laws on any limitation of liability arising
under the law of:
from the death where the set limitations on damages
a. The place where the actor engages in his
are procedural. The law of the forum (B) should be
tortuous conducts; or
applied (Kilberg v. Northeast Airlines, Inc., 9 N.Y.2d
b. The place where the effects of his conduct
34, 211 N.Y.S.2d, 133, 172 N.E.2d 526).
occur.

NOTE: He cannot cumulate the benefits flowing LEX LOCI DELICTI COMMISSII ON
from more than one law. MARITIME TORTS
1. Law of the flag
COMPARATIVE IMPAIRMENT TEST – torts committed aboard a public vessel,
Also known as the governmental interest test, it whether on the high seas or in foreign territorial
determines the impairment of policy resulting from waters;
the non-application of the laws of a State and then
compares the impairment to determine who stands 2. Law of the registry
to lose more. The jurisdiction that loses more is the – torts committed aboard a private or merchant
jurisdiction that can be said to have the greatest vessel on the high seas; and when two vessels
interest (AQUINO, Elements of Conflict, supra at from the same state collide;
295).
3. Identical Law
It is a three-tiered approach that involves an – applied if the vessels come from different
examination of whether there is a difference in the states with identical laws; and
4. General maritime law as understood and CRIMES
applied by the forum where the case is
filed
– vessels come from different states with
different laws (SEMPIO-DIY, Conflict, supra at RULE OF GENERALITY IN CRIMINAL
134-135). LAW
Penal laws and those of public security shall be
ENFORCEMENT OF CLAIM FOR obligatory upon all who live or sojourn in the
FOREIGN TORT Philippine territory subject to the principles of Public
International Law and to treaty stipulations (CIVIL
An action for a foreign tort may be brought in any
CODE, Art. 14).
place where the tortfeasor may be found so that he
can be subjected to the jurisdiction of the Court
GENERAL RULE: Lex loci delicti or the law of the
(SALONGA, Conflict, supra at 424).
place where the crime was committed will govern.
The officials may be held liable for damages in a tort
EXCEPTIONS:
suit filed against them in the United States for acts
of torture committed against political detainees or 1. Theory of State Immunity
prisoners in the Philippines in violation of – Crimes committed by heads of state/ state
international and municipal law (In re Estate of officials, diplomatic representatives, and
Ferdinand Marcos, Human Rights Litigation, administrative officers attached to the diplomat
Maximo Hilao, et.al., Class Plaintiff No. 92-15526, or attaché and officials of recognized
U.S. Court of Appeals for the 9th Circuit; June 16, international organizations (CONST. Art. XVI,
1994). Sec. 3).

CONDITIONS FOR THE ENFORCEMENT 2. French Rule

– Crimes committed on board a foreign vessel
OF TORT CLAIMS even if within the territorial waters of the coastal
1. The foreign tort is based on a civil action and not state, as long as the effect of such crime does
on a crime; not affect the peace and order of the coastal
2. The enforcement of the tort would not infringe state. This is based on the Nationality Theory
the public policy of the forum; and (SEMPIO-DIY, Conflict, supra at 141).
3. The judicial machinery of the forum is adequate
for its proper enforcement (SEMPIO-DIY, NOTE: The Philippines adopts the English Rule,
Conflict, supra at 135). pursuant to the Territorial Theory. The territory
where the crime was committed will have
NOTE: While all procedural matters are governed by jurisdiction except on matters: (1) in relation to
the lex fori, all substantive matters are governed by the internal order and discipline of the vessel;
lex loci delicti commissii (Id. at 135). and (2) solely affecting the ship and its
occupants such as minor or petty criminal
ALIEN TORT CLAIMS ACT OF THE offenses committed by members of the crew (Id.
UNITED STATES at 141).
Grants US district courts original jurisdiction over
any civil action filed by an alien for a tort committed 3. Extraterritoriality
in violation of law of nations/treaty of the United – Crimes punishable under the local law,
States. Applying said act, the US Court of Appeals although committed by Philippine nationals
upheld a Hawaiian district court’s jurisdiction over a abroad, pursuant to the protective principle of
class action for damages brought by thousands of criminal jurisdiction (REVISED PENAL CODE,
Filipino victims of human rights and torture allegedly Art. 2).
committed by the late President Marcos and his
officials (Trajano v. Marcos-Manotoc, 125 L. Ed. 2d THEORIES ON JURISDICTION TO TRY
661, 113 S. Ct. 2959). CRIMINAL CASES/THEORIES ON
EXTRATERRITORIAL COMPETENCE
1. Territorial theory
– The State where the crime was committed has
jurisdiction to try the case (PARAS, Conflict,
supra at 403).
 Two kinds:
FACTUAL POINT OF CONTACT
a. Subjective Territorial Principle – the state
SITUATIONS
where the crime began may prosecute the
same even though the crime was completed pursuant to the
in another state (Id. at 404). Protective Theory.
b. Objective Territorial Principle – The state
can prosecute crimes that began abroad but The Locus Delicti of Certain Crimes
were completed within its territory (Id.).
Offense Committed Locus Delicti
2. Nationality or Personal Theory/Active
Nationality Theory Frustrated and Where the victim was
– The country of which the criminal is a citizen consummated homicide, injured (not where the
or a subject has jurisdiction to try him for the murder, infanticide, and aggressor wielded the
offense he is supposed to have committed, parricide weapon)
whether the effectuation of the act be inside or Attempted homicide, Where the intended
outside its territory, provided that the act is a
murder, infanticide, and victim was (not where
crime under his country’s penal law (Id.).
parricide the aggressor was
situated) – so long as
3. Protective Theory the weapon or the
– Any State whose national interests may be bullet either touched
jeopardized has jurisdiction over criminal him or fell inside the
offenses, even if committed outside its territory, territory where he was
and even if committed by an alien in order that it
may protect itself (Id. at 405). Bigamy Where the illegal
marriage was
4. Real Theory/Eclectic Theory performed
– Any State whose penal code has been
transgressed upon has jurisdiction to bring Theft and robbery Where the property
justice to the perpetrators of the offense, was unlawfully taken
whether the crime was committed inside or from the victim (not the
outside its own territory (Id.). place to which the
criminal went after the
5. Cosmopolitan or University Theory commission of the
– Any State where the criminal is found or which crime)
has custody over him is vested with jurisdiction
to try him for the crime he is alleged to have Estafa or swindling Where the object of the
committed – unless extradition is possible (Id.). through false crime was received
representations (not where the false
representations were
6. Passive Personality Theory/Passive
made)
Nationality Theory
– The state of which the victim is a citizen or Conspiracy to commit Where the conspiracy
subject has jurisdiction (PARAS, Conflict, supra treason, rebellion, or was formed (not where
at 403-406). sedition (Note: other the overt act of treason,
conspiracies are not rebellion, or sedition
RULES ON CRIMES penalized by our laws) was committed
FACTUAL POINT OF CONTACT
Libel Where published or
SITUATIONS
circulated
Essential elements of a Generally, where
Continuing crimes Any place where the
crime and its penalties committed
offense begins, exists,
or continues
NOTE: In the
Philippines, we follow Complex crimes Any place where any of
the Territorial Theory the essential elements
in general; by way of of the crime took place
exception, Art. 2 of the
Revised Penal Code (PARAS, Conflict, supra at 399 – 401).
on Extraterritoriality
 FACTUAL SITUATIONS POINT OF CONTACT
BUSINESS Kind of stocks; transfer of
ASSOCIATIONS stocks to bind the
corporation; issuance,
amount, and legality of
dividends; powers and
RULES ON JURIDICAL PERSONS duties of members,
FACTUAL SITUATIONS POINT OF CONTACT stockholders, and officers

Corporations Validity of corporate acts Law of the place of

and contracts (including incorporation and law of
Existence, legal General Rule: the law ultra-vires acts) the place of performance
character, capacity, of the place of (the act or contract must
powers and liabilities incorporation. be authorized by BOTH
LAWS).
Exceptions:
1. Constitutional and Right to sue and
Statutory amenability to court
Lex fori
Restrictions processes and suits
(CONST. Art. XI). against it
Manner and effect of Law of the place of
For constitutional dissolution incorporation provided
purposes – even if it that the public policy of
is incorporated in the the forum is not
Philippines, it is not mitigated against
deemed a Filipino
corporation and Domicile If not fixed by the law
cannot acquire land, creating or recognizing
exploit our natural the corporation or by any
resources, and other provision – the
operate public domicile is where its
utilities unless 60% legal representation is
of the capital is established or where it
Filipino owned exercises its principal
(CONST. Art. XII, functions (CIVIL CODE,
Sec. 2, 10, and 11). Art. 51).
Receivers (appointment Principal receiver is
2. Control Test During and powers) appointed by the courts
Wartime – the veil of of the state of
corporate identity is incorporation; ancillary
pierced and the receivers, by the courts
nationality of the of any state where the
controlling corporation has assets
stockholders is used (authority of receivers is
to determine if a CO-EXTENSIVE with
corporation is an the authority if the
enemy corporation or appointing court).
not (the Control
Test) (Davis Winship Partnership
v. Phil. Trust Co., L-
The existence or non- The personal law of the
3869, January 31,
existence of legal partnership – that is –
1952).
personality of the firm; the law of the place
Alteration of Charter Law of the place of capacity to contract; where it was created.
incorporation. liability of the firm and the (CODE OF
Internal Organization partners to third persons COMMERCE, Art. 15).
Merger and Consolidation Subject, however, to the
exceptions given above
Formation of the as in the case of
corporation (requisites); corporations.
 FACTUAL SITUATIONS POINT OF CONTACT power of restriction and supervision is the fact of
transacting or doing business in the Philippines (Id.).
Creation of branches in Philippine Law (law of
the Philippines; validity the place where the CORPORATION/PARTNERSHIP
and effect of branches' branches were created)
THEORIES ON THE PERSONAL OR
commercial transaction; (CODE OF
and the jurisdiction of COMMERCE, Art. 15). GOVERNING LAW OF A CORPORATION
courts 1. Law of the place of incorporation
– Law adopted by the Philippines;
Dissolution, winding up, Philippine law (CODE
and termination of OF COMMERCE, Art. 2. Law of the place or center of management or
branches in the 15). Central Office Principle/Centre of administration
Philippines or siège social; and
Domicile The place where their
legal representation is 3. Place of Exploitation/exploitation centre or siège
established or where d'exploitation (PARAS, Conflict, supra at 420
they exercise their and 421).
principal functions.
DOMICILE OR RESIDENCE OF FOREIGN
Receivers Philippine law insofar as
the assets in the
CORPORATIONS
Philippines are When not fixed by the law creating them, it shall be
concerned (authority of understood to be the place where their legal
such receivers can be representation is or where they exercise their
exercised as such only principal functions (SEMPIO-DIY, Conflict, supra at
in the Philippines. 143).

Foundations The same principle is recognized in American law:

Foundations (combination Personal law of the that the residence of a corporation, if it can be said
of capital independent of foundation (place of the to have a residence, is necessarily where it
individuals, usually not for principal center of exercises corporate functions; that it is considered
profit) administration). as dwelling in the place where its business is done;
as being located where its franchises are exercised;
(PARAS, Conflict, supra at 416 – 419). and as being present where it is engaged in the
prosecution of the corporate enterprises; that a
EFFECT OF RECOGNITION OF foreign corporation licensed to do business in
FOREIGN BUSINESS ASSOCIATION a state is a resident of any country where it
Merely admits or affirms its legal existence created maintains an office or agent for transaction of its
under the law of one State but does not involve the usual and customary business for venue purposes
rights of the corporation “to do” or “transact (State Investment House, Inc. v. Citibank, N.A., G.R.
business”. Nos. 79926-27, October 17, 1991).

NOTE: A foreign corporation granted license to

THEORIES OF RECOGNITION
operate in the Philippines acquires domicile therein
1. Territorial Theory (COQUIA, Conflict, supra at 456).
– a company has no legal existence beyond its
sovereignty by which it was created; VALIDITY OF CORPORATE ACTS AND
2. International Theory CONTRACTS
– a foreign corporation is immediately To be valid and binding, corporate acts or contracts
recognized without further formality; and must be authorized both by:
1. The law of the place of incorporation; and
3. Restricted Admission Theory 2. The law of the place of performance.
– a State imposes comprehensive examination,
supervision, and control of foreign corporations Otherwise, their validity is doubtful and they may not
(SALONGA, Conflict, supra at 458). be given effect, without prejudice to the principle of
estoppel (SEMPIO-DIY, Conflict, supra at 146).
The principle recognized in the Philippines is that
every State may impose conditions on the exercise
by foreign corporations of activities within its
territory. The minimum contract required for the
MULTINATIONAL OR TRANSNATIONAL before Philippine courts or administrative tribunals
CORPORATIONS on any valid cause of action recognized under
Philippine laws (REVISED CORPORATION CODE
Branches of a big mother corporation that have been OF THE PHILIPPINES, Sec. 150).
incorporated under the local law of each country or
state where it has extended its business are EXCEPTIONS:
separate entities governed by the said local laws (Id. 1. Isolated transactions (Lorenzo Shipping Corp. v.
at 148). Chubb and Sons, Inc., G.R. No. 147724, June 8,
2004);
JURISDICTION OVER FOREIGN 2. Action to protect trademark, trade name,
CORPORATIONS goodwill, patent or for unfair competition;
3. To enforce a right not arising out of a business
CONSENT DOCTRINE transaction, e.g., tort that occurred in the
Philippines;
A foreign corporation will be recognized and will be
4. When the parties have contractually stipulated
allowed to transact business in any state which gives
that the Philippines is the venue of actions;
its consent. This doctrine is established in Secs.
5. When the party sued is barred by the principle of
140-153, Title XV of the Revised Corporation Code
estoppel and/or principle of unjust enrichment
of the Philippines.
from questioning the capacity of the foreign
corporation;
NOTE: A foreign corporation lawfully doing business
6. Recovery of misdelivered property (DE LEON &
in the Philippines shall be bound by all laws, rules
DE LEON Jr., CORPORATION CODE (2013)
and regulations applicable to domestic corporations
supra at 798-801);
of the same class, except those which provide for the
7. Agreements or transactions fully transacted
creation, formation, organization or dissolution of
outside the Philippines (B. Van Zuiden v. GTVL
corporations or those which fix the relations,
Manufacturing Industries Inc., G.R. No. 147905,
liabilities, responsibilities, or duties of stockholders,
May 28, 2007); and
members, or officers of corporations to each other or
8. Petition filed is merely a corollary defense in a
to the corporation (CORPORATION CODE OF THE
suit against it.
PHILIPPINES, Sec. 146).

A foreign corporation may be sued after it withdrew EFFECT OF FAILURE TO SECURE A

from business in the Philippines on contracts LICENSE TO TRANSACT BUSINESS
previously entered into by it. The same rule applies 1. The foreign corporation which does business in
to contracts entered into prior to the revocation of a the Philippines without a license has no right to
foreign corporation’s license (SEMPIO-DIY, Conflict, sue in the Philippines, but it can still be sued
supra at 148). (CORPORATION CODE, Sec. 150); and
2. The contracts entered into are valid as between
PARENT AND SUBSIDIARY the parties, but they may not be enforced in the
CORPORATIONS Philippine courts (COQUIA, Conflict, supra at
517).
Jurisdiction over the parent corporation can be
acquired when the separate existence of the
subsidiary has not been fully maintained or if the FOREIGN CORPORATIONS AND
parent has acted within the state as the subsidiary’s COMPULSORY COUNTERCLAIMS
agent (COQUIA, Conflict, supra at 524). 1. When a foreign corporation is sued, it may
interpose a counterclaim which would defeat the
However, if the local counterpart is a subsidiary with complaint.
an entirely distinct personality, jurisdiction over the 2. If the foreign corporation is suing on an isolated
local counterpart is not jurisdiction over the parent contract or is exempt from the license
company (Id.). requirement, a local defendant can file a
counterclaim.
RIGHT OF A FOREIGN CORPORATION
TO BRING SUIT NOTE: In either case, the foreign corporation is not
maintaining a suit. Further, such counterclaim may
GENERAL RULE:
embrace only compulsory counterclaim, not a
No foreign corporation transacting business in the
permissive one, for the former is deemed waived if
Philippines without a license, or its successors or
not raised (AGPALO, Conflict, supra at 475).
assigns, shall be permitted to maintain or intervene
in any action, suit or proceeding in any court or
administrative agency of the Philippines; but such
corporation may be sued or proceeded against
TRUSTS REQUISITES FOR RECOGNITION OR
When the trust contains an express choice-of-law ENFORCEMENT: (NOPD-BAFC-FCM-C)
provision, that law shall apply. In the absence of an 1. The defendant has been given reasonable
express provision, the courts will deem as controlling Notice and Opportunity to be heard;
the law that will sustain the validity of the trust. 2. There is adequate Proof of foreign judgment;
3. The foreign judgment must have Disposed of the
RECOGNITION AND ENFORCEMENT controversy on the merits and must be res
OF FOREIGN JUDGMENTS, judicata, i.e., judgment on the merits is final,
DISTINGUISHED issued by a foreign court having jurisdiction over
the subject matter and parties, and there was
RECOGNITION OF ENFORCEMENT OF identity of parties, subject matter, and cause of
FOREIGN JUDGMENT FOREIGN JUDGMENT action
4. It must not be Barred by prescription both in the
The defendant or The plaintiff or petitioner State where it was promulgated and where it is
respondent is wants the court to sought to be enforced;
presenting the foreign positively carry out and 5. State where the foreign judgment was obtained
judgment merely as a make effective the Allows recognition or enforcement of Philippine
defense, on the basis of foreign judgment. judgments;
res judicata. 6. If judgment is for a sum of money, it must be
Fixed;
Invokes merely a sense Implies an act of
7. Foreign judgment must not be Contrary to the
of justice (Perkins v. sovereignty.
public policy or good morals of the country
Benguet Consolidated
where it is to be enforced;
Mining, G.R. No. L-
8. Judgment must not have been obtained by
1981, May 28, 1954).
Fraud, Collusion, Mistake of fact or law; and
Needs no proceeding or Requires a separate 9. It must be a judgment on Civil or commercial
action but implies that action brought precisely matters, including questions of status, not on a
the same has already to make the foreign criminal, revenue, or administrative matter.
been filed against the judgment effective.
defendant who is PHILIPPINE RULE ON THE EFFECT OF
invoking the foreign FOREIGN JUDGMENT
judgment. The effect of a judgment or final order of a tribunal of
a foreign country, having jurisdiction to render the
Recognition is a Enforcement is an judgment or final order, is as follows:
passive effect of foreign active recognition and 1. In a judgment or final order upon a specific
judgment. implementation of the thing, the judgment or final order is conclusive
foreign judgment from upon the title to the thing; and
the local court, 2. In a judgment or final order against a person,
rendering the foreign the judgment or final order is presumptive
judgment as a domestic evidence of a right as between the parties and
judgment and seeking their successors in interest by a subsequent title.
its enforcement by the
sheriff in accordance In either case, the judgment or final order may be
with the Rules of Court. repelled by evidence of a want of jurisdiction, want
(SEMPIO-DIY, Conflict, supra at 151-152). of notice to the party, collusion, fraud, or clear
mistake of law or fact (RULES OF COURT, Rule 39,
NOTE: Enforcement necessarily implies recognition; Sec. 48).
recognition does not necessarily imply enforcement.
NOTE: The judgment in the foreign court does not
constitute res judicata as basis for its enforcement
EXAMPLES OF FOREIGN JUDGMENTS
without giving the losing party the opportunity to
WHICH CAN ONLY BE RECOGNIZED: dispute it (AGPALO, Conflict, supra at 586).
1. Declaratory judgments;
2. Judgments which give no affirmative relief; and THREE MODES OF ENFORCEMENT OF
3. Judgments which determine the parties’
interests in a thing or status.
JUDGMENT:
1. By filing a petition in the court where the
judgment is sought to be recognized for the
recognition of the judgment;
2. By a summary procedure known as exequatur
proceedings (a summary procedure outlined in
the statutes of some civil law countries such as
France, Italy, Switzerland, and Austria for the
enforcement of foreign judgments that have no
automatic effect or authority in themselves); and
3. By registration of the foreign judgment in a
registry of judgments in the forum where it is with
or without judicial supervision (COQUIA,
Conflict, supra at 561-563).

REASONS FOR REFUSAL BY A LOCAL

COURT TO RECOGNIZE OR ENFORCE A
FOREIGN JUDGMENT:
1. The requisite proof of the foreign judgment may
not have been presented (Note: The manner of
proving a foreign judgment is the same as
proving a foreign law (RULES OF COURT, Rule
132, Sec. 25).
2. The foreign judgment may contravene a
recognized and established policy in our
country, e.g., foreign decree of divorce obtained
by a Filipino from his/her Filipino spouse abroad;
or
3. The administration of justice in the country
where the foreign judgment came from may be
shockingly corrupt or not beyond reproach.

PROCEDURE OF ENFORCEMENT OF
JUDGMENT IN THE PHILIPPINES:
1. Filing of petition in the proper court attaching an
authenticated copy of the foreign judgment; and
2. Authentication calls for the Philippine consul
assigned to the country where the foreign
judgment was decreed to certify that such
judgment was rendered by a court of competent
jurisdiction (COQUIA, Conflict, supra at 561).

FOREIGN JUDGMENT MUST CONFORM

WITH THE CONSTITUTIONAL
REQUIREMENTS
The requirement that a judgment must state the facts
and the law upon which it is based is embodied in
Section 14 of Article VIII of the Constitution. Any
foreign law, whether substantive or procedural,
cannot overrule or prevail over this constitutional
provision (AGPALO, Conflict, supra at 644).
 2. Takes effect immediately
EFFECT AND – It shall take effect immediately after publication
with the 15-day period being dispensed with
APPLICATION OF LAWS (Tañada v. Tuvera,supra).

3. No provision as to its effectivity

– It takes effect after 15 days following its
The Civil Code took effect on August 30, 1950.
publication (CIVIL CODE, Art. 2; 1 PARAS, Civil
Code of the Philippines Annotated (2016), p. 14
[hereinafter 1 PARAS]).
EFFECTIVITY OF LAWS NOTE: If the law declares that it shall be effective
(ART. 2) “15 days after its publication”, it means that its
effectivity is on the 15th day after such publication.

If the law declares that it shall be effective “after 15

GENERAL RULE: Laws shall take effect after 15 days following its publication,” its effectivity is on the
days following the completion of their publication in 16th day thereafter (RABUYA, The Law on Persons
the Official Gazette, or in a newspaper of general and Family Relations (2017), p. 4-5 [hereinafter
circulation in the Philippines (CIVIL CODE, Art. 2 as RABUYA]).
amended by E.O. No. 200 (1987)).
INDISPENSABILITY OF PUBLICATION
No one shall be charged with notice of the statute’s The clause “unless it is otherwise provided” in Art. 2
provision until publication is completed and the 15- solely refers to the 15-day period and not to the
day period has expired (Nagkakaisang Maralita ng requirement of publication. Publication is an
Sitio Masigasig Inc. v. Military Shrine Service, G.R. indispensable requisite; the absence of which will
No. 187587, June 5, 2013). violate due process as it would deny the public
knowledge of the laws that are supposed to govern
EXCEPTION: Unless otherwise provided by the it (Nagkakaisang Maralita ng Sitio Masigasig Inc v.
law (CIVIL CODE, Art. 2). Military Shrine Services, G.R. No. 187587, June 5,
2013).
NOTE: The date of effectivity of Municipal
Ordinances is NOT covered by this rule but by the COVERAGE: (PLAC3E)
Local Government Code (Tañada v. Tuvera, G.R.
No. L-63915 April 24, 1985). 1. Presidential Decrees;
2. Laws which refer to all statutes, including local
and private laws;
RULES ON PERIOD PROVIDED BY 3. Administrative rules and regulations, the
STATUTE: purpose of which is to enforce/implement
1. Shorter/longer period than the 15-day existing laws pursuant to a valid delegation;
period 4. Charter of a city;
– the period provided in the statute shall prevail 5. Circulars issued by the Monetary Board, the
(STA. MARIA, Persons and Family Relations purpose of which is not merely to interpret but
Law (2015), p. 4) [hereinafter STA. MARIA]]. to fill in the details of the Central Bank Act;

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA TAMPUS, Vice Chairperson
for Secretariat | ARVY KEITH CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice Chairperson for
Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Dean MARCIANO G. DELSON, Dean ULPIANO P. SARMIENTO III, and Atty. FRANCESCA LOURDES M. SEÑGA
6. Circulars and regulations which prescribe a It is founded not only on expediency and policy but
penalty for their violation (People v. Que Po Lay, also on necessity (Zulueta v. Zulueta, G.R. No. 428,
G.R. No. L-6791, March 29, 1954); and April 30, 1902).
7. Executive Orders (Tañada v. Tuvera, supra).
CONCLUSIVE PRESUMPTION
PUBLICATION NOT REQUIRED: (SILI) Every person is presumed to know the law even if he
1. Supreme Court decisions (De Roy v. CA, G.R. has no actual knowledge of the law (Tañada v.
No. 80718, January 29, 1988); Tuvera, supra).
2. Interpretative regulations (Securities
and Exchange Commission v. GMA Network, NOTE: It applies only to mandatory and prohibitory
Inc.,G.R. No. 164026. December 23, 2008); laws. This may be deduced from the language of the
3. Letters of Instructions issued by administrative provision, which, notwithstanding a person’s
superiors on rules/guidelines to be followed by ignorance, does not excuse his or her
subordinates in the performance of their duties compliance with the laws (D.M. Consunji, Inc. v. CA,
(National Power Corp. v. Pinatubo Commercial, G.R. No. 137873, April 20, 2001).
G.R. No. 176006, March 26, 2010); and
4. Those Internal in nature, regulating only the This applies to all kinds of domestic laws, whether
personnel of the administrative agency (Tañada civil or penal (Luna v. Linatoc, G.R. No. L-22378,
v. Tuvera, supra). June 29, 1968), and whether substantive or remedial
(Zulueta v. Zulueta, supra).
NOTE: Administrative rules and regulations must
also be published if their purpose is to enforce or FOREIGN LAW NOT INCLUDED
implement existing law pursuant also to a valid The presumption does not apply to foreign laws
delegation (Manila Public School Teachers' because there is no judicial notice of such foreign
Association v. Garcia, G.R. No. 192708, October 2, laws; such laws must be proved like any other matter
2017). of fact. (Ching Huat v. Co Heong, G.R. No. L-1211,
January 30, 1947).
NEWSPAPER OF GENERAL
CIRCULATION JUDICIAL NOTICE
To be a newspaper of general circulation, it is Refers to the act of the court in taking cognizance of
enough that it is published for the dissemination of matters as true or as existing without the need of the
local news and general information; that it has a introduction of evidence, or the authority of the court
bona fide subscription list of paying subscribers: that to accept certain matters as facts even if no
it is published at regular intervals (Fortune Motors evidence of their existence has been presented.
Phils. Inc. v. Metropolitan Bank and Trust Company,
G.R. No. 115068, November 28,1996). DOCTRINE OF PROCESSUAL
The term “newspaper of general circulation” does
PRESUMPTION
not mean that it is a newspaper with the largest Where a foreign law is not pleaded or, even if
circulation. The fact that there are other newspapers pleaded, is not proved, the presumption is that the
having larger circulation is unimportant (Basa v. foreign law is the same as ours (EDI-Staffbuilders
Mercado, G.R. No. L-42226, July 26, 1935). Int’l. Inc. v. NLRC, G.R. No. 145587, October 26,
2007; Industrial Personnel & Management Services,
Inc. v. De Vera, G.R. No. 205703, March 7, 2016).

IGNORANCE OF THE MISTAKE IN THE APPLICATION OR

INTERPRETATION OF DIFFICULT OR
LAW EXCUSES NO ONE DOUBTFUL PROVISIONS OF LAW
(ART. 3) A mistake in the application or interpretation of
difficult or doubtful provisions of law may be the
basis of good faith and has been given the same
effect as a mistake of fact, which may excuse one
IGNORANTIA LEGIS NON EXCUSAT from the legal consequences of his conduct (CIVIL
“Ignorance of the law excuses no one.” A mistake of CODE, Art. 526, par. 3 and Art. 2155).
law cannot be utilized as a lawful justification,
because everyone is presumed to know the law and
its consequences (In Re: Petition to Sign in the Roll
of Attorneys, B.M. No. 2540, September 24, 2013).
 NON-RETROACTIVITY ACTS CONTRARY TO
OF LAWS (ART. 4) LAW (ART. 5)

RETROACTIVE LAW GENERAL RULE:

It is one intended to affect transactions which Acts contrary to mandatory or prohibitory laws are
occurred, or rights which accrued, before it becomes void (CIVIL CODE, Art. 5).
operative, and which ascribes to them effects not
inherent in their nature, in view of the law in force at MANDATORY OR POSITIVE LAWS
the time of their occurrence (RABUYA, supra at 12).
Laws the violation of which, tenders the act or
proceeding illegal and void (1 TOLENTINO,
GENERAL RULE: Laws shall have no retroactive
Commentaries and Jurisprudence on the Civil Code
effect (CIVIL CODE, Art. 4).
of the Philippines (1990), p. 26 [hereinafter 1
TOLENTINO]). If the law demands something to be
RATIONALE: Statutes, including administrative
done, it is mandatory (RABUYA, supra at 19).
rules and regulations, operate prospectively unless
the legislative intent to the contrary is manifest by
express terms or by necessary implication because PROHIBITORY OR NEGATIVE LAWS
the retroactive application of a law usually divests Laws which, if omitted, renders the proceeding or
rights that have already become vested. This is acts relating to it generally illegal or void. The law
based on the Latin maxim: Lex prospicit non respicit commands that something should not be done (In re
(the law looks forward, not backward) (Lintag v. Brehm v. Republic, G.R. No. L-18566, September
NAPOCOR, G.R. No. 158609, Julay 27, 2007). 30, 1963.).

EXCEPTIONS: (P2UT-NICE) EXCEPTIONS: (PAVE)

1. Procedural or remedial laws (Araneta v.
1. The law makes the act valid but Punishes the
Doronila, G.R. No. L-34882, August 24, 1976);
violator (e.g. Marriage solemnized by a person
2. Penal laws favorable to the accused; provided
without legal authority);
that the accused is not a habitual delinquent
2. The law itself Authorizes its validity (e.g., Lotto,
(REVISED PENAL CODE, Art. 22; People v.
sweepstakes);
Quiachon, G.R. No. 170236, August 31, 2006);
3. The law makes the act only Voidable (e.g.,
3. Unless the law otherwise provides;
Voidable contracts where consent is vitiated);
4. Tax laws when expressly declared or is clearly
and
the legislative intent (Cebu Portland Cement v.
4. The law declares the nullity of an act but
CIR, G.R. No. L-18649, February 27, 1965);
recognizes its Effects as legally existing (e.g.,
5. Laws creating New rights (Bustamante v.
Child born after annulment of marriage is
Cayas, G.R. Nos. L-8562, December 17, 1955);
considered legitimate) (1 PARAS, supra at 36).
6. Interpretative statutes (BPI Leasing Corp. v. CA,
G.R. No. 127629, November 18, 2003);
7. Curative or remedial statutes (People v. Zeta,
G.R. No. L-7140, December 22, 1955); and
8. Emergency laws (Santos v. Alvarez, G.R. No. L- WAIVER OF RIGHTS
332, June 18, 1947). (ART. 6)
EXCEPTIONS TO THE EXCEPTIONS: (EL)
1. Ex Post Facto Laws; and
2. Laws that impair obligation of contracts (Asiatic
Petroleum Co. (P.I.), Ltd. v. Llanes, G.R. No. WAIVER
25386, October 20, 1926). It is the intentional relinquishment of a known right
or such conduct as warrants an inference of
relinquishment of such right (Christensen v.
Carleton, 69 Vt. 91; Castro v. Del Rosario, G.R. No.
L-17915, January 31, 1967).

NOTE: A waiver to be valid and effective must, in the

first place, be couched in clear and unequivocal
terms which leave no doubt as to the intention of a
party to give up a right or benefit which legally c. Patrimonial rights – may be waived (Id. at
pertains to him. (Thomson v. Court of Appeals, G. R. 18-19).
No. 116631, October 28, 1998).
TYPES OF PATRIMONIAL RIGHTS
REQUISITES OF A VALID WAIVER: 1. Real Right (jus in re/ jus in rem)
(CUE–CPF) The power over a specific thing without a passive
1. Full Capacity to make the waiver; subject individually determined against whom such
2. Waiver must be Unequivocal; right may be personally exercised; it is enforceable
3. Right must Exist at the time of the waiver; against the whole world.
4. It must not be Contrary to law, public policy,
morals or good customs; 2. Personal Right (jus in personam/ jus ad
5. It must not be Prejudicial to a third person with a rem)
right recognized by law; and The power belonging to one person to demand of
6. When Formalities are required, the same must another, as a definite passive subject, the fulfillment
be complied with (1 PARAS, supra at 39). of a prestation to give, to do or not to do (Id.).

GENERAL RULE: Rights may be waived (ALBANO,

Family Code of the Philippines (2017), p. 21)
[hereinafter ALBANO]. REPEAL OF LAWS
EXCEPTIONS: (WARN) (ART.7)
Rights that cannot be waived under any of the
following circumstances:
1. When the Waiver is prejudicial to a third person
with a right recognized by law (CIVIL CODE, Art. REPEAL OF A LAW
6); It is the legislative act of abrogating through a
2. Alleged rights, which really do not exist yet; subsequent law the effects of a previous statute or
3. Those the Renunciation of which would infringe portions thereof (STA. MARIA, supra at 11).
upon public policy (CIVIL CODE, Art. 6); and
4. Natural rights, such as the right to life (Id. at 40- TYPES OF REPEAL:
41).
1. Express
– one which is literally declared by a new law,
RIGHT either in specific terms, as where particular laws
The power or privilege given to one person and, as and provisions are named, identified, and
a rule, is demandable of another. It denotes an declared to be repealed, or in general terms
interest or title in an object or property (Black’s Law (Id.).
Dictionary, p. 1558).
2. Implied
ELEMENTS OF RIGHTS: – takes place when a new law contains
1. Active subject provisions contrary to or inconsistent with those
– one who is entitled to demand enforcement of of a former law without expressly repealing them
the right; and (STA. MARIA, supra at 11).

2. Passive subject REQUISITES OF AN IMPLIED REPEAL

– one who is duty-bound to suffer its enforcement 1. The laws cover the same subject matter; and
(RABUYA, supra at 18). 2. The latter is repugnant to the other (Agujetas v.
CA, G.R. No. 106560, August 23, 1996).
KINDS OF RIGHTS:
1. Political Rights NOTE: Implied repeals are not looked upon with
– those rights referring to the participation of favor (US v. Palacio, G.R. No. 11002, January 17,
persons in the government of the State; and 1916). If both statutes can stand together, there is
no repeal (Lichauco v. Apostol, G.R. No. 19628,
2. Civil Rights December 4, 1922). When statutes are in pari
– include all others; they are further classified materia, they should be construed together. A law
into: cannot be deemed repealed unless it is clearly
a. Rights of personality – cannot be waived; manifested that the legislature so intended it (Lledo
b. Family rights – cannot be waived; and v. Lledo, A.M. No. P-95-1167 (Resolution),
February 9, 2010).
A repealing clause in an Act which provides that “all The constitutionality of a law or administrative order
laws and parts thereof inconsistent with the may not be collaterally attacked, and they shall be
provisions of this Act are hereby repealed or deemed valid unless declared null and void by a
modified accordingly” is certainly not an express competent court (NAWASA v. Reyes, G.R. No. L-
repealing clause because it fails to identify or 28597, February 29, 1968).
designate the Act or Acts that are intended to be
repealed. Rather, it is a clause which predicates the OPERATIVE FACT DOCTRINE
intended repeal upon the condition that substantial Before an act is declared unconstitutional, it is an
conflict must be found in existing and prior acts (Iloilo “operative fact” which can be the source of rights and
Palay and Corn Planters Association, Inc. v. duties (RABUYA, supra at 26). The actual existence
Feliciano, G.R No. L-24022, March 3, 1965). of a statute, prior to such a determination [of
unconstitutionality], is an operative fact and may
RULE IN CASE OF CONFLICT BETWEEN have consequences which cannot justly be ignored.
A GENERAL LAW AND A SPECIAL LAW The past cannot always be erased by a new judicial
1. If the general law was enacted PRIOR to the declaration (De Agbayani v. PNB, G.R. No. L-
special law, the latter is considered the 23127, April 29,1971). In short, it nullifies the void
exception to the general law (1 PARAS, supra at law or executive act but sustains its effects.
47).
Thus, a legislative or executive act, prior to its being
2. If the general law was enacted AFTER the declared as unconstitutional by the courts, is valid
special law, the special law remains, unless: and must be complied with (Chavez v. NHA, G.R.
a. There is an express declaration to the No. 164527, August 15, 2007).
contrary; or
b. There is a clear, necessary, and RULES AND REGULATIONS,
irreconcilable conflict; or EXECUTIVE AND ADMINISTRATIVE
c. The subsequent general law covers the ACTS
whole subject and is clearly intended to Rules and regulations when promulgated in
replace the special law on the matter (Ibid). pursuance of the procedure or authority conferred
upon the administrative agency by law, partake of
EFFECT IF THE REPEALING LAW IS the nature of a sanction provided in the law. These
ITSELF REPEALED regulations must be in harmony with the provisions
1. When a law which expressly repeals a prior law of the law (STA. MARIA, supra at 13-14).
is itself repealed, the law first repealed shall not
be thereby revived, unless expressly so
provided.
JUDICIAL DECISIONS
Example: Law A is expressly repealed by Law
B. If Law B is itself repealed by Law C, Law A is FORM PART OF LEGAL
not revived, unless Law C expressly so SYSTEM OR DOCTRINE
provides.
OF STARE DECISIS
2. When a law which impliedly repeals a prior law
is itself repealed, the prior law shall thereby be
(ART. 8)
revived unless the language of the repealing
statute provides otherwise.
Judicial decisions applying or interpreting the laws or
Example: Law A is impliedly repealed by Law the Constitution shall form part of the legal system of
B. Law B is later repealed by Law C. Law A is the Philippines (CIVIL CODE, Art. 8).
revived unless Law C provides otherwise (Id. at
49).
STARE DECISIS ET NON QUIETA
MOVERE
UNCONSTITUTIONAL STATUTES
“To adhere to precedents, and not to unsettle things
The Constitution is the supreme, organic, and
which are established” (Tala Realty ServicesCorp.,
fundamental law of the land. It is axiomatic that no
Inc. v. Banco Filipino Savings & Mortgage Bank,
ordinary statute can override a constitutional
G.R. No. 181369, June 22, 2016).
provision (Floresca v. Philex Mining Corp., G.R. No.
L-30642, April 30, 1985).
DOCTRINE OF STARE DECISIS 49090, February 28, 1947).
When the Supreme Court has once laid down a
principle of law as applicable to a certain state of NO RETROACTIVE EFFECT
facts, it will adhere to that principle, and apply it to all When a doctrine of the Supreme Court is overruled
future cases, where facts are substantially the and a different view is adopted, the new doctrine
same; regardless of whether the parties and should be applied prospectively and should not
property are the same (Light Rail Transit Authority prejudice parties who relied on the old doctrine
v. Pili, G.R. No. 202047, June 8, 2016). (People v. Jabinal, G.R. No. L-30061, February 27,
1974).
The Doctrine of Stare Decisis is one of policies
grounded on the necessity for securing certainty HOW JUDICIAL DECISIONS MAY BE
and stability of judicial decisions (Tala Realty ABROGATED
Services Corp., Inc. v. Banco Filipino Savings &
1. By contrary ruling of the Supreme Court itself;
Mortgage Bank, supra).
and
2. By corrective legislative acts of Congress,
NOTE: The law of the case doctrine has been
although said laws cannot adversely affect those
defined as the opinion delivered on a former appeal.
favored prior to Supreme Court decisions (1
It means that whatever is once irrevocably
PARAS, supra at 69).
established as the controlling legal rule or decision
between the same parties in the same case
continues to be the law of the case, whether correct ADMINISTRATIVE DECISIONS
on general principles or not, so long as the facts on Although it is recognized that judicial decisions
which such decision was predicated continue to be applying or interpreting statutes are part of the legal
the facts of the case before the court. (De La Salle system of the country, such level of recognition is not
University v. De La Salle University Employees afforded to administrative decisions (International
Association - NAFTEU, G.R. No. 169254, August 23, Management Services v. Logarta, G.R. No. 163657,
2012). April 18, 2012).

LEGAL EFFECTS OF JUDICIAL

DECISIONS
1. No publication required (De Roy v. CA, G.R.
DUTY OF JUDGES
No. 80718, January 29, 1988); (ART. 9)
2. Conclusive and binding between parties after
the lapse of appeal period (City of Cebu v.
Apolonio M. Dedamo, G.R. No. 172852, January No judge or court shall decline to render judgment
30, 2013); and by reason of the silence, obscurity or insufficiency of
the laws (CIVIL CODE, Art. 9).
3. Bind all future cases with identical facts, until
reversed by SC (De Mesa v. Pepsi Cola Product DUTY OF JUDGES
Phils. Inc., G.R. Nos. 153063-70, August 19, Judges must not evade performance of this
2005 citing Kilosbayan, Inc. et al. v. Morato, G.R. responsibility just because of an apparent non-
No. 118910, July 17, 1995). existence of any law governing a particular legal
dispute or because the law involved is vague or
Judicial decisions, although in themselves are not inadequate (STA.MARIA, supra at 16).
laws, constitute evidence of what the laws mean
(People v. Licera, G.R. No. L-39990, July 22, 1975). NOTE: Whenever a court has knowledge of any act
which it may deem proper to repress and which is
The application or interpretation placed by the Court not punishable by law, it shall render the proper
upon a law is part of the law as of the date of decision, and shall report to the Chief Executive,
enactment of said law because the Supreme Court’s through the Department of Justice, the reasons
interpretation merely establishes the which induce the court to believe that said act should
contemporaneous legislative intent that the be made the subject of penal legislation(REVISED
construed law purports to carry into effect (People PENAL CODE, Art. 5, par. 1).
v. Licera, supra).
In the same way, the court shall submit to the Chief
NOTE: Only the decisions of the Supreme Court Executive, through the Department of Justice, such
establish jurisprudence or doctrines in this statement as may be deemed proper, without
jurisdiction (Vda. de Miranda v. Imperial, G.R. No. L- suspending the execution of the sentence, when a
strict enforcement of the provisions of the Revised The law requires that "a custom must be proved as
Penal Code would result in the imposition of a clearly a fact, according to the rules of evidence" (Article 12,
excessive penalty, taking into consideration the Civil Code) On this score the Court had occasion to
degree of malice and the injury caused by the state that "a local custom as a sourceof right cannot
offense (REVISED PENAL CODE, Art. 5, par. 2). be considered by a court of justice unless such
custom is properly established by competent
IF THE LAW IS SILENT, OBSCURE, OR evidence like any other fact. The same evidence, if
INSUFFICIENT, A JUDGE MAY BASE HIS not one of a higher degree, should be required of a
foreign custom (Yao Kee v. Sy- Gonzales, G.R. No.
JUDGMENT ON ANY OF THE 55960, November 24, 1988).
FOLLOWING: (CD-OSP)
1. Customs which are not contrary to law, public GENERAL RULE: Customs must be proved as a
order, or public policy (CIVIL CODE, Art. 11); fact according to the rules of evidence (In the Matter
2. Decisions of foreign and local courts on similar of the Petition for Authority to Continue use of the
cases; Firm name “Ozaeta, Romulo, etc.”, G.R. No. X92-1,
3. Opinions of highly qualified writers July 30, 1979).
and professors;
4. Rules of Statutory construction; and EXCEPTION: If there is already a decision
5. Principles laid down in analogous instances (1 rendered by the same court recognizing the
PARAS, supra at 83). custom, it becomes an official act of the
judicial department which courts may take judicial
JUDICIAL LEGISLATION notice (RULES OF COURT, RULE 129, Sec. 2).
The judiciary is tasked with resolving legal
controversies and interpreting statutes. The REQUISITES TO MAKE A CUSTOM AN
judiciary cannot legislate. However, even the OBLIGATORY RULE (POPTUN)
legislator himself, through Article 9 of the Civil Code,
1. Plurality or repetition of acts;
recognizes that in certain instances, the court “must
2. The community accepts it as a proper way of
legislate” to fill in the gaps in the law, because the
acting, such that it is considered as Obligatory
mind of the legislator is finite and therefore cannot
upon all;
envisage all possible causes to which the law may 3. Practiced by the great mass of the social group;
apply. (STA. MARIA, supra at 17).
4. Continued practice for a long period of Time
(ALBANO, supra at 38-39);
5. Uniformity, or identity of acts or various solutions
to the juridical question; and
DOUBT IN THE 6. The practice must Not be contrary to law,
INTERPRETATION AND morals, or public order (RABUYA, supra at 37).

APPLICATION OF LAWS
(ART. 10)
RULE ON PERIODS
(ART. 13)
In case of doubt in the interpretation or application of
laws, it is presumed that the lawmaking body
intended right and justice to prevail (Article 10, Civil
Code).
RULE ON PERIODS
1. Year
– 12 calendar months (E.O. 292 (1987),Book
I, Sec.31).
CUSTOMS NOTE: Art. 13 has been superseded by E.O. No.
(ARTS. 11 AND 12) 292 or the Revised Administrative Code of 1987.
Calendar month is "a month designatedin the
calendar without regard to the number of days it
may contain" (CIR v. Primetown Property
CUSTOMS Group, Inc., G.R. No. 162155, August 28, 2007).
Rules of conduct formed by repetition of acts
uniformly observed as a social rule. They are legally
binding and obligatory (STA. MARIA, supra at 18)
2. Month 2. LAWS RELATING TO FAMILY RIGHTS AND
– 30 days, unless month is identified; DUTIES, OR TO THE STATUS, CONDITION
If months are designated by their name, they AND LEGAL CAPACITY OF PERSONS:
shall be computed by the number of days which Nationality rule applies to citizens of the
they respectively have (CIVIL CODE, Art. 13). Philippines even though living abroad (CIVIL
CODE, Art. 15).
3. Day
– 24 hours; RULES ON PERSONAL LAW:
a. Domiciliary Rule
4. Night – The basis for determining personal law of an
– Sunset to sunrise; individual is his domicile.
5. Calendar week b. Nationality Rule
– Sunday to Saturday; – The basis for determining personal law is his
citizenship (RABUYA, supra at 42).
6. Week
– Count 7 days as indicated, notnecessarily
Thus, a Filipino spouse cannot obtain a valid divorce
Sunday to Saturday.
abroad because his or her capacity and status are
governed by Philippines Laws.
NOTE: To count the period, First day is Excluded,
Last day is Included (FELI) (CIVIL CODE, Art. 13).
EXCEPTION: Divorce validly obtained abroad by
alien spouse capacitating him or her to remarry; the
EXCEPTION: Rule does NOT apply to the Filipino spouse shall have capacity to remarry under
computation of age; each year is counted based on Philippine law (FAMILY CODE, Art. 26, par. 2, as
birth anniversary (Garvida v Sales, G.R. No. 124893, amended by E.O. 227
April 18, 1997). (1987)).
POLICY IF THE LAST DAY IS A SUNDAY Likewise, a Filipino citizen who initiated a divorce
OR A LEGAL HOLIDAY proceeding abroad, has the capacity to remarry
1. The last day will automatically be considered the under Philippine law after obtaining a favorable
next working day, if the act to be performed judgment against his or her alien spouse who is
within the period is prescribed or allowed by: capacitated to remarry (Republicv. Manalo, G.R. No.
a. the Rules of Court; 221029, April 24, 2018).
b. an order of the court; or
c. any other applicable statute; and 3. LAWS ON PROPERTY (REAL AND
PERSONAL)
2. If the act to be performed within the periodarises
from a contractual relationship, the act will LEX REI SITAE: The law of the country where the
become due despite the fact that the last day property is situated shall govern the property (CIVIL
falls on a Sunday or Holiday (1 PARAS, supra at CODE, Art. 16, par. 1).
96).
EXCEPTION: Intestate and testamentary
succession particularly (CIAO)
a. Capacity to succeed;
PROVISIONS ON b. Intrinsic validity of testamentary provisions;
c. Amount of successional rights; and
CONFLICT OF LAW d. Order of succession (CIVIL CODE, Art. 16,
(ARTS. 14-18) par. 2).

Renvoi Doctrine
Literally means referring back (RABUYA, supra at
52); Occurs when a citizen of another country dies
1. PENAL LAWS AND LAWS OF PUBLIC
as a domiciliary of another country. Where the
SECURITY: conflict rules of the forum refer to a foreign law, and
Territoriality rule governs regardless of the the latter refers it back to the internal law, the law of
nationality but subject to principles of the forum shall apply (In Re: Testate Estate of
international law and to treaty stipulations (CIVIL Edward E. Christensen, G.R. No. L-16749, January
CODE, Art. 14). 31, 1963).
Transmission Theory
As to coverage
If the foreign law refers it to a third country, the said
country’s law shall govern (SEMPIO-DIY, Conflicts
Family rights Real and Forms and
of Law (2004), p. 62) [hereinafter SEMPIO-DIY]).
and duties, personal solemnities
status, property (extrinsic validity)
Doctrine of Processual Presumption
condition, and
If the foreign law is not properly alleged and proved,
legal capacity
the presumption is that it is the same as our law (EDI-
ofpersons
Staff Builders Int’l, Inc. v. NLRC, G.R. No. 145587,
Oct. 26, 2007).
RULE ON PROHIBITIVE LAWS
4. LAWS ON FORMS AND SOLEMNITIES GENERAL RULE: Prohibitive laws concerning
persons, their acts or property, and those which
Lex Loci Celebrationis have for their object public order, public policy or
Forms and solemnities of contracts, wills, and other good customs are not rendered ineffective by laws
public instruments (extrinsic validity) shall be or judgments promulgated or by determinations or
governed by the laws of the country in which they conventions agreed upon in a foreign country (CIVIL
are executed (CIVIL CODE, Art. 17). CODE, Art. 17, par. 3).

EXCEPTION: EXCEPTION: Art. 26, par. 2 of the Family Code

a. Acts executed before diplomatic or consular (Divorce obtained abroad between an alien and a
officials. Filipino)
Intrinsic Validity of Contracts
SUPPLETORY APPLICATION
Validity is determined by the following rules:
i. The law stipulated by the parties shall be In matters which are governed by the Code of
applied; Commerce and special laws, their deficiency shall
ii. In default thereof, and the parties are ofthe same be supplied by the provisions of this Code (CIVIL
nationality, their national lawshall be applied; CODE, Art. 18).
iii. If the parties are not of the same nationalities,
the law of the place of the perfection of the
obligation shall govern its fulfillment; or
iv. If the above places are not specified and they HUMAN RELATIONS
cannot be deduced from the nature and
circumstances of the obligation, then the law of
(ARTS. 19-21)
the passivesubject shall apply (1 TOLENTINO,
supra at 57).
ABUSE OF RIGHT (CIVIL CODE, ART. 19)
LEX NATIONALII V. LEX REI SITAE V. The principle of abuse of rights departs from the
LEX LOCI CELEBRATIONIS classical theory that “he who uses a right injures no
LEX LEX REI LEX LOCI one.” The modern tendency is to depart from the
NATIONALII SITAE CELEBRATIONIS classical and traditional theory, and to grant
(ART. 15) (ART. 16) (ART. 17) indemnity for damages in cases where there is an
abuse of rights, even when the act is not illicit
(RABUYA, supra at 66 & 67).
As to basis
NOTE: Abuse of rights is actionable. This is based
Citizenship Where Where the contract on the famous maxim suum jus summa injuria (the
the wasexecuted abuse of a right is the greatest possible wrong).
property (JURADO, Civil Law Reviewer (2019), p. 34)
is situated [hereinafter JURADO, Civil Law Reviewer]).

THE FOLLOWING ELEMENTS MUST

CONCUR: (LEP)
1. Existence of a Legal right or duty;
2. Which is Exercised in bad faith;
3. For the sole intent of Prejudicing or injuring
another (Padillo v. Rural Bank of Nabunturan,
Inc., G.R. No. 199338, January 21, 2013).c
EXERCISE OF RIGHTS One cannot seek specific performance to compel
The exercise of a right must be in accordance with marriage.
the purpose for which it was established and must
not be excessive or unduly harsh; there must be no BREACH OF PROMISE TO MARRY,
intention to harm another (Ardiente v. Sps. WHEN ACTIONABLE
Pastorfide, G.R. No. 161921, July 17, 2013). There must be another act independent of the
breach of promise to marry which gives rise to
DOCTRINE OF VOLENTI NON FIT liability as where there was fraud or deceit, financial
INJURIA (TO WHICH A PERSON damage, social humiliation, and moral seduction
ASSENTS IS NOT ESTEEMED IN LAW (RABUYA, supra at 74 and 75).
AS INJURY) Examples of Actionable Breach of Promise to
It refers to self-inflicted injuries or to the consent to Marry:
injury which precludes the recovery of damages by 1. Mere breach of promise to marry is not an
one who has knowingly and voluntarily exposed actionable wrong. However, to formally set a
himself to danger, even if he is not negligent in doing wedding and go through all the preparations
so (Pantaleon v. American Express International, and publicity, only to walk out of it when the
Inc., G.R. No. 174269 (Resolution), August 25, matrimony is about to be solemnized, is
2010).
palpably and unjustifiably contrary to good
customs for which defendant must be held
DAMNUM ABSQUE INJURIA (DAMAGE
answerable in damages pursuant to Art. 21
WITHOUT INJURY) of the Civil Code (Wassmer v. Velez, G.R.
A person who exercises his legal right does noinjury. No. L- 20089, December 26, 1964).
However, it cannot be said that a person exercises
a right when he unnecessarily prejudices another or 2. Where a man’s promise to marry was the
offends morals or good customs. When damages proximate cause of giving herself unto him in
result from a person’s exercise of rights, it is damnum sexual congress and there is that proof he had
absque injuria (ABS-CBN v. CA, G.R. No. 128690, no intention of marrying her, the promise being
January 21, 1999). a deceptive device, damages may be awarded
pursuant to Art. 21 of the Civil Code because of
ACTS CONTRARY TO LAW the fraud and deceit behind it and the willful
Every person who, contrary to law, willfully or injury to her honor and reputation (Baksh v.
negligently causes damage to another, shall Court of Appeals, G.R. No. 97336, February19,
indemnify the latter for the same (CIVIL CODE, Art. 1993).
20).
3. Where the man forcibly abducted a woman and
ACTS CONTRA BONUS MORES had carnal knowledge with her against her will,
(AGAINST GOOD MORALS) and thereafter promised to marry her in order to
escape criminal liability, only to thereafterrenege
Any person who willfully causes loss or injury to on such promise after cohabiting with her for 21
another in a manner that is contrary to morals good days, such acts irremissibly constitute acts
customs or public policy shall compensate the latter contrary to morals and good customs (Buṅag v.
for the damage (CIVIL CODE, Art. 21). CA, G.R. No. 101749, July 10, 1992).
ELEMENTS: (LCD)
1. Act which is Legal; MALICIOUS PROSECUTION
2. The act is Contrary to morals, good customs, An action for damages brought by one against whom
public order or public policy; and a criminal prosecution, civil suit or other legal
3. The act is Done with intent to injure (Mendoza proceeding has been instituted maliciously and
v. Spouses Gonez, G.R. No. 160110, June 18, without probable cause, after the termination of such
2014). prosecution, suit, or other proceeding in favor of the
NOTE: Damages are recoverable even if no defendant therein (Diaz v. Davao Light and Power
positive law was violated (DE LEON, Torts and Co., Inc., G.R. No. 160959, April 4, 2007).
Damages, supra at 361).
BASIS OF ACTION
BREACH OF PROMISE TO MARRY, An action for damages arising from malicious
prosecution is anchored on the provisions of Arts.
GENERALLY NOT ACTIONABLE 21, 2217, and 2219(8) of the New Civil Code. One
It is not by itself an actionable wrong (Hermosisima cannot be held liable in damages for maliciously
v. CA, G.R. No. L-14628, September 30, 1960). instituting a prosecution where he acted with
probable cause. Malice and want of probable cause ACCION IN REM VERSO V. SOLUTIO
must both exist in order to justify a suit for malicious INDEBITI
prosecution (RABUYA, supra at 79).
ACCION IN REM SOLUTIO INDEBITI
REQUISITES: VERSO (ART. 2154)
1. The fact of prosecution and the further fact
that the defendant (respondent) was himself It is not necessary that Payment made by
the prosecutor, and that the action finally the payment was made mistake is an essential
terminated with an acquittal; by mistake; payment element to maintain the
2. That in bringing the action, the prosecutor could have been made action for recovery.
acted without probable cause; and knowingly and
3. That the prosecutor was actuated or voluntarily.
impelledby legal malice, that is, by improper Nevertheless, there
or sinister motive (Diaz v. Davao Light and would be recovery of
Power Co., Inc., G.R. No.160959, April 4, what has been paid.
2007). (1 TOLENTINO, supra at 83-84).
NOTE: Arts. 19, 20 and 21 are related to one REQUISITES: (JELACI)
another and under these articles, an act which 1. Enrichment is without Just or legal ground;
causes injury to another may be made the basis for 2. Defendant has been Enriched;
an award of damages. Arts. 19 and 21 refer to 3. Plaintiff has suffered Loss;
intentional acts while Art. 20 pertains either to 4. He has no other Action based on contract,
willful or negligent acts, which must be contrary to quasi–contract, crime or quasi–delict (Id. at 76).
law (Sesbreño v. Court of Appeals, G.R. No. 5. There must be a Causal relation between the
160689, March 26, 2014). two; and
6. The Indemnity cannot exceed the loss or
enrichment, whichever is less (1 PARAS, supra
at 148).
PRINCIPLE OF UNJUST
ENRICHMENT Even when an act or event causing damage to
another’s property was not due to the fault or
(ART. 22) negligence of the defendant, the latter shall be liable
for indemnity if through the act or event he was
benefited (CIVIL CODE, Art. 23).

MEMO CUM ALTERIUS DETER For a more comprehensive discussion of Arts. 19-
DETREMENTO PROTEST 35, please see discussion thereof under Torts and
No person should unjustly enrich himself at the Damages.
expense of another (Frenzel v. Catito, G.R. No.
143958, July 11, 2003).

ACCION IN REM VERSO PREJUDICIAL

If a person acquires or comes into possession of QUESTION
something at the expense of another without just or
legal ground through an act or performance by (ART. 36)
another or any other means has the obligation to
return the same. It is an action for recovery of what
has been paid without just cause (RABUYA, supra
at 80). PREJUDICIAL QUESTION
Application: Arises where the resolution of a case is dependent
1. When a thing is acquired by or comes into on the resolution of an issue involved in another
possession of another (delivery or acquisition of case and assumed by a different tribunal. The issue
things); and involved in the latter case is the logical antecedent
2. The acquisition be undue and at the expense of of the issue involved in the former case. (Sps.
another, (without just or legal ground). Gaditano v. San Miguel Corp., G.R. No. 188767,
July 24, 2013).
GENERAL RULE: If both criminal and civil cases c. Refusal or failure of city or municipal police
arising from the same facts are filed in court, the to give protection (CIVIL CODE, Art. 34);
criminal case takes precedence. and
d. Quasi-delict or culpa-aquiliana (CIVIL
EXCEPTIONS: CODE, Art. 2177).
1. PREJUDICIAL QUESTIONS
The prejudicial question must be determinative Criminal Prosecution Does Not Constitute
of the case before the court, but the jurisdiction Prejudicial Question to Administrative
to try and resolve the question must be lodged Proceeding for Disbarment or Suspension of a
in another court or tribunal (Ching v. Court of Lawyer
Appeals, G.R. No. 110844, April 27, 2000). A criminal prosecution will not constitute a prejudicial
question even if the same facts and circumstances
Elements: are attendant in the administrative proceedings for
a. The previously instituted civil action the disbarment or suspension of a member of the bar
involves an issue similar or intimatelyrelated because administrative cases against lawyers
to the issue raised in the subsequent belong to a class of their own. They are distinct from
criminal action; and and they may proceed independently of civil and
b. The resolution of such issue determines criminal cases (Wilson Po Cham v. Pizarro, A.C. No.
whether or not the criminal action may 5499, August 16, 2005).
proceed. (RULES OF COURT, RULE 111,
Sec. 7).

It generally comes into play in a situation where

a civil action and a criminal action are both
CIVIL PERSONALITY
pending and there exists in the former an issue (ART. 37)
which must be preemptively resolved beforethe
latter may proceed, because howsoever the
issue raised in the civil action is resolved would
be determinative juris et de jure of the guilt or CIVIL PERSONALITY
innocence of the accused in the criminal case It is the aptitude of being the subject, active or
(Sps. Gaditano v. San Miguel Corp., G.R. No. passive, of rights and obligations (ALBANO, supra
188767, July 24, 2013). at 166).
NOTE: The rule authorizes only the suspension
PERSON
of the criminal action and not its dismissal by
reason of a prejudicial question (RULES OF Any being, natural or artificial, capable of possessing
COURT, RULE 111, Sec. 6). legal rights and obligations (1 PARAS, supra at 221).

Where to File Petition to Suspend A person is any being susceptible of rights and
A petition for suspension of the criminal action obligations or more specifically, it is every physical
based upon the pendency of a prejudicial or moral, real or juridical and legal being susceptible
question in a civil action may be filed in the office of rights and obligations or being the subject of legal
of the prosecutor of the court conducting the relations (RABUYA, supra at 128).
preliminary investigation. When the criminal
action has been filed in court for trial, the petition NOTE: Estate of a decedent is considered by law as
to suspend shall be filed in the same criminal a person. Hence, a forgery committed after the
action at any time before the prosecution rests death of a man whose name purports to be signed
(RULES OF COURT, RULE 111, Sec. 6). to the instrument may be prosecuted as with intent
to defraud the estate (Limjoco v. Estate of Pedro
NOTE: There is no prejudicial question where Fragante, G.R. No. L-770, April 27, 1948).
one case is administrative and the other is civil
(Te v. Court of Appeals, G.R. No. 126746, TWO KINDS OF PERSONS
November 29, 2000). 1. Natural persons
– human beings created byGod through the
2. INDEPENDENT CIVIL ACTIONS intervention of parents; and
GRANTED BY LAW: (CD-RQ)
a. Breach of Constitutional and other rights 2. Juridical persons
(CIVIL CODE, Art. 32); – those created by law (1 PARAS, supra at
b. Defamation, fraud, physical injuries (CIVIL 221).
CODE, Art. 33);
 JURIDICAL CAPACITY V. circumstances where those that are expressly
CAPACITY TO ACT the capacity to act is conferred upon them or
JURIDICAL CAPACITY TO ACT restrained. those which can be
CAPACITY (CAPACIDED DE implied therefrom or
(CAPACIDAD OBRAR) incidental thereto.
JURIDICA)
RESTRICTIONS ON CAPACITY TO ACT:
As to Nature (MI2D-PC)
1. Minority;
Fitness to be the Power to do acts with
Minority does not exempt the minor from certain
subject of legal legal effects (CIVIL
obligations. If he does an act without theconsent
relations (CIVIL CODE, CODE, Art. 37).
of his parents or guardian, the contract is not
Art. 37).
void but is merely voidable, that is valid until
As to Status annulled. In other words, it is not that a minor
has no capacity but that his capacity is restricted
Passive. Active. (1 PARAS, supra at 223).

As to Acquisition 2. Insanity;
Inherent. Merely acquired. 3. Imbecility;

As to Condition of the Subject 4. State of being Deaf mute;

Deaf mute may either be sane or insane.
Static. Dynamic.
5. Prodigality;
As to Effect of Death It is the state of squandering money or property
with a morbid desire to prejudice the heirs of a
Lost only through Lost through death and person (Martinez v. Martinez, G.R. No. 445,
death. restricted by other March 31, 1902).
causes.

As to Existence 6. Civil interdiction (CIVIL CODE, Art. 38; 1

PARAS, supra at 237).
Can exist without Always exists with A person who suffers civil interdiction is deprived
capacity to act. juridical capacity. of: (PGDM)
a. Having Parental or marital authority.
(1 PARAS, supra at 222). b. Being the Guardian of the person and
property of a ward.
c. Disposing of his property by an act inter
FULL/COMPLETE CIVIL CAPACITY
vivos (he cannot donate, for this is an act
The union of the two kinds of capacity (Id. at 222). inter vivos; but he can make a will, for this
is a disposition mortis causa).
NOTE: A person is presumed to have capacity to act d. Managing his own property (REVISED
(Standard Oil Co. v. Arenas, G.R. No. 5921, July25, PENAL CODE, Art. 34; 1 PARAS, supra at
1911). 223)

THEORIES ON CAPACITY TO ACT NOTE: The penalty of civil interdiction is

given to a criminal punished by
THEORY OF THEORY OF
imprisonment for 12 years and 1 day or
GENERAL SPECIAL
more (REVISED PENAL CODE, Art. 41).
CAPACITIES CAPACITIES

As to Whom it is Applied The same do not exempt the incapacitated

person from certain obligations as when the
Applies persons to Applies persons to latter arise from his acts or from property
natural juridical relations such as easements (CIVIL CODE,
Art. 38).
As to Limitations

Effects apply except This limits the power of

only in those specific juridical persons only to
MODIFICATIONS/LIMITATIONS ON EXCEPTION: If the fetus had an intra-uterine life of
CAPACITY TO ACT: (IF-I-PAID-TAPA) less than 7 months, it is not deemed born if it dies
within 24 hours after its complete delivery from the
1. Insanity;
maternal womb (CIVIL CODE, Art. 41).
2. Family relations;
3. Imbecility;
Illustration:
4. Penalty;
5. Age; Intra-Uterine Life When Considered Born
6. Insolvency;
7. State of being Deaf-mute; 7 months or more Alive upon complete
8. Trusteeship; (Ordinary) delivery – even if the child
9. Alienage; dies within 24 hours
10. Prodigality; and
11. Absence (CIVIL CODE, Art. 39). Less than 7 months Alive upon complete
(Extraordinary) delivery and at least 24
hours thereafter (1
PARAS, supra at 231).
NATURAL PERSONS
HOW CIVIL PERSONALITY IS
(ARTS. 40-43) EXTINGUISHED
Civil personality is extinguished by death. The effect
of death upon the rights and obligations of the
BEGINNING OF PERSONALITY deceased is determined by law, by contract and by
will (CIVIL CODE, Art. 42).
GENERAL RULE: Birth determines personality
(actual personality) (CIVIL CODE, Art. 40).
NOTE: Civil Interdiction merely restricts, not
extinguishes, capacity to act (1 PARAS, supra at
EXCEPTION: The civil personality of the child shall
232).
commence from the time of its conception, for all
purposes favorable to him, subject to the
requirements of Art. 41 of the Civil Code (P.D. No. NO PRESUMPTION OF SURVIVORSHIP
603, Art. 5). This personality at conception is called IN SUCCESSION
presumptive personality. If there is doubt as to whom, between or amongtwo
or more persons called to succeed each other, died
The law considers the conceived child as born for first, the following rules shall apply:
all purposes favorable to it if born alive. Therefore, 1. Whoever alleges the death of one prior to the
the child has a presumptive personality, which has other shall prove the same; and
two characteristics: 2. In the absence of proof, it shall be presumed that
1. Limited; and they died at the same time. There shall be no
2. Provisional or conditional (Quimiguing v. Icao, transmission of rights from one another (CIVIL
G.R. No. L-26795, July 31, 1970). CODE, Art. 43).

NOTE: The concept of provisional personality NOTE: Art. 43 applies when the case involves two
CANNOT be invoked to obtain damages for and in or more persons who are called to succeed each
behalf of an aborted child (Geluz v. CA, G.R. No. L- other. But if the parties are not called to succeed
16439, July 20, 1961). each other, Rule 131, Sec. 3 (jj) of the Rules of Court
applies. Both are to be applied only in the absence
A conceived child is already entitled to support from of facts (1 PARAS, supra at 235).
its progenitors (Quimiguing v. Icao, G.R. No. L-
26795, July 31, 1970) and can be acknowledged PRESUMPTION OF SURVIVORSHIP IN
even before it is born (De Jesus v. Syquia, G.R. No.
39110, November 28, 1933).
CASE TWO PERSONS WHO ARE NOT
CALLED TO SUCCEED DIED IN THE
WHEN IS A CHILD CONSIDERED BORN SAME ACCIDENT:
GENERAL RULE: For civil purposes, the fetus is That except for purposes of succession, when two
considered born if it is alive at the time it is persons perish in the same calamity, such as
completely delivered from the mother’s womb (CIVIL wreck, battle, or conflagration, and it is not shown
CODE, Art. 41). who died first, and there are no particular
circumstances from which it can be inferred, the
survivorship is determined from the probabilities
resulting from the strength and the age of thesexes, CORPORATIONS
according to the following rules: A corporation is an artificial being created by
1. <15 y.o. vs. <15 y.o. – the older; operation of law, having the right of succession and
2. >60 y.o. vs. >60 y.o. – the younger; the powers, attributes, and properties expressly
3. <15 y.o. vs. >60 y.o. – the younger; authorized by law or incidental to its existence
4. Both > 15 y.o. and <60 y.o. – male if different (REVISED CORPORATION CODE, Sec. 2).
sexes; if the same, the older;
5. <15 y.o. or >60 y.o. vs. 15 y.o. to 60 y.o.- the
PARTNERSHIPS
latter (RULES OF COURT, RULE 131, Sec. 3
(jj)). By a contract of partnership, two or more persons
NOTE: If there is a doubt, as between two or bind themselves to contribute money, property or
more persons who are called to succeed each industry to a common fund, with the intention of
other, as to which of them died first, whoever dividing the profits among themselves; or for the
alleges the death of one prior to the other, shall exercise of a profession (CIVIL CODE, Art. 1767).
prove the same; in the absence of proof, they Partnerships are governed by the contract between
shall be considered to have died at the same partners and the provisions of the Civil Code on
time (RULES OF COURT, RULE 131, Sec. 3 Partnership.
(kk)).
NOTE: A sole proprietorship does not possess a
juridical personality separate and distinct from the
personality of the owner of the enterprise (Mendez
JURIDICAL PERSONS v. People, G.R. No. 179962, June 11, 2014).

(ARTS. 44-47) RULES GOVERNING JURIDICAL

PERSONS
Juridical persons mentioned in Nos. 1 and 2 are
governed by the laws creating or recognizing them.
JURIDICAL PERSON
A being of legal existence susceptible of rights and Private corporations are regulated by laws of
obligations, or of being the subject of juridical general application on the subject.
relations (Roldan v. Philippine Veterans Board, G.R.
No. L-11973, June 30, 1959). Partnerships and associations for private interest or
purpose are governed by the provisions of this Code
THE FOLLOWING ARE JURIDICAL concerning partnerships (CIVIL CODE, Art. 46).
PERSONS:
1. State and its political subdivisions (Public RIGHTS OF JURIDICAL PERSONS
Corporations); 1. To acquire and possess property of all kinds;
2. To incur obligations; and
NOTE: For a local government unit, the 3. To bring civil or criminal actions (1 PARAS,supra
corporate existence shall commence upon the at 241).
election and qualification of its chief executive
and a majority of the members of its sanggunian,
unless some other time is fixed therefor by the
law or ordinance creating it (LOCAL CITIZENSHIP AND
GOVERNMENT CODE, Sec. 14).
DOMICILE
2. Corporations for public interest (Quasi – Public
Corporations) – governed either by the
(ARTS. 48)
Corporation Code or their special charters
passed by the legislature;
CITIZENSHIP
For quasi-public corporations, their personality
begins as soon as they have been constituted It is the status of being a citizen, or of owing
according to law. allegiance to a state for the privilege of being under
its protection (Id. at 264).
3. Corporations, partnerships and associations for
NOTE: Article IV of the 1987 Philippine Constitution
private interest.
enumerates the following citizens of the Philippines:
1. Those who are citizens of the Philippines at the
time of the adoption of this Constitution;
2. Those whose fathers or mothers are citizens of RESIDENCE IN CIVIL LAW VS.
the Philippines; RESIDENCE IN POLITICAL LAW
3. Those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon The term residence may mean one thing in civil law
reaching the age of majority; and and quite another thing in political law.
4. Those who are naturalized in accordance with
What stands clear is that insofar as the Civil Code
law.
is concerned — affecting the rights and obligations
of husband and wife — the term residence should
COMMON MODES OF ACQUIRING only be interpreted to mean "actual residence."
CITIZENSHIP (Romualdez-Marcos v. COMELEC, G.R. No.
1. By Birth 119976, September 18, 1995).
a. Jus sanguinis – citizenship by blood,
wherever he may be born; In election cases, the Court treats domicile and
b. Jus soli – citizenship is determined by place residence as synonymous terms. Thus, the term
of birth; and ‘residence’ as used in the election law is
synonymous with ‘domicile,’ which imports not only
2. By Naturalization an intention to reside in a fixed place but also
– artificial means (judicial or administrative) by personal presence in that place, coupled with
which a state adopts an alien and gives him conduct indicative of such intention.’ ‘Domicile’
imprint and endowment of a citizen of that denotes a fixed permanent residence to which when
country (ALBANO, supra at 183). absent for business or pleasure, or for like reasons,
one intends to return (Romualdez v. Regional Trial
Court, G.R. No. 104960, September 14, 1993).
DOMICILE
For the exercise of civil rights and the fulfillment of
ELEMENTS OF DOMICILE: (PI)
civil obligations, the domicile of natural persons is
the place of their habitual residence (CIVIL CODE, 1. Physical Presence in a fixed place;
Art. 50). 2. Intention to remain permanently in said place
(animus manendi) (Romualdez-Marcos v.
COMELEC, G.R. No. 119976, September 18,
RESIDENCE V. DOMICILE 1995).
RESIDENCE DOMICILE
KINDS OF DOMICILE
As to Definition
1. Domicile of origin
Indicates a place of Denotes a fixed – That acquired by every person at birth. It is
abode, whether permanent residence, usually the place where thechild's parents reside
permanent or which when absent, one and continues until the same is abandoned by
temporary. has the intention of acquisition of new domicile (Coquilla v.
returning. Commission on Elections, G.R. No. 151914,
July 31, 2002);
As to Number
2. Domicile of choice
There can be several There can only be one – That which is chosen by a person as his more
or less permanent home; that to which,
places of residence. place of domicile.
whenever he is absent, he intends to return (In
re: Uytengsu v. Republic, G.R. No. L-6379,
As to Intention to Remain September 29, 1954); and
No length of residence It is residence coupled NOTE: Three basic rules on domicile of choice:
without intention of with intention to remain a. A man must have a domicile somewhere;
remaining will constitute for an unlimited time. b. Domicile, once established, remains until a
domicile. new one is validly acquired; and
(Romualdez-Marcos v. COMELEC, G.R. No. c. A man can have but one domicile at any
119976, September 18, 1995). given time (Ugdoracion v. COMELEC, G.R.
No. 179851, April 18, 2008).

3. Domicile by operation of law

(Constructive Domicile)
– That which the law attributes to a person
independently of his own intention or actual
 residence, ordinarily resulting from legal clauses. Here, the Supreme Court upheld the
domestic relations, as that of the wife arising constitutionality of the law, stating that R.A. 9262
from marriage, or the relationof a parent and a does not violate the guaranty of equal protection of
child (Ugdoracion v. COMELEC, G.R. No. the laws. It rests on substantial distinctions. The
179851, April 18, 2008). unequal power relationship between women and
men; the fact that women are more likely than men
REQUIREMENTS FOR THE to be victims of violence; and the widespread gender
ACQUISITION OF NEW DOMICILE bias and prejudice against women all make for real
differences justifying the classification under the law
1. Bodily presence in a new locality (Garcia v. Drilon, G.R No. 179276).
– actual removal or actual change of domicile;

2. Intention to remain therein (animus manendi);

VIOLENCE AGAINST WOMEN AND
and THEIR CHILDREN (VAWC)
It refers to any act or a series of acts committed by
3. Intention to abandon the old domicile (animus any person against the following, within or without
non revertendi) (Romualdez v. RTC, Br. 7, the family abode, which result in or is likely to result
Tacloban City, G.R. No. 104960, September14, in physical, sexual, psychological harm or suffering,
1993; Poe v. COMELEC, G.R. No. 221697, April or economic abuse including threats of such acts,
5, 2016). battery, assault, coercion, harassment or arbitrary
deprivation of liberty (R.A. No. 9262, Sec. 3(a)):(W-
RULES IN DETERMINING THE WFRCom-C)
DOMICILE OF JURIDICAL PERSONS:
1. A Woman -
1. Place of Incorporation (Fixed by the law creating a. Who is his Wife;
or recognizing them); b. Who is his Former wife;
2. Place where their legal representation is c. With whom the person has or hada sexual
established or where they exercise their or dating Relationship;
principal functions (CIVIL CODE, Art. 51). d. With whom he has a Commonchild; or
If the corporation has a head office and branch 2. Her Child whether legitimate or
offices, the domicile is the location of the headoffice illegitimate.
(1 PARAS, supra at 366).
WHO ARE LIABLE
1. Husband;
RIGHTS AND 2. Former Husband;
OBLIGATIONS OF
COUPLES IN INTIMATE 3. Any person with whom the woman has
or had a sexual or dating relationship;
RELATIONSHIPS a. Dating Relationship
– a situation wherein the parties live as
(REP. ACT NO. 9262) husband and wife without the benefit of
marriage or are romantically involved over
time and on a continuing basis during the
course of the relationship (R.A. No. 9262,
THE ANTI-VIOLENCE AGAINST WOMEN Sec. 3(e)).
AND THEIR CHILDREN ACT (MARCH 27,
2004) NOTE: A casual acquaintance or ordinary
socialization between two individuals in a
Not Violative of Equal Protection Clause business or social context is not a dating
Rosalie Jaype-Garcia, determined to separate from relationship.
her husband but fearing he would take her children
from her and deprive her of financial support, filed b. Sexual Relations
for herself and her children a Temporary Protection – a single sexual act which may or may
Order against her husband Jesus C. Garcia not result in the bearing of a common child
pursuant to the Anti-Violence Against Women and (R.A. No. 9262, Sec. 3(f)).
Children Act (R.A. No. 9262). Petitioner Jesus C.
Garcia raised the constitutionality of R.A. No. 9262 NOTE: There is no qualification as to the
for being violative of the equal protection and due sex of the partner in the use of “any person”.
 Hence, it is possible for a woman in a and/or visitation of common children.
relationship with another woman to be
charged of violating VAWC Law. 4. Economic Abuse
– acts that make or attempt to make a woman
4. Any person with whom the woman has a financially dependent which includes, but is not
common child; or limited to:

5. Any person committing the acts or a. Withdrawal of financial support or

series of acts of violence against her preventing the victim from engaging in any
child, whether legitimate or illegitimate. legitimate profession, occupation, business
Children – those below eighteen (18) years of or activity, except in cases wherein the other
age or older but are incapable of taking care of spouse/partner objectson valid, serious and
themselves as defined under Republic Act No. moral grounds as defined in Article 73 of the
7610, including the biological children of the Family Code;
victim or other children in her care. b. Deprivation or threat of deprivation of
financial resources and the right to the use
and enjoyment of the conjugal, community
KINDS OF VIOLENCE UNDER VAWC or property owned in common;
1. Physical violence c. Destroying household property;
– acts that include bodily or physical harm; d. Controlling the victim's own money or
properties or solely controlling the conjugal
2. Sexual Violence money or properties (R.A. No. 9262, Sec.
– act which is sexual in nature, committed 3(a)).
against a woman or her child, including but not
limited to: ACTS OF VIOLENCE AGAINST WOMEN
AND THEIR CHILDREN (R.A. NO. 9262,
a. Rape, sexual harassment, acts of
lasciviousness, treating a woman or her
SEC. 5)
child as a sex object, making demeaning 1. Causing physical harm to the woman or her
and sexually suggestive remarks, physically child;
attacking the sexual parts of the victim's
body, forcing her/him to watch obscene 2. Threatening to cause the woman or her child
publications and indecent shows or forcing physical harm;
the woman or her child to do indecent acts
and/or make films thereof, forcing the wife 3. Attempting to cause the woman or her child
and mistress/lover to live in the conjugal physical harm;
home or sleep together in the same room
with the abuser; 4. Placing the woman or her child in fear of
b. Acts causing or attempting to cause the imminent physical harm;
victim to engage in any sexual activity by
force, threat of force, physical or other harm 5. Attempting to compel or compelling the woman
or threat of physical or other harm or or her child to engage in conduct which the
coercion; woman or her child has the right to desist from
c. Prostituting the woman or her child. or desist from conduct which the woman or her
child has the right to engage in, or attempting to
3. Psychological Violence restrict or restricting the woman's or her child's
– acts or omissions causing or likely to cause freedom of movement or conduct by force or
mental or emotional suffering of the victim (i.e. threat of force, physical or other harm or threat
intimidation, harassment, stalking, damage to of physical or other harm, or intimidation
property, public ridicule or humiliation, repeated directed against the woman or child. This shall
verbal abuse and marital infidelity), including: include, but shall not be limited to, the following
acts committed with the purpose or effect of
a. Causing or allowing the victim to witness the controlling or restricting the woman's or her
physical, sexual or psychologicalabuse of a child's movement or conduct:
member of the family to which the victim a. Threatening to deprive or actually depriving
belongs, the woman or her child of custody to her/his
b. Causing or allowing the victim to witness family;
pornography in any form or to witness b. Depriving or threatening to deprive the
abusive injury to pets or to unlawful or woman or her children of financial support
unwanted deprivation of the right tocustody legally due her or her family, or deliberately
 providing the woman's children insufficient
financial support; 9. Causing mental or emotional anguish, public
ridicule or humiliation to the woman or her child,
NOTE: In one case where a foreign national who including, but not limited to, repeated verbal and
refused to support his minor child and claimed emotional abuse, and denial of financial support
he was not obliged to support said son or custody of minor children of access to the
altogether under Art. 195 of the Civil Code as he woman's child/children.
was not a Filipino citizen, the Supreme Court
held that the respondent foreign national was ELEMENTS OF PSYCHOLOGICAL
criminally liable under Sec. 5(e)(2) of R.A. No. VIOLENCE UNDER SECTION 5(I)
9262 for his unjustified failure to support his
minor child when the respondent foreign 1. The offended party is a woman and/or her child
national failedto allege and prove the foreign law or children;
applicable to him, thus allowing the doctrine of 2. The woman is either the wife or former wife of
processual presumption to govern. The Court the offender, or is a woman with whom the
reiterated its earlier ruling where it stated that offender has or had a sexual or dating
when the foreign law, judgment or contract is relationship, or is a woman with whom such
contrary to a sound and established public policy offender has a common child.As for the woman's
of the forum, the said foreign law, judgment or child or children, they may be legitimate or
order shall not be applied (See Del Socorro v. illegitimate, or living within or without the family
Van Wilsem, G.R. no. 193707, December 10, abode;
2014). 3. The offender causes on the womanand/or child
mental or emotional anguish; and
c. Depriving or threatening to deprive the 4. The anguish is caused through acts of public
woman or her child of a legal right; and ridicule or humiliation, repeated verbal and
d. Preventing the woman in engaging in any emotional abuse, denial of financial support or
legitimate profession, occupation, business custody of minor children or access to the
or activity or controlling the victim's own children or similar such acts or omissions.
money or properties, or solely controlling the
conjugal or common money, or properties; To establish psychological violence as an element of
the crime, it is necessary to show proof of
6. Inflicting or threatening to inflict physical harm commission of any of the actsenumerated in Section
on oneself for the purpose of controlling her 5 (i) or similar suchacts. And to establish mental or
actions or decisions; emotional anguish, it is necessary to present the
testimony of the victim as such experiences are
7. Causing or attempting to cause the woman or personal to this party.
her child to engage in any sexual activity which
NOTE: Neither the physical injuries suffered by the
does not constitute rape, by force or threat of
victim nor the actual physical violence done by the
force, physical harm, or through intimidation
perpetrator are necessary to prove the essential
directed against the woman or her child or her
elements of the crime as defined in Section 5 (i) of
immediate family;
RA 9262. The only exception is, as in the case at
bar, when the physical violence done by the accused
8. Engaging in purposeful, knowing, or reckless
is alleged to have caused the mental and emotional
conduct, personally or through another that
suffering; in which case, such acts of physical
alarms or causes substantial emotional or
violence must be proven. (Dinamling v. People, G.R.
psychological distress to the woman or her child.
No. 199522, June 22, 2015).
This shall include, but shall not be limited to, the
following acts:
a. Stalking or following the woman or her child NOT MARITAL INFIDELITY PER SE
in public or private places; What R.A. No. 9262 criminalizes is not the marital
b. Peering in the window or lingering outside infidelity per se but the psychological violence
the residence of the woman or her child; causing mental or emotional suffering on the wife.
c. Entering or remaining in the dwelling or on Otherwise stated, it is the violenceinflicted under the
the property of the woman or her child said circumstances that the law seeks to outlaw.
against her/his will; Marital infidelity as citedin the law is only one of the
d. Destroying the property and personal various acts by which psychological violence may be
belongings or inflicting harm to animals or committed (AAA v. BBB, G.R. No. 212448,January
pets of the woman or her child; and 11, 2018).
e. Engaging in any form of harassment or
violence;
PRESCRIPTIVE PERIOD 3. Tranquil, Loving or Non-Violent Phase
1. Acts falling under Sections 5(a) to 5(f) – – this begins when the acute battering incident
within 20 years. ends. The couple experience profound relief.
2. Acts falling under Sections 5(g) to 5(i) – The batterer may show a tender and nurturing
within10 years (R.A. No. 9262, Sec. 24). behavior towards his partner. He knows that he
has been viciously cruel and tries to make up for
it, begging for her forgiveness and promising
PUBLIC CRIME never to beat her again. On the other hand, the
Violence against women and their children shall be battered woman also tries to convince herself
considered a public offense which may be that the battery will never happen again; that her
prosecuted upon the filing of a complaint by any partner will change for the better; and that this
citizen having personal knowledge of the "good, gentle and caring man" is the real person
circumstances involving the commission of the crime whom she loves (People v. Genosa, G.R. No.
(R.A. No. 9262, Sec. 24). 135981, January 15, 2004).

COOLING-OFF PERIOD DOES NOT NOTE: People v. Genosa was decided prior
APPLY to the enactment of R.A. No. 9262.
In cases of legal separation, where violence as
specified in R.A. 9262 is alleged, Art. 58 of the Victim-survivors who are found by courts to be
Family Code on the 6 months cooling-off period shall suffering from BWS do not incur any criminal and
not apply. The court shall proceed on the main case civil liability notwithstanding absence of any of the
and other incidents of the case as soon as possible. elements for justifying circumstances under the
The hearing on any application for a protection order Revised Penal Code. The courts shall be assisted by
filed by the petitioner must be conducted within the expert psychiatrists/psychologists (R.A. No. 9262,
mandatory period specified (R.A. No. 9262, Sec. Sec. 26).
19).
PROTECTION ORDER
BATTERED WOMAN SYNDROME AS A A protection order is an order issued for the purpose
DEFENSE IN CRIMINAL AND CIVIL of preventing further acts of violence against a
woman or her child specified in Section 5 of this Act
CASES AGAINST VICTIMS-SURVIVORS and granting other necessary relief.
Battered Woman Syndrome is a scientifically
defined pattern of psychological and behavioral PURPOSE: Safeguarding the victim from further
symptoms found in women living in battering harm, minimizing any disruption in the victim's daily
relationships as a result of cumulative abuse (R.A. life, and facilitating the opportunity and ability of the
No. 9262, Sec. 3(c)). victim to independently regain control over her life.
The provisions of the protection order shall be
BWS CHARACTERIZED BY A CYCLE OF enforced by law enforcement agencies (R.A. No.
VIOLENCE: 9262, Sec. 8).
1. Tension-building Phase
– where minor battering occurs, by verbal or KINDS OF PROTECTION ORDERS
slight physical abuse or another form of hostile 1. Barangay Protection Order (BPO)
behavior; The woman usually tries to pacify the – issued by the Punong Barangay and effective
batterer through a show of kind, nurturing for 15 days (Sec. 14);
behavior; or by simply staying out of his way.
What actuallyhappens is that she allows herself 2. Temporary Protection Order (TPO)
to be abused in ways that, to her, are – issued by the court and effective for 30 days,
comparatively minor. All she wants is to prevent but may be extended or renewed for a period of
the escalation of the violence exhibited by the 30 days at each particular time until final
batterer. judgment (Sec. 15 and 16).

2. Acute Battering Incident 3. Permanent Protection Order (PPO)

– characterized by brutality, destructiveness – issued by the court and effective until revoked
and, sometimes, death. It is unpredictable, and by the court upon application of the person in
such incidents are often very savage and out of whose favor it was issued (Sec. 16).
control, such that innocent bystanders or
intervenors are likely to get hurt. NOTE: Issuance of a BPO or pendency of an
application for BPO shall not preclude application
or granting of a TPO or PPO (R.A. No. 9262, Sec.
8).
 personal effects, regardless of ownership, and
WHO MAY FILE PETITION FOR directing the appropriate law enforcementofficer
PROTECTION ORDERS to accompany the petitioner to the residence of
the parties to ensure that the petitioner is safely
1. Offended party;
restored to the possession of the automobile
2. Parents or guardians of offended party;
and other essential personal effects, or to
3. Ascendants, descendants, or collateral relatives
supervise the petitioner's or respondent's
within the fourth civil degree of consanguinity or
removal of personal belongings
affinity;
(f) Granting a temporary or permanent custody of a
4. Officers or social workers of the DSWD or social
child/children to the petitioner;
workers of LGUs;
(g) Directing the respondent to provide support to
5. Police officers, preferably those in charge of
the woman and/or her child if entitled to legal
women and children’s desks; support. Notwithstanding other laws to the
6. Punong Barangay or Barangay Kagawad;
contrary, the court shall order an appropriate
7. Lawyer, counselor, therapist, or healthcare
percentage of the income or salary of the
provider of petitioner; or
respondent to be withheld regularly by the
8. At least two (2) concerned responsible citizens
respondent's employer for the same to be
of the city or municipality where the violence
automatically remitted directly to the woman.
against women and their children occurred and
Failure to remit and/or withhold or any delay in
who has personal knowledge of the offense
the remittance of support to the woman and/or
committed (R.A. No. 9262, Sec. 9).
her child without justifiable cause shall render
the respondent or his employer liable for indirect
VENUE contempt of court;
Original and exclusive jurisdiction lies with the RTC (h) Prohibition of the respondent from any use or
designated as a Family Court. In its absence, the possession of any firearm or deadly weapon and
case shall be filed in the Regional Trial Court where order him to surrender the same to the court for
the crime or any of its elements was committed at appropriate disposition by the court, including
the option of the complainant (R.A. No. 9262, Sec. revocation of license and disqualification to
7). apply for any license to use or possess a firearm.
If the offender is a law enforcement agent, the
RELIEFS OFFERED BY PROTECTION court shall order the offender to surrender his
ORDERS firearm and shall direct the appropriate authority
to investigate on the offender and take
(a) Prohibition of the respondent from threatening to
appropriate action on the matter;
commit or committing, personally or through
(i) Restitution for actual damages caused by the
another, any of the acts mentioned in Section5
violence inflicted, including, but not limited to,
of this Act;
property damage, medical expenses, childcare
(b) Prohibition of the respondent from harassing,
expenses and loss of income;
annoying, telephoning, contacting or otherwise
(j) Directing the DSWD or any appropriate agency
communicating with the petitioner, directly or
to provide petitioner temporary shelter and other
indirectly;
social services that the petitionermay need; and
(c) Removal and exclusion of the respondent from
(k) Provision of such other forms of relief as the
the residence of the petitioner, regardless of
court deems necessary to protect and provide
ownership of the residence, either temporarily
for the safety of the petitioner and any
for the purpose of protecting the petitioner, or
designated family or household member,
permanently where no property rights are
provided petitioner and any designated family or
violated, and, if respondent must remove
household member consents to such relief (R.A.
personal effects from the residence, the court
No. 9262, Sec. 8).
shall direct a law enforcement agent to
accompany the respondent to the residence,
RIGHTS OF VICTIMS UNDER VAWC
remain there until respondent has gathered his
(CIL-PADME)
things and escort respondent from the residence
(d) Directing the respondent to stay away from 1. To have Custody of children;
petitioner and any designated family or Children below 7 years old or older but with
household member at a distance specified by mental or physical disabilities are automatically
the court, and to stay away from the residence, given to the mother, with right to support,
school, place of employment, or any specified unless the court finds compelling reasons to
place frequented by the petitioner and any order otherwise (R.A. No. 9262, Sec. 28).
designated family or household member;
(e) Directing lawful possession and use by A victim of Battered Woman Syndrome shall not
petitioner of an automobile and other essential be disqualified from having custody of her
 children. In no case shall custody of minor programs and livelihood assistance. The DOH
children be given to perpetrator of a woman shall provide medical assistance to victims (R.A.
suffering from BWS (R.A. No. 9262, Sec. 28). No. 9262, Sec. 40).

2. To be Informed of their rights, remedies 8. Exemption from payment of docket fees

available and procedures, and privileges and other expenses;
for indigent litigants; a. If the victim is indigent; or
Prosecutors and court personnel should b. If there is an immediate necessity due to
communicate with the victim in a language imminent danger or threat of danger to act
understood by the woman or her child. (R.A. No. on an application for a protection order,
9262, Sec. 29).
The court shall accept the application without
3. Entitlement to Leave; payment of the filing fee and other fees and of
Victims are entitled to take a paid Leave of transcript of stenographic notes (R.A. No. 9262, Sec.
Absence up to 10 days, in addition to their paid 39).
leaves under the Labor Code and Civil Service
Rules and Regulations extendible when the
necessity arises as specified in the protection
order. (R.A. No. 9262, Sec. 43). FAMILY CODE
4. To Privacy and Confidentiality;
All records pertaining to cases of violence Executive Order No. 209 otherwise known as Family
against women and their children including Code of the Philippines took effect on August 3,
those in the barangay shall be confidential and 1988.
all public officers and employees and public or
private clinics and hospitals shall respect the
right to privacy of the victim. Whoever publishes
or causes to be published, in any format, the MARRIAGE
name, address, telephone number, school,
business address, employer, or other identifying (ARTS. 1-25)
information of a victim or an immediate family
member, without the latter's consent, shall be
liable to the contempt power of the court (R.A.
MARRIAGE
No. 9262, Sec. 44).
A special contract of permanent union between a
5. Additional rights (R.A. No. 9262, Sec. 35) man and a woman entered into in accordance with
Additional Rights of Victims (RD-LSFI) law for the establishment of conjugal and family life
a. To be treated with Respect and Dignity; (FAMILY CODE, Art. 1).
b. To avail of Legal assistance from PAO or
any public legal assistance office; In Republic v. Nolasco, G.R. No. 94053, March 17,
c. To be entitled to Support services from 1993, the Supreme Court stressed the strong need
DSWD and LGUs; to protect “…the basic social institutions of marriage
d. To be entitled to all legal remedies and and the family in the preservation of which the State
support provided for under the Family has the strongest interest”; the public policy here
Code; and involved is of the most fundamental kind.
e. To be Informed of their rights and services
available to them including their right to In Article II, Section 12 of the Constitution, there is
apply for a protection order (R.A. No. 9262, set forth the following basic state policy: “The State
Sec. 35). recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous
6. Entitled to Damages (actual, social institution”. The same sentiment has been
compensatory, moral and exemplary) expressed in the Family Code of the Philippines in
(R.A. No. 9262, Sec. 36); Art. 149: ‘The family, being the foundation of the
nation, is a basic social institution which public policy
cherishes and protects. Consequently, family
7. Mandatory programs and services for
relations are governed by law and no custom,
victims; and practice or agreement destructiveof the family shall
The DSWD, and LGUs shall provide the victims be recognized or given effect (Republic v. Nolasco,
temporary shelters, provide counseling, psycho- G.R. No. 94053, March 17, 1993).
social services and/or, recovery, rehabilitation
Marriage shall not be a reason to disqualify a MARRIAGE V.
female employee from work ORDINARY CONTRACT
Where a company’s policy disqualified from work
any woman worker who contracts marriage, the MARRIAGE ORDINARY
Supreme Court invalidated such policy as it notonly CONTRACT
runs afoul of the constitutional provision on equal
protection but also on the fundamental policy of the As to Parties
State toward marriage (Philippine Telegraph and
Contracting parties must Two or more
Telephone Company v. NLRC, G.R. No. 118978,
only be two persons – parties regardless of
May 23, 1997).
one man and one gender.
woman.
Absence of Real Intention to Establish a Life
Together is Insufficient to Nullify the Marriage As to Duration
In Republic v. Albios, G.R. No. 198780,October
16, 2013, the Supreme Court said that, “the Permanent contract. Parties can fix a period
possibility that the parties in a marriage mighthave for its efficacy to be
no real intention to establish a life together is, ineffective after a few
however, insufficient to nullify a marriage freely years.
entered into in accordance with law. There is no
law that declares a marriage void if it is entered into As to Actions for Breach
for purposes other than what the Constitution or law
declares, such as the acquisition of foreign Breach of obligations of Breach of ordinary
citizenship”. husband and wife does contracts gives rise to
not give rise to an action anaction for damages.
NOTE: Contracting parties must be of different sex. for damages. The law
The first article of the Family Code explicitly provides provides penal and civil
that marriage should be between a man and a sanctions such as
woman (STA.MARIA, supra at 113). prosecution for adultery
or concubinage and
Effect of Sex Change proceedings for legal
A person who had a biological sex change from male separation, action for
to female through gender re-assignment surgery support, etc.
and sought the amendment of his birth certificate to
reflect the change in sex as a preliminary step to get As to Termination
married to his partner remains to be a male. The
Can be dissolved only Can be dissolved by
Supreme Court ruledthat sex determined visually by
by death or annulment, mutual agreement and
looking at the genitals of a baby at the time of birth
not by mutual by other legal causes.
is immutable and that there is no law legally
agreement.
recognizing gender sex re-assignment (Silverio v.
Republic, G.R. No. 174689, October 19, 2007). As to Kind
However, if a person was found out to have Special contract. Merely a contract.
Congenital Adrenal Hyperplasia which is a
condition where the person afflicted has both male As to Nature
and female characteristics and organs and where
through expert evidence, it was shown that the Both a contract and an Merely a contract.
person, though genetically female, secreted male inviolable social
hormones and not female hormones, the Supreme institution.
Court considered the person as an “intersex
individual” and granted the preference of the As to Governing Law
person to be considered as a male person, allowing
Governed by law Governed by law on
the correction of the entry in his birth certificate from
marriage contracts
female to male and the change of his name from
Jennifer to Jeff (Republic v. Cagandahan, G.R. No. As to Stipulation by the Parties
166676,September 12, 2008).
Not subject to Generally subject to
stipulations except in stipulations
property relations
 MARRIAGE ORDINARY ESSENTIAL REQUISITES OF
CONTRACT MARRIAGE: (LC)
1. Legal capacity of the contracting parties, who
As to Legal Capacity must be a male and a female; Eighteen (18) years
old or above; and not under any impediment
Personal legal capacity Minors may contract mentioned in Arts. 37 and 38 (FAMILY CODE,
is required. through their parents or Art. 5); and
guardians or in some 2. Consent freely given in the presence of a
cases by themselves. solemnizing officer (FAMILY CODE, Art. 2).
(1 PARAS, supra at 334).
NOTE: Consent is different from motive. A freely
RIGHT TO PRIVACY PRESERVED given consent requires that the contracting parties
willingly and deliberately enter into the marriage.
The intimacies between husband and wife do not
Motives, such as acquiring foreign citizenship
justify any one of them in breaking the drawers and
(Republic v. Albios, G.R. No. 198780, October 16,
cabinets of the other and in ransacking them for any
2013) or out of reverence for the other spouse's
telltale evidence of marital infidelity. A person, by
parents (Republic v. Romero II, G.R. Nos. 209180
contracting marriage, does not shed his/her integrity
& 209253, February 24, 2016), are immaterial for
or his right to privacy as an individual and the
the determination of the validity of marriage.
constitutional protection is ever available to him or to
her (Zulueta v. CA, G.R. No. 107383, February 20,
1996). FORMAL REQUISITES OF MARRIAGE:
(ALM)
Marriage is an inviolable social institution. In 1. Authority of the solemnizing officer;
marriage, the parties assume new relations to each 2. Valid Marriage License; and
other and the State touching nearly everyaspect of 3. Marriage ceremony where the contracting
life and death. In a real sense, there are three parties parties appear before the solemnizing officer
to every civil marriage: two willing spouses and an and personally declare that they take each other
approving State (Manuel v. People, G.R. No. as husband and wife in the presence of not less
165842, November 29, 2005). than 2 witnesses of legal age (FAMILY CODE,
Art. 3).
The State is a party at interest to the marriage
together with the husband and wife. Therelationship EFFECTS OF NONCOMPLIANCE WITH
is one in which the State is deeply concerned, and THE REQUISITES
over which the State exercises a jealous and
exclusive dominion (RABUYA, supra at167).
(FAMILY CODE, ART. 4)
ESSENTIAL FORMAL
MARRIAGE IS GOVERNED BY LAW AND Void ab initio
CANNOT BE SUBJECT TO (e.g., Essential: Marriage of a minor;
Absence
STIPULATIONS Formal: Marriage with expired license)
GENERAL RULE: The law declares that the nature,
consequences, and incidents of marriage are to be Voidable
governed by law and cannot be subject to (e.g., consent
stipulations (FAMILY CODE, Art. 1). obtained through
Defect force and
EXCEPTION: Marriage settlements may fix the intimidation;
property relations of the spouses during the (FAMILY CODE,
marriage (Id.). Arts. 45 and 46)
Valid, but the
But even this freedom “to fix the property relations person
during the marriage” is not absolute as the same responsible for
must be exercised “within the limits provided by this the irregularity
Code” (RABUYA, supra at 167). shall be civilly,
administratively,
and criminally
liable. If the
Irregularity
irregularity was
caused by the civil
registrar, he shall
 ESSENTIAL FORMAL fraudulent for the purposes of immigration, is not
void ab initio and continues to be valid and
also be subsisting (Republic v. Albios, G.R. No. 198780,
administratively October 16, 2013).
liable.
COMMON LAW MARRIAGE
(Example of
A non-ceremonial or informal marriage by
irregularity:
agreement, entered into by a man and a woman
1. No witnesses having capacity to marry, ordinarily without
of legal age; compliance with such statutory formalities as those
2. Only one pertaining to marriage licenses. Common law
witness of marriages are not recognized in the Philippines
legal age; (STA.MARIA, supra at 127).
3. Witnesses but
not of legal FORMAL REQUISITES OF MARRIAGE:
age during the
marriage A. AUTHORITY OF SOLEMNIZING
ceremony OFFICER
(STA.MARIA,
supra at 128); It is not the presence of the solemnizing officer
or which constitutes the formal requirement but the
4. Issuance of presence of the solemnizing officer’s authority at the
marriage time of the solemnization of the marriage.
license despite
absence of PERSONS WHO MAY SOLEMNIZE MARRIAGE:
publication (PICC-CM)
prior to the a. Priest, rabbi, imam or minister of any church or
completion of religious sect;
the 10-day i. Duly authorized by his church or religious
period for sect;
publication ii. Registered with the office of the civil
(Alcantara v. registrar general;
Alcantara, iii. Acting within the limits of the written
G.R. No. authority granted; and
167746, iv. At least 1 of the parties belongs to the
August 28, solemnizing officer’s church or religious sect
2007). (FAMILY CODE, Art. 7).

(STA.MARIA, supra at 126). A priest who is commissioned and allowed by

his local ordinary to marry the faithful, is
NOTE: When either or both of the spouses is/are authorized to do so only within the area of the
over 18 but below 21 years old, failure to obtain diocese or place allowed by his Bishop (Navarro
parental consent, will render the marriage voidable v. Domagtoy, A.M. No. MTJ-96-1088, July 19,
(FAMILY CODE, Art. 14). 1996).

b. Incumbent member of the judiciary within the

MARRIAGE IN JEST IS VOID FOR LACK court’s jurisdiction (FAMILY CODE, Art.7);
OF CONSENT
A pretended marriage, legal in form but entered into An appellate court Justice or a Justice of
as a joke, with no real intention of entering into the Supreme Court has jurisdiction over the entire
actual marriage status, and with a clear Philippines to solemnize marriages, regardless of
understanding that the parties would not be bound. the venue, as long as the requisites of the law are
The ceremony is not followed by any conduct complied with. However, judges who are appointed
indicating a purpose to enter into such a relation. to specific jurisdictions, may officiate in weddings
Marriages in jest are void ab initio, not for vitiated, only within said areas and not beyond. Where a
defective, or unintelligent consent, but for a judge solemnizes a marriage outside his court's
complete absence of consent (1 TOLENTINO, supra jurisdiction, there is a resultant irregularity in the
at 231). formal requisite laid down in Article 3, which while it
may not affect the validity of the marriage, may
But a marriage entered into solely for the purpose of subject the officiating official to administrative liability
acquiring American Citizenship, therefor sham or (Navarro v. Domagtoy, A.M. No. MTJ-96-1088, July
19, 1996). It is however believed that this is a non- Republic of the Philippines abroad;
binding obiter dictum as the Supreme Court declared i. The marriage must be between Filipino
that “in as much as respondent judge’s jurisdiction Citizens;
covers the municipalities of Sta Monica and Burgos, ii. Only said officials have the authority to
he was not clothed with authority to solemnized a solemnize marriages abroad;
marriage in the Municipality of Dapa, Surigao Del iii. These officials must also perform the duties
Norte.” (See similar ruling in Keuppers v. Judge of an LCR (i.e., issuance of marriage
Murica, AM No. MTJ-15-1860, April 3, 2018). license) (FAMILY CODE, Arts. 7 and 10).

NOTE: The jurisdiction of the members of the The solemnities established by Philippine laws
Supreme Court, the Court of Appeals, the shall be observed in their execution (CIVIL
Sandiganbayan, and the Court of Tax Appeals to CODE, Art. 17).
solemnize marriages is the entire country (SEMPIO
– DIY, Handbook on the Family Code of the f. Municipal and city Mayors (R.A. No. 7160
Philippines (1995), p. 12) [hereinafter SEMPIO – otherwise known as Local Government Code of
DIY]. 1991, Secs. 444(b)(1)(xviii) - 445).

c. Ship Captains or airplane chiefs; NOTE: An “Acting Mayor” or a “Vice Mayor Acting as
i. The marriage must be in articulo mortis Mayor” may also solemnize marriages (People v.
(one of the parties is at the point of death); Bustamante, citing Laxamana v. Baltazar, G.R. No.
ii. The marriage must be between 11598, January 27, 1959)(See also Sec 445(a)(4) of
passengers or crew members; the Local Government Code).
iii. The ship must be at sea or the plane must
be in flight; including stopovers at ports of GENERAL RULE: Marriages solemnized by any
call (FAMILY CODE, Arts. 7 and 31). person not legally authorized to perform marriages
are void (FAMILY CODE, Art. 35, par. 2).
NOTE: Such marriages can be solemnized
during stopovers at ports of call, wherein the EXCEPTION: Marriages that were contracted with
voyage is not yet terminated and includes either or both parties believing in goodfaith that the
instances when there are transit passengers solemnizing officer had the legal authority to do so
which the others affirmed (Minutes of the 147th (FAMILY CODE, Art. 35, par. 2).
joint Civil Code and Family Law committees held
on July 19, 1986, page 10). AUTHORIZED VENUES OF MARRIAGE
GENERAL RULE: Must be solemnized publicly,and
d. Commander of a military unit, in theabsence of not elsewhere, in the:
chaplain; a. Chambers of the judge or in open court;
i. He or she must be a militarycommander of Article 8 of the Family Code requires that
a unit; marriage by a judge should only be in his office
or courtroom (Keuppers v. Judge Murica, AM
NOTE: Unit refers to a battalion under the No. MTJ-15-1860, April 3, 2018).
present table of organization and not a mere
company (MINUTES OF THE CIVIL CODE Article 8 of the Family Code clearly states that a
REVISION, p. 4). marriage can be held outside the judge's
chambers or courtroom only in the following
ii. He or she must be a commissionedofficer; instances:
1) At the point of death;
NOTE: Rank should start from 2nd 2) In remote places in accordance with Article
Lieutenant, ensign, or above (STA. MARIA, 29; or
supra at 142). 3) Upon the request of both parties in writing in
a sworn statement to this effect (Keuppers
iii. A chaplain must be assigned to suchunit; v. Judge Murcia, AM No. MTJ-15-1860,
iv. Such chaplain is absent at the time ofthe April 3,2018).
marriage;
v. Marriage must be in articulo mortis;and b. Church, chapel or temple; or
vi. The contracting parties, whether members c. Office of consul–general, consul or vice–
of the armed forces or civilians, must be consul (FAMILY CODE, Art. 8).
within the zone of military operation
(FAMILY CODE, Arts. 7 and 32). EXCEPTIONS: (HAR)
a. Marriage at a House or place designated by the
e. Consul generals, consuls or vice–consuls of the parties in a sworn statement to that effect, with
 the written request of both parties to the enable such party to appear personally
solemnizing officer; before the LCR; and
b. Marriage in Articulo mortis; and ii. That he took the necessary steps to
c. Marriage in Remote places (FAMILY CODE, ascertain the ages and relationship of
Art. 8; STA.MARIA, supra at 146). the contracting parties and the absence
of legal impediment to the marriage
NOTE: This provision is directory and non- (FAMILY CODE, Art. 29).
compliance with the requirement that the marriage
be solemnized publicly inspecific places will only be b. In cases of marriage between a man and a
an irregularity that will not affect the validity of the woman living together as husband and wifefor at
marriage. least 5 years without legal impediment to marry
each other, the solemnizing officer must state
B. VALID MARRIAGE LICENSE under oath that he ascertained the qualifications
Issued by the Local Civil Registrar (LCR) of the city of the contracting parties and found no legal
or municipality where either of the contracting party impediment to the marriage (FAMILY CODE,
habitually resides (FAMILY CODE, Art. 9). Art. 34).

GENERAL RULE: The LCR, even if he finds an PARENTAL CONSENT V. PARENTAL

impediment in the impending marriage, must ADVICE
nevertheless issue the marriage license (FAMILY
PARENTAL CONSENT PARENTAL ADVICE
CODE, Art. 18).
As to Definition
EXCEPTIONS:
a. Where he is judicially restrained fromissuing the The consent given by The advice given by
marriage license as ordered otherwise by a the father, mother, the parents or
competent court at his own instance or that of surviving parent, guardian of any
any interested party (FAMILY CODE, Art. 18). guardian, or persons contracting party
b. Where the law clearly provides that, as to the having legal charge of between ages of 21
foreigner, the certificate of legal capacity is a them, in the order to 25 upon the
necessary requisite before a marriage license mentioned, to his or her intended marriage
can be obtained by him or her (STA.MARIA, child or ward, who is at (FAMILY CODE, Art.
supra at 157). least 18 years old and 15).
below 21 years of age,
A marriage license is required in order to notify before obtaining a While it is not an
the public that two persons are about to be marriage license essential nor a formal
united in matrimony and that anyone who is (STA.MARIA, supra at requisite, it is a vehicle
aware or has the knowledge of any impediment 150). to induce further and
to the union of the two shall make it known to more mature
the local civil registrar (Niñal v. Bayadog, G.R. deliberation over the
No. 133778, March 14, 2000). decision to get
married (Minutes of
DUTY OF THE SOLEMNIZING OFFICER the 185th Meeting of
The solemnizing officer is not duty bound to the Civil Code and
investigate whether the marriage license was Family Law
regularly issued. He must only determine if it was committees, June 27,
issued by a competent official (Alcantara v. 1987, supra at 6).
Alcantara, G.R. No. 167746, August 28, 2007).
As to Effect of Absence
DUTIES OF THE SOLEMNIZING OFFICER WHEN
MARRIAGE LICENSE NOT REQUIRED Absence of parental Absence of parental
a. In cases of marriage in articulo mortis and consent renders the advice does not affect
marriage in remote places, the solemnizing marriage voidable the validity of the
officer must: (FAMILY CODE, Art. 45). marriage
i. State in an affidavit executed beforethe (STA.MARIA, supra at
LCR or any person authorized to 153).
administer oaths that the marriage was
performed in articulo mortis or that the However, the
residence of either party, specifying the marriage license shall
barrio or barangay, is so located that not be issued until
there is no means of transportation to after three months
 with respect to their legal capacity to contract
PARENTAL CONSENT PARENTAL ADVICE
marriage. Without this certification of legal capacity,
following the the LCR will not issue the marriage license
completion of the (STA.MARIA, supra at 157).
publication of the NOTE: If without the certificate of legal capacity, the
application therefor marriage license was nevertheless issued, the
(FAMILY CODE, Art. marriage celebrated on the basis of such marriage
15). license will still be considered valid as this is merely
an irregularity in complying with a formal
requirement of the law in procuring a marriage
Marriage Counseling license (Garcia v. Recio, G.R. No. 138322, October
This is a new requirement for the issuance of a 2, 2001; FAMILY CODE, Art. 4).
marriage license under the Family Code in cases
where the parties need parental consent or parental The capacity of a foreigner to get marriedin the
advice. This is to enable the parties to find out if they Philippines is governed by hisnational law, a foreign
are compatible before they get married. The lack of law, thus, government offices and courts cannot take
the certificate of marriage counseling has the same judicial notice of said law (SEMPIO – DIY, supra at
effect as the lack of parental advice (SEMPIO-DIY, 26).
supra at 21; FAMILY CODE, Art. 16).
Stateless Persons or Refugees
RULES ON THE VALIDITY OF LICENSE Stateless persons or refugees from othercountries
a. The license shall be valid in any part of the shall submit an affidavit stating circumstances to
Philippines; show capacity to contract marriage before a
b. Valid for a period of one hundred (120) days marriage license can be obtained (FAMILY CODE,
from the date of issue; Art. 21, par. 2).
c. It shall be deemed automatically cancelled upon
the expiration of said period if the contracting EXCEPTIONS TO THE LICENSE REQUIREMENT:
parties have not made use of it; and (ARMZ-5)
d. Said expiry date shall be stamped in bold 1. Marriage in Articulo mortis between passengers
characters on the face of every license issued or crew members may be solemnized by a ship
(FAMILY CODE, Art. 20). captain or by an airplane pilot not only while the
ship is at sea or the plane is in flight, but also
NOTE: Even if the license is obtained elsewhere, during stopovers at ports of call (FAMILY CODE,
not in the local civil registrar of the city or municipality Art. 31);
where either contracting party habitually resides, the
validity of the marriage is not affected since this is a 2. In Remote place
mere irregularity in the issuance of the said license – residence of either party is so located that
(RABUYA, supra at 218). there is no means of transportation to enable
them to personally appear before the LCR
To be considered void on the ground of absence of (FAMILY CODE Art. 28);
a marriage license, the law requires that the absence
of such marriage license must be apparent on the 3. Among Muslims or members of ethnic cultural
marriage contract, or at the very least, supported by communities solemnized in accordance with
a certification from the local civil registrar that no their customs, rites, or practices (FAMILY
such marriage license was issued to the parties CODE, Art. 33);
(Alcantara v. Alcantara, G.R. No. 167746, August
28, 2007; Kho v. Republic, G.R. No. 187462, June 4. Marriage in articulo mortis between persons
1, 2016). within the Zone of military operation, whether
members of the armed forces or civilians may be
Solemnization of a Marriage Involving a Foreign solemnized by a military commander of a unit,
Contracting Party in the Philippines who is a commissioned officer (FAMILY CODE,
When either or both parties are foreign citizens, they Art. 32);
must first submit a certificate of legal capacity to
marry issued by their diplomatic/consular officials 5. Marriage between a man and a woman who
before marriage license can be obtained (FAMILY have lived together as husband and wife for at
CODE, Art. 21). least five (5) years and without legal impediment
to marry each other(FAMILY CODE, Art. 34).
A certificate of legal capacity is necessary because
the Philippines, insofar as marriage is concerned,
adheres to the national law of the contracting parties
 Requisites: (5-NPAS) The falsity of an affidavit of marital cohabitation,
a. The man and woman must have been living where the parties have in truth fallen short of the
as husband and wife for at least 5 years minimum five-year requirement, effectively renders
before the marriage; the marriage void ab initio for lack of a marriage
b. The parties must have No legal impediment license (Republic v. Dayot, G.R. No. 175581, March
to marry each other; 28, 2008).
c. The fact of absence of legal impediment
between the parties must be Present at the Marriage Certificate
time of marriage; Best documentary evidence of the existence of a
d. The parties must execute an Affidavit before marriage (Tenebro v. CA, G.R. No. 150758,
any person authorized by law to administer February 18, 2004; FAMILY CODE, Art. 22).
oaths stating that they have lived together
for at least 5 years (and are without legal NOTE: The mere fact that no record of the marriage
impediment to marry each other); and exists in the registry of marriage does not invalidate
e. The solemnizing officer must execute a said marriage, as long as in the celebration thereof,
Sworn statement that he had all requisites for its validity are present (People v.
ascertained the qualifications of the Borromeo, G.R. No. 61873, October 31, 1984).
parties and that he had found no legal
Photostat Copy of Marriage Certificate
impediment to their marriage (Borja-
A mere photostat copy of a marriage certificate is a
Manzano v. Sanchez, A.M. No. MTJ– worthless piece of paper (Vda. De Chua v. CA, G.R.
00–1329, March 8, 2001). No. 116835, March 5, 1998) but if such photostat
NOTE: The solemnizing officer is duty bound to
copy emanated from the Office of the Local Civil
ascertain the qualifications of the contracting parties Registrar and duly certified by the LCR as an
(STA. MARIA, supra at 121). authentic copy of the records in his office, such
certified photostat copy is admissible as
COMPUTATION OF 5–YEAR COHABITATION evidence (STA.MARIA, supra at 160).
PERIOD
The 5–year period should be computed on thebasis NOTE: If the photostat copies, though not certified
of cohabitation as husband and wifewhere the only by the Office of the Local Civil Registrar, are
missing factor is the marriagecontract to validate presented in court without objection from the
the union (e.g. if both cohabited at the age of 17, opposing parties and consequently admitted by the
counting startswhen parties reach 18 years old as court, the said photostat copies are deemed
suggested in the case of OCA vs Judge Necessario, sufficient proof of the facts contained therein and
A.M. MTJ07-1691, April 2, 2013). therefore canbe proof of marriage (Sy v. Court of
Appeals, G.R. No. 127263, April 12, 2000).
This 5–year period should be the years immediately
before the day of the marriage and it should be a Testimonial Evidence
period of cohabitation characterized by: Testimony of one of the parties to the marriage,
witnesses or solemnizing officer is admissibleto
1. Exclusivity prove the fact of marriage (People v.Velasco, G.R.
– no legal impediment was present at any time Nos. 135231-33, February 28,
within the 5 years; and 2001).

2. Continuity Cohabitation as Insufficient Proof

– that is unbroken (Republic v. Dayot, G.R. No. Mere cohabitation is not a direct proof of marriage,
175581, March 28, 2008; Niñal v. Bayadog, G.R. and it must be proved by proper documents or by
No. 133778, March 14, 2000). oral testimony in case they have been lost (STA.
MARIA, supra at 164, citing US v. Evangelista, G.R.
NOTE: The five-year common-law cohabitation No. 9841,January 9, 1915).
period under Article 76 means a five-year period
computed back from the date of celebration of PRESUMPTION OF MARRIAGE
marriage, and refers to a periodof legal union had A man and a woman deporting themselves as
it not been for the absenceof a marriage. It covers husband and wife are presumed to have entered into
the years immediately preceding the day of the a lawful contract of marriage (RULES OF COURT,
marriage, characterized by exclusivity — meaning RULE 131, Sec. 3 (aa)).
no third party was involved at any time within the five
years — and continuity that is unbroken (Republic v. Semper praesumitur pro matrimonio — Always
Dayot, G.R. No. 175581, March28, 2008). presume marriage. However, this presumption may
be contradicted by a party and overcome by other
evidence (Uy v. Sps. Lacsamana, G.R. No. 206220, MARRIAGE LICENSE V.
August 19, 2015). MARRIAGE CONTRACT
REASON: Marriage in this jurisdiction is not only a MARRIAGE MARRIAGE
civil contract, but it is a new relation, an institution in LICENSE CONTRACT
the maintenance of which the public is deeply
interested. Every intendment of the law leans As to Necessity
towards legalizing matrimony.
Formal requisite. Not essential for the
Persons dwelling together in apparent matrimony validity of the marriage.
are presumed, in the absence of counter-
As to Effect of Absence
presumption or evidence special to the case, to be
in fact married. The reason is that such is the Absence renders Best evidence to prove
common order of society, and if the parties were not marriage void ab initio existence (not validity)
what they thus holdthemselves out as being, they except in the cases of marriage.
would be living inthe constant violation of decency provided under Arts.
and of law. Once a man and a woman have lived as 27 to 34.
husband and wife and such relationship is not
denied nor contradicted, the presumption of their As to Issuing Authority
being married must be admitted as a fact (Adong v.
Cheong Seng Gee, G.R. No. L- 18081, March 3, Issued by the Issued by the person
1922; Alavado v. City Government of Tacloban, G.R. LCR (FAMILY CODE, solemnizing the
No. L-49084,October 10, 1985; Vda. de Avenido v. Art. 19). marriage (FAMILY
Avenido, G.R. No. 173540, January 22, 2014). CODE, Art. 23).

Effect of Presumption of Marriage As to Time Issued

Once the presumption of marriage arises, other
evidence may be presented in support thereof. The Issued before the Issued after the
evidence need not necessarily or directly establish marriage. marriage.
the marriage but must at least be enough to
strengthen the presumption of marriage. Every C. MARRIAGE CEREMONY
intendment of law leans towardlegitimizing marriage
No prescribed form or religious rite for solemnization
(Delgado vda. de De la Rosa v. Heirs of Marciana
of marriage is required (FAMILY CODE, Art. 6).
vda. de Damian, G.R. No. 155733, January 27,
2006).
It is not sufficient that the parties enter into an
agreement “that they take each other as husband
Competent Evidence to Prove Marriage
and wife” or that consent be given. Article 2(2) of the
The Supreme Court ruled in Trinidad v. CA, G.R.
Family Code requires that such consent must be
No. 118904, April 20, 1998, that when the given “in the presence of the solemnizing officer”
question of whether a marriage has been (RABUYA, supra at 186-187).
contracted arises inlitigation, said marriage may
be proven by relevant evidence. To prove the Absence of Two Witnesses
fact of marriage, the following would constitute The absence of 2 witnesses of legal age is merely
competent evidence: an irregularity but the party responsible for the
1. The testimony of a witness to the matrimony; irregularity shall be civilly, criminally, and
2. The couple’s public and open cohabitation as administratively liable (FAMILY CODE, Art. 4).
husband and wife after the alleged wedlock;
3. The birth and the baptismal certificates of Marriages by Proxy
children born during such union; and a. If it was solemnized in the Philippines, the
4. The mention of such nuptial in subsequent marriage is VOID because physical appearance
documents (Trinidad v. CA, supra). is required under Art. 6;
5. A solemn statement in the will of a deceased as b. If performed abroad, whether betweenFilipinos
to the fact of his marriage is also admissible or foreigners or mixed, the controlling article is
proof of such marriage (Son Cui v. Guepangco Art. 26 of the Family Code.(1 PARAS, supra at
y Lim, G.R. No. 6163, March 14, 1912). 347).
NOTE: The mere private act of signing a marriage before the requirement of recording under
contract bears no semblance to a valid marriage and Article 52 (FAMILY CODE, Art.35 (6));
thus, needs no judicial declaration of nullity. Such act 6. When any party is Psychologically incapacitated
alone, without more, cannot be deemed toconstitute when the marriage was celebrated (FAMILY
an ostensibly valid marriage for which petitioner CODE, Art. 36); and
might be held liable for bigamy unless he first 7. Marriage is void by reason of Public policy
secures a judicial declaration of nullity before he (FAMILY CODE, Art. 38).
contracts a subsequent marriage (Morigo y Cacho v.
People, G.R. No. 145226, February 6, 2004). NOTE: Common-law marriages obtained abroad by
Filipinos are not valid in the Philippines
(STA.MARIA, supra at 172).

MARRIAGE COURT CANNOT TAKE JUDICIAL

NOTICE OF FOREIGN LAW
CELEBRATED OUTSIDE It is necessary to prove the foreign law as a question
THE PHILIPPINES of fact and then to prove the celebration ofmarriage
(ART. 26) pursuant thereto by
(STA.MARIA, supra at 177).
convincing evidence

Philippine courts cannot take judicial notice of

foreign laws. Like any other facts, they must be
VALIDITY OF MARRIAGE
alleged and proved. Australian marital laws are not
GENERAL RULE: Marriages contracted outside the among those matters that judges are supposed to
Philippines in accordance with the laws in force in know by reason of their judicial function. The power
the country where they were solemnized are valid of judicial notice must be exercised with caution, and
in this country (FAMILY CODE, Art. 26, Par. 1). every reasonable doubt upon the subject should be
resolved in the negative (Garcia v. Recio , G.R. No.
In case a Filipino contracts a foreign marriage which 138322, October 2, 2001).
is null and void in the place where it was solemnized,
the same shall also be null and void in the
Philippines even if such was valid if celebrated under SAME SEX MARRIAGE OF FILIPINOS
Philippine laws. ABROAD
It is invalid. The Family Code mandates that only a
NOTE: The rule on the validity of foreign marriages male and a female can marry each other. This is,
under Art. 26 applies only to Filipinos (SEMPIO- therefore, a public policy matter which cannot be
DIY, supra at 29). rendered ineffective by any foreign law(STA.MARIA,
supra at 176-177; FAMILY CODE, Art. 2(1); CIVIL
FOREIGN MARRIAGES, EVEN IF VALID CODE, Arts.15 and 17).
WHERE SOLEMNIZED, SHALL NOT BE
VALID IN THE PHILIPPINES IF: DIVORCE
GENERAL RULE: Divorce is not allowed in the
(BIMBAP2)
Philippines (Cang v. Court of Appeals, G.R. No.
1. Contracted by a national who is Below 18 years 105308, September 25, 1998).
of age (no legal capacity to contract marriage)
(FAMILY CODE, Art. 35 (1)); EXCEPTIONS:
1. Between 2 aliens – if valid in their national laws
REASON: The Philippines adheres to the rule even if marriage was celebrated in the
that the marrying capacity of the contracting Philippines; and
parties is governed by the national law of that 2. Between a Filipino and an alien – if:
party, which is the Philippine Law (STA.MARIA, a. There is a valid marriage celebrated
supra at 169). between a Filipino citizen and a foreigner;
and
2. Incestuous marriages (FAMILY CODE, Art. 37); b. A valid divorce according to the national law
3. Contracted through Mistake of one party as to of the foreigner is obtained abroad by the
the identity of the other (FAMILY CODE, Art. 35 alien spouse capacitating him or her to
(5)); remarry (FAMILY CODE, Art. 26, Par. 2 as
4. Bigamous or polygamous except as provided in amended by E.O. No. 227 (1987)); and
Art. 41 (FAMILY CODE, Art. 35 (4)); c. At the time of the divorce, one is a Filipino
5. Contracted following the Annulment or and the other is a Foreigner.
declaration of nullity of a previous marriage but
A FOREIGN DIVORCE SECURED BY A NON-APPLICABILITY OF A.M. NO. 02-11-
FILIPINO AGAINST A FOREIGN SPOUSE 10-SC
IS RECOGNIZED IN THE PHILIPPINES The provisions of A.M. No. 02-11-10-SC (Proposed
A Filipino citizen has the capacity to remarry under Rule on Declaration of Absolute Nullity of Void
Philippine law after initiating a divorce proceeding Marriages and Annulment of Voidable
abroad and obtaining a favorable judgment against Marriages) do not apply in a case involving
his or her alien spouse who is capacitated to remarry recognition of a foreign decree of divorce. A decree
(Republic v. Manalo, G.R. No. 221029, April 24, of absolute divorce procured abroad is different from
2018). annulment as defined by our family laws. A.M. No.
02-11-10-SC only covers void and voidable
NOTE: The purpose of Paragraph 2 of Article marriages that are specifically cited and enumerated
26 is to avoid the absurd situation where the in the Family Code of the Philippines (Republic v.
Cote, G.R. No. 212860, March 14, 2018).
Filipino spouse remains married to the alien
spouse who, after a foreign divorce decree that
PROOF OF DIVORCE
is effective in the country where it was
Party pleading it must prove divorce as a fact and
rendered, is no longer married to the Filipino
demonstrate its conformity to the foreign law
spouse. The provision is a corrective measure allowing it, which must be proved as courts cannot
to address an anomaly where the Filipino take judicial notice of foreign laws. If a valid divorce
spouse is tied to the marriage while the foreign decree has been obtained abroad, there is no more
spouse is free to marry under the laws of his or need to file an action to nullify the marriage (Felicitas
her country (Republic v. Manalo, G.R. No. Amor-Catalan v. CA, G.R. No. 167109, February 6,
221029, April 24, 2018). 2007).

Whether the Filipino spouse initiated the foreign RULES OF COURT WILL GOVERN
divorce proceeding or not, a favorable decree RECOGNITION OF FOREIGN
dissolving the marriage bond and capacitating his JUDGMENT DECLARING A MARRIAGE
or her alien spouse to remarry will have the same VOID
result: the Filipino spouse will effectively be without Philippine courts will only determine:
a husband or wife. A Filipino who initiated a foreign 1. Whether the foreign judgment is inconsistent
divorce proceeding is in the same place and in "like with an overriding public policy in the Philippines
circumstance as a Filipino who is at the receiving and;
end of an alien-initiated proceeding. Therefore, the 2. Whether any alleging party is able to prove an
subject provision should not make a distinction. In extrinsic ground to repel the foreign judgment,
both instances, it is extended as a means to i.e., want of jurisdiction, want of notice to the
recognize the residual effect of the foreign divorce party,collusion, fraud, or clear mistake of law or
decree on Filipinos whose marital ties to their alien fact (Fujiki v. Marinay, G.R. No. 196049, June
spouses are severed by operation of the latter's 26, 2013).
national law (Republic v. Manalo, G.R. No. 221029,
April 24, 2018). CAPACITY OF THE FOREIGNER
SPOUSE TO REMARRY MUST BE
A foreign divorce may be recognized in this
jurisdiction as long as it is validly obtained, STATED IN THE DECREE OF DIVORCE
regardless of who among the spouses initiated the There must be a showing that the divorce decree
divorce proceedings (Racho v. Tanaka, G.R. No. gave the foreigner spouse legal capacity to remarry
199515, June 25, 2018). because in some jurisdictions, remarriage may be
limited or prohibited (Garcia v. Recio, G.R. No.
Foreign divorce decrees obtained to nullify 138322, October 2, 2001).
marriages between a Filipino and an alien citizen
may already be recognized in this jurisdiction, ARTICLE 26 (2) PROVIDES A REMEDY
regardless of who between the spouses initiatedthe ONLY TO FILIPINOS BUT NOT TO
divorce; provided, of course, that the party FOREIGNERS
petitioning for the recognition of such foreign divorce
The legislative intent is for the benefit of the Filipino
decree — presumably the Filipino citizen — must
spouse, by clarifying his or her marital status,
prove the divorce as a fact and demonstrate its
settling the doubts created by the divorce decree.
conformity to the foreign law allowing it
Essentially, Art. 26 (2) of the Family Code provided
(Morisono v. Morisono, G.R. No. 226013, July 2,
the Filipino spouse a substantive right to have his or
2018).
her marriage to the alien spouse considered as
dissolved, capacitating him or her to remarry
(Corpuz v. Sto. Tomas, G.R. No. 186571, August 11, NOTE: This means that the nullity of a marriage can
2010). be asserted even if it is not the main or principal
issue of a case. No previous judicial declaration of
nullity is required by law with respect to any other
matter where the issue of the voidness of a marriage
VOID MARRIAGES is pertinent or material, either directly or indirectly
(STA.MARIA, supra at 211).
(ART. 35)
EXCEPTIONS:
1. Art. 35 (2): Either of the contracting parties is in
good faith in believing that the solemnizing
VOID MARRIAGE officer has authority although he has none in
A void marriage is that which is not valid from its fact; and
inception (STA.MARIA, supra at 206). 2. Art. 41: A person whose spouse disappears for
4 consecutive years, or two years where there
A marriage that is void ab initio is considered as was danger of death, the present spouse may
having never to have taken place and cannot be validly marry again if he or she:
the source of rights. It can never be ratified (Niñal v. a. Has a well-founded belief that his or her
Bayadog, G.R. No. 133778, March 14, 2000). spouse is dead;
b. Procures a judicial declaration of
RTC HAS EXCLUSIVE JURISDICTION IN presumptive death; and
ALL ACTIONS INVOLVING THE c. At the time of the subsequent marriage
ceremony, is in good faith.
CONTRACT OF MARRIAGE
RTC has jurisdiction to rule on the validity of In these two cases, the good faith even of only one
marriage solemnized and celebrated by the Church of the contracting parties shall make the marriage
pursuant to the provision of the Family Code. valid. To be void, both of the contracting parties must
Although, marriage is considered a sacrament inthe be in bad faith (FAMILY CODE, Art. 44; STA.
Catholic Church, it has civil and legal consequences MARIA, supra at 210).
which are governed by the Family Code. As
petitioner correctly pointed out, the instant petition IMPRESCRIPTIBILITY OF ACTION FOR
only seeks to nullify the marriage contract between
the parties as postulated in the Family Code of the DECLARATION OF NULLITY
Philippines; and the declaration of nullity of the The action or defense for the declaration of absolute
parties' marriage in the religious and ecclesiastical nullity of a marriage shall not prescribe (FAMILY
aspect is another matter. Notably, the proceedings CODE, Art. 39, as amended by R.A. No. 8533).
for church annulment which is in accordance with the
norms of Canon Law is not binding upon the State ONLY THE SPOUSES CAN FILE
as the couple is still considered married to each PETITION FOR DECLARATION OF
other in the eyes of the civil law. Thus, the principle NULLITY
of separation of the church and state finds no
Pursuant to A.M. No. 02-11-10-SC (SC Resolution
application in this case (Tilar v. Tilar, G.R. No.
which took effect on March 15, 2003), a petition for
214529, July 12, 2017).
declaration of absolute nullity of void marriage may
be filed solely by the husband or the wife. Thus,
KINDS OF VOID MARRIAGES (APICS):
compulsory or intestate heirs can question the
1. Absence of essential or formal requisites; validity of the marriage of the spouses, not in a
2. Either of the parties is proceeding for declaration of nullity, but upon the
Psychologically incapacitated; death of a spouse in a proceeding for the settlement
3. Incestuous marriages; and of the estate of the deceased spouse filed in the
4. Contrary to public policy;
regular courts (Enrico v. Heirs of Medinaceli, G.R.
5. Void Subsequent marriages No. 173614, September 28,
2007).
GENERAL RULE: Good faith and bad faith are
immaterial in determining whether or not a marriage EXCEPTION: Cases for nullity of marriage
is null and void. The party who knew that he or she solemnized PRIOR to the Family Code and actions
was entering a void marriage before its
commenced PRIOR to March 15, 2003 by persons
solemnization may be held liable for damages by the
other than the husband and wife (Carlos v.
other contracting party under Arts. 19, 20 and 21
Sandoval, G.R. No. 179922, December 16, 2008).
of the Civil Code.
DECLARATION OF NULLITY NOT A illegitimacy of a child, settlement of estate,
PREJUDICIAL QUESTION dissolution of property regime, or a criminal case
for that matter, the court may pass upon the validity
The pendency of the civil action for nullity of the first
of marriage even in a suit not directly instituted to
marriage does not pose a prejudicial question in a
question the same so long as it is essential to the
criminal case for concubinage (Beltran v. People,
determination of the case. (Niñal v. Bayadog, G.R.
G.R. No. 137567, June 20, 2000). By analogy, this
No. 133778, March 14, 2000).
ruling applies in a case for bigamy since both crimes
presuppose the subsistence of a marriage (Bobis v.
REASON: Parties to a marriage should not be
Bobis, G.R. No.138509, July 31,2000).
permitted to judge for themselves its nullity, only
competent courts having such authority. Prior tosuch
Respondent cannot be permitted to use his own
declaration of nullity, the validity of the first marriage
malfeasance to defeat the criminal action against
is beyond question (Montañez v. Cipriano,G.R. No.
him when it was respondent’s clear intent to obtain
181089, October 22, 2012).
a judicial declaration of nullity of his first marriage
and thereafter to invoke that very same judgment to
prevent his prosecution for bigamy. He cannot have GUILTY OF BIGAMY
his cake and eat it too. Otherwise, all that an Elements of Bigamy: (LDCE)
adventurous bigamist has to do is to disregard Art. 1. The offender has been Legally married.
40 of the Family Code, contract a subsequent 2. The marriage has not been legally Dissolved or
marriage and escape a bigamy charge by simply in case his or her spouse is absent, the absent
claiming that the first marriage is void and that the spouse could not yet be presumed dead
subsequent marriage is equally void for lack of a according to the Civil Code.
prior declaration of nullity of the first (Bobis v. Bobis, 3. The offender Contracts a second or subsequent
G.R. No.138509, July 31, 2000). marriage; and
4. The second or subsequent marriage has all the
ATTACKING A VOID MARRIAGE Essential requisites for validity (2 REYES, The
GENERAL RULE: A void marriage can be attacked Revised Penal Code (2012), p. 972).
collaterally (STA. MARIA, supra at 192).
GENERAL RULE: One who enters into a
NOTE: In a case for concubinage, the accused need subsequent marriage without first obtaining such
not present a final judgment declaring his marriage judicial declaration is guilty of bigamy. This principle
void, for he can adduce evidence in the criminal case applies even if the earlier union is characterized by
of the nullity of his marriage other than proofof a statute as “void” (Manuel v. People, G.R. No.
final judgment declaring his marriage void (Beltran 165842, November 29, 2005).
v. People, G.R. No. 137567, June 20, 2000).
The requirement for a declaration of absolute nullity
EXCEPTIONS: of a marriage is also for the protection of the spouse
Direct attack, not a collateral attack, on the nullity of who, believing that his or her marriage is illegal and
a marriage must first be undertaken when: void, marries again. With the judicial declaration of
1. A person in a void marriage wants to remarry;in the nullity of his or her marriage, the person who
such circumstance, he must first file a civil case marries again cannot be charged with bigamy. A
to obtain a judicial declaration of nullity of the judicial declaration of nullity is required before a valid
first marriage (FAMILY CODE, Art. 40); subsequent marriage can be contracted; or else,
2. If a donor desires to revoke a donation propter what transpires is a bigamous marriage,
nuptias (in consideration of the marriage) given reprehensible and immoral (Teves v. People, G.R.
to one or both the spouses on the ground that No.188775, August 24, 2011; Iwasawa v. Gangan,
the marriage is void (FAMILY CODE, Art. 50 in G.R. No. 204169, September 11, 2013).
relation to Arts. 43, par. 3 and 86, par. 1).
EXCEPTION: A judicial declaration of nullity is
JUDICIAL DECLARATION OF NULLITY not needed where no marriage ceremony at all
was performed by a duly authorized solemnizing
The absolute nullity of a previous marriage may be
officer, as where the parties merely signed a
invoked for purposes of remarriage on the basis
marriage contract on their own without the presence
solely of a final judgment declaring such previous
of the solemnizing officer (Morigo v. People, G.R.
marriage void (FAMILY CODE, Art. 40).
No. 145226, February 6, 2004).
NOTE: Other than for purposes of remarriage, no
judicial action is necessary to declare a marriage an (N.B. In Pulido v. People, G.R. No. 220149, July 27,
absolute nullity. For other purposes, such as but not 2021, the Supreme Court En Banc ruled that the
limited to determination of heirship, legitimacy or accused in a bigamy case can collaterally attack the
validity of a prior void marriage in the same criminal
proceedings for bigamy. No need to obtain a judicial reasonable efforts to locate the absent spouse and
declaration of absolute nullity in order to raise it as a that based on these efforts and inquiries, he/she
defense in a bigamy case.) believes that under the circumstances, the absent
spouse is already dead. It necessitates exertion of
Note: According to Bar Bulletin No. 15, S. 2020, this active effort, not a passive one (Republic v. Cantor,
ruling is not covered by the 2020/2021 Bar because G.R. No. 184621, December 10, 2013; Republic v.
the scope and cutoff of canonical jurisprudential Tampus, G.R. No. 214243, March 16, 2016).
doctrines shall be until September 30, 2020 only.
REASON: This is intended to protect the present
1. VOID MARRIAGES DUE TO spouse from criminal prosecution for bigamy under
ABSENCE OF ANY OF THE Art. 349 of the Revised Penal Code. However, if the
bigamous marriage was committed abroad, the
ESSENTIAL OR FORMAL guilty party cannot be criminally prosecuted for
REQUISITES (FAMILY CODE, ART. bigamy in the Philippines as our penal statutes are
35): (18-ALBI-53) territorial in nature (STA.MARIA, supra at 375).
a. Those contracted by any party below eighteen
(18) years of age even with the consent of If both spouses of the subsequent marriage acted in
parents or guardians; bad faith, said marriage shall be void ab initio and all
b. Those solemnized by any person not legally donations made by one in favor of the other are
Authorized to perform marriages unless such revoked by operation of law (FAMILY CODE, Art.
marriages were contracted with either or both 44).
parties believing in good faith that the
solemnizing officer had the legal authority to do Effect of Reappearance of Absent Spouse
so; The subsequent bigamous marriage under Art. 41 of
c. Those solemnized without License, except the Family Code remains valid despite
those covered by the preceding Chapter; reappearance of theabsentee spouse.
d. Those Bigamous or polygamous marriages
not failing under Article 41; Subsequent marriage is automatically terminated if
e. Those contracted through mistake of one the reappearance was recorded in a sworn
contracting party as to the Identity of the other; statement in the civil registry of the residence of the
and parties to the subsequent marriage at the instance
f. Those subsequent marriages that are void of any interested person with due notice to said
under Article 53 (FAMILY CODE, Art. 35). spouses, without prejudice to the fact of
reappearance being judicially determined in case
GENERAL RULE: A marriage contracted by any such fact is disputed (FAMILY CODE, Art.42).
person during the subsistence of a previous valid
marriage shall be null and void (FAMILY CODE, Art. The subsequent marriage still subsists in the
41; Gomez v. Lipana, G.R. No. L– 23214, June 30, following:
1970; Republic v. Narceda, a. If the first marriage has already been annulled
G.R. No. 182760, April 10, 2013). or has been declared a nullity (FAMILY CODE,
Art.42, par. 2);
EXCEPTION: Before the celebration of the b. If the sworn statement of the reappearanceis not
subsequent marriage, a declaration of presumptive recorded in the civil registry of the subsequent
death may be obtained after complying with the spouses' residence;
following requirements:(SAB) c. If there is no notice to the subsequent spouses;
a. Present spouse must file a Summaryproceeding or
for the declaration of the presumptive death of d. If the fact of reappearance is disputed in the
the absentee without prejudice to the latter’s proper courts of law, and no judgmentis yet
reappearance; rendered confirming such fact of reappearance
b. Absence of the other spouse must have been (Santos v. Santos, G.R. No. 187061, October 8,
for 4 consecutive years, or 2 years where there 2014).
was danger of death under circumstances laid
down in Art. 391 of the NCC; and NOTE: If the absentee reappears, but no step is
c. Well-founded Belief of the present spouse who taken to terminate the subsequent marriage either
wishes to remarry that absent spouse is already by affidavit or by court action, the absentee’s mere
dead (FAMILY CODE, Art. 41). reappearance even if made known to the spouses
in the subsequent marriage will not terminate such
NOTE: The well-founded belief in the absentee’s marriage (SSS v. Bailon, G.R. No. 165545, March
death requires the present spouse to prove that 24, 2006).
his/her belief was the result of diligent and
Declaration of presumptive death immediately downright incapacity or inability to assume and fulfill
executory the basic marital obligations, not a mere refusal,
By express provision, the judgment of the court in a neglect or difficulty, much less, ill will, on the part of
summary proceeding declaring presumptive death the errant spouse (Republic v. Romero II, G.R. Nos.
shall be immediately final and executory (FAMILY 209180 & 209253, February 24, 2016).
CODE, Art. 247). Therefore, since the judgment is
immediately final and executory, appeal is not an Requisites of Psychological Incapacity: (GAI)
available remedy. An aggrieved party may file a a. Gravity
petition for certiorari to question abuse of discretion – Must be grave/serious such that the party
amounting to lack of jurisdiction. Such petition would be incapable of carrying out the ordinary
should be filed in the Court of Appeals in accordance duties required in a marriage;
with the Doctrine of Hierarchy of Courts (Republic v. b. Juridical Antecedence
Tango, G.R. No. 161062, July 31, 2009). – Must be rooted in the history of the party
antedating the marriage, although the overt
2. PSYCHOLOGICAL INCAPACITY manifestations may emerge only after the
A malady that is so grave and permanent as to marriage; and
deprive one of awareness of the duties and
responsibilities of the matrimonial bond one is about c. Incurability
to assume (Del Rosario v. Del Rosario, G.R. No. – Must be incurable or, even if itwere otherwise,
222541, February 15, 2017). the cure would be beyond the means of the party
involved (Espina- Dan v. Dan, G.R. No. 209031,
Psychological incapacity must refer to the most April 16,2018).
serious cases of personality disorders clearly
demonstrative of an utter insensitivity or inability to The Court ruled that THERE IS psychological
give meaning and significance to the marriage incapacity in the following instances:
(Republic v. De Gracia, G.R. No. 171557, February a. A senseless, protracted, and constant refusal to
12, 2014). comply with the essential marital obligations by
one or both of the spouses although he, she, or
'Psychological incapacity,' as a ground to nullify a they are physically capable of performing such
marriage under Article 36 of the Family Code, should obligations (Chi Ming Tsoi v. CA, G.R. No.
refer to no less than a mental — not merely physical 119190, January16, 1997);
— incapacity that causes a party to be truly b. A person who is unable to distinguish between
incognitive of the basic marital covenants that fantasy and reality would be unable to
concomitantly must be assumed and discharged by comprehend the legal nature of the marital bond
the parties to the marriage which, as so expressed much less its psychic meaning and the
in Article 68 of the Family Code, among others, obligations attached to the marriage, including
include their mutual obligations to live together, parenting. One unable to adhere to reality
observe love, respect and fidelity and render help cannot be expected to adhere as well to any
and support. (Espina-Dan v. Dan, G.R. No. 209031, legal or emotional commitments (Antonio v.
April 16, 2018) Reyes, G.R. No. 155800, March 10, 2006);
c. A person who brings her children to her mahjong
Psychological incapacity is not a medical but a legal sessions exposed them to gambling that erode
concept. It refers to a personal condition that their moral fiber; hence, she is suffering from
prevents a spouse to comply with fundamental psychological incapacity (Kalaw v. Fernandez,
marital obligations only in relation to a specific G.R. No. 166357, January 14, 2015);
partner that may exist at the timeof the marriage d. A person with paranoid personality disorder,
but may have revealed through behavior more severe than borderline and narcissistic
subsequent to the ceremonies. It need not be a personality disorders, madehim distrustful and
mental or personality disorder. It need not be a prone to jealousy and paranoia so extreme and
permanent and incurable condition. Therefore, the severe that these caused him to poke a gun at
testimony of psychologist or psychiatrist is not petitioner's head, and acts of depravity,
mandatory in all cases. The totality of the evidence incapacitating him to fully comprehend and
must show clear and convincing evidence to cause assume the essential obligations of marriage
the declaration of nullity of marriage (Tan-Andal v. (Tani-De La Fuente v. De La Fuente, Jr., G.R.
Andal, G.R.No. 196359, May 11, 2021). No. 188400, March 8, 2017); and
e. Respondent Martin was diagnosed with
Article 36 of the Family Code must not be confused Narcissistic Personality Disorder, with
with a divorce law that cuts the marital bond at the tendencies toward sadism. This adversely
time the grounds for divorce manifest themselves; affected Martin in such a manner that he formed
rather, it must be limited to cases where there is a unrealistic values and standards on his own
 marriage and proposed unconventional sexual 8, 2018).
practices. (Republic v. Javier, G.R. No. 210518, i. Abandonment of the family does not
April 18, 2018). automatically justify a conclusion of
psychological incapacity under Article 36 of the
The Court ruled that THERE IS NO psychological Family Code (Matudan v. Republic, G.R. No.
incapacity in the following instances: 203284, November 14, 2016).
a. The spouses’ disagreement on money matters
are common and even normal occurrences Award of Moral Damages
between husbands and wives (Tongol v. Tongol, Petitioner is not entitled to moral damages based on
G.R. No. 157610, October 19, 2007); declaration of psychological incapacity because the
b. The spouses’ frequent squabbles and award of moral damages should be predicated, not
respondent’s refusal to sleep with petitioner and on the mere act of entering into the marriage, but on
be supportive to him; and their bickering and specific evidence that it was done deliberately and
arguments even before their marriage and with malice by a party who had knowledge of his or
respondent’s scandalous outbursts in public, at her disability and yet willfully concealed the same
most, show their immaturity, and immaturity (Buenaventura v. CA, G.R.No. 127358, March 31,
does not constitute psychological incapacity 2005).
(Navarro v. Cecilio-Navarro, G.R. No. 162049,
April 13, 2007); MOLINA DOCTRINE
c. The interpersonal problem with her co- workers Jurisprudential Guidelines: (PROBE-PIG)
does not suffice to support the conclusion that a. Incapacity must be Permanent or incurable;
she was psychologically incapacitated to enter
into a marital union as they are poles apart from b. Root cause of the psychological incapacitymust
their marital relationship. While both spring from be:
human relationship, their relatedness and i. Medically or clinically identified;
relevance to one another should be fully ii. Alleged in the complaint;
established for them to be compared or to serve 1.) Sufficiently proven by expert; and
as measures of comparison with one another 2.) Clearly explained in the decision
(Republic v. Encelan, G.R. No. 170022, January
9, 2013); c. Marital Obligations refer to Arts. 68–71, 220,
d. Sexual infidelity or perversion and abandonment 221 and 225 of the Family Code;
do not, by themselves, constitute grounds for
declaring a marriage void based on d. Plaintiff has Burden of proof;
psychological incapacity (Mallilin v.
Jamesolamin, G.R. No. 192718, February 18, e. Incapacity proven to be Existing at the timeof the
2015; see also Republic v. Tecag, G.R. No. celebration of marriage;
229272, November 19, 2018);
e. Emotional immaturity, irresponsibility, sexual f. Trial court must order the Prosecuting
promiscuity, or other behavioral disorders, by attorney or fiscal and the Solicitor General
themselves, are nottantamount to psychological to appear for the state;
incapacity (DelRosario v. Del Rosario, G.R. No.
222541, February 15, 2017); g. Interpretations of the National Appellate
f. Failings as husband and father are not Matrimonial Tribunal of the Catholic Church of
tantamount to psychological incapacity to the Philippines while not controlling should be
declare the marriage null and void. The intent of given great respect; and
the law has been to confine the meaning of
psychological incapacity tothe most serious h. Illness is Grave enough to bring about disability
cases of personality disorders (Garlet v. Garlet, to assume essential marital obligations
G.R. No. 193544; August 2, 2017); (Republic v. CA and Molina, G.R. No. 108763,
g. Mere showing of 'irreconcilable differences' and February 13, 1997).
'conflicting personalities' in no wise constitutes
psychological incapacity (Lontoc-Cruz v. Cruz, In ruling that the doctrine in Republic v. CA and
G.R. No. 201988,October 11, 2017); and Molina (1997) was inapplicable, the Court declared
h. Petitioner’s bare claim that respondent is a that cases of psychological incapacity should be
pathological gambler, is irresponsible, and is decided not on the basis of a priori assumptions,
unable to keep a job, does not necessarily predictions or generalizations but according to its
translate into unassailable proof that own facts. Courts should interpret the provision on a
respondent is psychologically incapacitated to case-to-case basis; guided by experience, the
perform the essential marital obligations findings of experts and researchers in psychological
(Singson v. Singson, G.R. No. 210766, January disciplines, and by decisions of church tribunals.
While it was not suggesting the abandonment of the condition." "The complete facts should allege the
Molina doctrine, it ruled that said doctrine has physical manifestations, if any, as are indicative of
become a strait-jacket, forcing all sizes to fitinto and psychological incapacity at the time of the
be bound by it, and in conveniently applying said celebration of the marriage" such that "If the totality
doctrine, has allowed diagnosed sociopaths, of evidence presented is enough to sustain a finding
schizophrenics, nymphomaniacs, narcissists and of psychological incapacity, then actual medical
the like, to continuously debase and pervert the examination of the person concerned need not be
sanctity of marriage (Edward Kenneth Ngo Te v. resorted to." (Espina-Dan v. Dan, G.R. No. 209031,
Rowena Ong Gutierrez Yu- Te, G.R. No. 161793, April 16, 2018).
February 13, 2009). While the Court has declared that there is no
requirement that the person to be declared
NOTE: There was no abandonment of the Molina psychologically incapacitated should be personally
Guidelines, rather Ngo Te simply suggested the examined by a physician, much less be subjected to
relaxation of its stringent requirements (RABUYA, psychological tests, this rule finds application only if
Civil Law Reviewer (2017), p. 88 [hereinafter the totality of evidence presented is enough to
RABUYA, Civil Law Reviewer]). sustain a finding of psychological incapacity
(Bakunawa III v. Bakunawa, G.R. No. 217993
Weight of Expert Opinion (Resolution),August 9, 2017).
By the very nature of cases involving the application
of Article 36, it is logical and understandable to give Personal Examination by Physician NotRequired
weight to the expert opinions furnished by for a Declaration of Psychological Incapacity
psychologists regarding the psychological There is no requirement that the person sought to be
temperament of parties in order to determine the root declared psychologically incapacitated should be
cause, juridical antecedence, gravity and incurability personally examined by a physician or psychologist
of the psychological incapacity. However, such as a condition sine qua non to arrive at such
opinions, while highly advisable, are not conditions declaration. It can be proven by independent means
sine qua non in granting petitions for declaration of that one is psychologically incapacitated; there is no
nullity of marriage. At best, courts must treat such reason why the same should not be credited
opinions as decisive but not indispensable evidence (Republic v. Tanyag-SanJose and San Jose, G.R.
in determining the merits of a given case. In fact, if No. 168328, February28, 2007).
the totality of evidence presented is enough to
sustain a finding of psychological incapacity, then However, "psychological incapacity" does not mean
actual medical or psychological examination of the to grasp "all such possible cases of psychoses."
person concerned need not be resorted to. The trial The ponencia, citing Santos v. Court of Appeals,
court, as in any other given case presented before it, reiterated that "psychological incapacity"
must always base its decision not solely on the deliberately pertains to "the most serious cases of
expert opinions furnished by the parties but also on personality disorders clearly demonstrative of an
the totality of evidence adduced in the course of the utter insensitivity or inability to give meaning and
proceedings (Mendoza v. Republic, G.R. No. significance to the marriage." (Castillo v. Republic,
157649, November 12, 2012). G.R. No. 214064, February 6, 2017).

Alcoholism, Abuse, and Jealousy The evidence need not necessarily come from the
Similarly, the husband’s alleged alcoholism, allegedly incapacitated spouse, but can come from
drunkenness, his habitual verbal and physical abuse persons intimately related to the spouses, i.e.
of the wife, failure to support the latter and her relatives and close friends, who could clearly testify
children, and unbearable jealousy, do not constitute on the allegedly incapacitated spouse's condition at
psychological incapacity (Republic v. Melgar, G.R. or about the time of the marriage (Bakunawa v.
No. 139676, March 31, 2006). Reyes Bakunawa, G.R. No. 217993, August 9,
2017).
Totality of Evidence
Psychological incapacity may be established by the While the Court has consistently followed the
totality of the evidence presented. The facts alleged parameters in Republic v. Molina, these guidelines
in the petition and the evidence presented, are not meant to straightjacket all petitions for
considered in totality, should be sufficient to declaration of nullity of marriage. The merits of each
convince the court of the psychological incapacity of case are determined on a case-to-case basis, as no
the party concerned (Republic v. Javier, G.R. No. case is on all fours with another (Republic v. Javier,
210518, April 18, 2018). G.R. No. 210518, April 18, 2018).

"What is important is the presence of evidence that

can adequately establish the party's psychological
Applicability of Res Judicata The following can now marry each other:
Final judgment denying a petition for nullity on the (LSG-CAC)
ground of psychological incapacity bars a a. Brother–in–Law and sister–in–law;
subsequent petition for declaration of nullity on the b. Stepbrother and stepsister;
ground of lack of marriage license (Mallion c. Guardian and ward;
v. Alcantara, G.R. No. 141528, October 31, 2006). d. Parties who have been Convicted of adultery or
concubinage; and
Burden of Proof e. Adopted and illegitimate child, parents and
In petitions for the declaration of nullity of marriage, relatives by consanguinity or affinity of the
the burden of proof to show the nullity of marriage adopter (SEMPIO-DIY, supra at 45).
lies with the plaintiff. Unless the evidence presented
clearly reveals a situation where the parties, or one Determination if Two Persons are Relativesup
of them, could not have validly entered into a to the 4th Civil Degree:
marriage by reason of a grave and serious a. Consider the nearest and immediate common
psychological illness existing at the time it was ascendant; and
celebrated, we are compelled to uphold the b. Count the number of degrees from one of them
indissolubility of the marital tie (Republic v. Galang, to the common ascendant and from the common
G.R. No. 168335, June 6, 2011). ascendant to the other one (STA.MARIA, supra
at 260).
Who may File Petition to Nullify Marriage onthe
Ground of Psychological Incapacity
Even the psychologically incapacitated can file the
action to declare the marriage void(SEMPIO – DIY,
supra at 47).

3. INCESTUOUS MARRIAGES,
WHETHER THE RELATIONSHIP IS
LEGITIMATE OR ILLEGITIMATE,
BETWEEN:
a. Ascendants & Descendants of any degree; and
b. Brothers & Sisters whether full or half-blood
(FAMILY CODE, Art. 37).
Thus, a person (X) is 2 degrees removed from his
4. THOSE CONTRARY TO PUBLIC brother/sister, 3 from his uncle/aunt, who is the
POLICY CONTRACTED BETWEEN: brother/sister of his father/mother, 4 from his
(COS-PAAS2A-K) cousin, and so forth (RABUYA, supra at345).
a. Collateral blood relatives whether legitimate or
illegitimate up to the 4th civil degree;
NOTE: Relationship by consanguinity is in itself
b. Step-parents & step children; not capable of dissolution. Hence, the mere fact
c. Parents-in-law & children-in-law; that a common ascendant, a grandfather for
d. Adopting parent & adopted child; example, died does not sever the blood
e. Adopted child & a legitimate child of the relationship of first cousins (STA.MARIA, supra
adopter; at 244).
f. Surviving spouse of the adopting parent &the
adopted child; Views on Termination of Marriage on the“Affinity
g. Surviving spouse of the adopted child & Prohibition”
adopter; a. Relationship by affinity is not terminated by the
h. Adopted children of the same adopter; and termination of the marriage whether there are
i. Parties wherein one, with the intention to marry children or not in the marriage.
the other, Killed the latter’s spouse, or his/her
spouse (FAMILY CODE, Art. 38). b. Relationship by affinity is dissolved if one of the
spouses dies and the spouses have no living
NOTE: There is no need for conviction in a criminal issues or children; it does not cease if there are
case of the guilty party. The fact of killing committed living issues or children of the marriage ‘in
by one of the parties to the marriage can be proved whose veins the blood of the parties are
in a civil case (STA.MARIA, supra at 254). commingled, since the relationship of affinity
was continued through the medium of the issue
of marriage (STA.MARIA, supra at 266-268).
c. “Continuing affinity view” VOID MARRIAGE V. VOIDABLE
The Philippines follows the continuing affinity MARRIAGE
view, which means that the death of one spouse
does not terminate the relationship by affinity VOID VOIDABLE
regardless of whether or not there are children
produced under the marriage (Intestate Estate As to Nature
of Vda. Carungcong v. People, G.R. No.
Always void. Valid until annulled
181409, February 11, 2010).
(STA. MARIA, supra at
NOTE: The Continuing affinity view in Intestate 291).
Estate of Vda. Carungcong v. People is As to Susceptibility for Convalidation
discussed in light of the language and spirit of
Article 332(1) of the Revised Penal Code. Incapable of being Can be convalidated by
convalidated or free cohabitation or
5. VOID SUBSEQUENT MARRIAGES ratified (VITUG, prescription (VITUG, supra
a. Without judicial declaration of nullity of previous supra at 273). at 283).
void marriage (FAMILY CODE, Art. 40)
As to Impugnation
b. Without judicial declaration of presumptive
death of absent spouse (FAMILY CODE, Art. Can be attacked Can only be attacked
41) directly or through a direct action filed
collaterally in an in court.
NOTE: No judicial proceeding to annul a action filed or by way
subsequent marriage contracted under Art. 41 of defense.
is necessary. Also, the termination of the
As to Impugnation After Death of Either Party
subsequent marriage by affidavit provided for
in Art. 42 does not preclude the filing of an Can still be Can no longer beimpugned
action in court to prove the reappearance of the impugned even after after death of one of the
absentee and obtain adeclaration of dissolution death of parties parties.
or termination of the subsequent marriage
(SSS v. Vda. De Ballon, G.R. No. 165545, As to Property Relations
March 24, 2006).
Co–ownership of Generally Conjugal
c. Where the absent spouse was presumed dead, properties through Partnership or Absolute
and both the present spouse and would–be joint actual Community.
spouse were in bad faith in contracting marriage contributions except
(FAMILY CODE, Art. 44); and void marriage under
Art. 40
d. Failure to comply with Art. 52 requiring the
partition and distribution of properties and As to Liquidation of Property
delivery of children’s presumptive legitimes
which should be recorded in the appropriate Properties are Properties are liquidated in
civil registry and registry of property after liquidated in accordance with the rules
obtaining judgment for declaration of nullity or accordance with the provided under the
annulment (FAMILYCODE, Art. 53). ordinary rules of co- chapters in the absolute
ownership except community of property and
NOTE: Failure to record in the civil registry and void marriage under the conjugal partnership of
registry of property the judgment ofannulment or Art. 40 gains.
of absolute nullity of the marriage, partition and
As to Prescription
distribution of the property of the spouses and
the delivery of the children’s presumptive Action for Action prescribes.
legitimes shall not affect third persons (FAMILY declaration of nullity
CODE,Arts. 52–53). does not prescribe.

As to Decree Issued

Decree of nullity. Decree of annulment.

(See Comparative Chart on Effects of Declaration
of Nullity, Annulment and Termination of Marriage
in Art. 41 and Legal Separation).
 Ponciano Almeda, G.R. No. 194189,
VOIDABLE MARRIAGES September 14,2017).

(ART. 45) The marriage may be ratified by the insaneperson,

after gaining sanity, by freely cohabitating with the
other as husband andwife (FAMILY CODE, Art. 45,
par. 2).
VOIDABLE MARRIAGES
A marriage is voidable if there is a defect in any of 3. Consent of either party obtained by
its essential requisites (legal capacity and consent). Fraudulent means as enumerated in Art.
It is considered valid and produces all its civil effects 46 of the Family Code; (NPSD)
until it is set aside by final judgment of a competent a. Non–disclosure of a previous conviction
court in an action for annulment (RABUYA, supra at by final judgment of the other party of a
448). crime involving moral turpitude;
b. Concealment by the wife of the fact that
RATIFICATION/CONFIRMATION at the time of the marriage, she was
Ratification or confirmation is the act by which a Pregnant by a man other than her
person, entitled to bring an action for annulment, husband;
with knowledge of the cause of annulment and after
it has ceased to exist, validates the contract either The marriage may be ratified by the
expressly or impliedly (4 TOLENTINO, injured party by freely cohabitating with
Commentaries and Jurisprudence on the Civil Code the guilty spouse as husband and wife
of the Philippines (1992), p. 600 [hereinafter 4 after gaining full knowledge of the facts
TOLENTINO]). constituting the fraud (FAMILY CODE,
Art. 45(3)).
GROUNDS FOR ANNULMENT OF
VOIDABLE MARRIAGES NOTE: Concealment must be in bad
NOTE: Grounds must exist at the time of faith. If the woman did not expressly
marriage inform the man of her pregnancy but
(AUFFIS): such physical condition was readily
apparent to the man, he cannot claim
1. Absence of consent to contract marriage lack of knowledge thereof (Buccat v.
from the parents, guardian or person Buccat, G.R. No. 47101, April 25,
1941).
exercising substitute parental authority
(in that order) over one or both of the c. Concealment of a Sexually
parties between 18 years old to 21 years transmissible disease, regardless of its
old; nature, existing at the time of the
marriage;
The marriage is ratified if the party whose parent
did not give consent, after reaching the age of NOTE: Nature or gravity of disease is
21 freely cohabits with the other and both lives irrelevant; it is enough that there was
together as husband and wife(FAMILY CODE, concealment at the time of the
Art. 45, par. 1). ceremony (RABUYA, supra at 458).
2. Unsound mind of either party;
d. Concealment of Drug addiction, habitual
The test is whether the party at the time of the alcoholism, homosexuality or
marriage was capable of understanding the lesbianism existing at the time of the
nature and consequences of the marriage (1 marriage.
TOLENTINO, supra at 289).
Fraud
The true test is whether the party concerned There is fraud when, through insidious
could intelligently consent; that is, that he knew words or machinations of one of the
what contract he was entering into (Hoadley v. contracting parties, the other is induced to
Hoadley, 244 N.Y. 424). enter into a contract which, without them, he
would not have agreed to (CIVIL CODE, Art.
Presumption: A person is presumed to be of 1338).
sound mind at any particular time and the
condition is presumed to exist, in the absence Enumeration Exclusive
of proof to the contrary (Almeda v. Heirs of The enumeration in Art. 46 is exclusive.
 Hence, misrepresentation as to character, The marriage may be ratified by the injured party
health, rank, fortune or chastity is not a by freely cohabiting with the guilty spouse as
ground for annulment (Anaya v. Palaroan, husband and wife after the disappearance or
G.R. No. L–27930, November 26, 1970). cessation of force, intimidation or undue
influence (FAMILY CODE, Art. 45, par. 4).
Mere non-cohabitation is also not a ground
for annulment of marriage (Villanueva v. CA, 5. Physical incapability of either party to
GR No. 132955, October 27, 2006). consummate the marriage with the
other, and such incapacity continues
Entering into a marriage for the sole purpose and appears to be incurable;
ofevading immigration laws does not qualify
as a ground of fraud under any of the listed NOTE: Art. 45, Par. 5 of the Family Code refers
circumstances (Republic v. Albios, G.R. No. to lack of power to copulate. Incapacity to
198780, October 16, 2013). consummate the marriage denotes the
permanent inability on the part of the spouses
4. Vitiated consent of either party through to perform the complete act of sexual
Force, intimidation or undue influence; intercourse. Non-consummation of a marriage
may be on the part of the husband or of the wife
NOTE: Criminal liability attaches to anyone who and may be caused by a physical or structural
uses violence, intimidation and fraud in defect in the anatomy of one of the parties or it
contracting a marriage (REVISED PENAL may be due to chronic illness and inhibitions or
CODE, Art. 350). fears arising in whole or in part from
psychophysical conditions. It may be caused by
Violence psychogenic causes, where such mental block
When in order to wrest consent, serious or or disturbance has the result of making the
irresistible force is employed (CIVIL CODE, Art. spouse physically incapable of performing the
1335, Par. 1). marriage act (Alcazar v. Alcazar, G.R.
No.174451, October 13, 2009).
Intimidation
When one of the contracting parties is Impotence
compelled by a reasonable and well-grounded Impotency refers to lack of power to copulate,
fear of an imminent and grave evil upon his not to mere sterility (SEMPIO-DIY, supra at 71).
person or property, or upon the person or
property of his spouse, descendants or Impotency being an abnormal condition should
ascendants, to give his consent (CIVIL CODE, not be presumed. The presumption is in favor
Art. 1335, Par. 2). of potency (People v. Benjamin Lim Y Beltran,
G.R. Nos. 131861, August 17, 1999). It refers
Factors to consider in violence and intimidation: to the physical inability to have sexual
(ASC) intercourse and is not synonymous with sterility.
a. Age; Subsequently, sterility refers to the inability to
b. Sex; and procreate (Macadangdang v. CA, G.R. No. L-
c. Condition of the person. 49542, September 12, 1980).

NOTE: A threat to enforce one’s claim through Impotency caused by a supervening infirmity
competent authority, if the claim is just or legal, does not invalidate the marriage (RABUYA,
does not vitiate consent (CIVIL CODE. Art. supra at 462).
1335, pars. 3 and 4).
Requisites for Annulment due to Impotence:
Undue influence (Not-U-PIE)
It is when a person takes improper advantage a. It Exists at the time of the celebration of the
of another, depriving the latter of reasonable marriage;
freedom of choice (CIVIL CODE, Art. 1337). b. It is Permanent;
c. It is Incurable
Factors to Consider: the confidential, family, d. It is Unknown to the other spouse; and
spiritual and other relations between the parties e. The other spouse must Not also be impotent
or the fact that the person alleged to have been (STA.MARIA, Persons, supra at 322-323).
unduly influenced was suffering from mental
weakness or was ignorant or in financial distress The marriage is not subject to ratification by the
(CIVIL CODE, Art. 1337). continued cohabitation as husband and wife
because there has been an entire and complete
 failure of the consideration of the marriage ACTION FOR ANNULMENT OF
contract. However, the defect may still be barred VOIDABLE MARRIAGES
by prescription (RABUYA, supra at 464).
Grounds Persons Prescrip- Ratifica-
Doctrine of Triennial Cohabitation (AUFFIS) Who May tive tion
The presumption that the husband is impotent if Sue Period
the wife remains a virgin for at least 3 years from
the time spouses started cohabiting (Tompkins Parent/ Any time
v. Tompkins, 92 NJ 113 as cited in STA.MARIA, legal before the
supra at 324; 1 PARAS, supra at 472). guardian parties
Absence having reach 21
Refusal on the part of a Filipino girl to submit to of charge of Free
a physical examination to determine impotency Parental the parties cohabita-
does not raise the presumption of impotency Consent tion after
Parties to Within 5 reaching
because of the natural modesty of our native
the years after age of 21
girls (Jimenez v. Canizares, G.R. No. L-12790,
marriage reaching
August 31, 1960).
21
6. Sexually transmissible disease of either Sane Any time Free
party found to be serious and appears to spouse before the cohabita-
be incurable. who has death of tion after
no either insane
Elements: (SEASU) knowledge party regains
a. Sexually transmissible disease; of the sanity
b. Existing at the time of marriage; insanity
c. Appears incurable;
d. It is Serious; and Relative Any time
e. Unknown to the other party at the time guardian before the
ofthe marriage (RABUYA, supra at 465). Unsound or persons death of
mind having either
The marriage is not subject to ratification by the legal party
continued cohabitation but the defect may still charge of
be barred by prescription (Id.). the insane

NOTE: Whichever comes first between Insane During

cohabitation or prescription may convalidate the spouse lucid
marriage. The term “convalidate” in Roman interval or
Catholic canon law is the making of a putative after
marriage valid following the removal of some regaining
impediment. sanity

Injured Within 5 Free

party Years from cohabita-
the tion even
Fraudu- discovery with full
lent of fraud knowledge
means of facts
constitu-
ting the
fraud

Injured Within 5 Free

party years from cohabita-
Force, the time tion after
inti- the force, disappear-
midation, intimida- rance of
or undue tion, or force,
influence undue intimida-
influence tion/ undue
ceased influence,
 between the contending parties is not fatal to the
Grounds Persons Prescrip- Ratifica-
validity of the proceedings in the trial court (Tuason
(AUFFIS) Who May tive tion
v. CA, G.R. No. 116607, April 10, 1996).
Sue Period

respec- NOTE: If the defendant spouse fails to answer the

tively complaint, the court cannot declare him or her in
default; instead, it should order the public prosecutor
Injured Within 5 No to determine if collusion exists between the parties
party years after ratification (RULES OF COURT, RULE 18, Secs. 6 and 13 (b);
the since defect Supreme Court En Banc Resolutionsupra).
Impotency
celebra- is perma-
tion of the nent PENDENCY OF ACTION FOR
marriage
ANNULMENT
Injured Within 5 No During the pendency of the action and in the
party years after ratification absence of adequate provisions in a written
STD the celebra- since defect agreement between the spouses, the court shall:
tion of the is 1. Provide for the support of the spouses and the
marriage permanent custody and support of common children;
(FAMILY CODE, Arts. 45 and 47). 2. Give paramount consideration to the moral and
material welfare of the said children and their
choice of the parent with whom they wish to
remain; and
ADDITIONAL 3. Provide for appropriate visitation
(FAMILY CODE, Art. 49).
rights

REQUIREMENTS FOR
ANNULMENT OR NOTE: Visitation rights flow from the natural right of
both parents to each other’s company. There being
DECLARATION OF no such parent-child relationship between them,
Gerardo, who is the father of Mario, has no
NULLITY (ART. 48, PAR. demandable right to visit the child of Mario with
1; SUPREME COURT EN Theresa (Concepcion v. CA, G.R. No. 123450,
August 31, 2005).
BANC RESOLUTION A.M.
02-11-10-SC) DECISION ON THE NULLIFICATION OF
THE MARRIAGE
No judgment shall be based upon stipulation offacts
or confession of judgment (FAMILY CODE, Art. 48,
PROSECUTING ATTORNEY OR FISCAL Par. 2).
SHOULD:
STIPULATION OF FACTS
1. Appear on behalf of the state;
2. Take steps to prevent collusion between the An admission by both parties made in court agreeing
parties; and to the existence of the act constituting the ground for
3. Take care that evidence is not fabricated or annulment or for the declaration of nullity
suppressed (FAMILY CODE, Art 101). (STA.MARIA, supra at 335).

COLLUSION CONFESSION OF JUDGMENT

There would be collusion if the parties had arranged The admission made in court by the respondent
to make it appear that a matrimonial offense had admitting fault as invoked by the plaintiff to sever the
been committed although it was not, orif the parties marriage ties (Id.).
had connived to bring about a legal separation even
in the absence of grounds therefor (De Ocampo v. After the court grants the petition, it shall issue the
Florenciano, G.R. No. L–13553,February 23, 1960). decree of absolute nullity or annulment only after
compliance with the following: (LiPaDi-Le-Re2)
However, petitioner’s vehement opposition to the 1. Liquidation, Partition, and Distribution of the
annulment proceedings negates the conclusion that properties of the spouses including custody and
collusion existed between the parties. Under these support of the common children unless such
circumstances, the non–intervention of a matters had been adjudicated in previous
prosecuting attorney to assure lack of collusion judicial proceedings;
2. Delivery of the children’s presumptive Legitimes 5. The custody and support of the common
in cash, property or sound securities unless children together with the delivery of the
otherwise mutually agreed upon and judicially common children’s presumptive legitimes shall
approved; also be made, unless such matters had been
adjudicated in previous judicial proceedings
NOTE: Delivery shall in no way prejudice the (FAMILY CODE, Art. 50, par. 2).
ultimate successional rights of the children
accruing upon the death of either or both 6. Donations by reasons of marriage shall remain
parents. The value of the properties received valid except if the donee contracted the
shall be considered as advances on their marriage in bad faith, in which case the donor
legitime (FAMILY CODE, Art. 51). may revoke the donation (FAMILY CODE, Art.
86, par. 3).
3. Registration of the entry of judgment granting
petition for declaration of absolute nullity or 7. The spouse who contracted the subsequent
annulment in the Civil Registry where the marriage in bad faith shall be disqualified to
marriage was celebrated and in the Civil inherit from the innocent spouse by testate and
Registry where the marriage was recorded; and intestate succession (FAMILY CODE, Art. 43,
par. 5 in relation to Art. 50).
4. Registration of approved partition and
distribution of properties of the spouses in the If the wife is the guilty spouse, she shall resume her
proper Registry of Deeds where the real maiden name and surname. If she is the innocent
properties are located (FAMILY CODE, Arts.50- spouse, she may resume her maiden name and
52). surname. She may continue to employ her former
husband’s surname unless: (a) the court decrees
EFFECTS OF THE DECREE OF otherwise; or (b) she or the former husband is
ANNULMENT married again to another person (CIVIL CODE, Art.
371).
1. Termination of the marital bond but effects
thereof are not totally wiped out (RABUYA, NOTE: In both instances under Arts. 40 and 45, the
supra at 313). marriages are governed either by absolute
community of property or conjugal partnership of
2. Either of the former spouses may re-marry after gains unless the parties agree to a complete
complying with the requirements of Art. 52 separation of property in a marriage settlement
(FAMILY CODE, Art. 53). entered into before the marriage. Since the property
relations of the parties is governed by absolute
3. On Children (FAMILY CODE, Art. 54) community of property or conjugal partnership of
a. Those conceived or born before the gains, there is a need to liquidate, partition and
judgment or annulment or absolute nullity distribute the properties (Diṅo v. Diṅo, G.R. No.
of the marriage under Art. 36 has become 178044, January 19, 2011).
final and executory, shall be considered
legitimate.
b. Those conceived or born of the subsequent
marriage under Art. 53 shall likewise be
legitimate. LEGAL SEPARATION
(ART. 55)
4. If the marriage is governed by Absolute
Community of property or Conjugal Partnership
of Gains, the same shall be terminated or
dissolved and the same shall be liquidated in A legal separation involves nothing more than bed-
accordance with the provisions of Art. 102 and and-board separation of the spouses (Lapuz Sy v.
129, respectively, of the Family Code (RABUYA, Eufemio, G.R. No. L-30977, January 31, 1972).
supra at 493).
a. Unless the parties agree to a complete A decree of legal separation or relative divorce does
separation of property in a marriage not affect the marital status, there being no
settlement entered into before the severance of the vinculum (Laperal v. Republic,G.R.
marriage (Dino v. Dino G.R. No. 178044, No. L-18008, October 30, 1962).
January 19, 2011).
b. If either spouse contracted the marriage in
bad faith, the rules in Art. 43, par. 2 in
relation to Art. 50 of the Family Code shall
apply.
EXCLUSIVE AND RESTRICTIVE the ground that the respondent-spouse
GROUNDS FOR LEGAL SEPARATION: committed the ground provided in Art. 55, par.
3 upon his or her own child with another person.
(RPC-6-ADL-BS-LA) However, such act may be a cause to suspend
The grounds enumerated by law to warrant a judicial or terminate, depending on the severity, the
decree of legal separation are only those parental authority of the respondent over his
enumerated in Art. 55. They may or may not exist own child pursuant to Art. 231, pars. 2 and 4
at the time of the marriage ceremony. As a general of the Family Code(STA.MARIA, supra at 373-
rule, they usually occur after the celebration of the 374).
marriage. No other grounds can be invoked by any
party other than those stated by law (STA.MARIA, 4. Final judgment sentencing the
supra at 370). respondent to imprisonment of more
than 6 years even if pardoned;
NOTE: This is in furtherance of the policy of
the State to foster unity in and to preserve the These requisites must concur: (6A)
marital relations as the same is essential to a. The sentence imposed is imprisonment of
public welfare (Id.). more than 6 years; and
b. The conviction occurs only After the
1. Repeated physical violence or grossly celebration of the marriage.
abusive conduct directed against the
petitioner, a common child, or a child of NOTE: If the respondent is convicted prior to the
the petitioner; celebration of the marriage, it will already be a
ground for annulment if the crime involves moral
Repeated Physical Violence means the unjust or turpitude and that fact of conviction is not
unwarranted exercise of force by a spouse disclosed to the other party (RABUYA, supra at
against the other spouse or their common child 353).
or the child of the other spouse, repeatedly
(RAMIREZ, Law on Marriage (2003), p. 171). 5. Habitual Alcoholism or Drug Addiction
of the respondent;
NOTE: Violence need not be physical, it is
submitted that psychological and sexualviolence NOTE: If the same was present during the
and repeated verbal abuse may qualify as celebration of the marriage but the same is
grossly abusive conduct (RABUYA, supra at concealed from the other party, there is fraud
352). which constitutes a ground for annulment.
(FAMILY CODE, Art. 46(4))
The same is also punishable under R.A. No.
9262 (Anti-Violence Against Women and their 6. Lesbianism or homosexuality of the
Children Act of 2004), (Sec. 3(a)). respondent. (FAMILY CODE, Art. 55).

Please see Acts of Violence under VAWC under 7. Contracting by respondent of a

Rights and Obligations of Couples in Intimate subsequent Bigamous marriage;
Relationships in page 67.
So long as there has been a second bigamous
2. Physical violence or moral Pressure to marriage, wherever celebrated, a legal
compel petitioner to change religious or separation decree may issue (STA.MARIA,
political affiliation. supra at 375).

3. Attempt of the respondent to Corrupt or NOTE: If the bigamous marriage were

committed abroad, the guilty party cannot be
induce the petitioner, a common child, or
criminally prosecuted for bigamy in the
a child of the petitioner, to engage in Philippines as our penal statutes are territorial
prostitution, or connivance in such in nature (Id.).
corruption or inducement;
8. Sexual infidelity or perversion
NOTE: Refers to prostitution only, and
irrespective of the age of the child (STA.MARIA, NOTE: Sexual perversion includes engaging in
supra at 373). such behavior not only with third persons but
also with the spouse (Id. at 376).
The law does not give a cause of action to the
petitioner to file a case for legal separation on Where there is evidence of the adultery
 independently of the defendant's statement behavior by the offending spouse. Subsequent
agreeing to the legal separation, the decree of offense on the offending spouse’s part revokes
separation should be granted, since it would not or nullifies the condonation and revives the
be based on the confession but upon the original offense (STA.MARIA, supra at 379).
evidence presented by the plaintiff. What the
law prohibits isa judgment based exclusively on Failure of the husband to look for his adulterous
defendant's confession (De Ocampo v. wife is not condonation to wife's adultery
Florenciano, G.R. No. L–13553, February 23, (Ocampo v. Florenciano, G.R. No. L–13553,
1960). February 23, 1960).

9. Attempt by the respondent against the Sexual intercourse is implied condonation

Life of the petitioner; It has been held that 'condonation is implied
from sexual intercourse after knowledge of the
NOTE: The attempt on the life of the spouse other’s infidelity. Such acts necessarily implied
must proceed from an evil design and not from forgiveness. It is entirely consonant with reason
any justifiable cause like self-defense or from and justice that if the wife freely consentsto
the fact that the spouse caught the other in sexual intercourse after she has fullknowledge
flagrante delicto having carnal knowledge with of the husband's guilt, her consent should
another man or woman (STA.MARIA, supra at operate as a pardon of his wrong.
376-377).
It has been held in a long line of decisions ofthe
10. Abandonment of the petitioner by the various supreme courts of the different states of
the U.S. that 'a single voluntary actof sexual
respondent without justifiable cause for
intercourse by the innocent spouse after
more than 1 year; discovery of the offense is ordinarily sufficient to
constitute condonation, especially as against the
NOTE: There must be absolute cessation of husband' (Busuego v. Office of the
marital relations, duties, and rights, with the Ombudsman, G.R. No. 196842, October 9,
intention of perpetual separation (Partosa-Jo v.
2013).
CA, G.R. No. 82606, December 18, 1992).

Abandonment implies total renunciation of

2. Consent to commission of offense or act
duties. Physical separation alone is not the full complained of;
meaning of the term abandonment (Dela Cruz
v. Dela Cruz, G.R. No. L-19565, January 30, Consent
1968). There is consent when either of the spouses
agreed to or did not object, despite full
knowledge, to the act giving rise to a ground for
PREPONDERANCE OF EVIDENCE legal separation, before such act was in fact
Mere preponderance of evidence will suffice to committed (STA.MARIA, supra at 380).
prove the existence of these grounds, except the
4th ground where previous criminal conviction is Consent is prior to the act; Condonation comes
essential in view of the necessity of a “final after (People v. Schneckenburger, G.R. No.
judgment” (1 PARAS, supra at 503). 48183, November 10, 1941). It may be
expressed or implied.
A decree of legal separation, on the ground of
concubinage, may issue upon proof of Where the spouses entered into an agreement
preponderance of evidence in the action for legal that each could live with and have carnal
separation. No criminal proceedings or conviction is knowledge with other persons without
necessary (Gandionco v. Hon. Peṅaranda, G.R. No. interference from each spouse, the agreement
79284, November 27, 1987). is null and void being contrary to law and good
morals, but it may be considered consent which
DEFENSES OR GROUNDS FOR bars an action for legal separation (People v.
DENIAL OF PETITION Schneckenburger, G.R. No. 48183, November
(FAMILY CODE, ART. 56): (C3MC-PDR) 10, 1941).
1. Condonation of the offense or act
complained of;

Condonation
It is the act of forgiving the offense after its
commission. It implies a condition of future good
3. Connivance between parties in 2. When to file the action
commission of an offense or act A petition for legal separation may be filed only
constituting a ground for denial of the within five years from the occurrence of any of
petition; the causes of legal separation (A.M. No. 02- 11-
11-SC, Sec. 2).
Connivance or procurement
Denotes direction, influence, personal exertion, 3. Venue
or other action with knowledge and belief that The petition shall be filed in the Family Court
such action would produce certain results and of the province or city where the petitioner or
which results are produced (Cohen, Divorce respondent has been residing for at least six
and Alimony in North Carolina, 59, IV, p. 98 as months prior to the date of filing or in the case of
cited in STA.MARIA, supra at 380). a non-resident respondent, where he may be
found in the Philippines, at the election of the
Example: If a husband hires a detective to spy petitioner (A.M. No. 02-11-11-SC, Sec. 2(c)).
on his wife, and tells him to have sexual
intercourse with her in order to have evidence 4. Prohibited Compromise (CVL-SJL)
(Keeze, Marriage and Divorce, pp. 550-551, as The court shall not allow compromise on
cited in PARAS, supra at p. 492). prohibited matters such as:
a. The Civil status of persons;
4. Mutual guilt or where both parties have b. The Validity of a marriage or of a legal
separation;
given ground for legal separation;
c. Any ground for Legal separation
d. Future Support;
5. Collusion between parties; e. The Jurisdiction of courts; and
f. Future Legitime.
Collusion
It means that the spouses agree to make it
NOTE: A compromise comprises only those
appear in court that one of them has committed
objects which are definitely stated therein, or
a ground for legal separation, or to suppress
which by necessary implication from its terms
evidence of a valid defense to such action, for
should be deemed to have been included inthe
the purpose of enabling the other to obtain a
same. Where a compromise agreementmakes
decree of legal separation (SEMPIO – DIY,
no mention of the marital ties between spouses
supra at 104-105).
but is limited only to their property relations vis-
à-vis their children, the Court held it was not
Difference between Collusion and
prohibited (Santos v. Santos, G.R. No. 214593,
Connivance
July 17, 2019).
Collusion is a corrupt agreement, while
connivance is a corrupt consenting
Please refer to Summary Judicial Proceedings in
(STA.MARIA, supra at p. 364).
page 149 for further discussions.
6. Prescription;
COOLING–OFF PERIOD
Five-year prescriptive period 6-month period from the filing of the petition
An action for legal separation shall be filed within designed to give the parties enough time to further
5 years from time of occurrence of the cause contemplate their positions with the end in view of
(FAMILY CODE, Art. 57) attaining reconciliation between them. No action for
legal separation shall be tried during such period
7. Death of either party during the (FAMILY CODE, Art. 58). It is a mandatory
pendency of the case (Lapuz–Sy v. requirement and its non-compliance makes the
decision infirm (Pacete v. Carriaga, Jr., G.R. No.
Eufemio, G.R. No. L- 30977, January 31,
53880, March 17, 1994).
1972); and
NOTE: The cooling-off period can be dispensed with
8. Reconciliation of the spouses during the if the ground for legal separation involves violence
pendency of the case. against the woman or the child under R.A. 9262.

PROCEDURES IN LEGAL SEPARATION Even during the 6-month period, however, the court
1. Who may file the action must still provide for the support of the spouses and
A petition for legal separation may be filed only the children as well as the custody of the children
by the husband or the wife (A.M. No. 02-11- 11- (Araneta v. Concepcion and Benitez – Araneta, G.R.
SC, Sec. 2). No. L-9667, July 31, 1956).
A writ of preliminary mandatory injunction for the insurance policy, even if such designation be
return of the wife’s paraphernal property can in the stipulated as irrevocable (FAMILY CODE, Art.
meantime, be heard and granted during the 6- 64).
month period (Somosa-Ramos v. Vamenta, Jr., G.R.
No. L-34132 July 29, 1972). 7. The obligation of mutual Support between the
spouses ceases (FAMILY CODE, Art. 198).
EFFECTS OF FILING PETITION FOR
LEGAL SEPARATION: (LDS) NOTE: In case of legal separation, the court
may order that the guilty spouse shall give
1. The spouses shall be entitled to support to the innocent one, specifying the terms
Live separately from each other; of such order (FAMILY CODE, Art. 198).
2. In the absence of an agreement between the
parties, the court shall Designate the husband,
RECONCILIATION OF LEGALLY
the wife, or a third person to manage the SEPARATED SPOUSES
absolute community or conjugal partnership of If the spouses should reconcile, the corresponding
gains property (FAMILY CODE, Art. 61); and joint manifestation under oath duly signed by them
shall be filed with the court in the same proceeding
3. The husband shall have no more right to have for legal separation (FAMILY CODE, Art. 65).
Sexual intercourse with his wife (SEMPIO-DIY,
supra at 110). EFFECTS OF RECONCILIATION OF THE
SPOUSES
EFFECTS OF DECREE OF LEGAL 1. The legal separation proceedings, if still
SEPARATION (LDC-DR- DDS): pending, shall thereby be terminated at
1. The spouses shall be entitled to Live separately whatever stage.
from each other, but the marriage bonds shall 2. The final decree of legal separation shall be set
not be severed; aside, but the separation of property and any
forfeiture of share of the guilty spouse already
NOTE: The wife who has been granted legal affected shall subsist, unless the spouses agree
separation cannot petition to be allowed to revert to revive their former property regime(FAMILY
to her maiden name (CIVIL CODE, Art. 372). CODE, Art. 66).

2. The ACP or CPG shall be Dissolved and REVIVAL OF PROPERTY REGIME

liquidated but the offending spouse shall have Agreement of revival and motion for its approval
no right to any share of the net profits earned by shall be filed in court in the same proceeding for
the ACP or CPG, which shall be forfeited in legal separation and shall be executed under oath,
accordance with the provisions of Article 43(2); where it shall specify:
1. Properties to be contributed anew to restored
3. The Custody of the minor children shall be regime;
awarded to the innocent spouse, subject to the 2. Those to be retained as separated properties of
provisions of Article 213 of the Family Code; each spouse; and
3. Names of all known creditors, addresses, and
4. The offending spouse shall be Disqualified from amounts owing to each (FAMILY CODE, Art.
inheriting from the innocent spouse by intestate 67).
succession. Moreover, provisions in favor of
the offending spouse in the will of the innocent After due hearing, the court shall take measures to
spouse shall be Revoked by operation of law protect the interest of creditors and such order shall
(FAMILY CODE, Art. 63). be recorded in the proper registries of properties but
the same shall not prejudice creditors not listed or
5. The innocent spouse may revoke theDonations notified, unless the debtor-spouse has sufficient
made by him or by her in favor ofthe offending separate properties to satisfy the creditor’s claim
spouse (FAMILY CODE, Art. 67). While the Family Code
mentions only the revival of the former property
NOTE: The action for revocation must be regime, A.M. No. 0211-SC allows the spouses to
brought within 5 years from the time the decree adopt a different property regime.
of legal separation has become final (FAMILY
CODE, Art. 64)

6. The innocent spouse may revoke the

Designation of the latter as a beneficiary in any
EFFECT OF DEATH OF ONE OF THE
PARTIES
In case a party dies at any stage of the proceedings
before the entry of judgment, the court shall order
the case closed and terminated, without prejudice
to the settlement of the estate in proper proceedings
in the regular courts (A.M. No. 02-11- 11-SC, Sec.
42).

Death of one party to the action causes the death

of the action itself — actio personalis moritur cum
persona. When one of the spouses is dead, there is
no need for divorce, because the marriage is
dissolved. (Lapuz–Sy v. Eufemio, G.R. No. L-
30977, January 31, 1972).
 EFFECTS OF THE PETITION FOR DECLARATION OF
PRESUMPTIVE DEATH, NULLITY OF MARRIAGE,
ANNULMENT, AND LEGAL SEPARATION

TERMINATION DECLARATION OF NULLITY ANNULMENT LEGAL

(ART. 41) (ART. 40) (ART. 45) SEPARATION
(ART. 55)

Rendering Judgment on the Petition

Summary proceeding; No motion to dismiss shall be allowed except if the ground is lack of jurisdiction.
judgment may be
rendered based on The grounds alleged must be proved. No judgment on the pleadings, summary
affidavits, judgment or confession of judgment shall be allowed.
documentary evidence
or oral testimonies at NOTES:
the sound discretion of Stipulation of Facts
the court (FAMILY - an admission by both parties made in court agreeing to the existence of the act
CODE, Art.246). constituting the ground for annulment or for the declaration of nullity.

Confession of Judgment
- the admission made in court by the respondent admitting fault as invoked by the
plaintiff to sever the marriage ties (STA.MARIA, supra at 335).

In legal separation cases, no decree shall be issued unless the Court has taken steps
toward reconciliation of the spouses and is fully satisfied, despite such efforts,that
reconciliation is highly improbable (FAMILY CODE, Art. 59).

Procedural Requirements After Judgment, Before Issuance of Decree

Summary proceeding; 1. Liquidation, partition, delivery of properties, including custody and support of
judgment may be common children unless such matters had been adjudicated in previous judicial
rendered based on proceedings;
affidavits, 2. Delivery of children’s presumptive legitimes;
documentary evidence 3. Registration of the entry of judgment granting the petition in the Civil Registry
or oral testimonies at where the marriage was celebrated AND in the Civil Registry of the place where
the sound discretion of the family court is located; and
the court (FAMILY 4. Registration of approved partition and distribution of properties in the Registry of
CODE, Art.246). Deeds where the real properties are located.

Marital Status

Subsequent marriage Previous marriage, void ab Valid until annulledor No dissolution of

automatically initio. terminated. marriage, only
terminated by affidavit separation of bed-
ofreappearance. and-board; entitled to
live separately.

Status of Children Born/Conceived Before Termination

Legitimate Illegitimate except those under Legitimate Legitimate

Arts. 36 and 53
 TERMINATION DECLARATION OF NULLITY ANNULMENT LEGAL
(ART. 41) (ART. 40) (ART. 45) SEPARATION
(ART. 55)

Custody of Children

Custody in case of During pendency:

dispute shall be 1. Written agreement
decidedby the court in 2. Absence thereof, the court decides based on best interest of child and may
separate proceeding award it in the following order of preference:
for custody but same a. Both parents jointly;
considerations as in b. Either parent, may consider choice of child over 7 years unless parent chosen
Declaration of Nullity. is unfit;
c. Surviving grandparent, if several then choice of child over 7 years unless
grandparent chosen is unfit/disqualified;
d. Eldest brother/sister over 21 unless unfit/disqualified; or
e. Any other person deemed suitable by court.

After decree:
To the innocent spouse, but no child under 7 shall be separated from the mother
unless there are compelling reasons.

NOTE: The matter of custody is not permanent and unalterable. If the parent who was given custody suffers a
future character change and becomes unfit, the matter of custody can always be re-examined and adjusted.
To be sure, the welfare, the best interest, the benefit, and the good of the child must be determined as of the
time that either parent is chosen to be the custodian (Beckett v. Sarmiento, Jr., A.M. No. RTJ-12-2326, January
10, 2013).

Child Support

Support in case of During pendency:

dispute shall be 1. Written agreement;
decided by the court in 2. In the absence thereof, from properties of the absolute community of property
a separate proceeding (ACP) or conjugal partnership (CP).
for custody but with
the same After Decree:
considerations as in Either parent or both may be ordered by the court to give an amount necessary for
Declaration of Nullity. support in proportion to resources/means of the giver and necessities of the recipient

Spousal Support

Spousal Support During pendency:

during the pendency of 1. Written agreement;
action (FAMILY 2. In the absence thereof, from properties of the ACP or CP, considered asadvance
CODE, Art. 49). to be deducted from share during liquidation; and
3. Restitution if after final judgment court finds that person providing support
pendente lite is not liable therefor (RULES OF COURT, RULE 61, Sec. 7).

Property Relations

1. ACP or CP shall be 1. ACP or CP shall be 1. ACP or CP shall be 1. ACP or CP shall

dissolved dissolved andliquidated; dissolved and be dissolved and
2. If either spouse contracted liquidated; liquidated;
andliquidated; marriage in bad faith, he or 2. If either spouse 2. Offending
2. If either spouse she hasno right to any share contracted marriage in spouse has no
contracted of the net profits earned by bad faith, he or she right to any share
marriage in bad ACP or CP; and has no right to any of net profits
faith, he or she 3. Net profits shall be forfeited share of the net profits earned by ACP
has no right to any in favor of common children, earned by ACP or CP; or CP; and
share of the net or if none, children of guilty and 3. Net profits shall
 TERMINATION DECLARATION OF NULLITY ANNULMENT LEGAL
(ART. 41) (ART. 40) (ART. 45) SEPARATION
(ART. 55)

profits earned by spouse by previous 3. Net profits shall be be forfeited in

ACP or CP; and marriage, or in default forfeited in favor of favor of common
3. Net profits shall be thereof, the innocent common children, or if children, or if
forfeited in favor of spouse. none, children of guilty none, children of
common children, spouse by previous guilty spouse by
or if none, children In all other cases of void marriage, or in previous
of guilty spouse by marriage, Art. 147 and 148 default thereof, the marriage, or in
previous marriage, applies. innocent spouse. default thereof,
or in default the innocent
thereof, the In addition, for marriages under spouse.
innocent spouse. Art. 40 and 45:
1. All creditors of spouses and
of the ACP or CP shall be
notified of the proceedings
forliquidation;
2. Conjugal dwelling and lot on
which it is situated shall be
adjudicated pursuant to Art.
102 and 129.

Donation Propter Nuptias

1. Shall remain valid, 1. Shall remain valid, unless 1. Shall remain valid, Donor is given option
unless donee donee contracted marriage unless doneecontracted to revoke; if donor
contracted in bad faith, in which case, marriage in bad faith, decides to revoke,
marriage in bad donation is revoked by in which case, donation must do so within 5
faith, in which operation of law. is revoked by operation years from finality of
case, donation is 2. If both spouses of of law(Art. 43, par. 3). decree
revoked by subsequent marriage acted 2. No conflict with Art. 86,
operation of law. in bad faith, donations par. 2 as such does not
2. If both spouses of propternuptias made by one require that marriage be
subsequent in favor of the other are annulled first before
marriage acted in revoked by operation of law donor may revoke
bad faith,donations (FAMILY CODE, Art. 44). donation – donor has 5
propter nuptias 3. If both spouses are in good years from time he had
made by one in faith, the donor after finality knowledge of lack of
favor of the other of decree may revoke consent; cannot revoke
are revoked by pursuant to Art. 86(1). if there was knowledge
operation oflaw. before the
marriage.
3. Conflict with Art.86, par.
3 but Art. 43, par. 3
prevails– more in
harmony with general
purpose/intent ofact.

Insurance Policy

Innocent spouse may revoke the designation of the other spouse who acted in bad Innocent spouse may
faith as beneficiary even if the designation is stipulated as irrevocable (FAMILY CODE, revoke designation of
Art. 43, par. 4). the guilty spouse as
beneficiary even if
stipulated as
irrevocable (FAMILY
CODE, Art. 64).
 TERMINATION DECLARATION OF NULLITY ANNULMENT LEGAL
(ART. 41) (ART. 40) (ART. 45) SEPARATION
(ART. 55)

Revocation takes
effect upon written
notice to the insured
(insurer).

Succession

Spouse in bad faith disqualified to inherit from innocent spouse by testate or intestate1. Offending spouse
succession. If both spouses of subsequent marriage acted in bad faith, testamentary disqualified from
dispositions made by one in favor of the other are revoked by operation of law (FAMILY inheriting from
CODE, Art. 43). innocent spouse by
intestate succession.
Provisions in favor of
offending spouse
made in the will of
innocent spouse are
revoked by operation
of law (FAMILY
CODE, Art.63(4)).
 6. Expenses shall be paid from the
RIGHTS AND community property;
OBLIGATIONS a. In the absence thereof, from income or fruits
of their separate properties;
BETWEEN THE b. In the absence or insufficiency thereof, from
their separate properties (FAMILY CODE,
HUSBAND AND THE Art. 70).
WIFE (ARTS. 68-73)
7. Joint Management of the household

NOTE: Expenses for such management shall be

RIGHTS AND OBLIGATIONS paid in accordance with Art. 70 (FAMILY CODE,
Art. 71).
BETWEEN HUSBAND AND WIFE
(LORD-SM) EFFECT OF NEGLECT OF DUTY
1. Duty to Live together; When one of the spouses neglects his or her duties
to the conjugal union or commits acts which tend to
Extent of the Duty bring danger, dishonor or injury to the other or to
While the law provides that the husband and the the family, the aggrieved party may apply to the court
wife are obliged to live together, observe mutual for relief (FAMILY CODE, Art. 72).
love, respect and fidelity (Art. 68, Family Code),
the sanction therefor is actually the The relief may take on many forms:
"spontaneous, mutual affection between 1. Filing a case for legal separation if there are
husband and wife and not any legal mandate or grounds for the same;
court order (Chi Ming Tsoi v. CA, G.R. No. 2. Filing an action for declaration of nullity based
119190, January 16, 1997). on Art. 36 if the neglect is such that it does not
create a functional marital life; and
NOTE: Cohabitation or the obligation to live
3. Petitioning the court for receivership, for judicial
together is the public assumption by a man and
separation of property, or for authority to be the
a woman of the marital relation and dwelling
sole administrator of community property or
together as husband and wife, thereby holding
conjugal partnership (STA.MARIA, supra at
themselves out to the public as such (Bitangcor
427).
v. Tan, A. M. No. 528-SBC, February 25, 1982).
NOTE: Marital rights including coverture and living in
2. Duty to Observe mutual love, respect conjugal dwelling may not be enforced by the extra-
and fidelity; ordinary writ of habeas corpus. No court is
empowered as a judicial authority to compel a
3. Duty to Render mutual help & support husband to live with his wife. Coverture cannot be
(FAMILY CODE, Art. 68); enforced by compulsion of a writ of habeas corpus
carried out by sheriffs or by any other mesne
4. Duty to Fix the family Domicile; process. That is a matter beyond judicial authority
and is best left to the man and woman's free choice
Rule in Fixing the Family Domicile (Ilusorio v Bildner, G.R. Nos. 139789 & 139808, May
a. Both husband and wife shall fix the 12, 2000).
family domicile. In case of disagreement,
the court shall decide.
b. The court may exempt one spouse from
EXERCISE OF PROFESSION
living with the other if the latter should GENERAL RULE: Either spouse may exercise any
live abroad or there are other valid and legitimate profession, occupation, business or
compelling reasons for the exemption. activity without the consent of the other (R.A. No.
However, such exemption shall not 10572, Sec. 1 amending Art. 73 of the FAMILY
apply if the same is not compatible with CODE).
the solidarity of the family (FAMILY
CODE, Art.69). EXCEPTION: The other spouse may object only on
valid, serious and moral grounds (R.A. No. 10572,
5. Joint responsibility for the Support of Sec. 1 amending Art. 73 of the FAMILY CODE).
the family; and
RULE IN CASE OF DISAGREEMENT local custom shall apply or that ACP regime shall
In case of disagreement, the court shall decide not govern but fail to stipulate what property regime
whether: (1) the objection is proper; and (2) the will be applied (STA.MARIA, supra at 439).
benefit accrued to the family prior to the objection
or thereafter (R.A. No. 10572, Sec. 1 amending Art. 4. Rules on co-ownership will apply in theabsence
73 of the FAMILY CODE). Such is summary in of local customs.
nature (STA.MARIA, supra at 429).
COMMENCEMENT
1. Benefit accrued to family before It commences at the precise moment of the
objection to an immoral or unlawful celebration of the marriage. Any stipulation to the
profession contrary shall be void (FAMILY CODE, Art. 88 for
– if the benefit accrued prior to the objection, the ACP and 107 for CPG).
resulting obligation shall be enforced against
the community property (R.A. No. 10572, Sec. MARRIAGE SETTLEMENT (MS)
1, Par. 2, amending Art. 73 of the FAMILY It is a contract entered into by the future spouses
CODE). fixing the property regime that will govern their
present and future properties during their marriage
2. Benefit accrued after objection (SEMPIO – DIY, supra at 135).
– If the benefit accrued thereafter, such
obligation shallbe enforced against the separate In the absence of a marriage settlement or when
property of the spouse who has not obtained the regime agreed upon is void, ACP shall govern
consent (R.A. No. 10572, Sec. 1, Par. 2 (FAMILY CODE, Art. 75).
amending Art. 73 of the FAMILY CODE).
REQUISITES: (B-Not2-FAWS)
3. Creditors who acted in good faith are 1. Made Before celebration of marriage
protected (FAMILY CODE, Art. 76);
– if spouse transacted with creditor without the
consent of the other but creditor had no 2. In Writing (even modifications) (FAMILY
knowledge thereof, the absolute community of CODE, Art. 77);
property (ACP) or conjugal partnership of gains
(CPG) shall be liable (R.A. No. 10572, Sec. 1 The GENERAL RULE is that, in order that any
amending Art. 73 of theFAMILY CODE). modification in the marriage settlements may be
valid, it must be made before the celebrationof
EFFECT OF COMPULSION the marriage, in writing and signed by the
If a husband compels the wife to desist from parties. By way of exception, modification can
pursuing a profession or any other conduct which the be made after the marriage ceremony, but such
wife has the right to engage in, this can be modification shall need judicial approval and
considered acts of violence against women under should only refer to the instances provided in
R.A. 9262 (STA.MARIA, supra at 428). Articles 66, 67, 128, 135 and 136 of the Family
Code. (STA.MARIA, supra at 422).

An oral marriage settlement is void and cannot

be ratified by any claim of partial execution or
PROPERTY RELATIONS absence of objection (STA.MARIA, supra at
BETWEEN THE 417).

HUSBAND AND THE EXCEPTION: If marriage is terminated by death

WIFE (ARTS. 74-87) of one of the spouses and the surviving spouse
marries again without initiating settlement of
properties of previous marriage within one (1)
year from death of deceased spouse, mandatory
regime of complete separation ofproperty shall
GOVERNED BY: govern property relations of the subsequent
1. Marriage settlements (MS) executed before the marriage (FAMILY CODE, Arts. 103 and 130).
marriage or ante nuptial agreements;
2. Provisions of the Family Code; 3. Signed by the parties (FAMILY CODE, Art.
3. Local customs when spouses repudiate ACP 77);
(FAMILY CODE, Art. 74); and

NOTE: Applies when parties stipulate in their MSthat

4. Will Not prejudice third persons unless EXCEPTIONS: Modifications made through
registered in the civil registry and proper judicial decree during the marriage:
registries of property (STA.MARIA, supra at 1. In case of revival of former property regime
437-438); between reconciling spouses after decree of
legal separation has been issued (FAMILY
5. Shall Fix terms and conditions of their CODE, Arts. 66 and 67);
property relations; 2. When abandoned spouse files petition for
judicial separation of property under Art. 128;
6. Must Not contain provisions contrary 3. When a spouse files petition for judicial
to law, good morals, good customs, separation of property for sufficient cause
public order, and public policy, or under Art. 135 of the Civil Code; and
against the dignity of either spouse; and 4. Petition for voluntary dissolution of property
regime under Art. 136 of the Civil Code.
7. Additional signatories/ parties in case of
civil interdiction or other disability where DONATION BY REASON OF MARRIAGE
it is indispensable for the guardian (DONATIONS PROPTER NUPTIAS)
appointed by court to be made a party to
the marriage settlement (FAMILY CODE, Donations by reason of marriage are those which
Art. 79). are made before its celebration, in consideration of
the same, and in favor of one or both of the future
spouses (FAMILY CODE, Art. 82).
EFFICACY OF MARRIAGE
SETTLEMENTS It is without onerous consideration, the marriage
1. The consideration is the marriage itself. being merely the occasion or motive for the
If the marriage does not take place, the donation, not its causa. Being liberalities, they
marriage settlement is generally void. remain subject to reduction for inofficiousness upon
the donor’s death, should they infringe the legitime
EXCEPTION: Stipulations in the marriage of a forced heir (Mateo v. Lagua, G.R. No. L-26270,
settlement that do not depend upon the October 30, 1969).
celebration of the marriage shall be valid
(FAMILY CODE, Art. 81) (e.g., recognition of NOTE: Donations propter nuptias can be contained
child). in a marriage settlement. (STA.MARIA, supra at
444).
2. In the absence of contrary stipulation in
a marriage settlement, the property Requisites: (COB)
relations shall be governed by Philippine 1. In Consideration of marriage;
2. In favor of One or both of the future
laws, regardless of the place of the
spouses;and
celebration of the marriage or the 3. Made Before celebration of marriage
parties’ residence. (FAMILYCODE, Art. 82).
EXCEPTIONS: NOTE: If one of the requisites is not complied with,
a. If both spouses are aliens, even if it may still be valid as an ordinary donation (provided
marriedin the Philippines. that all other essential requisites are complied with)
b. As to extrinsic validity of contracts (PARAS, supra at p. 522).
affectingproperty:
i. Not situated in the Philippines and
executed in the country where the
REQUISITES OF A VALID DONATION BY
property is located; and THE WOULD-BE SPOUSES TO EACH
ii. Situated in a foreign country whose OTHER IN THE MARRIAGE
laws require different formalities for SETTLEMENTS: (MOAC)
extrinsic validity entered into in the 1. There must be a valid Marriage
Philippines (FAMILY CODE, Art.
80).
settlement stipulating a property regime
other than ACP (FAMILY CODE, Art. 84).
MODIFICATION IN MARRIAGE
REASON: A donation propter nuptias would
SETTLEMENTS be useless if the property regime is ACP,
GENERAL RULE: It must be made before the where spouses become co-owners, with
marriage, in writing, signed by the parties. exception to matters under Art. 92
(Properties excluded from the community
 property) and those stipulated inthe marriage DONATIONS PROPTER NUPTIAS V.
settlement (STA. MARIA, supra at p. 492). ORDINARY DONATIONS
2. GENERAL RULE: Donation in Marriage Donations Propter Ordinary Donations
settlement not more than One-fifth (1/5) Nuptias
of present property (FAMILY CODE, Art. As to Governing Law
84).
Governed by provisions Governed by Civil Code
NOTE: Any excess shall be considered void and of DPN of the Family provisions on ordinary
the donation will be reduced to 1/5 (FAMILY Code. donations.
CODE, Art. 84).
As to Acceptance
3. Accepted by would-be spouse; and
Does not require Express acceptance is
NOTE: Donee must accept the donation expressacceptance. necessary.
personally, or through an authorized person
with special power for the purpose, or with a As to Future Property
general or sufficient power; otherwise, the
May include future Cannot include
donation shall be void (CIVIL CODE, Art. 745;
property. futureproperty.
STA.MARIA, supra at 444). Acceptance must be
made during the lifetime of the donor and the As to Limitations
donee (CIVIL CODE, Art. 746; STA.MARIA,
supra at 444). If present property is There is no limit to
donated and the donation of present
4. Complies with requisites in Title II of property regime is not property provided
Book II of Civil Code on Donations. ACP, donation is limited legitimes are not
to 1/5 of the property. impaired.
For donation of present property to be valid, the
rules governing ordinary donations under Title III As to Grounds for Revocation
of Book III of the Civil Code must be observed.
Grounds for revocation Grounds for revocation
Please refer to Property Law on requisites of are found in Art. 86 of are found in Chapter 4,
valid donations. the Family Code. Title III, Book III of the
Civil Code.
DONATION PROPTER NUPTIAS OF (SEMPIO – DIY, supra at 145).
FUTURE PROPERTY
Donation propter nuptias (DPN) of future property is EXCLUDED DONATIONS:
allowed by way of exception to Art. 751 of Civil
1. Those made in favor of the spouses after the
Code, which provides that donations cannot
celebration of the marriage;
comprehend future property. It is governed by the
2. Those executed in favor of the future spouses
law on testamentary succession both as to intrinsic
but not in consideration of marriage; and
and extrinsic validity (FAMILY CODE, Art. 84, Par. 2).
3. Those granted to persons other than the
spouses even though they may be founded on
DONATION PROPTER NUPTIAS OF the marriage (Serrano v. Solomon, G.R. No. L-
ENCUMBERED PROPERTY 12093, June 29, 1959).
The donation is valid because the donor is still the
owner, even if it is encumbered. If mortgage is VOID DONATIONS BETWEEN SPOUSES
foreclosed and sold at a lesser price, donee is not 1. Before marriage
liable for deficiency but if sold for more, donee is – if the future spouses agreeupon a regime other
entitled to excess (FAMILY CODE, Art. 85). than ACP, they cannot donate to each other in
their marriage settlements more than 1/5 of their
property. Any excess shall be void (FAMILY
CODE, Art. 84).

EXCEPTION: If the donation propter nuptias is

contained in a separate deed, the “not more than
one-fifth” limitation will not apply. The general
rules on donation under Article 750 of the Civil
 Code shall govern (STA.MARIA, supra at. 430). condition was complied with; and
6. Donee commits Acts of ingratitude as specified
2. During marriage by Art. 765 of Civil Code (FAMILY CODE, Art.
– every donation or grant of gratuitous 86).
advantage, direct or indirect, between the
spouses, shall be void (FAMILY CODE, Art.
87).
SYSTEMS OF PROPERTY
Exceptions:
a. Moderate gifts on occasions of family REGIME
celebrations (ARTS. 88-148)
NOTE: The degree of being moderate
depends upon the financial capacity or
condition of the spouses.
1. ABSOLUTE COMMUNITY OF
b. Donations mortis causa. PROPERTY (ACP)
The property regime of the spouses in the absence
NOTE: This rule also applies to persons of a marriage settlement or when the marriage
living together as husband and wifewithout settlement is void (1 PARAS, supra at529).
a valid marriage (FAMILY CODE, Art. 87).
It commences at the precise moment the marriage
REASON: is celebrated; any stipulation for the commencement
i. To protect secured creditors; thereof at any other time isvoid (FAMILY CODE, Art.
ii. To prevent the weaker spouse from 88). The same applies to CPG (FAMILY CODE, Art.
beinginfluenced by the stronger spouse; 107).
iii. To prevent an indirect violation of the
rule prohibiting modifications of the Provisions on co-ownership apply to ACP in all
marriage settlement during the matters not provided by the Chapter on ACP
existence of the marriage (1 PARAS, (FAMILY CODE, Art. 90).
supra at 545).
GENERAL RULE: Community property shall consist
Beneficiary of Insurance Contract of all property owned by the spouses at the time of
The prohibition does not include a spouse being the marriage or acquired thereafter (FAMILY CODE,
thebeneficiary of an insurance contract over the Art. 91).
life of the other spouse (Gercio v. Sunlife
Assurance Co. of Canada, G.R. No. 23703, EXCEPTIONS: (BEG-O)
September 28, 1925). a. Property, including fruits and income thereof,
acquired Before the marriage by either spouse
GROUNDS FOR REVOCATION OF who has legitimate descendants by a former
DONATION PROPTER NUPTIAS: (Not- marriage;
b. Property for personal and Exclusive use except
VP-ARAL) jewelry;
1. Marriage Not celebrated or declared Void ab c. Property acquired during the marriage by
initio, except those donations made in the Gratuitous title, including fruits and income
marriage settlements which shall be void if thereof, except when the donor, testator or
marriage is not celebrated; grantor expressly provides otherwise (FAMILY
CODE, Art. 92); and
NOTE: If made by a stranger, action for d. Property otherwise classified as separate in the
revocation may be brought under the ordinary marriage settlements (FAMILY CODE, Art. 91).
rules on prescription: if in writing, brought within
ten (10) years and if oral, within six (6) years Presumption: Property acquired during the
(ALBANO, supra at 436-437). marriage is presumed to belong to the community,
unless otherwise proven (FAMILY CODE, Art. 93). It
2. Marriage takes place without Parental consent, is not rebutted by the mere fact that the Certificate of
as required by law; Title is in the name of only one spouse (Sideco v.
3. Marriage is Annulled and donee is in bad faith; Aznar, G.R. No. L- 4831, April 24, 1953).
4. Upon Legal separation, the donee being the NOTE: No waiver of rights is allowed during the
guilty spouse; marriage except in case of judicial separation of
5. Donation is with a Resolutory condition and the
property. The waiver must be in a public instrument
and recorded in the office of thelocal civil registrar spouses, is presumed to be conjugal unless the
where the marriage contract was recorded as well contrary is proved (FAMILYCODE, Art. 116)
as in the proper registry of property (FAMILY CODE,
Arts. 89 and 77). The same applies to CPG (FAMILY Proof of Acquisition during the Marriage
CODE, Art.107). Proof of acquisition during the coverture is a
condition sine qua non for the operation of the
Alien Married to Filipino Spouse cannot have an presumption in favor of conjugal partnership. The
interest on land acquired during the marriage party who asserts this presumption must first prove
An alien married to a Filipino cannot have any said time element. The presumption does not
interest in the community or partnership property. operate when there is no showing as to when the
(STA.MARIA, supra at 463, citing Matthews v. property alleged to be conjugal was acquired. If
Taylor, G.R. No. 164584, June 22, 2009). there is no showing as to when the property in
question was acquired, the fact that the title is in the
Rule on Games of Chance name of the wife alone is determinative of its nature
Loss: Shall be borne by the loser-spouse and shall as paraphernal, i.e., belonging exclusively to said
not be charged to the community property. spouse. (Jorge v. Marcelo, G.R. No. 232989, March
18, 2019).
Winnings: Shall form part of the community
property. Although it is not necessary to prove that the
property was acquired with funds of the partnership,
proof of acquisition during the marriage is an
EXCEPTION: If said ticket was given to a spouse by
essential condition for the operation of the
a friend, it shall be considered as a donation under
presumption in favor of the conjugal partnership
Art. 92, par. 1. The winnings will not be part of the
(Jorge v. Marcelo, supra).
ACP unless expressly so providedby the donor of
the ticket (FAMILY CODE, Art. 95 and Art. 92, par.
The presumption that property acquired during
(1)).
marriage is conjugal, does not apply where there is
no showing as to when the property alleged to be
NOTE: The same applies to CPG (FAMILY CODE,
conjugal was acquired. The presumption cannot
Art. 123).
prevail when the title is in the name of only one
spouse and the rights of innocent third parties are
2. CONJUGAL PARTNERSHIP OF involved (Tan v. Andrade, G.R. No. 171904, August
GAINS (CPG) 7, 2013).
It is that formed by a husband and wife whereby
they place in a common fund the proceeds, Properties under Conjugal Partnership: (L2C2
products, fruits and income of their separate FONTI)
properties, and those acquired by either or both a. Obtained from Labor, industry, work or
spouses through their efforts orby chance, the net profession of either or both spouses;
gains or profits obtained by either or both spouses to b. Livestock existing upon dissolution of
be divided between them equally (as a general rule) partnership in excess of number of each kind
upon the dissolution of the marriage or the brought to the marriage by either spouse;
partnership (FAMILY CODE, Art. 106). c. Acquired by Chance such as winnings from
gambling, but losses therefrom shall be borne
Should the spouses agree upon the CPG, its exclusively by loser-spouse;
application shall commence at the precise moment d. Acquired during the marriage by onerous title
when the marriage ceremony is celebrated. What is with Conjugal funds;
considered is the hour and not the date of the
marriage (FAMILY CODE, Art. 107; STA.MARIA, NOTE: Although the property appears as
supra at 517. registered in the name of the husband, if it was
acquired for a valuable consideration during the
The CPG shall be governed by the rules on the marriage, it bears the character of conjugal
contract of partnership in all that is not in conflict property, whether the acquisition is made for the
with what is provided in the chapter on CPG or by partnership, or for one of the spouses only
the spouses in their MS (FAMILY CODE, Art. 108). (Marigsa v. Macabuntoc, G.R. No. 4883,
September 27, 1910).
Presumption in Favor of Conjugal Partnership
Property Rule on Award of Damages
All property acquired during the marriage, whether Damages for physical injuries inflicted by a third
the acquisition appears to have been made, person are exclusive property (Lilius v. Manila
contracted or registered in the name of one or both Railroad Co. G.R. No. 42551 September 4,
 1935). Onerous Donations
If donation is onerous, charges shall be borne by
e. Fruits of the conjugal property during the exclusive property of donee- spouse, whenever
marriage; advanced by the CPG (FAMILY CODE, Art.
f. Acquired through Occupation such as 114).
fishing or hunting;
g. Net fruits of their exclusive property; Pensions and Annuities
h. Share of either spouse in hidden Treasure Retirement benefits, pensions, annuities,
(FAMILY CODE, Art. 117); and gratuities, usufructs, and similar benefits
i. Interest falling due during the marriage on acquired by gratuitous title are exclusive
principal amount of credit belonging to one properties; if by onerous title during marriage
spouse which is payable in partial payments/ (i.e. contributions to pension funds or deduction
installments and collected during the marriage from salaries of common funds) they are CP
(FAMILY CODE, Art. 119). (FAMILY CODE, Art. 115).

Disposition of CPG Unearned Increments

A wife’s consent to the husband’s disposition of Unearned increment (such as increase in the
conjugal property does not always have to be explicit value of the paraphernal property) belongs to
or set forth in any particular document, so long as it the spouse concerned.
is shown by the acts of the wife that such consent
was indeed given (Pelayo v. Perez, G.R. No. c. Acquired by right of Redemption, barter or
141323, June 8, 2005). exchange with property belonging to either
spouse;
The absence of the consent of one spouse to a sale
renders the entire sale null and void, including When exclusive property was redeemed
the portion of the conjugal property pertaining to the through conjugal funds
spouse whocontracted the sale (Orpiano v. Spouses Ownership still belongs to person who has right
Tomas, G.R. No. 178611, January 14, 2013). of redemption, even if conjugal funds are used
to redeem, subject to reimbursement. (Santos v.
Exclusive Property of each Spouse: (OGREC) Bartolome, G.R. No. L-18032, November 23,
a. That which is brought to the marriage as his/her 1922).
Own (even if with legitimate descendants by a
former marriage); d. Purchased with Exclusive money of either
spouse (FAMILY CODE, Art. 109); and
b. Acquired during the marriage by Gratuitoustitle;
When new property was acquired through
Exclusive Property of each Spouse separate property and conjugal funds
Property donated/left by will to spouses,jointly If separate property in addition to conjugal funds
with designation of determinate shares, shall were used as part of the purchase price of a new
pertain to donee-spouse as his/her exclusive property, the new property shall be considered
property; in the absence of designation, conjugal.
property shall be dividedbetween them but shall
belong to themexclusively (FAMILY CODE, Art. e. Principal amount of Credit belonging to one
113). spouse payable in partial payments/
installments, which will be fully paid during the
Non-acceptance vis-à-vis accretion marriage (FAMILY CODE, Art. 119).
If spouse does not accept his/her part of the
donation, accretion sets in favor of the other Use of Exclusive Properties: (PISI)
spouse who will own all of property donated as a. Payment of Personal debts;
separate property (FAMILY CODE, Art. 113). b. Fines and Indemnities;
c. Support of illegitimate children of the owner-
NOTE: Accretion will not apply if donor so spouse; and
provides or if donation is not joined as when the d. In case of Insufficiency of the CPG (STA.MARIA,
wife was given a house and the husband was supra at 522-523)
given a car.
Dominion over Exclusive Properties
The spouses retain the ownership, possession,
administration and enjoyment of their exclusive
properties (FAMILY CODE, Art. 110).
Either spouse may mortgage, encumber, alienate or
otherwise dispose of his or her exclusive property CHARGES UPON AND OBLIGATIONS
(R.A. No. 10572, Sec. 2). OF ACP AND CPG
Property Bought on Installment ACP (Art. 94) CPG (Art. 121)
Property bought on installments paid partly from
exclusive funds of either or both the spouses and Support of the spouses, their common children,
partly from conjugal funds: and legitimate children of either spouse by a
a. If full ownership was vested before the marriage previous marriage.
– it shall belong to the buyer- spouse
(Illustration: contract of sale was perfected For illegitimate For illegitimate
before the marriage and full payment was made children, support from children, support from
during marriage using CP); or separate property of separate property of
person obliged to give person obliged to give
b. If full ownership was vested during the marriage support. In case of support. In case of
– it shall belong to the conjugal partnership insufficiency or insufficiency or
(Illustration: contract to sell entered into before absence of separate absence of separate
the marriage but ownership was transferred property, ACP shall property, CP shall
during marriage) advance advance support,
suppo chargeable to share of
In both cases, there is reimbursement upon rt,chargeable to share parent upon
liquidation. In (1), owner-spouse reimburses the CP. of parent upon liquidation, but only
In (2), CP shall reimburse the buyer- spouse liquidation. after obligationsin Art.
(FAMILY CODE, Art. 118). 121 have been
covered.
Improvement of Exclusive Property using CPG
Funds /Reverse Accession Debts and Obligations Contracted During
If the cost of the improvement and any resulting Marriage
increase in value are more than the value of the 1. By the administrator spouse designated in
principal property at the time of the improvement, MS/appointed by court/one assuming sole
the entire property shall belongto CPG subject to administration;
reimbursement of the valueof the principal property 2. By one without the consent of the other;
at the time of the improvement to the owner-spouse 3. By one with the consent of other; and
(e.g.: the CP built a 10-million peso house in a 5- 4. By both spouses.
million peso(exclusive property) land and as a result
the value of the property went up to P18M) (FAMILY For (1) and (2), creditor has burden of proving
CODE, Art. 120, Par. 2). benefit to family and ACP/CPG chargeable to
extent of benefit proven, otherwise, chargeable
Accession to separate property of obligor spouse.
If the cost of the improvement and plus value is equal
to or is less than the value of the principalproperty at For (3) and (4), benefit to family presumed.
the time of the improvement, the entire property
remains the exclusive property of the spouse, All taxes, liens, charges and expenses upon
subject to reimbursement of the cost of improvement thecommunity or conjugal property.
(e.g.: the CP built a 10-million peso house in a 15-
millionpeso (exclusive property) land and as a result Taxes and Expenses Taxes and Expenses
the value of the property went up to P25M). for mere preservation for mere preservation
during marriage upon during marriage upon
The obligation to reimburse rests on the spouseupon separate property of separate property of
whom ownership of the entire property is vested, but either spouse used by either spouse,
there is no obligation on the part of the purchaser of family. regardless of whether
the property in case the property is sold by the or not used by family
owner-spouse (Ferrer v. Ferrer, G.R. No. 166496, because use and
November 29, 2006). enjoyment of separate
property of the
spouses belong to the
partnership.

Expenses to enable either spouse to

commence/complete a professional, vocational
or other activity for self-improvement.
 ACP (Art. 94) CPG (Art. 121) PROVISIONS COMMON TO ACP AND
CPG
Value donated/promised by both spouses in a. Administration of Property (FAMILY
favor of common legitimate children for CODE, ACP: Art. 96-98/ CPG: Art. 124-125)
exclusive purpose of commencing or completing
professional or vocational course or other activity GENERAL RULE: Administration shall belong
for self- improvement. to both spouses jointly (FAMILY CODE, Art.
96).
Expenses of litigation between spouses unless
suitfound to be groundless. EXCEPTIONS:
i. In case of disagreement, husband’s
1. Ante-Nuptial Debts For Ante-Nuptial Debts, decision shall prevail, subject torecourse to
Chargeable to ACP same as ACP but in the court by the wife for proper remedy
if redounded to case of insufficiency of within 5 years from date of contract
benefit of family; separate property, implementing such decision;
2. Personal debts not obligations enumerated ii. In case one spouse is incapacitated or
redounding in Art. 121 must first be unable to participate in theadministration of
to benefit of family satisfied before such the common properties, the other spouse
such as liabilities debts may be may assume sole powers of administration
incurred by reason chargeable to the CP. (FAMILY CODE, Art. 96 par. 2).
of crime or quasi-
delict, chargeable to These powers do not include:
separate property of 1.) Disposition; and
debtor spouse; 2.) Encumbrance.
3. In case of
insufficiency of Written consent of other spouse or authority
separate property, of the court is required; otherwise,
chargeable to ACP disposition or encumbrance is void
but considered (FAMILY CODE, Art. 96 par. 2).
advances
deductible from Spouses are Joint Administrators
share of debtor- The husband and wife are the joint
spouse upon administrators of their properties forming part
liquidation. of the conjugal partnership and absolute
community of properties. The rightvested upon
NOTE: The spouses shall be solidarily liable with them to one-half (½) of the conjugal assets
their separate properties for the obligations if the does not vest until the dissolution and
community or conjugal properties are insufficient. liquidation of the conjugal partnership. The sale
by the husband of property belonging to the
Benefits that might accrue to a husband in his conjugal partnership or the absolute
signing a surety or guarantee agreement not infavor community without the consent of the wife or
of the family, but in favor of his employer corporation, authority of the court is void (Abalos v.
are not benefits that can be considered as giving a Macatangay,G.R. No. 155043, September 30,
direct advantage accruing to the family. Hence, the 2004).
creditors cannot go against the conjugal partnership
property in satisfying the obligation subject of the Contract is void when made without
surety agreement. A contrary view would put in peril consent and knowledge of one spouse; and
the conjugal partnership property by allowing it to be annullable when made with knowledge but
given gratuitously similar to cases of donation of without consent
conjugal partnership property, which is prohibited If the husband, without knowledge and consent
(Security Bank v. Mar Tierra Corp., G.R. No. of the wife, sells conjugal property, such sale is
143382, November 29, 2006). void. If the sale was with the knowledge but
without the approval of the wife, thereby
resulting in a disagreement, such sale is
The conjugal partnership is not liable for an annullable at the instance of the wife who is
indemnity agreement entered into by the husband given five (5) years from the date the contract
to accommodate a third party (Security Bank v. Mar implementing the decision of the husband to
Tierra Corp., G.R. No. 143382, November 29, 2006). institute the case (Ravina v. Villa Abrielle, G.R.
No. 160708, October 16, 2009).
 Continuing offer Reappearance of the absent spouse.
The transaction, however, shall be construed
as a continuing offer on the part of the Liquidation after affidavit of
consenting spouse and the third person, until Reappearance
acceptance by the other spouse or Another instance when an absolute
authorization by the court before the offer is community of property or a conjugal
withdrawn by either or both offerors (FAMILY partnership of gains is dissolved is when a
CODE, ACP: Art. 96, par. 2; CPG: Art. 124, reappearing spouse or an interested person
par. 2; Flores v. Sps. Lindo, G.R. No. 183984, under Art. 41 files an affidavit of
April 13, 2011). appearances to terminate the subsequent
marriage of the present spouse contracted
Prohibition on Donation with another person. According to Art. 43 the
Neither spouse may donate any community termination of subsequent marriage shall
property without the consent of the other but result in the dissolution of the absolute
either may, without the other’s consent, make community property or conjugalpartnership
moderate donations for charity or on occasions of gains of such subsequent marriage
of family rejoicing or family distress (FAMILY (STA.MARIA, supra at 497)
CODE, ACP: Art. 98; CPG: Art. 125).
Separation in Fact (De Facto Separation)
The prohibition also applies to parties living (FAMILY CODE, ACP: Art. 100; CPG: Art. 127).
together as husband and wife without valid
marriage (SEMPIO – DIY, supra at 174). The separation in fact between husband and
wife shall not affect the regime of ACP/CPG
EXCEPTION: In ACP, either spouse may (FAMILY CODE, Art. 100 par.1).
dispose by will of his or her interest in the ACP
(FAMILY CODE, Art. 97). Rules Applicable when there is De Facto
Separation:
b. Remedies of Present Spouse in Case of i. The spouse who leaves the conjugal home
Abandonment by The Other Spouse or or refuses to live therein, without just cause,
Failure to Comply with Obligations: shall not have the right to be supported;
ii. When the consent of one spouse to any
(RJA)
transaction of the other is required by law,
i. Receivership;
judicial authorization shall be obtained in a
ii. Judicial separation of property; and
summary proceeding; and
iii. Authority to be the sole administrator of the
iii. In the absence of sufficient community
community or conjugal property. (FAMILY
property, the separate property of both
CODE, ACP: Art. 101; CPG: Art. 128).
spouses shall be solidarily liable for the
support of the family. The spousepresent
Presumption of Abandonment
shall, upon proper petition in a summary
A spouse is deemed to have abandoned the
proceeding, be given judicial authority to
other when he or she has left the conjugal
administer or encumber any specific
dwelling without any intention of returning. Three
separate property of the other spouse and
(3) months disappearance or failure to give
use the fruits or proceeds thereof to satisfy
within the same period any information as to a
the latter's share (FAMILY CODE, Art. 100).
spouse’s whereabouts prima facie raises a
presumption that the absent spouse has no
intention of returning(FAMILY CODE, ACP: Art. d. Steps in Liquidation of ACP and CPG
101 par. 3; CPG: Art. 128, par. 3). (FAMILY CODE, Art. 102 and 129)
i. Inventory of ACP or CPG properties and
c. Grounds for Dissolution (FAMILY CODE, exclusive property of each spouse;
[ACP] Art. 99-101; [CPG] Art. 126-128):
Reason: Separate property is included
(SAD-JR) because if the community property is not
i. When there is a decree of legal enough the spouses are liable solidarily with
Separation;
their separate property (1PARAS, supra at
ii. When the marriage is Annulled or
551; RABUYA, supra at 448).
declared void;
iii. Upon the Death of either spouse;
Receivable from Each Spouse Should
iv. In case of Judicial separation of property
Also Include Receivables from Each
during the marriage under Articles 134 to
Spouse For:
138 (FAMILY CODE, Art. 99); or
1.) Amounts advanced for personal debts
v. Upon the filing of an affidavit of
 of each spouse; e. Termination Caused by Death of Either
2.) Support of illegitimate children of either Spouse (FAMILY CODE, Art. 103 and
spouse; and 130)
3.) For CPG, include value of i. ACP and CPG shall be liquidated in a
improvements constructed on separate proceeding for settlement of estate of the
property. deceased spouse;
ii. If no judicial settlement proceeding is
ii. Payment of ACP or CPG debts; instituted, the ACP or CPG shall be,
judicially or extra-judicially, liquidatedby the
Must first pay out of the ACP or CPG surviving spouse within 1 year from the
property, if insufficient, spouses are death of the deceased spouse.
solidarily liable with separate properties.
If there are debts to be paid, the surviving
iii. For CPG, must first reimburse spouse for spouse must file a proceeding for the
separate property acquired by CP due to settlement of estate;
improvements thereon using CPG funds;
iv. For CPG, unless owner is indemnified from iii. If the 1-year period has already
whatever source, payment for the loss or lapsed and no liquidation was made, any
deterioration of movables belonging to disposition or encumbrance of the ACP or
either spouse that was used for the benefit CPG shall be void; or
of the family shall be made even if due to iv. If the surviving spouse contract a
fortuitous event; subsequent marriage withoutliquidating the
v. Division of net assets (for ACP) or net profits ACP or CPG, mandatoryregime of complete
(CPG), which are not subject to forfeiture; separation of property shall govern the
vi. Delivery of presumptive legitime, if any, to property relations of the subsequent
the children; and marriage.
vii. Adjudication of conjugal dwelling and lot.

COMPARISON OF ACP AND CPG

ABSOLUTE COMMUNITY OF PROPERTY CONJUGAL PARTNERSHIP OF GAINS

As to Commencement & Waiver

The absolute community of property shall commence The conjugal partnership of gains shall commence at
at the precise moment that the marriage is celebrated. the precise moment that the marriage is celebrated.
Any stipulation, express or implied, for the Any stipulation, express or implied, for the
commencement of the community regime at any other commencement of the community regime at any other
time shall be void (FAMILY CODE, Art. 88). time shall be void.

No waiver of rights, interests, shares and effects of the No waiver of rights, interests, shares and effects of the
absolute community property during the marriage can conjugal partnership of gains during the marriage can
be made except in case of judicial separation of be made except in case of judicial separation of
property (FAMILY CODE, Art. 89 par. 1). property (FAMILY CODE, Art. 107).

As to Inclusion in the Property Regime

Unless otherwise provided in this Chapter or in the All property acquired during the marriage, whether the
marriage settlements, the community property shall acquisition appears to have been made, contracted or
consist of all the property owned by the spouses at the registered in the name of one or both spouses, is
time of the celebration of the marriage or acquired presumed to be conjugal unless the contrary is proved
thereafter (FAMILY CODE, Art. 91). (FAMILY CODE, Art. 116).

Property acquired during the marriage is presumed to The following are conjugal partnership properties:
belong to the community, unless it is proved that it is 1. Those acquired by onerous title during the marriage
one of those excluded therefrom (FAMILY CODE, Art. at the expense of the common fund, whether the
93). acquisition be for the partnership, or for only one of
the spouses;
2. Those obtained from the labor, industry, work or
 ABSOLUTE COMMUNITY OF PROPERTY CONJUGAL PARTNERSHIP OF GAINS

profession of either or both of the spouses;

3. The fruits, natural, industrial or civil, due or received
during the marriage from the common property, as
well as the net fruits from the exclusive property of
each spouse;
4. The share of either spouse in the hidden treasure
which the law awards to the finder or owner of the
property where the treasure is found;
5. Those acquired through occupation such as fishing
or hunting;
6. Livestock existing upon the dissolution of the
partnership in excess of the number of each kind
brought to the marriage by either spouse; and
7. Those which are acquired by chance, such as
winnings from gambling or betting. However, losses
therefrom shall be borne exclusively by the loser-
spouse (FAMILY CODE, Art. 117).

Property bought on installment paid partly from the

exclusive funds of either or both spouses and partly
from the conjugal funds conjugal funds belongs to the
buyer or buyers if full ownership was vested before the
marriage and to the conjugal partnership if such
ownership was vested during the marriage (FAMILY
CODE, Art. 118).

Interests falling due during marriage on the principal

credit belonging to one spouse (FAMILY CODE, Art.
119).

As to Exclusive Property of the Spouses

1. Property acquired during the marriage by 1. That which is brought to the marriage as his or her
gratuitous title by either spouse, and the fruits as own;
well as the income thereof, if any, unless it is 2. That which each acquires during the marriage by
expressly provided by the donor, testator or grantor gratuitous title;
that they shall form part of the community property; 3. That which is acquired by right of redemption, by
2. Property for personal and exclusive use of either barter or by exchange with property belonging to
spouse. However, jewelry shall form part of the only one of the spouses; and
community property; 4. That which is purchased with exclusive money of
3. Property acquired before the marriage by either the wife or of the husband (FAMILY CODE, Art.
spouse who has legitimate descendants by a 109).
former marriage, and the fruits as well as the
income, if any, of such property (FAMILY CODE,
Art. 92).

As to Games of Chance

Whatever may be lost during the marriage in any game of chance, betting, sweepstakes, or any other kind of
gambling, whether permitted or prohibited by law, shall be borne by the loser and shall not be charged to the
community/conjugal partnership but any winnings therefrom shall form part of the community/conjugal
partnership property (FAMILY CODE, APC-Art. 95, CP- Art. 123).

As to Administration

The administration and enjoyment of the community property/conjugal partnership property shall belong to both
 ABSOLUTE COMMUNITY OF PROPERTY CONJUGAL PARTNERSHIP OF GAINS

spouses jointly. In case of disagreement, the husband’s decision shall prevail, subject to the recourse to the
court by the wife for a proper remedy, which must be availed of within five years from the date of the contract
implementing such decision (FAMILY CODE, ACP – Art. 96, CP- Art. 124).

Neither spouse may donate any community property/conjugal partnership property without the consent of the
other. However, either spouse may, without the consent of the other, make moderate donations from the
community property for charity or on occasion of family rejoicing or family distress (FAMILY CODE, Art. 98, Art.
125).

Either spouse may dispose by will of his or her interest in the community property (FAMILY CODE, Art. 97).

As to Termination

1. Upon the death of either spouse;

2. When there is a decree of legal separation;
3. When the marriage is annulled or declared void; or
4. In case of judicial separation of property during marriage under Arts. 134-138 (FAMILY CODE, ACP- Art.
99,CP – Art. 126).

As to Effect of Separation in Fact to the Property Regime

1. The spouse who leaves the conjugal home or refuses to live therein, without just cause shall not have the
right to be supported;
2. When the consent of one spouse to any transaction of the other is required by law, judicial authorization
shall be obtained in a summary proceeding;
3. In the absence of sufficient community property, the separate property of both spouses shall be solidarily
liable for the support of the family. The spouse present shall, upon proper petition in a summary proceeding,
be given judicial authority to administer or encumber any specific or separate property of the other spouse
and use the fruits or proceeds thereof to satisfy the latter’s share (FAMILY CODE, ACP- Art. 100, CP- Art.
127).

As to Remedy in Case of Abandonment

If a spouse without just cause abandons the other or fails to comply with his or her obligations to the family, the
aggrieved spouse may petition the court for receivership, for judicial separation of property or for authority to
be the sole administrator of those absolute community/conjugal partnership property, subject to such
precautionaryconditions as the court may impose (FAMILY CODE, ACP- Art. 101 par.1, CP- Art. 128 par.1).

As to Procedure on the Dissolution of Property Regime

1. An inventory shall be prepared, listing separately 1. An inventory shall be prepared, listing separately
allthe properties of the absolute community and all the properties of the conjugal partnership and
the exclusive properties of each spouse; the exclusive properties of each spouse;
2. The debts and obligations of the absolute 2. Amounts advanced by the conjugal partnership in
community shall be paid out of its assets. In case payment of personal debts and obligations of either
ofinsufficiency of said assets, the spouses shall spouse shall be credited to the conjugal
be solidarily liable for the unpaid balance with partnershipas an asset thereof;
their separate properties in accordance with the 3. Each spouse shall be reimbursed for the use of his
provisions of the second paragraph of Art. 94; or her exclusive funds in the acquisition of property
3. Whatever remains of the exclusive properties of or for the value of his or her exclusive property, the
thespouses shall thereafter be delivered to each ownership of which has been vested by law in the
of them; conjugal partnership;
4. The net remainder of the properties of the 4. The debts and obligations of the conjugal
absolute community shall constitute its net assets, partnership shall be paid out of the conjugal
which shall be divided equally between husband assets.In case of insufficiency of said assets, the
and wife,unless a different proportion or division spouses shall be solidarily liable for the unpaid
was agreed upon in the marriage settlements, or balance with their separate properties, in
unless there has been a voluntary waiver of such accordance with the provisions of paragraph (2) of
share as provided in this Code. For purposes of Art. 121;
 ABSOLUTE COMMUNITY OF PROPERTY CONJUGAL PARTNERSHIP OF GAINS

computing the net profits subject to forfeiture in 5. Whatever remains of the exclusive properties of
accordance with Arts.43, No. (2) and 63, No. (2), thespouses shall thereafter be delivered to each of
the said profits shall be the increase in value them;
between the market value of the community 6. Unless the owner had been indemnified from
property at the time of the celebration of the whatever source, the loss or deterioration of
marriage and the market value at the time of its movables used for the benefit of the family,
dissolution; belonging to either spouse, even due to fortuitous
5. The presumptive legitimes of the common event, shall be paid to said spouse from the
children shall be delivered upon partition, in conjugal funds, if any;
accordance withArt. 51; and 7. The net remainder of the conjugal partnership
6. Unless otherwise agreed upon by the parties, in properties shall constitute the profits, which shall
the partition of the properties, the conjugal be divided equally between husband and wife,
dwelling andthe lot on which it is situated shall be unless a different proportion or division was
adjudicated to the spouse with whom the majority agreed uponin the marriage settlements or unless
of the common children choose to remain. there has been a voluntary waiver or forfeiture of
Children below the age of seven years are such share as provided in this Code;
deemed to have chosen the mother, unless the 8. The presumptive legitimes of the common children
court has decided otherwise. In case there is no shall be delivered upon partition in accordance with
such majority, the court shall decide, taking into Art. 51; and
consideration the best interests of said children 9. In the partition of the properties, the conjugal
(FAMILY CODE, Art. 102). dwelling and the lot on which it is situated shall,
unless otherwise agreed upon by the parties, be
adjudicated to the spouse with whom the majority
of the common children choose to remain. Children
below the age of seven years are deemed to have
chosen the mother, unless the court has decided
otherwise. In case there is no such majority, the
court shall decide, taking into consideration the
best interests of said children (FAMILY CODE, Art.
129).

As to Procedure in Case of Termination of Marriage by Death

Upon the termination of the marriage by death, the conjugal partnership property shall be liquidated in the same
proceeding for the settlement of the estate of the deceased.

If no judicial proceeding is instituted, the surviving spouse shall liquidate the community or conjugal partnership
property either judicially or extra-judicially within one year from the death of the deceased spouse. If upon the
lapse of the one-year period no liquidation is made, any disposition or encumbrance involving the conjugal
partnership property of the terminated marriage shall be void.

Should the surviving spouse contract a subsequent marriage without compliance with the foregoing
requirements, a mandatory regime of complete separation of property shall govern the property relations of
thesubsequent marriage (FAMILY CODE, ACP- Art. 103, CP – Art. 130).

Rule on Marriages Prior to the Family Code

Whenever the liquidation of the community or conjugal partnership properties of two or more marriages
contracted by the same person before the effectivity of this Code is carried out simultaneously, the respective
capital, fruits and income of each community or partnership shall be determined upon such proof as may be
considered according to the rules of evidence. In case of doubt as to which community or partnership the
existing properties belong, the same shall be divided between or among the different communities or
partnerships in proportion to the capital and duration of each (FAMILY CODE, ACP: Art. 104, CPG: Art. 131).
3. REGIME OF SEPARATION OF
PROPERTY 4. SEPARATION OF PROPERTY AND
It may refer to present or future property or both,total ADMINISTRATION OF COMMON
or partial. If partial, ACP shall govern properties not PROPERTY BY ONE SPOUSE
agreed upon as separate (FAMILY CODE, Art. 144). DURING THE MARRIAGE
In the absence of an express declaration in the
a. Each spouse shall own, dispose of,
marriage settlements, separation of property during
possess, administer and enjoy his or her
the marriage shall not take place except by a judicial
own separate estate, without need of the
order. Such judicial separation of property may
consent of the other. To each spouse shall
either be voluntary or for sufficient cause (FAMILY
belong all earnings from his or her
CODE, Art. 134).
profession, business or industry and all
fruits, natural, industrial or civil, due or Causes of Judicial Separation of Property:
received during the marriage from his or her (SCALOP)
separate property (FAMILY CODE, Art. a. That at the time of the petition, the spouses have
145). been Separated in fact for at leastone (1) year
b. Both spouses shall bear the family and reconciliation is highly improbable;
expenses in proportion to their income, or, b. That the spouse of the petitioner has been
in case of insufficiency or default thereof, to sentenced to a penalty which carries with it Civil
the current market value of their separate interdiction;
properties. The liabilities of the spouses to c. That the spouse of the petitioner has been
creditors for family expenses shall, judicially declared an Absentee;
however, be SOLIDARY. (FAMILY CODE, d. That Loss of parental authority of the spouse of
Art. 146). petitioner has been decreed by the court;
c. Without legal separation, a wife convicted of e. That the spouse of the petitioner has abandoned
adultery is not disqualified from sharing in the latter or failed to comply with his or her
the conjugal partnership properties. A Obligations to the family as provided for in Article
Compromise Agreement which was 101; and
judicially approved is exactly such a f. That the spouse granted the Power of
separation of property allowed under the administration in the marriage settlements has
law. However, voluntary separation of abused that power (FAMILY CODE, Art. 135).
property is subject to the rights of all
creditors of the conjugal partnership of gains NOTE: In the cases provided for in b, c, d above,
and other persons with pecuniary interest presentation of final judgment against guilty or
pursuant to Art. 136 of the Family Code absent spouse shall be enough basis for grant
(Maquilan v. Maquilan, G.R. No. 155409, of decree of judicial separation of property
June 8, 2007). (FAMILY CODE, Art. 135).
d. The requirement under R.A. No. 6713 and
similar laws that the SALN to be filed by Effects of Judicial Separation of Property
every government official must include a. Dissolution and liquidation of ACP/CPG
assets, liabilities, and net worth of the (FAMILY CODE, Art. 137);
spouse of the filer is construed not to include b. Liability of the spouses to creditors shall be
the assets, liabilities, and net worth of solidary with their separate properties;
spouses whose property regime during the c. Mutual obligation to support each other
marriage is by law or by agreementprior to continues except when there is legal separation;
the marriage one of complete separation of and
property. Article 38 of the Code of Muslim d. Rights previously acquired by creditors are not
Personal Laws specifically defines their prejudiced (FAMILY CODE, Art. 140).
regime of property relations as Muslims
to be one of complete separation of REVIVAL OF FORMER PROPERTY REGIME
property. In view of Section 38 of the Code (CAT-PALS)
of Muslim Personal Laws, the exemption of It shall be governed by Art. 67 and may be filedin the
Babano from the disclosure requirement same proceedings where separation of property was
should be clear and undisputed (Abid- decreed in any of the following instances:
Babano v. Executive Secretary, G.R. No. a. When the Court, being satisfied that the
201176, August 28, 2019). spouse granted the power of administration
in the marriage settlements will not again
NOTE: This should also apply to the Family Code abuse that power, authorizes the
provisions on Complete Separation of Property. resumption of said administration;
b. When the Absentee spouse reappears; 5. PROPERTY REGIME OF UNIONS
c. When the civil interdiction Terminates; WITHOUT MARRIAGE
d. When Parental authority is judiciallyrestored
to the spouse previously deprived thereof;
e. When after voluntary dissolution of the ART. 147 v. ART. 148
absolute community of property or conjugal UNIONS BETWEEN UNIONS
partnership has been judicially decreed PERSONS BETWEEN
upon the joint petition of the spouses, they CAPACITATED TO PERSONS NOT
Agree to the revival of the former property MARRY CAPACITATED
regime. No voluntary separation of property (ART. 147) TO MARRY
may thereafter be granted; (ART. 148)
f. When the spouse who has Left the conjugal
home without a decree of legal separation As to Applicability
resumes common life with the other; or
g. When the spouses who have Separated in The following must 1. In cases of
fact for at least one year, reconcile and concur: cohabitation not
resume common life (FAMILY CODE, Art. 1. Parties must be falling under Art.
141). both capacitated to 147.
marry each other;
Administration of Exclusive Property 2. They live Parties are not
(FAMILY CODE, Art. 142) exclusively with capacitated to
a. The administration of all classes of each other as marry each other
exclusive property of either spouse may be husband and wife; due to some legal
transferred by the court to the other spouse 3. Without the benefit impediments,
(GACH): of marriage or although it may
i. When one spouse becomes under a void also fall under a
the Guardian of the other marriage (par. 1): void marriage.
ii. When one spouse is judicially a. Void marriages
declared an Absentee; under Art. 35; 2. Incestuous
iii. When one spouse is sentenced to a i. Those marriages under
penalty which carries with it Civil solemnized Art. 37;
interdiction; or by any 3. Void marriages
iv. When one spouse becomes a person not against public
fugitive from justice or is in Hiding as legally policy under Art.
an accused in a criminal case (par. authorized 38;
1). to perform 4. Void marriages
marriages; under Art. 35,
b. If the other spouse is not qualified by reason ii. Those Pars. 1(below 18)
of incompetence, conflict of interest, or any solemnized and 4 (bigamous
other just cause, the court shall appoint a without a or polygamous);
suitable person to be the administrator (par. license; 5. Void Marriages
2). iii. Mistake in under Article 44
identity.

b. Void marriages
based on
psychological
incapacity
under Art. 36; or

c. Marriages that
are void under
4. Art. 53 when either
of the former
spouses marries
again without
complying with the
requirements of
registration of
judgment of
 UNIONS BETWEEN UNIONS UNIONS BETWEEN UNIONS
PERSONS BETWEEN PERSONS BETWEEN
CAPACITATED TO PERSONS NOT CAPACITATED TO PERSONS NOT
MARRY CAPACITATED MARRY CAPACITATED
(ART. 147) TO MARRY (ART. 147) TO MARRY
(ART. 148) (ART. 148)

annulment, the other until after the

partition, and termination of their
delivery of cohabitation (par.3).
presumptive
legitimes. As to Forfeiture

As to Salaries and Wages When only one of the 1. If one of the parties
parties to a void is validly married to
Owned in equal shares Separately owned by marriage is in good faith, another, his or her
(par. 1). the parties. If any of the share of party in bad share in the co-
them is married, faith in the co- ownership shall
his/her salary is the ownership shall be accrue to the ACP
property of the ACP or forfeited: or CPG existing in
CPG of the legitimate 1. In favor of their such valid
marriage (par.2). common children; marriage;
2. In case of default or 2. If the party who
As to Property Acquired by Own Funds waiver by any or all acted in bad faith is
common children or not validly married
Belongs to such party Belongs to such party. their descendants to another, his/her
subject to proof of each vacant share share shall be
acquisition by exclusive shall belong to the forfeited in the
funds (par.1). respective surviving same manner
As to Property Acquired Through Their Joint descendants; or provided for in Art.
Work/Industry 3. In their absence, to 147; and
the innocent party. 3. The above rules
Governed by rules on Owned by them in apply even if both
co-ownership (par.1). common in proportion In all cases, forfeiture parties are in bad
to respective actual takes place upon faith (par.2).
joint contributions termination of
(par.1) cohabitation (par.4).

As to Property Acquired While Living

Tender Loving Care Doctrine
Together
The relationship between a man and a woman
Presumed to be No presumption of joint whose marriage was subsequently declared null and
obtained by their joint acquisition. When void on the ground of psychological incapacity is
efforts, work, or industry there is evidence of governed by Art. 147 of the Family Code. Under this
and shall be owned by joint acquisition but provision, there exists a presumption that
them in equal shares. none as to the extent of contributions made during the marriage are equal.
Efforts in care and actual contribution, Even if one of the parties did not contribute
maintenance of family there is a presumption materially to the common fund, but the said party
and household of equal contributions took care of the household, the other party and their
considered contribution and shares (par.1). common children, these acts are considered the said
in acquisition (par.2). party’s contribution to the common fund
(Buenaventura v. CA, G.R. Nos. 127358 & 127449,
NOTE: Neither party March 31, 2005).
can encumber or
dispose by acts inter NOTE: In contrast, Art. 148 provides no presumption
vivos of his or her share of joint acquisition. It must be stressed that actual
in the property acquired contribution is required by this provision, as opposed
during cohabitation and to Art. 147 which states that efforts in the care and
owned in common maintenance of the family and household, are
without the consent of regarded as contributions to the acquisition of
common property by one who has no salary or
income or work or industry. Under Art. 148, if the par. 1).
actual contribution of the party is not proved, there
will be no co-ownership and no presumption of equal EXCEPTIONS:
shares (Agapay v. Palang, G.R. No. 116668, July 1. When a stranger is involved in the suit;
28, 1997). Hence, mere cohabitation without proof of
contribution will not result in a co-ownership (Tumlos REASON: The interest of such stranger may
v. Sps. Fernandez, G.R. No. 137650, April 12, differ from the interest of members of the same
2000). family (STA.MARIA, supra at 620).

Only properties acquired by them through their 2. In cases where a compromise is not
actual joint contribution of money, property, or allowed: (F2AC-J-VHSG)
industry shall be owned by them in common in a. Future support;
proportion to their respective contributions. The b. Future legitime;
words “married to” preceding the name of spouse c. Any ground for legal separation;
are merely descriptive of the civil status of the d. Civil status of persons;
registered owner. Such words do not prove co- e. Jurisdiction of courts
ownership. Without proof of actual contribution from f. Validity of marriage or a legal separation
either or both spouses, there can be no co- (CIVIL CODE, Art. 2035);
ownership under Art. 148 of the Family Code (Go- g. Petition for Habeas corpus (Tribiana v.
Bangayan v. Bangayan, Jr., G.R. No. 201061, July Tribiana, G.R. 137359, September 13,
3, 2013). 2004); and
h. Petition for Settlement of estate
i. Guardianship and custody of children
(Martinez v. Martinez, G.R. No. 162084,
THE FAMILY June 28, 2005) (STA. MARIA, supra at
620).
(ARTS. 149-162)
NOTE: For Article 151 of the Family Code to apply,
the suit must be exclusively between or among
"members of the same family" (Moreno v. Kahn,G.R.
The family, being the foundation of the nation, is a No. 217744, July 30, 2018).
basic social institution which public policy cherishes
and protects (FAMILY CODE, Art. 149); therefore, Term “Suit” Limited to Civil Action or Civil
no suit between members of the same family shall Liability
prosper unless earnest efforts for a compromise The term “suit” provided by law clearly implies only
between the parties have failed (FAMILY CODE, Art. civil actions (Manalo v. CA, G.R. No. 129242,
151, par.1). Family relations are governed by law January 16, 2001).
and no custom, practice or agreement destructive of
the family shall be recognized or given effect On the other hand, Art. 332 of the Revised Penal
(FAMILY CODE, Art. 149). Code provide for exemption from criminal, but not
civil liability, for the crimes of theft, swindling or
FAMILY RELATIONS INCLUDE: malicious mischief committed or caused by the
(HW-PC-AD-BS) following:
1. Between Husband and Wife; 1. Spouses, ascendants and descendants, or
2. Between Parents and Children; relative by affinity in the same line;
3. Among other Ascendants and Descendants; 2. The widowed spouse with respect to the
and property which belonged to the deceased
4. Among Brothers and Sisters whether full orhalf– spouse before the same shall have passed into
blood (FAMILY CODE, Art. 150). the possession of another; and
3. Brothers and sisters and brothers-in-law and
sisters-in-law, if living together.
MANDATORY PRIOR RECOURSE TO
COMPROMISE NOTE: The exemption established by Article 332 of
GENERAL RULE: No suit between members of the Revised Penal Code shall not be applicable to
the same family shall prosper unless it should strangers participating in the commission of the
appearfrom the verified complaint or petition that crime (STA. MARIA, supra at 620-621).
earnest efforts toward a compromise have been
made, butthat the same have failed. If it is shown
that no such efforts were in fact made, the same
case mustbe dismissed (FAMILY CODE, Art. 151,
RUNNING OF PRESCRIPTIVE PERIODS became due and demandable prior to the
Unless otherwise provided by the Family Code and effectivity of the Family Code. To be able to avail
other laws, Art. 1109 of the Civil Code provides that of the benefits of a family home in relation to
prescription does not run between: debts which matured prior to August 3, 1988, it
1. Husband and wife, even though there be a must be shown that the home was constituted
separation of property agreed upon in the either judicially or extrajudicially pursuant to the
marriage settlements or by judicial decree; old Civil Code (STA.MARIA, supra at 627).
2. Parents and children during the latter’s minority
or insanity; and 2. Debts due to Laborers, mechanics, architects,
3. Guardian and ward during the continuance of builders, materialmen and others who have
the guardianship (STA.MARIA, supra. at 624). rendered service or furnished materials for the
construction of the building;
3. Debts secured by Mortgages on the premises
FAMILY HOME
before or after constitution of the family home;
It is constituted jointly by the husband and the wife and
or by an unmarried head of the family. It is the 4. Non–payment of Taxes (FAMILY CODE, Art.
dwelling house where they and their family reside, 155).
and the land on which it is situated. (FAMILY CODE,
Art. 152). Exemption must be timely raised as a defense
against execution
The requirement of a house and land as constitutive While it is true that the family home is constituted
of a family home stresses the element of on a house and lot from the time it is occupied as a
permanence. Hence, a boat on a water cannot be family residence and is exempt from execution or
constituted a family home. The occupancy must be forced sale under Article 153 of the Family Code,
actual and not constructive. One cannot claimthat such claim for exemption should be set up and
he or she has occupied the premises at the time his proved to the Sheriff before the sale of the property
or her overseer, maid, houseboy or driver has lived at public auction. Failure to do so would estop the
in the said place because occupancy by the one party from later claiming the exemption (Honrado v.
claiming the house as a family home must be actual CA, G.R. No. 166333, November 25, 2005; see also
and not constructive (STA.MARIA, supra at 625). Sps. Araceli & Ernesto de Mesa v. Sps. Acero, G.R.
GENERAL RULE: The family home is exempt from No. 185064, January 16, 2012).
execution, forced sale or attachment (FAMILY Remedy against Execution is a motion to quash
CODE, Art. 155). A motion to quash is available where the writ of
execution varies the terms of the judgment, or where
COMMENCEMENT OF EXEMPTION: it is sought to be enforced against property exempt
Exemption is effective from the time of the from execution (1 REGALADO, Remedial Law
constitution of the family home as such and lasts so Compendium, (2010) p.453 [hereinafter
long as any of its beneficiaries actually resides REGALADO, Remedial Law]).
therein (Spouses Kelley, Jr. v. Planters Products,
Inc., G.R. No. 172263 (Resolution), July 9, 2008).
OUTLINE OF PROVISIONS REGARDING
REASON: When the creditors seize the family THE FAMILY HOME:
house, they virtually shatter the family itself (1 1. It is constituted on the dwelling house of the
PARAS, supra at 663). family and the land on which the house is
situated (FAMILY CODE, Art. 152);
EXCEPTIONS: (P-LMT) 2. Deemed constituted from time of actual
1. Debts incurred Prior to constitution of the family occupation as a family residence (FAMILY
home (FAMILY CODE, Art. 155); CODE, Art. 153);
3. Continues to be such as long as any of its
As a rule, the family home is exempt from beneficiaries actually resides therein (FAMILY
execution, forced sale or attachment. However, CODE, Art. 153);
Art. 155(3) of the Family Code explicitly allows 4. Must be part of the properties of the absolute
the forced sale of a family home “for debts community or the conjugal partnership or own
secured by mortgages on the premises before by person constituting it (may beeither or both
or after such constitution” (Sps. Fortaleza v.Sps. spouses or the unmarried head of a family)
Lapitan, G.R. No. 178288, August 15, 2012). (FAMILY CODE, Art. 156 par. 1);
5. Property that is the subject of a conditional sale
NOTE: Art. 153 cannot be given retroactive on installments where ownership is reserved by
effect to shield the homes of debtors from the vendor only to guarantee payment of the
execution of judgment arising from debts which purchase price may be constituted as a family
 home. (FAMILY CODE, Art. 156, par. 2) No. 170829, November 20, 2006).
6. There must be a fixed and permanent
connection with the persons constituting it The enumeration in Article 154 of the Family
(STA.MARIA, supra at 631). Code may include in-laws provided the home is
7. Rule applies to valid and voidable marriages and jointly constituted by husband and wife. But the
even to common-law spouses under Arts. 147 law definitely excludes maids and overseers
and 148 of the Family Code; and (Patricio v. Dario III, G.R. No. 170829,
8. Continues despite death of one or both spouses November 20, 2006).
or unmarried head of the family for 10 years, or
as long as a minor beneficiary lives therein. 10. A person may constitute or be the beneficiary of
Heirs cannot partition the same unless the court 1 family home only (FAMILY CODE, Art. 161).
finds compelling reasons therefor. This rule
shall apply regardless of whoever owns the 11. May be alienated, sold, donated, assigned or
property or constituted the family home (FAMILY encumbered by the owners provided the written
CODE, Art. 159). consent of the following are obtained:
a. The person who constituted the same;
Note: If after 10 years from death and a minor b. His or her spouse; and
beneficiary still lives therein, the family home c. Majority of the beneficiaries of legal age
shall be preserved only until that minor (FAMILY CODE, Art. 158).
beneficiary reaches the age of majority. The
intention of the law is to safeguard and protect NOTE: In case of conflict, the court shall decide
the interests of the minor beneficiary until he (FAMILY CODE, Art. 158).
reaches the age of majority (Patricio v. Dario III,
G.R. No. 170829, November 20, 2006).

Family Home Shielded from Partition PATERNITY AND

The family home is shielded from immediate
partition under Art. 159 regardless of its FILIATION
ownership. This signifies that even if the family
home has passed by succession to the co-
(ARTS. 163-182)
ownership of the heirs, or has been willed to
any one of them, this fact alone cannottransform
the family home into an ordinary property, much PATERNITY
less dispel the protection cast upon it by the law.
The rights of the individual co-owner of the It is the civil status or relationship of the father to
family home cannot subjugate the rights granted the child (SEMPIO-DIY, supra at 255).
under Art. 159 to the beneficiaries of the family
home (Arriola v. Arriola, G.R. No. 177703, FILIATION
January 28, 2008). It is the civil status or relationship of the child to the
father or mother (Id.).
9. To be a beneficiary (other than the husband
and the wife or an unmarried person who is the The filiation of children may be by nature or by
head of the family), the following requisites must adoption. Natural filiation may be legitimate or
concur: illegitimate (FAMILY CODE, Art. 163).
a. Must be parent, ascendant, descendant,
brother or sister whether legitimate or NOTE: Legitimate or illegitimate filiation is fixed by
illegitimate (FAMILY CODE,Art. 154 par. 2). law and cannot be left to the will of the parties or the
b. Must live in the family home (actual declaration of any physician or midwife (Angeles v.
occupancy) (Salazar v. Felias, G.R. No. Maglaya, G.R. No. 153798. September 2, 2005).
213972, February 5, 2018).
c. Must be dependent for legal support upon LEGITIMATE CHILDREN (MA²VS)
the head of the family. 1. Those conceived or born before the judgment
of Annulment or absolute nullity of marriage
NOTE: A grandson was not considered a under Article 36 has become final and executory
beneficiary of a family home owned by his (FAMILY CODE, Art. 54);
grandparent because, while the said grandchild 2. Product of Artificial insemination of the wife with
was living in the said family home, he was not the sperm of the husband or that of adonor or
dependent for support on the grandparent, who both provided both spouses authorized or
was the head of the family where the grandchild ratified such procedure in a written instrument,
lived, but on his father (Patricio v. Dario III, G.R. executed and signed before birth of child and
 recorded in the civil registry together with the
LEGITIMATE ILLEGITIMATE
birth certificate of the child (FAMILY CODE, Art.
164 par. 2); priority set by law in Art. pars. 2 and 3
3. Those conceived or born during a Valid 195 and 199 of Family (STA.MARIA, supra. at
marriage (FAMILY CODE, Art. 164 par. 1); Code (STA.MARIA, p. 686).
Although the mother may have declared against supra at 686). Entitled to
its legitimacy or was sentenced as an adulteress support from brothers Support from legitimate
(FAMILY CODE, Art. 167); and and sisters sibling subject to the
4. Those born in a Subsequent void marriage due condition in Article 196.
to failure to comply with Arts. 52 and 53 Preferential right to No such preference.
(FAMILY CODE, Art. 54).
support over mother if
father has no sufficient Conjugal partnership/
ILLEGITIMATE CHILDREN means to meet both absolute community
Conceived and born outside a valid marriage or claims. property is only
inside a void ab initio marriage such as bigamous secondarily liable for
and incestuous marriages and marriage declared Conjugal partnership of the support of
void for being contrary to law and public policy gains and absolute illegitimate children
(FAMILY CODE, Art. 165). community of property since primary
are primarily liable responsibility falls on
LEGITIMATE CHILDREN V. (FAMILY CODE, Arts. the parent’s
ILLEGITIMATE CHILDREN 94, par. 1 and Art 121, exclusive
par. 1). property (FAMILY
LEGITIMATE ILLEGITIMATE CODE, Arts. 94, par. 9
and 122, par. 3).
As to Use of Surname
As to Successional Right
Right to bear father’s Generally required to
surname. use mother’s surname.
Entitled to a legitime of Legitime is 1/2 of the
EXCEPTION: ½ of the hereditary legitime of a surviving
If child’s filiation has estate of the father and legitimate child (CIVIL
been expressly of the mother (CIVIL CODE, Art. 991).
recognized by the CODE, Art. 888).
father through the
record of birth As to Right under the SSS (R.A. 8282) and
appearing in the civil GSIS (R.A. 8291)
register, or when an Primary beneficiary. Not primary
admission in a public beneficiaries.
document or private
handwritten instrument As to Effect of Paternity Leave under R.A. No.
is made by the father 8187 (Paternity Leave Act of 1996)
(R.A. No. 9255, Sec.
1). Father is entitled to No such benefit.
paternity leave of 7 days
As to Parental Authority with full pay.
Joint authority of Sole parental authority As to Prohibition of Marriage with Adopted
parents (FAMILY of mother (FAMILY Children
CODE, Art.211). CODE, Art. 176). But
joint if mother and A marriage between an No such prohibition
father are living adopted child and a between a marriage
together (FAMILY legitimate child of the between an adopted
CODE, Art. 211). adopter is void as child and an illegitimate
against public policy child of the adopter.
As to Support (FAMILY CODE, Art. 38,
par. 7).
Entitled to receive Entitled to receive
support from any of his support only up to his
or her direct ascendants or her grandparents or
and descendants in grandchildren as
accordance with the provided for in Art. 195,
ARTIFICIAL INSEMINATION Impotency
It is the impregnation of a female with semen from Impotency refers to physical inability of male
a male without sexual intercourse. The semen may organ to copulate while sterility is failure to have
be that of a husband, that of a donor, or a a child (1 PARAS, supra at 676).
combination of the husband’s and a donor’s semen
(SEMPIO-DIY, supra at 259). When Art. 166 speaks of physical incapacity of
the husband to have sexual intercourse with the
wife, the law is referring to impotency, which
RULE ON CHILDREN CONCEIVED AS A imports a total want of power of copulation and,
RESULT OF ARTIFICIAL INSEMINATION as a necessary incident thereto, the inability to
The status of the child is legitimate if all the procreate. As a result of which, sexual
requirements under Art. 164 are complied with intercourse or access is physically impossible
namely: (BAR) (RABUYA, supra at 539).
1. Both spouses authorize or ratify such
insemination; NOTE: Must be proved by convincing and
2. The Authorization or ratification is in a written persuasive evidence hence, the fact that a
instrument signed by them before the birth of the husband, who was never separated from his
child; and wife, has been absolutely stiff in the hips at the
3. The instrument is Recorded in the civil registry time of the conception of the child has been held
together with the birth certificate of the child. as not conclusive enough to overturn the
presumption of legitimacy (STA.MARIA, supra
Note: Even if the above requirements are not at 652).
complied with and the husband does not impugn
the legitimacy of the child on grounds provided by NOTE: The fact that the husband had
Art. 166 within the prescriptive period, the childshall undergone vasectomy is not sufficient proof to
still be considered legitimate because the child has rebut the presumption of legitimacy of a child of
been conceived or born during the valid marriage of his wife
the parents pursuant to Art. 164, par. 1.
Vasectomy involves the removal of about an
RULES ON IMPUGNING LEGITIMACY inch of the tubes or vas deferens which is the
Arts. 166 and 167 of the Family Code necessarily passage way of the sperm from the testicle to
applies only to a situation where the child has been the urethra and tying the remaining ends. The
delivered by a woman who is the child’s natural sperm can re-channel itself and effect a
mother (STA.MARIA, supra at 645). It does notapply fertilization (STA.MARIA, supra at 654).
where the child is alleged not to be the biological
The fact of vasectomy must be coupled with
child of a certain couple (Geronimo vs. Santos, G.R.
concrete proof that the husband was entirely
No. 197099, September 28, 2015).
sterile, and that re-channelization did not occur
(Id.).
In the event that any of the grounds enumerated in
Art. 166 is proven, the child will neither be
legitimate nor illegitimate in so far as the husband b. Husband and the wife were
is concerned. Simply, the husband and the child will livingseparately in such a way that
not be related to each other in any manner intercourse was not possible;
considering that the husband did not participate in
any way as to the child’s procreation. In so far as the Note: Mere remoteness of the wife from
mother is concerned, the child will be considered the husband is not sufficient to disavow
illegitimate (Id.). paternity. Hence, the bare testimony by the
husband that he and his wife were living
GROUNDS FOR IMPUGNING thirty miles away from each other at thetime
LEGITIMACY: (PBC) of the conception of the child is not enough
to show the illegitimacy of the child without
1. Physical impossibility of the husband any showing that the sexual intercourse with
to have sexual intercourse with his wife the wife was not possible (STA.MARIA,
within the first 120 days of the 300 days supra at 652).
immediately preceding the child’s birth,
due to: c. Serious illness of the husband which
absolutely prevented sexual intercourse
a. Physical incapacity of the husband;
Note: Must be such as to absolutely prevent
him from engaging in sexual intercourse.
 Thus, in Andal v. Macaraig, G.R. No. L- collaterally. The legitimacy of the child can be
2474, May 30, 1951, the Court ruled that the impugned only in a direct action brought for that
fact that the husband was seriously sick with purpose, by the proper parties, and within the period
tuberculosis was not sufficient to overcome limited by law (Geronimo vs. Santos, G.R. No.
the presumption of legitimacy. Impossibility 197099, September 28, 2015 see also Tison vs.
of access by husband to wife would include Court of Appeals, G.R. No. 121027, July 31, 1997).
absence during the initial period of
conception; impotence which is patent, PARTIES WHO CAN IMPUGN
continuing and incurable; and LEGITIMACY OF A CHILD
imprisonment, unless it can be shown that
GENERAL RULE: Only the husband may impugn.
cohabitation took place through corrupt
Impugning the legitimacy of the child is a strictly
violation of prison regulations.
personal right of the husband. It is only in
exceptional cases that his heirs are allowed to
2. Biological or scientific proof that the contest such legitimacy. Outside of these cases,
child could not have been that of the none—even his heirs—can impugn legitimacy; that
husband; and would amount to an insult to his memory (Liyao Jr.
v. Liyao, G.R. No. 138961, March 7, 2002).
NOTE: Racial dissimilarity may be considered
sufficient scientific proof (STA.MARIA, supra at EXCEPTION: The heirs may impugn within the
653). sameperiod in the following cases:
1. If the husband dies before the expiration of the
For sterility to constitute proof of non-paternity, period fixed for bringing his action;
the husband must be shown to be completely 2. If he should die after the filing of the complaint
sterile at the time when the child was conceived without having desisted therefrom; or
(STA. MARIA, supra at 654). 3. If the child was born after the husband’s death
(FAMILY CODE, Art. 171).
3. Vitiated Consent in artificial
insemination MOTHER HAS NO RIGHT TO DISAVOW
An assertion by the mother against the legitimacy
NOTE: The mistake, fraud, violence,
of her child cannot affect the legitimacy of the child
intimidation or undue influence can be exerted
born or conceived within a valid marriage. A mother
not only by the spouses against each other, but
has no right to disavow a child because maternity is
also by third persons on both of the spouses or
never uncertain (Concepcion v. CA, G.R. No.
on any one of them. In any case, only the
123450, August 31, 2005).
husband as provided in Art. 170 can impugn the
legitimacy of the child, or his heirs in special
cases provided in Art. 171. DNA TESTING IN CASE OF DEATH OF
FATHER
PRESCRIPTIVE PERIODS TO IMPUGN The death of the putative father does not ipso facto
LEGITIMACY: negate the application of DNA testing for as long as
appropriate biological samples of his DNA exist. In
1. One year from knowledge of birth or recording in
such a case the petitioner must show the
the civil register, if husband or heirs live inthe
impossibility of obtaining an appropriate biological
SAME city/municipality where the birth took
sample that can be utilized for the conduct of DNA
place or was recorded.
testing (Estate of Rogelio Ong v. Diaz, G.R. No.
2. Two years, if both reside in the Philippines
171713, December 17, 2007).
3. Three years, if the child’s birth took place orwas
recorded in the Philippines while the husband
STATUS OF CHILDREN BORN WITHIN
has his residence abroad (FAMILY CODE, Art.
THREE HUNDRED (300) DAYS FROM
170).
THE TERMINATION OF A FIRST
MARRIAGE AND THE CELEBRATION
LEGITIMACY NOT SUBJECT TO OF A SUBSEQUENT MARRIAGE
COLLATERAL ATTACK Requisites: (TS–WBN)
Well-settled is the rule that the issue of legitimacy 1. First marriage was Terminated;
cannot be attacked collaterally. The rationale for 2. Mother contracted a Subsequent marriage;
these rules has been explained in this wise: “The 3. Subsequent marriage was contracted Within
presumption of legitimacy in the Family Code 300 days after termination of previous marriage;
actually fixes a civil status for the child born in 4. Child was Born within 300-day period;
wedlock, and that civil status cannot be attacked 5. No evidence as to status of child (FAMILY
 CODE, Arts. 168 and 169). by an attending physician as proof of filiation,
the Supreme Court said: Jurisprudence teaches
Illustration: that a birth certificate, to be considered as
- Termination of first marriage: October 1, 2011 validating proofof paternity and as an instrument
- Celebration of second marriage: January 1, 2012 ofrecognition, must be signed by the father and
- 300th day from termination of first marriage: July 26, mother jointly, or by the mother alone if the
2012 father refuses (Angeles v. Maglaya, G.R. No.
- 180th day from celebration of second marriage: 153798, September 2, 2005).
June 28, 2012
NOTE: A final judgement however based on a
Hence, a child born on or before June 28, 2012 is compromise agreement where the parties
presumed to be filiated to the first husband. A child stipulated and agreed on the status of a person
born at any time after June 28, 2012 (even if before is void. Contractually agreeing and establishing
July 26, 2012) is presumed to be filiated with the the civil status of a person is against the law and
second husband. public policy (STA. MARIA, supra at 673.)

No Presumption of Legitimacy After 300 days 2. An Admission of legitimate (or

The law does not give a status to a child born after illegitimate) filiation in a public
300 days following the termination of the marriage document or a private handwritten
(SEMPIO – DIY, supra at 283). The legitimacy or instrument and signed by the parent
illegitimacy of a child born 300 days following the
concerned.
termination of the marriage shall be proved by
whoever alleges such legitimacy or illegitimacy
Note: If it is a mere instrument, not in the
(FAMILY CODE, Art. 169).
handwriting of the supposed parent or not a
public instrument it will not qualify under the law
NOTE: Art. 169 negates any presumption of filiation
(Id.).
for a child born after 300 days from the termination
of a marriage, in the absence of a subsequent
marriage (STA.MARIA, supra at 662). EXCEPTIONS:
In the absence of any of the foregoingevidence, such
PROOF OF FILIATION PROCEEDING legitimate or illegitimate filiation shall be proved by:
(OA)
Is a special statutory proceeding to enforce a civil
obligation or duty specifically for the purpose of
1. Open and continuous possession of the
establishing parentage and the putative father’s
status of a legitimate or illegitimate
duty to support his child (1 PARAS, supra at 684).
child;
Filiation proceedings do not merely resolve the
matter of relationship with a parent but also secure “Continuous” does not mean that the
the legal rights associated with that relationship: possession of status shall continue forever, but
citizenship, support, and inheritance, among others. only that it shall not be of an intermittent
An integrated determination of filiation is “entirely character while it is continuous. The
appropriate” to the action for support filed by possession of such status means that the father
petitioner Richelle for her child. An action for support has treated the child as his own, directly and not
may very well resolve that ineluctable issue of through others, spontaneously, and without
paternity if it involves the same parties, is brought concealment, though without publicity. There
before a court with the proper jurisdiction, prays to must be a showing of permanent intention of the
impel recognition of paternal relations, and invokes supposed father to consider the child as his own
judicial intervention to do so (Abella v. Cabañero, by continuous and clear manifestation of
G.R. No. 206647, August 9, 2017). paternal affection and care (Mendoza v. CA,
G.R. No. 86302, September 24, 1991).
GENERAL RULE:
According to Art. 172 of the Family Code, filiation of
2. Any other means allowed by the Rules of
legitimate (or illegitimate) children is established by Court and special laws (FAMILY CODE,
any of the following: (RJA) Art. 172):
a. An act or declaration concerning pedigree
1. The Record of birth appearing in the civil (RULES OF COURT, RULE 130, Sec. 33);
b. Family reputation or tradition concerning
registry or a final Judgment; or
pedigree (RULES OF COURT, RULE 130,
Sec. 40);
NOTE: In disregarding a birth certificate signed
c. Common reputation respecting pedigree
 (RULES OF COURT, RULE 130, Sec. 41); “admission of legitimate filiation in a public document
d. Judicial admission (RULES OF COURT, or a private handwritten instrument signed by the
RULE 129, Sec. 2); parent concerned”.
e. Admission of a party (RULES OF COURT,
RULE 130, Sec. 22); and NOTE: In the aforementioned case, petitioner has
f. Admission by silence (RULES OF COURT, shown that he cannot produce his Certificate ofLive
RULE 130, Sec. 32). Birth since all the records covering the period 1945-
1946 of the LCR of Bacolod City were destroyed,
OTHER EVIDENCE OF FILIATION which necessitated the introduction of other
Baptismal certificate, judicial admission, familybible, documentary evidence – particularly his SSS Form
evidence of pedigree, admission by silence, E-1 – to prove filiation (Id.).
testimonies of witnesses and other pieces of
evidence under Rule 130 of the Rules of Court may DNA TESTING TO PROVE PATERNITY
be proofs of filiation (Salas v. Matusalem, G.R. No. DNA evidence can be used to prove paternity for the
180284, September 11, 2013). first time. In upholding the validity of the order
requiring DNA testing to prove paternity, the Court
HANDWRITTEN AUTOBIOGRAPHY provided that: it has long believed in the merits of
In Dela Cruz v. Gracia (G.R. No. 177728, July 31, DNA testing and have repeatedly expressed as
2009), a handwritten autobiography of the father was much in the past. This case comes at a perfect time
recognized as evidence of filiation although not when DNA testing has finally evolved into a
signed. The Court ruled that “where the private dependable and authoritative form of evidence
handwritten instrument is accompanied by other gathering. We therefore take this opportunity to
relevant and competent evidence, it suffices that the forcefully reiterate our stand that DNA testing is a
claim of filiation therein be shown to have been valid means of determining paternity (Agustin vs.
made and handwritten by the acknowledging parent Court of Appeals, G.R. No. 162571, June 15, 2005).
as it is merely corroborative of such other evidence.”
ACTION TO CLAIM LEGITIMACY WHO
BAPTISMAL CERTIFICATE MAY CLAIM:
However, in the subsequent case of Makati Shangri- 1. Child
La & Resort, Inc. v. Harper, (G.R. No. 189998, – exclusive and personal right of childwhich
August 29, 2012), the Court held that, as a rule, may be brought during his lifetime.
baptismal certificate, being hearsay, is not
conclusive proof of filiation. NOTE: If the proofs to be used by the illegitimate
child are those under the first paragraph of Art.
While a baptismal certificate may be considered a 172, he or she has his or her whole lifetime to
public document, it can only serve as evidence of the bring the action to claim his or her illegitimate
administration of the sacrament on the datespecified status.
but not the veracity of the entries with respect to the
child’s paternity; and that baptismal certificates were However, if the proofs used are those mentioned
"per se inadmissible in evidence as proof of in the second paragraph of Art. 172, the
filiation," and thus "cannot be admitted indirectly as illegitimate child may only bring the action during
circumstantial evidence to prove filiation (Heirs of the lifetime of his alleged parent (STA. MARIA,
Arado v. Alcoran, G.R. No. 163362, July 8, 2015). supra at 692; see also Ara v. Pizarro,G.R. No.
187273, February 15, 2017).
A baptismal certificate is "no proof of the
declarations in the record with respect to the
parentage of the child baptized, or of prior and ART 172(1) V. ART 172(2)
distinct facts which require separate and concrete ART 172, PAR. 1 ART 172, PAR. 2
evidence" (Heirs of Roldan v. Heirs of Roldan, G.R.
No. 202578, September 27, 2017). As to Proof

Record of birth1. Open and continuous

SOCIAL SECURITY SYSTEM (SSS) appearing in the civil possession of the
FORM register or a final status of a legitimate
In Aguilar v. Siasat, G.R. No. 200169, January 28, judgment; or an child; or
2015, petitioner’s SSS Form E-1 satisfies the admission of legitimate2.
requirement for proof of filiation and relationship to filiation in a public3. Any other means
the Aguilar spouses under Art. 172 of the Family document or a private allowed by the Rules of
Code; by itself, said document constitutes an handwritten instrument Court and special laws.
 NOTE: Illegitimate child is under the sole parental
ART 172, PAR. 1 ART 172, PAR. 2
authority of the mother, who is entitled to keep the
and signed by the parent child in her company. Recognition of the child by
concerned. the father could be a ground for ordering him togive
support to, but not to the custody of the child.
As to Prescriptive Period However, he is entitled to visitorial rights over the
child (Briones v. Miguel, G.R. No. 156343, October
During the lifetime ofthe During the lifetime of 18, 2004).
child. the child and the
putative parent. However, if the alleged father admits that the child
is his and lives with the child and the mother under
2. Guardian a void marriage or without the benefit of marriage,
– if the child is a minor, or incapacitated, or both parents exercise parental authority (Dempsey
insane (SEMPIO-DIY, supra at 291). v. RTC, G.R. No. 77737, August 15, 1988).

3. Transmitted to heirs of the child within a ILLEGITIMATE CHILDREN MAY USE

period of 5 years in case: THE SURNAME OF THEIR FATHER IF:
a. Child dies during minority; (EA)
b. Child dies in a state of insanity; and 1. Their filiation has been Expressly recognized by
c. Child dies after action has already been the father through the record of birth appearing
instituted (FAMILY CODE, Art. 173). in the civil register; or
2. When an Admission in a public document or
ACTION TO CLAIM ILLEGITIMACY private handwritten instrument is made by the
Illegitimate children may establish their illegitimate father; provided, that the father has the right to
filiation in the same way and on the same evidence institute an action before the regular courts to
as legitimate children (FAMILY CODE, Art. 175). prove non-filiation during his lifetime (R.A. No.
1. If illegitimate filiation is established by a record 9255, Sec. 1).
of birth in the civil register or a final judgment,
or an admission of filiation in a public document NOTE: An acknowledged illegitimate child is under
or a private handwritten instrument signed by no compulsion to use the surname of his illegitimate
the parent concerned, the action for recognition father. It is not the father or the mother who is
may be brought by the child during his lifetime granted by law the right to dictate the surname of
(Guy v. CA, G.R. No. 163707, September 15, their illegitimate children (Grande v. Antonio, G.R.
2006). No. 206248, February 18, 2014).

2. If the action is based upon open and continuous LEGITIMATED CHILDREN

possession of the status of an illegitimate child, Children conceived and born outside of wedlock of
or any other means allowed by the rules or parents who, at the time of conception of the former,
special laws, it may be only brought during the were not disqualified by any impediment to marry
lifetime of the alleged parent(Id.). each other, or were so disqualified only because
either or both of them were below 18 years of age
Pure Act of Charity not Sufficient and had subsequently married (FAMILY CODE, Art.
The paternal affection and care must not be 177 as amended).
attributed to pure charity. “Such acts must be of such
a nature that they reveal not only the conviction
LEGITIMATION
of paternity, but also the apparent desire to have and
treat the child as such in all relations in society and It is a remedy by means of which those who in fact
in life, not accidentally, but continuously” (Perla v. were conceived and born outside of wedlock and
Baring, G.R. No. 172471, November 12, 2012). should therefore be considered illegitimate are by
legal fiction considered legitimate. It shall take place
When record of birth is unsigned only by the subsequent valid marriagebetween the
Under the Family Code, filiation can be established biological parents (SEMPIO-DIY, supra at 284). It is
by, among others, the record of birth appearing in purely a statutory creation (STA.MARIA, supra at
the civil register, yet the rule is where the birth 696).
certificate presented was not signed by the father
against whom filiation is asserted, such may not be Requisites: (MIN)
accepted as evidence of the alleged filiation. (People 1. There is a valid Marriage subsequent to the
vs. Delantar, G.R. No. 169143, February 2, 2007). child’s birth (FAMILY CODE, Art. 178);
2. The child is Illegitimate; and
3. The parents at the time of the child’s conception
 are Not disqualified by any impediment from BEST INTEREST OF THE CHILD
marrying each other or were so disqualified only Adoption statutes, being humane and salutary, hold
because either or both of them were below 18 the interest and welfare of the child to be of
years of age (FAMILY CODE, Art. 177, as paramount consideration and are designed to
amended by R.A. 9858); provide homes, parental care, and education for
unfortunate, needy, or orphaned children and give
LEGITIMATION IS AUTOMATIC them the protection of society and family in the
Children born out of wedlock to parents who were person of the adopter as well as to allow childless
not allowed by law to marry for being minors are now couples to experience the joys of parenthood and
qualified for legitimation. This has been made give them legally a child in the person of the adopted
possible by R.A. No. 9858 (Legitimization ofChildren for the manifestation of their natural parental
Born to Minor Parents), approved on December 20, instincts. Every reasonable intendment should be
2009 and has amended Art. 177 of the Family Code sustained to promote and fulfill these noble and
of the Philippines. Before R.A. No. 9858, Art. 177 compassionate objectives of the law (In Re: Petition
stated that only children born out of wedlock to for adoption of Michelle P. Lim, G.R. Nos. 168992,
parents who were not disqualified from getting May 21, 2009).
married at the time of conception could be
legitimized. Under the present law, legitimation NATURE OF ADOPTION PROCEEDINGS
would automatically take place upon marriage ofthe The prevailing laws on adoption are the Domestic
parents. Moreover, couples who had children when Adoption Act (R.A. 8552) and the Inter-Country
they were below the marrying age need not go Adoption Act (R.A. No. 8043). Relevant also is the
through the process of having to adopt their own Family Code, which repealed the substantive
offspring just so their children could enjoy the rights provisions of P.D. No. 603 and E.O. No. 91 on
of legitimate children. adoption (DE LEON & WILWAYCO, Special
Proceedings (Essential for the Bench and the Bar),
PERSONS ENTITLED TO QUESTION (2015), p. 286 [hereinafter DE LEON & WILWAYCO,
LEGITIMATION Special Proceedings]).
Generally, refer to those who would
suffer economic or material injury by legitimation 1. Adoption is a juridical act. Only an adoption
such astestamentary or intestate heirs (Id. at 700). made through the court, or in pursuance of
Republic Act No. 8552 (RA 8552) is valid in this
PRESCRIPTIVE PERIOD OF IMPUGNING jurisdiction.
LEGITIMATION Adoption is not of natural law at all, but is wholly
Legitimation may be impugned within 5 years from and entirely artificial. To establish the relation,
the time their cause of action accrues, that is, from the statutory requirements must be strictly
the death of the putative parent (FAMILY CODE, Art. carried out otherwise, the adoption is an
182). absolute nullity (Lazatin v. Campos, G.R. Nos.
L-43955-56, July 30, 1979). It cannot begranted
GROUNDS FOR IMPUGNATION administratively.
Legitimation may be impugned on grounds like:
1. The subsequent marriage of the child’s parents 2. Adoption proceedings are proceedings inrem,
is void; and publication serves as constructive notice to
2. The child allegedly legitimated is not natural; or the whole world. Such publication is enough
3. The child is not really the child of the alleged where the residence of the parents is unknown
parents (SEMPIO – DIY, supra at 288). (Santos v. Aranzanso, G.R. No. L- 23828,
February 28, 1966).

DOMESTIC ADOPTION ACT OF 1998

ADOPTION (R.A. NO. 8552)
(RA 8552 AND RA 8043)
PRE–ADOPTION SERVICES (SEC. 4-6)
The DSWD shall provide for the following services
of licensed social workers to the following:
The process of making a child, whether related or 1. Counseling services for –
not to the adopter, possess in general, rights a. Biological parents (Sec. 4, par. a),
accorded to a legitimate child (1 PARAS, supra at
711). NOTE: No binding commitment for an adoption
 plan shall be permitted before the birth of his or certification may be waived in the same
her child. instances for waiver of residency
requirement in (c) (R.A. 8552, Sec. 7, par.
A period of 6 months shall be allowed for the b).
biological parent(s) to reconsider any decision to
relinquish his/her child for adoption before the NOTE: Requirements of residency and
decision becomesirrevocable. certificate of legal capacity may be waived if the
alien is:
b. Prospective adoptive parents (Sec. 4, par. a. A former Filipino citizen who seeks to adopt
b); and a relative within the 4th degree of
c. Prospective adoptee (Sec. 4, par. c). consanguinity or affinity;
b. One who seeks to adopt the legitimate
2. Exhaust all efforts to locate the son/daughter of his/her Filipino spouse; and
unknown biological parents. c. One who is married to a Filipino citizen and
seeks to adopt jointly with his/her spouse a
NOTE: If efforts fail, child shall be listed as a relative within the 4th degree of
foundling and subsequently be the subject of consanguinity or affinity of the Filipino
legal proceedings where he/she will be declared spouse.
abandoned (Sec. 5).
Foreign Adoptee does not Automatically
WHO MAY ADOPT: Acquire Citizenship
If a Filipino adopts an alien, the adopted alien
1. Filipino citizen: (LPG-CONE)
does not acquire Philippine citizenship because
a. Of Legal age;
such acquisition of citizenship acquires the
b. In a Position to support and care for his/her
character of naturalization which is regulated,
children in keeping with the means of the
family; not by the Civil Code or the Family Code, but by
c. Good moral character; special law (Ching Leng v. Galang, G.R. No.L-
d. In possession of full Civil capacity or legal 11931, October 27, 1958).
rights;
e. At least 16 years Older than the adoptee; 3. Guardian: (TC)
EXCEPTIONS: (BS) a. After Termination of the guardianship, with
i. Adopter is the Biological parent of the respect to the ward; and
adoptee; and b. Clearance of his/her financial
ii. Adopter is the Spouse of the adoptee’s accountabilities (R.A. 8552, Sec. 7, par. c).
parent.
RULE ON ADOPTION BY SPOUSES
f. Has Not been convicted of any crime GENERAL RULE: The husband and the wife shall
involving moral turpitude; and jointly adopt (R.A. 8552, Sec. 7).
g. Emotionally and psychologically capable of
caring for children (Sec. 7, par. a). REASON: For the maintenance of harmony within
the family (STA.MARIA, supra at 721).
2. Alien: (S-DELL)
a. Same qualifications as a Filipino Adopter; EXCEPTIONS: (LIS)
b. Country has Diplomatic relations with the 1. One spouse seeks to adopt the Legitimate child
Philippines; of the other spouse;
c. His or her government allows the adoptee to 2. One spouse seeks to adopt his/her own
Enter his or her country as an adopted child; Illegitimate child with the consent of the other
d. Has been Living in the Philippines for at spouse; and
least 3 continuous years prior to the 3. The spouses are legally Separated (Id.).
application for adoption and maintains such
residence until the adoption decree is OTHER FACTORS TO BE CONSIDERED
entered; and IN EVALUATING PROSPECTIVE
Exception to (d): Temporary absences for
PARENTS: (PEQ-F2M)
professional, business, health, or
emergency reasons not exceeding 60 days 1. Total Personality of the applicants;
in 1 year does not break the continuity 2. Emotional maturity;
requirement (PROCEDURAL RULE ON 3. Quality of marital relationship;
ADOPTION, A.M. No. 02-6-02-SC). 4. Feeling about children;
e. Certified to have Legal capacity to adopt by 5. Feeling about childlessness and readiness to
his/her diplomatic or consular office but adopt; and
6. Motivation (STA.MARIA, supra at 718).
A period of 6 months from the time the biological
WHO MAY BE ADOPTED: (B2-RILL) parents made their decision shall be allowed for the
1. Child whose Biological or adoptive parent(s) biological parent/s to reconsider any decision for
have died, provided that no proceedings shall be adoption subject to the paramount interest of the
initiated within 6 months from the time of death child (STA. MARIA, supra at 725).
of said parent(s);
2. Any person Below 18 years of age or a person EFFECTIVITY OF DECREE OF
under Sec. 2(2) and Sec. 2(5) of R.A. 9523; ADOPTION
3. Child whose adoption has been previously A decree of adoption shall be effective as of the date
Rescinded; the original petition was filed. This applies also in
4. Illegitimate child of a qualified adopter to case the petitioner dies before the issuance ofthe
improve the child’s status to that of legitimacy; adoption decree, to protect the interest of the
5. Legitimate child of the other spouse; and adoptee (R.A. 8552, Sec. 13).
6. A person of Legal age, who, prior to the
adoption, has been consistently considered by
the adopter as his/her own child since minority
EXCEPTION TO RETROACTIVE EFFECT
(R.A. 8552, Sec. 8). In Tamargo v. CA, G.R. No. 85044, June 3, 1992,
where the petition for adoption was granted after
the child had shot and killed a girl, the SC did not
CONSENT IN ADOPTION (A-BiLIS) consider the retroactive effect of the decree of
The written consent of the following is required: adoption so as to impose a liability upon the adopting
1. The Adoptee, if he is 10 years of age or over; parents accruing at the time when they had no actual
2. Known Biological parent(s) or legal guardians or or physical custody over the adopted child. It held
proper government instrumentality which has that retroactive effect may be given where such is
legal custody of the child; essential to permit the accrual of some benefit or
3. Legitimate/adopted children, 10 years old or advantage in favor of the adopted child. To hold that
over, of the adopter(s) and adoptee; parental authority had been retroactively lodged in
4. The Illegitimate children, 10 years old or over, the adopting parents so as to burden them with
of the adopter if living with the adopter and the liability for a tortuous act that theycould neither have
latter's spouse, if any; and foreseen nor prevented would be unfair and
5. Spouse, if any, of the adopter and adoptee unconscionable. To rule otherwise would be
(R.A. 8552, Sec. 9). contrary to the doctrine of vicarious liability.

ADOPTER IN A POSITION TO SUPPORT MIDDLE NAME OF ADOPTED CHILD

An alleged capability to support an adoptee through The illegitimate child subsequently adopted by
the help of other persons is not enough to support a his/her natural father is permitted to use as her
petition for adoption. According to the Supreme middle name the surname of her natural mother for
Court, adoption is personal between the adopter and the following reasons:
adoptee; the adopter should be in a position to 1. It is necessary to preserve and maintain the
support the would-be adopted child in keeping with child’s filiation with her natural mother because
the means of the family (Landingin v. Republic,G.R. under Art. 189 of the Family Code, she remains
No 164948, June 27, 2006). to be an intestate heir of the latter. To prevent
any confusion and needless hardship in the
WRITTEN CONSENT OF BIOLOGICAL future, her relationship or proof of that
PARENTS relationship with her natural mother should be
Sec. 9 of R.A. 8552 provides that if the written maintained;
consent of the biological parents cannot be 2. There is no law expressly prohibiting the
obtained, the consent of the legal guardian must be adopted to use the surname of her natural
sought. To dispense with the requirement of written mother as her middle name. What the law does
consent, the abandonment must be shown to have not prohibit, it allows; and
existed at the time of adoption and evinces a settled 3. It is customary for every Filipino to have a middle
purpose to forego all parental duties. The written name, which is ordinarily the surname of the
consent of the biological parents is indispensable for mother (In the Matter of the Adoption of
the validity of a decree ofadoption. The natural right Stephanie Nathy Astorga Garcia, G.R. No.
of a parent to his child requires that consent be 148311, March 31, 2005).
obtained before parental rights and duties may be
terminated and re- established in adoptive parents
(Landingin v. Republic, G.R. No 164948, June 27,
2006).
EFFECTS OF ADOPTION: (SAL) 1992; see also Labagala v. Santiago, G.R. No.
1. Severance of legal ties between the biological 132305, December 4, 2001).
parents and the adoptee, which shall be vested
in the adopters; RESCISSION OF ADOPTION
– decree of adoption may be rescinded by the
EXCEPTION: If the biological parent is the ADOPTEE only (R.A. 8552, Sec. 19).
spouse of the adopter (R.A. 8552, Sec. 16).
GROUNDS: (PASA)
NOTE: Biological parents of the covered person 1. Repeated Physical or verbal maltreatment by
qualify as the deceased’s dependent parent the adopter(s) despite having undergone
and, thus, entitled to the death benefits under counseling;
the government’s Employees’ Compensation 2. Attempt on the life of the adoptee;
Program (ECP). This ruling finds support on the 3. Sexual assault or violence;
fact that even though parental authority is 4. Abandonment and failure to comply with
severed by virtue of adoption, the ties between parental obligations (R.A. 8552, Sec. 19).
the adoptee and the biological parents are not
entirely eliminated. To demonstrate, the
ADOPTER MAY ONLY DISINHERIT
biological parents, in some instances, are able
to inherit from the adopted, as can be gleaned ADOPTEE
from Art. 190 of the Family Code (Bartolome v. Adoption shall not be subject to rescission by the
SSS, G.R. No. 192531, November 12, 2014) adopters. However, the adopters may disinherit the
adoptee for causes provided under Art 919 of the
2. The Adoptee shall be considered as a Civil Code (R.A. 8552, Sec. 19).
legitimate child of the adopter(s) for all intents
and purposes (Id. Sec. 17); and An adoptee refused to use the surname of the
adopter though already adopted. The adopter
3. In Legal or intestate succession, the adoptee sought to rescind/ revoke the Decree of Adoption
and the adopter(s) shall have reciprocal rights (DOA), but the Domestic Adoption Act (R.A. 8552)
of succession without distinction from legitimate which removes the right of adopter to challenge the
filiation. However, if there is a will, the rules on validity of the DOA became effective. SC held that
testamentary succession shall be followed (Id. the adopter may disinherit the adoptee, and that the
Sec. 18). latter has the sole right to challenge the DOA
(Lahom v. Sibulo, G.R. No 143989, July 14, 2003).
Section 18 of RA 8552 provides that, in legal and
intestate succession, the rights of the adopter(s) DISINHERITANCE OF ADOPTEE BY
and the adoptee refer only to their “reciprocal ADOPTER
rights of succession without distinction from GROUNDS: (GAMM-CARD)
legitimate filiation.” By using the term 1. Groundless accusation against the testator of a
“reciprocal,” the limitation is clear that the rights crime punishable by 6 years or more of
only pertain to those existing and applicable imprisonment;
solely between them in their relationship as 2. Found guilty of an Attempt against the life of
parent and child. Thus, the adoptee is the testator, his/her spouse, descendants or
considered a stranger as to the adopter’s ascendants;
parents. The link is personal and limited to the 3. Causes the testator to Make or change a
adoptee and adopter only. testator’s will through fraud, violence,
intimidation, or undue influence;
It is a rule that successional rights of the adopted 4. Maltreatment of the testator by word or deed;
and the adopter are purely statutory. Unless 5. Conviction of a crime which carries the penalty
provided by the adoption statute, the adopted of civil interdiction;
child does not inherit from the lineal or collateral 6. Adultery or concubinage with testator’s spouse;
kindred of the adoptive parents (STA. MARIA, 7. Refusal without justifiable cause to support the
supra at 738). parent or ascendant; and
8. Leads a Dishonorable or disgraceful life (CIVIL
DECREE OF ADOPTION, NOT SUBJECT CODE, Art. 919).
TO COLLATERAL ATTACK
EFFECTS OF RESCISSION: (PaRAS)
Once an adoption decree is issued, it cannot be
1. Parental authority of adoptee’s biological
attacked collaterally as in the action for partition,
parent(s) or legal custody of DSWD shall be
but in a direct proceeding frontally addressing the
restored if adoptee is still a minor or
issue (Sayson v. CA, G.R. Nos. 89224, January 23,
incapacitated;
2. Reciprocal rights and obligations of the who cooperated in the execution of such simulation,
adopter(s) and the adoptee to each other shall shall not be criminally, civilly, or administratively
be extinguished; liable for such act: Provided, That the simulation of
3. Amended certificate of birth of the adoptee shall birth was made for the best interest of the child and
be cancelled and its original shall be restored; that the child has been consistently considered and
and treated by such personor persons as her, his, or their
4. Succession rights shall revert to their statusprior own daughter orson: Provided, further, That such
to the adoption, but vested rights shall be person or persons has or have filed a petition for
respected (R.A. 8552, Sec. 20). adoption with an application for the rectification of
the simulated birthrecord within ten 10 years from
ADOPTEE REMAINS AN HEIR OF THE the effectivity of this Act: Provided, finally, That all
the benefits of this Act shall also apply to adult
NATURAL PARENTS
adoptees (R.A. 11222, Sec.4).
Being a legitimate child only by virtue of adoption, it
follows that the child is entitled to all the rights
provided by law to a legitimate child. The adopted
EXEMPTION FROM CRIMINAL, CIVIL
child remains an intestate heir of his/her biological AND ADMINISTRATIVE LIABILITY
parents. Hence, she can well assert her hereditary A person or persons who, prior to the effectivity of
rights from her natural mother in the future (In the R.A. 11222, simulated the birth of a child, and those
matter of adoption of Stephanie Nathy Astorga who cooperated in the execution of such simulation,
Garcia, G.R. No. 148311, March 31, 2005). shall not be criminally, civilly, or administratively
liable for such act provided that:
SIMULATION OF BIRTH 1. That the simulation of birth was made for the
best interest of the child and that the child has
It is the tampering of the civil registry making it
been consistently considered and treated by
appear in the birth records that a certain child was
such person or persons as her, his, or their own
born to a person who is not his/her biological mother,
daughter or son;
causing such child to lose his/her true identity and
2. That such person or persons has or have filed
status (R.A.8552, Art. 1, Sec. 3, par. j).
a petition for adoption with an application for
It is a crime defined and punished by Sec. 21 (b) of the rectification of the simulated birth record
within ten (10) years from the effectivity of this
R.A. 8552 committed by any person who shall cause
Act; and
the fictitious registration of the birth of a child under
3. That all the benefits of this Act shall also apply
the names of persons who are not his/her biological
to adult adoptees (R.A. 11222 Sec. 4).
parents.

NOTE: Sec. 22 of R.A. 8552 on Rectification of INTER-COUNTRY ADOPTION ACT OF

Simulated Births has been repealed by R.A. 11222 1995 (R.A. 8043)
otherwise known as “An Act Allowing the The socio-legal process of adopting a Filipino child
Rectification of Simulated Birth Records and by a foreigner or a Filipino citizen permanently
Prescribing Administrative Adoption Proceedings residing abroad where the petition is filed, the
for the Purpose” which has been signed into law on supervised trial custody is undertaken, and the
February 21, 2019 and took effect on March 29, decree of adoption is issued outside the Philippines
2019. (R.A. 8043, Sec. 3, par. a).

SIMULATED BIRTH RECTIFICATION Who May Be Adopted

ACT (R.A. 11222) Only a “legally-free child” may be the subject of inter-
Grants amnesty and allows the rectification of the country adoption (R.A. 8043, Sec. 8).
simulated birth of a child where the simulation was
A child for the purpose of the act is any person below
made for the best interest of the child, and that
fifteen years of age or unless sooner emancipated
such child has been consistently considered and
by law (R.A. 8043, Sec. 3 par. b).
treated by the person or persons who simulated
such birth as her, his, or their own daughter or son
Child Legally Available for Adoption
and exempts from criminal, civil, and administrative
A child in whose favor a certification was issued by
liability those who simulated the birth record of a
the DSWD that he/she is legally available for
child prior to the effectivity of the law (R.A. 11222,
adoption after the fact of abandonment or neglect
Sec. 2).
has been proven through the submission of pertinent
documents, or one who was voluntarily committed
Notwithstanding any provision of law to the contrary,
a person or persons who, prior to theeffectivity of by his/her parent(s) or legal guardian (Sec 2 (5)
this Act, simulated the birth of a child, and those R.A. 9523).
There shall be no physical transfer of a voluntarily Inter-Country Adoption Board
committed child earlier than 6 months from the date It acts as the central authority in matters relating to
of execution of Deed of Voluntary Commitment inter-country adoption (Sec. 3, par. h).
except:
1. Adoption by a relative; and The Board shall ensure that all possibilities for the
2. Children with special medical conditions (R.A. adoption of the child under the Family Code have
8043, Sec. 26). been exhausted and that inter–country adoption is in
the best interest of the child.
Deed of Voluntary Commitment
A deed signed by the parents with DSWD that a child Family Selection and Matching
is being voluntarily submitted for adoption (R.A. The matching of the child with an applicant shall be
8043, Sec. 3, par. s). carried out during a matching conference by the
committee together with the head or social worker
Who may adopt: of the agency or the Secretariat social worker of the
1. Any alien; or inter-country adoption board. The Board shall set the
2. Filipino citizen, both permanently residing guidelines for the manner by which the matching
abroad (R.A. 8043, Sec. 27). process shall be conducted (R.A. 8043, Sec. 11).

Conditions: (JAC-NERD-PQ) Supervision of Trial Custody

1. If married, his/her spouse must Jointly file for the The foreign governmental or an accredited agency
adoption; shall be responsible for the pre-adoptive placement,
2. At least 27 years of Age and at least 16 years care and family counseling of the child for at least 6
older than the child to be adopted, at the time months from his/her arrival in the residence of the
of the application unless the adopter is: applicant/s, when applicable. During the pre-
a. Parent by nature of the child to be adopted; adoptive placement, the foreign authority/agency
or Spouse of such parent shall furnish the Board with quarterly reports on the
3. Capacity to act and assume all rights and child’s health, psycho-social adjustment, and
responsibilities incidental to parental authority relationship with the applicant/s. The report shall
under his/her national laws, and has undergone also include updated information regarding the
the appropriate counseling from an accredited applicants’ personal circumstances, if any (Sec. 44).
counselor in his/her country;
4. Has Not been convicted of a crime involving 1. Starts upon actual physical transfer of the child
moral turpitude; to the applicant who, as actual custodian, shall
5. Eligible to adopt under his/her national law; exercise substitute parental authority over the
6. Agrees to uphold the basic Rights of the child person of the child (Implementing Rules of R.A.
as embodied under Philippine laws, the U.N. 8043, Sec. 42);
Convention on the Rights of a Child, and to 2. The adopting parent(s) shall submit to the
abide by the rules and regulations issued to governmental agency or authorized and
implement the Inter–Country Adoption Act; accredited agency, which shall in turn transmita
7. Comes from a country with whom the copy to the Board, a progress report of the
Philippines has Diplomatic relations and whose child’s adjustment.
government maintains a similarly authorized
and accredited agency and that adoption is Remedy in case of Disruption and Termination of
allowed under his/her national laws; Placement:
8. In a Position to provide the proper care and In the event of serious damage in the relationship
support and to give the necessary moral values between the child and applicant; or when the
and examples to all his children, including the continued placement is no longer in the best
child to be adopted; and interests of the child:
9. Possesses all the Qualifications and none of the 1. The Board through the Central Authority shall
disqualifications under the Inter–Country take necessary measures to protect the child,
Adoption Act and other applicable Philippine in particular cause the child to be withdrawn
laws (Implementing Rules of R.A. No. 8043, as from the applicant and arrange for his
amended). temporary care;
2. The Central Authority shall exhaust all means
Filing of Application to remove cause of unsatisfactory relationship;
Either with the Philippine RTC having jurisdiction 3. The Central Authority shall submit a complete
over the child OR with the Inter-Country Adoption report to the Board as to the actions taken as
Board, through an intermediate agency (R.A. 8043, well as recommendations; and
Sec. 10). 4. Based on the report submitted by the Central
 Authority, the Board may terminate the pre- DOMESTIC ADOPTION V.
adoptive relationship (Implementing Rules of INTERCOUNTRY ADOPTION
R.A. 8043, Sec. 47).
DOMESTIC ADOPTION INTERCOUNTRY
NOTE: If a satisfactory pre-adoptive relationship is (R.A. 8552) ADOPTION(R.A.
formed between the applicant and the child, the 8043)
Board shall transmit an Affidavit of Consent to the
Adoption executed by the Department to theCentral As to Type of Proceeding
Authority and/or the Foreign Adoption Agency (FAA) Judicial Adoption Extrajudicial Adoption
within 15 days after receipt of the last post
placement report (Implementing Rules of R.A. 8043, As to Where to File
Sec. 50).
Family Court of the place Family Court where the
A copy of the final decree of adoption, including the where adopter(s) adoptee resides or
Certificate of Citizenship/Naturalization, whenever reside(s). may be found, or
applicable, shall be transmitted by the Central Intercountry Adoption
Authority and/or the FAA to the Board within 1month Board, through an
after its issuance. The Board shall require the intermediate agency,
recording of the final judgment in the appropriate whether governmental
Philippine Civil Registry (Implementing Rules of R.A. or an authorized
8043, Sec. 52). and accredited
agency, in the country
In the event of termination of the pre-adoptive of the prospective
relationship, the Board shall identify from the Roster adoptive parents (Sec.
of Approved Applicants a suitable family with whom 30 and 51).
to place the child. The Central Authority and/or the
FAA may also propose a replacement family whose As to Who May Adopt
application shall be filed for the approval of the
Board. No adoption shall take place until after the 1. Any Filipino citizen; Foreign nationals and
Board has approved the application of such 2. Any alien Filipino citizens
replacement family (Implementing Rules of R.A. possessing the permanently residing
8043, Sec. 48). same qualifications abroad.
forFilipino nationals,
Presumption of Illegal adoption: (CPEN) (see discussion
1. Consent for adoption was acquired through or regarding
attended by coercion, fraud, improper material qualifications); and
inducement; 3. The guardian with
2. Procedures and safeguards provided by law for respect to the ward
adoption were not complied with; after the termination
3. Has Exposed or subjected the child to be of the guardianship
adopted to danger, abuse or exploitation; and and clearance of
4. No authority to effect adoption from the Board this financial
(Implementing Rules of R.A. 8043, Sec. 57). accountabilities.

As to Who May Be Adopted

1. Any person below 18 Only a legally free child

years of age who may be legally adopted
has been voluntarily under the inter-country
committed; adoption act (Sec 8).
2. The legitimate
son/daughter of one Child Legally Available
spouse by the other for Adoption refers to a
spouse; child in whose favor a
3. An illegitimate certification was issued
son/daughter by a by the DSWD that
qualified adopter to he/she is legally
improve his/her available for adoption
status to that of after the fact of
legitimacy; abandonment or
4. A person of legal neglect has been KINDS: (LJC)
age regardless of proven through the 1. Legal
civil status if, prior to submission of pertinent – one required or given by law;
adoption, said documents, or one who
person has been was voluntarily 2. Judicial
consistently committed by his/her – required by the court to be given whether
considered and parent(s) or legal pendente lite or in a final judgment; and
treated by the guardian (Sec 2 (5)
adopter(s) as his/her R.A. 9523). 3. Conventional
own child since – given by agreement.
minority;
5. A child whose CHARACTERISTICS: (MR-P2INE)
adoption has been 1. Mandatory;
previously 2. Reciprocal on the part of those who are by law
rescinded; or bound to support each other;
6. A child whose 3. Personal;
biological or 4. Provisional character of support judgment;
adoptive parent(s) 5. Intransmissible;
has died: provided 6. Not subject to waiver or compensation; and
that no proceedings 7. Exempt from attachment or execution
shall be initiated (1TOLENTINO, supra at 575).
within 6 months from
time of death of said PERSONS OBLIGED TO SUPPORT
parents (Sec. 8)
7. A Child not
EACH OTHER: (SP²L²)
otherwise 1. Spouses;
disqualified by law or a. The duty to support and the right to be
the rules. supported presuppose a valid marriage
between the parties. However, it has been
As to Supervised Trial Custody held that the adultery of the wife is a valid
defense against an action for support
At least six months, but At least six months. initiated by the wife claiming support
the court may reduce the (Quintana v. Lerma, G.R. No. 7426,
period or exempt parties Within the country of February 5, 1913).
from trial custody (Sec. theadopter.
12). NOTE: It is suggested that while adultery
may be a defense in an action for personal
Within the Philippines. support, that is, support of the wife by the
husband from his own funds, it is not a
As to Issuance of Decree of Adoption defense when the support is to be taken
from the conjugal partnership property
By the Family Court in By the Accredited
(Lerma v. CA, G.R. No. L-33352, Dec. 20,
the Philippines Agency Abroad
1974).
(DELEON & WILWAYCO, supra at 286).
b. Also, a spouse who leaves the conjugal
home or refuses to live therein, without just
cause, shall not have the right to be
SUPPORT supported from the conjugal properties or
the absolute community of properties
(ARTS. 194-208) (FAMILY CODE, Arts. 100 and 127).

2. Parents and their legitimate children, and the

legitimate and illegitimate children of the latter;
SUPPORT:(SDC-MEDET)
It comprises everything indispensable for 3. Parents and their illegitimate children, and the
Sustenance, Dwelling, Clothing, Medical legitimate and illegitimate children of the latter;
attendance, Education and Transportation in
keeping with the financial capacity of the family 4. Legitimate ascendants and descendants; and
(FAMILY CODE, Art. 194).
5. Legitimate brothers and sisters whether full or
 half-blood provided, brothers and sisters not Recognition by the Alleged Father Required
legitimately related whether full or half-bloodare Before a child may be entitled to support, he must
likewise entitled to support to the full extent be recognized by the alleged father (Perla v.
under Art. 194 except when the need for support Baring, G.R. No. 172471, November 12, 2012).
of the brother or sister, being of age, is due to a
cause imputable to claimant’s fault or ORDER OF LIABILITY IF SEVERAL
negligence (FAMILY CODE, Arts. 195-196). PERSONS ARE OBLIGED TO GIVE
NOTE: Art. 197 providing for the source from where SUPPORT: (SDAB)
the support should be taken out highlight the fact that 1. Spouse;
the people enumerated in Art. 195 have a personal 2. Descendants in the nearest degree;
obligation to support each other (STA. MARIA, supra 3. Ascendants in the nearest degree; and
at 798). 4. Brothers and sisters (FAMILY CODE, Art. 199).

If the obligation to give support falls upon two or

OBLIGATION TO SUPPORT A CHILD IS
more persons, payment shall be divided between
A MATTER OF PUBLIC POLICY them in proportion to their resources. In case of
As a rule, the obligation to give support is governed urgent need and special circumstances, the court
by the national law the person obliged to give may order only one of them to furnish support
support. In Del Socorro v. Van Wilsem, the Supreme provisionally subject to the right to claim from the
Court held that “The obligation to give support to a others the share due them (FAMILY CODE, Art. 200,
child is a matter that falls under family rights and par. 1-2).
duties. Since the respondent is a citizen of Holland
or the Netherlands, he is subject to the laws of his INSUFFICIENCY OF MEANS TO GIVE
country, not to Philippine law, as to whether he is
obliged to give support to his child, as well as the
SUPPORT
consequences of his failure to do so.” However, When two or more recipients at the same time claim
since the law of the Netherlands as regards the for support and the person legally obliged to give
obligation to support has not been properly pleaded does not have sufficient means to satisfy all claims:
and proved in the instant case, itis presumed to be 1. The order of liability provided by law shall be
the same with Philippine law, which enforces the followed; and
obligation of parents to support their children and 2. If the concurrent obligees should be the spouse
penalizing the non-compliance therewith. and a child subject to parental authority, the
Additionally, when the foreign law, judgment or child shall be preferred (FAMILY CODE, Art.
contract is contrary to a sound and established 200).
public policy of the forum, the said foreign law,
judgment or order shall not be applied. Thus, even if In Mangonon v. CA, G.R. No. 125041, June 30,
the laws of the Netherlands neither enforce a 2006, the Supreme Court ordered the grandfather,
parent’s obligation to support his child nor penalize who was proven to be well-off to support his
the noncompliance therewith, suchobligation is still grandchildren on the basis of Art. 199, considering
duly enforceable in the Philippines because it would that their parents were not capable of supporting
be of great injustice to the child to be denied of the children.
financial support when the latter is entitled thereto
(G.R. No. 193707, December 10, 2014). SUPPORT BY A STRANGER SHALL BE
REIMBURSABLE UNDER ART. 206 IF:
For support of legitimate ascendants, descendants (IN)
(legitimate/illegitimate), brothers, and sisters
1. Stranger gives support to another person with
(legitimate/illegitimate), only separate property of the
the Intention to be reimbursed; and
person obliged to give support shall be answerable.
2. Person obliged to give support to the recipient
In the absence of separate property, the CPG or
does Not have knowledge of the stranger’s act
ACP shall advance the support deductible from the
share of spouse obliged upon liquidation (FAMILY
CODE, Art. 197).
UNDER ART. 207 IF: (UFU)
1. There is an Urgent need to be supported on the
In case of legitimate descendants (common children part of the recipient;
of the spouse or the legitimate children of either 2. A third person Furnishes the support to the
spouse), the ACP or CPG shall be principally needy individual; and
charged for their support as mandated by law in 3. The person obliged to support Unjustly refuses
Arts. 94, par. 1 and 121, par. 1. This is different from or fails to give the support.
personal support owing to them from the father or
mother as provided in Arts. 195 and 197.
APPLICATION OF THE PRINCIPLE OF PERFORMANCE OF OBLIGATION TO
UNJUST ENRICHMENT SUPPORT (PM)
In Lacson v. Lacson, G.R. No. 150644, August 28, The person obliged to give support shall have the
2006, the Supreme Court ruled that the sisters following options:
would, through their mother, turn to their uncle Noel 1. Pay the allowance fixed; or
Daban for their sustenance and education when 2. Receive and Maintain in the family dwelling the
petitioner (their father) failed to give the same, a person who has a right to receive support
failing which stretched from their pre-schooling days provided that there is no moral or legal obstacle
to their college years. Since such failure has been to do so (FAMILY CODE, Art. 204).
established, it is not amiss to deduce, that Noel
Daban who, owing to consideration of kinship, had NOTE: The latter alternative cannot be availed
reasons to help, indeed lent his sister Lea money to of in case there is a moral or legal obstacle
support her children. Mention may alsobe made thereto, such as the strained relationship
that, contextually, the resulting juridical relationship between the parties (Mangonon v. CA, supra).
between the petitioner and Noel Daban is a quasi-
contract, an equitable principle enjoining one from SUPPORT EXEMPTED FROM
unjustly enriching himself at the expense of another. ATTACHMENT AND EXECUTION
The right to receive support as well as money or
AMOUNT OF SUPPORT property obtained as such support shall not be levied
It shall be in proportion to the resources or means upon on attachment or execution (FAMILY CODE,
of the giver and to the necessities of the recipient Art. 205). But in case of contractual support or that
(FAMILY CODE, Art. 201; Lam v. Chua, G.R. given by will, the excess in amount beyond that
No.131286, March 18, 2004). It shall be increased or required for legal support shall be subject to levy on
reduced proportionately, according to the increase attachment or execution (FAMILY CODE, Art. 208).
or reduction of necessities of the recipient and the
resources or means of the person obliged (FAMILY Only salary "due" the judgment debtor is subject to
CODE, Art. 202). attachment and execution, and then only if it is not
made to appear by the affidavit of the debtor or
The law on support is rooted on the fact that the right otherwise that such earnings are necessary for the
and duty to support, especially the right to education, support of his family. Under the Rules of Court, so
subsists even beyond the age of majority (Estate of much of the earnings of the debtor for his personal
Hilario M. Ruiz v. CA, G.R. No. 118671, January 29, services within the month preceding the levy as are
1996). necessary for the support of his family (RULE 39,
Sec. 122) is exempt from execution (Avendaño v.
DEMAND FOR SUPPORT (ART. 203) Alikapala, G.R. No. L-21189, November 28, 1964).
The obligation to give support shall be demandable
from the time the person who has a right to receive CONTRACTUAL SUPPORT VIS-À-VIS
the same needs it for maintenance, but it shall not LEGAL SUPPORT
be paid except from the date of judicial or Contractual support is one entered into by the
extrajudicial demand (Sy v. CA, G.R. No. 124518, parties usually with reciprocal duties andobligations
December 17, 2007). and is not mandated by law. However, legal support
is that which is mandated by law to begiven and that
PAYMENT OF SUPPORT STARTS FROM which is provided in Art. 194 (STA.MARIA, supra
THE TIME WHEN DEMAND WAS MADE at 826).
Payment of the amount for support starts only from
the time support has been judicially or extra- WHEN OBLIGATION TO SUPPORT
judicially demanded for the right to support does not CEASES
arise from the mere fact of relationship, but from The obligation to furnish support ceases upon the
imperative necessity without which it cannot be death of the obligor, even if he may be bound to give
demanded, and the law presumes that such it in compliance with a final judgement. The
necessity does not exist, unless support is obligation to give support shall also cease: (DREM)
demanded (Jocson v. Empire Insurance Co., G.R. 1. Upon the Death of the recipient;
No. L-10792, April 30, 1958). 2. When the resources of the obligor have been
Reduced to the point where he cannot give the
support without neglecting his own needs and
those of his family;
3. When the recipient may Engage in a trade,
profession, or industry, or has obtained work, or
 has improved his fortune in such a way that he
no longer needs the allowance for his
subsistence; PARENTAL AUTHORITY
4. Upon annulment of the Marriage.
(ARTS. 209-233)
Procedures in Application for Support
The Family Courts shall have exclusive original
jurisdiction to hear and decide Petitions for support
and/or acknowledgment (R.A. No.8369, Sec. 5 (e)). PARENTAL AUTHORITY (PATRIA
POTESTAS)
In cases of violence among immediate family It is the sum total of the right of the parents over the
members living in the same domicile or household, persons and property of their unemancipated
the Family Court may issue a restraining order children. It is pursuant to the natural right and duty
against the accused or defendant upon verified of parents over the same and it includes caring for
application by the complainant or the victim for relief and rearing of such children for civic consciousness
from abuse. The court may order the temporary and efficiency and the development of their moral
custody of children in all civil actions for their and physical character and well-being (FAMILY
custody. The court may also order support pendente CODE, Art. 209).
lite, including deduction from the salary and use of
conjugal home and other properties in all civil CHARACTERISTICS OF PARENTAL
actions for support (R.A. No.8369, Sec. 7). AUTHORITY: (NARD- RTW- JPT)
1. A Natural Right and Duty of the parents
SUPPORT PENDENTE LITE (FAMILY CODE, Art. 209);
During the proceedings for legal separation or for 2. It cannot be Renounced, Transferred, or
annulment of marriage, and for declaration of nullity Waived except in the cases authorized by law
of marriage, the spouses and their children shall be (FAMILY CODE, Art. 210).
supported from the properties of the absolute 3. It is Jointly exercised by the father and mother
community or the conjugal partnership. (FAMILY CODE, Art. 211, par. 1);
4. It is Purely personal and cannot be exercised
Mutual support between the spouses ceases after through agents.; and
final judgment. 5. It is Temporary and will end when the child is
emancipated or can otherwise take care of
In case of legal separation, the court may order the himself and his property, or the parent is unable
guilty spouse to support the innocent spouse to properly exercise the authority (SEMPIO-
(FAMILY CODE, Art. 198 in relation to Rule 61 of the DIY, supra at 351).
Rules of Court).

In determining the amount to be awarded as support

PARENTAL PREFERENCE RULE
pendente lite, it is not necessary to go fully into the The natural parents, who are of good moral
merits of the case, it being sufficient thatthe court character and who can reasonably provide for the
ascertain the kind and amount of evidence it may child, are ordinarily entitled to custody as against all
deem sufficient to enable it to justly resolve the other persons (STA.MARIA, supra at 838).
application, one way or the other, in view of the
merely provisional character of the resolution to be MATERNAL PREFERENCE RULE
entered. Mere affidavits may satisfy the court to The law favors the mother if she is a fit and proper
pass upon the application for support pendente person to have custody of her children so that they
lite. It is enough that the facts be established by may not only receive her attention, care,supervision
affidavits or other documentary evidence appearing and kindly advice, but also may have the advantage
in the record (Reyes v. Ines- Luciano, G.R. No. L- and benefit of a mother’s love and devotion for which
48219, February 28, 1979). there is no substitute (STA. MARIA, supra at 839,
citing Cooke v. Cooke, 70 ALR 3d 255).

The general rule that children under seven years of

age shall not be separated from their mother finds its
raison d’être in the basic need of minor children for
their mother’s loving care (Pablo-Gualberto vs.
Gualberto, G.R. No. 154994, June 28, 2005).
EXEMPTION TO MATERNAL the father assume such custody or authority. Only
PREFERENCE RULE the most compelling of reasons, such as the
mother’s unfitness to exercise sole parental
Maternal preference is not an absolute rule. It is authority shall justify deprivation of her parental
intended to service only the function of a tie- breaker authority and the award of custody to someone else
in those rare instances when parental qualities are (Briones v. Miguel, G.R. No. 156343, October 18,
so equally balanced between litigants that resort to 2004).
preference is necessary (STA. MARIA, supra at
844). The Court may decide to separate the mother
from the child in exceptional cases where there are RIGHTS OF PARENTS WITH PARENTAL
compelling reasons to do so under Art. 213. AUTHORITY
The parents may exercise the following rights over
PARENTAL AUTHORITY IS PURELY the person and properties of their children: (C2OIL-
PERSONAL U)
1. The right to have them in their company
Parental authority and responsibility are inalienable (Custody);
and may not be transferred or renounced except in 2. The right to withhold or give Consent in certain
cases authorized by law. The right attached to matters;
parental authority, being purely personal, the law 3. The right to be Obeyed and respected;
allows a waiver of parental authority only in cases 4. The right to Impose discipline on them as may
of adoption, guardianship and surrender to a be required under the circumstances;
children’s home or an orphan institution. When a 5. The right to exercise Legal guardianship over
parent entrusts the custody of a minor to another, the property of unemancipated common
such as a friend or godfather, even in a document, children; and
what is given is merely temporary custody and it 6. The limited right of Usufruct over the child’s
does not constitute a renunciation of parental property (RABUYA, supra at 656).
authority. Even if a definite renunciation is manifest,
the law still disallows the same. The father and Duties of Children towards their Parents: (RO)
mother, being the natural guardians of 1. To observe Respect and reverence toward their
unemancipated children, are duty-bound and parents; and
entitled to keep them in their custody and company 2. To Obey their parents as long as they are
(Sagala-Eslao v. CA, G.R. No. 116773, January 16, under their parental authority.
1997).
RULE OF FILIAL PRIVILEGE
The right of custody accorded to parents springfrom
GENERAL RULE: No descendant shall be
the exercise of parental authority (Santos v. CA,
compelled, in a criminal case, to testify against his
G.R. No. 113054, March 16, 1995).
parents and grandparents.
RULES ON THE EXERCISE OF EXCEPTION: When such testimony is
PARENTAL AUTHORITY indispensable in a crime against the descendant or
Joint parental authority by the father and mother by one parent against the other (FAMILY CODE, Art.
over the persons of their common children, whether 215, in relation to Sec. 25, RULE 130 of the Rules
legitimate or illegitimate. In case of disagreement, on Evidence).
the father’s decision shall prevail unless there is a
judicial order to the contrary (FAMILY CODE, Art. FILIAL PRIVILEGE APPLIES ONLY TO
211, par. 1). DIRECT ASCENDANTS AND
Under Art. 176, parental authority of illegitimate DESCENDANTS
children is generally with the mother. To harmonize In Lee v. CA, G.R. No. 177861, July 13, 2010, the
Art. 176 with Art. 211, joint parental authority may be person (Tiu) who invoked the filial privilege claims
exercised over illegitimate children if: that she is the stepmother of petitioner Lee. The
1. The father is certain; and privilege cannot be applied because the rule applies
2. The illegitimate children are living with the said only to “direct” ascendants and descendants, a
father and mother who are cohabiting without family tie connected by a common ancestry. A
the benefit of marriage or under a void marriage stepdaughter does not have common ancestry to her
not falling under Arts. 36 and 53 (STA.MARIA, stepmother. Relative thereto, Art. 965 of the Civil
supra at 830-831). Code provides that the direct line is either
descending or ascending. The former unites the
NOTE: The recognition by the father could be a head of the family with those who descend fromhim.
ground for ordering him to give support, but not The latter binds a person with those from whom he
custody of the child. Only if the mother defaults can descends. Consequently, Tiu can be compelled to
testify against petitioner Emma Lee.
CAUSE OF EFFECT ON PARENTAL
ABSENCE OF AUTHORITY
This rule is not strictly a rule on disqualification
PARENTS
because a descendant is not incompetent or
disqualified to testify against an ascendant. Therule Legal PA shall be exercised by the
refers to a privilege not to testify, which can be separation of parent designated by the court.
invoked or waived like other privileges. As correctly parents.
observed by the lower court, Elven was not EXCEPTION:
compelled to testify against his father; he chose to If the child is under seven years
waive that filial privilege when he voluntarily testified old, the mother shall have
against Artemio. Elven declared that he was custody over said child.
testifying as a witness against his father of his own
accord and only "to tell the truth” (People v. EXCEPTION TO THE
Invencion, G.R. No. 131636, March 5, 2003). EXCEPTION:
Unless the court finds
MARITAL PRIVILEGE compelling reasons to order
In line with the filial privilege under Art. 215 of the otherwise.
Family Code is the marital privilege provided for
under the Rules of Court which states that: Death, Substitute parental authority
absence or shall be exercised by the
The husband or the wife, during or after the unsuitability of surviving grandparent. In case
marriage, cannot be examined without the consent both parents. several survive, the one
of the other as to any communication received in designated by the court shall
confidence by one from the other during the exercise such, taking into
marriage except in a civil case by one against the account the best interest of the
other, or in a criminal case for a crime committed child.
by one against the other or the latter's direct
descendants or ascendants (RULES OF COURT,
Sec. 24(a)).
DOCTRINES REGARDING THE
RULES IN CASE PARENTAL MATERNAL PREFERENCE GRANTED
AUTHORITY CANNOT BE EXERCISED BY ART. 213, PAR. 2.
JOINTLY 1. Maternal preference cannot be subjected
CAUSE OF EFFECT ON PARENTAL to an agreement between the separated
ABSENCE OF AUTHORITY spouses
PARENTS
The separated parents cannot contract away the
Absence or PA continued by the present provision in the Family Code on the maternal
death of either parent or survivingparent. custody of children below 7 years any more than
parent. they can privately agree that a mother who is
unemployed, immoral, habitually drunk, a drug
In case of PA continued to beexercised by addict, insane, or afflicted with a communicable
remarriage of surviving parent unless the court disease will have sole custody of a child under
the surviving appoints another person as seven as these are reasons deemed compelling
parent. guardian to preclude the application of the exclusive
maternal custody regime under the second
NOTE: The new spouse, by paragraph of Art. 213.
virtue of his or her marrying the
surviving parent, does not Any agreement of the parties unduly depriving
automatically possess parental the mother of custody of their children under 7
authority over the children of the years of age in the absence of compelling
surviving parent unless such reasons determined by courts is null and void.
new spouse adopts the children (STA.MARIA, supra at 841).
(STA.MARIA, supra at 833).
2. As to the bias favoring the mother over
the father in case of separation
At any rate, the rule’s seeming harshness or
undesirability is tempered by ancillary
agreements the separated parents may wish to
 enter, such as granting the father visitation and 1. Surviving grandparent;
other privileges. These arrangements are not 2. Oldest brother or sister, over 21 years of age,
inconsistent with the regime of sole maternal unless unfit or disqualified; and
custody under the second paragraph of Art. 213 3. Actual Custodian over 21 years of age unless
which merely grants to the mother final unfit or disqualified (FAMILY CODE, Art. 216).
authority on the care and custody of the minor
under 7 years of age, in case of disagreements NOTE: The same order of preference shall be
(Dacasin v. Dacasin, G.R. No. 168785, February observed when the appointment of a guardian
5, 2010). over the property of a child becomes necessary.

3. As to the limited period of application of NOTE: The person exercising substitute

preference parental authority shall have the same authority
Further, the imposed custodial regime underthe over the person of the child as the parents
second paragraph of Art. 213 is limited in (FAMILY CODE, Art. 233, par. 1).
duration, lasting only until the child’s 7th year.
From the 8th year until the child’s emancipation, In the Absence of the Legitimate Mother, the
the law gives the separated parents freedom, Legitimate Father is still preferred over the
subject to the usual contractual limitations, to Grandparents
agree on custody regimes they see fit to adopt Notwithstanding the fact that private respondents'
(Dacasin v. Dacasin, G.R. No. 168785, February (grandparents) demonstrated love and affection for
5, 2010). the boy, the legitimate father is still preferred over
the grandparents. The latter's wealth is not a
WRIT OF HABEAS CORPUS IN CHILD deciding factor, particularly because there is no
proof that at the present time, petitioner is in no
CUSTODY CASES position to support the boy. The fact that he was
Habeas corpus may be resorted in cases where unable to provide financial support for his minor son
rightful custody is withheld from a person entitled from birth up to over three years when he took the
thereto (Salientes v. Abanilla, G.R. No. 162734, boy from his in-laws without permission, should not
August 29, 2006). be sufficient reason to strip him of his permanent
right to the child's custody (Santos v. CA, G.R. No.
CONSIDERATION IN CHILD CUSTODY 113054, March 16, 1995).
CASES
The controversy does not involve the question of RULE IN CASE OF FOUNDLINGS,
personal freedom, because an infant is presumedto ABANDONED, NEGLECTED OR
be in the custody of someone until he attains ABUSED CHILDREN AND OTHER
majority age. In passing on the writ in a child custody
case, the court deals with a matter of an equitable
CHILDREN SIMILARLY SITUATED:
nature. Hence, the court is not bound to deliver a
child into the custody of any claimant or of any FOUNDLING
person, but should, in the consideration of the facts, Newborn child abandoned by its parents who are
leave it in such custody as its welfare at the time unknown (Bouvier’s Law Dictionary, 3rd Revision, p.
appears to require. In short, the child’s welfare is the 1293).
supreme consideration (Sombong v. CA, G.R. No.
111876, January 31, 1996). ABANDONED CHILD
One who has no proper parental care or
MATERNAL PREFERENCE/TENDER guardianship, or those whose parents or guardians
YEARS RULE have deserted him for a period of at least 6
GENERAL RULE: No child under 7 years of age continuous months (P.D. 603, Art. 141, par. 2).
shall be separated from the mother.
NEGLECTED CHILD
EXCEPTION: When the court finds compelling One whose basic needs have been deliberately
reason to order otherwise. The welfare and well- unattended or inadequately attended and may be
being of the child is the paramount consideration in done through physical or emotional neglect (P.D.
awarding custody (FAMILY CODE, Art. 213). 603, Art. 141, par. 3). An abused child can come
within the emotionally-neglected child (STA.MARIA,
SUBSTITUTE PARENTAL AUTHORITY supra at 853).
Persons who will exercise parental authority in
default of parents or a judicially appointed guardian,
in the order indicated: (SOC)
PARENTAL AUTHORITY SHALL BE and its heads and teachers exercise over the pupils
ENTRUSTED IN SUMMARY JUDICIAL and students for as long as they are at attendance in
the school, including recess time.There is nothing in
PROCEEDING TO HEADS OF: (COS) the law that requires that for such liability to attach,
1. Children’s homes; the pupil or student who commits the tortious act
2. Orphanages; or must live and board in the school. In the view of the
3. Similar institutions duly accredited by the proper Court, the student is inthe custody of the school
government agency (FAMILY CODE, Art. 217). authorities as long as he is under the control and
SPECIAL PARENTAL AUTHORITY influence of the school and within its premises,
(ARTS. 218 AND 219) whether the semester has not yet begun or has
Can only be exercised by the school, already ended.
its administrators and teachers, or the individual,
entityor institution engaged in childcare over minors SPECIAL PARENTAL AUTHORITY V.
while under their supervision, instruction or SUBSTITUTE PARENTAL AUTHORITY
custody. The authority and responsibility alsoattach
to all authorized activities whether inside oroutside SPECIAL SUBSTITUTE
the premises of the school, entity or institution. PARENTAL PARENTAL
AUTHORITY AUTHORITY
The following shall be held principally and solidarily
As to When Exercised
liable for damages caused by the acts or omissions
of the unemancipated minor: (SAC) Rests on the theory that Exercised in case of
1. School; No distinction between academic or while the child is in the death, absence, or
non-academic (arts and trades). care and custody of the unsuitability of parents
2. Administrators and teachers; and person/s exercising (FAMILY CODE, Art.
3. Individual, entity or institution engaged in child special parental 216).
Care. authority, the parents
temporarily relinquish
NOTE: In no case shall the persons exercising parental authority.
special parental authority inflict corporal punishment
upon the child (FAMILY CODE, Art.233, par. 2).
As to Concurrence with Pa
ARTICLE 2180 OF THE CIVIL CODE
APPLIES IF THE STUDENT IS NO Concurrent with NOT exercised
parental authority. concurrently with the
LONGER A MINOR parents.
In Amadora v. CA, G.R. No. L-47745, April 15, 1988,
it was held that- where the school is academic rather
than technical or vocational in nature, responsibility As to Extent of Liability
for the tort committed by the student will attach to the
teacher in – charge of such student, following the Liability is principal and 1. Liability is direct
first part of the provision. This is the general rule. In solidary. and primary (See
the case of establishments of arts and trades, it is FAMILY CODE,
the head thereof, and only he, who shall be held Art. 219, par. 3 in
liable as an exception to the general rule. In other relation to FAMILY
words, teachers in general shall be liable for the acts CODE, Art. 221
of their students except where the school is technical and CIVIL CODE,
in nature, in which case it is the head thereof who Art. 2180).
shall be answerable. Following the canon of 2. If there are
reddendo singula singulis, "teachers" should apply persons exercising
to the words "pupils and students" and "heads of special parental
establishments of arts and trades" to the word authority – Liability
"apprentices". is only subsidiary
(i.e., only if the
PROTECTIVE AND SUPERVISORY persons with
special parental
CUSTODY authority cannot
As held in the case of Palisoc v. Brillantes, G.R. No. satisfy their
L-29025, October 4, 1971, the phrase "so long as liability).
(the students) remain in their custody" means the
protective and supervisory custody that the school
 self-discipline, self-reliance, industry and thrift,
SPECIAL SUBSTITUTE
stimulate their interest in civic affairs, and inspire
PARENTAL PARENTAL
in them compliancewith the duties of citizenship;
AUTHORITY AUTHORITY
d. To Enhance, protect, preserve, and
As to Defense of Exercise of Due Diligence maintain their physical and mental health at all
times;
Exercise of proper Exercise of diligence of e. To Furnish them with good and wholesome
diligence required a good father of a educational materials, supervise their activities,
under the particular family may be invoked recreation and association with others, protect
circumstances may FAMILY CODE, Art. them from bad company,and prevent themfrom
extinguish the principal 221) (Tamargo v. acquiring habits detrimental to their health,
and solidary liability Court of Appeals, G.R. studies and morals;
(FAMILY CODE, Art. 85044, June 3, 1992). f. To Demand from them respect and obedience
219). g. To Represent them in all matters affecting
their interests;
h. To Impose discipline on them as may be
PRINCIPLE OF PARENTAL LIABILITY required under the circumstances; and
The principle of parental liability (under Art. 221) is i. To Perform such other duties as are
a species of vicarious liability, or the doctrine of imposed by law upon parents and guardians
imputed negligence where a person is not only liable (FAMILY CODE, Art. 220).
for torts committed by himself, but also for torts
committed by others with whom he has a certain DUTIES OF PARENTS UNDER P.D. NO. 603:
relationship and for whom he is responsible. Parental (GESIS-PAGA)
liability is, in other words, anchored upon the a. To Give him affection, companionship and
parental authority coupled with the presumed understanding;
parental dereliction in the discharge of the duties b. To Extend to him the benefits of moral
accompanying such authority (Tamargo v. CA, G.R. guidance, self-discipline and religious
No. 85044, June 3, 1992). instruction;
c. To Supervise his activities, including his
VICARIOUS LIABILITY OR IMPUTED recreation;
NEGLIGENCE d. To Inculcate in him the value of industry, thrift
and self-reliance;
Parents and other persons exercising PA shall be e. To Stimulate his interest in civic affairs, teach
civilly liable for injuries and damages caused by him the duties of citizenship, and develop his
acts or omissions of their unemancipated children commitment to his country;
living in their company and under their PA subject f. To Provide him with adequate support, as
to appropriate defenses provided by law (FAMILY defined in Art. 194 of the Family Code;
CODE, Art. 221). g. To Advise him properly on any matter
affecting his development and well-being;
The parents may show that they exercised the h. To always set a good example; and
diligence of a good father of a family to remove i. To Administer his property, if any,according to
themselves from liability under Art. 221(STA.MARIA, his best interests, subject to the provisions of
supra at 869). Art. 225 of the Family Code (P.D. 603, Art. 46).

EFFECTS OF PARENTAL AUTHORITY PROCEDURE FOR IMPOSING DISCIPLINE ON

THE CHILD
1. UPON THE PERSON OF THE a. Parent or person exercising parental authority,
CHILDREN may petition the proper court of the place where
the child resides, for an order providing for
disciplinary measures over the child (FAMILY
RIGHTS AND DUTIES OF PARENTS AND THOSE CODE, Art. 223).
EXERCISING PARENTAL AUTHORITY: (KeG- i. Relief prayed for may includecommitment in
PEF- DRIP) entities or institutions engaged in child care
a. To Keep them in their company, to support, or in children’shomes duly accredited by the
educate and instruct them by right precept and proper government agency for not more
good example, and to provide for their than 30 days.
upbringing in keeping with their means; ii. If petition is granted, parent shall not
b. To Give them love and affection, advice and interfere with the implementation of the
counsel, companionship, andunderstanding; decision but shall continue to provide for his
c. To Provide them with moral and spiritual support (FAMILY CODE, Art. 224).
guidance, inculcate in them honesty, integrity,
 entire proceeds to the child.
b. There will be a summary hearing and the child c. The proceeds given in whole or in part shall not
shall be entitled to the assistance of counsel, be charged to the child's legitime (FAMILY
either of his choice or appointed by the court CODE, Art. 227).
(FAMILY CODE, Art. 223).
c. If in the same proceeding the court findsthe NOTE: The courts may appoint a guardian of the
petitioner at fault, irrespective of the merits of child’s property, or a guardian ad litem when the best
the petition, or when the circumstances so interests of the child so require (FAMILY CODE, Art.
warrant, the court may also order the 222).
deprivation or suspension of parental authority
or adopt such other measures as it may deem SUSPENSION AND TERMINATION OF
just and proper (FAMILY CODE, Art. 223). PARENTAL AUTHORITY
d. The court may terminate the commitmentof
the child whenever just and proper (FAMILY Grounds for suspension: (CEO-BAN)
CODE, Art. 224). 1. Conviction of a crime with the penalty of civil
interdiction; (FAMILY CODE, Art. 230).
2. Excessively harsh or cruel treatment against
2. UPON THE PROPERTY OF THE the child;
CHILDREN 3. Orders, counsel or example which are
Administration of the Child’s Property by the corrupting, given by the person exercising
Parents authority;
The father and the mother shall jointly exercise legal 4. Child is compelled to Beg;
guardianship over the property of the 5. Subjecting child or allowing child to be
unemancipated common child without the necessity subjected to Acts of lasciviousness; or
of a court appointment. In case of disagreement, the 6. Negligence, which is culpable, committed by
father's decision shall prevail, unless there is a the person exercising authority (FAMILY
judicial order to the contrary (FAMILY CODE, Art. CODE, Art. 231).
225).
Necessity of Court Order for Suspension,
NOTE: There are cases where a parent cannot be Revocation, and Revival of Parental Authority
the administrator of the property of his children GENERAL RULE: The suspension or deprivation
under the provisions on succession,Art. 923 and Art. maybe revoked and parental authority revived if the
1035 of the Civil Code, on disinherited parent. court finds that the cause has ceased and will not
be repeated (FAMILY CODE, Art. 231, par. 4).
Bond Requirement
Parents are required to file a bond where the market EXCEPTION: In case of conviction for a crime which
value of the property or the annual income of the carries with it the penalty of civil interdiction, the
child exceeds P50,000. The bondshall not be less authority is automatically reinstated upon service of
than ten per centum (10%) of the value of the penalty or pardon or amnesty of the offender
property or annual income, to guarantee the (FAMILY CODE, Art. 230).
performance of the obligations prescribed for
general guardians (FAMILY CODE, Art. 225). GROUNDS FOR TERMINATION OF
Fruits and Profits of Industry of Child:
PARENTAL AUTHORITY
a. Owned by the child; PERMANENT TERMINATION: (DEDS)
b. Shall be devoted exclusively to the child’s 1. Death of the parents;
support and education unless the title or transfer 2. Emancipation of the child;
provides otherwise; 3. Death of the child; and
c. Parent may only use such fruits and income 4. If the person exercising parental authority has
primarily to the child's support and secondarily subjected the child or allowed him to be
to the collective daily needs of the family subjected to Sexual abuse (FAMILY CODE, Art.
(FAMILY CODE, Art. 226). 228; Art. 232).

Administration or Management of Parents’ OTHER GROUNDS FOR TERMINATION OF

Property by Unemancipated Child PARENTAL AUTHORITY: (I-DAGA)
a. The net proceeds of such property shallbelong 1. Upon Adoption of the child;
to the parents-owner. 2. Upon appointment of a General guardian;
b. The child shall be given a reasonable monthly 3. Upon judicial declaration of Abandonment ofthe
allowance in an amount not less than that which child in a case filed for the purpose;
the owner would have paid if the administrator 4. Upon final judgment of a competent court
were a stranger, unless the owner grants the Divesting the party concerned of parental
 authority; or parenthood due to Death of spouse;
5. Upon judicial declaration of absence or 3. Parent left solo or alone with the responsibility of
Incapacity of the person exercising parental parenthood while the spouse is Detained or is
authority (FAMILY CODE, Art. 229). serving sentence for a criminal conviction for at
least one (1) year;
LOSS OF PARENTAL AUTHORITY 4. Parent left solo or alone with the responsibility of
UNDER THE REVISED PENAL CODE parenthood due to physical and/or mental
Incapacity of spouse as certified by a public
Any parent of a child under sixteen years of age, who medical practitioner;
shall deliver such child gratuitously or in 5. Parent left solo or alone with the responsibility of
consideration of any price, compensation or parenthood due to legal separation or de facto
promise to any person being an acrobat, gymnast, Separation from spouse for at least one (1) year,
rope-walker, diver, wild-animal tamer or circus as long as he/she is entrusted with the custody
manager or engaged in a similar calling who of the children;
employs said child in exhibitions or to any habitual 6. Parent left solo or alone with the responsibility of
vagrant or beggar may be deprived, temporarily or parenthood due to declaration of Nullity or
perpetually, in the discretion of the court, of their annulment of marriage as decreed by a court or
parental authority (REVISED PENAL CODE, Art. by a church as long as he/she is entrusted with
278, par. 4). the custody of the children;
7. Parent left solo or alone with the responsibility of
LOSS OF PARENTAL AUTHORITY parenthood due to Abandonment of spouse for
UNDER R.A. NO. 7610 at least one (1)year;
Sec. 10 (c) of R.A. 7610 provides as penalty, 8. Unmarried mother/father who has preferred to
among others, the loss of parental authority to any keep and rear her/his child/children instead of
ascendant, stepparent, or guardian of a minor, who having others care for them or give them up to a
shall induce, deliver or offer such minor under his welfare institution;
custody to persons prohibited by this Act to keep 9. Any Other person who solely provides parental
persons described and enumerated in Sec. 10 (b). care and support to a child or children;
10. Any Family member who assumes the
Sec. 10 (b) of the R.A. No. 7610 punishes anyperson responsibility of head of family as a resultof
who shall keep or have in his company a minor: the death, abandonment, disappearance or
1. Who is 12 years old or younger in any public or prolonged absence of the parents or solo
private place, hotel, motel, beer joint, parent for at least 1 year (R.A. No. 8972, Sec. 3,
discotheque, cabaret, pension house, sauna or par. (a)).
massage parlor, beach, and/or other tourist
resort or similar places; or CHILDREN refer to those living with and dependent
upon the solo parent for support who are unmarried,
2. Who is 10 or more years his junior, in the places unemployed, and not more than 18 years of age, or
enumerated in (1). even over 18 years but are incapable of self-support
because of mental and/or physical defect/disability
NOTE: The same provision does not apply to any (R.A. No. 8972, Sec. 3. Par (b)).
person who is related to the minor within the fourth
degree of consanguinity or affinity or any bond PARENTAL RESPONSIBILITY, with respect to
recognized by law, local customand tradition or acts their minor children, shall refer to the rights and
in the performance of a social, moral, or legal duty. duties of the parents as defined in Article 220 of
Executive Order No. 209, as amended, otherwise
R.A. NO. 8972: SOLO PARENTS’ known as the “Family Code of the Philippines” (R.A.
WELFARE ACT OF 2000 (EFFECTIVE No. 8972, Sec. 3. Par (c)).
NOVEMBER 28, 2000)
BENEFITS OF A SOLO PARENT
DEFINITION OF TERMS 1. Leave Benefit
In addition to leave privileges under existing
SOLO PARENT refers to any individual who falls
laws, parental leave of not more than 7 working
underany of the following categories: (RaDe-DISNA-
days every year shall be granted to any solo
Un- OF)
parent employee who has rendered service of at
1. A woman who gives birth as a result of Rape and
least 1 year. The7-day parental leave shall be
other crimes against chastity even without a final
non-cumulative (IRR of R.A. No. 8972, Sec.
conviction of the offender: Provided, That the
18).
mother keeps and raises the child;
2. Parent left solo or alone with the responsibility of
2. Flexible Work Schedule minors will not retroact to their prejudice (R.A. No.
The employer shall provide for a flexible work 6809, Sec. 4).
schedule for solo parents. The schedule should
not, however, affect theindividual and company
productivity (R.A. No. 8972, Sec. 6).
SUMMARY JUDICIAL
3. Educational Benefits
The DECS, CHED and TESDA shall provide the PROCEEDINGS IN THE
following benefits and privileges: scholarship FAMILY LAW
programs for qualified solo parents and their
children in institutions of basic, tertiary and (ARTS. 238-253)
technical/skills education; and nonformal
education programs appropriate for solo parents
and their children (R.A. No. 8972, Sec. 9).
ACTIONS REQUIRING SUMMARY
4. Housing Benefits JUDICIAL PROCEEDINGS UNDER THE
Solo parents shall be given allocation in housing FAMILY CODE:
projects and shall be provided with liberal terms
1. Obtaining a judicial declaration of presumptive
of payment on said government low-cost
death for the purpose of contracting a
housing projects in accordance with housing law
subsequent marriage (FAMILY CODE, Art. 41);
provisions prioritizing applicants below the
2. In case of legally separated spouses, when the
poverty lineas declared by the NEDA (R.A. No.
consent of one spouse to any transaction of the
8972, Sec. 10).
other is required by law, judicial authorization
shall be obtained in a summary proceeding
5. Medical Assistance (FAMILY CODE, Art. 100, par. 2);
The DOH shall develop a comprehensive health 3. In case of legally separated spouses, when the
care program for solo parents and their children. community property is not sufficient for the
The program shall be implemented by the DOH support of the family each spouse is liable with
through their retained hospitals and medical his/her separate property. The spouse present
centers and the local government units (LGUs) shall file before the court a petition for the
through their provincial/district/city/municipal administration of the specific separate property
hospitals and rural health units (RHUs) (R.A. No. of the other spouse and the use of the fruits or
8972, Sec. 11). proceeds to satisfy the latter’s share (FAMILY
CODE, Art. 100, par. 3);
4. Entrusting parental authority over foundlings,
abandoned, neglected, and abused children to
EMANCIPATION heads of children’s homes and orphanages
(ARTS. 234-237) (FAMILY CODE, Art. 217);
5. Providing for disciplinary measures over the
child at the motion of the parents or any person
exercising parental authority (FAMILY CODE,
Emancipation takes place by the attainment of the Art. 223);
age of majority. Unless otherwise provided, majority 6. For the filing of a bond to enable the parents of
commences at the age of 18 years (FAMILY CODE, a minor to exercise legal guardianship over the
Art. 234 as amended by R.A. 6809). latter’s properties, when the value of said
properties exceeds P50,000 (FAMILY CODE,
Art. 225);
EFFECT OF EMANCIPATION
7. Determination of the value of the presumptive
Emancipation for any cause shall terminate parental legitimes in cases of partition of the conjugal
authority over the person and property of the child dwelling (FAMILY CODE, Art. 51);
who shall then be qualified and responsible for all 8. In case of disagreement in fixing the family
acts of civil life, save the exceptions established by domicile (FAMILY CODE, Art. 69);
existing laws in special cases (FAMILY CODE, Art 9. In case of objection to a spouse’s exercise of
236 as amended by R.A. 6809). legitimate profession (FAMILY CODE, Art. 73);
10. In case of disagreement in the administration
Upon the effectivity of this Act on December 13, and enjoyment of the community
1989, existing wills, bequests, donations, grants, property/conjugal partnership (FAMILY CODE,
insurance policies, and similar instruments Art. 96; Art. 124);
containing references and provisions favorable to 11. When a husband and wife are separated infact,
or one has abandoned the other and one of
 them seeks judicial authorization for a the parties herein, and status affects or binds the
transaction (FAMILY CODE, Art. 239). whole world. The court has jurisdiction over the
res, in an action for annulment of marriage,
PROCEDURE: (F-NOPE-DJ) provided, at least, one of the parties is domiciled in,
1. Upon Filing of a verified petition in the family or a national of, the forum (Rayray vs. Chae Kyung
court where the spouses reside (or in the RTC, Lee, No. L-18176, October 26, 1966).
if there is no family court), jurisdiction of said
court over the petition shall attach upon proof of ACTION TO NULLIFY MARRIAGE MUST
notice to the other spouse. BE MADE IN A DIRECT ACTION
2. Notice to the non-petitioning spouse shall A petition for correction or cancellation of an entry
include a show cause order why the petition in the civil registry cannot substitute for an action to
should not be granted invalidate a marriage. A direct action is necessary
3. The non-petitioning spouse is given the to prevent circumvention of the substantive and
Opportunity to answer on or before the date set procedural safeguards of marriage under the Family
for the initial conference as indicated in the Code, A.M. No. 02-11-10-SC and other related laws
notice. (Republic vs. Olaybar, G.R. No. 189538, February
4. The Preliminary conference shall be conducted 10, 2014).
by the judge personally, and the spouses shall
not be assisted by counsel. After the initial It was reiterated in a criminal case for falsification of
conference, the spouses may be assisted by public documents (marriage certificate) where the
counsel at the court’s discretion. court held that the validity of marriage cannot be
5. The court may proceed Ex parte and render collaterally attacked since under existing laws and
judgment if despite all efforts, the non- jurisprudence, the same may be questioned only in
petitioning spouse does not appear. a direct action. A direct action is necessary to
6. If both spouses are present during the initial prevent circumvention of the substantive and
conference and the petition is not resolved then, procedural safeguards of marriage (Corpuz, Jr. vs.
the petition shall be Decided in a summary People, G.R. Nos. 212656-57, November 23, 2016).
hearing on the basis of affidavits submitted.
7. The Judgment of the court shall be immediately
final and executory (FAMILY CODE, Arts. 239-
A.M. NO. 02-11-10-SC RULE DOES NOT
248). APPLY TO RECOGNITION OF FOREIGN
DIVORCE
The procedure in A.M. No. 02-11-10-SC does not
apply in a petition to recognize a foreign judgment
RULE ON DECLARATION annulling a bigamous marriage where one of the
parties is a citizen of the foreign country. A petition
OF ABSOLUTE NULLITY for recognition does not require a re-litigation of the
OF VOID, MARRIAGES case as if it were a new petition for declaration of
nullity of marriage (Fujiki vs. Marinay, G.R. No.
AND ANNULMENT OF 196049, June 26, 2013).
VOIDABLE MARRIAGES
WHO MAY FILE A PETITION FOR
(A.M. NO. 02-11-10-SC) DECLARATION OF ABSOLUTE NULLITY
OF VOID MARRIAGE
A petition for declaration of absolute nullity of void
This Rule became effective on March 15, 2003 (A.M. marriage may be filed solely by the husband or the
No. 02-11-10-SC, Sec. 25) and governs petition for wife (A.M. No. 02-11-10-SC, Sec. 2).
declaration of absolute nullity of void marriages and
annulment of voidable marriages (A.M. No. 02-11- NOTE: Section 2(a) of A.M. No. 02-11-10-SC does
10-SC, Sec. 1). This rule covers marriages under the not preclude a spouse of a subsisting marriage to
Family Code of the Philippines and is prospective in question the validity of a subsequent marriage on the
its application (Enrico vs. Heirs of Sps. Eulogio B. ground of bigamy. On the contrary, when Section
Medinaceli and Trinidad Catli-Medinaceli, G.R. No. 2(a) states that “[a] petition for declaration of
173614, September 28, 2007). absolute nullity of void marriage may be filed solely
by the husband or the wife” — it refers to the
NATURE OF AN ACTION FOR husband or the wife of the subsisting marriage (Fujiki
vs. Marinay, G.R. No. 196049 June 26, 2013).
ANNULMENT OF MARRIAGE
This is an action in rem, for it concerns the status of
Only an aggrieved or injured spouse may file a contracting party , at any time before such party
petition for annulment of voidable marriages or has reached the age of twenty-one;
declaration of absolute nullity of void marriages. 2. The sane spouse who had no knowledge of the
Such petition cannot be filed by compulsory or other's Insanity; or by any relative, guardian, or
intestate heirs of the spouses or by the State (Enrico person having legal charge of the insane, at any
vs. Heirs of Sps. Eulogio B. Medinaceli and Trinidad time before the death of either party; or by the
Catli-Medinaceli, G.R. No. 173614, September 28, insane spouse during a lucid interval or after
2007). regaining sanity, provided that the petitioner,
after coming to reason, has not freely cohabited
PROHIBITION AGAINST HEIRS TO FILE with the other as husband or wife;
THE PETITION DOES NOT APPLY IF THE 3. The injured party whose consent was obtained
by Fraud, within five years after the discovery of
CASE IS FILED BEFORE EFFECTIVITY the fraud, provided that said party, with full
OF THE RULE knowledge of the facts constituting the fraud,
The Rule does not apply to cases already has not freely cohabited with the other as
commenced before March 15, 2003 although the husband or wife;
marriage involved is within the coverage of the 4. The injured party whose consent was obtained
Family Code. This is so, as the new Rule which by Force, intimidation, or undue influence,
became effective on March 15, 2003 is prospective within five years from the time the force
in its application (Carlos vs. Sandoval, G.R. No. intimidation, or undue influence disappeared or
179922, December 16, 2008). ceased, provided that the force, intimidation, or
undue influence having disappeared or ceased,
While the Family Code is silent with respect to the said party has not thereafter freely cohabited
proper party who can file a petition for declaration with the other as husband or wife;
of nullity of marriage prior to A.M. No. 02-11-10-SC, 5. The injured party where the other spouse is
it has been held that in a void marriage, in which no physically incapable of Consummating the
marriage has taken place and cannot be the source marriage with the other and such incapability
of rights, any interested party (an heir) may attack continues and appears to be incurable, within
the marriage directly or collaterally without five years after the celebration of marriage; and
prescription, which may be filed even beyond the 6. The injured party where the other party was
lifetime of the parties to the marriage (Juliano-Llave afflicted with a Sexually-transmissible disease
vs. Republic, G.R. No. 169766, March 30, 2011). found to be serious and appears to be incurable,
within five years after the celebration of marriage
RECOURSE OF HEIRS IN QUESTIONING (A.M. No. 02-11-10-SC, Sec. 3).
THE VALIDITY OF MARRIAGE
While A.M. No. 02-11-10-SC declares that apetition VENUE OF THE PETITION
for declaration of absolute nullity of marriage may The Petition shall be filed in the Family Court of the
be filed solely by the husband or the wife, it does not province or city where the petitioner or the
mean that the compulsory or intestate heirs are respondent has been residing for at least six months
without any recourse under the law. Compulsory or prior to the date of filing. Or in the case of non-
intestate heirs can still question the validity of the resident respondent, where he may be found in the
marriage of the spouses, not in a proceeding for Philippines, at the election of the petitioner (A.M.
declaration of nullity but upon the death of a spouse No. 02-11-10-SC, Sec. 4).
in a proceeding for the settlement of the estate of
the deceased spouse filed in the regular courts IN CASE THE RESPONDENT FAILS TO
(Carlos vs. Sandoval, G.R. No. 179922, December ANSWER, THE PROSECUTOR SHALL
16, 2008). INVESTIGATE WHETHER THERE IS A
COLLUSION
WHO MAY FILE A PETITION FOR
Where no answer is filed or if the answer does not
ANNULMENT OF VOIDABLE tender an issue, the court shall order the public
MARRIAGE: (CIF-FCS) prosecutor to investigate whether collusion exists
1. The contracting party whose parent, or between the parties (A.M. No. 02-11-10-SC, Sec. 8).
guardian, or person exercising substitute
parental authority did not give his or her CERTIFICATION FROM THE SOLICITOR
Consent, within five years after attaining theage GENERAL NO LONGER REQUIRED IN
of twenty-one unless, after attaining theage of
twenty-one, such party freely cohabitated with
AN ACTION FOR NULLITY UNDER
the other as husband or wife; or the parent, ARTICLE 36
guardian or person having legal charge of the The requirement in Molina that the Solicitor General
must issue a certification stating his reasons for his binding upon the parties and their successors
agreement or opposition to the petition was in interest in the settlement of the estate in the
dispensed with following the implementation of A.M. regular courts (A.M. No. 02-11-10-SC, Sec. 24,
No. 02-11-10-SC, or the Rule on Declaration of par. 2).
Absolute Nullity of Void Marriages and Annulment of
Voidable Marriages. Still, Article 48 of the Family SERVICE AND EFFECT OF DECISION
Code mandates that the appearance of the GRANTING PETITION
prosecuting attorney or fiscal assigned be on behalf
of the State to take steps to prevent collusion 1. The parties, including the Solicitor General and
between the parties and to take care that evidence the public prosecutor, shall be served with
is not fabricated or suppressed (Antonio vs. Reyes, copies of the decision personally or by
G.R. No. 155800, March 10, 2006) registered mail. If the respondent summonedby
publication failed to appear in the action, the
NOTE: Nevertheless, the court may require the dispositive part of the decision shall be
parties and the public prosecutor, in consultation published once in a newspaper of general
with the Office of the Solicitor General, to file their circulation (A.M. No. 02-11-10-SC, Sec. 19, par.
respective memoranda in support of their claims 2).
within fifteen days from the date the trial is 2. Upon the finality of the decision, the court shall
terminated. It may require the Office of the Solicitor forthwith issue the corresponding decree if the
General to file its own memorandum if the case is parties have no properties (A.M. No. 02-11-10-
of significant interest to the State (A.M. No. 02-11- SC, Sec. 19, par. 4).
10-SC, Sec. 18). 3. If the parties have properties the parties shall
proceed with the liquidation, partition and
distribution of the properties of the spouses,
PROHIBITED COMPROMISE (CVL-SJL) including custody, support of common children
1. The Civil status of persons; and delivery of their presumptive legitimes
2. The Validity of a marriage or of a legal pursuant to Articles 50 and 51 of the Family
separation; Code unless such matters had been
3. Any ground for Legal separation; adjudicated in previous judicial proceedings
4. Future Support; (A.M. No. 02-11-10-SC, Sec. 21).
5. The Jurisdiction of courts; and
6. Future Legitime (A.M. No. 02-11-10-SC, NOTE: Decree of nullity will be issued by the court
Sec.16). only after compliance with Articles 50 and 51 (A.M.
No. 02-11-10-SC, Sec. 19, par. 1). If the parties have
MOTION FOR RECONSIDERATION no properties, upon finality of the decision, the court
REQUIRED BEFORE AN APPEAL will issue the corresponding decree (A.M. No. 02-11-
No appeal from the decision shall be allowed unless 10-SC, Sec. 19, par. 4).
the appellant has filed a motion for reconsideration
or new trial within fifteen days from notice of DECREE WILL BE REGISTERED IN THE
judgment (A.M. No. 02-11-10-SC, Sec. 18,par. 1). CIVIL REGISTRY
The prevailing party shall cause the registration of
FINALITY OF DECISION the Decree in the Civil Registry where the marriage
The decision becomes final upon the expiration of was registered, the Civil Registry of the place
fifteen days from notice to the parties. Entry of where the Family Court is situated, and in the
judgment shall be made if no motion for National Census and
reconsideration or new trial, or appeal Is filed by any Statistics Office. He shall report td the court
of the parties, the public prosecutor, or the Solicitor compliance with this requirementwithin thirty days
General (A.M. No. 02-11-10-SC, Sec. 19, par. 3). from receipt of the copy of theDecree (A.M. No.
02-11-10-SC, Sec. 23, par. 1).
EFFECT OF DEATH OF ONE OF THE
PARTIES WHEN PUBLICATION OF DECREE IS
1. In case a party dies at any stage of the REQUIRED
proceedings before the entry of judgment, the In case service of summons was made by
court shall order the case closed and publication, the parties shall cause the publication
terminated, without prejudice to the settlement of the Decree once in a newspaper of general
of the estate in proper proceedings in the regular circulation (A.M. No. 02-11-10-SC, Sec. 23, par. 2).
courts (A.M. No. 02-11-10-SC, Sec. 24, par.1).
2. If the party dies after the entry of judgment of
nullity or annulment, the judgment shall be
 the Family Court, on motion of either party, shall
RULE ON LEGAL proceed with the liquidation, partition and distribution
of the properties of the spouses, including custody
SEPARATION and support of common children, under the Family
(A.M. NO. 02-11-11-SC) Code unless such matters had been adjudicated in
previous judicial proceedings (A.M. No. 02-11-11-
SC, Sec. 18).

WHO MAY FILE: WHEN MAY THE COURT ISSUE A

The husband or the wife (A.M. No.02-11-11-SC, DECREE OF LEGAL SEPARATION
Sec. 2 (a)). 1. After registration of the entry of judgment
granting the petition tor legal separation in the
WHEN TO FILE: Civil Registry where the marriage was
celebrated and in the Civil Registry where the
The petition for legal separation may be filed within
Family Court is located; and
five (5) years from the time of the occurrence of any
2. After registration of the approved partition and
of the following grounds: (VP-61- BALIDS)
distribution of the properties of the spouses, in
the proper Register of Deeds where the real
1. Repeated physical Violence or grossly abusive
properties are located (A.M. No. 02-11-11-SC,
conduct directed against the petitioner, a
Sec. 19).
common child, or a child of the petitioner;
2. Physical violence or moral Pressure to compel
the petitioner to change religious or political PETITION FOR REVOCATION OF
affiliation; DONATIONS
3. Final judgment sentencing the respondent to WHEN TO FILE: Within five (5) years from the date
imprisonment of more than six (6) years, even if the decision granting the petition for legal
pardoned; separation has become final, the innocent spouse
4. Abandonment of petitioner by respondent may file a petition under oath in the same proceeding
without justifiable cause for more than one (1) for legal separation to revoke the donations in favor
year; of the offending spouse.
5. Contracting by the respondent of a subsequent
Bigamous marriage, whether in or outside the WHERE RECORDED: The revocation of the
Philippines; donations shall be recorded in the Register of
6. Attempt on the life of petitioner by the Deeds in the places where the properties are
respondent; located.
7. Lesbianism or homosexuality of the
respondent; NOTE: Alienations, liens, and encumbrances
8. Attempt of respondent to corrupt or Induce the registered in good faith before the recording of the
petitioner, a common child, or a child of the petition for revocation in the registries of property
petitioner, to engage in prostitution, or shall be respected.
connivance in such corruption or inducement;
and After the issuance of the Decree of Legal
9. Drug addiction or habitual alcoholism of the Separation, the innocent spouse may revoke the
respondent; and designation of the offending spouse as a beneficiary
10. Sexual infidelity or perversion of respondent in any insurance policy even if suchdesignation be
(A.M. No. 02-11-11-SC, Sec. 2 (a)). stipulated as irrevocable. The revocation or change
shall take effect upon written notification thereof to
MOTION TO DISMISS the insurer (A.M. No. 02-11- 11-SC, Sec. 22).
No motion to dismiss the petition shall be allowed
except on the ground of lack of jurisdiction over the DECREE OF RECONCILIATION
subject matter or over the parties (A.M. No. 02-11- 1. If the spouses had reconciled, a joint
11-SC, Sec. 4). manifestation under oath, duly signed by the
spouses, may be filed in the same proceeding
LIQUIDATION, PARTITION AND for legal separation.
DISTRIBUTION, CUSTODY, AND 2. If the reconciliation occurred while the
proceeding for legal separation is pending, the
SUPPORT OF MINOR CHILDREN court shall immediately issue an order
Upon entry of the judgment granting the petition, or, terminating the proceeding.
in case of appeal, upon receipt of the entry of 3. If the reconciliation occurred after the rendition
judgment of the appellate court granting the petition, of the judgment granting the petition for legal
 separation but before the issuance of the employment, and that spouse's future
Decree, the spouses shall express in their earning capacity;
manifestation whether or not they agree to c. the-duration of the marriage;
revive the former regime of their property d. the comparative financial resources of the
relations or choose a new regime. spouses, including their comparative
earning abilities in the labor market;
The court shall immediately issue a Decree of e. the needs and obligations of each spouse;
Reconciliation declaring that the legalseparation f. the contribution of each spouse to the
proceeding is set aside and specifying the marriage, including services rendered in
regime of property relations under which the home-making, child care, education, and
spouses shall be covered. career building of the other spouse;
g. the age and health of the spouses;
4. If the spouses reconciled after the issuance of h. the physical and emotional conditions ofthe
the Decree, the court, upon proper motion, shall spouses;
issue a decree of reconciliation declaring therein i. the ability of the supporting spouse to give
that the Decree is set aside but theseparation of support, taking into account that spouse's
property and any forfeiture of the share of the earning capacity, earned and unearned
guilty spouse already effected subsists, unless income, assets, and standard of living; and
the spouses have agreed to revive their former j. any other factor the court may deem just and
regime of property relations or adopt a new equitable.
regime.
5. If the reconciled spouses choose to adopt a 4. The Family Court may direct the deduction of the
regime of property relations different from that provisional support from the salary of the spouse
which they had prior to the filing of the petition (A.M. No. 02-11-12-SC, Sec. 2).
for legal separation, the spouses shall comply
with Section 24 by filing a verified motion for DETERMINATION OF THE AMOUNT OF
revival indicating the property to be contributed PROVISIONAL CHILD SUPPORT
or retained and the names, addresses and
The common children of the spouses shall be
amounts owing to creditors.
supported from the properties of the absolute
6. The decree of reconciliation shall be recorded
community or the conjugal partnership.
in the Civil Registries where the marriage and
the Decree had been registered (A.M. No. 02-
11-11-SC, Sec. 23). The Following Factors Are Considered:
1. The financial resources of the custodial andnon-
RULE ON PROVISIONAL ORDERS (A.M. custodial parent and those of the child;
2. The physical and emotional health of the child
NO. 02- 11-12-SC)
and his or her special needs and aptitudes;
3. The standard of living the child has been
RULES FOR SPOUSAL SUPPORT accustomed to;
In determining support for the spouses, the court 4. The non-monetary contributions that theparents
may be guided by the following rules: will make toward the care and well- being of the
1. It is based on written agreement between the child.
spouses;
2. In the absence of (1), the spouses may be The Family Court may direct the deduction of the
supported from the properties of the absolute provisional support from the salary of the parent
community or the conjugal partnership; (A.M. No. 02-11-12-SC, Sec. 3).
3. The court may award support to either spouse in
such amount and for such period of time as the CONSIDERATION IN DETERMINING THE
court may deem just and reasonable based on RIGHT PARTY TO WHOM CHILD
their standard of living during the marriage; and
CUSTODY WILL BE AWARDED
The court may likewise consider the In determining the right party or person to whom
following factors: the custody of the child of the parties may be
a. whether the spouse seeking support is the awarded pending the petition, the court shall
custodian of a child whose circumstances consider the best interests of the child and shall give
make it appropriate for that spouse not to paramount consideration to the material and moral
seek outside employment; welfare of the child (A.M. No. 02-11-12-SC, Sec. 4).
b. the time necessary to acquire sufficient
education and training to enable the spouse
seeking support to find appropriate
ORDER OF PREFERENCE IN him (1 TOLENTINO, supra at 672). The surname or
DETERMINING CHILD CUSTODY family name is that which identifies the family to
which he belongs and is continued from parent to
1. To both parents jointly;
child. The given name may be freely selected by the
2. To either parent taking into account all relevant parents for the child, but the surname to which the
considerations under the foregoing paragraph, child is entitled is fixed by law (In the matter of the
especially the choice of the child over seven adoption of Stephanie Nathy Astorga Garcia, G.R.
years of age, unless the parent chosen is unfit;
No. 148311,March 31, 2005).
3. To the surviving grandparent, or if there are
several of them, to the grandparent chosen by NOTE: The right to a surname is not exclusive. It
the child over seven years of age and of does not pertain in ownership to any determinate
sufficient discernment, unless the grandparent is person (Id. at 673).
unfit or disqualified;
4. To the eldest brother or sister over twenty-one
years of age, unless he or she is unfit or RULES ON THE SURNAME OF A
disqualified; MARRIED WOMAN
5. To the child's actual custodian over twenty-one 1. A married woman may use:
years of age, unless unfit or disqualified; or a. Her maiden first name and surname and
6. To any other person deemed by the court add her husband's surname (e.g., Aurora
suitable to provide proper care and guidance Aragon - Quezon); or
for the child (A.M. No. 02-11-12-SC, Sec. 4). b. Her maiden first name and her husband's
surname (e.g.: Aurora Quezon); or
VISITATION RIGHTS c. Her husband's full name, but prefixing a
Appropriate visitation rights shall be provided to the word indicating that she is his wife, such as
parent who is not awarded provisional custody "Mrs.” (e.g.: Mrs. Manuel Quezon) (CIVIL
unless found unfit or disqualified by the court (A.M. CODE, Art. 370).
No. 02-11-12-SC, Sec. 5). d. Her maiden name upon marriage (e.g.,
Aurora Aragon) (Remo v. Sec. of Foreign
Affairs, G.R. No. 169202, March 5, 2010).
ADMINISTRATION OF COMMON
PROPERTY IN CASE OF A married woman has an option but not a duty
ABANDONMENT to use the surname of the husband. She is
If a spouse without just cause abandons the other therefore allowed to use not only any of the three
or fails to comply with his or her obligations to the names provided in Article 370, but also her
family, the court may, upon application of the maiden name upon marriage. She is not
aggrieved party under oath, issue a provisional order prohibited from continuously using her maiden
appointing the applicant or a third person as receiver name once she is married because when a
or sole administrator of the common property subject woman marries, she does not change her name
to such precautionary conditions it may impose but only her civil status (Remo v. Sec. of Foreign
(A.M. No. 02-11-12-SC, Sec. 8). Affairs, G.R. No. 169202, March 5, 2010).

NOTE: The receiver or administrator may not NOTE: Once a married woman opted to adopt
dispose of or encumber any common property or her husband’s surname in her passport, she
specific separate property of either spouse without may not revert to the use of her maiden name,
prior authority of the court (A.M. No. 02-11-12-SC, except in the cases enumerated in Section 5(d)
Sec. 8). of RA 8239:
1) Death of husband;
2) Divorce;
3) Annulment; or
USE OF SURNAMES 4) Nullity of marriage.

(ARTS. 364-380) 2. In case of annulment of marriage

a. If the wife is the guilty party, she shall
resume her maiden name and surname.
b. If she is the innocent spouse, she may
NAME resume her maiden name and surname.
It is a word or combination of words by which a However, she may choose to continue
person is known and identified, and as distinguished employing her former husband's surname,
from others, for the convenience of the world at large unless:
in addressing him, or in speaking of or dealing with i. The court decrees otherwise, or
ii. She or the former husband is married
 again to another person (CIVIL CODE,
Art. 371). NOTE: “Principally” used in Article 364 is not
equivalent to “exclusively”, so that there is no legal
3. When legal separation has been obstacle if a legitimate or legitimated child should
granted, the wife shall continue using choose to use the surname of the mother to whichit
her name and surname employed is legally entitled (Alfon v. Republic, G.R. No. L-
before the legal separation (CIVIL CODE, 51201, May 29,1980).
Art. 372).
Reading Article 364 of the Civil Code together with
NOTE: The language of the statute is the State's declared policy to ensure the
mandatory that the wife, even after the legal fundamental equality of women and men before the
separation has been decreed, shall continue law, a legitimate child is entitled to use the surname
using her name and surname employed before of either parent as a last name (Alanis III vs Court of
the legal separation. This is so because her Appeals, G.R. No. 216425, November 11, 2020).
married status is unaffected by the separation,
there being no severance of the vinculum. It USE OF THE MOTHER’S SURNAME AND
seemsto be the policy of the law that the wife SIGNATURE IS REQUIRED FOR HER
should continue to use the name indicative of ILLEGITIMATE CHILDREN’S BIRTH
her unchanged status for the benefit of all
concerned (Laperal v. Republic, G.R. No. L-
CERTIFICATES
18008, October 30, 1962). The IRR of R.A. No. 9255 states that illegitimate
children shall use the surname and shall be under
4. A widow may use the deceased the parental authority of their mother. The
discretion on the part of the illegitimate childto use
husband's surname as though he were
the surname of the father is conditional uponproof of
still living, in accordance with Art. 370 compliance with R.A. No. 9255 and its IRR.
(CIVIL CODE, Art.373).
It is mandatory that the mother of an illegitimate
USE OF SURNAME BY THE CHILD child signs the birth certificate of her child in all
CHILD SURNAME cases, irrespective of whether the father recognizes
the child as his or not. The only legally known parent
of an illegitimate child, by the fact of illegitimacy, is
Legitimate Surname of father, principally the mother of the child who conclusively carries the
(CIVIL CODE, Art. 364). blood of the mother (In re: Yuhares Jan Barcelote
Tinitigan, G.R. No. 222095, August 7, 2017).
Legitimated Surname of father, principally IDENTITY OF NAMES AND SURNAMES
(CIVIL CODE, Art. 364). 1. The younger person shall be obliged to use such
additional name or surname as will avoid
Conceived Surname of father (CIVIL confusion (CIVIL CODE, Art. 374).
before the CODE, Art. 369). 2. Between ascendants and descendants, the
decree word "Junior" can be used only by a son.
annulling a Grandsons and other direct male descendants
voidable shall either:
marriage a. Add a middle name or the mother's
surname, or
Illegitimate Generally, surname of mother b. Add the Roman Numerals II, III, and so on
(CIVIL CODE, Art. 368). (CIVIL CODE, Art. 375).

May use surname of father if Art. 375 restricts the use of “Junior” but social usage
filiation has been expressly allows the use of “Junior” also for daughters,not for
recognized by the father through granddaughters (1 PARAS, supra at 875).
the record of birth appearing in
the civil register, or when an NOTE: Article 376 on the change of name or
admission in a public document surname has been repealed by R.A. No. 9048
or private handwritten (2001).
instrument is made by the father
(CIVIL CODE, Art. 282). CHANGE OF NAME
Change of name is a matter of public interest. It is
Adopted Surname of adopter
not a right. It is a privilege. The court may give or
(CIVILCODE, Art. 365).
withhold its consent (In the Matter of the Petition for
Change of Name, Go Chiu Beng v. Republic of the ELEMENTS: (AUDI)
Philippines, G.R. No. L-29574, August 19, 1972). 1. There is an Actual use of another’s name by the
defendant;
APPLICATION FOR CHANGE OF NAME 2. The use is Unauthorized; and
Change of name is a judicial proceeding in rem. 3. The use of another’s name is to Designate
Jurisdiction to hear and determine a petition personality or Identify a person (Tolentino v. CA,
therefore, by law, is acquired after publication G.R. No. L-41427, June 10, 1988).
hearing thereof – for 3 successive weeks in a
newspaper of general circulation. But, for that GENERAL RULE: No person shall use different
publication to be effective, it must give correct names and surnames (CIVIL CODE, Art. 380).
information.
EXCEPTION: Use of pen names or stage names is
For purposes of an application for change of name permitted, provided it is done in good faith andthere
under Art. 376 of the Civil Code, the only name that is no injury to third persons (CIVIL CODE, Art.379).
may be changed is the true or official name recorded
in the civil register. In addition, for a publication of
a petition for a change of name to be valid, the title
thereof should include, first, his real name, and ABSENCE
second, his aliases, if any (Jesus Ng Yao Siong v.
Republic, G.R. No. L-20306, March 31, 1966). (ARTS. 381-396)
GROUNDS TO WARRANT A CHANGE
OF NAME The legal status of a person who has absented
Jurisprudence has recognized certain justifying himself from his domicile and whose whereabouts
grounds to warrant a change of name: (W-PACE) and fate are unknown, it not being known with
1. The name is ridiculous, dishonorable or certainty whether he is still living or not (JURADO,
extremely difficult to Write or Pronounce; supra at 260).
2. The change will Avoid confusion;
3. One has been continuously used and been KINDS OF ABSENCE: (PD)
known since Childhood by a Filipino name, 1. Provisional absence (CIVIL CODE, Art.
unaware of alien parentage; 381)
4. The surname causes Embarrassment and there – When a person disappears from his domicile,
is no showing that the desired change of name his whereabouts being unknown, without
was for a fraudulent purpose or that the change leaving an agent to administer his property.
of name will prejudice public interest (Republic a. There is no declaration of absence yet but
v. Bolante, G.R. No. 160597, July 20, 2006). legal representative may be appointed only
when urgent representation is necessaryand
GROUNDS FOR CHANGE OF FIRST applies only if no agent has been appointed
NAME OR NICKNAME UNDER RA 9048 to represent the absentee or agent’s
1. Petitioner finds the first name or nickname to be authority has expired (1 PARAS, supra at
ridiculous, tainted with dishonor or extremely 874);
difficult to write or pronounce; b. The spouse is preferred as the legal
2. The new name or nickname has been habitually representative except when they are legally
and continuously used by petitioner and he has separated (CIVIL CODE, Art. 383, par. 1);
been publicly known by that first name or and
nickname in the community; c. If absentee left no spouse, any competent
3. The change will avoid confusion (R.A. 9048, person any be appointed (CIVIL CODE, Art.
Sec. 4) 383, par. 2).

2. Declared absence (CIVIL CODE, Art. 384)

USURPATION OF A NAME
a. Without administrator - When a person
Usurpation of a name and surname may be the disappears from his domicile, and 2 years
subject of an action for damages and other relief have elapsed without any news about him, or
(CIVIL CODE, Art. 377). Consequently, the since the receipt of the last news.
unauthorized or unlawful use of another person's b. With administrator – 5 years have elapsed
surname gives a right of action to the latter (CIVIL
CODE, Art. 378). The following may ask for the declaration
ofabsence: (STIR)
i. Spouse present;
 ii. Testate heirs; purposes:
iii. Intestate heirs; and a. A person on board a vessel lost during a sea
iv. Other persons subordinated to Rights voyage, or an aeroplane which is missing,
over the property of absentee by death. who has not been heard of for 4 years
(CIVIL CODE, Art. 385) since the loss of the vessel or aeroplane;
b. A person in the armed forces who has taken
The judicial declaration of absence shall nottake part in war, and has been missing for 4
effect until 6 months after its publication in a years;
newspaper of general circulation (CIVIL CODE, c. A person who has been in danger of death
Art. 386). under other circumstances and his
existence has not been known for 4 years
An administrator of the absentee’s property shall (CIVIL CODE, Art. 391).
be appointed by the court in accordance with
Art. 383 (CIVIL CODE, Art. 387). PRESUMPTION OF DEATH
(CIVIL CODE, ARTS. 390 TO 392)
NECESSITY OF JUDICIAL Absence under Ordinary Circumstances
APPOINTMENT (Art. 390)
Appointment by the court is essential to capacitate
the wife to represent the absentee.Otherwise, she Presumed dead for all purposes
cannot, for example, dispose ofconjugal property (1 7
PARAS, supra at 868). years EXCEPTION:
For purposes of opening succession
If the wife is appointed as an administratrix, she
cannot alienate or encumber the husband’s property Presumed dead for purposes of opening
or that of the conjugal property without judicial succession
authority (CIVIL CODE, Art. 388).
10 EXCEPTION:
RIGHTS OF WIFE AS ADMINISTRATIX: years If at the time of disappearance, the person
She must always obtain judicial permission or was already 75 years old, 5 years of
authority in order that: absence is sufficient for this presumption
a. She can alienate or encumber to apply.
herhusband’s property.
b. She can alienate or encumber the conjugal 4 Presumed dead for purposes of
property (1 PARAS, supra at 876). years remarriage of the spouse present (FAMILY
CODE, Art. 41)
THE ADMINISTRATION SHALL CEASE
WHEN: (RPA) Absence under Extraordinary Circumstances/
1. Absentee Reappears personally or through an Qualified absence (Art. 391)
agent;
2. Death is Proven and his testate/intestate heirs 4 Presumed dead for all purposes
appear; and years includingopening of succession.
3. Third person appears and shows proof that he
Acquired absentee’s property when absentee
2 Presumed dead for purposes of
was still alive (CIVIL CODE, Art. 389).
years remarriage (FAMILY CODE, Art. 41).
PRESUMPTIVE DEATH
When the absentee is presumed dead (CIVIL EFFECT OF APPEARANCE BY
CODE, Arts. 390-391). ABSENTEE
If the absentee appears, or without appearing his
KINDS OF ABSENCE VIS-À-VIS existence is proved, he shall recover his property in
PRESUMPTION OF DEATH: the condition in which it may be found, and the price
1. Ordinary of any property that may have been alienated or the
– it is when after an absence of 7 years, it being property acquired therewith; but he cannot claim
unknown whether or not the absentee still lives either fruits or rents (CIVIL CODE, Art. 392).
(CIVIL CODE, Art. 390).

2. Extraordinary or Qualified
– the following shall be presumed dead for all
PRESUMPTION OF DEATH OF ABSENT EXCEPTIONS:
SPOUSE 1. Before the celebration of the subsequent
marriage, the prior spouse had been absent for
A well-founded belief that the absentee is already four consecutive years and the spouse present
dead is required before an absent spouse may be has a well-founded belief that the absent spouse
declared presumably dead. The requisites are: (4- was already dead; or
RBF) 2. In case of disappearance where there is danger
1. The absent spouse has been missing for 4 years of death under the circumstances set forth inthe
or 2 consecutive years if the disappearance is provisions of Article 391 of the Civil Code, an
under extraordinary circumstances stated in Art. absence of only two years shall be sufficient
91 of the Civil Code; (FAMILY CODE, Art. 41).
2. The present spouse wishes to Remarry;
3. The present spouse has a well-founded Belief
NOTE: Article 41 of the Family Code only applies
that the absent spouse is dead; and
when the petitioner seeks to remarry (Tadeo-Matias
4. The present spouse Files a summary
v. Republic, G.R. No. 230751, April 25, 2018).
proceeding for the declaration of presumptive
death of the absent spouse (Republic v.
Nolasco, G.R. No. 94053, March 17, 1993).

NOTE: The legal requirement on the need for judicial CIVIL REGISTRAR
declaration of presumptive death does not apply to (ARTS. 407-413)
a marriage celebrated under the (Old) Civil Code
as the law itself presumed as dead the spouse who
disappeared for a period of 7 years where the
present spouse has no news of the absentee being Acts, events and judicial decrees concerning the civil
alive, or for less than 7 years where the absentee status of persons shall be recorded in the civil
was generally presumed dead. Hence, proof of register (CIVIL CODE, Art. 407). This includes:
“well-founded” belief is not required. Petitioner (BMD-LAVLA2-NEC-JC)
could not have been expected to comply with this 1. Births;
requirement since the Family Code was not yet in 2. Marriages;
effect at the time of her marriage (Valdez v. 3. Deaths;
Republic, G.R. No. 180863, September 8, 2009). 4. Legal separations;
5. Judgments of Annulment of marriage;
Claims based on bare assertions, uncorroborated by 6. Judgment declaring marriages Void from the
any kind of evidence, falls short of the diligence beginning;
required to engender a well-founded belief that the 7. Legitimations;
absentee spouse is dead (Republic v. Catubag,G.R. 8. Adoptions;
No. 210580, April 18, 2018). 9. Acknowledgments of natural children;
10. Naturalization;
WELL-FOUNDED BELIEF 11. Election, loss or recovery of citizenship;
The "well-founded belief" in the absentee's death 12. Civil interdiction;
requires the present spouse to prove that his/her 13. Judicial determination of filiation; and
belief was the result of diligent and reasonable 14. Change of name (CIVIL CODE, Art. 408).
efforts to locate the absent spouse and that based
on these efforts and inquiries, he/she believes that NOTE: These are entries subject to cancellation or
under the circumstances, the absent spouse is correction upon good and valid grounds (RULES OF
already dead. It necessitates exertion of active COURT, RULE 108, Sec. 2).
effort, not a passive one. As such, the mere absence
of the spouse for such periods prescribed under the DUTY OF THE CLERK OF COURT
law, lack of any news that such absentee spouse is To ascertain whether the decree has been
still alive, failure to communicate, or general registered, and if this has not been done, to send a
presumption of absence under the Civil Code would copy of said decree to the civil registry of the city or
not suffice (Republic v. Tampus, G.R. No. 214243, municipality where the court is functioning (CIVIL
March 16, 2016). CODE, Art. 409).

GENERAL RULE: Any marriage contracted by a

person during the subsistence of a previousmarriage
shall be null and void (FAMILY CODE, Arts. 41 and
35 (4)).
NATURE OF THE BOOKS OF THE EXCEPTIONS TO THE EXCEPTION: (ANS)
CIVIL REGISTER AND RELATED 1. Age
2. Nationality
DOCUMENTS 3. Status (R.A. No. 10172 Implementing Rulesand
1. Considered public documents; and Regulations, Rule 2.1).
2. Prima facie evidence of the facts contained
therein (CIVIL CODE, Art. 410). NOTE: Correction or change can be made by the
concerned city or municipal civil registrar or consul
UNLAWFUL ALTERATION general in accordance with the provisions of this Act
GENERAL RULE: Every civil registrar shall be civilly and its implementing rules and regulations.
responsible for any unauthorized alteration made in
any civil register, to any person suffering damage CHANGE OF NAME IS A PRIVILEGE
thereby (CIVIL CODE, Art. 411). The State has an interest in the names borne by
individuals and entities for purposes of
EXCEPTION: If the civil registrar proves that he has identification. A change of name is a privilege, not a
taken every reasonable precaution to prevent the right. Petitioner must show proper or reasonable
unlawful alteration, he may exempt himself from cause or any compelling reason which may justify
liability (CIVIL CODE, Art. 411). such change (Silverio v. Republic, G.R. No. 174689,
October 22, 2007).
FURTHERANCE OF AUTHORITY OF
THE CIVIL REGISTRAR TO CORRECT A change of name is a privilege and not a matter of
CLERICAL AND TYPOGRAPHICAL right; a proper and reasonable cause must exist
ERRORS UNDER R.A. NO. 10172 before a person may be authorized to change his
name. "In granting or denying petitions for change
(An Act further Authorizing the City or Municipal Civil of name, the question of proper and reasonable
Registrar or the Consul General to Correct Clerical cause is left to the sound discretion of the court.
or Typographical Errors in the Day and Month in the What is involved is not a mere matter of allowance
Date of Birth or Sex ofa Person Appearing in the or disallowance of the request, but a judicious
Civil Register without Need of a Judicial Order, evaluation of the sufficiency and propriety of the
Amending For This Purpose Republic Act Numbered justifications advanced in support thereof, mindful
Ninety Forty- Eight). of the consequent results in the event of its grant and
with the sole prerogative for making such
AUTHORITY TO CORRECT CLERICAL determination being lodged in the courts (Gan v.
OR TYPOGRAPHICAL ERROR AND Republic, G.R. No. 207147, September 14, 2016).
CHANGE OF FIRST NAME OR
NICKNAME GROUNDS FOR CHANGES OF NAME:
GENERAL RULE: No entry in a civil register shall (C2LEAR)
be changed or corrected without a judicial order 1. When the change will avoid Confusion;
(CIVILCODE, Art. 412). 2. Having Continuously used and been known
since childhood by a Filipino name, unaware of
EXCEPTION: Administrative proceeding for clerical her alien parentage;
or typographical errors and change of name or 3. When the change results as a Legal
nickname, the day and month in the date of birth or consequence;
sex of a person where it is patently clear that there 4. When the surname causes Embarrassment and
was a clerical or typographical error or mistake in the there is no showing that the desired change of
entry (R.A. No. 10172, Sec. 1). name was for a fraudulent purposeor that the
change of name would prejudice public interest;
Clerical or Typographical Error 5. A sincere desire to adopt a Filipino name to
Refers to a mistake committed in the performance erase signs of former Alienage, all in good faith
of clerical work in writing, copying, transcribing or, and without prejudicing anybody; and
typing an entry in the civil register that is harmless 6. When the name is Ridiculous, dishonorable or
and innocuous, such as misspelled name or extremely difficult to write or pronounce
misspelled place of birth, mistake in the entry of (Republic v. CA G.R. No. 97906, May 21, 1992).
day and month in the date of birth or sex of the
person or the like, which is visible to the eyes or FIRST NAME
obvious to the understanding, and can be corrected It refers to a name or nickname given to a person
or changed only by reference to other existing record which may consist of one or more names in addition
or records (R.A. No. 10172, Sec. 2, par. 3). to the middle and last names (R.A. No. 9048, Sec.
2(6), as amended).
 2. Petitioner is a citizen of the Philippines
GROUNDS FOR CHANGE OF FIRST presently residing in a foreign country
NAME OR NICKNAME (R.A. NO. 9048):
Citizens of the Philippines who are presently
(HAR) residing or domiciled in foreign countries may
1. New first name or nickname has been Habitually file their petition, in person, with the nearest
and continuously used by the petitioner and he Philippine Consulates (R.A. No. 9048, Sec. 3,
has been publicly known by that first name or pars. 2 and 3, as amended).
nickname in the community;
2. The change will Avoid confusion; or CHANGE OF MIDDLE NAME
3. First name or nickname is Ridiculous, tainted
Middle names serve to identify the maternal lineage
with dishonor or extremely difficult to write or
or filiation of a person, as well as further distinguish
pronounce (R.A. No. 9048, Sec. 4, as
him from others who may have the same given name
amended).
and surname as he has. Dropping the middle name
NOTE: R.A. 9048 (as amended by R.A. 10172) does of a minor so that he will not be different from his
NOT sanction a change of first name on the ground classmates in Singapore and on the additional
of sex reassignment. To rule otherwise may create ground that it would cause confusion and difficulty
in its pronunciation in Singapore does not constitute
grave complications in the civil registry and public
proper and reasonable cause to drop it from his
interest (Silverio v. Republic, G.R. No. 174689,
registered complete name. As he is of tender age,
October 22, 2007).
he may not yet understand and appreciate the value
of the change of his name and granting of the same
WHO MAY FILE A PETITION FOR THE at this point may just prejudice him in his rights under
CORRECTION OF A CLERICAL OR our laws (In Re: Petition for Change of Name and/or
TYPOGRAPHICAL ERROR IN AN ENTRY Correction/Cancellation of Entry in Civil Registry of
AND/OR CHANGE OF FIRST NAME OR Julian Lin Carulasan Wang v. Cebu City Civil
Registrar, G.R. No. 159966, March 30, 2005).
NICKNAME
Any person having direct and personal interest in the Please refer to Remedial Law Memory Aid for a
correction of a clerical or typographical error in an comprehensive discussion of the procedural
entry and/or change of first name or nickname in the aspects of change of name.
civil register may file, in person, a verified petition
with the local civil registry office of the city or
municipality where the record being sought to be
CANCELLATION OR CORRECTION OF
corrected or changed is kept (R.A. No. 9048, Sec. ENTRIES IN THE CIVIL REGISTRY
3, par. 1, as amended). WHO MAY FILE: Any person interested in any act,
event, order or decree concerning the civil status of
NOTE: All petitions for the clerical or typographical persons which has been recorded in the civil
errors and/or change of first names or nicknames register, may file a verified petition for the
may be availed of only once (R.A. No. 9048, Sec. cancellation or correction of any entry relating
3, par. 5, as amended). thereto, with the Court of First Instance (Regional
Trial Court) of the province where the corresponding
VENUE OF PETITION civil registry is located (RULES OF COURT, RULE
108, Sec 1).
1. Petitioner has already migrated to another
place in the Philippines
The Civil Registrar and all persons who have or
In case the petitioner has already migrated to claim any interest which would be affected thereby
another place in the country and it would not be shall be made parties to the proceeding (RULES OF
practical for such party, in terms of COURT, RULE 108, Sec. 3).
transportation expenses, time and effort to
appear in person before the local civil registrar UPON THE FILING OF THE PETITION,
keeping the documents to be corrected or THE COURT SHALL: (FRO)
changed, the petition may be filed, in person, 1. Fix the time and place for the hearing of the
with the local civil registrar of the place where same;
the interested party is presently residing or 2. Cause Reasonable notice thereof to be given
domiciled. The two (2) local civil registrars to the persons named in the petition; and
concerned will then communicate to facilitate the 3. Cause the Order to be published once a week
processing of the petition. for 3 consecutive weeks in a newspaper of
general circulation in the province (RULES OF
COURT, RULE 108, Sec. 4).
OPPOSITION TO THE PETITION
Opposition may be filed by the civil registrar and any
person having or claiming any interest under the
entry whose cancellation or correction is sought
within 15 days from notice of the petition, or from the
last date of publication of such notice (RULES OF
COURT, RULE 108, Sec. 5).

ORDERS OF EXPEDITING
PROCEEDINGS
Orders expediting the proceedings and preliminary
injunction for the preservation of the rights of the
parties pending such proceedings may be granted
by the court (RULES OF COURT, RULE 108, Sec.
6).

DISMISSAL OF PETITION
After hearing, the court may either dismiss the
petition or issue an order granting the cancellation or
correction prayed for. In either case, a certified copy
of the judgment shall be served upon the civil
registrar concerned who shall annotate the same in
his record (RULES OF COURT, RULE 108, Sec. 7).
 CLASSIFICATION OF THINGS:
PROPERTY 1. Res Nullius
– “belonging to no one”

REASON: They have not yet been appropriated.

PROPERTY AS A SUBJECT a. Res Derelictae – abandoned by the owner
It is a branch of civil law which classifies and defines with the intention of no longer owning them;
the different kinds of appropriable objects, their b. Ferae Naturae – free in their natural habitat
acquisition and loss, and in general, treats of the
nature and consequences of real rights (PARAS, Civil 2. Res Communes
Code of the Philippines Annotated Volume II, (2016), – “belonging to everyone”; their use and
p. 1 [hereinafter 2 PARAS]). enjoyment are given to all mankind.

PROPERTY NOTE: They are not capable of appropriation in

All things which are or may be the object of their entirety as such although they may be
appropriation (CIVIL CODE, Art. 414). appropriated under certain conditions in a limited
way (Id. at 2).
Under civil law, property comprehends every species
of title, inchoate or complete, legal or equitable 3. Res Alicujus
(China Banking Corporation v. CA, G.R. No. 129644, – “belonging to someone”; objects, tangible or
March 7, 2000). intangible, which are owned privately, either in a
collective or individual capacity (2 PARAS, supra
THING V. PROPERTY at 2).

THING (COSA) PROPERTY (BIENES) REQUISITES/CLASSIFICATIONS OF

Any object which Anything which is PROPERTY: (USA)
exists and is capable already an object of 1. Utility
of satisfying human appropriation or found – capacity to satisfy some human want. This
needs, including those in the possession of utility, which is generally economic, endows
already possessed, man. It must be property with value susceptible of pecuniary
those susceptible of susceptible of estimation (DE LEON, Property, supra at 2);
appropriation, and appropriation.
common things which 2. Substantivity or individuality
are physically or – quality of having existence apart from any other
legally impossible to thing. Thus, parts of the human body such as
possess. hair, blood, and teeth cannot exist by themselves
(DE LEON, Comments and Cases on Property, independent of the body; they become property
(2015), p. 1 [hereinafter DE LEON, Property]). only when separated from the body of the person
to whom they belong (Id.); and
NOTE: Strictly speaking, “thing” is not synonymous 3. Appropriability
with “property”. However, the Civil Code uses these – susceptibility of being possessed by men (Id.).
terms interchangeably (Id.).

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA TAMPUS, Vice Chairperson
for Secretariat | ARVY KEITH CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice Chairperson for
Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. JOSEPH FERDINAND DECHAVEZ and Dean EDUARDO J.F. ABELLA

 CLASSIFICATION OF 5. Dependence or Importance:
a. Principal; and
PROPERTY b. Accessory (DE LEON, Property, supra at 6-
(ART. 414) 7).
6. Capability of Substitution:
a. Fungible; and
b. Non-fungible (Id.).
7. Definiteness or Nature:
KINDS OF PROPERTIES:
a. Generic or Indeterminate – referring to a
1. Immovable or Real (CIVIL CODE, Art. 415); group or class; and
2. Movable or Personal (CIVIL CODE, Arts. 416 and b. Specific or Determinate – referring to a
417); and single, unique object (Id.).
3. Mixed or Semi-movables
a. Movables that are rendered immovable by NOTE: Under the Law on Sales, a thing is
reason of being immobilized by destination or determinate or specific when it is particularly
through attachment to an immovable; designated or physically segregated from all
b. Immovables but are treated as movables others of the same class (CIVIL CODE, Art.
because they can be transplanted (e.g., 1460).
plants) or dismantled and moved to another
place (e.g., house of light materials) without 8. Divisibility:
impairing their substance; and a. Divisible; and
c. Animals in animal houses, pigeon houses, b. Indivisible (DE LEON, Property, supra at 6-
etc. (CIVIL CODE, Art. 414, Par. 6) which are 7).
classified as immovable though transferable 9. Consumability (Movables):
from place to place or they can move by a. Consumable; and
themselves (DE LEON, Property, supra at 9- b. Non-consumable (Id.).
10). 10. Whether in the Custody of the Court or Free:
a. In custodia legis – those seized by an officer
OTHER CLASSIFICATIONS OF under a writ of attachment or execution; and
PROPERTIES: b. “Free” property (Id.).
1. Ownership:
a. Public dominion; and Importance of Classification:
b. Private dominion (Id. at 6-7). The classification of property into immovables and
2. Alienability: movables does not assume its importance from the
a. Within the commerce of man; and fact of mobility or non-mobility, but from the fact that
b. Outside the commerce of man (Id.). different provisions of the law govern the acquisition,
3. Existence: possession, disposition, loss, and registration of
a. Present or existing property (res existentes); immovables and movables (2 PARAS, supra at 5).
and
b. Future property (res futurae) (Id.). 1. In Private International Law, the general rule is
4. Materiality or Immateriality: that immovables are governed by the law of the
a. Tangible or Corporeal (objects which can be country in which they are located, whereas
seen or touched); and movables are governed by the personal law of
b. Intangible or Incorporeal (Id.). the owner (DE LEON, Property, supra at 8).
2. Under the law on Donation, in order for a
NOTE: Rights or credits, like the credit donation of an immovable property to be valid, it
represented by P1,000 Bangko Sentral (2 must be made in a public document (CIVIL
PARAS, supra at 3). CODE, Art. 749). If the donated property is a
movable one, which value exceeds P5,000.00,
NOTE: Philippine peso bills when attempted to both the donation and the acceptance must be in
be exported may be deemed to have been taken writing (CIVIL CODE, Art. 748).
out of domestic circulation as legal tender and 3. In Criminal Law, usurpation of property can take
may therefore be treated as a commodity. place only with respect to real property; while
Hence, bills carried in excess of that allowed by robbery and theft can be committed only with
the Bangko Sentral may be forfeited pursuant to respect to personal property (DE LEON,
CB Circular No. 37 in relation to Sec. 1363 (f) of Property, supra at 8-9).
the Revised Administrative Code (Commissioner 4. In Civil Procedure, actions concerning real
of Customs v. Capistrano, G.R. No. L-11075, property are brought in the RTC where the
June 30, 1960). property or any part thereof lies, whereas
 personal property are brought in the court where same for medical, surgical, or scientific purposes.
the defendant or any of its defendants reside or Similar authority may also be granted for the
may be found, or where the plaintiff or any of the utilization for medical, surgical, or scientific
plaintiffs reside (Id.). purposes, of any organ, part or parts of the body
5. In Contracts, only real property can be the which, for a legitimate reason, would be detached
subject matter of real mortgage and antichresis, from the body of the grantor (R.A.No.349, as
while only personal property can be the subject amended by R.A. 1056, Sec.1).
matter of simple loan or mutuum, and voluntary
deposit and Personal Property Security Act (Id.). Requisites for the validity of the
NOTE: The laws on pledges and chattel authorization: (WSS)
mortgage are repealed by RA 11057 a. It must be in Writing;
otherwise known as the Personal Property b. It must Specify:
Security Act (hereinafter PPSA). Based on 1. The person or institution granted the
Section 68 and 26 of the PPSA, the authorization;
implementation of this act shall be 2. The organ, part or parts to be
conditioned upon the establishment and detached;
operation of the Registry. 3. The use or uses of the organ, part or
6. Under the law on Prescription, ownership of real parts to be employed; and
property may be acquired by prescription,with c. It must be Signed by the grantor and two
just title and in good faith for at least ten (10) disinterested witnesses (R.A. No. 349, Sec.
years or without need of title or of good faith for 2).
at least thirty (30) years (CIVIL CODE, Art. 1137),
whereas in case of personal property, the period Under R.A. No. 349, consent to organ retrieval
is four (4) years, if in good faith and eight (8) after the patient’s death may be given, first and
years without need of any condition (CIVIL foremost, by the patient’s nearest relative or
CODE, Art. 1132). guardian at the time of death. It is only in the
7. In order to affect third persons, generally, event that these relatives cannot be contacted
transactions involving real property must be despite reasonable efforts that the head of the
recorded in the Registry of Property (CIVIL hospital or institution having custody of the body
CODE, Art. 2140; DE LEON, Property, supra at may give consent for organ retrieval on behalf of
8-9). In any tangible asset, a security interest the patient. Failing this, liability for damages
may be perfected by registration or possession. arises (Alano v. Magud-Logmao, G.R. No.
A security interest in investment property and 175540, April 7, 2014).
deposit account may be perfected by registration
or control. On perfection, a security interest 2. R.A. No. 7170: Organ Donation Act of 1991
becomes effective against third persons (R.A.
No. 11057, Secs. 11 and 12). Donation by way of legacy:
Under this law, any individual, at least 18 years
NOTE: The human body, whether alive, or dead, is of age and of sound mind, may give, by way of
neither real nor personal property, for it is not even legacy, to take effect after his death, all or part of
property at all, in that generally, it cannot be his body for medical or dental education,
appropriated although there is a right of possession research, advancement of medical or dental
over it for burial purposes. Under certain conditions, science, therapy or transplantation, as the case
the body of a person or parts thereof may be the may be.
subject matter of a transaction (2 PARAS, supra at
7). Persons who may execute a donation on
behalf of another: (S3PG)
NOTE: Any of the following persons, in the order stated
1. R.A. 349: An Act to Legalize Permissions to hereunder, in the absence of actual notice of
Use Human Organs or Any Portion or contrary intentions by the decedent or actual
Portions of the Human Body for Medical, notice of opposition by a member of his or her
Surgical, or Scientific Purposes, Under immediate family, may donate all or any part of
Certain Conditions (1949), as amended by the decedent’s body:
R.A. 1056 a. Spouse;
Under this law, a person may validly grant to a b. Son or daughter of legal age;
licensed physician, surgeon, known scientist, or c. Either Parent;
any medical or scientific institution including eye d. Brother or Sister of legal age; or
banks and other similar institutions, authority to e. Guardian over the person of the decedent at
detach at any time after the grantor's death any the time of his death (R.A. No. 7170, Sec.
organ, part or parts of his body and to utilize the 4(a)).
 2. Real by Incorporation
NOTE: The persons authorized by subsection (a) – attached to an immovable in a fixed manner to
may make the donation after or immediately be an integral part thereof (CIVIL CODE, Art.
before death (R.A. No. 7170, Sec. 4, Par. b). 415(1-4 and 6));

Possible Donees: 3. Real by Destination

a. Any hospital, physician or surgeon – for – placed in an immovable for the utility it gives to
medical or dental education, research, the activity carried thereon (CIVIL CODE, Art.
advancement of medical or dental science, 415(4-7 and 9)); and
therapy, or transplantation;
b. Any accredited medical or dental school, 4. Real by Analogy
college or university – for education, – it is so classified by express provision of law (2
research, advancement of medical or dental PARAS, supra, at 12; CIVIL CODE, Art. 415(10)).
science, or therapy;
c. Any organ bank storage facility – for medical
TYPES OF IMMOVABLE PROPERTIES
or dental education, research, therapy, or
transplantation; and (CIVIL CODE, Art. 415) (LaTAS-FAMine-
d. Any specified individual – for therapy or MacDoCo)
transplantation needed by him (R.A. No. 1. Land, buildings, roads and constructions
7170, Sec. 6). of all kinds adhered to the soil
3. R.A. 7719: National Blood Services Act of a. Land is the best example of immovable
1994 property: However, a shovelful of land is a
This act promotes voluntary blood donation to personal property since this no longer
ensure adequate supply of human blood. adheres to the soil but when it is used to
cover a land, it becomes immovable again (2
NOTE: R.A. 7719 or the National Blood Services PARAS, supra at 13).
Act of 1994 is intended primarily to safeguard the
health of the people and has mandated several b. Buildings are immovables by incorporation.
measures to attain this objective. One of these is Their adherence to the land must be
the phase out of commercial blood banks in the permanent and substantial. They are more or
country. The law has sufficiently provided a less of a permanent structure, substantially
definite standard for the guidance of the adhering to the land, and not mere
Secretary of Health in carrying out its provisions, superimpositions on the land like barong-
that is, the promotion of public health by providing barongs or quonset fixtures, provided there
a safe and adequate supply of blood through is intent of permanent annexation (Id.).
voluntary blood donation. By its provisions, it has
conferred the power and authority to the “Constructions of All Kinds” – the
Secretary of Health as to its execution, to be attachment must be more or less permanent;
exercised under and in pursuance of the law intent to attach permanently is important (2
(Beltran v. Secretary of Health, G.R. No. 133640, PARAS, supra at 18).
November 25, 2005).
It should be attached to the land in such a
way it cannot be separated therefrom without
breaking the material or deterioration of the
IMMOVABLE object (Meralco Securities Industrial Corp v.
PROPERTIES CBAA, G.R. No. L-46245, May 31, 1982).

(ART. 415) Where a building is sold to be demolished

immediately, it is to be regarded as movable
because the subject matter of the contract is
really the materials thereof (DE LEON,
CATEGORIES: (NIDA) Property, supra, at 55).
1. Real by Nature
– it cannot be carried from place to place (CIVIL Principle of Accession - the building is
CODE, Art. 415(1-2 and 8)); immovable property whether it is erected by
the owner, usufructuary, or lessee of the land
(Evangelista v. Alto Surety & Ins. Co., Inc.,
G.R. No. L-11139, April 23, 1958).
The building and the land on which it is On March 25, 2021, the LRA announced the
erected are separate immovable properties soft launching of the Philippines Personal
(Lopez v. Orosa, G.R. No. L-10817-18, Property Security Registry (PPSR). For
February 28, 1958). clarity, the operationalization of the PPSR
with respect to User Account creation shall
While it is true that generally, real estate not mean that the Registry has been fully
connotes the land and the building established and operational, as
constructed thereon, it is obvious that the contemplated in Sec. 55 item d of the PPSA,
inclusion of the building, separate and nor does this mean that the PPSR is now fully
distinct from the land, in the enumeration of implemented as provided in Section 8.3 item
what may constitute real properties could a (ii) and 10.03 of the PPSA IRR, (LRA
mean only one thing — that a building is by Circular 11-2021 Sec 5.2).
itself an immovable property (Lopez v.
Orosa, Jr., G.R. Nos. L-10817-18, February c. Roads, whether public or private, are
28, 1958). immovable. They are considered integral
parts of the land.
A building is an immovable property
irrespective of whether or not said structure d. Constructions. Examples of constructions
and the land on which it is adhered to belong are railroads. A wall or fence is to be
to the same owner. It cannot be divested of regarded as a construction by incorporation
its character of a realty by the fact that the as long as there is intent to attach it
land on which it is constructed belongs to permanently although it is merely made to
another (Associated Insurance & Surety Co. rest on the land (DE LEON, Property, supra
Inc. v. Iya, G.R. No. L-10837-38, May 30, at 13).
1958).
2. Trees, plants, and growing fruits
GENERAL RULE: The execution of a chattel They are immovable property on the theory that
mortgage on a building is null and void, they derive their existence or sustenance from
notwithstanding registration in the Chattel the soil (Id. at 19).
Mortgage Registry (Associated Insurance &
Surety Co. Inc. v. Iya, G.R. No. L-10837-38. a. Trees
May 30, 1958). However, when trees are detached or
uprooted, incorporation ceases and they
EXCEPTION: A property may have a become movables, except in the case of
character different from that imputed to it by uprooted timber if the land is a timberland.
the law, i.e., the parties to a contract may, by This is because it is still an integral part of an
agreement, treat as personal property that immovable property when it constitutes the
which, by nature, would be real property. The natural product of the latter (2 PARAS, supra
view that parties to a deed of chattel at 18).
mortgage may agree to consider it as a
personal property is good only insofar as the b. Growing Crops
contracting parties are concerned. The same Inasmuch as the law makes no distinction,
is based on the principle of estoppel growing crops whether on one’s land or on
(Evangelista v. Alto Surety Co. as cited in another’s, as in the case of usufructuary, a
Navarro v Pineda and Reyes, G.R. No. L- possessor or a tenant, should be considered
18456, November 30, 1963). Hence, a house as real property (Id. at 19-20).
may be the object of a chattel mortgage
contract, provided that: On the other hand, once they have been
i. The parties to the contract so agree; and severed they become personal property.
ii. No innocent third party will be prejudiced. Sale of growing crops is sale of personal
property (3 MANRESA 22 as cited in
NOTE: The laws on pledges and chattel PARAS, supra at 19) because when the
mortgage are repealed by RA 11057 crops are sold it is understood that they are
otherwise known as the Personal Property to be gathered (2 PARAS, supra at 19-20).
Security Act (hereinafter PPSA). Based on
Section 68 and 26 of the PPSA, the 3. Everything Attached to an immovable in a
implementation of this act shall be fixed manner
conditioned upon the establishment and The attachment need not be made by the owner.
operation of the Registry. The same must be such that it cannot be
separated from the immovable without breaking
 the material or deterioration of the object. The d. There is an Intention of permanent
breakage or injury, in case of separation, must be annexation or attachment, even if adherence
substantial (Id. at 20). will not involve breakage or injury – this is the
main consideration (DE LEON, Property,
Article 415 paragraphs 1 and 3 provide that real supra at 21-22).
property may consist of constructions of all kinds
adhered to the soil and everything attached to an DISTINCTIONS BETWEEN PAR. 3 AND 4
immovable in a fixed manner, in such a way that OF ART. 415
it cannot be separated therefrom without
breaking the material or deterioration of the PARAGRAPH 3 PARAGRAPH 4
object. The pipeline system in question is
indubitably a construction adhering to the soil. It Cannot be separated Can be separated from
is attached to the land in such a way that it cannot from immovable without immovable without
be separated therefrom without dismantling the breaking or breaking or
steel pipes which were welded to form the deterioration deterioration.
pipeline (Meralco v. CBAA, G.R. No. L-46245,
Need not be placed by Must be placed by the
May 31, 1982).
the owner. owner or his agent.
Where the property like a water pump and its Real property by Real property by
accessories can be separated from the incorporation. incorporation and
immovable without being broken or suffering destination.
deterioration as when such removal involved
nothing more complicated than the loosening of (2 PARAS, supra at 20).
bolts or dismantling of fasteners, the said
property is not immovable under Art. 415(3) (Yap 5. Machinery, receptacles, instruments, or
v. Tanada, G.R. No. L-32917, July 18, 1988). implements for an industry or works

Both electric lines and communication cables, in Machinery is a collective term for machines and
the strictest sense, are not directly adhered to the appliances used in the industrial arts (DE LEON,
soil but pass through posts, relays, or landing Property, supra at 23).
stations, but both may be classified under the
term "machinery" as real property under Article Equipment covers physical facilities available for
415(5) of the Civil Code for the simple reason that production, including buildings, machineries, and
such pieces of equipment serve the owner's tools (Id.).
business or tend to meet the needs of his industry
or works that are on real estate (Capitol Wireless Implements pertain to whatever may supply to
v. The Provincial Treasurer of Batangas, G.R. what is lacking especially an instrument, tool, or
No. 180110, May 30, 2016). utensil (Id.).

Intent Material Requisites: (OBM)

The fact that the machineries were bolted or a. It must be placed by the Owner of the
cemented on real property mortgaged does not tenement or his agent (Davao Sawmill Co. v.
make them ipso facto immovable under Article Castillo, G.R. No. 40411, August 7, 1935);
415 (3) and (5) as the parties’ intent has to be b. The industry or works must be carried on in
looked into. Even if the properties appear to be a Building or on a piece of land (CIVIL
immovable by nature, nothing prohibits the CODE, Art. 415(5)); and
parties from treating them as chattels to secure c. They tend directly to Meet the needs of the
an obligation under the principle of estoppel (Tsai said industry or works (CIVIL CODE, Art.
v. CA, G.R. No. 120098, October 2, 2001). 415(5)).

4. Statues, reliefs, paintings, or other Test of Essentiality

objects for use or ornamentation The machineries must be an essential and
principal element of the industry or works, without
Requisites: (OPOI) which such industry or works would be unable to
a. It is an Object of ornamentation or object of function or carry on the industrial purpose for
use; which it was established, and not merely
b. The property is Placed on a building or land; incidental (Mindanao Bus Co. v. City Assessor
c. It must be placed by the Owner of the and Treasurer, G.R. No. L-17870, September 29,
immovable or by his agent (buildings or 1962).
lands); and
The equipment and living quarters of the crew, separated from the tenement temporarily, the
being permanently attached to the platform, property continues to be an immovable (2
which is also an immovable, are immovables. PARAS, supra at 23).
This is especially so if they are intended to meet
the needs of the business and industry of the 6. Animal houses, pigeon houses,
corporation (FELS Energy, Inc. v. Province of beehives, fishponds or breeding places
Batangas, G.R. No. 168557, Feb 16, 2007). of similar nature
A machinery, although movable in nature, Requisites: (PIO)
becomes immobilized when placed on a plant by a. Forms a Permanent part of the immovable;
the owner of the property but not so when placed b. Placed or preserves them with the Intention
by a tenant, usufructuary, or a person having only of permanent attachment; and
a temporary right, unless: c. Placed by the Owner (CIVIL CODE, Art.
a. Such person acted as an agent of the owner 415(6)).
of the land; or
b. In the case of a tenant and he had promised The animals in these places are included as real
to leave the machinery on the tenement at property (DE LEON, Property, supra at 29).
the end of the lease (Davao Sawmill Co. v.
Castillo, G.R. No. 40411, August 7, 1935). In case of alienation, if the building or tenement
in which the animals are placed is also alienated,
The special civil action of replevin is applicable they are to be regarded as immovable. However,
only to personal property. It cannot be filed when when the animals inside the permanent animal
the subject machinery and equipment had houses are alienated onerously or gratuitously, it
become an immovable property (Machinery & is believed that the transaction is an alienation of
Engineering Supplies, Inc. v. CA, G.R. No. L- personal property (2 PARAS, supra at 27).
7057, October 29, 1954).
However, animals are to be regarded as personal
Poles and steel supports or towers of an electric property for purposes of criminal law (DE LEON,
company are not real property for purpose of real Property, supra at 29).
property tax, since they are merely attached to a
square metal frame by means of bolts, which Animals which are temporarily outside may still
could easily be dismantled and moved from place be considered real property, as long as the intent
to place (Board of Assessment Appeals v. Manila to return is present, as in the case of homing
Electric Company, G.R. No. L-15334, January pigeons (2 PARAS, supra at 27).
31, 1964).
7. Fertilizer
Conflicting Views on the Effect of the This is an immovable by destination (DE LEON,
Temporary Separation of Movables from Property, supra at 29-30).
Immovables to which they are attached:
a. They continue to be regarded as immovables The term “actually used” means that it has been
as long as they are utilized or still needed in spread over the land (2 PARAS, supra at 28).
the industry (View supported by De Leon).
b. Fact of separation determines the condition Fertilizers kept in a barn or still in their containers
of the object (View supported by Paras and should be regarded as movables (Id.).
Tolentino).
c. Things temporarily separated from the
8. Mines, quarries and slag dumps
immovable shall continue to be regarded as
They are considered as realty only if the matter
immovables if there is intent to put them back
remains unsevered from the soil. Once severed,
(Partidas).
they become personalty (DE LEON, Property,
d. The material fact of incorporation or
supra at 30).
separation is what determines the condition
of these objects; so that as soon as they are
Mines – mineral lands where excavations are
separated from the tenement, they recover
done to extract minerals (include minerals when
their condition as movables irrespective of
still attached thereto) (Id.).
the intention of the owner (2 NAVARRO
AMANDI, supra at 14-15).
Quarries – lands where stones are chipped off
e. If the machine is still in the building, but is no
or where sand is being extracted; once extracted
longer used in the industry, the machine
they become movables (Id.).
reverts to the condition of a chattel. On the
other hand, if still needed for the industry, but
 Slag dumps – dirt and soil taken from a mine and Pursuant to Section 1 of Act No. 4166, sugar
piled upon the surface of the ground (Id.). quotas, although not physically united to the land,
are considered immovable because they are
Waters – those still attached to or running inseparable therefrom and are real rights over
through the soil or ground (Id.). immovable property (PINEDA, Law on Property,
(2009), p. 18 [hereinafter PINEDA, Law on
Waters which are immovable, such as sea, river, Property]).
or lake must not be confused with “water” itself
which is plainly movable property (Id.). As between the Civil Code, a general law
governing property and property relations, and
9. Docks and Structures the Local Government Code, a special law
Since “waters either running or stagnant” are granting local government units (LGUs) the
considered immovables, it is logical that power to impose real property tax, the latter
constructions united to them in a fixed and prevails for the purpose of determining which
permanent manner are also immovable (Id.). property is subject to real property tax. In Manila
Electric Company vs City Assessor, it was ruled
Vessels are considered personal property under that the transformers, electric posts, transmission
civil law as well as under common law, although lines, insulators, and electric meters of
occasionally referred to as a peculiar kind of MERALCO may qualify as “machinery” under the
personal property (Phil. Refining Co., Inc. v. Local Government Code subject to real property
Jarque, G.R. No. 41506, March 25, 1935). tax.

Although vessels are personal property, they

partake to a certain extent of the nature and
conditions of real property because of their value MOVABLE PROPERTIES
and importance in the world of commerce
(Rubiso v. Rivera, G.R. No. 15260, August 18, (ARTS. 416-418)
1920).

Power barges are categorized as immovable

property by destination, being the nature of TESTS:
machinery and other implements intended by 1. By description
the owner for an industry or work which may be a. Whether the property can be transported or
carried on in a building or on a piece of land and carried from place to place; and
which tend directly to meet the needs of said b. Whether such change of location can be
industry or work (Fels Energy, Inc v. Province of made without injuring the immovable to
Batangas, G.R. No. 168557, February 16,2007). which the object may be attached (CIVIL
CODE, Art. 416).
10. Contracts for Public works, and
servitudes and other real rights 2. By exclusion
Properties referred to in Art. 415(10) are not – Whether the object does not fall within any of
material things but rights, which are necessarily the 10 cases enumerated in Art. 415 (2 PARAS,
intangible (3 MANRESA 11 as cited in 2 PARAS, supra at 34).
supra at 30).
KINDS OF MOVABLE PROPERTIES:
Where the res of a real right is real property, the (AP-F-TOS)
right itself is real property; but where it is personal
1. Those movables susceptible of Appropriation
property, the right itself is personal property.
which are not included in Art. 415 (CIVIL CODE,
Hence, ownership is real property if the thing
Art. 416(1)).
owned is immovable and personal property if
movable (DE LEON, Property, supra at 32).
2. Real property which by any special provision of
law is considered as Personalty (CIVIL CODE,
Hence, a real right over a real property is also a
Art. 416(2)).
real property and a real right over a personal
property is also a personal property.
3. Forces of nature which are brought under control
by science (CIVIL CODE, Art. 416(3)).
A personal right is always regarded as personal
property. The exception is in the case of a
Examples: electricity, gas, rays, heat, light,
contract for public works which is considered real
oxygen, atomic energy, water power, etc.
property (Id.).
 agreed that the identical thing be returned, it
It is true that electricity is no longer, as formerly is non-fungible (Id.).
regarded by electricians as fluid, but its
manifestations and effects like those of gas, may Illustration: Rice is, by nature, consumable
be seen and felt. The true test of what is a proper but if the parties intended it for display, it is
subject of theft is not whether the subject is non-fungible because the identical rice need
corporeal or incorporeal but whether it is capable to be returned. If it is loaned for consumption,
of appropriation by another than the owner (U.S. it is both consumable and fungible (DE
v. Carlos, G.R. No. 6295, September 1, 1911). LEON, Property, supra at 37).

4. In general, all things which can be Transported NOTE: The Civil Code, in many instances,
from place to place without impairment of the real uses the terms consumable and fungible
property to which they are fixed (CIVIL CODE, interchangeably (2 PARAS, supra at 39).
Art. 416(4)).

5. Obligations and actions which have for their

object movables or demandable sums (CIVIL PROPERTY IN RELATION
CODE, Art. 417(1)).
TO WHOM IT BELONGS
An action to recover a personal property like a car
is personal property by itself. But the right to
(ARTS. 419-425)
recover possession of a piece of land is real
property.
PROPERTY IS EITHER OF:
Demandable Sums – amounts which are
liquidated and determined. 1. Public dominion
– owned by the state in its public or sovereign
6. Shares of stocks of agricultural, commercial, and capacity and intended for public use and not for
industrial entities, although they may have real the use of the state as a juridical person (DE
estate (CIVIL CODE, Art. 417(2)). LEON, Property, supra at 38); or

The term “entities” includes all juridical persons 2. Private ownership

such as partnerships, although they do not issue a. Property owned by the State and its political
shares of stocks (DE LEON, Property, supra at subdivisions in their private capacity and is
36). known as patrimonial property (CIVIL CODE,
Arts. 421-424); or
Stock b. Property belonging to private persons, either
Participation or interest in a business is a individually or collectively (CIVIL CODE, Art.
personal property but interest in the real property 425).
of a business entity is a real property (Id.).
Property is presumed to be owned by the State in the
CLASSIFICATION OF MOVABLES: absence of any showing to the contrary (Salas v.
Jarencio, G.R. No. L- 29788, August 30, 1972). All
1. By Nature: lands not appearing to be clearly private dominion is
a. Consumable - cannot be used according to presumed to belong to the State (Republic v. T.A.N.
its nature without it being consumed (CIVIL Properties, Inc., G. R. No. 154953, June 26, 2008).
CODE, Art. 418); and
b. Non-consumable - any other kind of Accordingly, public lands not shown to have been
movable property (CIVIL CODE, Art. 418). classified, reclassified, or released as alienable
agricultural land or alienated to a private person by
NOTE: The classification applies to the State remain part of the inalienable lands of public
movables or to corporeal objects only. domain. Therefore, the onus to overturn, by
incontrovertible evidence, the presumption that the
2. By Intention: land subject of an application for registration is
a. Fungible - replaceable by an equal quality alienable and disposable rests with the applicant
and quantity, either by nature of things or (Republic v. Spouses Alejandre, G.R. No. 217336,
agreement; if it is agreed that the equivalent October 17, 2018).
thing be returned, it is fungible (2 PARAS,
supra at 39); and
b. Non-fungible – irreplaceable because
identical objects must be returned; if it is
This principle is rooted in the Regalian doctrine under Absent any expropriation proceeding and without any
which the state is the source of any asserted right of evidence that the petitioner donated or sold the
ownership of land (CONST., Art. XII, Sec. 2). subject property to the municipal government, the
same is still private property. A municipal ordinance
PROPERTY OF PUBLIC DOMINION does not convert the same to public property
CONCEPT: It does not import the idea of ownership. (Gatchalian v. Flores, G.R. No. 225176, January 19,
It is not owned by the State but simply under its 2018).
jurisdiction and administration for the collective
enjoyment of the people. The ownership of such KINDS:
properties is in the social group, whether national, 1. For Public Use
provincial or municipal (DE LEON, Property, supra at – may be used by anybody and not limited to
39). privileged individuals. It includes roads, canals,
rivers, torrents, ports, and bridges constructed by
PURPOSE: to serve the citizens for the common and the State, banks, shores, roadsteads, and others
public welfare and not the State as a juridical person of similar character
(Id. at 80). (DE LEON, Property, supra at 40-41).

CHARACTERISTICS: (OI-PEAR) Canals – artificial waterways designed for

1. Outside the commerce of man except insofar as navigation or for irrigating or draining land (Id. at
they may be the object of repair or improvement 41).
or other similar things;
2. Inalienable, however, when it is no longer needed Shores – portion of the land bordering the sea
for public use or service, it may be declared as and which is subject to the ebb and flow of the
patrimonial property; waters (Id.).
3. It cannot be acquired by Prescription;
4. It cannot be burdened with Easements; Roadstead – a place less sheltered or enclosed
5. It is not subject to Attachment or Execution; and than a harbor (Id.).
6. It cannot be Registered under the Property
Registration Decree or P.D. No. 1529, and be the Torrent – amount of water which in case of
subject of a Torrens Title (Id. at 43-44). heavy rain gathers in deep places or canals
where it is supposed to flow afterwards (Id.).
If erroneously included in a Torrens Title, the land
involved remains property of public dominion. The NOTE: The term “ports” includes seaports and
character of public property is not affected by airports. The MIAA Airport Lands and Buildings
possession or even a Torrens Title in favor of private constitute a “port” constructed by the State.
persons (Palanca v. Commonwealth, G.R. No. Under Art. 420, the same are properties of public
46373, Jan. 29, 1940). dominion and thus owned by the State (MIAA v.
CA, G.R. No. 155650, July 20, 2006).
As a property of public dominion, the Roppongi lot is
outside the commerce of man. The fact that it has not Examples of “and others of similar
been used for a long time does not automatically character”:
convert it to a patrimonial property. The conversion a. Public streams, natural beds of rivers, river
happens only if the abandonment is definite and upon channels and water of rivers, creeks, and
a formal declaration on the part of the government to “esteros”;
withdraw it from public use (Laurel v. Garcia, G.R. No. b. Accretions to the shores of the sea by action
92013, July 25, 1990). of the water;
c. Submerged lands and reclaimed lands;
WHO MAY DECLARE WITHDRAWAL
NOTE: The mere reclamation of certain
FROM PUBLIC USE foreshore land and submerged areas by a
Only the Executive and possibly the Legislative government agency like the Public Estate
Departments have the authority and the power to Authority does not convert these inalienable
make the declaration that the lands so gained by natural resources of the State into alienable
action of the sea is not necessary for purposes of or disposable lands of the public domain. In
public utility or for the cause of establishment of the hands of the government agency tasked
special industries or for coast guard services and authorized to dispose of alienable and
(Natividad v. Director of Lands as cited in Monteverde disposable lands of public domain, these
v. Director of Land, G.R. No. L- 4628, May 25, 1953). lands are still public, not private lands. There
must be a law or presidential proclamation
officially classifying these reclaimed lands as
 alienable or disposable and open to property of public dominion as one “intended for
disposition or concession (Chavez v. Public public use”. Even if the government collects toll
Estates Authority, G.R. No. 133250, May 6, fees, the road is still “intended for public use” if
2003; Chavez v. National Housing Authority, anyone can use it under the same terms and
G.R. No. 164527, August 15, 2007). conditions as the rest of the public (MIAA v. CA,
d. Lands that disappeared into the sea by G.R. No. 155650, July 20, 2006).
natural erosion due to the ebb and flow of the
tide; and DISTINCTION BETWEEN GOVERNMENT
e. Foreshore lands; when the sea moved LANDS AND PUBLIC LANDS
toward an estate and the tide invaded it, the
invaded property becomes foreshore land The term “government lands” is broader in scope. It
and passes to the realm of the public domain, includes lands devoted to public use or service, as
and accordingly cannot be a subject of a free well as public lands before and after they are made
patent (Republic v. CA, G.R. No. 100709, available for private appropriation and also
November 14, 1997). patrimonial lands. While “public land” is used to
describe much of the national domain under the
Foreshore Land - a strip of land that lies legislative power of Congress as has not been
between the high and low water marks and subjected to private right or devoted to public use (DE
that is alternatively wet and dry according to LEON, Property, supra at 45).
the flow of the tide (DE LEON, Property,
supra at 42). CONVERSION TO PATRIMONIAL
PROPERTY
De Facto Case of Eminent Domain or There must be:
Natural Expropriation 1. Abandonment or non-use
It is the expropriation resulting from the 2. Affirmative act either on the part of the executive
actions of nature as in a case where land or the legislative, to reclassify property of the
becomes part of the sea. The owner loses public dominion into patrimonial property.
his property in favor of the State without any
compensation (Republic v. CA, Morato, G.R. NOTE: If, however, public land will be classified
No. 100709, November 14, 1997). as neither agricultural, forest or timber, mineral or
national park, or when public land is no longer
If a river is capable, in its natural state, of intended for public service or for the development
being used for commerce, it is navigable in of the national wealth, thereby effectively
fact and, therefore, becomes a public river removing the land from the ambit of public
(Taleon v. Secretary of Public Works, G.R. dominion, a declaration of such conversion must
No. L-24281, May 16, 1967). be made in the form of a law duly enacted by
Congress or by a Presidential proclamation in
2. For Public Service cases where the President is duly authorized by
– may be used only by authorized persons. law to that effect (Heirs of Malabanan vs
Republic, G.R. 179987, September 3, 2013).
All public buildings constructed by the State for
its offices and functionaries belong to this class Thus, until the Executive Department exercises
(Baguio Citizen’s Action v. City Council, G.R. No. its prerogative to classify or reclassify lands, or
L-27247, April 20, 1983). until Congress or the President declares that the
State no longer intends the land to be used for
3. For the Development of National Wealth public service or for the development of national
GENERAL RULE: All natural resources belong wealth, the Regalian Doctrine is applicable (Heirs
to the State and are not subject to alienation of Malabanan vs Republic, G.R. 179987,
(CONST., Art. XII, Sec. 2). September 3, 2013).

EXCEPTION: Public agricultural land PROPERTY OF PRIVATE OWNERSHIP

Kinds:
NOTE: Before public agricultural land is made 1. Property owned by the State and its political
available for disposition they are property of subdivisions in their private capacity and is
public domain for the development of national known as patrimonial property (CIVIL CODE,
wealth. Arts. 421-424); and
2. Property belonging to private persons, either
The charging of fees to the public does not individually or collectively (CIVIL CODE, Art.
determine the character of the property, whether 425).
it is of public dominion or not. Art. 420 defines
PATRIMONIAL PROPERTY OF THE d. Cannot be burdened by any voluntary
STATE easement (RABUYA, Property, (2008), p. 88-
89 [hereinafter RABUYA, Property]).
1. Property of the State owned in a private or
proprietary capacity; and
2. Patrimonial Property
2. Property of public dominion, when no longer
– all other properties possessed by LGUs
intended for public use or for public service, shall
including property for public service without
form part of the patrimonial property (CIVIL
prejudice to provisions of special laws; they may
CODE, Art. 422).
be alienated and acquired by others through
prescription. (2 PARAS, supra at 75).
NOTE: Article 422 is not self-executing and
cannot be inferred from non-use alone. There
NOTE: When a property is owned by a political
must be a formal declaration by the executive or
subdivision in its public and governmental
possibly the legislative department that the
capacity, the Congress has absolute control. But
property of the State is no longer needed for
if the property is owned in its private or
public use or for public service before the same
proprietary capacity, it is patrimonial and
can be classified as patrimonial or private
Congress has no absolute control. The
property of the State (Manila Lodge No. 761 v.
municipality cannot be deprived of it without due
CA, G.R. No. L-41001, September 30, 1976).
process and payment of just compensation
(Rabuco v. Villegas, G.R. No. L-24661, February
In Heirs of Mario Malabanan vs Republic, the
28, 1974).
Court held that patrimonial property of the State
may be acquired by prescription, citing Article
Art. 423 and 424 speak of property for public use,
1113 of the Civil Code.
indicating that property for public service is
patrimonial. However, the Supreme Court, in
If the mode of acquisition is prescription, whether
Province of Zamboanga Del Norte v. City of
ordinary or extraordinary, proof that the land has
Zamboanga categorically stated that “the Court is
been already converted to private ownership
not inclined to hold that municipal property held
prior to the requisite acquisitive prescriptive
and devoted to public service is in the same
period is a condition sine qua non in observance
category as ordinary private property. The
of the law (CIVIL CODE, Art. 1113) that property
classification of municipal property devoted for
of the State not patrimonial in character shall not
distinctly governmental purposes as public,
be the object of prescription.
under the Law of Municipal Corporations, should
prevail over the Civil Code in this particular case.”
CHARACTERISTICS: (PD-SC) The Law of Municipal Corporations was
1. Patrimonial properties may be acquired by considered as a special law in the context of Art.
private individuals or corporations through 424 of the Civil Code (Province of Zamboanga
Prescription (CIVIL CODE, Art. 1113); Del Norte v. City of Zamboanga, G.R. No. L-
2. May be Disposed by the State; 24440, March 28, 1968).
3. It exists for the State to Support the attainment of
economic needs; and Properties of public dominion devoted to public
4. It can be the object of ordinary Contract (DE use are outside the commerce of men and cannot
LEON, Property, supra at 46). be disposed of or leased by the LGU to private
persons. LGUs have no authority to control or
PROPERTY OF POLITICAL regulate the use of public properties, unless
SUBDIVISIONS specific authority is vested upon them by
Congress (Macasiano v. Diokno, G.R. No.
1. Property for Public Use
97764, August 10, 1992).
– consists of roads, streets, squares, fountains,
public waters, promenades, and public works for
public service paid for by the LGUs; they cannot PROPERTY OF PRIVATE
be alienated and acquired by prescription (Id. at OWNERSHIP
50). Collective ownership includes co-ownership and
ownership by corporations, partnerships, and
NOTE: The enumeration in Art. 424 is not other juridical entities which are allowed under
exclusive. the law to acquire and possess property of all
kinds (2 PARAS, supra at 76).
Characteristics: A possessory information inscribed in the
a. Outside the commerce of man; Registry of Property showing possession by
b. Cannot be acquired by prescription; private persons and their predecessors since
c. Not subject to attachment and execution; and time immemorial demonstrates prima facie that
 the possessors of the land to which it refers are 2. Naked ownership (nuda proprietas)
the owners thereof (Querubin v. Alconcel, G.R. – the bare title to property; where the right to the
No. L-23050, September 18, 1975). use and fruits has been denied;

NOTE: Foreigners cannot acquire land in the 3. Beneficial ownership/Usufruct

Philippines except in case of hereditary – right to enjoy the use and fruits of a property;
succession (CONST., Art. XII, Sec. 7). where the legal title is vested in another;
In case of unconstitutional purchase, foreigners
cannot make a claim for reimbursement of the NOTE: Naked ownership
value of purchased parcels of Philippine land. + Beneficial ownership
The Court cannot, even on the grounds of equity, = Full ownership
grant reimbursement to the foreigner given that
he acquired no right whatsoever over the subject 4. Sole Ownership
properties by virtue of its unconstitutional – one where the ownership is vested in only one
purchase. It is well-established that equity as a person; and
rule will follow the law and will not permit that to
be done indirectly which, because of public 5. Co-ownership
policy, cannot be done directly (Beumer v. – when the ownership is vested in two or more
Amores, G.R. No. 195670, December 3, 2012). persons (DE LEON, Property, supra at 76).

SUBJECT MATTER
OWNERSHIP Ownership may be exercised over a:
1. Thing
(ARTS. 427-437) - Usually refers to a corporeal property; or

2. Right
– Whether real or personal, usually refers to an
It is the independent and general right of a person to incorporeal property (CIVIL CODE, Art. 427).
control a thing particularly in his possession,
enjoyment, disposition, and recovery, subject to no
RIGHT AS PROPERTY:
restrictions, except those imposed by the State or
private persons, without prejudice to the provisions of 1. A real right or jus in re
the law (2 PARAS, supra at 83). – is the right or interest belonging to a person
over a specific thing without a definite passive
Ownership and possession are two distinct legal subject against whom such right may be
concepts (Garcia v. CA, G.R. No. 133140, August 10, personally enforced (DE LEON, Property, supra
1999). at 3).

NOTE: Homeowners’ Association can own properties Classification of Real Rights Based on
termed as “Common Areas” under the "Magna Carta Dominion:
for Homeowners and Homeowners’ Associations". a. Domino pleno – the powers to enjoy and to
These properties include, but are not limited to, dispose are united (e.g., dominion; civil
roads, parks, playgrounds, and open spaces as possession; and hereditary right);
provided in Presidential Decree No. 1216. (R.A. No. b. Domino menos pleno – the powers to enjoy
9904, Sec. 3(f)). and to dispose are separated (e.g., surface
right; and usufruct); and
“OPEN SPACES,” DEFINED c. Domino limitado – the powers to enjoy and to
dispose, though united, are limited by a charge
Area reserved exclusively for parks, playgrounds, (e.g. easement, tax), by a guaranty (e.g.
recreational uses, schools, roads, places of worship, mortgage, pledge), or by a privilege (e.g. pre-
hospitals, health centers, barangay centers and other emption, redemption, lease record) (Id. at 4).
similar facilities and amenities (P.D. No. 1216, Sec.
1).
2. A personal right or jus in personam or jus
ad rem or right of obligation
KINDS OF OWNERSHIP: – is the right or power of a person (creditor or
1. Full ownership (dominium or jus in re obligee) to demand from another (debtor or
propria) obligor) as a definite passive subject, the
– includes all the rights of an owner; fulfillment of the latter’s obligation (Id. at 5).
REAL RIGHTS V. PERSONAL RIGHTS PERSONAL
REAL RIGHTS
PERSONAL RIGHTS
REAL RIGHTS
RIGHTS
to real actions (action in against a particular
As to the Number of Persons Who Take Part rem) against third person (the
in the Legal Relation persons. debtor), giving rise
to personal actions
There is a definite active There is a definite (action in
subject who has a right active subject personam) against
against all persons (creditor) and a such debtor.
generally as an indefinite definite passive (Id. at 5-6).
passive subject. subject (debtor).

As to the Subject Matter MODES OF ACQUIRING OWNERSHIP

1. Original Modes
The object is generally a It is always an a. Occupation
corporeal thing (objects incorporeal thing. b. Work which includes Intellectual creation
which can be seen or 2. Derivative Modes
touched). a. Law
b. Tradition
As to the Manner in Which the Will of the c. Donation
Active Subject Acts d. Prescription
e. Succession (DE LEON, Property supra at
He generally acts He acts indirectly
580).
directly. through the
promise of the
NOTE: Original modes of acquiring ownership
obligor.
pertains to those independent of any pre-existing
As to the Causes of Their Creation right of another person while derivative modes are
those based on pre-existing right held by another
Created by concurrence Created merely by person. Moreover, derivative modes are modes both
of a title and a mode of “title” for the acquisition and for transmission of ownership
acquisition and other real rights (Id. at 591).
Note: Mode is the Note: Title is the
specific cause which juridical right which SEVEN ATTRIBUTES OF OWNERSHIP
produces dominion and gives a means to (PUF-A2-DV):
other real rights as a the acquisition of
1. Jus Possidendi
result of the co-existence [such] rights
– The right to possess; it is different from
of special status of (Spouses
ownership (judgment of ownership does not
things, capacity, x x x Stilianopoulos v.
include the right to possess except when claim of
intention of person and Register of Deeds
possession is based upon the claim of
[the] fulfillment of the for Legazpi City,
ownership) (Id. at 80);
requisites of law G.R. No. 224678,
(Spouses Stilianopoulos July 3, 2018).
v. Register of Deeds for
2. Jus Utendi
– The right to use and enjoy; it may also include
Legazpi City, G.R. No.
the right to exclude any person from enjoyment
224678, July 3, 2018).
and disposal of the thing (relate to CIVIL CODE,
As to Mode of Their Extinction Arts. 429 and 431);

Generally, it is Personal right 3. Jus Fruendi

extinguished by the loss survives the – The right to enjoy the fruits (natural, industrial,
or destruction of the thing subject matter. and civil); possessor in good faith (CIVIL CODE,
over which it is Art. 544), usufructuary (CIVIL CODE, Art. 566),
exercised. lessee of agricultural land (CIVIL CODE, Art.
1676), and antichretic creditor (CIVIL CODE, Art.
As to the Nature of the Actions Arising from 432) are entitled to the fruits even if they are not
the Juridical Relation the owner;
It is directed against the It is binding or
whole world, giving rise enforceable only
4. Jus Accessionis acquire real property needed as right-of-way site
– The right to accessories; the general rule is that or location for any national government
all accessions and accessories are included in infrastructure project through donation,
the obligation to deliver a determinate thing negotiated sale, expropriation, or any other mode
although they may not have been mentioned of acquisition as provided by law (R.A. No.
(CIVIL CODE, Art. 1166); 10752, Sec. 4).

5. Jus Abutendi 2. Limitations imposed by the Owner himself;

– The right to abuse (or even destroy) or to
consume a thing by its use, subject to the 3. Specific limitations imposed by law
provisions of law (e.g. disposition of wealth to the – e.g. legal easement and non-impairment of
prejudice of others); legitime in succession;

6. Jus Disponendi 4. Inherent limitations arising from conflict with

– includes the following rights (DATE-Not): other rights such as those which take place in
a. To Destroy; accession continua; and
b. To Alienate;
c. To Transform; 5. Limitations imposed by the Party transmitting the
d. To Encumber; and property either by contract or by will (2
e. Not to dispose. TOLENTINO, supra at 59).

7. Jus Vindicandi
– right of action against the holder and possessor
of the thing or right in order to recover it (DE
LEON, Property, supra at 84).

CHARACTERISTICS: (EG-PIE)
1. Elastic
– power/s may be reduced and thereafter
automatically recovered upon the cessation of
the limiting rights;

2. General
– the right to make use of all the possibilities or
utility of the thing owned, except those attached
to other real rights existing thereon;

3. Perpetual
– ownership lasts as long as the thing exists. It
cannot be extinguished by non-use but only by
adverse possession;
4. Independent
– it exists without necessity of any other right;

5. Exclusive
– there can only be one ownership over a thing
at a time; there may be two or more owners but
only one ownership) (2 TOLENTINO, Civil Code
of the Philippines, Volume II, (1992), p. 59
[hereinafter 2 TOLENTINO]).

LIMITATIONS: (GOSIP)
1. General limitations imposed by the State for its
benefit
– power of taxation, police power, and power of
eminent domain;

NOTE: Under R.A. No. 10752, otherwise known

as “The Right-of-Way Act”, the government may
 LEGAL REMEDIES TO RECOVER POSSESSION OF
PROPERTY

REMEDIES NATURE ISSUE JURISDICTION PRESCRIPTION

Personal Property

Replevin A remedy for the recovery of Physical RTC or MTC Four (4) years (if
possession of personal Possession possession in good
property which is governed If the value of the faith) from the time
by Rule 60 of the Rules of personal property the possession
Court. does not exceed thereof was lost
1. As a form of principal P300,000.00 (or
remedy – to regain P400,000.00 in Metro Eight (8) years
possession Manila) – MTC (without other
2. As a form of provisional conditions) (CIVIL
remedy – to retain what If the value of the CODE, Art. 1132)
has been wrongfully personal property from the time the
detained pendente lite. exceeds P300,000.00 possession thereof
(or P400,000.00 in was lost
Replevin will not lie for Metro Manila) – RTC
property in custodia legis
(Chua v. CA, G.R. No.
79021, May 17, 1993).
Real Property

1. Accion A summary action to

Interdictal recover physical or material
(Ejectment possession of property
Suit)
a. Forcible An action for recovery of Possession MTC, irrespective of One (1) year from the
Entry material possession de facto the amount of date of actual entry on
(detentacion) (possession de facto) of real damages or unpaid the land when entry
property when a person rentals sought to be was made through
originally in possession was recovered force, intimidation,
deprived thereof by Force, strategy, or threat
Intimidation, Strategy,
Threat, or Stealth (FISTS). One (1) year from
discovery when entry
Reason: Irrespective of the was made through
actual condition of the title to stealth
the property, the party in
peaceable quiet possession
shall not be turned out by
strong hand, violence, or
terror (Javier v. Veridiano,
G.R. No. L-48050, October
10, 1994).

Actual possessors who can

prove prior possession can
recover such possession
even against the owner
himself. Whatever may be
REMEDIES NATURE ISSUE JURISDICTION PRESCRIPTION
the character of such
possession, if he has in his
favor priority in time, he has
the security that entitles him
to remain on the property
until he is lawfully ejected by
a person having a better
right by accion publiciana or
accion reinvindicatoria
(German Management &
Services v. CA, G.R. No. L-
76216, September 14,
1989).
b. Unlawful An action for recovery of Possession MTC One (1) year from the
detainer possession of any real de facto date of last demand to
(desahuico) property by a landlord, vacate
vendor, vendee, or other
person, against whom the If there is a fixed
possession of the same was period for termination
unlawfully withheld, after the of the lease, lease
expiration or termination of ends automatically
the right to hold possession. without need of
demand, one year
A requisite for a valid cause period is reckoned
of action in an unlawful from the expiration of
detainer case is that the lease (2 PARAS,
possession must be supra at 109).
originally lawful, and such
possession must have If the reason for
turned unlawful only upon ejectment is non-
the expiration of the right to payment of rent or
possess (Eversley Childs non-fulfillment of the
Sanitarium v. Spouses conditions of the
Perlabarbarona, G.R. No. lease, one year period
195814, April 4, 2018). is reckoned from the
Without proof that the date of demand to
possession was legal at the vacate (Id.).
outset, the action for
unlawful detainer shall be
dismissed (Javelosa v.
Tapus, G.R. No. 204361,
July 4, 2018).

A person or squatter, who

occupies the land of another
at the latter’s tolerance or
permission, without any
contract between them, is
necessarily bound by an
implied promise that he will
vacate upon demand; failing
which, a summary action for
ejectment or unlawful
detainer is the proper
remedy against him (Yu v.
de Lara, G.R. No. L-16084,
November 30, 1962).
 REMEDIES NATURE ISSUE JURISDICTION PRESCRIPTION

NOTE: An action for

unlawful detainer is
summary in nature and the
only issue that needs to be
resolved is who is entitled to
physical possession of the
premises, possession
referring to possession de
facto, and not possession de
jure. Nonetheless, where the
parties to an ejectment case
raise the issue of ownership
and such is inseparably
linked to that of possession,
the courts may pass upon
that issue to determine who
between the parties has the
better right to possess the
property. The adjudication of
the ownership issue,
however, is not final and
binding. The same is only for
the purpose of resolving the
issue of possession
(Baleares, Baleares v.
Espanto, G.R. No. 229645,
June 6, 2018).

It does not even matter if a

party's title to the property is
questionable. Where the
parties to an ejectment case
raise the issue of ownership,
the courts may pass upon
that issue to determine who
between the parties has the
better right to possess the
property (Spouses Santiago
v. Northbay Knitting Inc.
(NKI), G.R. No. 217296,
October 11, 2017).
2. Accion An ordinary civil proceeding Possession RTC or MTC Ten (10) years from
Publiciana to recover possession of real de Jure the time the cause of
property when the If the assessed value action arose
dispossession was of the real property
committed: does not exceed
1. Where the entry was not P20,000.00 (or
obtained through FISTS P50,000.00 in Metro
or failure to state that Manila) – MTC
deprivation was caused
by FISTS. This can be If the assessed value
brought as soon as the of the real property
dispossession takes exceeds P20,000.00
place, without waiting for (or P50,000.00 in
the lapse of the one (1) Metro Manila) – RTC
year period (Gutierrez v.
 REMEDIES NATURE ISSUE JURISDICTION PRESCRIPTION
Rosario, G.R. No. 4145, NOTE: Jurisdiction is
January 28, 1910; determined not only
Gumiran v. Gumiran, by the type of action
G.R. No. 6364, January filed but also by the
11, 1912); or assessed value of the
2. Where the one-year property. In accion
period for bringing publiciana and
forcible entry or unlawful reinvindiatoria, the
detainer has already assessed value of the
expired. real property is a
jurisdictional element
to determine the court
that could take
cognizance of the
action. In the absence
of any allegation in the
Complaint of the
assessed value of the
subject properties, it
cannot be determined
which court has
exclusive original
jurisdiction over
respondents’
complaint (Regalado
v. De La Peña, G.R.
No. 2012448;
December 13, 2017).
3. Accion An action to recover real Ownership RTC or MTC Four (4) years if
Reinvindica- property based on If the assessed value based on fraud from
toria ownership. of the real property the issuance of
does not exceed certificate of title over
P20,000.00 (or the property
P50,000.00 in Metro
Manila) – MTC Ten (10) years if
based on implied or
If the assessed value constructive trust
of the real property
exceeds P20,000.00 Imprescriptible
(or P50,000.00 in when plaintiff is in
Metro Manila) – RTC possession of the
property.
NOTE: Under RA
11576 (Effective on
August 20, 2021), the
jurisdiction of METC,
MTC, MCTC, MTCC
will be further
expanded. The RTC
shall exercise
exclusive jurisdiction
in all civil actions
involving the title to, or
possession of, real
property valued at
P400,000, from the
 REMEDIES NATURE ISSUE JURISDICTION PRESCRIPTION
previous P20,000 to
P50,000.

ANCILLARY REMEDIES

REMEDIES NATURE JURISDICTION PRESCRIPTION

1. Writ of Writ of execution commanding Court where the Imprescriptible

Possession the sheriff to enter into the land case is pending
and give the possession thereof
to the entitled person

2. Writ of Injunction requiring the Court where the 10 days from filing in case of
Preliminary defendant to do or refrain from case of unlawful forcible entry
Injunction doing a particular thing detainer or forcible
entry is pending. 10 days from the time the appeal
is perfected in case of unlawful
detainer
(DE LEON, Property, supra at 84-98)
 FORCIBLE ENTRY V. thing in order to recover it.” Moreover “every
UNLAWFUL DETAINER possessor has a right to be respected in his
possession, and should he be disturbed therein,
UNLAWFUL he shall be protected in or restored to said
FORCIBLE ENTRY
DETAINER possession by the means established by the laws
and the Rules of Court.” (CIVIL CODE, Art. 539,
As to When Possession Became Unlawful Par. 1; 2 PARAS, supra at 89).
Possession of the Possession is
defendant is unlawful inceptively lawful, but 2. Right to Enjoy; and
from the beginning as becomes illegal from The right to enjoy includes:
he acquires possession the time the defendant a. The right to possess;
by Force, Intimidation, unlawfully withholds b. The right to use; and
Strategy, Threat or possession, after the c. The right to the fruits (Id. at 89).
Stealth (FISTS). expiration or
termination of his right 3. Right to Dispose
thereto. The right to dispose includes:
a. The right to consume, destroy, or abuse; and
As to the Necessity of Demand b. The right to encumber or alienate (Id.)

No previous demand for Demand is PRINCIPLE OF SELF-HELP UNDER

the defendant to vacate jurisdictional.
ARTICLE 429
is necessary.
EXCEPTION: if there is The owner or lawful possessor of a thing has the right
a fixed period for the to exclude any person from the enjoyment and
termination of the lease, disposal thereof. For this purpose, he may use such
demand is unnecessary force as may be reasonably necessary to repel or
(2 PARAS, supra at prevent an actual or threatened unlawful physical
109). invasion or usurpation of his property (CIVIL CODE,
Art. 429).
As to Necessity of Proof of Prior Physical
Possession Requisites: (ROAD)
1. Reasonable force;
Plaintiff must prove that Plaintiff need not have 2. Owner or lawful possessor is the person who will
he was in prior physical been in prior physical exercise;
possession of the possession. 3. Actual or threatened physical invasion or
premises until he was usurpation; and
deprived thereof by the 4. No Delay in one’s exercise (i.e., at the time of an
defendant. actual or threatened dispossession, or
immediately after the dispossession). Once delay
As to When the One (1) Year Period is has taken place, even if excusable, the owner or
Counted lawful possessor must resort to judicial process
for the recovery of the property (CIVIL CODE,
From the date of actual From the date of last
Arts. 433 and 536; DE LEON, Property, supra at
entry on the land when demand or last letter of 105).
entry was made through demand
force, intimidation, GENERAL RULE: A person cannot interfere with the
strategy, or threat In case of a lease with a right of ownership of another (DE LEON, Property,
fixed period, the one- supra at 112).
From discovery when year period is reckoned
entry was made through from the expiration of EXCEPTION: Doctrine of Incomplete Privilege or
stealth the lease. State of Necessity (CIVIL CODE, Art. 432).
(RULES OF COURT, Rule 70).
NOTE: Art. 11 of the Revised Penal Code on self-
RIGHTS OF AN OWNER UNDER ARTICLE defense includes not only defense to a man’s person,
428: (RED) but also that of his rights to property.
1. Right to Recover or vindicate; Acts in a state of necessity are different from defense
The right to recover is given expressly in Art. 428 against unlawful aggression or defense against
which provides that “the owner has also a right of dangerous objects, although the principle which
action against the holder and possessor of the
justifies them is the same. If the danger comes from RIGHT TO ENCLOSE OR FENCE
another’s property, and the force is employed against Every owner may enclose or fence his land or
it, the case is one of defense against danger. But if tenements by means of walls, ditches, live or dead
another’s property is used to avert danger not arising hedges, or by any other means without detriment to
from it, the act is essentially one in a state of servitudes constituted thereon (CIVIL CODE, Art.
necessity; in other words, it is for the purpose or 430).
protecting the actor himself or another person at the
expense of the owner of the property who has no part Every owner has an absolute right over his property
in the state of necessity (2 TOLENTINO, supra at 68). and his act of fencing and enclosing the same was an
act which he may lawfully perform in the exercise of
The actual invasion of property may consist of: said right. Thus, damages arising from the act of the
1. Mere disturbance of possession; or owner in building a fence within the latter’s lot is
2. Real dispossession (Id.). considered damnum absque injuria, since it is the
owner’s legal right to do so (Custodio v. CA, G.R. No.
The rules are: 116100, February 9, 1996).
a. If it is mere disturbance of possession, force may
be used against it at any time as long as it
continues, even beyond the prescriptive period
OBLIGATION TO RESPECT THE RIGHTS
for an action of forcible entry (e.g. if a ditch is OF OTHERS
opened by P in the land of J, the latter may close The owner of a thing cannot make use thereof in such
it or cover it by force at any time) (Id. at 54). manner as to injure the rights of a third person (sic
utere tuo ut alienum non laedas) (CIVIL CODE, Art.
b. If it consists of a real dispossession, force to 431).
regain possession can only be used
immediately after the dispossession (e.g. if J, Adjoining landowners have mutual and reciprocal
without P’s permission, picks up a book duties which require that each must use his own land
belonging to the latter and runs off with it, P can in a reasonable manner, so as not to infringe upon
pursue J and recover the book by force) (Id.). the rights and interests of others. The structures must
be so constructed and maintained using all
3. There should be no delay in the use of force to reasonable care so that they cannot be dangerous to
recover it; a delay, even if excusable, such as adjoining landowners and can withstand the usual
when due to the ignorance of the dispossession, and expected forces of nature. If the structures cause
will bar the right to the use of force. Once the injury or damage to an adjoining landowner or a third
usurper’s possession has become firm by the person, the latter can claim indemnification for the
lapse of time, the lawful possessor must resort to injury or damage suffered (Andamo v. IAC, G.R. No.
the competent authority to recover his property 74761, November 6, 1990).
(Id.).
An owner cannot be debarred from the legitimate use
Where a tenant is given a certain period to of his property simply because it may cause real
vacate, the act of the owner in dragging the damage to his neighbor (Higgins Oil & Fuel Co. v.
tenant away is not justified under Art. 429. During Guaranty Oil Co., 145 la 233, 82 So. 206, as cited in
said period, the tenant is considered a lawful 2 TOLENTINO, supra at 67).
possessor (Caisip v. People, G.R. No. L-28716,
November 18, 1970). DOCTRINE OF INCOMPLETE PRIVILEGE
OR STATE OF NECESSITY
However, in another criminal case, wherein a
The owner of a thing has no right to prohibit the
private corporation sought to take over a land by
interference of another with the same, if the
fencing the same without authority or court order,
interference is necessary to avert an imminent
the Court sustained the use of force under Art.
danger and the threatened damage, compared to the
429. In said case, the owner of the land fought off
damage arising to the owner from the interference, is
and prevented the workers from constructing the
much greater (CIVIL CODE, Art. 432).
fence. The Supreme Court acquitted the owner
holding that the use of such necessary force to
It authorizes the destruction of a property which is
protect proprietary or possessory rights
lesser in value to avert the danger poised to another
constitutes a justifying circumstance under the
property, the value of which is much greater (2
penal laws (People v. Pletcha, G.R. No. 19029,
PARAS, supra at 150-151).
June 27, 1977).
BASIS: There is no unlawful aggression when a ACTIONS TO RECOVER
person or group of person acts pursuant to the right In an action to recover, the property must be
given in a state of necessity (DE LEON, Property, identified, and the plaintiff must rely on the strength
supra at 105). of his title and not on the weakness of the defendant's
claim (CIVIL CODE, Art. 434). The person who claims
Art. 432 is based on what is known as the state of that he has better right to the property must
necessity, a justifying circumstance recognized in the satisfactorily prove both ownership and identity of the
Revised Penal Code (Art. 11) but which does not also same (Pang-oden v. Leonen, G.R. No. 138939,
exempt the offender from civil liability. It likewise December 6, 2006).
embodies the principle of “the least evil” rule, i.e., that
as between two evils, one is justified in choosing the REQUISITES: (IT)
lesser evil (Id.). 1. Proof of Identity of the Property
He must fix the identity of the land claimed by
NOTE: It is also for the purpose of protecting the describing the location, area, and boundaries
actor himself or another person at the expense of the thereof.
owner of the property who has no part in the state of
necessity (Id.). Failure to prove the boundaries of the land – the
action to recover will necessarily fail (Santiago v.
The owner of the sacrificial property is obliged to Santos, G.R. No. L-20241, November 22, 1974).
tolerate the act of destruction but is entitled to
reimbursement by all those who benefited through 2. Proof of Title
the act or event (CIVIL CODE, Art. 432). In an action to recover, the plaintiff must rely on
the strength of his title and not on the weakness
Basis of Reimbursement: the benefit derived from of the defendant’s claim (CIVIL CODE, Art. 434).
the act.
In order to successfully maintain actions for
Requisites: (ID) recovery of ownership of a real property, the
1. Interference necessary to avert an imminent and complainants must prove the identity of the land
threatened danger to the actor or a third person; and their title thereto as provided under Article
and 434 of the Civil Code. They have the burden of
2. Damage to another is much greater than damage proof to establish the averments in the complaint
to property (DE LEON, Property, supra at 109). by preponderance of evidence, relying on the
strength of their own evidence and not upon the
Illustrations: The attacking animal, belonging to weakness of their opponent's evidence (Arjonillo
another, may be killed by the victim; a house in the v. Pagulayan, G.R. No. 196074, October 4,
path of a fire may be demolished; and a dike may be 2017).
destroyed at one point to prevent a flood over other
places (2 TOLENTINO, supra at 68). REASONS:
a. There is a possibility that neither the plaintiff
DOCTRINE OF SELF-HELP VS. STATE nor the defendant is the true owner of the
OF NECESSITY property;
The doctrine of self-help is invoked by the owner or b. The one in possession is presumed to be the
lawful possessor in protection of his right to prevent owner, and he cannot be obliged to show or
other persons from interfering with his property. The prove a better title;
state of necessity, on the other hand, is availed of by c. The possessor in the concept of an owner is
another person against someone else’s property for presumed to be in good faith; and
the purpose of averting an imminent danger to d. He who relies on the existence of a fact,
himself or to another person or to their property should prove that fact (2 PARAS, supra at
(RABUYA, Property, supra at 134). 152-153).

DISPUTABLE PRESUMPTION OF RULE ON THE DEPRIVATION OF

OWNERSHIP PROPERTY
Actual possession under claim of ownership raises a If the deprivation is in the exercise of the power of
disputable presumption of ownership. The true owner eminent domain, no person shall be deprived of his
must resort to judicial process for the recovery of the property except by competent authority and for public
property (CIVIL CODE, Art. 433). use and always upon payment of just compensation
(CIVIL CODE, Art. 435).
The ownership of the property is transferred upon enjoyment, and it is extinguished beyond such limit
payment. If conditional, ownership reverts to the as there would be no more interest protected by law
original owner when the property is no longer needed (National Power Corp. v. Ibrahim, G.R. No. 168732,
for the purpose for which it was expropriated (DE June 29, 2007).
LEON, Property, supra at 121).
Restrictions: (S2ORP)
When any property is condemned or seized by 1. Servitudes or easements;
competent authority in the interest of health, safety, 2. Special laws;
or security, the owner thereof shall not be entitled to 3. Ordinances;
compensation, unless he can show that such 4. Reasonable Requirements of aerial navigation;
condemnation or seizure is unjustified (CIVIL CODE, and
Art. 436). 5. Principles on human relations or rights of third
persons (2 PARAS, supra at 196).
SURFACE RIGHTS
The owner of a parcel of land is the owner of its
surface and everything under it, and he can construct HIDDEN TREASURE
thereon any works or make any plantations and (ARTS. 438-439)
excavations which he may deem proper, without
detriment to servitudes and subject to special laws
and ordinances (CIVIL CODE, Art. 437).
REQUISITES FOR THE PROPERTY TO
NOTE: Horizontally: extends up to the boundaries
BE CONSIDERED HIDDEN TREASURE
(RABUYA, Property, supra at 142).
(HU-MoJO-L):
Vertically: extends below the surface and above it to 1. Hidden and Unknown deposit (such that finding it
the extent required by the economic interest of or would indeed be a discovery);
utility to the owner, in relation to the exploitation that 2. It consists of Money, Jewelry, or Other precious
may be made of the property (Id.). objects; and

NOTE: Following the Doctrine of Ad Coleum, NOTE: The phrase “other precious objects” does
ownership of land extends to the surface as well as not include property embedded to the soil like
to the subsoil under it. Hence, building of minerals (Id. at 206).
underground tunnels by a government agency
entitles the owner of the land to just compensation as 3. Their Lawful ownership does not appear (CIVIL
the sub-terrain portion of the property similarly CODE, Arts. 438 and 439).
belongs to him (National Power Corp v. Ibrahim, G.R.
No. 168732, June 29, 2007). GENERAL RULE: The hidden treasure belongs to
the owner of the land, building, or other property on
Airspace: The owner cannot complain of the which it is found (CIVIL CODE, Arts. 438).
reasonable requirements of aerial navigation (CIVIL
CODE, Art. 437). EXCEPTIONS: The finder is entitled to one-half (½),
provided (AS-C-CoTAM):
Right to sub-surface: The rights over the land are 1. Discovery was made on the property of Another,
indivisible and the land itself cannot be half- or of the State or any of its political subdivisions;
agricultural and half-mineral. The classification must 2. The finding was made by Chance;
be categorical – the land must be either completely 3. The finder is not a Co–owner of the property
mineral or completely agricultural. In the instant where it is found;
case, the land which was originally classified as forest 4. The finder is not a Trespasser;
land ceased to be so and became mineral — and 5. The finder is not an Agent of the landowner; and
completely mineral — once the mining claims were 6. The finder is not Married under the absolute
perfected. As long as mining operations were being community or the conjugal partnership system
undertaken thereon, or underneath, it did not cease (otherwise his share belongs to the community)
to be so and become agricultural, even if only partly (2 PARAS, supra at 201-203).
so, because it was enclosed with a fence and was
cultivated by those who were unlawfully occupying It is necessary that no known owner appears.
the surface (Republic v. CA, Dela Rosa, G.R. No. L- “Hence, the money found in a library, when the books
43938, April 15, 1988). were delivered to the legatees in a testamentary
proceeding, could not be considered a treasure
The landowner’s right extends to such height or depth because it was shown that the library had been used
where it is possible for them to obtain such benefit or by the testator and that money consisted, in greater
part, of this kind in circulation during the life of the
testator” (1 CAPISTRANO 394).
The right by virtue of which the owner of a thing
“And by chance” – “by good luck,” implying that one becomes the owner of everything that is produced
who intentionally looks for the treasure is embraced thereby or which is incorporated or attached thereto,
in the provision (DE LEON, Property, supra at 134). either naturally or artificially (CIVIL CODE, Art. 440).

REASON: It is extremely difficult to find hidden In general, the right of accession is automatic,
treasure without looking for it deliberately, for in many requiring no prior act on the part of the owner of the
instances, the treasure is buried (2 PARAS, supra at principal (Arriola v. Arriola, G.R. No. 177703, January
202). 28, 2008).

Stranger – anyone who has absolutely no right over Art. 440 does not apply to property of public domain
the immovable or the thing in which the treasure is (Sps. Gulla v. Heirs of Labrador, G.R. No. 149418,
found. The term also includes a lessee, a July 27, 2006).
usufructuary, or a paid laborer working for the owner
of the land, provided he has not been engaged Accession is not a mode of acquiring ownership. It is
precisely to look for hidden treasure (2 TOLENTINO, merely an incidence or consequence of ownership
Civil Code, supra at 94). (DE LEON, Property, supra at 137).

In case of a usufructuary, he shall be considered a BASIS: It presupposes a previously existing

stranger with respect to hidden treasure which may ownership by the owner over the principal which is
be found on the land or tenement (CIVIL CODE, Art. not necessary in modes of acquiring ownership (Id.).
566). This means that the usufructuary does not get
a share. However, if he is the finder, he gets one-half ACCESSION V. ACCESSORIES
(½) as such finder.
ACCESSION ACCESSORIES
If the finder is a paid laborer of the landowner, a
As to Definition
distinction must be made. If he discovered the
property by chance, he gets half. If he had been The fruits of, or Things joined to or
employed precisely to look for the treasure, he will get additions to, or included with the
nothing insofar as the treasure is concerned; but he improvements upon, a principal thing for the
will get his wages or salary (3 MANRESA at 165-166 thing (principal). latter’s embellishment,
as cited in 2 PARAS, supra at 198). better use, or
completion.
Where things discovered do not qualify as a hidden
treasure, the rules on occupation, as a mode of As to Relation to the Principal
acquiring ownership, would be applicable
(DE LEON, Property, supra at 135). Not necessary to the It must go together with
principal thing. the principal.
If the finder or owner of the property where the (Id. at 134).
treasure is found is a married person, the treasure
forms part of the conjugal property (FAMILY CODE,
Art. 117(4)).
CLASSIFICATIONS:
1. Accession Discreta
Effect of Concealment – the right pertaining to the owner of a thing over
If the finder of the treasure conceals it from the owner everything produced thereby (Id. at 138).
of the land on which it is found, he does not thereby
lose his share; but he becomes liable civilly and REASON: Justice, pure and simple for one who
criminally for taking something not belonging to him, owns the thing should justly enjoy the fruits (Id.).
which is the share of the landowner. He will also be
responsible for all the consequences of possession in Requisites: (ORI)
bad faith with respect to the loss or deterioration of a. Increase or addition to the Original thing;
the thing (2 TOLENTINO, supra at 95). b. At Repeated intervals; and
c. By Inherent forces (Id.).

Fruits
ACCESSION Kinds of Fruits:
a. Natural Fruits
(ARTS. 440-475) i. Spontaneous products of the soil; and
 ii. The young and other products of animals
(CIVIL CODE, Art. 442, Par. 1). NOTE: Fruits naturally falling upon adjacent land
belong to the owner of the said land and not to
Rule of Partus Sequitur Ventrem (the the owner of the tree.
offspring follows the dam/mother):
To the owner of the female animals also Obligation of Recipient of Fruits to Reimburse
belong the young of such animals, although Necessary Expenses of Third Persons
this right is lost when the owner mixes his GENERAL RULE: Necessary (not luxurious)
cattle with those of another (DE LEON, expenses of production, gathering and
Property, supra at 140). preservation (whether more or less than the
value of the fruits) must be borne by the receiver
REASON: First, it is not known who the male of the fruits (CIVIL CODE, Art. 443).
is. Second, during the pregnancy of the
female, its owner is greatly burdened by the Applies where:
consequential expenses and virtual a. The owner of the property recovers the same
uselessness of the animal, and it is only fair from a possessor and the latter has not yet
that when the young is born, the owner received the fruits although they may have
should gain, or at least recover his loss (Id. already been gathered or harvested; or
at 140-141). b. The possessor had already received the
fruits but is ordered to return the same to the
b. Industrial Fruits owner (DE LEON, Property, supra at 143).
– those produced by lands of any kind
through cultivation or labor (CIVIL CODE, NOTE: The above provision is not applicable
Art. 442, Par. 2). when the planter is in good faith because in
this case, he is entitled to the fruits already
Perennial crops growing per season without received; hence, there is no necessity of
the need of replanting are natural fruits (DE reimbursing him (CIVIL CODE, Art. 544).
LEON, Property, supra at 141).
NOTE: The good or bad faith of the
Annual crops planted each year are industrial possessor is material where the fruits are still
fruits (Id.). pending (ungathered) at the time he gave up
his possession. In any case, Art. 443 should
c. Civil Fruits be read in connection with Articles 544 to 551
i. Rents of buildings; (DE LEON, Property, supra at 144).
ii. Price of leases of lands; and
iii. The amount of perpetual or life annuities A possessor in bad faith has no right
or other similar income (CIVIL CODE, whatsoever to the fruits, gathered or pending,
Art. 442, Par. 3). except only necessary expenses for
gathered fruits (Id. at 389).
Bonus to planters for the risk undergone in
mortgaging property is not a civil fruit of the EXCEPTION: The rule does not apply to
mortgaged property having no immediate pending fruits under Art. 449.
relation to the property but only a remote and
accidental relation, not derived from the land When Natural Fruits and Industrial Fruits
nor based on the value thereof (Bachrach Deemed to Exist (CIVIL CODE, Art. 444)
Motor Co. v. Talisay-Silay Milling Co., G.R. Natural and industrial fruits, while still
No. 35223, September 17, 1931). ungathered, are real property. The following rules
shall apply in determining the time when they are
Right of Owner to the Fruits deemed to have existed:
GENERAL RULE: To the owner of the principal a. Plants producing one crop only and then
belongs the natural, industrial, and civil fruits perish – They are deemed to have existed
(CIVIL CODE, Art. 441). from the time their seedlings appear from the
ground;
EXCEPTIONS: Instances when the owner of the b. Plants and trees living for years and
land does not own the fruits: (PULA) producing periodic fruits – They are
a. Possessor in good faith; deemed to have existed from the time they
b. Usufructuary; actually appeared on the plants or trees;
c. Lessee of rural lands; or c. Animals – They are deemed to have existed
d. In possession of an Antichretic creditor (2 at the beginning of the maximum period of
PARAS, supra at 208). gestation; and
 d. Fowls – the fact of appearance retroact to
the beginning of incubation (Id. at 145). RIGHT OF ACCESSION
Rule for Civil Fruits as Distinguished from WITH RESPECT TO REAL
Natural and Industrial Fruits
Civil fruits are easily prorated for under Art. 544
PROPERTY
of the Civil Code, they are deemed to accrue (ARTS. 445-465)
daily. They are considered in the category of
personal property and belong to the possessor in
good faith in that proportion while natural and
industrial fruits ordinarily cannot be prorated and GENERAL RULE: Whatever is built, planted, or sown
are considered real property while still growing (2 on the land of another and the improvements or
PARAS, supra at 216). repairs made thereon belong to the owner of the land
subject to the provisions of Arts. 447-456 (CIVIL
2. Accession Continua CODE, Art. 445) and Article 120 of the Family Code.
– The right pertaining to the owner of a thing over
everything that is incorporated or attached The ownership of improvements, whether for utility or
thereto, either naturally or artificially, by external adornment, made on the separate property of the
forces (Id. at 220). spouses at the expense of the partnership or through
the acts or efforts of either or both spouses shall
REASONS: Economic convenience is better pertain to the conjugal partnership, or to the original
attained in a state of single ownership than in a owner-spouse, subject to the following rules:
co-ownership, and natural justice demands that 1. When the cost of the improvement made by the
the owner of the principal should also own the conjugal partnership and any resulting increase
accessory (Id. at 211). in value are more than the value of the property
at the time of the improvement, the entire
a. With respect to real property: property of one of the spouses shall belong to the
i. Accession industrial -- building, planting, conjugal partnership, subject to reimbursement
sowing of the value of the property of the owner-spouse
ii. Accession natural -- alluvium, avulsion, at the time of the improvement;
change of course of rivers, formation of 2. Otherwise, said property shall be retained in
islands ownership by the owner-spouse, likewise subject
to reimbursement of the cost of the improvement.
b. With respect to personal property:
i. Adjunction or conjunction In either case, the ownership of the entire
ii. Commixtion or confusion property shall be vested upon the
iii. Specification reimbursement, which shall be made at the time
of the liquidation of the conjugal partnership
Basic Principles: (GONE-BAD) (FAMILY CODE, Art. 120).
a. He who is in Good faith may be held
responsible but will not be penalized; Scope of Building
b. To the Owner of a thing belongs the The term “building” is a generic term for all
extension or increase of such thing; architectural work with a roof, built for the purpose of
c. Bad faith of one party Neutralizes the bad being used as man’s dwelling, or for offices, clubs,
faith of the other; theaters, etc. (DE LEON, Property, supra at 183).
d. There should be no unjust Enrichment at the
expense of others; Scope of Planting
e. Bad faith involves liability for damages; It is not necessary that the trees or plants should have
f. Accessory follows the principal; and taken root; it is enough that they are planted in order
g. Accession exists only if the incorporation is to belong to the owner of the land (2 TOLENTINO,
such that separation would either seriously supra at 107).
Damage the thing or Diminish its value (Id. at
220). Presumption: All works, sowing, and planting are
presumed made by the owner and at his expense,
unless the contrary is proved (CIVIL CODE, Art. 446).

NOTE: Art. 445 is applicable only if the owner of the

land is known (DE LEON, Property, supra at 146).
ACCESSION INDUSTRIA Builder, Owner of the
Landowner
Planter, Materials
(LO)
TABLE OF RIGHTS AND OBLIGATIONS Sower (B,P,S) (OM)
Builder, Owner of the indemnity preservation both acted in
Landowner
Planter, Materials and collect ; good faith).
(LO)
Sower (B,P,S) (OM) damages, 2. Lose 2. If B, P, S
OR improvement acquires
Good Faith Good Faith Good Faith 2. Demolition or s without right improvement
restoration, to indemnity , remove
1. Acquire 1. Right of 1. Collect and collect from LO materials if
improvement retention value of damages, or (CIVIL without injury
s and pay for materials 3. Sell to B, P or CODE, Art. (CIVIL
indemnity to necessary primarily rent to S, and 452) unless CODE, Art.
B, P, S; OR and useful from B, P, collect the LO sells 447);
2. Sell land to B expenses; S; damages; land. 3. No action
or P except if 2. Pay value subsidiarily 4. Pay against LO.
the value of of from LO if necessary
the land is materials B, P, S expenses to
considerably to OM. insolvent; B, P, S
more; and 2. Remove (CIVIL
rent to S only if CODE, Arts.
(CIVIL without 449, 450, and
CODE, Arts. injury 451).
448, 546, and (CIVIL
455); CODE,
3. Subsidiarily Arts. 455 Bad Faith
liable to OM. and 447).
Same as though all acted in good faith (CIVIL
CODE, Art. 453).
Good Faith Good Faith Bad Faith
Bad Faith Good Faith Good Faith
1. Acquire 1. Right of 1. Lose them
improvement retention without right 1. Acquire 1. Remove 1. Remove
s and pay for to indemnity improvement improvements materials if
indemnity to necessary (CIVIL
s after paying in any event; without
B, P, S; OR and useful CODE, Art.
indemnity and 2. Be injury;
2. Sell to B, P expenses; 449).
damages to indemnified 2. Collect value
except if the 2. Keep what
B, P, S; for damages; of materials,
value of land has been 2. Subsidiarily primarily
is built, liable to OM from B, P, S;
considerably planted, or
(CIVIL 3. Subsidiarily
more, forced sown
CODE, Arts. from LO
lease; without
454, 447, and (CIVIL
3. Without indemnity
455). CODE, Arts.
subsidiary to OM and 447 and
liability for collect 455).
cost of damages
material. (CIVIL
Bad Faith Bad Faith Good Faith
CODE,
Arts. 546
and 449). 1. Acquire 1. Right of 1.Collect value
improvement retention for of materials
s after necessary primarily from
Good Faith Bad Faith Bad Faith
indemnity to expenses; B, P, S;
B, P, S; OR 2. Pay value of subsidiarily
1. Acquire 1. Recover 1. Recover 2. Sell to B, P materials to from LO;
improvement necessary value from B, except: if the OM and pay 2.Collect
without expenses P, S (as if value is him damages damages;
paying for s(CIVIL
 Builder, Owner of the APPLICATION OF THE RULES
Landowner Art. 447 applies when the owner of the property
Planter, Materials
(LO) uses the materials of another -- whether
Sower (B,P,S) (OM)
personally or through another. It does not refer to
considerably CODE, Arts. 3.If B, P, S the instance when a possessor builds on the property
more; 546 and acquires of another (Macasaet vs. Macasaet, G.R. Nos.
3. Rent to S 447). improvements, 154391-92, September 30, 2004).
(CIVIL remove
CODE, Arts. materials in It contemplates a principal and an accessory, the land
453, 448, any event being considered the principal and the plantings,
546, 548, and (CIVIL CODE, constructions, or works, the accessory. The Supreme
455); Arts. 447, and Court considered buildings as the principal and the
4. Subsidiarily 455). lumber and construction materials as the accessory
liable to the (Pacific Farms, Inc. v. Esguerra, G.R. No. L-21783,
owner of November 29, 1969).
materials.
On the other hand, Article 448 applies when a
person builds, sows, or plants in good faith on
Good Faith Bad Faith Good Faith the land of another (DE LEON, Property, supra at
152); when he believes that he has the right to build,
1. Acquire w/o 1. Recover 1. Collect value plant, or sow because he thinks he owns the land or
paying necessary of materials believes himself to have a claim of title (Communities
indemnity expenses and Cagayan Inc. v. Sps. Arsenio¸ G.R. No. 176791,
and collect (CIVIL damages November 14, 2012).
damages; CODE, Art. from B, P, S
OR 452, and and Art. 448 refers to a land whose ownership is
2. Sell to B, P 443); subsidiarily claimed by two or more parties, one of whom has
and rent to S 2. Lose from LO; built some works, or sown or planted something.
and collect improvement 2. Remove It does not apply to a case where the owner of the
damages; s without materials in land is the builder, sower, or planter who then later
OR right of any event if loses ownership of the land by sale or donation.
3. Demolish or retention B, P, S Where the true owner himself is the builder of the
restore and from LO acquires works, the issue of good faith or bad faith is entirely
collect (CIVIL improvement irrelevant. The rule on good faith laid down in Art. 526
damages; CODE, Art. . of the Civil Code shall be applied to determine the
4. Pay 452) unless good faith of the builder in Art. 448 (Pecson v. CA,
necessary LO sells the G.R. No. 115814, May 26, 1995).
expenses to land.
B, P, S; Thus, although it does not appear from the records of
5. Subsidiarily the case that the appellee (owner of the buildings)
liable to OM owns the land upon which the buildings were erected,
(CIVIL the appellee must bear the obligation to pay for the
CODE, Arts. value of the construction materials; the appellant has
449, 450, and the corresponding right to recover the value of the
451). unpaid lumber and construction materials (Pacific
Farms, Inc. v. Esguerra, G.R. No. L-21783,
Bad Faith Good Faith Bad Faith November 29, 1969).

1.Acquire 1.Indemnity for 1.No indemnity When Co-Ownership is Terminated by Partition

improvements damages 2.Lose The provisions of Art. 448 should apply to determine
pay indemnity 2.Remove materials the respective rights of the parties when it appears
& damages to improvements (CIVIL that the house of an erstwhile co-owner has
B, P, S (CIVIL in any event CODE, Art. encroached upon a portion pertaining to another co-
CODE, Arts. (CIVIL CODE, 449). owner which was however made in good faith (Ignao
454, and 447). Arts. 454 and v. IAC, G.R. No. 72876, January 18, 1991).
447).
The provision on indemnity in Art. 448 may be applied
by analogy considering that the primary intent of the
law is to avoid a state of forced co–ownership
especially where the parties agree that Arts. 448 and
546 are applicable and indemnity for the
improvements may be paid although they differ as to Lessees came into possession of the lot by virtue
the basis of the indemnity. It is the current market of a contract of lease. They are then estopped to
value of the improvements which should be made the deny their landlord’s title or to assert a better title
basis of reimbursement to the builder in good faith not only in themselves, but also in some third
(Pecson v. CA, G.R. No. 115814, May 26, 1995). person while they remain in possession of the
land until they surrender such possession to the
Property Sold by the Government due to landlord (Munar v. CA, G.R. No. 100740,
Delinquency November 25, 1994).
If a property was caused to be sold at a public auction
due to non-payment of taxes and the buyer at the The estoppel applies even though the lessor had
public auction moved not only for the delivery of the no title at the time. The relation of lessor and
lot but also of the improvements therein, the former lessee may also be asserted by the successors
owner of the property is entitled to be reimbursed by of the original lessor to the latter’s title (Feliciano
the buyer (Spouses Nuguid v. CA, G.R. No. 151815, v. Sps. Zaldivar, G.R. No. 162593, September
February 23, 2005). 26, 2006).

REASON: He is a builder in good faith. He was still 2. Improvement constructed on one’s own land
the owner of the lot when he constructed the subsequently sold (Id. at 165-167);
improvement (Spouses Nuguid v. CA, G.R. No. 3. Builder, a belligerent occupant (Id. at 166);
151815, February 23, 2005). 4. Constructions not in the nature of buildings (Id. at
167); and
Cases NOT Covered: 5. Property of public dominion (Id.).
1. Other provisions of law (e.g. usufruct, lease,
agency, co-ownership); OPTIONS OF THE LANDOWNER
The landowner can choose between appropriating
EXCEPTION: In case of termination of co- the building by paying the proper indemnity or
ownership, rights provided in Art. 448 may apply obliging the builder to pay the price of the land, unless
(Ignao v. IAC, G.R. No. 72876, January 18, its value is considerably more than that of the
1991). structures, in which case the builder in good faith
shall pay reasonable rent. If the parties cannot come
Art. 448 does not apply where one’s interest in to terms over the conditions of the lease, the court
the land is merely that of a holder such as a mere must fix the terms thereof (Rosales v. Castelltort,
lessee under a rental contract (Balucanag v. G.R. No. 157044, October 5, 2005).
Francisco, G.R. No. L-33422, May 30, 1983), an
agent, or a usufructuary (Macasaet vs. The landowner may not refuse both to pay the
Macasaet, G.R. Nos. 154391-92, September 30, building and to sell the land, and, instead seek to
2004). compel the owner of the building to remove the
building from the land. He is entitled to such removal
Jurisprudence is replete with cases which only when, after having chosen to sell the land, the
categorically declare that Article 448 covers only other party fails to pay for said land (Ignacio v. Hilario,
cases in which the builders, sowers, or planters G.R. No. L-175, April 30, 1946).
believe themselves to be owners of the land or,
at least, have a claim of title thereto, but not when Should no other arrangement be agreed upon, the
the interest is merely that of a holder, such as a owner of the land does not automatically become the
mere tenant, agent or usufructuary. A tenant owner of the improvement (Filipinas Colleges Inc. v.
cannot be said to be a builder in good faith as he Timbang, G.R. No. L-12812, September 29, 1959).
has no pretension to be owner. In a plethora of
cases, this Court has held that Articles 448 of the Right to Choose: The option to appropriate the
Civil Code, in relation to Article 546 of the same building or sell the land belongs to the landowner.
Code, which allows full reimbursement of useful The only right of the builder in good faith is the right
improvements and retention of the premises until to reimbursement, not to compel the owner of the
reimbursement is made, applies only to a land to sell. The option is not to buy but to sell.
possessor in good faith, i.e., one who builds on (Quemuel v. Olaes, G.R. No. L-11084, April 29,
land with the belief that he is the owner thereof. It 1961).
does not apply where one's only interest is that of
a lessee under a rental contract; otherwise, it
would always be in the power of the tenant to
"improve" his landlord out of his property (Parilla
v. Pilar, G.R. No. 167680, November 30, 2006).
Reasons Why the Option is Given to the 1. The parties may decide to leave things as they
Landowner: are and assume the retention of lessor and
1. His right is older; and lessee, and should they disagree as to the
2. By the principle of accession, he is entitled to the amount of rental, then they can go to the court to
ownership of the accessory thing (Communities fix that amount;
Cagayan Inc. v. Sps. Arsenio, G.R. No. 176791, 2. Should the parties not agree to assume the
November 14, 2012). relation of lessor and lessee, the owner of the
land is entitled to have the improvement
NOTE: Where the builder, planter or sower has acted removed; and
in good faith, a conflict of rights arises between the 3. The land and the improvement may be sold at
owners, and it becomes necessary to protect the public auction, applying the proceeds thereof first
owner of the improvements without causing injustice to the payment of the value of the land and the
to the owner of the land. In view of the impracticability excess, if any to be delivered to the owner of the
of creating a state of forced co-ownership, the law improvement in payment thereof (Filipinas
has provided a just solution (Depra v. Dumlao, G.R. Colleges, Inc. v. Timbang, G.R. No. L-12812,
No. L-57348, May 16, 1985). September 29, 1959).

In view of the impracticability of creating a state of NOTE: These alternative remedies shall be
forced co-ownership, the law has provided a just resorted to by the parties when the builder in
solution by giving the owner of the land the option to good faith fails to pay the value of the land when
acquire the improvements after payment of the such is demanded by the landowner. Take note
proper indemnity, or to oblige the builder or planter to too that the options of the landowner under Art
pay for the land and the sower the proper rent. He 448 are alternative and exclusive. (Filipinas
cannot refuse to exercise either option (Communities Colleges, Inc. v. Timbang, G.R. No. L-12812,
Cagayan Inc. v. Sps. Arsenio, G.R. No. 176791, September 29, 1959).
November 14, 2012).
WHO IS A BUILDER IN GOOD FAITH?
Not even a declaration of the builder’s bad faith shifts To be considered a builder in good faith, it is essential
the option to him as provided in Art. 450 of the Civil that a person asserts title to the land in which he
Code (Sps. Benitez v. CA, G.R. No. 104828, January builds, i.e., that he be a possessor in the concept of
16,1997). an owner and that he be unaware that there exists in
his title or mode of acquisition any flaw which
Once the choice is made by the landowner, it is invalidates it (Spouses de Vera v. Spouses
generally irrevocable (Tayag v. Yuseco, G.R. No. L- Mayandoc, G.R. No. 211170, July 3, 2017).
8139, October 24, 1955).
The terms builder, planter, or sower in good faith as
The so-called “workable solution” suggested in the used in reference to Article 448 of the Civil Code,
case of Grana v. CA (G.R. No. L-12486, August 31, refer to one who, not being the owner of the land,
1960) where the Court ordered the owner of the land builds, plants, or sows on that land believing himself
to sell to the builder, etc. the part of the land intruded to be its owner and unaware of the defect in his title
upon thereby depriving him of his right to choose or mode of acquisition. The essence of good faith lies
because it would be impractical to choose the first in an honest belief in the validity of one's right,
alternative for the whole improvement might be ignorance of a superior claim, and absence of
rendered useless, is contrary to the explicit provisions intention to overreach another. On the other hand,
of Art. 448 to the effect that, "(t)he owner of the bad faith may only be attributed to a landowner when
land…shall have the right to appropriate…or to oblige the act of building, planting, or sowing was done with
the one who built…. to pay the price of the land…" his knowledge and without opposition on his part
The law is clear and unambiguous when it confers the (Delos Santos v. Abejon, G.R. No. 215820, March 20,
right of choice upon the landowner and not upon the 2017).
builder and the courts (Ignao v. IAC, G.R. No. 72876,
January 18, 1991). Good Faith May co-exist with Negligence
Good faith does not necessarily preclude negligence,
NOTE: Art. 448 is not mandatory. There is nothing, for, in fact, in negligence there is no intention to do
however, in the law to prevent the parties from wrong or cause damage unlike in bad faith which
agreeing to adjust their rights in some other way. presupposes such intention (DE LEON, Property,
supra at 177).
REMEDIES OF THE PARTIES
The following are the remedies of the parties should
the builder in good faith is unable to pay the value of
the land as demanded by the landowner:
Articles 448 and 546 on builders in good faith is ALLUVION V. ACCRETION
not applicable to cases covered by the
Condominium Code ALLUVION ACCRETION
Articles 448 and 546 of the Civil Code on builders in
As to Concept
good faith are inapplicable in cases covered by the
Condominium Act where the owner of the land and Soil deposited on the Process by which the
the builder are already bound by specific legislation estate fronting the river soil is deposited.
on the subject property (the Condominium Act), and bank.
by contract (the Master Deed and the By-Laws of the
condominium corporation). The raison d'etre for this
is where the builder, planter or sower has acted in As to Application
good faith, a conflict of rights arises between the
owners, and it becomes necessary to protect the Applies only to the soil Broader term.
owner of the improvements without causing injustice deposited on river banks.
to the owner of the land (Leviste Management
System, Inc., vs. Legaspi Towers 200, Inc., G.R. No. (2 PARAS, supra at 265-266).
199353, April 4, 2018).
Requisites of Alluvion or Accretion (G-Cae):
ACCESSION NATURAL a. The deposit or accumulation of soil or
1. ALLUVION OR ALLUVIUM (CIVIL CODE, sediment must be Gradual and imperceptible
Arts. 457 and 458) (increase must be comparatively little);
– increment gradually received by lands abutting b. The accretion must result from the effects or
rivers as a result of the current of the waters action of the Current of the water;
c. The land where Accretion takes place is
Accretion – the process by which a riparian land adjacent to the bank of the river; and
gradually and imperceptibly receives addition d. The river must continue to Exist (2 PARAS,
made by the water to which the land is contiguous supra at 266).

REASONS FOR THE RULE:

a. To compensate the owner for losses which
they may suffer by erosion;
b. To compensate them for the burdens of legal
easements, which are imposed upon them;
c. Because it is the owner of the contiguous
land who can utilize the increment to the best
advantage; and
d. Because this is the only feasible solution,
since the previous owners can no longer be
identified (Id. at 267-268).

Effects of Accretion on Registered Lands

a. In case of diminution of area
Riparian owner – the owner of the land adjacent Registration under Torrens System does not
to the river bank protect the riparian owners against the
diminution of the area of his registered land
Littoral owner – the owner of lands bordering (Viajar v. CA, G.R. No. 77294, December 12,
the shore of the sea or lake or other tidal waters 1988).

If the increment is formed by the action of the sea, b. In case of increase of area
the same is not called alluvium/accretion but An alluvion is automatically owned by the
foreshore land. As such, it is part of the public riparian owner from the moment the soil
domain (Heirs of E. Navarro v. IAC, G.R. No. deposit can be seen, but the additional area
68166, February 12, 1997). does not automatically become registered
land just because the lot which receives such
accretion is covered by a Torrens title. The
riparian owner must register the additional
area within 50 years (Heirs of E. Navarro v.
IAC, G.R. No. 68166, February 12, 1997).
 NOTE: Ownership of a piece of land is one of the waters of the river (Republic v. CA, G.R.
thing; registration under the Torrens system No. L-61647, October 12, 1984).
of that ownership is another (Delos Reyes v.
Municipality of Kalibo, Aklan, G.R. No. Art. 457 excludes all deposits caused by human
214587, February 26, 2018). intervention. Alluvion must be the exclusive work
of nature (Vda. De Nazareno, et al. V. CA, G.R.
Article 84 of the Spanish Law of Waters of No. 98405, June 26, 1996).
1866 specifically covers ownership over
alluvial deposits along the banks of a creek. Effect of Public Service Constructions or
It reads: ART. 84. Accretions deposited Easements on River Banks
gradually upon lands contiguous to creeks, a. If a public service construction, like a railroad
streams, rivers, and lakes, by accessions or or a road, is made on a river bank, it is the
sediments from the waters thereof, belong to government or the railroad company which
the owners of such lands. Interestingly, will own the accretion.
Article 457 of the Civil Code states: Art. 457. b. If instead of a public service construction,
To the owners of lands adjoining the banks there is only an easement for the benefit of
of rivers belong the accretion which they navigation, floatage, fishing, and salvage, the
gradually receive from the effects of the right of the riparian owner subsists because
current of the waters. It is therefore explicit in easements, the owner of the servient
from the foregoing provisions that alluvial estate does not lose his ownership over the
deposits along the banks of a creek do not portion covered (2 PARAS, supra at 269-
form part of the public domain as the alluvial 270).
property automatically belongs to the owner
of the estate to which it may have been Estates Adjoining Ponds or Lagoons
added. The only restriction provided for by The owners of estates adjoining ponds or
law is that the owner of the adjoining property lagoons do not acquire the land left dry by the
must register the same under the Torrens natural decrease of the waters, or lose that
system; otherwise, the alluvial property may inundated by them in extraordinary floods (CIVIL
be subject to acquisition through prescription CODE, Art. 458).
by third persons (Office of the City Mayor of
Parañaque City v. Ebio, G.R. No. 178411, Definitions:
June 23, 2010). a. Pond
– a body of stagnant water without an outlet
NOTE: Lands acquired by accretion as provided
in Art. 457 is not lost upon the sudden and b. Lagoon
abrupt change of course by the river and – a small lake, ordinarily of fresh water and
separated to the other side (Agustin v. IAC, G.R. not very deep, fed by floods, the hollow bed
Nos. L-66075, July 5, 1990). In the absence of of which is bounded by the elevation of the
evidence that the change in the course of the land
river was sudden, the presumption is that the
change was gradual and was caused by alluvium c. Lake
and erosion (Payatas-Estate Improvement Co. v. – a body of water formed in depressions of
Tuason, G.R. No. 30067, March 23, 1929). the earth, ordinarily fresh water, coming from
rivers, brooks, or springs and connected by
NOTE: In the absence of evidence that the them to sea
change in the course of the river was sudden or
that it occurred through avulsion, the NOTE: This provision refers to ponds and
presumption is that the change was gradual and lagoons, and therefore has no application to
was caused by alluvium and erosion (Bagaipo v. lakes (2 TOLENTINO, supra at 129).
Court of Appeals, G.R. No. 116290, December 8,
2000). 2. AVULSION
The transfer of a known portion of land from one
Deposit Caused by Human Intervention Not tenement to another by the force of the current.
Covered The portion of land must be such that it can be
A riparian owner does not acquire the addition to identified as coming from a definite tenement
his land caused by special works (e.g. dikes) (CIVIL CODE, Art. 459).
expressly intended by him to bring about
accretion (i.e., for reclamation purposes) and not Also called “force of the river” since it implies a
to protect his property from the destructive force violent tearing or breaking away.
It may also be referred as “delayed accession” in ALLUVIUM V. AVULSION
the sense that if the owner abandons the soil
involved or fails to remove the same within two ALLUVIUM AVULSION
years, the land to which it has been attached
As to Process
acquires ownership thereof (2 PARAS, supra at
271). Gradual and Sudden or abrupt
imperceptible process
Art. 459 can be applied by analogy in case a
known portion of a land is transferred from one
estate to another by forces of nature other than As to Identity of Soil
the current of a river (DE LEON, Property, supra
at 178). Soil cannot be Identifiable and
identified verifiable

As to Ownership

Belongs to the owner Belongs to the owner

of the property to from whose property it
which it is attached was detached

(2 PARAS, supra at 275).

Removal Within Two (2) Years: The owner

must remove (not merely claim) the transported
portion within two years to retain ownership
(CIVIL CODE, Art. 459).

Reasons for Removal

Requisites (CSK): a. The segregated portion is usually very small;
a. The segregation and transfer must be b. If the area is large there is a need to claim for
caused by the Current of a river, creek or its value within two (2) years;
torrent; c. If there is no need for claim, ill feeling may
b. The segregation and transfer must be arise between the neighbors;
Sudden or abrupt; and d. To prevent legal absurdities;
c. The portion of land transported must be e. To prevent permanent attachment; and
Known or identified (Id. at 189). f. The principle is similar to that underlying Art.
460 (2 PARAS, supra at 276-277).
Current – the continuous movement of a body of
water, often horizontal, in a certain direction (Id. Rule on Uprooted Trees
at 190). Trees uprooted and carried away by the current
of the waters belong to the owner of the land
River – a natural stream of water, of greater upon which they may be cast, if the owners do
volume than a creek or rivulet flowing, in a more not claim them within 6 months (CIVIL CODE,
or less permanent bed or channel, between well- Art. 460).
defined banks or walls, with a current which may
either be continuous in one direction or affected If such owner claims them, they shall pay the
by the ebb and flow of the tide (Id.). expenses incurred in gathering them or putting
them in a safe place (CIVIL CODE, Art. 460).
Creek – a small stream less than a river; a recess
or inlet in the shore of a river, and not a separate The 6-month period is a condition precedent and
or independent stream though it is sometimes not a prescription. After a claim is made within 6
used in the latter meaning (Id.). months, an action may be brought within the
prescription period provided under Art. 1140.
Torrent – a violent, rushing, and turbulent stream
 If he has incurred expenses for preserving them, as
when he gathered them in a safe place for eventual
return, or when he transplants them, only for
preservation purposes, he is entitled to
indemnification.

If he has done nothing, he cannot demand

indemnification unless he has suffered in any way
and the real owner benefited (2 PARAS, supra at
280).

In case of uprooted trees, the owner retains

ownership if he makes a claim within six (6) months.
This does not include trees which remain planted on
a known portion of land carried by the force of the
waters. In the latter case, the trees are regarded as
accessions of the land through gradual changes in
the course of adjoining stream (Payatas Estate
Improvement Co. v. Tuason, G.R. No. 30067, March
23, 1929).
If the owner of the land upon which the trees have NOTE: If the tree is still attached to the portion of the
been cast, transplanted them on his own land, the land transferred to the other estate, Art. 459 on
former owner may still recover the same within the avulsion applies and not Art. 460.
period of 6 months (3 MANRESA, 244 as cited in 2
PARAS, supra at 273).

Indemnification of Owner of the Land Upon Which

Uprooted Trees may have been Cast
Trees uprooted and carried away by the current of the
waters belong to the owner of the land upon which
they may be cast, if the owners do not claim them
within six months. If such owners claim them, they
shall pay the expenses incurred in gathering them or
putting them in a safe place (CIVIL CODE, Art. 460).
3. CHANGE OF COURSE OF RIVERS “River beds which are abandoned” means that
where there is abandonment by the government
of its right over the old bed, the owner of the
invaded land automatically acquires ownership of
the same without the necessity of any formal act
on his part. No positive act is needed on their
part, as it is subject thereto ipso jure from the
moment the mode of acquisition becomes
evident (2 TOLENTINO, supra at 137).

“In proportion to the area lost” contemplates

two or more owners whose lands are occupied by
the new bed. If only one owner has lost, he gets
the entire abandoned river bed (2 PARAS, supra
at 281).

It does not apply to cases where the river simply

The owner of estate A owns the old river bed in dries up because there are no persons whose
proportion to the area lost or occupied by the new lands are occupied by the waters of the river. The
bed on his land. new river bed thus formed become of public
dominion (Id.).
Rules:
a. River beds which are abandoned through the 4. FORMATION OF ISLAND BY THE
natural change in the course of the waters BRANCHING OFF OF A RIVER
ipso facto belong to the owners whose lands Whenever the current of a river divides itself into
are occupied by the new course in proportion branches, leaving a piece of land or part thereof
to the area lost; isolated, the owner of the land retains his
ownership. He also retains it if a portion of land is
“Ipso facto” - the prejudiced owner separated from the estate by the current (CIVIL
automatically becomes the owner of the CODE, Art. 463).
abandoned river bed (DE LEON, Property,
supra at 191).

b. The owners of the land adjoining the old bed

shall have the right to acquire the same by
paying the value thereof, which value shall
not exceed the value of the area occupied by
the new bed (CIVIL CODE, Art. 461); and

c. Whenever a river, changing its course by

natural changes, opens a new bed through a
private estate, this bed shall become of
public dominion (CIVIL CODE, Art. 462).

Requisites: (CA2PE)
a. There must be a natural Change in the
course of the waters of the river; otherwise, There is isolation where the portion has not
the bed may be the subject of a State grant physically moved. There is separation when
(REYES–PUNO, An Outline of the Philippine such portion has physically moved (2 PARAS,
Civil Law, (1964), p.54 [hereinafter REYES- supra, at 233).
PUNO, Philippine Civil Law]);
b. The change must be Abrupt or sudden; NOTE: The piece of land formed by isolation or
c. There must be Abandonment by the owner separation belongs to the owner of property B
of the bed i.e., a decision not to bring back since no accession takes place. He retains
the river to the old bed (Id. at 53); ownership over the land (Id.).
d. The change must be Permanent; the rule
does not apply to temporary overflowing; and
e. The river continues to Exist (2 PARAS, supra
at 283-284).
5. FORMATION OF ISLANDS BY
SUCCESSIVE ACCUMULATION OF RIGHT OF ACCESSION
ALLUVIAL DEPOSITS
a. If formed on the sea:
WITH RESPECT TO
i. Within territorial waters – the island/s PERSONAL PROPERTY
belong/s to the state; said island/s is/are
considered patrimonial property (CIVIL (ARTS. 466-475)
CODE, Art. 464).
ii. Outside territorial waters – to the first
occupant; this is in accordance with the
Basic Principle: Whenever the things united can be
principles of Public International Law for
separated without injury, their respective owners may
discovery and occupation considered as
demand their separation (CIVIL CODE, Art. 469).
a definite mode of acquiring territory.
Accession exists only if separation is not feasible.
b. If formed in lakes, or navigable or floatable
rivers – State; also a patrimonial property
(CIVIL CODE, Art. 464). KINDS:
1. ADJUNCTION/CONJUNCTION (CIVIL
Navigable or floatable river – if useful for CODE, Arts. 466-471)
floatage and commerce, whether the tides – The union of two movable things belonging to
affect the water or not; should benefit trade different owners, in such a manner that they
and commerce (2 PARAS, supra at 233). cannot be separated without injury, thereby
forming a single object (DE LEON, Property,
c. If formed on non–navigable or non–floatable supra at 197).
rivers:
i. If nearer to one margin or bank – to the Requisites: (MUI)
nearer riparian owner (CIVIL CODE, Art. a. There are two Movables belonging to
465). different owners;
b. They are United in such a way that they form
a single object; and
c. They are so Inseparable that their separation
would impair their nature or result in
substantial injury to either component (Id. at
198).

NOTE: The application of the rule of accessorium

sequitur principale (“the accessory follows the
principal”) must give way to any express or
implied agreement of the owners as to the
ownership of the new object (2 TOLENTINO,
supra at 142).
REASON: The nearer margin has the Kinds: (ISEPT)
better chances of developing the island a. Inclusion or engraftment (e.g. when a
in the interest of agriculture (2 PARAS, diamond is set on a gold ring);
supra at 244). b. Soldadura or soldering (e.g. when lead is
united or fused to an object made of lead);
ii. If equidistant from both banks – to the i. Ferruminacion – if both the accessory
riparian owners, by halves (CIVIL CODE, and principal objects are of the same
Art. 465). metal; or
ii. Plumbatura – if the accessory and
principal objects are of different
materials.
c. Escritura or writing (e.g. when a person
writes on a paper belonging to another);
d. Pintura or painting (e.g. when a person paints
on a canvas belonging to another); and
e. Tejido or weaving (e.g. when threads
belonging to different owners are used in
making textile) (DE LEON, Property, supra at
198).
Tests to Determine Principal in Adjunction: b. Adjunction in bad faith by the owner of
a. Test of Intention – the principal thing, as the principal
between two things incorporated, is deemed The owner of the accessory thing shall have
to be that to which the other (accessory) has a right to choose between:
been united as an ornament or for its use or i. The principal paying him its value; or
perfection (CIVIL CODE, Art. 467); ii. The thing (accessory) belonging to him
b. If it cannot be determined by the rule given in be separated, even though for this
Art. 468: purpose it be necessary to destroy the
principal thing (CIVIL CODE, Art. 470).
If the two things are of unequal values – the
thing of greater value shall be considered the In either case, the principal shall be liable
principal; for damages (CIVIL CODE, Art. 470).

If they are of equal values – the thing of c. Adjunction in bad faith by the owner of
greater volume shall be considered the the accessory
principal (CIVIL CODE, Art. 468). Whenever the owner of the accessory thing
has made the incorporation in bad faith:
NOTE: In all cases, sentimental value shall be i. He shall lose the thing (accessory)
duly appreciated (CIVIL CODE, Art. 475). incorporated; and
ii. He shall have the obligation to indemnify
With reference to a motor vehicle, the engine the owner of the principal thing for the
may be considered as the principal, all the other damages he may have suffered (CIVIL
parts of the vehicle being regarded as mere CODE, Art. 470).
accessories (2 PARAS, supra at 293).
d. Adjunction in bad faith by both owners
SPECIAL RULE: In painting and sculpture, If either one of the owners has made the
writings, printed matter, engraving and incorporation with the knowledge and without
lithograph, the board, metal, stone, canvas, the objection of the other, their respective
paper, or parchment, shall be deemed the rights shall be determined as though both
accessory thing (CIVIL CODE, Art. 468). This is acted in good faith (CIVIL CODE, Art. 470).
based on the consideration that what is painted, In such case, apply Arts. 466 to 499.
etc. is of greater value or importance than the
board, etc. (DE LEON, Property, supra at 199). Form of Indemnity to Owner of Material
Whenever the owner of the material employed
NOTE: Since the special rule specifies the without his consent has a right to an indemnity,
special cases, analogous cases which are not he may demand that this consists in the:
enumerated should not be solved analogously, 1. Delivery of a thing equal in kind and value;
but in accordance with the general tests provided 2. Payment of price as appraised by experts
for in Arts. 476 and 468, first paragraph (2 (CIVIL CODE, Art. 471).
PARAS, supra at 293).
2. MIXTURE
Rules on who is Entitled: – It takes place when 2 or more things belonging
a. Adjunction in good faith by either owner to different owners are mixed or combined with
GENERAL RULE: Accessory follows the the respective identities of the component parts
principal. destroyed or lost (DE LEON, Property, supra at
203).
EXCEPTIONS (SP):
i. If the accessory can be Separated NOTE: As distinguished from adjunction, there is
without injury, their respective owners in mixture greater inter-penetration or
may demand their separation (CIVIL decomposition of the objects that have been
CODE, Art. 469); and mixed (Id.).
ii. If the accessory is much more Precious
than the principal, the owner of the Kinds:
accessory may demand the separation a. Commixtion – mixture of solids
even if the principal suffers some injury b. Confusion – mixture of liquids
(CIVIL CODE, Art. 469).
Rules:
a. Mixture by will of the owners:
i. Primarily, their rights should be governed
by their stipulations (Id. at 203-204);
 ii. In the absence of any stipulation, each the following option with a right to indemnity
owner shall acquire a right proportional for damages:
to the part belonging to him, bearing in i. Appropriate the new thing without paying
mind the value of the things mixed or the owner of the material; or
confused (CIVIL CODE, Art. 472). ii. Require the owner of the material to pay
b. Mixture caused by an owner in good faith or him the value of the thing or value of his
by chance: Each owner shall acquire a right work or labor (DE LEON, Property, supra
proportional to the part belonging to him, at 210).
bearing in mind the value of the things mixed
or confused (CIVIL CODE, Art. 472). c. Owner of the principal (worker) in bad faith,
c. By one owner in bad faith: the owner of the material has the option:
i. He loses all his rights to his own material; i. To appropriate the work to himself
and without paying anything to the maker; or
ii. He is liable for damages (CIVIL CODE, ii. To demand of the maker that he
Art. 473). indemnify him for the value of the
d. With the knowledge and without the objection material and the damages that he may
of owner: As though both acted in good faith have suffered (CIVIL CODE, Art. 474).
(DE LEON, Property, supra at 203-204);
e. By the negligence of one of the parties: The EXCEPTION TO THE EXCEPTION: The owner
negligent owner is liable for damages (Id.). of the material cannot appropriate the work in
case the value of the latter, for artistic or scientific
3. SPECIFICATION reasons, is considerably more than that of the
One who in good faith employs the material of material (CIVIL CODE, Art. 474).
another in whole or in part in order to make a
thing of a different kind shall appropriate the thing Form of Indemnity to Owner of Material
thus transformed as his own, indemnifying the Whenever the owner of the material employed
owner of the material for its value (CIVIL CODE, without his consent has a right to an indemnity,
Art. 474). he may demand that this consist in the:
1. Delivery of a thing equal in kind and value;
The transformation of another’s material by the 2. Payment of price as appraised by experts
application of labor. The material becomes a (CIVIL CODE, Art. 471).
thing of different kind. Labor is the principal (2
PARAS, supra at 299). NOTE: In determining the value, sentimental
value must be taken into account (CIVIL CODE,
Example: Using the paint of another to make a Art. 475).
painting on your own canvas (Id.).
ADJUNCTION V. MIXTURE V.
NOTE: If you use your own paint on the canvas SPECIFICATION
of another, this is adjunction. Reason: the canvas
is considered the accessory in Art 468 on ADJUNCTION MIXTURE SPECIFICATION
adjunction (Id.).
As to Number of Things Involved
GENERAL RULE: Involves at Involves at May involve
a. Owner of the principal (worker) in good faith: least two (2) least two (2) one (1) thing
i. Maker acquires the new thing; and things. things. (or more) but
ii. He must indemnify the owner of the form is
material (Id.). changed.
EXCEPTION:
If the material is more precious than the As to Ownership
transformed thing or is of more value, its
owner may, at his option: Accessory Co- Accessory
i. Appropriate the new thing to himself, follows the ownership follows the
after first paying indemnity for the principal. results. principal.
value of the work; or
ii. Demand indemnity for the material As to Nature of the Things
(CIVIL CODE, Art. 474).
Things Things The new
b. Owner of the principal (worker) in good faith joined retain mixed or object retains
but owner of material in bad faith. Applying their nature. confused or preserves
Art. 470, Par. 2 by analogy, the worker has may either the nature of
 GENERAL RULE: Only real property could be the
retain or lose the original
subject matter of quieting of title (DE LEON, Property,
their object.
supra at 217).
respective
natures.
EXCEPTION: Certain personal properties like
(DE LEON, Property, supra at 212-213). vessels may be the object of quieting of title (Id.).

NATURE: Actions for quieting of title are neither suits

in rem nor suits in personam. They are suits against
QUIETING OF TITLE a particular person in respect to the res and the
judgment will apply only to the property in dispute.
(ARTS. 476-481) They are suits quasi in rem (Realty Sales Enterprise,
Inc. v. IAC, G.R. No. L-67451, September 28, 1987).

Actions quasi in rem deal with the status, ownership

ACTION TO QUIET TITLE or liability of a particular property but which are
An action for quieting of title is essentially a common intended to operate on these questions only as
law remedy grounded on equity. The competent court between the particular parties to the proceedings and
is tasked to determine the respective rights of the not to ascertain or cut off the rights or interests of all
complainant and other claimants, not only to place possible claimants. The judgments therein are
things in their proper place, to make the one who has binding only upon the parties who joined in the action
no rights to said immovable respect and not disturb (Spouses Pozon v. Lopez, G.R. No. 210607, March
the other, but also for the benefit of both, so that he 25, 2019).
who has the right would see every cloud of doubt over
the property dissipated, and he could afterwards KINDS OF ACTION REFERRED TO (REP):
without fear introduce the improvements he may
desire, to use, and even to abuse the property as he
1. Remedial
– An action to remove the cloud or to quiet title to
deems best (Mananquil, et. al. v. Moico, G.R. No.
real property or an interest therein (CIVIL CODE,
180076, November 12, 2012).
Art. 476, par. 1);
PURPOSE: To secure an adjudication that a claim of
title to or an interest in property, adverse to that of 2. Extinctive
complainant is invalid, so that the complainant and – An action to quiet title or remove cloud
those claiming under him may be forever afterward therefrom when the contract, instrument, other
free from any danger of hostile claim (2 PARAS, obligation has been extinguished or has been
supra at 301). terminated or has been barred by extinctive
prescription (CIVIL CODE, Art. 478); and
CLOUD ON TITLE
3. Preventive
A semblance of title, either legal or equitable, or a
– An action to prevent a future cloud or doubt
claim or a right in real property, appearing in some
from being cast upon the title to real property or
legal form but which is, in fact, invalid or which would
an interest therein (CIVIL CODE, Art. 476, par.
be inequitable to enforce (DE LEON, Property, supra
2).
at 215).
REASONS FOR ALLOWING THE
REQUISITES FOR THE EXISTENCE OF
ACTION:
CLOUD ON TITLE (IRCEP-VIP):
1. The prevention of litigation;
1. There is an Instrument, Record, Claim,
2. The protection of the true title and possession;
Encumbrance, or Proceeding (IRCEP);
and
2. The instrument, claim, encumbrance, or
3. The promotion of right and justice (2 PARAS,
proceeding is apparently Valid or effective;
supra at 486).
3. Such instrument, etc. is in truth and in fact,
Invalid, ineffective, voidable, or unenforceable, or
has been extinguished or terminated, or has REQUISITES FOR AN ACTION TO QUIET
been barred by extinctive prescription; and TITLE TO PROSPER: (LCD)
4. Such instrument, etc. may be Prejudicial to said 1. Plaintiff must have a Legal or equitable title to, or
title (CIVIL CODE, Arts. 476 and 478). interest in the real property, which is the subject
matter of the action, but he need not be in
possession of the property (CIVIL CODE, Art.
477).
 QUIETING OF TITLE V. REMOVING OF
In order that an action for quieting of title may CLOUD V. PREVENTING A CLOUD
prosper, the plaintiff must have legal or equitable
title to, or interest in, the property which is the QUIETING OF REMOVING PREVENTING
subject matter of the action. While legal title TITLE OF CLOUD A CLOUD
denotes registered ownership, equitable title
means beneficial ownership. In the absence of As to Purpose
such legal or equitable title, or interest, there is
To put an end To procure the To remove
no cloud to be prevented or removed. Likewise,
to vexatious cancellation, possible
the plaintiff must show that the deed, claim,
litigation with delivery, foundation of
encumbrance, or proceeding that purportedly
respect to the release of an a future
casts a cloud on their title is in fact invalid or
property instrument, hostile claim.
inoperative despite its prima facie appearance of
involved. encumbrance
validity or legal efficacy (Delos Reyes v.
or claim, which
Municipality of Kalibo, Aklan, G.R. No. 214587,
constitutes a
February 26, 2018).
claim in
plaintiff’s title,
In the absence of such legal or equitable title, or
and which may
interest, there is no cloud to be prevented or
be used to
removed (Spouses Basa v. De Senly Loy, G.R.
injure or vex
No. 204131, June 4, 2018).
him in his
enjoyment of
The Court ruled that a judgment debtor who failed
his title.
to redeem the property within the time provided
for had lost whatever right he had over the land As to Nature of Action
in question. Certainly, he no longer possessed
any legal or equitable title to or interest over the Remedial in Preventive in Preventive in
parcels of land; hence, he cannot validly maintain nature, nature, in nature, in
an action for quieting of title (Lucasan v. involves a order to order to
Philippine Deposit Insurance Corporation G.R. present remove cloud prevent a
No. 176929, July 4, 2008). adverse which may be future cloud.
claim. used for future
2. There must be a Cloud in such title; actions.

3. Such cloud must be Due to some instrument, As to Nature of Claims

record, claim, encumbrance or proceeding which
is apparently valid or effective but is in truth Plaintiff Plaintiff No claim yet.
invalid, ineffective, voidable or unenforceable, asserts own declares his
and is prejudicial to the plaintiff’s title (CIVIL claim and own claim and
CODE, Art. 476). declares that title, and at the
the claim of same time
There may also be an action to quiet title or remove the defendant indicates the
a cloud there from when the contract, instrument or is unfounded source and
other obligation has been extinguished or has and calls on nature of
terminated, or has been barred by extinctive the defendant defendant’s
prescription (CIVIL CODE, Art. 478). to justify his claim, pointing
claim on the its defect and
REQUISITES FOR AN ACTION TO property for praying for the
the court to declaration of
PREVENT A CLOUD ON TITLE (TBA): determine the its invalidity.
1. Plaintiff has a Title to a real property or interest same.
therein;
2. Defendant is Bent on creating a cloud on the title Filed Against Whom
or interest therein. The danger must not be
merely speculative or imaginary but imminent; Filed against Filed against No claim yet.
and people who defendants
3. Unless the defendant is restrained or stopped, have who assert
the title or interest of the plaintiff will be prejudiced claims which claims based
or Adversely affected (DE LEON, Property, supra are more on an invalid
at 217). instrument
 constitutes a cloud upon the petitioners’ interest
general in (but not
or title in and to said property (Vda. de Aviles v.
nature. apparent).
CA, G.R. No. 95748, November 21, 1996).
(Id. at 223-229).
2. To questions involving Interpretation of
Not a collateral attack on title documents;
Raising the invalidity of a certificate of title in an action 3. To mere written or oral assertions of Claims,
for quieting of title is NOT a collateral attack because except if made in a legal proceeding;
it is central, imperative, and essential in such an 4. If it is being asserted that the instrument or entry
action that the complainant shows the invalidity of the in plaintiff’s favor is not what it purports to be;
deed which casts cloud on the title (Filipinas Eslon 5. To deeds by Strangers to the title unless
Manufacturing Corp. vs Heirs of Basilio Llanes, G.R. purporting to convey the property of the plaintiff;
No. 194114, March 27, 2019). 6. To instruments Invalid on their face; and
7. Where the validity of the instrument involves pure
PRESCRIPTIVE PERIOD: Questions of law (2 PARAS, supra at 315).
1. Plaintiff in possession
– Imprescriptible, because the owner is given the NOTE: The possession of the actual possessor must
continuing aid by the court to ascertain and be respected during the pendency of the case for
determine the nature of such claim and its effect quieting of title (Balbecino v. Judge Ortega, G.R. No.
on his title. He can wait until his possession is L-14231, April 28, 1962).
disturbed and attacked before taking steps to
vindicate his right (Coronel v. IAC, G.R. No. Duty of Plaintiff to Return Benefits and Expenses:
70191, October 29, 1987). The plaintiff must return to the defendant all benefits
he may have received from the latter, or reimburse
him for expenses that may have redounded to the
2. Plaintiff not in possession
plaintiff’s benefit (CIVIL CODE, Art. 479).
– 10 years (ordinary) or 30 years (extraordinary)
or estoppel by laches will be applicable (DE
Restoration is required whenever the complainant is
LEON, Property, supra at 225).
shown to be morally bound to reimburse the
defendant. Even if the debt is not enforceable by
An action for reconveyance based on implied
reason of the statute of limitations, payment may be
trust partakes the nature of an action for quieting
required by the court (DE LEON, Property, supra at
of title if the plaintiff remains in possession of the
229).
subject property, thereby making the action
imprescriptible
REASON: “He who seeks equity must do equity”
The Court, in a catena of cases, has permitted the
(Id.).
filing of an action for reconveyance despite the lapse
of more than ten (10) years from the issuance of title.
PURPOSE: To quiet title, not to obtain pecuniary
The common denominator of these cases is that the
interest (Id.).
plaintiffs therein were in actual possession of the
disputed land, converting the action from
reconveyance of property into one for quieting of title.
Imprescriptibility is accorded to cases for quieting of
title since the plaintiff has the right to wait until his RUINOUS BUILDINGS
possession is disturbed or his title is questioned
before initiating an action to vindicate his right
AND TREES IN DANGER
(Ocampo v. Ocampo, Sr., G.R. No. 227894, July 5, OF FALLING
2017).
(ARTS. 482-483)
THE ACTION TO QUIET TITLE DOES NOT
APPLY (BIC-SIQ):
1. To Boundary disputes; AS TO BUILDINGS:
If a building, wall, column, or any other construction
The courts cannot, in an action for quieting of title, is in danger of falling, the owner shall be obliged to
order the determination of the boundaries of the demolish it or to execute the necessary work in order
claimed property, as that would be tantamount to to prevent it from falling. (CIVIL CODE, Art. 482, Par.
awarding to one or some of the parties the 1).
disputed property in an action where the sole
issue is limited to whether the instrument, record, If the proprietor does not comply with this obligation,
claim, encumbrance or proceeding involved the administrative authorities may order the
demolition of the structure at the expense of the the entire land or thing. (Uy v. Estate of Vipa
owner, or take measures to insure public safety Fernandez, G.R. No. 200612, April 5, 2017).
(CIVIL CODE, Art. 482, Par. 2).
The nature of possession of a co–owner is like that of
The complainant must show that his property is a trustee and shall not be regarded as adverse to the
adjacent to the dangerous construction, or must have other co–owner but in fact beneficial to all of them
to pass by necessity in the immediate vicinity. (Salvador v. CA, G.R. No. 109910, April 5, 1995).

Lack of knowledge of the falling condition of the As the right of common dominion which two or more
structure will not excuse the owner from liability. persons have in a spiritual part of a thing not
materially or physically divided (Sanchez v. CA, GR
The proprietor of a building or structure is responsible No. 108947, September 29, 1997).
for the damages resulting from its total or partial
collapse, if it should be due to the lack of necessary REQUISITES: (POL)
repairs. (CIVIL CODE, Art. 2190). 1. Plurality of owners;
2. The Object of ownership must be a thing or right
For damages caused by defects in the construction, which is undivided; and
the contractor is responsible for the damages within 3. Each co–owner’s right must be Limited only to his
15 years from the completion of the same (CIVIL ideal share of the physical whole (DE LEON,
CODE, Art. 1723). Property, supra at 233).

AS TO TREES: CHARACTERISTICS: (PNoCS-LeG)

Whenever a large tree threatens to fall in such a way 1. Plurality of subjects/owners;
as to cause damage to the land or tenement of 2. There is No mutual representation by the co–
another or to travelers over a public or private road, owners;
the owner of the tree shall be obliged to fell and 3. It exists for the Common enjoyment of the co–
remove it; and should he not do so, it shall be done owners;
at his expense by order of the administrative 4. There is a Single object which is not materially
authorities. (CIVIL CODE, Art. 483). divided;
5. It has no distinct Legal personality; and
If damages were caused by the falling of trees 6. It is Governed first of all by the contract of the
situated at or near highways or lanes, the owner of parties; otherwise, by special legal provisions;
the tree is liable for damages under the law on quasi- and in default of such provisions, by the
delict if it is not caused by force majeure (CIVIL provisions of Title III on co–ownership (Id. at
CODE, Art. 2191, Par. 3). 234).

SOURCES: (C2LOST)
CO-OWNERSHIP 1.
2.
Contract;
Chance;
(ARTS. 484-501) 3. Law;
4. Occupation;
5. Succession; and
6. Testamentary disposition or donation inter vivos
CO-OWNERSHIP (Id. at 236-237).
There is co-ownership whenever the ownership of an
undivided thing or right belongs to different persons CO–OWNERSHIP V. PARTNERSHIP
(CIVIL CODE, Art. 484). CO–OWNERSHIP PARTNERSHIP
By the nature of co–ownership, a co–owner cannot As to Creation
point to any specific portion of the property owned in
common as his own because his share in it remains Can be created Can be created only by
intangible and ideal (Avila v. Sps. Barabat, G.R. No. without the formalities contract, express or
141993, March 17, 2006). of a contract. implied.

Before the partition of a land or thing held in common, As to Juridical Personality

no individual or co-owner can claim title to any
definite portion thereof. All that the co-owner has is Has no juridical or Has juridical personality
an ideal or abstract quota or proportionate share in legal personality. distinct from the partners.
 CO–OWNERSHIP PARTNERSHIP CO–OWNERSHIP JOINT OWNERSHIP

As to Purpose As to Right to Dispose Share

Purpose is collective Purpose is to obtain Each co-owner may Each joint-tenant cannot
enjoyment of the thing. profits. dispose of his ideal dispose of his own share
share without the without the consent of all
consent of the others. the others.
As to Disposition of Shares
As to Effect of Death
Co–owner can A partner, unless
dispose of his shares authorized, cannot In case of death, the In case of death, the
without the consent of dispose of his share and share of the co-owner share of the joint-tenant
the others with the substitute another as a descends to his goes or accrues to the
transferee partner in his place. estate. other joint-tenants.
automatically
becoming a co–owner. As to Prescription

As to Existence of Mutual Agency Prescription runs Prescription does not run

against all co-owners, against all the joint-
There is no mutual A partner can generally even if one of them tenants, if one of them is
representation. bind the partnership. happens to be a a minor or is under legal
minor. disability.
As to Distribution of Profits
(Id. at 237-238).
Distribution of profits Distribution of profits is
must be proportional subject to the stipulation RIGHTS OF EACH CO–OWNER AS TO
to the respective of the parties. THE THING OWNED IN COMMON:
interests of the co– (US-BRA-PLDP)
owners.
1. To Use the thing owned in common (CIVIL
As to Effect of Death or Incapacity CODE, Art. 486).

A co–ownership is not Death or incapacity Limitations:

dissolved by the death dissolves the partnership a. The co-owner must do so in accordance with
or incapacity of a co– the purpose for which it is intended; and
owner.
NOTE: Mere tolerance on the part of the co-
As to Formal Requisites owners cannot legalize the change in the use
of a thing from that intended by the parties.
No public instrument May be made in any form
needed even if real except when real b. In such a way as not to injure the interest of
property is the object property is contributed. the co-ownership or prevent the other co-
of the co–ownership.
owners from using it according to their rights
As to Agreement on the Period (CIVIL CODE, Art. 486).

An agreement to keep There may be agreement Illustration: A and B owned in common a two-
the thing undivided for as to a definite term story house. The upper floor was used as a
a period of more than without limit set by law. dwelling; the lower was available for rent by
ten (10) years is void. stores. If A, lives in a room on the upper floor, and
uses a room on the lower floor as an office, can
(Id. at 238-239). B demand rent?
a. No rent for the upper floor can be demanded,
CO-OWNERSHIP V. JOINT OWNERSHIP for A was exercising her right as co-owner,
CO–OWNERSHIP JOINT OWNERSHIP without prejudicing B who, had she wanted,
could have also lived in another room of said
As to Extent of Ownership floor, and who therefore could not have been
prejudiced.
Each co-owner owns Each joint-tenant and all b. Half-rental may be demanded for the use of
his ideal share in the of them own the whole the lower floor. Rent could be asked because
whole property. property. others could have rented the same, but only
half should be given because A was a co-
 owner (Pardell v. Bartolome, G.R. No. 4656, NOTE: No such waiver shall be made if it is
November 18, 1912). prejudicial to the co-ownership (CIVIL CODE, Art.
488).
2. To Share in the benefits and charges in
proportion to the interest of each. Any Renunciation is not allowed if the co-ownership
stipulation to the contrary is void (CIVIL will be prejudiced, as in the case of a house which
CODE, Art. 485). is badly in need of repairs in order to prevent a
collapse, the waiver in this case is void, in which
REASON: It is contrary to the essence of co- case the other co-owner may proceed to have it
ownership (2 PARAS, supra at 323). repaired, and the co-owner who has made a
previous renunciation would still be liable (2
The interests of the co-owners are presumed TOLENTINO, supra at. 177).
equal unless the contrary is proved (CIVIL
CODE, Art. 485). Rules on Renunciation:
a. If the renunciation is in favor of the co-owner
NOTE: Art. 485 speaks of “stipulation in a creditor who has not yet been paid, said
contract.” If the co-ownership is created other creditor must give consent. This is a case of
than by a contract, such as by will or by donation, dacion en pago;
the share of the co-owners need not be b. If the renunciation is made in favor of the co-
proportionate to their respective interests (2 owner/s, a novation (in the form of
PARAS, supra at 322). substitution of debtor/ subjective novation)
would result. Thus, consent of said other co-
If a co-owner has paid the taxes to prevent owner/s and of the creditor is required (2
forfeiture of the common property for tax PARAS, supra at 333).
delinquency, he could compel contribution from
his co-owners (Id. at 323). Note: The creditor's consent would be needed
only if expenses have already been incurred,
3. To the Benefits of prescription: otherwise, there would be as yet no creditor (DE
LEON, 2011, Property, supra at 245).
prescription by one co–owner benefits all
Reimbursement covers only necessary expenses
(DE LEON, Property, supra at 267).
(2 PARAS, supra at 333).
4. Repairs and taxes: Each co-owner shall
5. To consent to Alterations: None of the co-
have a right to compel the other co-
owners shall, without the consent of the
owners to contribute to the expenses of
others, make alterations in the thing
the preservation of the thing or right
owned in common, even though benefits
owned in common and to the taxes (CIVIL
for all would result therefrom (CIVIL CODE,
CODE, Art. 488).
Art. 491).
Repairs for preservation may be made at will of
However, if the withholding of the consent by one
one of the co-owners, but he must, if practicable,
or more of the co-owners is clearly prejudicial to
first notify his co-owners of the necessity for such
the common interest, the courts may afford
repairs (CIVIL CODE, Art. 489).
adequate relief (CIVIL CODE, Art. 491).
The co-owners who should have been notified
Alteration
will not be required to contribute to expenses
An act by virtue of which a co–owner changes the
which are excessive. They may show, for
thing from the state in which the others believe it
instance, that if the required notice had been
should remain, or withdraws it from the use to
given, they could have obtained other means of
which they desire it to be intended. It is not limited
effecting the repairs which are not as costly as
to material or physical changes (2 TOLENTINO,
that availed of by the co-owner who made or
supra at 192).
ordered them (2 TOLENTINO, supra at 179).
NOTE: However, it should not be understood to
Any one of the co-owners may exempt himself
include any change which a co-owner may make
from this obligation by renouncing so much of his
in the common property, but only that which
undivided interest as may be equivalent to his
modifies and limits, and above all, prejudices the
share of the expenses and taxes (CIVIL CODE,
condition of the thing or its enjoyment by the
Art. 488).
others (Id.).
 For the purpose of legalizing the alteration of the and not for the co-ownership, the action will not
common property, the consent may be either prosper (Adlawan v. Adlawan, G.R. No. 161916).
express or tacit. A co-owner who knows the
alteration but does not interpose any objection is 9. To demand Partition at any time (CIVIL
deemed to tacitly consent to such alteration (Id.). CODE, Art. 494).

Effects of an Illegal Alteration: GENERAL RULE: Partition is demandable by

A co-owner who makes alteration without the any of the co–owners as a matter of right at any
express or implied consent of the other co- time (CIVIL CODE, Art. 494).
owners acts in bad faith because he does so as
if he were the sole owner. Thus, EXCEPTIONS: (SC-LUPA)
a. The co-owner responsible may lose what he a. When there is a Stipulation against it; but not
has spent; to exceed 10 years. However, the term may
b. Demolition can be compelled; be extended as many times as the co-owners
c. He would be liable for losses and damages; may stipulate but every extension must not
and exceed 10 years (CIVIL CODE, Art. 494);
d. Whatever benefits the co-ownership derives b. When the Condition of indivision is imposed
will belong to it (3 MANRESA as cited in 2 by the donor or testator; but not to exceed 20
PARAS, supra at 349). years (CIVIL CODE, Art. 494);
c. When the Legal nature of the community
6. To Protest against seriously prejudicial prevents partition;
decisions of the majority (CIVIL CODE, Art. d. When partition would render the thing
492). Unserviceable (CIVIL CODE, Art. 495);
e. When partition is Prohibited by law (CIVIL
7. Legal redemption: to be exercised within CODE, Art. 494); and
30 days from written notice of sale of an f. When Another co–owner has possessed the
undivided share of another co–owner to a property as an exclusive owner for a period
sufficient to acquire it by prescription.
stranger (CIVIL CODE, Arts. 1620 and 1623).

8. To Defend the co–ownership’s interest in PERPENDICULAR OWNERSHIP

court (DE LEON, Property, supra at 253-255). One where the different stories of a building belong
to different persons, as distinguished from an
Anyone of the co-owners may bring an action for ordinary case of co-ownership where all the floors
ejectment (CIVIL CODE, Art. 487). and everything else belong to all co-owners (CIVIL
CODE, Art. 490).
Art. 487 allows a co-owner to bring an action for
ejectment which covers all kinds of actions for the NOTE: The above form of ownership is different from
Recovery of Possession, including Forcible Entry condominium (DE LEON, Property, supra at 252). A
and Unlawful Detainer, without the necessity of horizontal co-ownership is one where various units
joining all the other co-owners as co-plaintiffs are in one plane as when one-story units all set on
because it is deemed to be instituted for the the ground (2 PARAS, supra at 332).
benefit of all (2 PARAS, supra at 329; Heirs of
Ampil v. Manahan, G.R. No. 175990, October 11, RULES IN THE ABSENCE OF CONTRARY
2012). PROVISION IN THE TITLES OF
OWNERSHIP OR AGREEMENT (CIVIL
Only one of the co-owners, namely the co-owner
CODE, Art. 490):
who filed the suit for the recovery of the co-owned
property, is an indispensable party thereto. The 1. Proportionate contribution is required for the
other co-owners are not indispensable parties. preservation of:
They are not even necessary parties, for a a. The main walls;
complete relief can be afforded in the suit even b. The party walls;
without their participation, since the suit is c. The roof; and
presumed to have been filed for the benefit of all d. Other things or areas used in common.
co-owners (Catedrilla v. Lauron, G.R. No.
179011, April 15,2013). 2. Each floor owner must bear the expenses of his
floor.
If the action is for the benefit of the plaintiff alone,
such that he claims the possession for himself 3. Expenses of all owners pro rata:
a. The floor of the entrance;
b. The front door;
 c. The common yard;
modifications made are changes, modifications
d. Sanitary works common to all; and
simple administration. made are alterations.
e. Stairs from the entrance to the first story.
(2 TOLENTINO, supra at 195).
4. Stairs are to be maintained from story to story, by
the users (stairs from entrance to first story at the 2. Enjoyment; and
expense of all owners aside from the owner of the
ground floor, the stairs from the second story at 3. Improvement or embellishment (DE LEON,
the expense of all except the owner of the ground Property, supra at 255).
floor and first story, and so on).
Majority
NOTE: Ground floor, if any, is distinguished from Consists of co-owners who represent the controlling
the first story (2 PARAS, supra at 337). interest in the object of the co-ownership (CIVIL
CODE, 492) i.e., at least more than 50% of the
Ground Floor – The floor of a building most nearly financial interest (DE LEON, Property, supra at 256).
on a level with the ground (MERRIAM-
WEBSTER, 2017). LIMITATIONS:
1. Before a decision is made, there should first be a
First Floor – The floor next above the ground floor
notice to the minority so that they can be heard;
(Id.).
2. The majority would be justified in proceeding only
when the urgency of the case and the difficulty of
THE FOLLOWING QUESTIONS ARE meeting with them render impracticable the
DETERMINED BY THE MAJORITY OF giving of such notice; and
INTERESTS: 3. Minority may appeal to the court when:
1. Administration or Management; a. There is no real majority;
b. Decision is seriously prejudicial to individual
Characteristics: rights of co-owners;
a. Those that do not involve an alteration; c. There is fraud;
b. Are renewable from time to time; d. Alteration is agreed upon; and
c. Do not bind the community for a long time in e. Refusal to correct abuse of administration
the future (transitory effect); (2 PARAS, supra, at 357).
d. Do not give rise to a real right over the thing
owned in common (REYES-PUNO, ACTIONS REQUIRING THE CONSENT
Philippine Civil Law, supra at 73); OF CO-OWNERS
e. Do not affect the substance or nature of the ACTIONS CONSENT NEEDED
thing; and
f. For the common benefit of all (2 PARAS, Repairs, ejectment One co-owner (CIVIL
supra at 357). actions CODE, Art. 489)

NOTE: Minority may appeal to the court against Alterations or Acts of All of the co-owners
the majority’s decision if the same is seriously Ownership (CIVIL CODE, Art. 491)
prejudicial (CIVIL CODE, Art. 492).
All others (e.g. useful Financial majority of the
ADMINISTRATION V. ALTERATION improvements, co-owners (CIVIL
embellishments, CODE, Arts. 489 and
ADMINISTRATION ALTERATION administration and 492).
better enjoyment).
As to Nature

Refers to the enjoyment Has a more permanent RIGHTS AS TO THE IDEAL SHARE OF
of a thing and is of a result and relate to the
transitory character. substance or form of
EACH CO–OWNER (CIVIL CODE, ART.
the thing. 493)
1. Each has full ownership of his part and of his
As to Necessity of Modification share of the fruits and benefits;
2. Right to substitute another person in its
When nature of a thing When nature of the enjoyment, EXCEPT when personal rights are
requires modification or thing does not require involved or for the purpose of giving the thing a
changes (such as an modification or different use from that agreed upon;
industry or business),
 Personal rights – used in its real meaning and not (Magsano v. Pangasinan Savings and Loan
in its legal or technical sense; it is the right which Bank, Inc., G.R. No. 215038, October 17, 2016).
cannot be transferred because it affects the
personal relations of the co-owners with one In such cases, the remedy is to ask for partition,
another. not to ask for the nullity of the sale (Aguirre, et. al
v.CA, G.R. No. 122249, January 29, 2004).
3. Right to alienate, assign, or mortgage, dispose or
encumber; Forged Special Power of Attorney to mortgage a
4. Right to exempt himself from necessary real property made by a co-owner shall be valid
expenses and taxes by renouncing part of his only insofar as the share of the forging co-owner
interest in the co-ownership (2 PARAS, supra at (Rural Bank of Cabadbaran, Inc. v. Melecio-Yap,
359-360); and G.R. No. 178451, July 30, 2014).
5. He may demand partition of the thing owned in
common, in so far as his share is concerned DONATION OF CONJUGAL PROPERTY
(DE LEON, Property, supra at 257). The spouses are the absolute owners of their
undivided one-half interest over a conjugal property.
NOTE: This right is without prejudice to the The donation by one spouse of a conjugal property
exercise by the others of the right of legal without the consent of the other spouse will transfer
redemption under Art. 1620. title only to the extent of the one-half undivided
portion of that property by the donor-spouse. The
SALE OR MORTGAGE OF COMMON donation is not wholly void ab initio. Accordingly,
PROPERTY vendees in the subsequent sale of the subject
1. Undivided portion property, is confined only to the one-half undivided
– transferee does not acquire any specific or portion thereof (Spouses Carlos v. Tolentino, G.R.
determinate physical portion of the whole No. 234533, June 27, 2018).
property (Id. at 258).
RIGHT OF A CO-OWNER TO DEMAND
2. Definite portion PARTITION
– valid; subject to the interest of the vendor (Id. at No co-owner shall be obliged to remain in the co-
259). ownership. Each co-owner may demand at any time
the partition of the thing owned in common, insofar as
3. Whole property his share is concerned (CIVIL CODE, Art.494).
– valid only insofar as the co-owner’s share is
concerned, unless the sale is authorized by the REASONS:
other co-owners’ right to renounce part of his 1. Law discourages co-ownership; and
interest to reimburse necessary expenses 2. To remain in the co-ownership is to subject a
incurred by another co–owner (Id. at 260). person to the desires of the rest; conflicts in
management being bound to arise (2 PARAS,
4. Transactions entered into by each co– supra at 362).
owner only affect his ideal share (Id.).
PROHIBITION TO PARTITION BECAUSE
When a co-owner sells the whole property as his, OF AN AGREEMENT (CIVIL CODE, Art.494):
the sale affects only the seller’s share pro indiviso
1. Period must not extend more than 10 years;
and the transferee gets only what corresponds to
2. If it exceeds 10 years, the stipulation is valid only
his grantor’s share in the partition of the property
insofar as the first 10 years;
owned in common. Since a co-owner is entitled
3. There can be an extension but only after the
to sell his undivided share, a sale of the entire
original period has expired; and
property by one co-owner without the consent of
4. After the first extension, there can be another,
the other co-owners is not null and void; only the
and so on indefinitely, as long as for each
rights of the co-owners/seller are transferred,
extension, the period of 10 years is not exceeded
thereby making the buyer a co-owner of the
(3 MANRESA as cited in 2 PARAS, supra at 362).
property (Oesmer v. Paraiso Development Corp.,
G.R. No. 157493, February 5, 2007).
PARTITION
The effect of the alienation or the mortgage, with Partition is the separation, division, and assignment
respect to the co-owners, shall be limited to the of a thing held in common among those to whom it
portion which may be allotted to him in the may belong. It may be effected extrajudicially by the
division upon the termination of the co-ownership heirs themselves through a public instrument filed
before the register of deeds (Espinas-Lanuza v. As between the parties, a public instrument is neither
Luna, Jr., G.R. No. 229775, March 11, 2019). constitutive nor an inherent element of a contract of
partition. Since registration serves as constructive
An action for partition is at once an action for notice to third persons, an oral partition by the heirs
declaration of co-ownership and for segregation and is valid if no creditors are affected. Moreover, even
conveyance of a determinate portion of the properties the requirement of a written memorandum under the
involved (Balo v. CA, G.R. No. 129704, September statute of frauds does not apply to partitions effected
30, 2005). by the heirs where no creditors are involved
considering that such transaction is not a conveyance
REASON: The policy of the law is not to favor co- of property resulting in change of ownership but
ownership because it is not conducive to the merely a designation and segregation of that part
development of the community property particularly which belongs to each heir (Espinas-Lanuza v. Luna,
where it involves real estate (DE LEON, Property, Jr., G.R. No. 229775, March 11, 2019).
supra at 272).
Mere receiving of rents or profits, payment of taxes,
NOTE: The thing itself may be physically divided, or or construction of a fence or building would not be
if not, its value may be partitioned (7 MANRESA as sufficient proof of exclusive or adverse possession
cited in 2 PARAS, supra at 362; Art. 1079). Partition because anyone in the co-ownership may do it
is governed primarily by the Civil Code and (Laguna v. Levantino, G.R. No. L-47386, April 18,
suppletorily by the pertinent provisions of the Rules 1941).
of Court particularly Rule 69.
The act of executing the affidavit of self–adjudication
GENERAL RULE: Under Art. 494, Par. 5 of the Civil did not constitute sufficient act of repudiation. In fact,
Code, prescription does not run in favor of or against there was bad faith of the co–heir in feigning sole
a co-owner or co-heir. ownership of the property to the exclusion of the other
co–heirs (Galvez v. CA, G.R. No. 157954, March 24,
REASON: Possession of the co-owner or co-heir is 2006).
ordinarily not adverse to the others, but, in fact,
beneficial to all of them. The possession of a co- While it is true that registration under the Torrens
owner is similar to that of a trustee (DE LEON, system is constructive notice of title, the Torrens title
Property, supra at 267). does not furnish a shield for fraud. Thus, where one
registered the property in question in his name in
EXCEPTION: Where a co-owner or co-heir fraud of his co–heirs, prescription can only be
repudiates the co-ownership or co-heirship, deemed to have commenced from the time the latter
prescription begins to run from the time of discovers the fraudulent act (Adille v. CA, G.R. No. L-
repudiation, subject to the concurrence of following 44546, January 29, 1988).
conditions: (PUKE)
1. His Possession is open, continuous, exclusive, Redemption of the whole property by the co-owner
and notorious; does not vest in him sole ownership over the said
2. The co-owner has performed Unequivocal acts of property. Redemption duly made within the period
repudiation amounting to an ouster of the other prescribed by law inures to the benefit of the co-
co-owners; ownership and does not put an end to its existence
3. Such positive acts of repudiation have been (Mariano v. CA, G.R. No. 101522, May 28, 1993).
made Known to the other co-owners; and
4. The Evidence thereof is clear and convincing RIGHTS/PARTICIPATION OF
(Robles v. CA, G.R. No. 123509, March 14, CREDITORS AND ASSIGNEES OF THE
2000).
CO-OWNERS IN THE PARTITION (CIVIL
NOTE: A co-owner cannot, without the conformity of CODE, ART. 497)
the other co-owners or a judicial decree pursuant to 1. Scope of Creditors or Assignees
Rule 69 of the Rules of Court, adjudicate to himself in As the law does not distinguish, creditors include
fee simple a determinate portion of the lot owned in all kinds of creditors provided they became so
common, to the exclusion of other co-owners (Del during the existence of the co-ownership.
Blanco v. IAC, G.R. No. 72694, December 1, 1987).
Assignees are transferees of interests of one or
An agreement of partition, though oral, is valid and more of the co-owners (DE LEON, Property,
consequently binding upon the parties (Caro v. CA, supra at 277).
G.R. No. L-46001, March 25, 1982).
 Illustration: A, B, and C are co-owners. A sold NOTE: The sale shall be resorted to only when the
his share to X. Who is entitled to participate in the property cannot be divided without prejudice to the
partition, A or X? co-owners, and the co-owners cannot agree (DE
LEON, supra at 267).
Answer: It depends.
a. If A had sold his whole interest, and has PROTECTION ON THE RIGHTS OF THIRD
delivered same, then X should participate (X PERSONS
is participating as a co-owner).
The partition of a thing owned in common shall not
b. If A had sold only part of his share, or even prejudice third persons, who shall retain the rights of
if he sold his entire share, he has not yet mortgage, servitude or any other real rights belonging
delivered same to X, both A and X are to them before the division was made. Personal rights
allowed to participate in the partition. (A pertaining to them against the co-ownership shall
participating as co-owner and X as assignee) also remain in force, notwithstanding the partition
(2 PARAS, supra at 382 - 383). (CIVIL CODE, Art. 499).

2. Right of notice of partition EFFECTS OF PARTITION (CIVIL CODE,

While the law does not expressly require ARTS. 500 AND 501)
previous notice of the proposed partition be given 1. Mutual accounting for the benefits received
to the creditors and assignees, since they are (CIVIL CODE, Art. 500);
granted the right to participate, they have also the 2. Mutual reimbursements for expenses (i.e.,
right to be notified thereof, such that in the necessary expenses, taxes, and others in proper
absence of such notice, the partition will not be cases) (CIVIL CODE, Art. 500);
binding on them (De Santos v. Bank of the 3. Indemnity for damages caused in case of
Philippine Islands, G.R. No. 44065, July 30, negligence or fraud (CIVIL CODE, Art. 500);
1938). 4. Reciprocal warranty for defects of title or quality
of the portion assigned to a co-owner (CIVIL
3. Right to object to or impugn CODE, Art. 501);
a. If notice is given, it is their duty to appear and 5. Each former co-owner is deemed to have had
make known their position; they may concur exclusive possession of the part allotted to him
with proposed partition or object to its being for the entire period during which the co-
affected. possession lasted (CIVIL CODE, Art. 543); and
b. If no notice is given, the creditors or 6. Partition confers upon each, the exclusive title
assignees may question the partition already over his respective share (CIVIL CODE, Art.
made (DE LEON, Property, supra at 278- 1091).
279).
GROUNDS FOR THE EXTINGUISHMENT
However, they cannot impugn any partition OF CO-OWNERSHIP: (JEx-CoS-M-LEx-
already executed, unless:
a. There has been fraud; or
T2)
b. The partition was made notwithstanding a 1. Judicial partition;
formal opposition presented to prevent it 2. Extrajudicial partition;
(CIVIL CODE, Art. 497).
NOTE: The possession of a co-owner cannot
NOTE: The debtor or assignor has always the ripen into ownership because the possession is
right to maintain its validity of the partition (DE merely in the concept of a trustee for the other
LEON, Property, supra at 279). co-owners (Salvador v. CA, G.R. No. 55691, May
21, 1992).
PARTITION IN CASE CO-OWNERS
There is juridical dissolution of co-ownership
CANNOT AGREE/THING IS when the thing is sold, either publicly or privately,
ESSENTIALLY INDIVISIBLE (CIVIL CODE, to a third person (Republic v. Baltazar-Ramirez,
ART. 498) GR. No. 148103, July 27, 2006).
Whenever the thing is essentially indivisible and
the co-owners cannot agree: 3. When by prescription, one Co-owner has
Firstly, the property may be adjudicated to one of the acquired the whole property by adverse
co-owners, who shall indemnify the other. possession as against all the others, and
repudiating unequivocally the ownership of the
Otherwise, it shall be sold, and the proceeds other;
distributed (DE LEON, Property, supra at 280).
4. When a Stranger acquired by prescription the MINERALS (CIVIL CODE, Art. 519)
thing owned in common; Laws Governing Minerals:
5. Merger in one co-owner; 1. Before 1902: R.D. Sobre Mineria 1867;
6. Loss or destruction; 2. Between 1902-1906: The Philippine Bill of 1902
7. Expropriation (PARAS, Property, supra at 348); and Legislative Acts;
8. By the Termination of the period agreed upon or 3. Art. XII of the 1987 Constitution; and
imposed by the donor or testator, or of the period 4. Present: Mineral Resources Development
allowed by law (CIVIL CODE, Art. 494, Pars. 2 Decree of 1974 (P.D. No. 463) and the Civil Code
and 3); and of the Philippines.
9. By the sale by the co-owners of the thing to a
Third person and the distribution of its proceeds Minerals
among them (CIVIL CODE, Art. 498). All inorganic substances found in nature, whether in
solid, liquid, gaseous, or any intermediate state, with
the exception of soil which supports the organic life,
and of ordinary earth, gravel, sand, and stone which
SOME SPECIAL are used for building or construction purposes (C.A.
PROPERTIES No. 137, Sec. 7).

(ARTS. 502-522) Mineral Lands

Are those in which minerals exist in sufficient quantity
or quality to justify the necessary expenditures to be
incurred in extracting and utilizing such materials
WATERS (CIVIL CODE, Arts. 502-518) (P.D. No. 463, Sec. 2).
Laws Governing Waters:
1. Civil Code of the Philippines; TRADEMARK AND TRADE NAMES (CIVIL
2. Spanish Law on Waters of August 3, 1866; CODE, Arts. 520 and 523)
3. The Irrigation Acts, Act 2152 and its Mark
amendments; Is any visible sign capable of distinguishing the goods
4. Water Power Act No. 4062; or services of an enterprise and shall include a
5. Art. XII, Sec. 2 of the 1987 Constitution; and stamped or marked container of goods (R.A. No.
6. Water Code of the Philippines (P.D. No. 1067). 8293, Sec. 121).
Classification: Service mark is used in the sale or advertising of
1. Waters public per se (water is the principal); the services to identify the services of one person and
bed follows the character of the water. distinguish them from services of others, and includes
without limitation the marks, names, symbols, titles,
Running water (CIVIL CODE, Art. 502). designations, slogans, character names, distinctive
features of radio or other advertising (DE LEON,
2. Waters public or private according to their bed Property, supra at 327).
(water is accessory to bed).
a. Subterranean waters (CIVIL CODE, Arts. Trade Name
502 and 503); Is a name or designation identifying or distinguishing
b. Subterranean waters rising to the surface an enterprise (R.A. No. 8293, Sec. 121).
continuously or intermittently (CIVIL CODE,
Arts. 502 and 503); Laws Governing Trademarks and Trade names:
c. Non-running water (CIVIL CODE, Arts. 502 1. Intellectual Property Code (R.A. No. 8293); and
and 503); and 2. Civil Code of the Philippines
d. Rain water (CIVIL CODE, Arts. 502 and 503).

3. Waters public by special provision.

a. Waters within the zone of public works, even
if constructed under a contract (CIVIL CODE,
Art. 502);
b. Private water after leaving the estate of origin
(CIVIL CODE, Arts. 502, 507 and 514); and
c. Waste water of fountains, sewers, and public
establishments (CIVIL CODE, Art. 502).
 incapable of understanding the import of
POSSESSION their actions (Id.).

(ARTS. 523-561) iii. By virtue of one’s own Right – in his own

name or in that of another (Id.).

POSSESSION DISTINGUISHED FROM

CONCEPT: OWNERSHIP
1. As an act 1. A person may be declared the owner but he may
– (holding) the holding of a thing or the enjoyment not be entitled to possession.
of a right with the intention to possess in one’s 2. A person may have introduced improvements
own right (CIVIL CODE, Art. 523). thereon of which he may not be deprived without
due hearing. He may have other valid defenses
2. As a fact to resist surrender of possession.
– (existence) when there is holding or enjoyment 3. Judgment for ownership does not necessarily
(CIVIL CODE, Art. 523). include possession as a necessary incident. (Id.
At 458).
The fact of possession gives rise to certain rights
and presumptions, such as the right to be There is ownership when a thing pertaining to one
respected in his possession, and should he be person is completely subjected to his will in a manner
disturbed therein, he shall be protected in or not prohibited by law and consistent with the rights of
restored to said possession (CIVIL CODE, Art. others. Possession is the holding of a thing or the
539). enjoyment of a right. Literally, to possess means to
actually and physically occupy a thing with or without
Possession is not a definitive proof of ownership right (DE LEON, Property, supra at 325).
nor is non-possession inconsistent therewith
(Heirs of G. Bofill v. CA, G.R. No. 107930,
DEGREES:
October 7, 1994). It is well-established that
ownership and possession are two entirely 1. Grammatical Degree
different legal concepts (Heirs of Spouses Arcilla Possession without any title whatsoever – mere
v. Teodoro, G.R. No. 162886, August 11, 2008). holding without any right at all (e.g., thief or
squatter) (Id. at 339);
3. As a right
– (consequences) the right of a person to hold or 2. Juridical Possession
enjoy to the exclusion of all others having better Possession with juridical title – predicated on
right than the possessor. juridical relation existing between the possessor
and the owner (e.g., lessee, usufructuary,
a. Jus possidendi– right to possession which depositary, agent, pledgee and trustee) (Id.);
is incidental to or included in the right of
ownership. (e.g., I own a house; therefore, I 3. Real Possessory Right
am entitled to possess it) (PARAS, supra at Possession with just title – the possession of an
456); or adverse claimant whose title is sufficient to
b. Jus possessionis – right of possession transfer ownership but is defective (e.g., when
independent from the right of ownership. the seller is not the true owner or could not
(e.g., I am renting a house form C. Although transmit his rights thereto to a possessor who
I am not the owner, still by virtue of the lease acted in good faith) (Id.); or
contract, I am entitled to possess the same)
(Id.). 4. Dominium
Possession with a title in fee simple – derived
Requisites (RIO): from the right of dominion or possession of an
i. Occupancy, apprehension, or taking of a owner; the highest degree of possession (Id.).
thing or right (possession in fact) which
may be actual or constructive (Id. at CLASSES:
457);
1. According to Names under which
ii. Deliberate Intention to possess (animus
Possession May be Exercised
possidendi); and
a. In one’s own name (CIVIL CODE, Art. 524) –
NOTE: An insane or demented person where possessor claims the thing for himself;
cannot acquire possession as they are and
 b. In the name of another (CIVIL CODE, Art. adverse and in the concept of an owner, must
524) – for whom the thing is held by the fail. Being the owners of the subject property,
possessor. respondents have the right to recover
i. Voluntary – as when an agent possesses possession from the petitioner because such
for the principal (by virtue of an right is imprescriptible. Even if the
agreement); Department of Education has been
ii. Necessary or Legal – when exercised by occupying the subject property for a
virtue of law, such as possession in considerable length of time, respondents, as
behalf of incapacitated persons, a lawful owners, have the right to demand the
mother for her child and juridical entities; return of their property at any time as long as
or the possession was only through mere
iii. Unauthorized – This will become the tolerance (Department of Education vs. Heirs
principal’s possession only after there of Banguila, G.R. No. 230399, June 20,
has been ratification without prejudice to 2018).
the effects of negotiorum gestio (2
PARAS, supra at 461). b. In the concept of holder, possessor holds it
merely to keep or enjoy it, the ownership
NOTE: Landlord is in actual possession pertaining to another person (CIVIL CODE,
through the tenant. Hence, he can also bring Art. 525).
a suit against an intruder (Simpao v. Dizon,
G.R. No. 452, April 30, 1902). Possessor acknowledges in another a
superior right which he believes to be
2. According to the Concept of Possession ownership, whether his belief be right or
wrong (Carlos v. Republic, G.R. No. 164823,
a. In the concept of owner (enconcepto de August 31, 2005).
dueno) – possessor of thing or right, by his
actions, is considered or believed by others NOTE: There can be possession in concept
as the owner, regardless of good or bad faith of both owner and holder or in neither (DE
of the possessor, recognizing no title of LEON, Property, supra at 334).
ownership in another (CIVIL CODE, Art.
525). Although the taxable person who has actual
and beneficial use and possession of a
Only the possession acquired and enjoyed in property may be charged with the payment of
the concept of owner can serve as a title for unpaid realty tax due thereon, such
acquiring dominion (CIVIL CODE, Art. 540). assumption of liability does not clothe the
said person with the legal title or interest over
Such possessor is presumed to possess just the property. To rule otherwise would be to
title and cannot be obliged to show or prove defeat the true owner's rights by allowing
it (CIVIL CODE, Art. 541). lessees or other occupants of a property to
assert ownership by the simple expedient of
NOTE: It is essential that such flaw or defect redeeming the same at a tax delinquency
in the title must be such that it will have the sale (Onstott v. Upper Tagpos Neighborhood
effect of invalidating the title. If flaw or defect Association Inc., G.R. No. 221047,
does not result in invalidation of title, he is not September 14, 2016).
merely a possessor in good faith but the
owner. The phrase possessor in good faith 3. According to the Condition of the Mind
presupposes ownership of another (Pershing
Tan Cueto v. CA, G.R.No. L-35648, February a. In good faith, the possessor is not aware that
27, 1987). there is in his title or mode of acquisition a
flaw that invalidates it (CIVIL CODE, Art.
The Court unequivocally stated that laches 526).
can only apply to one whose possession of
the property was open, continuous, Requisites: (OVI)
exclusive, adverse, notorious, and in the i. Ostensible title or mode of acquisition;
concept of an owner for a prolonged period ii. Vice or defect in the title; and
of time. Additionally, physical possession iii. Possessor is Ignorant of the vice or
must be coupled with intent to possess as an defect and must have an honest belief
owner in order for it to be considered as that the thing belongs to him (CIVIL
adverse. Therefore, the petitioner's claim that CODE, Art. 526).
their possession of the subject lot was
 Mistake upon a doubtful or difficult question Article 528 of the New Civil Code provide that
of law may be the basis of good faith (CIVIL possession acquired in good faith does not
CODE, Art. 526). lose his character, except in a case and from
the moment facts exist which show that the
Mistake upon a doubtful or difficult question possessor is not unaware that he possesses
of law, which may be the basis of good faith the thing improperly or wrongfully.
under Art. 526, refers to honest error in the Possession in good faith ceases from the
application of the law or interpretation of moment defects in the title are made known
doubtful or conflicting legal provisions or to the possessors, by extraneous evidence or
doctrines, but is different from “ignorance of by suit for recovery of the property by the true
the law,” as when a person acquired property owner. Whatever may be the cause or the
by a deed which is absolutely void because it fact from which it can be deduced that the
is in violation of prohibitory laws (DE LEON, possessor has knowledge of the defect of his
Property, supra at 351). title or mode of acquisition, it must be
considered sufficient to show bad faith (Pen
b. In bad faith (CIVIL CODE, Art. 526) – Development Corporation and Las Brisas
possessor is aware of the flaw that Resort Corporation vs. Martinez Leyba Inc.,
invalidates his title. G.R. No. 211845, August 9, 2017).

Bad faith does not simply connote bad In the absence of other facts showing the
judgment or negligence; it contemplates a possessors knowledge, good faith is
state of mind affirmatively operating with interrupted from the receipt of service of
furtive design or some motive of self-interest judicial summons (DE LEON, Property,
or ill-will for ulterior purposes (Villanueva v. supra at 354).
Sandiganbayan, G.R. No. 105607, June
21,1993). If date of service of summons cannot be
determined, then good faith is deemed
Only personal knowledge of the flaw in one’s interrupted at the date of filing an answer
title or mode of acquisition can make him a (Id.).
possessor in bad faith. It is not transmissible
even to an heir (DE LEON, Property, supra EXTENT OF POSSESSION:
at 354).
1. Actual possession
– Occupancy in fact of the whole or at least
The distinction between possession in good
substantially the whole property; and
faith and possession in bad faith is of
importance principally in connection with the
receipt of fruits and the payment of expenses
2. Constructive possession
and improvements under Arts. 544 – 553; – Occupancy of part, in the name of the whole,
and the acquisition of ownership by under such circumstances that the law extends
prescription under Art. 1127. However, such the occupancy to the possession of the whole (Id.
distinction is immaterial in the exercise of the at 340).
right to recover under Art. 539 which speaks
of every possessor (Id. at 347). DOCTRINE OF CONSTRUCTIVE
POSSESSION
Bad faith is personal. Just because a person Possession in the eyes of the law does not mean that
is in bad faith does not mean that his a man has to have his feet on every square meter of
successors-in-interest are also in bad faith ground before it can be said that he is in possession
(Id. at 364). (Ramos v. Director of Lands G.R. No. 13298,
November 19, 1918).
A lessee who continues to stay on the
premises after the expiration of the lease Possession can be acquired not only by material
contract is deemed a usurper; as such he has occupation, but also by the fact that a thing is subject
become a possessor in bad faith (Republic v. to the action of one's will or by the proper acts and
Diaz, G.R. No. L-36486, August 6, 1979). legal formalities established for acquiring such right.
Possession can be acquired by juridical acts. These
Possession in good faith is converted to are acts to which the law gives the force of acts of
possession in bad faith from the moment possession. In one case, this Court has considered a
facts exist showing the possessor’s claimant's act of assigning a caretaker over the
knowledge of the flaw (CIVIL CODE, Art. disputed land, who cultivated the same and built a hut
528). thereon, as evidence of the claimant's possession of
the said land (Municipal Rural Bank of Libmanan,
Camarines Sur v. Ordoñez, G.R. No. 204663, ACQUISITION OF
September 27, 2017).
POSSESSION
Jurisprudence states that the law does not
require a person to have his feet on every square
(ARTS. 531-538)
meter of the ground before it can be said that he
is in possession thereof. In Bunyi vs. Factor, the
Court held that "visiting the property on
ESSENTIAL REQUIREMENTS FOR
weekends and holidays is evidence of actual or
physical possession. The fact of her residence ACQUIRING POSSESSION: (CI)
somewhere else, by itself, does not result in loss 1. Corpus (or thing physically detained); and
of possession of the subject property” (Spouses 2. Intent to possess (expressly or impliedly) (DE
Fahrenbach v. Pangilinan, G.R. No. 224549, LEON, Property, supra at 337).
August 8, 2017).
MANNER OF ACQUIRING POSSESSION
PRESUMPTIONS IN FAVOR OF THE (CIVIL CODE, ART. 531):
POSSESSOR: 1. Material occupation of the thing or
1. Good faith (CIVIL CODE, Art. 527); exercise of a right
2. Continuity of initial good faith (CIVIL CODE, Art. – Includes both actual delivery and constructive
528); delivery (traditio brevi manu and constitutum
3. Enjoyment in the same character in which possessorium);
possession was acquired until the contrary is
proved (CIVIL CODE, Art. 529); 2. Subjection to our will
4. Non–interruption in favor of the present – This includes tradition longa manu and traditio
possessor (CIVIL CODE, Art. 554) and of symbolica; or
hereditary property (CIVIL CODE, Art. 533);
5. Continuous possession by the one who recovers 3. Proper acts and legal formalities
possession of which he was wrongfully deprived established for acquiring such right
(CIVIL CODE, Art. 561); (DE LEON, Property, supra at 358).
6. Extension of possession of real property to all
movables contained therein (CIVIL CODE, Art.
542);
RULES IN THE ACQUISITION OF
7. Just title (CIVIL CODE, Art. 541); POSSESSION:
8. Continuity of possession of property unjustly lost 1. Personally or by the same person who is to enjoy
but legally recovered (CIVIL CODE, Art. 561); it;
9. Possession during intervening period (CIVIL Requisites (ICO):
CODE, Art. 1138, Par. 2); and a. Intent to possess;
10. Exclusive possession of common property by b. Capacity to possess; and
each one of the participants of their allotted share c. Object must be capable of being possessed
upon division (CIVIL CODE, Art. 543).
2. Through an authorized person or by his legal
OBJECT OF POSSESSION representative or agent; and
Requisites (PIA):
GENERAL RULE: All things and rights susceptible of
a. Intent to possess for principal;
being appropriated may be the object of possession
b. Authority or capacity to possess; and
(CIVIL CODE, Art. 530).
c. Principal has intent and capacity to possess.
EXCEPTIONS: (PREP)
3. Through an unauthorized person or by any
1. Property of public dominion;
persons without any power or authority
2. Res communes;
whatsoever.
3. Easement; and
Requisites (RIC):
4. Prohibited by law (2 PARAS, supra at 482).
a. Intent to possess for another – principal;
b. Capacity of principal to possess; and
c. Ratification by principal (2 PARAS, supra at
486).

NOTE: In No. 3, possession shall not be considered

as acquired until the person in whose name the act of
possession was executed has ratified the same,
without prejudice to the juridical consequences of personally or through their parents, guardians, or
negotiorum gestio in the proper case (Id.). legal representatives (CIVIL CODE, Art. 1107).

ACQUISITION BY SUCCESSION (MORTIS MODES THROUGH WHICH POSSESSION

CAUSA) CANNOT BE ACQUIRED: (FTC)
The rights to succession are transmitted from the 1. Through Force or intimidation, AND as
moment of the death of the decedent. (CIVIL CODE, long as there is a possessor who objects
Art. 777). thereto (CIVIL CODE, Art. 536);
1. Time of Acquisition – If the inheritance is
accepted, the estate is transmitted without For all intents and purposes, a legal possessor,
interruption from the death of the predecessor. even if physically ousted, is still deemed the legal
But the heir who repudiates is deemed never to possessor because possession cannot be
have acquired possession (CIVIL CODE, Art. acquired through force or violence (Cequeña v.
533). Bolante, G.R. No. 137944, April 6, 2000).
Note: An heir can sell whatever right, interest or 2. Through mere Tolerance (CIVIL CODE, Art.
participation he may have in the property under 537); and
administration, subject to the result of said
administration (DE LEON, Property, supra at Acts merely tolerated are those which by reason
362). of neighbourliness or familiarity, the owner of
property, allows his neighbour or another person
From the moment of death of the decedent, each to do on the property (2 TOLENTINO, supra at
of his heirs becomes the undivided owner of the 268).
whole estate left with respect to that portion
which might be adjudicated to him (Id.). It is difficult to draw a dividing line between
tolerance of the owner and abandonment of his
2. If the inheritance is validly renounced, the heir rights when the acts of the possessor are
is deemed never to have possessed the same repeated, especially when the lapse of time has
(CIVIL CODE, Art. 533). consolidated and affirmed a relation the legality
of the origin of which can be doubted. When there
3. Effect of bad faith of the decedent – One who is license or permission, the proof is easy. It is for
succeeds by hereditary title shall not suffer the the court to decide in each case whether there
consequences of the wrongful possession of the exists mere tolerance or an abandonment of
decedent unless it is shown that he had rights on the part of the owner (4 MANRESA 196-
knowledge of the defects affecting it; but the 197 as cited in 2 TOLENTINO, supra at 269).
effects of possession in good faith shall not
benefit him except from the death of the decedent Silence or inaction is negligence, not tolerance.
(CIVIL CODE, Art. 534). But where a person occupies another’s land with
the latter’s permission (tolerance), the occupier,
Tacking of Possession: The latter part of Art no matter how long he may remain, can never
534 is not applicable if the father (or decedent) acquire ownership, because he never had
had been in good faith, for the son (or heir) would possession (2 PARAS, supra at 497).
not suffer. In such a case, the possession of the
father in good faith is added to the possession of Possession by mere tolerance is not adverse.
the son in good faith, and we cannot say that the Thus, it does not start the running of the period of
effects of possession in good faith shall acquisitive prescription (Id.).
commence only from the decedent’s death.
3. Through Clandestine efforts, secret
ACQUISITION BY MINORS AND possession, and without the knowledge
INCAPACITATED PERSONS of the possessor of a thing (CIVIL CODE,
Minors and incapacitated persons may acquire the Art. 537).
possession of things, but they need the assistance of
their legal representatives in order to exercise the Requisites:
rights which from the possession arise in their favor a. The acts are not public; and
(CIVIL CODE, Art. 535). b. It must be unknown to the possessor or
owner.
NOTE: Minors and incapacitated persons may
acquire property or rights by prescription, either NOTE: A person who believes himself entitled to
the possession of property may not take the law
 into his hands (Spouses Antazo v. Doblada, G.R. NOTE: A squatter has no possessory rights of
No. 178908, February 4, 2010) or else he will be any kind against the owner of the land into which
made to suffer the consequences of his he has intruded (Banez v. CA, G.R. No. L-30351,
lawlessness (Santiago v. Cruz,G.R. No. L-31919, September 11, 1974).
March 24, 1930). For this reason, Article 536
mandates that he must invoke the aid of the POSSESSION IN THE CONCEPT OF AN
competent court, if the holder should refuse to OWNER OR EN CONCEPTO DE DUENO
deliver the thing.
Only possession acquired and enjoyed in the concept
of owner can serve as a title for acquiring dominion
CONFLICT BETWEEN SEVERAL (CIVIL CODE, Art. 540) even if he acted in bad faith.
CLAIMANTS:
GENERAL RULE: Possession as a fact cannot be A possessor in the concept of an owner has in his
recognized at the same time in two different favor the legal presumption that he possesses with a
personalities (CIVIL CODE, Art. 538). just title and he cannot be obliged to show or prove it
(CIVIL CODE, Art. 541).
EXCEPTIONS: In case of co–possession when there
is no conflict and possession in different concepts or Presumption of just title does not apply in acquisitive
different degrees (DE LEON, Property, supra at 371). prescription. The adverse possessor must prove his
just title (DE LEON, Property, supra at 387).
Criteria in Case of Dispute:
1. Present/actual possessor shall be preferred; KINDS OF TITLES:
2. If there are two possessors, the one longer in
1. True and Valid Title (Titulo Verdadero y
possession;
3. If the dates of possession are the same, the one
Valido)
with a title; and – There was a mode of transferring ownership
4. If all the above are equal, the fact of possession and the grantor was the owner (Id. at 386-387);
shall be judicially determined, and in the
meantime, the thing shall be placed in judicial 2. Colorable Title (Titulo Colorado)
deposit (CIVIL CODE, Art. 538). – There was such mode of transferring
ownership, BUT the grantor, whom the buyer
believes to be the owner, was, in fact, not the
owner (Id.); and
EFFECTS OF 3. Putative Title (Titulo Putativo)
POSSESSION – That title although a person believes himself to
(ARTS. 539-554) be the owner, he nonetheless is not because
there was no mode of acquiring ownership (Id.).

NOTE: Titulo colorado is what is meant by “just title”

in the law of prescription, and not titulo verdadero y
RIGHTS OF EVERY POSSESSOR valido, for if it were the latter, there could be no
(WHETHER IN THE CONCEPT OF AN necessity of still acquiring ownership through
OWNER OR A HOLDER): prescription, the grantee being already the owner
1. To be respected in his possession; and (Solis v. CA, G.R. No. L-46753, August 25, 1989).
2. To be protected in or restored to said possession
by legal means should he be disturbed therein POSSESSION IN THE CONCEPT OF
(CIVIL CODE, Art. 539). HOLDER:
1. Lessees;
A possessor deprived of his possession through 2. Trustees, including: parents over the properties
forcible entry may within ten (10) days from the of their children; and husband and wife over each
filing of the complaint present a motion to secure other’s property;
from the competent court, in the action for forcible 3. Antichretic creditors;
entry, a writ of preliminary mandatory injunction 4. Agents;
to restore him in his possession (CIVIL CODE, 5. Attorney’s regarding their client’s properties;
Art. 539). 6. Depositaries; and
7. Co-owners (2 PARAS, supra at 523).
REASON: There are many prolonged litigations
between the owner and the usurper and the NOTE: Possession of real property presumes that of
former is frequently deprived of his possession. the movables therein, so long as it is not shown or
proved that they should be excluded (CIVIL CODE,
POSSESSOR IN POSSESSOR IN BAD
Art. 542).
GOOD FAITH FAITH
Presumption applies whether the possessor be in As to Fruits Pending and Charges
good faith or bad faith, in one’s own name, or in
another’s and in concepto de dueno or in the concept Prorated according to To owner.
of holder (2 PARAS, supra at 530). time of possession of
owner and possessor.
RULES ON CO-POSSESSION:
As to Production Expenses of Pending Fruits
1. Each one of the participants of a thing possessed
in common shall be deemed to have exclusively Indemnity pro-rata to No indemnity.
possessed the part which may be allotted to him possessor (owner’s
upon division thereof, for the entire period during option) in money, or by
which the co-possession lasted; allowing full cultivation
2. Interruption in the possession of the whole or a and gathering of all
part of a thing possessed in common shall be to fruits.
the prejudice of all possessors; and
3. In case of civil interruption, the Rules of Court As to the Necessary Expenses
shall apply (CIVIL CODE, Art. 543.).
Reimbursed to Reimbursed to
Possession is interrupted for purposes of prescription possessor; retention. possessor; No
either naturally or civilly (CIVIL CODE, Art. 1120). retention.
Possession is naturally interrupted when through any
cause it should cease for more than one year (CIVIL As to the Useful Expenses
CODE, Art. 1121).
1. Reimbursement and No reimbursement.
retention; or Right of removal
CIVIL INTERRUPTION 2. May remove useful provided that the thing
When interruption is produced by judicial summons improvements if no suffers no injury and
to the possessor, only those possessors served with reimbursement, and lawful possessor does
judicial summons are affected (DE LEON, Property, no damage is not prefer to retain
supra at 390). caused to the them by paying the
principal by the value they may have at
NOTE: Judicial summons shall be deemed not to removal with right of the time he enters into
have been issued and shall not give rise to retention (CIVIL possession. (CIVIL
interruption: CODE, Art. 546). CODE, Art. 549).
1. If it should be void for lack of legal solemnities;
2. If the plaintiff should desist from the complaint or As to the Ornamental Expenses
should allow the proceedings to lapse; and
3. If the possessor should be absolved from the 1. No reimbursement; 1. No reimbursement;
complaint. and and
2. Removal without 2. Removal without
In all these cases, the period of interruption shall be injury or injury or
counted for the prescription (CIVIL CODE, Art. 1124; reimbursement of reimbursement of
2 PARAS, supra at 525). amount expended at value at time of
option of lawful recovery at option of
RIGHTS OF A POSSESSOR IN GOOD FAITH possessor. lawful possessor.
V. POSSESSOR IN BAD FAITH As to the Taxes and Charges
POSSESSOR IN POSSESSOR IN BAD (1. On Capital, 2. On Fruits and 3. On
GOOD FAITH FAITH Charges)

As to Fruits Gathered Taxes and charges Taxes and charges

1. Charged to owner; 1. Charged to owner;
To possessor. To owner. 2. Charged to 2. Charged to owner;
possessor; 3. To owner.
As to Cultivation Expenses of Gathered 3. Prorated.
Fruits
As to Improvements No Longer Existing
Not reimbursed to Reimbursed to
possessor. possessor. No reimbursement. No reimbursement.
 summary action, but he may still bring an
POSSESSOR IN POSSESSOR IN BAD
action publiciana or reivindicatoria.
GOOD FAITH FAITH

As to Liability for Accidental Loss or e. By reason of the object

Deterioration i. Destruction or total loss of the things;
and
Only if acting with Liable in every case. ii. Withdrawal from commerce
fraudulent intent or
negligence, after ACTS NOT CONSTITUTING LOSS OF
summons (CIVIL POSSESSION (CIVIL CODE, Arts. 537–
CODE, Art. 552).
538)
NOTE: Before receipt of 1. Acts executed by stealth and without knowledge
judicial summons, of the possessor;
possessor not liable. 2. Acts merely tolerated either by the possessor or
(PARAS,supra at 537). by his representative or holder in his name unless
authorized or ratified;
As to Improvements Due to Time or Nature 3. Violence; and
4. Temporary ignorance of the whereabouts of
To owner or lawful To owner or lawful movable property.
possessor. possessor.
(DE LEON, Property, supra at 406 to 408). The possessor who recovers possession is
considered as having had uninterrupted
Necessary Expenses possession despite these acts of violence,
Those made for the preservation of the thing stealth, and tolerance; but he must recover
(2 PARAS, supra at 539). possession by due process and not otherwise
(CIVIL CODE, Arts. 561, 536, 539).
Useful Expenses
Those that add value to property or increase the Possessory acts of mere holder do not bind or
object’s productivity (Id. at 541). prejudice the possessor in the concept of owner,
unless said acts were previously authorized or
Ornamental/Luxury Expenses ratified by the latter (CIVIL CODE, Art. 558).
Those that add value to the thing only for certain
persons in view of their particular whims; neither POSSESSION OF MOVABLES (CIVIL
essential for preservation nor useful to everybody in CODE, ART. 559)
general (Id. at 549).
THEORY OF IRREVINDICABILITY
GENERAL RULE: Possession of movable property
LOSS OF POSSESSION acquired in good faith is equivalent to a title (CIVIL
CODE, Art. 559).
(ARTS. 555)
NOTE: Possession in good faith does not really
amount to title, for the reason that Art. 1132 of the
Code provides for a period of acquisitive prescription
GENERAL CAUSES: for movables through 'uninterrupted possession for
1. By the will of the possessor four years in good faith' (xxx), so that many Spanish
a. Abandonment; and writers, including Manresa, Sanchez Roman,
b. Assignment Scaevola, De Buen, and Ramos, assert that under
2. Against the will of the possessor Art. 464 of the Spanish Code (Art. 559 of the New
a. Eminent domain; Civil Code), the title of the possessor in good faith is
b. Acquisitive prescription; not that of ownership, but is merely a presumptive title
c. Judicial decree in favor of one who has a sufficient to serve as a basis for acquisitive
better right; prescription (De Garcia v. Court of Appeals, G.R. No.
d. Possession of another for more than one L-20264, January 30, 1971).
year;
Illustration: If X buys in good faith books from Y, an
NOTE: This refers to possession de facto impostor, who succeeded in purchasing the books
where the possessor loses the right to a from Z by falsely identifying himself and paying the
price by means of a check which was dishonored, the
law establishes an actual right thereto in favor of X. d. Where the sale is made at merchant’s stores,
The subsequent dishonor of the check merely fairs or markets (CIVIL CODE, Art. 1505);
amounted to a failure of consideration which does not e. Where the seller has a voidable title, which
render the contract of sale void, but merely allows the has not been avoided at the time of the sale
prejudiced party to sue for specific performance or to the buyer in good faith for value and
rescission of the contract and to prosecute the without notice of the seller’s defect if title
impostor for estafa under Art 315 of the Revised (CIVIL CODE, Art. 1506);
Penal Code. (EDCA Publishing v. Santos, G.R. No. f. Where recovery is no longer possible
80298, April 26, 1990). because of prescription (CIVIL CODE, Art.
1132); and
Requisites: (GOV) g. Where the possessor becomes the owner of
1. Possession is in Good faith; the thing in accordance with the principle of
2. Possessor is in the concept of Owner; and finder’s keeper (CIVIL CODE, Art. 719) (DE
3. The owner has Voluntarily parted with the LEON, Property, supra at 415).
possession of the thing (DE LEON, Property,
supra at 411-412). SUMMARY OF RECOVERY OR NON-
RECOVERY PRINCIPLE
EXCEPTION: One who has lost or has been
unlawfully deprived of a movable may recover it from 1. Owner may recover without reimbursement:
whoever possesses it without reimbursement. The a. From possessor in bad faith; and
owner of the thing must prove: (a) ownership of the b. From possessor in good faith (if owner had
thing; and (b) loss or unlawful deprivation; or bad faith lost the property or been unlawfully deprived
of the possessor (Id. at 420-421). of it and the acquisition being from a private
person);
If the owner has lost a thing, or if he has been 2. Owner may recover but should reimburse: if
unlawfully deprived of it, he has a right to recover it, possessor acquired the object in good faith at
not only from the finder, thief or robber, but also from public sale or auction
third persons who may have acquired it in good faith 3. Owner cannot recover, even if he offers to
from such finder, thief or robber (Aznar v.Yapdiangco, reimburse:
G.R. No. L-18536, March 31, 1965). a. If possessor had acquired it in good faith by
purchase from a merchant’s store, or in fairs
NOTE: “Unlawful deprivation” includes all cases of or markets in accordance with the Code of
taking that constitute a criminal offense (DE LEON, Commerce and special laws;
Property, supra at 416). b. If owner is by his conduct precluded from
denying the seller’s authority to sell; and
EXCEPTIONS TO THE EXCEPTION: (NG) c. If the possessor had obtained the goods
1. Where the owner acts Negligently or voluntarily because he was an innocent purchaser for
parts with the thing owned, he cannot recover it value and a holder of a negotiable document
from the possessor; and of title to the goods (2 PARAS, supra at 566).
2. If the possessor of the movable acquired it in
Good faith at a public sale, the owner cannot POSSESSION OF ANIMALS
obtain its return without reimbursing the price Wild animals are possessed only while they are under
paid therefore keeper (CIVIL CODE, Art. 559, one’s control; domesticated or tamed animals are
Par. 2). considered domestic or tame, if they retain the habit
of returning to the premises of the possessor (CIVIL
NOTE: In the following public sale transactions, CODE, Art. 560).
the owner cannot recover:
a. Where the owner of the movable is, by his Animals may be:
conduct, precluded from denying the seller’s 1. Wild animals
authority to sell; and – Those living in a state of nature independently
b. Where the law enables the apparent owner of and without the aid and care of man (DE
to dispose of the movable as if he were the LEON, Property, supra at 423).
true owner thereof, i.e., Civil Code (Art. 1507-
1520), the Property Registration Decree 2. Domesticated or tamed animals
(P.D. No. 1525), the Negotiable Instruments a. Wild or savage by nature but have been
Law (Art. 2031), and the Warehouse subdued and became accustomed to live in
Receipts Law (Act No. 2137); a tamed condition;
c. Where the sale is sanctioned by statutory or b. Domestic animals - born and reared under
judicial authority; the control and care of man, lacking the
instinct to roam freely (Id.).
NOTE: The possessor or owner of domesticated CHARACTERISTICS: (TRECT)
animals has a period of 20 days counted from the 1. Of Temporary duration;
occupation by another person within which to reclaim
them. 2. Real right of the use and enjoyment of the
property whether or not the same be registered
in the Registry of Property;

USUFRUCT NOTE: It must be registered in the Registry of

(ARTS. 562-612) Property to prejudice third persons (CIVIL CODE,
Art. 709).

3. Purpose is to Enjoy the benefits and derive all

advantages from the thing due to normal
USUFRUCT exploitation;
Usufruct gives a right to enjoy the property of another
with the obligation of preserving its form and 4. May be Constituted on real or personal property,
substance, unless the title constituting it or the law consumable or non–consumable, tangible or
otherwise provides (CIVIL CODE, Art. 562). intangible, the ownership of which is vested in
another; and
THREE (3) FUNDAMENTAL RIGHTS
PERTAINING TO OWNERSHIP (DUF) NOTE: A person cannot create a usufruct over his
1. Jus Disponendi own property and at the same time retain ownership
– Right to dispose, alienate, encumber, of the same for usufruct is essentially jus in re
transform, and destroy; aliena; and to be a usufructuary of one’s own
property is, in law, a contradiction in terms and a
conceptual absurdity (Gaboya v. Cui, G.R. No. L-
2. Jus Utendi
19614 March 27, 1971).
– Right to use; and
5. Transmissible (DE LEON, Property, supra at
3. Jus Fruendi 426).
– Right to the fruits.

DIFFERENCE IN RIGHTS BETWEEN REQUISITES OF USUFRUCT:

USUFRUCT AND NAKED OWNERSHIP 1. Essential
– The real, temporary right to enjoy another’s
NAKED property.
USUFRUCT
OWNERSHIP
Jus Utendi and Jus Jus Disponendi 2. Natural
Fruendi – The obligation to preserve its form or
substance.
(2 PARAS, supra at 578).
NOTE: Ordinarily this is present, but a contrary
FORMULA: stipulation can eliminate it because it is not
essential (2 PARAS, supra at 578). The
1. Full Ownership = Naked Ownership + Usufruct;
obligation being merely a natural requisite, the
2. Naked Ownership = Full Ownership - Usufruct;
title or law may provide otherwise (CIVIL CODE,
3. Usufruct = Full Ownership - Naked Ownership
Art. 562), giving rise to abnormal, irregular or
(Id.).
imperfect usufruct (2 PARAS, supra at 579).
Usufruct, in essence, is nothing else but the right to
enjoy another's property. While this right to enjoy the 3. Accidental
property of another temporarily includes both the jus – Those which may be present or absent
utendi and the jus fruendi, the owner retains the jus depending upon the stipulation of the parties. (Id.
disponendi or the power to alienate the same (Heirs at 579).
of Jarque v. Jarque, G.R. No. 196733, November 21,
2018). CLASSIFICATIONS OF USUFRUCT
1. As to Origin (CIVIL CODE, Art. 563):
a. Legal – Constituted by law.

Example: Usufruct of the parents over the

property of their unemancipated children
 limited primarily to the child's support and b. Singular or Particular – if only individual
secondarily to the collective daily needs of things are included.
the family. (FAMILY CODE, Art. 226); 7. As to Whether or Not Impairment of
Object is Allowed (CIVIL CODE, Art. 562).
b. Voluntary – Constituted by the will of private a. Normal (or Perfect or Regular) – that which
persons expressed in acts inter vivos or in a involves non-consumable things which the
last will and testament; and usufructuary can enjoy without altering their
c. Mixed – Constituted by prescription (i.e., form or substance; and
created both by law and by the act of a b. Abnormal (or Imperfect or Irregular) – that
person); which involves things which would be
useless to the usufructuary unless they are
Illustration: Usufruct acquired by consumed or expended.
prescription such as when believing himself
to be the owner of the property of an RULES GOVERNING USUFRUCT:
absentee, gave in his will the usufruct of the
property for the requisite prescriptive period 1. The rights and obligations of the usufructuary
to his wife, who possessed it in good faith as shall be those provided in the title constituting the
usufructuary, and naked ownership to his usufruct; or
brother (DE LEON, Property, supra at 425). 2. In default of such title, or in case it is deficient, the
provisions contained in the Civil Code regarding
usufruct shall apply (CIVIL CODE, Art. 565).
2. As to Extent of Coverage:
a. Total – constituted on the whole of the fruits
of the thing; and OBLIGATION TO PRESERVE THE
b. Partial – a part of the fruits of the thing (CIVIL OBJECT OF THE USUFRUCT
CODE, Art. 564). GENERAL RULE: Usufructuary is bound to preserve
the form and substance of the thing in usufruct (CIVIL
3. As to Kind of Object: CODE, Art. 562).
a. Over a right, if it involves intangible property
provided it is not strictly personal or EXCEPTIONS:
intransmissible; and 1. When the law or the title creating the usufruct
b. Over things, if it involves tangible property provides that the usufructuary is not so obliged
(CIVIL CODE, Art. 564). (CIVIL CODE, Art. 565);
2. When the usufruct includes things which, without
4. As to Number of Persons Enjoying the being consumed, gradually deteriorate through
Right wear and tear (CIVIL CODE, Art. 573); and
a. Singular – in favor of one person; and 3. When the usufruct includes things which cannot
b. Multiple – two or more persons be used without being consumed (quasi-usufruct)
i. Simultaneously, i.e., at the same time or (CIVIL CODE, Art. 574).
ii. Successively, i.e., one after the other.
(CIVIL CODE, Art. 564). USUFRUCT V. LEASE
USUFRUCT LEASE
NOTE: A usufruct constituted in favor of
several persons living at the time of its As to Nature of Right
constitution shall not be extinguished until the
death of the last survivor (CIVIL CODE, Art. Always a real right. Generally, a personal
611). right; However, a
registered lease on
5. As to Term or Conditions land is a real right.
a. Pure;
b. With a Term or Period; As to Creator of Right
a. Ex die – from a certain day;
Person creating the Lessor may not be the
b. In diem – up to a certain day; and
usufruct should be the owner, i.e., sub-lessor,
c. Ex die in diem – from a certain day up to
owner or his duly usufructuary.
a certain day.
authorized agent.
c. Conditional (CIVIL CODE, Art. 564).
As to Origin
6. As to the Extent of Owner’s Patrimony
(CIVIL CODE, Arts. 598-599): May be created by law, Generally created by
a. Universal – if over the entire patrimony; and by contract, by will of the contract.
 do so, he should pay its value at the time the
USUFRUCT LEASE
usufruct ceases (Id.).
testator, or by b. If deterioration is due to an event or act that
prescription. EXCEPTION: by law, endangers their preservation (fortuitous
i.e., implied new lease. event) (CIVIL CODE, Art. 1174), the
usufructuary is not responsible. He is,
As to Scope however, obliged to make the necessary or
ordinary repairs (CIVIL CODE, Art. 592).
Usufruct generally Lease generally refers
covers all the fruits and to uses only, i.e., those NOTE: Ordinary repairs are understood such
all the uses and benefits stipulated. as are required by the wear and tear due to
of the entire property. the natural use of the thing and are
indispensable for its preservation (CIVIL
As to Cause CODE, Art. 592).
Involves a more or less Lease involves a more
c. If deterioration is due to fraud (dolo incidente
passive owner who active owner or lessor
or fraud amounting to an evasion of the
allows the usufructuary who makes the lessee
obligation to preserve) or negligence (CIVIL
to enjoy the object given to enjoy the thing
CODE Art. 1174), the usufructuary shall be
in usufruct. leased.
obliged to indemnify the owner for any
As to Repairs and Taxes deterioration they may have suffered by
reason of his fraud or negligence (CIVIL
Usufructuary pays for Lessee is not generally CODE, Art. 573).
ordinary repairs and under obligation to
taxes on the fruits (CIVIL undertake repairs or NOTE: Such liability however may be set-off
CODE, Art. 592). pay taxes. against the improvements he may have
made (CIVIL CODE, Art. 580).
(DE LEON, Property, supra at 428-429).
3. Of consumable property
SPECIAL USUFRUCTS Whenever the usufruct includes things which
1. On Rent, Pension or Benefits cannot be used without being consumed, the
Whenever a usufruct is constituted on the right to usufructuary shall have the right to make use of
receive a rent or periodical pension, whether in them under the obligation of paying their
money or in fruits, or in the interest on bonds or appraised value at the termination of the usufruct,
securities payable to bearer, each payment due if they were appraised when delivered (CIVIL
shall be considered as the proceeds or fruits of CODE, Art. 574).
such right (civil fruits) (CIVIL CODE, Art. 570) and
shall be deemed to accrue proportionately to the In case they were not appraised, he shall have
usufructuary, from the time the usufruct lasts the right to return the same quantity and quality
(CIVIL CODE, Art. 569). or pay their current price at the time the usufruct
ceases (CIVIL CODE, Art. 574).
Those that accrue after the termination of the
usufruct belong to the owner (DE LEON, NOTE: This is another instance of abnormal
Property, supra at 437). usufruct and is sometimes referred to as a
quasi-usufruct because the form is not really
2. Over things which gradually deteriorate preserved. Thus, this is really a simple loan (2
Art. 573 deals with abnormal or imperfect PARAS, supra at 599).
usufruct. It deals with things that deteriorate
much faster than others such as clothes, 4. On fruit bearing trees and shrubs
vehicles, and computers (2 PARAS, supra at The usufructuary may make use of the dead
597). trunks, and even of those cut off or uprooted by
accident, under the obligation to replace them
Effect of the Deterioration on the with new plants (CIVIL CODE, Art. 575).
Usufructuary’s Liability:
a. If deterioration is due to normal use (wear NOTE: No such obligation exists with respect to
and tear), the usufructuary is not responsible. those dead trees or shrubs already existing at the
Nor is he required to make any repairs to beginning of the usufruct (CIVIL CODE, Art. 575
restore it to its former condition. He may in relation to Art. 562).
return them in the condition they might be in
at the termination of the usufruct. If he fails to
 Effect of a Calamity on the Trees and Shrubs NOTE: After a successful judgment, the usufruct
a. If it is impossible or too burdensome to is now over the thing awarded and not on the right
replace them, the usufructuary may either: to recover (2 PARAS, supra at 605).
i. Use the trunks but should replace them
(CIVIL CODE, Art. 575); or 7. On property owned in common
ii. Leave the dead, fallen, uprooted trunks A co-owner may give the usufruct of his share to
at the owner’s disposal, and demand that another, even without the consent of others,
the latter remove them and clear the land unless personal considerations are present
(CIVIL CODE, Art. 576). (CIVIL CODE, Art. 582 in relation to Art. 493).
b. If it is not “too burdensome” to replace them,
he must replace them (whether he uses the The usufructuary in such a case takes the
trunks or not), and he cannot demand owner’s place as to:
clearance of the land by the owner (DE a. Administration (management); and
LEON, Property, supra at 428). b. Collection of fruits or interest (CIVIL CODE,
Art. 582).
5. On woodlands and nurseries
The usufructuary of woodland may enjoy all the Effect of Partition:
benefits which it may produce according to its a. If there be a partition, the usufructuary
nature (CIVIL CODE, Art. 577). continues to have the usufruct of the part
allotted to the co-owner concerned (CIVIL
In case of usufruct over a woodland which is a CODE, Art. 582).
copse or consists of timber for building, in b. If the partition was done without the
cutting or feeling the trees, he must: intervention of the usufructuary, the partition
a. Follow the owner’s habit or practices; binds the usufructuary. However, the naked
b. In default thereof, the customs of the place owner must respect the usufruct (Pichay v.
as to manner, amount, and season; and Querol, G.R. No. 4452, October 1, 1908).
c. If there be no customs, the only time the
usufructuary can cut down trees will be for 8. Of fruitful or productive livestock
repair or improvement, but the owner must (livestock)
first be informed (2 PARAS, supra at 602). If the usufruct be constituted on a flock or herd of
livestock, the usufructuary shall be obliged to
6. On a right to recover by court action replace with the young thereof the animals that
The usufructuary of an action to recover real die each year from natural causes, or are lost due
property or a real right or any movable property to the rapacity of beasts of prey (CIVIL CODE,
has the right to bring the action and to oblige the Art. 591).
owner thereof to give him:
a. Authority to bring the action (through SPA); NOTE: This article applies only when the usufruct
and is on a FLOCK and HERD of livestock (not
b. Furnish him whatever proof the owner may merely two or three animals) (2 PARAS, supra at
have (CIVIL CODE, Art. 578). 620).

The Action May Be Instituted in the There is Obligation to Replace:

Usufructuary’s Name, Subject to the a. If some animals die from natural causes; or
Following: b. If some animals are lost due to rapacity of
a. If the purpose is the recovery of the beasts of prey (Id.).
property or right, he is still required to
obtain the naked owner’s authority; or NOTE: There is the duty to replace even though
b. If the purpose is to object to or prevent the cause is fortuitous. Replacement should be
disturbance over the property, no special made from the young produced (Id.).
authority from the naked owner is needed (2
PARAS, supra at 605). Illustration: If 15 cattles died, but only
3 were produced, only 3 must be replaced; hence
Effect of Judgment also, if 15 died, but 20 were produced, the excess
If in consequence of the enforcement of the of 5 belong to the usufructuary since they are
action the usufructuary acquires the thing fruits (Id.).
claimed:
a. The usufruct shall be limited to the fruits; and There is NO Obligation to Replace:
b. The dominion remains with the owner (CIVIL a. If there is total loss of the animals because of
CODE, Art. 578). some unexpected or unnatural loss; or
b. If there is a partial loss (Id. at 621).
 In both of the foregoing instances, the Liability of the Naked Owner May Be
usufructuary must have no fault resulting in the Extinguished:
loss (Id.). a. By constituting a usufruct over an equivalent
estate;
NOTE: The remains, not the remainder should go b. By payment of a periodical pension
to the naked owner. The usufruct continues on equivalent to the loss; or
the remainder, provided that the loss be by c. Any other similar way (Id.).
accident and without fault of the usufructuary
(Id.). NOTE: It is believed that Art. 600 can also apply,
by analogy, to a pledged movable, provided that
In case of sterile animals, since there are no the movable is in the usufructuary possession
young, the rule of usufruct over fungibles applies (Id. at 632).
(CIVIL CODE, Art. 574).

9. Over the entire patrimony

In case of a universal usufruct, as when the RIGHTS OF THE
usufruct involves the entire patrimony and if at
the time of its constitution, the owner has debts, USUFRUCTUARY
or is obliged to make periodical payments, even (ARTS. 566-582)
if there should be no known capital, the
provisions of Arts. 758 and 759 shall be applied
both with respect to the maintenance of the
usufruct and to the obligation of the usufructuary SUMMARY OF RIGHTS OF A
to pay such debts (CIVIL CODE, Art. 598). Thus: USUFRUCTUARY
a. If there is a stipulation for the payment by the
usufructuary of the debts of the owner, the 1. As to the thing and its fruits
former is liable only for debts contracted by a. To receive and benefit from all the fruits –
the latter before the constitution of the natural, industrial and civil fruits (CIVIL
usufruct (CIVIL CODE, Art. 758). CODE, Art. 566);
b. If there is no stipulation regarding the b. To the half of the hidden treasure he
payment of debts, the usufructuary shall be accidentally finds (CIVIL CODE, Art. 566 in
responsible only when the usufruct has been relation to Art. 438);
made in fraud of creditors (CIVIL CODE, Art. c. To enjoy any increase through accessions,
759). servitudes, easements, and all benefits
inherent in the property (CIVIL CODE, Art.
10. On mortgaged property 571);
d. To lease the thing, generally, for the same or
The usufructuary of a mortgaged immovable
shorter period as the usufruct (CIVIL CODE,
shall not be obliged to pay the debt for the
security of which the mortgage was constituted. Art. 572);
e. To make on the property in usufruct such
Should the immovable be attached or sold
improvement or expenses he may deem
judicially for the payment of the debt, the owner
proper and to remove the improvements
shall be liable to the usufructuary for whatever
provided no damage is caused to the
the latter may lose by reason thereof (CIVIL
CODE, Art. 600). property (CIVIL CODE, Art. 579);
f. Right to set–off the improvements he may
have made on the property against any
Here, the usufruct is particular, constituted by
damage to the same (CIVIL CODE, Art. 580);
will or by acts inter vivos, whether by onerous or
and
gratuitous title. If the usufruct is universal,
g. To retain the thing until he is reimbursed for
covering all the property of the owner, all or some
of which are mortgaged, the liability of the advances for extraordinary expenses and
usufructuary to pay for the mortgage is governed taxes on the capital (CIVIL CODE, Art. 612).
by Art. 598 (DE LEON, Property, supra at 491).
2. As to the usufruct itself
NOTE: Since usufruct is a real right, the usufruct a. To alienate the usufructuary right (except
(as distinguished from the property itself) may be parental usufruct) (CIVIL CODE, Art. 572 in
mortgaged, not by the naked owner, but by the relation to FAMILY CODE, Arts. 225 and
usufructuary. In such a case, it is the usufructuary 226);
who should pay his own debt (2 PARAS, supra at b. To bring action and oblige owner thereof to
631). give him proper authority and necessary
 proof in a usufruct to recover property or a
OBJECT OWNER USUFRUCTUARY
real right (CIVIL CODE, Art 578);
c. To exercise all the rights pertaining to the co- Fruits growing
owner with respect to the administration and at the
collection of fruits or interests from the beginning of
property in a usufruct of part of a common the usufruct
property (CIVIL CODE, Art. 582);
d. Right to make use of the land and materials, Fruits growing
when building forming part of the usufruct on at the
immovable has been destroyed in any termination of
manner (CIVIL CODE, Art. 607); then usufruct
e. If usufructuary shares in insurance of
tenement in usufruct, and it was lost, he shall
A dividend, whether in the form of stock, is
continue in enjoyment of the new one if one
income and, consequently, should go to the
be constructed or receive interest on the
usufructuary, taking into consideration that a
insurance indemnity (CIVIL CODE, Art. 608);
stock dividend as well as a cash dividend can
and
be declared only out of profits of the
f. To remove improvements made by him if the
corporation (DE LEON, Property, supra at
same will not injure the property (CIVIL
430).
CODE, Art. 579).
Since it is the obligation of the usufructuary
3. As to advances and damages to preserve the form and substance of the
a. To be reimbursed for indispensable property unless the contrary is provided,
extraordinary repairs made by him in an products (e.g., minerals extracted from
amount equal to the increase in value which mines) which when taken from the
the property may have acquired by reason of property diminishes its substance are not
such repairs (CIVIL CODE, Art. 594); to be treated as fruits. They form part of the
b. To be reimbursed for taxes on capital capital and belong to the naked owner (Id.).
advanced by him (CIVIL CODE, Art. 597);
and Rules on Pending Natural or Industrial
c. To be indemnified for damages caused to Fruits (Art. 567)
him by the naked owner (CIVIL CODE, Art. i. Fruits pending at the beginning of
581). usufruct:
1.) Belong to the usufructuary;
RIGHTS OF THE USUFRUCTUARY: 2.) No necessity to refund the owner for
1. As to the thing and its fruits expenses incurred;
a. To receive and benefit from all the fruits – 3.) But without prejudice to the right of
natural, industrial and civil fruits (CIVIL third persons.
CODE, Art. 566); ii. Fruits pending at the termination of
usufruct:
The usufructuary has the right to receive all 1.) Belong to the owner;
the fruits except: 2.) But the owner must reimburse the
usufructuary for ordinary cultivation
i. Where the usufruct is constituted expenses and for the seeds and
only on a part of the fruits of a thing similar expenses, from the proceeds
(CIVIL CODE, Art. 564); or of the fruits;
ii. Where there is an agreement to the 3.) Rights of innocent third parties
contrary (CIVIL CODE, Art. 565). should not be prejudiced in relation
to Art. 546 and 443 of the Civil Code
RIGHTS TO THE FRUITS (2 PARAS, supra at 589-590).
OBJECT OWNER USUFRUCTUARY NOTE: If the expenses are greater than the
proceeds of the fruits, the owner has no
Dividends
obligation to reimburse the difference (Id.).
Products which
diminish REASON: There is no proceeds of fruits from
capital which the expenses should be paid (DE
LEON, Property, supra at 435).
b. To the half of the hidden treasure, he e. To make such improvement or expenses he
accidentally finds (CIVIL CODE, Art. 566 in may deem proper on the property which is
relation to Art. 438); the subject of the usufruct (CIVIL CODE, Art.
579);
NOTE: The usufructuary is not entitled to any
hidden treasure which may be found on the NOTE: The usufructuary has the right to
property because it does not fall under the make useful improvements or expenses for
term “fruits’’. He shall be considered a mere pleasure provided that he must not
stranger, i.e., if he is the finder, he is entitled alter the form or substance of the property in
to 1/2 of the treasure with the other half usufruct but he shall have no right to be
pertaining to the owner; if another person is indemnified therefor but he may either:
the finder, such person gets 1/2 as finder, i. Remove the improvements if no
and the owner gets the other half as owner substantial damage to the property is
(DE LEON, Property, supra at 430). If caused; or
somebody else is the finder, the usufructuary ii. Set-off the improvements against
gets nothing (4 MANRESA, supra at 386- damages for which he may be liable
387). under Art. 580 (CIVIL CODE, Art. 579 in
relation to Art. 580).
c. To enjoy any increase through accessions,
servitudes, easements, and all benefits f. Right to set–off the improvements he may
inherent in the property (CIVIL CODE, Art. have made on the property against any
571); damage to the same (CIVIL CODE, Art. 580);
and
REASON: Usufruct covers the entire jus
fruendi and the entire jus utendi (2 PARAS, Requisites Before Set-off Can Be Made:
supra at 594). i. Damage must have been caused by the
usufructuary; and
d. To lease the thing, generally, for the same or ii. Improvements must have augmented the
shorter period as the usufruct (CIVIL CODE, value of the property (2 PARAS, supra at
Art. 572); 608).

The usufructuary may lease it even without Rules Governing Art. 580:
the owner’s consent but, not being the owner, i. If damage exceeds the value of the
the usufructuary, cannot alienate, pledge or improvements, usufructuary is still liable
mortgage the thing itself (CIVIL CODE, Art. for the difference;
572). ii. If the value of the improvements exceed
the damage, the difference does not go
He may sell future crops subject to the rule to the usufructuary, but accrues in favor
that those ungathered at the time when the of the naked owner, in the absence of
usufruct terminates belong to the owner. stipulation to the contrary (Id. at 601).
When the things given in usufruct cannot be
used without being consumed or were g. To retain the thing until he is reimbursed for
appraised when delivered, the usufructuary advances for extraordinary expenses and
may dispose of them (DE LEON, Property, taxes on the capital (CIVIL CODE, Art. 612).
supra at 466).
2. As to the usufruct itself
If the lessee should damage the property, a. To alienate the usufructuary right (except
the usufructuary shall answer to the owner. parental usufruct) (CIVIL CODE, Art. 572 in
(CIVIL CODE, Art. 590) subject to the latter’s relation to FAMILY CODE, Arts. 225 and
right to demand reimbursement from the 226);
former. If the usufructuary cannot pay the
damage to the naked owner, his bond shall GENERAL RULE: The usufructuary may
be liable (CIVIL CODE, Art. 583(2)). pledge or mortgage the usufructuary right
(because he owns said right) but he cannot
NOTE: All contracts entered into by the pledge or mortgage the thing itself because
usufructuary shall terminate upon the he does not own the thing (CIVIL CODE, Art.
expiration of the usufruct or earlier, except 572 in relation to Art. Art. 2085 (2)).
rural leases which continue during the
agricultural year (CIVIL CODE, Art. 572 in
relation to Art.1682).
 EXCEPTIONS: because there was no usufruct on the
i. The legal usufruct of the parent over his land, the naked owner has preferential
or her children cannot be alienated, right to its use (2 PARAS, supra at 634).
pledged, or mortgaged for the right is
personal and intransmissible burdened Usufruct on a Building and/or the
as it is by important obligations of the Land Concerned (CIVIL CODE, Art.
parent for the benefit of said children 607)
(CIVIL CODE, Art. 572 in relation to
FAMILY CODE, Arts. 225 and 226); and Rules:
ii. A usufruct given in consideration of the 1.) Usufruct on both building and land
person of the usufructuary to last during (but the building is destroyed in any
his lifetime is also personal and, manner whatsoever before the
therefore, intransmissible (2 PARAS, expiration of the period of the
supra at 424). usufruct):
a.) The usufruct on the building
NOTE: All contracts entered into by the ends, but the usufruct on the
usufructuary shall terminate upon the land continues;
expiration of the usufruct or earlier, except b.) Therefore, the usufructuary is
rural leases which continue during the still entitled to the use of the land
agricultural year (CIVIL CODE, Art. 572 in and the use of whatever
relation to Art.1682). materials of the house remain;
c.) If the naked owner wants to
b. To bring action and oblige owner thereof to rebuild but the usufructuary
give him proper authority and necessary refuses, it is the usufructuary
proof in a usufruct to recover property or a who prevails for the use of the
real right (CIVIL CODE, Art. 578); land is still his for the remainder
of the period (2 PARAS, supra at
(See prior discussion on Special Usufructs, 640-641).
particularly on Art. 578). 2.) Usufruct on the building alone (but
the building is destroyed before the
c. To exercise all the rights pertaining to the co- termination of the period):
owner with respect to the administration and a.) The usufruct on the building
collection of fruits or interests from the ends, but the usufructuary can
property in a usufruct of part of a common still make use of whatever
property (CIVIL CODE, Art. 582); materials of the house remain;
b.) The usufructuary is entitled to
(See discussion on Special Usufructs, the use of the land;
particularly on Art. 582). c.) Because there was no usufruct
on the land, the naked owner
d. Right to make use of the land and materials: has preferential right to its use
i. if the usufruct is constituted on (Id. at 634-635).
immovable property of which a building
forms part, and the latter should be NOTE: While the usufruct on a
destroyed in any manner whatsoever building does not expressly include
(usufruct on both the building and the the land on which it is constructed,
land); or the land should be deemed included,
ii. if the usufruct is constituted on a building because there can be no building
only and the same should be destroyed without land (DE LEON, Property,
(usufruct on the building only) (CIVIL supra at 472).
CODE, Art. 607).
e. If usufructuary shares in insurance of
NOTE: In this case, if the owner should tenement in usufruct, and it was lost, he shall
wish to construct another building, he continue in enjoyment of the new one if one
shall have a right to occupy the land and be constructed or receive interest on the
to make use of the materials, being insurance indemnity (CIVIL CODE, Art. 608);
obliged to pay to the usufructuary, during
the continuance of the usufruct, the What constitutes as “sharing”
interest upon the sum equivalent to the i. According to Manresa, the amount
value of the land and of the materials respectively given is immaterial, and that
(CIVIL CODE, Art. 607). Precisely as long as both shared in paying the first
 paragraph of Art. 608 applies, except if the new building completely, with no
there be a stipulation between them to obligation to give interest on the
the contrary. additional cost of the naked owner (4
ii. A better solution perhaps would be to MANRESA 542-543 as cited in 2
make the sharing of the premiums PARAS, supra at 542-543).
proportionate to the respective insurable ii. If the naked owner does not construct a
interests, the premium of the naked new building or rebuild, the naked owner
owner being based on the insurable gets the insurance indemnity but should
interest of the naked ownership; that of pay the interest thereon to the
the usufructuary being based on the usufructuary (Id. at 643).
insurable interest of the usufruct (2
PARAS, supra at 636). b. If the naked owner alone pays the insurance
and the usufructuary refused to share:
NOTE: Article 608 is silent where the i. The naked owner gets the whole
usufructuary alone pays the insurance or, indemnity (with the obligation to give the
where both share in the payment thereof, as interest thereon to the usufructuary).
to the proportion of their contribution to the ii. If the usufruct was on the building and
insurance (DE LEON, Property, supra at the land, the usufruct continues on the
502). land and the materials (CIVIL CODE, Art.
644).
Rules applicable to Art. 608: iii. If the usufruct was on the building alone
i. The insurance indemnity (which cannot the naked owner may rebuild, with or
be more than the value of the usufruct) without the approval of the usufructuary,
goes to the usufructuary alone, with no but he must pay interest on the value of
obligation on his part to share the the land and the old materials that may
indemnity with, nor to give legal interest have been used (CIVIL CODE, Art. 607;
thereon to, the naked owner; 2 PARAS, supra at 638).
ii. The usufruct continues on the land for
the remaining period of the usufruct c. If the naked owner alone paid for the
(unless the usufruct had been insurance but there is failure or omission of
constituted on the building alone); and usufructuary to share (Id. at 644).
iii. The usufructuary has no obligation to
construct a new building or to rebuild NOTE: The effect is the same as if there was
(whether the usufruct was constituted on a sharing, but the usufructuary must
the building alone, or on both the building reimburse the naked owner of the
and the land). The usufructuary surely usufructuary’s share of the insurance
cannot be compelled to rebuild because premium (4 MANRESA 546 as cited in 2
the insurance indemnity will be much PARAS, supra at 644).
less than the cost of the building (2
PARAS, supra at 634). d. If the usufructuary alone pays the insurance
premium:
NOTE: A contrary stipulation between i. The insurance indemnity goes to the
the usufructuary alone, with no obligation on
parties will prevail over the foregoing his part to share the indemnity with, nor
rules (Id.). to give legal interest thereon to, the
naked owner.
Payment of Insurance on the Tenement Held ii. The usufruct continues on the land for
in Usufruct (CIVIL CODE, Art. 608) the remaining period of the usufruct.
a. If the naked owner and usufructuary share in iii. The usufructuary has no obligation to
the premiums (and the property is construct a new building or to rebuild (Id.
destroyed): at 644).
i. If the owner constructs a new building,
the usufruct continues on the new 3. As to advances and damages
building. a. To be reimbursed for indispensable
1.) If the cost of the building is less than extraordinary repairs made by him in an
the insurance indemnity, the amount equal to the increase in value which
usufructuary should get legal the property may have acquired by reason of
interests on the difference. such repairs (CIVIL CODE, Art. 594);
2.) If the cost is more than the insurance
indemnity, the usufructuary enjoys
 What constitutes as “extraordinary directum) remains vested in him but he
repairs” cannot:
i. Those required by the wear and tear due i. Alter the form or substance of the
to the natural use of the thing but not property; and
indispensable for its preservation; ii. Do anything thereon which may cause a
ii. Those required by the deterioration of or diminution in the value of the usufruct or
damage to the thing caused by be prejudicial to the rights of the
exceptional circumstances but not usufructuary.
indispensable for its preservation; and
iii. Those required by the deterioration of or Otherwise, he would be liable for damages
damage to the thing caused by under Art. 581.
exceptional circumstances and are
indispensable for its preservation (DE Illustration:
LEON, Property, supra at 444). i. In case of double sale of the usufructuary
right, Art. 1544 relating to a double sale
Requisites before the usufructuary may applies. Thus, if the second buyer in
make extraordinary repairs: (No-FaiN) good faith registers the usufruct, he can
c. There must be due Notification to naked oust the first buyer who did not register,
owner of urgency; even though the latter be in possession.
d. The naked owner Failed to make them; The right of the first usufructuary
and would be to proceed against the naked
e. The repair is Needed for preservation (2 owner for breach of the warranty against
PARAS, supra at 618). eviction;
ii. In case of succession, if the naked owner
Right of Usufructuary Who Has Made bequeaths (if personal property) or
Extraordinary Repairs: devises (if real property) to another
i. Get increase in value (CIVIL CODE, Art. through a will, the legatee or devisee
594) or get reimbursement of expenses should respect the usufruct;
(CIVIL CODE, Art. 612); and iii. In case the property subject of the
ii. Right of retention until paid (CIVIL usufruct is sold to another, the buyer
CODE, Art. 612). must respect the usufruct in case it is
registered or known to him, otherwise, he
b. To be reimbursed for taxes on capital can oust the usufructuary, who can then
advanced by him (CIVIL CODE, Art. 597); look to the naked owner for damages (2
PARAS, supra at 601-602).
The naked owner pays for taxes imposed
directly on the capital (provided they are not d. To remove improvements made by him if the
annual — example, the estate tax) (2 same will not injure the property (CIVIL
PARAS, supra at 621). CODE, Art. 579).

If advanced (in the meantime) by the NOTE: While a possessor in good faith is
usufructuary, said usufructuary: entitled to a refund for useful improvements,
i. Should be reimbursed the amount paid a usufructuary is not (2 PARAS, supra at
without legal interest: 600).
1.) If the advance was made voluntarily
the reimbursement shall be made at
the termination of the usufruct; or
2.) If the usufructuary was forced to pay,
the reimbursement should be made
thereafter (Id.).
ii. Is entitled to retention until paid (CIVIL
CODE, Art. 612; 2 PARAS, supra at
621).
c. To be indemnified for damages caused to
him by the naked owner (CIVIL CODE, Art.
581); and

The naked owner may alienate the property

in usufruct because the title (dominium
 OBLIGATIONS OF THE USUFRUCTUARY
OBLIGATIONS OF THE BEFORE EXERCISING THE USUFRUCT:
USUFRUCTUARY 1. To make an inventory of all the property
(CIVIL CODE, Art. 583(1)); and
(ARTS. 583-602) The usufructuary, before entering upon the
enjoyment of the property, is obliged to make,
after notice to the owner or his legitimate
representative, an inventory of all the property,
SUMMARY OF THE OBLIGATIONS OF which shall contain an appraisal of the movables
THE USUFRUCTUARY: and a description of the condition of the
1. Before the duration of the usufructuary: immovables (CIVIL CODE, Art. 583(1)).
a. To make an inventory of the property (CIVIL
CODE, Art. 583); and NOTE: The inventory is merely a condition to be
b. To give security (CIVIL CODE, Art. 583). complied with before the usufructuary may enter
2. During the usufructuary: into possession and enjoyment of the property (2
a. To take care of the property as a good father PARAS, supra at 604).
of a family (CIVIL CODE, Art. 589);
b. To answer for the acts of the substitute Requirements for the making of inventory:
(CIVIL CODE, Art. 590) without prejudice to (NDMAE)
his right of action against latter; a. The owner (or his legitimate representative)
c. To replace with the young thereof animals must be previously Notified to enable him to
that die or are lost when the usufruct is correct errors in the inventory, if he desires;
constituted on flock or herd of livestock
(CIVIL CODE, Art. 591); NOTE: The law says legitimate, not legal
d. To make ordinary repairs (CIVIL CODE, Art. representative, so that notice may be given
592, Par.1); in proper cases to the owner’s parents,
e. To permit works and improvements by the spouse, guardian, administrator, or agent
naked owner not prejudicial to the usufruct (DE LEON, Property, supra at 449).
(CIVIL CODE, Art. 595);
f. To pay annual taxes and charges on the Effect of Non-Notification: The inventory
fruits (CIVIL CODE, Art. 596); can go on but the naked owner may later
g. To pay interest on taxes on capital paid by point out discrepancies and omissions in the
the naked owner (CIVIL CODE, Art. 597); inventory (4 MANRESA 450-452 as cited in
h. To pay debts when the usufruct is constituted DE LEON, Property, supra at 450).
on the whole patrimony (CIVIL CODE, Art.
598); b. The condition of the immovables must be
i. To secure the naked owner’s or court’s Described;
approval to collect credits in certain cases. c. The Movables must be Appraised;
(CIVIL CODE, Art. 599); d. Expenses are to be borne by the
j. To notify the owner of any prejudicial act usufructuary, since the duty is his (2 PARAS,
committed by third persons (CIVIL CODE, supra at 611).
Art. 601); and
k. To pay expenses, costs, and liabilities in suits As a rule, no form is required except that
brought with regard to the usufruct (CIVIL when there are real properties, Art. 1358
CODE, Art. 602). demands a public instrument to affect third
parties (Id.).
3. At the termination of the usufruct:
a. To return the thing in usufruct to the owner When Inventory is NOT Required:
unless there is a right of retention (CIVIL a. When no one will be injured thereby (CIVIL
CODE, Art. 612); CODE, Art. 585), provided the naked owner
b. To pay legal interest on the amount spent by consents;
the owner for extraordinary repairs or taxes b. In case of waiver by the naked owner or the
on the capital (CIVIL CODE, Arts. 594 and law; or
597); and c. When there is stipulation in a will or contract
c. To indemnify the owner for any loss due to (2 PARAS, supra at 612).
his negligence or of his transferees (CIVIL
CODE, Arts. 589 and 590). 2. To give security (CIVIL CODE, Art. 583)
The usufructuary, before entering upon the
enjoyment of the property, is obliged to give
security, binding himself to fulfill the obligations accordance with the title constituting the usufruct,
imposed upon him (CIVIL CODE, Art. 583). he should have commenced to receive them
(CIVIL CODE, Art. 588).
This article does not apply if the usufructuary is
exempted from giving security. It applies only if Illustration: If the usufruct commences January
he is required but cannot afford to give security 3, 2014 but security is given March 3, 2014, the
(2 PARAS, supra at 618). usufructuary is entitled to all the proceeds and
benefits of the usufruct from January 3, 2014.
NOTE: Since the law does not specify what
kind of security should be given, it follows that EFFECTS OF FAILURE TO GIVE
any kind of sufficient security should be allowed SECURITY IF NOT EXEMPTED (CIVIL
— such as a cash or personal bond, mortgage,
etc. (Id.).
CODE, ART. 586):
a. On the rights of the naked owner
GENERAL RULE: The usufructuary has the i. He may deliver the property to the
obligation to give security, binding himself to fulfill usufructuary;
the obligations imposed upon him in accordance ii. He may choose retention of the property
with the Civil Code. as administrator;
iii. He may demand receivership or
EXCEPTIONS: administration (by another) of the real
a. When no one will be injured thereby (CIVIL property, sale of movable, conversion or
CODE, Art. 585); deposit of credit instruments, or
b. When there is waiver by the naked owner, investment of cash or profits (2 PARAS,
(4 MANRESA, supra at 464-467) or there is supra at 609);
a stipulation either in a will or by contract; iv. He may demand that the movables be
c. When the usufructuary is the donor of the sold;
property who has reserved the usufruct v. He may demand that the credit
(CIVIL CODE, Art. 584); instrument be converted into regular
d. When there is a parental usufruct, i.e., in the certificate of deposit; or
case of parents who are usufructuaries of vi. He may demand that the cash and
their children’s property (FAMILY CODE, Art. credits be invested in safe securities
225); and (DE LEON, Property, supra at 452).
e. In cases of caucion juratoria (CIVIL CODE, b. On the rights of the usufructuary
Art. 587; 2 PARAS, supra at 617). i. He cannot possess the property until he
gives security;
Caucion juratoria is a promise under oath to ii. He cannot administer the property;
take good care of the property and return the hence, he cannot execute a lease
same at the end of the usufruct. It takes the thereon (2 PARAS, supra at 616);
place of a bond or security and is based on iii. He cannot collect credits that have
necessity and humanity (Id.). matured, nor invest them unless the
Court or the naked owner consents
NOTE: In this kind of usufruct, the (CIVIL CODE, Art. 599);
usufructuary has no right to alienate his iv. But the usufructuary can alienate his
usufructuary right or lease the same for that right to the usufruct. The grantee may
would mean that he does not need the house possess the same from the moment he
or the furniture or the implements (Id.). gives security (2 PARAS, supra at 616).

Requisites Before Caucion Juratoria is NOTE: If the movable be sold, the cash
Allowed: (PANS) belongs to the naked owner, but the interest
i. Proper court petition; thereon (6% per annum) belongs to the
ii. Approval of the court; usufructuary (Id.).
iii. Necessity for delivery of furniture,
implements or house included in the OBLIGATIONS OF THE USUFRUCTUARY
usufruct; and DURING THE USUFRUCT
iv. Sworn promise (Id.).
1. To take care of the property as a good
Retroactive Effect of Security
father of a family (CIVIL CODE, Art. 589);
The usufructuary shall take care of the things
After the security has been given by the
given in usufruct as a good father of a family
usufructuary, he shall have a right to all the
(CIVIL CODE, Art. 589).
proceeds and benefits from the day on which, in
 Effect of Bad Use of the Property Held in 3. To notify the owner of urgent extra-
Usufruct (CIVIL CODE, Art. 610): ordinary repairs (CIVIL CODE, Art. 593);
a. If bad use does not cause considerable injury Extraordinary repairs shall be at the expense of
to the naked owner, usufruct continues, and the owner. The usufructuary is obliged to notify
the naked owner cannot demand the owner when the need for such repairs I urgent
administration by himself. (CIVIL CODE, Art. 593).
b. If bad use causes considerable injury to the
naked owner, usufruct continues but the Kinds of extra-ordinary repairs:
naked owner can demand delivery to and a. Those caused by natural use but not needed
administration by him, but he will be obliged for preservation.
to pay net proceeds to the usufructuary (2 i. The naked owner should be held liable,
PARAS, supra at 646). whether or not he is notified by the
usufructuary.
Being merely an administrator, he cannot sell or ii. The law does not require the naked
alienate the right to the usufruct, though he may owner to make them; what is important is
still alienate the property, without prejudice to the that he will bear the expenses made by
usufruct (Id. at 647). the usufructuary (2 PARAS, supra at
NOTE: The Court will determine whether or not 624).
there is considerable injury to the naked owner (4 b. Those caused by abnormal or exceptional
MANRESA, supra at 548-549 as cited in 2 circumstances and needed for
PARAS, supra at 647). preservation.
i. The naked owner shall be held liable.
2. To make ordinary repairs (CIVIL CODE, Art. ii. The usufructuary is allowed to make
592, Par.1); them, with the right to get the increase in
The usufructuary is obliged to make the ordinary value and the right of retention (until
repairs needed by the thing given in usufruct paid) at the termination of the usufruct,
(CIVIL CODE, Art. 592, Par. 1). provided that there was notification by
the usufructuary and failure to repair by
Ordinary repairs are understood such as are the naked owner (Id.).
required by the wear and tear due to the natural c. Those caused by abnormal or exceptional
use of thing and are indispensable for its circumstances but are not needed for
preservation (CIVIL CODE, Art. 592, Par. 2). preservation.
i. The naked owner is responsible.
For the usufructuary to be responsible for ii. The usufructuary cannot compel the
ordinary repairs, the following must concur: naked owner to make such repairs and
(NPOF) he is not allowed to make them even if
a. They are required by the wear and tear due the naked owner has failed to make them
to the Normal or natural use of the thing; (Id.).
b. They are indispensable for Preservation;
c. They must have Occurred during the 4. To answer for the acts of the substitute
existence of the usufruct; and (CIVIL CODE, Art. 590) without prejudice
d. They must have happened with or without the to his right of action against latter;
Fault of the usufructuary (2 PARAS, supra at A usufructuary who alienates or leases his right
622). of usufruct shall answer for any damage which
the things in usufruct may suffer through the fault
NOTE: If naked owner had demanded the repair, or negligence of the person who substitutes him
and the usufructuary still fails to do so, the owner (CIVIL CODE, Art. 590).
may make them (personally or through another)
at the expense of the usufructuary (CIVIL CODE, REASON: It is the duty of the usufructuary to
Art. 592, Par.2). preserve the form and substance of the thing in
usufruct (DE LEON, Property supra at 455).
Exemption from the duty to make or pay for
the necessary repairs by renouncing the NOTE: Even when there is a sub-usufructuary, it
usufruct: is still the usufructuary who answers to the naked
a. If the usufructuary had no fault, he can owner for ordinary repairs, taxes on the fruits, etc.
renounce, but he must surrender the fruits (2 PARAS, supra at 619).
received.
b. If he had fault, he cannot renounce. He would
still be liable for damages (2 PARAS, supra
at 622).
5. To replace with the young thereof 7. To pay annual taxes and charges and of
animals that die or are lost from natural those considered as a lien on the fruits
causes or due to rapacity of beasts or (CIVIL CODE, Art. 596);
prey when the usufruct is constituted on The payment of annual charges and taxes and of
flock or herd of livestock (CIVIL CODE, Art. those considered as a lien on the fruits, shall be
591); at the expense of the usufructuary for all the time
If the usufruct be constituted on a flock or herd of that the usufruct lasts (CIVIL CODE, Art. 596).
livestock, the usufructuary shall be obliged to
replace with the young thereof the animals that CHARGES OR TAXES TO BE PAID
die each year from natural causes or are lost due
CHARGE OWNER USUFRUCTUARY
to the rapacity of beasts of prey (CIVIL CODE,
Art. 591). Expenses
affecting the
REASON: This obligation is related to the need fruits
to preserve the form and substance of the
animals, i.e., the same number and condition (DE Land taxes
LEON, Property, supra at 484).
Taxes levied
NOTE: Sterile animals cannot be replaced and on the capital
shall be treated as fungible (CIVIL CODE, Art.
591, Par. 4). What Charges or Taxes the Usufructuary
Must Pay:
(For further discussion, see the section on a. The annual charges (in the fruits);
Special Usufructs, particularly on Art. 591). b. The annual taxes on the fruits; and
c. Theoretically, annual taxes on the land
6. To permit works and improvements by (including real estate tax) should also be paid
the naked owner not prejudicial to the by the usufructuary (2 PARAS, supra at 626-
usufruct (CIVIL CODE, Art. 595); 627).
The owner may construct any works and make
any improvements of which the immovable in NOTE: A real property tax, being a burden upon
usufruct is susceptible, or make new plantings the capital, should be paid by the owner of the
thereon if it be rural, provided that such acts do land, and not by a usufructuary (Board of
not cause a diminution in the value of the usufruct Assessment Appeals of Zamboanga del Sur v.
or prejudice the rights of the usufructuary (CIVIL Samar Mining Company, G.R. No. L-28034,
CODE, Art. 595). February 27, 1971).

Although the property is in the possession of the Other Charges on the Fruits the Usufructuary
usufructuary, the naked owner may still — Must Pay:
a. Construct works; a. Ordinary repairs; and
b. Make improvements; and b. Necessary cultivation expenses (2 PARAS,
c. Make new plantings (if rural) supra at 621).

Provided: 8. To pay interest on taxes on capital paid

a. The value of the usufruct is not diminished; by the naked owner (CIVIL CODE, Art.
or 597);
b. The right of the usufructuary is not prejudiced The taxes which, during the usufruct, may be
(CIVIL CODE, Art. 595). imposed directly on the capital, shall be at the
expense of the owner.
Effect of Increase in the Value of the Usufruct
a. The usufructuary’s profits will increase (for he If the latter has paid them, the usufructuary shall
will be entitled to the use and profits thereof); pay him the proper interest on the sums which
b. The usufructuary does not have to pay legal may have been paid in that character; and, if the
interest on the improvement (2 PARAS, said sums have been advanced by the
supra at 619). usufructuary, he shall recover the amount thereof
at the termination of the usufruct (CIVIL CODE,
Art. 597).
 The naked owner pays for the taxes imposed the rights of ownership, and he shall be liable
directly on the capital provided they are not should he not do so, for damages, as if they had
annual (2 PARAS, supra at 626). been caused through his own fault (CIVIL CODE,
Art. 601).
Rules regarding payment of interest on taxes 12. To pay for court expenses and costs
on capital: regarding usufruct (CIVIL CODE, Art.
a. If paid by the naked owner, he can demand 602).
legal interest on the sum paid (CIVIL CODE, The expenses, costs, and liabilities in suits
Art. 597, Par. 2); brought with regard to the usufruct shall be borne
b. If advanced (in the meantime) by the by the usufructuary (CIVIL CODE, Art. 602).
usufructuary, said usufructuary –
i. Should be reimbursed the amount paid This article particularly applies only when the
without legal interest. usufructuary has lost the case (2 PARAS, supra
ii. Is entitled to retention until paid (CIVIL at 626).
CODE, Art. 612).
NOTE: Since the expenses, costs and liabilities
9. To pay debts when the usufruct is mentioned are incurred in connection with
constituted on the whole patrimony litigation over the possession, use and enjoyment
(CIVIL CODE, Art. 598); of the thing in usufruct affecting the rights of the
NOTE: See discussion on Special Usufructs, usufructuary, it is just that they are borne by him.
particularly on Art. 598. Of course, if the litigation involves only the naked
ownership, the owner should assume them (DE
10. To secure the naked owner’s or court’s LEON, Property, supra at 492).
approval to collect credits in certain
cases (CIVIL CODE, Art. 599); OBLIGATIONS AT THE TERMINATION
The usufructuary may claim any matured credits OF THE USUFRUCT: (RPI)
which form a part of the usufruct if he has given 1. To Return the thing in usufruct to the owner
or gives the proper security. If (1) he has been unless there is a right of retention (CIVIL CODE,
excused from giving security or (2) has not been Art. 612);
able to give it, (3) or if that given is not sufficient, 2. To Pay legal interest on the amount spent by the
he shall need the authorization of the owner, or owner for extraordinary repairs or taxes on the
of the court in default thereof, to collect such capital (CIVIL CODE, Arts. 594 and 597); and
credit (CIVIL CODE, Art. 599). 3. To Indemnify the owner for any losses due to his
negligence or of his transferees (CIVIL CODE,
Rules: Arts. 589 and 590).
a. If the usufructuary has given security,
collection and investment can be done
without the approval or the court or of the
naked owner.
b. If he has not given security, or when he is
RIGHTS AND
exempted or when there was only a caucion OBLIGATIONS OF THE
juratoria, collection and investment can be
done only with the approval of the court or NAKED OWNER
the naked owner.

If the credit is collected, the same belongs to the

naked owner, but the usufructuary gets its RIGHTS OF THE OWNER DURING THE
usufruct. USUFRUCT: (RAC)
1. He Retains title;
Failure to collect due to usufructuary’s fault or 2. He may Alienate the property, but he may not:
negligence makes the usufructuary liable if the a. Alter the form or substance of the thing; or
credit has matured (2 PARAS, supra at 624). b. Do anything prejudicial to the usufructuary
(CIVIL CODE, Art. 581).
11. To notify the owner of any prejudicial act 3. He may Construct buildings, make improvements
committed by third persons (CIVIL CODE, and plantings, provided:
Art. 601); and a. That such acts do not cause a diminution in
The usufructuary shall be obliged to notify the the value of the usufruct; or
owner of any act of a third person, of which he b. That such acts do not prejudice the right of
may have knowledge that may be prejudicial to the usufructuary (CIVIL CODE, Art. 595).
OBLIGATIONS OF THE OWNER DURING EXCEPTIONS:
THE USUFRUCT: (RCR) a. A usufruct constituted in favor of several
persons living at the same time shall not be
1. To make Reimbursement for advances of the extinguished until the death of the last
usufructuary (CIVIL CODE, Art. 597); survivor (CIVIL CODE, Art. 611);
2. To Cancel the security, upon discharge of the
usufructuary’s obligations (CIVIL CODE, Art. Rule in Case of Multiple Usufruct (CIVIL
612); and CODE, Art. 611)
3. To Respect leases of rural lands by the i. If constituted simultaneously, it is
usufructuary for the balance of the agricultural evident that all the usufructuaries must
year (CIVIL CODE, Art. 572). be alive at the time of the constitution.
The death of the last survivor
extinguishes the usufruct.
ii. If constituted successively, Art. 611
EXTINGUISHMENT OF also applies. However, to constitute
USUFRUCT successive usufructs, it is essential that:
1.) If the successive usufructs were
(ARTS. 603-612) constituted by virtue of a donation,
all the donee-usufructuaries must be
living at the time of the constitution-
donation of the usufruct (CIVIL
SUMMARY OF EXTINGUISHMENT OF CODE, Art. 756).
USUFRUCT: 2.) If the successive usufructs were
Usufruct is extinguished: (DEM-RTT-P) constituted by virtue of a last will,
1. By the Death of the usufructuary, unless a there should be only 2 successive
contrary intention clearly appears; usufructuaries; and both must have
2. By the Expiration of the period for which it was been alive at the time of the
constituted, or by the fulfillment of any resolutory testator’s death (CIVIL CODE, Arts.
condition provided in the title creating the 863 and 869; 2 PARAS, supra at
usufruct; 647-648).
3. By Merger of the usufruct and ownership in the
same person; NOTE: The owner of the property imposed
4. By Renunciation of the usufructuary; as condition for the continuation of the
5. By the Total loss of the thing in usufruct; usufruct over the property by his kins that
6. By the Termination of the right of the person they should maintain an atmosphere of
constituting the usufruct; or cooperation, live in harmony and avoid
7. By Prescription (CIVIL CODE, Art. 603). bickering. There was a continuing animosity
among the kins, hence, it is a ground for
termination of the usufruct. The deterioration
MODES OF EXTINGUISHMENT OF of the relations of the kins to an almost
USUFRUCT: (DEM-RTT-PO) (CIVIL CODE, irretrievable level is a good reason for the
Art. 603): termination of the usufruct (Moralidad v.
1. Death of the usufructuary. Pernes, G.R. No. 152809, August 3, 2006).
GENERAL RULE: Death of the usufructuary
generally ends the usufruct. b. In case there is a period fixed based on the
number of years that would elapse before a
This is true even if a resolutory condition or period person would reach a certain age, unless the
has been stipulated and death occurs before the period was expressly granted only in
expiration of the period or fulfillment of the consideration of the existence of such
condition (DE LEON, Property, supra at 465). person, in which case it ends at the death of
said person (CIVIL CODE, Art. 606); and
NOTE: It is the death of the usufructuary which c. In case the contrary intention clearly appears
generally results in the termination of the (4 MANRESA 525-528 as cited in 2 PARAS,
usufruct. Hence, the death of the naked owner supra at 635).
will not extinguish the usufruct unless the parties
expressly so stipulate (RABUYA, Property, supra 2. Expiration of the period or fulfillment of
at 497). the resolutory condition.
If the usufructuary is a juridical person, the term
should not exceed 50 years (CIVIL CODE, Art.
605).
 Premature abandonment or dissolution of the the indemnity given to him, the usufruct being
juridical entity extinguishes the usufruct (CIVIL totally extinguished.
CODE, Art. 605). c. If the usufructuary alone was given the
indemnity, he must give it to the naked owner
3. Merger of the usufruct and ownership in and compel the latter to return either the
the same person. interest or to replace the property. He may
Takes place when the rights of usufruct and even deduct the interest himself, if the naked
owner are acquired by one and the same person owner fails to object (2 PARAS, supra at 645
who becomes the absolute owner of the property - 646).
(DE LEON, Property, supra at 467).
NOTE: A usufruct is not extinguished by bad use
Illustration: H was the usufructuary of land of the thing held in usufruct (RABUYA, Property,
owned by X. X died, leaving in his will, the naked supra at 500).
ownership of the land to H. The usufruct is
extinguished because now, H is both the naked 6. Termination of right of the person
owner and the usufructuary (2 PARAS, supra at constituting the usufruct.
629). The termination refers to the right of the person
constituting the usufruct, not to a condition
4. Renunciation of the usufructuary. imposed upon the usufruct itself. Thus, if a
The surrender of the rights as usufructuary refers person constituted the usufruct with the belief
to a voluntary surrender of the very rights which that he was the owner but was later defeated in
the usufructuary has, made by him with the intent an action concerning its ownership, it follows that
to so surrender them (City of Manila v. Monte de the usufruct must also terminate (DE LEON,
Piedad, G.R. No. 1975, Nov. 10, 1905). Property, supra at 497).

NOTE: It is really an abandonment by the a. If the usufructuary has a sub-usufructuary,

usufructuary of his right and does not, therefore, the latter ends at the time the usufruct is
require the consent of the naked owner but it is extinguished;
subject to the rights of creditors (DE LEON, b. Death of the naked owner does not
Property, supra at 496). extinguish the usufruct for the rights of the
naked owner are transmitted to his own heirs
5. Total loss of the thing. (2 PARAS, supra at 637).
GENERAL RULE: A total loss would result to the
extinguishment of the usufruct. A thing is lost 7. Prescription.
when it perishes, or goes out of commerce, or a. This refers to the acquisitive prescription
disappears in such a manner that its existence is (CIVIL CODE, Arts. 1006 and 1117) by a
unknown or it cannot be recovered. Hence, loss stranger either of the usufruct or of the naked
may either be physical or juridical (RABUYA, ownership (CIVIL CODE, 603(7)).
Property, supra at 499). b. Mere non-use of the usufructuary does not
terminate the usufruct, unless it is also a
EXCEPTIONS: renunciation (2 PARAS, supra at 631).
a. If the usufruct is constituted on a building and
the latter is destroyed without the fault of the 8. Other causes
usufructuary, the usufruct is not extinguished a. Annulment/rescission of contract;
and Arts. 607-608 would apply; and b. Mutual consent;
b. If the property held in usufruct was c. Attainment of age of majority of a child whose
expropriated for public use, the usufruct is property is under parental usufructuary
not extinguished. (FAMILY CODE, Arts. 225 and 226); and
d. Other legal causes resulting in the
Rule in Case of Expropriation (CIVIL CODE, termination of the usufruct (2 PARAS, supra
Art. 609): at 631).
a. If the naked owner alone was given the
indemnity, he has the option to:
i. Replace with equivalent thing; or
ii. Pay to the usufructuary legal interest on
the indemnity, with the obligation to give
security for the payment of interest.
b. If both the naked owner and the usufructuary
were separately given indemnity, each own
 NOTE: Easement is a real right since the right is
EASEMENT OR constituted on the thing itself and not upon its
owner or its occupant (RABUYA, Property, supra
SERVITUDE at 502).
(ARTS. 613-693) As a consequence, the right avails against every
person whomsoever, who may happen, for the
time being, to have any interest in the thing, or,
as adverse possessor, to exercise a right of
EASEMENT
dominion over it. The right consists of a limited
An easement or servitude is an encumbrance use and enjoyment of the thing without
imposed upon an immovable for the benefit of possession and gives rise to an action in rem in
another immovable belonging to a different owner favor of the owner of the tenement of the
(CIVIL CODE, Art. 613). However, servitudes may easement and against any possessor of the
also be established for the benefit of a community, or servient estate (Id.).
of one or more persons to whom the encumbered
estate does not belong (CIVIL CODE, Art. 614).
2. It is enjoyed over another immovable,
The other aspect of easement or servitude refers to
never on one’s own property;
the right of servitude (jus servitutes), or the right
It operates as a limitation on the title of the owner
which corresponds to the burden imposed. From
of the servient estate, specifically, his right to
this viewpoint, an easement or servitude may thus be
use (jus utendi). Inasmuch as every easement
defined as “a real right, constituted on the corporeal
or servitude is a limitation upon one’s ownership,
immovable property of another, by virtue of which the
it follows that no man has a right of servitude in a
owner has to refrain from doing, or must allow
thing of which he is the owner: Nulli res sua servit.
someone to do, something on his property, for the
For if he had, he would have a right in the thing
benefit of another thing or person” (RABUYA,
against himself: which is, of course, absurd
Property, supra at 502).
because things serve their owner by reason of
ownership and not because of any servitude (Id.
While Article 613 speaks of a real easement,
at 503).
Article 614 speaks of a personal easement. Both
however are real rights, but will prejudice third
Note: The term “immovable,’’ as used in the
persons only if duly registered (2 PARAS, supra at
law, must be understood in its common and not
652).
in its legal sense. What the law treats of are not
all immovables as defined by the Civil Code, but
EASEMENT V. SERVITUDE only those which are so by their nature (are really
EASEMENT SERVITUDE incapable of being moved), such as lands, roads,
buildings, and constructions adhering to the soil
As to Origin (DE LEON, Property, supra at 507).
Derived from Common Derived from Roman
3. It involves two neighboring estates (in
law. Law.
case of real easements) - the dominant and
As to Recipient of Benefit the servient estate (CIVIL CODE, Art. 613);

Always real. May be real or Dominant Estate

personal. The immovable in favor of which the easement is
established (CIVIL CODE, Art. 613).
As to Concept
Servient Estate
Right enjoyed by one. Burden imposed upon
That which is subjected to easement (CIVIL
the other.
CODE, Art. 613).
(Id. at 651; RABUYA, Property, supra at 502).
4. It is inseparable from the estate to which
NOTE: As used in the Civil Code, easement is it is attached, and, therefore, cannot be
equivalent to servitude (2 PARAS, supra at 650). alienated or mortgaged independently of the
estate (CIVIL CODE, Art 617);
CHARACTERISTICS:
1. It is a real right but will affect third persons
only when duly registered;
5. It is indivisible for it is not affected by the EASEMENT V. USUFRUCT
division of the estate between two or more
EASEMENT USUFRUCT
persons. (CIVIL CODE, Art. 618);
As to Scope
As a consequence, even if the servient and
dominant estates are divided between two or Imposed only on real May involve either real
more persons, the easement or the servitude property. or personal property.
continues to attach to the estates originally
affected (RABUYA, Property, supra at 515).
As to Use of Property
6. It is a right limited by the needs of the
Limited to particular or Includes all the uses
dominant owner or estate, without
specific use of the and the fruits of the
possession; servient estate. property.
7. It cannot consist in the doing of an act
unless the act is accessory in relation to a As to Right of Possession
real easement; and
8. It is a limitation on the servient owner’s rights A non–possessory right Involves a right of
of ownership for the benefit of the dominant over an immovable. possession in an
immovable or movable.
owner; and therefore, it is not presumed (DE
LEON, Property, supra at 478-479). As to Extinguishment
NOTE: It is an abnormal restriction on the Not extinguished by the Extinguished by the
property rights of the servient owner. Thus, it is death of the dominant death of the
incumbent upon the dominant estate owner to owner. usufructuary.
establish the presence of all the preconditions for
easement (Cristobal v. CA, G.R. No. 125339, As to Alienability
June 22, 1998).
Cannot be alienated. Generally, can be
EASEMENT V. LEASE alienated.

EASEMENT LEASE (Id. At 482; 2 PARAS, supra at 652).

As to Consideration Whether a Real Right SUMMARY OF EASEMENT

CLASSIFICATION
Real right, whether Real right only when it is
1. As to Recipient of Benefit:
registered or not. registered, or when its
a. Real/Predial; or
subject matter is real
b. Personal.
property and the
2. As to Source:
duration exceeds one
a. Voluntary;
year.
b. Legal; or
As to Scope c. Mixed.
3. As to Exercise
Imposed only on real May involve either real a. Continuous; or
property. or personal property. b. Discontinuous.
4. As to Indication of their existence
As to Limitation a. Apparent; or
b. Non-apparent.
There is a limited right Limited right to both the 5. As to the Duty of the Servient Estate
to the use of real possession and use of a. Positive; or
property of another but another’s property. b. Negative.
without the right of 6. As to the Right Given
possession. a. Partial use of servient estate;
(DE LEON, Property, supra at 481). b. Participation in ownership;
c. Prevention of servient estate from performing
a specific act of ownership; or
d. Acquisition of specific materials or objects
from the servient estate.
CLASSIFICATION OF EASEMENTS: intervention of any act of man (CIVIL CODE,
Art. 615).
1. As to recipient of benefit:
a. Real/ Predial – imposed upon an immovable
Example: Easement of aqueduct (CIVIL
for the benefit of another immovable
CODE, Art. 646)
belonging to a different owner (CIVIL CODE,
Art. 613).
NOTE: For an easement to be considered
“continuous,” its use does not have to be
Illustration: Easement of water where lower
incessant; it is enough that the use may be
estates are obliged to allow water naturally
incessant (DE LEON, Property, supra at
descending from upper estates to flow into
486).
them (CIVIL CODE, Art. 637).
b. Discontinuous Easements – those which
b. Personal – established for the benefit of a
are used at intervals and depend upon the
community, or of one or more persons to
acts of man (CIVIL CODE, Art. 615).
whom the encumbered estate does not
belong (CIVIL CODE, Art. 614).
Example: Easement of right of way which is
used at intervals, because it can be
Example: Easements of the right of way for
exercised only if a man passes over
the passage of livestock (CIVIL CODE, Art.
somebody else’s land (CIVIL CODE, Art.
657)
649, Par. 3; 2 PARAS, supra at 656)
NOTE: In a personal servitude, there is no
NOTE: The easement itself exists
“owner of a dominant tenement” to speak of,
continuously but its exercise may be
and the easement pertains to persons
continuous or discontinuous or there may be
without a dominant estate, in this case, the
no exercise at all (DE LEON, Property, supra
public at large (Solid Manila Corp. v. Bio
at 486).
Hong Co., Inc., G.R. No. 90596, April 8,
1991).
For legal purposes, the easement of
aqueduct is considered continuous, even
i. Public – if it is vested in the public at
though the flow of water may not be
large or in some class of indeterminate
continuous, or its use depends upon the
individuals.
needs of the dominant estate, or upon a
ii. Private – if it is vested in a determinate
schedule of alternate days or hours (CIVIL
individual or certain persons (DE LEON,
CODE, Art. 646).
Property, supra at 484).
NOTE: When the court says that an
2. As to its source: easement exists, it is not creating one
a. Voluntary – when the easement is (hence, there are no judicial easements). It
established by the will or agreement of the merely declares the existence of an
parties or by a testator (CIVIL CODE, Art. easement created by law or by the parties or
619; 2 PARAS, supra at 658); testator (La Vista Association, Inc. v. CA,
G.R. No. 95252, September 5, 1997).
Note: Voluntary easements must be
recorded in the Registry of Property to
4. As to the indication of their existence:
prejudice third persons (CIVIL CODE, Art.
a. Apparent Easements – those which are
708).
made known and are continually kept in view
by external signs that reveal the use and
b. Legal – when it is imposed by law either for
enjoyment of the same (CIVIL CODE, Art.
public use or in the interest of private persons
615).
(CIVIL CODE, Art. 619; 2 PARAS, supra at
658); and
Example: Easement of aqueduct, the
easement of aqueduct is always apparent,
c. Mixed – when it is created partly by will or
whether or not it can be seen (CIVIL CODE,
agreement and partly by law (CIVIL CODE,
Art. 646).
Art. 619; 2 PARAS, supra at 658).
NOTE: The mark or sign need not be seen
3. As to its exercise: but should be susceptible of being seen (DE
a. Continuous Easements – those the use of LEON, Property, supra at 486).
which are or may be, incessant without the
 b. Non–apparent Easements – those which
show no external indication of their existence MODES OF ACQUIRING
(CIVIL CODE, Art. 615).
EASEMENT
Example: Easement of lateral and subjacent
support (2 PARAS, supra at 657)
(ARTS. 620-626)
5. As to duty of servient owner:
a. Positive – one which imposes upon the MODES OF ACQUISITION: (TPDFA)
owner of the servient estate the obligation of
allowing something to be done or of doing it 1. By Title
himself (CIVIL CODE, Art. 616). By “title’’, it does not necessarily mean document.
It refers to the juridical act or law sufficient to
Example: Easement of right of way which create the encumbrance, such as law, donation,
imposes upon the owner of the servient contract, and will of the testator (2 PARAS, supra
estate the duty to allow the use of said way. at 665).

b. Negative – one which prohibits the owner of NOTE: The following easements may be
the servient estate from doing something acquired only by title:
which he could lawfully do if the easement a. Continuous non-apparent easements;
did not exist (CIVIL CODE, Art. 616). b. Discontinuous apparent easements; and
c. Discontinuous non-apparent easements
Example: Easement of light and view if (Id.).
made on one’s own wall and the wall does
not extend over the property of another (DE 2. By Prescription of 10 years irrespective of
LEON, Property, supra at 488) the good or bad faith of the possessor and
whether or not he has just title. The only
6. As to the right given: requirement is adverse possession.
a. Right to partially use the servient estate;
NOTE: Only continuous and apparent
Example: Right of way easements can be acquired by prescription
(CIVIL CODE, Art. 620). They are the only ones
b. Right to get specific materials or objects from the possession of which fulfills two important
the servient estate; requisites required by law for prescription, to wit:
that the possession be public and continuous.
Example: Easement of drawing water
a. Positive servitude – computed from the day
c. Right to participate in ownership; or on which the owner of the dominant estate,
or the person who may have made use of the
Example: Easement of party wall easement, commenced to exercise it upon
the servient estate (CIVIL CODE, Art. 621).
d. Right to impede or prevent the neighboring
estate from performing a specific act of b. Negative servitude – computed from the
ownership day on which the owner of the dominant
estate forbade, by an instrument
Example: Easement of intermediate distances acknowledged before a notary public, the
as when the servient estate cannot plant trees owner of the servient estate, from executing
without observing certain distances (2 PARAS, an act which would be lawful without the
supra at 657-658). easement (CIVIL CODE, Art. 621).

There must be a notarized document

executed by anyone who desires to establish
the easement. Thus, there is no easement for
as long as the dominant owner does not
exercise his right to prohibit servitude (CIVIL
CODE, Art. 621).

3. By Deed of recognition
The absence of document or proof showing origin
of an easement which cannot be acquired by
 prescription may be cured by a deed of (Resolme v. Lazo, G.R. No. L-8654, March
recognition by the owner of the servient estate or 30, 1914);
by final judgment (CIVIL CODE, Art. 623).
c. To Renounce totally the easement if he
Easement exists even if acquired by oral contract desires to exempt himself from contribution
or by virtue of some document that has been lost to necessary expenses (CIVIL CODE, Art.
(DE LEON, Property, supra at 496). 628; 2 PARAS, supra at 675); and

4. By Final judgment
NOTE: If the owner of the servient estate refuses d. To Exercise all the rights necessary for the
to execute the deed of recognition, the court may, use of the easement (CIVIL CODE, Art. 625).
in its judgment, declare the existence of the
easement (Id. at 492). NOTE: If there be several owners of
dominant estate, expenses that will be
5. By Apparent sign established by the owner incurred in making the work shall be borne in
of two adjoining estates, unless at the time by all in proportion to the benefits which each
the ownership of the two estates is divided: may derive therefrom (RABUYA, Property,
a. There are contrary stipulations in the title of supra at 530).
conveyance of either of them; or
b. The sign is removed before the execution of OBLIGATIONS OF PARTIES
the deed (CIVIL CODE, Art. 624). 1. Obligations of a dominant owner:
(ABOUNCE)
a. He cannot Alter the easement or render it
more burdensome (CIVIL CODE, Art. 627);
RIGHTS AND b. He cannot use the easement except for the
OBLIGATIONS OF THE Benefit of the immovable originally
contemplated (CIVIL CODE, Art. 626);
PARTIES TO EASEMENTS c. He cannot exercise the easement in any
Other manner than that previously
(ARTS. 627-630) established (CIVIL CODE, Art. 626);
d. He may make any works or construct
anything which is necessary for the Use and
preservation of the servitude (CIVIL CODE,
PARTIES: Art 627, Par. 1);
1. Dominant owner e. He shall Notify the servient owner of works
The owner of the immovable in favor of which the necessary for the use and preservation of the
easement is established (CIVIL CODE, Art. 613). servitude (CIVIL CODE, Art. 627, Par. 2);
f. He must Choose the most convenient time
2. Servient owner and manner in making the necessary works
The owner of the immovable whose property is as to cause the least inconvenience to the
subject to easement for the benefit of the servient owner (CIVIL CODE, Art. 627, Par.
dominant owner (CIVIL CODE, Art. 613). 2); and
g. He must contribute to the necessary
RIGHTS OF PARTIES: Expenses if there are several dominant
estates (CIVIL CODE, Art. 628, Par. 1).
1. Rights of a dominant owner: (MARE)
a. To Make on the servient estate all the works NOTE: He may only exercise rights
necessary for the use and preservation of the necessary for use of easement (DE LEON,
servitude, provided: Property, supra at 500).
i. This must be at his own expense;
ii. He must notify the servient owner; 2. OBLIGATIONS OF A SERVIENT OWNER:
iii. Select most convenient time and manner
so as to cause the least inconvenience to
(ICoRP)
a. He cannot Impair the use of the easement
the servient owner; and
(CIVIL CODE, Art. 629, par. 1);
iv. He must not alter the easement nor
b. Contribute to the necessary expenses in
render it more burdensome (CIVIL
case he uses the easement, unless there is
CODE, Art. 627).
an agreement to the contrary (CIVIL CODE,
Art. 628, Par. 2);
b. To Ask for mandatory injunction to prevent
impairment of his use of the easement
 c. In case of impairment, to Restore conditions 6. Non–use for 10 years;
to the status quo at his expense, plus Reckoning period:
damages (3 SANCHEZ ROMAN, supra at a. Discontinuous easement - counted from
609); and the day the easement ceased to be used
d. To Pay for the expenses incurred for the (CIVIL CODE, Art. 631 Par. 2).
change of location (CIVIL CODE, Art. 629, b. Continuous easement - counted from the
par. 2). day an act adverse to the exercise of
easement took place (CIVIL CODE, Art. 631,
Par. 2).

EXTINGUISHMENT OF This mode is applicable only to easements that

have been in use and later abandoned, for one
EASEMENTS cannot discontinue using what one has never
(ARTS. 631-633) used (DE LEON, Property, supra at 507).

The proof of non-user must be indubitable and

this is particularly true if the easement of right of
MODES OF EXTINGUISHMENT OF way was annotated in the Torrens Title
(Benedicto v. CA, G.R. No. L-22733, September
EASEMENTS IN GENERAL: (REMAIN- 25, 1968).
BREW)
1. Redemption agreed upon between the The non-user must be due to the dominant
owners of the dominant and servient estates; owner’s voluntary abstention and not to fortuitous
NOTE: Pertains to voluntary redemption. event; otherwise, there is only suspension of
easement (2 TOLENTINO, Civil Code, supra at
2. Expiration of the term or fulfillment of the 376).
resolutory condition;
Example: An easement was agreed upon to last The running of the 10-year period will be
until the owner of the dominant easement prevented by the use of the easement of any of
becomes a lawyer. When the condition is fulfilled, the co-owners of the dominant estate (CIVIL
the easement ceases (Id. at 686). CODE, Art. 633).

3. Merger of the ownership of the dominant and 7. Bad condition

servient estates; – when either or both estates fall into such a
condition that the easement could not be used;
A merger exists when ownership of the dominant
and servient estates is consolidated in the same
NOTE: This merely suspends since possibility of
person. Merger then, as can be seen, requires
use revives the easement (CIVIL CODE, Art. 631
full ownership of both estates (Solid Manila
Par. 3).
Corporation v. Bio Hong Co. Inc., G.R. No.
90596, April 8, 1991).
8. Resolution of the right to create the
The merger must be absolute, complete, not servitude, (i.e., in case of pacto de retro, when
temporary (if it is temporary, there is only the property is redeemed);
suspension of easement) (4 MANRESA 467 as
cited in 2 PARAS, supra at 677). 9. Expropriation of the servient estate; and

4. Annulment of the title to the servitude;

10. Waiver or renunciation by the dominant
5. Permanent Impossibility to use the owner.
easement; Waiver or renunciation must be express, clear,
Mere impossibility to use the easement merely and specific (DE LEON, Property, supra at 504).
suspends the same (RABUYA, Property, supra at
633). The mere fact that it has not been used at all
cannot give rise to the conclusion that there has
To be permanent, the causes of the impossibility been a waiver (2 PARAS, supra at 680).
of the use must be irreparable. If they are
reparable, the easement may still be The sale of the dominant estate does not
extinguished if the 10-year period by non-user extinguish the easement. There must be a
has already lapsed (Id.). statement abolishing or extinguishing it. Hence,
 the use of the servient estate is continued by c. Easement on Riparian property (CIVIL
operation of law (Tanedo v. Hon. Bernad, G.R. CODE, Art. 638; P.D. No. 1067, Art. 51);
No. 66520, August 30, 1988). d. Easement of Aqueduct (CIVIL CODE, Art.
642-646); and
OTHER CAUSES FOR EXTINGUISHMENT e. Easement for Drawing water (CIVIL CODE,
OF EASEMENT Art. 640 and 641).
2. Easement of Right of way (CIVIL CODE, Art. 649-
1. Registration of the servient estate as free, i.e., 657);
although the servient estate was registered under 3. Easement of Party wall (CIVIL CODE, Art. 658-
the Torrens system, the easement thereon was 666);
not registered, unless there is a stipulation or 4. Easement of Light and view (CIVIL CODE, Art.
actual knowledge of the existence of easement 667-673);
on the part of the transferee (Cid v. Irene P. 5. Easement of Drainage of buildings (CIVIL CODE,
Javier, G.R. No. L-14116, June 30, 1960); Art. 674-676);
6. Easement of Distances (CIVIL CODE, Art. 677-
2. In the case of the legal easement of right of way, 681);
the opening of an adequate outlet to the highway 7. Easement of Nuisance (CIVIL CODE, Art. 682-
extinguishes the easement, if the servient owner 683); and
makes a demand for such extinguishment (CIVIL 8. Easement of lateral and subjacent Support
CODE, Art. 655). (CIVIL CODE, Art. 684-687).

1. EASEMENT OF DRAINAGE OF
LEGAL EASEMENTS WATERS
NOTE: Art. 637 of the Civil Code has already
(ARTS. 634-687) been superseded by Art. 50 of the Water Code.

Lower estates (servient estates) are obliged to

receive the waters which naturally and without
These are easements imposed by law which have for the intervention of man flow from the higher
their object either public use or the interest of private estate (dominant estate), as well as the stone or
persons (CIVIL CODE, Art. 634). earth which they carry with them (WATER
CODE, Art. 50).
KINDS OF LEGAL EASEMENTS:
1. Public legal easements The owner of the lower estate cannot construct
– Those for public or communal use and works which will impede this natural flow, unless
governed primarily by special laws and by the he provides an alternative method of drainage
Civil Code; and (WATER CODE, Art. 50).

2. Private legal easements Neither can the owner of the higher estate make
– Those for the interest of private persons or for works which will increase this natural flow (DE
private use and governed LEON, Property, supra at 515).
a. Primarily by the agreement of the interested
parties; Right of higher estate to drain water
b. In the absence thereof, by the provisions of The owner of the higher estate has the right to
general or local laws and ordinances; and employ artificial means to drain water from higher
c. In default of (a) and (b), by Articles 634-687 to lower land provided that:
of the Civil Code (DE LEON, Property, supra a. He shall select the routes and methods that
at 514). will cause the minimum damage to the lower
lands; and
CLASSES OF PRIVATE LEGAL b. Pay just compensation (WATER CODE, Art.
46).
EASEMENTS: (WaR-PaL- DraDiNuSu)
1. Easement relating to Waters (CIVIL CODE, Art. NOTE: Water right, such as the right to use a
637-648): (DARAD) drainage ditch for irrigation purposes, which are
a. Easement of Drainage of waters (CIVIL appurtenant to a parcel of land, pass with
CODE, Art. 637; P.D. No. 1067, otherwise conveyance of the land, although not specifically
known as Water Code of the Philippines, Art. mentioned in the conveyance (Valisno v.
50 [hereinafter WATER CODE]); Adriano, G.R. No. L-37409, May 23, 1988).
b. Easement of Abutment of dam (CIVIL CODE,
Art. 639);
 Q: X owns an agricultural land planted mostly 3. EASEMENT OF ABUTMENT OR
with fruit trees. Y owns an adjacent land devoted BUTTRESS OF A DAMOR ESTRIBO
to his piggery business, which is two (2) meters
higher in elevation. Although Y has constructed a DE PRESA (CIVIL CODE, Art. 639)
waste disposal lagoon for his piggery, it is Whenever for the diversion of taking of water
inadequate to contain the waste water containing from a river or book, or for the use of any
pig manure, and it often overflows and inundates continuous or discontinuous stream, it should be
the plantation of X. This has increased the acidity necessary to build a dam, and the person who is
of the soil in the plantation, causing the trees to to construct it is not the owner of the banks, or
wither and die. X sues for damages caused to lands which must support it, he may establish the
his plantation. Y invokes his right to the benefit of easement of abutment of a dam, after payment of
a natural easement in favor of his higher estate, the property indemnity (CIVIL CODE, Art. 639).
which imposes upon the lower estate of X the
obligation to receive the waters descending from A person may establish the easement of
the higher estate. Is Hernando correct? abutment of a dam, provided that: (PIN2S)
a. The Purpose is to divert or take water from a
ANS: No, Y is incorrect. As worded, Art. 637 of river or brook, or to use any other continuous
the Civil Code in relation to Art. 50 of the Water or discontinuous stream;
Code, imposes a natural easement upon the b. Payment of the proper Indemnity is made;
`lower estate to receive the waters which c. It is Necessary to build a dam;
naturally and without the intervention of man d. The person to construct it is Not the owner of
descend from higher states. However, where the banks or lots which must support it; and
the waters which flow from a higher state are e. He must Seek the permission of the owner,
those which are artificially collected in man- and in case of the latter’s refusal, he must
made lagoons, any damage occasioned secure authority from the proper
thereby entitles the owner of the lower or administrative agency.
servient estate to compensation. (Remman
Enterprises Inc. v. CA, G.R. No. 125018, April 6, If the construction of the dam is unauthorized, it
2000). can be considered a private nuisance; thus, it can
be lawfully removed (DE LEON, Property, supra
2. EASEMENT ON RIPARIAN at 517).
PROPERTY
4. EASEMENT FOR DRAWING WATER
NOTE: Art. 638, Par. 1 of the Civil Code has been
modified by Art. 51 of the Water Code. Article 51 AND WATERING ANIMALS (CIVIL
of the Water Code states that the banks of rivers CODE, Arts. 640 and 641)
and streams and the shores of the seas and lakes Compulsory easements for drawing water or for
throughout their entire length and within a zone watering animals can be imposed only for
of three (3) meters in urban areas, twenty (20) reasons of public use in favor of a town or village,
meters in agricultural areas, and forty (40) after payment of the proper indemnity (CIVIL
meters in forest areas along their margins are CODE, Art. 640).
subject to the easement of public use in the
interest of recreation, navigation, floatage, fishing Requisites: (WIFIS)
and salvage. a. The right of Way should have a maximum
width of 10 meters (4 MANRESA, supra at
Limitation: No person shall be allowed to stay in 722-723);
this zone longer than what is necessary for b. Must be Imposed for reasons of public use;
recreation, navigation, floatage, fishing or c. Must be in Favor of a town or village;
salvage or to build structures of any kind d. Indemnity must be paid; and
(WATER CODE, Art. 51).
NOTE: The indemnity for easement of right
Real Party in Interest of way must also be included, because the
The proper party entitled to institute a case with easement for drawing water carries with it the
respect to the 3-meter strip/zone of Mahabang easement of right of way (RABUYA,
Ilog Creek was the Republic of the Philippines Property, supra at 539).
through the OSG and the local government of
Las Pinas City and not the subdivision developer e. Must be Sought not by one individual, but by
(Pilar Development Corp. v. Dumadag, G.R. No. the town or village, through its legal
194336, March 11, 2013). representation (4 MANRESA, supra at 722-
723).
5. EASEMENT OF AQUEDUCT (CIVIL Requisites: (TIDEs)
CODE, Arts. 642-646) a. Third persons should not be prejudiced;
b. Purpose must be for Irrigation or
Any person who may wish to use upon his own improvement;
estate any water of which he can dispose shall c. Damages must be paid; and
have the right to make it flow through the d. The construction must be on the Estate of
intervening estates, with the obligation to another (CIVIL CODE, Art. 647).
indemnify their owners, as well as the owners of
the lower estates upon which the waters may
filter or descend (CIVIL CODE, Art. 642). 7. EASEMENT OF RIGHT OF WAY
Modes of Acquisition:
Requisites: (SIC2) a. By a voluntary title (voluntary easement)
a. He must prove that the water is Sufficient for – it is constituted by covenant and does not
the intended use; require that the dominant estate be isolated
b. Indemnity must be paid; and without an adequate outlet to a public
c. Dominant owner must prove that he has the highway (CIVIL CODE, Arts. 688-693); and
Capacity to dispose of the water; and
d. The course is most Convenient, and least b. By a compulsory title (compulsory
onerous to the third person (CIVIL CODE, easement)
Arts. 642 and 643). – if an estate is so isolated and without an
adequate outlet to a public highway, the grant
Limitation: thereof is legally demandable (CIVIL CODE,
The easement of aqueduct for private interest Arts. 649-657; RABUYA, Property, supra at
cannot be imposed on buildings, courtyards, 642).
annexes, or outhouses, or on orchards or
gardens already existing (CIVIL CODE, Art. 644). Who may Demand Compulsory Right of
Way: (OUR)
NOTE: Notwithstanding the easement of i. Owner of the dominant estate
aqueduct, the servient owner may close or fence ii. Persons with Real right to use the
his estate, or build over the aqueduct so long as dominant estate; and
no damage is caused to the aqueduct or the iii. Usufructuary (Id. at 550).
necessary repairs and cleanings of the same are
not rendered impossible (CIVIL CODE, Art. 645). NOTE: A mere lessee is not entitled to
demand a right of way; his action is against
For legal purposes, easement of aqueduct is the lessor (Id.).
apparent and continuous, and thus, susceptible
of acquisitive prescription (CIVIL CODE, Art. Requisites of Compulsory Right of Way:
646). (CD-RIPE)
i. Claimant must be the owner of the
When the use, conveyance or storage of water enclosed immovable or one with real
results in damage to another, the person right;
responsible for the damage shall pay ii. The Dominant estate is surrounded by
compensation (WATER CODE, Art. 47). other immovables and there must be no
adequate outlet to a public highway;
6. EASEMENT FOR THE iii. Right of way must be absolutely
necessary;
CONSTRUCTION OF A STOP LOCK iv. Isolation must not be due to the
OR SLUICE GATE (CIVIL CODE, Art. claimant’s own act;
647) v. Payment of proper indemnity; and
One who for the purpose of irrigating or improving 1.) If passage is continuous and
his estate, has to construct a stop lock or sluice permanent:
gate in the bed of the stream from which the Indemnity = value of land occupied +
water is to be taken, may demand that the owners amount of damages caused to the
of the banks permit its construction, after servient estate; and
payment of damages, including those caused by 2.) If passage is temporary:
the new easement to such owners and to the Indemnity = payment of damage
other irrigators (CIVIL CODE, Art. 647). caused (DE LEON, Property, supra
at 512-522).
PURPOSE: To take water for irrigation or to vi. Easement must be established at the
improve an estate point least prejudicial to the servient
estate; and insofar as consistent with
 this rule, where the distance from the Where the Buyer’s Land is Enclosed
dominant estate to the public highway Whenever a piece of land acquired by sale,
may be the shortest (DE LEON, exchange, or partition is surrounded by other
Property, supra at 512-522). estates of the vendor, exchanger, or co-owner,
he shall be obliged to grant a right of way without
The following are the requisites in order that the indemnity (CIVIL CODE, Art. 652).
dominant estate may validly claim a compulsory
permanent right of way under Articles 649 and NOTE: In case of simple donation, the donor
650 of the Civil Code (1) the dominant estate is shall be indemnified by the donee for the
surrounded by other immovables; (2) it is without establishment of the right of way (CIVIL CODE,
adequate outlet to a public highway; (3) after the Art. 652).
proper indemnity has been paid; (4) the isolation
was not due to the proprietor of the dominant Where the Seller’s Land is Enclosed
estate's own acts; (5) the right of way claimed is If it is the land of the grantor (seller, barterer or
at a point least prejudicial to the servient estate; co-owner) that becomes isolated, he may
and (6) the right of way must be absolutely demand a right of way after paying an indemnity.
necessary for the normal enjoyment of the However, the donor shall not be liable for
dominant estate by its owner (AMA Land Inc. vs. indemnity (CIVIL CODE, Art. 653).
Wack Wack Residents’ Association Inc., G.R.
No. 202342, July 19, 2017). Rules if Grantor’s or Grantee’s Land is
Enclosed (CIVIL CODE, Arts. 652 and 653)
GENERAL RULE: The least prejudice criterion a. If the enclosing estate is that of the grantor
and the shortest distance criterion must concur (seller, barterer, or co-owner but not donor),
(Calimoso v. Roullo, G.R. No. 198594, January the grantee does not pay indemnity for the
25, 2016). easement.
b. If the enclosed estate is that of the grantor,
EXCEPTION: If the two criteria do not concur, the the grantor must pay indemnity (2 PARAS,
criterion of least prejudice to the servient estate supra at 711).
must prevail over the criterion of shortest
distance (Calimoso v. Roullo, G.R. No. 198594, Width of the Easement
January 25, 2016). The width of the easement of right of way shall
be that which is sufficient for the needs of the
NOTE: The easement of right of way cannot be dominant estate, and may accordingly be
acquired by prescription, because it is changed from time to time (CIVIL CODE, Art.
discontinuous or intermittent (Ronquillo v. Roco, 651).
G.R. No. L-10619, February 28, 1958). On the
other hand, an easement of light and view can be It may be modified from time to time depending
acquired through prescription counting from the upon the reasonable needs of the dominant
time when the owner of the dominant estate estate (2 PARAS, supra at 710).
formally prohibits the adjoining lot owner from
blocking the view of a window located within the The right of way for cattle should not be more
dominant estate (Alolino v. Flores, G.R. No. than 10 meters wide unless a greater width was
198774, April 04, 2016). a vested right under laws prior to the Civil Code
of 1889 (CIVIL CODE, Art. 657).
Burden of Proof
The burden of proving the existence of the Q: Tomas Encarnacion's 3,000 square meter
prerequisites to validly claim a compulsory right parcel of land, where he has a plant nursery, is
of way lies in the owner of the dominant estate located just behind Aniceta Magsino's two-
(Costabella Corp. v. CA, G.R. No. 80511, hectare parcel land. To enable Tomas to have
January 25, 1991). access to the highway, Aniceta agreed to grant
him a road right of way a meter wide through
Adequacy Test which he could pass. Through the years Tomas'
The true standard for the grant of the legal right business flourished which enabled him to buy
of easement of right of way is adequacy. If there another portion which enlarged the area of his
is already an existing outlet from the dominant plant nursery. But he was still landlocked. He
estate to a public highway, even if inconvenient, could not bring in and out of his plant nursery a
the need to open another is unjustified (Dichoso jeep or delivery panel much less a truck that he
v. Marcos, G.R. No. 180282, April 11, 2011). needed to transport his seedlings. He now asked
Aniceta to grant him a wider portion of her
property, the price of which he was willing to pay,
to enable him to construct a road to have access NOTE: “Indispensable” is not to be construed
to his plant nursery. Aniceta refused claiming that literally. Causing great inconvenience is
she had already allowed him a previous road sufficient (DE LEON, Property supra at 530).
right of way. Is Tomas entitled to the easement
he now demands from Aniceta? (BAR 1993) b. Payment of proper Indemnity to owner of the
estate for damaged caused (CIVIL CODE,
ANS: Yes. Art. 651 of the Civil Code provides that Art. 656).
the width of the easement must be sufficient to
meet the needs of the dominant estate, and may NOTE: The word “owner” comprehends the
accordingly change from time to time. It is the usufructuary who may make use of the right
need of the dominant estate which determines granted (4 MANRESA 753 as cited in DE
the width of the passage. These needs may vary LEON, supra at 520).
from time to time. As Tomas' business grows, the
need for use of modern conveyances requires 8. EASEMENT OF RIGHT OF WAY FOR
widening of the easement. The facts show that THE PASSAGE OF LIVESTOCK OR
the need for a wider right of way arose from the
increased production owing to the acquisition by SERVIDUMBRES PECUARIAS
Tomas of an additional area. Under Art. 626 of Easements of the right of way for the passage of
the Civil Code, the easement can be used only livestock known as animal path, animal trail, or
for the immovable originally contemplated. any other, and those for watering places, resting
Hence, the increase in width is justified and places, and animal folds shall be governed by the
should have been granted. ordinances and regulations relating thereto, and
in their absence, by the usages and customs of
The facts in this case is the same as that of the the place (CIVIL CODE, Art. 657).
case of Encarnacion v. CA (G.R. No. 77628,
March 11, 1991) where the Court held that: “To Maximum Width:
force Tomas to leave his jeepney in the highway, a. Animal path - 75 meters
exposed to the elements and the risk of theft b. Animal trail - 37 meters and 50 centimeters
simply because it could not pass through the c. Cattle - 10 meters (unless prior to the Old
improvised pathway, is sheer pigheadedness on Civil Code, vested rights had been acquired
the part of the servient estate. Tomas should not to a greater width) (2 PARAS, supra at 714).
be denied a passageway wide enough to
accommodate his jeepney since that is NOTE: If the easement established is
reasonable and necessary aspect of the plant compulsory, the width shall not exceed 10 meters
nursery business.” (DE LEON, Property, supra at 531).

Rules if the Right of Way is Permanent 9. EASEMENT OF PARTY WALL OR

As for the servient estate: The path belongs to SERVIDUMBRE DE MEDIANERA
the servient estate, and he pays all the taxes. (CIVIL CODE, Arts. 658–666)
This refers to all those mass of rights and
As for the dominant estate: It should pay for the
obligations emanating from the existence and
repairs and should pay proportionate share of
common enjoyment of wall, fence, enclosure, or
taxes to the servient estate (CIVIL CODE, Art.
hedges by the owners of adjacent buildings and
654; 2 PARAS, supra at 712).
estates separated by such objects (2 CASTAN,
supra at 532).
NOTE: The word “proportionate” means the
whole tax for the whole estate.
Party Wall
Common wall which separates 2 estates built by
Temporary Easement of Right of Way
a common agreement at the dividing line such
Requisites: (In-C2R-In)
that it occupies a portion of both estates on equal
a. The easement must be Indispensable:
parts (DE LEON, Property, supra at 712).
i. For the Construction, repair,
improvement, alteration, or beautification
NOTE: Although called a legal easement, it is a
of a building;
compulsory kind of co-ownership or forged
ii. To Carry materials through the estate of
indivision where the shares of each owner cannot
another; or
be separated physically without destroying the
iii. To Raise thereon scaffolding or other
wall. Thus, each co-owner owns the half nearest
objects necessary for the work (CIVIL
to him (2 PARAS, supra at 715).
CODE, Art. 656).
 PARTY WALL AND CO–OWNERSHIP b. In dividing walls of gardens and yards
DISTINGUISHED situated in cities, towns, or in rural
communities;
PARTY WALL CO–OWNERSHIP

As to Physical Division of Shares

Shares of parties Shares of the co–owners

cannot be physically can be divided and
segregated but they separated physically but
can be physically before such division, a
identified. co–owner cannot point to
any definite portion of the
property as belonging to
him.
c. In fences, walls and live hedges dividing rural
As to Limitation on the Use of the Wall lands;

No limitation as to use None of the co–owners

of the party wall for may use the community
exclusive benefit of a property for his exclusive
party. benefit.

As to the Right to Exercise Renunciation

Owner may free Partial renunciation is

himself from allowed.
contributing to the cost
of repairs and
construction of a party
wall by renouncing all
his rights thereto.
(DE LEON, Property, supra at 536).
d. In ditches or drains opened between two
NOTE: Not all common walls are party walls. estates
Thus, a wall built on a lot co-owned by two
persons is a common wall but not a party wall
(Id.).

Presumptions of Existence (Juris Tantum)

(CIVIL CODE, Arts. 659 and 661):
The existence of an easement of party wall is
presumed, unless there is a title, or exterior sign,
or proof to the contrary:

a. In dividing walls of adjoining buildings, up to

point of common elevation;

NOTE: If the earth or dirt removed to open the

ditch or to clean it is only on one side, the
ownership of the ditch belongs exclusively to the
owner of the land having this exterior sign in its
favor (CIVIL CODE, Art. 661).

Rebuttal of Presumption:
a. By title;
b. By proof to the contrary (Valenzuela v.
Unson, G.R. No. L-10266, Oct. 20, 1915); or
c. By exterior signs to the contrary (CIVIL
CODE, Arts. 660 and 661).
NOTE: If one owner has signs in his favor, and
some against him, they generally cancel each
other, unless it can be shown from the purpose of
the wall that it had been made for the exclusive
benefit of one (PARAS, Property, supra at 710-
711).

Exterior Signs Rebutting the Existence of a

Party Wall (CIVIL CODE, Art. 660)
It is understood that there is an exterior sign,
contrary to the easement of party wall:

a. Whenever in the dividing wall of buildings d. Whenever the dividing wall bears the burden
there is a window or opening; of the binding beams, floors and roof frame
of one of the buildings, but not those of the
others;
B(in his favor)

b. Whenever the dividing wall is, on one side,

straight and plumb on all its facement, and on e. Whenever the dividing wall between
the other, it has similar conditions on the courtyards, gardens, and tenements is
upper part, but the lower part slants or constructed in such a way that the coping
projects outward; sheds the water upon only one of the estates;

(in his favor)

(in his
favor)

c. Whenever the entire wall is built within the

boundaries of one of the estates; f. Whenever the dividing wall, being built of
masonry, has stepping stones, which at
(in his certain intervals project from the surface on
favor) one side only, but not on the other;
g. Whenever lands enclosed by fences or live ii. Pay for any damage which may be
hedges adjoin others that are not enclosed; caused by the work, even though such
and damage may be temporary;
iii. Bear the costs of maintenance of the
portion added;
iv. Pay for the increased cost of
preservation;
v. Reconstruct if original wall cannot bear
the increased height; and
vi. Give Additional space necessary, if the
wall is to be thickened (2 PARAS, supra
at 720).

c. To Demolish the building being supported by

a party wall provided the cost of all repairs
and work necessary to prevent any damage
which the demolition may cause to the party
wall shall be borne by him (CIVIL CODE, Art.
h. Whenever the earth or dirt removed to open 663).
the ditch or to clean it is only on one side
thereof. The ownership of the ditch shall NOTE: He may also renounce his part
belong to the owner of the land having this ownership of the wall (CIVIL CODE, Art.
exterior sign in his favor (CIVIL CODE, Art. 663).
661).
Obligations of Each Part–Owner:
The deposit of earth or dirt is on one side a. To contribute proportionately to the repair
alone is an exterior sign that the owner of that and maintenance unless he renounces his
side is the owner of the ditch or drain (DE part–ownership (CIVIL CODE, Art. 662);
LEON, Property, supra at 537). b. If one part-owner raises the height of the wall,
he must (MECA):
i. Bear the cost of Maintenance of the
additions;
ii. Bear the increased Expenses of
preservation;
iii. Bear the Cost of construction; and
iv. Give Additional land, if necessary, to
thicken the wall (CIVIL CODE, Art. 664).

NOTE: The other owners who have not

contributed in giving the height, depth, or
(in his favor) thickness to the wall may, nevertheless, acquire
the right of part-ownership therein, by paying
NOTE: In all these cases, the ownership of the proportionally the value of the work at the time of
walls, fences, or hedges shall be deemed to the acquisition and of the land used for its
belong exclusively to the owner of the property or increased thickness (CIVIL CODE, Art. 665).
tenement which has in its favor the presumption
based on any one of these signs (CIVIL CODE, 10. EASEMENT OF LIGHT AND VIEW
Art. 660). (CIVIL CODE, Arts. 667–673)
Easement of Light (jus luminum)
Rights of Part Owners: (UID) The right to admit light from the neighboring
a. To make Use of the wall in proportion to their estate by virtue of the opening of a window or the
respective interests (CIVIL CODE, Art. 666), making of certain openings (2 CASTAN, supra at
rest buildings on it, or insert beams up to 536).
one–half of the wall’s thickness;
Easement of View (jus prospectus)
b. To Increase the height of the wall (CIVIL The right to make openings or windows, to enjoy
CODE, Art. 664). He must (DPaBe-Pay- the view through the estate of another and the
ReAdd): power to which would obstruct such view or make
i. Do so at his expense; the same difficult. It necessarily includes
easement of light (Id.).
No part-owner, without the consent of the others, NOTE: The non-observance of these
open through the party wall any window or distances does not give rise to prescription
aperture of any kind (CIVIL CODE, Art. 667). (CIVIL CODE, Art. 670, Par. 3).

Effect: If the opening is done without consent, Where the Above Distances are NOT
the other co-owners may demand that what has Applicable:
been done be undone solely at the part-owner’s a. To buildings separated by a public way or
expense (RABUYA, Property, supra at 558). alley, which is not less than 3 meters wide
(CIVIL CODE, Art. 672);
10-Year Period of Prescription for Acquisition
of Easement of Light and View (CIVIL CODE,
Art. 668):
The period of prescription for the acquisition of an
easement of light and view shall be counted:
a. Where the easement is positive (if made
through a party wall), from the time of the
opening of the window; or
b. Where the easement is negative (if made
through a wall on the dominant estate), from
the time of the formal prohibition upon the
adjoining owner (CIVIL CODE, Art. 668).

Rules for Regular Windows (CIVIL CODE, Art. EXCEPTION: Unless a special regulation
670): and local ordinance provide the contrary
a. For windows having DIRECT VIEWS (face to (CIVIL CODE, Art. 672).
face), observe at least 2 meters distance
between the wall having the windows and the b. Whenever by any title (such as by contract,
boundary line. will, donation, or prescription) a right has
been acquired to have direct views,
balconies, or belvederes overlooking an
adjoining property. The servient estate
cannot build thereon if the direct view is less
than a distance of 3 meters from the wall
(CIVIL CODE, Art. 673); and

Balcony – a platform that projects from the

wall of a building and is enclosed by a
parapet or railing.

Belvedere – a structure (such as a cupola or

b. For windows having side or oblique views a summerhouse) designed to command a
observe a distance of at least 60 cm. view.
between the boundary line and the nearest
edge of the window. NOTE: Art. 673 speaks of a true servitude
(servitude of restraint or abstention) unlike
NOTE: Oblique view means that from direct Arts. 669 and 670 which do not really refer to
view, one must turn his head to the right or to easements since both owners are prohibited
the left to view the adjoining land. (2 PARAS, supra at 728).
c. Restricted Windows, when the above b. Block the light by building or erecting his own
distances are not observed (CIVIL CODE, wall unless a servitude is acquired by title or
Art. 669). prescription (CIVIL CODE, Art. 669).

NOTE: He may also ask for the reduction of the

opening to the proper size.

11. DRAINAGE OF BUILDINGS (CIVIL

CODE, Arts. 674-676)
The owner of a building shall be obliged to
construct its roof or covering in such manner that
the rain water shall fall on his own land or on a
street or public place, and not on the land of his
neighbor (CIVIL CODE, Art. 674).

When the foregoing distances are not The owner of a tenement or a piece of land,
observed, only restricted windows may be subject to the easement of receiving water falling
made by the owner of a wall which is not a from roofs, may build in such manner as to
party wall, subject to the following receive the water upon his own roof or give it
requirements: (WISH-Pu) another outlet in accordance with local
i. There must be a Wire screen; ordinances or customs, and in such a way as not
ii. There must be an Iron grating imbedded to cause any nuisance or damage whatever to
in the wall; the dominant estate (CIVIL CODE, Art. 675).
iii. Maximum Size is 30 cm. square;
iv. The opening must be at the Height of the Whenever the yard or court of a house is
ceiling joists (beams) or immediately surrounded by other houses, and it is not
under the ceiling (techo); and possible to give an outlet through the house itself
v. The window must be for the Purpose of to the rain water collected thereon, the
admitting light and air only, but not of establishment of an easement of drainage can be
view. demanded (CIVIL CODE, Art. 676).

Ceiling joists a. Easement of drainage of buildings – the

Commonly called beams laid horizontally right to divert or empty the rain waters from
intended to serve as connection and main one’s own roof or shed to the neighbor’s
support of the timbers of different floors that estate either drop by drop or through
separate the stories of a building. conduits (2 CASTAN, supra at 539).

Art. 674 does not really create an easement

for it merely regulates the use of a person’s
property insofar as rain water is concerned (4
MANRESA 810 as cited in PARAS, supra at
730).

NOTE: Art. 674 provides an exception to Art.

637 which obliges lower estates to receive
water naturally flowing from higher estates
(DE LEON, Property, supra at 551).
There may be several openings provided, the
restrictions are complied with for every opening. b. Easement to receive falling rain waters –
There can also be several openings in every floor deals not with legal easement but with a
or story, for each floor or story has a ceiling voluntary easement to receive rain water
(Choco v. Santamaria, G.R. No. 6076, December falling from the roof of an adjoining building
29, 1911). (Id. at 552).

Remedies of the abutting owner in case of c. Easement giving outlet to rain water
restricted windows (CB): where house surrounded by other
a. Close the openings if the wall becomes a houses.
party wall; or
NOTE: This is similar to the legal easement
of right of way (2 PARAS, supra at 731).
 Requisites (DINE): b. Plantings
a. Least possible Damage caused; Rules (OC-2-50):
b. There must be payment of proper i. Follow distances as prescribed by
Indemnity (Id.); Ordinances;
c. There must be No adequate outlet to the ii. In the absence of ordinances, Customs
rain water because the yard or court of a must be observed;
house is surrounded by other houses iii. If none the following rule shall be
(enclosure) (CIVIL CODE, Art. 676); and, observed:
d. The outlet to the water must be at the 1.) For large trees: at least 2m from
point where Egress is easiest and boundary; and
establishing a conduit for drainage 2.) For shrubs: at least 50cm from the
(CIVIL CODE, Art. 676; 2 PARAS, supra center of the tree (2 PARAS, supra
at 731-732). at 733).

Ownership of Rain Waters Remedy for Violation

Rain waters falling on private lands shall Every landowner shall have the right to
belong to the State. However, any person demand that the plant be uprooted (CIVIL
who collects water by means of cisterns, CODE, Art. 679).
tanks, or pools shall have exclusive control
over the same and shall have the right to The provision covers:
dispose it only for domestic purposes i. Planted in violation of the rule; and
(WATER CODE, Arts. 6-7; RABUYA, ii. Tree grows spontaneously at shorter
Property, supra at 661). distance than mentioned (CIVIL CODE,
Art. 679).
12. INTERMEDIATE DISTANCES AND
WORKS FOR CERTAIN NOTE: In case of disagreement, the court
shall determine when trees are to be
CONSTRUCTIONS AND PLANTINGS classified as “tall” or “small” (DE LEON,
(CIVIL CODE, Arts. 677–681) Property, supra at 551).
No constructions can be built or plantings made
near fortified places or fortresses without c. Intrusions:
compliance with the conditions required in Rules:
special laws, ordinances, and regulations relating i. Of branches: the owner of the tree may
thereto (CIVIL CODE, Art. 677). be compelled to cut intruding branches at
the boundary.
NOTE: Art. 677, in effect establishes an NOTE: If the demand is not acted, the
easement in favor of the State (DE LEON, owner of invaded tenement must seek
Property, supra at 549). The prohibitions authority from the court before cutting
prescribed by law cannot be altered or renounced (CIVIL CODE, Art. 680).
by stipulation of the parties (CIVIL CODE, Art.
678). ii. Of roots: the owner of the invaded
tenement may cut them himself at the
REASON: National security and safety boundary (2 CASTAN 285, as cited in 2
specifically to prevent intrusion into neighboring PARAS, supra at 734).
estates (2 PARAS, supra at 732).
Reason: By incorporation, the intruding
a. Constructions (examples: wells, sewers, roots belong to the owner of the land
etc.) where they are found (2 CASTAN, supra
Rules (OC-P2V): at 596-597).
i. Follow distances fixed by Ordinances
and Customs; NOTE: The right of the abutting owner
ii. Protective structures prescribed by does not prescribe, unless he was
ordinances or custom must be erected; prohibited to cut, in such case, the 10-
iii. If none, Precautions must be taken to year prescriptive period will run (CIVIL
avoid damage to neighboring estates; CODE, Art. 621).
and
iv. Violation causes responsibility for iii. Fruits falling naturally belong to the
damages caused (DE LEON, Property, owner of the land (CIVIL CODE, Art.
supra at 550). 681).
 REASON: To compensate for
inconvenience caused (DE LEON,
Property, supra at 551).

NOTE: If a fruit fell on a public property,

then the owner of the tree retains
ownership (Id. at 552).

13. EASEMENT AGAINST NUISANCE

(CIVIL CODE, Arts. 682-683)
Every building or piece of land is subject to the
easement which prohibits the proprietor or
possessor from committing nuisance through NOTE: There exists a doubt as to whether
noise, jarring, offensive odor, smoke, heat, dust, easements against nuisance and lateral and
water, glare, and other causes (CIVIL CODE, Art. subjacent support may be categorized as legal
682). easements (REYES-PUNO, Philippine Civil Law,
supra at 188-189). While they are restrictions on
Subject to zoning, health, police, and other laws ownership, still even without a prohibition by the
and regulations, factories and shops may be dominant estate, the elimination of such support
maintained provided the least possible would be unlawful (2 PARAS, supra at 739).
annoyance is caused to the neighborhood (CIVIL
CODE, Art. 683). The duty of an adjacent owner making
excavations upon his land not to deprive any
The servient owner in an easement against adjacent land of sufficient lateral or subjacent
nuisance is the proprietor or possessor of the support is an absolute one. It does not depend
building or piece of land, who commits the upon the degree of care and precaution made by
nuisance thru noise, jarring, offensive odor, etc. the proprietor in making the excavation or
(2 PARAS, supra at 736-737). building in his land (De Jesus v. Howmart Corp.,
G.R. No. 44191-R, August 28, 1974).
The general public, or anybody injured by the
nuisance is the dominant owner in an easement Any stipulation or testamentary provision
against nuisance (Id.). allowing such kind of excavation is void (CIVIL
CODE, Art. 685).
14. LATERAL AND SUBJACENT
Remedy: Injunctive relief and damages (DE
SUPPORT (CIVIL CODE, Arts. 684-687) LEON, Property, supra at 558).
No proprietor shall make such excavations upon
his land as to deprive any adjacent land or Between two adjacent landowners, each has an
building of sufficient lateral or subjacent support absolute property right to have his land laterally
(CIVIL CODE, Art. 684). supported by the soil of his neighbor, and if either,
in excavating on his own premises, he so disturbs
Lateral support the lateral support of his neighbor’s land as to
When the supported and supporting lands are cause it, or, in its natural state, by the pressure of
divided by a vertical plane; on the same plane its own weight, to fall away or slide from its
(DE LEON, Property, supra at 553). position, the one so excavating is liable (Castro
v. Monsod, G.R. No. 183719, February 02,
2011).

EXTINGUISHMENT OF LEGAL
EASEMENTS
Special Rules on the Extinguishment of the
Easement of Right of Way

Special causes of extinction (CIVIL CODE, Art.

655)
If the right of way granted to a surrounded estate
Subjacent support ceases to be necessary because its owner has joined
When the supported land is above and the it to another abutting on a public road, the owner of
supporting land is beneath (Id.).
the servient estate may demand that the easement not change this. It is not the presence of apparent
be extinguished (CIVIL CODE, Art. 655, Par. 1). signs or physical indications showing the
The owner of the servient estate may likewise existence of an easement, but rather the manner
demand that the easement be extinguished in case a of exercise thereof, that categorizes such into
new road is opened giving access to the isolated continuous or discontinuous (Bogo-Medellin
estate (CIVIL CODE, Art. 655, Par. 2). Milling Co., Inc. v. CA, G.R. No. 124699, July 31,
2003).
The owner of the servient estate may demand the
extinguishment in the following instances: Like a road for the passage of vehicles or
1. The opening of a public road; or persons, an easement of right of way of railroad
2. Joining the dominant tenement to another with tracks is discontinuous because the right is
exit on a public road (2 PARAS, supra at 713). exercised only if and when a train operated by a
person passes over another's property. In other
NOTE: The opening extinguishes only compulsory words, the very exercise of the servitude
easements, not voluntary easements that are depends upon the act or intervention of man
extinguished only by mutual agreement or which is the very essence of discontinuous
renunciation by the dominant owner (Unisource Corp. easements (Bicol Agro Industrial Producers
v. Chung, G.R. No. 173252, July 17, 2009). Cooperative v. Obias, G.R. No. 172077, October
09, 2009).
In either case, the owner of the servient estate must
return what he may have received by way of If the owner of the servient estate demands that
indemnity (CIVIL CODE, Art. 655, Par. 1) and the the easement be extinguished, he should return
public highway must substantially meet the needs of what he may have received by way of indemnity;
the dominant estate in order that the easement may the amount to be returned must consist of the
be extinguished (CIVIL CODE, Art. 655, Par. 3). value of the land occupied and the damages
caused to the servient estate (DE LEON,
REQUISITES FOR THE Property, supra at 530).
EXTINGUISHMENT OF THE EASEMENT
OF A RIGHT OF WAY: (PAD)
1. The owner of the surrounded estate joined it to
another abutting on a Public road (CIVIL CODE,
VOLUNTARY
Art. 655, Par. 2) or a new road is opened giving EASEMENTS
access to the isolated estate (CIVIL CODE, Art.
655, Par. 2); (ARTS. 688-693)
2. The new outlet is Adequate in either case (CIVIL
CODE, Art. 655, Par. 3); and
3. The servient owner must Demand for release of
his estate coupled with return of indemnity VOLUNTARY EASEMENTS (CIVIL CODE,
received without interest (DE LEON, Property, ARTS. 688-693)
supra at 529). These are easements constituted by will of the parties
or of a testator.
NOTE: The interest on the indemnity shall be
deemed to be in payment of rent for the use of Every owner of a tenement or piece of land may
the easement (CIVIL CODE, Art. 655, Par. 1). establish thereon the easements which he may deem
suitable, and in the manner and form for which he
NOTE: The extinction is not automatic. There may deem best, provided he does not contravene the
must be a demand for extinction coupled with laws, public policy, or public order (CIVIL CODE, Art.
tender of indemnity by the servient owner (DE 688).
LEON, Property, supra at 529; 2 PARAS, supra
at 713). REMEDY FOR IMPAIRMENT
Ask for the destruction of such works and the
In case of temporary or discontinuous easement,
restoration of the things to their condition before the
nothing has to be paid (DE LEON, Property,
impairment was committed, with indemnity for
supra at 529).
damages suffered (3 SANCHEZ ROMAN, supra at
609).
The easement of right of way is discontinuous
because it is exercised only if a person passes or
The owner possessing capacity to encumber
sets foot on somebody else’s land. The presence
property may constitute a voluntary servitude. If there
of more or less permanent railroad tracks does
are various owners, all must consent; but consent 2. Personal servitudes: for anyone capacitated to
once given is not revocable (Id.). accept (CIVIL CODE, Art. 613).

RULES GOVERNING VOLUNTARY ABANDONMENT OF PROPERTY

EASEMENTS: If the owner of the servient estate should have bound
1. If created by title, such as contract or will, then by himself, upon the establishment of the easement, to
such title; bear the cost of the work required for the use and
2. If created by prescription, by the form and preservation thereof, he may free himself from this
manner of possession of the easement; or obligation by renouncing his property to the owner of
3. In default of any of the above, by the provisions the dominant estate (CIVIL CODE, Art. 693).
of the Civil Code on easements (2 PARAS, supra
at 741). NOTE: The abandonment must appear in a public
document for convenience only (CIVIL CODE, Art.
WHEN THERE IS A USUFRUCT: 1358 (1)).
1. The owner of a tenement or piece of land may NOTE: The abandoner must comply with the proper
impose thereon, without the consent of the juridical form for the transmission of the ownership of
usufructuary, any servitudes which will not real property. Thus, implied abandonment is not
injure the right of usufruct (CIVIL CODE, Art. allowed (4 MANRESA 843 as cited in PARAS at 746).
689).
2. When a usufruct exists, the beneficial owner may
by himself create a temporary easement EXTINGUISHMENT OF VOLUNTARY
compatible with the extent of his beneficial EASEMENTS
dominion (4 MANRESA 838 as cited in 2 PARAS, GROUND: Only by mutual agreement
supra at 737).
NOTE: A voluntary easement could be extinguished
NOTE: If the easement is perpetual, both the only by mutual agreement or by renunciation of the
naked and beneficial owners must consent owner of the dominant estate. The opening of an
(CIVIL CODE, Art. 690). adequate outlet to a highway can extinguish only
legal or compulsory easements, not voluntary
WHEN THERE IS CO-OWNERSHIP easements. The fact that an easement by grant may
In order to impose an easement on an undivided have also qualified as an easement by necessity
tenement, or piece of land, the consent of all the co- does not detract from its permanency as a property
owners shall be required (CIVIL CODE, Art. 691). right, which survives the termination of the necessity.
(Unisource Commercial & Dev. Corp v. Chung, G.R.
REASON: The creation of the voluntary easement is No. 173252, July 17, 2009).
an act of ownership (2 PARAS, supra at 743-744).
It is generally effective between the parties, their heirs
NOTE: However, the consent need not be given and assigns, except in case where the rights and
simultaneously; they can be given successively (4 obligations under the contract are not transmissible
MANRESA 838-839 as cited in PARAS at 744). by their nature (CIVIL CODE, Art. 1311). When the
easement in this case was established by contract,
The consent given by one of the co-owners the parties unequivocally made provisions for its
separately from the others shall bind the grantor and observance by all whom in the future might succeed
his successors (CIVIL CODE, Art. 691, Par. 3). them in dominion (La Vista v. CA, G.R. No. 95252,
September 5, 1997).
NOTE: Once a co-owner gives the consent, he
cannot later on revoke his consent, unless it is a
vitiated consent. In fact, his own successors cannot
ordinarily revoke the consent he had given (3 NUISANCE
SANCHEZ ROMAN, supra at 640). (ARTS. 694-707)
VOLUNTARY EASEMENTS ARE
ESTABLISHED IN FAVOR OF:
1. Predial servitudes: A nuisance is any act, omission, establishment,
a. For the owner of the dominant estate; or business, condition of property or anything else
b. For any other person having any juridical which: (ISA-HO)
relation with the dominant estate, if the owner 1. Injures or endangers the health or safety of
ratifies it. others;
2. Annoys or offends the senses;
 NOTE: The determining factor is not its intensity CLASSES OF NUISANCE:
or volume. It is that the noise is of such character
As to the object it affects:
as to produce actual physical discomfort and
1. Public
annoyance to a person of ordinary sensibilities
– Affects the community or a considerable
rendering adjacent property less comfortable and
number of persons (although the extent of
valuable (2 PARAS, supra at 750).
annoyance or danger be unequal) (2 PARAS,
supra at 751);
3. Shocks, defies or disregards decency or morality;
4. Obstructs or interferes with the free passage to
Example: A noisy or dangerous factory in a
any public highway or street, or body of water; or
residential district
5. Hinders or impairs the use of property (CIVIL
CODE, Art. 694).
2. Private
– Affects only a person or a small number of
NOTE: Operates as a restriction upon the right of
persons; and
the owner of the property to make such use of it
as he pleases (DE LEON, Property, supra at
Example: An illegally constructed dam partially
564). But if the hindrance is just, authorized and
resting on another’s estate
necessary, it is not a nuisance (2 PARAS, supra
at 749).
3. Mixed
– Nuisance may be both public and private in
Nuisance is so comprehensive that it has been
character (DE LEON, Property, supra at 564-
applied to almost all ways which have interfered with
565).
the rights of the citizens, either in person, property,
the enjoyment of his property, or his comfort (Cruz v.
Pandacan Hiker’s Club, G.R. No. 188213, January
As to its susceptibility to summary
11, 2016). abatement
1. Per se (nuisance at law)
– Nuisance at all times and under all
NEGLIGENCE V. NUISANCE circumstances regardless of location and
NEGLIGENCE NUISANCE surrounding; and

As to Basis 2. Per accidens (nuisance in fact)

– Nuisance by reason of circumstances, location,
Liability is based on Liability is based on or surroundings (ALBANO, Torts and Damages
lack of proper care or resulting injury to others, (2016), p.687 [hereinafter ALBANO, Torts and
diligence. regardless of the degree Damages]).
of care or skill exercised
to avoid injury.
NUISANCE PER SE V. NUISANCE PER
As to the Condition of the Act ACCIDENS
NUISANCE PER
Act complained of is There is continuing harm NUISANCE PER SE
ACCIDENS
already done which being suffered by the
caused injury to the aggrieved party by the As to Proof
plaintiff. maintenance of the act
or thing which The thing becomes a The thing becomes a
constitutes the nuisance as a matter of nuisance as a question
nuisance. law. of fact.

As to Abatement As to Abatement

Abatement is not Abatement without May be summarily A reasonable notice to

available as a remedy. judicial proceedings is abated. the person allegedly
The action is for allowed to suppress the maintaining the same is
damages. nuisance. required.
(DE LEON, Property, supra at 562). As to Injury Caused

Injury in some form is Injury is contingent until

certain to be inflicted. it actually occurs
(Id.).
NUISANCE V. TRESPASS 2. No breach of peace or unnecessary injury must
In trespass, there is entry into another’s property, this be committed;
is not necessarily so in nuisance. In trespass, the 3. Prior Demand;
injury is direct and immediate; in nuisance, it is only 4. Prior demand has been Rejected;
consequential (2 PARAS, supra at 748). 5. Approval by district health officer and assistance
of local police; and
6. Value of destruction does not exceed P3,000
DOCTRINE OF ATTRACTIVE NUISANCE (CIVIL CODE, Art. 704).
One who maintains on his premises dangerous
instrumentalities of a character likely to attract The action to abate a public/private nuisance is not
children in play and who fails to exercise ordinary extinguished by prescription except in easements
care to prevent children from playing therewith or which are extinguished by obstruction and non-user
resorting thereto is liable to a child of tender years for 10 years (2 PARAS, supra at 748). Since the right
who is injured thereby, even if the child is technically was extinguished by prescription, it ceased to be a
a trespasser in the premises (Hidalgo Enterprises v. nuisance anymore (Ongsiaco v. Ongsiaco, G.R. No.
Balandan, G.R. No. L-3422, June 13, 1952). L-7510, March 30, 1957).

A swimming pool or water tank is not an attractive Unless a Nuisance is a Nuisance Per se, it May
nuisance unless there is some unusual condition or Not be Summarily Abated
artificial feature other than the mere water and its A nuisance per accidens (or that which depends upon
location (DE LEON, Property, supra at 566). certain conditions and circumstances), its existence
being a question of fact, cannot be abated without
NOTE: Every successive owner or possessor of due hearing thereon in a tribunal authorized to decide
property who fails or refuses to abate a nuisance in whether such a thing does in law constitute a
that property started by a former owner or possessor nuisance (Rana v. Lee Wong, G.R. No. 192861-62,
is liable therefore in the same manner as who created June 30, 2014).
it (CIVIL CODE, Art. 696).
Generally, LGUs have no power to declare a
REASON: Injurious effect is a continuing one particular thing as a nuisance unless such a thing is
(DE LEON, Property supra at. 567). a nuisance per se (Aquino v. Municipality of Malay
Aklan, G.R. No. 211356, September 29, 2014).
The Doctrine of Comparative Utility or Balancing
of Utilities Doctrine provides that there is only a However, mayors are empowered to order the
nuisance if the annoyance outweighs the utility to the closure and removal of illegally constructed
actor and to society as a whole (RABUYA, Property, establishments for failing to secure the necessary
at 681-682). building permits, whether the building constituted a
nuisance per se or nuisance per accidens (Aquino v.
REMEDIES AGAINST PUBLIC Municipality of Malay Aklan, G.R. No. 211356,
NUISANCE: (PCE) September 29, 2014).
1. Prosecution under the RPC or local ordinance;
2. Civil Action; and DEFENSES IN ACTIONS FOR DAMAGES
3. Extrajudicial Abatement (CIVIL CODE, Art. 699). BASED ON NUISANCE (PE):
1. Public necessity; and
REMEDIES AGAINST PRIVATE 2. Estoppel (ALBANO, Torts and Damages, supra
NUISANCE: (CE) at 398).
1. Civil Action; and
2. Extrajudicial Abatement (CIVIL CODE, Art. 705). ROLES OF OFFICERS WITH RESPECT
TO PUBLIC NUISANCE
EXTRAJUDICIAL ABATEMENT 1. District health officer is charged with the duty to
Any private person may abate a public nuisance see to it that one or all of the remedies against a
which is especially injurious to him by removing, or if public nuisance are availed of (CIVIL CODE,
necessary, by destroying the thing which constitutes Arts. 700-702). His power is simply to determine
the same, without committing a breach of peace, or whether or not the abatement, without judicial
doing unnecessary injury (CIVIL CODE, Art. 704). proceedings, is the best remedy (DE LEON,
Property, supra at 575); and
Requisites: (INDRAV) 2. The action must be commenced by the city or
1. Nuisance must be especially Injurious to the municipal mayor (Id. at 570-571).
person affected;
 NOTE: A private person may also file an action if
the public nuisance is especially injurious to him DIFFERENT MODES OF
(CIVIL CODE, Art. 703).
ACQUIRING
NOTE: Under the Revised Charter of Manila, the
proper official insofar as illegal construction of
OWNERSHIP
houses or public streets are concerned, is the (ART. 712)
City Engineer (Sitchon v. Aquino, G.R. No. L-
8191, February 27, 1956).

MODE
This is the proximate cause of the acquisition; the
REGISTRY OF actual process of acquisition or transfer of ownership
PROPERTY over a thing in question (3 SANCHEZ ROMAN, supra
at 199-200).
(ARTS. 708-711)
TITLE
This is the remote cause of the acquisition; the
juridical justification for the acquisition or a transfer of
REGISTRATION ownership or other real right. (Acap v. CA, G.R. No.
It is any entry made in a book or public registry of 118114, December 7, 1995).
deeds (DE LEON, Property, supra at 578).
MODE V. TITLE
SYSTEMS OF REGISTRATION: MODE TITLE
1. Former registration systems:
a. Spanish Mortgage Law of 1893; As to Existence of Real Right
b. Torrens System established by the Land
Registration Act (Act. No. 496); and Directly and Serves merely to give
c. Sec. 194 - Revised Administrative Code; immediately produces a the occasion for its
real right. acquisition or existence.
2. Present registration system - Property
Registration Decree (P.D. No. 1529).
As to Cause
EFFECTS OF REGISTRATION: The cause or the The means or the
1. Operates as constructive notice; proximate cause. remote cause.
2. Does not validate or cure defective instrument;
3. Cannot bind property where it is legally As to Essence of the Right
ineffective;
4. Does not vest title; and Essence of the right Means whereby that
5. Rule of first in time, first in right (DE LEON, which is to be created essence is transmitted.
Property, supra at 579-581). or transmitted.

PURPOSES OF REGISTRATION: (DE LEON, Property supra at 579).

1. Gives true notice of the true status of the real
property and the real rights thereto; DIFFERENT MODES AND TITLES
2. Prejudices third persons; and OF ACQUIRING OWNERSHIP
3. Prevents commission of frauds, thus, insuring the
effectivity of real rights over real property (2 MODES OF TITLES OF
PARAS, supra at 761-762). ACQUIRING ACQUIRING
OWNERSHIP OWNERSHIP

Original Modes

Occupation Condition of being

without known owner

Work which includes Creation, discovery, or

Intellectual creation invention
 NOTE: The critical factor in the different modes
MODES OF TITLES OF
of effecting delivery which gives legal effect to the
ACQUIRING ACQUIRING
act, is the actual intention of the vendor to deliver,
OWNERSHIP OWNERSHIP
and its acceptance by the vendee. Without that
Derivative Modes intention, there is no tradition (Union Motor v. CA,
G.R. No. 117187, July 20, 2001).
Law Existence of required
conditions KINDS: (RCQM)
1. Real Tradition
Examples: CIVIL – Actual delivery;
CODE, Art. 624; Art.
681; Art. 1434
2. Constructive Tradition
Tradition Contract of the parties – Delivery of the thing, not real or material, but
consists merely in certain facts indicative of the
Donation Contract of the parties same
a. Traditio Symbolica – parties make use of a
Prescription Possession in the token or symbol to represent the thing
concept of owner delivered;
b. Traditio Longa Manu – by mere consent of
Succession Death the parties if the thing sold cannot be
(DE LEON, Property supra at 580). transferred to the possession of the vendee
at the time of the sale;
LAW c. Traditio Brevi Manu – when the vendee
already has possession of the thing sold by
Those special legal provisions which directly vest
virtue of another title;
ownership or real rights in favor of certain persons, d. Traditio Constitutum Possessorium –
independently of the other modes of acquiring and when the vendor continues in possession of
transmitting ownership or other real rights. the thing sold not as owner but in some other
capacity; and
Examples: e. Tradition by public instrument – the
1. Fruits naturally falling upon adjacent land
execution is equivalent to the delivery of the
belong to the owner of said land; and thing, object of the contract.
2. When a person who is not the owner of a
thing sells or alienates and delivers it, and NOTE: The execution of a public instrument
later the seller or grantor acquires title gives rise only to a prima facie presumption
thereto, such title passes by operation of law of delivery which is destroyed when the
to the buyer or grantee (CIVIL CODE, Art.
instrument expresses that delivery was not
1434) intended, or by other means showing that
delivery was not effected because a third
TRADITION OR DELIVERY person was in actual possession thereof
It is a mode of acquiring ownership as a consequence (Equatorial Realty v. Mayfair Theater, G.R.
of certain contracts by virtue of which the object is No. 133879, November 21, 2001).
placed in the control and possession of the
transferee, actually or constructively. It is a derivative 3. Quasi–tradition
mode of acquiring ownership and other real rights by – Exercise of the right of the grantee with the
virtue of which, there being an intention and capacity consent of the grantor; and
on the part of the grantor and grantee and the pre-
existence of said rights in the estate of the grantor, 4. Tradicion por Ministerio de la ley
they are transmitted to the grantee through a just title – Delivery by operation of law (DE LEON,
(Id. at 593). Property, supra at 594- 595).
Requisites (ARTI):
1. Transmission should be manifested by some Act
MODES OF LOSING OWNERSHIP AND
which should be physical, symbolical or legal; OTHER REAL RIGHTS:
2. Right transmitted should have previously existed 1. Voluntary Modes
in the patrimony of the grantor; – Those that depend upon the will of the owner:
3. Transmission should be by just title; and a. Abandonment – to be valid, requires that the
4. Grantor and grantee should have Intention and holder have legal capacity and intention to
capacity to transmit and acquire (Id.). renounce the right.
 b. Alienation – transfer of right to another by Specific Instances:
acts mortis causa or inter vivos, either 1. Hunting and fishing;
onerous or gratuitous. 2. Finding of movables which do not have an owner;
3. Finding of abandoned movables (Id. at 598);
2. Involuntary Modes
– Those independent of the will of the owner: A thing is considered abandoned when:
a. Destruction of the thing which may be a. Spes recuperandi (expectation to recover) is
physical or juridical (e.g., the thing goes out gone; and
of commerce); b. Animo revertendi (intention to return or have
b. Revocatory acts (e.g., nullity, rescission, it returned) has been given up by the owner
revocation, or resolution); (2 PARAS, supra at. 790).
c. Extinguishment by legal precept and by
virtue of the owner or third persons’ acts NOTE: A thing that has been lost or taken by
(e.g., accession or acquisitive prescription); force is not ipso facto converted to res nullius for
d. Extinguishment by juridical decree (e.g., it to belong to the person who takes possession
confirmation of judicial sale); or of the same without the necessity of proving the
e. Extinguishment by act of the State (e.g., mode of his acquisition and it may thus be
confiscation of effects of crime or recovered by the original owner (CIVIL CODE,
expropriation) (2 CAGUIOA, supra at 351- Art. 559). Such thing cannot be acquired by
352). prescription even if extraordinary (2 PARAS,
supra at. 790).

4. Finding of hidden treasure (CIVIL CODE, Arts.

OCCUPATION 438 and 439);
5. Catching of swarm of bees that has escaped from
(ARTS. 713-724) its owner, under certain conditions (CIVIL CODE,
Art. 716);
6. Catching of domesticated or tamed animals that
have escaped from their owners, under certain
OCCUPATION conditions (2 PARAS, supra at 789);
Things appropriable by nature which are without an 7. Transfer of pigeons to another breeding place
owner, such as animals that are the object of hunting without fraud or artifice (CIVIL CODE, Art. 717);
and fishing, hidden treasure, and abandoned and
movables, are acquired by occupation (CIVIL CODE, 8. Transfer of fish to another breeding place without
Art. 713). fraud or artifice (CIVIL CODE, Art. 717).

It is a mode of acquiring ownership by the seizure of Land Ownership Cannot be Acquired by

corporeal things that have no owner, with the Occupation (CIVIL CODE, Art 714)
intention of acquiring them, and according to the rules The ownership of a piece of land cannot be acquired
laid down by law (3 SANCHEZ ROMAN, supra at by occupation (CIVIL CODE, Art. 714).
210).
REASON: When the land is without owner, it pertains
Requisites: (CARISO) to the State pursuant to Regalian Doctrine (2
1. The thing seized must be Corporeal personal PARAS, supra at. 791).
property;
2. The thing must be susceptible of Appropriation NOTE: The State need not acquire abandoned lands
by nature; by occupation because once the requisites of
3. Requisites laid down by law must be complied abandonment had been fulfilled; reversion operates
with; automatically (PINEDA, Law on Property, supra at
4. There must be an Intention to appropriate; 49).
5. There must be Seizure of a thing; and
6. The thing must be without an Owner (DE LEON, RULE ON ABANDONED PRIVATE LAND
Property, supra at 602). There is no law which categorically provides that such
land becomes the property of the State. Since Art.
NOTE: Material holding is not essential as long 714 makes no distinction between land which never
as the possessor considers the thing as had an owner and a land originally with an owner but
subjected to his control or disposition (Id. at 604). later abandoned, it would seem that the land cannot
be acquired by occupation. However, there are Civil
Law authorities who are of the view that such
interpretation would result in the absurd situation of
an abandoned land remaining perpetually res nullius 2. One who buys the property from the finder
and not capable of being acquired by prescription. knowing that he is buying lost property has the
Thus, it is submitted that the abandoned land duty to return although he is not the finder;
becomes patrimonial land of the State susceptible of 3. Thing cannot be acquired by prescription even if
acquisition through acquisitive prescription (2 extraordinary;
PARAS, supra at 792). 4. Law requires the finder to deliver the movable to
the mayor where the finding has taken place
OCCUPATION V. POSSESSION (CIVIL CODE, Art. 719, Par. 1);
5. Abandonment must be voluntary and intentional
OCCUPATION POSSESSION to be effective;
6. If the owners should appear in time, he is obliged
As to Concept
to give the finder a 10% reward based on the sum
Mode of acquiring Merely raises the or the price of the thing found (CIVIL CODE, Art.
ownership. presumption of 720); and
ownership when it is 7. The expenses must be reimbursed by the finder
exercised in the concept or the owner in case the latter claims the movable
of an owner. (CIVIL CODE, Art. 719, Par. 4; DE LEON,
Property, supra at 609-610).
As to Property Covered
NOTE: The rights and obligations of the finder of lost
Refers only to May be exercised over personal property are based on the principle of quasi-
corporeal personal any kind of property contract. The duty imposed on the finder by Art. 719
property. whether real or personal, is based on the fact that one who lost his property
corporeal or incorporeal. does not necessarily abandon it. If there is no
abandonment, the lost thing has not become res
As to Ownership of the Object nullius (DE LEON, Property supra at 609).
Requires that the Refer to a property
object thereof be owned by somebody.
without an owner.
DONATION
As to Intent to Acquire (ARTS. 725-773)
Requires that there be May be had in the
an intent to acquire concept of a mere
ownership. holder. DONATION
As to Existence It is an act of liberality whereby a person disposes
gratuitously of a thing or right in favor of another who
May not take place May exist without accepts it (CIVIL CODE, Art. 725).
without form of occupation.
possession. Requisites: (CIDA)
1. Donor must have Capacity to make the donation
As to Duration at the time of the perfection of the contract;

Of short duration. Generally of longer NOTE: Donation is valid even if the person has
duration. schizophrenia. A person suffering from such
sickness is presumed capable of attending to his
As to Effect
property rights. There is no total loss of control of
By itself cannot lead to May lead to another form his mental facilities (Catalan v. Basa, G.R. No.
another form of which is prescription. 159567, July 31, 2007).
acquisition.
2. He must have donative Intent (animus donandi);
(DE LEON, Property, supra at 603).
3. There must be Delivery; and
RULES AS TO LOST MOVABLES:
1. Theft is committed by any person, having found 4. Donee must Accept or consent to the donation.
lost property, shall fail to deliver the same to the
local authorities or to its owner (REVISED NOTE: In certain donations, the form prescribed
PENAL CODE, Art. 308(1)); by law must be followed (CIVIL CODE, Arts. 748
and 749; DE LEON, Property, supra at 627).
 the donee by virtue of a Deed of Donation until and
ESSENTIAL FEATURES/ELEMENTS OF unless it has been accepted in a public instrument
A TRUE DONATION (INTER VIVOS): (AI- and the donor duly notified thereof. The acceptance
may be made in the very same instrument of
AR) donation. If the acceptance does not appear in the
1. Alienation of property by the donor during his same document, it must be made in another. Where
lifetime, which is accepted; the Deed of Donation fails to show the acceptance,
2. Irrevocability (except for legal causes); or where the formal notice of the acceptance, made
3. Animus Donandi (Intent to benefit the donee); in a separate instrument, is either not given to the
and donor or else not noted in the Deed of Donation and
4. Resultant decrease in the assets or patrimony of in the separate acceptance, the donation is null and
the donor (2 PARAS, supra at 881-882). void (Arangote v. Spouses Maglunob, G.R. No.
178906, February 18, 2009).
PERFECTION OF DONATION
The donation is perfected from the moment the donor CLASSIFICATION:
knows of the acceptance by the donee (CIVIL CODE, 1. As to effectivity:
Art. 734). a. Inter vivos;
b. Mortis causa; and
NOTE: Acceptance must be made during the lifetime c. Propter nuptias – made by reason of
of the donor and of the donee (CIVIL CODE, Art. 746) marriage and before its celebration, in
1. In case of donation inter vivos, acceptance takes consideration of the same and in favor of one
effect during the lifetime of the donor and the or both of the future spouses (DE LEON,
donee. Property, supra at 635-636).
2. In case of donation mortis causa, acceptance is
made only after the donor’s death because
2. As to perfection/ extinguishment:
they partake of the nature of a will and thus
a. Pure;
governed by the rules on succession (CIVIL
b. Conditional; and
CODE, Art. 728).
c. With a term (Id.).
Acceptance is indispensable because nobody is
obliged to receive a benefit against his will. Its 3. As to consideration:
absence makes the donation null and void (DE a. Simple – the cause of which is the pure
LEON, Property, supra at 653). liberality of the donor in consideration of the
donee’s merits;
Prior to learning of the acceptance, there is as yet no b. Remuneratory or Compensatory – that
perfected donation, in which case the donor may give which is given out of gratitude on account of
the property to somebody else. Once a valid donation the services rendered by the donee to the
is perfected, it cannot be revoked without the consent donor, provided they do not constitute a
of the donee except on the grounds provided by law demandable debt;
such as inofficiousness, failure of the donee to c. Modal or Conditional – imposes upon the
comply with the charges imposed in the donation or donee a burden which is less than the value
by reason of ingratitude (Id. at 653-654). of the thing donated (DE LEON, Property,
supra at 629-632); and
d. Onerous – imposes upon the donee a
ACCEPTANCE MAY BE IN: reciprocal obligation or, to be more precise,
1. Same instrument in which case there is already this is the kind of donation made for a
knowledge of the acceptance, hence the valuable consideration, the cost of which is
donation is already perfected (Laureta v. Mata, equal to or more than the thing donated
G.R. No. L-19740, March 22, 1923); or (Province of Camarines Sur v. Bodega
Glassware, G.R. No. 194199, March 22,
2. Separate instrument (Lagazo v. CA, G.R. No. 2017).
112796, March 5, 1998).
NOTE: Illegal or impossible conditions in simple
There must be proof that a formal notice of such and remuneratory donations shall be considered
acceptance was received by the donor. If real as not imposed (CIVIL CODE, Art. 727). Only
property is involved, it must be noted in both the deed such conditions are disregarded, but the donation
of donation and separate instrument (Lagazo v. CA, itself remains valid (RABUYA, Property, supra at
G.R. No. 112796, March 5, 1998). 760).

In Sumipat v. Banga, this Court declared that title to Donations with an onerous cause are governed
immovable property does not pass from the donor to not by the law on donations but by the rules on
 contracts. Hence, on the matter of prescription of vivos or mortis causa depends upon the nature of the
actions for the revocation of onerous donation, it disposition made (Reyes v. Mosqueda, G.R. No.
was held that the general rules on prescription 45262, July 23, 1990).
applies (De Luna v. Abrigo, G.R. No. L-57455,
January 18, 1990). That the document in question in this case was
captioned "Donation Mortis Causa" is not controlling.
A stipulation in the donation that it was made for This Court has held that, if a donation by its terms is
and in consideration of the “love and affection inter vivos, this character is not altered by the fact that
which the donee inspires in the donor, and as an the donor styles it mortis causa (Del Rosario v.
act of liberality and generosity” is sufficient cause Ferrer, G.R. No. 187056, September 20, 2010).
for a donation (Quilala v. Alcantara, G.R. No.
132681, December 3, 2001). DONATION INTER VIVOS V. DONATION
MORTIS CAUSA
SIMPLE OR REMUNERATORY
DONATION INTER DONATION MORTIS
DONATION V. VIVOS CAUSA
ONEROUS DONATION
SIMPLE/ ONEROUS As to the Time of Taking Effect
REMUNERATORY
Takes effect Takes effect only upon
As to Governing Law independently of the the death of the donor
donor’s death. (CIVIL CODE, Art.
Primarily, the law on The law on contracts 777).
donations governs; governs.
while the law on As to the Intention of Making Donation
contracts may apply NOTE: In modal
Made out of the donor's Made in contemplation
suppletorily. donations, the law on
pure generosity. of his death without the
contracts governs up to
intention to lose the
extent of the burden;
thing or its free disposal
while the law on
in case of survival.
donations on the portion
that exceeds the value As to the Time the Title is Conveyed
of the burden.
Title conveyed to the Title conveyed to the
As to Legal Formalities donee before the donee upon the donor's
donor’s death. death.
Arts. 748 and 749 must Arts. 748 and 749 are
be complied. not applicable. As to its Validity
As to Effect of Illegal or Impossible Valid if the donor Void if donor survives
Conditions survives the donee. donee.
The illegal or The obligation with As to its Revocability
impossible conditions illegal or impossible
are considered as not conditions shall be Generally irrevocable Always revocable at
imposed but the annulled under Art. during the donor's any time and for any
donation remains valid. 1183. lifetime except for reason before the
(RABUYA, Property, supra at 760). grounds provided by law donor’s death (CIVIL
(CIVIL CODE, Arts. 760, CODE, Art. 828).
and 765).
DONATION MORTIS CAUSA GOVERNED
BY RULES ON WILLS AND SUCCESSION The express
Donations which are to take effect upon the death of "irrevocability" of the
the donor partakes of the nature of testamentary donation is the
provisions and shall be governed by the rules "distinctive standard
established in the Title on Succession (CIVIL CODE, that identifies the
Art. 728). document as a donation
inter vivos." Here, the
The title given to a Deed of Donation is not the donors plainly said that
determinative factor which makes the donation “inter it is "our will that this
vivos” or “mortis causa.” Whether a donation is inter Donation Mortis Causa
 donation shall pertain to the donee (CIVIL CODE, Art.
DONATION INTER DONATION MORTIS
729).
VIVOS CAUSA

shall be irrevocable and Art. 729 speaks of donations in praesenti which take
shall be respected by effect during the lifetime of the donor but the property
the surviving spouse." shall be delivered only after the donor’s death. Such
The intent to make the donations are inter vivos although the subject matter
donation irrevocable is not delivered at once, or the delivery is to be made
becomes even clearer post mortem, which is a simple matter of form and
by the proviso that a does not change the nature of the act (Vita v.
surviving donor shall Montanano G.R. No. L-50553, February 19, 1991).
respect the irrevocability
of the donation. Conditions beyond the natural expectation of life
Consequently, the of the donor
donation was in reality a The fixing of an event or the imposition of a
donation inter vivos (Del suspensive condition, which may take place beyond
Rosario v. Ferrer, G.R. the natural expectation of life of the donor, does not
No. 187056, September destroy the nature of the act as a donation inter vivos,
20, 2010). unless a contrary intention appears (CIVIL CODE,
Art. 730).
As to its Legal Formalities
REASON: Fulfillment of the suspensive condition is
Must comply with the Must comply with the retroactive to the making of the donation (CIVIL
formalities required by formalities required by CODE, Art. 1187).
Arts. 748 and 749 of the law for the execution of
Code. wills. When a person donates something, subject to the
resolutory condition of the donor’s survival, there is a
As to the Date of its Acceptance donation inter vivos (CIVIL CODE, Art. 731).
Must be accepted by the The validity of automatic reversion upon the
Can only be accepted
donee during his
after the donor’s death. happening of the resolutory condition of non-
lifetime. compliance is valid (De Luna v. Abrigo, G.R. No. L-
57455, January 18, 1990). However, where one of
As to its Tax Implication
the parties contests or denies the rescission, “only the
Subject to donor’s tax. Subject to estate tax. final word of the court of competent jurisdiction can
conclusively settle whether resolution is proper or
(2 PARAS, supra at 882-885). not” (UP v. De los Angeles, G.R. No. L-28602,
September 29, 1970).
In case of doubt, inter vivos
In case of doubt, the conveyance should be deemed INSTANCES OF DONATIONS INTER
donation inter vivos rather than mortis causa, in order
to avoid uncertainty as to the ownership of the VIVOS:
property subject of the deed (Puig v. Peñaflorida, 1. A donation where the causes of revocation have
G.R. No. L-15939, January 31, 1966). been specified (Zapanta v. Posadas, G.R. No. L-
29204, December 29, 1928);
The legal principle that in case of doubt as to 2. A donation where the donor reserved for himself
gratuitous contracts, construction must effect “the a lifetime usufruct of the property, for if he were
least transmission of rights and interests” (CIVIL still the owner, there would be no need of said
CODE, Art. 1378). reservation (Balaqui v. Dongso, G.R. No. L-
31161, October 28, 1929);
DONATIONS IN PRAESENTI 3. A donation where the donor warrants the title to
the thing which he is donating (Balaqui v.
When the donor intends that the donation shall take
Dongso, G.R. No. L-31161, October 28, 1929) –
effect during the lifetime of the donor, though the
there would be no need of warranty were he not
property shall not be delivered till after the donor’s
be transferring the title;
death, this shall be a donation inter vivos (CIVIL 4. Where the donor immediately transferred the
CODE, Art. 729). ownership, possession, and administration of the
property to the donee, but stipulated that the right
Unless the donor provides otherwise, the fruits of the
of the donee to harvest and alienate the fruits
property from the time of the acceptance of the
would begin only after the donor’s death (De
Guzman v. Ibea, G.R. No. L-45724, April 27,
 1939). However, if what had been transferred in
the meantime was only the administration of the
property, the donation is mortis causa (Carino v. DONATION BETWEEN SPOUSES
Abaya, G.R. No. 46706, June 26, 1940); Under Art. 85 of the Family Code, every donation
5. Where the donor stated that while he is alive he between spouses during the marriage shall be void
would not dispose of the property or take away except moderate gifts on the occasion of family
the land “because I am reserving it to him (the rejoicing. The prohibition applies also to persons
donee) upon my death” (Cuevas v. Cuevas, G.R. living together as husband and wife without benefit of
No. L-8327, December 14, 1955); and marriage (Ching v. Goyanko, G.R. No. 165879,
6. One where the donees “should not as yet get the November 10, 2006).
possession until our demise”, the administration
remaining with the donor spouses, or either one
surviving (Guarin v. De Vera, G.R. No. L-8577,
DIFFERENCES OF CAPACITIES
February 28, 1957). BETWEEN THE HUSBAND AND WIFE TO
DONATE CONJUGAL PROPERTY:
INSTANCES OF DONATIONS MORTIS Husband: He is capacitated to enter into a valid
CAUSA: contract if he is sui juris. He can donate conjugal
1. One where the registration of the deed before the property without wife’s consent if these are:
donor’s death is prohibited (Puig v. Penaflorida, 1. Moderate donations given for charity or for times
G.R. No. L-15939, January 31, 1966); of family rejoicing or distress; or
2. Donation which will take effect and pass title only 2. Donations to common legitimate children for
by and because of death (Howard v. Padilla, G.R. purposes of commencing a professional or
No. L-7064, April 22, 1955); vocational course or other activity for self-
3. If the donor retains full and naked ownership and improvement (2 PARAS, supra at 898-899).
control over the property while he is still alive
(Heirs of Bonsato v. CA, G.R No. L-6600, July 30, Wife: Unless she is the administratrix of the conjugal
1954); partnership, she cannot donate conjugal property
4. One where properties will be delivered after without the consent of her husband (Id. at 899).
donor’s death (Cariño v. Abaya, G.R. No. 46706,
June 26, 1940); PROHIBITION OF DONATION BY
5. Where the right to dispose and enjoy is reserved CORPORATION TO POLITICAL PARTY
by the donor (Austria-Magat v. CA, G.R. No. Under Sec. 36 the Corporation Code (now Sec. 35 of
106755, February 1, 2002); and the Revised Corporation Code), every corporation
6. Donation which makes no actual conveyance has the power and capacity, inter alia, to make
before the donor’s death (David v. Sison, G.R. reasonable donations, including those for the public
No. 49108, March 28, 1946). welfare or for hospital, charitable, cultural, scientific,
civic, or similar purposes. However, foreign
DONORS corporations cannot give donations in aid of any
The donor must have both the capacity to contract political party or candidate or for purposes of partisan
and to dispose (CIVIL CODE, Art. 735), and is not political activity (REVISED CORPORATION CODE,
specifically prohibited to make a donation (CIVIL Sec. 35).
CODE, Art. 739).
NOTE: Donations inter vivos made by incapacitated
NOTE: Donor’s capacity shall be determined as of donors are merely voidable. Same rule applies where
the time of the making of the donation (CIVIL CODE, consent is vitiated (2 PARAS, supra at 899).
Art. 737).
GUARDIANS AND TRUSTEES CANNOT
“Making” means “perfection” of the donation, ALIENATE PROPERTY ENTRUSTED TO
otherwise if “making” means “giving,” Art. 737 would THEM (CIVIL CODE, ART 736):
in some cases be inconsistent with Art. 734 which 1. This prohibition is not absolute. It is applicable
states that “the donation is perfected from the only in case of simple donation, but not where the
moment the donor knows of the acceptance by the donation is onerous and is beneficial to the
donee.” To avoid a contradiction, the rule may be beneficiary (DE LEON, Property, supra at 661).
stated thus: “at the time the donation is perfected,
both the donor and the donee must be capacitated.” 2. Trustees, who have repudiated the trust and
The subsequent incapacity of the donor does not have acquired the properties by prescription, are
affect the validity of the donation (2 PARAS, supra at allowed to donate said properties (2 PARAS,
902). supra at 900).
DONEES NOTE: Previous criminal conviction is necessary
GENERAL RULE: All those who are not specially (2 PARAS, supra at 912).
disqualified by law may accept donation (CIVIL
CODE, Art. 738). 3. Those made to a public Officer or his/her spouse,
descendants, or ascendants in consideration of
EXCEPTIONS: Donations may be made to his/her office (CIVIL CODE, Art. 739(3));
incapacitated persons such as: 4. Those made to the Priest who heard the
1. Minors, and others who cannot enter into a confession of the donor during the latter’s last
contract, but acceptance shall be done through illness, or the minister of the gospel who
their parents or legal representatives (CIVIL extended spiritual aid to him during the same
CODE, Art. 741); and period, or to the relatives of such priest or
minister of the gospel within the fourth (4th) civil
2. Conceived and unborn children, acceptance of degree or the church to which such priest or
which may be made by those persons who would minister belongs (CIVIL CODE, Art. 1027-1032);
legally represent them if they were already born 5. Those made to an attesting Witness to the
(CIVIL CODE, Art. 742), provided it be for execution of donation, his spouse, parents, or
purposes that are favorable to it (CIVIL CODE, children, or anyone claiming under such witness,
Arts. 40 and 41). Otherwise, it is as if the spouse, parents, or children (CIVIL CODE, Art.
conceived child possessed no juridical 1027);
personality (2 PARAS, supra at 908). 6. Those made to Individuals, associations or
corporations not permitted by law to inherit (CIVIL
NOTE: The donee must accept the donation CODE, Art. 1027);
personally, or through an authorized person with 7. Those made by a ward to his or her Guardian
a special power for the purpose, or with a general before the approval of the final accounts of the
and sufficient power; otherwise, the donation guardianship (CIVIL CODE, Art. 1027);
shall be void (CIVIL CODE, Art. 745). 8. Those made to a Physician, surgeon, nurse,
health officer or druggist who took care of the
Concept of innocent purchaser for value does not donor during his/her last illness (CIVIL CODE,
apply to gratuitous transfers Art. 1027);
Under Section 53 of Presidential Decree No. 1529, 9. Donations void by reason of Unworthiness of
known as the Property Registration Decree, in all donee under Art. 740 in re Art. 1032. However, if
cases of registration procured by fraud, the owner the donor had knowledge, or subsequently knew
may pursue all his legal and equitable remedies of the act of unworthiness of donee and
against the parties to such fraud without prejudice, condoned the same in writing, the donation is
however, to the rights of any innocent holder for value valid (CIVIL CODE, Art. 1033); and
of a certificate of title. Here, a donee is not an 10. Made by Spouses to each other during the
innocent holder for value for the reason that he marriage or to persons of whom the other spouse
acquires property gratuitously by a Deed of Donation is a presumptive heir (CIVIL CODE, Art. 1027).
and not by purchase. Hence, the concept of an
innocent purchaser for value cannot apply to him FORMS OF DONATIONS (CIVIL CODE,
(Gambito v. Bacena, G.R. No. 225929, January 24, ARTS. 748 AND 749)
2018). 1. Donations of movable property:
a. If value of property exceeds P5,000,
DONATION PROHIBITED BY LAW: donation and acceptance must always be in
(ACOP-WIG-PUS) writing; otherwise, the same is void (2
1. Those made between persons who were guilty of PARAS, supra at 919-920).
Adultery or concubinage at the time of the
donation (CIVIL CODE, Art. 739(1)); NOTE: Simultaneous delivery of property
donated is not required (Id.).
NOTE: Previous criminal conviction is not
necessary; the guilt may be proven in a civil b. If value of property is less than P5,000,
action for declaration of nullity of donation donation may be made orally or in writing
personality (2 PARAS, supra at 909). i. If orally, simultaneous delivery is
required (actual or constructive) for
2. Those made between persons found guilty of the validity; or
same Criminal offense in consideration thereof ii. If in writing, donation is valid although no
(CIVIL CODE, Art. 739(2)); simultaneous delivery (Id.).
 NOTE: Acceptance may be made orally or in he can give or receive by will (CIVIL CODE,
writing (DE LEON, Property, supra at 672- Art. 752); and
673). b. If the donor has no forced heirs: donation
may include all present property provided he
2. Donation of immovable property: reserves in full ownership or in usufruct:
a. Must always be in a public instrument i. The amount sufficient to support him and
specifying the property donated and the those relatives entitled to support from
burdens assumed by donee, regardless of him (CIVIL CODE, Art. 750); and
value. ii. Property sufficient to pay the donor’s
b. Acceptance must be either: debt contracted prior to the donation
i. In the same instrument; or (CIVIL CODE, Art. 759).
ii. In another public instrument, notified to
the donor in authentic form, and noted in NOTE: Without such reservation, the
both deeds (CIVIL CODE, Art. 749). donation shall be reduced on petition of any
persons affected. Donation is still valid (DE
NOTE: Article 749 does not apply to onerous LEON, Property, supra at 685).
donations, which are governed by the rules on
obligations and contracts (CIVIL CODE, Art. 733). The limitation applies only to simple,
remunerative, and modal donations, but not to
Expression of gratitude to the donor without express onerous ones, which are governed by the law on
acceptance was held a sufficient acceptance contracts (Id. at 686).
(Cuevas v. Cuevas G.R. No. L-8327, December 14,
1955). Donations propter nuptias cannot exceed more
than 1/5th of the present property of the future
A donation of immovable to be valid must be in a spouses, under a regime other than the absolute
public instrument. However, even if void, it can be the community of property (FAMILY CODE, Art. 84).
basis of acquisitive prescription for as long as there
is adverse possession in the concept of an owner 2. Donations cannot comprehend future
(Bautista v. Poblete, G.R. No. 141007, September property (CIVIL CODE, Art. 751);
13, 2005).
Future property
It is settled that a defective notarization will strip the Anything which the donor cannot dispose of at
document of its public character and reduce it to a the time of the donation (CIVIL CODE, Art. 751).
private instrument. Article 749 of the Civil Code
requires that donation of real property must be made NOTE: Future inheritance cannot be the object of
in a public instrument to be valid. Donation of real donation, but present or accrued inheritance may
property is void without the formalities specified in the be, even if the properties have not yet been
foregoing provision. Here, the purported Deed of delivered (2 PARAS, supra at 929).
Donation submitted by the City cannot be considered
a public document. While it contains an NOTE: Upon the death of his predecessor, the
Acknowledgment before a notary public, the same is share in an existing inheritance is present
manifestly defective as it was made neither by the property although the heir has not yet entered
alleged donors and their respective spouses, or by into possession of the same (Osorio v. Osorio,
the done (Heirs of. Mariano v. City of Naga, G.R. No. G.R. No. 16544, March 30, 1921). This is based
197743, March 12, 2018). on the principle of law that nobody can dispose of
that which does not belong to him (DE LEON,
Although the non-registration of a deed of donation Property, supra at 687).
shall not affect its validity, the necessity of registration
comes into play when the rights of third persons are 3. Donation should not prejudice creditors
affected (Gonzales v. CA, G.R. No. 110335, June 18, (CIVIL CODE, Art. 759); and
2001).
4. Donee must reserve sufficient means for
LIMITATIONS ON DONATION OF his support and for his relatives which
PROPERTY: are entitled to be supported by him (CIVIL
1. Donation may comprehend all the CODE, Art. 750).
present property of the donor, provided
that:
a. If the donor has forced heirs: he cannot
give or receive by donation more than what
EFFECTS OF DONATION:
1. When the donation is made to several persons NOTE: In fidei commissary substitution, a similar
jointly, it is understood to be in equal portions, limitation is imposed (See CIVIL CODE, Art. 863).
without accretion among them, unless the donor
has otherwise provided (CIVIL CODE, Art. 753, If the property donated is immovable, the formalities
Par. 1). for donations of real property must be made in a
public instrument and complied with (CIVIL CODE,
Generally, there is no accretion. By virtue of Art. 749).
accretion, the share of the donee who dies ahead
of the donor before perfection, or who is REASON: The naked ownership and usufruct over
incapacitated, or who repudiates or refuses the real property are real properties themselves (CIVIL
donation, goes to the co-donees, provided that CODE, Art. 749).
accretion is proper (CIVIL CODE, Art. 1015).
CONVENTIONAL REVERSION
Thus, when a donation was given to A and B, and Reversion may be validly established in favor of only
the former refuses to accept, B will not get A’s the donor for any case and circumstances, but not in
share unless the donor has provided otherwise. favor of other persons unless they are all living at the
time of the donation (CIVIL CODE, Art. 757).
NOTE: There is a right of accretion in donations
made between husband and wife jointly, if the Any reversion stipulated by the donor in favor of third
contrary has not been provided by the donor person in violation of this provision shall be void, but
(CIVIL CODE, Art. 753, Par. 2). shall not nullify the donation (CIVIL CODE, Art. 757).

2. Donee may demand the delivery of the thing A reversion in favor of an unconceived child is void,
donated; but such nullity shall not invalidate the donation (See
CIVIL CODE, Art. 1230).
3. Donee is subrogated to all the rights and actions
which in case of eviction would pertain to the REASON: A reversion is merely an accessory clause
donor (CIVIL CODE, Art. 754); that may be disregarded. The nullity of the donation
itself carries with it that of the reversion (DE LEON,
4. Donor’s warranty exists if (EPOB): Property, supra at 692).
a. Expressed
b. Donation is Propter nuptias PAYMENT OF THE DONOR’S DEBT BY THE
c. Donation is Onerous, thus if simple or DONEE:
remunerative, the donor is not liable for 1. If there is express stipulation: the donee is to
eviction or hidden defects pay only debts contracted before the
d. Donor is in Bad faith (CIVIL CODE, Art. 754). donation, if not otherwise specified. He shall
answer only for the debts up to the value of the
5. In donations propter nuptias, the donor must property donated unless the contrary is
release the property from encumbrances, except stipulated (Id. at 693).
servitudes.
2. If there is no stipulation: the one is answerable
DONATION WITH RESERVATIONS ON for the debts of the donor only in case of fraud
THE RIGHT TO DISPOSE against creditors (Id.).
The right to dispose of some of the things donated, or
of some amount which shall be a charge thereon, The donation is always presumed to be in fraud
may be reserved by the donor. However, if he should of creditors, when at the time thereof, the donor
die without having made use of this right, the property did not reserve sufficient property to pay his
or amount reserved shall belong to the done (CIVIL debts prior to the donation. Presumption is
CODE, Art. 755). rebuttable (Id.).

DONATION OF NAKED OWNERSHIP Remedy of Creditors: Exercise subsidiary right

of rescission (CIVIL CODE, Art. 1381, Par. 1.).
(DOMINIUM DIRECTUM) AND USUFRUCT
(DOMINIUM UTILE)
The ownership of property may also be donated to
one person and the usufruct to another or others,
provided all the donees are living at the time of the
donation (CIVIL CODE, Art. 756).
GROUNDS FOR REVOCATION OF Condition shall refer to any obligation, charge, or
DONATION (BA2NI) burden imposed by the donor in his favor or that
of another. It may be resolutory (CIVIL CODE,
1. Birth, Appearance, or Adoption of a child Art. 732), but not suspensive, for non-fulfillment
(CIVIL CODE, Art. 760); means the donation never became effective
Every donation inter vivos, made by a person (Parks v. Province of Tarlac, G.R. No. 24190,
having no children or descendants, legitimate or July 13, 1926).
legitimated by subsequent marriage, or
illegitimate, may be revoked or reduced by the In the absence of affirmative proof to the
happening of any of these events: contrary, the presumption is that the donee has
a. If the donor, after the donation, should have complied with his obligation under the deed of
legitimate or legitimated or illegitimate donation. The claim that the donee failed to do so
children, even though they be posthumous; is a matter of defense which the donor is duty
b. If the child of the donor, whom the latter bound to established by competent evidence (DE
believed to be dead when he made the LEON, Property, supra at 699).
donation, should turn out to be living; and
c. If the donor subsequently adopts a minor Automatic Reversion/Revocation Clause
child (CIVIL CODE, Art. 760). Judicial intervention is not necessary, except
. where donee denies donor’s right to rescind
Applies to all donations inter vivos, and not to (Roman Catholic Archbishop of Manila v. CA,
donation mortis causa, onerous donations, and G.R. No. 77425, June 19, 1991).
donations propter nuptias (2 PARAS, supra at
945-946). As reiterated in Roman Catholic Archbishop of
Manila that where a donation has an automatic
This contemplates a situation wherein the donor, revocation clause, the occurrence of the
at the time he made the donation, did not have condition agreed to by the parties as to cause the
any child or descendant or erroneously thought revocation, is sufficient for a party to consider the
he had no more. If the donor had at least one donation revoked without need of any judicial
child already at the time he made the donation, action. A judicial finding that the revocation is
apply Arts. 771 and 752 (Id.). proper is only necessary when the other party
actually goes to court for the specific purpose of
The action for revocation under this ground challenging the propriety of the revocation.
shall prescribe after four (4) years from: Nevertheless, even in such a case, "x xx the
a. The birth of the first child; decision of the court will be merely declaratory of
b. His legitimation, recognition or adoption; the revocation, but it is not in itself the revocatory
c. The judicial declaration of filiation; or act." (Province of Camarines Sur v. Bodega
d. The time information was received regarding Glassware, G.R. No. 194199, March 22, 2017).
the existence of the child believed dead
(CIVIL CODE, Art. 763). Necessity of court action
In absence of such automatic reversion/
NOTE: The donee shall not return the fruits, revocation clause, judicial intervention is
except from the filing of the complaint (CIVIL necessary (De Luna v. Abrigo, G.R. No. L-57455,
CODE, Art.768). January 18, 1990).
“First child” in the first instance refers to first Revocation at the instance of the donor or his
legitimate child (2 PARAS, supra at 948). heirs (CIVIL CODE, Art. 770).
NOTE: If the cause or ground disappears, such Only the final word of the court of competent
as when the child dies before the action to reduce jurisdiction can conclusively settle whether
is judicially commenced, the donation should resolution is proper or not (UP v. de los Angeles,
remain valid (3 Navarro Amandi 59 as cited in 2 G.R. No. L-28602, September 29, 1970).
PARAS, supra at 949).
Rules:
2. Non-fulfillment of a condition (CIVIL CODE, a. The property donated shall be returned to
Art. 764); the donor (CIVIL CODE, Art. 764);
The donation shall be revoked at the instance of b. If the property is sold, donated or mortgaged,
the donor, when the donee fails to comply with the alienation or encumbrance will be
any of the conditions which the former imposed considered void, unless the grantee be an
upon the latter (CIVIL CODE, Art. 764). innocent third party (CIVIL CODE, Art. 764);
 c. The actions shall prescribe after 4 years subsist. Later ones shall be void (CIVIL CODE,
from the non-compliance with the condition Art. 766).
(CIVIL CODE, Art. 764);
d. Said action may be transmitted to the heirs Ingratitude of donee finds no application if the
of the donor, and may be exercised against donation is onerous (Calasan v. Donorito, G.R.
the donee’s heirs (CIVIL CODE, Art. 764); No. 171937, November 25, 2013).
and
e. The donee shall return not only the property For alienations and mortgages effected
but also the fruits thereof which he may have before notation of the complaint, the donor
received after having failed to fulfill the shall have a right to demand from the donee:
condition (CIVIL CODE, Art. 768). a. The value of the property alienated which he
cannot recover from third persons; or
3. Ingratitude of the Donee; b. The sum for which the same has been
Acts of Ingratitude: mortgaged (CIVIL CODE, Art. 767).
a. If the donee should commit some offense
against the person, the honor or property The donee shall not return the fruits, except from
of the donor, or of his wife or children under the filing of the complaint (CIVIL CODE, Art. 768).
his parental authority;
The action granted to the donor by reason of
NOTE: “Offense” includes both crimes and ingratitude cannot be renounced in advance.
non-crimes; no criminal conviction is Said action prescribes in 1 year, to be counted
required. Mere preponderance of evidence from the time the donor had knowledge of the fact
would be sufficient (2 PARAS, supra at 955). and it was possible for him to bring the action.
Thus, if immediately after knowledge of the fact,
b. He imputes to the donor any criminal the donor becomes unconscious for 6 months,
offense, or any act involving moral the period of 6 months shall not be counted (DE
turpitude, even though he should prove it, LEON, Property, supra at 712-713).
unless the crime or the act has been
committed against the donee himself, his REVOCATION OF ONEROUS
wife or children under his authority; and DONATIONS
c. He unduly refuses him support when the
The action for revocation of an onerous donation
donee is legally or morally bound to give
does not prescribe in 4 years. It is governed by the
support to the donor (CIVIL CODE, Art. 765).
law on contracts. It prescribes in 10 years (Sec. of
Education v. Heirs of Rufino Dulay, G.R. No. 164748,
NOTE: Art. 765 is exclusive and must have been
January 27, 2006).
committed by the donee personally (DE LEON,
Property, supra at 789).
GROUNDS FOR REDUCTION OF
2
DONATION: (BA SDI)
All crimes which affect the donor show ingratitude
and are causes for revocation (Sps. Eduarte v. 1. Birth, Appearance, or Adoption of a child (CIVIL
CA, G.R. No. 105944, February 9, 1996). CODE, Art. 760);

Falsification of a deed of donation is an act of 2. Failure of the donor to reserve sufficient means
ingratitude (Noceda v. CA, G.R. No. 119730, for Support of himself or dependent relatives
September 2, 1999). (CIVIL CODE, Art. 750);

Where the certificate of title was already 3. Failure of the donor to reserve sufficient property
transferred from the name of the true owner to to pay off his existing Debts (CIVIL CODE, Art.
the forger, and while it remained that way, the 759); and
land was subsequently sold to an innocent
purchaser. For then, the vendee had the right to 4. Inofficious, that is, the donation exceeds that
rely upon what appeared in the certificate (Sps. which the donor can give by will (CIVIL CODE,
Eduarte v. CA, G.R. No. 105944, February 9, Arts. 752 and 771).
1996). a. For purposes of reduction, the value of the
estate is that which it had, at the time of
Although the donation is revoked on account of donor’s death, and at the time of the
ingratitude, the alienations and mortgages donation.
effected before the notation of the complaint for
revocation in the Registry of Property shall
 Formula: case of violation of a condition therein, a judicial
Net Hereditary Estate = property left minus declaration revoking the same is not necessary.
debts and charges plus the value of the The rules on contracts and the general rules on
donation. prescription 10 years to recover in case of written
b. The donee shall not return the fruits, except contracts should apply and not the 4-year
from the filing of the complaint (CIVIL CODE, prescriptive period under Art. 764 of the Civil
Art.768). Code (Roman Catholic Archbishop of Manila v.
CA, G.R. No. 77425, June 19, 1991).
NOTE: If a Deed of Donation expressly provides
for automatic reversion of the property donated in

SUMMARY ON RULES OF REVOCATION

BASED ON BIRTH, APPEARANCE, BASED ON NON-COMPLIANCE BASED ON ACTS OF
OR ADOPTION OF A CHILD WITH CONDITION/S INGRATITUDE
(CIVIL CODE, ART. 760) (CIVIL CODE, ART. 764) (CIVIL CODE, ART. 765)

As to Time of Action

Within four (4) years from birth of the Within four (4) years from non- Within one (1) year from the time
first child, or from his legitimation compliance. the donor had knowledge of the
(recognition), or adoption, or from fact and it was possible for him to
judicial declaration of filiation, or from bring the action.
receipt of information on existence of
the child believed dead (CIVIL CODE,
Art. 763, Par. 1).

As to Transmissibility of Action

The action is transmitted to children and The action is transmitted to Generally, not transmissible, nor
descendants of donor upon his death donor’s heir and may be exercised can the action be filed against
(CIVIL CODE, Art. 763, Par. 2). against the donee’s heir (CIVIL heirs of done (CIVIL CODE, Art.
CODE, Art. 764). 770).

As to Effect of Revocation

The property affected shall be: The property donated shall be: The property donated shall be:
1. Returned; 1. Returned to the donor; and 1. Returned but the alienations;
2. Its value if donee has sold the same; 2. The alienations and mortgages and
or are void, subject to the rights of 2. Mortgages effected before
3. The donor may redeem the innocent third persons (CIVIL the notation of the complaint
mortgage on the property, with a CODE, Art. 764 Par. 2). for revocation in the Registry
right to recover (CIVIL CODE, Art. of Property shall subsist
762, Par. 2). (CIVIL CODE, Art. 766)

As to Liability for Fruits

The donee shall return the fruits The donee shall return the fruits Same in Art. 768, Par. 1.
accruing from the filing of the complaint which he may have received after
(CIVIL CODE, Art. 768, Par. 1). having failed to fulfill the condition
(CIVIL CODE, Art. 768, Par. 2).
 SUMMARY ON RULES ON REDUCTION
BASED ON FAILURE BASED ON BIRTH, BASED ON BEING BASED ON FRAUD
OF DONOR TO APPEARANCE OR INOFFICIOUS, IN AGAINST CREDITORS
RESERVE SUFFICIENT ADOPTION OF A CHILD EXCESS OF WHAT (CIVIL CODE, ART. 759)
MEANS FOR SUPPORT (CIVIL CODE, ART. 760) DONOR MAY GIVE BY
(CIVIL CODE, ARTS. WILL (CIVIL CODE,
750) ARTS. 750, 711)

As to Time of Action

By donor: at any time Within five (5) years after The action for rescission
donor’s death (CIVIL must be brought within
By those entitled to support: during donor’s lifetime. CODE, Arts. 771 and four (4) years under Art.
1149). 1389.

As to Transmissibility of Actions

Not transmissible for right to support is personal in Transmitted to the donor’s Transmitted to the
nature (FAMILY CODE, Art. 195). heirs as the donation shall creditor’s heirs or
be reduced as regards the successors-in-interest
excess (CIVIL CODE, Art. (CIVIL CODE, Art. 1389).
771).

As to Effect of Reduction

To the extent necessary to provide for support (CIVIL The donation takes effect Property affected shall be
CODE, Art. 750). during the lifetime of the returned by the done for
donor subject to reduction the benefit of the creditor,
only upon his death with subject to the rights of
regard to the excess innocent third persons
(CIVIL CODE, Art. 771). (CIVIL CODE, Art. 1387).

As to Right to/Liability for fruits

Donee is entitled to the Donee as owner, is not Donee appropriates fruits The fruits shall be
fruits as owner of property affected by reduction as owner (CIVIL CODE, returned if done in bad
donated (CIVIL CODE, (CIVIL CODE, Art. 441) Art. 441). faith, and if it is impossible
Art 729). but with regard to excess, to return the property, to
he shall be liable only for be held liable for damages
those accruing from the (CIVIL CODE Art. 1388,
filing of the complaint Par. 1).
(CIVIL CODE Art. 768,
Par. 1).
 iv. Lapse of Time provided by law (DE
PRESCRIPTION LEON, Property, supra at 723).

(ARTS. 1106-1155) 2. Extinctive prescription (Article 1106, Par.

2)
– rights and actions are lost through the lapse of
time in the manner and under the conditions laid
Concept: It is a means of acquiring ownership and
down by law. It is also called limitation of actions
other real rights or losing rights or actions to enforce
(DE LEON, Property, supra at 723).
such rights through the lapse of time (DE LEON,
Property, supra at. 721).
ACQUISITIVE V. EXTINCTIVE
TYPES OF PRESCRIPTION: PRESCRIPTION
1. Acquisitive prescription ACQUISITIVE EXTINCTIVE
– one acquires ownership and other real rights PRESCRIPTION PRESCRIPTION
through the lapse of time in the manner and
under the conditions laid down by law (CIVIL As to the Operative Act
CODE, Art. 1106).
Relationship between One does not look to
a. Ordinary acquisitive prescription: requires the occupant and the the act of the
possession of things in good faith and with land in terms of possessor but to the
just title for the time fixed by law (CIVIL possession is capable of neglect of the owner.
CODE, Art. 1117, Par. 2). producing legal
consequences; it is the
NOTE: Just title here means merely possessor who is the
colorable title, i.e., although there was a actor.
mode of transferring ownership, the grantor
As to Requisites
was not the owner (Doliendo v. Biarnesa,
G.R. No. 2765, Dec. 27, 1906). Requires possession by Requires inaction of
a claimant who is not the the owner or neglect of
The Court accepted the opinion of a learned owner. one with a right to bring
Spanish law writer who holds that the "titulo his action.
verdadero y valido" as used in this article of
the code prescribes a "titulo Colorado" and As to its Applicability
not merely "putativo;" a "titulo Colorado"
being one 'which a person has when he buys Applicable to ownership Applies to all kinds of
a thing, in good faith, from one whom he and other real rights. rights, whether real or
believes to be the owner,' and a "titulo personal.
putativo" "being one which is supposed to
have preceded the acquisition of a thing, As to its Legal Effect
although in fact it did not, as might happen
Vests ownership or Produces the extinction
when one is in possession of a thing in the
other real rights in the of rights or bars a right
belief that it had been bequeathed to
occupant. of action.
him."(Aguirre v. Court of Appeals, G.R. No.
122249, January 29, 2004).
Results in the Results in the loss of a
acquisition of ownership real or personal right,
b. Extraordinary acquisitive prescription:
or other real rights in a or bars the cause of
acquisition of ownership and other real rights
person as well as the action to enforce said
without need of title or of good faith or any
loss of said ownership or right.
other condition (CIVIL CODE, Art. 1137).
real rights in another.
Requisites (CTPT): As a Defense
i. Capacity to acquire by prescription
(National Power Corporation v. Campos Can be proven under the Should be affirmatively
Jr., G.R. No. 143643, June 27, 2003); general issue without its pleaded and proved to
ii. A Thing capable of acquisition by being affirmatively bar the action or claim
prescription; pleaded. of the adverse party.
iii. Possession of thing under certain
conditions; and (Id. at 724).
RATIONALE OF PRESCRIPTION: that led to the complaint and for which the
1. Prescription is of purely statutory origin and is complaint seeks a remedy;
founded on ground of public policy. Time limit is 2. Delay in asserting the complainant's rights,
imposed for a party to enforce his claim so that having had knowledge or notice of the
titles to property and other rights will be defendant's conduct and having been afforded an
stabilized. It protects the diligent and vigilant, not opportunity to institute a suit;
the person who sleeps on his rights (Id. at 725). 3. Lack of knowledge or notice on the part of the
defendant that the complainant would assert the
Without a time limit within which a party may right on which he bases his suit; and
enforce his claim, titles to property and other 4. Injury or Prejudice to the defendant in the event
rights will remain unstable for a long time and relief is accorded to the complainant, or the suit
wasteful litigations will be fostered (Id. at 726). is not held barred (Espinas-Lanuza v. Luna, Jr.,
G.R. No. 229775, March 11, 2019).
2. Prescription is rightly regarded as a statute of
repose whose object is to suppress fraudulent NOTE: Laches is recourse in equity. Equity, however,
and stale claims. Our laws favor not property is applied only in the absence, never in contravention,
rights hanging in the air for an uncertain time of statutory law. Thus, laches, cannot, as a rule, be
(Multi-Realty Dev. Corp v. Makati Tuscany, G.R. used to abate a collection suit filed within the
No. 146726, June 16, 2006). prescriptive period mandated by the Civil Code (De
Castro v. CA, G.R. No. 115838, July 18, 2002).
PRESCRIPTION AS A MATTER OF It applies even to imprescriptible actions (e.g., action
DEFENSE to annul a void contract may be barred by laches). Its
Burden of proof: Rests on the party laying claim to elements must be proved positively. Laches is
it (Id. at 729). evidentiary in nature (Gochan v. Heirs of Baba, G.R.
No. 138945, August 13, 2005).
Effect of failure to plead prescription:
Failure to plead constitutes waiver of the defense Where the law provides the period within which to
and cannot be raised for the first time at the trial or on assert a claim or file an action in court, the assertion
appeal (Id.). of the claim or the filing of the action in court at any
time within the prescriptive period is generally
GENERAL RULE: The issue of prescription is one deemed reasonable, and thus, does not call for the
involving evidentiary matters requiring a full-blown application of laches. Unless reasons of inequitable
trial on the merits and cannot be determined in a proportions are adduced, any imputed delay within
mere motion to dismiss (Id. at 730). the prescriptive period is not delay in law that would
bar relief (Phil-Air Conditioning Center v. RCJ Lines,
EXCEPTIONS: G.R. No. 193821, November 23, 2015).
1. When the plaintiff’s complaint on its face or the
evidence he presented shows clearly that indeed PRESCRIPTION V. LACHES
the action has prescribed at the time it was filed.
PRESCRIPTION LACHES
2. If, before trial, a party has no means of knowing
that opponent’s claim has already lapsed, As to What is Considered
prescription as a defense may be pleaded later
as soon as the true nature of the claim is Concerned with the Concerned with the effect
discovered (Id.). fact of delay. of delay.

LACHES As to Question Raised

Failure or neglect for an unreasonable and
A question or matter of A question of inequity of
unexplained length of time, to do that which, by
time. permitting a claim to be
exercising due diligence, one could or should have
enforced (this inequity
done earlier (Tijam v. Sibonghanoy, G.R. No. L-
being founded on some
21450, April 15, 1968). It should be stressed that
subsequent change in the
laches is not concerned only with the mere lapse of
condition or relation of the
time (Oropeza v. Allied Banking Corp., G.R. No.
parties).
222078, April 1, 2019).
As to Source
The elements of laches are (CoDeLIP):
1. Conduct on the part of the defendant, or one Statutory. Not statutory.
under whom he claims, giving rise to the situation
 required for prescription, it follows that things which
PRESCRIPTION LACHES
are not susceptible of being appropriated cannot be
As to Applicability the object of prescription (DE LEON, Property, supra
738).
Applies at law. Applies in equity.
Property of the State or any of its subdivisions not
patrimonial in character shall not be the object of
As to Availability prescription (CIVIL CODE, Art. 1113).
Cannot be availed of Need not be specifically
NOTE: Patrimonial property of the State may be
unless it is especially pleaded; court may
acquired as they are treated the same way as
pleaded as an consider it in its own
property of private individuals (DE LEON, Property,
affirmative allegation. initiative to prevent
supra at 730).
inequity.
Period of possession of public land before it became
As to Basis patrimonial is not counted for the purposes of
completing the prescriptive period (Heirs of
Based on a fixed time. Not based on a fixed Malabanan v. Republic, G.R. No. 179987, April 9,
time. 2009).
(DE LEON, Property, supra 728-729; Espinas-
Lanuza v. Luna, Jr., G.R. No. 229775, March 11, Res nullius (property without an owner) is acquired by
2019). occupation and not by prescription because
prescription presupposes a previous owner (Yu v. De
Lara, G.R. No. 16084, November 30, 1962).
CAPACITY TO ACQUIRE BY
PRESCRIPTION (CIVIL CODE, ART. 1107) Exceptions (ReSMo):
Persons who are capable of acquiring property or 1. Lands Registered under the Torrens system
rights by the other legal modes may acquire the same (P.D. No. 1529, Sec. 47);
by means of prescription (CIVIL CODE, Art. 1107, 2. Properties of Spouses, parents and children and
Par. 1). guardians and wards under certain conditions as
between themselves (CIVIL CODE, Art.1109);
Minors and other incapacitated persons may acquire and
property or rights by prescription, either personally or 3. Movables possessed through a crime (CIVIL
through their parents, guardians, or legal CODE, Art.1133).
representatives (CIVIL CODE, Art. 1107, Par. 2).
Possession has to be in the concept of an owner,
GENERAL RULE: A person must have the legal public, peaceful, and uninterrupted (CIVIL CODE,
capacity to acquire property or rights by the other Art. 1118).
legal modes in order that he may acquire the same
by means of prescription (DE LEON, Property, supra CHARACTERISTICS OF POSSESSION
at 730-731). TO BE THE BASIS OF PRESCRIPTION
EXCEPTION: Minors and other incapacitated
persons may acquire property or rights by (CIVIL CODE, ART. 1118): (OPPU)
prescription, either personally or through their 1. Concept of Owner
parents, guardians, or legal representatives (Id. at Only the possession acquired and enjoyed in the
731-732). concept of owner can serve as a title for acquiring
dominion (CIVIL CODE, Art. 540).
Unlike donation, prescription does not require
consent. It is not necessary that they have capacity Acts of a possessory character which are merely
to act as long as they have juridical capacity (Id. at tolerated by the possessor or which are due to his
732). license, do not constitute possession (DE LEON,
Property, supra at 743-745).
OBJECT OF PRESCRIPTION
License
GENERAL RULE: All things within the commerce of
Positive act of the owner in favor of the holder of
men may be acquired by prescription, unless
the thing (Id.).
otherwise provided (CIVIL CODE, Art. 1113).
Tolerance
NOTE: The objects of possession are things and
Passive acquiescence of the owner to acts being
rights which are susceptible of being appropriated
performed by another which appear to be
under Art. 530 of the Civil Code. Since possession is
 contrary to the rights of the former (Id.).
AGAINST WHOM AGAINST WHOM
PRESCRIPTION RUNS PRESCRIPTION
Tenants cannot acquire tenanted lands by
DOES NOT RUN
prescription, nor can an antichretic creditor the
land of his debtor (Id.). appointed by the courts before their
(CIVIL CODE, Art. 1108). appearance or
2. Public appointed by the
When the acts of enjoyment are executed in such courts (CIVIL CODE,
a manner as to be manifest or visible to all, Art. 1108).
especially to the person against whom the
possession is being adversely asserted (Id.). Persons living abroad, Persons living abroad,
who have managers or who do not have
In order for possession to be public, it must be administrators (CIVIL managers or
known to the owner of the thing (Id.). CODE, Art. 1108). administrators (CIVIL
CODE, Art. 1108).
3. Peaceful
It is acquired and maintained without any Juridical persons State and its
violence, physical, or moral (Id.). (including the State but subdivisions (only with
only with regard to regard to properties of
The possession continues to be peaceful even if patrimonial property) public dominion)
the possessor should use such force as is (CIVIL CODE, Art. 1108). (CIVIL CODE, Art.
reasonably necessary to repel or prevent an 1108).
actual or physical invasion of the property (Id.).
Married woman (CIVIL Between husband and
CODE, Art. 1110). wife during the
4. Uninterrupted marriage even though
When the possessor has never ceased to there be a separation
manifest with external acts his intention to of property agreed
exercise a right over the thing, which upon in the marriage
presupposes that he has never in fact ceased to settlements or by
exercise the right (Id.). judicial decree (CIVIL
CODE, Art. 1109).
Continuity is not understood in an absolute
sense. Possession is uninterrupted if there have - Between parents and
been no acts of deprivation of enjoyment of the children during the
things by a third person, or any other act which minority or insanity of
interrupts prescription (Id.). the latter (CIVIL
CODE, Art. 1109).
Interruption is distinct from discontinuity; the
former is a positive act of third person, while the - Between guardian
latter is a negative act or abstention on the part and ward during the
of the possessor himself (Id.). continuance of the
guardianship (CIVIL
AGAINST WHOM AGAINST WHOM CODE, Art. 1109).
PRESCRIPTION RUNS PRESCRIPTION - In favor of a co-owner
DOES NOT RUN or co-heir against his
Minors and other Minors and other co-owners or co-heirs
incapacitated persons incapacitated persons as long as the co-
who have parents, who do not have ownership is
guardians, or other legal parents, guardians, or recognized (CIVIL
representatives (CIVIL other legal CODE, Art. 494,
CODE, Art. 1108). representatives Par.5).
(CIVIL CODE, Art.
1108). NOTE: Under the Constitution, an alien cannot
acquire any land in the Philippines even by
Absentees who have Absentees who do prescription (CONST, Art. XII, Sec. 3, Par. 1, and
administrators, either not have Sec.7).
appointed by them before administrators, either
their appearance or appointed by them
Prescription Does Not Run Against the State and 4. It must not prejudice the Rights of creditors (while
Its Subdivisions Regardless of the Nature of the rights may be waived, it must not be prejudicial to
Government Property (whether Real or Personal) the rights of a third person with a right recognized
Article 1108 (4) of the Civil Code expressly provides by law (CIVIL CODE, Art. 6); and
that prescription does not run against the State and
its subdivisions. This rule has been consistently 5. The person renouncing must have Knowledge of
adhered to in a long line of cases involving reversion the existence of the right (DE LEON, Property,
of public lands, where it is often repeated that when supra at 736-737).
the government is the real party in interest, and it is
proceeding mainly to assert its own right to recover Kinds:
its own property, there can, as a rule, be no defense 1. Express; and
grounded on laches or prescription. We find that this
rule applies, regardless of the nature of the 2. Implied/Tacit
government property. Article 1108 (4) does not – when renunciation results from acts which
distinguish between real or personal properties of the imply the abandonment of the right acquired (Id.).
State (Ramsical Jr. v. Commission on Audit, G.R. No.
213716, October 10, 2017). Where the party acknowledges the correctness of the
debt and promises to pay it after the same has
The rule that prescription does not run against the prescribed and with full knowledge of the prescription,
State does not apply to corporations created by the he thereby waives the benefit of prescription
State for special purposes, it being said that when the (Development Bank of the Philippines v. Adil, G.R. L-
title of the Republic has been divested, its grantees, 48889, May 11, 1989).
although artificial bodies of its own creation, are in the
same category as ordinary persons (Shipside Inc. v. NOTE: But a simple promise which contains new and
CA, G.R. No. 143377, February 20, 2001). positive promise to pay the debt which has
prescribed, such as a promise to pay only one-half or
RENUNCIATION OF PRESCRIPTION even a part payment, does not amount to a
ALREADY ACQUIRED: renunciation of prescription (DE LEON, Property,
supra at 737).
Persons with capacity to alienate property may
renounce prescription already obtained, but not the Advance Renunciation is Void
right to prescribe in the future (CIVIL CODE, Art. A renunciation of prescription in advance is void. An
1112, Par. 1). agreement that the obligation arising from the
contract shall not be subject to prescription is not
Prescription is deemed to have been tacitly binding (Id. at 736).
renounced when the renunciation results from acts
which imply the abandonment of the right acquired Renunciations by Representatives
(CIVIL CODE, Art. 1112, Par. 2). Only persons with capacity to alienate property can
renounce prescription already obtained, not
Requisites (C-PORK): guardians, executors, administrators (Id.).
1. The person renouncing must have Capacity to
alienate property; Effect of Renunciation to Creditors
Notwithstanding the express or tacit renunciation by
REASON: Renunciation involves the disposition a person of a prescription already obtained, his
of property; creditors and all other persons interested in making
the prescription effective, may still plead prescription
2. The renunciation must refer to Prescription for themselves to the extent of their credit (CIVIL
already obtained; CODE, Art. 1114).
REASON: Art. 6 of the Civil Code (rights may be
waived) but not the right to prescribe in the future INTERRUPTION OF POSSESSION (CIVIL
because it is contrary to public order or public CODE, Arts. 1120 to 1124)
policy; Possession is interrupted for the purposes of
prescription, naturally or civilly (CIVIL CODE, Art.
3. It must be made by the Owner of the right; 1120).

REASON: An administrator, executor, agent, etc.

cannot renounce unless given Special Power of
Attorney (DE LEON, Property, supra at 736).
KINDS OF INTERRUPTION OF Real right of possession – not lost until after the
POSSESSION: lapse of 10 years.
1. Natural RECOGNITION BY THE POSSESSOR
– Possession is naturally interrupted when
through any cause it should cease for more than Rule: Any express or implied recognition or
one year (CIVIL CODE, Art. 1121). acknowledgment which the possessor may make
with regard to the right of owner will also interrupt the
NOTE: In case of natural interruption, the old continuity of possession (CIVIL CODE, Art. 1125).
possession loses all its juridical effects, and even
if the possession if reacquired, the old Requisites: (PT-VaB)
possession cannot be tacked to the new 1. Recognition must be made by the Possessor
possession for the purpose of prescription (DE himself, or if made by a Third person, the
LEON, Property, supra at 746-747). recognition must be authorized or ratified by the
possessor;
2. Civil
2. Recognition must be Valid and efficacious in law;
– Civil interruption is produced by judicial
and
summons to the possessor (CIVIL CODE, Art.
1123).
NOTE: When the act of recognition was obtained
through violence, intimidation, fraud, or any other
NOTE: In the case of civil interruption, there is
cause which vitiates consent, it will not interrupt
unanimity between the law and the
possession.
commentators in the view that if the possession
is recovered, it can be connected to the time that
3. Recognition must have been made Before
has elapsed as if it were in fact continuous, the
prescription has already been obtained (DE
period of interruption is to be counted for the
LEON, Property, supra at 747).
prescription (DE LEON, Property, supra at 746-
747).
PRESCRIPTION OF ACTION
When judicial summons does not constitute Concept: Prescription of action/limitation of action is
interruption: the time within which an action may be brought or
a. If it should be void for lack of legal some act done to preserve the right (Id. at 761).
solemnities;
b. If the plaintiff should desist from the Legal and not natural cause of the extinguishment of
complaint or should allow the proceedings obligations (Id.).
to lapse; or
c. If the possessor should be absolved from STATUTES OF LIMITATIONS
the complaint (CIVIL CODE, Art. 1124). Acts limiting the time within which actions shall be
brought. Statutes of limitation do not confer any right
EFFECT OF INTERRUPTION of action, but are enacted to restrict the period within
All the benefits acquired so far from the possession which the right, otherwise limited, might be asserted
cease. When the prescription runs again, it will be an (Id.).
entirely new one (DE LEON, Property, supra at 746-
747). STATUTES OF REPOSE
The object of which is to suppress fraudulent and
DISTINGUISH PRESCRIPTION FROM stale claims from springing up at great distances of
SUSPENSION time and surprising the parties of their
If prescription is merely suspended, (as representatives when all the proper vouchers and
distinguished from interruption), the old possession pieces of evidence are lost or the facts have become
will be added. This may happen when during war, the obscure from the lapse of time of the defective
civil courts are not open (CIVIL CODE, Art. 1136) or memory of death or removal of witnesses.
when there is a moratorium on the payment of debts
(Talens. v. Chuakay and Co., G.R. No. L-10127, June Not substantive right but only a matter of defense
30, 1958). (Id.).

Possession de facto – lost if new possession of PURPOSE: To protect the diligent and vigilant, not
another has lasted longer than 1 year. those who sleep on their rights (Tagarao v. Garcia, G.
R. No. L-40064, December 4, 1934).
EFFECT OF LAPSE OF TIME continued to be in possession during the
Actions prescribe by the mere lapse of time fixed by intervening time, unless there is proof to the
law (CIVIL CODE, Art. 1139). It extinguishes the contrary; and
action. 3. The first day shall be excluded and the last day
included (CIVIL CODE, Art. 1138).
But there is no extinctive prescription unless the
period provided by law expires. Computation of Period in Case Possession
Begins in Good Faith but is Later Converted to
Mere delay in the enforcement of a claim does not Bad Faith
result in any reduction or loss of right, unless the full The prescription will be extraordinary but the
period required by law for prescription has expired. possession in good faith shall be computed in the
proportion that the period of extraordinary
prescription bears to that of ordinary prescription (DE
PRESCRIPTION TO BE PLEADED LEON, Property, supra at 758).
Obligation subsists until he avails himself of
prescription, the courts of justice cannot supply the Illustration: If the possessor had possessed a
defense if the debtor himself does not do so. movable for three years in good faith, before his
possession was converted into bad faith, the 3 years
Right to prescription may be waived or renounced. It will be computed as double (6 years).
is deemed waived if not timely raised or pleaded
before or during the hearing of the case. RIGHTS NOT EXTINGUISHED BY
It has been held that even if not pleaded, if it is PRESCRIPTION: (RAPE-IT-RIPS)
apparent on the face of the complaint, it may be 1. To demand a Right of way;
favorably considered, even after evidence is 2. To bring an Action to abate a public of private
adduced. nuisance;
3. To demand Partition of co-ownership;
PERIOD OF PRESCRIPTION 4. To demand Easement of light and view through
observance by servient owner of distances for
MOVABLES IMMOVABLES direct or oblique view;
5. To declare the Inexistence of contract or the
Good Faith nullity of a void judgment;
6. To compel a Trustee to reconvey property
Four (4) years (CIVIL
Ten (10) years (CIVIL registered in his name for the benefit of the cestui
CODE, Art. 1132, Par.
CODE, Art.1134). que trust; and
1).
7. To compel Reconveyance of land registered in
Bad Faith bad faith provided it has not yet passed to an
innocent purchaser for value;
Eight (8) years (CIVIL
Thirty (30) years (CIVIL NOTE: An action for reconveyance can be barred
CODE, Art. 1132,
CODE, Art. 1137).
Par.2). by prescription (DBT Mar-Bay Construction Inc.
v. Panes, G.R. No. 167232, July 31, 2009).
RULES ON COMPUTATION OF PERIOD: The prescriptive period applies only if there is an
1. The present possessor may complete the period actual need to reconvey the property as when the
necessary for prescription by tacking his plaintiff is not in possession of the property. If the
possession to that of his grantor or predecessor; plaintiff, as the real owner of the property also
remains in possession of the property, the
NOTE: However, tacking of possession is prescriptive period to recover title and
allowed only when there is a privity of contract possession of the property does not run against
or relationship between the previous and him. In such a case, an action for reconveyance,
present possessors. In the absence of such if nonetheless filed, should be in the nature of a
privity, the possession of the new occupant suit for quieting of title, an action that is
should be counted only from the time it actually imprescriptible (Estate of Deceased Spouses
began and cannot be lengthened by connecting Francia v. Tan, G.R. No. 225687 (Notice),
it with the possession of the former possessors November 21, 2018).
(South City Homes v. Republic of the Philippines,
G.R.76564, May 25, 1990). When the action for reconveyance is based on a
void deed or contract, the action is imprescriptible
2. It is presumed that the present possessor who under Article 1410 of the New Civil Code. As long
was also the possessor at a previous time, has as the land wrongfully registered under the
 Torrens system is still in the name of the person
PRESCRIPTION PERIODS
who caused such registration, an action in
personam will lie to compel him to reconvey the ACTIONS MOVABLE IMMOVABLE
property to the real owner (Spouses Yu Hwa Ping
v. Ayala Land, Inc., G.R. No. 173120, July 26, on the birth,
2017). appearance or
adoption of a
8. To seek Issuance of a writ of possession; child (CIVIL
9. To Probate a will; and CODE, Art. 763);
10. Recovery by the State of non-registrable land 4. Revoke donation
(DE LEON, Property, supra at 767-768). based on non-
compliance with a
SUMMARY OF PRESCRIPTIVE PERIODS condition (CIVIL
CODE, Art. 764);
PRESCRIPTION PERIODS 5. Rescission of
ACTIONS MOVABLE IMMOVABLE contracts (CIVIL
CODE, Art. 1389,
Action to recover 8 years 30 years Par. 1); and
(CIVIL CODE, Art. from the 6. Annul a contract
1140 and 1141). time (CIVIL CODE,
possession Art. 1391, Par. 1).
is lost.
1. Forcible entry and 1 year
Foreclosure of 10 years detainer (CIVIL
Mortgage (CIVIL CODE, Art.
CODE, Art. 1142). 1147);
2. Defamation
All other actions Within 5 years from the time (CIVIL CODE,
whose periods are the right of action accrues. Art. 1147);
not fixed in the Code 3. Recover
(CIVIL CODE, Art. possession de
1149). facto (CIVIL
CODE, Art.
1. Upon a written 10 years from the time the 1147);
contract; right of action accrues. 4. Revoke a
2. Upon an donation on the
obligation created ground of
by law; and ingratitude (CIVIL
3. Upon a judgment CODE, Art. 769);
(CIVIL CODE, 5. Rescind or
Art. 1144). recover damages
if immovable is
1. Upon an oral 6 years sold with non-
contract; and apparent burden
2. Upon a quasi- or servitude
contract (CIVIL (CIVIL CODE,
CODE, Art. Art. 1560); and
1145). 6. Enforce warranty
1. Upon an injury to 4 years of solvency in
the rights of the assignment of
plaintiff (CIVIL credits (CIVIL
CODE, Art.
CODE, Art.
1146); 1629).
2. Upon a quasi-
delict (CIVIL ACCRUAL OF CAUSE OF ACTION
CODE, Art. Cause of action arises when that which should have
1146); been done is not done or that which should not have
3. Revoke or reduce been done is done (DE LEON, Property, supra at
donation based 762).
 RECKONING POINT
ESSENTIAL ELEMENTS OF A GOOD OF COMPUTATION OF
CAUSE OF ACTION: ACTION PERIOD OF
1. Existence of legal right a plaintiff; PRESCRIPTION
2. With a corresponding legal duty in the
defendant; and From the date when said
3. Violation or breach of that right or duty with Action arising from result was recognized by
consequential injury or damage to the plaintiff, for the result of the agreement of the
which he may maintain an action for appropriate accounting interested parties (CIVIL
relief (China Banking Corporation v. CA, G.R. CODE, Art. 1154).
153267, June 23, 2005).
INTERRUPTION OF PRESCRIPTION OF
NOTE: The moment the breach of right or duty
ACTIONS:
occurs, then the right of action accrues, therefore,
period of prescription begins to run (Solid Homes Inc. 1. Filing of an action in court (DE LEON,
v. Tan, G.R. Nos. 145156-57, July 29, 2005). Property, supra at 783).

RIGHT OF ACTION DISTINGUISHED NOTE: Interrupts extinctive prescription as to the

parties-defendants therein (Id.).
FROM CAUSE OF ACTION
The former is the right to commence and maintain an Filing of a motion for reconsideration continues
action. It springs from the cause of action, but does the suspension of the running of prescription
not accrue until all facts which constitute the cause period, which runs again after the court
have occurred (Multi-Realty v. Makati Tuscany, G.R. proceedings have finally been terminated
No. 146726, June 16, 2006). (Caniza v. People, G.R. No. L-53776, March 18,
1988).
DIFFERENT KINDS OF ACTION AND
CORRESPONDING RECKONING POINT When the prescription is interrupted by a judicial
OF COMPUTATION demand, the full period for the prescription must
be reckoned from the cessation of the
OF PRESCRIPTION PERIOD interruption (Permanent Savings and Loan Bank
RECKONING POINT v. Velarde, G.R. No. 140608, September 23,
OF COMPUTATION OF 2004).
ACTION PERIOD OF
PRESCRIPTION 2. Written extrajudicial demand by the
creditor
When there is no From the day they may The demand must be in writing and made before
special provision be brought (CIVIL the expiration of the period fixed by law (DE
which ordains the CODE, Art. 1150). LEON, Property, supra at 784).
time for prescription
for all kinds of action
Petitioner's action for collection of a sum of
Actions which have From the last payment of money was based on a written contract and
for their object the the annuity or of the prescribes after ten years from the time its right
enforcement of interest (CIVIL CODE, of action arose. The prescriptive period is
obligations to pay Art. 1151). interrupted when there is a written extrajudicial
principal with demand by the creditors. The interruption of the
interest or annuity prescriptive period by written extrajudicial
demand means that the said period would
Actions to demand From the time judgment commence anew from the receipt of the demand.
fulfillment of became final (CIVIL A written extrajudicial demand wipes out the
obligations declared CODE, Art. 1152). period that has already elapsed and starts anew
by a judgment the prescriptive period (Permanent Savings and
Loan Bank v. Velarde, G.R. No. 140608,
From the day the September 23, 2004).
persons who should
Actions to demand
render the same cease
accounting
in their functions (CIVIL
CODE, Art. 1153).
3. Written acknowledgment of the debt by
the debtor THE
NOTE: In extinctive prescription, the interruption CONDOMINIUM ACT
through the acknowledgment of debt of the (R.A. NO. 4726)
creditor’s right can only take place when such
acknowledgment is in writing (DE LEON,
Property, supra at 784).
CONDOMINIUM
It can be implied therefrom, but it must be in
An interest in real property consisting of a separate
writing. If not coupled with a communication
interest in a unit in a residential, industrial, or
signed by the payor, would not interrupt the
commercial building and an undivided interest in
running of the period of prescription (PNB v.
common, directly or indirectly, in the land on which it
Osete, G.R. No. L-24997, July 18, 1968).
is located and in other common areas of the building
(R.A. No. 4726, Sec. 2).
The acknowledgment must be such as to apply
to a particular and specific debt to interrupt
prescription (DE LEON, Property, supra at 782- UNIT
785). A part of the condominium project intended for any
type of independent use or ownership, including one
Acknowledgement can be made by a legal or more rooms or spaces located in one or more
representative (Id.). floors (or part/s of floors) in a building or buildings and
such accessories as may be appended thereto (R.A.
The acknowledgment of debt before period of No. 4726, Sec. 3).
prescription will interrupt the expiration of the
period of prescription, but a mere PROJECT
acknowledgment of the obligation after it has The entire parcel of real property divided or to be
already prescribed is not sufficient to renew the divided in condominiums, including all structures
period of prescription (Id.). thereon (R.A. 4726, Sec.3(c)).

If the period has already expired, there must be a CONDOMINIUM CORPORATION

renunciation of the prescription already acquired,
A corporation which holds title to the common areas,
in order action may be acquired (Id.).
including the land, or the appurtenant interests in
such areas, in which the holders of separate interest
Mere acknowledgment of debt does not
shall automatically be members or shareholders, to
constitute renunciation of prescription already
the exclusion of others, in proportion to the
acquired (Id.).
appurtenant interest of their respective units in the
common areas (R.A. No. 4726, Sec. 2).
By acknowledgment of debt, the debtor may
renew the obligation and interrupt the
NOTE: Any transfer or conveyance of a unit or an
prescription so as to make it run only from the
apartment, office or store, or other space therein,
date of the acknowledgment (Id.).
shall include transfer or conveyance of the undivided
interest in the common areas or, in a proper case, the
A mere offer to compromise a suit upon a
membership or shareholdings in the condominium
supposed debt is not an admission that anything
corporation: Provided, however, that where the
is due and cannot be used as evidence against
common areas in the condominium project are held
the defendant (Lichauco v. Limjuco, G.R. No.
by the owners of separate units as co–owners
6189, March 11, 1911).
thereof, no condominium unit therein shall be
conveyed or transferred to persons other than Filipino
This simply means that the period of prescription,
citizens or corporations at least 60% of the capital
when interrupted by such a written
stock of which belong to Filipino citizens, except in
acknowledgment, begins to run anew; and
cases of hereditary succession (R.A. No. 4726, Sec.
whatever time of limitation might have already
5).
elapsed from the accrual of the cause of action is
thereby negated and rendered inefficacious
Ownership over a condominium unit is acquired by
(Philippine National Railways v. NLRC, G.R.
the buyer only after he had fully paid the purchase
81231, September 19, 1989).
price (Sunset View Condominium Corp. v. Campos,
Jr., G.R. No. L-52361, April 27, 1981).
DOCUMENTS TO CONSIDER: 2. There shall pass with the unit, as an
appurtenance thereof, an exclusive easement for
1. Enabling or Master Deed
the use of the air space encompassed by the
– Which shall contain, among others, the
boundaries of the unit as it exists at any particular
following:
time and as the unit may lawfully be altered or
a. Description of the land on which the building
reconstructed from time to time. Such easement
or buildings and improvements are or are to
shall be automatically terminated in any air space
be located;
upon destruction of the unit as to render it
b. Description of the building or buildings,
untenantable;
stating the number of stories and basements,
3. Unless otherwise, provided, the common areas
the number of units and their accessories, if
are held in common by the holders of units, in
any;
equal shares, one for each unit;
c. Description of the common areas and
4. A non-exclusive easement for ingress, egress
facilities;
and support through the common areas is
d. A statement of the exact nature of the interest
appurtenant to each unit and the common areas
acquired or to be acquired by the purchaser
are subject to such easements;
in the separate units and in the common
5. Each condominium owner shall have the
areas of the condominium project. Where title
exclusive right to paint, repaint, tile, wax, paper
to or the appurtenant interests in the common
or otherwise refinish and decorate the inner
areas is or is to be held by a condominium
surfaces of the walls, ceilings, floors, windows
corporation, a statement to this effect shall be
and doors bounding his own unit;
included;
6. Each condominium owner shall have the
e. Statement of the purposes for which the
exclusive right to mortgage, pledge, or encumber
building or buildings and each of the units are
his condominium and to have the same
intended or restricted as to use;
appraised independently of the other
f. A certificate of the registered owner of the
condominiums but any obligation incurred by
property, if he is other than those executing
such condominium owner is personal to him; and
the master deed, as well as of all registered
7. Each condominium owner has also the absolute
holders of any lien or encumbrance on the
right to sell or dispose of his condominium unless
property, that they consent to the registration
the master deed contains a requirement that the
of the deed;
property be first offered to the condominium
g. The following plans shall be appended to the
owners within a reasonable period of time before
deed as integral parts thereof:
the same is offered to outside parties (R.A. No.
i. A survey plan of the land included in the
4726, Sec. 6).
project, unless a survey plan of the same
property had previously been filed in said
office; and COMMON AREAS
ii. A diagrammatic floor plan of the building The entire project except all units separately granted
or buildings in the project, in sufficient or held or reserved (R.A. No. 4726, Sec. 3).
detail to identify each unit, its relative
location and approximate dimensions; GENERAL RULE: Common areas shall remain
h. Any reasonable restriction not contrary to undivided, and there shall be no judicial partition
law, morals or public policy regarding the thereof (R.A. No. 4726, Sec 7).
right of any condominium owner to alienate
or dispose of his condominium (R.A. No. EXCEPTIONS/GROUNDS FOR PARTITION:
4726, Sec. 4). Where several persons own condominiums in a
condominium project, an action may be brought by
2. Declaration of Restrictions (R.A. No. 4726, one or more such persons for partition thereof by sale
Sec. 6); and of the entire project, as if the owners of all of the
condominiums in such project were co-owners of the
3. Articles and By-Laws of the entire project in the same proportion as their interests
Condominium Corporation or the in the common areas (R.A. No. 4726, Sec. 8) in the
following cases:
association where applicable.
1. That three years after damage or destruction
to the project which renders material part thereof
RIGHTS AND OBLIGATIONS OF unfit for its use prior thereto, the project has not
CONDOMINIUM OWNERS/INCIDENTS OF been rebuilt or repaired substantially to its state
A CONDOMINIUM GRANT prior to its damage or destruction;
1. The boundary of the unit granted are the interior 2. That damage or destruction to the project has
surfaces of the perimeter walls, floors, ceilings, rendered one-half or more of the units therein
windows, and doors thereof; untenantable and that condominium owners
 holding in aggregate more than thirty percent Membership in a condominium corporation,
(30%) interest in the common areas are regardless of whether it is a stock or non-stock
opposed to repair or restoration of the project; corporation, shall not be transferable separately from
3. That the project has been in existence in excess the condominium unit of which it is an appurtenance.
of fifty (50) years, that it is obsolete and When a member or stockholder ceases to own a unit
uneconomic, and that condominium owners in the project in which the condominium corporation
holding in aggregate more than fifty percent owns or holds the common areas, he shall
(50%) interest in the common areas are automatically cease to be a member or stockholder
opposed to repair or restoration or remodeling or of the condominium corporation (R.A. No. 4726, Sec.
modernizing of the project; 10).
4. That the project or a material part thereof has
been condemned or expropriated and that the The term of a condominium corporation shall be co-
project is no longer viable, or that the terminus with the duration of the condominium
condominium owners holding in aggregate more project, the provisions of the Corporation Law to the
than seventy percent (70%) interest in the contrary notwithstanding (R.A. No. 4726, Sec. 11).
common areas are opposed to continuation of
the condominium regime after expropriation or In case of involuntary dissolution of a condominium
condemnation of a material portion thereof; or corporation for any of the causes provided by law, the
common areas owned or held by the corporation
NOTE: If the Court finds that the conditions shall, by way of liquidation, be transferred pro-indiviso
provided for in this Act or in the declaration of and in proportion to their interest in the corporation to
restrictions have not been met, the Court may the members or stockholders thereof, subject to the
decree a reorganization of the project, declaring superior rights of the corporation creditors.
which portion or portions of the project shall
continue as a condominium project, the owners, Such transfer or conveyance shall be deemed to be
and the respective rights of said remaining a full liquidation of the interest of such members or
owners and just compensation, if any, that a stockholders in the corporation.
condominium owner may be entitled to due to
deprivation of his property (R.A. No. 4726, Sec. After such transfer or conveyance, the provisions of
23). this Act governing undivided co-ownership of, or
undivided interest in, the common areas in
5. That the conditions for such partition by sale set condominium projects shall fully apply (R.A. No.
forth in the declaration of restrictions, duly 4726, Sec. 12).
registered in accordance with the terms of this
Act, have been met (R.A. No. 4726, Sec. 8 (e)). Until the enabling or the master deed of the project in
which the condominium corporation owns or holds
The owner of a project shall, prior to the the common area is revoked, the corporation shall not
conveyance of any condominium therein, register be voluntarily dissolved through an action for
a declaration of restrictions relating to such dissolution under Rule 104 of the Rules of Court
project, which restrictions shall constitute a lien except upon a showing of the conditions provided in
upon each condominium in the project, and shall Sec. 8 of R.A. 4726 (R.A. No. 4726, Sec. 13).
insure to and bind all condominium owners in the
project. Such liens, unless otherwise provided, The condominium corporation may also be dissolved
may be enforced by any condominium owner in by the affirmative vote of all the stockholders or
the project or by the management body of such members thereof at a general or special meeting duly
project (R.A. No. 4726, Sec. 9). called for the purpose; Provided, that all the
requirements of Section sixty-two of the Corporation
CONDOMINIUM CORPORATION Law are complied with (R.A. No. 4726, Sec. 14).
Whenever the common areas in a condominium
project are held by a condominium corporation, such The corporation shall be deemed to hold a power of
corporation shall constitute the management body attorney from all the members or stockholders to sell
of the project. and dispose of their separate interests in the project
and liquidation of the corporation shall be effected by
The corporate purposes of such a corporation shall a sale of the entire project as if the corporation owned
be limited to the holding of the common areas, either the whole thereof, subject to the rights of the
in ownership or any other interest in real property corporate and of individual condominium creditors,
recognized by law, to the management of the project, unless otherwise provided for in the declaration of
and to such other purposes as may be necessary, restrictions upon voluntary dissolution of a
incidental or convenient to the accomplishment of condominium corporation (R.A. No. 4726, Sec. 15).
said purposes.
A condominium corporation shall not, during its
existence, sell, exchange, lease, or otherwise
dispose of the common areas owned or held by it in
the condominium project unless authorized by the
affirmative vote of all the stockholders or members
(R.A. 4726, Sec. 16).

The management body, unless otherwise

provided for by the declaration of restrictions,
may acquire and hold, for the benefit of the
condominium owners, tangible and intangible
personal property and may dispose of the same
by sale or otherwise; the beneficial interest in
such personal property shall be owned by the
condominium owners in the same proportion as
their respective interests in the common areas. A
transfer of a condominium shall transfer to the
transferee ownership of the transferor's
beneficial interest in such personal property (R.A.
No. 4726, Sec. 22).
 3. Eclectic Theory
SUCCESSION This theory tries to harmonize the two principles
– individual and social. In either of these
principles, the basis of succession is the
recognized necessity of perpetuating man’s
GENERAL PROVISIONS patrimony beyond the limits of human existence
(Id. at 2-3).
(ARTS. 774-782)
SUCCESSION V. INHERITANCE
SUCCESSION INHERITANCE
SUCCESSION Refers to the legal Refers to the
A mode of acquisition by virtue of which the property, mode by which universality of all the
rights and obligations to the extent of the value of the inheritance is property, rights and
inheritance, of a person are transmitted through his transmitted to the obligations of a
death to another or others either by his will or by persons entitled to it decedent, which are not
operation of law (CIVIL CODE, Art. 774). (CIVIL CODE, Art. 774). extinguished by his
death (CIVIL CODE,
BASES OF SUCCESSION: Art. 776).
1. Right to dispose Private Property
If man has the right to own private property, he NOTE: Inheritance is
has the power to dispose of such property freely, the objective element of
imposing such licit terms and conditions as he succession. (JURADO,
may deem convenient. Consequently, he may Succession, supra at 5).
distribute them by means of a testament, since
a testament is nothing more than an instrument KINDS OF SUCCESSION:
of alienation conditioned upon his death
(JURADO, Comments and Jurisprudence on 1. As to whether a will exists or not:
Succession, (2009), p. 2 [hereinafter, JURADO, a. Testamentary or Testacy – by a will
Succession]). executed in the form prescribed by law
(CIVIL CODE, Art. 779);
NOTE: This is the basis of testamentary b. Legal or Intestacy – by operation of law
succession. based on the decedent’s presumed will
(CIVIL CODE, Art. 960); and
c. Mixed – partly testamentary and partly legal
2. Family Co-ownership
(CIVIL CODE, Art.780).
If the family is recognized as the heart and soul
of society, the idea of succession must,
therefore, revolve around it. Hence, the basis of 2. As to effectivity:
succession rests upon family co-ownership (Id.). a. Inter vivos – takes effect during the lifetime
of the source of the property (e.g., donation)
NOTE: This is the basis of intestate succession. b. Mortis causa – takes effect after the death
of the source of the property

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA TAMPUS, Vice Chairperson
for Secretariat | ARVY KEITH CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice Chairperson for
Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. JOSEPH FERDINAND DECHAVEZ

3. As to extent: hereditary estate. They exist only in
a. Universal – covers all the property, rights, testamentary succession (JURADO,
and obligations of the decedent, that is all the Succession, supra at 185); and
relations in which the decedent was involved
b. Particular – limited to certain specific items NOTE: A person may be a compulsory
and voluntary heir at the same time, in
4. As to part of property transmitted: the same will (dual status as an heir).
a. Forced or compulsory – takes place with This happens when in a will, a
respect to the legitime compulsory heir is given more than his
b. Voluntary – takes place with respect to the legitime. Insofar as his legitime is
free portion concerned, he is a compulsory heir.
Insofar as the excess is concerned, he
5. Contractual is a voluntary heir (3 PARAS, supra at
– deducible from the provision of Art. 130 of the 35).
Civil Code which is contractual in character and
applicable only to donations of future property by (3) Legal/Intestate – Those who
reason of marriage made by one spouse to the succeed by operation of law when
other (JURADO, Succession, supra at 14; DE legal or intestate succession takes
LEON, Comments and Cases on Succession, place. They are classified as:
(2017), p. 34-35 [hereinafter, DE LEON, (a) Those who inherit in their own
Succession]). right; and
(b) Those who inherit by right of
REQUISITES FOR TRANSMISSION OF representation.
SUCCESSIONAL RIGHTS: (DAT) ii. Devisees – persons to whom gifts of real
1. That indeed there has been Death (actual or property are given by virtue of a will (CIVIL
presumed); CODE, Art. 782).
2. That the rights or properties are indeed iii. Legatees – persons to whom gifts of
Transmissible or discernible; and personal property are given by virtue of a will
3. That the transferee is still Alive (no predecease), (CIVIL CODE, Art. 782).
is willing (no repudiation), and is capacitated to
inherit (3 PARAS, Civil Code of the Philippines HEIRS V. DEVISEES OR LEGATEES,
Annotated, (2016), p. 12-13) [hereinafter, 3
PARAS]. DISTINGUISHED
HEIRS DEVISEES OR
ELEMENTS: LEGATEES
1. Subjective Elements: Decedent and As to Title
Successors
a. Decedent Universal title; Particular title;
The person whose property is transmitted Succeed to an Succeed to individual
through succession, whether or not he left a indeterminate or aliquot items of property.
will (CIVIL CODE, Art. 775): portion.
i. Testator – if he left a will.
ii. Decedent – if he left no will. As to Means of Succession

b. Successors (Transferees or Causa Succeed by means of a Succeed by means of a

habientes) will or by operation of will only (CIVIL CODE,
i. Heirs – Those who are called to the law (CIVIL CODE, Art. Art. 782).
whole or to an aliquot portion of the 782).
inheritance either by will or by operation
As to Portion of Estate
of law (CIVIL CODE, Art. 782).
(1) Compulsory/Forced – Those who Distinction must be As a rule, the devises or
succeed by force of law to some made between heirs in legacies are chargeable
portion of the inheritance in an testate succession against the free portion.
amount predetermined by law known (compulsory and
as legitime (CIVIL CODE, Art. 886). voluntary) and heirs in
(2) Voluntary – Those who succeed by intestate succession
virtue of the will of the testator, to the (legal or intestate heirs)
whole or aliquot part of the
disposable free portion of the
 HEIRS DEVISEES OR VOLUNTARY DEVISEES
LEGATEES HEIRS /LEGATEES

to determine the portion prejudiced (CIVIL

of the estate. CODE, Art. 918).

As to Extent of Inheritance As to Properties Acquired by Testator After

Execution of The Will
Inherits an aliquot part Must be specified by the
of the indeterminate testator. Inherit everything at the After-acquired
portion of the estate. time of the testator’s properties shall only
death (JURADO, pass thereby, as if the
As to Representation of Decedent’s Juridical Succession, supra at testator had possessed
Person 36). it at the time of the
making of the will,
Represents the juridical Does not represent the
should it expressly
personality of the personality of the
appear by the will that
deceased and acquires deceased regardless of
such was his intention.
his rights, properties, the quantity or value of
(CIVIL CODE, Art. 793).
and obligations not the devise or legacy.
extinguished by death
REASON: It does not
to the extent of the
apply to the heirs
value of the inheritance.
because the heirs
As to Who May Succeed inherit everything at the
time of the testator’s
The heir who succeeds The devisee or legatee death. The time of death
by operation of law must may be a relative or not. is the determining point
be a relative of the properties, which
the heirs will inherit, not
(JURADO, Succession, supra at 27-28; DE LEON,
the making of the will
Succession, supra at 40-41).
(See CIVIL CODE, Arts.
776 and 781).
NOTE: The distinction between heirs and
devisees/legatees are significant in the following
cases: (PIA) Illustration: X designated A to ½ of his estate. He
a. Preterition (CIVIL CODE, Art. 854); also designated to B his car with plate number GVG-
b. Imperfect disinheritance (CIVIL CODE, Art. 101. Who is the heir? Who is the legatee?
918); and
c. After–acquired properties (CIVIL CODE, Answer: A is an heir because he will succeed to an
Art. 793). undivided portion of the estate (½ of X’s estate). B is
a legatee because he will succeed to a specified
VOLUNTARY HEIRS V. DEVISEES OR property (a car with plate no. GVG-101).
LEGATEES, DISTINGUISHED Illustration: X executed a will in 2008. In his will, X
VOLUNTARY DEVISEES gave Y all of his cars. X died in 2021. At the time of
HEIRS /LEGATEES the execution of the will, X had only 2 cars.
Assuming that in 2021 X already has 20 cars, how
As to Effect of Preterition or Pretermission many cars will Y inherit?
Annul entirely the Valid insofar as they are Answer: Y, a legatee, will only get 2 cars because
institution of heirs not inofficious (CIVIL the remaining cars are after-acquired properties. As
(CIVIL CODE, Art. 854). CODE, Art. 854). a rule, after-acquired properties shall only pass, as if
the testator had possessed at the time of the making
As to Effect of Imperfect or Defective
of the will, should it expressly appear by the will that
Disinheritance
such was his intention. (CIVIL CODE, Art. 793).
Annul the institution of Valid insofar as they are Here, it does not expressly appear that it was X’s
heirs to the extent that not inofficious (CIVIL intention to pass even his after-acquired properties.
the legitime of the CODE, Art. 918). Hence, Y shall only get 2 cars.
disinherited heir is
2. Causal Element: Death supra at 12). However, an heir cannot compel
When right to succession is transmitted the administrator to deliver to him his respective
The rights to the succession are transmitted portion without order of the court (Id. at 13).
from the moment of the death of the decedent
(CIVIL CODE, Art. 777). This rule applies to the No judicial declaration of heirship is necessary
2 kinds of death: in order that an heir may assert his or her right
a. Actual, Physical or Natural; and to the property of the deceased. Under the Civil
b. Presumptive. Code and Code of Civil Procedure, the title to
the property owned by a person who dies
NOTE: It is not tradition (delivery) that transfers intestate passes at once to his heirs. Such
ownership, but succession. The effects of the transmission is subject to the claims of
acceptance of inheritance retroact to the administration and the property may be taken
moment of death (3 PARAS, supra at 16). from the heirs for the purpose of paying debts
and expenses. Without some showing that a
Before Death judicial administrator had been appointed in
No heir may enter into a contract with respect to proceedings to settle the estate, the right of the
his future share in the inheritance because at heirs to maintain such action is established
this point the heirs have only a mere hope or (Gloria-Payduan v. Builders Savings and Loan
expectancy, absolutely inchoate in character, to Association, G.R. No. 202324, June 4, 2018).
their share in the inheritance (JURADO,
Succession, supra at 9). Unless there is a pending special proceeding for
the settlement of the decedent's estate or for the
Any contract entered into with respect to future determination of heirship, the compulsory or
inheritance would have no object whatsoever, intestate heirs may commence an ordinary civil
and as a consequence, would be inexistent from action to declare the nullity of a deed or
the beginning (Id.; read in connection with par. 2 instrument, and for recovery of property, or any
of Art. 1347 of the Civil Code). other action in the enforcement of their
ownership rights acquired by virtue of
GENERAL RULE: No contract may be entered succession, without the necessity of a prior and
into upon future inheritance except in cases separate judicial declaration of their status as
expressly authorized by law (CIVIL CODE, Art. such. The ruling of the trial court shall only be in
1347 par. 2). relation to the cause of action of the ordinary civil
action, i.e., the nullification of a deed or
EXCEPTIONS: instrument, and recovery or reconveyance of
a. Donations propter nuptias by the future property, which ruling is binding only between
spouses to each other of future property and among the parties (Reyes v. Larlar, G.R.
(JURADO, Succession, supra at 9); and No. 232579, September 8, 2020).
b. Partitions inter vivos made by a person of
his estate among his heirs (CIVIL CODE, Determination of the Time of Death in Case
Art. 1080). of Presumptive Death
General Rule: The time when the absentee
After Death actually died must be proved in accordance with
After death, the heirs own the property, subject the ordinary rules of evidence (JURADO,
to the decedent’s liabilities (3 PARAS, supra at Succession, supra at 11).
21). Hence, by virtue of their ownership, the
heirs may enter into a contract with respect to Exceptions:
his share in the inheritance even before partition a. Ordinary Absence
has been effected (JURADO, Succession, supra For purposes of opening one’s succession,
at 8). an absentee is presumed dead at the time
of the expiration of the period of absence
By virtue of succession, prior settlement of the designated by law:
estate is not necessary for any of the heirs to
acquire legal capacity to sue. Heirs can i. 10 years – if he disappeared at the age
commence an action originally pertaining to the of 75 or below.
decedent (Emnace v. CA, G.R. No. 126334, ii. 5 years – if he disappeared after the age
November 23, 2001). of 75 (CIVIL CODE, Art. 390, par. 2).

The fact that the hereditary estate is placed NOTE: The death is presumed to have
under administration will not affect the occurred at the end of the 10-year or 5-
application of Art. 777 (JURADO, Succession,
 year period (JURADO, Succession, supra (CIVIL CODE, Art. 392). If the heir had
at 11). already spent the money there is no
obligation to reimburse, in as much as the
b. Qualified or Extraordinary Absence consumption had been made in good faith
A person shall be presumed dead for all (3 PARAS, supra at 18-19).
purposes, including the division of the
estate among the heirs, under the 3. Objective Element: Inheritance
following circumstances: (VAD) Scope of Inheritance:
i. If he is on board a Vessel lost during a a. All properties of the decedent existing at the
sea voyage, or an aeroplane which is time of his death to the extent of the value of
missing, who has not been heard of for the inheritance (CIVIL CODE, Art. 776 and
4 years since the loss of the vessel or Art. 1311).
aeroplane;
ii. If he is in the Armed forces who has Restricted Concept of Inheritance
taken part in war, and has been missing Until a final liquidation is made and all debts
for 4 years; or left by the decedent are fully paid, the right
iii. If he has been in Danger of death under of the heirs to inherit remains inchoate or is
other circumstances and his existence a mere hope or expectancy. Liquidation is
has not been known for 4 years (CIVIL necessary to determine whether the
CODE, Art. 391). decedent has left assets which may be
transmitted to his heirs (JURADO,
NOTE: The person is presumed to have Succession, supra at 5).
died at the time of the disappearance, i.e.,
at the time the calamity took place, and not NOTE: The mortal remains of the decedent
at the end of four (4) years (JURADO, is not a property, hence, does not form part
Succession, supra at 12). of the inheritance. However, under R.A. 349,
as amended by R.A. 1056, a person may
The succession really took place four years validly grant to a licensed physician,
before (on the day of the disappearance), surgeon, scientist or any medical or
but actual division will only be at the end of scientific institution, the authority to detach
four years. In other words, from the at any time after his death any organ of his
beginning of the said four years, the heir body (Id. at 17-18).
shall be considered the owner and
possessor of the property, and not only from R.A. No. 7170 authorizes the legacy or
the end thereof (3 PARAS, supra at 18). donation of all or part of a human body after
death for specified purposes (DE LEON,
In both cases, the succession is only of Succession, supra at 10).
provisional character because there is
always the chance that the absentee may b. All transmissible rights and obligations
still be alive (Id.). existing at the time of decedent’s death to
the extent of the value of inheritance (CIVIL
Time of Death of Two or more Persons CODE, Art. 776 and Art. 1311).
who are called to succeed each other
If there is doubt, as between two or more PATRIMONIAL RIGHTS VS. PURELY
persons who are called to succeed each
PERSONAL RIGHTS
other, as to which of them died first, whoever
alleges the death of one prior to the other PATRIMONIAL PURELY PERSONAL
shall prove the same; in the absence of RIGHTS RIGHTS
proof, it is presumed that they died at the
same time and there shall be no Relates to
transmission of rights from one to the other
(CIVIL CODE, Art. 43). Property Persons and family

Whether Extinguished by Death

Effect of Absentee’s Return or
Appearance GENERAL RULE: Extinguished by death
The absentee shall recover his property in Not extinguished by because they are
the condition in which it may be found, and death inseparable from their
the price of any property that may have been holder or owner
alienated or the property acquired therewith;
but he cannot claim either fruits or rents.
 iv. Action to compel acknowledgment of a
PATRIMONIAL PURELY PERSONAL
natural child;
RIGHTS RIGHTS
v. Action to obtain judicial declaration of
EXCEPTION: illegitimate filiation of an illegitimate
Otherwise provided by child who is not natural;
law or will vi. Parental authority or patria potestas;
vii. Rights of a guardian;
viii. Right to receive and the obligation to
Whether Transmissible give support;
ix. Right to hold a public office as well as
Transmissible. Hence, Intransmissible by their the right to exercise a profession or
they may be included in nature and purpose (not vocation;
the inheritance. by contract). They are x. Right of usufruct;
not included in the xi. Right of personal easement;
inheritance. xii. Rights and obligations arising from a
(DE LEON, Succession, supra at 11-13). contract of partnership or agency; and
xiii. Criminal responsibility (JURADO,
Obligations not extinguished by death Succession, supra at 19).
which form part of the estate
GENERAL RULE: Obligations are by NOTE: The rights and obligations
nature transmissible and may constitute part extinguished by death are not transmissible
of the inheritance. by their nature, or by stipulation or by
provision of law (CIVIL CODE, Art. 1311).
EXCEPTIONS:
i. Personal obligations; The rights and obligations the deceased had
ii. Those arising from a contract for a by virtue of the subject Codicil were
piece of work; and transmitted to his forced heirs, at the time of
iii. Those that are made intransmissible his death (Rabadilla v. CA, G.R. No.113725,
by express agreement or by will of the June 29, 2000).
testator or by express provision of law
(Id. at 14). Section 5 of Rule 86 of the Rules of Court
expressly allows the prosecution of money
Rights and Obligations NOT claims arising from a contract against the
extinguished by death: estate of a deceased debtor. Hence, money
i. Right to bring or continue an action for claims are not actually extinguished.
forcible entry or unlawful detainer;
ii. Right to compel the execution of a Whatever monetary liabilities or obligations
document necessary for convenience, the deceased had under his contracts with
provided the contract is valid and creditors were not intransmissible by their
enforceable; nature, by stipulation, or by provision of law.
iii. Right to continue a lease contract; Hence, his death did not result in the
iv. Property right in an insurance policy extinguishment of those obligations or
with an irrevocable designation (3 liabilities, which merely passed on to his
PARAS, supra at 7); estate (Stronghold Insurance Co., Inc. v.
v. Civil liability arising from crime; Republic-Asahi Glass Corp., G.R. No.
vi. Obligation to deliver to the vendee 147561, June 22, 2006 citing Pavia v. De La
property sold by their parents; and Rosa, G.R. No. L-3083, March 18, 1907).
vii. Rights and obligations arising from
contract or negligence (DE LEON, With respect to obligations arising from
Succession, supra at 13-14). contracts, while the same is transmissible to
the heirs, the latter’s liability shall, however,
Rights and Obligations extinguished by be limited only up to the value of the
death and are not transmissible: property they received from the decedent (1
i. Rights and obligations between RABUYA, Civil Law Reviewer, (2017), p.
husband and wife; 714 [hereinafter 1 RABUYA]).
ii. Property relations between husband
and wife; The right of action for the acknowledgement
iii. Action for legal separation or to annul a of a natural child is extinguished by his
marriage; death because no express provision like that
of Art. 118 of the then Civil Code on the
 acknowledgement of legitimate children can be deprived of his inheritance only by a
exists. As such, the right of action cannot be compliance with this mode (Herreros v. Gil, G.R. No.
transmitted to and enforced by his mother L-3362, March 1, 1951).
(Conde v. Abaya, G.R. No. 4275, March 23,
1909). KINDS:
1. Notarial or Ordinary; and
NOTE: It must be remembered, however, 2. Holographic.
that the Family Code limits the classification
of children only to legitimate and illegitimate
children (JURADO, Succession, supra at
MODES:
292). 1. By will; or
2. By codicil.
The action to claim legitimacy for both
legitimate and illegitimate children may be CHARACTERISTICS (PFV-DRUM):
brought by the child during his/her lifetime 1. Strictly Personal Act
and shall be transmitted to the heirs should It cannot be left in whole or in part to the
the child die during minority or in a state of discretion of a third person, or accomplished
insanity. In these cases, the heirs shall have through the instrumentality of an agent or
a period of five (5) years within which to attorney (CIVIL CODE, Art. 784).
institute the action (FAMILY CODE, Art.
173). The mere act of drafting a will does not fall within
the purview of the prohibition because the
c. Those which have accrued thereto since the person doing the mechanical work of writing the
opening of the succession; such as alluvium will is a matter of indifference. Thus, the fact that
(CIVIL CODE, Art. 781). the will was typewritten in the office of a lawyer
is of no consequence (Castañeda v. Alemany,
NOTE: The accretions or accessions are not strictly G.R. No. 1439, March 19, 1904).
inherited for they form part of the estate only after
the heirs become the owners thereof; hence, Acts which may not be left to the discretion
properly speaking they are acquired by accretion (as of a third person: (DEPO)
an incident of ownership under the LAW), not by a. Duration of the designation of heirs,
succession (3 PARAS, supra at 33). devisees or legatees (CIVIL CODE, Art.
785);
b. Efficacy of the designation of heirs, devisees
or legatees (CIVIL CODE, Art. 785);
TESTAMENTARY c. Determination of the Portions which they are
SUCCESSION to take, when referred to by name (CIVIL
CODE, Art. 785); and
(ARTS. 783-959)
REASON: Those acts are testamentary in
character (JURADO, Succession, supra at
31).
It is one which results from the designation of an heir
made in a will executed in the form prescribed by law d. Determination of whether or not the
(CIVIL CODE, Art. 779). testamentary disposition is to be Operative
(CIVIL CODE, Art. 787).
WILL
An act whereby a person is permitted, with the REASON: While the act determining
formalities prescribed by law, to control to a certain whether a testamentary disposition is to be
degree the disposition of his estate, to take effect operative or not is not exactly testamentary
after his death (CIVIL CODE, Art. 783). in character, it is nonetheless prohibited
because it would be tantamount to allowing
The right to make a testamentary disposition of one's a third person substitute the will of the
property is purely of statutory creation, and is testator for his own (JURADO, Succession,
available only upon the compliance with the supra at 32).
requirements of the statute. The formalities which
the Legislature has prescribed for the execution of a Illustration: X declared in his will “I hereby
will are essential to its validity, and cannot be make A, B, and C, children of Hospicio de San
disregarded. The mode so prescribed is the Jose, as my legal heirs and declare my lawyer
measure for the exercise of the right, and the heir
 to determine the amount which they are to 5. Ambulatory and Revocable During the
receive.” Is the provision valid? Testator’s Lifetime
The testator can alter, revise, or revoke it at any
Answer: No. Art. 785 will apply because the time before his death.
heirs were referred to by name. Furthermore,
the amount was not specified by the testator. It 6. Unilateral and Individual Act
is the lawyer who determines the amount. – This means that no acceptance by the
transferee is needed while the testator is still
Acts which may be entrusted to a third alive; any acceptance made prematurely is
person (CIVIL CODE, Art. 786): useless (3 PARAS, supra at 44).
a. Distribution of specific property or sums of
money that the decedent may leave in Two or more persons cannot make a single joint
general to specified classes or causes; and will, either for their reciprocal benefit or for
b. Designation of the persons, institutions or another person. However, separate or
establishments to which such property or individually executed wills, although containing
sums are to be given or applied. reciprocal provisions (mutual wills), are not
prohibited, subject to the rule on disposicion
Illustration: What if X declared in his will: “I give captatoria (CIVIL CODE, Art. 875).
P10 million to the street children of Manila and
hereby designate my lawyer to take care of the 7. Act Mortis causa
distribution of the said amount.” Is the provision It takes effect only after the death of the testator
valid? (3 PARAS, supra at 44).
Answer: Yes. Art. 786 applies. The beneficiary
is a specified class and the amount was in a
specified amount of money.
INTERPRETATION OF
2. Formal and Solemn Act WILLS
It must be executed in accordance with the
formalities required by law (3 PARAS, supra at (ARTS. 787-795)
44).

3. Free and Voluntary Act All rules of construction are designed to ascertain
It must have been executed freely, knowingly, or and give effect to the intention of the testator. It is
ambulatory; otherwise, it will be disallowed (Id.). only when the intention of the testator is contrary to
law, morals, or public policy that it cannot be given
4. Disposition of Property effect (JURADO, Succession, supra at 34).
Disposition can be done either:
a. Directly – by the institution of heirs or DISPOSITIONS SUSCEPTIBLE OF
designation of devisees or legatees and the
property or share they are to receive; or DIFFERENT INTERPRETATIONS
b. Indirectly – by validly disinheriting those In case of doubt, that interpretation by which the
who would otherwise inherit by operation of disposition is to be operative or will sustain and
law (1 RABUYA, supra at 725). uphold the will in all its parts shall be adopted,
provided that it can be done consistently with the
A document which initially comes across as a established rules of law (CIVIL CODE, Art. 788).
mere disinheritance is considered a will. An
intent to dispose mortis causa can be clearly REASON: Testamentary succession is preferred
deduced from the terms of the instrument, and over intestacy. As much as possible, a testator's will
while it does not make an affirmative disposition is treated and interpreted in a way that would render
of the testator’s property, the disinheritance of all of its provisions operative.14 Hence, there is no
an heir, nonetheless, is an act of disposition in basis to apply the provisions on intestacy when
itself. The disinheritance results in the testate succession evidently applies (Hacbang v.
disposition of the property of the testator in favor Alo, G.R. No. 191031, October 05, 2015).
of those who would succeed in the absence of
the disinherited heir. (Seangio v. Hon. Reyes, RULE ON MISTAKES AND OMISSION
G.R. Nos. 140371–72, November 27, 2006). 1. When there is an imperfect description or when
no person or property exactly answers the
description, mistakes and omissions must be
corrected by ascertaining the testator’s intention
 using either intrinsic or extrinsic evidence, or INVALIDITY OF A DISPOSITION IN A
both (JURADO, Succession, supra at 35). WILL
2. When there is uncertainty on the face of the will, The invalidity of one of several dispositions
as to the application of any of its provision, the contained in a will does not result in the invalidity of
testator’s intention is to be ascertained from the the other dispositions, unless it is to be presumed
words of the will, taking into consideration the that the testator would not have made such other
circumstances under which it was made (Id.). dispositions if the first invalid disposition had not
been made (CIVIL CODE, Art. 792).
In both instances, the oral declarations of the EXCEPTION: When various dispositions or
testator as to his intentions are to be excluded provisions are indivisible in nature and intent.
(CIVIL CODE, Art. 789).
AFTER-ACQUIRED PROPERTY
KINDS OF AMBIGUITIES: Property acquired after the making of a will shall only
1. Patent or extrinsic ambiguities pass thereby, as if the testator had possessed it at
– Those which appear on the face of the will the time of making the will, should it expressly
itself. appear by the will that such was his intention (CIVIL
CODE, Art. 793).
Example: “I hereby institute some of my seven
(7) brothers…” It is evident that there is an NOTE: The rule applies only to devises and legacies
uncertainty as to how many brothers are being and not to institution of heirs. (JURADO,
instituted. Succession, supra at 36).

2. Latent or intrinsic ambiguities EXTENT OF INTEREST THAT THE

– those which do not appear on the face of the TESTATOR MAY DISPOSE OF
will and are discovered only by extrinsic Every devise or legacy shall convey all the interest
evidence. which the testator could devise or bequeath in the
property disposed of, unless it clearly appears from
Example: “I institute my brother-in-law…” It was the will that he intended to convey a less interest
discovered that there are two (2) brothers-in-law (CIVIL CODE, Art. 794).
(3 PARAS, supra at 49-50).
Illustration: X and Y co-own a parcel of land. X then
WHEN AMBIGUITY ARISES instituted in his will that he made Z the devisee as to
1. When there is an imperfect description of the the parcel of land. Up to what extent of the land could
heir, legatee, or devisee; he convey to Z?
2. When there is an imperfect description of the gift
being given; and Answer: X, as co-owner of the property, may only
3. When only one recipient is designated but it convey his share in the co-ownership no more, no
turns out that there are two or more who fit the less.
description (Gilmer v. Stone, 120 U.S. 586).
LAW GOVERNING FORM OF WILLS
HOW AMBIGUITIES ARE CURED The validity of a will as to its form depends upon the
GENERAL RULE: Intrinsic or extrinsic evidence observance of the law in force at the time it is made
may be used to ascertain the intention of the (CIVIL CODE, Art. 795).
testator.
KINDS OF VALIDITY
EXCEPTION: The oral declarations of the testator 1. Extrinsic Validity
as to his intentions must be excluded (CIVIL CODE, – Refers to the forms and solemnities needed.
Art. 789).
2. Intrinsic Validity
REASON: The oral declarations of the testator are – Refers to the legality of the provision in an
merely HEARSAY. The testator can no longer refute instrument, contract, or will.
the testimonies of lying witnesses (JURADO,
Succession, supra at 35). EFFECTS OF A NEW LAW CHANGING
THE FORMALITIES OF A WILL
1. Before the death of the testator but after the
execution of the will, the new law has no
 retroactive effect (JURADO, Succession, supra of the Philippines Annotated, (2003) p. 117
at 38). [hereinafter, 3 TOLENTINO]).

EXCEPTION: When a retroactive effect is: b. Alien Testator

a. Expressly declared by the statute itself; or i. Executing a will in the Philippines –
b. Necessarily implied from the language used either (CIVIL CODE, Arts. 17 and 817):
therein (CIVIL CODE, Art. 4). (1) The law of the Philippines; or
(2) The law of the country of which he
2. After the death of the testator, the rules have no is a citizen or subject.
effect because the heirs already have a vested ii. Executing a will outside of the
right (JURADO, Succession, supra at 38). Philippines – either (CIVIL CODE, Arts.
17 and 816):
NOTE: A will totally void at the time of its execution (1) The law of the place where it is
cannot be validated by a subsequent legislation executed;
(Severina A. Vda. De Enriquez v. Abadia, G.R. No. (2) The law of the place in which he
L-7188, August 9, 1954). resides;
(3) The law of his country; or
GOVERNING LAW ON FORMALITIES (4) The law of the Philippines.
1. As to Time:
a. Extrinsic validity - Depends upon the ASPECTS OF THE WILL GOVERNED BY
observance of the law in force at the time it NATIONAL LAW OF THE DECEDENT
is made (CIVIL CODE, Art. 795). (CIVIL CODE, Arts. 1039 and 16): (AICO)
b. Intrinsic validity - Judged at the time of the 1. Amount of successional rights;
decedent’s death by the law of his 2. Intrinsic validity;
nationality (3 PARAS, supra at 62). 3. Capacity to succeed; and
4. Order of succession.
2. As to Place (CIVIL CODE, Arts. 815 – 817):
The formal validity of a will shall be governed by DOCTRINE OF PROCESSUAL
the law of the country in which it was executed
(CIVIL CODE, Art. 17).
PRESUMPTION
a. Filipino testator If the foreign law is not properly pleaded or proved,
i. Executing a will in the Philippines or our Courts will presume that the foreign law is the
before the diplomatic or consular same as our local or domestic law (Del Socorro v.
officials of the Republic of the Wilsem, G.R. No. 193707, December 10, 2014).
Philippines in a foreign country –
Philippine law.
ii. Executing a will outside of the
Philippines – either: TESTAMENTARY CAPACITY
(1) The law of the country in which it is
executed or in which he may be (ARTS. 796-803)
(CIVIL CODE, Arts. 17 and 815); or
(2) The law of the Philippines.

Illustration: X, a Filipino citizen domiciled in TESTAMENTARY CAPACITY V.

Hong Kong, executed a will in Singapore. TESTAMENTARY POWER
Can the will be governed by the laws of the TESTAMENTARY TESTAMENTARY
Philippines? CAPACITY POWER
Answer: Yes. The Civil Code did not mean It refers to the ability as It refers to the privilege
to invalidate the will of a Filipino, executed well as the power to granted to the testator
in a foreign country, when it is made in make a will. to designate the person
conformity with our law and not in conformity or persons who are to
with the law of the place of execution. Arts. succeed him in his
816 and 817 permits an alien who executed inheritance.
a will in a foreign country other than his own
(JURADO, Succession, supra at 39).
to follow his national law or the formalities
prescribed by our law. It cannot be assumed
that the Civil Code places the Filipino citizen WHO CAN MAKE A WILL: (PS-18)
in a worse position than the alien in relation 1. All persons who are not expressly Prohibited by
to our own law (3 TOLENTINO, Civil Code law may make a will (CIVIL CODE, Art. 796).
 These persons shall only refer to natural judicial order has been set aside (3 PARAS,
persons, not juridical ones (3 PARAS, supra at supra at 78);
74). 3. He was under Guardianship at the time of
making his will (Torres and Lopez de Bueno v.
A convict under civil interdiction is allowed to Lopez, G.R. No. L-25966, November 1, 1926).
make a will because civil interdiction prohibits a
disposition of property inter vivos, not mortis The following circumstances do NOT affect
causa (REVISED PENAL CODE, Art. 34). testamentary capacity: (CAPIFO)
1. Civil Interdiction;
Spendthrifts or prodigals, even if under 2. Alienage;
guardianship, can make a will provided they are 3. Prodigality;
at least 18 years old and are of sound mind (3 4. Insolvency; and
PARAS, supra at 74). 5. Family Relations
6. Others of similar nature (JURADO, Succession,
2. At least 18 years of age (CIVIL CODE, Art. 797); supra at 39-40).

NOTE: A person is deemed to have reached the EFFECT OF CERTAIN INFIRMITIES

required age at the commencement of the day
1. Old Age
which is known as his birthday (CIVIL CODE,
Mere senility or infirmity of old age does not
Art. 13; DE LEON, Succession, supra at 67).
necessarily imply that a person lacks
testamentary capacity (Ortega v. Valmonte,
3. Of Sound mind (CIVIL CODE, Art. 798);
G.R. No. 157451, December 16, 2005).
NOTE: It is not necessary that the testator be in
Senile Dementia
full possession of all his reasoning faculties, or
It is the peculiar decay of the mental faculties
that his mind be wholly unbroken, unimpaired, or
whereby the person afflicted is reduced to
unshattered by disease, injury or other cause. It
second childhood. It is senile dementia and not
shall be sufficient if at the time of making the will,
senility that produces testamentary incapacity
he knows: (NOC)
(JURADO, Succession, supra at 46).
a. The Nature of the estate to be disposed of
(character, ownership of what he is giving);
To constitute complete senile dementia there
b. The proper Objects of his bounty (by
must be such failure of the mind as to deprive
persons who for some reason expect to
the testator of intelligent action. In the first
inherit something from him – like his
stages of the diseases, a person may possess
children); and
reason and have will power. If the testator still
c. The Character of the testamentary act (that
possessed the spark of reason and of life, that
it is really a will, that it is a disposition mortis
strength of mind to form a fixed intention and to
causa, that it is essentially revocable) (CIVIL
summon his enfeebled thoughts to enforce that
CODE, Art. 799; 3 PARAS, supra at 76).
intention, he is considered to possess
"testamentary capacity" (Torres and Lopez de
PRESUMPTION OF SOUND MIND Bueno v. Lopez, G.R. No. L-24569, February 26,
The law presumes that the testator is of sound mind. 1926).
Thus, the burden of proof that the testator was not of
sound mind at the time of making his disposition is 2. Infirmity or Disease
on the person who opposes the probate of the will Physical infirmity or disease is not inconsistent
(CIVIL CODE, Art. 800). with testamentary capacity

No presumption of insanity arises from the presence EXCEPTION: In case the testator, at the time of
of mere delirium, since this is temporary, nor from the execution of the will, is already in comatose
intoxication, for the same reason (3 PARAS, supra or semi-comatose condition (JURADO,
at 78). Succession, supra at 47).

Exceptions to Presumption of Sanity 3. Mental Disease or Insanity

The burden of proving sanity is cast upon the There may be mental incapacity to make a will
proponents of the will when (1-IG): without actual insanity.
1. The testator, one (1) month or less, before
making his will, was publicly known to be insane Persons suffering from idiocy (those
(CIVIL CODE, Art. 800 par. 2); congenitally deficient in intellect), and imbecility
2. If the testator made the will after he had been (those who are mentally deficient as a result of
judicially declared to be Insane and before such
 disease) do not possess the necessary mental Formal Requirements: (W2-SAMPAL)
capacity to make a will (Id. at 48). a. In Writing;
b. Executed in a Language or dialect known to
4. Mental Delusion the testator;
An insane delusion, which will render one c. Subscription – Subscribed at the end thereof
incapable of making a will, may be defined as a by the testator himself or by testator’s name
belief in things which do not exist, and which no written by some other person in his
rational mind would believe to exist presence and by his express direction;
d. Attested and subscribed by 3 or more
To justify the setting aside of a will, it must be credible Witnesses in the presence of the
shown that the will was the product or offspring testator and of one another;
of the delusion, or at least, that it was influenced e. Marginal signature – All of the pages are
by the delusion (Id. at 49). signed, except the last, on the left margin by:
i. The testator or the person requested by
5. Belief in the Supernatural him to write his name, in the presence
Belief in spiritualism is not in itself sufficient of the witnesses; and
evidence of testamentary incapacity. ii. The instrumental witness, in the
However, a will executed by one under such an presence of the testator and of one
extraordinary belief in spiritualism that he another;
follows, blindly and implicitly, supposed f. Page numbering – All the pages are
directions of spirits in constructing the will is not numbered correlatively in letters placed on
admissible to probate (Id. at 49-50). the upper part of each page;
g. Attestation clause executed by the
6. Drunkenness witnesses; and
GENERAL RULE: The admission of a will to h. Acknowledgment – Properly acknowledged
probate will not be denied merely on proof that before a notary public by the testator and the
the testator was addicted to the excessive use said witnesses (CIVIL CODE, Arts. 804-
of alcoholic liquors or drugs (Id. at 50). 806).

EXCEPTION: If at the time of the making of the 2. Holograph or Holographic Will

will, the testator was so much under the That which is entirely written, dated, and signed
influence of the intoxicants or drugs as to be by the hand of the testator himself (CIVIL CODE,
unable to bring to the business at hand the calm Art. 810).
judgment which the law requires of a testator (Id.
at 50). NOTE: Nuncaptive wills – wills orally made by the
testator in contemplation of death, and before
7. Deaf-mute and Blind Person can make a competent witness. Our new Civil Code does not
will (CIVIL CODE, Arts. 807-808). recognize the validity of nuncaptive wills. Art. 804
does not recognize oral wills (3 PARAS, supra at
81).
SUPERVENING INCAPACITY
Supervening incapacity does not invalidate an OBJECTS OF FORMALITIES OF WILLS:
effective will, nor is the will of an incapable validated
by the supervening of capacity (CIVIL CODE, Art. (CAG)
801). 1. To Close the door against bad faith and fraud;
2. To Avoid substitution of wills and testaments;
and
3. To Guarantee their truth and authenticity
FORMALITY OF WILLS AND (JURADO, Succession, supra at 52).
WITNESSES TO WILLS So when an interpretation already given assures
(ARTS. 804-824) such ends, any other interpretation whatsoever, that
adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of testator’s
will, must be disregarded (Herreros v. Gil, G.R. No.
KINDS OF WILLS L-3362, March 1, 1951)
1. Ordinary or Notarial Will
That which requires, among other things, an
attestation clause, and an acknowledgment
before a notary public (3 PARAS, supra at 80).
COMMON FORMALITIES BETWEEN A will is not invalidated by the
HOLOGRAPHIC AND NOTARIAL WILLS misspelling of the testator’s name in the
signature, where it is clear that the
1. Will must be in writing (CIVIL CODE, Art. testator intended to execute the
804). instrument by the signature affixed (DE
If the will is ordinary, it does not matter on what LEON, Succession, supra at 98).
material it is written. It may be written by hand or ii. Signature by Mark
typewritten, or printed from plates or type Any mark or combination of marks
(JURADO, Succession, supra at 53). placed on a will by the testator is a
sufficient compliance, even if at the time
Article 810 provides that in the case of of placing it, the testator knew how to
holographic wills, it must be written entirely in the write and is able to do so (JURADO,
handwriting of the testator himself. It is only in Succession, supra at 56).
the case of ordinary wills that whoever performs
the mechanical act of writing or drafting the will If the signature is only a mere cross, it is
becomes a matter of indifference (Castañeda v. acceptable as a valid signature,
Alemany, G.R. No. 1439, March 19, 1904). provided it can be properly established
that it is the testator’s usual signature or
2. Executed in a language or dialect known at least one of the ways by which he had
to the testator (CIVIL CODE, Art. 804). signed his name before (Leaño v.
Testator’s knowledge or understanding of the Leaño, G.R. No. L-9150, March 31,
language/dialect need not be expressly stated 1915).
either in the body of the will or in the attestation
clause (JURADO, Succession, supra at 53). The requirement of the statute that the
will shall be "signed" is satisfied not only
NOTE: Donations mortis causa partake of the nature the customary written signature but also
of testamentary provisions (CIVIL CODE, Art. 728) by the testator's or testatrix' thumbmark.
and as such, said deeds must be executed in Expert testimony as to the identity of
accordance with the requisites on solemnities of wills thumbmarks or fingerprints is of course
and testaments under Arts. 805 and 806 (Maglasang admissible. However, where thumb
v. Heirs of Cabatingan, G.R. No. 131953; June 5, impressions are blurred and many of the
2002). characteristic marks far from clear, thus
rendering it difficult to trace the features
NOTARIAL OR ORDINARY WILL (CIVIL enumerated by experts as showing the
CODE, ART. 805): (SAM-PAA) identity or lack of identity of the
impressions, the court is justified in
1. Subscription refusing to accept the opinions of
The manual act by the testator and his
alleged experts and in substituting its
instrumental witnesses of affixing their signature
own opinion that a distinct similarity in
to the instrument (JURADO, Succession, supra
some respects between the admittedly
at 55).
genuine thumbmark and the questioned
thumbmarks, is evident (Dolor v.
PURPOSES:
Diancin, G.R. No. L-33365, December
a. To identify the testator; and
20, 1930).
b. To authenticate the document (Id. at 55).
If writing a mark is a sufficient indication
Forms:
of an intention to make a will then writing
a. Subscription by Testator
a portion of all of her name is accepted
i. Manner of Signing
as a clear indication of her intention. In
A sufficient signature to a will depends
this case the decedent used her first
largely on the custom of the time and
name "Tomasa" (Yap Tua v. Yap
place, the habit of the individual, and the
CaKuan, G.R. No. 6845, September 1,
circumstances of each particular case,
1914).
but it should be manifest that whatever
is used is actually intended as a
b. Signature by another
signature (Id. at 55).
Requisites: (TPEAW)
i. It is the testator’s name that must have
NOTE: A complete signature is not
been written by the Third person;
essential to the validity of a will (Id. at
ii. The testator’s name must have been
56).
written in his Presence;
 iii. The third person must have affixed the c. The position of the signature is an internal
testator’s name at his Express direction; evidence of finality or completion of intent
iv. This fact should be stated in the (JURADO, Succession, supra at 59).
Attestation clause; and
v. It should take place in the presence of 2. Attestation and Subscription
the instrumental Witnesses (JURADO, Attestation is the act of three (3) or more
Succession, supra at 57). credible witnesses of witnessing the execution
of the will in the presence of the testator and of
NOTE: Neither the notary nor any of the one another in order to see and take note
attesting witnesses can sign in behalf of the mentally that such will has been executed in
testator (3 PARAS, supra at 89). accordance with the requirements prescribed by
law. Strictly speaking, it is the act of the
The testator need not be physically witnesses and not that of the testator.
incapacitated, to ask a third person to sign the
will for him, provided, that the fact of the signing Subscription consists in the manual act of the
by the third person in his presence and under his instrumental witnesses in affixing their
express direction, shall be stated in the signatures to the instrument for the purpose of
attestation clause (Garcia v. Lacuesta, G.R. No. identification (Id. at 59-60).
L-4067; November 29, 1951).
Purposes of Requiring Witness to Attest and
Place of signature (either by the testator or by to Subscribe to a Will: (PIPA)
another): End of the will, otherwise, void a. Protection of the testator from fraud and
(JURADO, Succession, supra at 59). deception;
b. Identification of the instrument;
End of Will c. To render available Proof during probate
Refers to the logical end, which is the point proceedings that the will has been executed
where the testamentary dispositions terminate in accordance with the requirements
(3 TOLENTINO, supra at 70). prescribed by law and that the instrument
offered for probate is authentic; and
When Article 805 of the Civil Code requires the d. The Ascertainment of the testamentary
testator to subscribe at the end of the will, it capacity of the testator (Id. at 60-61).
necessarily refers to the logical end thereof,
which is where the last testamentary disposition ATTESTATION V. SUBSCRIPTION
ends. In this case, the last page of the will does
not contain any testamentary disposition; it is but ATTESTATION SUBSCRIPTION
a mere continuation of the Acknowledgment
As to What Performs the Act
(Mitra v. Sablan-Guevarra, G.R. No. 213994,
April 18, 2018). An act of the senses. An act of the hand.
Example: If a will starts on the first page, As to Nature of the Act
continues on the third page, but is concluded on
the second page, the latter is the logical end (3 Mental act. Mechanical act.
PARAS, supra at 87).
As to Purpose
NOTE: If the testator’s first name appears,
without the surname, the will is valid (Yap Tua v. Purpose is to render Purpose is for
Yap Ca Kuan, G.R. No. 6845, September 1, available proof during identification.
1914). The will remains valid even though the probate of will, not only
testator’s name is misspelled, abbreviated, or is of the authenticity of the
indicated only by nickname, or by “Father” or will, but also of its due
“Mother,” or in an assumed name, provided the execution.
testator intended the same to be his signature (3 As to Where in the Will Should It Be Place
PARAS, supra at 87-88).
Attestation clause may Subscription must
PURPOSES: be placed at the always be at the logical
a. To show that the testamentary purpose beginning of the will. end of the will.
therein expressed is completed; Placing it at the end is
b. To prevent any opportunity for fraud or only for convenience.
interpolations between the written matter
and signature; and (Id. at 60).
Order of Signing time of the subscription (Jaboneta v. Gustilo
As long as the signing is done within the et.al., G.R. No. 1641, January 19, 1906 supra).
presence of one another, it really does not It is not whether they actually saw each other
matter much whether the witnesses signed sign, but whether they might have seen each
ahead of or after the testator as long as the other sign had they chosen to do so, considering
signing is sufficiently contemporaneous (Id. at their mental and physical condition and position
60-61). with relation to each other at the moment of
inscription of each signature (Neyra v. Neyra,
“In the presence” C.A. No. 8075, March 25, 1946).
The execution of a will cannot be legally effective
if the various participants signed on various days Number of Witnesses
or occasions and in various combinations of The will must be attested and subscribed by 3 or
those present (Andalis v. Pulgueras, G.R. No. more credible witnesses (CIVIL CODE, Art.
39209, March 10, 1934). 805). This requirement is mandatory and if less
than 3 witnesses attested and subscribed
While it may be true that the attestation clause thereto, the will is void (Alaud v. Alaud, G.R. No.
is indeed subscribed at the end thereof and at 176943, October 17, 2008).
the left margin of each page by the three,
attesting witnesses, it certainly cannot be If the attestation clause does not indicate the
conclusively inferred therefrom that the said number of witnesses, but the will clearly shows
witnesses affixed their respective signatures in four signatures: that of the testator and of the 3
the presence of the testator and of each other other persons, it is reasonable to conclude that
since, as petitioners correctly observed, the there are 3 witnesses to the will (Testate Estate
presence of said signatures only establishes the of the Late Alipio Abada v. Abaja, G.R. No.
fact that it was indeed signed, but it does not 147145, January 31, 2005).
prove that the attesting witnesses did subscribe
to the will in the presence of the testator and of If the third witness is the notary public himself
each other. The execution of a will is supposed before whom the will was supposed to have
to be one act so that where the testator and the been acknowledged, the requirements of
witnesses sign on various days or occasions Articles 805 and 806 of the Civil Code are not
and in various combinations, the will cannot be satisfied. The notary public before whom the will
stamped with the imprimatur of effectivity was acknowledged cannot be considered as the
(Cañeda v. Court of Appeals, G.R. No. 103554, third instrumental witness since he cannot
May 28, 1993). acknowledge before himself his having signed
the will. He cannot split his personality into two
The phrase does not necessarily require actually so that one will appear before the other to
seeing, but the possibility of seeing without any acknowledge his participation in the making of
physical obstruction. When a person merely has the will (Cruz v. Villasor, G.R. No. L-32213,
his back turned, the signing is done in his November 26, 1973).
presence since he could have cast his eyes in
the proper direction (Jaboneta v. Gustilo, G.R. 3. Marginal Signatures
No. 1641, January 19, 1906). GENERAL RULE: Each and every page of the
will, except the last, shall be signed on the left
The attaching of signatures was not done “in the margin:
presence” of the witness if his line of vision to a. By the testator or the person requested by
the testator and the other subscribing witnesses him to write his name in the presence of the
was impeded by a curtain separating them at the witnesses; and
moment of inscription of each signature (Nera v. b. By the instrumental witnesses in the
Rimando, G.R. No. L-5971, February 27, 1911). presence of the testator and of one another
(CIVIL CODE, Art. 805).
In case the testator is blind, the presence may
be complied with if the signing or action is within There is a mandatory and directory part to this
the range of the other senses like hearing, touch, requirement (1 RABUYA, supra at 762 and 764):
etc., of the testator (3 PARAS, supra at 89). a. Mandatory part – the signing on every page
by the testator or the person requested by
Test of Presence him to write his name in the witnesses’
The true test of vision is not whether the testator presence and the signing on every page by
actually saw the witness sign, but whether he the instrumental witnesses in the presence
might have seen him sign, considering his of the testator and of one another
mental and physical condition and position at the
b. Directory part – the place of signing, i.e. the 4. Page Numberings
left margin; can also be on the right margin, All the pages of the will shall be numbered
provided, that the will contained the correlatively in letters placed on the upper part
necessary signatures on each page, of each page (CIVIL CODE, Art. 805).
whereby each page of the will was
authenticated and safeguarded against any There is a mandatory and directory part to this
possible alteration (Avera v. Garcia, G.R. requirement:
No. 15566, September 14, 1921). a. Mandatory part – Pagination by means of a
conventional system.
EXCEPTIONS: b. Directory part – Pagination which shall be
a. The last page need not be signed on the left numbered correlatively in letters placed on
margin because, being the page where the the upper part of each page. Thus, the
end of the will is, it contains the testator’s pages may be numbered by mere
signature (1 RABUYA, supra at 764); alphabetical letters, or by Arabic Numerals,
b. When the will consists of only one page; and or by any form of identification. If the paging
c. When the will consists of two pages, the first be placed in the lower part, the testament is
page contains all the testamentary not void for this sole reason (1 RABUYA,
dispositions and is signed at the bottom by supra at 769).
the testator and the witnesses, and the
second contains only the attestation clause This is not necessary when the will is written on
signed at the bottom by the witnesses. As one sheet only (Abangan v. Abangan, G.R. No.
the attestation clause appertains only to the L-13431, November 12, 1919).
witnesses and not to the testator, it need be
signed only by them (Abangan v. Abangan, Substantial compliance with the statutory
G.R. No. 13431, November 12, 1919). requirement is sufficient (JURADO, Succession,
supra at 73).
Failure to have the marginal signatures of the
testator and of the witnesses, when needed, is a PURPOSES: (FIDS)
fatal defect that constitutes an obstacle of its a. To guard against Fraud;
probate (In re: Will of Prieto, G.R. No. L-17761, b. To prevent any Increase or decrease in the
April 28, 1922). pages;
c. To afford means of Detecting the loss of any
The inadvertent failure of one witness to affix his of its pages; and
signature on one page of a testament, due to the d. To forestall any attempt to Suppress or
simultaneous lifting of two pages in the course substitute any of the pages (DE LEON,
of signing, is not per se sufficient to justify denial Succession, supra at 119).
of probate (Icasiano v. Icasiano, G.R. No. L-
18979, June 30, 1964). NOTE: The law says “page” not sheet (a sheet
has two pages, the front and the reverse sides.
NOTE: This case must be applied only to cases If both are used, both must be paged) (3
with similar facts. In Icasiano v. Icasiano, the PARAS, supra at 87-88).
failure of the witness to sign one page was
entirely through oversight, as shown by his own 5. Attestation Clause (AC)
testimony as well as by the original duplicate Memorandum or record of facts wherein the
copy of the will, which was submitted to the court witnesses certify that the will has been executed
and which bore a complete set of signatures in before them, and that it has been executed in
every page (Icasiano v. Icasiano, G.R. No. L- accordance with the formalities prescribed by
18979, June 30, 1964). law (JURADO, Succession, supra at 74).

Page of the Will NOTE: It must be signed by the witnesses, not

The law refers expressly to “page” and not to by the testator (Id.).
sheet or leaf or folio. A sheet has two pages, the
front and revers. If both pages of the sheet or PURPOSE: It is made for the purpose of
leaf are used, it is therefore necessary that both preserving in a permanent form a record of the
front and reverse sides should bear the facts that attended the execution of a particular
signatures of the testator and of each of the will, so that in case of failure of the memory of
witnesses (3 TOLENTINO, supra at 85). the attesting witnesses, or other casualty, such
facts may still be proved (Cañeda v. CA, G.R.
No. 103554, May 28, 1993).
Contents (CIVIL CODE, Art. 805): (SAN) NOTE:
a. The Number of pages used i. The attestation clause is the affair of the
witnesses; therefore, it need not be
GENERAL RULE: The failure to state the signed by the testator (Fernandez v.
number of pages on which the will was Vergel de Dios, G.R. No. L-21151,
written in the attestation clause is a fatal flaw February 25, 1924).
(Azuela v. CA, G.R. no. 122880, April 12, ii. The attestation clause need not be
2006). written in a language or dialect known to
the testator nor to the attesting
EXCEPTION: There is substantial witnesses since it does not form part of
compliance with the requirement if the will the testamentary disposition (JURADO,
states elsewhere in it, how many pages it is Succession, supra at 91).
comprised of, such as when the
acknowledgement itself states the same NOTE: If the attestation clause is in a
(Mitra v. Sablan-Guevarra G.R. No. 213994, language not known to the witnesses, it
April 18, 2018, citing Taboada v. Rosal, G.R. shall be interpreted to them (CIVIL
No. L-36033 November 5, 1982). CODE, Art. 805).

There is no substantial compliance with Art. iii. The witnesses must sign at the bottom
809 if there is a discrepancy between the of the attestation clause.
number of pages stated in the
acknowledgment and the actual number of NOTE: If the page containing the
pages of the will as it cannot be explained attestation clause is signed by the
by mere examination of the will itself but witnesses on the left-hand margin but
through the presentation of evidence their signatures do not appear at the
aliunde (Lopez v. Lopez, G.R. No. 189984 bottom of the attestation clause, the will
(Resolution), November,12, 2012). is fatally defective because the same
cannot be considered to have been
But if the number of pages is not stated in validly attested to by the instrumental
any part of the will, and the will does not witnesses, as they failed to sign the
contain any notarial acknowledgment attestation clause (Azuela v. CA, G.R.
wherein the number of pages of the will no. 122880, April 12, 2006).
should be stated, the doctrine set forth in
Taboada v. Rosal is not applicable (Azuela The signatures on the left-hand corner
v. CA G.R. no. 122880, April 12, 2006). of every page signify, among others,
that the witnesses are aware that the
PURPOSE OF THE RULE: To safeguard page they are signing forms part of the
against possible interpolation or omission of will. On the other hand, the signatures
one or some of its pages and to prevent any to the attestation clause establish that
increase or decrease in the pages (Azuela the witnesses are referring to the
v. CA, G.R. no. 122880, April 12, 2006). statements contained in the attestation
clause itself (1 RABUYA, supra at 758).
NOTE: When the attestation clause
erroneously states the number of pages of iv. The fact that the attestation clause was
the will, the Court held that the error was not written on a separate page has been
material since the pagination in letters was held to be a matter of “minor
a sufficient safeguard of the will’s integrity importance” and apparently will not
(Celada v. Avena, G.R. No. 145545, June affect the validity of the will (Villaflor v.
30, 2008). Tobias, G.R. No. 27440, December 24,
1927).
b. The fact that the testator Signed the will and
every page thereof, or caused some other v. An attestation clause is mandatory for
person to write his name, under his express attested wills. It is separate and distinct
direction, in the presence of the from the acknowledgment clause
instrumental witnesses; and (certification of acknowledgment).
These two cannot be merged (Echavez
c. The fact that the witnesses witnessed and v. Dozen Construction, G.R. No.
signed the will and all the pages thereof in 192916, October 11,2010).
the presence of the testator and of one
Another.
 vi. Absence of this clause will render the b. Whether the signatures appear in each and
will a nullity (JURADO, Succession, every page; whether the subscribing
supra at 74). witnesses are three; and
c. Whether the will was notarized (Cañeda v.
Effects of Defects or Imperfections in the CA, G.R. No. 103554, May 28, 1993).
Attestation Clause
GENERAL RULE: The will shall be invalidated All these are facts that the will can reveal, and
if the defect of the attestation clause is defects or even omissions concerning them in
substantial in character. The defect is the attestation clause can be safely disregarded.
substantial when it: But the total number of pages, and whether all
a. Goes into the very essence of the clause persons required to sign did so in the presence
itself; or of each other must substantially appear in the
b. Consists in the omission of one, some, or all attestation clause, being the only check against
of the essential facts which must be stated perjury in the probate proceedings (Cañeda v.
in such clause, and such omission cannot CA, G.R. No. 103554, May 28, 1993).
be cured by an examination of the will itself
(Id. at 76). 6. Notarial Acknowledgment
Done before a notary public by the testator and
EXCEPTION: Doctrine of Liberal the instrumental witnesses (CIVIL CODE, Art.
Interpretation 806).
Omissions or non-compliance with statutory
provisions as to form would not be fatal provided Acknowledgment is the act of one who has
that it can be established or deduced from an executed a deed in going before some
examination of the will itself that all of the competent officer or court and declaring it to be
statutory requirements have been complied with his act or deed. It involves an extra step
(Id. at 83-84). undertaken whereby the signatory actually
declares to the notary public that the same is his
Requisites to avail of the Doctrine of Liberal or her own free act and deed (Lee v. Tambago,
Interpretation: A.C. No. 5281, February 12, 2008).
a. Defects and imperfections must be in the The acknowledgment in a notarial will has a two-
form of the attestation or in the language fold purpose:
used therein; a. To safeguard the testators wishes long after
b. There must be no bad faith, forgery, fraud, his demise; and
or undue and improper pressure and b. To assure that his estate is administered in
influence, in the execution of the attestation the manner that he intends it to be done
clause; and (Lee v. Tambago, A.C. No. 5281, February
c. It must be proved that the will was in fact 12, 2008).
executed and attested in substantial
compliance with all the requirements of Art. A notarial will that is not acknowledged before a
805 (Id. at 78; CIVIL CODE, Art. 809). notary public by the testator and the witnesses
is fatally defective, even if it is subscribed and
It may thus be stated that the rule, as it now sworn to before the notary public (Azuela v. CA,
stands, is that omissions which can be supplied G.R. No. 122880, April 12, 2006).
by an examination of the will itself, without the
need of resorting to extrinsic evidence, will not A will which contains a mere jurat and does not
be fatal and, correspondingly, would not obstruct contain an acknowledgment is fatally defective
the allowance to probate of the will being because Art. 806 requires that the will be
assailed. However, those omissions which “acknowledged” and not merely subscribed and
cannot be supplied, except by evidence aliunde, sworn to (Azuela v. CA, G.R. no. 122880, April
would result in the invalidation of the attestation 12, 2006).
clause and ultimately, of the will itself (Cañeda
v. CA, G.R. No. 103554, May 28, 1993). The notary public must be duly commissioned
for the locality where the acknowledgment is
The rule must be limited to disregarding those made. Otherwise, the notarization – and the will
defects that can be supplied by an examination – will be void. An acknowledgement taken
of the will itself: outside the territorial limits of the officer’s
a. Whether all the pages are consecutively jurisdiction is void as if the person taking it were
numbered; wholly without official character (Guerrero v.
Bihis, G.R. No. 174144, April 17, 2007).
 The Civil Code does not require that the signing of the testator, three (3) witnesses, and notary
of the testator, witnesses and notary should be public, the Court held that the formal
accomplished in one single act (Javellana v. imperfections should be brushed aside when the
Ledesma, G.R. No. L-7179, June 30, 1955). spirit behind the law was served though the letter
was not (Alvarado v. Gaviola, G.R. No. 74695,
Affixing of documentary stamp is not required for September 14, 1993).
validity (Gabucan v. Manta, G.R. No. L-51546,
January 28, 1980). NOTE: The facts required in Articles 807 and
808 are not required to be stated in the
The requirement in Art. 806 does not apply to attestation clause. The same may be proved by
holographic wills because the latter are not extrinsic evidence (1 RABUYA, supra at 789).
required to be witnessed (1 RABUYA, supra at
785). 3. Witness to Notarial Wills
Requisites: (D-CRABS)
ADDITIONAL POINTERS ON a. Any person of Sound mind and
FORMALITIES OF NOTARIAL OR b. At the Age of eighteen (18) years or more;
c. Not Blind, deaf or dumb;
ORDINARY WILL d. Able to Read and write, may be a witness to
1. Date of Will the execution of a will mentioned in Article
NOT an essential part (3 TOLENTINO, supra at 805 of the Civil Code (CIVIL CODE, Art.
100). 820).
e. Domiciled in the Philippines; and
REASON: It would still be dated in its notarial f. Has not been Convicted by final judgment of
acknowledgment. falsification of a document, perjury, or false
testimony (CIVIL CODE, Art. 821).
Conflict between the dates appearing on the will
does not invalidate the document because the NOTE: A witness need not know the contents of
law does not even require that a notarial will be the will, and need not be shown to have had a
executed and acknowledged on the same good standing in the community where he lives
occasion (Ortega v. Valmonte, G.R. No. 157451, (JURADO, Succession, supra at 110).
December 16, 2005).
The requirement that the witnesses must be
2. Additional Requirements for Special domiciled in the Philippines applies only if a
Cases Filipino citizen executes his will in the
a. Deaf or Deaf–Mute Testator Philippines (1 RABUYA, supra at 797).
i. Personal reading of the will, if able to do
so; or Interested Witness
ii. If not possible, designation of two (2) A person attesting the execution of a will to
persons to read the will and whom or to whose spouse, parent, or child, a
communicate to him, in some devise or legacy is given (CIVIL CODE, Art.823).
practicable manner, the contents
thereof (CIVIL CODE, Art. 807). Effects of being an interested Witness:
a. He shall be admitted as a witness; but
b. Blind Testator b. The devise or legacy, so far only as
Double–reading requirement: concerns him, his spouse, parent or child, or
i. First, by one of the subscribing any one claiming under any of them, shall
witnesses; and be void, unless there are three other
ii. Second, by the notary public before competent witnesses to such will (CIVIL
whom the will is acknowledged (CIVIL CODE, Art. 823).
CODE, Art. 808).
NOTE: The persons named in Art. 823 are
Art. 808 of the Civil Code applies not only to incapacitated to inherit but not incapacitated as
blind testators, but also to those who for one witnesses (3 PARAS, supra at 130).
reason or another are incapable of reading their
wills (Alvarado v. Gaviola, G.R. No. 74695, The disqualification is not limited to the devisee
September 14, 1993). or legatee but extends to one succeeding by will
(3 TOLENTINO, supra at 125). Those who are
In a case where the testator did not read the final incapable of succeeding by will includes, among
draft of the will, but the lawyer who drafted the others, any attesting witness to the execution of
document read the same aloud in the presence a will, the spouse, parents, or children, or any
 one claiming under such witness, spouse, FORMALITIES: (WDSL)
parents, or children (CIVIL CODE, Art. 1027,
1. Entirely Written by the Hand of the
par. 4).
Testator;
Credible Witness Effects of Insertions or Interpolations by Third
It means competent witness, that is, such Persons (3 TOLENTINO, supra at 111-112):
person as are not legally disqualified from a. If made after the execution of the will
testifying in courts of justice by reason of mental without the consent of the testator, such
incapacity, interest, or the commission of insertion is considered as not written.
crimes, or other causes excluding them from
testifying generally (JURADO, Succession, REASON: The validity of the will cannot be
supra at 111). defeated by the malice or caprice of third
Creditor Witness persons.
A mere charge on the estate of the testator for
the payment of debts due at the time of the b. If made after the execution of the will with
testator’s death does not prevent his creditors the consent of the testator, the will remains
from being competent witnesses to his will valid but the insertion is void.
(CIVIL CODE, Art. 824).
c. If made after the execution of the will, and
NOTE: A person who is qualified to make a will the insertion is validated by the testator by
is not necessarily qualified to be a witness to the his signature thereon, the insertion
will of another (JURADO, Succession, supra at becomes part of the will and the will is void.
113).
REASON: Non-compliance with the
Effect of Subsequent Incompetency requirement that it must be entirely written
If the witnesses attesting the execution of a will by the hand of the testator.
are competent at the time of attesting, their
becoming subsequently incompetent shall not d. If made contemporaneous to the execution
prevent the allowance of the will (CIVIL CODE, of the will, the will is void.
Art. 822).
REASON: Will is not entirely written by the
The competency of a witness to a will is to be hand of the testator.
determined as of the time of the execution of the
instrument, and not as of the time when the will 2. Entirely Dated by the Hand of the
is presented for probate (JURADO, Succession, Testator;
supra at 113). Date Format
The “date” in a holographic will should include
HOLOGRAPHIC WILL the day, month, and year of its execution.
However, when there is no appearance of fraud,
A holographic will is one entirely written, dated, and
bad faith, undue influence and pressure, and the
signed by the hand of the testator himself. It is
authenticity of the will is established, and the
subject to no other form, and may be made in or out
only issue is whether or not the date “FEB. 1961”
of the Philippines, and need not be witnessed (CIVIL
appearing on the will is a valid compliance with
CODE, Art. 810).
Art. 810, probate of the holographic will should
be allowed under the principle of substantial
The Doctrines of Liberal Interpretation and
compliance (Roxas v. De Jesus, Jr., G.R. No. L-
Substantial Compliance, as applied to ordinary or
38338, January 28, 1985). This is an essential
notarial wills, cannot be applied to holographic wills
part of a holographic will.
(JURADO, Succession, supra at 94).
Reason for the Date Requirement: So that in
REASON: The law exacts literal compliance with the
case of a revision of the will, that of the later date
requirements of Article 810 (Id.).
should be preferred as expressing truly the last
will and testament (3 PARAS, supra at 110).
PURPOSES OF STRICT COMPLIANCE:
1. Safeguard the authenticity of the will, and
NOTE: Failure or error to state the place of
2. Deter or prevent any possible insertion or
execution will not invalidate the will (3
interpolation by others or any possible forgery
TOLENTINO, supra at 101).
(Id.).
The law does not specify a particular location
where the date should be placed in the will. The
 only requirements are that the date be in the will it is a matter that may be established by proof
itself and executed in the hand of the testator aliunde (JURADO, Succession, supra at 53).
(Labrador v. CA, G.R. No. 83843-44, April 5,
1990). But where a will is drawn up in the dialect of a
certain locality and it is established that the
3. Entirely Signed by the Hand of the testator was living in or was a resident of that
Testator; locality, there arises a presumption that the will
GENERAL RULE: Art. 810 does NOT require is drawn up in a language or dialect known to the
that the testator must sign the will with his full testator, in the absence of evidence to the
signature. contrary (Id.).

NOTE: Signing by means of thumbprint is not Rules in Cases of Subsequent Dispositions

allowed because the law requires that the will be 1. The dispositions of the testator written below his
“signed by the hand of the testator” (1 RABUYA, signature must be dated and signed by him in
supra at 791). order to make them valid as testamentary
dispositions (CIVIL CODE, Art. 812)
EXCEPTION: In case of any insertion, 2. When a number of dispositions appearing in a
cancellation, erasure or alteration in a holographic will are signed without being dates,
holographic will, the testator must authenticate and the last disposition has a signature and a
the same by his FULL SIGNATURE (CIVIL date, such date validates the dispositions
CODE, Art. 814). preceding it, whatever be the time of prior
dispositions (CIVIL CODE, Art. 813).
Ordinarily, when a number of erasures,
corrections, and interlineations made by the RULES FOR CURING DEFECTS
testator in a holographic will has not been noted
SCENARIO STATUS
under his signature, the will is not thereby
invalidated as a whole, but at most only as Several dispositions Valid
respects the particular words erased, corrected, were signed but NOT
or interlined (Kalaw v. Relova, G.R. No. L- dated, and the last REASON: The date of
40207, September 28, 1984). disposition is signed the last disposition cures
and dated. the defect (CIVIL CODE,
However, when as in this case, the holographic Art. 813).
Will in dispute had only one substantial
provision, which was altered by substituting the Several dispositions Void
original heir with another, but which alteration were NOT signed and
did not carry the requisite of full authentication NOT dated, but the last EXCEPTION: They were
by the full signature of the testator, the effect disposition is signed written on the same date
must be that the entire Will is voided or revoked and dated. and occasion as the
for the simple reason that nothing remains in the latter disposition
Will after that which could remain valid. To state
that the Will as first written should be given Several dispositions Void
efficacy is to disregard the seeming change of were NOT signed but
mind of the testatrix. But that change of mind can dated, and the last REASON: They are
neither be given effect because she failed to disposition is signed considered independent
authenticate it in the manner required by law by and dated. of the will.
affixing her full signature (Kalaw v. Relova, G.R.
No. L-40207, September 28, 1984).
The last disposition is Void
Location of the Signature signed but NOT dated.
At the end of the will. This is evident from Article REASON: Art. 810
812 (DE LEON, Succession, supra at 152). requires the holographic
will to be dated.
4. Executed in a Language or Dialect (DE LEON, Succession, supra at 160).
known to the Testator.
There is no statutory requirement that the NOTE: If the testator fails to sign and date some of
testator’s knowledge or understanding of the the dispositions, the result is that these dispositions
language or dialect in which the will is executed cannot be effectuated. Such failure, however, does
should be expressed either in the body of the will not render the whole testament void (Ajero v. CA,
itself or in the attestation clause. Consequently, G.R. No. 106720, September 15, 1994).
ADDITIONAL POINTERS ON JOINT WILLS
HOLOGRAPHIC WILL A single testamentary instrument which contains the
1. Probate of Holographic Will (CIVIL wills of two or more persons, jointly executed by
CODE, Art. 811) them, either for their reciprocal benefit or for the
GENERAL RULE: The original of the benefit of a third person (JURADO, Succession,
holographic will should be presented to the supra at 106).
probate court for visual examination. The law,
considering the special nature of holographic Joint wills executed by Filipino citizens are void
wills as well as the special requirements for their whether executed in the Philippines or abroad and
probate, regards the document itself as material even though authorized by the laws of the country
proof of authenticity (JURADO, Succession, where they may have been executed (CIVIL CODE,
supra at 98). Arts. 818 and 819).

EXCEPTION: A photostatic or xerox copy of a NOTE: The prohibition does not apply to joint wills
lost or destroyed holographic will may be executed by aliens (CIVIL CODE, Art. 819).
admitted. The authenticity of the handwriting of
the deceased can be determined by the probate Kinds:
court, as comparison can be made with the 1. Mutual Wills
standard writings of the testator (Gan v. Yap, – Executed pursuant to an agreement between
G.R. No. L-12190, August 30, 1958; Rodelas v. two or more persons to dispose of their property
Aranza, G.R. No. L-58509, December 7, 1982). in a particular manner, each in consideration of
the other (JURADO, Succession, supra at 106).
2. Witnesses (CIVIL CODE, Art. 811)
2. Reciprocal Wills
a. If uncontested, it shall be necessary that at
– The testators name each other as
least one (1) witness who knows the
beneficiaries under similar testamentary plans
handwriting and signature of the testator
(Id.).
explicitly declare that the will and signature
are in the handwriting of the testator.
NOTE: Mutual or reciprocal wills are NOT prohibited
b. If contested, at least three (3) of such
provided they are contained in separate instruments.
witnesses shall be required.
The prohibition under Art. 818 is the execution of a
c. In the absence of any competent witness,
joint will or a will contained in the SAME instrument,
and if the court deems it necessary, expert
either for reciprocal benefit or for the benefit of a third
testimony may be resorted to.
person (Id.).
NOTE: In one case, the Supreme Court held that
REASONS (3 PARAS, supra at 124):
the provisions of Art. 811 are mandatory. Thus,
1. A will is a purely personal and unilateral act.
the production of three witnesses, in case the
2. Contrary to the revocable character of a will.
will is contested, cannot be dispensed with
3. May expose the testator to undue influence, and
(Codoy v. Calugay, G.R. No. 123486, August
may even induce one of the testators to kill the
12, 1999).
other.
The opposition was filed by a mere stranger who
had no personality to contest the wills. Thus, his
opposition thereto did not have the legal effect
of requiring the three witnesses (Rivera v. IAC, CODICIL AND
G.R. No. 75005, February 15, 1990). INCORPORATION BY
Matters to be Proved by the Testimony of the REFERENCE
Witness
1. He knows the handwriting and signature of the
(ARTS. 825-827)
testator;
2. The will is in the handwriting of the testator; and
3. The signature is in the handwriting of the testator
(CIVIL CODE, Art. 811).
CODICIL
A supplement or addition to a will, made after the
Governing Law on Formalities execution of a will and annexed to be taken as part
(Please refer to p. 268 for full discussion on thereof, by which any disposition made in the original
Governing Law on Formalities). will is explained, added to, or altered (CIVIL CODE,
Art. 825).
It always refers to the original will. If there is entirely
CODICIL SUBSEQUENT WILL
no reference at all, then it is considered as the new
will. If the later instrument makes dispositions As to Construction
independent of those in the original will, without
explaining or modifying such original will, then it is a A will and codicil thereto A prior will and a
new will, not a codicil. A codicil is always related to being regarded as a subsequent will, being
some prior will (3 TOLENTINO, supra at 126). single instrument, are to two separate wills, may
be construed together. be construed
Its execution has the effect of republishing the will as independently of each
modified by the codicil (CIVIL CODE, Art. 836). other.
(DE LEON, Succession, supra at 177).
In order to operate as a republication of the will, it is
sufficient if the codicil refers to the will in such a way
as to leave no doubt as to the identity of that INCORPORATION BY REFERENCE
instrument (JURADO, Succession, supra at 115). The incorporation of an extrinsic document or paper
into a will by reference therein so as to become a
To be effective, it shall be executed as in the case of part thereof and probated as such (Id. At 178).
a will (CIVIL CODE, Art. 826). The form of a codicil If a will, executed as required by the Civil Code,
need not follow the form of the prior will to which it incorporates into itself by reference any document or
relates. A notarial codicil can modify a holographic paper, such document or paper shall not be
will and a holographic codicil can modify a notarial considered a part of the will unless the requisites for
will. What is important is that it is executed with all a valid incorporation by reference are present (CIVIL
the formalities of a will (DE LEON, Succession, CODE, Art. 827).
supra at 178).
Requisites for a Valid Incorporation by
In case of conflict, the codicil prevails, it being the Reference: (EDIS or SIDE)
later expression of the testator's will (3 PARAS, 1. The document or paper referred to in the will
supra at 132). must be in Existence at the time of the execution
of the will;
NOTE: A notarial and a holographic will may be 2. The will must clearly Describe and identify the
revoked by either a notarial or holographic codicil (Id. same, stating among other things the number of
at 133). A valid will can never be revoked, expressly pages thereof;
or impliedly, by an invalid codicil (Id.). 3. It must be Identified by clear and satisfactory
proof as the document or paper referred to
CODICIL V. SUBSEQUENT WILL therein; and
4. It must be Signed by the testator and the
CODICIL SUBSEQUENT WILL witnesses on each and every page, except in
case of voluminous books of account or
As to Effect
inventories (CIVIL CODE, Art. 827).
Forms part of the A new or separate will.
original will. REASON FOR PROVISION
This is allowed only with respect to provisions in a
As to Purpose will that are not in the nature of testamentary
dispositions and also provisions which may be
Supplements the Makes dispositions incorporated to the will merely for convenience or
original will, explaining, without reference to and reference (DE LEON, Succession, supra at 179).
adding to, or altering independent of the
any of its dispositions. original will. NOTE: The exception in the fourth requisite refers
only to the signing of all pages; while not every page
As to Revocation of the Prior Will has to be signed, there must be a signature on at
least several pages (3 PARAS, supra at 134).
Does not, as a rule, If it provides for a full
revoke entirely the prior disposition of the When, in a will, reference is made to an inventory of
will. testator’s estate, it may the properties of the testator, which has thus been
revoke the whole prior made part of the will, and the will has an attestation
will by substituting a clause that meets the requirements of the law, no
new and last disposition attestation clause is necessary for the said inventory
for the same. (Unson v. Abella, G.R. No. 17857, June 12, 1922).
Provisions which are in the nature of testamentary NOTE: The recognition of an illegitimate child does
dispositions must be contained in the will itself. not lose its legal effect, even though the will wherein
it was made should be revoked (CIVIL CODE, Art.
Parol evidence may be admitted to prove the identity 834).
of the document as incorporated (3 TOLENTINO,
supra at 127). GOVERNING LAWS FOR REVOCATION
1. If revocation is made in the Philippines –
From the fact that Art. 827 (4) of the Civil Code Philippine Law
speaks of “witnesses,” it is reasonable to believe that 2. If revocation is made outside the Philippines
as a rule, only notarial wills can have this a. If testator is not domiciled in the Philippines:
incorporation by reference. However, it is submitted i. Law of the place where the will was
that: made or
1. If a holographic will happens to have at least ii. Law of the place where the testator was
three credible and qualified witnesses, there can domiciled at the time of the revocation
be a proper incorporation by reference; or (CIVIL CODE, Art. 829).
2. If a holographic will (with NO witnesses) refers b. If testator domiciled in the Philippines
to a document entirely written, dated, and signed i. Philippine law – the Philippines being
in the handwriting of the testator, there can also his domicile; or
be a proper incorporation by reference (3 ii. Law of the place of revocation (CIVIL
PARAS, supra at 135). CODE, Art. 17)
iii. Follow the law of the place where the
will was made (by analogy with the rules
on revocation where the testator is a
REVOCATION OF WILLS non-Philippine domiciliary) (BALANE,
AND TESTAMENTARY Jottings and Jurisprudence in Civil Law
(Succession), (2016), p. 184
DISPOSITION [hereinafter, BALANE, Succession]).
(ARTS. 828-834) MODES OF REVOCATION: (LID)
1. By Implication of Law (CIVIL CODE, Art.
830) (PUJ-BALAT)
REVOCATION The kind of revocation produced by operation of
It is an act of the mind, terminating the potential law when certain acts or events take place after
capacity of the will to operate at the death of the a will has been made, rendering void or useless
testator, manifested by some outward or visible act either the whole will or certain testamentary
or sign, symbolic thereof (JURADO, Succession, dispositions therein (3 PARAS, supra at 138).
supra at 116).
a. Preterition shall annul the institution of heir
A will may be revoked by the testator at any time (CIVIL CODE, Art. 854);
before his death. Any waiver or restriction of this b. Act of Unworthiness by an heir,
right is void (CIVIL CODE, Art. 828). devisee/legatee revokes testamentary
provisions in his favor (CIVIL CODE, Art.
After a will has been probated during the lifetime of 1032);
the testator, it does not necessarily mean that he c. Judicial action for recovery of debt revokes
cannot alter or revoke the same (Palacios v. a legacy of credit/remission of debt (CIVIL
Palacios, G.R. No. L-12207, December 24, 1959). CODE, Arts. 935 and 936);
d. If both spouses of the subsequent marriage
in Art. 41 (Family Code) acted in Bad faith,
NATURE AND EFFECT OF said marriage shall be void ab initio and
REVOCATION testamentary dispositions made by one in
Upon revocation, the will or testamentary disposition favor of the other are revoked by operation
intended to be revoked ceases to exist and is of law (FAMILY CODE, Art. 44);
inoperative as if it has never been written. A will e. Alienation, transformation, or loss of
being a unilateral disposition of property, acquires bequeathed property revokes a legacy of
binding force only at the death of the testator, it such property (CIVIL CODE, Art. 957);
follows that no present rights are conferred at the f. When there is a decree of Legal separation
time of its execution, and no title vests in the (FAMILY CODE, Art. 63, Par. 4);
beneficiary during the life of the testator (JURADO,
Succession, supra at 117).
 NOTE: In legal separation, a spouse may still clearly and unmistakably manifest the
inherit from the other spouse, unless found intention of the testator to revoke the
guilty of the legal grounds of legal previous will (Id. at 121).
separation (FAMILY CODE, Art. 63, Par. 4).
An invalid revoking will cannot revoke,
g. Annulled or void ab initio marriages revoke but a valid though ineffective will can
testamentary dispositions made by one revoke (3 PARAS, supra at 146).
spouse in favor of the other (FAMILY CODE,
Art. 50 in relation to Art. 43, par. 5); ii. Implied – when the provisions thereof
h. The Termination of the subsequent are partially or absolutely inconsistent
marriage in Art. 41 (Family Code) revokes with those of the previous wills. May be
testamentary dispositions made by the effected only by:
innocent spouse in favor of the guilty spouse (1) Subsequent will
(FAMILY CODE, Art. 43 Par. 5). (2) Codicil

2. By Subsequent Instrument (CIVIL CODE, Subsequent wills which do not revoke the
Art. 830) previous ones in an express manner, annul
only such dispositions in the prior wills as
Requisites for a Valid Revocation by a are inconsistent with or contrary to those
Subsequent Instrument (DE LEON, contained in the later wills (CIVIL CODE,
Succession, supra at 184-185): (FACE) Art. 831).
a. The subsequent instrument must comply
with the Formal requirements of a will; (Molo Two separate and distinct wills may be
v. Molo, G.R. No. L-2538, September 21, probated if one does not revoke the other
1951, citing Samson v. Naval, G.R. No. L- and provided that the statutory requirements
11823, February 11, 1918); relative to the execution of wills have been
b. The subsequent instrument must be complied with (Merza v. Porras, G.R. No. L-
Admitted to probate; 4888, May 25, 1953).
c. The testator must possess testamentary
Capacity; and 3. By Destruction of the Will (CIVIL CODE,
d. The subsequent instrument must either Art. 830)
contain an Express revocatory clause or be
incompatible with the prior will (CIVIL Requisites (DE LEON, Succession, supra at
CODE, Art. 831; DE LEON, Succession, 185): (TITO-C)
supra at 184-185). a. Performed by the Testator himself or by
some other person in his presence, and by
i. Express – there is a revocatory clause his express direction;
expressly revoking the previous will or a
part thereof. It may be effected by: Effect of Unauthorized Destruction
(1) Subsequent will A will may still be proved as lost or
(2) Codicil destroyed. However, this is possible only if
the will is attested; if the will is holographic,
If the revocation is partial, it will it cannot be probated if it is lost, even if the
have the effect of republishing the loss or destruction was unauthorized (Gan
will as of the date of the codicil with v. Yap, G.R. No. L-12190, August 30, 1958),
respect to all parts not revoked. If unless a copy survives.
the revocation is total, there is no
republication (JURADO, Ratification of an unauthorized destruction
Succession, supra at 121). is however permissible, provided sufficient
proof of this is presented (3 PARAS, supra
(3) Non–testamentary writing executed at 140).
as in case of wills – does not contain
an affirmative disposition of the NOTE: If burned, torn, cancelled, or
property, thus it cannot impliedly obliterated by some other person, without
revoke a will as it cannot be said to the express direction of the testator, the will
be inconsistent with the dispositions may still be established, and the estate
contained in the will (Id. at 122). distributed in accordance therewith,
provided the following are established:
In all of the three ways of express (CDF)
revocation, the revocatory clause must i. Contents;
 ii. Due execution; and was torn with animus revocandi (JURADO,
iii. Fact of unauthorized destruction (3 Succession, supra at 126).
TOLENTINO, supra at 138)
The act of tearing must be a COMPLETE ACT.
b. Testator must have Testamentary capacity Otherwise, if the testator desists voluntarily or
at the time of performing the act of through the persuasion of others before the act
destruction; of destruction could be consummated, the act of
revocation has not also been consummated.
c. Intent to revoke (animus revocandi) Hence, it produces no effect (Id.).

The intention to revoke must appear clearly Tearing of even the signature alone constitutes
and unequivocally. An act of destruction revocation, provided the other requisites are
which is done accidentally, by mistake, or as present. This is because the signature goes to
a result of fraud, undue influence, does not the very heart of the will (3 PARAS, supra at
operate as a revocation (JURADO, 142).
Succession, supra at 123).
Humpty Dumpty Rule
The intention to revoke must concur with an Once a will has been torn and revoked it can no
overt act, manifesting the intention. Neither longer be revived by putting the pieces together
destruction without intention nor intention (Pier 66 Co. v. Poulos, 542 So. 2d 377).
without destruction would result to
revocation of the will (Id.). NOTE: The mere act of “crumpling'': or the
removal of the “fastener” binding the pages of a
d. The act must be any of the Overt acts will does not constitute revocation, even though
specified; there be animus revocandi. However, in Roxas
v. Roxas, 48 O.G. 2177, the court impliedly
It must be a mental process demonstrated allowed crumpling as one of the overt acts,
by some outward and visible sign provided there is animo revocandi (3 PARAS,
(JURADO, Succession, supra at 123-124). supra at 142).

e. It must be a Completed act Cancelling

The act is still deemed to be in the Effected by diagonal or horizontal lines, or criss-
subjective phase if the testator intends to do crosses, or the word “cancelled”, written upon
a further act. the face of the will or upon any part thereof
(JURADO, Succession, supra at 127-128).
Burning
There must be at least a burning of a part of the Marks made upon a will by the testator are
paper on which the will is written, although a very effective as a revocation by cancellation,
slight burn will suffice (JURADO, Succession, regardless of their depth, faintness, or other
supra at 126). characteristics, if they were placed there for the
purpose of canceling the will (Id.).
It is sufficient if a small part of the instrument
itself be burned even though the entire writing The cancellation need not render the will illegible
itself be left untouched (3 PARAS, supra at 140). (Id.).

If the document itself is not burned, even Obliterating

partially, but only the envelope in which it was Effected by erasing or scraping off any word or
placed was burned, there is no revocation of the disposition, which the testator intends to revoke.
will. But where the maker of the will threw it upon Obliteration renders the will illegible (Id.).
the fire with the intent to revoke, and it was
burned through in three places, this was NOTE: Revocation by cancellation or
considered a revocation, although the writing obliteration may be partial or total as opposed to
remained intact, and although it was rescued Revocation by Burning or Tearing which is
and preserved without the knowledge of the always total. The revocation is partial if it is
testator (3 TOLENTINO, supra at 135). directed against a nonessential part of the will
and total if it is directed against an essential part
Tearing thereof (Id.).
A slight act of tearing is generally held sufficient;
although the greater the degree of tearing the Illustration: X, the testator, asked his friend Y
stronger is the presumption that the instrument to get his will and burn it for him. Y then burned
 the will in a separate room and returned with of the old to depend upon the efficacy of the new
only the ashes. Is there a valid revocation? disposition intended to be substituted, the revocation
will be conditional and dependent upon the efficacy
Answer: The revocation was not valid. It was of the new disposition; and if for any reason, the new
not done in the presence of the testator as will intended to be made as a substitute is
provided for by Article 830(3) of the Civil Code. inoperative, the revocation fails and the original will
remain in full force (Vda. De Molo v. Molo, G.R. No.
DOCTRINE OF PRESUMED L-2538, September 21, 1951).
REVOCATION
The earlier will can still be admitted to probate under
In the absence of other evidence, it shall be the principle of "dependent relative revocation". The
presumed that the testator destroyed the will with theory on which this principle is predicated is that the
animus revocandi: testator did not intend to die intestate. And this
1. Where the will cannot be found following the intention is clearly manifest where he executed two
death of the testator and it is shown that it was wills on two different occasions (Vda. de Molo v.
in the testator’s possession when last seen; Molo, G.R. No. L-2538, September 21, 1951).
2. Where the will cannot be found following the
death of the testator and it is shown that the
testator had ready access to it; and REVOCATION BY MISTAKE
3. Where it is shown that the will was in the custody A revocation of a will based on a false cause or an
of the testator after its execution, and illegal cause is null and void (CIVIL CODE, Art. 833).
subsequently, it was found among the testator’s
effects after his death in such state of mutilation, The false or illegal cause must appear upon the face
cancellation or obliteration as represents a of the will.
sufficient act of revocation within the meaning of
the applicable statute (Id. at 128-129). However, where the facts alleged by the testator
were peculiarly within his knowledge, or the testator
The efficacy of the revocatory clause does not must have known the truth of the facts alleged by
depend on the testamentary dispositions of the him, it does not matter whether they are true or not;
revoking will, unless the testator so provides. the revocation is absolute (3 TOLENTINO, supra at
Revocation is, generally speaking, an absolute 142).
provision, independent of the acceptance or
capacity of the new heirs (BALANE, Succession, NOTE: The recognition of an illegitimate child does
supra at 193-194). not lose its legal effect, even though the will wherein
it was made should be revoked (CIVIL CODE, Art.
Example: X executes a will, naming A as his 834). The revoked will is still an "authenticated
universal heir. Two years later, X executes a second writing" under Art. 278.
will revoking the first and naming B as his universal
heir. X then dies and B renounces the inheritance. Illustration: X instituted Y, his friend, as heir for the
The first will remains revoked (Id.). free portion of his estate. X then revoked the will.
May Y subsequently contest the will?
DOCTRINE OF DEPENDENT RELATIVE “I revoke the will for Y”
“I revoke the will for Y as he is already dead”
REVOCATION “I revoke the will for Y because we are not
If a testator revokes a will with a present intention of friends anymore”
making a new one immediately and as a substitute,
and the new will is not made, or if made, fails to take Answer: Yes, but only in so far as reason “B” (or for
effect for any reason, it will be presumed that the the reason that he is dead) for being untrue. In such
testator preferred the old will than intestacy, and the case, the revocation is null and void, and will not take
old one will be admitted to probate in the absence of effect.
evidence overcoming the presumption, provided its
contents can be ascertained (JURADO, Succession,
supra at 129).

Being merely a presumed intention, it does not

prevail as against actual evidence of the testator’s
intention (Id. at 130).

NOTE: Where the act of destruction is connected

with the making of another will so as to fairly raise
the inference that the testator meant the revocation
 EFFECTS OF REPUBLICATION BY
REPUBLICATION AND VIRTUE OF A CODICIL:
REVIVAL OF WILLS 1. Codicil revives the previous will (DE LEON,
Succession, supra at 197); and
(ARTS. 835-837) 2. The old will is republished as of the date of the
codicil, and makes it effective, as it were, from
the new and later date (3 PARAS, supra at 210).
3. A will republished by a codicil is governed by a
REPUBLICATION statute enacted subsequent to the execution of
It is an act of the testator whereby he reproduces in the will, but which was operative when the codicil
a subsequent will the dispositions contained in a was executed (Id.).
previous will which is void as to its form or executes
a codicil to his will (JURADO, Succession, supra at REVIVAL
132). Restoration to validity of a previously revoked will by
operation of law (JURADO, Succession, supra at
KINDS: 133).
1. Express or Republication by Re-execution
(CIVIL CODE, Art. 835) REPUBLICATION V. REVIVAL
If the testator reproduces in a subsequent will
dispositions contained in a previous one which REPUBLICATION REVIVAL
is void as to its form. The purpose of As to How It Takes Place
republication is to cure the will of its formal
defects. Takes place by an act Takes place by
of the testator operation of law
2. Constructive or Republication by Reference
(CIVIL CODE, Art. 836) As to Purpose
If the testator for some reason or another
executes a codicil to his will. Corrects extrinsic and
Restores a revoked will
intrinsic defects.
NOTE: Art. 836 must be considered as the general (Id. at 133).
rule and Art. 835 as the exception. Reproduction in
the codicil is required only when the original will is
EXAMPLES OF REVIVAL
void as to its form; in all other cases, reference to the
original will suffice to republish it through the codicil. 1. While omission of a compulsory heir in the
Thus, a codicil may republish and validate a will institution of heirs annuls the institution, still if the
which was originally void for want of testamentary omitted heir dies ahead of the testator, the
capacity or on account of undue influence upon the institution is revived, without prejudice to the
testator (3 TOLENTINO, supra at 144). right of representation (CIVIL CODE, Art. 854).

Illustration: X made a will in 2010 but only two 2. If after making a will, the testator makes a
witnesses were present. In 2018, he modified the will second will impliedly revoking the first, the
by a codicil. If he dies, should the will be allowed? revocation of the second will revives the first will
as implied from Art. 837 (3 PARAS, supra at
Answer: No. The 1985 will was void as to its form 153).
because it only has two witnesses and therefore Art.
835 should apply. The testator must reproduce in a KINDS:
subsequent will the dispositions contained in the 1. Express Revocation of the First Will
1985 will. He cannot merely use a codicil. If after making a will, the testator makes a
second will expressly revoking the first, the
NOTE: The word “form” in Art. 837 refers to those revocation of the second will does not revive the
covered by Art. 805 like defect in the number of first will, which can be revived only by another
witnesses, lack of or fatal defect in the attestation, will or codicil (CIVIL CODE, Art. 837).
lack of acknowledgement etc., but not to vitiated
consent or to lack of testamentary capacity (3 2. Implied Revocation of the First Will
PARAS, supra at 152). Where there is merely an inconsistency between
two wills, but there is no revocatory clause, upon
destruction of the second will, the first is
automatically revived, regardless of the
intention of the testator, provided that the first
 will has been preserved undestroyed (JURADO,
Succession, supra at 133). ALLOWANCE AND
Illustration: Suppose, however, that instead of DISALLOWANCE OF
an express revocatory clause, the dispositions
found in the second will are merely
WILLS
INCONSISTENT with those found in the first — (ARTS. 838-839)
shall the express revocation of the second will
by a third will or a codicil result in the revival of
the first will?
PROBATE
Answer: The Code does not provide for the A special proceeding mandatorily required for the
effect of the revocation of the second will in case purpose of establishing the validity of a will. The
the second will merely impliedly revoked the first procedure to be followed is that which is provided for
will (Id.). in the New Rules of Court (JURADO, supra at 134-
135).
NOTE: If the revoking will be disallowed
because it is not valid, it cannot produce the NOTE: Probate is one thing; the validity of the
effect of annulling the previous will (Samson v. testamentary provision is another. The first decides
Naval, G.R. No. 11823; February 11, 1918). the execution of the document and the testamentary
capacity of the testator; the second deals with
Illustration: Assuming that Will No. 1 was descent and distribution (Sumilang v. Ramagosa,
expressly revoked by Will No. 2, Will No. 2 was G.R. No. L-23135, December 26, 1967).
subsequently revoked by Will No. 3. What is the
effect of the revocation of Will No. 2 if Will No. 3 WHEN PROBATE IS COMMENCED
contains a revocatory clause but no
testamentary disposition and how will the estate 1. Ante Mortem; during the lifetime of the
be distributed? testator
– The testator himself may, during his lifetime,
Answer: The estate would be distributed as if petition the court having jurisdiction for the
the decedent died intestate. A will (Will No. 1) allowance of his will (CIVIL CODE, Art. 838).
expressly revoked by a 2nd will (Will No. 2)
cannot be revived by the revocation of the will NOTE: After a will has been probated during the
(Will No. 3) revoking it (Will No. 2). (CIVIL lifetime of the testator, it does not necessarily
CODE, Arts. 837 in relation to Arts. 830, par. 2 mean that he cannot alter or revoke the same
and 960, par. 1). before his death (Maloles II v. De los Reyes,
G.R. Nos. 129505 & 133359, January 31, 2000).
PRINCIPLE OF INSTANTER
2. Post Mortem; after the death of the
When there is an express revocation of the first will
testator
by the second will, the third will cannot revive the
– By any person interested in the estate.
first will. Express revocation is always final and
executory.
NOTE: Formal validity is the only legal issue in
probate of a will (DE LEON, Succession, supra at
The revoking clause in the second will is not
200).
testamentary in character, but operates to revoke
It is not necessary that the original of the will be
the prior will upon the execution of the will
attached to the petition [for probate]. That the
containing it; hence, the revocation of the second
annexing of the original will to the petition is not a
will does not revive the first will which has already
jurisdictional requirement is clearly evident in
become a nullity (3 TOLENTINO, supra at 144-
Section 1, Rule 76 of the Rules of Court which allows
145).
the filing of a petition for probate by the person
named therein regardless of whether or not he is in
possession of the will, or the same is lost or
destroyed (Heirs of Fran v. Salas, G.R. No. 53546,
June 25, 1992).

If the holographic will has been lost or destroyed and

no other copy is available, the will cannot be
probated because the best and only evidence is the
handwriting of the testator in said will. However, a
photostatic copy or xerox copy of the holographic will RATIONALE: Probate proceedings are not
may be allowed because comparison can be made established in the interest of the surviving heirs, but
with the standard writings of the testator(In Re: primarily for the protection of the expressed wishes
Bonilla v. Aranza, G.R. No. L-58509, December 7, of the testator (Id.).
1982).
It is true that the rights of the parties should not be
NECESSITY OF PROBATE left hanging in uncertainty for periods in excess of
1. The law expressly requires it. No will shall pass the maximum period of ten (10) years allowed by
either real or personal property unless it is law, but the remedy is for the other interested person
proved and allowed in accordance with the either:
Rules of Court (CIVIL CODE, Art. 838). Even if 1. To petition for the production of the will and for
only one heir has been instituted, there must still its probate (Id.);
be the judicial order of adjudication (Lopez v. 2. To inflict upon the guilty party the penalties
Gonzaga, G.R. No. L-18788, January 31, 1964). prescribed by Rule 75 of the Rules of Court (Id.);
or
2. Probate is a proceeding in rem and therefore 3. To declare the unworthiness of the heir under
cannot be dispensed with or substituted by any Art. 1032 of the Civil Code for concealing or
other proceeding, judicial or extrajudicial without suppressing the will (Guevara v. Guevara, G.R.
offending public policy (JURADO, Succession, No. L-5405, January 31, 1956).
supra at 135).
The will and the codicil may or may not be probated
3. The right of a person to dispose of his property simultaneously.
by virtue of a will may be rendered nugatory (In One who has or can have no interest in succeeding
the matter of the Testate Estate of the late a decedent cannot oppose the probate of his alleged
Agustin Del Valle, G.R. No. L-11609, September will (Butiong v. Surigao Consolidated Mining, G.R.
24, 1959); and No. L-13938, July 31, 1968).

4. Because absent legatees and devises, or such ESTOPPEL NOT APPLICABLE TO

of them as may have no knowledge of the will, PROBATE PROCEEDINGS
could be cheated of their inheritance thru the The rule of estoppel does not apply to probate
conclusion of some of the heirs who might agree proceedings for they are invested with public
to the partition of the estate among themselves interest, and if estoppels would be applied, the
to the exclusion of others (In the matter of the ascertainment of the truth may be blocked (Alsua-
Testate Estate of the late Agustin Del Valle, G.R. Betts v. Court of Appeals, G.R. No. L-46430, July 30,
No. L-11609, September 24, 1959). 1979).

VENUE: EFFECT OF ALLOWANCE OF WILL

1. Resident citizen or alien A judgment or decree of a court with jurisdiction to
– RTC in the province in which he resides at the probate a will is:
time of his death. 1. Conclusive as to the validity of the will;

2. Non-resident citizen or alien NOTE: Especially the testamentary capacity

– RTC in which his estate is located (RULES OF and due execution of the will (3 PARAS, supra
COURT, Rule 73, Sec. 1). at 164).
2. Not subject to collateral attack, but stands as
Residence final, if not modified, set aside, or revoked by a
Actual or physical place of abode of the deceased as direct proceeding, or reversed on appeal to a
distinguished from his legal residence or domicile higher court; and
(Fule v. CA, G.R. no. L-40502, November 29, 1976). 3. Conclusive to the whole world (JURADO,
Succession, supra at 142).
NOTE: The first court taking cognizance of the
settlement of the estate of a decedent shall exercise NOTE: Formal notice is an idle ceremony where the
jurisdiction to the exclusion of all other courts adverse party had actual knowledge.
(RULES OF COURT, Rule 73, Sec.1).
Fraud as a ground for relief must be based on
IMPRESCRIPTIBILITY OF PROBATE extrinsic fraud.
The statute of limitations is not applicable to probate
of wills (JURADO, Succession, supra at 137). Where part of the estate is not distributed, recourse
is not to re-open probate proceedings, but motion for
execution or action for reconveyance (Heirs of the when the defect of the will is apparent on its face and
Late Jesus Fran v. Salas, G.R. No. L-53546, June the probate of the will may become a useless
25, 1992). ceremony if it is intrinsically invalid. The intrinsic
validity of a will may be passed upon because
INSTANCES WHEN ALLOWANCE MAY "practical considerations" demanded it as when
BE SET ASIDE there is preterition of heirs or the testamentary
provisions are of doubtful legality. Where the parties
GENERAL RULE: Since a proceeding for the
agree that the intrinsic validity be first determined,
probate of a will is essentially one in rem, a judgment
the probate court may also do so.
allowing a will shall be conclusive as to its due
execution (JURADO, Succession, supra at 144).
In Nuguid v. Nuguid (G.R. No. L-23445, June 23,
1966), the Supreme Court held that, if the case was
EXCEPTIONS: (ARSA)
to be remanded for probate of the will, nothing will
1. By means of an Appeal (CIVIL CODE, Art. 838
be gained. On the contrary, this litigation would be
par. 4);
protracted. And for aught that appears in the record,
2. By means of a petition for Relief from judgment
in the event of probate or if the court rejects the will,
by reason of fraud, accident, mistake, or
probability exists that the case will come up once
excusable negligence (RULES OF COURT,
again before us on the same issue of the intrinsic
Rule 38, Sec. 2);
validity or nullity of the will – thus resulting to a waste
3. By means of a petition to Set aside the judgment
of time, effort, expense, plus added anxiety.
by reason of lack of jurisdiction or lack of
procedural due process; or
In Nepomuceno v. CA (G.R. No. L-62952, October
4. By means of an action to Annul judgment by
9, 1985), the Court ruled that “the court can inquire
reason of extrinsic or collateral fraud (JURADO,
as to the intrinsic validity of the will because there
Succession, supra at 144).
was an express statement that the beneficiary was
a mistress. In Article III of the disputed Will, the
SCOPE OF PROBATE PROCEEDINGS testator stated that respondent was his legal wife
GENERAL RULE: In probate proceedings, the from whom he had been estranged "for so many
probate court cannot inquire into the intrinsic validity years." In Article IV, he stated that he had been living
of testamentary provisions. The only questions that as man and wife with the petitioner since 1952.
may be determined by the probate court are the There is no question about the fact of a prior existing
following: (ICE) marriage when the testator executed his Will. There
1. Identity of the will (whether the will presented is is also no dispute that the petitioner and Mr. Jugo
the last will and testament of the testator); lived together in an ostensible marital relationship for
2. Testamentary Capacity of the testator at the 22 years until his death.
time of the execution of the will; and
3. Due Execution of the will (whether there was Criminal action will not lie against the forger of a will
compliance with the requisites and solemnities which had been duly admitted to probate by a court
prescribed by law (Id. at 138-139). of competent jurisdiction (Mercado v. Santos, G.R.
No. 45629, September 22, 1938).
NOTE: The probate or administration court may
decide prima facie the ownership of the property, but The fact that the will has been allowed without
such determination is not final and is without opposition and the order allowing the same has
prejudice to the right of interested parties to ventilate become final and executory is not a bar to the
the question of ownership in a proper action (Teng presentation of a codicil provided it complies with all
v. Ting, G.R. No. 184237, September 21, 2016). the formalities for executing a will. It is not
necessary that the will and codicil be probated
The [probate] court had jurisdiction to act in the together as the codicil may be concealed by an
intestate proceedings with the caveat that, due to its interested party. They may be probated one after the
limited jurisdiction, it could resolve questions of title other (Macam v. Gatmaitan, G.R. No. 40445, August
only provisionally. It is hornbook doctrine that "in a 17, 1934).
special proceeding for the probate of a will, the
question of ownership is an extraneous matter which The Probate Court may pass upon the title to a
the probate court cannot resolve with property, but such determination is provisional, not
finality (Sanchez v. Court of Appeals, G.R. No. conclusive, and is subject to the final decision in a
108947, September 29, 1997). separate action to resolve title (Valero Vda. de
Rodriguez vs. Court of Appeals, G.R. No. L-39532,
EXCEPTION: Practical considerations July 20, 1979).
In Reyes v. Court of Appeals (G.R. No. 12099,
October 30, 1997), the Supreme Court held that,
GROUNDS FOR DISALLOWANCE OF A depriving the latter of a reasonable freedom of
WILL: (F2UMIS) choice (CIVIL CODE, Art. 1337).
1. Formalities required by law have not been
Fair arguments, persuasion, appeal to emotions,
complied with;
and entreaties which, without fraud or deceit or
2. Will was executed through Force or under
actual coercion, compulsion or restraint do not
duress, or the influence of fear, or threats;
constitute undue influence sufficient to invalidate a
3. Will was procured by Undue and improper
will (Barreto v. Reyes, G.R. No. L-5830, January 31,
pressure and influence on the part of the
1956).
beneficiary or of some other person;
4. Testator acted by Mistake or did not intend that
To be sufficient to avoid a will, the influence exerted
the instrument he signed should be his will at the
must be of a kind that so overpowers and subjugates
time of affixing his signature thereto;
the mind of the testator as to destroy his free agency
5. Testator was Insane, or otherwise mentally
and make him express the will of another rather than
incapable of making a will, at the time of its
his own (Pascual v. De la Cruz, G.R. No. L-24819,
execution; and
May 30, 1969).
6. Signature of the testator was procured by fraud
(CIVIL CODE, Art. 839).
The contention that a will was obtained by undue
influence or improper pressure cannot be sustained
NOTE: The list is exclusive (Ajero v. CA, G.R. No.
on mere conjecture or mere suspicion, as it is not
106720 September 15, 1994).
enough that there was an opportunity or a possibility
to exercise undue influence, or that it might have
If any of the above grounds for disallowance is
been exercised (Pascual v. De la Cruz, G.R. No. L-
proved, the will shall be set aside as void. Even if the
24819, May 30, 1969).
grounds for disallowance is that the testator was not
of sound mind or below 18 at the time of the
Allegations of fraud and undue influence cannot co–
execution of the will, the will shall be void and not
exist because they mutually oppose and exclude
merely voidable (1 RABUYA, supra at 820).
each other that their joining as grounds for opposing
probate shows absence of definite evidence against
NOTE: Article 834 of the Civil Code which provides
the validity of the will (Icasiano v. Icasiano, G.R. No.
that the recognition of an illegitimate child does not
L-18979, June 30, 1964).
lose its legal effect, even though the will wherein it
was made should be revoked - shall likewise apply
to a disallowed will. REVOCATION V. DISALLOWANCE
REVOCATION DISALLOWANCE
Violence – there is violence when in order to wrest
consent, serious or irresistible force is employed As to the Nature of the Act
upon the testator (CIVIL CODE, Art. 1335).
Voluntary act of the Given by judicial
Intimidation – when the testator is compelled by a testator. decree.
reasonable and well-grounded fear of an imminent
As to the Need for a Legal Cause
and grave evil upon his person or property, or upon
the person or property of his spouse, descendants With or without cause. Must always be for a
or ascendants, to execute the will (CIVIL CODE, Art. legal cause.
1335).

Mistake –pertains to “Mistakes of Execution” which As to Whether It Can Be Partial or Total

may either be:
1. A mistake as to identity or character of the May be partial or total. Always total except:
instrument which he signed; or when the ground of
2. A mistake as to the contents of the will itself fraud or influence for
(JURADO, Succession, supra at 158). example affects only
certain portions of the
Fraud – if by misrepresentation and deception the will.
testator is led into making a will different from that he
would have made but for the misrepresentation and As to When it Takes Place
deception (Id. at 157). Take place during the Disallowance is usually
lifetime of the testator. invoked after the
Undue Influence – when a person takes improper testator’s death.
advantage of his power over the will of another,
(DE LEON, Succession, supra at 232).
RATIFICATION REQUISITES FOR A VALID
1. Ratification is not possible INSTITUTION:
– With respect to a will which does not comply 1. The will must be extrinsically valid, meaning:
with the formalities prescribed by law (CIVIL a. The testator must be capacitated;
CODE, Art. 839 pars. 1-2; JURADO, b. The formalities must be observed;
Succession, supra at 158). This is because a c. There must be no vitiated consent;
void will cannot be ratified. d. The will must have been duly probated; and
e. The will must have been the personal act of
2. Ratification is possible the testator.
– With respect to a will which was executed
through violence, intimidation, undue influence, 2. The institution must be intrinsically valid,
fraud or mistake (CIVIL CODE, Art. 839 pars. 3- meaning:
6 (Id.). a. The legitime must not be impaired;
b. The heir must be certain or ascertainable;
and
c. There should be no preterition.
INSTITUTION OF HEIRS
(ARTS. 840-856) 3. The institution must be effective, meaning:
a. There must be no predeceased heir;
b. There must be no repudiation by the heir;
and
c. There must be no incapacity of the heir
INSTITUTION (3 PARAS, supra at 197).
An act by virtue of which a testator designates in his
will the person or persons who are to succeed him in LACK OF INSTITUTION DOES NOT
his property and transmissible rights and obligations
(CIVIL CODE, Art. 840).
INVALIDATE A WILL
A will is valid, even though:
NOTE: A child already conceived at the time of the 1. It does not contain an institution of an heir;
death of the decedent is capable of succeeding 2. The institution does not comprise the entire
provided it be born later under the conditions estate; or
prescribed in Article 41 (CIVIL CODE, Art. 1025, 3. The heir instituted does not accept the
par.2). inheritance or is incapacitated to succeed (CIVIL
CODE, Art. 841).
For civil purposes, the fetus is considered born if it is The testamentary dispositions made in accordance
alive at the time it is completely delivered from the with the law shall be complied with and the
mother’s womb. However, if the fetus had an intra- remainder of the estate shall pass to the legal heirs
uterine life of less than seven months, it is not (CIVIL CODE, Art. 841). In other words, there is
deemed born if it dies within twenty-four hours after mixed succession.
its complete delivery from the maternal womb (CIVIL
CODE, Art. 41). FREEDOM OF DISPOSITION (CIVIL
CODE, ART. 842):
FUNDAMENTAL BASIS OF THE LAW OF 1. If the testator has no compulsory heirs, his
TESTAMENTARY SUCCESSION freedom of disposition is absolute in character.
The doctrine that the will of the testator, freely The whole estate is disposable.
expressed in his last will and testament, is, as a
general rule, the supreme law which governs the NOTE: The testator must still respect the
succession (JURADO, Succession, supra at 159). restriction imposed by special laws (Arayata v.
Joya, G.R. No. 28067; March 10, 1928).
ORDER OF PREFERENCE: (ISRAI)
2. If the testator has compulsory heirs, his freedom
1. Institution of heir (CIVIL CODE, Art. 840); of disposition shall extend only to the disposable
2. Substitution of heir (CIVIL CODE, Art. 857); free portion of his estate, but not to the legal
3. Right of Representation (CIVIL CODE, Art. 970); portion or legitime (JURADO, Succession, supra
4. Right of Accretion (CIVIL CODE, Art. 1015); and at 162).
5. Intestacy (CIVIL CODE, Art. 960)
REASON: Under our system of compulsory
succession, there is always a portion of the
testator’s estate known as the legitime which is
reserved by operation of law for the benefit of certain
heirs who are therefore called compulsory heirs, and TEST TO DETERMINE THE VALIDITY OF
over which the testator as a general rule can have INSTITUTION
no testamentary control (Id. at p.161).
The proper test in order to determine the validity of
an institution of heir is the possibility of finally
RESTRICTIONS ON DISPOSITION: ascertaining the identity of the instituted heir either
1. The estate of the testator shall be liable for the by intrinsic or extrinsic evidence (JURADO, supra at
latter’s obligations; and 163).
2. The testator cannot dispose of or encumber the
legitime of the compulsory heirs (DE LEON, The test is specifically applicable to the following
Succession, supra at 235). cases:
1. If the name and surname of the instituted heir
FORMS OF INSTITUTION: has been omitted by the testator (CIVIL CODE,
The testator shall designate the heir by his name and Art. 843);
surname. However, this form is not mandatory. The 2. If there has been an error with respect to the
designation may be made in any other form, as long name, surname, or circumstances of the
as there will be no doubt as to the identity of the instituted heirs (CIVIL CODE, Art. 844);
heir/s instituted (CIVIL CODE, Art. 843). 3. If the name, surname, and circumstances of the
instituted heir are the same as those of other
Dispositions in favor of an unknown person (persona persons (CIVIL CODE, Art. 844); and
incierta) shall be void, unless by some event or 4. If an unknown or uncertain person has been
circumstances his identity becomes certain (CIVIL instituted. (CIVIL CODE, Art. 845).
CODE, Art. 845).
NOTE: If the doubt as to who is instituted cannot be
NOTE: A persona incierta is one who is not resolved, then it is the same as if the testator has not
determined or individualized, thus making it expressed his will (3 TOLENTINO, supra at 173).
impossible to know who is meant by the decedent (3
TOLENTINO, supra at 176). PRESUMPTIONS ON INSTITUTION OF
HEIRS: (EIS)
An “Unknown Person” means one who cannot be
1. Presumption of Equality
identified from the will; not one who is a stranger to
When heirs were instituted without designation
the testator (Id.).
of shares, they are deemed to inherit in equal
parts (CIVIL CODE, Art. 846).
The institution of an unknown person will still be void
even if by some future event he can be determined
NOTE: This applies only when all of the heirs are
when the determination of the heir is delegated by
of the same class or juridical condition. The
the testator to another. It is void under Art. 785 of the
proper interpretation is that: if the testator has no
Civil Code (3 TOLENTINO, supra at 177).
compulsory heirs, apply the provision literally;
however, if he has compulsory heirs, first satisfy
A disposition in favor of a definite class or group of
their legitime, then apply the rule with respect to
persons shall be valid (CIVIL CODE, Art. 845).
the disposable free portion (JURADO,
Succession, supra at 165-166).
SPECIAL KINDS OF CLASS
INSTITUTIONS Illustration: X stated in his will: “I give A, B, and
1. Poor in General (CIVIL CODE, Art. 1030) C as my heirs, my entire estate.” The net value
2. Relatives of the Testator (CIVIL CODE, Art. 959) of the estate is P120,000. How much is each
3. A Person and his Children (CIVIL CODE, Art. entitled?
849)
4. Brothers and Sisters of the Full and Half-Blood Answer: A, B, and C shall equally divide the
(CIVIL CODE, Art. 848) P120,000. Hence, each shall be entitled to
5. Institution of descendants and relatives of a P40,000 (CIVIL CODE, Art. 846).
legatee
2. Presumption of Individuality
NOTE: The rule of nearest excludes the farther will When the testator institutes some heirs
not apply here. Therefore, all the descendants and individually and others collectively, those
relatives will inherit per capita (Belen v. BPI, G.R. collectively designated shall be considered as
No. L-14474; October 31, 1960). individually instituted, unless it clearly appears
that the intention of the testator was otherwise
(CIVIL CODE, Art. 847).
 Illustration: Testator said in his will: “I hereby EXCEPTION: When it appears from the will that the
give my entire estate to A and B and the children testator would not have made the institution if he had
of C (D and E).” The net value of the estate is known the falsity of such cause (CIVIL CODE, Art.
P120,000. How much will each be entitled? 850).

Answer: A, B, D, and E shall be entitled to REQUISITES FOR THE ANNULMENT OF

P30,000 each (CIVIL CODE, Art. 847). INSTITUTION OF HEIRS: (SF2)
1. Cause of institution of the heirs must be Stated
3. Presumption of Simultaneity in the will;
When the testator calls to the succession a 2. Cause must be shown to be False; and
person and his children, they are all deemed to 3. It must appear from the Face of the will that the
have been instituted simultaneously and not
testator would not have made the institution had
successively (CIVIL CODE, Art. 849).
he known the falsity of the cause (Austria v.
Reyes, G.R. No. L-23079, February 27, 1970).
NOTE: “His children” refers not to the children
of the testator but to the children of the person
instituted as an heir (3 PARAS, supra at 210). INSTITUTION IN ALIQUOT PARTS:
1. Rule if the entire inheritance is not
Illustration: Testator said in his will: “I hereby covered:
give my entire estate to C and his children, D a. Testator has no intention to make heirs as
and E. The net value of the estate is P120,000. sole heirs– mixed succession (CIVIL CODE,
How much will each be entitled? Art. 851).

Answer: C, D, and E shall each get P40,000 Example:

(CIVIL CODE, Art. 849). A= 2/5; B=1/5; C= 1/5
The remainder of 1/5 shall pass to the legal
INSTITUTION OF BROTHERS AND heirs.
SISTERS
b. Testator intends to make the heirs as sole
In case some of full blood and others of half-blood:
heirs– each part shall be increased
1. Testate Succession proportionately (CIVIL CODE, Art. 852).
The inheritance shall be distributed equally,
unless a different intention appears (CIVIL It is, therefore, evident that the rule stated in
CODE, Art. 848). Art. 852 constitutes an EXCEPTION to the
2. Intestate Succession
rule stated in the second paragraph of Art.
Brothers and sisters of the full blood shall be
851. It enunciates the principle that when
entitled to a share double that of the brothers there is a conflict between the intention of
and sisters of the half-blood (CIVIL CODE, Art. the testator and his mathematical
1006). computation, the former shall prevail
(JURADO, Succession, supra at 171).
INSTITUTION BASED ON A FALSE
CAUSE (CIVIL CODE, ART. 850) 2. Rule if the parts together exceed the
GENERAL RULE: The statement of a false cause inheritance
for the institution of an heir shall be considered as Each part shall be reduced proportionately.
NOT written. (CIVIL CODE, Art. 853.)

Illustration: “I hereby institute my student X as my Formula of Share:

heir for having topped the bar examination of 2018.” (Aggregate Amount of the Estate x Amount of
If X was not the top-notcher, would he still inherit? Share) ÷ Total Amount of Share

Answer: Yes, because the false cause or reason is ILLUSTRATION OF INSTITUTION OF

considered as not written.
HEIRS UNDER ARTS. 852 AND 853
REASON FOR THE LAW: The real cause is the 1. Testator X stated in his will, “I institute A and B
testator’s liberality, the mention of the bar topping as my heir. A to ½ and B to ¼ of my estate. The
being merely incidental, for even if had X topped the net value of the estate of X is P120,000. How will
bar, the testator would not have been bound to the estate be distributed, assuming that A and B
reward him, were it not for the provision in the will. were intended to be the sole heirs of the whole
estate. (Article 852)
 First step: Compute the aggregate share of all Hence:
heirs (according to the will):
A = 60T - 12T = 48T
A =½ of 120T = 60T B = 30T - 6T = 24T
B = ¼ of 120T = 30T C = 60T - 12T = 48T
TOTAL 90T TOTAL 120T

Second step: Compute the remaining free PRETERITION

portion: Omission in the testator’s will of one, some, or all of
the compulsory heirs in the direct line, whether
Net estate = 120T living at the time of the execution of the will or born
Share (will) = (90T) after the death of the testator (CIVIL CODE, Art.
TOTAL 30T 854).
Third step: Distribute proportionately among the It is essential that the omission of the compulsory
heirs: heir must be complete and total in character so that
he receives nothing from the testator at all.
A= 60T x 30T = 20T Consequently, if the testator leaves any property to
90T the heir who is alleged to have been omitted by any
title whatsoever, there can be no preterition
B= 30T x 30T = 10T (JURADO, Succession, supra at 177).
90T
Requisites: (CTS)
Hence: 1. The heir omitted must be a Compulsory heir in
the direct line, such as:
A = 60T + 20T = 80T a. Legitimate children and descendants (LCD),
B = 30T +10T = 40T with respect to their legitimate parents and
TOTAL 120T ascendants (LPA);
b. LPA, with respect to their LCD;
2. Testator X stated in his will, “I will give A ½ of my c. Illegitimate children (IC);
estate, B ¼ and C ½. The net value of the estate d. Father and mother of IC; and
of X is P120,000. How will the estate be e. Adopted child (AC).
distributed? (Article 853)
2. The omission must be complete and Total in
First step: Compute the aggregate share of all character (that the omitted heir does not and has
heirs (according to the will): not received anything at all from the testator by
any title whatsoever); and
A =½ of 120T = 60T
B = ¼ of 120T = 30T 3. The compulsory heir omitted must Survive the
C = ½ of 120T = 60T testator (JURADO, Succession, supra at 174).
TOTAL 150T
Second step: Compute the excess: NOTE: The grandson born one year after the
decedent’s death has no capacity to succeed,
Net estate = 120T because, at the time of the latter’s death, the
Share (will) = (150T) grandson was not yet born, nor was he even
EXCESS (30T) conceived (CIVIL CODE, Arts. 40 and 41).
Third step: Deduct the excess proportionately The law considers as preterition the omission of
among the heirs: a compulsory heir in the direct line, whether
living at the time of the execution of the will or
A= 60T x 30T =(12T) born after the death of the testator or those born
150T after the execution of the will and before the
death of the testator so long as they are alive at
B= 30T x 30T =(6T) the time of the death of the testator (DE LEON,
150T Succession, supra at 251).
C= 60T x 30T =(12T) There is NO Total Omission when:
150T 1. A devise/legacy has been given to the heir by
the testator;
2. A donation inter vivos has been previously given preterition and when there is no preterition (3
to the heir by the testator; or PARAS, supra at 224).
3. Anything is left from the inheritance which the
heir may get by way of intestacy (DE LEON, PRETERITION V. DISINHERITANCE
Succession, supra at 248-249).
PRETERITION DISINHERITANCE
NOTE: The remedy of the affected heir in these
As to Voluntariness
circumstances is the completion of legitime
under Art. 906 of the Civil Code, in case the Ma be intentional but is Always voluntary.
value of the property received is less than the presumed to be
value of the legitime (JURADO, Succession, involuntary.
supra at 177).
As to Omission
Effects:
1. Preterition annuls the institution of heir; The law presumes that Done with legal cause
there has been merely or reason.
NOTE: Preterition does not annul the institution some mistake or
of heir if the omitted compulsory heir should die oversight.
before the testator. The institution shall be
effectual, without prejudice to the right of As to Nullity
representation (CIVIL CODE, Art. 854, par. 2).
Nullity of the institution Nullity is partial, i.e.,
2. The devises and legacies are valid insofar as
is total resulting in total only insofar as it may
they are not inofficious (CIVIL CODE, Art. 854,
intestacy, saving prejudice the heir
par. 1);
devises and legacies. disinherited.
3. Intestate succession ensues (Id; 3 PARAS,
supra at 221-222). As to Effect
Where a one–sentence will institutes the The omitted compulsory If disinheritance is valid,
petitioner as the sole, universal heir and preterits heir gets his share from the compulsory heir is
the parents of the testatrix, and it contains no the entire estate, i.e., merely restored to his
specific legacies or bequests, such universal not only his share of the legitime, and
institution of petitioner, by itself, is void (Nuguid legitime but also of the testamentary
v. Nuguid, G.R. No. L-23445, June 23, 1966). free portion not dispositions which are
disposed of by way of inofficious are reduced.
NOTE: Omission of the surviving spouse (SS) does devises and legacies.
not constitute preterition. SS is not a compulsory heir
in the direct line. Therefore, the only effect of her As to Heir Affected
omission is a partial annulment of the institution of
heirs to the extent that her legitime is prejudiced; in Compulsory heir in the Compulsory heir may
other words, SS is still entitled to her legitime (DE direct line is omitted. be disinherited though
LEON, Succession, supra at 250). not in the direct line.
(DE LEON, Succession, supra at 254-255).
Omission of the adopted child in the testator's will
constitutes preterition since he is by legal fiction Illustration: A, B and C are the legitimate children
considered a compulsory heir in the direct line. This of X. When X executed his will, he instituted as heir
is clear from the provisions of Arts. 979 and 984 to his entire estate A, B and his friend F. He also
which speak of the share of the adopted child in legal gave G a legacy of 30T. The value of the net estate
or intestate succession (JURADO, supra at 176). is 120T. (a) Is there preterition? (b) What is the effect
of preterition on the institution of heirs? (c) What
REASON: Adopted child has the same rights as that about the legacy given to G? (d) How will the estate
of a legitimate child (R.A. 8552, Sec. 18). be distributed?

NOTE: The share of the compulsory heir omitted in Answer:

a will must first be taken from the part of the estate 1. There is preterition because C was not
not disposed of by the will, if any; if that is not mentioned in the will, nor was he given anything.
sufficient, so much as may be necessary must be 2. The institution of F will be annulled.
taken proportionally from the shares of the other 3. The legacy given to G is effective because it can
heirs given to them by will (CIVIL CODE, Art. 855). be contained within the free portion. In this case,
This article can apply both to cases when there is the free portion is (½ of 120T) 60T. The legacy
 given to G in the amount of 30T can be Step 2: Reduction of the heirs’ shares.
contained therein.
4. The estate will be distributed as follows: Formula:
Voluntary share x Amount to be reduced
Heir/ Aggregate amount of voluntary share
Voluntary Amount
Devisee/ Legitime
Share Received A= (10,000 x 10,000)/ 70,000 = 1,428.57
Legatee
F= (60,000 x 10,000)/ 70,000 = 8, 571.43
A 20,000 10,000 30,000
Therefore:
B 20,000 10,000 30,000
Increase/ Amount
Heir Institution
C 20,000 10,000 30,000 Reduction Received

G 30,000 30,000 A 30,000 -1,428.57 28, 571.43

F Institution is annulled B 12,000 +8,000 20,000

Total 60,000 60,000 120,000 C +20,000 20,000

F 60,000 -8,571.43 51, 428.57

Illustration: Testator has three (3) legitimate
children, A, B, and C. In his will, he provided: “I
hereby give ¼ of my estate to A; 1/10 to B; and ½ of SURVIVAL OF OMITTED HEIR
my estate to my friend F. The net value of the estate It is also an essential condition that the compulsory
is P120T. (a) Is there preterition? (b) How should the heir who is omitted in the testator’s will should
estate be distributed? survive the testator (JURADO, Succession, supra at
180).
Answer:
1. There is no preterition because there is still a If the Omitted Compulsory Heir Dies Before the
portion of the estate from which the share of C Testator
may be taken from. Concurring views
2. The estate shall be distributed as follows: According to the second paragraph of Art. 854, the
institution shall be effectual, but without prejudice to
Under Art. 855: “the share of a child or descendant the right of representation when it properly takes
omitted in a will must first be taken from the part of place. Hence, when there is a surviving
the estate not disposed of by the will, if any; if that is representative of the deceased compulsory heir who
not sufficient, so much as may be necessary must has been omitted in testator’s will, such as a child,
be taken proportionally from the shares of the other the effect is that such child shall succeed to the
compulsory heirs,” hence: legitime which would have gone to the heir omitted
(JURADO, Succession, supra at 180).
Step 1: Determination of the amount to be
reduced. If a compulsory heir who has been preterited dies
before the testator, it is the same as if there had been
Voluntary Total per
Heir Legitime no preterition. However, the right to representation
Share person
should not be lost sight of. If the preterited heir has
A 20,000 10,000 30,000 legitimate children and descendants entitled to
represent him, and they have been also left out of
B 20,000 -- 20,000 the will, the institution shall be annulled just the
same, even if the preterited heir dies before the
C 20,000 -- 20,000 testator (3 TOLENTINO, supra at 190).
F 60,000 60,000
EFFECTS OF PREDECEASE OR
Total per 60,000 70,000 130,000 INCAPACITY
type of 1. Voluntary Heir: Transmits no right to his heirs.
share 2. Compulsory Heir: Transmits to his
representatives his right to the legitime but not
130,000 – 120,000 = 10,000 (Amount to be reduced) to the free portion (CIVIL CODE, Art. 856).
EFFECT OF REPUDIATION GENERAL LIMITATION
Whether voluntary or compulsory, the heir who If the heir for whom a substitute is appointed is a
repudiates his inheritance cannot transmit any right compulsory heir, the rule is that the substitution
to his own heirs (CIVIL CODE, Art. 856). cannot affect the legitime of such heir (JURADO,
Succession, supra at 189).
NOTE: The rule is absolute.
PURPOSES:
In case of predecease, incapacity or repudiation, the 1. To avoid intestate succession;
vacancy is filled up either by substitution, 2. To prevent the descent of the estate to those
representation, accretion, or intestate succession persons to whom the testator does not want to
(JURADO, Succession, supra at 187). succeed him in his property; and
3. To give the testator greater freedom to dispose
Illustration: Z has an estate amounting to of his property (3 PARAS, supra at 229).
P500,000. X and Y are legitimate children of Z, while
A is the child of X. Z then instituted X and Y as his If there is no statement of the case or cases to which
heirs. the substitution refers, the presumption is that it shall
1. If X predeceased Z, how will the estate be comprise all of the three (CIVIL CODE, Art. 859).
distributed?
2. If X repudiated his inheritance, how will the If the testator specifies the particular case when the
estate be distributed? substitution shall take place, it is clear that it cannot
3. In the same case as (1), what if A is an adopted take place for any other cause not specified by the
child? testator. When however, he does not specify any of
these causes, but orders the substitution in general
Answer: terms, all of the three causes are deemed included,
1. A would only be entitled to the amount of i.e., any of the three instances may be a cause for
P125,000 (or the amount of the legitime of X substitution (3 TOLENTINO, supra at 205).
from Z) by right of representation. Y on the other
hand shall receive the amount of P375,000 Illustration: X said in his will “I hereby institute A as
(P125,000 (Y’s legitime) and P250,000 (from the heir and B as substitute in case A predeceased me.
free portion)) (in accordance with Articles 856 A did not die, but was incapacitated, can B inherit?
and 972 of the CIVIL CODE).
2. Y would inherit the whole P500,000 from Z. X Answer: No, since it was expressly stated that the
having repudiated his share may not be substitution shall take place only in case A
represented (CIVIL CODE, Art.977). predeceased X.
3. A would not inherit from Z even by right of
representation. The relationship (by legal fiction) EFFECT OF SUBSTITUTION
between A and X does not extend to Z. Thus, Y GENERAL RULE: The substitute shall not only take
would inherit P500, 000 from Z. over the share that would have passed to the
instituted heir, but he shall be subject to the same
charges and conditions imposed upon such
instituted heir (CIVIL CODE, Art. 862).
SUBSTITUTION OF
HEIRS REASON: We presume that the testator intended
the substitute to stand on the same footing as the
(ARTS. 857-870) original heir (3 PARAS, supra at 238).

EXCEPTIONS: (EP)
1. When the testator has Expressly provided the
SUBSTITUTION contrary; and
It is the appointment of another heir so that he may 2. When the charges or conditions are Personally
enter into the inheritance in default of or subsequent applicable only to the heir instituted (JURADO,
to the heir originally instituted (CIVIL CODE, Art. Succession, supra at 193).
857).
SOME INSTANCES WHEN THE
There may also be substitution of legatees and SUBSTITUTION IS RENDERED
devisees (3 PARAS, supra at 228). INEFFECTIVE:
1. When the substitute predeceases the testator;
2. When the substitute is incapacitated;
3. When the substitute renounces the inheritance; Answer:
4. When the institution of heir is annulled (e.g., Formula:
preterition); Share of heir x Amount to be shared
5. When the institution or the substitution is Aggregate amount of institution
revoked by the testator; and
6. When a will is void or disallowed or revoked (3 A =½ of 600T = 300T
PARAS, supra at 233). B = ¼ of 600T = 150T
C = ¼ of 600T = 150T
KINDS OF SUBSTITUTION:
1. Simple or Common or Vulgar (CIVIL A= 300T x 150T = 100T
CODE, Art. 859, par. 1) 450T
That which takes place when the testator
designates one or more persons to substitute C= 150T x 150T = 50T
the heir/s instituted in case such heir/s should 450T
die before him, or should not wish to accept the
inheritance, or should be incapacitated to accept Instituted Share from Amount
Heir
the inheritance. Amount Substitution Received

2. Brief or Compendious (CIVIL CODE, Art. A 300T 100T 400T

860)
C 150T 50T 200T
Some commentators make a distinction
between brief and compendious, viz: Total 450T 150T 600T
a. Brief – there are 2 or more persons
designated by the testator to substitute for
only one heir. 4. Fideicommissary or Indirect
b. Compendious – one heir is designated to Substitution
take the place of two or more heirs. Sustitucion fideicomisoria; That which takes
place when the fiduciary or first heir
The majority of commentators, however, make instituted is entrusted with the obligation to
no such distinction, and certainly the law uses preserve and transmit to a second heir the
the terms interchangeably. whole or part of the inheritance provided
such substitution does not go beyond one
If one of the two is preterited, renounced or degree from the heir originally instituted, and
incapacitated, the inheritance accrues to the provided further, that the fiduciary or first
original heir and not to the substitute UNLESS heir and the second heir are living at the
the testator provides otherwise. Substitution will time of the death of the testator (CIVIL
take place only if all the original heirs are CODE, Arts. 863–865).
disqualified (BALANE, Succession, supra at
294).

Example: X makes the following provision in his

will: “I institute A and B to 1/3 of my estate and
nominate C as their substitute.” If A
predeceases B, the 1/3 portion, upon X’s death
goes to B; there is no substitution by C.
Substitution occurs only if both A and B are
disqualified.

3. Reciprocal (CIVIL CODE, Art. 861) Distinction from simple substitution

Sustitucion reciproca; When 2 or more In simple substitution only one inherits; in
persons are not only instituted as heirs, but are fideicommissary, both heirs inherit the property
also designated mutually as substitute for each or right to it simultaneously, although the
other. enjoyment and possession are successive (3
PARAS, supra at 239).
Illustration: X instituted A to ½ of his estate, B
to ¼ of his estate and C to the remaining ¼. X Requisites of Fideicommissary Substitution:
designated all of them as reciprocal substitutes (ESO)
of each other. B predeceased X. The valued of a. There must be a first heir (fiduciary)
the estate is 600T. Distribute. primarily called to the Enjoyment of the
estate.
 He is recognized as an instituted heir, and heir (CIVIL CODE, Ar. 867, par. 1). If the
not a mere administrator of the property. obligation is conditional, there is no
fideicommissary substitution (3 PARAS,
The first heir is indeed almost like a supra at 242).
usufructuary, with the right to enjoy the
property. Thus, like a usufructuary, he If a mere suggestion, advice, or request is
cannot alienate the property. But unlike a made instead of an obligation, there is no
usufructuary, he is not required to furnish a fideicommissary substitution. In such case,
bond. Also, unlike a usufructuary, he is there will be a simple institution of the first
entitled to a refund of useful improvements heir, and the second heir gets nothing (3
(3 PARAS, supra at 242) PARAS, supra at 242).

Pending the transmission or delivery, he Without the obligation clearly imposing upon
(fiduciary) possesses the beneficial the first heir the preservation of the property
ownership of the property, although the and its transmission to the second heir,
naked ownership is vested in the there is no fideicommissary substitution
fideicommissary (JURADO, Succession, (Rabadilla v. CA, G.R. No. 113725, June 29,
supra at 201). 2000).

Unless the testator provides otherwise, the The 1st and 2nd heir must be only one degree
following are the deductions allowed: apart (CIVIL CODE, Art. 863)
i. Legitimate expenses;
ii. Legitimate credits; and By providing that the substitution shall not
iii. Legitimate improvements (DE LEON, go beyond one degree "from the heir
Succession, supra at 279). originally instituted”, the present Code has
obviously followed the interpretation of the
b. There must be a Second heir word “degree” as generation. The Code thus
(fideicommissary) to whom the property is clearly indicates that the second heir must
transmitted by the first heir. be related to and be one generation from the
first heir (Ramirez v. Vda. De Ramirez, G.R.
He is a sort of naked owner. Upon No. L-27952, February, 15, 1982).
transmission to him of the property, full
ownership is consolidated in him (3 PARAS, Both the fiduciary and fideicommissary must
supra at 244). be living (or at least conceived) at the time
of the death of the testator (CIVIL CODE,
The second heir inherits not from the first Art. 863).
heir but from the testator (Perez v.
Garchitorena, G.R. No. L-31703, February Limitations of Fideicommissary Substitution:
13, 1930). As such, he shall acquire a right (LOBE)
to the succession from the time of the 1. Fiduciary and fideicommissary must be Living at
testator’s death, even though he (second the time of the death of the testator;
heir) should die before the fiduciary. His a. Living – this requisite is defined in Art. 40-41
right shall pass to his heirs (CIVIL CODE, of the Civil Code
Art. 866). b. Qualified – this requisite is governed by Art.
1024-1034 of the Civil Code
Said second heir must be capacitated to
succeed not the first heir but the testator (3 2. Substitution must NOT go beyond One degree
PARAS, supra at 244). from the heir originally instituted;

c. An Obligation clearly and expressly 2 Views as to the meaning of “one degree”

imposed by the testator (fideicomitente) a. Traditional view (degree of relationship)
upon such first heir to preserve the estate – When the law says that the substitution
and to transmit it to the second heir. must not go beyond one degree from the
heir originally instituted, what is meant is
The obligation to preserve and transmit that the fideicommissary substitute must not
must be given clearly and expressly, either be beyond one degree of relationship from
by giving the substitution this name of the fiduciary heir. Consequently, only the
“fideicommissary substitution,” or by child or parent of the latter can be appointed
imposing upon the first heir the absolute as fideicommissary heir.
obligation to deliver the property to a second
 b. Modern view (designation or 1. Who has a right over the house and lot?
transmission/ llamamiento) – When the 2. What if H and I claim their legitime alleging that
law says that the substitution must not go the house and lot belongs to their father’s
beyond one degree from the heir originally estate?
instituted, what is meant is that the
substitution must not extend beyond one Answer:
degree of designation from the heir originally 1. J and K. Upon the death of the testator A, G
instituted. Consequently, any person, acquired a right to succession even though he
whether natural or juridical, or any entity not predeceased F, the fiduciary. The right of the
disqualified by law to inherit from the testator second heirs shall pass to his heirs (CIVIL
can be appointed as fideicomissary heir CODE, Art. 866). J and K being the heirs of G
(JURADO, Succession, supra at 197-198). are entitled to the house and lot.
2. H and I cannot claim their right to legitime over
By providing that the substitution shall not the house and lot because they do not form part
go beyond one degree "from the heir of the estate of F (their father), the latter being a
originally instituted”, the present Code has fiduciary who merely has usufructuary rights
obviously followed the interpretation of the over the subject property. It is G
word “degree” as generation. The Code thus (fideicommissary) who holds naked ownership
clearly indicates that the second heir must of the house and lot.
be related to and be one generation from the
first heir (Ramirez v. Vda. De Ramirez, G.R. Illustration: T instituted his friend A as fiduciary and
No. L-27952, February, 15, 1982). B as fideicommissary. A has 2 sons, B and C. B also
One degree means one generation (3 has 2 sons, D and E. B died in 2015, while T died in
PARAS, supra at 244). 2020.
1. Is there a valid fideicommissary substitution?
A fideicommissary substitution is void if the 2. Will A inherit from T?
first heir is not related in the 1st degree to the
second heir (Ramirez v. Vda. De Ramirez, Answer:
supra). 1. No. The law requires that both the fiduciary and
fideicommissary must be living at the time of the
3. Substitution must not Burden the legitime of testator’s death (CIVIL CODE, Art. 863). Here,
compulsory heirs; and B, the fideicommissary, predeceased the
testator.
The legitime is expressly reserved for the 2. Yes. The nullity of the fideicommissary
compulsory heirs (CIVIL CODE, Art. 886). substitution does not prejudice the validity of the
institution of the heirs first designated; the
4. Substitution must be made Expressly (JURADO, fideicommissary clause shall simply be
Succession, supra at 197): considered as not written (CIVIL CODE, Art.
a. By giving it the name of a fideicommissary 868).
substitution; or
b. By imposing upon the fiduciary the absolute
obligation to preserve and to deliver the
property to the fideicommissary.

Time When Inheritance Shall be Transmitted to

the Fideicomissary
1. Time chosen by testator; or
2. If testator does not fix a period, discretion of
fiduciary; or
3. In case of doubt, after the death of fiduciary (Id.
at 202).

Illustration: A, who died in 2006, devised a house

and lot to his friend, F, as fiduciary heir and to G, the
eldest son of F, as fideicommissary substitute or
second heir (F has 3 sons – G, H and I). In 2013, G When the substitution is conditional, the
died; he was survived by his two legitimate children, fideicommissary has only a mere hope or
J and K. In 2018, F died intestate survived by his two expectancy pending the fulfillment of the condition,
remaining sons, H and I, and his two grandchildren but once the condition is fulfilled, the obligation to
J and K.
transmit or deliver the property arises (JURADO, be limited to twenty years but it shall have to be
Succession, supra at 202). complemented by another mandate of the
testator — the obligation of the first heir to
Fideicomiso preserve the property for the benefit of the
There is really one heir. Between the testator and the second heir. Consequently, there can be no
heir was a middle man or agent whose function was conflict between the provision of this article and
in many cases, to intervene only in order that an that of No. 2 of Art. 867 (JURADO, Succession,
incapacitated person (the heir) could succeed from supra at 208).
the testator (3 PARAS, supra at 249).
3. Those which leave to a person the whole or part
VOID SUBSTITUTIONS: (EPIC) of the hereditary property in order that he may
1. Fideicommissary substitutions which are not apply or Invest the same according to secret
made in an Express manner. instructions communicated to him by the testator
(also called “tacit fideicommissum”); and
2. Provisions which contain a Perpetual prohibition
to alienate, and even a temporary one beyond 4. Those which impose upon the heir the Charge
the limit fixed in Art. 863. of paying to various persons successively,
beyond the limit fixed in Art. 863, a certain
The prohibition to alienate is good only for 20 income or pension (CIVIL CODE, Art. 867).
years, beyond that is void (CIVIL CODE, Art.
870). Illustration: X instituted F to the free portion of
his estate. X also provided that the land shall be
REASONS: inalienable for a period of 20 years after his
a. To give more impetus to the socialization of death. X died in 2008. 10 years after F died
the ownership of property; and leaving the property to his son, A. After 2 years,
b. To prevent the perpetuation of large A died, leaving the property to his son B. May B
holdings, which give rise to agrarian troubles alienate the property?
(JURADO, Succession, supra at 208).
Answer: B may alienate the property. While it is
NOTE: If the period fixed is the lifetime of the true that only 12 years have passed since the
heir, e.g., “as long as he lives,” there would really death of X (the prohibition to alienate is 20
be 2 period limitations, whichever comes first: years), B can now alienate the property because
(1) 20 years, if the heir lives for more than that he no longer falls within the “one-degree
period, or (2) the period before the expiration of limitation” (Art. 867, par.2 in relation to Art. 863).
20 years, if he dies earlier (DE LEON, B is already two degrees away from the heir (F)
Succession, supra at 285). originally instituted and is thus not covered by
the same charges and conditions of the
Illustration: A was given his legitime in the form fideicommissary substitution.
of a house. In the will, A was prohibited to sell
the house within a period of 20 years. Can A sell NOTE: The nullity of the fideicommissary
the house even before the expiration of said substitution does not prejudice the validity of the
period? institution of the heirs first designated; the
fideicommissary clause shall simply be
Answer: Yes. This prohibition, even if less than considered as not written (CIVIL CODE, Art.
20 years, cannot be applied to the legitime 868).
(CIVIL CODE, Art. 904 par. 2; 3 PARAS, supra
at 260). DISPOSITION OF USUFRUCT TO
VARIOUS PERSONS
NOTE: Article 870 does not apply if there is a A provision whereby the testator leaves to a person
fideicommissary substitution, for this must be the whole or part of the inheritance, and to another
governed by Art. 867(2) (Id.). the usufruct, shall be valid. If he gives the usufruct to
Article 870 is limited to the free portion, for the various persons, not simultaneously, but
legitime, as a general rule, cannot be burdened successively, the provisions of Art. 863 shall apply
by the testator with any charge, condition or (CIVIL CODE, Art. 869).
substitution (DE LEON, Succession, supra at
284). Illustration: X said in his will: “I give my property in
Manila to my friend A, but F will have the usufruct for
If it so happens that in addition to the prohibition 10 years; F’s son B for two (2) years; and B’s son C
to alienate there is a fideicomissary substitution for two (2) years. Is this valid?
expressly made, such prohibition shall not only
Answer: The usufruct is valid only from F to B. When
it comes to C, the usufruct is no longer valid because CONDITIONAL, MODAL
C is already two degrees away from F. Therefore,
after B’s death, the ownership of the property will TESTAMENTARY
now be consolidated to A. C will no longer enjoy the
usufruct.
DISPOSITIONS AND
TESTAMENTARY
RIGHTS OF FIDUCIARY: (APD) DISPOSITIONS WITH A
1. To Acquire the rights of a usufructuary until
delivery to the fideicommissary; TERM
2. To Possess beneficial ownership pending the
delivery while naked ownership is vested in the
(ARTS. 871-885)
fideicommissary (JURADO, Succession, supra
at 201); and
3. To Deduct the amount of legitimate expenses, FREEDOM OF DISPOSITION
credits, and improvements, save in the case
where the testator has provided otherwise Art. 871 is a restatement of the testator’s freedom of
(CIVIL CODE, Art. 865, par. 2). disposition.

“Legitimate expenses” as used in the second NOTE: Although the article speaks only of institution
paragraph of Art. 865, refer to those which were of heirs, there is no reason why the provision cannot
made for the acquisition and preservation of the be applied to any kind of testamentary disposition.
property or inheritance.
The institution of an heir may be:
“Improvements,” on the other hand, refer to 1. Pure or simple;
necessary as well as to useful expenses. 2. Conditional;
3. For a term; or
Other expenses, such as those for pure luxury 4. For a certain purpose or cause (modal)
or mere pleasure, are excluded.
NOTE: Conditions, terms, and modes are not
NOTE: The amount of the deductions to which presumed; they must be clearly expressed in the will.
the fiduciary is entitled, however, is not the Otherwise, they shall be considered pure (3 PARAS,
actual amount of the expenses, but the increase supra at 265).
in value of the property or inheritance.
Consequently, the property is really preserved LIMITATIONS: (UIM)
(JURADO, Succession, supra at 202). 1. Principle of Untouchability of the
Legitime
NOTE: More can be deducted if so provided by the GENERAL RULE: The testator cannot impose
testator (Id.). Deterioration caused by the fiduciary’s any charge, burden, encumbrance, condition, or
malice or negligence must of course be shouldered substitution whatsoever upon the legitime of the
by him. compulsory heirs. Should he do so, the same
shall be considered as not imposed (CIVIL
If the property is destroyed by a fortuitous event, the CODE, Art. 872).
obligation is generally extinguished (3 PARAS,
supra at 253). EXCEPTION:
The testator can validly impose a prohibition
Obligations of Fiduciary: (PDI) against the partition of the legitime for a period
1. To Preserve the inheritance; not exceeding twenty (20) years (CIVIL CODE,
2. To Deliver the inheritance; Art. 1083, par. 1).
3. To make an Inventory of the inheritance (DE
LEON, Succession, supra at 278-279). There is only one instance under our law where
the testator is allowed to impose a charge upon
the legitime of compulsory heirs and that is when
the testator declares that the hereditary estate
shall not be partitioned for a period which shall
not exceed twenty years. According to Art. 1083
of the Code, this power of the testator to prohibit
the division of the estate applies even to the
legitime of compulsory heirs. (JURADO,
Succession supra at 210).
2. Impossible Conditions b. Relative Prohibition
Impossible conditions and those contrary to law Relative prohibitions on the following are
or good customs are considered as not imposed considered valid unless it becomes so
(CIVIL CODE, Art. 873). It is presumed that the onerous or burdensome, or the prohibition
condition is due to a mistake or oversight, or really amounts to an absolute one:
merely a whim or caprice of the testator. Such i. To contract first marriage; or
impossibility is to be determined at the time ii. To remarry.
when the condition is to be fulfilled (JURADO,
Succession, supra at 211). If the prohibition is relative with respect to
persons, time or place, the rule does NOT
Here, the condition is considered void and apply; hence, the prohibition is valid. The
unwritten but the institution and testamentary following relative conditions regarding
disposition will be considered as valid (3 marriage have been considered as valid and
PARAS, supra at 266). binding:
i. Generic condition to contract marriage;
A condition is considered impossible if it is not ii. Specific condition to contract marriage
possible of realization because it is contrary to with a determinate person; and
either physical, juridical or moral laws iii. Specific condition not to contract
(JURADO, Succession, supra at 211). marriage with a determinate person.

Article 1183 provides for the annulment of the Nature of condition when validly
obligation which depends upon impossible imposed
conditions. Article 873 only makes the condition The absolute condition not to contract
void, but the disposition remains valid (Id.). marriage when validly imposed is
resolutory in character.
A condition prohibiting the contest of the will is
void (3 TOLENTINO, supra at 229). Relative Conditions Regarding Marriage
It must be noted that the general rule stated
3. Prohibitions on Marriage in Art. 874 is applicable only when the
Rules on Prohibitions on Marriage: prohibition to contract a first or subsequent
a. Absolute Prohibition marriage is absolute in character.
i. To contract first marriage – void
(contrary to good morals and public Consequently, if the prohibition is relative
policy) (CIVIL CODE, Art. 874). with respect to persons, time or place, the
rule does not apply; in other words, the
NOTE: There is no exception here (3 prohibition or condition is valid (Id. at
PARAS, supra at 268). 219-221).

ii. To remarry c. A stopping of a usufruct, allowance, or

GENERAL RULE: Absolute personal prestation the moment the heir,
prohibitions to marry as a condition to be legatee, or devisee marries or remarries is
instituted as an heir are void (CIVIL justified since the law allows their giving for
CODE, Art. 874, par. 1). the time during which the person remains
unmarried or in widowhood (CIVIL CODE,
EXCEPTIONS: Art. 874).
(1) When imposed on the widow or
widower by the deceased person; or d. Disposicion Captatoria
(2) When imposed on the widow or Any disposition made upon the condition
widower by the ascendants or that the heir shall make some provisions in
descendants of the deceased spouse his will in favor of the testator or of any other
(CIVIL CODE, Art. 874, par. 1). person shall be void (CIVIL CODE, Art. 875,
par. 2).
An absolute condition not to contract
marriage when validly imposed is REASON: It impairs freedom of
resolutory in character. Even so, testamentary disposition (JURADO,
however, the legitime of the surviving Succession, supra at 221).
spouse cannot be impaired (BALANE,
Succession, supra at 322). REASONS FOR THE PROHIBITION:
i. The captatoria converts testamentary
grants into contractual transactions;
 ii. It deprives the heir testamentary GENERAL RULE: It may be fulfilled at any
freedom; time (before or after the testator’s death),
iii. It gives the testator the power to dispose unless testator provides otherwise.
mortis causa not only of his property, but
also that of his heir’s (BALANE, Qualifications:
Succession, supra at 322). If already fulfilled at the time of execution of
will:
NOTE: In Art. 875 (disposicion captatoria), i. If testator is unaware of the fact of
the testamentary disposition itself is void, fulfillment – it is deemed fulfilled
while in Arts. 873 and 874 the condition is ii. If testator is aware thereof-
void but the testamentary disposition is valid 1.) if can no longer be fulfilled again –
because testamentary succession is an act deemed fulfilled
of liberality and not a contractual agreement 2.) if it can be fulfilled again – must be
(JURADO, Succession, supra at 221). fulfilled against

e. Conditions imposed by the testator upon the c. Mixed – fulfillment depends jointly upon the
heirs shall be governed by the rules will of the heir, devisee, or legatee and upon
established for conditional obligations in all chance and/or will of a third person.
matters not provided for by the law on
succession (CIVIL CODE, Art. 884). 2. As to the effects:
a. Suspensive or Ex Die - a condition upon
CONDITION the fulfillment of which successional rights
Any future and uncertain fact or past event unknown are acquired.
to the parties, upon which the performance of an
obligation depends (CIVIL CODE, Art. 1179). The heir should be living and qualified to
succeed both at the time of testator’s death
KINDS OF CONDITION: and at the time of the happening of the event
(CIVIL CODE, Art. 1034 par. 3)
1. As to the cause upon which the
fulfillment depends: Pending its fulfillment, the estate shall be
a. Potestative – fulfillment depends placed under administration until the
exclusively upon the will of the heir, devisee, condition is fulfilled, or it becomes certain
or legatee, and must be performed by him that it cannot be fulfilled (CIVIL CODE, Art.
personally. It may either be: 880, par. 1).
i. Positive – when it consists of the doing
or giving of something. b. Resolutory or In Diem - a condition upon
ii. Negative – when it consists of not doing the fulfillment of which rights already
or giving anything. acquired are extinguished.
If the suspensive condition is not fulfilled or
GENERAL RULE: It must be fulfilled as if the resolutory condition is fulfilled, as the
soon as the heir learns of the testator’s case may be, the estate shall pass to the
death. legal heirs (JURADO, Succession, supra at
227).
EXCEPTIONS:
i. If the condition was already complied TERM
with at the time the heir learns of the
testator’s death; and It is the day or time when a testamentary disposition
ii. Constructive compliance – the condition either becomes demandable or terminates (CIVIL
is deemed fulfilled (CIVIL CODE, Art. CODE, Art. 1193).
883 par. 2)
KINDS OF TERM:
Heir must give security to guarantee 1. Suspensive
(caucion muciana) the return of the value of Rights are suspended until the arrival of the date
property, fruits, and interest, in case of or time designated by the testator.
contravention (BALANE, Succession, supra
at 324). The legal heir shall be considered as called to
the succession until the arrival of the period. But
b. Casual – fulfillment depends exclusively he shall not enter into possession of property
upon chance and/or upon the will of a third until after having given sufficient security, with
person. the intervention of the instituted heir. In the
 absence of a bond, said property shall be under Other instances where caucion muciana is
administration (CIVIL CODE, Art. 885, par. 2). required:
a. Art. 885 par. 2, Civil Code; and
NOTE: The words “or term” in line 2, and “or until b. Art. 882, Civil Code
the arrival of the term” in lines 4 and 5 at the end
of 1st par. of Art. 880 must be eliminated as it NOTE: This must not be confused with caucion
conflicts with Art. 885. In the protoype, Art. 805 juratoria, a bond required in usufruct.
(Now Art. 880) was limited to suspensive
conditions only since periods were governed by 2. If the Condition is Casual or Mixed
Art. 885. However, some unknown person It shall be sufficient if it happens or be fulfilled at
inserted “or term” in Art. 880 which created a any time before or after the death of the testator,
contradiction (JURADO, Succession, supra at UNLESS he has provided otherwise (CIVIL
231). CODE, Art. 877, par. 1).

If the heir, devisee or legatee should have died Two Secondary Rules
after the death of the testator, but before the a. If the condition had already been fulfilled at
expiration of the term, his right shall be the time of the execution of the will and the
transmitted to his own heirs (CIVIL CODE, Art. testator was unaware thereof, it shall be
878). deemed to have been complied with.
b. If the condition has already been fulfilled at
2. Resolutory Term the time of the execution of the will and the
Rights are immediately demandable but subject testator had knowledge thereof, the
to extinguishment upon the arrival of the date or condition shall, as a rule, still have to be
time designated by the testator (CIVIL CODE, complied with, unless it is of such a nature
Art. 1193). that it can no longer exist or be complied
with again (JURADO, Succession, supra at
TIME OF FULFILLMENT 223-224).
1. If the Condition is Purely Potestative
a. Positive Potestative Condition TERM V. CONDITION
The heir must fulfill it as soon as he learns CONDITION TERM
of the testator’s death, unless the condition
is already complied with and cannot be As to Uncertainty of an Event
fulfilled again (CIVIL CODE, Art. 876).
An uncertain event Sure to happen or to
which may or may not arrive, even if the exact
b. Negative Potestative Condition happen. date of such happening
The right of the heir, devisee or legatee does or arrival may be
not have to be held in suspense. uncertain.
He acquires his right as a matter of course
without any limitation other than that of not As to the Acquisition of the Right
doing or not giving something (CIVIL CODE,
Art. 879). The acquisition of the The right is already
right depends upon the transmitted to the heir
Caucion Muciana happening of the upon the death of the
The bond or security referred to in Art. 879 is condition, such that if testator; the term
called a caucion muciana (6 Manresa, 6th ed., p. the condition does not merely serves to
201). The bond or security should be given in happen, the heir does determine the
favor of those who would get the property IF the not succeed. demandability of such
condition be not complied with (like the intestate right already acquired.
heirs of the substitute, etc.). The favored (3 TOLENTINO, supra at 236).
persons are naturally the ones who can demand
the constitution of the security (6 Sanchez MODAL INSTITUTION (INSTITUCION
Roman, p. 616).
SUB MODO)
It may be demanded in favor of those to whom Attachment by the testator to an institution of heir, or
the property would pass if not complied (3 to a devise or legacy, of a statement of the:
TOLENTINO, supra at 239). 1. Object of the institution;
1. Application of the property left by testator; or
2. Charge imposed by him (JURADO, Succession,
supra at 228).
That which has been left in this manner may be the free portion and the legitime. The distribution
claimed at once provided that the instituted heir or may be by law, or by the testator’s will or by both (3
his heirs give security for compliance with the wishes PARAS, supra at 296-297).
of the testator and for the return of anything he or
they may receive, together with its fruits and PURPOSE OF LEGITIME
interests, if he or they should disregard this To protect the compulsory heirs for whom the
obligation (CIVIL CODE, Art. 882, par. 2). testator is presumed to have a parental, filial or
conjugal obligation to reserve portions of his estate
Illustration: X makes a legacy of P1,000,000 to Y for the benefit of such heirs from his anger or neglect
who was instructed to build a house and to deliver (JURADO, Succession, supra at 233).
the same to Z. Is there a modal institution?
The cause of action to enforce a legitime accrues
Answer: Yes, there is a modal institution. There is a upon the death of the donor-decedent since it is only
direction to build a house. The answer would be then that the net estate may be ascertained and on
different however if Y was instructed to use the which basis, the legitime may be determined
money to buy a particular thing as the statement (Imperial v. CA, G.R. No. 112483, October 8, 1999).
turns into a condition.

NOTE: In case of doubt, the institution should be

PRINCIPAL SYSTEMS OF
considered modal and not conditional; and where DISTRIBUTION OF HEREDITARY
there is doubt whether a statement is a mode or it is PROPERTY
a mere suggestion, observation, or expression of 1. System of Absolute Freedom of
certain desires by the testator, it should be Disposition
understood in the latter sense (DE LEON, The testator may freely dispose of his property
Succession, supra at 308). without any limitation imposed by law;
A mode obligates but does not suspend, while a 2. System of Total Revocation
condition suspends but does not obligate (JURADO, The testator cannot freely dispose of any portion
supra at 228). of his estate as long as there are compulsory
heirs for whom the law reserves his estate. He
DOCTRINE OF CONSTRUCTIVE has free disposition only when he has no
FULFILLMENT compulsory heirs; and
When without the fault of the heir, an institucion sub
modo cannot take effect in the exact manner stated 3. System of Partial Reservation
by the testator; it shall be complied with in a manner This is the system of legitime. A certain portion
most analogous to and in conformity with his wishes of the estate is reserved by law for compulsory
(CIVIL CODE, Art. 883, par. 1). heirs and the rest is the free portion over which
the testator has absolute freedom of disposition
If the condition is casual, the doctrine is not (DE LEON, Succession, supra at 317).
applicable since the fulfillment of the event which
constitutes the condition is independent of the will of KINDS OF LEGITIME:
the heir, devisee/legatee. If the condition is 1. Fixed
potestative or mixed, the doctrine is applicable The aliquot part of the testator’s estate to which
(JURADO, Succession, supra at 229). a certain class of compulsory heirs is entitled by
operation of law is always the same whether
they survive alone or with other classes of
compulsory heirs.
LEGITIME
(ARTS. 886-914) 2. Variable
The aliquot part changes depending upon
whether they survive alone or with other classes
of compulsory heirs (JURADO, Succession,
LEGITIME supra at 234).
That part of the testator’s property which he cannot
dispose of because the law has reserved it for COMPULSORY HEIRS (CH)
certain heirs who are, therefore, called compulsory Those heirs for whom the law has reserved that part
heirs (CIVIL CODE, Art. 886). of the testator’s estate known as legitime. As such,
testator cannot deprive them of their legitime except
The Civil Code adheres to the System of Partial by disinheritance properly effected (JURADO,
Reservation wherein the inheritance is divided into Succession, supra at 234-235).
The birth of a compulsory heir gives a vested right to COMPULSORY HEIRS
the heir to acquire the inheritance which is inherent 1. If Testator is a Legitimate Person
from his legitimate filiation (Rocha v. Tuason, G.R.
a. Legitimate Children and Descendants
No. 14254, August 5, 1919).
(LCD);
b. In default of the foregoing, Legitimate
NOTE: The fact of being a compulsory heir imposes Parents and Ascendants (LPA);
no obligation to accept or receive the legitime. The c. Surviving Spouse (SS);
law on legitime is a restriction, not on the freedom of d. Illegitimate Children and Descendants (ICD)
the heir to accept or repudiate the inheritance, but
on the freedom of the testator to dispose of his NOTE: (c) and (d) are NOT excluded by (a) &
property (3 TOLENTINO, supra at 252). They are (b) neither do they exclude one another
called compulsory, only because the testator cannot (JURADO, Succession, supra at 234).
disregard them (3 PARAS, supra at 301).
2. If Testator is an Illegitimate Person
KINDS OF COMPULSORY HEIRS: a. Legitimate Children and Descendants
1. Primary (LCD);
Those who are always entitled to their legitime b. Illegitimate Children and Descendants
regardless of the class of compulsory heirs with (ICD);
which they may concur (e.g., LCD). c. In default of the foregoing, Illegitimate
Parents (IP) only;
2. Secondary d. Surviving Spouse (SS) (CIVIL CODE, Art.
Those who may be excluded by other CH and 887).
succeed only in the absence of the primary CH
(e.g., LPA or IP). SUMMARY OF GENERAL RULES
3. Concurring 1. Direct descending line
Those who succeed together with the primary or a. Rule of preference between lines
secondary CH (e.g., ICD and SS). b. Rule of proximity
c. Right of representation ad infinitum in case
NOTE: For illegitimate children to be compulsory of predecease, incapacity, or disinheritance
heirs, they must be recognized (3 PARAS, supra at (If testator is a legitimate person: LCD only
301). Mere proof of filiation is not enough, what is can represent; If testator is an illegitimate
important is recognition of that filiation (Noble v. person: both LCD and ICD can represent)
Noble, G.R. No. 17742, December 17, 1966). d. If all the LCD repudiate their legitime, the
next generation of LCD succeeds in their
own right.
2. Direct ascending line
a. Rule of division by lines
b. Rule of equal division
3. Non–impairment of legitime
 TABLE OF LEGITIMES

Legends:
LCD = Legitimate Children and Descendants
ICD = Illegitimate Children and Descendants
SS = Surviving Spouse
LPA = Legitimate Parents or Ascendants
IP = Illegitimate Parents
AC = Adopted Child
FP/RFP = Free Portion/Remaining Free Portion

ILLUSTRATION
SURVIVOR LEGITIME NOTES Assume that X’s estate =
P20 million
1. Divide by the # of LCD, whether they survive a. 4 legitimate children –
1/2
alone or with concurring CH. 2.5 million each
LCD (CIVIL CODE,
2. The remaining 1/2 shall be at the free disposal b. FP – 10 million
Art. 888).
of the testator.
1/2; 1. The legitime of the SS shall be taken only from a. Legitimate daughter –
1/4 the free portion (CIVIL CODE, Art. 892). 10 million
1 LCD;
(CIVIL CODE, 2. In case of legal separation, the surviving spouse b. Wife – 5 million
SS
Art. 892, par. may inherit if it was the deceased who had given c. RFP – 5 million
1). cause for the same (CIVIL CODE, Art. 892).
1. Divide 1/2 of the estate by the number of LCD a. 2 legitimate daughters –
1/2; 2. If there are two or more LCD, the legitime of SS 5 million each
Same as that is the same as that of each LCD and it shall be b. Husband – 5 million
2 or more
of each LCD taken from the free portion (CIVIL CODE, Art. c. RFP – 5 million
LCD;
(CIVIL CODE, 892).
SS
Art. 892, par. 3. After deducting the legitime of the SS, the
2). remaining shall be at the free disposal of the
testator.
1. The legitime of the ICD shall be taken from the a. Legitimate son – 10
1/2; free portion (CIVIL CODE, Art. 888). million
1/2 of 1 LCD 2. In case of several IC: b. 5 illegitimate children –
LCD;
(CIVIL CODE, a. If free portion is sufficient, each IC gets 1/2 of 2 million each
ICD
Art. 895, share of 1LCD.
par.1). b. If free portion is insufficient, divide it among
the ICD equally.
1. If there are 2 or more LCD, the legitime of the SS a. 1 legitimate daughter –
is the same as that of each LCD and it shall be 10 million
taken from the free portion (CIVIL CODE, Art. b. Spouse – 5 million
892). c. 4 illegitimate children –
1/2; 2. The legitime of the ICD shall be taken from the 1.25 million each
1/4; free portion provided that the total legitime of
LCD;
1/2 of 1 such ICD shall not exceed the free portion and
SS;
LC(CIVIL that the legitime of the SS must first be fully
ICD
CODE, Art. satisfied (CIVIL CODE, Art. 895, par. 3).
895, Par. 1). 3. In case of several ICD:
a. If free portion is sufficient, each IC gets 1/2 of
1LC.
b. If free portion is insufficient, divide it among
the ICD equally.
1. This rule applies whether they survive alone or If there is no LCD,
1/2
with other classes of CH. a. Legitimate father – 10
LPA (CIVIL CODE,
2. They inherit in default of LCD of testator, million
Art. 889).
otherwise they are excluded.
 ILLUSTRATION
SURVIVOR LEGITIME NOTES Assume that X’s estate =
P20 million
If there is LCD,
a. Legitimate father – none
b. Legitimate son – 10
million
1. The 1/4 to which ICD is entitled is taken from the a. Legitimate mother – 10
1/2; free portion (CIVIL CODE, Art. 896). million
LPA; 1/4 2. The 1/4 shall be divided in equal shares among b. 8 Illegitimate children –
ICD (CIVIL CODE, several ICD. 625,000 each
Art. 896). 3. The remaining 1/4 shall be at the free disposal c. RFP – 5 million
of the testator.
1/2; 1. The legitime of the SS shall be taken from the a. Legitimate mother – 10
LPA; 1/4 free portion. million
SS (CIVIL CODE, 2. The remaining 1/4 shall be at the free disposal b. Spouse – 5 million
Art. 893). of the testator. c. RFP – 5 million
1. The legitime of the SS and ICD shall be taken a. Legitimate father – 10
1/2; from the free portion provided that the total million
LPA; 1/8; legitime of such ICD shall not exceed the free b. Spouse – 2.5 million
SS; 1/4 portion, and that the legitime of the SS must first c. 5 illegitimate children –
ICD (CIVIL CODE, be fully satisfied (CIVIL CODE, Art. 895 par. 3). 1 million each
Art. 899). 2. The remaining 1/8 may be freely disposed of by d. FP – 2.5 million
the testator (CIVIL CODE, Art. 899).
1. If there are more than 1 ICD divide equally a. 10 illegitimate children –
1/2
among them. 1 million each
ICD (CIVIL CODE,
2. The remaining 1/2 shall be at the free disposal b. FP – 10 million
Art. 901).
of the testator.
1/3; The remaining 1/3 shall be at the free disposal of a. Husband – 6.67 million
SS; 1/3 the testator (CIVIL CODE, Art. 894). b. 3 illegitimate children –
ICD (CIVIL CODE, 2.22 million each
Art. 894). c. FP – 6.67 million
1. One third (1/3) if marriage is in articulo mortis If marriage is in
and the testator spouse died within 3 months articulo mortis and
after the marriage. NOTE: Applies only if it was testator dies within 3
the deceased who was the party in danger of months,
death at the time of marriage; and if the cause of a. Spouse – 6.67 million
death is the SAME as the sickness, illness or
injury existing at the time of marriage – the If living together as
1/3;
purpose of the law being to avoid a marriage husband and wife for
1/2;
purely for financial gain. This rule applies only to more than 5 years
SS 1/2
a case of testamentary succession (3 PARAS, before marriage in
(CIVIL CODE,
supra at 350). articulo mortis,
Art. 900).
2. One half (1/2) when they have been living as a. Spouse – 10 million
husband and wife for more than 5 years before b. FP – 10 million
marriage in articulo mortis
3. If marriage is not in articulo mortis, SS shall If marriage is not in
inherit 1/2 of the estate articulo mortis,
4. The remaining one half 1/2 in (b) and (c) herein a. Spouse – 10 million
shall be at the free disposal of the testator b. FP – 10 million
1/2 The remaining 1/2 shall be at the free disposal of a. Illegitimate father – 10
IP (CIVIL CODE, the testator. million
Art. 903). b. FP – 10 million
 ILLUSTRATION
SURVIVOR LEGITIME NOTES Assume that X’s estate =
P20 million
Children inherit in the amounts established in the a. Illegitimate mother –
Excluded; foregoing rules. none
IP;
It depends b. Legitimate son – 10
Any child
(CIVIL CODE, million
(LCD/ICD)
Art. 903). c. Illegitimate daughter – 5
million
IP; Only the parents of IC are included. Grandparents a. Illegitimate father – 5
1/4;
SS and other ascendants are excluded. million
1/4
b. Wife – 5 million
(CIVIL CODE,
c. Illegitimate grandfather
Art. 903).
- none
1/2; When parents (legitimate or illegitimate), or the a. Legitimate parents – 10
LPA/IP of
1/2 legitimate ascendants of the adopted concur with million or 5 million each
the
(FAMILY the adopters, 1/2 shall be inherited by the parents b. Adopters – 10 million
adopted;
CODE, Art. or ascendants and the remaining half by the
Adopters
190, Par. 3). adopters.
Same share As a rule, adopted children are entitled to the same a. Adopted daughter – 2.5
AC; as LCD successional right as legitimate children. million
LCD (CIVIL CODE, b. 3 legitimate sons – 2.5
Art. 979). million each
(JURADO, Succession, supra at 324-325).
Rule of proximity applies where the relative
NOTE: There are conflicting views as to the nearest in degree excludes the more distant
applicability of Art. 190 of the Family Code to ones, saving the right of representation when it
instances where both the adopters and the LP/IP properly takes place (i.e., grandchildren are
concur after the death of the adopted child. excluded by the presence of their parents in the
estate of their grandparents) (CIVIL CODE, Art.
One view is that the Sec. 18 of R.A. 8552 amended 962, par. 1).
the provisions of Art. 190 of the Family Code. Under
Sec. 18, the adopted and his/her parents by nature Rule in case of Adopted Child
may only succeed from each other by way of The adopted shall be deemed to be a legitimate
testamentary succession. The Domestic Adoption child of the adopters (R.A. No. 8552, Sec. 17).

Act extinguished the reciprocal rights of succession A ward (ampon), without the benefit of formal
that exist between the two, including the right to the (judicial) adoption, is neither a compulsory nor a
legitime and rights arising from legal or intestate legal heir (Manuel v. Ferrer, G.R. No. 117246,
succession (RABUYA, The Law on Persons and August 21, 1995).
Family Relations (2006), p. 616).
EXCEPTIONS:
Another view is that Art. 190 of the Family Code a. When the adoptee and his/her biological
continues to apply, and that the adopter and the parent(s) had left a will, the law on
LP/IP shall divide the entire estate, that is, one-half testamentary succession shall govern
to be inherited by the parents or ascendants and the (FAMILY CODE, Art. 189 in rel. to Secs. 17
other half by the adopters (JURADO, Succession, and 18 of R.A. No. 8552 or the Domestic
supra at 241). Adoption Act of 1998).
b. When the adopter dies before his LPA, or is
1. LEGITIME OF LEGITIMATE incapacitated to inherit from said LPA, or is
DESCENDANTS disinherited by his LPA, the adopted cannot
inherit by right of representation (JURADO,
Consists of 1/2 of the hereditary estate of their
Succession, supra at 236).
legitimate parents or ascendants, while the other
half is at the latter’s free disposal (CIVIL CODE,
Art. 888).
 Actio Ad Supplendam Legitimam (Right of mother, but is survived by ascendants of
Completion of Legitime) equal degree of the paternal and maternal
If some heirs are genuinely interested in lines, the legitime shall be divided equally
securing that part of their late father’s property between both lines (CIVIL CODE, Art.890
which has been reserved for them in their par. 2).
capacity as compulsory heirs, then they should
simply exercise their right of completion of Right to Receive Benefits from the Adoptee
legitime (Gala v. Ellice Agro-Industrial Corp., in Case of Death of the Adopter
G.R. No. 156819, December 11, 2003). Adoption, without more, does not deprive the
biological parent of the right to receive the
2. LEGITIME OF LEGITIMATE benefits stemming from the adoptee’s death as
ASCENDANTS a dependent parent given the adopter’s untimely
demise during the adoptee’s minority. Since the
Consists of 1/2 of the hereditary estate of their
parent by adoption already died, then the death
children and descendants (CIVIL CODE, Art.
benefits under the Employee’s Compensation
889, par. 1).
Program shall accrue solely to the biological
parent, the adoptee’s sole remaining beneficiary
They are excluded from the succession if they
(Bartolome v. SSS, G.R. No. 192531, November
concur with legitimate children or descendants.
12, 2014).
(JURADO, Succession, supra at 244).

Rules of Division for Legitimate Parents and 3. LEGITIME OF SURVIVING SPOUSE

Ascendants: Entitled to a legitime the amount of which is
a. The legitime shall be divided between the variable depending upon whether he or she
LPA equally. survives alone or concurrently with other
b. If one of the LPA dies before the testator, the compulsory heirs (JURADO, Succession, supra
whole shall pass to the survivor. at 285).
c. If both LP dies before the testator but:
i. Survived by ascendants of equal The condition of being a surviving spouse
degree, legitime shall be divided equally requires that there should have been a valid
between the paternal and maternal line. marriage between the deceased and the
ii. Survived by ascendants of different survivor (DE LEON, Succession, supra at 326).
degrees, legitime shall pertain entirely
to the nearest degree (CIVIL CODE, Art. Annulment of voidable marriage
890; JURADO, Succession, supra at Voidable marriages are valid until they are set
245-246). aside by final judgment of a competent court in
an action for annulment (Diño v. Diño, G.R. No.
Illustration: X, the testator, has an estate 178044, January 19, 2011).
amounting to P240,000. X was survived by his
father F, mother M, paternal grandfather PGF, In case of death of a party during the
paternal grandmother PGM, maternal annulment proceedings, the survivor is
grandfather MGF, and maternal grandmother entitled to a legitime, because marriage can no
MGM. longer be annulled after the death of one of the
a. How shall his estate be divided? parties (Niñal v. Bayadog, G.R. No. 133778,
b. If F predeceased X? March 14, 2000).
c. If F, M, and PGM predeceased X?
If the party dies after the entry of judgment of
Answer: nullity or annulment, the judgment shall be
a. F and M shall both be entitled to P120,000 binding upon the parties and their successors-
each. The legitime reserved for the in-interest in the settlement of the estate in the
legitimate parents shall be divided between regular courts (A.M. No. 02-11-10-SC, Sec.
them equally (CIVIL CODE, Art. 890). 24(b)) The survivor is no longer the spouse
b. M shall be entitled to P240,000 in entitled to a legitime.
accordance with the rule of proximity. M
shall exclude those farther in degree. Also Legal Separation
Art. 890 of the Civil Code provides that “if The widow or widower will be entitled to succeed
one of the parents should have died, the only when he or she is the innocent spouse
whole shall pass to the survivor.” (FAMILY CODE, Art. 63, par. 4).
c. PGF shall be entitled to P120,000 while If death occurred during the pendency of the
MGF and MGM shall be entitled to P60,000 legal separation proceedings, the effect shall
each. If the testator leaves neither father or depend on which spouse died.
 a. If it was the plaintiff (innocent spouse) who A: No, because of the barrier between the
died, the proceeding shall continue to legitimate family (CIVIL CODE, Art. 992).
determine whether or not there is ground for
legal separation which shall justify the When representatives are of different classes
exclusion of the surviving spouse from (legitimate or illegitimate), they inherit naturally
inheritance (DE LEON, Succession, supra in the same proportions as in Art. Art. 895 since
at 327). this is also the rule in legal succession (3
b. If it was the defendant (guilty spouse) who PARAS, supra at 353-354).
died, the legal separation proceedings
should be terminated (FAMILY CODE, Art. Illustration: T has an illegitimate child A, who in
63; JURADO, Succession, supra at 236). turn has a legitimate child B, and an illegitimate
child C. If A predeceases T, both B and C will
In case of reconciliation under Art. 66(1) of the inherit by representation in the proportion of 2 is
Family Code, when one of the spouses should to 1 (Id.).
die, the legal separation proceedings which is
still pending shall be terminated at whatever 5. LEGITIME OF ILLEGITIMATE
stage (FAMILY CODE, Arts. 63 and 66). The PARENTS
survivor gets his or her legitime, regardless of
The illegitimate parents are entitled to 1/2 of the
whether he or she is the guilty party.
illegitimate child’s hereditary estate when he is
survived by neither legitimate descendant, nor
Legacy or devise to surviving spouse
surviving spouse, nor illegitimate children.
Any devise or legacy given to the surviving
(CIVIL CODE, Art. 903).
spouse should be considered as being in
addition to his or her legitime, and must
If the illegitimate child leaves a descendant,
therefore be charged to the free portion. Such
legitimate or illegitimate, the parents have no
devise or legacy should be considered in the
legitime (DE LEON, Succession, supra at 386).
same footing as those given to strangers (3
PARAS, supra at 343).
NOTE: Brothers and sisters are not compulsory
heirs but they may be instituted as voluntary heirs (3
4. LEGITIME OF ILLEGITIMATE PARAS, supra at 307).
DESCENDANTS
The amount of their legitime is variable RESERVA TRONCAL (OR RESERVA
depending upon whether they inherit alone or as EXTRAORDINARIA/ LINEAL)
a class or concurrently with other classes of
The reservation by virtue of which an ascendant who
compulsory heirs (JURADO, Succession, supra
inherits from his descendant any property which the
at 290).
latter may have acquired by gratuitous title from
another ascendant or a brother or sister, is obliged
Under the Family Code, there is no more
to reserve such property as he may have acquired
distinction between acknowledged natural
by operation of law for the benefit of relatives who
children and illegitimate children. They are all
are within the 3rd degree and who belong to the line
considered as illegitimate. Thus, the 5:4 ratio
from which such property came (CIVIL CODE, Art.
no longer applies (Id. at 292).
891).
When an illegitimate child dies before the
PURPOSES:
testator, his rights to the legitime are transmitted
1. To prevent persons who are strangers to the
to his own heirs. Representatives may either be
family from acquiring, by some chance or
legitimate or illegitimate descendants (CIVIL
accident, property which otherwise would have
CODE, Art. 902; JURADO, Succession, supra at
remained with the said family (JURADO,
301).
Succession, supra at 247); and
2. To maintain a separation between the paternal
Reason: Illegitimate children are considered
and maternal lines (3 TOLENTINO, supra at
innocent, and therefore despite the moral lapse
270).
of their parents, they are still given a legitime,
but precisely because they are born outside
Nature: It is an exception to both the system of
marriage, their legitime are less than those given
legitime and the order of intestate succession
to legitimate children (6 MANRESA, supra at
(JURADO, Succession, supra at 247).
570).

Q: Can illegitimate descendants of legitimate

children inherit by right of representation?
The reserva creates a double resolutory condition
to which the right of ownership of the person obliged
GF ORIGIN
to reserve is subjected (Id. at 276).

The Resolutory Conditions are:

1. The death of the ascendant obliged to reserve;
and B S +F
M
2. Survival of relatives of the descendant-
propositus who are within the third degree, and
who belong to the line from which the property RESERVATARIOS RESERVISTA
came (Id.). +P

If the conditions are fulfilled: the property passes

in accordance with this special order of succession PROPOSITUS
to such relatives; automatic conversion into an
absolute right of ownership of the reservatario It is reservable. M, upon P’s death, is obliged to
(JURADO, Succession, supra at 250). reserve it for the benefit of P’s relatives who are
within the third degree and who belong to the line
If the conditions are NOT fulfilled: property is from which the property came.
released and will be adjudicated in accordance with
the regular order of succession (Id.). The reservable character will terminate upon the
death of M. Therefore, B and S can claim the
Requisites: (GOLD) property as their own (JURADO, Succession, supra
1. The property should have been previously at 249).
acquired by Gratuitous title by the descendant
from another ascendant or from a brother or PERSONAL ELEMENTS:
sister (CIVIL CODE, Art. 891);
2. The property should have been acquired by 1. Origin/Origin of the Property
Operation of law by an ascendant from his The Ascendant, or Brother or Sister (ABS) from
descendant upon the death of the latter (CIVIL whom the propositus had acquired the property
CODE, Art. 891); by gratuitous title (e.g. donation, remission,
3. The descendant should have died without any testate or intestate succession) (Id. at 252).
Legitimate issue in the direct descending line
who could inherit from him; and The property should have belonged to the
4. There are relatives of the Descendant- originator at the time of its acquisition by the
propositus who are within the 3rd degree and propositus. The source of the property prior to
who belongs to the line from which the property the acquisition by the originator is immaterial (3
came (Id.). TOLENTINO, supra at 276).

NOTE: The fourth requisite is sometimes added but The transmission from the origin to the
it is submitted to be merely a resolutory condition, propositus must be by gratuitous title (3 PARAS,
not a requisite (Id.). supra at 321).

NOTE: Reserva troncal contemplates legitimate While the origin owns the property, there is no
relationship. Illegitimate relationship and relationship reserva yet, and therefore, the origin has the
by affinity are excluded (Gonzalez v. Court of First perfect right to dispose of it, in any way he
Instance of Manila, G.R. No. L-34395, May 19, wants, subject, however, to the rule on
1981). Preference is given to the direct line as inofficious donations (3 PARAS, supra at 322).
against the collateral line, and the rule of “nearer
excludes the farther” also applies (Florentino v. If the origin of the property is a brother or sister
Florentino, G.R No. 14856, November 15, 1919). of the full-blood, the question of line is
unimportant. However, if the origin is a brother
Illustration: Before GF’s death in 2003, he donated or sister of the half-blood, the common parent or
a parcel of land to his grandson, P, the only child of ascendant must always be considered. If the
his deceased son F. P died intestate in 2020 without common ascendant is the father, the property is
any heir in the direct descending line. As a reserved only for the relatives on the father’s
consequence of which, the land passed to his side; if the common ascendant is the mother, the
mother M in accordance with intestate succession. property is reserved only for the relatives on the
mother’s side (JURADO, Succession, supra at
264-265).
2. Propositus 3. Reservista
The descendant (brother or sister) who died, The other ascendant who is obliged to reserve
and from whose death the ascendant-reservista the property for the benefit of the relatives of the
in turn had acquired the property by operation of descendant-propositus who are within the 3rd
law (JURADO, Succession, supra at 253; 3 degree and who belong to the line from which
PARAS, supra at 324). said property came (JURADO, Succession,
supra at 253).
The propositus should have died without any
legitimate issue in the direct descending line He must have acquired the property by
who could inherit from him. Otherwise, it would operation of law (Id. at 260). If he inherited the
not be possible for the property to pass by property from the descendant not by legal
operation of law to an ascendant-reservista succession nor by virtue of the legitime, there is
(JURADO, Succession, supra at 260). no obligation to reserve. This happens when he
inherits the free portion by virtue of a will (3
The term “by operation of law” applies to the PARAS, supra at 324).
transmission of the legitime in case of
testamentary, and to the entire inheritance in The person obliged to reserve the property
case of intestate succession (3 TOLENTINO, should be an ascendant of the descendant-
supra at 282). propositus (Mendoza v. Delos Santos, G.R. No.
176422, March 20, 2013). A collateral relative
The property should be acquired by gratuitous cannot be a reservista.
title from an ascendant, brother or sister (CIVIL
CODE, Art. 891). Rights of Reservista
Upon the death of the descendant-propositus,
Prior charges on the property do not negate the the reservista acquires all of the attributes of the
gratuitous character of the transmission (Chua right of ownership, such as enjoyment, disposal,
v. Court of First Instance of Negros Occidental, and recovery, although conditional and
G.R. No. L-29901, August 31, 1977). revocable. Thus, he can alienate or encumber
the property. However, the acquirer will only
If the property is acquired by virtue of a receive a limited and revocable title which the
compromise involving hereditary properties, it reservatarios may then rescind after the death of
can be truthfully said that the property was the reservista (JURADO, Succession, supra at
acquired, not by document of compromise but 273).
by inheritance. Hence, the acquisition is by
gratuitous title (Cabardo v. Villanueva, G.R. No. Reservatario cannot, as long as the reservista is
19003, December 13, 1922). alive, impugn or annul any alienation or
encumbrance effected by the reservista,
Propositus as “arbiter of the fate of reserva whether the same be on personal or real
troncal” property (Edroso v. Sablan, G.R. No. 6878,
As long as the propositus is still alive, there is no September 13, 1913).
reserve yet, therefore he is the absolute owner
of the property acquired by him gratuitously from If the property subject to reserva is personal
the origin, with full freedom to alienate or property, the reservista, being the full owner
encumber (3 PARAS, supra at 323). thereof, may donate, sell, or pledge them, and
the donee-purchaser becomes full owner of the
In case he sells the property and because of property. This is without prejudice to the right to
such sale he receives cash, there is no reserva reimbursement of the reservatario (should they
even if the cash is later on inherited by the survive the reservista) from the estate of the
ascendant by operation of law since the cash is reservista for whatever they have lost by virtue
not the same property that he had acquired of such donation, sale or pledge (3 PARAS,
gratuitously (Id.). supra at 326).

A will may prevent the constitution of a reserva. If it is a reservable real property, the reservista
In case of testate succession, only the legitime may alienate it subject to reserva troncal i.e.,
passes by operation of law. The propositus may, reservatario can recover the real property from
by will, opt to give the legitime of his ascendant the transferee as soon as ownership is
without giving to the latter properties he had transferred to such reservatario, without
acquired by gratuitous title from another prejudice of course to the Land Registration Act.
ascendant, or brother or sister. In such case, a Thus, if reservable land is registered under the
reserva troncal is avoided (Id. at 288). Torrens System as free, an innocent purchaser
 for value will be preferred over a reservatario.
to the line from which the
However, the estate of the reservista will have to
reservable property came.
indemnify the reservatario (Id.).
3rd degree 1. Great grandparents;
Obligations of Reservista/Rights of relatives 2. Uncles or aunts (brothers
Reservatario: (ASIA) or sisters of the full or half-
a. To Annotate in the Registry of Property the blood of the prospositus’
reservable character of all reservable father or mother); and
immovable property; 3. Nephews or nieces
b. To Secure by mortgage: (a) restitution of (children of propositus’
movables not alienated, (b) payment of brothers or sisters of the
damages caused by his fault or negligence, full or half-blood)
(c) return of price received for movables
alienated or pay its value if made (Id. at 263).
gratuitously, and (d) payment of value of
immovable alienated; NOTE: The origin may be a reservatario.
c. To make an Inventory of all reservable
property; and Under Art. 189, par. 1 of the Family Code,
the adopted shall be deemed to be a
NOTE: Reservista has a period of 90 days, legitimate child of the adopters and both
from the time the reserve arises, in which to shall acquire the reciprocal rights and
register the reservable character of the obligations arising from the relationship of
property, if he does not voluntarily cause the parent and child. So, adopted children may
registration, reservatarios may judicially now claim the benefit of reserva troncal in
demand that he be compelled to make it (3 their favor (DE LEON, Succession, supra at
TOLENTINO, supra at 292). 358).

d. To Appraise value of all reservable movable First cousins of the propositus are 4th degree
property (JURADO, Succession, supra at relatives and are not reservatarios
274). (Mendoza v. Delos Santos, G.R. No.
176422, March 20, 2013).
4. Reservatarios
The relatives of the descendant-propositus b. They must belong to the line from which the
within the 3rd degree and who belong to the line reservable property came (JURADO,
from which the property came and for whose Succession, supra at 262); and
benefit the reservation is constituted (Id. at 253).
“Line from which the property came”
Conditions: refers to the paternal line as opposed to the
a. They must be legitimate relatives of the maternal line, or vice versa and not to that
descendant-propositus within the 3rd degree which is constituted by a series of degrees
(Id. at 262); which may be either direct or collateral (Id.
at 263).
The degree of relationship must be counted
from the descendant-propositus, because it Illustration:
is only upon his death that the property Origin: Paternal grandfather
becomes reservable (Id.). Reservista: Mother
Reservatario: Paternal grandmother
PERSONS WHO CAN QUALIFY AS Considering the case, does the
RESERVATARIOS grandmother come from the line from which
DEGREE OF the property came?
RELATIVES INCLUDED
RELATIONSHIP
Two views:
1st degree Legitimate father or mother First view: It is advocated by Manresa that
relatives since the law merely states that the
reservatario should belong to the line from
2nd degree 1. Grandparents; and which the reservable property came without
relatives 2. Brothers or sisters (of the any qualification whatsoever, it is clear that
full or half-blood) belonging she would be entitled to the property (Id. at
264).
 Second view: Sanchez Roman, with whose The reserve instituted by law in favor of the heirs
view Justice Jurado agreed, advocated that within the third degree belonging to the line from
since the grandmother is not related by which the reservable property came, constitutes a
consanguinity to the origin of the property real right which the reservee may alienate and
but only by affinity, she cannot be dispose of, albeit conditionally, the condition being
considered as belonging to the line from that the alienation shall transfer ownership to the
which the property came (Id.). vendee only if and when the reservee survives the
person obliged to reserve (Sienes v. Esparcia, G.R.
Otherwise stated, the reservatario must not No. L-12957, March 24, 1961).
only be a relative by consanguinity of the
descendant-propositus within the 3rd Even during the reservista’s lifetime, the
degree, but he must also be a relative by reservatarios who are ultimate acquirers of the
consanguinity of the source or origin of the property can already assert the right to prevent the
property (Id.). reservista from doing anything that might frustrate
their reversionary right. They may compel the
i. If the origin is a brother or sister of annotation of their right in the Registry of Property
the full blood – the question of line is (Gonzalez v. Court of First Instance of Manila, G.R.
unimportant because there is no way by No. L-34395, May 19, 1981).
which we would be able to determine
the “line from which the property came” NOTE: The person obliged to reserve is a legitimate
(Id.). ascendant who inherits from a descendant property
which proceeds from the same legitimate family
ii. If the origin is a brother or sister of (Nieva v. Alcala, G.R. No. 13386, October 27, 1920)(
the half-blood – the common parent or JURADO, Succession, supra at 253).
ascendant must always be considered
(Id. at 265). SUMMARY OF RULES:
1. Reserva troncal merely determines the group of
c. They must survive the ascendant-reservista relatives (reservatarios) to whom the property
(Id. at 262). should be returned; and
2. Within that group, the individual right to the
If the ascendant-reservista is survived by property should be decided by the applicable
several relatives of the descendant- rules of ordinary intestate succession (Padura v.
propositus and all of them are within the 3rd Baldovino, G.R. No. L-11960, December 27,
degree belonging to the line from which the 1958).
reservable property came, the rules of legal
or intestate succession shall apply (Id. at
267).
PROPERTY SUBJECT TO
RESERVATION
A 3rd degree reservatario was still alive at GENERAL RULE: It must be the same property
the time the reservista died. Said which the reservista had acquired by operation of
reservatario, even if he dies, before claiming law from propositus upon the death of the latter and
the property nevertheless transmits rights to which the latter in turn had acquired by gratuitous
his own heirs for after all, he survived the title during his lifetime from another ascendant,
reservista (3 PARAS, supra at 338). brother or sister (3 TOLENTINO, supra at 282).

TWO TESTS TO DETERMINE WHO CAN EXCEPTION: Substitution of the reservable

property through unavoidable necessity: (CLAD)
QUALIFY AS RESERVATARIO: 1. Property is Consumable;
If there are several claimants: 2. Lost/destroyed through the fault of the
1. Is the claimant a relative of the descendant- reservista;
propositus within the 3rd degree? 3. Deteriorated through the same cause; and
2. Does he belong to the line from which the 4. It has been Alienated (JURADO, Succession,
reservable property came? (JURADO, supra at 273).
Succession, supra at 265).

During the whole period between the constitution of

the reserva and the extinction thereof, the
reservatarios only have an expectation to the
property, an expectation which cannot be
transmitted to their own heir, unless these heirs are
also within the 3rd degree (Id. at 250).
REMEDIES OF RESERVATARIOS WHEN reservable, while the other half shall be
THERE IS SUBSTITUTION OF THE included in the free portion. Therefore, only
half of 20T (10T) is reservable (JURADO,
RESERVABLE PROPERTY THROUGH Succession, supra at 261-262).
UNAVOIDABLE NECESSITY:
1. To recover the value of the property; EFFECTS WHEN RESERVATARIO
2. To seek the ownership or return thereof; and
ACQUIRES RIGHT
3. If the reservable property is a sum of money –
the ordinary rules for the collection of credit Upon the death of the reservista, the reservatario
apply (Id.). nearest in degree to the descendant-propositus
If the reservable property consists of sum of becomes, automatically and by operation of law, the
money and the reservista died with no cash, the absolute owner of the reservable property.
reservatarios can either, select equivalent Consequently, the property is withdrawn
property from the estate or demand the sale of automatically from the estate of the reservista. It
sufficient property in order to raise the cannot be sold for the payment of his debts (Id. at
necessary amount (Id.). 276-277).

THEORIES ON THE VALUE OF CAUSES FOR EXTINGUISHMENT OF

RESERVA RESERVA TRONCAL: (RP2-LAW)
1. Registration by the reservista of the property as
1. Reserva Maxima
free property under the Land Registration Act;
The reserve should apply to the property that
2. Prescription of the right of the reservatarios,
has been gratuitously acquired from some
when the reservista holds the property adversely
ascendant, brother or sister that can be included
against them in the concept of an absolute
within the legitime of the reservista, or 1/2 of the
owner (10 years from the death of the
estate (3 TOLENTINO, supra at 284).
propositus);
3. Death of all relatives of Propositus within the
This is based on general principles of law and is
third 3rd degree who belong to the line from
more equitable. It is more in line with the
which the property came;
philosophy of the present code of socialization
4. Loss of the reservable property for causes not
of property (Id. at 284-285).
due to the fault or negligence of the reservista;
5. Death of Ascendant reservista; and
2. Reserva Minima (Proportional Reserva) 6. Waiver or renunciation by the reservatarios (Id.
All the property passing to the reservista must at 277-283).
be considered as passing partly by operation of
law and partly by will of the descendant, and
therefore, one-half of the properties acquired TRANSMISSIBILITY OF RIGHTS
gratuitously by the descendant from another 1. The rights of illegitimate children are transmitted
ascendant, or brother or sister, should be upon their death to their descendants, whether
reservable, and the other half should be free legitimate or illegitimate (CIVIL CODE, Art. 902).
(Id.).
NOTE: An illegitimate child has no right to inherit
Illustration: The descendant-propositus died ab intestato from the legitimate children and
with a will wherein his mother is instituted as relatives of his father or mother; nor shall such
universal heir. The net value of his hereditary children or relatives inherit in the same manner
estate is P40,000. One-half of this estate (20T) from the illegitimate child. (CIVIL CODE, Art. 992
had been acquired gratuitously from his or the Rule of Barrier between the Legitimate
deceased father, while the other half (20T) had and Illegitimate Family a.k.a. “Iron Curtain or Iron
been acquired through his own efforts or Clad Rule”).
industry.
2. In the case of legitimate children, the person/s to
a. Reserva maxima – all of the properties whom the right is transmitted must be legitimate
acquired from the father are reservable descendants (JURADO, Succession, supra at
because they can be contained in the 301).
mother’s legitime. Therefore, the entire 20T
is reservable. Thus:
1. Illegitimate children have no right of
b. Reserva minima – one-half of said representation with respect to their legitimate
properties acquired from the deceased parents.
father shall be included in the legitime of the
mother which shall be considered as
2. Illegitimate children of illegitimate parents can INCOMPLETE LEGITIME V.
represent the latter in the inheritance of their PRETERITION
grandparents’ estate (CIVIL CODE, Art. 992).
ART. 906
ART. 854
(INCOMPLETE
(PRETERITION)
PRINCIPLE OF UNTOUCHABILITY OF LEGITIME)
LEGITIME As to the Nature of Omission
GENERAL RULE: The testator cannot deprive his
compulsory heirs of their legitime. Neither can he Heir not entirely Total omission of the
impose any burden, encumbrance, condition, or forgotten. heir.
substitution of any kind whatsoever (CIVIL CODE,
Art. 904). As to the Amount of Deprivation

Less than the portion of Total deprivation of

Should there be any charge, condition, substitution
the legitime. legitime.
or encumbrance upon the legitime, said charge, etc.
shall be considered as not imposed (CIVIL CODE, As to the Remedy
Art. 872).
Remedy is to demand Effect is the total
EXCEPTIONS: for completion of annulment of the
1. Valid disinheritance (CIVIL CODE, Art. 915); legitime. institution of heirs.
2. Reserva Troncal (CIVIL CODE, Art. 891);
3. Family Home (FAMILY CODE, Art. 159); and (Id. at 306).
4. When the testator expressly forbids the division
of the estate but not to exceed 20 years (CIVIL Any compulsory heir to whom the testator has left by
CODE, Art. 1083). any title less than the legitime belonging to him may
demand that the same be fully satisfied (CIVIL
If the testator has compulsory heirs, he can dispose CODE, Art. 906). This is their action ad supplendam
of his property provided he does not impair their legitimam, or their right of completion of legitime.
legitimes (Hacbang v. Alo, G.R. No. 191031, Such relief must be sought during the distribution
October 5, 2015). and partition stage of a case for settlement of the
estate of their deceased parent (Gala v. Ellice Agro-
Renunciation or compromise as regards future Industrial Corp., G.R. No. 156819, December 11,
legitime between the person owning it and his 2003).
compulsory heir is void (CIVIL CODE, Art. 905).
NOTE: “Any title” means, for example, donation,
REASONS: intestate succession, remission, since a donation or
1. The rights of the heirs are merely inchoate a remission is merely an advance of the legitime. If
because it is only perfected upon the testator’s there is a real preterition, as when absolutely nothing
death. Hence, there is still nothing to renounce is given, the heir concerned is entitled not only to a
or compromise (JURADO, Succession, supra at completion of his legitime, but also to the annulment
306). of the institution (3 PARAS, supra at 357).
2. No contract maybe entered into with respect to
future inheritance except in cases expressly REDUCTION OF INOFFICIOUS
authorized by law (CIVIL CODE, Art. 1347, Par. TESTAMENTARY DISPOSITIONS
2). Testamentary dispositions that impair or diminish
the legitime of the compulsory heirs shall be reduced
WHO MAY CLAIM NULLITY OF on petition of the same, insofar as they may be
RENUNCIATION OR COMPROMISE inofficious or excessive (CIVIL CODE, Art. 907).
1. Compulsory heir who renounced or
compromised his legitime; or EFFECT OF INOFFICIOUS DONATIONS:
2. Any co-heir who may be prejudiced by such Donations inter vivos are to be reduced if found
renunciation or compromise (JURADO, inofficious (i.e. if they exceed the free portion) for no
Succession, supra at 307). person may give by way of donation more than he
may give by will (CIVIL CODE, Art. 752). The
However, if the claim for nullity is made only after the donation is considered inofficious in all that it may
death of the testator, it is required that the heir who exceed this limitation (3 PARAS, supra at 300).
is filing the claim must bring to collation whatever he
might receive by virtue of the renunciation or An alienation, however, which is for an onerous or
compromise (Id.). valuable consideration (as a sale) would be proper
since in this case, there merely is the substitution of In case of premiums, although they partake of
one kind of property for another (Id.). the nature of donations, it is submitted that so
long as they are paid from the income of the
STEPS IN DISTRIBUTION OF ESTATE IF insured and are not excessive, they are not
THERE ARE DONATIONS: subject to collation (JURADO, Succession,
supra at 316).
1. Determination of the gross value of the
estate at the time of the death of the 5. Determination of the amount of the
testator (CIVIL CODE, Art. 908); legitime from the total thus found (CIVIL
CODE, Art. 908);
Gross value
a. If there is an administration proceeding:
it is the executor or administrator who, within
6. Imputation of the value of all donations
3 months after his appointment, shall return inter vivos made to compulsory heirs
to the court a true inventory or appraisal of against their legitime and of the value of
all the real and personal estate of the all donations inter vivos made to
deceased which have come to his strangers against the disposable free
possession or knowledge. portion and restoration to the hereditary
b. If there is no administration proceeding: estate if the donation is inofficious (CIVIL
it is the actual value of the estate CODE, Art. 909); and
c. The valuation or appraisal may be made by
common agreement (JURADO, Imputation is merely a mathematical process of
Succession, supra at 314). determining whether the value of donation can
be contained in the legitime or disposable
2. Determination of all debts and charges portion, as the case may be, or not (JURADO,
which are chargeable against the estate Succession, supra at 317).
(CIVIL CODE, Art. 908);
7. Distribution of the residue of the estate
NOTE: Refers to the pre-existing obligations of in accordance with the will of the testator
the testator during his lifetime, and not to the (Id. at 310-311).
charges or burdens which are created by the
testamentary dispositions found in the will MEANING OF COLLATION
because the latter are chargeable against the
1. Fictitious mathematical process of adding the
portion at the testator’s free disposal (JURADO,
value of the thing donated to the net value of the
Succession, supra at 314).
hereditary estate (CIVIL CODE, Art. 908 and
Arts. 1061–1077).
3. Determination of the net value of the
estate by deducting all the debts and PURPOSE: To compute the legitime of
charges from the gross value of the compulsory heirs (JURADO, Succession, supra
estate (CIVIL CODE, Art. 908, par. 1); at 315).

4. Collation or addition of the value of all 2. Act of charging or imputing such value against
donations inter vivos to the net value of the legitime of the compulsory heir to whom the
the estate (CIVIL CODE, Art. 908, par. 2); thing was donated (CIVIL CODE, Arts. 1061–
1077).
Value to be collated is the value of the donation
at the time the donation was made. Any loss, PURPOSE: To take the donations in the
deterioration, or improvement of the thing from account of partition in order to equalize the
the time when the donation was made up to the shares of the compulsory heirs as much as
time of the settlement of the estate shall be for possible (JURADO, Succession, supra at 315).
the account or benefit of the donee (JURADO,
Succession, supra at 315). 3. Actual act of restoring to the hereditary estate
that part of the donation which is inofficious in
Proceeds of an insurance policy where the order not to impair the legitime of compulsory
beneficiary is a third person or even a heirs (Id.).
compulsory heir belongs exclusively to the
beneficiary and not to the estate of the insured.
Hence, not subject to collation (Del Val v. Del
Val, G.R No. 9374, February 16, 1915).
REDUCTION OF TESTAMENTARY 4. However, the amount left out of the disposable
DISPOSITIONS AND DONATIONS portion will only be 15T which is less than the
amount of legacies made in favor of Y and Z.
The order of preference is:
Hence, pro rata reduction is necessary.
1. Legitime of compulsory heirs
5. Thus, to determine the legacy in favor of Y,
2. Donations inter vivos
Let: X = reduced legacy
In case of two or more donations where the
a. 15T = disposable free portion left out
disposable portion is not sufficient to satisfy
b. 10T = legacy to Y to be reduced
them, those of the recent date shall be reduced
c. 20T = total of all legacies in favor of Y and Z
(CIVIL CODE, Art. 773).
10T(15 150
3. Preferential legacies or devises X 10T
X T) T P7,5
4. All other legacies and devises (CIVIL CODE, = = =
15 = 20T 00
Art. 911). 20T 20T
T
NOTE: The reverse order of the foregoing shall be
6. Hence, Y is entitled to 7,500. Using the same
followed in case reduction shall be necessary (3
formula, Z is also entitled to 7,500 for a total of
PARA, supra at 369).
15T (JURADO, Succession, supra at 322).
If after satisfying the legitime of compulsory heirs,
NOTE: Article 911 applies when aside from the
the disposable portion is sufficient to cover
various legacies and devises, there are legitimes to
donations inter vivos, but not the legacies and
be preserved (Id. at 363).
devises, the rule is that such legacies and devises
will be reduced pro rata, after satisfying those
Article 950 applies when there are no compulsory
preferential ones (JURADO, Succession, supra at
heirs or when there are no inofficious donations inter
321).
vivos (Id.).
Donations inter vivos are preferred over dispositions
mortis causa because the former are irrevocable by
their very nature. They have been perfected upon
the knowledge of the donor that the donee has DISINHERITANCE
accepted the donation (Id.). (ARTS. 915-923)
On the other hand, testamentary dispositions are
unilateral in character and produce juridical effects
only after the testator’s death (Id.). DISINHERITANCE
It is the act of the testator in depriving a compulsory
Formula for Pro Rata Reduction:
heir of his legitime for causes expressly stated by
𝑅𝑒𝑑𝑢𝑐𝑒𝑑 𝐿𝑒𝑔𝑎𝑐𝑦 𝐿𝑒𝑔𝑎𝑐𝑦 𝑡𝑜 𝑏𝑒 𝑅𝑒𝑑𝑢𝑐𝑒𝑑 law (Id. at 327).
=
𝐷𝑖𝑠𝑝𝑜𝑠𝑎𝑏𝑙𝑒 𝑃𝑜𝑟𝑡𝑖𝑜𝑛 𝑇𝑜𝑡𝑎𝑙 𝑜𝑓 𝑎𝑙𝑙 𝐿𝑒𝑔𝑎𝑐𝑖𝑒𝑠 It is the only instance recognized by the Civil Code
by which a compulsory heir may be deprived of his
Illustration: The net value of the testator’s estate is legitime by the testator (Id.).
40T. During his lifetime, he donated to X 10T. In his
will, he bequeathed 10T each to Y and Z. He has a
son S. Distribute his estate.
PURPOSE:
To punish the ungrateful, the culpable, the cruel, the
Answer: unnatural heir or an unfaithful spouse. The purpose
The estate shall be distributed as follows: of disinheritance is not vengeance but retribution (3
1. Collate or add the donation in favor of X to the PARAS, supra at 378).
estate. [10T + 40T = 50T]
2. Determine the legitime of his compulsory heir, REQUISITES: (LV-CUTS-RED)
and subtract it to the net value. In this case, S 1. For a cause expressly stated by Law;
as the son is entitled to ½ of the estate. [50T x 2. Effected only through a Valid will;
½ = 25T]. Leaving a disposable free portion of 3. Cause must be Certain and true;
25T. [50T – 25T (legitime) = 25T]. 4. Unconditional;
3. Since the 10T donation in favor of X can be 5. Total or complete;
imputed to the disposable free portion, it will not 6. Cause must be Stated in the will itself;
be reduced. 7. The will must not have been Revoked;
8. For an Existing cause; and INSTANCES OF IMPERFECT
9. The heir disinherited must be designated in such DISINHERITANCE
a manner that there can be no Doubt as to his
1. Disinheritance has no specification as to the
identity (Id. at 381).
cause;
2. Disinheritance for a cause, the truth of which, if
The last will of the testator may be embodied in
contradicted is not proved;
several documents. Taken together, they constitute
3. Cause is not one of those set forth in the Civil
his last will and testament (JURADO, Succession,
Code; and
supra at 328).
4. When one or more of the requisites for a valid
act of disinheritance is/are lacking (CIVIL
Thus, if a compulsory heir is disinherited in one will
CODE, Art. 918).
without a specification of the cause, the same may
be cured if the cause thereof shall be specified in
another will (Id.). EFFECTS OF IMPERFECT
DISINHERITANCE:
Since compulsory heirs may be disinherited only for 1. If testator had made a disposition of the
lawful causes, the courts may properly inquire into entire estate:
the validity of a disinheritance (3 PARAS, supra at The institution of heirs is annulled insofar as it
379). may prejudice the person disinherited; does not
affect the dispositions of the testator with
EFFECTS OF DISINHERITANCE: respect to the free portion.
1. Deprivation of the compulsory heir who is
disinherited of any participation in the Devises, legacies and other testamentary
inheritance including the legitime and free dispositions shall be valid to such extent as will
portion; not impair the legitime (3 PARAS, supra at 385).
2. The children/descendants of the person
disinherited shall take his or her place and shall Illustration: A disinherited B, and instituted C
preserve the rights of compulsory heirs with and D as his heirs. B, C, and D are all A’s
respect to the legitime; and legitimate children. The disinheritance of B was
3. The disinherited parent shall not have the invalid because it was for a cause not provided
usufruct or administration of the property which by law. The hereditary estate is P900,000. How
constitutes the legitime (JURADO, Succession, much will each of the children receive?
supra at 343). Answer:
B’s legitime is P150,000 (he gets this)
Illustration: T has a son A. In his will, T said, “If A C gets P375,000
tries to kill me, I will disinherit him”. Later A really D gets P375,000
tried to kill T and was duly convicted therefor. T, P900.000
however, never made any other will.
1. Has A been validly disinherited? The institution of heirs remains valid, but the
2. Will A inherit anything? shares of the instituted heirs will be decreased
to give B his legitime (Id.).
Answer:
1. No, A has not been validly disinherited, because 2. If testator did not dispose of the free
the disinheritance was conditional, and for a portion:
cause that had not yet occurred at the time the The compulsory heir is given all that he is
will was executed. entitled to receive as if the disinheritance has
2. No, A will not inherit, not because of not been made, without prejudice to lawful
disinheritance, but because he is incapacitated dispositions made by the testator in favor of
to succeed, by virtue of Art. 1032(2), which others (Id. at 386).
provides that any person who has been
convicted of an attempt against the life of the Illustration: T has two legitimate children, A
testator is incapable of succeeding by reason of and B. His estate is 1 million. In his will, T gave
unworthiness (3 PARAS, supra at 381) A his legitime of ¼ and ineffectively disinherited
B. How much will B get?
Revocation of the disinheritance may be conditional
(Id.). Answer: B gets P250,000 as legitime, and a
half share as intestate share in the free portion
of P500,000 (or P250,000). Thus, he gets a total
of P500,000 (Id at 385).
 IMPERFECT DISINHERITANCE V. As to Existence of a Will
PRETERITION
A will is always May exist with or
IMPERFECT required. without a will (as when
PRETERITION
DISINHERITANCE everything is given to
only one of the
As to Who is Omitted compulsory heirs by
way of donation inter
The person disinherited The person omitted
vivos).
may be any compulsory must be a compulsory
heir. heir in the direct line. As to Validity
As to Whether Express or Implied May be VALID when all The institution is always
of the requirements of VOID, except when the
Always express. Always implied.
the law are met. preterited heir
As to Whether Intentional or Not predeceased the
testator.
Always intentional. May be intentional or (Id. at 327-328; 343-344).
unintentional.
Illustration: X died leaving his instituted heirs
As to its Effect
namely: his wife W, and his 2 daughters A & B
Partial annulment of Total annulment of without designating their respective shares. His 3rd
institution of heirs. institution of heirs. daughter, C, however, was omitted entirely without
being disinherited. In the will, X also bequeathed a
As to Validity of Institution legacy of P20,000 to A. The net value of the estate
is P240,000. How shall such estate be distributed?
Institution remains Institution is completely
valid, but must be annulled. Answer: There was preterition in this case. Thus,
reduced insofar as the the rules of intestacy shall be applied. The P20,000
legitime has been was not inofficious because it can easily be
impaired. contained in the disposable free portion. The
distribution shall be as follows:
(JURADO, Succession, supra at 329).

VALID DISINHERITANCE V.
Free Amount
PRETERITION Heir Legitime Legacy
Portion Received
VALID
PRETERITION A 40,000 15,000 20,000 75,000
DISINHERITANCE
B 40,000 15,000 -- 55,000
As to Whether Intentional or Not
C 40,000 15,000 -- 55,000
Always intentional May be intentional or
unintentional. W 40,000 15,000 -- 55,000

As to Cause However, if there was imperfect disinheritance in the

abovementioned problem such that there was
The cause must always May be with or without a disinheritance without any specification of the cause,
be stated in the will and cause. the estate shall be distributed as follows:
it must be true and
legal.
Free Amount
Heir Legitime Legacy
As to Effect Portion Received

The disinherited heir Preterition annuls the A 40,000 20,000 20,000 80,000
inherits nothing. institution, therefore the B 40,000 20,000 -- 60,000
omitted heir inherits.
C 40,000 -- -- 40,000
W 40,000 20,000 -- 60,000
The disinheritance of C was defective for failure to If after conviction there is pardon,
state the cause or ground of disinheritance. C will not disinheritance is still proper, unless, the
get a part of the free portion because the effect of pardon be based on the heir’s complete
imperfect disinheritance is only to annul the innocence (3 PARAS, supra at 30).
institution of heirs insofar as it prejudices the legitime
of the disinherited. The effect differs from preterition Conviction for “homicide thru reckless
where the annulment of the institution of heirs is total imprudence” is not a ground under par. (1)
(Id. at 330-331). in view of the absence of intent to kill (Id.).

A document, entitled “Kasulatan ng Pag-Alis ng 2. When the heir by Fraud, violence,

Mana,” although it may initially come across as a intimidation, or undue influence causes
mere disinheritance document, is considered a will if the testator to make a will or to change
it conforms to the formalities prescribed by law. one already made;
While it does not make an affirmative disposition of
the testator’s property, the disinheritance of an heir,
3. When the heir has Accused the testator
nonetheless, is an act of disposition in itself (Dy
Yieng Seangio v. Reyes, G.R. Nos. 140371-72, of a crime for which the law prescribes
November 27, 2006). imprisonment for 6 years or more, if the
accusation has been found groundless;
There is no preterition when the document merely and
mentions the name of one of the heirs, and does not
operate to institute him as the universal heir. In this Requisites:
case, there is no institution of an heir “to the a. Heir accused the testator of a crime;
exclusion of other compulsory heirs” (Dy Yieng b. Penalty for the crime is imprisonment for 6
Seangio v. Reyes, G.R. Nos. 140371-72, November years or more; and
27, 2006). c. Accusation must have been found to be
groundless (JURADO, Succession, supra at
COMMON CAUSES FOR 333-334).
The heir shall make the accusation either in the
DISINHERITANCE OF CHILDREN OR capacity of a complainant or of a witness (Id. at
DESCENDANTS, PARENTS OR 334).
ASCENDANTS, AND SPOUSE: (AFAR)
1. When the heir has been found guilty of There must be a judicial declaration that the
an Attempt against the life of the accusation has been found groundless (3
TOLENTINO, supra at 362).
testator, his/her descendants or
ascendants, and spouse in case of Acquittal of the testator on the ground of lack of
children and parents; proof of guilt beyond reasonable doubt, or lack
of criminal intent does not necessarily mean that
Requisites: the accusation was groundless (Javier v.
a. The disinherited heir must have committed Lucero, G.R. No. L-6706, March 29, 1954). In
either attempted or frustrated parricide other words, the testator would not have the right
against the testator; and to disinherit the accusing heir (3 PARAS, supra
b. He must have been convicted by final at 390.
judgment of said criminal offense.
Applicable whether as principal, accessory 4. Refusal without justifiable cause to
or accomplice (Id. at 333).
support the testator who disinherits
NOTE: If the attempt is made by the spouse, such heir
conviction is not necessary (Id. at 342). Judicial demand for support is not necessary (3
TOLENTINO, supra at 362). However, the
Even if there is no previous criminal refusal must be without justifiable cause (Id. at
conviction, the attempt, if it is made against 363). If with justifiable cause, the disinheritance
the life of the testator, will constitute a valid is imperfect or ineffectual (JURADO,
ground for disinheritance under Art. 919(6) Succession, supra at 334).
(maltreatment of the testator by word or
deed) of the Civil Code; provided all the Examples of justifiable reasons include: reduced
requisites for said ground are present (Id. at resources resulting in the neglect even of his
333). own needs, and the testator’s fortune improved
that he no longer needs support (Id.).
PECULIAR CAUSES FOR or refusal to perform the natural and legal
DISINHERITANCE obligations of care and support which
parents owe to their children (Santos v.
1. Children/Descendants: (C-MAD) Aranzanso, G.R. No. L-23828, February 28,
a. Conviction of a crime which carries with it a 1966)
penalty of civil interdiction;
b. Maltreatment of the testator by word or deed Inducing their daughters to live a corrupt
by the child/descendant; and immoral life comprehends the act of
the parents in inducing their daughters or
NOTE: Must be intentional or voluntary (Id. granddaughters, by advice, force,
at 335). intimidation or any other positive act, to live
a life of corruption and immorality (JURADO,
NOTE: Maltreatment by an ascendant of a Succession, supra at 337).
descendant does not constitute a ground for
disinheritance as it is generally in the Attempt against their virtue includes any
exercise of a power. The reverse is, criminal act against the child’s chastity by
however, repugnant to natural law and the parent/s either as principals, co-
therefore a ground for disinheritance (3 principals or accomplices (Id.).
PARAS, supra at 393).
c. Loss of parental authority for causes
c. When the child/descendant has been specified in the Code; and
convicted of Adultery or concubinage with
the spouse of the testator; and NOTE: There must be an actual loss
effected by final judgment (Id. at 338).
NOTE: Final judgment of conviction is an
essential requisite (JURADO, Succession, Two Views on the Effect of Restoration of
supra at 334). Parental Authority
1st View: No effect on the disinheritance
d. When the child/descendant leads a because the ground or basis for the
Dishonorable or disgraceful life (it includes disinheritance is not the loss of parental
both male and female descendants) (CIVIL authority but the offense committed by the
CODE, Art. 919, par. 7). offender (Id. at 339).
NOTE: In this ground, final conviction is not 2nd View: The testator would be deprived
necessary (DE LEON, Succession, supra at of his right to disinherit his parent or
427). It may cover adultery or concubinage ascendant, or it would render the
without conviction (JURADO, Succession, disinheritance ineffectual because the legal
supra at 334). basis for disinheritance would no longer
exist (Id.).
NOTE: The Code Commission broadened
the scope of Art. 853 of the Old Civil Code Reconciliation of the Two Views:
which only covered the act of prostitution by Even if there is a restoration of the parental
a daughter (3 PARAS, supra at 393). authority brought about by absolute pardon
A single act is not ordinarily sufficient, for or by the spouses or reconciliation, it cannot
“leading a life” implies continuity to be a erase the existence of the offense against
sufficient cause for disinheritance (Id.). the testator. The law allows the testator to
punish not the consequence of the offense
2. Parents/Ascendants: (CALA) but the offense itself (Id. at 340).
a. When the parent/ascendant has been
convicted of adultery or Concubinage with Grounds for Loss of Parental Authority in
the spouse of the testator; Relation to Disinheritance: (CLEB)
b. When the parents have Abandoned their i. Treats the child with Excessive
children or induced their daughters to live a harshness or cruelty;
corrupt or immoral life, or attempted against ii. Gives the child Corrupting orders,
their virtue; counsel, or example;
iii. Compels the child to Beg; or
Abandonment – refers to the failure of the iv. Subjects the child or allows him to be
parents to give their children due care, subjected to acts of Lasciviousness.
instruction and support (JURADO,
Succession, supra at 337). It means neglect
 The grounds enumerated above are If the parents should again live together in the same
deemed to include cases which have house, reconciliation between them is thereby
resulted from culpable negligence of the presumed (Id. at 399).
parent or the person exercising parental
authority (Id. at 338-339; FAMILY CODE, Reconciliation = Pardon + Acceptance of Pardon
Art. 231).
Pardon by the testator must have been accepted by
d. Attempt by one of the parents against the the offender, thus resulting in a reconciliation
life of the other, unless there has been between the two (JURADO, Succession, supra at
reconciliation between them (CIVIL CODE, 343).
Art. 920, Par.2).
1. If express pardon – A general pardon extended
NOTE: Final judgment of conviction is not by the testator on his deathbed to all who have
necessary (JURADO, Succession, supra at offended him will not suffice; it must be a pardon
340). expressly and concretely extended to the
offender, who accepts it (BALANE, Succession,
3. Spouse: (LP) supra at 402 citing 6 Manresa, Op. Cit., p. 567).
a. When the spouse has given cause for Legal 2. If conduct – the intent to forgive must be clear.
separation (FAMILY CODE, Art.55); and This is ultimately “a question of fact (which) will
be resolved, in case of controversy, by the
NOTE: Criminal conviction is not a condition courts” (Id.).
sine qua non (JURADO, Succession, supra
at 342), Neither is a decree of legal No particular form is required. It may be made
separation (3 PARAS, supra at 399). expressly or tacitly (3 PARAS, supra at 401).
Effects of Subsequent Reconciliation:
b. When the spouse has given grounds for the 1. Deprives the offended party of the right to
loss of Parental authority (CIVIL CODE, Art. disinherit; and
921). 2. Renders ineffectual any disinheritance that may
have been made (CIVIL CODE, Art. 922).
GROUNDS FOR REVOCATION OF
Effect of Subsequent Reconciliation if ground for
DISINHERITANCE: (RIN) Disinheritance is Unworthiness to Succeed
1. Reconciliation; 1. If disinheritance has been made: Rule on
2. Making of new will making the disinherited heir reconciliation applies. The disinheritance
an Instituted heir.; and becomes ineffective (CIVIL CODE, Art. 922).
3. Nullity of the will which contains the
disinheritance (3 PARAS, supra at 402). NOTE: If the cause of unworthiness was made
a ground for disinheritance and there is
The fact that a void will containing a disinheritance reconciliation, the mere fact of reconciliation
is denied probate cannot be said to revoke a extinguishes the unworthiness and no written
disinheritance for there never was a valid document is needed for a condonation (3
disinheritance. Hence, there is nothing to revoke PARAS, supra at 402).
(Id.).
2. If disinheritance has not been made: Rule on
Once disinheritance has been revoked or rendered reconciliation does not apply. If the cause of the
ineffectual, it cannot be renewed except for causes disinheritance is also a cause of unworthiness,
subsequent to the revocation or based on new the heir continues to be incapacitated to
grounds (3 TOLENTINO, supra at 373). succeed unless pardoned by the testator under
Art. 1033 of the Civil Code (Id.).
RECONCILIATION
It is either an express pardon extended by the RIGHT OF REPRESENTATION IN
testator to the offending heir or unequivocal conduct DISINHERITANCE
of the testator towards the offending heir which
reveals the testator’s intent to forgive the offense The children and descendants of the person
disinherited shall take his or her place and shall
(BALANE, Succession, supra at 402).
preserve the rights of compulsory heirs with respect
It implies mutual restoration of feelings to the status to the legitime only (CIVIL CODE, Art. 923).
quo, that is, to the relationship existing prior to the
commission of the act which strained said NOTE: The right of representation extends only to
relationship (3 PARAS, supra at 399). the legitime. If the disinherited person had been
given any legacy, devise, or part of the free disposal,
same will go to the substitutes, if any; if none, to the Compulsory heirs charged with a sub-legacy are
other heirs, legatees, or devisees by accretion if liable in proportion not to how much each actually
proper; if accretion is not proper, same should go to inherits, but only in proportion to their institution to
the legal heirs by intestacy (3 PARAS, supra at 404). the free disposal (3 PARAS, supra at 407).

In testamentary succession, the right of Illustration: T has an estate of P1 million. A and B,

representation can take place only in the direct T’s legitimate children, were instituted in this way: A
descending line, but never in the ascending to 3/5 and B to 2/5. However, they were required to
(JURADO, Succession, supra at 344). give F a legacy of P50,000. How much should each
contribute?

A: A was given P600,000 (250,000 as legitime and

LEGACIES AND DEVISES P350,000 as free portion); B was given P400,000
(P250,000 as legitime and P150,000 as free
(ARTS. 924-959) portion). Since their institution to the free portion is
in proportion of P350,000 to P150,000 (or 35 to 15),
it follows that of the P50,000 sub-legacy, A must give
P35,000 and B must give P15,000 (Id.).
PERSONS CHARGED WITH LEGACIES
AND DEVISES: Example of Sub-legacy or Sub-devises
1. Compulsory heir; The testator said, “I give my car to L, but I want L to
2. Voluntary heir; give P500,000 to X”.
3. Legatee or devisee; and NOTE: The legacy of the car to L is an ordinary
4. Estate (JURADO, Succession, supra at 345). legacy; but the legacy of P500,000 to X is a sub-
legacy having been imposed upon L (Id.).
If the will is silent as to who shall pay or deliver the
legacy/devise: LIABILITY FOR EVICTION
1. If there is an administration proceeding, it 1. If devise or legacy is indeterminate or
constitutes a charge upon the estate. generic: The heir who is charged with the
2. If there are no administration proceedings, it is a payment or delivery of the devise or legacy shall
charge upon the heirs (Id.). be liable in case of eviction.

NOTE: A legacy is “bequeathed”; while a devise is 2. If devise or legacy is determinate or specific:

“devised” (3 PARAS, supra at 404). The heir who is charged cannot be held liable in
case of eviction (JURADO, Succession, supra
EXTENT OF LIABILITY OF at 346-347).
LEGATEES/DEVISES
The legatees/devisees shall be liable for the charge NOTE: If the legacy or devise is a burden not on the
to the extent of the value of the legacy/devise heir but on the estate itself, there is no warranty
received (JURADO, Succession, supra at 345-346). against eviction, whether the legacy be specific or
generic, if there were court proceedings which
ordered the giving of such legacy or device. In this
LIABILITY WHEN NO ONE IS CHARGED case, there was court approval (3 PARAS, supra at
Should the testator not charge any legatee or 409).
devisee in particular, all shall be liable in the same
proportion in which they may inherit (Id at 346). SOLIDARY LIABILITY OF HEIRS WHO
The payment of a legacy provided for in a will cannot TAKE POSSESSION
be ordered by the court unless the estate of the If two or more heirs take possession of the estate,
deceased has first been liquidated, i.e., the assets they shall be solidarily liable for the loss or
determined and all debts, taxes and expenses have destruction of a thing devised or bequeathed, even
been paid (Pastor, Jr. v. Court of Appeals, G.R. No. though only one of them should have been negligent
L-56340, June 24, 1983). (CIVIL CODE, Art. 927).

PRINCIPLE OF UNTOUCHABILITY OF
THE LEGITIME OF COMPULSORY HEIR
The compulsory heir shall not be liable for the charge
beyond the disposable portion given to him (CIVIL
CODE, Art. 925, par. 2). It should not affect his
legitime.
LEGACY/DEVISE OF THINGS An order to acquire the unowned part is not essential
BELONGING TO ANOTHER for it is sufficient for the declaration to be express
(Id.).
1. If there was an erroneous belief on the
part of the testator that the property or EFFECTS OF PARTITION
thing bequeathed was his:
In case of subsequent division or partition between
The legacy or devise shall be void because you
the owners in common:
cannot give what you do not possess or own
1. If the thing is physically divisible or
(JURADO, Succession, supra at 349).
convenient of division: Art. 929 of the Civil
Code applies.
NOTE: But if the thing bequeathed, though not
belonging to the testator when he made the will,
2. If the thing is physically indivisible or
afterwards becomes his, by whatever title, the
inconvenient of division: the rules applicable
disposition shall take effect (CIVIL CODE, Art.
shall depend upon whether the thing is finally
930). The acquisition by subsequent title is an
adjudicated to the testator or to the other owner
example of an acquisition between the time of
applying the provisions of Arts. 929 and 930 of
the making of the will, and the testator’s death.
the Civil Code (JURADO, Succession, supra at
This would be justified since after all, the will
347-348).
becomes effective only at the time the testator
dies (3 PARAS, supra at 412).
EFFECTS OF PARTITION WHEN THE
2. If the testator knew that the property or PROPERTY IS NOT DIVISIBLE:
thing belonged to another: 1. Adjudication to the testator
The legacy or devise shall be valid. a. If testator did not bequeath the entire
Consequently, there shall be a presumption that property: the legacy or devise shall be
the thing must be acquired by the executor or effective only as to the part formerly
administrator or by an heir expressly charged belonging to the testator before the partition;
with such obligation (JURADO, Succession, b. If testator bequeathed the entire
supra at 349-350). property: the whole property shall pass to
the heir, devisee or legatee (JURADO,
LEGACY/DEVISE OF THINGS Succession, supra at 348).
BELONGING PARTLY TO ANOTHER
2. Adjudication to a third person
GENERAL RULE: The legacy or devise shall be
a. If testator did not bequeath the entire
understood to be limited to the testator, heir, or
property: the legacy or devise shall be
legatee’s part or interest (CIVIL CODE, Art. 929).
without effect (CIVIL CODE, Art. 957).
b. If testator bequeathed the entire
EXCEPTION: Testator may expressly declare that
property: the legacy or devise shall be
he bequeaths or devises the thing in its entirety
without effect only as to the part formerly
(JURADO, Succession, supra at 347).
belonging to the testator but shall still be
effective with respect to the part of the third
Requisites: (EK)
person (JURADO, Succession, supra at
1. An Express declaration to that effect appearing
348).
in the will itself; and
2. Knowledge on the part of the testator that the
In Art. 929, the stranger PARTIALLY owns the
thing belongs partly to a third person (can be
property. In Art. 930, the stranger WHOLLY owns
proven from the context of the will or from
the property (3 PARAS, supra at 412).
extrinsic evidence) (Id.).

NOTE: For the exception to apply, the testator must WHEN TESTATOR ORDERS
“expressly declare that he gives the thing in its ACQUISITION
entirety.” This clause has been interpreted to mean The heir upon whom the obligation is imposed or the
that the whole is being given despite the testator’s estate must acquire it and give the same to the
knowledge that he does not own the entire thing. If legatee or devisee; but if the owner refuses, or
the testator thought he owned the whole thing, and demands an excessive price, the heir or estate shall
he says that he gives the whole thing, only the part only be obliged to give the just value to the
that he owns should be given, the rest being a void legatee/devisee (CIVIL CODE, Art. 931).
legacy, unless of course, subsequent to the making
of the will, he becomes the owner of said remainder NOTE: In Art. 931, the testator knows that he is not
– “by whatever title” (3 PARAS, supra at 410). the owner of the thing being given (3 PARAS supra
at 413).
LEGACY OF THINGS BELONGING TO PLEDGED OR MORTGAGED
LEGATEE LEGACIES/DEVISES
The legacy or devise of a thing which at the time of When the thing bequeathed has been given as a
the execution of the will already belonged to the security for a recoverable debt, the estate shall be
legatee or devisee shall be ineffective even though obliged to pay the debt, unless a contrary intention
another person may have some interest therein of the testator appears (CIVIL CODE, Art. 934, pars.
(CIVIL CODE, Art. 932, par. 1). 1-2). The legatee/devisee should receive it free from
the encumbrance (3 PARAS, supra at 418).
EFFECT OF ACQUISITION BY LEGATEE
(JURADO, SUCCESSION, SUPRA AT Any other charge, perpetual or temporary with which
the legacy/devise is burdened, passes to the
351-352): legatee/devisee (e.g. usufructs, easements, leases
1. If the thing belonged to a third person at which are real rights) (CIVIL CODE, Art. 934, par. 3).
the time of the execution of the will;
a. If the testator erroneously believed that LEGACY OF CREDIT AND REMISSION
it was his: the legacy or devise shall be void
OF DEBT
and the subsequent acquisition shall have
no effect. Legacy of Credit – takes place when the testator
b. If the testator had knowledge that it was bequeaths to the legatee a credit which he has
not his: the second paragraph of Art. 933 is against a third person (CIVIL CODE, Arts. 935-937;
applicable. 3 PARAS, supra at 421).
i. If the legatee or devisee acquires it
gratuitously, he can claim nothing by There is, in effect, a novation of the credit by
virtue of the legacy or devise. subrogating the legatee in the rights of the original
ii. If the legatee or devisee acquires it by creditor (JURADO, Succession, supra at 354). If the
onerous title, he can demand third person pays to the testator, the legacy or devise
reimbursement. shall be deemed to have been extinguished.

Example: T is D’s creditor for P1 Million. In his will,

2. If the thing belonged to the testator at the
T gave this credit to L (3 PARAS, supra at 421).
time of the execution of the will; and
a. If thing is alienated in favor of a third Legacy of Remission of Debt – waiver of a debt
person: legacy or devise is revoked by Art. existing at the time the will was made and in the
957 and the subsequent acquisition cannot amount outstanding at the time of the death of the
revive the legacy or devise. testator (CIVIL CODE, Arts. 935-937; 3 PARAS,
b. If the thing is alienated in favor of the supra at 422).
devisee or legatee: there is no revocation.
Example: T is D’s creditor for P1 Million. In his will,
3. If the thing belonged to the beneficiary at was remitted this debt of D (3 PARAS, supra at 421).
the time of the execution of the will: the
legacy or devise shall be without effect, NOTE: Effective only as regards to credit or debt
even though it may have been existing at the time of the death of the testator (CIVIL
subsequently alienated by him (CIVIL CODE, Art. 935, par.1).
CODE, Art. 933, par. 1).
a. If the legatee or devisee acquires it Kinds of Legacy of Remission of Debt
gratuitously after the execution of the will, he 1. Generic – comprises all debts existing at the
can claim nothing by virtue of the legacy or time of the execution of the will but not
devise; subsequent ones.
b. If it has been acquired by onerous title after 2. Specific – comprises only the debt which is
the execution of the will, he can demand specifically mentioned in the will.
reimbursement from the heir or the estate 3. Legacy to the debtor of the thing pledged by him
(CIVIL CODE, Art. 933, par. 2). (JURADO, Succession, supra at 354).

DISPOSITIONS IN GENERAL TERMS Revocation of Legacy

A disposition made in general terms in favor of the It takes place when the testator, after having made
testator's relatives shall be understood to be in favor the legacy of credit or remission of debt, brings a
of those nearest in degree (CIVIL CODE, Art. 959). judicial action against the debtor even if payment
should not have been effected at the time of death
(CIVIL CODE, Art. 936, par.1).
The legacy of credit shall be considered revoked Example: The testator bequeaths 5 hectares of “rice
if the testator shall: lands” to A.
1. Bring an action against the debtor for payment
of his debt; and A devise of indeterminate real property is valid only
2. There must be a judicial demand, hence an if there be immovable property of its kind in the
extrajudicial demand shall not be sufficient to estate (CIVIL CODE, Art. 941, par. 2).
revoke the legacy (JURADO, Succession, supra
at 355). WHEN RIGHT TO DEVISE OR LEGACY IS
TRANSMITTED
LEGACY TO CREDITORS 1. If specific – from the testator’s death
Legacy/devise made to creditor shall not be applied 2. If generic – from the time a selection has been
to his credit, unless the testator provides otherwise made, so as to make the property specific
(CIVIL CODE, Art. 938). 3. If alternative – from the time the choice has been
made
ALTERNATIVE LEGACIES/DEVISES 4. If acquired from a stranger by virtue of an order
Those where the testator bequeaths or devises two by the testator – from the moment of such
or more things but which can be complied with by the acquisition (JURADO, Succession, supra at
delivery of only one of them to the beneficiary 360-362).
(JURADO, Succession, supra at 356).
LEGACY FOR EDUCATION AND
To Whom Choice is Given: SUPPORT (CIVIL CODE, ART. 944)
1. The heir, upon whom the obligation to give the A legacy for education lasts until the legatee is of
legacy or devise is imposed; or age, or beyond the age of majority in order that the
2. The executor or administrator, if no heir is legatee may finish some professional, vocational or
obliged (CIVIL CODE, Art. 940, par. 1). general course, provided he pursues his course
NOTE: Choice will have to be made upon the death diligently.
of the testator. Once the choice is made, it is A legacy for support lasts during the lifetime of the
irrevocable, and the legacy becomes simple legatee, if the testator has not otherwise provided.
(JURADO, Succession, supra at 356).
If the testator has not fixed the amount of such
If the heir, legatee or devisee dies before making the legacies, it shall be fixed in accordance with the
choice, this right shall pass to their respective heirs social standing and the circumstances of the legatee
(Id. at 357). and the value of the estate.
The choice must be communicated to the recipient, If the testator or during his lifetime used to give the
after which the communication the alternative legacy legatee a certain sum of money or other things by
becomes a simple one (3 PARAS supra at 427). way of support, the same amount shall be deemed
bequeathed, unless it be markedly disproportionate
GENERIC LEGACIES AND GENERIC to the value of the estate.
DEVISES
Generic Legacy – legacy consisting of personal LEGACY/DEVISE SUBJECTED TO
property designated merely by its class or genus SUSPENSIVE TERM
without any particular or physical segregation from What is suspended by the term or period is not the
all others of the same class (JURADO, Succession, acquisition of the right but merely the demandability
supra at 357-358). of the right (JURADO, supra at 360).
Example: The testator bequeaths “10 horses” to A.
LEGACY/DEVISE SUBJECTED TO A
A legacy of generic personal property is valid even if SUSPENSIVE CONDITION
there be no such things of the same kind in the What is acquired upon the death of the testator by
estate (CIVIL CODE, Art. 941, par. 1). the legatee/devisee is only a mere hope or
expectancy. Such hope or expectancy is converted
Generic Devise – refers to a devise consisting of into a perfected right only from the moment of the
real property designated merely by its class or genus fulfillment of the condition (Id.).
without any particular designation or physical
segregation from all others of the same class If the legatee/devisee, after the death of the testator,
(JURADO, Succession, supra at 358). dies before the fulfillment of the condition, he cannot
transmit his expectancy to his own heirs (Id.).
CLASSIFICATION OF LEGACIES Effect on the
Status of Property Given by
1. As to effect Legacy/
Legatee/Devisee
Effect on the Devise
Status of Property Given by
Legacy/ a third person and the by virtue of the
Legatee/Devisee
Devise legatee/devisee acquired the legacy/devise
Belonging to the testator at the Effective property gratuitously after the
time of the execution of the will execution of the will (CIVIL
until his death. CODE, Art. 933).

Belonging to the testator at the Revoked Testator had knowledge that the Legatee/devisee
time of the execution of the will thing bequeathed belonged to a can demand
but alienated in favor of a third third person and the reimbursement
legatee/devisee acquired the from the heir or
person (CIVIL CODE, Art. 957).
property by onerous title (CIVIL estate
Belonging to the testator at the No revocation. CODE, Art. 933).
time of the execution of the will There is a clear
but alienated in favor of the intention to comply 2. As to validity
legatee/devisee gratuitously with legacy or
(JURADO, Succession, supra devise. Valid
at 352).
1. Within the commerce of man
Belonging to the testator at the Legatee/devisee 2. Owned by testator
time of the execution of the will can demand 3. Owned by stranger if there is an order, express
but alienated in favor of the reimbursement or implied, to acquire it from him
legatee or devisee onerously from the heir or 4. Given because of moral obligation
(Id). estate 5. Given as natural obligation
6. Generic personal property – even if there be
Not belonging to the testator at Effective
none in the estate
the time the will is executed but
he has ordered that the thing be Void ab initio
acquired in order that it be given
to the legatee/devisee (CIVIL 1. Outside the commerce of man
CODE, Art. 931). 2. Owned by stranger but mistakenly believed by
Not belonging to the testator at Void testator to be owned by the latter (unless later
the time the will is executed and owned by the latter)
the testator erroneously 3. Legacy in a void will
believed that the thing pertained 4. Generic real property if there be none of its kind
to him (CIVIL CODE, Art. 930). in the estate
5. If totally inofficious
Not belonging to the testator at Effective
the time the will is executed but Inoperative
afterwards becomes his by
whatever title (CIVIL CODE, Art. 1. Those revoked expressly
930). 2. Those revoked impliedly as when same
(legacy) is given to another by a subsequent
Already belonged to the Ineffective will
legatee/devisee at the time of 3. Those revoked by implication of law –
the execution of the will even transformation, alienation by testator except
though another person may when reacquired by right of repurchase or
have interest therein (CIVIL judicial demand
CODE, Art. 932). 4. Destruction or loss thru a fortuitous event
5. Intentional destruction by testator
Already belonged to the legatee Ineffective
6. Predecease, repudiation, incapacity of legatee
or devisee at the time of the
7. Disinheritance if legatee is compulsory heir
execution of the will even
though it may have been (3 PARAS, supra at 455-456).
subsequently alienated by him
(CIVIL CODE, Art. 933).
Testator had knowledge that the Legatee/devisee
thing bequeathed belonged to can claim nothing
 RULES ON PREFERENCE Form is the external appearance while
denomination is the name by which it is known
ART. 911 ART. 950 by all (JURADO, Succession, supra at 373).
Order of Preference
The transformation must be both with respect
(LIPO) (RPSESO) to the form and denomination (Id.).
1. Legitime of 1. Remuneratory L/D
compulsory heirs 1. Preferential L/D When the testator donates or sells the property
2. Donations Inter 2. L for Support bequeathed, there is implied revocation of the
vivos 3. L for Education disposition. The presumption under the law is
3. Preferential legacies 4. L/D of a Specific, that there has been a change of intention (3
or devices determinate thing PARAS, supra at 450-451).
4. All Other legacies or which forms a part
devices pro rata of the estate There arises a presumption that the testator’s
5. All Others pro rata. intention has changed (Id.).

Application 2. Revocation by Alienation

When the testator by any title or for any cause
1. When the reduction 1. When there are no alienates the thing bequeathed, or any part
is necessary to compulsory heirs thereof, it being understood that in the latter
preserve the and the entire estate case the legacy or devise shall be without effect
legitime of is distributed by the only with respect to the part alienated (CIVIL
compulsory heirs testator as legacies CODE, Art. 957, par.2).
from impairment or devises; or
whether there are 2. When there are GENERAL RULE: If the thing alienated should
donations inter vivos compulsory heirs but again belong to the testator even it be due to the
or not; or their legitime has nullity of the contract, there can be no revival of
2. When, although the already been the legacy/devise (CIVIL CODE, Art. 957, par.2).
legitime has been provided for by the
preserved by the testator and there EXCEPTION: The reacquisition was effected by
testator himself, are no donations the exercise of the right of
there are donations inter vivos (Id.). repurchase/redemption (CIVIL CODE, Art. 957,
inter vivos par.2).
(JURADO,
Succession, supra 3. Revocation by Loss or Destruction
at 363). Thing bequeathed is totally lost during the
lifetime of the testator, or after his death without
NOTE: In case of reduction in the above cases, the the fault of the heir/s (CIVIL CODE, Art. 957, par.
inverse order of payment should be followed. 3).

EFFECT OF INEFFECTIVE “Loss” refers both to both physical loss and legal
or juridical loss, as in expropriation proceedings
LEGACIES/DEVISES (3 PARAS supra at 453).
GENERAL RULE: In case of repudiation, revocation
or incapacity of the legatee or devisee, the 4. Revocation by bringing an action
legacy/devise shall be merged with the mass of the
hereditary estate.
against the debtor for payment of debt
(CIVIL CODE, Art. 936, par. 1).
EXCEPTION: In cases of substitution or accretion
(CIVIL CODE, Art. 956). 5. Other causes:
a. Nullity of the will;
b. Noncompliance with suspensive conditions
GROUNDS FOR REVOCATION OF affecting the bequests;
LEGACIES AND DEVISES c. Sale of the thing to pay the debts of the
1. Revocation by Transformation deceased during the settlement of his
When the testator or his agent transforms the estate; or
thing bequeathed in such a manner that it does d. Revocation of legacy of credit/remission of
not retain either the form or the denomination it debt (CIVIL CODE, Art. 957 in relation to Art.
had (CIVIL CODE, Art. 957, par.1). 830, par. 1).
 NOTE: The list is NOT exclusive (3 INTESTATE SUCCESSION VS.
TOLENTINO, supra at 428). COMPULSORY OR FORCED
A mistake in the name of the thing bequeathed SUCCESSION
or devised, is of no consequence, if it is possible
to identify the thing intended by the testator INTESTATE COMPULSORY
(CIVIL CODE, Art. 958). SUCCESSION SUCCESSION

A disposition made in general terms in favor of

the testator’s relatives shall be understood to be Founded on provisions Obligatory, regardless of
in favor of those nearest in degree (CIVIL of law as expressing the decedent’s desires or
CODE, Art. 959). the presumed will of wishes
the decedent
“Relatives” must be within the 5th degree, since
persons farther than this are no longer Suppletory to testate Takes place whether the
considered relatives. It is evident that relatives succession and takes deceased has left a will
by affinity are excluded (3 PARAS supra at 453). place only in default of or not and is therefore
the latter superior to and
independent of
testamentary succession
LEGAL OR INTESTATE Suppletory to and Superior to and
SUCCESSION takes place only in independent of testate
default of testate succession
(ARTS. 960-1014) succession

The heirs are called Heirs are called

legal or intestate heirs, compulsory heirs and
LEGAL OR INTESTATE SUCCESSION but they are not they are all legal heirs
A mode of transmission mortis causa which takes necessarily
place in the absence of the expressed will of the compulsory heirs (e.g.,
decedent embodied in a testament (3 TOLENTINO, brothers and sisters)
supra at 431). (DE LEON, Succession, supra at 488-489;
CAGUIOA, Comments and Cases on Civil Law, p.
CHARACTERISTICS: 346 [hereinafter CAGUIOA, Civil Law]).
1. Legal
– because it takes effect by operation of law. Causes of Intestacy: (SWIPER-P2AIR)
1. Non–fulfillment of Suspensive condition
2. Intestate attached to the institution of heir;
– because it takes place in the absence or in 2. If a person dies without a Will, or with a void will,
default of a last will of a decedent (JURADO, or one which has subsequently lost its validity;
Succession, supra at 377). 3. Incapacity of instituted heir;
4. Predecease of the instituted heir;
BASIS: The law has put itself in the place of the 5. Expiration of term or period of institution;
deceased and made what it presumes he would 6. Repudiation by the instituted heir;
have done if he had been able to express his will. It 7. Partial institution of heir, in which case, intestacy
has made the presumed will of the deceased the takes place as to the undisposed portion (mixed
basis of intestate succession, taking into succession);
consideration human affection or love and blood 8. Preterition, in which case intestacy may be total
relationship (3 TOLENTINO, supra at 431-432). or partial depending on whether or not there are
legacies/devises;
9. Absence of an instituted of heir;
10. Non-compliance or Impossibility of compliance
with the will; and
11. Fulfillment of Resolutory condition (CIVIL
CODE, Art. 960; JURADO, Succession, supra at
378-379).
In all cases, where there has been an institution of As a general rule, nephews and nieces are
heirs, follow the (I.S.R.A.I.) order: excluded by a brother, but such exclusion is
1. If the Institution fails, Substitution occurs. nullified by representation. Thus if the decedent
2. If there is no substitute, the right of is survived by his brother, X, and his nephews,
Representation applies in the direct descending A and B, children of a deceased brother, Y, such
line to the legitime if the vacancy is caused by nephews shall still participate in the succession
predecease, incapacity, or disinheritance. by right of representation (Id. at 381).
3. The right of Accretion applies to the free portion
when the requisites in Art. 1016 are present. 4. Rule of Equal Division
4. If there is no substitute, and the right of Relatives in the same degree shall inherit in
representation or accretion does not apply, the equal shares (CIVIL CODE, Art. 962).
rules on Intestate succession shall take over.
EXCEPTIONS:
RULES ON INTESTATE SUCCESSION: a. Division in the ascending line (between
1. Rule of Preference Between Lines paternal and maternal grandparents);
Those in the direct descending line shall exclude b. Division among brothers and sisters, some
those in the direct ascending and collateral of whom are of the full and others of half-
lines, and those in the direct ascending line blood;
shall, in turn, exclude those in the collateral line c. Division in cases where the right of
(Id. at 380). representation takes place; and
d. Division between legitimate and illegitimate
2. Rule of Proximity children (DE LEON, Succession, supra at
The relative nearest in degree excludes the 497).
more distant ones, saving the right of
representation when it properly takes place NOTE: This rule is subject to the rule of
(CIVIL CODE, Art. 962, par. 1). preference between lines (JURADO,
Succession, supra at 381).
This rule presupposes that all of the relatives
belong to the same line. It is subordinated to the Illustration:
rule of preference between lines (e.g., although
the son and the father of the decedent are both
one (1) degree removed from the latter, the son
shall exclude the father) (JURADO, Succession,
supra at 381).

3. Rule of Representation
It modifies the Rule of Proximity. The more
distant relatives belonging to the same class as
the person represented are raised to the place X is survived by his son, A, and his
and degree of such person and acquire the grandchildren, D, E and F. D is the child of a
rights which the latter would have acquired if he deceased son of X (B); E and F are the children
were living or if he could have inherited (Id. at of another deceased son of (C).
389).
It is clear that A shall inherit in his own right,
It is the means by which the descendants of a while the grandchildren shall inherit by right of
child, in default of the latter because of prior representation. D shall receive the share that
death, disinheritance, or incapacity, can take his would have gone to his father if the latter were
degree or place. It is superior to right of accretion alive; E and F shall also receive the share that
(Id.). would have gone to their father if the latter were
also alive. Hence, although they are all two
Illustration: If the decedent is survived by his degrees removed from the decedent, D shall
son, A, and by his grandchildren, C and D, receive twice as much as either E or F (Id. at
children of a deceased, or incapacitated, or 382-383).
disinherited child, B, under the law, C and D are
not excluded by A in the succession in spite of
the rule of proximity, because, by right of
representation, they are raised to the place and
degree of their deceased or incapacitated, or
disinherited father.
5. Rule of Barrier between the Legitimate incapacitated heir or heirs by right of accretion
Family and the Illegitimate Family (Iron (CIVIL CODE, Art. 968).
Curtain Rule)
The illegitimate family cannot inherit by intestate EXCEPTION: If the incapacitated heir happens to be
succession from the legitimate family and vice– a child or descendant of the decedent and he has
versa (CIVIL CODE, Art. 992). children or descendants of his own, then the share
which is rendered vacant by reason of incapacity
6. Rule of Double Share for Full Blood shall pass to such children or descendants by right
of representation (JURADO, Succession, supra at
Collaterals
386).
Should brothers and sisters of the full blood
survive together with brothers and sisters of the
half blood, the former shall be entitled to a share REPUDIATION
double that of the latter (CIVIL CODE, Art. 1. If by one or some of the relatives: his/their
1006). portion shall accrue to the others of the same
degree, save the right of representation when it
Children of brothers and sisters of the half-blood should take place (CIVIL CODE, Art. 968).
shall succeed per capita or per stirpes, in
accordance with the rules laid down for brothers 2. If by all of the relatives: those of the following
and sisters of the full blood (CIVIL CODE, Art. degree shall inherit in their own right. The
1008). inheritance shall be distributed among them per
capita (CIVIL CODE, Art. 969).
7. Rule of Division of Line
Decedent is survived by two (2) grandparents NOTE: In both instances, the right of representation
(GP) in the paternal line and one (1) GP in cannot be applied (JURADO, Succession, supra at
maternal, the inheritance shall be divided one 386).
half (½) to GPs in the paternal line, while one
half (½) to GP in the maternal line (CIVIL CODE, REASON: An heir who repudiates his inheritance
Art. 987). may not be represented (JURADO, Succession,
supra at 386).
RULES ON RELATIONSHIP:
Illustration (DE LEON, Succession, supra at 505):
1. Number of generations determines proximity;
2. Each generation forms a degree;
3. A series of degrees forms a line;
4. A line may be direct or collateral;
a. Direct Line
Constituted by the series of degrees among
ascendants and descendants (ascending
and descending).
b. Collateral Line
A, B, and C are the legitimate children of D. X and Y
Constituted by the series of degrees among
are the legitimate children of A; W, the legitimate
persons who are not ascendants or
child of B; and Z, the legitimate child of C. The value
descendants, but who come from a common
of the hereditary estate is P120,000.
ancestor.
1. If only B repudiates: A and C will get P60,000
5. Full blood (same father and mother) and half-
each. W is excluded because there is no right of
blood (only one of either parent is the same);
representation in case of repudiation (CIVIL
and (CIVIL CODE, Arts. 963 – 967).
CODE, Art. 977). X and Y are excluded by A,
6. In legal and intestate succession, the adopter(s)
and Z by C, because the nearer in degree
and the adoptee shall have reciprocal rights of
exclude the more distant (CIVIL CODE, Art.
succession without distinction from legitimate
962).
filiation. However, if the adoptee and his/her
biological parent(s) had left a will, the law on
2. If A, B, and C repudiate the inheritance: There
testamentary succession shall govern (R.A.
being no right of representation, the estate will
8552, Sec. 18).
be divided among the four grandchildren
P30,000 each in their own right (CIVIL CODE,
INCAPACITY Art. 977).
GENERAL RULE: The share or shares which are
rendered vacant shall pass to the co-heirs of the
3. If A, B, and C are all incapacitated or decedent by right of representation (JURADO,
predeceased: The grandchildren will inherit by Succession, supra at 390).
right of representation and not in their own right.
Hence, X and Y will each get P20,000. W gets NOTE: The subrogation or the representation
P40,000 and Z gets P40,000. (CIVIL CODE, Art. obtains degree by degree, the inferior one
974 and Art. 982). representing the relative immediately higher in
degree. No jump is made.
RIGHT OF ACCRETION
If there are several relatives of the same degree, and There is transmission only with respect to
one or some of them are unwilling or incapacitated inheritance conferred by law.
to succeed, his portion shall accrue to the others of
the same degree, save the right of representation In testamentary succession, it takes place only with
when it should take place (CIVIL CODE, Art. 968). respect to the legitime (JURADO, Succession, supra
at 395).
Illustration (DE LEON, Succession, supra at 503):
WHEN REPRESENTATION TAKES
PLACE: (PID)
1. Predecease (testate and intestate);
2. Incapacity (testate and intestate); and
3. Disinheritance (testate succession) (JURADO,
Succession, supra at 390).

A, B, and C are legitimate children of D. X and Y are In testamentary succession, since a vacancy in the
A’s legitimate children. The value of the hereditary inheritance occurs, the children or descendants of
estate is P60,000. the person represented are called to succeed by
right of representation. The person represented
If A is incapacitated: A’s share of P20,000 shall must be a compulsory heir of the testator in the direct
accrue to B and C unless a substitute has been descending line. (JURADO, Succession, supra at
appointed by D in which case, the substitute shall get 390)
P10,000, A’s share of the free portion. Hence, B and
C will each get P20,000 in his own right and P5,000 In legal or intestate succession, the basis, like that
by virtue of accretion. of other rights of succession which take effect by
operation of law, is the presumed will of the
A right created by fiction of law, by virtue of which decedent (JURADO, Succession, supra at p. 391)
the representative is raised to the place and degree
of the person represented, and acquires the rights CHARACTERISTICS:
which the latter would have if he were living or if he 1. It is a right of subrogation;
could have inherited (CIVIL CODE, Art. 970). 2. It is an exception to the rule on proximity and
equal division among relatives of the same class
By virtue of this right, the relative nearest in degree and degree;
does not always exclude the more remote ones 3. The representative is called to the succession by
(JURADO, Succession, supra at 389). the law and not by the person represented;
4. The representative succeeds the decedent not
The representative does not succeed the person the person represented;
represented but the one whom the person 5. The representative must himself be capable of
represented would have succeeded (JURADO, inheriting from the deceased (3 PARAS, supra
Succession, supra at 390). at 477)
6. It can only take place when there is a vacancy in
CONSEQUENCES: the inheritance brought about by either
1. Representative must be capable of succeeding predecease, or incapacity, or disinheritance of
the decedent; an heir; and
2. Even if the representative is incapable of 7. The right can be exercised only by the
succeeding the person represented, he can still grandchildren or descendants of the decedent
inherit by right of representation so long as he is (JURADO, Succession, supra at 389-390).
capable of succeeding the decedent; and
3. Even if the representative had repudiated his REPRESENTATION IN DIRECT
inheritance coming from the person DESCENDING LINE
represented, he can still inherit from the It takes place in the direct descending line, but never
in the ascending line (CIVIL CODE, Art. 972).
Occurs in the Following Cases: The right of representation does not take place in the
1. Children concur with grandchildren, the latter instant case. In the collateral line, representation
being the children of other children who died takes place only in favor of the children of brothers
before the decedent or who are incapable of and sisters, whether they be of the full or half blood
succeeding the decedent; (CIVIL CODE, Art. 972), and only if they survive with
2. All children are dead or are all incapable of at least one uncle or aunt who is a brother or sister
succeeding the decedent and grandchildren of the decedent (CIVIL CODE, Art. 975). Both
concur with great-grandchildren, the latter being conditions are not present here.
the children of other grandchildren who died
before the decedent or who are incapable of F is a grandnephew of the decedent C, not a
succeeding the decedent; and nephew. He concurs with a nephew of the decedent,
3. All children are dead or are all incapable of not with a brother or sister. Therefore, the only way
succeeding the decedent leaving children or by which he can inherit would be in his own right.
descendants of the same degree (JURADO, Unfortunately for him, under the principle of
Succession, supra at 392). proximity recognized in Art. 962, he is excluded by E
(JURADO, Succession supra at p. 393).
NOTE: In the descending line, the right of
representation is unlimited with regard to the REPRESENTATION BY ILLEGITIMATES
descendants who may succeed (3 TOLENTINO, By virtue of Arts. 989 and 990, illegitimate child can
supra at 450). represent only when the parent represented is an
illegitimate child of the decedent (the representative,
REPRESENTATION IN COLLATERAL the person represented, and the decedent are all
LINE related to each other by illegitimate filiation
An exceptional case where the right does not take (JURADO, Succession, supra at 417).
place in the direct descending line but in the
collateral line in favor of children of brothers and An illegitimate descendant of a legitimate child
sisters of the decedent, whether they may be of full cannot represent the latter for Article 992 prevents
blood or half-blood (JURADO, Succession, supra at intestate succession between an illegitimate child
392). and the legitimate relatives of his father or mother
(DE LEON, Succession, supra at 971).
LIMITATIONS:
1. The right can be exercised only by nephews and REPRESENTATION IN ADOPTION
nieces of the decedent, whether they be of the GENERAL RULE: Adopted child succeeds to the
full blood or half-blood; property of the adopter in the same manner as a
2. The right can be exercised by the nephews or legitimate child.
nieces of the decedent if they will concur with at
least one brother or sister of the decedent (CIVIL If the adopting parent should die before the adopted
CODE, Art. 975); child, the latter cannot represent the former in the
3. If the nephews and nieces are the only survivors, inheritance from the parents or ascendants of the
they shall inherit in their own right and not by adopter
right of representation (CIVIL CODE, Art. 972);
and The adopted child is not related to the parents or
4. The right is possible only in intestate succession ascendants of the adopter. Because the filiation
(JURADO, Succession, supra at 392-393). created by fiction of law is exclusively between the
5. The right cannot be exercised by grandnephews adopter and the adopted (3 TOLENTINO, supra at
and grandnieces (Delgado Vda. De Dela Rosa 448).
vs. Heirs of Marciana Rustia, G.R. No. 155733,
January 27, 2006). The legitimate children and descendants of the
adopted child cannot represent him in the
Illustration: A and B are C’s brothers. D is the child succession to the estate of the adopting parent (Id.
of A, and E at 448-449).
of B, while F is the child of D. C died without leaving
a will. A, B and D are likewise dead. May F inherit EXCEPTIONS (CIVIL CODE, Arts. 971 And 973):
from C? 1. An adopted cannot inherit from the legitimate
parents or ascendants of the adopter either by
Answer: F cannot inherit from C. True, he is a fourth representation or in his own right; and
degree relative by blood of the decedent, but he is 2. The legitimate children or descendants of the
excluded by E, a nephew, and therefore, a third adopted cannot also inherit from the adopter
degree relative by blood of said decedent. either by representation or in their own right (Id.
at 449).
The relationship established by adoption is limited when subsequently his grandfather dies (JURADO,
solely to the adopter and the adopted and does not Succession, supra 399-400).
extend to the relatives of the adopting parents or of
the adopted child except only as expressly provided REGULAR/NORMAL ORDER OF
for by law (Teotico v. Del Val, G.R. No. L-18753, SUCCESSION (DECEDENT IS A
March 26, 1965).
LEGITIMATE PERSON):
1. Legitimate children or descendants (LCD);
EFFECT UPON DIVISION OF ESTATE
2. Legitimate parents or ascendants (LPA);
Whenever there is succession by representation, the 3. Illegitimate children or descendants (ICD);
division of the estate shall be made per stirpes, in 4. Surviving spouse (SS);
such manner that the representatives shall not 5. Brothers and sisters, nephews and nieces
inherit more than what the person they represent (BS/NN);
would inherit, if he were living or could inherit (CIVIL 6. Other collateral relatives within the 5th degree
CODE, Art. 974). (C5); and
7. State (JURADO, Succession, supra at 401).
TESTAMENTARY INTESTATE
SUCCESSION SUCCESSION IRREGULAR/ABNORMAL ORDER OF
SUCCESSION (DECEDENT IS AN
The representative He acquires all of the
acquires all of the rights rights which the person ILLEGITIMATE PERSON):
which the person represented had with 1. Legitimate children or descendants (LCD);
represented had with respect to his entire 2. Illegitimate children or descendants (ICD);
respect to his legitime. legal portion. 3. Illegitimate parents (IP);
4. Surviving spouse (SS);
(JURADO, Succession, supra at 395) 5. Brothers and sisters, nephews and nieces
(BS/NN); and
SUCCESSION BY NEPHEWS AND 6. State (Id. at 401-402).
NIECES
When children of one or more brothers or sisters of The order of intestate succession is based both on
the deceased survive, they shall inherit from the the principle of exclusion and the principle of
latter by representation, if they survive with their concurrence (Id. at 403).
uncles or aunts. But if they alone survive, they shall
inherit in equal portions (CIVIL CODE, Art. 975). PRINCIPLE OF EXCLUSION
Where nephews or nieces concur with their uncles The heirs higher in the order of succession exclude
or aunt, the former inherit by right of representation those who were lower in that order of succession,
(per stirpes), while the latter in their own right (per except that when the latter are compulsory heirs they
capita) (DE LEON, Succession at 512). preserve their rights to legitime (3 TOLENTINO,
supra at 457).
Where nephews or nieces alone survive, without any
uncle or aunt, they inherit in their own right, and The principle of exclusion is still applied literally to
therefore, the division among them is per capita (Id.). the case of parents or ascendants, collateral
relatives, and the State. In the case of others, the
PER STIRPES PER CAPITA principle of concurrence applies (JURADO,
Succession, supra at 403).
Succession is by group, Succession is by head
with all those in the or one’s own rights, with PRINCIPLE OF CONCURRENCE
same degree within the descendants in the Under the principle of concurrence, the illegitimate
group inheriting in equal same degree inheriting children and the surviving spouse, who are not only
shares. equally. legal or intestate heirs but are also primary
(Id. at 511) compulsory heirs, even when they concur with
legitimate children and descendants or with
legitimate parents and ascendants, are not only
REPUDIATION BY REPRESENTATIVE entitled to their legitime, but are also given a share
A person may represent him whose inheritance he in the disposable free portion (Id.).
has renounced (CIVIL CODE, Art. 976).
Illustration: X is the testator. He has A & B as his
If a child renounces or repudiates his inheritance legitimate children and C as an illegitimate child. His
when his father died, he may still represent the latter, net estate is P80,000.
Following the rules on intestate succession, A & B SURVIVOR INTESTATE DIVISION
shall jointly receive half of the estate which is SHARE
P40,000 so each will get P20,000. C, on the other
hand, being an illegitimate child shall only receive insufficient,
P10,000. There shall be an excess of P30,000. How reduction must
shall the P30, 000 be divided? be made
according to
1. Exclusion theory: The P30,000 shall be divided the rules on
by A & B only. legitime. The
2. Concurrence theory: The P30,000 shall be legitime of LCD
divided among A, B & C. and SS shall
always be first
TABLE OF INTESTATE SHARES satisfied in
SURVIVOR INTESTATE DIVISION preference to
SHARE that of the ICD.

Any class Entire estate Rule of Proximity NOTE: The

alone (Art. 962 of the legitime of each
Civil Code) illegitimate
child shall
LCD; Entire estate; Rule of Proximity consist of 1/2 of
LPA Excluded (Art. 962 of the the legitime of
Civil Code) a legitimate
child (Art. 176,
1 LCD; 1/2; (Arcenas v. Cinco, Family Code)
SS 1/2 G.R. No. L-29288,
November 29, 2 or more First, satisfy the Concurrence or
1976) LCD; legitime. In Exclusion Theory
SS; case of excess
2 or more Consider SS as Concurrence ICD in the estate,
LCD; 1 LCD, and Theory distribute such
SS then divide excess in the
estate by total proportion
number. 2:2:1, in
accordance
LPA; 1/2; Art. 997 of the with the
SS 1/2 Civil Code concurrence
LPA; 1/2; Art. 991 of the theory.
ICD 1/2 Civil Code
1. DESCENDING DIRECT LINE
ICD; 1/2; Art. 998 of the
SS 1/2 Civil Code Includes Legitimate CD, Legitimated CD and
adopted children (JURADO, Succession, supra
LPA; 1/2; Art. 1000 of the at 404).
SS; 1/4; Civil Code
ICD 1/4 Legitimate children from the first and second
marriages are entitled to inherit, and failure to
IP; 1/2; The law is silent. include anyone of them makes the extrajudicial
SS 1/2 Apply settlement void (Neri v. Heirs of Uy, G.R. No.
concurrence 194366; October 10, 2012).
theory (JURADO,
Succession, Rules of Division
supra at 410). If the decedent is survived by legitimate children
or descendants, the rules are as follows:
SS; 1/2; Art. 1001 of the a. If all of the survivors are legitimate children,
BS/NN 1/2 Civil Code such children shall inherit in their own right.
Consequently, the inheritance shall be
1 LCD; First, satisfy the Concurrence or
divided among them per capita or in equal
SS; legitime. If Exclusion Theory
shares.
ICD estate would be
 b. If some of the survivors are legitimate TABLE OF INTESTATE SHARES IN THE
children and the others are legitimate ESTATE OF AN ADOPTED
descendants of other legitimate children
who died before the decedent, the former SURVIVOR INTESTATE SHARE
shall inherit in their own right and the latter
shall inherit by right of representation. LCD; Ordinary rules of
Consequently, the inheritance shall be ICD; intestate succession.
divided among them per stirpes. SS 2:2:1
c. If all of the survivors are legitimate
LPA/IP; 1/2;
grandchildren, such grandchildren shall
Adopter 1/2
inherit by right of representation. Similarly, if
some of the survivors are legitimate SS; 1/2;
grandchildren and the others are legitimate Adopters 1/2
children or descendants of other legitimate
grandchildren who died before or who are ICD; 1/2;
incapable of succeeding the decedent, such Adopters 1/2
grandchildren and descendants shall inherit
by right of representation (JURADO, ICD; 1/3;
Succession, supra at 405-406). SS; 1/3;
Adopters 1/3
Illustration (DE LEON, Succession, supra at 521):
Adopters alone Entire

Ordinary rules of
Collateral alone
intestate succession.
(FAMILY CODE, Art. 190).

NOTE: Art. 984 of the Civil Code has been

superseded by Art. 190 of the Family Code. Art.
190 of the Family Code applies only in legal or
intestate succession (DE LEON, Succession,
A is the decedent. B, C, D are his children. E, F, G, supra at 523-524).
H and J are the grandchildren. K and L are J’s
children. Estate is P900,000. B, C, D, and J 2. ASCENDING DIRECT LINE
predeceased A. Divide the property. In default of legitimate children and descendants
of the deceased, his parents and ascendants
Answer: E, F and G will divide B’s share of shall inherit from him, to the exclusion of
P300,000 equally. Each will get P100,000. collateral relatives (CIVIL CODE, Art. 985).

H will get C’s share of P300,000. The share of the parents or ascendants may be
subject to reserva troncal in cases where the
K, L, and M will divide D’s share of P300,000, as requisites are present.
follows: K – P150,000, and L and M – P75,000 each.
Rules of Division
a. Adopted Children a. In default of the mother and father, the rule
An adopted child succeeds to the property of the of proximity shall be applied. In other words,
adopting parents in the same manner as a the ascendants nearest in degree shall
legitimate child (CIVIL CODE, Art. 979). inherit.
b. Should there be more than one equal
An adopted child is entitled to all the rights and degree belonging to the same line, they
obligations provided by law to a legitimate shall divide the inheritance per capita
sons/daughters born to the adopters without (JURADO, Succession, supra at 415).
discrimination of any kind (R.A. No. 8552 or the
Domestic Adoption Act of 1998, Sec. 17). Illustration: If descendant is survived only by A,
paternal grandfather, and B and C, maternal
The adopter(s) and the adoptee shall have grandparents, ½ of the entire inheritance is
reciprocal rights of succession without given to A, while the other half shall be given to
distinction from legitimate filiation in legal and B and C, which they shall divide per capita (Id.).
intestate succession (R.A. No. 8552 or the
Domestic Adoption Act of 1998, Sec. 18).
3. ILLEGITIMATE CHILDREN b. E cannot represent B in the succession from
Illegitimate children exclude collaterals, in this A’s estate (CIVIL CODE, Art. 992).
sense, they are superior to the surviving spouse c. Both F and G can represent C who is
(Id. at 416). illegitimate (CIVIL CODE, Art. 990).

Principle of Absolute Separation Between 4. SURVIVING SPOUSE

the Legitimate Family and the Illegitimate He or she shall always inherit. The universal rule
Family (Barrier or Iron Curtain Rule) is that a legal heir who is also a primary
An illegitimate child has no right to inherit ab compulsory heir (surviving spouse) at the same
intestato from the legitimate children and time is always entitled to the legitime which the
relatives of his father or mother; neither shall law has reserved (JURADO, Succession, supra
such legitimate children or relatives inherit in the at 426).
same manner from the illegitimate child (CIVIL
CODE, Art. 992). Surviving spouse is placed in the same category
as each of the legitimate children state (Id.).
An impassable barrier exists separating or
dividing the members of legitimate family from TABLE OF SHARES (SURVIVING
those of the illegitimate family (JURADO, SPOUSE/SS)
Succession, supra at 419).
SS SURVIVES WITH INTESTATE SHARE
REASON: Intervening antagonism and
incompatibility between members of the SS gets the same share
legitimate family and those of the illegitimate LCD as that of each child
family (Id). (CIVIL CODE, Art. 996).

1. SS: ½
NOTE: Succession to the estate does not go
2. Parents/ascendants:
beyond the parents by nature (Id. at 422). LPA
½ (CIVIL CODE, Art.
997).
When the law speaks of brothers and sisters,
nephews and nieces, as legal heirs of an 1. SS: ½
illegitimate child, it refers to illegitimate brothers 2. Illegitimate children
and sisters as well as the child whether lCD or ICD’s
or illegitimate
legitimate or illegitimate of such brothers and descendants (whether
children’s
sisters legitimate or
descendants: ½
illegitimate)
(CIVIL CODE, Art.
In default of brothers and sisters, nephews and 998).
nieces, the law does not go any farther, other
collaterals are not allowed to inherit by intestate 1. LCD/s: ½
succession from the illegitimate child, the entire LCD/s and ICD/s or 2. SS:1 LCD;
estate shall pass to the state (JURADO, their descendants 3. ICD: ½ of 1 LCD
Succession, supra at 425). (whether legitimate or
illegitimate) If only 1 LCD: 2:2:1
Illustration (DE LEON, Succession, supra at (CIVIL CODE, Art. 999).
533):
1. LPA: ½
2. SS: ¼
LPA and IC
3. ICD: ¼ (CIVIL
CODE, Art. 1000).

1. SS: ½
BS/NN 2. BS/NN: ½ (CIVIL
CODE, Art. 1001).

In case of a legal separation, if the surviving

spouse gave cause for the legal separation, he
or she shall not have any of the rights granted in
B and C predecease A, decedent. D, E, F, and the preceding articles (CIVIL CODE, Art. 1002).
G are the four grandchildren who survived.
a. D can represent his father B in the Illustration: If the decedent, for instance, is
succession from X’s estate. survived by his widow and four legitimate
 children, and the inheritance is P60,000, the Illustration (JURADO, Succession, supra at
method of distribution would be merely to divide 448):
the P60,000 by five. The result would be
P12,000 for each, of the survivors (JURADO,
Succession, supra at 426).

5. COLLATERAL RELATIVES
They can only refer to those within the fifth
degree (CIVIL CODE, Art. 1010).

Rule of Proximity (CIVIL CODE, Art. 962).

GENERAL RULE: Where two (2) or more
collaterals concur in the succession, the nearest
in degree shall exclude the more remote one. X is the decedent who is survived by:
a. A, a brother of the full blood;
EXCEPTION: Right of Representation in the b. D and E, nephews of the full blood, children of
collateral line is recognized but extended only to B, another brother of the full blood who had
nephews and nieces. predeceased X; and
c. F and G, nephews of the half blood, children
Rule of Preference of C, a brother of half-blood, who also had
Where survivors are of the same degree, the predeceased X.
Rule of Preference by reason of relationship by
the whole blood is also recognized but can be The decedent’s estate is P25,000. How shall it
applied only to brothers and sisters or nephews be distributed?
and nieces and not to other collaterals
(JURADO, Succession, supra at 445). This Answer: The P25,000 shall be divided into three
means that should brothers and sisters of the full shares in the proportion of 2:2:1 (CIVIL CODE,
blood survive together with brothers and sisters Arts. 975, 1005, and 1006).
of the half blood, the former shall be entitled to a
share double that of the latter (CIVIL CODE, Art. A shall be entitled to 2/5 of P25,000, or P10,000;
1006). D and E shall also be entitled to 2/5 of P25,000
or P10,000, by right of representation; while F
Should brothers and sisters survive together and G shall be entitled to only 1/5, or P5,000, by
with nephew and nieces, who are children of the right of representation.
decedent’s brothers and sisters of the full blood,
the former shall inherit per capita, and the latter Consequently, the distribution shall be as
per stirpes (CIVIL CODE, Art. 1005). follows:
A = P10,000, in his own right
If the only survivors are nephews and nieces of D = P5,000, by right of representation
the full or of the half blood, they shall succeed to E = P5,000, by right of representation
the entire inheritance in their own right. The rule F = P2,500, by right of representation
of preference by reason of blood relationship G = P2,500, by right of representation
may be applied (JURADO, Succession, supra at P25,000
449). Which also means that nephews and
nieces of the full blood shall be entitled to a Should there be neither brothers and sisters, nor
share double that of the half-blood (CIVIL children of brothers and sisters, the other
CODE, Art. 1008). collateral relatives shall succeed to the estate.
They shall succeed without distinction of lines or
preference among them by reason of
relationship by the whole blood (CIVIL CODE,
Art. 1009).

6. STATE
In default of LCD, PA, ICD, SS and collateral
relatives within the 5th degree (CIVIL CODE, Art.
1003).

In order that the State may take possession of

the property of the decedent, the procedure for
 Escheat (RULES OF COURT, Rule 91) must be Within five years from the date of the judgment
observed. (RULES OF COURT, Rule 91, Sec. 4).

Escheat CARDINAL PRINCIPLES OF INTESTATE

A proceeding, unlike that of succession or SUCCESSION
assignment, whereby the state, by virtue of its
1. Even if there is an order of intestate succession,
sovereignty, steps in and claims the real or
the Compulsory Heirs (CH) are never excluded.
personal property of a person who dies intestate
2. Right of Representation (RR) in the collateral
leaving no heir (Republic v. CA and Solano, G.R.
line occurs only in intestate succession; never in
No. 143483, January 31, 2002).
testamentary succession because a voluntary
heir cannot be represented as provided in Art.
Requisites for Escheat: (IP-No)
856 (1).
a. The decedent died Intestate;
3. The intestate shares are either equal to or
b. He dies seized of real and/or personal
greater than the legitime.
property located in the Philippines; and
4. GENERAL RULE: Grandchildren always inherit
c. He leaves no heir or person entitled to such
by RR, provided representation is proper.
real and personal property (JURADO,
EXCEPTION: Whenever all the children
Succession, supra at 453-454).
repudiate, the grandchildren inherit in their own
right because RR would not be proper.
PURPOSE: In the absence of a lawful owner, a
property is claimed by the state to forestall an
5. Nephews and nieces inherit either by RR or in
open "invitation to self-service by the first
their Own Right (OR).
comers” (RCBC v. Hi-Tri Development
a. RR: when they concur with aunts and uncles
Corporation, G.R. No. 192413, June 13, 2012).
(provided that RR is proper).
b. OR: when they do not concur with aunts and
Assignment of Property
uncles.
If personal property, it is the city or municipality
where the deceased last resided in the Philippines
6. ICD of legitimates cannot represent because of
(CIVIL CODE, Art. 1013).
the barrier, but both the ICD and LCD of
illegitimates can.
If real property, it is the city or municipality in which
7. There can be reserva troncal in intestate
the property is situated (CIVIL CODE, Art. 1013).
succession.
8. A renouncer can represent, but cannot be
EXCEPTION: If the deceased never resided in the
represented (CIVIL CODE, Art. 976).
Philippines – respective cities or municipalities
9. A person who cannot represent a near relative
where the real or personal property is located (CIVIL
cannot also represent a relative farther in degree
CODE, Art. 1013).
(3 PARAS, supra at 531-533).
NOTE: Such estate shall be for the benefit of public
schools and public charitable institutions and
centers in such municipalities or cities. The court
shall distribute the estate as the respective needs of MIXED SUCCESSION
each beneficiary may warrant (CIVIL CODE, Art.
1013).
AND PARTIAL
INTESTACY
The court, at the instance of an interested party, or
on its own motion, may order the establishment of a
permanent trust, so that only the income from the
property shall be used (CIVIL CODE, Art. 1013). MIXED SUCCESSION
Succession that is effected partly by will and partly
When to File a Claim by operation of law (CIVIL CODE, Art. 780).
A person who is legally entitled to the estate of the
deceased may, within five years from the date the In other words, if the testator makes a will which
property was delivered to the State, file a claim for does not dispose all of his property, the result is what
the possession of the same, or if sold, the city or is known as mixed succession (JURADO,
municipality shall be accountable to him for such part Succession, supra at 16).
of the proceeds as may not have been lawfully spent
(CIVIL CODE, Art. 1014). The rules of legal intestate succession shall be
applied with respect to those properties not disposed
of (Id. at 378).
Rules: devise, or to the same portion thereof, pro
1. The legitimes of compulsory heirs shall be indiviso; and
applied even in mixed succession. One who has b. There must be a Vacancy in the inheritance,
compulsory heirs may dispose of his estate legacy or devise (caused by predecease,
provided he does not contravene the provisions incapacity, repudiation, non-fulfillment of
of this code with regard to the legitime of said suspensive condition, or void or ineffective
heirs (CIVIL CODE, Art. 842, par. 2). testamentary dispositions) (CIVIL CODE,
2. In case the testamentary disposition reduces the Art. 1016; JURADO, Succession, supra at
legitime, the reduction shall be borne pro rata by 464).
all intestate heirs from their shares in the
disposable portion but never from the legitimes Requisites of Art. 1016, No. 1 (Pro Indiviso):
(3 PARAS, supra at 479). (UPA)
a. Unity in the object, that is, a single thing
Illustration: whether it be an inheritance, a portion of an
If among the concurring intestate heirs there are inheritance, or a specific thing;
compulsory heirs whose legal or intestate b. Plurality in the subject matter, that is,
portions exceed their respective legitimes, then several persons, heirs or legatees called to
the amount of the testamentary disposition must be that single thing; and
deducted from the disposable free portion to be c. Absence of any designation as to the share
borne by all the intestate heirs in the proportions that of each in the thing (CAGUIOA, Civil Law,
they are entitled to receive from such disposable free supra at 413)
portion as intestate heirs.
How to Avoid Accretion:
If the intestate share of a compulsory heir is a. By expressly designating a substitute; and
equal to his legitime, then the amount of the b. By expressly providing that although
testamentary disposition must be deducted only accretion may take place, decedent does
from the intestate shares of the others, in the not want accretion to occur (3 PARAS,
proportions stated above. supra at 537).

If the testamentary dispositions consume the NOTE: Accretion is a right (CIVIL CODE, Art.
entire disposable free portion, then the intestate 1015), not an obligation, and may therefore be
heirs who are compulsory heirs will get only their accepted or repudiated by those entitled. This is
legitime, and those who are not compulsory heirs will true in both testate and legal succession (Ynza
get nothing. v. Rodriguez, et al., G.R. No. L-6395, June 30,
1954).

Effects of Predecease, Incapacity,

PROVISIONS COMMON Disinheritance, or Repudiation in both
Testamentary and Intestate Succession
TO INTESTATE AND
TESTATE SUCCESSION Legend:
RR – Right of Representation
(ARTS. 1015-1105) A – Right of Accretion
IS – Intestate Succession
S – Substitution

1. RIGHT OF ACCRETION Testamentary

When two (2) or more persons are called to the Intestate
Cause of Succession Successi
same inheritance, devise or legacy, the part
assigned to the one who renounces or cannot Vacancy Free on
receive his share, or who died before the Legitime
Portion
testator, is added or incorporated to that of his
co-heirs, co-devisees, or co-legatees (CIVIL 1. RR 1. A 1. RR
Predecease
CODE, Art. 1015). 2. IS 2. IS 2. IS

Requisites of Right of Accretion: (2V)

a. Two (2) or more persons must have been
called to the same inheritance, legacy or
 Illustration:
Testamentary Intestate Testate Succession
Cause of Succession Successi
Vacancy Free on
Legitime
Portion

1. RR 1. A
Incapacity -
2. IS 2. IS

Disinheritanc 1. RR
_ _
e 2. IS

Repudiation 1. IS 1. A 1. A
(JURADO, Succession, supra at 470).

Summary of the Effects

a. Testamentary Succession
i. Legitime
(1) In case of predecease of an heir,
there is representation if there are
children or descendants; if none, the
others inherit in their own right. Decedent D who has an estate of P3,000,000 is
(2) In case of incapacity, results are the survived by:
same as in predecease. a. wife W;
(3) In case of disinheritance, results are b. children A, B, C;
the same as in predecease. c. parents, F and M;
(4) In case of repudiation by an heir, the d. illegitimate child IC, his child with girlfriend;
others inherit in their own right. and
ii. Disposable free portion e. paternal grandfather and maternal
Accretion takes place when requisites in grandmother.
Art. 1016, Civil Code are present; if not, A has children, E and F while C has children, G,
the others inherit in their own right. H, and I. D instituted A to 1/2, B to 1/4 and C to
1/4 (to the free portion).
b. Intestate Succession
i. In case of predecease, there is Assuming that C died, in case of predecease, his
representation if there are children or share in the legitime will be given to G, H, I by
descendants; if none, the others inherit right of representation.
in their own right.
ii. In case of incapacity, results are the Will C’s share in the free portion be given to A
same as in predecease. and B by right of accretion?
iii. In case of repudiation, there is always
accretion (Id.). Answer: No. Art. 1016 requires that 2 or more
heirs must be called in the same inheritance pro
NOTE: Whether the succession is testamentary indiviso (jointly instituted). C’s share in the free
or intestate, if the right of accretion takes place, portion will go to D’s legal heirs pursuant to Art.
the heirs to whom the vacant share or portion is 1022 of the Civil Code, which provides that in
assigned shall divide it in the same portion that testamentary succession, when the right of
they inherit (Id. at 468). accretion does not take place, the vacant portion
In testamentary succession, where the share of the instituted heirs, if no substitute has been
rendered vacant is the share of a compulsory designated, shall pass to the legal heirs of the
heirs, only that part of the share which is taken testator, who shall receive it with the same
from the disposable free portion shall pass to the charges and obligations.
co-heirs by right to accretion.
If C is incapacitated to succeed under Art. 1028
In intestate succession, the entire share which is or 1027, to whom shall you give the 500k
rendered vacant shall pass to the co-heirs by legitime? Will it be given to G, H, I?
right of accretion (Id. at 468-469).
Answer: No. C will still receive his legitime, if he
is incapacitated under Art. 1027 or 1028; he will
only be rendered incapacitated as to the free
 portion. The free portion shall be distributed (1) Testamentary disposition in favor of
pursuant to Art. 1022. associations for religious, scientific,
cultural, educational, or charitable
If the incapacity is under Art. 1032, his share will purposes (CIVIL CODE, Art. 1026).
now be given to G, H, I because unworthiness (2) Testamentary disposition in favor of
now affects both the legitime and free portion. a church or denomination to which
the testator may belong for prayers
Intestate Succession or pious works (CIVIL CODE, Art.
1029).
(3) Testamentary disposition in favor of
the poor in general (CIVIL CODE,
Art. 1030).
(4) When the child although not yet born
is already conceived at the time of
the death of the decedent and it is
born later under the conditions
prescribed in the Civil Code, Art. 41.
ii. Those who cannot be identified –
uncertain persons (Persona Incierta)
(CIVIL CODE, Art. 845).
iii. Those who are not permitted by law to
inherit (CIVIL CODE, Art. 1027, par. C,
No. 6).
Decedent D who has an estate of P3,000,000 is
survived by his wife W, children A, B, C, and
b. Relative Incapacity– by reason of special
parents, F and M. A has children, E and F while
relation.
C has children, G, H, and I.
i. Based on Undue Influence or
Interest: (PR-GAP)
If C repudiates, A and B will get 1.5M each by
1. Priest who heard the confession of
right of accretion. C, who repudiated, cannot be
the testator during his last illness, or
represented (CIVIL CODE, Arts. 687 and 977).
the minister of the gospel who
extended spiritual aid to him during
If C predeceases, his share will go to G, H, I by
the same period (CIVIL CODE Art.
right of representation (CIVIL CODE, Art. 968
1027, par. 1).
and 972).
Requisites: (EDI)
If I predeceases, his share will go to G and H by
a. The will must have been
right of accretion (CIVIL CODE, Art. 968).
Executed during the last illness
and after the confession
Now for the ascending line, assuming this time
because if it were before, the
that there is also paternal grandfather GF and
reason for the incapacity does
maternal grandmother MGM. If F predeceases,
not exist;
by right of accretion,
b. That the testator Died of the
illness wherein the confession
2. CAPACITY TO SUCCEED BY WILL was made even though there
OR INTESTACY should exist an interval
Requisites: (LE-Not-ID) between the confession and the
a. The heir, legatee/devisee must be Living or death or that the death proceed
in Existence at the moment the succession from an accident which may or
opens; and may not proceed from said
b. He must not be Incapacitated or illness; and
Disqualified by law to succeed (JURADO, c. That the disposition in the will
Succession, supra. at 481). should be In favor of said priest
or minister, his relative within
Kinds of Incapacity to Succeed: the fourth (4th) degree or his
a. Absolute Incapacity– incapacitated to church (CAGUIOA, Civil Law,
succeed in any form. supra at 425).
i. Those not living at the time of death,
except: The basis of disqualification is
the presumption that at the
 threshold of death the testator Characteristics:
becomes an easy prey to the a. Possible only in testamentary
scheming priest or minister succession;
(JURADO, Succession, supra b. Relative in character; and
at 484). c. Partial, in the sense that if the heir
who is incapacitated or disqualified
According to Sanchez Roman, is a compulsory heir, only the free
should the testator recover from portion given to him is affected, but
his last illness and does not not his legitime (JURADO,
revoke the disposition, the Succession, supra at 483-484).
disposition is still invalid. The
only way to make it valid is to NOTE: The incapacity of the guardian
reproduce the invalid only exists prior to the rendition of final
disposition to a new will. accounts and the approval thereof since
Contrary views, however, state the law wants to prevent the guardian
that if the testator fully from aspiring to the inheritance to cover
recovered from his last illness up any mismanagement during his
and there is sufficient time for guardianship. Therefore, the
him to revoke the will and yet he determining factor is the final approval
did not do so, the same shall be of the final accounts. If there is such
considered as valid (CAGUIOA, approval, the guardian is not
Civil Law, supra at 424). incapacitated but if there is no such
approval, the guardian is incapacitated
2. Relatives of such priest or minister of (CAGUOIA, Civil Law, supra at 425).
the gospel within the 4th degree, the
church, order, chapter, community, 4. Attesting witness to the execution of a will,
organization or institution to which such the spouse, parents or children, or any one
priest or minister may belong (CIVIL claiming under such witness, spouse,
CODE, Art. 1027, par. 2). parents, or children (CIVIL CODE, Art. 1027,
par. 4).
The law does not include among the
persons disqualified the spouse of the Such disqualification does not apply “if there
priest or minister (JURADO, are three other competent witness” to the
Succession, supra at 485). execution of the will (CIVIL CODE, Art. 823).

3. Guardian with respect to testamentary 5. Physician, surgeon, nurse, health officer or

dispositions given by a ward in his favor druggist who took care of the testator during
before the final accounts of the his last illness (CIVIL CODE, Art. 1027, par.
guardianship have been approved, 5).
even if the testator should die after the
approval thereof; nevertheless, any The disqualification does not extend to the
provision made by the ward in favor of relatives of the physician or nurse, or to the
the guardian when the latter is his organization or institution to which such
ascendant, descendant, brother, sister, physician or nurse may belong (JURADO,
or spouse, shall be valid (CIVIL CODE, Succession, supra at 486).
Art. 1027, par. 3).
Not applicable if the one who took care of
Not applicable if the guardian is an the testator is his spouse, ascendant or
ascendant, descendant, brother, sister, descendant (Id.).
or spouse of the testator (JURADO,
Succession, supra at 485). ii. Based on Morality or Public Policy
The provisions mentioned in Art. 739 of
Requisites: the Civil Code, concerning donation
a. The will was executed by the ward inter vivos shall apply to testamentary
in favor of the guardian; and provisions (CIVIL CODE, Art. 1028).
b. It was executed before the final
accounts of the guardianship have The following donations are VOID:
been approved; even if the testator (ACP)
should die after the approval thereof (1) Those made in favor of a person
(3 PARAS, supra at 573). with whom the testator was guilty of
 Adultery or concubinage at the time Deaths occasioned by crime
of the making of the will (violent deaths) are prosecuted de
(Nepomuceno v. CA, G.R. No. L- oficio or at the instance of the
62952, October 9, 1985; Joaquino government, and thus no one is
v. Reyes, G.R. No. 154645, July required to make any accusation (3
13, 2004); TOLENTINO, supra at 529).

NOTE: Previous criminal conviction In this jurisdiction, there is no

is NOT necessary (JURADO, obligation imposed by the law to
Succession, supra at 487). make an accusation in such cases
(JURADO, Succession, supra at
(2) Those made in consideration of a 492).
Crime of which both the testator
and the beneficiary have been (5) Any person convicted of Adultery or
found guilty; and concubinage with the spouse of the
testator;
NOTE: Previous criminal conviction
is necessary (Id.). The spouse is not included. The
only time the guilty spouse shall not
(3) Those made in favor of a Public inherit is when the offended spouse
officer or his spouse, descendants act positively either by securing a
and ascendants, by reason of his decree of legal separation or by
public office (CIVIL CODE, Art. disinheriting him or her (Id.).
739).
(6) Any person who by Fraud, violence,
Characteristics: intimidation, or undue influence
1.) Possible only in testamentary should cause the testator to make a
succession; will or to change one already made;
2.) Relative in character; and (7) Any person who by the same
3.) Partial, in the sense that if the heir means Prevents another from
who is incapacitated or disqualified making a will, or from revoking one
is a compulsory heir, only the free already made, or who supplants,
portion given to him is affected, but conceals, or alters the latter's will;
not his legitime (JURADO, and
Succession, supra at 484). (8) Any person who Falsifies or forges
a supposed will of the decedent
iii. Based on Acts of Unworthiness (CIVIL CODE, Art. 1032).
(A4F3P)
(1) Parents who have Abandoned their Characteristics:
children or induced their daughters (1) Based on offenses committed by
to lead a corrupt or immoral life, or the disqualified person against
attempted against their virtue; the decedent which renders him
(2) Any person who has been convicted unworthy to succeed;
of an Attempt against the life of the (2) Applicable BOTH in testamentary
testator, his/her spouse, and legal succession; and
descendants or ascendants; (3) Although relative in character, it is
(3) Any person who has Accused the total in the sense that it extends
testator of a crime for which the law not only to the free portion but
prescribes imprisonment for 6 years also to the legitime (JURADO,
or more, if the accusation has been Succession, supra at 491).
found groundless;
(4) Any heir of full age who, having iv. By Operation of Law (LIP)
knowledge of the violent death of the (1) Incapacity of the guilty spouse to
testator, should Fail to report it to an inherit from the innocent spouse if
officer of the law within a month, there is a decree of Legal
unless the authorities have already separation (FAMILY CODE, Art.
taken action; this prohibition shall not 63, par.4);
apply to cases wherein, according to (2) Incapacity of Illegitimate children
law, there is no obligation to make an and legitimate relatives of the
accusation;
 decedent to inherit from each As to When it Takes Place
other (CIVIL CODE, Art. 992);
(3) Individuals, associations and Can take place in either Can take place only in
corporations not Permitted by law testamentary or testamentary
to inherit (CIVIL CODE, Art. 1027, intestate succession. succession.
par. 6).
As to Whether it Can Be Revoked
Pardon of Acts of Unworthiness
Reconciliation between the testator and the Cannot be revoked. Revoked when the
offender will render the disinheritance testator revokes the will
ineffective, and the heir will be restored to his or the institution.
inheritance. But if the testator has not made an (JURADO, Succession, supra at 493-494).
express disinheritance, then the laws on
disinheritance cannot operate; the rules on Effect of Pardon
unworthiness must apply, and the capacity of The heir is restored to full capacity to succeed
the heir can be restored only by the means of the decedent, as if the cause of unworthiness
pardon (3 TOLENTINO, supra at 538). had never existed (DE LEON, Succession,
supra at 594).
Only the decedent himself can erase the effects
of acts of unworthiness (JURADO, Succession, Time to Determine the Capacity
supra at 493). GENERAL RULE: At the moment of the death
of the decedent.
The act of the decedent in pardoning an act of
unworthiness must not be confused with EXCEPTIONS:
reconciliation. The first is a unilateral act, while
the second is a bilateral act requiring the TIME TO DETERMINE
DISQUALIFIED HEIR
concurrence of the offender. Under the Civil CAPACITY
Code, a subsequent reconciliation between the Under Art. 1032 of the Necessary to wait until
offender and the offended person deprives the Civil Code: final judgment is
latter of the right to disinherit, and renders 1. Par. (2) –Any person rendered.
ineffectual any disinheritance that may have who has been
been made. It cannot, however, erase the convicted of an
effects of an act of unworthiness (Id. at 494). attempt against the
life of the testator,
Executive clemency, or pardon by the President his or her spouse,
does not erase the unworthiness or incapacity of descendants,
the heir (3 TOLENTINO, supra at 537; 5 ascendants.
Valverde 450; 2 Camus 124). 2. Par. (3) –Any person
who has accused the
EXPRESS V. IMPLIED PARDON testator of a crime for
EXPRESS IMPLIED which the law
PARDON PARDON prescribes
imprisonment for 6
As to How it is Made years or more, if the
accusation has been
Made by the execution Effected when testator found groundless
of a document or any makes a will instituting 3. Par. (5) –Any person
writing in which the the unworthy heir with convicted of adultery
decedent condones the knowledge of the cause and concubinage
cause of incapacity. of incapacity. with the spouse of
the testator.

Under Art. 1032 of the Necessary to wait for 1

Civil Code: month.

Par. (4) Any heir of full

age who, having
knowledge of the violent
death of the testator,
should fail to report it to
 TIME TO DETERMINE 3. ACCEPTANCE AND REPUDIATION
DISQUALIFIED HEIR
CAPACITY OF INHERITANCE
ACCEPTANCE
an officer of the law The act by virtue of which an heir, legatee or
within a month. devisee manifests his desire in accordance with
the formalities prescribed by law to succeed to
If the institution of the Time of the compliance
the inheritance, legacy or devise (JURADO,
heirs, legacy or devise is with the condition shall
Succession, supra at 501).
conditional. be considered.
(JURADO, Succession, supra at 495-496). REPUDIATION
The act by virtue of which an heir, legatee or
Prescription: The action for a declaration of devisee manifests his desire in accordance with
incapacity and recovery of the inheritance, the formalities prescribed by law NOT to
devise or legacy shall be five (5) years from the succeed to the inheritance, legacy or devise
time the disqualified person took possession (Id.).
thereof. It may be brought by anyone who may
have an interest in the succession (CIVIL
CODE, Art. 1040). Characteristics: (VIR)
a. Voluntary and free (CIVIL CODE, Art. 1041);
Effect of Incapacity upon Compulsory Heirs b. Irrevocable, except if there is vitiation of
a. Incapacity based on Undue Influence consent or an unknown will appears (CIVIL
(CIVIL CODE, Art. 1027) and Morality or CODE, Art. 1056); and
Public Policy (CIVIL CODE, Art. 739) c. Retroactive (CIVIL CODE, Art. 1042).
Only the free portion given to the heir is
affected, but not his legitime (JURADO, Requisites:
Succession, supra at 496). a. Certainty of the Death of the decedent; and
b. Incapacity based on act of unworthiness b. Certainty of the Right to the inheritance
(CIVIL CODE, Art. 1032) (CIVIL CODE, Art. 1043).
Disqualifies a compulsory heir from
succeeding even to his legitime. ACCEPTANCE V. REPUDIATION
i. In Testamentary Succession: ACCEPTANCE REPUDIATION
Children or descendants of the
As to the Effect of Transmission of Rights
unworthy child or descendant shall
acquire his right to the legitime. Acceptance involves Repudiation renders
ii. In Intestate Succession: Children or the confirmation or such transmission
descendants of the unworthy child or transmission of ineffective.
descendant shall succeed to the entire successional rights.
share which is rendered vacant.
As to the Nature of the Act
NOTE: Both (i) and (ii) applies only if the
compulsory heir is a child or descendant of Acceptance can be Repudiation is
the decedent. presumed from equivalent to an act of
disposition, as an disposition and
Remedies Against Disqualified Heir incident of ownership. alienation.
In case the disqualified heir, devisee or legatee
has already taken possession of the property, As to Whether it May Be Presumed or Not
the remedy is an action for:
a. Declaration of incapacity; As it is more usual to Repudiation being, in
b. Recovery of the inheritance, devise or accept than to reject an effect, an act or
legacy (CIVIL CODE, Art. 1040); advantage or benefit, disposition, requires
c. The disqualified heir shall be considered as acceptance may be greater capacity and
possessor in bad faith; hence, he is obliged presumed. more formalities than
to return the hereditary property together acceptance.
with its accessions; and (JURADO, Succession, supra at 506-507).
d. Being in bad faith the disqualified heir shall
always be liable for damages (3 PARAS, Similarities between Acceptance and
supra at 574). Repudiation
a. Being free and voluntary acts, the presence
of any of the causes which vitiate consent
 (i.e. mistake, violence, intimidation, undue
Kinds of Acceptance Repudiation
influence, or fraud) will render them without
Heirs
effect;
b. Both are subsequent to the death of the May accept May repudiate
decedent but their effect retroacts to the Married without her without her
moment of said death; and Woman husband’s husband’s
c. There can be partial acceptance and consent consent
repudiation, since the law does not prohibit
this. If the devisee or legatee may accept or If literate, by If literate, by
repudiate partially, then an heir may also do themselves or themselves or
so provided only that he may not accept the through an through an
gratuitous part and repudiate the onerous agent. agent.
part (3 PARAS, supra at 579). Deaf-Mutes
If illiterate, by If illiterate, by
their guardian their guardian
WHO MAY ACCEPT OR REPUDIATE WITH judicial
INHERITANCE approval
Kinds of Acceptance Repudiation If the heir Creditors may
Heirs repudiates the not repudiate
inheritance,
Any person Any person creditor may
having the free having the free petition the
In General
disposal of his disposal of his court to
property property authorize them
Heir’s
to accept it in
Guardian or Guardian or Creditors
the name of the
Minors & legal legal
heir only to the
Incapacitated representative representative
extent
(e.g., deaf- WITH judicial
sufficient to
mute who authorization cover the
cannot read amount of their
and write,
credits.
under civil
interdiction)
Manner of Acceptance
1. Express Acceptance
– One made in a public or private document.
Person Beneficiaries
designated by themselves 2. Tacit Acceptance
the testator to once they are – One resulting from acts by which the intention
determine the determined to accept is necessarily implied or which one
If the
beneficiaries (CIVIL CODE, would have no right to do except in the capacity
Beneficiary is
and to Art. 1044) of an heir (CIVIL CODE, Art. 1049).
the Poor
distribute the
property. Tacit acceptance is presumed from certain acts
In default, the of the heir as: (SR2-DAP-C2E2F)
executor. 1. If he Sells, donates, or assigns his right;
2. If he Renounces it, even though gratuitously, for
If the Legal Legal the benefit of one or more his co-heirs;
Beneficiary is representative representative 3. If he Renounces it for a price in favor of all his
a WITH judicial co-heirs indiscriminately; and
Corporation, authorization
Association, NOTE: These are acts of disposition, acts which
Institution, or only the owner is empowered to perform.
Entity (JURADO, Succession, supra at 506).
Public Official With the With the 4. Other acts of tacit acceptance:
Establishmen government’s government’s a. Heir Demands partition of the inheritance;
t approval approval b. Heir Alienates some objects of the
inheritance;
 c. Acts of Preservation or administration if, which is understood for legal purposes as an
through such acts, the title or capacity of heir advance from the inheritance (JURADO,
has been assumed; Succession, supra at 511).
d. Filing of a Complaint for the partition of
inheritance; Operations Related to Collation: (CIR2)
e. Compromises regarding objects and rights a. Collation – adding to the mass of the
included in the inheritance; hereditary estate the value of the donation
f. Exercise of any action which pertained to or gratuitous disposition;
the decedent during his lifetime and which b. Imputing or Charging– crediting the
survives; donation as an advance on the legitime (if
g. Enjoyment of the inheritance itself; and the donee is a compulsory heir) or on the
h. Under Art. 1057, Failure to signify free portion (if the donee is a stranger).
acceptance or repudiation within thirty (30) c. Reduction – determining to what extent the
days after an order of distribution by the donation will remain and to what extent it is
probate court (Id.). excessive or inofficious.
d. Restitution – return or payment of the
Manner of Repudiation (PAB-JA) excess to the mass of hereditary estate.
a. Public instrument (acknowledged before a
notary public). Concepts of Collation (FIR)
b. Authentic document (equivalent of an a. Fictitious mathematical process of adding
indubitable writing; or a writing whose the value of the thing donated to the net
authenticity is admitted or proved); or value of the hereditary estate;
c. By petition presented to the court having
jurisdiction over the testamentary or PURPOSE: To compute the legitime of
intestate proceeding (Id.). compulsory heirs.
d. In case of inheritance left to minors or
incapacitated persons, parents or guardians b. Act of charging or Imputing such value
may repudiate the inheritance left to their against the legitime of the compulsory heir
wards only by Judicial Authorization (CIVIL to whom the thing was donated; and
CODE, Art. 1044).
PURPOSE: To take the donations in the
Heir in Two Capacities account of partition in order to equalize the
An heir who is such by will and by law, and who shares of the compulsory heirs as much as
repudiates the inheritance as a testamentary possible.
heir, will be considered to have repudiated the
inheritance in both capacities. But when an heir c. Actual act of Restoring to the hereditary
repudiates as a legal heir without knowledge of estate that part of the donation which is
his being a testamentary heir, he may later on inofficious in order not to impair the legitime
accept as a testamentary heir (CIVIL CODE, Art. of compulsory heirs (JURADO, Succession,
1055; JURADO, Succession, supra at 509). supra at 315).

Effect of Acceptance and Repudiation Obligation to Collate

GENERAL RULE: Irrevocable Every compulsory heir, who succeeds with other
compulsory heirs must bring into the mass of the
EXCEPTIONS: estate any property or right which he may
a. If made through any of the causes that receive from the decedent, during the lifetime of
vitiates consent (e.g. mistake, violence, the latter, by way of donation, or any other
intimidation, undue influence and fraud); gratuitous title, in order that it may be computed
and in the determination of the legitime of each heir,
b. When an unknown will appears, provided and in the account of partition (CIVIL CODE, Art.
that such will substantially changes the 1061).
rights of a person who has repudiated or
accepted (CAGUIOA, Civil Law, supra at NOTE: Express provision by the testator
449). exempting an heir from collation does not mean
no collation at all. The heir is merely considered
4. COLLATION as a stranger and what he has received from the
An act of returning or restoring to the common testator must be charged from the free portion (3
mass of the estate, either actually or fictitiously, TOLENTINO, supra at 572-573).
any property which a person may have received
from the decedent during the latter’s lifetime, but
Persons Obliged to Collate: Properties NOT Subject to Collation:
a. GENERAL RULE: Compulsory heirs a. Parents are not obliged to bring to collation
in the inheritance of their ascendants any
EXCEPTIONS: property which may have been donated by
i. When the testator should have so the latter to their children (CIVIL CODE, Art.
expressly provided; and 1065);
ii. When the compulsory heir should have b. Donations to the spouse of the child (CIVIL
repudiated his inheritance (CIVIL CODE, Art. 1066);
CODE, Art. 1062). c. Expenses for support, education
(elementary and secondary only), medical
In these cases, the donation shall be attendance, even in extraordinary illness,
charged to the free portion and not to the apprenticeship, ordinary equipment, or
legitime (3 PARAS, supra at 612). customary gifts (CIVIL CODE, Art. 1067);
REASON: The legitime of compulsory heirs d. Expenses incurred by parents in giving their
must never be impaired (JURADO, children professional, vocational or other
Succession, supra at 516). career unless the parents so provide, or
unless they impair the legitime (CIVIL
When the law says that “collation shall not CODE, Art. 1068); and
take place,” what it actually meant is that the e. Wedding gifts by parents and ascendants
value of the thing donated shall not be consisting of jewelry, clothing, and outfit
imputed against the legitime of the except when they exceed 1/10 of the sum
beneficiary; instead, it shall be imputed disposable by will (CIVIL CODE, Art. 1070).
against the disposable free portion (Id. at
514). Illustration:

b. Grandchildren who survive with their uncles,

aunts, or first cousins, and inherit by right of
representation.

What to Collate:
a. Any property or right received by way of
donation or any other gratuitous title during (a) During A’s lifetime, A gave B a house. That house
the testator’s lifetime (CIVIL CODE, Art. was later on donated by B to L, a friend. If B
1061). predeceases A, then E will represent B, and together
b. In case of grandchildren: with C and D will inherit from A. E will be obliged to
i. All that they may have received from the collate the value of the house, even if E himself has
decedent during his lifetime. not inherited said property. This is so because, had
ii. All that their parents, if alive, would have B been alive, he would have been obliged to bring to
brought to collation (CIVIL CODE, Art. collation the value of said house. Since E merely
1064). takes his (B’s) place, it naturally follows that collation
c. Any sums paid by a parent in satisfaction of by him (E) is in order.
the debts of his children, election expenses,
fines, and similar expenses (CIVIL CODE, In the example given in (a), if A had given E a house
Art. 1069). during A’s lifetime, the value of said house should
also be collated (considered an advance of his
NOTE: Only the value of the thing donated shall inheritance) unless of course the testator has
be brought to collation. This value must be the provided otherwise.
value of the thing at the time of the donation,
even though its just value may not then have However, even if there is such a contrary provision,
been assessed (JURADO, Succession, supra at the legitime of the co-heirs must not be prejudiced.
523). Hence, even if the testator has stated that the house
should not be considered as an advance of the
The subsequent increase or deterioration and legitime of E (meaning that aside from the legitime,
even the total loss or destruction of the thing, be E would get also the house), still this will not be the
it accidental or culpable, shall be for the benefit case if by such means, the legitime of the co-heirs is
or account and risk of the donee (CIVIL CODE, impaired.
Art. 1071).
5. EQUALIZATION OF SHARES 74 of the Rules of Court from which it can
GENERAL RULE: Co-heirs shall receive an be inferred that a writing or other formality
equivalent, as much as possible, in property of is an essential requisite to the validity of
the same nature, class and quality (CIVIL the partition. Accordingly, an oral partition
CODE, Art. 1073). is valid (Vda. De Reyes vs. CA (GR No.
92436, July 26, 1991).
EXCEPTIONS:
If it would be impracticable to give the co-heirs REASON: The requirement that a partition
an equivalent in property and: be put in a public document and registered
1. If the property donated was immovable, give has for its purpose the protection of
the co-heirs its equivalent in cash or creditors and at the same time the
securities at the rate of quotation; and if protection of the heirs themselves against
impossible and impracticable, sell at public tardy claims. The object of registration is to
auction as much of the other property as serve as constructive notice to others. It
may be necessary (CIVIL CODE, Art. 1074, follows then that the intrinsic validity of
Par. 1); or partition not executed with the prescribed
formalities does not come into play when
2. If the property donated was movable, co- there are no creditors or the rights of
heirs shall only have a right to select an creditors are not affected (Hernandez vs.
equivalent of other personal property of the Andal, GR No. L-273, March 29,1947)
inheritance at its just price (CIVIL CODE,
Art. 1074, Par. 2). v. The fact of such judicial settlement must
be Published in a newspaper of general
circulation in the province once a week for
6. PARTITION AND DISTRIBUTION OF three (3) consecutive weeks (FESTIN,
THE ESTATE PARTITION Special Proceedings, (2020), p. 31)
It is the separation, division and assignment of a [hereinafter, FESTIN, Special
thing held in common among those to whom it Proceedings]); and
may belong. It includes every act which is
intended to put an end to indivision among co– vi. Filing of a bond equivalent to the value of
heirs and legatees or devisees, although it personal property posted with Register of
should purport to be a sale, an exchange, Deeds (DE LEON & WILWAYCO, Special
compromise, or any other transaction. It is not Proceedings: Essential for Bench and Bar,
subject to any form (CIVIL CODE, Art. 1079 and (2020), p. 32 [hereinafter, DE LEON &
1082). WILWAYCO, Special Proceedings]).

Nature of Property Before Partition The fact that the document was not
There is co-ownership between or among heirs notarized is no hindrance to its effectivity.
(CIVIL CODE, Art. 1079). The partition of inherited property need not
be embodied in a public document
Kinds of Partition Under the Rules of Court: (Alejandrino v. CA, G.R. No. 114151,
a. Ordinary or Judicial Action for Partition September 17, 1998). Partition among co-
(RULES OF COURT, Rule 69); and owners may thus be evidenced even by the
b. Extrajudicial Settlement (RULES OF overt act of a co-owner of renouncing his
COURT, Rule 74, Sec. 1) right over the property regardless of the form
it takes." The Court based this assertion on
Requisites: (IDAP2) Article 1082 of the Civil Code (Heirs of
i. The decedent died Intestate; Morales v. Agustin, G.R. No. 224849, June
ii. The estate has no outstanding Debts at the 6, 2018).
time of the settlement;
iii. Decedent's heirs are all of Age or the Extrajudicial partition cannot constitute a
minors are represented by their judicial or partition of the property during the lifetime of
legal representatives; its owner. Partition of future inheritance is
iv. The settlement was made by means of a prohibited by Art. 1347 of the New Civil Code
Public instrument or affidavit filed with the (JURADO, Succession, supra at 528).
Register of Deeds; and

NOTE: There is no law that requires

partition among heirs to be in writing to be
valid. There is nothing in Section 1 of Rule
MODES OF SETTLEMENT OF ESTATE 2. By Will (Partition Mortis Causa) (CIVIL
1. Extrajudicial Settlement CODE, Art. 1080) It must be effected by a valid
Where the decedent left no will and no debts will duly executed in accordance with the
a. Deed of Extrajudicial Settlement; formalities prescribed by law (JURADO,
b. Partition; or Succession, supra at 529).
c. Affidavit of Self-adjudication (ROC, RULE A partition agreement which was executed
74, Sec. 1) pursuant to a will that was not probated cannot
be given effect. Before any will can have any
2. Judicial Settlement force or validity it must be probated - this cannot
a. Partition – Ordinary action of partition (ROC, be dispensed with and is a matter of public policy
RULE 69); (Rodriguez v. Rodriguez, G.R. No. 175720,
b. Summary of Settlement of Estate of Small September 11, 2007).
Value (ROC, RULE 74, Sec. 2);
c. Probate of Will (ROC, RULES 75-59); or PARTITION BY THIRD PERSON
d. Petition for Letters of Administration (ROC, A person may, by an act inter vivos or mortis causa,
RULE 79) intrust the mere power to make the partition after his
death to any person who is not one of the co-heirs
WHO MAY EFFECT PARTITION: (CIVIL CODE, Art. 1081, par. 1).
1. Decedent himself during his lifetime by an act
inter vivos or by will; What is entrusted is the mere power of partition, not
2. Third person designated by the decedent; the power to distribute the hereditary estate. Hence,
3. Heirs themselves; or the act of the person delegated with such power is
4. Competent court (JURADO, Succession, supra that of a mere agent or mandatory (JURADO,
at 528). Succession, supra at 530).

PARTITION BY DECEDENT WHO CAN DEMAND PARTITION: (CLAV)

Under Art. 1080. there are two ways by which a 1. Compulsory heir;
person may affect the partition of his own property 2. Legatee or devisee;
or estate – by an act inter vivos or by will. In both 3. Any person who has acquired an interest in the
cases, the legitime of compulsory heirs must not be estate; and
prejudiced (Id. at 529). 4. Voluntary heir (Id. at 531).

Two Ways of Partition by the Decedent: WHEN PARTITION CANNOT BE

1. By an Act inter vivos (Partition Inter Vivos) DEMANDED: (PAPUF)
(CIVIL CODE, Art. 1080) 1. When expressly Prohibited by the testator
It may be oral or written and need not be in the himself for a period not exceeding 20 years;
form of a will, provided that the partition does not 2. When the co–heirs Agreed that the estate shall
prejudice the legitime of compulsory heirs. This not be divided for a period not exceeding 10
constitutes an exception to the rule declared in years, renewable for another 10 years;
Art. 1347, par. 2 of the Code that no person can 3. When Prohibited by law (i.e. party wall);
enter into a contract with respect to future 4. When to partition the estate would render it
inheritance (Id. at 529-530). Unserviceable for the use for which it is
intended; and
In partition inter vivos, the rules regarding 5. When the property owned in common by co-
ordinary conveyance of personal and real heirs is a Family home and the testator has not
properties must be followed such as when ordered its dissolution (Id.).
conveyance through a public instrument is
required (Id. at 530). PROVISIONAL PARTITION
Voluntary heir upon whom some condition has been
NOTE: The testator may still revoke the partition imposed cannot demand partition until the condition
done by his own act inter vivos because during has been fulfilled; but the other co-heirs may
such time, that is, before his death, he is still the demand it by giving sufficient security for the rights
owner of the property (3 TOLENTINO, supra at which the former may have in case the condition
598-599). should be complied with, and until it is known that
Rationale: The rights to the succession are the condition has not been fulfilled or can never be
transmitted from the moment of death of the complied with, the partition shall be understood to be
decedent (CIVIL CODE, Art. 777). provisional (CIVIL CODE, Art. 1084).
The partition will become permanent after: 2. Obligation of Warranty – After the partition, the
1. The condition was fulfilled; and co-heirs shall be reciprocally bound to warrant
2. It is known that the condition has not been the title to (warranty against eviction) and the
fulfilled or can never be complied with (CIVIL quality of (warranty against hidden defects) each
CODE, Art. 1084). property adjudicated (CIVIL CODE, Art. 1092).

CONSTRUCTIVE PARTITION RULE ON OBLIGATION OF WARRANTY

Where thing owned in common is indivisible or a The obligation is proportionate to the respective
division thereof would impair its value or render it hereditary shares of the co-heir but if any of them
unserviceable for the use for which it is intended, it becomes insolvent, the others shall be liable also for
may be adjudicated to one of the heirs who shall pay his part in the same proportion, deducting the part
the others the excess in cash. Nevertheless, if any corresponding to the one to be indemnified, without
of the heirs should demand that the thing be sold at prejudice to their right of reimbursement should the
public auction and strangers be allowed to bid, this financial condition of the insolvent heir improve
must be done (CIVIL CODE, Art. 1086). (CIVIL CODE, Art. 1093).

RULE WHEN A CO-OWNER SELLS HIS RULE WHEN WARRANTY OF CREDIT

SHARE BEFORE PARTITION ASSIGNED
Before the property is partitioned, the heirs are co- When a credit is assigned to a co-heir as good or
owners of the property and they cannot alienate the collectible, the other co-heir is liable in case of
shares that do not belong to them (CIVIL CODE, Art. insolvency of the debtor of the estate if such
493). insolvency existed at the time the partition was made
(CIVIL CODE, Art. 1095, par. 1).
Should any of the heirs sell his hereditary rights to a
stranger before the partition, any or all of the co-heirs NOTE: There is no warranty as to bad debts
may be subrogated to the rights of the purchaser by assigned to a co-heir if so known and accepted by
reimbursing him for the price of the sale, provided the latter. If the bad debts which have not been
they do so within the period of one month from the allotted to a co-heir are paid, all shall share
time they were notified in writing of the sale by the proportionately the amount collected (CIVIL CODE,
vendor (CIVIL CODE, Art. 1088). Art. 1095, par. 3).

Any sale by one heir of the rest of the property will Prescriptive Period to Enforce Warranty Among
not affect the rights of the other heirs who did not Co-heir: 10 years from the date the right of action
consent to the sale. Such sale is void with respect accrues (CIVIL CODE, Art. 1094)
to the shares of the other heirs (Heirs of Gregorio
Lopez vs. DBP, G.R. No. 193551, November 19, Prescriptive Period of Warranty for Solvency of
2014). Debtor:
5 years from partition (CIVIL CODE, Art. 1095, par.
REQUISITES OF LEGAL REDEMPTION: 2)
(S2-BO-1R)
The Obligation of Warranty shall cease in the
1. There must be Several co-heirs;
following Cases: (PSE)
2. One of them Sells his right to a stranger;
1. When the testator himself has made the
3. The sale is made Before the partition;
Partition unless his intention was otherwise, but
4. The right of redemption must be exercised by
the legitime shall always remain unimpaired;
only One or more of the co-heirs;
2. When it has been expressly Stipulated in the
5. It must be 1 month from the time they were
agreement of partition, unless there has been
notified in writing by the co-heir vendor; and
bad faith; and
6. The vendee is Reimbursed for the price of the
3. When the Eviction is due to a cause subsequent
sale (3 PARAS, supra at 649).
to the partition, or has been caused by the fault
of the distributee of the property (CIVIL CODE,
NOTE: The redemption can be exercised only by a
Art. 1096).
co-heir (Id.).
RESCISSION AND ANNULMENT OF
EFFECTS OF PARTITION:
1. A partition legally made confers upon each heir
PARTITION
the exclusive ownership of the property Partition, once made, may be rescinded or annulled
adjudicated (CIVIL CODE, Art. 1091); and for the same causes as in contracts (CIVIL CODE,
Art. 1097).
EFFECTS OF INCLUSION OF INTRUDER RESCISSION ANNULMENT
IN PARTITION any other manner
1. Between a true heir and several mistaken collect the claims due
heirs (CIVIL CODE, Art. 1105): them;
a. The partition is void; and 4. Those which refer
b. The declaration of nullity shall result in the to things under
delivery of everything that had been litigation if they have
adjudicated to the true heir. been entered into by
the defendant without
2. Between several true heirs and a the knowledge and
mistaken heir (CIVIL CODE, Art. 1105): The approval of the
transmission to a mistaken heir is void. litigants or of
competent judicial
3. Through error or mistake, share of true authority;
heir is allotted to mistaken heir (CIVIL 5. All other contracts
CODE, Arts. 1104 and 1105): specially declared by
a. The partition shall not be rescinded unless law to be subject to
there is bad faith or fraud on the part of the rescission; and
other persons interested, but the latter shall 6. Payments made in a
be proportionately obliged to pay the true state of insolvency for
heir of his share; and obligations to whose
b. The partition with respect to the mistaken fulfillment the debtor
heir is void (JURADO, Succession, supra at could not be
537). compelled at the
time they
RESCISSION V. ANNULMENT OF were effected (CIVIL
CODE, Art. 1380-
PARTITION 1382).
RESCISSION ANNULMENT
As to Definition PARTITION WITH PRETERITION
GENERAL RULE: A partition made with preterition
Rescissible contracts are Annulment is a remedy
cannot be rescinded (CIVIL CODE, Art. 1104).
valid contracts without granted by law because
any defect whatsoever of vices or defects in
EXCEPTION: When it can be proved that there was
but the law grants the consent or because of
bad faith or fraud on the part of the other persons
remedy of rescission. the incapacity of one of
interested (CIVIL CODE, Art. 1104).
the contracting parties.
As to Grounds REMEDY OF PRETERITED HEIR
1. Those which 1. Party incapable of Demand that the persons interested be
are entered into by giving consent; and proportionally liable for his share in the inheritance
guardians whenever 2. Vitiated consent (CIVIL CODE, Art. 1104).
the wards a. Mistake;
whom they b. Violence; RESCISSION OF PARTITION DUE TO
represent suffer lesion c. Intimidation; LESION
by more than 1/4 of d. Undue Influence; If in the partition, anyone of the co-heirs should
the value of the things and receive a share whose value is less, by at least 1/4
which are the object e. Fraud (CIVIL than the share to which he is entitled, considering
thereof; CODE, Art. 1390). the value of the things at the time they were
2. Those agreed upon in adjudicated, the partition, whether judicial or
representation of extrajudicial, may be rescinded on account of the
absentees, if the lesion (CIVIL CODE, Art. 1098).
latter suffer the lesion
stated in the If the lesion is less than 1/4 rescission will not lie; the
preceding number; proper action is one for damages (3 PARAS, supra
3. Those undertaken in at 664).
fraud of
creditors when the GENERAL RULE: If the partition was effected by the
latter cannot in decedent himself either by an act inter vivos or by
will, it cannot be impugned on the ground of lesion
(JURADO, Succession, supra at 536).

EXCEPTIONS:
1. When the legitime of the compulsory heir is
prejudiced; and
2. When it appears or may reasonably be
presumed that the intention of the testator was
otherwise (3 PARAS, supra at 664).

NOTE: In both cases, the lesion may be less than

1/4 (Id.).

Options for the Sued Heir:

1. Indemnify the plaintiff in cash or by the delivery
of the thing in same kind and quality as that
awarded to the plaintiff; or
2. Consent to a new partition. If a new partition is
made, it shall affect neither those who have not
been prejudiced nor those who have not
received more than their just share (CIVIL
CODE, Art. 1101).

Prescriptive Period of Partition Due to Lesion:

4 years from the date of judicial partition (CIVIL
CODE, Art. 1100).

DISTRIBUTION OF ESTATE
GENERAL RULE: No distribution shall be allowed
until the payment of the debts, funeral charges, and
expenses of administration, the allowance to the
widow, and inheritance tax, if any, chargeable to the
estate in accordance with law.

EXCEPTION: The distributees, or any of them, give

a bond, in a sum to be fixed by the court, conditioned
for the payment of said obligations within such time
as the court directs (RULES OF COURT, Rule 90,
Sec. 1).

Reading Article 777 of the Civil Code together with

the pertinent provisions of PD 1529 (Property
Registration Decree) and the Rules of Court, while
an heir may dispose and transfer his/her hereditary
share to another person, before the transferee may
compel the issuance of a new certificate of title
covering specific property in his/her name, a final
order of distribution of the estate or the order in
anticipation of the final distribution issued by the
testate or intestate court must first be had (Salitico
vs. Heirs of Resurreccion Martinez Felix, G.R. No.
240199, April 10, 2019).
 The vinculum juris or juridical tie is that which
OBLIGATIONS essentially binds the parties to the obligation. This
linkage between the parties is a binding relation that
is the result of their bilateral actions, which gave rise
to the existence of the contract (The Wellex Group,
GENERAL PROVISIONS Inc. v. U-Land Airlines, Co., Ltd., G.R. No. 167519,
January 14, 2015).
(ARTS. 1156-1162)
B. ACTIVE SUBJECT
The obligee or creditor, who can demand the
fulfillment of the obligation.
OBLIGATION
A juridical necessity to give, to do, or not to do (CIVIL He is the possessor of a right; he in whose favor the
CODE, Art. 1156). obligation is constituted (PARAS, Civil Code of The
Philippines Annotated, Vol. IV (2016). pp. 78
An obligation is a juridical relation whereby a person [hereinafter, 4 PARAS).
(called the creditor) may demand from another (called
the debtor) the observance of a determinative C. PASSIVE SUBJECT
conduct (the giving, doing or not doing), and in case The obligor or debtor, against whom the obligation is
of breach, may demand satisfaction from the assets juridically demandable.
of the latter (Makati Stock Exchange, Inc. v. Campos,
G.R. No. 138814, April 16, 2009). D. OBJECT / PRESTATION
A prestation is the object of an obligation, and it is the
JURIDICAL NECESSITY conduct required by the parties to do or not to do, or
Obligation is a juridical necessity because in case of to give (The Wellex Group, Inc. v. U-Land Airlines,
non-compliance, the courts of justice may be called supra, citing Ang Yu Asuncion v. CA, G.R. No.
upon to enforce its fulfillment or, in default thereof, the 109125, December 2, 1994).
economic value that it represents (DE LEON,
Comments and Cases on Obligations and Contracts Not the thing or object, but the particular conduct of
(2014), pp. 1-2 [hereinafter DE LEON, Obligations the debtor which may consist in giving, doing, or not
and Contracts]). giving, or not doing something (4 TOLENTINO,
Commentaries and Jurisprudence on the Civil Code
Elements of an Obligation: (JAPO) of the Philippines, (2002), p. 57 [hereinafter 4
TOLENTINO]).
1. The Vinculum juris or Juridical tie
2. The Active Subject or obligee/creditor
3. The Passive Subject or obligor/debtor KINDS OF PRESTATION:
4. The Object or Prestation 1. To give
– a prestation which consists in the delivery of a
A. JURIDICAL TIE OR RELATION movable or an immovable thing in order to create
The efficient cause established by the various a real right, or for the use of the recipient, or for
sources of obligations (law, contracts, quasi- its simple possession, or in order to return it to its
contracts, delicts and quasi-delicts). owner (e.g., sale, deposit, donation) (Iloilo Jar

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA TAMPUS, Vice Chairperson
for Secretariat | ARVY KEITH CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice Chairperson for
Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. JUN MARR M. DENILA and Dean ULPIANO P. SARMIENTO III

 Corporation v. Comglasco Corporation/ Aguila 3. Viewpoint of Subject Matter
Glass, G.R. No. 219509, January 18, 2017); a. Personal Obligation (obligation to do or
not to do) – that in which the subject matter
2. To do is an act to be done or not to be done; and
– includes all kinds of work or service (Iloilo Jar b. Real Obligation (obligation to give) – that
Corporation v. Comglasco Corporation/ Aguila in which the subject matter is a thing which
Glass, G.R. No. 219509, January 18, 2017); and the obligor must deliver to the obligee (DE
LEON, supra at 9).
3. Not to do i. Determinate or Specific – one that is
– consists in abstaining from doing some act. particularly designated or physically
This obligation includes the obligation “not to segregated from all others of the same
give” (4 TOLENTINO, supra at 57- 58). class (CIVIL CODE, Art. 1460);
ii. Indeterminate or Generic – indicated
FORMS OF OBLIGATION merely by its class or genus without
It is settled that once perfected, a contract being designated or distinguished from
[obligations arising from contracts] is generally others of the same kind; its loss does not
binding in whatever form, whether written or oral, it extinguish the obligation for genus never
perishes (genus nunquam perit); and
may have been entered into, provided the essential
iii. Limited generic thing – when the generic
requisites for its validity are present (Kabisig Real
Wealth Dev., Inc. v. Young Builders Corporation, objects are confined to a particular class,
G.R. No. 212375, January 25, 2017). e.g., an obligation to deliver one of my
Obligations arising from other sources do not have horses (JURADO, Obligations and
any form at all (DE LEON, Obligations and Contracts, Contracts, supra at 91).
p. 3).
4. Viewpoint of Person Obliged
a. Unilateral – where only one party is bound;
KINDS OF OBLIGATIONS: and
Obligations may be classified as: b. Bilateral or Mutual – where both parties are
1. Viewpoint of Sanction mutually or reciprocally bound (JURADO,
a. Civil Obligations – an obligation, which if not Obligations and Contracts, supra at 5)
fulfilled when it becomes due and i. Reciprocal (CIVIL CODE, Arts. 1169-
demandable, may be enforced in court 1191).
through an action (4 TOLENTINO, supra at
59); RECIPROCAL OBLIGATIONS V.
b. Natural Obligations – not based on positive
law but on equity and natural law; do not BILATERAL OBLIGATIONS
grant a right of action to enforce their Parties may be mutually obliged to each other, but the
performance, but after voluntary fulfillment by prestations of these obligations are not necessarily
the obligor, they authorize retention of what reciprocal. The reciprocal prestations must
has been delivered or rendered by reason necessarily emanate from the same cause that gave
thereof (CIVIL CODE, Art. 1423); and rise to the existence of the contract (4 TOLENTINO,
c. Moral Obligations – those that are not supra at p. 174).
demandable in law, but only in conscience,
over which human judges have no SOURCES OF OBLIGATIONS:
jurisdiction (Fisher v. Robb, G.R. No. 46274, 1. Law;
November 2, 1939). 2. Contracts;
3. Quasi-contracts;
2. Viewpoint of Performance 4. Acts or omissions punished by law (Delicts); and
a. Positive Obligation – the obligation to give 5. Quasi-delicts (CIVIL CODE, Art. 1157).
or to do (PARAS, Obligations and Contracts
supra at 80); and NOTE: The list of sources is exclusive (Sagrado
b. Negative Obligation – when the obligor Orden v. Nacoco, G.R. No. L-3756, June 30, 1952).
must refrain from giving or doing something
(JURADO, Comments and Jurisprudence on A. OBLIGATION ARISING FROM LAW
Obligations and Contracts, (2010), p. 5) (EX-LEGE)
[hereinafter JURADO, Obligations and
Obligations derived from law are not presumed. Only
Contracts].
those expressly determined in the CIVIL CODE or in
special laws are demandable, and shall be regulated
by the precepts of the law which establishes them;
and as to what has not been foreseen, by the
provisions of Book IV of the CIVIL CODE (CIVIL one shall be unjustly enriched or benefited at the
CODE, Art. 1158). expense of another (CIVIL CODE, Art. 2142).

Every person who, contrary to law, willfully or Quasi-contracts are based on the principles that:
negligently causes damage to another, shall 1. No one must unjustly enrich himself at another’s
indemnify the latter for the same (CIVIL CODE, Art. expense;
20). 2. If one benefits, he must reimburse; and
3. Justice and equity (PARAS, Civil Code of the
B. OBLIGATIONS ARISING FROM Philippines Annotated, (2016), Vol. 5, p. 1157
CONTRACTS (EX-CONTRACTU) [hereinafter 5 PARAS]).
In other words, the law considers the parties as
Obligations arising from contracts have the force of
having entered into a contract, irrespective of their
law between the contracting parties and should be
intention, to prevent injustice (DE LEON, Obligations
complied with in good faith (CIVIL CODE, Art. 1159).
and Contracts, supra at 21).
Hence, a contracting party’s failure, without legal
Two Main Kinds Quasi-Contract:
reason to comply with contract stipulations breaches
1. Negotiorum Gestio
their contract and can be the basis for the award of
2. Solutio Indebiti.
damages to the other contracting party (Angel V.
Talampas, Jr. v. Moldex Realty, Inc., G.R. No.
NEGOTIORUM GESTIO (OFFICIOUS
170134, June 17, 2015).
MANAGEMENT)
Whoever voluntarily takes charge of the agency or
Meaning of Contract
management of the business or property of another,
A contract is a meeting of the minds between two
without any power from the latter, is obliged to
persons whereby one binds himself, with respect to
continue the same until the termination of the affair
the other, to give something or to render some
and its incidents, or to require the person concerned
service (CIVIL CODE, Art. 1305).
to substitute him, if the owner is in a position to do so
(CIVIL CODE, Art. 2144).
Binding Force of a Contract
Contracts are perfected by mere consent, and from
Requisites of Negotiorum Gestio
that moment the parties are bound to
The essential requisites of negotiorum gestio are as
1. the fulfillment of what has been expressly
follows (No-CAN-Vo):
stipulated
1. No meeting of the minds;
2. to all of the consequences which, according to
2. Taking Charge of another’s business or property;
the nature of the obligations, may be in keeping
3. Property or business must have been
with good faith, usage, and law (CIVIL CODE,
Abandoned or neglected;
Art. 1315).
4. The officious manager must Not have been
expressly or implicitly authorized; and
NOTE: Where the law requires that a contract be
5. The officious manager (gestor) must have
made in some form, it shall only bind the parties upon
Voluntarily taken charge – there must be no
compliance with the prescribed formalities (see CIVIL
vitiated consent, such as error in thinking that he
CODE, Art. 1356).
owned the property or the business (PARAS,
Civil Code of the Philippines Annotated, 2016,
Breach of Contract (Culpa Contractual)
Vol. 5, p. 1159 [hereinafter 4 PARAS]).
In culpa contractual, the mere proof of the existence
of the contract and the failure of its compliance justify,
When Negotiorum Gestio Not Present
prima facie, a corresponding right of relief. The law,
Negotiorum Gestio does not arise in either of these
recognizing the obligatory force of contracts, will not
instances:
permit a party to be set free from liability for any kind
1. When the property or business is not neglected
of misperformance of the contractual undertaking or
or abandoned (in such a case provisions of Arts.
a contravention of the tenor thereof (Gilat Satellite
1317, 1403[1], and 1404 regarding unauthorized
Networks, Ltd. v. United Coconut Planters Bank
contracts shall govern); and
General Insurance Co., Inc., G.R. No. 189563, April
2. If in fact the manager has been tacitly (implied
7, 2014).
from actions or statements) authorized by the
owner (in such a case rules on agency in Title X,
C. QUASI-CONTRACTS (QUASI EX- Book IV, shall apply) (CIVIL CODE, Art. 2144).
CONTRACTUAL)
Juridical relations arising from lawful, voluntary, and SOLUTIO INDEBITI (PAYMENT NOT DUE)
unilateral acts by virtue of which the parties become If something is received when there is no right to
bound to each other, based on the principle that no demand it, and it was unduly delivered through
mistake, the obligation to return it arises (CIVIL 5. Obligation of the owner of the property to pay a
CODE, Art. 2154). just compensation to the person who saved it
from destruction (CIVIL CODE, Art. 2168).
Elements of Solutio Indebiti 6. Obligation of the person who failed to comply with
The principle of solutio indebiti applies where: health or safety regulations to pay the expenses
1. A payment is made when there exists no binding of the government in undertaking to do the
relation between the payor, who has no duty to necessary work (CIVIL CODE, Art. 2169).
pay, and the person who received the payment; 7. Co-ownership of movables commingled or
and confused by accident or other fortuitous event
2. The payment is made through mistake, and not (CIVIL CODE, Art. 2170).
through liberality or some other cause (Spouses 8. Rights and obligations of the finder of lost
Abella v. Spouses Abella, G.R. No. 195166, July personal property (CIVIL CODE, Art. 2171).
8, 2015). 9. Right of every possessor in good faith to
reimbursement for necessary and useful
ACCION IN REM VERSO V. SOLUTIO expenses (CIVIL CODE, Art. 2172).
INDEBITI 10. Right to beneficial reimbursement by a third
person who pays the debt of another without his
ACCION IN REM SOLUTIO INDEBITI knowledge (CIVIL CODE, Art. 2173).
VERSO (ART. 2154) 11. Obligation of a person benefited by measure for
protection against lawlessness, fire, flood, storm
It is not necessary that Payment made by or other calamity to pay his share of expenses
the payment was made mistake is an essential (CIVIL CODE, Art. 2174).
by mistake; payment element to maintain the 12. Right of reimbursement by a person constrained
could have been made action for recovery. to pay the taxes of another from the latter (CIVIL
knowingly and CODE, Art. 2175).
voluntarily.
Nevertheless, there NOTE: Enumeration of Quasi-Contracts in the CIVIL
would be recovery of CODE is NOT exhaustive nor exclusive (CIVIL
what has been paid. CODE, Art. 2143).
(1 TOLENTINO, supra at 83-84).
D. DELICT (EX-DELICTO OR CULPA
Obligation to Pay Interest on Payment Unduly CRIMINAL)
Received Until Returned Civil obligations arising from criminal offense shall be
Whoever in bad faith accepts undue payment, shall governed by the penal laws (CIVIL CODE, Art. 1161).
pay legal interest if a sum of money is involved, or
shall be liable for fruits received or which should have Every person criminally liable for a felony is also
been received if the thing produces fruits. He shall civilly liable (REVISED PENAL CODE, Art. 100)
furthermore be answerable for any loss or impairment
of the thing from any cause, and for damages to the Every crime gives rise to:
person who delivered the thing until it is recovered 1. A criminal action for the punishment of the guilty
(CIVIL CODE, Art. 2159). party; and
2. A civil action for the restitution of the thing, repair
Other Quasi-Contracts Recognized Under the of the damage, and indemnification for the losses
Civil Code (Romero v. People of the Philippines, G.R. No.
1. Right to claim support given by a stranger, from 167546, July 17, 2009).
the person obliged to give support (CIVIL CODE,
Art. 2164). Reason of Civil Liability Ex Delicto
2. Right to reimburse the funeral expenses, borne A crime has dual character:
by a third person, from the relatives obliged to 1. As an offense against the state because of the
give support to the deceased (CIVIL CODE, Art. disturbance of the social order; and
2165). 2. As an offense against the private person
3. Right of reimbursement of stranger who furnishes injured by the crime (Occena v. Icamina, G.R. No.
support to an orphan,an insane person, or other 82146, January 22, 1990).
indigent person, from the person obliged to give
support to the latter (CIVIL CODE, Art. 2166). Scope of Civil liability Ex Delicto
4. Obligation of the person injured or seriously ill to 1. Restitution of Property taken;
pay for the services of the physician or other 2. Reparation of damage caused; or
person, who treated or helped him while he is not 3. Indemnification for consequential damages
in a condition to give consent (CIVIL CODE, Art. (REVISED PENAL CODE, Art. 104).
2167).
No Civil Liability for “Victimless Crimes” person suffers injury (Guillang v. Bedania, G.R. No.
No civil liability arises on the part of the offender in 162987, May 21, 2009).
some crimes such as Treason, Gambling, or Illegal
Possession of Firearms, because there are no Test of Negligence: The test of negligence is
damages to be compensated or there is no private objective. It is measured by the act or omission of the
person injured by the crime (JURADO, Obligations tortfeasor with a perspective as that of an ordinary
and Contracts, supra at 11). reasonable person who is similarly situated. The test
is whether or not the tortfeasor, under the attendant
Effect of Exempting Circumstances to Civil circumstances, used that reasonable care and
Liability Ex Delicto caution which an ordinary reasonable person would
Under Article 12 of the Revised Penal Code, persons have used in the same situation (Makati Shangri-La
exempted from criminal liability are not necessarily Hotel and Resort, Inc. v. Harper, G.R. No. 189998,
exempted from civil liability except under Article 12, August 29, 2012).
par. 4. (See REVISED PENAL CODE, Art. 101).
Rather, did the defendant in doing the alleged
Effect of Extinguishment of Criminal Liability on negligent act use that reasonable care and caution
Civil Liability which an ordinary person would have used in the
If criminal liability was extinguished on the ground same situation? What an ordinary prudent person will
that the accused was not the author of the acts do under the circumstance can be determined by
complained of as a felony or offense, no civil liability asking the following: could a prudent man, in the case
arises in relation thereto (see CIVIL CODE, Art. 29; under consideration, foresee harm as a result of the
Dayap v. Sendiong, G.R. No. 177960, January 29, course actually pursued? (Picart v. Smith, Jr., G.R.
2009). No. L-12219, March 15, 1918)

If criminal liability is extinguished by some other Proximate Cause

manner, but where it is clear that the accused was the The negligent act or omission must be the proximate
author of the act or omission complained of as having cause of the injury (Josefa v. Manila Electric
caused damage or injury to a private complainant, the Company, G.R. No. 182705, July 18, 2014).
civil liability is not extinguished and can be enforced
in the same action or a separate action (see CIVIL Proximate cause is defined as that cause, which, in
CODE, Art. 29). natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury, and
E. QUASI-DELICT without which the result would not have occurred
Whoever by act or omission causes damage to (Mendoza v. Spouses Gomez, G.R. No. 160110,
another, there being fault or negligence, is obliged to June 18, 2014).
pay for the damage done. Such fault or negligence, if
there is no pre-existing contractual relation between Necessity of Proving Negligence
the parties, is called a quasi-delict (CIVIL CODE, Art. In order for liability from negligence to arise, there
2176). must be not only proof of damage and negligence, but
also proof that the damage was the consequence of
Requisites of Quasi-delict: (DFC) the negligence (Abrogar v. Cosmos Bottling
1. Damage suffered by the plaintiff; Company, G.R. No. 164749, March 15, 2017).
2. Fault or negligence of the defendant; and
3. Causal connection between the fault or However, since negligence may in some cases be
negligence of defendant and the damage hard to prove, the doctrine of res ipsa loquitor (the
incurred by the plaintiff (Guillang v. Bedania, G.R. thing speaks for itself) may be applied. It
No. 162987, May 21 2009). recognizes that parties may establish prima facie
negligence without direct proof, thus, it follows the
Negligence principle to substitute for specific proof of negligence.
Negligence is the omission of that diligence which is It permits the plaintiff to present along with proof of
required by the circumstances of person, place, and the accident, enough of the attending circumstances
time (CIVIL CODE, Art. 1173). Thus, the finding of to invoke the doctrine, create an inference or
negligence is a question of fact (Philippine National presumption of negligence and thereby place on the
Railways Corporation v. Vizcara, G.R. No. 190022, defendant the burden of proving that there was no
February 15, 2012). negligence on his part (Del Carmen, Jr. v. Bacoy,
G.R. No. 173870, April 25, 2012).
Negligence is defined as the failure to observe for the
protection of the interest of another person that The requisites of res ipsa loquitor are as follows:
degree of care, precaution, and vigilance which the 1. The event is of a kind which does not ordinarily
circumstances justly demand, whereby such other occur unless someone is negligent;
2. The cause of the injury was under the exclusive
DELICT QUASI-DELICT
control of the person in charge; and
3. The injury suffered must not have been due to As to Employer’s Liability
any voluntary action or contribution on the part of
the person injured (Geromo v. La Paz Housing Employer’s liability is Employer’s liability is
and Dev Corp, G.R. No. 211175, January 18, subsidiary. The primary; can be sued
2017). employee must have first directly by the injured
been convicted and party and may recover
DELICT V. QUASI-DELICT sentenced to pay civil from his employee.
indemnity and it must be
DELICT QUASI-DELICT
shown that he is
As to Whom it is Committed insolvent.

Public Interest: Wrong Private Interest: wrong As to Employer’s Engagement

against the individual and against the individual.
Employer is liable only All employers whether
the State.
when he is engaged in they are engaged in
As to Existence of Criminal Intent some kind of business or some enterprise or not
industry. are liable, this includes
There is criminal or There is only house helpers.
malicious intent or negligence. (DE LEON, Obligations and Contracts, supra at 30;
criminal negligence. JURADO, Obligations and Contracts, supra at 21;
Elcano v. Hill, G.R. No. L-24803, May 26, 1977).
As to Liability

Generally, criminal and Only civil. Several Obligations Arising from Single Act or
civil. Omission
The enumeration [in Article 1157] does not preclude
As to Purpose the possibility that a single action may serve as the
source of several obligations to pay damages in
Punishment Indemnification of the accordance with the CIVIL CODE (Tankeh v.
offended party Development Bank of the Philippines, G.R. No.
171428, November 11, 2013).
As to its Scope
Example: Ejecting a passenger already seated
Not as broad as quasi- Actionable in any act inside the plane for no reason other than racial
delict; can be punished or omission wherein discrimination - (1) consequences arising from
only when there is a fault or negligence breach of contract and (2) payment of damages
penal law clearly intervenes. arising from law as a result of morally reprehensible
penalizing it. manner of breach of contract (Air France v.
Carrascoso, G.R. No. L-21438, September 28, 1966).
As to Form of Redress Prohibition from Double Recovery
Form of redress is either Either by Although a single act or omission may give rise to two
fine or imprisonment or compensation or different causes of action, the plaintiff cannot recover
both. indemnification. damages twice for the same act or omission of the
defendant (CIVIL CODE, Art. 2177).

As to Proof Required

Must be proven beyond Requires

reasonable doubt. preponderance of
evidence.

As to Compromise

Can never be Can be compromised

compromised. as any other civil
liability.
 2. Constructive delivery
NATURE AND EFFECT OF Where although physical possession is not
placed in the hands of the obligee, it is
OBLIGATIONS nevertheless irrevocably placed in his effective
(ARTS. 1163-1178) control
a. Traditio symbolica (symbolic tradition) –
as when the keys of a bodega are given

OBLIGATION TO GIVE NOTE: Delivery of the key to the car garage

where a car and its key are kept is symbolic
delivery. Delivery of the car keys themselves
is actual delivery.
WHEN OBLIGATION TO DELIVER
b. Traditio longa manu – delivery by mere
ARISES consent or the pointing out of the object);
GENERAL RULE: The obligation to deliver arises
from the time of the perfection of the contract. c. Traditio brevi manu– whereby the
possessor of a thing is constituted as owner
EXCEPTIONS: thereof;
1. If the obligation is subject to a
suspensive condition or period. Example: The lessee who had been living in
It arises upon fulfillment of the condition or arrival a house for 10 years becomes absolute
of the period (CIVIL CODE, Arts. 1179, 1189, and owner upon payment of the last installment of
1193). a rent-to-own contract.

NOTE: The parties may make a stipulation to the d. Constitutum possessorium – the opposite
contrary as regards the right of the creditor to the of brevi manu where the owner is made into
fruits of the thing. a mere possessor thereof

2. If obligation is based on a source other Example: Where the original owner sells a
than contract building to a vendee but the former continues
The specific provisions of applicable law shall to possess the property in some other
determine when the delivery of the thing shall be manner such as a lessee.
effected (DE LEON, Obligations and Contracts,
supra at 37). e. Delivery of Instrument or Document of
Title – The delivery of a document
DELIVERY evidencing title to the thing, such as a
negotiable warehouse receipt.
Delivery is an act by which one party parts with the
title to and the possession of the property, and the
other acquires the right to and possession of the
OBJECT OF THE PRESTATION
same (NFF Industrial Corporation v. G&L Associated The object of an obligation is not a thing but a
Brokerage, G.R. No. 178169, January 12, 2015). particular conduct of the debtor. The object of an
obligation is thus always a prestation, which may
PURPOSE OF DELIVERY consist in giving or doing or not doing something (4
TOLENTINO, supra at 57-58).
The purpose of delivery is not only for the enjoyment
of the thing but also a mode of acquiring dominion The obligation to deliver may be an obligation to
and determines the transmission of ownership, the deliver:
birth of the real right (Cebu Winland Development 1. Specific or Determinate Thing
Corporation v. Ong Siao Hua, G.R. No. 173215, May 2. Generic Thing
21, 2009). 3. Limited Generic (Id. at 91)

KINDS OF DELIVERY SPECIFIC OR DETERMINATE THING

1. Actual delivery (tradition) A thing is determinate when it is particularly
In sale, for example, actual delivery of the thing designated or physically segregated from all others of
sold occurs when it is placed under the control the same class (CIVIL CODE, Art. 1460, par.1).
and possession of the vendee (The Roman
Catholic Church v. Pante, G.R. No. 174118, April
11, 2012).
Thing Deemed Specific, Determination Does Not SPECIFIC V. GENERIC OBLIGATION
Require Subsequent Agreement
The requisite that a thing be determinate is satisfied SPECIFIC GENERIC
if at the time the contract is entered into, the thing is
As to Obligation to Deliver
capable of being made determinate without the
necessity of a new or further agreement between the The obligor must deliver The obligor may deliver
parties (CIVIL CODE, Art. 1460, par. 2). the very thing promised any thing from the same
(CIVIL CODE, Art. class which is neither
GENERIC OR INDETERMINATE THING 1165; 1244). superior nor inferior in
A thing is generic or indeterminate in the sense that it quality (CIVIL CODE,
is designated merely by its class or genus without any Art. 1246).
particular designation or physical segregation from all
others of the same class, the loss or destruction of As to Effect of Loss
anything of the same kind even without the debtor’s
fault and before he has incurred in delay will not have Loss of the thing Can never be affected
the effect of extinguishing an obligation. extinguishes the by loss because things
obligation to deliver, of the same class, kind,
The rule is based on the principle that the genus of a without prejudice to and quality can be
thing can never perish. Genus nunquam perit. Article 1170. delivered.
(Gaisano Cagayan, Inc. v. Insurance Company of
As to Remedy in Case of Delay or Breach
North America, G.R. No. 147839, June 8, 2006, see
also CIVIL CODE, Art. 1263). Right to compel delivery Right to compel delivery
of the thing itself or right to charge the
LIMITED GENERIC THING (Specific Performance) expense of compliance
When the generic objects are confined to a particular (CIVIL CODE, Art. by another (CIVIL
class. The class is considered in itself a determinate 1165, par. 2). CODE, Art. 1165, par.
object. 2).

Example: An obligation to deliver one of my horses,

because the thing is limited to the horses owned by
LIMITED GENERIC V. GENERIC
the debtor and he cannot deliver any horse not owned OBLIGATION
by him (4 TOLENTINO, supra at 91). LIMITED GENERIC GENERIC

NOTE: Loss of a generic thing does not extinguish As to Obligation to Deliver

the obligation, except in case of limited generic
things, where the kind itself, and the whole class The obligor must The obligor may deliver
perishes. deliver the generic any thing from the same
object from a particular class which is neither
SPECIFIC V. GENERIC OBJECT class (4 TOLENTINO, superior nor inferior in
supra at 91). quality (CIVIL CODE,
SPECIFIC GENERIC Art. 1246).
“X’s blue car” a car As an Illustration

“The P100 bill bearing P100.00 An obligation to deliver An obligation to deliver a

the autograph of one of the debtor’s cars car
celebrity pop star X”

“A healthy male horse A horse ACCESSORY OBLIGATIONS TO

from X’s stable” OBLIGATION TO DELIVER SPECIFIC
THING
“The harvest of this rice 100 sacks of jasmine
1. Obligation to Take Care of the Thing to be
land in the next harvest rice
Delivered (CIVIL CODE, Art. 1163);
season”
2. Obligation to Deliver the Fruits of the Thing
(CIVIL CODE, Art. 1164); and
3. Obligation to Deliver Accessions and
Accessories (CIVIL CODE, Art. 1166).
NOTE: An express stipulation to the contrary A different standard of care may be stipulated by
between the parties shall prevail over these statutory the parties
provisions. Every person obliged to give something is also
obliged to take care of it with the proper diligence of
OBLIGATION TO TAKE CARE OF THE a good father of a family, unless the law or the
THING TO BE DELIVERED stipulation of the parties requires another standard of
care (CIVIL CODE, Art. 1163). The Civil Code
Every person obliged to give something is also provides that if the law or contract does not state the
obliged to take care of it with the proper diligence of diligence which is to be observed in the performance
a good father of a family (CIVIL CODE, Art. 1163). of an obligation that which is expected of a good
father of the family shall only be required (Orient
NOTE: The accessory obligation to take care ends Freight International Inc. v. Keihin-Everett
upon delivery of the thing itself. Forwarding Company Inc., G.R. No. 191937, August
9, 2017).
REASON: The obligor must deliver the thing itself
and cannot compel the obligee to receive a different
one, although the latter may be of the same value as, OBLIGATION TO DELIVER THE FRUITS
or more valuable than that which is due (CIVIL OF THE THING
CODE, Art. 1244). The creditor has a right to the fruits of a thing from the
time the obligation to deliver arises (CIVIL CODE, Art.
The debtor must exercise diligence to insure that the 1164).
thing to be delivered would subsist in the same
condition as it was when the obligation was In case of law, quasi-contracts, delicts and quasi-
contracted. Otherwise, the debtor would be able to delicts, the obligation to deliver arises from the time
afford being negligent and he would not be liable designated by the provisions of the CIVIL CODE,
even if the property is lost or destroyed, thus Penal Laws, or Special Laws creating or regulating
rendering illusory the obligation to give (DE LEON, them.
Obligations and Contracts, supra at 35).
In case of contracts, the obligation arises from the
DILIGENCE OF A GOOD FATHER OF A time of the perfection of the contract or stipulation of
FAMILY the parties unless it is subject to a suspensive
condition, suspensive term or period, or if there is a
The diligence of a good father of a family requires contrary stipulation of the parties.
only that diligence which an ordinary prudent man
would exercise with regard to his own property
(Wildvalley Shipping, Co. Ltd. v. The Court of FRUITS
Appeals, G.R. No. 119602, October 6, 2000). 1. Natural Fruits
a. spontaneous products of the soil, and
HIERARCHY OF STANDARDS OF b. the young and other products of animals
produced (CIVIL CODE, Art. 442, par. 1)
DILIGENCE
1. Extraordinary Diligence 2. Industrial
- That extreme measure of care and caution Those produced by lands of any kind through
which persons of unusual prudence and cultivation or labor (CIVIL CODE, Art. 442, par. 2)
circumspection use for securing and preserving
their own property or rights(applies to banks and 3. Civil
common carriers) Those derived by virtue of juridical relation (CIVIL
CODE, Art. 442, par. 3).
2. Ordinary Diligence or Bonus Pater
Familias Example: Rents from lease contract; interest on
– The reasonable care a prudent man can be bank deposits assigned.
expected to exert to protect his own property
RIGHT TO FRUITS ACCRUES UPON
3. Simple Diligence
– that reasonable care a prudent man can be
DELIVERY
expected to exert to protect another person’s The creditor has a right to the fruits of the thing from
property the time the obligation to deliver it arises. However,
he shall acquire no real right over it until the same has
been delivered to him (CIVIL CODE, Art. 1164, par.
1).
Illustration: SPECIFIC V. GENERIC OBLIGATION
On May 25, 2021 X and Y entered into a contract
wherein X would deliver her only eleven month old SPECIFIC GENERIC
Dalmatian named BB on Valentine’s Day 2022.
As to Primary Obligation
Pending the delivery, BB gave birth to 101 Dalmatian
puppies on December 2021. Who is the owner of the The obligor must deliver The obligor may deliver
puppies? the very thing promised any thing from the same
(CIVIL CODE, Art. class which is neither
X is the owner of the puppies. Art. 1164 provides that 1165; 1244). superior nor inferior in
the creditor (Y) has the right to the fruits of the thing quality (CIVIL CODE,
from the time the obligation to deliver it arises. In this Art. 1246).
case, BB gave birth to the 101 Dalmatians before the
obligation to deliver it on February 14, 2022. Hence, As to Accessory Obligations
X has the right to own the fruits (puppies) of BB.
1. Obligation to Take N/A.
REAL RIGHT V. PERSONAL RIGHT Care of the Thing to
Real right over a thing pertains to all direct rights to be Delivered (CIVIL
ownership of a res (thing). It is also called jus in re or CODE, Art. 1163)
“legal title” over something. 2. Obligation to Deliver
the Fruits of the
Personal right is merely the right to the performance Thing (CIVIL CODE,
of an obligation, that is to the prestation itself and not Art. 1164)
to the object of the prestation. In the context of the 3. Obligation to Deliver
obligation to give, it is the right to “be given the thing” Accessions and
and not the right to “the thing itself.” It is also called Accessories (CIVIL
jus ad rem or a “beneficial right” over something. CODE, Art. 1166)

As to Risk of Loss of Thing Due

OBLIGATION TO DELIVER ACCESSIONS
AND ACCESSORIES GENERAL RULE: Loss, regardless of
The obligation to give a determinate thing includes Borne by Debtor until cause, does not relieve
that of delivering all of its accessions and delivered (CIVIL CODE, debtor of primary
accessories, even though they may not have been Art. 1165, par. 1, in rel. obligation to deliver
mentioned (CIVIL CODE, Art. 1166). to Art. 1170)

EXCEPTION: Loss due

ACCESSIONS
to fortuitous event
The ownership of property gives the right by (CIVIL CODE, Art.
accession to everything: 1174)
1. which is produced thereby; or
2. which is incorporated or attached thereto, either EXCEPTION TO
naturally or artificially (CIVIL CODE, Art. 440) EXCEPTION:
1. If the obligor is in
Examples: Fruits of a land still attached to the soil or delay;
plant from which they grow; Water in the swimming 2. If obligor has
pool; spoilers on a car. promised to deliver
the same thing to
ACCESSORIES two or more persons
Signifies all of those things which have for their object who do not have the
the embellishment, use or preservation of another same interest (CIVIL
thing which is more important and to which they are CODE, Art. 1165,
not incorporated or attached (JURADO, Obligations Par. 3)
and Contracts, supra at 48).

Examples: Paint on a house; Air Freshener inside a

car.
 CORRELATIVE RIGHTS OF THE CODE, Art. 1165,
CREDITOR par 3)
SPECIFIC GENERIC

As to Common Rights

Right to demand payment of damages if debtor is OBLIGATION TO DO

guilty of fraud, negligence, or delay in the OR NOT TO DO
performance of their obligation, and those in any
manner contravene the tenor thereof (CIVIL
CODE, Art. 1170).
THREE SITUATIONS CONTEMPLATED
As to Rights of Action Respecting
Primary Obligation UNDER ARTICLE 1167 WHICH REFERS
TO AN OBLIGATION TO DO:
1. Specific 1. Right to compel 1. The debtor fails to perform an obligation to do;
Performance (CIVIL delivery of a thing 2. The debtor performs an obligation to do, but
CODE, Art. 1165) which is neither of contrary to the terms thereof; or
2. Rescission of a superior nor inferior 3. The debtor performs an obligation to do but in a
Reciprocal quality (CIVIL poor manner (CIVIL CODE, Art.1167).
Obligation to Debtor CODE, Art. 1246)
in case of breach 2. Right to have the PERFORMANCE BY A THIRD PERSON
(CIVIL CODE, Art. obligation performed
A personal obligation to do, like a real obligation to
1191) by another at the
deliver a generic thing, can be performed by a third
expense of the
person (See CIVIL CODE, Art. 1165).
debtor (CIVIL CODE,
Art. 1165)
REMEDY OF SPECIFIC PERFORMANCE
As to Rights of Action Respecting Accessory NOT AVAILABLE IN PERSONAL
Obligation OBLIGATIONS
Unless otherwise N/A While the debtor can be compelled to make the
agreed: delivery of a specific thing, a specific performance
1. The right to compel cannot be ordered in a personal obligation to do
delivery of fruits because this may amount to involuntary servitude
accrued from which, as a rule, is prohibited under Section 18[2],
perfection of Art. III of the 1987 Constitution (DE LEON,
contract (CIVIL Obligations and Contracts, supra at 43).
CODE, Art. 1164)
2. The right to compel NOTE: Where the personal qualifications of the
delivery of debtor are the determining motive for the obligation
accessions and contracted (e.g., to sing in a nightclub), the
accessories present performance of the same by another would be
at perfection of impossible or would result to be so different that the
contract even if not obligation could not be considered performed.
specific in the Hence, the only remedy of the creditor is
contract (CIVIL indemnification (Id.).
CODE, Art. 1166)
3. The right to hold REMEDY IN CASE OF BREACH OF
debtor liable for loss POSITIVE PERSONAL OBLIGATION
even if resulting If a person obliged to do something fails to do it, the
from fortuitous event same shall be executed at his cost. This same rule
when loss occurred shall be observed if he does it in contravention of the
during delay or tenor of the obligation. Furthermore, it may be
when thing was decreed that what has been done poorly be undone
promised to two (CIVIL CODE, Art. 1167).
creditors with
different interests
prior to loss (CIVIL
REMEDY IN CASE OF BREACH OF NEGATIVE
POSITIVE PERSONAL
NEGATIVE PERSONAL OBLIGATION PERSONAL
OBLIGATION
When the obligation consists in not doing, and the OBLIGATION
obligor does what has been forbidden him, what has
been done may be undone at his expense (CIVIL (CIVIL CODE, Art. been done in breach
CODE, Art. 1168). 1167) of obligation, if
2. To shoulder the cost possible (CIVIL
NOTE: In obligations not to do, the duty of the obligor when some else – CODE, Art. 1168);
is to abstain from an act. Here, there is no specific a. does or 2. To pay Damages
performance. The very obligation is fulfilled in not accomplishes (CIVIL CODE, Arts.
doing what is forbidden. Hence, in this kind of what was 1170-1172, 2201-
obligation the debtor cannot be guilty of delay (DE promised 2202).
LEON, Obligations and Contracts, supra at 44). b. undoes what was
done
poorly(CIVIL
WHEN REMEDY TO COMPEL UNDOING CODE, Art.
NOT AVAILABLE: 1167);
1. Where the effects of the act which is 3. To pay Damages
forbidden are definite in character (CIVIL CODE, Arts.
Even if it is possible for the obligee to ask that the 1170-1172, 2201-
act be undone at the expense of the obligor, 2202).
consequences permanent in character and
contrary to the object of the obligation will be
DUTIES OF THE DEBTOR V. DUTIES OF
produced (JURADO, Obligations and Contracts,
supra at 55). THE CREDITOR
OBLIGATION TO DO
Illustration: For instance, should a TV star be
absolutely prohibited by his contract with his 1. To Do it (CIVIL 1. To have the
home station to appear in programs of other TV CODE, Art. obligation Executed
stations, the effects of the breach thereof can no 1167); at the cost of the
longer be undone. 2. To Shoulder the debtor (CIVIL
cost of execution CODE, Art. 1167);
2. Where it is physically or legally should he fail to do 2. To recover
impossible to undo what has been done it (Id); Damages in case of
because of the very nature of the act itself 3. To Undo what has breach (CIVIL
or of a provision of law, or because of been poorly done CODE, Art. 1170).
(Id);
conflicting rights of third persons (Id.).
4. To pay Damages in
case of breach
Note: In obligations to do or not to do, an act or
(CIVIL CODE, Art.
forbearance cannot be substituted by another act
1170).
or forbearance against the obligee’s will (CIVIL
CODE, Art. 1244, par. 2).
OBLIGATION NOT TO DO
SUMMARY OF PERSONAL
OBLIGATIONS (NSD) (UR)
1. Not to do what 1. To ask to Undo what
NEGATIVE should not be should not be done,
POSITIVE PERSONAL
PERSONAL done; at the debtor’s
OBLIGATION
OBLIGATION 2. To Shoulder the expense (CIVIL
cost of undoing CODE, Art. 1168);
As to Primary Obligation
(CIVIL CODE, Art. 2. To Recover
To do what was Not to do a specific act 1168); damages, where it
promised (CIVIL CODE, or omission (CIVIL 3. To pay Damages in would be physically
Art. 1167). CODE, Art. 1168). case of breach or legally impossible
(CIVIL CODE, Art. to undo what should
As to Liability in Case of Breach 1170). not have been done
because of the very
1. To undo what has 1. To shoulder the costs nature of the act
been poorly done of undoing what has itself, rights
 acquired by third ARTICLE 1170 OF THE CIVIL CODE
persons who acted APPLIES WHEN A BREACH OF DUTY IS
in good faith, when NEITHER PART OF A CONTRACT OR A
the effects of the QUASI-DELICT
acts prohibited are
Those liable under Art. 1170 should pay damages,
definite in character
but generally only if aside from the breach of contract,
and will not cease
prejudice or damage was caused (Berg v. Teus, G.R.
even if the thing
No. L-6453, October 30, 1964).
prohibited be
undone.
VOLUNTARY BREACH THROUGH
FRAUD OR DOLO
Fraud or dolo consists in the conscious and
intentional proposition to evade the normal fulfillment
BREACH OF of an obligation. This type of fraud, which is present
OBLIGATIONS during the performance of an obligation, must not be
confused with the causal or incidental fraud, which is
present at the time of the birth of an obligation. Under
our legal system, fraud in general may be classified
BREACH OF OBLIGATION/CONTRACT into civil and criminal fraud. Civil fraud, in turn, may
be classified into the following: first, the fraud or dolo
The failure without legal reason to comply with the
terms of the contract. It is also defined as the failure in the performance of an obligation; and second, the
fraud or dolo in the constitution or establishment of an
without legal excuse, to perform any promise which
obligation (JURADO, Obligations and Contracts,
forms the whole or part of the contract (Philippine
supra at 63).
National Bank v. Spouses Tajonera, G.R. No.
195889, September 24, 2014).
CRIMINAL FRAUD V. CIVIL FRAUD
BREACH OF OBLIGATION MAY BE: CRIMINAL FRAUD CIVIL FRAUD
1. As to Imputability of Liability
a. Voluntary – arises either by fraud, As to When Existing
negligence, delay, and in any manner Criminal fraud exists Civil Fraud exists when
contravene the tenor of the obligation (CIVIL when an act is there is a deliberate
CODE, Art. 1170); performed with malicious intent to
b. Involuntary – arises due to fortuitous events deliberate intent cause injury to another
(CIVIL CODE, Art. 1174); (REVISED PENAL person through acts or
CODE, Art. 3). omissions which are not
2. As to Magnitude normally punishable by
a. Substantial – fundamental breaches that NOTE: Criminal fraud law.
defeat the object of the parties in entering pertains to the essential
into agreement (Maglasang v. Northwestern element of malicious Civil Fraud is
Inc., G.R. No. 188986, March 20, 2013); and intent necessary to contractual where it
b. Casual – breaches which do not amount to a commit an act or relates to the creation or
fundamental injury to the contractual intent omission punishable by performance of
such as delay in payment where time is not law. contractual duty.
of the essence.
As to Effect
DIFFERENT MODES OF BREACH
Those who in the performance of their obligations are It is a mode of incurring It is a mode of incurring
guilty of: (FNDC) criminal liability. civil liability
1. Fraud (dolo)
Examples
2. Negligence (culpa)
3. Delay (mora) Intent to kill or intent to Contractual Fraud
4. Contravention of the tenor thereof (violatio) gain by taking property Intent to use
(CIVIL CODE, Art. 1170). with clear, chargeable substandard materials
knowledge that it to cut costs and obtain
belongs to another more profit under a
(RPC, Arts. 249 & 308). construction agreement
(Sps. David v. CIAC,
 b. Waiver of future fraud gives license to a
G.R. 159795, July 30,
contracting party to breach the contract
2004).
without consequence. Such a waiver
severely undermines the stability of
Tortious Fraud
contracts. It is void for being contrary to good
Deliberate invasion of
customs, morals, and public policy (CIVIL
privacy of another (Sps.
CODE, Art. 6)
Hing v. Choachuys,
G.R. No. 179736, June
26, 2013). 2. Waiver of Past Fraud generally not invalid
Rights may be waived, unless the waiver is
contrary to law, morals, or good customs (CIVIL
FRAUD IN THE CONSTITUTION OF AN CODE, Art. 6).
OBLIGATION V. FRAUD IN THE
PERFORMANCE OF AN OBLIGATION A past fraud can be the subject of a valid waiver.
Here, what is renounced is the effects of fraud,
Fraud in the Fraud in the that is, the right to indemnity of the party entitled
CONSTITUTION PERFORMANCE thereto (DE LEON, Obligations and Contracts,
of an obligation of an obligation supra at 63-64).
As to When Existing Waiver can be considered as an act of generosity
and magnanimity on the part of the party who is
Present only at the time Present only during the
the victim of the fraud (Id. at 63-64).
of the birth of the performance of a pre-
obligation. existing obligation.
CONTRACTUAL NEGLIGENCE
As to Purpose of Employment
CULPA CONTRACTUAL
Employed for the Employed for the
The fault or negligence of the obligor consists in the
purpose of securing the purpose of evading the
omission of the diligence which is required by the
consent of the other normal fulfillment of an
nature of the obligation and corresponds with the
party to enter into obligation already
circumstances of the persons, of the time and place
contract. established.
(CIVIL CODE, Art. 1173, par. 1).
As to Effect
In culpa contractual, the mere proof of the existence
Results in the vitiation Results in the non- of the contract, and the failure of its compliance,
of his consent. fulfillment or breach of justify prima facie a corresponding right of relief (FGU
the obligation. Insurance Corp. v. GP Sarmiento Trucking Corp.,
G.R. No. 141910. August 6, 2002).
As to Remedy
Negligence is conduct that creates an undue risk of
Gives rise to a right of Gives rise to a right of harm to others. It is the failure to observe that degree
the innocent party to the creditor or obligee to of care, precaution and vigilance that the
ask for the annulment of recover damages from circumstances justly demand. It is the omission to do
the contract if the fraud the debtor or obligor something which a reasonable man, guided by
is causal or to recover (CIVIL CODE, Art. considerations that ordinarily regulate the conduct of
damages if it is 1170). human affairs, would do, or doing something that a
incidental (CIVIL prudent and reasonable man would not do (Cang v.
CODE, Art. 1390). Cullen, G.R. No. 163078, November 25, 2009).
(Id. at 63).
NOTE: The effect of every infraction is to create a
new duty, that is, to make recompense to the one who
WAIVER OF FRAUD
has been injured by the failure of another to observe
1. Any waiver of action for future fraud is his contractual obligation unless he can show
void (CIVIL CODE, Art. 1171). extenuating circumstances, like proof of his exercise
of due diligence (normally that of the diligence of a
REASONS: good father of a family or, exceptionally by stipulation
a. Responsibility arising from fraud is or by law such as in the case of common carriers, that
demandable in all obligations (CIVIL CODE, of extraordinary diligence) or of the attendance of
Art. 1171). fortuitous event, to excuse him from his ensuing
liability. (Radio of the Philippines Communications, a pre-existing contract(JURADO, Obligations and
Inc. V. Verchez, G.R. No. 164349, January 31, 2006). Contracts, supra at 65);

Test of Negligence 2. Civil negligence(Culpa aquiliana; also

Did the defendant in doing the alleged negligent act called tort or quasi-delict)
use that reasonable care and caution which an – fault or negligence of a person which causes
ordinary prudent person would have used in the same damage to another where there is no pre-existing
situation? The law considers what would be reckless, contractual relation between the parties (CIVIL
blameworthy, or negligent in the man of ordinary CODE, Art. 2176);
intelligence and prudence and determines liability by
that (Philippine National Railways Corporation v. 3. Criminal Negligence (Culpa Criminal)
Vizcara, G.R. No. 190022, February 15, 2012). – fault or negligence which had it been
intentional, would constitute a felony (REVISED
PENAL CODE, Art. 365).
Factors to be considered
Negligence is a question of fact, its existence being
CULPA CONTRACTUAL V. CULPA
dependent upon the particular circumstances of each
case. The following factors must be considered: AQUILIANA V. CULPA CRIMINAL
(NaP-TiP) CULPA CULPA CULPA
1. Nature of the obligation; CONTRACTUAL AQUILIANA CRIMINAL
2. Circumstances of the Person;
3. Circumstances of Time; and As to the Character of the
4. Circumstances of the Place (CIVIL CODE, Art. Negligence of the Defendant
1173).
Negligence is Negligence is Negligence is
Standard of Diligence Required merely incidental direct, direct,
If law or contract does not state the diligence which is to the substantive, substantive,
to be observed in the performance, that which is performance of and and
expected of a good father of a family is required an obligation independent. independent.
(CIVIL CODE, Art. 1173, par. 2). already existing
because of a
If the obligor acted in good faith, he shall be liable contract.
only for natural and probable consequences of the
breach of obligation and which the parties have As to the Relationship of the Parties
foreseen or could have reasonably foreseen at the
There is always a There may or Relationship
time the obligation was constituted (CIVIL CODE,
pre-existing may not be a immaterial.
Art. 2201, par. 1; Continental Cement Corporation v.
contractual pre-existing
Asea Brown Boveri, Inc., G.R. No. 171660, October
relation. contractual
17, 2011).
relation.
Kinds of Diligence Required under Art. 1173: As to the Source of Obligation
(ARF)
1. The Agreed upon by the parties, orally or in Breach or non- Injury Defendant’s
writing; fulfillment of proximately criminal act.
2. In the absence of stipulation, that Required by contract. caused by the
law in the particular case (e.g., extraordinary negligent act or
diligence for common carriers); and omission.
3. If both contract and law are silent, then the
diligence expected of a good Father of a family As to Proof Required
(bonus pater familia) (CIVIL CODE, Art. 1173).
Requires proof Requires proof Requires
CONTRACTUAL NEGLIGENCE by by proof beyond
preponderance preponderance reasonable
DISTINGUISHED FROM OTHER TYPES of evidence. of evidence. doubt.
OF NEGLIGENCE IN LAW
1. Contractual negligence (Culpa As to the Availability of Diligence as a Defense
contractual)
Exercise of Due Exercise of Due Diligence
– fault or negligence of obligor by virtue of which
diligence is a Due diligence is not a
he is unable to perform his obligation arising from
valid defense is a valid defense
 CULPA CULPA CULPA WHEN NEGLIGENCE EQUIVALENT TO
CONTRACTUAL AQUILIANA CRIMINAL FRAUD
Where the negligence shows bad faith or is so gross
except where law defense except unless it that it amounts to malice or wanton attitude on the
or contract where law or constitutes a part of the defendant, the rules on fraud shall apply
imposes strict contract justifying or (CIVIL CODE, Art. 1173).
liability. imposes strict exempting
liability. circumstance.
FRAUD (DOLO) V. NEGLIGENCE
As to the Presumption of Fault (CULPA)
FRAUD NEGLIGENCE
Proof of Plaintiff has to Accused is
(DOLO) (CULPA)
existence of a prove presumed
contract and negligence of innocent, until As to Willfulness to Cause Damage
breach thereof the defendant. the contrary is
gives rise to a proved. Willfulness or deliberate Mere want of care or
presumption of intent to cause damage diligence and not the
fault. or injury to another voluntariness of act or
omission
PRESUMPTION OF CONTRACTUAL
NEGLIGENCE As to Mitigation of Liability
Proof that the contract (1) exists and (2) has been
breached gives rise to the presumption of negligence Liability cannot be Liability may be
on the part of the obligor such that he must show with mitigated by courts. mitigated by courts.
clear and convincing proof that he exercised due
diligence or that he was not responsible for the As to Validity of Waiver
breach.
Waiver for future fraud Waiver for future
is void. negligence:
EFFECTS OF NEGLIGENCE: 1. Valid if simple
1. Damages are demandable which the court may 2. Void if gross
regulate according to circumstances (CIVIL
CODE, Art. 1172); and As to How it is Proved
2. Invalidates defense of fortuitous event (4
TOLENTINO, supra at 130). Presumed from the Must be clearly proved.
breach of a contractual
EFFECT IF OTHER PARTY ALSO GUILTY obligation.
OF CONTRACTUAL NEGLIGENCE (4 PARAS, supra at 140).
Both parties are liable for damages to each other
resulting from their own negligence. Such mutual GROSS INEXCUSABLE NEGLIGENCE
liability may be set off against each other in It is negligence characterized by the want of even
accordance with the rules on Compensation under slight care-acting or omitting to act in a situation
Articles 1278-1290 of the CIVIL CODE. where there is a duty to act, not inadvertently but
willfully and intentionally, with a conscious
NOTE: Some authors use as basis Article 2179 of the indifference to consequences insofar as other
CIVIL CODE. It must be noted however that persons may be affected (Jaca v. People, G.R. No.
contractual negligence and negligence as an element 166967, January 28, 2013).
of quasi-delict gives rise to separate liabilities and do
not have the same effects. BREACH BY DELAY
WAIVER OF ACTION FOR FUTURE ORDINARY DELAY
NEGLIGENCE It refers to the non-fulfillment of an obligation with
An action for future negligence (not fraud) may be respect to time (J Plus Asia Development Corporation
renounced except where the nature of the obligation v. Utility Assurance Corporation, G.R. No. 199650,
requires the exercise of extraordinary diligence as in June 26, 2013).
the case of common carrier (CIVIL CODE, Art. 1173;
DE LEON, Obligations and Contracts, supra at 63). NOTE: Mere delay does not result in breach.
LEGAL DELAY OR DEFAULT OR MORA Necessity of Demand
Those obliged to deliver or to do something incur in Without demand, judicial or extra-judicial, the effect
delay from the time the obligee judicially or extra- of default will not arise (Development Bank of the
judicially demands from them the fulfillment of their Philippines v. Guarina Agricultural and Realty Dev.
obligation (CIVIL CODE, Art. 1169, par. 1). Corp., G.R. No. 160758, January 15, 2014).

The law contemplates legal delay. Those obliged to Exceptions: (OLTUA)

deliver or to do something incur in delay from the time 1. When the Obligation expressly so declares;
the obligee judicially or extrajudicially demand from 2. When the Law expressly so provides;
them the fulfillment of their obligation. In reciprocal 3. When Time is of the essence of the contract;
obligations, from the moment one of the parties fulfills 4. When demand would be Useless because of
his obligation, delay by the other begins (Solar a. some act or fault of the debtor; or
Harvest, Inc. v. Davao Corrugated Carton b. impossibility of performance caused by
Corporation, G.R. No. 176868, July 26, 2010). fortuitous event (CIVIL CODE, Art. 1169)
5. When the obligor has expressly Acknowledged
Delay in the performance of the obligation, however, that he really is in default (see Estoppel, CIVIL
must be either malicious or negligent. If delay is only CODE, Art. 1431)
due to inadvertence without any malice or
negligence, the obligor cannot be liable under Art. NOTE: Mere asking for extension of time is not
1170 of the CIVIL CODE (RCBC v. CA, G.R. No. an express acknowledgment of the existence of
133107, March 25, 1999). default on his part.

Instance Where the Law Declares demand to be

KINDS OF DEFAULT: unnecessary
1. Mora Solvendi A partner is liable for the fruits of the thing he may
– default of obligor have promised to contribute to the partnership from
the time they should have been delivered without the
2. Mora Accipiendi need of any demand (CIVIL CODE, Art. 1786; see
– default of oblige also Art. 1788).

3. Compensatio Morae Instances where Time is of the Essence

– default on the part of both debtor/obligor and 1. The delivery of souvenirs on a particular date
the creditor/obligee which arises in reciprocal when a wedding ceremony will be held.
obligations. 2. The making of dress where the debut is
scheduled at a certain time.
A. MORA SOLVENDI 3. The delivery of perishable goods.
Delay on the part of the debtor by not performing his
obligation after a demand/specified time and may Presumption that Time is NOT of the Essence
either be: When the time of delivery is not fixed or is stated in
1. Ex Re– obligations to give; and general and indefinite terms, time is not of the
2. Ex Persona– obligations to do (JURADO, essence of the contract. In such cases, the delivery
Obligations and Contracts, supra at 57). must be made within a reasonable time. What is
reasonable time will depend upon the circumstances
Requisites of Mora Solvendi: (D2P) of the particular case (Lorenzo Shipping Corp. v. BJ
1. The obligation is Demandable and already Marthel International Inc., G.R. No. 145483,
liquidated; November 19, 2004).
2. The debtor Delays performance; and
3. The creditor requires Performance, judicially or Valid Demand
extra-judicially (Polo S. Pantaleon v. American 1. Judicial demand
Express International, Inc., G.R. No. 174269, —as when a complaint for specific performance
May 8, 2009). is filed (Palmares v. CA, G.R. No. 126490, March
31, 1998).
Where Mora Solvendi Impossible
1. In obligations not to do, non-fulfillment may take 2. Extra-judicial demand
place but delay is impossible for the debtor fulfills – as when a demand letter is served without court
by not doing what has been forbidden him (DE proceedings.
LEON, Obligations and Contracts, p. 46).
2. There is also no mora in natural obligations (4 NOTE: A mere reminder cannot be considered a
PARAS, supra at 125). demand for performance, because it must appear
that the tolerance or benevolence of the creditor must
have ended (Vazquez v. Ayala Corporation, G.R. No. Remedy of Debtor in case of Mora Accipiendi
149734, November 19, 2004). He must either:
1. Consign it in court (expenses chargeable to
Grace Period creditor); or
A grace period is not an obligation of the debtor, but 2. Keep it himself, here he should still exercise
a right. It must not be likened to an obligation, the diligence and care, but this time, he would not be
non-payment of which under Art. 1169 of the CIVIL liable for loss due to a fortuitous event (2
CODE would generally still require judicial or MANRESA 361).
extrajudicial demand before default can arise. When
unconditionally conferred, it is effective without need Effects of Mora Accipiendi:
of demand, either for the payment of the obligation or 1. The creditor is guilty of breach of obligation;
for the honoring of the right (Optimum Development 2. Responsibility of the debtor for the thing is
Bank v. Spouses Jovellanos, G.R. No. 189145, reduced and limited to fraud and gross
December 4, 2013, citing Bricktown Dev’t. Corp. v. negligence;
Amor Tierra Dev’t. Corp., G.R. No. 112182, 3. Debtor is exempted from the risks of loss of the
December 12, 1994). thing, which automatically passes to the creditor
(CIVIL CODE, Art. 1162);
4. All expenses incurred by the debtor for the
Effects of Mora Solvendi preservation of the thing after the delay shall be
1. The debtor is guilty of breach of the obligation chargeable to the creditor;
(CIVIL CODE, Art. 1170); 5. The creditor becomes liable for damages;
2. He is liable for loss or delay even if caused by 6. The debtor may relieve himself of the obligation
fortuitous event when the obligation is to deliver by consignation of the thing or sum due (CIVIL
a determinate thing (CIVIL CODE, Arts. 1165 and CODE, Art. 1256); and
1170); and 7. If the obligation bears interest, the debtor does
3. He is liable for interest in case of obligations to not have to pay from the moment of the creditor’s
pay money (CIVIL CODE, Art. 2209), or damages delay (4 TOLENTINO, supra at 108).
in other obligations (CIVIL CODE, Art. 1170).
C. COMPENSATIO MORAE
NOTE: When the demand is established with In reciprocal obligations, neither party incurs delay if
reasonable certainty, the interest shall begin to the other does not comply or is not ready to comply
run from the time the claim is made judicially or in a proper manner with what is incumbent upon him.
extrajudicially but when such certainty cannot be From the moment one of the parties fulfills his
so reasonably established at the time the obligation, delay by the other begins (CIVIL CODE,
demand is made, the interest shall begin to run Art.1169, par. 3).
only from the date the judgment of the court is
made (Federal Builders, Inc. v. Foundation In reciprocal obligations, no demand is generally
Specialists, Inc., G.R. No. 194507, September 8, necessary. But when different dates for performance
2014). of the obligations are fixed, the default for each
obligation must be determined by the rules given in
B. MORA ACCIPIENDI the first paragraph of Art. 1169, that is, the other parry
The delay on the part of the creditor without justifiable would incur in delay only from the moment the other
reason to accept the performance of the obligation party demands fulfillment of the former’s obligation
(DE LEON, Obligations and Contracts, supra at 45). (Solar Harvest, Inc. v. Davao Corrugated Carton
Corporation, G.R. No. 176868, July 26, 2010).
NOTE: Read in relation to Arts. 1256-1261 (Tender
of Payment and Consignation). Effects of Compensatio Morae:
1. Delay of the obligor cancels delay of the obligee
Requisites of Mora Accipiendi: (PCR) and vice versa;
1. Offer of Performance by the debtor who has the 2. No actionable default on the part of both parties;
required capacity; and
2. Offer must be to Comply with the prestation, as it 3. If delay of one party is followed by that of the
should be performed; and other, the liability of the first infractor shall be
3. Creditor Refuses the performance without just equitably balanced by the courts. If it cannot be
cause (Polo S. Pantaleon v. American Express determined which of the parties is guilty of delay,
International, Inc., G.R. No. 174269, May 8, the contract shall be deemed extinguished and
2009). each shall bear his own damages (CIVIL CODE,
Art. 1192).
BREACH BY DEFECTIVE CLASSIFICATION OF FORTUITOUS
PERFORMANCE EVENT
1. By Nature or Acts of God
CONTRAVENTION OF TENOR – they are those events which are totally
The phrase “in any manner contravene the tenor” of independent of the will of every human being
the obligation includes any illicit act or omission which (e.g., earthquake, flood, rain, shipwreck, lighting,
impairs the strict and faithful fulfillment of the eruption of volcano, etc.) and which are also
obligation and every kind of defective performance called force majeure; and
(Victorino D. Magat v. Hon. Leo D. Medialdea, G.R.
No. L-37120, April 20, 1983). 2. By Act of Man
– fortuitous event independent of the will of the
Examples: obligor but not of other human wills (e.g., armed
1. The taxi company is duty-bound to pay the invasion, attack by bandits, robbery etc.) (DE
damages to the passenger if the driver kills the former LEON, Obligations and Contracts, supra at 77-
since the taxi company has the duty to protect the 78).
passengers with utmost care (Maranan v. Perez,
G.R. No. L-22272, June 26, 1967); NOTE: In law, fortuitous events and force majeure
2. If a person enters into a contract where he has to are identical in so far as they exempt an obligor from
meet certain bank requirements, but is unable to liability. Both are independent of the will of the obligor
meet said requirements, he is liable for breach of (Republic of the Philippines v. Luzon Stevedoring
contract, if he knew from the beginning that said Corporation, G.R. No. L-21749, September 29,
requirements could not be complied by him (Arrieta v. 1967).
NARIC, G.R. No. L-15645, January 31, 1964).

CONCURRENT AND PREVIOUS

NEGLIGENCE OF OBLIGOR
FORTUITOUS EVENTS The principle embodied in the act of God doctrine
strictly requires that the act must be occasioned
solely by the violence of nature. Human intervention
is to be EXCLUDED from creating or entering into the
FORTUITOUS EVENT cause of the mischief. When the effect is found to be
Fortuitous events by definition are extraordinary in part the result of the participation of man, whether
events not foreseeable or avoidable. It is therefore, due to his active intervention or neglect or failure to
not enough that the event should not have been act, the whole occurrence is then humanized and
foreseen or anticipated, as is commonly believed but removed from the rules applicable to the acts of God
it must be one impossible to foresee or to avoid. The (Sulpicio Lines, Inc. v. Napoleon Sesante, G.R. No.
mere difficulty to foresee the happening is not 172682, July 27, 2016).
impossibility to foresee the same (Sicam v. Jorge,
G.R. No. 159617, August 8, 2007). For defense of force majeure to prosper, it is
necessary that one has committed no negligence or
REQUISITES OF FORTUITOUS EVENT: misconduct that may have occasioned the loss. An
act of God cannot be invoked to protect a person who
(IFIF)
has failed to take steps to forestall the possible
1. The event must be Independent of the human will adverse consequences of such a loss. Once
or at least of the obligor’s will; negligence may have concurred with an act of God in
2. The event could not be Foreseen, or if it could be producing damage and injury to another;
foreseen, it must have been impossible to avoid; nonetheless, showing that the immediate or
3. The event must be of such a character as to proximate cause of the damage or injury was a
render it Impossible for the obligor to fulfill his fortuitous event would not exempt one from liability
obligation in a normal manner; and (RCPI v. Alfonso Verchez, G.R. No. 164349, January
4. The obligor must be Free from any participation 31, 2006).
in the aggravation of the injury resulting to the
obligee (Philippine Realty and Holdings Corp., NOTE: It is based on the doctrine of volenti non fit
G.R. No. 165548, June 13, 2011). injuria – no wrong is done to one who consents
(JURADO, Obligations and Contracts, supra at 96).
EXAMPLES OF EVENTS NOT 4. The thing to be delivered is generic in accordance
FORTUITOUS with the principle that genus never perishes
(CIVIL CODE, Art. 1263); and
1. The fluctuating movement of the Philippine peso 5. Others (e.g. Arts. 552[2], 1942, 2147, 2148,
in the foreign exchange market is an everyday 2000, 2001, 1198 and 2159 of the CIVIL CODE).
occurrence, and the fluctuations in currency
exchange rates happen every day, thus, not an
instance of caso fortuito (Fil-Estate Properties, ASSUMPTION OF RISK
Inc. v. Sps. Ronquillo, G.R. No. 185798, January Assumption of the risk in its primary sense arises by
13, 2014); assuming through contract, which may be implied,
2. Increase in cost of performance (U.S. v. the risk of a known danger. The defense of
Varadero de la Quinta, G.R. No. 14370, assumption of risk presupposes:
September 1, 1919); 1. That the plaintiff had actual knowledge of the
3. Poverty (Repide v. Alzelius, G.R. No. L-13438, danger;
November 20, 1918); 2. That he understood and appreciated the risk from
4. War between the subjects of a neutral country the danger; and
and the subject of a country at war, as long as 3. That he voluntarily exposed himself to such risk
substantial compliance can still be done (Int. (Abrogar v. Cosmos Bottling Company, G.R. No.
Harvester Co. v. Hamburg-American Line, G.R. 164749, March 15, 2017).
No. L-11515, July 29, 1918); and
5. Mechanical defects in vehicles used for common
carriage (Necesito v. Paras, G.R. No. L-10605,
June 30, 1958).
EFFECTS OF LOSS BY FORTUITOUS
EXTINGUISHMENT OF LIABILITY IN EVENT IN REAL OBLIGATIONS
CASE OF BREACH DUE TO 1. On determinate obligation
FORTUITOUS EVENT – the obligation is extinguished (CIVIL CODE,
Except in cases expressly specified by law, or when Art. 1174);
it is otherwise declared by stipulation, or when the
nature of the obligation requires the assumption of 2. On generic obligation
risk, no person shall be responsible for those events – the obligation is not extinguished (genus nun
which could not be foreseen or which, though quam peruit – genus never perishes) (CIVIL
foreseen, were inevitable (CIVIL CODE, Art. 1174). CODE, Art. 1263);and

3. On limited generic
EXCEPTIONS TO DOCTRINE OF – the obligation will extinguish when the whole of
FORTUITOUS EVENT: (LSA) the class perishes.
1. When expressly declared by Law;
2. When expressly declared by Stipulation or EFFECT OF FORTUITOUS EVENT ON
contract; or
3. When the nature of the obligation requires the
PERIOD PROVIDED
Assumption of risk (CIVIL CODE, Art. 1174). Where the contract stipulated that in case of a
fortuitous event, the period provided in the contract
for delivery shall be suspended, the period of time
SOME LAWS WHICH STIPULATE
when the contract was suspended cannot be
LIABILITY DESPITE FORTUITOUS deducted from the term of the contract because to
EVENT add the said years upon the resumption of the
1. The debtor is guilty of fraud, negligence, or delay, contract would in effect be an extension of the
or contravention of the tenor of the obligation contract (Victorias Planters Association Inc., v.
(CIVIL CODE, Art. 1170); Victorias Milling Co, G.R. No. L-6648, July 25, 1955).
2. The debtor has promised to deliver the same
(specific) thing to two or more persons who do
not have the same interest for it would be
impossible for the debtor to comply with his
obligation to two or more creditors even without
any fortuitous event taking place (CIVIL CODE,
Art. 1165);
3. The debt of a thing certain and determinate
proceeds from a criminal offense (CIVIL CODE,
Art. 1268);
 forbidden him, it shall be undone at his expense
REMEDIES AGAINST (CIVIL CODE, Art. 1168).

BREACH OF CONTRACT EXCEPTION: When the only feasible remedy is

indemnification for the damages caused by
reason that:
a. It has become impossible to undo the thing
PRIMARY REMEDIES OF CREDITORS: physically or legally; or
(PDR) b. If the act is definite and will not cease even if
1. Action for Performance (Specific Performance or undone.
Substituted Performance);
2. Action for Damages (exclusively or in addition to ACTION FOR DAMAGES
action for performance); and Those who in the performance of their obligations are
3. Action for Rescission. guilty of fraud, negligence, or delay, and those who in
any manner contravene the tenor thereof, are liable
SUBSIDIARY REMEDIES OF for damages (CIVIL CODE, Art. 1170).
CREDITORS: (SPO)
One injured by a breach of a contract, or by a
1. Accion Subrogatoria;
wrongful or negligent act or omission shall have a fair
2. Accion Pauliana; and
and just compensation commensurate to the loss
3. Other specific remedies.
sustained as a consequence of the defendant’s act
(Llorente, Jr. v. Sandiganbayan, G.R. No. 122166,
ACTIONS FOR PERFORMANCE March 11, 1998).
1. Action for Specific Performance
When what is to be delivered is a determinate ACTION FOR RESCISSION
thing, the creditor, in addition to his right for
The power to rescind obligations is implied in
indemnification of damages, may compel the
reciprocal obligations, in case one of the obligors
debtor to make the delivery (CIVIL CODE, Art.
should not comply with what is incumbent upon him
1165, par. 1).
(CIVIL CODE, Art. 1191, par. 1).
NOTE: The debtor of a thing cannot compel the
NOTE: This applies in case of a tacit resolutory
creditor to receive a different one, although the
condition.
latter may be of the same value as, or more
valuable than that which is due (CIVIL CODE, Art.
The injured party may choose between fulfillment and
1244).
rescission of the obligation, with the payment of
damages in either case.
2. Action for Substituted Performance (in
obligation to give an indeterminate thing) Should he choose fulfillment and the same should
If the thing is indeterminate or generic, he may become impossible, the injured party may still seek
ask that the obligation be complied with at the for rescission.
expense of the debtor (CIVIL CODE, Art. 1165,
par. 2). The court shall decree the rescission claimed unless
there be a just cause authorizing the fixing of the
3. Action for Substituted Performance or period (CIVIL CODE, Art. 1191).
Undoing of Poor Work (in obligation to
do) Requisites of Action for Rescission under Art.
If a person obliged to do something fails to do it, 1191: (ReF-SuC)
the same shall be executed at his cost. This same 1. The parties are Reciprocally obligated;
rule shall be observed if he does it in 2. One of the parties Failed to comply with what is
contravention of the tenor of the obligation. incumbent upon him;
Furthermore, it may de decreed that what has 3. The breach is Substantial so as to defeat the
been done poorly be undone (CIVIL CODE, Art. object of the parties in making the agreement;
1167). 4. The injured party Chose the remedy of rescission
instead of enforcement, or had no other remedy
4. Action for Undoing (in obligation not to because enforcement became impossible.
do)
GENERAL RULE: When the obligation consists NOTE: Art. 1191 is taken from Art. 1124 of the Old
in not doing, and the obligor does what has been Civil Code, but the present Code uses the term
rescission instead of resolution. Nevertheless, the
Code uses the term synonymously. Requisites: (IPE)
1. Debtor to whom a right of action properly pertains
SUBSIDIARY REMEDY must be Indebted to the creditor;
The term “subsidiary remedy” has been defined as 2. Creditor must be Prejudiced by the inaction or
“the exhaustion of all remedies by the prejudiced failure of the debtor to proceed against the third
creditor to collect claims due him before rescission is person; and
resorted to” (Siguan v. Lim, G.R. No. 134685, 3. Creditor must have first pursued or Exhausted all
November 19, 1999). the properties of the debtor which are not
exempted for execution.
Rescission is not a principal remedy, but a subsidiary
one. It can only be availed of only if the injured party Illustration:
proves that he has no other legal means to obtain D is indebted to C for a sum of money in the amount
redress for the damage caused. (CIVIL CODE, Art. of P1M. After demand failed and a determination that
1191, par. 1) D no longer has sufficient leviable properties, C may
see if any third person may be indebted to D. If C
should find that T is indebted to D for P50, 000, and
REMEDIES OF CREDITOR UNDER that the debt is due and demandable, C has the right
ARTICLE 1177: (SPA2) of action to compel T to pay the P50,000 to him.
1. Primary Remedies
a. Specific performance, or the exact fulfillment Exceptions to Accion Subrogatoria: (EP-HAS)
of the obligation with the right to damages; 1. Inherent rights of the debtor, like:
b. Pursue the leviable, or to purse the property a. Right to Existence;
in possession of the debtor which are not b. Rights or relations of a Public character (like
exempt from attachment under the law; positions in the government);
c. Rights of an Honorary character (like a
2. Subsidiary Remedies doctor’s degree, honoris causa);
a. Accion Subrogatoria d. Rights pertaining to the Affairs of the home
b. Accion Pauliana and the family (such as the personal rights of
husband and wife); and
Pursuing the Leviable Property or Property in e. The right to appear in court proceedings, like
Possession of the Debtor the Settlement of an estate (4 PARAS, supra
To exhaust the property in possession of the debtor at 180).
generally by attachment, subject to exemptions 2. Only those who at the time of the donor’s death
provided by law (4 PARAS, supra at 183). have a right to the legitime and their successors-
in-interest may ask for the reduction or inofficious
NOTE: The debtor is liable with all his property, donations (CIVIL CODE, Art. 772).
present and future, for the fulfillment of his obligations
subject to exemptions provided by law (CIVIL CODE, ACCION PAULIANA
Art. 2236). Creditors have the right to impugn the acts which the
debtor may have done to defraud them (CIVIL CODE,
The exemptions referred to are found in: Art. 1177).
1. Sec. 13 Rule 39 of the New Rules of Court,
2. Sec. 118 and 13 of the Public Land Law (Com. This provision must be read in relation to Article
Act No. 141), and 1381(3) which provides that contracts executed in
3. Arts. 152, 153, 154, 155, and 205 of the Family fraud of creditors are rescissible.
Code. It refers to the right available to the creditor by virtue
of which he can secure the rescission of any act of
ACCION SUBROGATORIA the debtor which is in fraud and to the prejudice of his
(SUBROGATORY ACTION) rights as a creditor (JURADO, Obligations and
Action which the creditor may exercise all rights and Contracts, supra at 105).
actions in place of the negligent debtor, except those
inherent in the person (like parental authority, right to NOTE: Accion Pauliana is different from the
revoke donations on ground of ingratitude, hold “rescission” contemplated under Art. 1191 of the
office, carry out an agency), in order to preserve or CIVIL CODE. The latter is a primary action and not
recover for the patrimony of the debtor the product of subsidiary (JURADO, Obligations and Contracts,
such action, and then obtain therefrom the 2010, supra at 105).
satisfaction of his own credit (4 PARAS, supra at
183).
Requisites: (C-SOFA)
1. Plaintiff asking for rescission has Credit prior to NOTE: New debts contracted by an insolvent debtor
the alienation, although demandable later; are not included within the scope of accion pauliana
2. Debtor has made a Subsequent contract because only acts which impair the assets of the
conveying a patrimonial benefit to a third person; debtor are covered by the provision and those which
3. Creditor has no Other legal remedy to satisfy its merely increase his liabilities are not (4 TOLENTINO,
claim, but would benefit by rescission of the supra at 140).
conveyance to the third person;
4. Act being impugned is Fraudulent; and ACCION DIRECTA
5. Third person who received the property A person may directly sue another even if there is no
conveyed, if by onerous title, has been an privity of contract between them (CIVIL CODE, Arts.
Accomplice in the fraud (Holcim Phils., Inc. v. 1652, 1608, 1729, 1893).
Losloso, G.R. No. 203871, January 15, 2014).
Specific cases include the following:
Accion Pauliana as Remedy of Last Resort 1. In case of SUBLEASE, the sublessee is
The action for rescission is but a subsidiary remedy subsidiarily liable to the lessor for any rent due
which cannot be instituted except when the party from the lessee. However, the sublessee shall
suffering damage has no other legal means to obtain not be responsible beyond the amount of rent due
reparation for the same (CIVIL CODE, Art. 1383). from him, in accordance with the terms of the
sublease, at the time of the extrajudicial demand
An accion pauliana must be of last resort, availed of by the lessor.
only after the creditor has exhausted all the properties
of the debtor not exempt from execution or after all NOTE: Payments of rent in advance by the
other legal remedies have been exhausted and have sublessee shall be deemed NOT to have been
been proven futile (Metropolitan Bank and Trust made, so far as the lessor's claim is concerned,
Company v. International Exchange Bank, G.R. No. unless said payments were effected in virtue of
176008, August 10, 2011). the custom of the place (CIVIL CODE, Art. 1652).
Presumptions of Fraud 2. In case of CONVENTIONAL REDEMPTION, the
The following are presumptions of fraud of creditors vendor may bring his action against every
provided under Art. 1387 of the CIVIL CODE: possessor whose right is derived from the
1. Alienation of property by gratuitous title without vendee, even if in the second contract no mention
reserving sufficient property to pay debts prior to should have been made of the right to
donation; and repurchase, without prejudice to the provisions of
2. Alienation by onerous title when there is the Mortgage Law and the Land Registration Law
judgment or attachment. with respect to third persons (CIVIL CODE, Art.
1608).
ACCION SUBROGATORIA V.
ACCION PAULIANA 3. In case of a CONTRACT FOR A PIECE OF
WORK, subject to the provisions of special laws,
ACCION ACCION PAULIANA those who put their labor upon or furnish
SUBROGATORIA materials for a piece of work undertaken by the
As to the Existence of Credit contractor have an action against the owner up to
the amount owing from the latter to the contractor
Not essential that credit Credit must have at the time the claim is made. However, the
is prior to the acquisition existed before debtor's following shall not prejudice the laborers,
of debtor’s right. fraudulent act. employees and furnishers of materials:
a. Payments made by the owner to the
As to the Creditor’s Intent to Defraud contractor before they are due;
b. Renunciation by the contractor of any
Intent to defraud Intent to defraud amount due him from the owner (CIVIL
creditor is not required. creditor is required. CODE, Art. 1729); and

As to Prescription 4. In case of SUB-AGENCY under Art. 1892, the

principal may bring an action against the
No period of Action prescribes within substitute with respect to the obligations which
prescription. four (4) years from the the latter has contracted under the substitution
discovery of the fraud. (CIVIL CODE, Art. 1893).
(JURADO, Obligations and Contracts, supra at 104-
105).
TRANSMISSIBILITY OF CREDITS PRESUMPTIONS OF PAYMENT
GENERAL RULE: Rights acquired by virtue of an 1. Presumption when there is a receipt of
obligation are transmissible in character (CIVIL the principal by the creditor
CODE, Art. 1178). The receipt of the principal by the creditor,
without reservation with respect to the interest,
Consequently, they may be alienated or assigned to shall give rise to the presumption that said
third persons (JURADO, Obligations and Contracts, interest has been paid (CIVIL CODE, Art. 1176,
supra at 105). par. 1).

EXCEPTIONS: (LaNS) 2. Presumption when there is a receipt of a

1. Where they are not transmissible by operation of later installment of a debt
Law; The receipt of a later installment of a debt without
2. Where they are not transmissible by their very reservation as to prior installments, shall likewise
Nature, such as in the case of a purely personal raise the presumption that such installment has
right; and been paid (CIVIL CODE, Art. 1176, par. 2).
3. Where there is a Stipulation of the parties that
they are not transmissible (CIVIL CODE, Arts. NOTE: The presumption established in this
1178 & 1311). article is prima facie. The presumption that the
interest has been paid is based on the
consideration that as payments are first applied
to the interest (CIVIL CODE, Art. 1253), the
OTHER PRINCIPLES OF receipt of the principal must have taken place
OBLIGATIONS because the interest had already been paid.

INSTANCES WHEN PRESUMPTIONS IN

ART. 1176 OF THE CIVIL CODE DO NOT
USURIOUS INTERESTS APPLY:
1. When there is a reservation as to interest or prior
USURY installments, made orally or in writing;
Contracting for or receiving interest in excess of the 2. Receipt for a part of principal
amount allowed by law for the loan or forbearance of 3. If the receipt does not recite that it was issued for
money – the taking of more interest for the use of a particular installment due as when the receipt
money than the law allows (Tolentino v. SyChiam, is only dated;
G.R. No. 26085, August 12, 1927). 4. In payment of taxes; and
5. Where non-payment of the prior obligations has
USURIOUS TRANSACTIONS been proven (DE LEON, Obligations and
Usurious transactions shall be governed by special Contracts, supra at 97).
laws (CIVIL CODE, Art. 1175).

The special law governing usury is Act No. 2655, as

amended, or the Usury Law. However, there is DIFFERENT KINDS OF
currently no “legally usurious rate.” This is because
pursuant to Section 1 of the Usury Law, the Monetary
OBLIGATIONS
Board of the Bangko Sentral has the power to (ARTS. 1179-1230)
prescribe the ceiling interest rates. Then under C.B.
Circular No. 905, the BSP lifted the ceiling rates.

Be that as it may, the Supreme Court has struck down CLASSIFICATION OF OBLIGATION
“usurious” rates for being unconscionable and 1. As to the primary classification under the
contrary to morals (Medel v. Court of Appeals, G.R. CIVIL CODE:
No. 131622, November 27, 1998). a. Pure and conditional (CIVIL CODE, Arts.
1179-1192);
(See Discussion on Simple Loan or Mutuum under b. Obligations with a period (CIVIL CODE, Arts.
Loan and Deposit) 1193-1198);
c. Alternative and facultative (CIVIL CODE,
Arts. 1199-1206);
d. Joint and solidary (CIVIL CODE, Arts. 1207-
1222);
 e. Divisible and indivisible (CIVIL CODE, Arts. PURE OBLIGATIONS
1223-1225); and Obligations whose performance do not depend upon
f. With a penal clause (CIVIL CODE, Arts. a future or uncertain event or upon a past event
1226-1230). unknown to the parties are demandable at once
(CIVIL CODE, Art. 1179, par. 1).
2. Classification of a secondary character
under the CIVIL CODE: Obligations which contain no terms or conditions
a. Legal, conventional, and penal (CIVIL whatever upon which depends the fulfillment of the
CODE, Arts. 1158-1162); obligation contracted by the obligor (4 TOLENTINO,
b. Real and personal (CIVIL CODE, Arts. 1163- supra at 143).
1168);
c. Determinate and generic (CIVIL CODE, Arts. WHEN IS AN OBLIGATION
1163-1166);
d. Positive and negative (CIVIL CODE, Arts.
DEMANDABLE AT ONCE:
1167-1168); An obligation is demandable at once
e. Unilateral and bilateral (CIVIL CODE, Arts. 1. When it is pure (CIVIL CODE, Art. 1179, par. 1);
1169-1191); 2. When it is subject to a resolutory condition (CIVIL
f. Individual and collective (CIVIL CODE, Arts. CODE, Art. 1179 par. 2); or
1207, 1223); and 3. When it is subject to a resolutory period (CIVIL
g. Accessory and principal (CIVIL CODE, Arts. CODE, Art. 1193, par. 2).
1166, 1226).
Examples:
3. Other Classifications 1. I promise to pay you P1million.
a. By their juridical quality and efficaciousness 2. I’ll pay you P1million on demand.
i. Natural – the obligation is based on
equity and natural law; CONDITIONAL OBLIGATIONS
ii. Civil – the obligation is in accordance Obligations in which the acquisition of rights as well
with positive law; and as the extinguishment or loss of those already
iii. Mixed – the obligation is in accordance acquired, shall depend upon the happening of the
with both natural and positive law. event which constitutes the condition (CIVIL CODE,
b. By its relation to other obligations Art. 1181).
i. Principal – when it is the main
undertaking; or CONDITION
ii. Accessory – when it is merely an
A condition may be defined as a future and uncertain
undertaking to guarantee the fulfillment
fact or event upon which an obligation is subordinated
of the principal obligation.
or made to depend (JURADO, Obligations and
c. By the object of the obligation to deliver
Contracts, supra at 108).
i. Specific
ii. Generic
d. By the Number of Prestations CONDITION MUST BE A FUTURE OR
i. Simple – when there is only one UNCERTAIN FACT
undertaking; GENERAL RULE: In order to constitute an event a
ii. Compound – when there are several condition, it is not enough that it be future; it must also
undertakings. be uncertain (DE LEON, Obligations and Contracts,
1.) Conjunctive - when all the supra at 106).
undertakings are demandable at the
same time; or A future but certain fact or event is merely a term
2.) Distributive - when only one rather than a condition.
undertaking out of several is
demandable. EXCEPTION: When the debtor binds himself to pay
a.) May be Alternative or Facultative when his means permit him to do so, the obligation
shall be deemed to be one with a period (CIVIL
CODE, Art. 1180).
PURE AND
NOTE: Past but Unknown Event
CONDITIONAL A condition may refer to a past event provided that
OBLIGATIONS the happening of such fact is unknown to the parties.

(ARTS. 1179-1192) The element of uncertainty, however is wanting when

the event is past or present, hence it cannot properly
be called a condition. It is more accurate to designate (physical) law, public policy, morals or good
it as a basis of a contract. It cannot have the quality customs (legal).
of suspending the effects of a juridical act. The
uncertainty exists only in the minds of the parties, but 4. As to Mode
not the event itself. What can be a condition is the a. Positive – condition that some event happen
future knowledge or proof of an unknown to the at a determinate time shall extinguish the
parties, but not the event itself. Thus, the PROOF of obligation as soon as the time expires or
an unknown past event may, by the will of the parties, become indubitable that the event will not
be established as a condition (4 TOLENTINO, supra take place (CIVIL CODE, Art. 1184); and
at 145). b. Negative – the condition that some event will
not happen at a determinate time shall render
A condition is really “a future AND uncertain event,” the obligation effective from the moment the
not a “future OR uncertain event.” (J.B.L. Reyes, time has elapsed of it has become evident
Observation on the New Civil Code, Lawyer’s that the event cannot occur (CIVIL CODE,
Journal, January 31, 1951, pp. 47). Art. 1185, par. 1).

Example: A person promises to deliver P5,000 “if the 5. As to Divisibility

number of enemy soldiers killed during the World War a. Divisible – when the condition is susceptible
II exceeds 1,000. of partial realization; and
b. Indivisible – when the condition is not
In the above example, it is not the fact stated which susceptible of partial realization (CIVIL
serves as a condition, but the proof of such fact, the CODE, Art. 1225, par. 1).
contract or obligation arises, not when the event
happened or the fact came into existence, which 6. As to Plurality of Conditions
would be in the past, but when the proof of such fact a. Conjunctive – there are several conditions,
or event is presented, which would be in the future. which must all be realized; and
b. Alternative – there are several, but only one
CLASSIFICATIONS OF CONDITIONS: must be realized.
1. As to the Effect of Obligation
a. Suspensive – when the fulfillment of the 7. As to Form
condition results in the acquisition of rights a. Express – condition is stated expressly
arising out of the obligation (CIVIL CODE, b. Implied – condition is stated tacitly
Art. 1181); (JURADO, Obligations and Contracts, supra
b. Resolutory – when the fulfillment of the at 110).
condition results in extinguishment of rights
arising out of the obligation (CIVIL CODE, SUSPENSIVE OR RESOLUTORY
Art. 1181). CONDITIONS
2. As to the Dependence on the Will of the
Parties SUSPENSIVE CONDITION
a. Potestative – one which depends upon the A suspensive condition (condition precedent) is a
will of one of the contracting parties; it is in future and uncertain event upon the happening or
the power of one of the parties to realize or fulfillment of which rights arising out of the obligation
to prevent; are acquired.
b. Casual – depends exclusively upon chance, If the suspensive condition does not take place, the
will of a third person, or partially by chance parties would stand as if the conditional obligation
and partially by will of a third person, or other had never existed (The Insular Life Assurance Co.,
factors and not upon the will of the Ltd. v. Toyota Bel-Air, Inc., G.R. No. 137884, March
contracting parties; and 28, 2008).
c. Mixed – depends upon the will of one of the
contracting parties and other circumstances, Where an obligation is subject to a suspensive
including the will of third persons or chance. condition, upon constitution of obligation, and before
fulfillment of the condition, the obligee acquires a
3. As to Possibility mere hope or expectancy, protected by law
a. Possible – when the condition is capable of (JURADO, Obligations and Contracts, supra at 111).
realization according to nature, law, public
policy or good customs; and
b. Impossible – when the condition is not
capable of realization according to nature
EFFECT OF FULFILMENT OF school, the condition imposed was not a condition
SUSPENSIVE CONDITION precedent or a suspensive condition but a resolutory
one (Central Philippines University v. Court of
1. Before fulfillment Appeals, G.R. No. 112127, July 17, 1995).
– Demandability and the acquisition of the rights
arising from the obligation is suspended.
Obligation of obligor to comply with the prestation
EFFECT OF FULFILMENT OF
is suspended until fulfillment of condition. RESOLUTORY CONDITION
Anything paid by mistake during such time may 1. Before fulfillment
be recovered. – all rights under the obligation are acquired as if
it were a pure obligation except that such rights
2. After the fulfillment are always subject to the threat or danger of
– The obligation arises or becomes effective; extinction.
obligor can be compelled to comply with what is
incumbent upon him. 2. After fulfillment
– The obligation is extinguished and is as if it
Hence, an obligation dependent upon a suspensive never existed.
condition cannot be demanded until after the Whatever may have been paid or delivered
condition takes place because it is only after the by one or both of the parties (in case of real
fulfillment of the condition that the obligation arises obligations) shall have to be returned upon
(Catungal v. Rodriguez, G.R. No. 146839, March 23, the fulfillment of the condition (CIVIL CODE,
2011). Art. 1190).

NATURE OF CREDITOR’S RIGHT POTESTATIVE CONDITIONS

BEFORE FULFILLMENT OF
SUSPENSIVE CONDITION POTESTATIVE CONDITION
The creditor merely has an interest in the object of the A potestative condition is a condition suspensive in
obligation under a suspensive condition. It is an nature and which depends upon the will of one of the
inchoate right (mere expectancy). However, the contracting parties (Virginia A. Perez v. Court of
creditor may, before the fulfilment of the condition, Appeals, G.R. No. 112329, January 28, 2000).
bring the appropriate actions for the preservation of
his right (CIVIL CODE, Art. 1188). EFFECTS OF POTESTATIVE
CONDITIONS
Illustration:
1. In suspensive conditions, if fulfillment of the
D owes C a sum of money in the amount of P1M
condition depends exclusively upon the will of the
under the condition that D will pay it only when C
creditor – Condition and Obligation are VALID.
passes the 2021 Bar Examinations. However, on
September 2021, it became clear that D was
REASON: The creditor is naturally interested in
alienating all of his properties in the Philippines and
the fulfillment of the condition since it is only by
was preparing to abscond. C may bring an action in
such fulfillment that the obligation can be
court to enjoin D from alienating his property to the
effective.
extent of P1M and that it be held under a trusteeship
until it becomes certain that C will or will not pass the
2. In suspensive conditions, if fulfillment of the
bar in May 2022.
condition depends exclusively upon the will of the
debtor – Condition and Obligation are VOID.
RESOLUTORY CONDITION
A resolutory condition (condition subsequent) is a REASON: Prohibition against potestative
future and uncertain event upon the happening or conditions inferred from Art. 1182 extends only to
fulfillment of which rights which are already acquired those which are potestative to the debtor. To
by virtue of the obligation are extinguished or lost allow this is equivalent to sanctioning obligations
(JURADO, Obligations and Contracts, supra at 111). which are illusory. It would also be in
Parties may validly provide for resolutory conditions contravention with Art. 1308 which provides that
and unilateral rescission in their contract the validity and fulfillment of contracts cannot be
(Multinational Village Homeowners Association Inc. left to the will of one of the contracting parties.
v. Ara Security & Surveillance Agency, Inc., G.R. No.
154852, October 21, 2004). EXCEPTIONS:
a. In resolutory conditions, if fulfillment of the
Thus, when a person donates land to another on the condition depends exclusively upon the will
condition that the latter would build upon the land a
 of the debtor– Condition and Obligation are Example: Where the debtor promises to pay his
VALID. debts to the creditor as soon as he shall have
received funds derived from the sale of his house, it
REASON: The debtor is interested in the was held that the fulfillment of the condition depends
fulfillment of the resolutory condition since it partly upon the will of the debtor and partly upon the
is only by such fulfillment that he can will of third persons, as a consequence of which it is
reacquire the right which have already been perfectly valid and enforceable (Hermosa v.
vested in the obligee or creditor upon the Longara, G.R. No. L-5267, October 27, 1953).
constitution of the obligation.
Constructive Fulfillment of a MIXED Conditional
b. Potestative conditions in pre-existing Obligation
obligations, Obligation is still VALID The existing rule in mixed conditional obligation is
(JURADO, Obligations and Contracts, supra that when the condition was not fulfilled but the
at 115-122). obligor did all in his power to comply with the
obligation, the condition should be deemed satisfied
If the obligation is a pre-existing one, and, (International Hotel Corporation v. Francisco B.
therefore, does not depend for its existence Joaquin Jr., G.R. No. 158361, April 10, 2013).
upon the fulfillment by the debtor of the
potestative condition, only the condition is IMPOSSIBLE CONDITIONS
void leaving unaffected the obligation itself.
Here, the condition is imposed not on the
birth of the obligation but on its fulfillment
IMPOSIBILITY
(Catungal v. Rodriguez, G.R. No. 146839, It is impossible when it is not capable of realization
March 23, 2011). either according to its nature or according to law,
good customs or public policy (JURADO, Obligations
Example: D borrowed P10,000 from C and Contracts, supra at 122-123).
payable within two (2) months.
Subsequently, D promised to pay C “after D Impossible Conditions are Void
sells his car” to which C agreed. In this case, The condition not to do an impossible thing shall be
only the condition is void but not the pre- considered as not having been agreed upon (CIVIL
existing obligation of D to pay C (DE LEON, CODE, Art. 1183; Heirs of Severina San Miguel v.
Obligations and Contracts, supra at 127). The Honorable Court of Appeals, G.R. No. 136054,
September 5, 2001).
Examples of Void Potestative Conditions:
1. “I will pay you if I want.” Impossible conditions, those contrary to good
2. “I will pay you after I recover what D owes me.” customs or public policy and those prohibited by law
3. The contract of lease provides that the lease shall shall annul the obligation which depends upon them.
continue “for as long as the lessee needed the If the obligation is divisible, that part thereof which is
premises and can meet and pay the 20% not affected by the impossible or unlawful condition
increase every three years” (Lao Lim v. CA, G.R. shall be valid (CIVIL CODE, Art. 1183).
No. 87047, October 31, 1990; DE LEON,
Obligations and Contracts, supra at 121-122). EFFECTS OF IMPOSSIBLE CONDITIONS:
1. If the condition is to do an impossible or illegal
CASUAL CONDITION thing, both obligation and condition are void (4
One whose fulfillment depends exclusively upon PARAS, supra at 204).
chance and/or will upon the will of a third person (Id.
at 115). REASON: Obligor knows his obligation cannot
be fulfilled; he has no intention to comply with his
Effect of Casual conditions obligation (DE LEON, Obligations and Contracts,
The obligation including such condition shall take supra at 135).
effect (Id. at 118).
2. If the condition is negative, that is, not to do the
MIXED CONDITION impossible, it is disregarded and obligation is
rendered pure and valid (Id. at 135; CIVIL CODE,
One whose fulfillment depends jointly upon the will of Art. 1183).
either one of the parties to the obligation and upon 3. Only the affected obligation is void – if the
chance and/or will of a third person (Id. at 115). obligation is divisible, the part not affected by the
impossible condition shall be valid (Luneta Motor
Effect of Mixed conditions
Co. v. Abad, G.R. No. L-45273, April 10, 1939).
The obligation including such condition shall take
effect (Id. at 118).
4. Only the condition is void – if obligation is pre- a. Before July 1, 2022, the Filipino people
existing, not depending on fulfillment of the ratifies an amendment to the constitution, or
condition which is impossible for its existence, ratifies a new constitution.
only the condition is void (JURADO, Obligations Note: It is certain that the negative condition
and Contracts, supra at 123). will never be fulfilled.
5. Condition considered not imposed – if
impossible/unlawful condition is attached to a CONSTRUCTIVE FULFILLMENT
simple or remuneratory donation as well as to a
testamentary disposition, condition is considered
not imposed while the obligation is valid (CIVIL
DOCTRINE OF CONSTRUCTIVE
CODE, Art. 1183). FULFILLMENT OF SUSPENSIVE
CONDITIONS
MODE OF CONDITIONS The condition shall be deemed fulfilled when the
obligor voluntarily prevents its fulfillment (CIVIL
POSITIVE VS. NEGATIVE CONDITION CODE, Art. 1186).

POSITIVE NEGATIVE REASON: The debtor should not be allowed to profit

from his own fault or bad faith to the prejudice of the
As to the Mode of Performance obligee (DE LEON, Obligations and Contracts, supra
at 138).
Involves the Involves the
performance of an act nonperformance of an
Requisites:
or the fulfillment of an act or the nonfulfillment
1. The intent of the obligor to prevent the fulfillment
event. of an event up within a
of the condition; and
certain period of time.
2. The actual prevention of the fulfillment
As to How Fulfilled (International Hotel Corporation v. Francisco B.
Joaquin, G.R. No. 158361, April 10, 2013).
Fulfilled upon the Fulfilled from the moment
happening of the act or 1. the time indicated Mere intention of the debtor to prevent the happening
event. has lapsed; or of the condition, or to place ineffective obstacles to its
2. it has become compliance, without actually preventing the
evident that the fulfillment, is insufficient (International Hotel
event cannot occur, Corporation v. Joaquin, Jr., G.R. No. 158361, April
although the time 10, 2013).
indicated has not yet
lapsed (CIVIL Applicable to Suspensive Conditions Only
CODE, Art. 1185). Doctrine applies only to suspensive condition, not to
resolutory conditions. It can have no application to an
As to How Extinguished external contingency which is lawfully within the
control of the obligor (Taylor v. Uy Tieng Piao, G.R.
Extinguished when the Extinguished when the No. L-16109, October 2, 1922).
impossibility of the act act or event occurs at
or event ever any time before the time Article 1186 of the New Civil Code provides that "[t]he
happening becomes indicated has lapsed. condition shall be deemed fulfilled when the obligor
absolutely certain voluntarily prevents its fulfillment.” Here, the Court of
(CIVIL CODE, Art. Appeals detailed the efforts made by respondent
1184). Luwalhati and consignee Sison. It also noted
petitioner's ambiguous and evasive responses,
Illustration of Negative Condition nonchalant handling of respondents' concerns, and
“If the Philippine Constitution is not amended by the how these bogged down respondents' actions and
end of President Duterte’s term.” impaired their compliance with the required 45-day
1. It is fulfilled when: period (Federal Express Corp. v. Antonino, G.R. No.
a. On July 1, 2022, the Philippines has not 199455, June 27, 2018).
ratified any amendment to the constitution or
a new constitution. RETROACTIVE EFFECT OF
b. It has become certain that it is impossible to FULFILLMENT OF SUSPENSIVE
hold a ratification plebiscite to ratify any CONDITION
submitted amendments or a new constitution
before July 1, 2022.
2. It is extinguished when:
PRINCIPLE OF RETROACTIVITY OF NOTE: The law says “preservation,” not “preference”
EFFECT IN SUSPENSIVE CONDITION over other creditor (Jacinto v. de Leon, G.R. No. L-
26635, May 3, 1927).
The effects of a conditional obligation to give, once
the condition has been fulfilled, shall retroact to the
day of the constitution of the obligation (CIVIL CODE, RIGHTS PENDING FULFILLMENT OF
Art. 1187). SUSPENSIVE CONDITION:
1. Rights of creditor
RULE ON RETROACTIVITY HAS NO – The right of the creditor, which, before the
APPLICATION TO: (RS) fulfillment of the condition, was a mere hope or
expectancy, is perfected, becomes effective and
1. Real contracts (e.g. deposit or commodatum)
demandable. The creditor may compel the debtor
because they are perfected only by delivery of the
to comply with what is incumbent upon him (DE
object of the obligation. The principle only applies
LEON, Obligations and Contracts, supra at 144).
to consensual contracts; and
2. Contracts in which the obligation arising
therefrom can only be realized within Successive
2. Rights of debtor
– He is entitled to recover what he has paid by
periods or intervals (e.g. lease, hire of service, life
mistake prior to the happening of the suspensive
annuity) (JURADO, Obligations and Contracts,
condition.
supra at 129).
REASON: This is a case of solutio indebiti where
RETROACTIVE EFFECT AS TO THE there is payment before any legal right to receive
FRUITS AND INTERESTS payment exists.
1. Obligations to Give:
a. In Reciprocal Obligations: no retroactivity – NOTE: Payment before the fulfillment of the
deemed mutually compensated during the condition must be “by mistake;” otherwise, the
pendency of the condition (fruits may be debtor is deemed to have impliedly waived the
natural, industrial or civil) (CIVIL CODE, Arts. benefit of the suspensive condition.
441-442 and 1187).
b. In Unilateral Obligations: no retroactivity – LOSS, DETERIORATION OR
debtor shall appropriate the fruits and IMPROVEMENT DURING THE
interests received unless the intention was
PENDENCY OF THE CONDITION
otherwise, as inferred from nature and
circumstances (JURADO, Obligations and Requisites for Application of Art. 1189: (RSS-FP)
Contracts, supra at 129-130). 1. The obligation is a Real obligation;
2. The object is a Specific or determinate thing;
3. The obligation is subject to a Suspensive
2. Obligations to Do or Not to Do
condition;
The courts will have to determine in each case
4. The condition is Fulfilled; and
the retroactive effect of the condition that has
5. There is loss, deterioration, or improvement of
been complied with. This duty of the courts
the thing during the Pendency of the happening
includes the power to determine whether the
on one condition (DE LEON, Obligations and
effects of the fulfillment of the condition shall
Contracts, supra at 147).
retroact to the very moment of the constitution of
the obligation or only to a specified date before
fulfillment. It can even include the power to LOSS
determine whether or not there will be any A thing is lost when it: (DPG)
retroactivity of effects (8 MANRESA, 5th Ed., Bk. 1. Disappears in such a way that its existence is
1, p. 335). unknown or it cannot be recovered (i.e., a thing is
stolen by unknown persons);
NOTE: This rule also applies to an obligation with 2. Perishes (i.e., a house is destroyed completely
a resolutory condition (CIVIL CODE, Art. 1190, by fire); and
par. 3). 3. Goes out of the commerce of men (i.e. a thing is
declared by law as contraband) (CIVIL CODE,
RIGHTS OF THE CREDITOR BEFORE Art. 1189, par. 2).
THE FULFILLMENT OF THE CONDITION
The creditor, may, before the fulfillment of the
DETERIORATION
obligation, bring the appropriate action for the Any reduction or impairment in the substance or
preservation of his right (CIVIL CODE, Art. 1188). value of a thing which does not amount to loss; the
thing is less than its value when the obligation was
constituted (4 TOLENTINO, supra at 170 -171).
 RECIPROCAL OBLIGATIONS
IMPROVEMENT Those which arise from the same cause and in which
A thing is improved when its value is increased or each party is a debtor and creditor of the other, such
enhanced by nature or by time or at the expense of that the performance of one is designed to be the
the debtor or creditor (DE LEON, Obligations and equivalent and the condition for the performance of
Contracts, supra at 148). the other (DE LEON, Obligations and Contracts,
supra at 152).
RULES ON LOSS OR CHANGE IN VALUE
OF OBJECT OF REAL OBLIGATION Example: Contract of Absolute Sale where Seller is
bound to deliver the thing sold in consideration of the
BEFORE FULFILLMENT OF price while the Buyer is bound to deliver the price in
SUSPENSIVE CONDITION consideration of the thing sold.
1. Loss
a. Debtor at fault – debtor liable to pay Not All Bilateral Obligations are Reciprocal
Damages. X, Y’s aging mother, undertakes to deliver a gift to Y
b. Debtor without fault – obligation to deliver in consideration of her love and affection. Y
extinguished (CIVIL CODE, Art. 1189(1)-(2)). undertakes to continue supporting X in consideration
of Y’s duty to support X. In such case, although X and
2. Deterioration Y are mutually bound to each other, their obligations
a. Debtor at fault – creditor may enforce: are not reciprocal as they do not arise from the same
i. Payment of damages; and causes.
ii. Either:
1.) Rescission of contract CONCEPT OF TACIT RESOLUTORY
2.) Specific Performance CONDITION
b. Debtor without fault – obligation to deliver Neither party incurs delay if the other does not comply
extinguished (CIVIL CODE, Art. 1189(3)-(4)). or is not ready to comply in a proper manner with what
is incumbent upon him (CIVIL CODE, Art. 1169, par.
3. Improvements 3). Until either one fulfills his obligation, neither is
a. Expense of Debtor – debtor has rights of deemed in delay. To avoid delay on any of the two
usufructuary with respect to improvements. parties, they must comply with their obligations
b. Without Debtor’s Expense – any increase in simultaneously. Effectively, the performance of each
value inures to the creditor (CIVIL CODE, Art. party is a suspensive condition to the obligation of the
1189(5)-(6)). other.

RIGHTS OF USUFRUCTUARY ON It is tacit because it is implied in all reciprocal

IMPROVEMENTS obligation; conditional because not being able to
perform the obligation incumbent upon the party is
1. No right to reimbursement of value;
the event; and resolutory because it results to the
2. Right to remove said improvements if removal is
extinguishment of the obligation of the debtor and
possible without damage to the property ;
creditor.
3. Right to set off improvements with any damage
caused to the property without his fault (CIVIL
Conversely, the non-performance of one party is a
CODE, Arts. 579 & 580).
tacit resolutory condition as to the obligation of the
other. In other words, if X does not fulfill his obligation,
RULES ON LOSS APPLIES TO such non-performance may be treated as
OBLIGATION TO DELIVER AFTER extinguishing Y’s obligation, as if it were a resolutory
RESOLUTORY CONDITION condition on Y’s obligation.
When the conditions have for their purpose the
extinguishment of an obligation to give, the parties, EFFECT OF FULFILLMENT OF TACIT
upon the fulfillment of said conditions, shall return to RESOLUTORY CONDITION
each other what they have received. If one of the parties fails to comply with what is
incumbent upon him, there is a right on the part of the
In case of the loss, deterioration or improvement of other to rescind (or resolve) the obligation (CIVIL
the thing, the provisions which, with respect to the CODE, Art. 1191).
debtor, are laid down in the preceding article shall be
applied to the party who is bound to return (CIVIL The injured party may choose between the fulfillment
CODE, Art. 1190). and the rescission of the obligation, with the payment
of damages in either case. He may also seek
rescission, even after he has chosen fulfillment, if the
latter should become impossible (CIVIL CODE, Art. It will not be permitted for a slight or casual breach,
1191). but only for such substantial and fundamental
violations as would defeat the very object of the
ACTION FOR “RESCISSION” OF parties in making the agreement (Golden Valley
CONTRACT Exploration Inc. v. Pinkian Mining Company and
Copper Valley Inc., G.R. No. 190080, June 11, 2014;
More accurately referred to as resolution, the right of Buenviaje v. Spouses Salonga, G.R. No. 216023,
rescission under Article 1191 is predicated on a October 5, 2016).
breach of faith that violates the reciprocity between
parties to the contract. This retaliatory remedy is Mere failure of a party to comply with what is
given to the contracting party who suffers the incumbent upon him does not ipso jure produce the
injurious breach on the premise that it is “unjust that rescission or resolution of the obligation (JURADO,
a party be held bound to fulfill his promises when the Obligations and Contracts, supra at 137).
other violates his” (Golden Valley Exploration, Inc. v.
Pinkian Mining Company, G.R. No. 190080, June 11,
2014). DECLARATION OF RESCISSION
1. If the obligation has not yet been performed,
It can be demanded only if the plaintiff is ready, extrajudicial declaration by the party who is ready
willing, and able to comply with his own obligation and and willing to perform is allowed.
the other is not (Seva v. Berwin, G.R. No. L-24321, 2. If the obligation has already been performed by
January 11. 1926), and the party who has not the injured party:
performed his part of the agreement is not entitled to a. If the other party does not oppose or
sue or rescind (Sps. Cannu v. Sps. Galang, G.R. No. impugn the extrajudicial declaration, such
139523, May 26, 2005). will produce legal effect.
b. If the other party opposes the rescission,
It is a right which belongs to the injured party alone the injured party cannot by his own
(Mateos v. Lopez, G.R. No. 2391, April 28, 1906; declaration rescind the contract. Court
Universal Food Corporation v. Cam G.R. No. L- action, in this case, is necessary (4
29155, May 13, 1970). Under the rule of exceptio non TOLENTINO, supra at 178).
adimpleti contractus, the party who has not
performed his part of the agreement is not entitled to JUDICIAL PERMISSION TO RESOLVE
sue (Marin v. Adil, G.R. No. L-47986, July 16, 1984). NECESSARY
GENERAL RULE: The power to rescind an obligation
REQUISITES OF ACTION OF must be invoked judicially and cannot be exercised
RESCISSION UNDER ART. 1191: solely on a party’s own judgment that the other has
(ReF-SuC) committed a breach of the obligation (Golden Valley
1. The parties are Reciprocally obligated. Exploration Inc. v. Pinkian Mining Company and
2. One of the parties Failed to comply with what is Copper Valley Inc., G.R. No. 190080, June 11, 2014).
incumbent upon him;
3. The breach is Substantial so as to defeat the EXCEPTION: Where parties agree to a stipulation
object of the parties in making the agreement; allowing extra-judicial rescission, no judicial decree is
and necessary for rescission to take place; the extra-
4. The injured party Chose the remedy of rescission judicial rescission immediately releases the party
instead of enforcement, or had no other remedy from its obligation under the contract, subject only to
because enforcement became impossible. court reversal if found improper. On the other hand,
without a stipulation allowing extra-judicial rescission,
it is the judicial decree that rescinds, and not the will
SUBSTANTIAL BREACH REQUIRED of the rescinding party. This notwithstanding,
For a contracting party to be entitled to rescission (or jurisprudence still indicates that an extra-judicial
resolution) in accordance with Article 1191 of the rescission based on grounds not specified in the
CIVIL CODE, the other contracting party must be in contract would not preclude a party to treat the same
substantial breach of the terms and conditions of their as rescinded. The rescinding party, however, by such
contract. A substantial breach of a contract, unlike course of action, subjects himself to the risk of being
slight and casual breaches thereof, is a fundamental held liable for damages when the extra-judicial
breach that defeats the object of the parties in rescission is questioned by the opposing party in
entering into an agreement (Maglasang v. court (Golden Valley Exploration, Inc. v. Pinkian
Northwestern University, Inc., G.R. No. 188986, Mining Co., G.R. No. 190080; June 11, 2014).
March 20, 2013).
RESCISSION NOT A MATTER OF RIGHT extinguished, and each shall bear his own
The court shall decree the rescission claimed, unless damages (CIVIL CODE, Art. 1192).
there be just cause authorizing the fixing of a period
(CIVIL CODE, Art. 1191, par. 3).

ARTICLE 1191 DOES NOT PROHIBIT OBLIGATIONS WITH A

STIPULATION FOR EXTRA-JUDICIAL PERIOD OR A TERM
RESCISSION (ARTS. 1193-1198)
Article 1191 of the CIVIL CODE did not prohibit the
parties from entering into an agreement whereby a
violation of the terms of the contract would result to
its cancellation (Calilap-Asmeron v. Development OBLIGATIONS WITH A PERIOD
Bank of the Philippines, G.R. No. 157330, November
Obligations whose fulfillment a day certain has been
23, 2011).
fixed, shall be demandable only when that day
comes. Obligations with a resolutory period take
EFFECTS OF EXTRAJUDICIAL effect at once but terminate upon the arrival of the day
RESCISSION certain.
1. If there is a stipulation granting the right of
rescission on the part of the aggrieved party and A day certain is understood to be that which must
he validly rescinds the contract pursuant to such necessarily come, although it may not be known
express grant, any court decision adjudging the when. If the uncertainty consists in whether the day
propriety of the rescission extra-judicially made is will come or not, the obligation is a conditional one
not the revocatory act of rescission but merely (CIVIL CODE, Art. 1193).
declaratory or an affirmation of the revocation
(De Luna v. Abrigo, G.R. No. 57455, January 18, WHEN DEEMED TO BE WITH A PERIOD
1990). When the debtor binds himself to pay when his
2. The decree of rescission shall be without means permit him, the obligation shall be deemed to
prejudice to the rights of third persons who have be one with a period subject to the provisions of
acquired the thing in accordance with Art. 1385 Article 1197 which provides that the court shall also
and 1388 and Mortgage Law (CIVIL CODE, Art. fix the period when it depends upon the will of the
1191, par. 4). debtor (CIVIL CODE, Art. 1197 par. 2, CIVIL CODE
in relation to Art. 1180).
EFFECT OF RESCISSION
It requires restitution or bringing parties back to TERM/PERIOD
original status prior to the contract (Unlad Resources Interval of time, which, exerting an influence on an
Dev. Corp., v. Dragon, G.R. No. 149338, July 28, obligation as a consequence of a juridical act, either
2008). suspends its demandability or produces its
extinguishment (8 MANRESA, 5th Ed., Bk. 1, p. 370).
Mutual restitution, which entails the return of the
benefits that each party may have received as a
REQUISITES: (FCP)
result of the contract, is thus required. To be sure, it
has been settled that the effects of rescission as 1. Future;
provided for in Article 1385 of the Code are equally 2. Certain; and
applicable to cases under Article 1191 (Gotesco 3. Possible, legally and physically (JURADO, supra
Properties v. Spouses Eugenio, G.R. No. 201167, at 149).
February 27, 2013).
NOTE: When the period is too short for the
NOTE: There can be partial rescission or fulfillment prestation, as when Atoy is to build a ten-story
under Art. 1191 of the CIVIL CODE (Central Bank of building in twenty-four (24) hours, the obligation
the Philippines v. CA, G.R. No. L-45710, October 3, is void (4 TOLENTINO, supra at 188).
1985).
KINDS OF PERIOD/TERM: (EFEX-DESO)
EFFECTS OF BREACH BY BOTH 1. As to Effect
PARTIES: a. Suspensive (Ex Die) – Obligations whose
1. The liability of the first infractor shall be equitably fulfillment a day certain has been fixed, shall
be demandable only when that day comes
tempered by the courts; and
(CIVIL CODE, Art. 1193, par. 1).
2. If it cannot be determined which of the parties first
violated the contract, the same shall be deemed
 b. Resolutory (In Diem) – Obligations with a agreed to set the time of payment at another time
resolutory period take effect at once but (JURADO, Obligations and Contracts, supra at 160).
terminate upon arrival of the day certain
(CIVIL CODE, Art. 1193, par 2). TERM/PERIOD V. CONDITION
2. As to Expression TERM/PERIOD CONDITION
a. Express – when specifically stated; and As to Requisites
b. Implied – when it can be deduced that the
parties intended a period, such as in the case Interval of time which is Fact or event which is
of Art. 1180 of the CIVIL CODE when one future and certain. future and uncertain.
promises to pay when able.
As to Fulfillment
3. As to Definiteness
a. Definite – refers to a fixed known date or Must necessarily come, May or may not happen.
time(CIVIL CODE, Art. 1193, par 3);and although it may not be
b. Indefinite – event which will necessarily known when.
happen but the date of its happening is
unknown. Where the period is not fixed but a As to Influence on Obligation
period is intended, the courts are empowered
Exerts an influence Exerts an influence upon
by law to fix the same (CIVIL CODE, Art.
upon the time of the very existence of the
1197).
demandability or obligation itself.
extinguishment of an
NOTE: The uncertainty of the date of occurrence
obligation.
does not convert into a condition so long as there
is no uncertainty whether the event will happen As to Retroactivity of Effects
or not (JURADO, Obligations and Contracts,
supra at 147). No retroactive effect Has retroactive effect.
unless there is an
4. As to Source agreement to the
a. Conventional – stipulated by parties (CIVIL contrary.
CODE, Art. 1196);
b. Legal – period fixed by law such as Arts. As to Effect of Will of Debtor
1682 and 1687; and
c. Judicial – fixed by courts, in case of implied When it is left When it is left exclusively
and indefinite period (JURADO, Obligations exclusively to the will of to the will of the debtor,
and Contracts, supra at 147-148). the debtor, the the very existence of the
existence of the obligation is affected.
EFFECT OF SUSPENSIVE TERM obligation is not
affected; empowers the
It is only from that date that it is due and demandable
court to fix the duration
(Ullman v. Hernaez, G.R. No. L-9816, March 10,
of the obligation.
1915).
(JURADO, Obligations and Contracts, supra at 147).
What is suspended by the term is not the acquisition
of the right or the effectivity of the obligation but its EFFECT OF LOSS, DETERIORATION, OR
demandability (JURADO, Obligations and Contracts, IMPROVEMENT BEFORE ARRIVAL OF
supra at 149).
PERIOD
WHERE DURATION OF PERIOD In case of loss, deterioration or improvement of the
thing before the arrival of the day certain, the same
DEPENDS UPON THE WILL OF DEBTOR rules under Art. 1189 of the CIVIL CODE shall be
Where the debtor promises to pay when his means observed (CIVIL CODE, Art. 1194).
permit him to do so, the obligation shall be deemed
to be one with a period (CIVIL CODE, Art. 1180). If a fortuitous event supervenes, the obligor is merely
relieved of the obligation to fulfill at that time and does
NOTE: What depends upon the debtor’s will is not not stop the running of the period because in effect
whether he should pay or not. What is left only to his that would be an extension of the term of the contract
will is the duration of the period. The term only (Victorias Planters Association, Inc., v. Victorias
suspends the demandability of the obligation and not Milling Co., G.R. No. L-6648, July 25, 1955).
its existence. It is a situation where the parties merely
EFFECT OF ADVANCE PAYMENT OR WHEN COURT MAY FIX DURATION OF
DELIVERY TERM
In obligations to give, the obligor can recover what he GENERAL RULE: Courts are without power to fix
has paid or delivered with fruits and interests (CIVIL period.
CODE, Art. 1195).
REASON: Freedom to Contract (CIVIL CODE, Art
There can be no right of recovery if the obligor 1306)
delivers the thing voluntarily or with the knowledge of
the period or term or the fact that the obligation has EXCEPTIONS:
not yet become due and demandable (4 1. If the obligation does not fix a period, but from its
TOLENTINO, supra at 193). nature and circumstances it can be inferred that
a period was intended (CIVIL CODE, Art. 1197,
NOTE: Article 1195 applies only to obligations to par. 1);
give. It is similar to Article 1188, paragraph 2, which
allows the recovery of what has been paid by mistake Effect of Lack of Definite Duration of Term
before the fulfillment of a suspensive condition. It has The fulfillment of the obligation cannot be
no application to obligations to do or not to do (Id. At demanded until after the court has fixed the
196). period and such period has arrived. Such
technicality [of filing a separate action in court for
PARTIES PRESUMED AWARE OF fixing of the period] need not be adhered to when
PERIOD a prior and separate action would be a mere
formality and would serve no other purpose than
Whenever in an obligation a period is designated, it to delay (Borromeo v. CA, G.R. No. L-22962,
is presumed to have been established for the benefit September 28, 1972).
of both the creditor and the debtor, unless it should
appear that the period has been established in favor It is only after the duration has been fixed by a
of one or of the other (CIVIL CODE, Art. 1196). proper court that any action involving the
fulfillment or performance of the obligation can be
It is important to bear in mind that in a reciprocal maintained (Eleizegui v. Manila Lawn Tennis
contract like a lease, the period of the lease must be Club, G.R. No. 967, May 19, 1903).
deemed to have been agreed upon for the benefit of
both parties, absent language showing that the term Thus, there can be no possibility of any breach of
was deliberately set for the benefit of the lessee or contract or failure to perform the obligation unless
lessor alone (LL and Company Development and the period is fixed by the courts (Pages v. Basilan
Agro-Industrial Corporation v. Huang Chao Chun, Lumber Co., G.R. No. L-10679, November 29,
G.R. No. 142378, March 7, 2002). 1958).

EFFECT OF PERFORMANCE BEFORE NOTE: The rule presupposes that there is clear
TERM stipulation that the obligation is subject to a term
Payment before the term and the acceptance of and that only the duration is not fixed.
payment by a creditor amounts to a waiver of the
period agreed upon during which payment should not 2. If the duration of the period depends upon the will
be made. of the debtor (CIVIL CODE, Art. 1197, par. 2);
3. If under the circumstances the parties have
PERIOD FOR THE BENEFIT ONLY OF contemplated a period (CIVIL CODE, Art. 1197,
par. 3); and
THE CREDITOR 4. If the debtor binds himself to pay when his means
Creditor may demand the fulfillment of the obligation permit him to do so (CIVIL CODE, Art. 1180).
at any time but the obligor cannot compel him to
accept payment before the expiration of period (DE The remedy cannot be applied to a contract of
LEON, Obligations and Contracts, supra at 201). services and pure obligations. The period of
employment is understood to be implicitly fixed, in
PERIOD FOR THE BENEFIT ONLY OF default of express stipulation, by the period for the
THE DEBTOR payment of the salary of the employee in accordance
Debtor cannot be compelled to perform obligation with customs (Barreto v. Santa Maria, G.R. No. L-
prematurely, but he can do so if he desires (Id. at 8169, December 29, 1913).
200).
COMPUTATION OF TERM OR PERIOD 3. When by his own acts he has Impaired said
guaranties or securities after their establishment,
1. The Civil Code
and when through a Fortuitous event they
When the law speaks of years, months, days or
disappear, unless he immediately gives new
nights, it shall be understood that years are of
ones equally satisfactory;
three hundred sixty-five (365) days each; months
of thirty (30) days; days of twenty-four (24) hours;
NOTE: Should the loss of the securities be by
and nights from sunset to sunrise.
reason of a FORTUITOUS EVENT; there must
If months are designated by their name, they
be a total disappearance in order to deprive the
shall be computed by the number of days which
debtor of the benefit of the term.
they respectively have.
4. When the debtor Violates any undertaking, in
In computing a period, the first day shall be
consideration of which the creditor agreed to the
excluded, and the last day included.” (CIVIL
period; or
CODE, Art. 13).
5. When the debtor Attempts to abscond (CIVIL
If the last day of the period, as computed, falls on
CODE, Art. 1198).
a Saturday, Sunday or a legal holiday, the time
shall not run until the next working day (RULES
OF COURT, Rule 22, Sec. 1). EFFECT IF THE DEBTOR LOSES THE
RIGHT TO MAKE USE OF THE PERIOD
A year is equivalent to 365 days regardless of The term is extinguished, and the obligation is
whether it is a year or a leap year (National demandable at once (4 PARAS, supra at 263).
Marketing Corporation v. Tecson, G.R. L-29131,
August 27, 1969).

2. The Administrative Code ALTERNATIVE OR

The SC defined a calendar month as a month
designated in the calendar disregarding the FACULTATIVE
number of days it may contain. A year shall be
understood to be 12 calendar months. The SC
OBLIGATIONS
held that Administrative Code of 1987 (ARTS 1199-1206)
impliedly repealed Art. 13 of CIVIL CODE as
the provisions are irreconcilable (CIR v
Primetown, G.R. No. 162155, August 28, 2007).
ALTERNATIVE OBLIGATION
Under the Civil Code, a year is equivalent to 365 A person alternatively bound by different prestations
days whether it be a regular year or a leap year. shall completely perform one of them (CIVIL CODE,
Under the Administrative Code of 1987, however, Art. 1199, par. 1).
a year is composed of 12 calendar months.
Needless to state, under the Administrative Code In an alternative obligation, there is more than one
of 1987, the number of days is irrelevant (CIR v. object, and the fulfillment of one is sufficient,
Aichi Forging Co. G.R. No. 184823, October 6, determined by the choice of the debtor who generally
2010). has the right of election (Arco Pulp and Paper Co.,
Inc. v. Dan T. Lim, G.R. No. 206806, June 25, 2014).
WHEN THE DEBTOR LOSES THE
BENEFIT OF THE PERIOD Limitation: The creditor cannot be compelled to
The debtor shall lose every right to make use of the receive part of one, and part of the other undertaking
period: (IF-IF-VA) (CIVIL CODE, Art. 1199, par. 2).
1. When AFTER the obligation has been
contracted, he becomes Insolvent, unless he Example
gives a guaranty or security for the debt; "A will give B this car or this ring or this fountain pen."
A does not have to give B all three things
NOTE: The insolvency need not be judicially enumerated. The giving of one is sufficient to satisfy
declared in an insolvency proceeding (JURADO, the obligation (4 PARAS, supra at 264).
Obligations and Contracts, supra at 164).

2. When he does not Furnish to the creditor the

guaranties or securities which he has promised;
RIGHT OF CHOICE IN ALTERNATIVE FORMS OF NOTICE
OBLIGATIONS Notice may be made:
GENERAL RULE: Right of choice belongs to the 1. Orally;
debtor (CIVIL CODE, Art. 1200, par. 1). 2. In writing;
3. Expressly/Unequivocal (4 PARAS, supra at 268;
EXCEPTIONS: 4 TOLENTINO, supra at 206); or
1. Expressly granted to the creditor; and 4. Impliedly
2. Expressly granted to third person (JURADO, a. Performance by the debtor who has the right
Obligations and Contracts, supra at 168; 4 to choose or in the acceptance of a prestation
TOLENTINO, supra at 205). by the creditor when he has a right of
selection (8 MANRESA 181); or
NOTE: Although the CIVIL CODE does not b. When the creditor sues the debtor for the
expressly recognize the second, there is no performance of one of the prestations (4
reason why it cannot be allowed, since it is not TOLENTINO, supra at 268).
contrary to law, morals, good customs, public
order, or public policy (JURADO, Obligations and CAN THE CREDITOR TO WHOM THE
Contracts, supra at 739). SELECTION HAD BEEN DULY
COMMUNICATED IMPUGN SUCH
REQUISITES FOR THE MAKING OF THE SELECTION?
CHOICE (PFV-DP-WW) 1st view
1. Made Properly so that the creditor or his agent – In an obiter dictum in Ong Guan Can v.
will actually know; Century, Inc., Co., G.R. No. L-21196, February 6,
2. Made with Full knowledge that a selection is 1924, it was stated by the Supreme Court that the
indeed being made; “object of the notice is to give the creditor or
3. Made Voluntarily and freely; obligee opportunity to express his consent, or to
4. Made in Due time, that is, before or upon impugn the election made by the debtor and only
maturity; after said notice shall the election take legal effect
5. Made to all the Proper persons; when consented to by the creditor, or if impugned
6. Made Without conditions, unless agreed to by by the latter, when declared proper by a
the creditor; and competent court that it shall take effect”
7. May be Waived, expressly or impliedly (4 (JURADO, Obligations and Contracts, supra at
PARAS, supra at 268-269). 169).

LIMITATIONS UPON THE RIGHT OF 2nd view

CHOICE OF THE DEBTOR – It is, however, submitted that the above doctrine
The debtor shall have no right to choose those is not sound. Consent or concurrence of the
prestations which are: (IU-Not) creditor to the choice or selection made by the
1. Impossible; debtor is not necessary before the choice or
2. Unlawful; or selection can produce effect. A mere declaration
3. Which could Not have been the object of the of the choice, communicated to the other party, is
obligation (CIVIL CODE, Art.1200, par. 2), which sufficient; it is a unilateral declaration of will (4
refers to: (ADU) TOLENTINO, supra at 206).
a. Those by reason of Accident or some other
cause, have acquired a new character To hold otherwise would destroy the very nature
distinct or different from that contemplated by of the right to select and the alternative character
the parties when the obligation was of the obligation for that matter. Thus, according
constituted; to Dean Capistrano: “The law does not require
b. Those which are not yet Due or demandable the creditor’s concurrence to the choice; if it did,
at the time the selection is made; or it would have destroyed the very nature of
c. Undertakings that are not included among alternative obligations, which empowers the
others from those which the obligor may debtor to perform completely one of them’’
select (JURADO, Obligations and Contracts, (JURADO, Obligations and Contracts, supra at
supra at 168-169). 170).

WHEN NOTICE PRODUCES EFFECT Thus, the 2nd view is more sound because
requiring the creditor’s consent would destroy the
The choice shall produce effect only upon
very essence of the right to choose and the
communication of the choice to the other party (CIVIL
alternative character of the obligation itself. The
CODE, Art. 1201).
only possible exception to this rule is when the
 debtor has chosen a prestation which could not 2. The German Theory
have been the object of the obligation; the – The right to choose passes automatically to the
creditor’s consent would bring about a novation other party when there is delay on the part of the party
of the obligation (4 TOLENTINO, supra at 206). entitled to choose (2 Gasperi 326-327). According to
Tolentino, the German Theory is the one acceptable
Correlate: Consent or concurrence of the creditor to under our law on the ground that although the right to
the choice or selection made by the debtor is not choose pertains to the debtor, he cannot paralyze the
necessary before the choice or selection can produce remedy of the creditor by refusing to make a
effect (4 TOLENTINO, supra at 206). selection. If the debtor does not exercise his right to
choose, the debtor should be deemed to have waived
EFFECT OF NOTICE OF CHOICE: (ASIL) his right to choose in favor of the creditor who may
1. Until the choice is made and communicated, the then exercise such right (TOLENTINO, supra at 208).
obligation remains Alternative.
2. Once the notice of the election has been given to EFFECT WHEN ONLY ONE PRESTATION
the creditor, the obligation ceases to be IS PRACTICABLE
alternative and becomes Simple obligation to The debtor shall lose the right of choice when among
perform the prestation chosen; the prestations whereby he is alternatively bound,
3. Such choice once properly made and only one is practicable (CIVIL CODE, Art. 1202). If all
communicated is Irrevocable and cannot, the prestations, except one, are impossible or
therefore, be renounced. An election, once unlawful, it follows that the debtor cannot choose and
made, is binding on the person who makes it, and perform only that one. The obligation ceases to be
he will not, therefore, be permitted to renounce alternative and is converted into a simple obligation
his choice and take an alternative which was first to perform only feasible or practicable prestation (4
open to him (Reyes v. Martinez, G.R. No. 32226, TOLENTINO, supra at 209).
December 29, 1930). To allow a change in the
selection after it has been communicated to the NOTE: Article 1202 only applies when the debtor has
other party is to expose the latter to damages the right to choose. In case where the creditor is
arising from preparations he may make on the granted the right to choose, Article 1205 will apply
assumption that the prestation selected is the when only one prestation remains practicable, either
one to be performed (4 TOLENTINO, supra at due to fortuitous event or due to the fault of the debtor
207); (Id. at 210).
4. Where the choice has been expressly given to
the creditor, such choice shall likewise produce
ART. 1202 V. ART. 1200, PAR. 2
Legal effects upon being communicated to the
debtor (CIVIL CODE, Art. 1205, par. 1). ART. 1202 ART. 1200, PAR. 2

DELAY IN MAKING CHOICE As to Prestation

The right to choose is not lost by the mere fact that There is only one There are still two or
the party entitled to choose delays in making his prestation which can be more which can be
selection. But if the debtor who has the right to performed. performed.
choose makes no selection before the creditor files
his action, what prestation shall be enforced? As to Kind of Obligation

There are two theories in foreign jurisprudence in this The obligation is The obligation is still
case: converted into a simple alternative because the
one because the debtor debtor can still exercise
1. The French Theory loses his right of election his right of election.
– The Court should give the party entitled to choose (JURADO, Obligations and Contracts, supra at 171)
a period in which to make the choice, with the
intimation that if he does not choose within that WHEN DEBTOR MAY RESCIND
period, the Court will make the choice or will give the
right to choose to the other party (4 TOLENTINO,
CONTRACT
supra at 208). A different solution is offered by Perez If the debtor cannot make a choice according to the
Gonzales and Alguer who believe that the judge may terms of the obligation through the creditor’s act, the
make the selection for the debtor who refuses to do former may rescind the contract with damages (CIVIL
so, but this is in the light of the Spanish law of CODE, Art. 1203).
procedure (Perez Gonzales & Alguer; 2-I
Enneccerus, Kipp & Wolf 110 cited by TOLENTINO,
supra at 208).
WHEN CREDITOR IS ENTITLED TO or service which became impossible plus
INDEMNITY FOR DAMAGES consequential damages;
ii. Some but not all are lost – the debtor
When through the fault of the debtor: shall deliver that which he shall choose
1. All the things which are alternatively the object of from among the remainder without
the obligation have been lost; or damages since the debtor can still
2. Compliance of the obligation has become comply with his obligation. Note that if
impossible (CIVIL CODE, Art. 1204). some, but not all, are lost, the obligation
still subsists retaining its alternative
DAMAGES HOW DETERMINED character; or
The indemnity shall be fixed based on the value of the iii. Only one subsists– deliver that which
last thing which disappeared or that of the service remains. Note that if only one remains,
which last became impossible (CIVIL CODE, Art. the obligation still subsists, but it ceases
1204, par. 2). to be alternative (Id. at 740-741).

Damages other than the above-mentioned may also 2. When Choice Belongs to Creditor:
be awarded (CIVIL CODE, Art. 1204, par. 3). a. Due to Fortuitous Event (CIVIL CODE, Arts.
1174, 1262 and 1266 are applicable)
Art. 1204 of the Civil Code is applicable only to a case i. All are lost – debtor is released from the
where the right of choice belongs to the debtor obligation;
(JURADO, Obligations and Contracts, supra at 172) ii. Some but not all are lost – deliver that
and the loss or impossibility happened before which he shall choose from among the
selection was made (4 PARAS, supra at 270). remainder; or
iii. Only one subsists – deliver that which
WHEN THE CREDITOR’S RIGHT TO remains
CHOOSE IN AN ALTERNATIVE
OBLIGATION CEASES b. Debtor’s fault (CIVIL CODE, Art. 1205, pars.
2 and 3 are applicable)
When the choice has been expressly given to the i. All are lost – creditor may claim the
creditor, the obligation shall cease to be alternative price/value of any of them plus
from the day when the selection has been consequential damages; or
communicated to the debtor (CIVIL CODE, Art. 1205, ii. Some but not all are lost – creditor may
par. 1). claim any of those subsisting without a
right to damages OR price/value of the
EFFECTS OF LOSS OF OBJECTS OF thing lost with right to damages; or
ALTERNATIVE OBLIGATION iii. Only one subsists – the obligation still
1. When Choice Belongs to Debtor: subsists, but it ceases to be alternative.
a. Due to Fortuitous Event (CIVIL CODE, Arts. If the creditor chooses the object
1174, 1262 and 1266 are applicable) remaining, the debtor cannot be held
i. All are lost – debtor is released from the liable for damages; however, if he
obligation; chooses any of those which were lost,
ii. Some but not all are lost – the debtor the debtor is liable for the value of the
shall deliver that which he shall choose object plus damages (JURADO,
from among the remainder. Note that if Obligations and Contracts, supra at 173).
some, but not all are lost, the obligation
still subsists and retains its alternative FACULTATIVE OBLIGATION
character An obligation wherein only one object or prestation
iii. Only one remains – deliver that which has been agreed upon by the parties to the obligation,
remains. Note that if only one remains, but which may be complied with by the delivery of
the obligation still subsists, but it ceases another or the performance of another prestation in
to be alternative since the obligation has substitution (CIVIL CODE, Art. 1206, par. 1).
become a simple obligation to deliver the
remaining object (JURADO, Obligations Communication is necessary to effect the substitution
and Contracts, supra at 740). of the other prestation. Therefore, Art. 1201 of the
Civil Code can be applied by analogy with respect to
b. Debtor’s fault (CIVIL CODE, Art. 1204 is the time/moment when the substitution will take effect
applicable) (JURADO, Obligations and Contracts, supra at 175).
i. All are lost – creditor shall have a right to
indemnity for damages based on the
value of the last thing which disappeared
EFFECT OF LOSS OF SUBSTITUTE IN ALTERNATIVE V. LIMITED GENERIC
FACULTATIVE OBLIGATION OBLIGATIONS
1. Before substitution is made: ALTERNATIVE LIMITED GENERIC
a. If due to the bad faith or fraud of obligor –
obligor is liable. As to Prestation
b. If due to the negligence of the obligor –
obligor is not liable for damages (CIVIL Several prestations Only one prestation
CODE, Art. 1206, par. 2).

2. After substitution is made: As to Delay of the Debtor

Regardless if caused by fraud or negligence,
Debtor does not incur Debtor may incur delay
obligor is liable for damages (CIVIL CODE, Art.
delay
1206, par. 2).
As to Right to Choose
ALTERNATIVE V. FACULTATIVE
OBLIGATIONS Right to choose may be Right to choose only
given to the creditor, belong to the debtor
ALTERNATIVE FACULTATIVE debtor or third person
As to the Effect of Fortuitous Loss As to Choice
Only the impossibility of Impossibility of the Choice only involves the
all the prestations due principal prestation is Choice involves the
thing/an object of
without the fault of the sufficient to extinguish prestation
prestation
debtor extinguishes the the obligation, even if the
obligation. substitute is possible. As to Loss of Prestation

Loss of substitute merely Loss of 1 or more, but Loss of prestation

extinguishes the not all prestations extinguishes the
facultative aspect. before choice is obligation
communicated does not
As to Right to Choose extinguish the
obligation
Right to choose may be Only the debtor can
given to the creditor. choose the substitute. As to Effect of Choice Made
As to Nature Choice made and Not applicable as no
communicated, need to communicate
Various prestations all Only the principal alternative obligations choice
of which constitute parts prestation constitutes the become simple
of the obligation. obligation, the accessory
being only a means to
facilitate payment.

As to the Effect of the Nullity of Prestations JOINT AND SOLIDARY

Nullity of one of the Nullity of the principal OBLIGATIONS
prestation does not prestation invalidates the
invalidate the obligation obligation
(ARTS. 1207-1222)
which is still in force
with respect to those
which have no vice.
JOINT OBLIGATION (OBLIGACIÓN
(JURADO, Obligations and Contracts, supra at 174- MANCOMUNADA)
175). The whole obligation is to be paid or fulfilled
proportionately by different debtors or demanded
proportionately by different creditors (CIVIL CODE,
Art. 1208).

Each debtor is liable only for a proportionate part of

the debt, and the creditor is entitled to demand only a
proportionate part of the credit from each debtor (AFP makes the charge or condition in solidum
Retirement and Separation Benefits System (JURADO, Obligations and Contracts, supra at
(AFPRSBS) v. Eduardo Sanvictores, G.R. No. 179-180).
207586, August 17, 2016).
PRINCIPAL EFFECTS OF JOINT
SOLIDARY OBLIGATION (OBLIGACIÓN LIABILITY:
SOLIDARIA) 1. Vices of each obligation arising from the personal
Each one of the debtors is bound to render, and/or defect of a particular debtor or creditor does not
each one of the creditors has a right to demand entire affect the obligation or right of the others;
compliance with the prestation (CIVIL CODE, Art.
1207). Example: A and B are joint debtors of C for
P1,000,000. A's consent was obtained by C
Each of the debtors is liable for the entire obligation, through fraud. B would still be liable for P500,000,
and each of the creditors is entitled to demand the while A will not be liable, since the 2 debts are
satisfaction of the whole obligation from any or all of considered distinct from each other.
the debtors (AFPRSBS v. Eduardo Sanvictores, .R.
No. 207586, August 17, 2016). 2. Insolvency of one debtor does not make others
responsible for his share;
SOLIDARY DEBTORSHIP NOT
PRESUMED Example: A, B, and C are joint debtors of D for
P3,000,000. If A is insolvent, B should pay D only
GENERAL RULE: Obligation is presumed joint if P1,000,000, his own proportionate share.
there is concurrence of several creditors or of several
debtors or of several creditors and debtors in one and 3. Demand by the creditor on one joint debtor puts
the same obligation (CIVIL CODE, Art. 1207). him in default, but not the others since the debts
are distinct;
There is a solidary liability only when the obligation 4. When the creditor interrupts the running of the
expressly so states, or when the law or the nature of prescriptive period by demanding judicially from
the obligation requires solidarity (CIVIL CODE, Art. one, the others are not affected;
1207). 5. Defenses of one debtor are not necessarily
available to the others (4 PARAS, supra at 286-
It becomes incumbent upon the party alleging that the 287; See 8 Manresa 200-201).
obligation is indeed solidary in character to prove
such fact with a preponderance of evidence
(Salvador P. Escaño v. Rafael Ortigas Jr., G.R. No. FACT OF INDIVISIBILITY DOES NOT
151953, June 29, 2007). CREATE SOLIDARITY
The indivisibility of an obligation does not necessarily
In the absence of any fact or law which would make give rise to solidarity. Nor does solidarity of itself
defendants solidarily liable, the presumption is that imply indivisibility (CIVIL CODE, Art. 1210).
they are jointly liable (Un Pak Leung v. Juan Nigorra
et al., G.R. No. L-3128, December 19, 1907). JOINT DIVISIBLE OBLIGATION
Credits or debts shall be presumed to be divided into
EXCEPTIONS: (LON-Final-Test) as many equal shares as there are creditors or
1. The Law requires solidarity; debtors, the credits or debts considered distinct from
one another subject to the Rules of Court governing
Examples: Tort, quasi-contracts, liability of multiplicity of suits (CIVIL CODE, Art. 1208).
principals, accomplices and accessories of a
felony, obligations of devisees and legatees, NOTE: Each creditor can demand only for the
bailees in commodatum (CIVIL CODE, Arts. 927, payment of his proportionate share of the credit, while
1824, 1911, 2146, 2157, 2194). each debtor can be held liable only for the payment
of his proportionate share of the debt (CIVIL CODE,
2. The Obligation expressly states that there is Arts. 1207, 1208; JURADO, Obligations and
solidarity; Contracts, supra at 181).
3. Nature of the obligation requires solidarity (CIVIL
CODE, Art. 1207) e.g. criminal offenses and In case of breach of obligation by one of the debtors,
torts; damages due must be borne by him alone; if there is
4. When a solidary responsibility is imputed by a any defense purely personal to one of the debtors, he
Final judgment upon several defendants; and alone can avail himself of such defense (Id. at 181-
5. When a charge or condition is imposed upon 182).
heirs or legatees, and the Testament expressly
JOINT INDIVISIBLE OBLIGATION INDIVISIBILITY V. SOLIDARITY
Where the obligation is merely joint, but since the INDIVISIBILITY SOLIDARITY
object is indivisible, the creditor must proceed against
ALL of the joint debtors (CIVIL CODE, Art. 1209), for As to Nature
compliance is possible only if all the joint debtors
would act together (4 PARAS, supra at 290; see also Refers to the prestation Refers to the legal tie or
CIVIL CODE, Art. 1224). which constitutes the vinculum juris, and
object of the obligation, consequently to the
Example: Performance by a musical band; where a is not capable of partial subjects or parties of the
lessor is entitled to absolute possession of a building performance. obligation.
with several lessors in possession of distinct rooms.
The obligation is joint because the parties are merely As to Plurality of Subjects
proportionately liable. It is indivisible because the
object or subject matter is not physically divisible into Exists even if there is Exists only if there is more
different parts (see CIVIL CODE, Art. 1225, par. 1). only one creditor and than one creditor or more
one debtor. Thus, than one debtor. Thus,
In other words, it is joint as to liabilities of the debtors plurality of subject is plurality of subject is
or rights of the creditors but indivisible as to not required. indispensable.
compliance (see CIVIL CODE, Art. 1224; DE LEON,
As to the Rights of the Creditor
Obligations and Contracts, supra at 243).
Each creditor cannot Each creditor may
CHARACTERISTICS OF JOINT demand more than his demand the entire
INDIVISIBLE OBLIGATIONS share and each debtor prestation and each
1. No creditor can act in representation of the other; is not bound to pay debtor is bound to pay the
2. No debtor can be compelled to answer for the more than his share. entire prestation.
liability of others;
As to the Effect of Breach
3. If there are two or more debtors, the fulfillment of
or compliance with the obligation requires the Obligation is converted When the obligation is
concurrence of all the debtors, although each for into indemnity for converted into indemnity
his own share; damages; indivisibility for damages because of
4. If there are two or more creditors, the is terminated. breach, the solidarity
concurrence or collective act of all the creditors, character of the
although each for his own share, is also obligation remains.
necessary for the enforcement of the obligation
(JURADO, Obligations and Contracts, supra at As to the Liability of Debtors
184-185);
5. Demand must, therefore, be made on ALL the Only the debtors guilty All the debtors are liable
joint debtors; of breach of obligation for the breach of the
6. If any one of the debtors does not comply with his are liable for damages. obligations committed by
obligations, it is converted into one of indemnity a debtor.
for damages (CIVIL CODE, Art. 1224);
7. If any of the joint debtors be insolvent, the others As to the Effect of the Insolvency of the
shall not be liable for his share (CIVIL CODE, Art. Debtors
1209);
8. If there be joint creditors, delivery must be made Other debtors are not All debtors are
to all, and not merely to one, unless that one be liable if one debtor is proportionately liable for
specifically authorized by the others; and insolvent. the insolvency of one
9. Each joint creditor is allowed to renounce his debtor.
proportionate credit (4 PARAS, supra at 290). (JURADO, Obligations and Contracts, supra at 187;
DE LEON, Obligations and Contracts, supra at 244)

SOLIDARITY
Solidarity may exist although the creditors and the
debtors may not be bound in the same manner and
by the same periods and conditions (CIVIL CODE,
Art. 1211).

The essence of solidarity consists in the right of each

creditor to enforce the rights of all and the liability of
each debtor to answer for the liabilities of all. 2. As to Uniformity
Therefore, there may be a solidary obligation a. Uniform – parties are bound by the same
although the parties may not be bound in the same stipulations; and
manner and by the same periods and conditions (DE b. Non-uniform or Varied – where the obligors
LEON, Obligations and Contracts, supra at 243). though liable for the same prestation, are
nevertheless not subject to the same
NOTE: Every solidary obligation has these secondary stipulations and clauses (DE
characteristics: unity of object and plurality of ties. LEON, Obligations and Contracts, supra at
The prestation due, or to which a right exists, is one 226; 4 PARAS, supra at 293).
and the same thing (DE LEON, Obligations and
Contracts, supra at 234). 3. As to Source
a. Legal – imposed by law
KINDS OF SOLIDARITY: (PUS) b. Conventional – agreed upon by the
1. As to Parties bound parties (4 PARAS, supra at 291).
a. Active – Solidarity of creditors; a tie or
vinculum existing among several creditors of Effect: Creditor can commence an action against
one and the same obligation by virtue of anyone of the debtors for compliance with the
which each of them, in relation to his co- entire obligation minus the portion or share which
creditors, possesses the character of creditor corresponds to the debtor affected by the
only with respect to his share in the condition or period.
obligation, but in relation to the common
debtor or debtors, represents all of the other JOINT OBLIGATION ON ONE SIDE,
creditors; SOLIDARY ON THE OTHER
Solidarity may exist although the creditors and the
Effect: Mutual agency among the solidary debtors may not be bound in the same manner and
creditors by virtue of which each creditor is by the same periods and conditions (CIVIL CODE,
empowered to exercise against the debtor or Art. 1211).
debtors not only the rights which correspond
to him, but also all the rights which An obligation may be joint on the side of the creditors
correspond to the other creditors, with the and solidary on the side of the debtors, or vice versa.
consequent obligation to render an In such cases, the rules applicable to each subject of
accounting of his acts to such creditors. the obligation should be applied, the character of the
creditors or the debtors determining their respective
b. Passive – Solidarity of debtors; tie or rights and liabilities (DE LEON, Obligations and
vinculum existing among several debtors of Contracts, supra at 247).
one and the same obligation by virtue of
which each of them, in relation to the Illustration of effect of varied conditions or
common creditor or creditors, represents all periods: If A, B, and C borrowed P60,000 from X
of the other debtors, and in relation to his co- binding themselves jointly and severally to pay the
debtors, possesses the character of debtor entire obligation, but in the promissory note executed
only with respect to his share in the by them there is a stipulation that in the case of A, the
obligation, but in relation to the common obligation shall become due and demandable on
creditor or creditors, represents all of the June 15, 2022. In the case of B, it shall become due
other debtors; and and demandable on June 15, 2024; and in the case
of C, it shall become due and demandable on June
Effect: Mutual Guarantee. Each solidary 15, 2026.
debtor, insofar as the creditor or creditors are
concerned, is the debtor of the entire amount; Immediately after June 15, 2012, X brought an action
however, with respect to his co-debtors, he is for collection of the entire obligation against A alone
a debtor only to the extent of his share in the because of the latter’s failure to pay despite repeated
obligation demands, will the action prosper?

c. Mixed – solidarity on the part of the debtors Answer: YES. The obligation here is solidary.
and creditors, where each one of the debtors However, in solidary obligations of this type, the right
is liable to render, and each one of the of the creditor is limited to the recovery of the share
creditors has a right to demand, entire owed by the debtor whose obligation has already
compliance with the obligation matured leaving in suspense his right to recover the
(JURADO, Obligations and Contracts, supra shares corresponding to the other debtors whose
at 187-188). obligations have not yet matured. Therefore, in the
instant case, X can collect only P20,000 from A,
which is the latter’s share in the obligation. He shall EFFECTS OF PREJUDICIAL AND
have to wait for June 15, 2024, when B’s obligation BENEFICIAL ACTS
shall have matured, and for June 15, 2026, when C’s
obligation shall have also matured. Each one of the solidary creditors may do whatever
may be useful or beneficial to the others, but not
On June 15, 2024, he can collect P20,000 from either anything which may be prejudicial to the latter (CIVIL
A or B. On June 15, 2026, he can again collect CODE, Art. 1212)
another P20,000 from either A or B or C.
NOTES:
1. As far as the debtor/s is/are concerned, an act
SOLIDARITY V. SURETYSHIP performed by a solidary creditor whether
PASSIVE SOLIDARY SURETY (SOLIDARY beneficial or prejudicial to the creditors is valid
DEBTOR GUARANTOR) and binding.
2. If the act is prejudicial to the creditors, the creditor
As to Liability who performed such act shall incur the obligation
of indemnifying the others for damages.
Both are solidarily liable to the creditor for the 3. In the case of remission or condonation (which is
payment of the entire obligation. prejudicial), the solidary creditor is allowed to
remit, and the obligation is extinguished, without
As to the Extent of the Liability prejudice to his liability to the other creditors (4
Liable not only for the Liable only for the share PARAS, supra at 295).
payment of the debt of of the principal debtor.
another, but also for the EFFECTS OF ASSIGNMENT OF RIGHTS
payment of a debt IN SOLIDARY OBLIGATIONS
which is properly his GENERAL RULE: A solidary creditor cannot assign
own. his rights without the consent of others (CIVIL CODE,
Art. 1213).
As to the Right of Reimbursement
REASON: Solidary creditorship is predicated upon
Has a right to demand Acquires a right of
mutual agency and mutual confidence, i.e., personal
reimbursement from his reimbursement from the
qualification of each creditor had been taken into
co-debtors of the principal debtor of the
consideration.
shares which entire amount he has
correspond to them in paid.
EXCEPTIONS: (CC)
the obligation, if he pays
1. Assignment to a Co-creditor (JURADO,
the entire amount of the Thus, the surety can be
Obligations and Contracts, supra at 196); and
obligation. reimbursed for
2. Assignment is with Consent of co-creditors (4
everything he paid.
PARAS, supra at 296).
Thus, the solidary
debtor can be
reimbursed what he has EFFECT OF UNAUTHORIZED
paid minus his own ASSIGNMENT
share. 1st View:
Article 1213 seems to imply that such assignment
As to the Effect of the Extension of Time is invalid.
In passive solidarity, an An extension of time
NOTE: This rule is unjustifiable and places an
extension of time granted by the creditor
unnecessary restriction on the rights of the
granted by the creditor to the principal debtor
solidary co-creditor upon his share. The reason
to one of the solidary would release the surety
behind it seems to be that each creditor
debtors without the from the obligation.
represents the others and, therefore, must have
knowledge of the other
the confidence of the latter.
solidary debtors would
not have the effect of
releasing the latter from 2nd View (Manresa):
obligation. A solidary creditor who assigns his rights without
the consent of his co-creditors shall answer
(JURADO, Obligations and Contracts, supra at 189; subsidiarily for any prejudice caused to the latter
4 PARAS, supra at 303-304). by the assignee in connection with the credit.
 NOTE: The representation (by each creditor) of directed against the others so long as the debt has
the solidary creditors is created by law and not by not been fully collected (CIVIL CODE, Art. 1216).
consent or agreement of the parties. If danger is
seen in the possible misfeasance of the The creditor may proceed against any one of the
assignee, the remedy is not the paralyzation of solidary debtors or against all of them simultaneously
the proprietary rights of the solidary creditor, but (CIVIL CODE, Art. 1216).
to impose upon him a subsidiary responsibility for
the acts of the assignee, similar to that of the A creditor’s right to proceed against the surety exists
agent for the acts of the sub-agent under Art. independently of his right to proceed against the
1892 (DE LEON, Obligations and Contracts, principal (Palmares v. CA, G.R. No. 126490, March
supra at 249). 31, 1998).

TO WHOM PAYMENT MADE IN NOTE: If a claim from one of the solidary debtors has
SOLIDARY OBLIGATION been dismissed by a court on grounds other than the
extinguishment of the whole obligation or that the
GENERAL RULE: Payment may be made to any of claim has prescribed, it does not necessarily mean
the solidary creditors (CIVIL CODE, Art. 1214). that the solidary indebtedness cannot be claimed
against the other solidary debtors who were not
EXCEPTION: If demand, judicial or extra-judicial, has impleaded in the case or against those who were
been made by one of them, payment should be made impleaded but whose liability was found by the court
to him (CIVIL CODE, Art. 1214). as proper (Inciong v. CA, G.R. No. 96405, June 26,
1996).
REASON: When one creditor makes an extrajudicial
or judicial demand for payment, the tacit
representation by the other creditors is considered EFFECT OF PAYMENT TO A CREDITOR
revoked and during the pendency of the action, the If one of the solidary creditors is able to collect the
creditors who did not sue lose their representation of entire amount of the debt from one or some or all of
the others (DE LEON, Obligations and Contracts, the solidary debtors, the obligation is totally
supra at 230). extinguished, although there arises a consequent
obligation on his part to render an account to his co-
AS TO THE EFFECT OF RES JUDICATA creditors (CIVIL CODE, Art.1215, par. 2).
TO THE OTHER CREDITORS NOTE: Solidarity does not make a solidary obligor an
Under Art. 1214 of the CIVIL CODE, once an action indispensable party in a suit filed by the creditor
is filed by a solidary creditor, he represents all the (Operations Incorporated v. American Biscuit Co.
others and payment can be made only to him. If the Inc., G.R. No. L-34767, October 23, 1987). Likewise,
filing of the action consolidates in the plaintiff creditor the nature of the solidary obligation under the surety
all the rights of the other co-creditors, the latter must does not make one an indispensable party (Living @
benefit from the favorable results and suffer from the Sense, Inc. v. Malayan Insurance Company, Inc.,
adverse consequences of such action. However, the G.R. No. 193753, September 26, 2012).
other creditors will not be adversely affected, if the
judgment is based on a cause personal to the plaintiff EFFECT OF PAYMENT BY A DEBTOR
in the first action (4 TOLENTINO, supra at 242).
Payment made by one of the solidary debtors, either
NOTE: In case of mixed solidarity, a judicial or totally or partially, extinguishes the obligation
extrajudicial demand would prohibit the debtor upon depending upon whether the entire amount of debt is
whom the demand is made from making a payment paid or only a part thereof (CIVIL CODE, Art. 1217,
to any creditor other than to the one who made the par. 1).
demand. This prohibition, however, does not extend
to the other debtors upon whom no demand has been If two or more solidary debtors offer to pay, the
made and so each of such debtors can still validly creditor may choose which offer to accept (CIVIL
tender payment to a creditor other than to the creditor CODE, Art. 1217, par. 1).
who made the demand (JURADO, Obligations and
Contracts, supra at 197). Solidary debtor who made the payment merely
entitles him to claim from his co-debtors the share
which corresponds to them with interest from the time
EFFECT OF DEMAND UPON A of payment; it does not create a real case of
SOLIDARY DEBTOR subrogation; if payment was made before the debt is
The demand made against one of them shall not be due, no interest for the intervening period may be
an obstacle to those which may subsequently be demanded (CIVIL CODE, Art. 1217, par. 2).
REASON: The right of the paying co-debtor to be COMPENSATION
reimbursed is not based on the original obligation but Compensation shall take place when two persons, in
upon the payment made by him (DE LEON, their own right, are creditors and debtors of each
Obligations and Contracts, supra at 254). other (CIVIL CODE, Art. 1278) such that the amount
of their respective debts are set off against each
NO RIGHT OF REIMBURSEMENT WHERE other.
PAYMENT IS ILLEGAL
Payment by a solidary debtor shall not entitle him to CONFUSION
reimbursement from his co-debtors if such payment Confusion or merger is the extinguishment of an
is made after the obligation has prescribed or become obligation from the time the characters of creditor and
illegal (CIVIL CODE, Art. 1218). debtor are merged in the same person (CIVIL CODE,
Art. 1275).
INSOLVENCY OF A SOLIDARY DEBTOR
REMISSION
BORNE BY CO-DEBTORS Condonation or remission is a gratuitous renunciation
When one of the solidary debtors cannot, because of by the creditor of his right to enforce the obligation
his insolvency, reimburse his share to the debtor against the debtor which necessarily results in the
paying the obligation, such share shall be borne by extinguishment of the obligation, whether wholly or in
all his co-debtors, in proportion to the debt of each part. Being gratuitous, it is a form of donation
(CIVIL CODE, Art. 1217). requiring the acceptance of the debtor (CIVIL CODE,
Art. 1270).
EFFECT OF DEATH OF PRINCIPAL
DEBTOR EFFECT OF MODES OF EXTINGUISHING
Under the law and jurisprudence, the creditor may OBLIGATIONS NOT CONSTITUTING
sue, separately or together, the principal debtor and PAYMENT
the surety, in view of the solidary nature of their Novation, compensation, confusion or remission of
liability. The death of the principal debtor will not work the debt, made by any of the solidary creditors or with
to convert, decrease or nullify the substantive right of any of the solidary debtors, shall extinguish the
the solidary creditor. Evidently, despite the death of obligation. The creditor who may have executed any
the principal debtor, the creditor may still sue the of these acts, as well as he who collects the debt,
surety alone in accordance with the solidary nature of shall be liable to the others for the share in the
the latter’s liability under the performance bond obligation corresponding to them (CIVIL CODE, Art.
(Stronghold Insurance Co. v. Republic – Asahi Glass 1215).
Corp., G.R. No. 147561, June 22, 2006).
NOTES:
In case of death of one of the solidary debtors, the 1. In other words, novation, compensation,
creditor may proceed against the estate of the confusion, or remission entered into by one of the
deceased solidary debtor alone or against any or all solidary creditors will have the same effect as if
of the surviving solidary debtors whose liability is the creditor was the only creditor. To the debtors,
independent of and separate from the deceased the obligation are extinguished to the extent
debtor, instead of instituting a proceeding for the novated, compensated, confused, or remitted.
settlement of the estate of the deceased debtor 2. As novation is the only act of extinguishment
wherein his claim could be filed (Imperial Insurance, which may result to a beneficial outcome to the
Inc. v. David, G.R. No. L-32425, November 21, 1984). solidary co-creditors, Article 1212 may also come
into operation as to allow any benefit secured by
EFFECT OF NOVATION, the co-creditor to inure to them in proportion with
COMPENSATION, CONFUSION, AND their interest.
REMISSION IN SOLIDARY OBLIGATIONS 3. The solidary creditor who grants a novation
prejudicial to his co-creditors, or who
compensates or confuses his own liabilities with
NOVATION
that of the debtors, or remits the debtor’s debt,
Novation is the change or substitution of an obligation
shall be liable to reimburse his co-creditors to the
by another, resulting in its extinguishment or
extent that each of them shall be proportionally
modification, either by changing its object or principal
prejudiced by such act (DE LEON, Obligations
condition, or by substituting another in place of the
and Contracts, supra at 254).
debtor, or by subrogating a third person in the rights
of the creditor(CIVIL CODE, Art. 1291).
GRANT OF GRACE PERIOD ONLY ii. Since P300 is still outstanding, X may still
AFFECTS THE GRANTOR demand P300 without prejudice to any
duty on his part to remit the entire P300
GENERAL RULE: An extension of time granted by which is ultimately Y’s share.
the creditor to a solidary debtor does not amount to a
novation that will discharge the other solidary
debtors. The latter shall be liable for the whole debt REMISSION GRANTED TO SOLIDARY
less the share of the debtor to whom the extension DEBTORS
was granted CIVIL CODE The remission made by the creditor of the share
which affects one of the solidary debtors does not
EXCEPTION: In cases of suretyship, where the release the latter from his responsibility towards the
sureties are bound in solidum, a different rule applies. co-debtors, in case the debt had been totally paid by
A material alteration of the principal contract, effected anyone of them before the remission was effected
by the creditor and the principal debtor, without the (CIVIL CODE, Art. 1219).
knowledge and consent of the sureties, completely
discharges the sureties from all liabilities (4 EFFECTS OF REMISSION
TOLENTINO, supra at 237-238). Suppose that A and B are solidary debtors of X and
Y, solidary creditors, in the amount of P1000.
EFFECTS OF COMPENSATION OR
CONFUSION 1. Total Remission
Suppose that A and B are solidary debtors of X and X forgives all P1000 debt
Y, solidary creditors, in the amount of P1000. a. Debtor’s Side
i. P1000 solidary debt is extinguished.
1. Total Compensation/Confusion ii. Even if A was the one who secured it, it
X also owes A P1000 so compensation/confusion is as if it was granted to each and every
may occur. debtor (CIVIL CODE, Art 1220)
a. Debtor’s Side iii. A has no right to demand P500 from B
i. P1000 solidary debt is extinguished. because A did not pay anything to X/Y.
ii. Since A was only liable solidarily for b. Creditor’s Side
P500, but A’s credit of P1000 was used i. Since X only had P500 of credit, his act
to compensate/confused, it is as if A paid prevented Y from getting paid for his
B’s portion. Thus B must reimburse A, share. Thus, X must pay P500 to Y if Y
P500. did not consent to the remission.
b. Creditor’s Side
i. Since X only had P500 of credit but 2. Partial Remission
P1000 of his debts were extinguished, it X forgives a portion of A’s debt worth P500
is as if X receive P500 on behalf of Y, a. Debtor’s Side
thus, X must reimburse Y P500. i. If the remission is intended to benefit A
only
2. Partial Compensation/Confusion 1.) Then A’s share is extinguished.
X also owes A P700 so compensation/confusion 2.) A however is still a solidary debtor to
may occur partially the P500 share of B still outstanding,
a. Debtor’s Side except that if A pays any amount, B
i. P700 solidary debt is extinguished must reimburse since only B is
(divisible obligation). P300 still ultimately liable.
outstanding. ii. If the remission is intended to benefit
ii. Since A was only liable solidarily for both A and B
P500, but A’s credit of P700 was used to 1.) It is as if A and B are now just
compensate/confused, it is as if A paid solidarily indebted for P500 (or P250
B’s portion for up to P200. Thus B must each)
reimburse A, P200. 2.) The normal rules of solidary
iii. Since P300 is still outstanding, A may still debtorship apply but only for P500
be asked to pay, without prejudice to debt instead of P1000
being reimbursed fully for the P300 if he b. Creditor’s Side
pays, i. Since X remitted P500, he did not impair
b. Creditor’s Side the share of Y. No obligation to
i. Since X only had P500 of credit but P700 reimburse.
of his debts were extinguished, it is as if ii. If X remitted an amount less than P500,
X receive P200 on behalf of Y, thus, X then only X’s right is affected such that
must reimburse Y P200. he can only enforce payment on the
 difference of P500 and the amount he 3. Defenses pertaining to the debtor’s own
remitted. Share
iii. If X remitted an amount exceeding P500, – constitutes a partial defense; only the debtor is
then he must reimburse the amount in benefited.
excess of P500, and any future
payments received must be remitted to Y Example: Share of debtor is not yet due, the
entirely. creditor can only compel the share of other co-
debtors.
EFFECT OF REMISSION OF SHARE
AFTER PAYMENT 4. Defenses personal to the Other solidary
1. If payment is made first, the remission or waiver debtors, but only as regards that part of
is of no effect. There is no more obligation to the debt for which the latter are
remit. responsible
2. If remission is made previous to the payment and – constitutes partial defense only for the debtor-
payment is made, solutio indebiti arises. It is defendant (CIVIL CODE, Art. 1222).
incumbent upon the debtor whose debt is
remitted, to prove the priority of the remission to Example: The co-debtor’s share is not yet due,
the payment to release him from responsibility so the creditor can only compel the debtor to give
towards his co-debtors (DE LEON, Obligations his share. (4 TOLENTINO, supra at 250-251;
and Contracts, supra at 259). JURADO, Obligations and Contracts, supra at
210-212).
EFFECT OF LOSS OR IMPOSSIBILITY OF
PERFORMANCE IN SOLIDARY
OBLIGATION
1. If the thing has been lost or if the prestation has
DIVISIBLE OBLIGATIONS
become impossible without the fault of the (ARTS. 1223-1225)
solidary debtors, the obligation shall be
extinguished (CIVIL CODE, 1221 par. 1).
2. If the loss or impossibility is due to the fault of one
of the solidary debtors (CIVIL CODE, 1221, par. DIVISIBLE OBLIGATIONS
2) or due to a fortuitous event after one of the Those which have as their object a prestation which
solidary debtors had already incurred in delay, is susceptible of partial performance without the
the obligation is converted into an obligation of essence of obligation being changed (JURADO,
indemnity for damages but the solidary character Obligations and Contracts, supra at 212).
of the obligation remains (CIVIL CODE, 1221,
par. 3). In determining the divisibility of an obligation, the
following factors may be considered, to wit:
DEFENSES AVAILABLE TO A SOLIDARY 1. The will or intention of the parties, which may be
DEBTOR: (NP-ShOt) expressed or presumed;
1. Defenses derived from the Nature of the 2. The objective or purpose of the stipulated
prestation;
obligation
3. The nature of the thing; and
– total defense; all the solidary co-debtors are
4. Provisions of law affecting the prestation
benefited.
(Spouses Lam v. Kodak Philippines, Ltd., G.R.
No. 167615, January 11, 2016).
Example: Payment or performance, res judicata,
prescription, those which invalidate the contract
such as mistake, violence, and others of similar INDIVISIBLE OBLIGATIONS
nature. Those which have as their object a prestation which
is not susceptible of partial performance, otherwise,
2. Defenses Personal to the debtor the essence of the obligation will be changed or its
– constitutes total defense and partial defense. value will be decreased (JURADO, Obligations and
Contracts, supra at 212).
Examples of Total Defense: Minority, insanity,
and other defenses which are purely personal to NOTE: The divisibility of an obligation should not be
the debtor. confused with the divisibility of the thing which is the
object thereof (DE LEON, Obligations and Contracts,
Examples of Partial Defense: Special terms or supra at 265).
conditions affecting his part of the obligation.
THREE KINDS OF DIVISION: 2. Obligations which are Not susceptible of partial
performance;
1. Quantitative
3. Obligations Intended by the parties to be
– the thing can be materially divided into parts
indivisible even if the thing or service is physically
and such parts are homogenous to each other;
divisible;
a. Movable– parts are actually separated from
4. Obligations provided by Law to be indivisible
each other.
even if the thing or service is physically divisible
b. Immovable–the limits of the parts are fixed
(CIVIL CODE, Art. 1225, pars. 1 and 3).
by metes and bounds.

2. Qualitative PRINCIPLE OF INDIVISIBILITY OF

– the thing can be materially divided but the parts OBLIGATIONS
are not exactly homogenous e.g., division of Creditor cannot be compelled partially to receive the
inheritance; and prestation in which the obligation consists; neither
may the debtor be required to make partial payments
3. Ideal/Intellectual (CIVIL CODE, Art. 1248).
– the thing cannot be separated into material
parts e.g., co-ownership (JURADO, Obligations EXCEPTIONS:
and Contracts, supra at 213). 1. When the obligation expressly stipulates the
contrary (CIVIL CODE, Art. 1248, par. 1);
TEST OF DIVISIBILITY 2. When the obligation is in part liquidated and in
part unliquidated (CIVIL CODE, Art. 1248, par.
Whether the prestation is susceptible of partial
2);
performance or not (CIVIL CODE, Art. 1225, par. 1).
3. When the different prestations constituting the
objects of the obligation are subject to different
The susceptibility of partial compliance should be
terms and conditions.
understood in the sense of the possibility of realizing
the end or purpose which the obligation seeks to
NOTE: When there is plurality of debtors and
attain. Hence, the purpose of the obligation is the
creditors, the effect of divisible or indivisible character
controlling circumstance. This applies not only to
of the obligation depends on whether the obligation is
obligations to give, but also to obligations to do or not
joint or solidary:
to do (JURADO, Obligations and Contracts, supra at
1. If solidary
215).
– Arts. 1211 to Art. 1222 of the CIVIL CODE
In obligations to give, even though the object may be
apply;
physically divisible, the obligation is still indivisible if it
is provided by law or it is so intended by the parties
2. If joint divisible
(CIVIL CODE, Art. 1225, par. 2).
– Art. 1208 of the CIVIL CODE is applicable;
and
INSTANCES WHEN PERSONAL
OBLIGATION IS DEEMED DIVISIBLE 3. If joint indivisible
In obligations to do, the obligation shall be considered – Arts. 1209 and 1224 of the CIVIL CODE apply
divisible when it has for its object (CIVIL CODE, Art. (JURADO, Obligations and Contracts, supra at
1225, par. 3): (EAN) 214).
1. The Execution of a certain number of days of
work; BREACH OF JOINT INDIVISIBLE
2. The Accomplishment of work by metrical units; or OBLIGATION
3. The accomplishment of analogous things which
A joint indivisible obligation gives rise to indemnity for
by their Nature are susceptible of partial
damages from the time anyone of the debtors does
performance.
not comply with his undertaking. The debtors who
may have been ready to fulfill their promises shall not
In obligations not to do, it depends upon the character
contribute to the indemnity beyond the corresponding
of the prestation in each particular case (CIVIL
portion of the price of the thing or of the value of the
CODE, Art. 1225, par. 4).
service in which the obligation consists (CIVIL CODE,
Art. 1224).
IN SUMMARY, THE INSTANCES WHEN
THE OBLIGATION IS DEEMED
INDIVISIBLE
An obligation is deemed indivisible in the following:
(D-NIL)
1. Obligations to give Definite things;
 OBLIGATIONS WITH 2. Función liquidatoria
– to liquidate the amount of damages to be
PENAL CLAUSE awarded to the injured party in case of breach of
(ARTS. 1226-1230) the principal obligation (compensatory); and

3. Función estrictamente penal

– in certain exceptional cases, to punish the
OBLIGATIONS WITH A PENAL CLAUSE obligor in case of breach of the principal
obligation (punitive). Does not resolve the
An obligation to which an accessory undertaking
question of damages (JURADO, Obligations and
(penal clause or penalty) is attached for the purpose
Contracts, supra at 217-218).
of insuring its performance by virtue of which the
obligor is bound to pay a stipulated indemnity or
A penal clause has a double function: (1) to provide
perform a stipulated prestation in case of breach
for liquidated damages; and (2) to strengthen the
(JURADO, Obligations and Contracts, supra at 217).
coercive force of the obligation by threat of greater
responsibility in the event of breach (Filinvest Land,
PRINCIPAL OBLIGATION Inc., v. CA, G.R. No. 138980, September 20, 2005).
– is one which can stand by itself and does not
depend for its validity and existence upon another KINDS OF PENALTY:
obligation.
1. As to Origin
a. Legal – constituted by law
ACCESSORY OBLIGATION b. Conventional – constituted by agreement of
– is one which is attached to a principal obligation the parties
and, therefore, cannot stand alone.
2. As to Purpose
PENAL CLAUSE a. Compensatory – indemnity for damages
– is an accessory undertaking attached to an suffered by the creditor in case of breach of
obligation to assume greater liability on the part of the obligation
obligor in case of breach of the obligation, i.e., the b. Punitive – punishing the obligor in case of
obligation is not fulfilled, or is partly or irregularly breach of obligation
complied with (DE LEON, Obligations and Contracts,
supra at 272). 3. As to Effect
a. Subsidiary – only penalty may be demanded
PENAL CLAUSE V. CONDITION b. Joint or Complementary – both penalty and
principal obligation may be demanded
PENAL CLAUSE CONDITION
(JURADO, Obligations and Contracts, supra
As to Whether it Constitutes an Obligation at 218).

Constitutes an Does not constitute an OBLIGATIONS WITH A PENAL CLAUSE

obligation. obligation. V. CONDITIONAL OBLIGATION
As to Demandability OBLIGATION WITH A CONDITIONAL
PENAL CLAUSE OBLIGATION
May become Never demandable
demandable upon As to Existence of Obligation
default of the
unperformed obligation No obligation before the
and sometimes jointly suspensive condition
There is already an
with it. happens. It is the
existing obligation from
fulfillment of the condition
(8 MANRESA, p. 244, as cited in 4 PARAS, supra at the very beginning.
that gives rise to the
325). obligation.

PURPOSE OF PENALTY: As to Dependency on Principal Obligation

1. Función coercitiva o de garantia
Penalty (an accessory Principal obligation itself
– to insure the performance of the obligation; obligation) is dependent is dependent upon the
upon the non- uncertain event.
 OBLIGATION WITH A CONDITIONAL OBLIGATIONS WITH A PENAL CLAUSE
PENAL CLAUSE OBLIGATION V. GUARANTY
OBLIGATION WITH A
performance of the GUARANTY
principal obligation. PENAL CLAUSE

(4 TOLENTINO, supra at 262-263). As to Similarity in Obligations

OBLIGATIONS WITH A PENAL CLAUSE Obligation to pay the Object of the obligations
penalty is different from of the principal debtor
V. ALTERNATIVE OBLIGATION the principal obligation. and the guarantor is the
OBLIGATION WITH A ALTERNATIVE same.
PENAL CLAUSE OBLIGATION

As to Number of Prestations As to Assumption of the Principal Obligation

There is only one Two or more obligations Principal obligation and Principal debtor cannot
prestation. are due. the penalty can be be the guarantor of the
assumed by the same same obligation.
As to Effect of Impossibility person.

Impossibility of the The impossibility of one As to Extinguishment

principal extinguishes of the obligations,
also the penalty. without the fault of the As a rule, penalty is Guaranty subsists even
debtor, leaves the other extinguished by the when the principal
subsisting. nullity of the principal obligation is voidable,
obligation. Except when unenforceable or a
As to Choice of the Debtor in Fulfilling the penal clause is natural one.
Obligation assumed by a third
person.
The obligor cannot Debtor can choose
choose to pay the which prestation to fulfill.
penalty to relieve If the penal clause is
himself of the principal, assumed by a 3rd
unless this right is person, the same
expressly granted to principle will apply as in
him. the case of a guaranty.
(Id.at 263).
(Id. at 263-264).
OBLIGATIONS WITH A PENAL CLAUSE
EFFECT OF PENALTY
V. FACULTATIVE OBLIGATION
GENERAL RULE: The penalty shall substitute the
OBLIGATION WITH A FACULTATIVE indemnity for damages and payment of interest in
PENAL CLAUSE OBLIGATION case of noncompliance (CIVIL CODE, Art. 1226, par.
1).
As to Substitution
NOTE: Proof of actual damages suffered by the
Payment of the penalty Power of the debtor to creditor is not necessary in order that the penalty may
in lieu of the principal make the substitution is be demanded. (CIVIL CODE, Art. 1228).
obligation can be made absolute.
only by express EXCEPTIONS: (SRF)
stipulation. 1. When there is a Stipulation to the
As to Demand contrary;

The creditor can The creditor can never NOTE: The law permits an agreement upon a
demand both demand both penalty apart from the interest. Should there be
prestations as may be prestations. such an agreement, the penalty does not include
granted to him. the interest and as such, the two are different and
distinct things which may be demanded
(Id.at 263). separately. A stipulation about payment of
additional rate of interest partakes of the nature
 of a penalty clause which is sanctioned by law obligation an alternative one (DE LEON, supra at
(DE LEON, Obligations and Contracts, supra at 258).
277).
LIMITATIONS ON THE RIGHT OF THE
2. When the obligor Refuses to pay the CREDITOR IN OBLIGATIONS WITH A
penalty; PENAL CLAUSE
GENERAL RULE: Creditor cannot demand the
3. When the obligor is guilty of Fraud (Id. at fulfillment of the principal obligation and the
277). satisfaction of the penalty at the same time (CIVIL
CODE, Art. 1227).
REASON: There can be no renunciation of an
action to enforce liability for future fraud because EXCEPTIONS:
this is against public policy and against the 1. Where the right to demand both the principal
express provisions of the law (CIVIL CODE, Art. obligation and the penalty has been clearly
1171). granted to him (CIVIL CODE, Art. 1227).
2. Where the creditor has demanded fulfillment of
NOTE: Breach of the obligation WITHOUT fraud the principal obligation but it cannot be
cannot constitute one of the exceptions performed, thus in such a case, he may demand
(Cabarroguis, et al. v. Vicente, L-14304, March the penalty (CIVIL CODE, Art. 1227; 4
23, 1960). TOLENTINO, supra at 265).

ENFORCEABILITY OF PENALTY NOTE: The clause “performance thereof should

Penalty, as a stipulation in a contract, is demandable become impossible without his (creditor’s) fault” of
only if there is a breach of the obligation (CIVIL Art. 1227 could refer to impossibility due to fortuitous
CODE, Art. 1226, par. 2). events, in which case the principal obligation would
be extinguished, and so will the penal clause (Id. At
Like all contractual stipulations, it should not be 266).
contrary to law, morals, good customs, public order
or public policy (CIVIL CODE, Art. 1306). PROOF OF ACTUAL DAMAGES
Where both of the contracting parties are unable to Proof of actual damages suffered by the creditor is
comply with their respective obligations, although the not necessary in order that penalty may be
breach is not willful or culpable, the penal clause demanded (CIVIL CODE, Art. 1228).
cannot be invoked by anyone of them to the prejudice
of the other (JURADO, Obligations and Contracts, NOTE: This is applicable only to the general rule
supra at 224). stated in Art. 1226 of the Civil Code, and not to the
exceptions (JURADO, Obligations and Contracts,
WHEN PENAL CLAUSE CANNOT BE supra at 225).
ENFORCED:
1. The breach is the fault of the creditor; Consequently, if the penalty is fixed by the
2. A fortuitous event intervened, unless the debtor contracting parties for the purpose of compensating
expressly agreed on his liability in case of or substituting the indemnity for damages and the
fortuitous events (where he acts as “insurer”); or payment of interests, proof of actual damages
3. The debtor is not yet in default (4 PARAS, supra suffered by the obligee or creditor is not necessary in
at 339). order that the penalty may be demanded. In this
sense, penalty is exactly identical with what is known
LIMITATION UPON THE RIGHT OF THE as “liquidated damages” under Art. 2226 of the Civil
Code (Id. at 225).
DEBTOR IN OBLIGATIONS WITH A
PENAL CLAUSE However, if there is stipulation to the contrary, or if the
GENERAL RULE: Debtor cannot exempt himself obligor or debtor is sued for refusal to pay the agreed
from the performance of the principal obligation by penalty, or if the obligor or debtor is guilty of fraud,
paying the stipulated penalty (CIVIL CODE, Art. then the obligee or creditor can demand not only the
1227). satisfaction of the agreed penalty, but even damages.
In such case, in order to be able to recover such
EXCEPTION: Unless this right has been expressly damages in addition to the penalty, he must prove the
reserved for him (CIVIL CODE, Art. 1227). amount of damages which he had actually suffered
(Id. at 225).
REASON: If the debtor is allowed to pay the penalty
in lieu of the principal obligation, this would make the
WHEN PENALTY MAY BE REDUCED: 2. The Will of one of the contracting parties in
(PIU) certain contracts (JURADO, supra at 230);
3. Expiration of the resolutory term or period (CIVIL
1. If the principal obligation has been Partly CODE, Art. 1193, par. 2; JURADO, supra at 230);
complied with; 4. Renunciation or waiver by the obligee or creditor
2. If the principal obligation has been Irregularly (JURADO, supra at 230);
complied with; and 5. Compromise (CIVIL CODE, Art. 2028; JURADO,
3. If the penalty is iniquitous or Unconscionable supra at 230);
even if there has been no performance (CIVIL 6. Fortuitous event (CIVIL CODE, Art. 1174);
CODE, Art. 1229). 7. Mutual desistance or withdrawal;
8. Impossibility of fulfillment of condition (CIVIL
The power of a judge to reduce the penalty refers only CODE, Art. 1266);
to penalties prescribed in contracts.

EFFECT OF NULLITY OF OBLIGATION

OR PENALTY PAYMENT OR
If principal obligation is void, penal clause shall also
be void because the penalty is merely an accessory PERFORMANCE
obligation. But if the penal clause is void, principal
obligation is not affected (CIVIL CODE, Art. 1230).
HOW PAYMENT MADE

EXTINGUISHMENT OF PAYMENT OR PERFORMANCE

OBLIGATIONS Not only the delivery of money but also the
performance, in any other manner, of an obligation
(ARTS. 1231-1304) (CIVIL CODE, Art. 1232).

[Delivery of a sum of money] made as consideration

for a reserved right, option or privilege is not
EXTINGUISHMENT OF OBLIGATIONS: governed by Arts. 1232 to 1262, because such
(PLR-MCN-FRAP) “payment” cannot be demanded by the creditor
(Asturias Sugar Central v. Pure Cane Molasses Co.,
1. By Payment or performance (CIVIL CODE, Arts.
G.R No. L-40709, August 1, 1934).
1232-1261);
2. By the Loss of the thing due (CIVIL CODE, Arts.
NOTE: “Payment” is a technical term in law used
1262-1269);
specifically to refer to the performance of an
3. By the condonation or Remission of the debt
obligation. Not all delivery of a sum of money is
(CIVIL CODE, Arts. 1270-1274);
considered “payment” in law.
4. By the confusion or Merger of the rights of the
creditor and debtor (CIVIL CODE, Arts. 1275-
1277); AMOUNT CREDITED TO THE ACCOUNT
5. By Compensation (CIVIL CODE, Arts. 1278- OF THE PAYEE EXTINGUISHES A
1290); CONTRACTUAL OBLIGATION
6. By Novation (CIVIL CODE, Arts. 1291-1304); As the transaction is for the establishment of a
7. Fulfillment of a resolutory condition; telegraphic or cable transfer, the agreement to remit
8. Rescission; creates a contractual obligation and has been termed
9. Annulment; a purchase and sale. The purchaser of a telegraphic
10. Prescription (CIVIL CODE, Art. 1231, par. 2); transfer upon making payment completes the
transaction insofar as he is concerned, though insofar
NOTE: Enumeration under Art. 1231 is NOT as the remitting bank is concerned the contract is
exclusive (JURADO, Obligations and Contracts, executory until the credit is established. Thus, once
supra at 230). the amount represented by the telegraphic transfer
order is credited to the account of the payee or
OTHER FORMS OF EXTINGUISHMENT appears in the name of the payee in the books of the
NOT UNDER ART. 1231: (DWERC-FMI) receiving bank, the ownership of the telegraphic
1. Death of one of the contracting parties in purely transfer order is deemed to have been transmitted to
personal obligations (CIVIL CODE, Art. 1311, the receiving bank. Chinatrust is, thus, deemed to
par. 1; JURADO, Obligations and Contracts, have fully executed the telegraphic transfer
supra at 230); agreement and its obligation to respondent was
extinguished. Hence, respondent could no longer ask 3. Indivisibility
for rescission of the agreement (Chinatrust (Phils.) – payment or performance must be indivisible
Commercial Bank v. Turner, G.R. No. 191458, July 3, (JURADO, Obligations and Contracts, supra at
2017). 247).

BURDEN OF PROVING PAYMENT PRINCIPLE OF

When the existence of a debt is fully established by INTEGRITY/COMPLETENESS OF
the evidence, the settled rule is that the burden of PAYMENT
proving extinguishment by payment devolves upon
A debt to deliver a thing (including money) or to
the debtor who pleads payment or offers such a
render service is not understood to have been paid
defense to the claim of the creditor rather than on the
unless the thing or service has been completely
latter to prove non-payment. The debtor has the
delivered or rendered, as the case may be. Partial or
burden of showing with legal certainty that the
irregular performance will not produce the
obligation has been discharged by payment. Only
extinguishment of an obligation as a general rule.
when the debtor introduces evidence that the
Neither a late partial payment forestalls a long-
obligation has been extinguished does the burden
expired maturity date (Selegna Management & Dev.
shift to the creditor (Cham v. Paita-Moya, A.C. No.
Corp. v. United Coconut Planters Bank, G.R. No.
7494, June 27, 2008).
165662, May 3, 2006).
There is a disputable presumption that money paid by
one to another was due to the latter (RULES OF EXCEPTIONS TO PRINCIPLE OF
COURT, Rule 131, Sec. 3 (f)). INTEGRITY:
1. When the obligation has been substantially
REQUISITES OF PAYMENT: (Pr-PeT- performed in good faith, the obligor may recover
CMES) as though there had been a strict and complete
fulfillment, less damages suffered by the
1. Payor or the person who pays;
obligee (CIVIL CODE, Art. 1234); and
2. Payee or the person to whom payment is made;
3. Thing or object in which payment must consist;
2. When the obligee accepts performance, knowing
4. The Cause thereof;
its incompleteness or irregularity and without
5. Manner, time, and place of payment;
expressing any protest or objection; based on the
6. The imputation of Expenses occasioned by it;
principle of estoppel (CIVIL CODE, Art. 1235).
and
7. The Special parts which may modify the same
NOTE: This provision may be read alongside the
and the effects they generally produce (4
presumptions under Article 1176.
TOLENTINO, supra at 274; DE LEON,
Obligations and Contracts, supra at 298-299).
ELEMENTS OF SUBSTANTIAL
KINDS OF PAYMENT: COMPLIANCE IN GOOD FAITH:
1. Normal 1. The obligor has made substantial performance,
– when the debtor voluntarily performs the which is determinable by the unique
prestation as agreed upon. circumstances of each case.
2. The obligor is in good faith (CIVIL CODE, Art.
1234)
2. Abnormal
– when debtor is forced by means of a judicial
proceeding either to comply with the prestation or INDIVISIBILITY OF PRESTATION
pay indemnity (4 TOLENTINO at 274-275). Creditor cannot be compelled partially to receive the
prestation in which the obligation consists; neither
CHARACTERISTICS OF A VALID may the debtor be required to make partial payments
(CIVIL CODE, Art. 1248).
PAYMENT: (I3)
1. Identity EXCEPTIONS:
– only the prestation agreed upon and no other 1. When the obligation expressly stipulates the
must be complied with contrary (CIVIL CODE, Art. 1248, par. 1);
2. When the obligation is in part liquidated and in
2. Integrity part unliquidated (CIVIL CODE, Art. 1248, par.
– the thing or service must be completely 2);
delivered or rendered 3. When the nature of the obligation is susceptible
to partial fulfilment as when:
 a. There are different prestations which are the debt is considered as the purchase price
subject to different terms or conditions; or (Mamerta vda. De Jayme v. CA, G.R. No. 128669,
b. Both parties know that that obligation cannot October 4, 2002). Novation is not an exception to the
be reasonably expected to be performed at rules on payment because it is a different mode of
one time. extinguishing obligations. Novation does not amount
4. In case of partial compensation. to payment (See CIVIL CODE, Art. 1231).

INDIVISIBILITY V. INTEGRITY DATION IN PAYMENT (DACION EN

There is an obligation to pay P5000. PAGO)
1. Integrity refers to the extinguishment of the Dation in payment, whereby property is alienated to
obligation only upon payment of P5,000 in total. the creditor in satisfaction of a debt in money, shall
It does not however consider if the P5,000 is be governed by the law of sales (CIVIL CODE, Art
delivered in one or 2 installments. 1245).
2. The presumption of law is that any obligation is
deemed indivisible. Thus, in general, all P5,000 Example: If D executed a promissory note in 2021
must be delivered in one instance of payment to promising to pay to C P5,000 within 4 years from the
satisfy both integrity and indivisibility. execution of the note, and in 2024, when the
obligation became demandable, the two entered into
IDENTITY OF PRESTATION an agreement by virtue of which D shall deliver his
“The very same thing or act must be delivered or automobile to C as the equivalent of the performance
done” of the obligation, the effect is the transformation of the
previous contract into a contract of sale with the
1. Real Obligations automobile as the object and the loan of P5,000 as
a. Specific Obligations the purchase price (JURADO, Obligations and
The debtor of a thing cannot compel the Contracts, supra at 246).
creditor to receive a different one, although
the latter may be of the same value as, or REQUISITES OF DACION EN PAGO:
more valuable than that which is due (CIVIL (PDA)
CODE, Art. 1244, par.1) 1. There must be Performance of the prestation in
b. Generic Obligations lieu of payment (animo solvendi) which may
When the obligation consists in the delivery consist in the delivery of a corporeal thing or a
of an indeterminate or generic thing, whose real right or a credit against a third person;
quality and circumstances have not been 2. There must be some Difference between the
stated, the creditor cannot demand a thing of prestation due and that which is given in
superior quality. Neither can the debtor substitution (aliud pro alio); and
deliver a thing of inferior quality (CIVIL 3. There must be an Agreement between the
CODE, Art. 1246). creditor and debtor that the obligation is
immediately extinguished by reason of the
2. Personal Obligations performance of a prestation different from that
In obligations to do or not to do, an act or due (Aquintey v. Tibong, G.R. No. 166704,
forbearance cannot be substituted by another act December 20, 2006).
or forbearance against the obligee's will (CIVIL
CODE, Art. 1244, par. 2) DATION IS NOT A SALE
The undertaking really partakes in one sense of the
EXCEPTIONS TO THE RULE ON nature of sale, that is, the creditor is really buying the
IDENTITY OF PAYMENTS: thing or property of the debtor, payment for which is
1. In case of dacion en pago, where a property is to be charged against the debtor’s debt. As such, the
alienated to the creditor in satisfaction of a debt vendor in good faith shall be responsible, for the
in money (CIVIL CODE, Art. 1245). existence and legality of the credit at the time of the
2. In case of Facultative obligations, where only one sale but not for the solvency of the debtor, in specified
thing is due but the debtor has reserved the right circumstances (Lo v. KJS Eco-Formwork System
to substitute it with another (CIVIL CODE, Art. Phil., G.R. No. 149420, October 8, 2003).
1206).
NOTE: Dation in payment is NOT a sale (only
NOTE: In its modern concept, what actually takes partakes of the “nature of sale”) as it is a special mode
place in dacion en pago is an objective novation of of payment.
the obligation where the thing offered as an accepted
equivalent of the performance of an obligation is
considered as the object of the contract of sale, while
 SALE V. DACION EN PAGO 2. 25-centavo coin or less:
In amounts not exceeding P100.00 (Circular 537,
SALE DACION EN PAGO
Series of 2006).
As to Existence of Debt
NOTE: Notes of the Bangko Sentral, regardless of
There is no pre-existing There is pre-existing denomination, are legal tender up to whatever
credit. credit amount (See R.A. No. 7653, as amended, Sec. 52).

As to Effect INSTRUMENTS OF CREDIT ARE NOT

MONEY
Obligations are created Obligations are
1. The buyer has to extinguished Delivery of promissory notes payable to order or bills
pay the price 1. The “buyer” (creditor) of exchange or other mercantile documents shall not
2. The seller has to does not undertake produce the effect of payment (CIVIL CODE, Art.
deliver the object any obligation 1249, par. 2).
2. The “seller” (debtor)
delivers payment. Checks representing demand deposits do not have
legal tender power and their acceptance in the
payment of public and private debts is at the creditor’s
PAYMENT OF MONETARY option (R.A. No. 7653, as amended, Sec. 60).
OBLIGATIONS
The payment of debts in money shall be made in the EFFECT OF DELIVERY OF CREDIT
currency stipulated, and if it is not possible to deliver INSTRUMENTS
such currency, then in the currency which is legal In the meantime, the action derived from the original
tender in the Philippines (CIVIL CODE, Art. 1249, par. obligation shall be held in the abeyance (CIVIL
2). CODE, Art. 1249, par. 2).

All monetary obligations shall be settled in the Illustration: D owes C P1M due on January 1, 2021.
Philippine currency which is legal tender in the On demand, D writes a check in the amount of P1M
Philippines. However, the parties may agree that the dated February 1, 2021, delivering it on January 1,
obligation or transaction shall be settled in any other 2021. C accepted the check. Until February 1, 2021,
currency at the time of payment (R.A. No. 8183, Sec. C cannot file an action on the ground that D is in delay
1). because action on the debt was held in abeyance by
the delivery and acceptance of the check dated
There is no longer any legal impediment to having February 1, 2021.
obligations or transactions paid in a foreign currency
as long as the parties agree to such arrangement WHEN DELIVERY OF CREDIT
(DBP. v. CA, G.R. No. 138703, June 30, 2006).
INSTRUMENTS DEEMED PAYMENT OF
NOTE: Money is a generic object. An obligation to MONEY
deliver P100 can be paid by delivering any validly 1. When they have been cashed or credited
circulating Philippine legal tender with total face value (collected)
of P100 such as one 100-peso bill, or 2 50-peso bills, a. Instruments executed by third persons and
or 10 10-peso coins. delivered by the debtor to the creditor.
b. Note executed by the debtor himself and
LEGAL TENDER delivered by the debtor to the creditor (4
All notes and coins issued by the BSP are fully TOLENTINO, supra at 301).
guaranteed by the Republic and shall be legal tender
in the Philippines for all debts, both public and private 2. When through the fault of the creditor
(R.A. No. 7653, as amended, Sec. 52). they have been impaired
Credit Instruments are impaired when they are
COINS CONSIDERED AS LEGAL validly discharged by some act of the creditor.
TENDER
Example: By current banking practice, a check
Maximum amount of coins to be considered as legal
becomes stale after more than six (6) months. In
tender:
fact a check long overdue for more than two and
1. 1-Peso, 5-Peso and 10-Peso coins: one-half years is considered stale (Pacheco v.
In amounts not exceeding P1,000.00; and CA, G.R. No. 1266270, December 2, 1999). Stale
check is valueless and, therefore, should not be
paid (International Corporate Bank v. Spouses
 Gueco, G.R. No. 141968, February 12, 2001). WHO MAY MAKE PAYMENT
The payee may request the drawer to issue a
new and current check in his favor to replace the
stale check or, if the drawer refuses and there
WHO MAY PAY THE OBLIGATION
has been no prescription, the payee can pursue The following may pay or perform the obligation:
a legal action to collect on the obligation of the 1. The debtor himself or his legal representative;
drawer. and
2. Any third person (JURADO, Obligations and
EFFECT OF EXTRAORDINARY Contracts, supra at 233; CIVIL CODE, Arts.
1236-1238).
INFLATION OR DEFLATION
In case an extraordinary inflation or deflation of the PAYMENT MADE BY A THIRD PERSON
currency stipulated should supervene, the value of
the currency at the time of the establishment of the
WHO IS AN INTERESTED PARTY
obligation shall be the basis of payment, unless there One who has an interest in the extinguishment of the
is an agreement to the contrary (CIVIL CODE, Art. obligation, such as:
1250) 1. Co-debtors;
2. Sureties;
INFLATION OR DEFLATION 3. Guarantors; and
4. Owners of mortgages property (4 PARAS, supra
There is inflation when there is an increase in the at 352).
volume of money and credit relative to available
goods resulting in a substantial and continuing rise in NOTE: Even without the knowledge of the debtor, a
the general price level (Huibonhoa v. CA, G.R. No. person interested in the fulfillment of the obligation
95897, December 14, 1999). can pay (CIVIL CODE, Art. 1302, par. 3).
Deflation is the reduction in volume and circulation of NOTE: The creditor cannot refuse valid tender of
the available money or credit, resulting in a decline of payment from the abovementioned individuals
the general price level; it is the opposite of inflation (Monte de Piedad v. Rodrigo, G.R. No. L-42928,
(DE LEON, Obligations and Contracts, supra at 338). August 18, 1936).

REQUISITES OF EXTRAORDINARY EFFECTS OF PAYMENT BY INTERESTED

FLUCTUATION: (DCE) THIRD PERSON:
1. There is an official Declaration of extraordinary 1. The obligation is extinguished (JURADO,
inflation or deflation from the Bangko Sentral ng Obligations and Contracts, supra at 233);
Pilipinas (BSP); 2. The debtor is to fully reimburse the third person
2. The obligation is Contractual in nature; and who is an interested party; and
3. The parties Expressly agreed to consider the 3. The third person interested is subrogated to the
effects of the extraordinary inflation or deflation rights of the creditor (4 PARAS, supra at 353).
(Equitable PCI Bank v. Sheung Ngor, G.R. No.
171545, December 19, 2007).
PAYMENT MADE BY A THIRD PERSON
Even if the price index of the goods and services may WHO IS NOT AN INTERESTED PARTY
have risen during the intervening period (Sangrador BUT WITH DEBTOR’S CONSENT
v. Valderrama, G.R. No. 79552, November 29, 1988), GENERAL RULE: The creditor is not bound to
this increase, without more, cannot be considered as accept payment or performance by a third person
resulting in “extraordinary inflation” as to justify the who has no interest in the fulfillment of the obligation
application of Article 1250 (Telengtan & Sons, Inc. v. (CIVIL CODE, Art. 1236, par. 1).
United States Lines, Inc., G.R. No. 132284, February
28, 2006). EXCEPTION: Unless there is a stipulation to the
contrary (CIVIL CODE, Art. 1236).
There must be a declaration of such extraordinary
inflation or deflation by the Bangko Sentral. Without EFFECTS OF AUTHORIZED PAYMENT
such declaration, the creditors cannot demand an
increase, and debtors a decrease, of what is due to
OF DISINTERESTED THIRD PERSON:
or from them (Ramos v. CA, G.R. No. 119872, July 7, 1. Third person is entitled to full reimbursement.
1997). 2. Third person is entitled to legal subrogation, or
the right to bring actions against the debtor as
mortgagee or against third persons, i.e. third
person steps into the shoes of the creditor (4
PARAS, supra at 360).
PAYMENT MADE BY A THIRD PERSON all other rights which the creditor could have
WHO IS NOT AN INTERESTED PARTY exercised pertaining to the credit either against the
debtor or against third persons, be they guarantors or
AND WITHOUT KNOWLEDGE OR possessors of mortgages subject to stipulation in a
AGAINST THE WILL OF THE DEBTOR conventional subrogation (CIVIL CODE, Art. 1303).
GENERAL RULE: Whoever pays for another may
demand from the debtor what he has paid (CIVIL In subrogation, however, there is no real extinction of
CODE, Art. 1236, par. 2). the obligation, but only a change of creditor (DE
LEON, Obligations and Contracts, supra at 310).
EXCEPTION: If payment was made without the
knowledge or against the will of the debtor. In such REIMBURSEMENT
case, he can only recover insofar as the payment has The third person entitled by reason of payment has
been beneficial to the debtor, also known as merely the bare right to be refunded to the extent
beneficial reimbursement (CIVIL CODE, Art. 1236, provided in the second paragraph of Art. 1236 without
par. 2; 4 PARAS, supra at 353). the right to the guarantees and securities of the
original obligation. In subrogation, however, there is
EFFECT OF UNAUTHORIZED PAYMENT no real extinction of the obligation, but only a change
BY DISINTERESTED THIRD PERSON of creditor (DE LEON, Obligations and Contracts,
1. Third person can only be reimbursed insofar as supra at 310).
payment has been beneficial to the debtor (4
PARAS, supra at 353). PAYMENT MADE BY A THIRD PERSON
WHO DOES NOT INTEND TO BE
If debt or obligation has been previously REIMBURSED BY THE DEBTOR
extinguished TOTALLY then the third person who
pays without knowledge/consent of the debtor (GRATUITOUS PAYMENTS)
would not be able to recover anything from the 1. Presumed to be a donation. Therefore, the
latter (JURADO, Obligations and Contracts, consent of the debtor is necessary, as in the case
supra at 236). of a donee in ordinary donations;
2. Once the consent of the debtor is secured, the
Remedy: Third person may proceed against the rules on ordinary donations will apply;
creditor who was unduly paid, applying the 3. If the consent is not secured, Arts. 1236 and 1237
principle of unjust enrichment (Id. at 236). will apply; and
4. As far as the creditor who has accepted the
If debt or obligation has been previously payment is concerned, the debtor’s consent is
extinguished PARTIALLY then third person who immaterial; the payment is valid in any case
pays would be able to recover only that part of (JURADO, Obligations and Contracts supra at
the amount which he has paid which corresponds 238).
to the part of the obligation not yet extinguished
(beneficial reimbursement (Id. at 236). FREE DISPOSAL OF THING DUE AND
CAPACITY TO ALIENATE REQUIRED
NOTE: From the viewpoint of the debtor, the In obligations to give, payment by one who does not
provision of the law that the third person or payor have the free disposal of the thing due and capacity
“can recover only insofar as the payment has to alienate it is not valid (CIVIL CODE, Art. 1239).
been beneficial to the debtor,” when made
against his express will, and is a defense
personal to the debtor. In order to be subject to
TO WHOM PAYMENT MADE
the said limitation, debtor must oppose payment
before or at the time the same was made (Id. at TO WHOM PAYMENT MUST BE MADE
236). 1. The person in whose favor the obligation has
been constituted;
2. Third person cannot compel the creditor to 2. His successor in interest; or
subrogate him in his rights, such as those arising
from a mortgage, guaranty, or penalty paid NOTE: The debtor who, before having
(CIVIL CODE, Art. 1237). knowledge of the assignment of a credit to a third
person, pays the original creditor, shall be
SUBROGATION released from the obligation (CIVIL CODE, Art.
The person who pays for the debtor is put into the 1626).
shoes of the creditor. The payer acquires not only the
right to be reimbursed for what he has paid but also 3. Any person authorized to receive it (CIVIL CODE,
Art. 1240).
 NOTE: Person authorized to receive payment Payment made to a third person shall also be valid
refers not only to a person authorized by the insofar as it has redounded to the benefit of the
creditor, but also to a person authorized by law to creditor (CIVIL CODE, Art. 1241).
do so (JURADO, Obligations and Contracts
supra at 240). PAYMENT AFTER JUDICIAL ORDER OF
RETENTION
EFFECT OF PAYMENT TO THE WRONG Payment made to the creditor by the debtor after the
PERSON latter has been judicially ordered to retain the debt
When payment is made to the wrong party, the shall not be valid (CIVIL CODE, Art. 1243).
obligation is not extinguished as to the creditor who
is without fault or negligence even if the debtor acted Such payment must be made to the proper officer of
in utmost good faith and by mistake as to the person the court issuing the writ of attachment or
of the creditor or through error induced by fraud of a garnishment in conformity with the provisions of the
third person (Allied Banking Corp. v. Lim Sio Wan, Rules of Court (JURADO, Obligations and Contracts,
G.R. No. 133179, May 27, 2008). supra at 244).

EXCEPTIONS: GARNISHMENT
1. Payment made to a third person but which has The proceeding for the purpose of subjecting a
redounded to the benefit of the creditor (CIVIL debtor’s credit to the payment of his debt to another.
CODE, Art. 1241, par. 2); and It is an attachment by means of which the plaintiff
2. Payment made in good faith to any person in seeks to subject to his claim the property of the
possession of the credit shall release the debtor defendant in the hands of a third person or money
(CIVIL CODE, Art. 1242). owed by such third person or garnishee to the
defendant (Manila Remnant Co., Inc. v. CA, G.R. No.
NOTE: The “possession” referred to in Article 107282, May 16, 1994).
1242 is possession of the credit itself and not
merely of the document or instrument evidencing
the credit. Hence, mere possession of the
OTHER ELEMENTS OF PAYMENT
instrument (unless transferable by delivery) does
not entitle the holder to payment nor does EXPENSES OF PAYMENT
payment release the debtor (DE LEON, Unless it is otherwise stipulated, the extrajudicial
Obligations and Contracts, supra at 317). expenses required by the payment shall be for the
account of the debtor. With regard to judicial costs,
THE DEBTOR IS RELIEVED FROM the Rules of Court shall govern (CIVIL CODE, Art.
PROVING BENEFIT TO THE CREDITOR 1247).
IN CASE OF: REASON: The debtor is the one principally benefitted
1. Subrogation of the payer in the creditor’s rights as he is freed from the obligation by reason of the
after the payment; payment (PINEDA, Obligations and Contracts,
2. Ratification by the creditor of the payment to the (2009), p. 278 [hereinafter PINEDA, Obligations and
third person; or Contracts]).
3. Estoppel on the part of the creditor (CIVIL CODE,
Art. 1241 par. 2). If the debtor changes his domicile in bad faith or after
he has incurred in delay, the additional expenses
NOTE: In such cases, the benefit to the creditor is to shall be borne by him (CIVIL CODE, Art. 1251).
be presumed. Through estoppel, an admission or
representation is rendered conclusive upon the JUDICIAL COSTS
person making it and cannot be denied or disproved
Judicial costs are the statutory amounts allowed to a
as against the person relying thereon (CIVIL CODE,
party to an action for his expenses incurred in the
Art. 1431).
action.
PAYMENT TO INCAPACITATED The costs of an action shall, as a rule, be paid by the
PERSONS losing party (RULES OF COURT, Rule 142, Sec. 1).
Payment to a person who is incapacitated to The court may, however, for special reasons, adjudge
administer his property shall be valid if he has kept that either party shall pay the costs, or that the same
the thing delivered, or insofar as the payment has be divided, as may be equitable.
been beneficial to him.
No costs are allowed against the Government, unless
otherwise provided by law (DE LEON, Obligations
and Contracts, supra at 325).
 Obligations and Contracts, supra at 268).
PLACE OF PAYMENT
1. Place stipulated by the parties; NOTE: Otherwise, there would be no necessity
2. If there is no stipulation and the obligation is to of designating the debts to which payment shall
deliver a determinate thing, payment shall be be applied (Id. at 268).
made at the place wherever the thing might be at
the time the obligation was constituted; or RULES ON APPLICATION OF PAYMENT
3. In any other case, the payment shall be made at 1. The debtor has the first choice; he must indicate
the domicile of the debtor (CIVIL CODE, Art. at the time of making payment, and not
1251). afterwards, which particular debt is being paid. If,
in making use of his right, the debtor applied the
NOTE: The order as above enumerated is payment to a debt, he cannot later claim that it
successive and exclusive as may be gleaned from should be applied to another debt (DE LEON,
the provision itself (DE LEON, Obligations and Obligations and Contracts, supra at 349);
Contracts, supra at 347).
NOTE: The right is available to him only at the
Art. 1251 governs unilateral obligations. Reciprocal time when payment is made. If he does not
obligations are governed by special rules (JURADO, exercise such right, the same is extinguished and
Obligations and Contracts, supra at 267). the application would then be governed by the
provisions of Art. 1254, unless the creditor, in the
APPLICATION OF PAYMENTS meantime, makes the application by giving to the
Designation of the debt to which the payment must debtor, who accepts it, a receipt in which
be applied when the debtor has several obligations of application of the payment is made (JURADO,
the same kind in favor of the same creditor (CIVIL Obligations and Contracts, supra at 271).
CODE, Art. 1252).
2. The right once exercised is irrevocable unless the
NOTE: “Application of payments” is not a “special creditor consents (JURADO, Obligations and
mode of payment” but a set of rules as to how a Contracts, supra at 270);
specific tender of payment shall be applied in cases 3. If the creditor has not also made the application,
where a debtor is indebted under several obligations or if the application is not valid, the debt, which is
to the same creditor. most onerous to the debtor among those due,
shall be deemed to have been satisfied (CIVIL
Example: D borrowed P500 from C on January 1, CODE, Art. 1254, par. 1);
2021. He borrowed another P300 from C on February 4. If the debts due are of the same nature and
1, 2021. These two loans are distinct obligations. burden, the payment shall be applied to all of
Thus, following the general rules, if D pays P300 to C them proportionately (CIVIL CODE, Art. 1254,
on March 1, 2021, the tender of payment must apply par. 2); and
to partially extinguish the first loan and not to totally 5. If neither party has exercised its option and there
extinguish the second loan. is disagreement as to debts to which payment
must be applied, the court will apply the payment
according to the justice and equity of the case,
REQUISITES: (OSDI) taking into consideration all its circumstances
1. There must be only One debtor and only one (Premiere Development Bank v. Central Surety &
creditor Insurance Co., G.R. No. 176246, February 13,
2009).
NOTE: This requisite does not exclude solidary
debts. NOTE: If the debtor does not apply, the creditor may
designate which debt is paid by specifying in the
2. There must be two or more debts of the Same receipt. Thus, the creditor has the right to propose
kind; subject to the express or tacit approval of the debtor
3. All the debts must be Due; and (JURADO, Obligations and Contracts, supra at 271).

EXCEPTIONS: Limitations:
a. When there is a stipulation to the contrary 1. Creditor cannot be compelled to accept partial
b. The application of payment is made by the payments (CIVIL CODE, Art. 1248, par. 1);
party for whose benefit the term or period has 2. Generally, application of payment should be on
been constituted (CIVIL CODE, Art. 1196). the interest first (CIVIL CODE, Art. 1253);
3. Debtor cannot apply payment to a debt that is not
4. Amount paid by the debtor is Insufficient to cover yet liquidated (CIVIL CODE, Art. 1248, par. 2);
the total amount of all the debts (JURADO,
4. Debtor cannot choose a debt with a period for the WHICH IS MORE ONEROUS:
benefit the creditor when the period has not yet 1. Oldest debts are more onerous than more recent
arrived (CIVIL CODE, Art. 1252); ones;
5. When there is an agreement as to the debts 2. Interest bearing debts are more onerous than
which should be paid first, debtor cannot vary the those which do not, even if the latter were
agreement (CIVIL CODE, Art. 1252). incurred at an earlier date;
3. Between interest bearing debts, the debt with a
INTEREST EARNED PAID AHEAD OF higher rate of interest is more onerous;
PRINCIPAL 4. A secured debt is more onerous than that which
If the debt produces interest, payment of the principal is not;
shall not be deemed to have been made until the 5. A debt in which the debtor is principally bound is
interests have been covered (CIVIL CODE, Art. more onerous than that which he is merely a
1253). guarantor or surety;
6. A debt in which he is solidarily bound is more
Art. 1253 applies only in the absence of a verbal or onerous than that which he is only a sole debtor;
written agreement to the contrary; in other words, it is 7. Within a solidary obligation, the share which
merely directory, and not mandatory. It means that corresponds to a solidary debtor would be most
the benefits of Art. 1253 may be waived by way of onerous;
stipulation (Baltazar v. Lingayen Gulf Elec. Power 8. An obligation for indemnity is more onerous than
Co., G.R. No. L-16236, June 30, 1965). that which is by way of penalty; or
9. Liquidated debts are more onerous than
NOTE: The rule under Article 1253 that payments unliquidated ones (JURADO, Obligations and
shall first be applied to the interest and not to the Contracts, supra at 273-274).
principal shall govern if two facts exist: (1) the debt
produces interest (e.g., the payment of interest is NOTE: No hard and fast rule, however, can be put up
expressly stipulated) and (2) the principal remains (4 PARAS, supra at 415).
unpaid. The exception is a situation covered under
Article 1176, i.e., when the creditor waives payment REMEDY IF ONEROUSNESS NOT
of the interest despite the presence of (1) and (2) CLEARLY DETERMINABLE
above. In such case, the payments shall obviously be When it is fairly impossible to determine which of the
credited to the principal (Marquez v. Elisan Credit debts due is the most onerous or burdensome to the
Corp. G.R. No. 194642, April 6, 2015). debtor, or when the debts due are of the same nature
and burden, payment shall be applied proportionately
LEGAL APPLICATION OF PAYMENT (JURADO, Obligations and Contracts, supra at 274).
The debt which is most onerous to the debtor, among
those due, shall be deemed to have been satisfied Illustration: Applying both rules, should a debtor
(CIVIL CODE, Art. 1254). have two debts of the same nature and burden
amounting to P100 and P200 and he pays only P100,
THE RULE APPLIES: the same shall not be applied proportionately as the
1. When the payment cannot be applied in creditor cannot be compelled to accept partial
accordance with the preceding rules; or payment. Consequently, his payment shall be fully
2. If the application cannot be inferred from the applied to the debt amounting to P100.
circumstances (JURADO, Obligations and
Contracts, supra at 272). SPECIAL FORMS OF PAYMENT
There are three special forms of payment under the
REASON FOR RULE ON THE MOST CIVIL CODE, namely:
ONEROUS DEBT IN APPLICATION OF 1. Dation in payment (CIVIL CODE, Art. 1245);
2. Payment by cession (CIVIL CODE, Art. 1255);
PAYMENTS 3. Tender of payment and consignation (CIVIL
In making the application of payments, the law CODE, Arts. 1256-1261).
considers particularly the interest of the debtor. It is
assumed that if the debtor had chosen the debt to be PAYMENT BY CESSION
paid, he would have relieved himself first of the most
burdensome debt. It is the process by which a debtor transfers all the
properties not subject to execution in favor of his
creditors so that the latter may sell them, and thus
apply the proceeds to their credits (4 PARAS citing
Manresa and Castan, supra at 417).
The debtor may cede or assign his property to his
DATION IN PAYMENT BY
creditors in payment of his debts. This cession,
PAYMENT CESSION
unless there is stipulation to the contrary, shall only
release the debtor from responsibility for the net Debtor is not Debtor must be partially
proceeds of the thing assigned. The agreements necessarily in state of or relatively insolvent.
which, on the effect of the cession, are made between financial difficulty.
the debtor and his creditors shall be governed by
special laws (CIVIL CODE, Art. 1255). As to Object

Requisites: (PMIAA) Thing delivered is Universality of property

1. Plurality of debts; considered as of debtor is what is
2. More than one creditor; equivalent of ceded.
3. Partial or relative Insolvency of the debtor performance.
4. Abandonment of all debtor’s property not exempt
from execution (unless exemption is validly As to Effect
waived by debtor) in favor of creditors; and
5. Acceptance of the cession by the creditors Extinguishes obligation Merely releases debtor
(JURADO, Obligations and Contracts, supra at to the extent of the for net proceeds of things
275). value of the thing ceded or assigned,
delivered as agreed unless there is contrary
upon, or as may be intention.
REMEDY IN CASE CREDITORS REFUSE proved, unless the
CESSION silence of the parties
In case the creditors do not accept the cession or signifies that they
assignment, a similar result may be obtained by consider the thing as
proceeding in accordance with the Financial the equivalent of the
Rehabilitation and Insolvency Act (FRIA) (R.A. No. performance of the
10142). obligation.

NOTE: Under the FRIA, all of the assets of an As to the Extent of Properties Involved
insolvent debtor are pooled and then sold for the
benefit of the creditors in general. Does not involve all Involves all the
properties of debtor. properties of the debtor.
EFFECT OF ASSIGNMENT IN CESSION As to the Effect to the Creditor
Unless there is a stipulation to the contrary, the
assignment does not make the creditors the owners Creditor becomes Creditor does not
of the property of the debtor and the debtor is owner of property of become the owner.
released from his obligation only up to the net debtor. Possession is only
proceeds of the sale of the property assigned (CIVIL transmitted.
CODE, Art. 1255).
(JURADO, Obligations and Contracts, supra at 275-
276).
NOTE: Cession only authorizes the creditors to sell
the properties ceded for their benefit in a public sale.
It is not a transfer of ownership to their name. If the TENDER OF PAYMENT
property is transferred to them, it is dation, not Consists in the manifestation made by the debtor to
cession (JURADO, Obligations and Contracts, supra the creditor of his decision to comply immediately with
at 275). his obligation (Id. at 277).

DATION IN PAYMENT V. PAYMENT BY Tender of payment, even if valid, does not by itself
produce legal payment, unless it is completed by
CESSION consignation (Phil. National Bank v. Relativo, G.R.
DATION IN PAYMENT BY No. L-5298, October 29, 1952).
PAYMENT CESSION
Requisites of a Valid Tender of Payment
As to Number of Parties 1. Tender of payment must comply with the rules on
payment (CIVIL CODE, Arts. 1256-1258).
One creditor. Plurality of creditors. 2. It must be unconditional and for the whole
amount.
As to Financial Condition of Parties
3. It must be actually made (DE LEON, Obligations
and Contracts, supra at 362-363).
 TWIN ACTS TO PRODUCE EFFECT OF
CONSIGNATION PAYMENT
It is the act of depositing the thing due with the court Both tender of payment and consignation must be
or judicial authorities whenever the creditor cannot validly done in order to effect the extinguishment of
accept or refuses to accept payment and it generally an obligation. Substantial compliance is not enough
requires a prior tender of payment (PINEDA, for that would render only a directory construction of
Obligations and Contracts, supra at 266; Insular Life the law (DE LEON, Obligations and Contracts, supra
Assurance Company, Ltd. v. Toyota Bel-Air, Inc., at 360).
G.R. No. 137884, March 28, 2008).
INSTANCES WHERE CONSIGNATION
Requisites of Consignation (CIVIL CODE, Arts.
1256-1258)
SHALL PRODUCE THE EFFECTS OF
The requisites of consignation are the following: (DT- PAYMENT WITHOUT PRIOR TENDER OF
NDN) PAYMENT: (AIR-CL)
1. A Debt is due; 1. Creditor is Absent or unknown, or does not
2. The creditor to whom Tender of payment was appear at the place of payment.
made refused without just cause to accept the 2. Creditor is Incapacitated to receive the payment
payment, or the creditor was absent, unknown or at the time it is due.
incapacitated, or several persons claimed the 3. When without just cause, the creditor Refuses to
same right to collect, or the title of the obligation give a receipt (tender was actually made)
was lost; 4. When two or more persons Claim the same right
3. The person interested in the performance of the to collect (as in the case of interpleader).
obligation was given Notice before consignation 5. When the title of the obligation has been Lost
was made [Prior or First Notice]; (CIVIL CODE, Art. 1256, par. 2).
4. The amount was placed at the Disposal of the
court; and PREPARATORY ACTS FOR
5. The person interested in the performance of the
obligation was given Notice after the
CONSIGNATION
consignation was made [Final Notice] (Dalton v. 1. First or Prior notice of intent to consign the thing
FGR Realty and Development Corporation, G.R. due.
No. 172577, January 19, 2011). 2. The rules on payment must be complied with
(integrity, indivisibility, identity, etc.) (CIVIL
TENDER OF PAYMENT CODE, Art. 1257).
V. CONSIGNATION
EFFECT IF NOTICE OF CONSIGNATION
TENDER OF CONSIGNATION NOT MADE
PAYMENT
In the absence of prior notice to the persons
As to Description interested in the fulfillment of the obligation (such as
guarantors, mortgagees, solidary debtors, solidary
Manifestation of the Deposit of the object of creditors), the consignation, as payment, shall be
debtor to the creditor of the obligation in a void (Valdellon v. Tengco, G.R. No. L-52326,
his decision to comply competent court in February 23, 1986).
immediately with his accordance with the rules "All interested parties are to be notified of the
obligation. prescribed by law, after consignation. Compliance with this requisite is
refusal or inability of the mandatory."
creditor to accept the
tender of payment. In Valdellon v. Tengco, the Court held that: Under Art.
1257 of our CIVIL CODE, in order that consignation
As to the Act Involved of the thing due may release the obligor, it must first
be announced to the persons interested in the
Preparatory act. Principal act. fulfillment of the obligation. The consignation shall be
ineffectual if it is not made strictly in consonance with
As to Character
the provisions which regulate payment. In said Article
Extrajudicial in Judicial in character. 1258, it is further stated that the consignation having
character. been made, the interested party shall also be notified
thereof (Dalton v. FGR Realty and Development
(JURADO, Obligations and Contracts, supra at 277- Corporation, G.R. No. 172577, January 19, 2011).
278).
Tender of payment and notice of consignation may
be done in the same act, e.g., sending a letter that
should the creditor fail to accept the payment Properties, Inc., v. CA, G.R. No. 111238, January 25,
tendered, the debtor would consign the amount in 1995).
court (Ramos v. Sarao, G.R. No. 149756, February
11, 2005). NOTE: Consignation is not required.

CONSIGNATION WITH PROPER EFFECTS OF WITHDRAWAL OF THE

JUDICIAL AUTHORITY OBJECT/AMOUNT DEPOSITED:
Consignation shall be made by depositing the things 1. Before creditor has accepted consignation or
due at the disposal of judicial authority, before whom before a judicial declaration of consignation:
the tender of payment shall be proved, in a proper a. Obligation remains in force.
case, and the announcement of the consignation in b. Withdrawal by the debtor at this stage is a
other cases (CIVIL CODE, Art. 1258). matter of right because he still owns the thing
(CIVIL CODE, Article 1260, par. 2).
Consignation, by depositing the thing or sum due with
the proper judicial authority (i.e., court), is necessary Q: Should the debtor opt not to withdraw the thing
to effect payment. It cannot be elsewhere (e.g., bank) at this stage, can another creditor attach the
unless otherwise prescribed by special law (e.g., P.D. same property since the debtor still owns the
No. 25, re rental). thing?

FINAL NOTICE A: No. Property deposited with court is exempt

The consignation having been made, the interested from attachment and not subject to execution; it
parties shall also be notified thereof (CIVIL CODE, is said to be in custodia legis and cannot be
Art. 1258). withdrawn without an express order from the
court (DE LEON, Obligations and Contracts,
NOTE: There is completed consignation only upon supra at 370).
notice. However, the effect of payment retroacts to
the time the thing due is placed in the disposal of the 2. With consent of the creditor:
a. Creditor loses every preference which he
court (4 TOLENTINO, supra at 331-332).
may have over the thing;
b. Solidary co-debtors, guarantors and sureties
LIABILITY OF CREDITOR FOR are released;
EXPENSES OF CONSIGNATION. c. Solidary debtors are released only from their
The expenses of consignation, when properly made, solidary liability but not from their shares of
shall be charged against the creditor (CIVIL CODE, their obligation; and
Art. 1259). d. The obligation is revived, but without
prejudice to other interested parties (CIVIL
NOTE: The expenses are chargeable to the debtor if CODE, Art. 1261).
the consignation is not properly made (DE LEON,
Obligations and Contracts, supra at 371). NOTE: Withdrawal by the debtor at this stage is
a matter of privilege (4 PARAS, supra at 434).
EFFECTS OF CONSIGNATION:
1. If the creditor accepts the thing or amount NOTE: To have the effect of payment, the law
requires the twin acts of tender of payment and
deposited without contesting the validity or
consignation. Tender of payment without
efficacy of the consignation, the obligation is
consignation only frees the debtor from the
cancelled/extinguished (CIVIL CODE, Art. 1261).
obligation to pay interest on the outstanding
2. If the creditor contests the validity of the
consignation or if the creditor is not interested or amount from the time the unjustified refusal takes
unknown or is absent, the result is litigation. If place (Go Cinco v. CA, G.R. No. 151903, October
9, 2009).
during the trial, the plaintiff-debtor is able to
establish that all the requisites of consignation
have been complied with, the obligation is
extinguished (JURADO, Obligations and
Contracts, supra at 287). LOSS OF THE THING DUE
EXERCISE OF RIGHT OF REPURCHASE
In case of exercise of right of repurchase by tender of
LOSS OF THE THING DUE
check, such tender is valid because it is an exercise
of a right and not made as a mode of payment of an It is understood that the thing is lost when it perishes,
obligation. Article 1249 is not applicable (Adelfa or goes out of commerce or disappears in such a way
that its existence is unknown or it cannot be EXCEPTIONS:
recovered (CIVIL CODE, Art. 1189, par. 2). 1. Limited Generic Thing
– When there is a limitation of the generic object
EFFECT OF LOSS IN DETERMINATE to a particular existing mass or a particular group
OBLIGATION TO GIVE of things, the obligation is extinguished by the
GENERAL RULE: Loss of a determinate thing loss of the particular mass or group or limited
through fortuitous event shall extinguish the quantity from which the prestation has to be
obligation (CIVIL CODE, Art. 1262). taken, or by the impossibility of getting from it the
things for prestation (4 TOLENTINO, supra at
REQUISITES: (DFD) 340-341).
1. The thing which is lost must be Determinate;
2. The thing is lost without any Fault of the debtor; Example: Cattle or horses of a certain ranch or
and the sugar in a certain warehouse (JURADO,
3. The thing is lost before the debtor has incurred in Obligations and Contracts, supra at 290). If all are
Delay (JURADO, Obligations and Contracts, lost, the obligation is extinguished.
supra at 288).
2. Case of the Genus “goes out of
EXCEPTIONS: commerce”
1. When the law so provides; – The obligation to deliver that generic object is
2. When the stipulation so provides; extinguished.
3. When the nature of the obligation requires an
assumption of risk; Example: Before the delivery of truckloads of
4. Loss of the thing occurs after the debtor incurred tobacco as an obligation, a legislation is passed
in delay (CIVIL CODE, Art. 1262); prohibiting selling of tobacco. Obligation to
5. Loss of the thing is partly due to the fault of the supply or deliver such tobacco is thus
debtor (Limpangco V. Yangco Steamship, G.R. extinguished.
No. L-10283, July 25, 1916);
6. When the debtor promised to deliver the same EFFECT OF PARTIAL LOSS
thing to two persons who do not have the same There is partial loss when only a portion of the thing
interest (CIVIL CODE, Art. 1165, par. 3); is lost or destroyed or when it suffers depreciation or
7. When the obligation to deliver arises from a deterioration. Partial loss is the equivalent of difficulty
criminal offense (CIVIL CODE, Art. 1268); and of performance in obligations to do (See CIVIL
8. When the obligation is generic (CIVIL CODE, Art. CODE, Art. 1267) (DE LEON, Obligations and
1263). Contracts, supra at 345).

If the loss is through theft, the debtor is considered GENERAL RULE: Partial loss does not extinguish
negligent having placed the thing within the reach of the obligation (CIVIL CODE, Art. 1264).
thieves and not in a secure and safe place. Hence,
the debtor will be liable for damages. In theft, taking EXCEPTION: When the partial loss or destruction of
is accomplished without the use of violence or force the thing is of such importance that would be
(4 TOLENTINO, supra at 337). tantamount to a complete loss or destruction
(JURADO, Obligations and Contracts, supra at 291).
LOSS OF GENERIC THINGS
The obligation is generic if the object thereof is NOTE: In case of partial loss, the court is given the
designated merely by its class or genus without any discretion, in case of disagreement between the
particular designation or physical segregation from all parties, to determine whether under the
others of the same class (JURADO, Obligations and circumstances it is so important in relation to the
Contracts, supra at 290). whole as to extinguish the obligation. In other words,
the court will decide whether the partial loss is such
GENERAL RULE: Loss of generic thing does not as to be equivalent to a complete or total loss (DE
extinguish obligation (CIVIL CODE, Art. 1263). Thus, LEON, Obligations and Contracts, supra at 345).
the debtor can still be compelled to deliver a thing
which must be neither of superior nor inferior quality RULE IF THE THING IS IN DEBTOR’S
(CIVIL CODE, Art. 1246). POSSESSION
GENERAL RULE: If the thing is lost while in the
REASON: Based upon the principle that the genus of possession of the debtor, it shall be presumed that
a thing can never perish (genus nunquam perit) the loss was due to his fault, unless there is proof to
(JURADO, Obligations and Contracts, supra at 290). the contrary and without prejudice to the provisions of
Art. 1165 of the CIVIL CODE (CIVIL CODE, Art. contemplated by the parties; otherwise, the same
1265). may extinguish the obligation under Art. 1267. In the
latter case, the fact that the prestation later becomes
EXCEPTION: No such presumption in case of possible does not revive the obligation (Id. at 346).
earthquake, flood, storm or other natural calamity.
DOCTRINE OF UNFORESEEN EVENTS/
EFFECT OF IMPOSSIBILITY OF DOCTRINE OF FRUSTRATION OF
PERFORMANCE IN OBLIGATION TO DO ENTERPRISE/ THEORY OF
When the obligation becomes legally or physically IMPREVISIBILITY
impossible without the fault of the debtor, obligor is When the service has become so difficult as to be
released from the obligation (CIVIL CODE, Art. manifestly beyond the contemplation of the parties,
1266). the court should be authorized to release the obligor
in whole or in part (CIVIL CODE, Art. 1267).
WHEN IMPOSSIBILITY SHOULD OCCUR
TO HAVE EFFECT OF EXTINGUISHMENT The parties stipulate in the light of certain prevailing
The impossibility must have occurred after the conditions and once these conditions cease to exist,
constitution of the obligation in order that it may be the contract also ceases to exist. Considering
extinguished. If impossibility was present before the practical needs and the demands of equity and good
obligation was constituted, there would be an faith, the disappearance of the basis of the contract
obligation which would be ineffective from its gives rise to a right to relief in favor of the party
inception (CIVIL CODE, Art. 1348). prejudiced (Naga Telephone Co., et al. v. CA, G.R.
No. 107112, February 24, 1994).
NATURAL IMPOSSIBILITY V.
NOTE: Article 1267 is similar to the common law
IMPOSSIBILITY IN FACT concept of rebus sic stantibus (Things thus standing).
NATURAL IMPOSSIBILITY IN
IMPOSSIBILITY FACT INTENTION OF PARTIES
As to the Thing
DETERMINATIVE
The intention of the parties should govern and if it
Must consist in the In the absence of appears that the service turns out to be so difficult as
nature of the thing to be inherent impossibility in to have been beyond their contemplation, it would be
done and not the the nature of the thing doing violence to the intention to hold the obligor still
inability of the party to stipulated to be responsible (JURADO, Obligations and Contracts,
do so. performed, which is only supra at 295-296).
improbable or out of the
power of the obligor. “SERVICE” REFERS TO A PRESTATION
The law speaks of "service." This term should be
As to the Effect understood as referring to the performance of an
Renders the contract Does not render the obligation or a prestation (Sps. Poon v. Prime savings
void. contract void. Bank, G.R. No. 183794, June 13, 2016).

(Jose De Leon v. Asuncion Soriano, G.R. No. L-2724, IS ARTICLE 1267 LIMITED TO
August 24, 1950)
PERSONAL OBLIGATIONS?
Natural impossibility is reckoned from the time of Yes. Article 1267 is limited only to personal
constitution of the obligation. Thus, the obligation obligations. It speaks of a “service,”- a personal
remains void even if the prestation subsequently obligation. Thus, real obligations are not within its
becomes possible. scope (4 PARAS, supra at 439). Justice Jurado
however is of the opinion that the word “service”
In case of subsequent partial impossibility, the rule in should be understood as referring to the
Art.1264 of the CIVIL CODE may be applied (4 “performance” of the obligation (JURADO,
TOLENTINO, supra at 345). Obligations and Contracts, supra at 296).

Temporary impossibility does not extinguish the It is not a requirement under Art. 1267 that the
obligation but merely delays its fulfillment, unless by contract be for future service with future unusual
its nature or by the will of the parties it has to be change (Naga Telephone Co., et al. v. CA, G.R. No.
performed at a determinate time. This presupposes 107112, February 24, 1994).
that the duration of impossibility has been
PRINCIPLE OF SUBJECTIVE NOTE: When the offer is made by the debtor and the
IMPOSSIBILITY creditor refuses to accept it without justification, he
may choose either of two courses:
When there is no physical or legal loss but the object 1. He may make a consignation of the thing and
of the obligation belongs to another, the performance thereby completely relieve himself of further
by the debtor of the obligation undoubtedly becomes liability, or
impossible. Failure of performance is imputable to the 2. He may keep the thing in his possession, in which
debtor. Thus, the debtor must indemnify the creditor case, the obligation shall still subsist but with this
for the damages suffered by the latter (4 difference — that if the thing is lost through a
TOLENTINO, supra at 336). fortuitous event, Arts. 1262 and 1265, and not
Art. 1268, shall govern.
EFFECT OF LOSS IN RECIPROCAL
OBLIGATIONS It must, of course, be noted that this Article 1268 can
1. First view: Res Perit Domino have no application to those cases where an offer is
If an obligation is extinguished by the loss of the not possible, since such offer by the debtor is an
thing or impossibility of performance through essential requisite (JURADO, Obligations and
fortuitous events, the counter-prestation is also Contracts, supra at 297).
extinguished. The debtor is released from liability
but he cannot demand the prestation which has EFFECT OF EXTINGUISHMENT BY LOSS
been stipulated for his benefit. He who gives OR IMPOSSIBILITY
nothing has no reason to demand (Id. at 337- The obligation having been extinguished by the loss
338). of the thing, the creditor shall have all the rights of
action which the debtor may have against the third
2. Second view: Res Perit Creditori persons by reason of the loss (CIVIL CODE, Art.
The loss or impossibility of performance must be 1269).
due to the fault of the debtor. In this case, the
injured party may ask for rescission under Article NOTE: There is no need for an assignment by the
1191 plus damages. If the loss or impossibility debtor. The rights of action of the debtor are
was due to a fortuitous event, the other party is transferred to the creditor from the moment the
still obliged to give the prestation due to the other obligation is extinguished, by operation of law to
(J.B.L. Reyes). protect the interest of the latter by reason of the loss
(DE LEON, Obligations and Contracts, supra at 399).
NOTE: The better view is Res Perit Domino

RULE IF OBLIGATION ARISES FROM

CRIMINAL OFFENSE CONDONATION OR
GENERAL RULE: Debtor shall not be exempted
from the payment of the price whatever may be the
REMISSION
cause for the loss (CIVIL CODE, Art. 1268).

NOTE: The rule is applicable not only to the persons

who are principally liable, but also to those who are
CONDONATION OR REMISSION OF
subsidiarily liable (JURADO, Obligations and DEBT
Contracts, supra at 297). An act of liberality by virtue of which the obligee,
without receiving any price or equivalent, renounces
EXCEPTION: When the thing having been offered by the enforcement of the obligation, as a result of which
the debtor to the person who should receive it, the it is extinguished in its entirety or in that part or aspect
latter refused without justification to accept it (CIVIL of the same to which the remission refers.
CODE, Art. 1268; JURADO, Obligations and It is the gratuitous abandonment by the creditor of his
Contracts, supra at 297). right; a form of donation (JURADO, Obligations and
Contracts, supra at 298).
NOTE: The offer referred in Article 1268 should not
be confused with consignation; the latter refers only REQUISITES OF REMISSION: (GADCIF)
to the payment of the obligation, the former refers to 1. It must be Gratuitous;
the extinguishment of the obligation through loss by 2. It must be Accepted by the obligor (bilateral act);
fortuitous event (JURADO, Obligations and 3. The obligation must be Demandable;
Contracts, supra at 296-297). 4. Parties must have the Capacity;
5. Not Inofficious (DE LEON, Obligations and
Contracts, supra at 367); and
6. Must comply with the Forms of donation should it The creditor renounces his credit even against the will
be express (CIVIL CODE, Arts. 748 and 749). of the debtor because Article 6 of the CIVIL CODE
provides that “Rights may be waived, unless the
KINDS OF REMISSION OR waiver is contrary to law, public order, public policy,
CONDONATION morals or good customs, or prejudicial to a third
person with a right recognized by law.”
1. As to Form However, since the debtor did not accept the
a. Express – when it is made in accordance remission, the creditor merely waived his right to
with the formalities prescribed by law for demand the obligation. In which case, the debt will
donations. remain outstanding until it prescribes or unless it is
b. Implied – when, although it is not made in extinguished in some other manner. The creditor will
accordance with the formalities prescribed by merely be in mora accipiendi and “suffer” the legal
law for donations, it can be deduced from the consequences of his refusal to receive payment.
acts of the obligee or creditor.
WHEN RENUNCIATION OF ACTION
2. As to Extent
a. Total – when the entire obligation is AGAINST THE DEBTOR IS PRESUMED
extinguished. If the creditor voluntarily delivers the private
b. Partial – when it refers only to the principal document evidencing the credit to the debtor, there is
or to the accessory obligation or to an aspect a presumption that he renounces his right of action
thereof which affects the debtor (as for against the latter for the collection of the said credit
instance solidarity). (CIVIL CODE, Art. 1271). When such private
document is found in possession of the debtor, it shall
3. As to Constitution be presumed that the creditor delivered it voluntarily,
a. Inter Vivos – when it is constituted by unless the contrary is proved (CIVIL CODE, Art.
agreement of the obligee and the obligor 1272).
which shall be effective during their lifetime.
b. Mortis Causa – when it is constituted by last REQUISITES OF IMPLIED
will and testament (JURADO, Obligations CONDONATION OR REMISSION OF
and Contracts, supra at 298-299). DEBT: (DPV)
1. That the document evidencing the credit must
REMISSION IS A FORM OF DONATION have been Delivered by the creditor to the debtor;
Whether express or implied, the extent of remission 2. That the document must be a Private document;
or condonation shall be governed by the rules and
regarding inofficious donation (CIVIL CODE, Art. 3. That the delivery must be Voluntary (CIVIL
1270, par. 2). CODE, Art. 1271; JURADO, Obligations and
Contracts, supra at 307).
It is an essential characteristic of remission that it be
gratuitous -- there is no equivalent received for the When the obligation is joint, and the private document
benefit given because from the moment it exists, the evidencing a debt is found in the possession of one
nature of the act is changed, and becomes some of the debtors, the presumption of remission can refer
other form of extinguishment such as: only to the portion of the debtor who is in the
1. Dation in payment(CIVIL CODE, Art. 1245); possession of the instrument. If the obligation is
2. Cession(CIVIL CODE, Art. 1255); solidary, Arts. 1215, 1219 and 1220 shall apply (DE
3. Novation(CIVIL CODE, Art. 1291); or LEON, Obligations and Contracts, supra at 404).
4. Compromise (CIVIL CODE, Art. 2028).
RULES WHEN ACCESSORY
APPLICATION OF THE RULES ON OBLIGATIONS ARE INVOLVED
DONATION If the remission refers to the principal obligation, all
Condonation or remission is essentially a donation of the accessory obligations are extinguished.
credit to the debtor. It must be subject to the rule on However, if remission refers only to the accessory
donations with respect to acceptance (CIVIL CODE, obligation, the principal obligation continues to
Art. 745 and 746), amount (CIVIL CODE, Art. 750 and subsist (CIVIL CODE, Art. 1273).
752) and revocation (CIVIL CODE, Art. 760, 761, 764
and 765); (4 TOLENTINO, supra at 364).

EFFECT OF LACK OF CONSENT OF

DEBTOR IN REMISSION
 – extinguishment of entire obligation; or

CONFUSION OR 2. If confusion takes place in the person of

a subsidiary creditor or subsidiary debtor
MERGER (e.g. guarantor)
– no extinguishment of principal obligation; only
substitution of creditor or debtor; or
CONFUSION
3. If confusion takes place in one of the joint
It is the merger of the characters of the creditor and debtors – principal obligation is
the debtor in one and the same person by virtue of
which the obligation is extinguished (CIVIL CODE,
extinguished up to the share which
corresponds to him; or
Art. 1275).

Illustration of Confusion/Merger 4. If confusion takes place in one of the

Atoy makes a check payable to bearer, and hands it solidary debtors
to Joey, who hands it to Kaye who finally hands it to – entire obligation is extinguished. However, the
Atoy. Here Atoy owes himself and thus, his obligation debtor in whom confusion took place may claim
is extinguished. reimbursement from co-debtors for the shares
which correspond to them (CIVIL CODE, Art.
If, however, the reason for the confusion ceases, the 1276-1277; JURADO, Obligations and Contracts,
obligation is revived. Thus, should Kaye deliver the supra at 308-309).
note to Atoy in the performance of a void obligation,
Atoy’s obligation is recreated. But the time
intervening between the merger and its revocation is
not to be computed in the determination of the period COMPENSATION
for prescription.

REQUISITES OF MERGER: (MPC)

1. Merger of the characters of the creditor and COMPENSATION
debtor must be in the same person (CIVIL Mode of extinguishing in the concurrent amount of the
CODE, Art. 1275); obligation of those persons who are reciprocally
2. Must take place in the person of either the debtors and creditors of each other (JURADO,
Principal creditor or the principal debtor (CIVIL Obligations and Contracts, supra at 309, citing
CODE, Art.1276); and CASTAN).
3. Whether the merger refers to the entire obligation
or only part thereof, there must be Complete and Illustration:
definite meeting of all qualities of creditor and A owes B the amount of P1,000.00; B owes A the
debtor in the obligation or in the part thereof amount of P700.00; Both debts are due and payable
affected by the merger (JURADO, Obligations today. Here compensation takes place partially, that
and Contracts, supra at 307; Testate Estate of is, to the concurrent amount of P700.00. So, A shall
Mora v. Serra, G.R. No. L-34581, March 31, be liable to B for only P300.00. If the two debts are of
1932; Valmonte v. CA, G.R. No. L-41621, the same amount, there is total compensation (See
February 18, 1990). CIVIL CODE, Art. 1281).

NOTE: The requisite that the merger of rights of The two debts are extinguished without actual
creditor and debtor must be complete and definite transfer of money between the parties (DE LEON,
means that whether the merger refers to the entire Obligations and Contracts, supra at 380).
obligation or only a part thereof, it must be of such a
character that there will be a complete and definite COMPENSATION V. CONFUSION
meeting of all of the qualities of creditor and debtor in
COMPENSATION CONFUSION
the obligation or in the part or aspect thereof which is
affected by the merger (JURADO, Obligations and As to the Number of Persons
Contracts, supra at 307).
Only one person in whom
EFFECTS OF CONFUSION/MERGER: Two persons who, in
the qualities of debtor
their own right, are
1. If confusion takes place in the person of and creditor are merged
creditors and debtors of
either the principal creditor or principal each other
debtor
 COMPENSATION CONFUSION REQUISITES OF COMPENSATION:
(PS-DL-NoNo)
As to the Number of Obligations 1. There must be two (2) Parties, who, in their own
right, are principal creditors and principal debtors
There must be at least There is only one of each other (CIVIL CODE, Art. 1279) except in
two obligations obligation case of a guarantor (CIVIL CODE, Art. 1280);
As to Payment
2. Both debts must consist in Sum of money, or if
There is indirect There is impossibility of the things due are fungibles (consumables), they
payment. payment must be of the same kind and quality (CIVIL
CODE, Art. 1279);
(DE LEON, Obligations and Contracts, supra at 416-
417). GENERAL RULE: Compensation is not possible
in obligations to do because of the difference in
COMPENSATION V. PAYMENT the respective capacities of the obligors (Id. at
317).
COMPENSATION PAYMENT

As to Requisites 3. Both debts must be Due (CIVIL CODE, Art.

1279);
The requisites prescribed by law for compensation
are different from those prescribed by law for EXCEPTION: Voluntary compensation or the
payment. parties may nevertheless agree upon the
compensation of the obligations (CIVIL CODE,
As to How it Takes Effect Art. 1282).

Takes effect by Takes effect by act of the 4. Both debts must be Liquidated and demandable
operation of law parties (CIVIL CODE, Art. 1279);
As to Necessity of Capacity to Give Liquidated Debts – those amount of which may
be determined by a simple arithmetical operation
Capacity to give and to Capacity to give and to
(Id.).
acquire is not acquire is essential
necessary
5. There must be No retention or controversy
As to Divisibility commenced by third persons over either of the
debts and communicated in due time to the
As a rule, law permits As a rule, complete and debtor (CIVIL CODE, Art. 1279); and
partial extinguishment indivisible
of obligation NOTE: Retention consists in the application of
the credit of one of the parties to the satisfaction
(JURADO, Obligations and Contracts, supra at 310). of the claims of third persons while controversy
refers to a case in which a third person claims to
KINDS OF COMPENSATION: be the creditor (Id. at 318).
1. As to Cause
a. Legal – takes effect by operation of law from 6. The compensation must Not be prohibited by law
the moment all of the requisites are present; (CIVIL CODE, Art. 1279).
b. Voluntary – when parties who are mutually
creditors and debtors agree to compensate Legal compensation takes effect by operation of law
their respective obligations, even though all only when all the requisites mentioned in article 1279
of the requisites for compensation may not have concurred (Union Bank of the Philippines v.
be present; Development Bank of the Philippines, G.R. No.
c. Judicial – takes effect by judicial decree; or 191555, January 20, 2014).
d. Facultative – when it can be set up only by
one of the parties. RIGHT OF GUARANTOR TO SET-UP
COMPENSATION
2. As to Effect The guarantor, in case the payment of the debt is
a. Total – debts to be compensated are equal demanded from him, may set up compensation, not
in amount; or only for what the creditor owes him, but also for what
b. Partial – debts to be compensated are not the creditor owes the principal debtor (CIVIL CODE,
equal in amount (Id. at 311). Art. 1280).
NOTE: This article is an exception to the general rule RULE IN CASE OF RESCISSIBLE OR
that only the principal debtor can set up against his VOIDABLE DEBTS
creditor what the latter owes him (DE LEON,
Obligations and Contracts, supra at 394). When one or both debts are rescissible or voidable
obligations may be compensated against each other
before they are judicially rescinded or avoided (CIVIL
TOTAL COMPENSATION CODE, Art. 1284).
– results when the two debts are of the same amount.
If they are of different amounts, compensation is total REASON: Rescissible and voidable obligations are
as regards the smaller debt, and partial only with valid until they are judicially rescinded or avoided.
respect to the larger debt (CIVIL CODE, Art. 1281). Prior to rescission or annulment, the debts may be
compensated against each other (DE LEON,
VOLUNTARY COMPENSATION Obligations and Contracts, supra at 433).
The parties may agree upon the compensation of
debts which are not yet due. EFFECTS OF ASSIGNMENT OF RIGHTS:
1. If with consent of debtor
Example: If the obligation of A is pure, while the – debtor cannot set-up compensation unless he
obligation of B is with a term or period which has not reserved his right to compensation;
yet expired, the general rule is that there can be no
compensation because B’s obligation is not yet due. 2. If with knowledge but without consent of
However, the parties may nevertheless agree upon
debtor
the compensation of the two obligations (JURADO,
– debtor may set-up compensation prior to the
Obligations and Contracts, supra at 319).
assignment but not subsequent ones; or
REQUISITES OF VOLUNTARY OR 3. If without knowledge of the debtor
CONVENTIONAL COMPENSATION: – may set-up compensation of all credits which
1. Each of the parties has the right to dispose of the he may have against the assignor and which may
credit he seeks to compensate; and have become demandable, before he was
2. They agree to the mutual extinguishment of their notified of the assignment (CIVIL CODE, Art.
credits (CKH Industrial & Development Corp. v. 1285).
CA, G.R. No. 111890, May 7, 1997).
DEBTS WHICH CANNOT BE
JUDICIAL COMPENSATION COMPENSATED:
If one of the parties to a suit over an obligation has a 1. Debts arising from contracts of
claim for damages against the other, the former may depositum;
set it off by proving his right to said damages and the A deposit is constituted from the moment a
amount thereof (CIVIL CODE, Art. 1283). person receives a thing belonging to another with
the obligation of safely keeping it and of returning
“Judicial Compensation” is Not Contemplated by the same (CIVIL CODE, Art. 1962).
CIVIL CODE
In reality, what is set off against the other party is a NOTE: Article 1287 uses the word depositum
counterclaim. “A counterclaim must be pleaded to be instead of “deposit” which is used for an ordinary
effectual; whereas, a compensation takes place by bank deposit. A bank deposit is not a depositum.
mere operation of law.’’ Hence, the counterclaim It is really a loan which creates the relationship of
defined by the Rules of Court is not the legal debtor and creditor (DE LEON, Obligations and
compensation contemplated by the Code. This is so, Contracts, supra at 400).
because by its very nature, a set off or counterclaim
can have no effect unless it is pleaded.
2. Debts arising from contracts of
In addition, the claim is not liquidated; consequently, commodatum;
compensation cannot take place. It is converted into Commodatum is a gratuitous contract whereby
a liquidated claim by court decree, in which case one of the parties delivers to another something
compensation shall take effect from the moment the not consumable so that the latter may use the
judgment liquidating the claim has become final same for a certain time and return it (CIVIL
(RULES OF COURT, Rule 6, Sec. 6 ;JURADO, CODE, Art. 1933).
Obligations and Contracts, supra at 319).
3. Claims for support due by gratuitous title;
Support comprises everything that is
indispensable for sustenance, dwelling, clothing,
medical attendance, education and
 transportation, in keeping with the financial EFFECT OF COMPENSATION
capacity of the family” (FC, Art. 194). When all the requisites mentioned in Article 1279 are
present, compensation takes effect by operation of
4. Obligations arising from criminal law, and extinguishes both debts to the concurrent
offenses (CIVIL CODE, Art. 1288); and amount, even though the creditors and debtors are
not aware of the compensation (CIVIL CODE, Art.
5. Certain obligations in favor of 1290).
government (e.g., taxes, fees, duties, and
others of a similar nature (CIVIL CODE, Art. NOTE: As it takes place by mere operation of law,
1286-1287). and without any act of the parties, it is not required
that the parties have full legal capacity (CIVIL CODE,
WHEN COMPENSATION TAKES Art. 37) to give or to receive, as the case may be. On
EFFECT: the other hand, in order that there may be a valid
payment, the parties must have the free disposal of
1. Legal Compensation the thing due and capacity to alienate it (CIVIL
– from the moment all the essential requisites CODE, Art. 1239) and to receive payment (CIVIL
prescribed by law are present (CIVIL CODE, Art. CODE, Arts. 1240-1241), as the case may be (DE
1290); LEON, Obligations and Contracts, supra at 440-441).

2. Voluntary Compensation FACULTATIVE COMPENSATION

– from the moment agreed upon by the parties
(CIVIL CODE, Art. 1282); or Compensation which can be set up only at the option
of the creditor when legal compensation cannot take
place because of want of some legal requisites for the
3. Judicial Compensation benefit of the creditor. The latter can renounce his
– from the moment the judgment becomes final
right to oppose the compensation and he himself can
and executor (CIVIL CODE, Art. 1283); or
set it up. It differs from conventional compensation
because it is unilateral while the latter depends upon
4. Facultative Compensation the agreement of both parties (4 TOLENTINO, supra
– from the moment when legal compensation at 367).
cannot take place (4 TOLENTINO, supra at 367)

COMPENSATION WHERE DEBTS

PAYABLE AT DIFFERENT PLACES NOVATION
Compensation takes place by operation of law, even
though the debts may be payable at different places,
but there shall be an indemnity for expenses of
exchange or transportation to the place of payment NOVATION
(CIVIL CODE, Art. 1286). It is the substitution or change of an obligation by
another, resulting in its extinguishment or
The indemnity contemplated above does not refer to modification, either by changing its object or principal
the difference in the value of the things in their conditions, or by substituting another in place of the
respective places but to the expenses of monetary debtor, or by subrogating a third person in the rights
exchange (in case of money debts) and expenses of of the creditor (CIVIL CODE, Art. 1291).
transportation (in case of things to be delivered).
Once these expenses are liquidated, the debts also
REQUISITES OF NOVATION: (PCASV)
become compensable (DE LEON, Obligations and
Contracts, supra at 436). 1. Previous valid and existing obligation;
2. Capacity of the contracting parties (to the new
contract);
RULES ON APPLICATION OF 3. Animus novandi or intent to novate (especially for
PAYMENTS APPLICABLE TO ORDER OF implied novation and substitution of debtors);
COMPENSATION 4. Substantial difference between the old obligation
If a debtor has various debts which are susceptible of and the new obligation (especially for implied
compensation, he must inform the creditor which of novation), consequently, extinguishment of the
them shall be the object of compensation. In case he obligation; and
fails to do so, then the compensation shall be applied 5. Validity of the new obligation (JURADO,
to the most onerous obligation (CIVIL CODE, Arts. Obligations and Contracts, supra at 326).
1252 & 1254).
There can be no novation unless two distinct and 1300, 1301; DE LEON, Obligations and
successive binding contracts take place, between the Contracts, supra at 408).
same parties with the second designed to replace the
preceding convention. Modifications introduced WAYS OF EFFECTING CONVENTIONAL
before a bargain becomes obligatory can in no sense NOVATION: (EI)
constitute novation in law. A loan application, before
bank approval, cannot be subsequently novated 1. New obligation expressly declares that the old is
because the first requisite, a pre-existing obligation, Extinguished; or
is lacking (Azolla Farms v. CA, G.R. No. 138085, 2. New obligation is on every point Incompatible
November 11, 2004). with the old one (Ajax Marketing & Development
Corp. v. CA, G.R. No. 118585, September 14,
1995).
A CONTRACT “REVIVING” A
PRESCRIBED DEBT NOVATION IS NEVER PRESUMED
A new contract, recognizing and assuming a Novation is never presumed. Unless it is clearly
prescribed debt is a valid novation. The defense of shown either by express agreement of the parties or
prescription of the right to demand payment may be by acts of equivalent import, this defense will never
waived by the debtor. Even after the obligation has be allowed (Ong v. Bogñalbal, G.R. No. 149140,
prescribed, it subsists as a moral obligation (CCC September 12, 2006 citing Aboitiz v. De Silva, G.R.
Insurance Corp. v. Kawasaki Steel Corp., G.R. No. No. 21036, April 5, 1924).
156162, June 22, 2015).
Thus, to effect an objective novation, it is imperative
TWO-FOLD PURPOSE OF NOVATION: that the new obligation expressly declares that the old
1. Original obligation is extinguished; and obligation is thereby extinguished, or that the new
2. A new obligation is created (JURADO, obligation be on every point incompatible with the
Obligations and Contracts, supra at 326). new one. In the same vein, to effect a subjective
novation by a change in the person of the debtor, it is
KINDS OF NOVATION: necessary that the old debtor be released expressly
from the obligation and the third person or new debtor
1. As to its Essence
assumes his place in the relation. There is no
a. Objective/Real – when the object (or cause)
novation without such release as the third person who
or principal conditions of the obligation are
assumed the debtor’s obligation becomes merely a
changed (CIVIL CODE, Art. 1291, par. 1);
co-debtor or surety (Ajax Marketing & Dev’t. Corp. v.
b. Subjective/Personal – substitution of debtor
CA, G.R. No. 118585, September 14, 1995).
or by subrogation (CIVIL CODE, Art. 1291,
par. 2 & 3);
NOTE: “Implicit” Novation does not mean that the
c. Mixed – change in the object or principal
parties did not expressly agree to novate. It means
condition and change in the persons of either
that the parties expressly agreed to a new obligation
creditor and debtor of an existing obligation
which is incompatible with the old obligation such that
(CIVIL CODE, Art. 1291).
even if the parties did not “expressly” state that the
new obligation was intended to novate the old
2. As to its Form/Constitution obligation, novation exists.
a. Express – when it is declared in unequivocal
terms that the old obligation is extinguished
by a new one which substitutes the same. IMPLIED CONSENT BY THE CREDITOR
b. Implied – when the old and new are ALLOWED
incompatible with each other on every point The aforecited article 1205 of the Old Civil Code (now
(JURADO, Obligations and Contracts, supra Art. 1293) does not state that the creditor's consent
at 327). to the substitution of the new debtor for the old be
express, or given at the time of the substitution, and
3. As to Extent/Effect the Supreme Court of Spain, in its judgment of June
a. Total 16, 1908, construing said article, laid down the
b. Partial (JURADO, Obligations and doctrine that "article 1205 of the Old Civil Code does
Contracts, supra at 327). not mean or require that the creditor's consent to the
change of debtors must be given simultaneously with
4. As to its Origin the debtor's consent to the substitution; its evident
a. Legal — that which takes place by operation purpose being to preserve the creditor's full right, it is
of law (CIVIL CODE, Arts. 1300, 1302); or sufficient that the latter's consent be given at any time
b. Conventional — that which takes place by and in any form whatever, while the agreement of the
agreement of the parties (CIVIL CODE, Arts. debtors subsists." The rule that this kind of novation,
like all others, must be express, is not absolute; for
the existence of the consent may well be inferred b. The obligation to pay a sum of money is not
from the acts of the creditor, since volition may as well novated by an instrument that expressly
be expressed by deeds as by words. The creditor's recognizes the old, changes only the terms of
express consent is necessary in order that there may the payment, adds other obligations not
be a novation of a contract by the substitution of incompatible with the old ones or the new
debtors, the impression of the word "express" does contract merely supplements the old contract
not convey to be given an unqualified meaning (Asia (Sps. Reyes v. BPI Family Savings Bank, GR
Banking Corporation v. Elser, G.R. No. 30266, March No. 149841-41, March 31, 2006).
25, 1929). c. The grant of a 45-day credit extension does
not novate the contract as it merely modifies
TEST OF INCOMPATIBILITY the contract by extending the time for
Whether or not the old and new obligations can stand payment (Foundation Specialists, Inc., v.
together, each having its own independent existence. Betonval Ready Concrete, Inc., G.R. No.
If they can stand together, there is no incompatibility 170674, August 24, 2009).
hence, no novation. If they cannot stand together, d. A change in the rate of interest is merely a
there is incompatibility; consequently, there is collateral agreement between the creditor
novation (JURADO, Obligations and Contracts, supra and principal debtor that did not affect the
at 333). surety. The agreement to pay the additional
interest was an additional burden upon the
NOTE: The incompatibility must affect any of the debtor only. It did not in any way affect the
essential elements of the obligation, such as its original contract. Thus, despite the
object, cause or principal conditions thereof; compounding of the interest, the liability of
otherwise, the change is merely modificatory in the surety remains only up to the original
nature and insufficient to extinguish the original uncompounded interest (Garcia, Jr. v. CA,
obligation (Heirs of Servando Franco v. Sps. G.R. No. L-80201, November 20, 1990).
Gonzales, G.R. No. 159709, June 27, 2012).
2. Material deviations or changes.
– Where the original contract is deviated from in
OBJECTIVE NOVATION
material respects so that the object or principal
According to Castan, objective novation is effected condition cannot reasonably be recognized as
by: that originally contracted for, the original contract
1. Changing the cause of the obligation; should be treated as abandoned (DE LEON,
2. Changing the object of the obligation; or Obligations and Contracts, supra at 421).
Changing the principal or essential conditions of the
obligation (CIVIL CODE, Art. 1291, par.1). Examples:
a. Debt restructuring such that the former
EFFECT OF MODIFICATIONS OF principal and accrued interests are
ORIGINAL OBLIGATION established as a new principal amount of
1. Slight modifications and variations debt over which a new interest rate is
– When made with the consent of the parties, applied.
they do not abrogate the entire contract and the b. A contract of mortgage over a parcel of land
rights and obligations of the parties thereto, but to secure a loan is converted into a contract
the original contract continues in force except as of antichresis.
the altered terms and conditions of the obligation
are considered to be the essence of the EFFECTS OF NOVATION UPON
obligation itself (DE LEON, Obligations and ACCESSORY OBLIGATIONS
Contracts, supra at 418). GENERAL RULE: When the principal obligation is
extinguished in consequence of a novation,
NOTE: The change must involve the “principal” accessory obligation may subsist only insofar as they
conditions of the obligation (CIVIL CODE, Art. may benefit third persons who did not give consent
1291, par. 1). (CIVIL CODE, Art. 1296).

Examples: EXCEPTION: Art. 1296 has no application to

a. The acceptance of a partial payment by a novation effected by subrogating a third person to the
creditor before the maturity of the obligation rights of the creditor. Such novation is regulated by
is not a novation of the contract but a waiver Arts. 1303-1304 of the CIVIL CODE (8 MANRESA,
of the period agreed upon during which 5th Ed., Bk. 1, p. 792).
payment should not be made (DE LEON,
Obligations and Contracts, supra at 419). The exception refers to a case in which there is a
stipulation constituted in favor of a third person, which
may be demanded separately from the principal fulfillment/non-fulfillment of the condition
obligation, although subordinated to the latter (e.g. affecting it (JURADO, Obligations and
stipulation pour autrui) (JURADO, Obligations and Contracts, supra at 348-349).
Contracts, supra at 346).

EFFECT WHERE THE NEW OBLIGATION SUBJECTIVE NOVATION

VOID
If the new obligation is void, the original one shall NOVATION BY SUBSTITUTION OF
subsist, unless the parties intended that the former DEBTORS
relation should be extinguished in any event (CIVIL A subjective/personal novation consists in the
CODE, Arts. 1297). substitution of a new debtor in place of the original
debtor, which may be made even without the
If the new obligation is only voidable, novation can knowledge or against the will of the latter, but not
take place. But the moment it is annulled, the without the consent of the creditor (CIVIL CODE, Art.
novation must be considered as not having taken 1293).
place, and the original one can be enforced, unless
the intention of the parties is otherwise (DE LEON,
Obligations and Contracts, supra at 474).
FORMS OF NOVATION BY
SUBSTITUTION OF DEBTORS:
EFFECT WHERE THE OLD OBLIGATION 1. Expromisión
VOID OR VOIDABLE – effected with the consent of the creditor at the
instance of the new debtor even without the
If the original obligation was subject to a suspensive
consent or even against the will of the old debtor
or resolutory condition, the new obligation shall be
(beneficial reimbursement).
under the same condition, unless it is otherwise
stipulated (CIVIL CODE, Arts. 1298).
Requisites:
a. Initiative for substitution must emanate from
NOTE: If the condition is suspensive, and it is not
the new debtor;
complied with, no obligation arises; and if it is
b. Consent of the creditor to the substitution;
resolutory and it is complied with, the old obligation is
and
extinguished. In either case, one requisite of
c. Old debtor must be released from obligation
novation, i.e., a previous valid obligation, would be
(JURADO, Obligations and Contracts, supra
wanting (DE LEON, Obligations and Contracts, supra
at 339).
at 474).
Illustration: Atoy owes Eugene P1,000. Joey, a
EFFECTS OF CONDITION IN NOVATION: friend of Atoy approaches Eugene and tells him:
1. If the original obligation was subject to “I will pay you what Atoy owes you. From now on,
suspensive or resolutory condition, the new consider me your debtor. Atoy is to be excused.”
obligation shall be under the same condition, Take note that in this example, there is an
unless otherwise stipulated (CIVIL CODE, Art. agreement that Atoy will be released from the
1299). obligation. Sans such agreement, there is no
novation and the creditor (Eugene) can still
2. If the new obligation and the old obligation are enforce the obligation against the original debtor
subject to different conditions: (Atoy).
a. If the conditions can stand together:
i. If both are fulfilled – the new obligation Note: Implied consent by the creditor is allowed
becomes demandable (Asia Banking Corporation v. Elser, G.R. No. L-
ii. If only the condition affecting the old 30266, March 25, 1929).
obligation is fulfilled – old obligation is
revived while the new obligation loses its Kinds of Substitution by Expromisión:
force. a. Substitution with the knowledge and consent
iii. If only the condition affecting the new of the old debtor; and
obligation is fulfilled – there is no b. Substitution without the knowledge or
novation since the requisite of a previous against the will of the old debtor (JURADO,
valid and effective obligation would be Obligations and Contracts, supra at 339).
lacking.
b. If the conditions are incompatible – the effect 2. Delegación
is to extinguish the old obligation so that only – effected with the consent of the creditor
the new obligation remains and whose (delegatario) at the instance of the old debtor
demandability/effectivity depend upon the
 (delegante), with the concurrence of the new NOTE: The mere fact that the creditor receives a
debtor (delegado) (reimbursement and guaranty or accepts payment from a third person
subrogation). who agrees to assume the obligation, when there
is no agreement that the first debtor shall be
Requisites: released from responsibility, does not constitute
a. Initiative for substitution must emanate from novation, and the creditor can still enforce the
the old debtor; obligation against the original debtor. If the older
b. Consent of the new debtor; debtor is not released, there is no novation; the
c. Acceptance by the creditor; and third person becomes merely a co-debtor, surety
d. Old debtor must be released from his or co-surety (Mercantile Insurance Co., Inc. v.
obligation (Id.). CA, GR No. 85647, April 22, 1991).

Illustration: Atoy owes Eugene P1,000. Atoy EFFECT OF INSOLVENCY OR NON-

texted Eugene that his friend Joey will pay the FULFILLMENT BY THE NEW DEBTOR
debt, and he wishes to be released from the
obligation. Both Joey and Eugene agreed to such 1. Expromisión
terms. Take note again that the substitution must – If the substitution was effected without the
be made with the intention to release the original knowledge and against the will of the original
debtor. debtor, the new debtor’s insolvency or
nonfulfillment shall not revive the original debtor’s
Parties in delegacion: liability to the creditor.
a. Delegante – original debtor (Atoy);
b. Delegatario – the creditor (Eugene); and If the substitution was effected with the
c. Delegado – the new debtor (Joey) knowledge and consent of the original debtor, it
shall revive the original debtor’s liability to the
NOTE: In either of the two modes of substitution, the creditor (JURADO, Obligations and Contracts,
consent of the creditor is an indispensable supra at 345).
requirement (Quinto v. People, G.R. No. 126712,
April 14, 1999). 2. Delegación
– The right of the creditor can no longer be
RIGHTS OF NEW DEBTOR: revived except in the following cases:
a. Insolvency already existing and of public
1. Expromisión knowledge at the time when the original
a. Substitution with knowledge and consent of debtor delegated his debt
original debtor and payment made by new b. Insolvency was already existing and known
debtor with or without knowledge and to the original debtor when he delegated his
consent of original debtor: debt (JURADO, Obligations and Contracts,
i. Reimbursement from the original debtor supra at 345).
of the entire amount paid
ii. Subrogation in all the rights of the It is submitted that actual knowledge of the
creditor creditor that new debtor was insolvent at the
b. Substitution without the knowledge and time of delegation, will bar him from
consent of the original debtor, and payment recovering from the old debtor. He must bear
is made by the new debtor without the the consequences of his acts knowingly done
knowledge and consent of the original (CIVIL CODE, Arts. 1294-1295).
debtor:
i. Reimbursement from the original debtor
NOVATION BY SUBROGATION
only insofar as the payment has been
beneficial to such debtor A personal novation effected by subrogating a third
ii. No subrogation person in the rights of the creditor either legal or
conventional. (CIVIL CODE, Art. 1300).
2. Delegación Subrogation is the substitution of one person in the
– Since substitution was effected with the place of another with reference to a lawful claim or
consent of all the parties, the new debtor can right, so that he who is substituted succeeds to the
demand reimbursement from the original debtor right of the other in relation to a debt or claim,
of the entire amount which he has paid as well as including its remedies and securities. It contemplates
compel the creditor to subrogate him to all of his full substitution such that it places the party
rights (JURADO, Obligations and Contracts, subrogated in the shoes of the creditor, and he may
supra at 343-344). use all means which the creditor could employ to
enforce payment. (Lorenzo Shipping Corp. v. Chubb
and Sons, G.R. No. 147724, June 8, 2004).
FORMS OF NOVATION BY CONVENTIONAL ASSIGNMENT OF
SUBROGATION: SUBROGATION RIGHTS
1. Conventional
– takes place by agreement of the original As to Time of Effectivity
creditor, the third person substituting the original
The effects arises from As far as the debtor is
creditor, and the debtor (CIVIL CODE, Art. 1301).
the moment of concerned, arises from
novation/ subrogation. the moment of
2. Legal
notification.
– takes place by operation of law (CIVIL CODE,
Art. 1302). (JURADO, Obligations and Contracts, supra at 350).

CONSENT OF ALL PARTIES REQUIRED IN LEGAL SUBROGATION

CONVENTIONAL SUBROGATION GENERAL RULE: Legal subrogation is not
1. The debtor presumed (CIVIL CODE, Art. 1302).
— because he becomes liable under the new
obligation to a new creditor. EXCEPTIONS: (PAI)
1. When a creditor pays another creditor who is
2. The old or original creditor Preferred, without debtor’s knowledge;
— because his right against the debtor is
extinguished. Illustration: Atoy has two creditors, Mhik who is
a mortgage creditor for P15,000 and Jerome who
3. The new creditor is an ordinary creditor for P6,000. Jerome paid
— because he may dislike or distrust the debtor Atoy’s debt of P15,000 to Mhik. Jerome will be
(DE LEON, Obligations and Contracts, supra at subrogated to the rights of Mhik. This means that
434). Jerome will now be a mortgage creditor for
P15,000 and an ordinary creditor for P6,000.
CONVENTIONAL SUBROGATION V. 2. When a third person, not interested in the
ASSIGNMENT OF RIGHTS obligation, pays with the express or tacit
CONVENTIONAL ASSIGNMENT OF Approval of the debtor; or
SUBROGATION RIGHTS
Illustration: Atoy owes Joey P10,000 secured by
As to Rules Which Shall Govern mortgage. Eugene, a classmate of Atoy, and
having no connection with the contract paid Joey
Governed by Art. Governed by Art. 1624- with Atoy’s approval. Subrogation takes place
1300-1304. 1627. and Eugene becomes a mortgage creditor.

As to Necessity of Debtor’s Consent If Eugene pays without the knowledge or against

the will of Atoy, he is only entitled to demand
Debtor’s consent is not
Debtor’s consent is reimbursement as to the extent that Atoy has
required to fully produce been benefited by the payment. There is no
required.
the legal effect. subrogation in this case.
As to Effect upon Obligation
3. When, even without knowledge of the debtor, a
Has the effect of Has the effect of person Interested in the fulfillment of the
extinguishing the transmitting the rights of obligation pays, without prejudice to the effects of
obligation and giving the creditor to another confusion as to the latter’s share (CIVIL CODE,
rise to a new one. person without modifying/ Art. 1302).
extinguishing the
obligation. Illustration: Joey owes Cath P10,000 secured
by a mortgage and by a guaranty of Atoy. If Atoy
even without Joey’s knowledge pays Cath, Atoy
As to Effect upon Vices will be subrogated in Cath’s place. By reason of
confusion, or by reason of the fact that Atoy
Defects/ vices in the Defects/ vices in the old became a guarantor and a creditor at the same
old obligation are obligation are not cured. time, the guaranty is extinguished.
cured.
Strictly speaking, there is no legal subrogation
when a solidary debtor pays the entire obligation.
 Solidarity terminates upon the payment of the after a contract has been entered into. Hence, there
whole obligation. Thus, the paying debtor does can be no contract if there is no obligation. But an
not completely step into the shoes of the creditor, obligation may exist without a contract (DE LEON,
as he cannot demand from any of his co-debtors Obligations and Contracts, supra at
the compliance of the entire obligation but only 444).
the proportion which pertains to each (JURADO,
Obligations and Contracts, supra at 352).

EFFECTS OF SUBROGATION GENERAL PROVISIONS

(CIVIL CODE, ART. 1303-1304) (ARTS. 1305-1355)
1. Total subrogation
– Transfers to the person subrogated the credit
with all the rights the original creditor had, either
against the debtor or third persons be they ELEMENTS OF CONTRACTS:
guarantors or possessors of mortgages.
1. Essential
– those without which there can be no contract
Accessory obligations are not extinguished; the
a. Common elements – present in all contracts
person subrogated acquires all the rights the
i. Consent
original creditor had against third persons and the
ii. Object or Subject Matter
rule is absolute with respect to legal subrogation.
iii. Cause or Consideration
In conventional subrogation, accessory
b. Special elements – present only in certain
obligations may be increased or reduced upon
contracts (e.g., delivery in real contracts or
agreement of the parties (JURADO, Obligations
form in solemn ones).
and Contracts, supra at 353).
c. Extraordinary elements – peculiar to specific
contracts (e.g., price in a contract of sale)
2. Partial subrogation
– A creditor, to whom partial payment has been
2. Natural
made, may exercise his right for the remainder,
– those which are derived from the nature of the
and he shall be preferred to the person who has
contract and ordinarily accompany the same;
been subrogated in his place in virtue of the
they are presumed by law, although they can be
partial payment of the same credit.
excluded by the contracting parties if they so
desire (e.g., warranty against eviction in a
Illustration: Atoy owes Eugene P4,000. With the
contract of sale).
consent of both, Joey pays Eugene P2,000. Now
Eugene and Joey are the creditors of Atoy to the
amount of P2K. By reason of the preferential right 3. Accidental
to the remainder, Eugene is to be preferred in – those which exist only when the parties
case Atoy has only P2,000. The preference, expressly provide for them for the purpose of
however, enjoyed by Eugene is only in the assets limiting or modifying the normal effects of the
remaining with the debtor (Atoy) and not those contract (e.g. conditions, terms or modes)
already transferred to others. (JURADO, Obligations and Contracts, supra at
357).

NOTE: Contracts must not be confused with other

CONTRACTS juridical conventions such as marriage, adoption and
succession. The principal source of the rights and
obligations of the parties in contracts is their
agreement, while in the other juridical conventions, it
is the law itself (Id. at 354).
CONTRACT
A contract is a meeting of minds between two ESSENTIAL ELEMENTS OF A VALID
persons whereby one binds himself, with respect to
CONTRACT
the other, to give something or to render some
service (CIVIL CODE, Art. 1305). There is no contract unless the following requisites
concur: (COC)
1. Consent of the contracting parties;
CONTRACT AND OBLIGATION 2. Object certain which is the subject matter of the
DISTINGUISHED contract; and
While a contract is one of the sources of obligations, 3. Cause of the obligation which is established
an obligation is the legal tie or relation itself that exists (CIVIL CODE, Art. 1318).
STAGES OF CONTRACTS: (GPC) 6. According to their form
a. Common or informal – requires no
1. Generation
particular form
– comprehends the preparation or conception. It
b. Special/formal/Solemn – requires some
is the period of negotiation and bargaining,
particular form
ending at the moment of agreement of the
parties.
7. According to their cause
a. Onerous – in which each of the parties
2. Perfection
aspires to procure for himself a benefit
– the moment when the parties come to agree
through the giving of an equivalent or
on the terms of the contract
compensation.
b. Gratuitous – in which one of the parties
3. Consummation proposes to give to the other a benefit without
– it is the fulfillment or performance of the terms any equivalent or compensation.
agreed upon in the contract (ABS-CBN
Broadcasting Corporation v. CA, G.R. No.
8. According to their subject matter
128690, January 21, 1999).
a. Things – e.g., sale, deposit
b. Services – e.g., agency, lease of services
CLASSIFICATION OF CONTRACTS
1. According to their relation to other 9. According to their names
contracts a. Nominate – have their own individuality;
a. Preparatory– preliminary step towards the regulated by special provisions of law
celebration of another subsequent contract. b. Innominate – contracts which do not have a
b. Principal – can subsist independently from specific name; not regulated by special
other contracts provisions of law (Id. at 359-361).
c. Accessory – can exist only as a
consequence of, or in relation with, another KINDS OF INNOMINATE CONTRACTS:
prior contract (JURADO, Obligations and 1. Do ut des - I give that you give
Contracts, supra at 359). 2. Do ut facias - I give that you do
3. Facio ut des - I do that you give
2. According to the risk involved 4. Facio ut facias - I do that you do (DE LEON,
a. Commutative – each of the party acquires Obligations and Contracts, supra at 463).
an equivalent of his prestation.
b. Aleatory – each of the parties has to his NOTE: According to some authorities, do ut des is no
account the acquisition of an equivalent of his longer an innominate contract. It has already been
prestation upon the happening of an event given a name of its own, i.e., barter or exchange
which is uncertain – e.g., insurance (CIVIL CODE, Art. 1638).

3. According to their perfection HOW INNOMINATE CONTRACTS

a. Consensual – perfected by mere consent of
the parties REGULATED
b. Real – requires not only consent of the Innominate contracts shall be regulated,
parties but also delivery of the object for their successively, by:
perfection – e.g., commodatum, deposit, 1. The stipulations of the parties,
mutuum (simple loan). 2. The general provisions of the CIVIL CODE on
obligations and contracts,
4. According to their purpose 3. The rules governing the most analogous
a. Transfer of ownership – e.g., sale nominate contracts and
b. Conveyance of use – e.g., commodatum 4. The customs of the place (CIVIL CODE, Art.
c. Rendition of service – e.g., agency 1307).

5. According to the nature of the vinculum CHARACTERISTICS OF CONTRACTS:

which they produce (MAOR)
a. Unilateral – give rise to an obligation for only 1. Mutuality (CIVIL CODE, Art. 1308);
one of the parties 2. Autonomy (CIVIL CODE, Art. 1306);
b. Bilateral – give rise to reciprocal obligations 3. Obligatory Force (CIVIL CODE, Art. 1159 and Art
for both parties 1315); and
4. Relativity (CIVIL CODE, Art. 1311).
A. MUTUALITY OF CONTRACTS (CIVIL CODE, Art. 1191; Palay, Inc. v. Clave, G.R.
The contract must bind both contracting parties; its No. L-56076, September 21, 1983).
validity or compliance cannot be left to the will of one
of them (CIVIL CODE, Art. 1308). B. AUTONOMY
(FREEDOM TO CONTRACT)
EXCEPTION: The contracting parties may establish such
Validity or fulfillment may be left to: stipulations, clauses, terms and conditions as they
1. The will of a third person, whose decision shall may deem convenient (CIVIL CODE, Art. 1306).
not be binding until made known to both the
contracting parties (CIVIL CODE, Art. 1309); or Freedom to contract is both a CONSTITUTIONAL
2. Chance (As sensucontrario from CIVIL CODE, and STATUTORY right (CONST., Art. III, Sec 10;
Art. 1308) CIVIL CODE, Art. 1306).

The determination shall not be obligatory if it is In contractual relations, the law allows the parties
evidently inequitable. In such case, the courts shall leeway and considers their agreement as the law
decide what is equitable under the circumstances between them. Contractual stipulations that are not
(CIVIL CODE, Art. 1310). contrary to law, moral, good customs, public order or
public policy shall be binding and should be complied
Contract changes must be made with the consent of with in good faith (Spouses Chung v. Ulanday
the contracting parties. The minds of all the parties Construction, Inc., G.R. No. 156038, October 11,
must meet as to the proposed modification, especially 2010).
when it affects an important aspect of the
agreement. Thus, any change must be mutually Limitation to the Principle of Autonomy
agreed upon; otherwise, it produces no binding effect Stipulations should not be contrary to law, morals,
(Philippine Savings Bank v. Sps. Castillo, G. R. No. good customs, public order, or public policy (CIVIL
193178, May 30, 2011). CODE, Art. 1306).

Contract of Adhesion 1. Contrary to Law

One wherein one party imposes a ready-made form Acts executed against the provisions of
of contract on the other. It is a contract whereby mandatory or prohibitory laws shall be void,
almost all of its provisions are drafted by one party, except when the law itself authorizes their validity
with the participation of the other party being limited (CIVIL CODE, Art. 5).
to affixing his or her signature or "adhesion" to the
contract. However, contracts of adhesion are not 2. Contrary to Morals
invalid per se as they are binding as ordinary The morals referred to are those principles which
contracts (Encarnacion Construction v. Phoenix are incontrovertible and are universally admitted
Ready Mix Concrete Development and Construction, and which have received social and practical
G.R. No. 225402, September 4, 2017). recognition (JURADO, Obligations and
Contracts, supra at 363).
NOTE: Contracts of adhesion do not violate mutuality
of contracts because the adhering party has the Example: Interest rate so high that it is so
freedom to reject it in its entirety. However, in case of unconscionable and shocking to the senses
controversy, the contract is interpreted liberally in (Andal v. PNB, G.R. No. 194201, November 27,
favor of the adhering party (JURADO, Obligations 2013) and an agreement on a trial marriage is
and Contracts, supra at 455). Condition in a contract void for being contrary to morals.
of adhesion if contrary to public policy should be
declared void and unenforceable to make the courts
3. Contrary to Good Customs
accessible to all who may have need of their services
Customs consist of habits and practices which
(Sweet Lines v. Teves, G.R. L-37750, May 19, 1978).
through long usage have been followed and
enforced by society or some part of it as binding
Contracts Cannot Be Unilaterally Cancelled
rules of conduct. It has the force of law when
GENERAL RULE: No party can renounce the
recognized and enforced by law. A custom must
contract unilaterally or without the consent of the
be proved as a fact, according to the rules of
other (Landoil Resources v. Tensuan, G.R. No.
evidence (CIVIL CODE, Arts. 12 & 1376).
77733, December 20, 1988) just as nobody can be
forced to enter into a contract.
Example: A contract providing for a penalty if one
of the parties would back out from his/her
EXCEPTION: An agreement that a party may
promise to marry is against good customs
terminate the contract upon reasonable period of
notice or when cancellation is by reason of breach
 (PINEDA, Obligations and Contracts, supra at All Contracts Are Essentially Consensual
339). While most contracts are perfected by mere consent,
others require acts in addition to consent in order to
4. Contrary to Public Order obtain obligatory force. These are:
Refers to the safety, as well as to the peace and 1. Real contracts are not perfected until the
order, of the country or of any particular delivery of the object of the obligation (CIVIL
community (JURADO, Obligations and CODE, Art. 1316).
Contracts, supra at 364).
Examples: Deposit, commodatum and mutuum
Example: A contract to commit rebellion. (simple loan).

5. Contrary to Public Policy NOTE: This list is exclusive.

By public policy is intended that principle of law
which holds that no subject or citizen can lawfully 2. Solemn contracts or Formal contracts require
do that which has a tendency to be injurious to compliance with certain formalities prescribed by
the public or against the public good which may law such prescribed form being thereby an
be termed the “policy of the law,’’ or “public policy essential element thereof (DE LEON, Obligations
in relation to the administration of the law’’ and Contracts, supra at 542).
(Rivera v. Solidbank Corp., G.R. No. 163269,
April 19, 2006). Example: Donation of real property; Notarial Will

Examples: A quitclaim where a dismissed NOTE: In both real and solemn contracts, contractual
employee waives action against his former consent is impliedly included.
employer for any cause.
Effect of Perfection of the Contract
Autonomy of Contracts Submits to Fundamental Until the contract is perfected, it cannot, as an
Human Rights and General Welfare independent source of obligation, serve as a binding
Non-impairment clause is inferior to: juridical relation (Asuncion v. CA, G.R. No. 109125,
1. The Police Power of the State (BF United December 2, 1994; Amado v. Salvador, G.R. No.
Homeowner’s Association, Inc. v. The City Mayor 171401, December 13, 2007).
of Parañaque, G.R. No 141010, February 7,
2007) Unaccepted offers and proposals remain as such and
2. Freedom of Religion (Victoriano v. Elizalde Rope cannot be considered as binding commitments;
Workers’ Union, G.R. No. L-25246, September hence, not demandable (Luxuria Homes, Inc. v. CA,
12, 1974). G.R. No. 125986, January 28, 1999).

C. OBLIGATORY FORCE From the moment the parties come to an agreement

on a definite subject matter and valid consideration,
Obligations arising from contracts have the force of they are bound not only:
law between the contracting parties and should be 1. To the fulfillment of what has been expressly
complied with in good faith (CIVIL CODE, Art. 1159). stipulated; but also,
2. To all the consequences which according to their
Contracts are perfected by mere consent, and from nature, may be in keeping with good faith, usage,
that moment the parties are bound to the fulfillment of and law (CIVIL CODE, Art. 1315).
what has been expressly stipulated and to all
consequences which, according to their nature, may
be in keeping with good faith, usage and law (CIVIL D. RELATIVITY
CODE, Art. 1315). GENERAL RULE: Contracts take effect only
between the parties, their assigns and heirs (CIVIL
NOTE: The binding force of contracts comes from the CODE, Art. 1311).
consent of a free and unimpaired mind. Pacta sunt
servanda, “agreements must be kept” When a person assigns his credit to another person,
the latter is deemed subrogated to the rights as well
A party cannot be allowed to renege on his obligation as to the obligations of the former (Fort Bonifacio
under a contract simply because he changed his mind Development Corp. v. Fong, G.R. No. 209370, March
(Morla v. Belmonte, G.R. No. 171146, December 7, 25, 2015).
2011).
When there is no privity of contract, there is likewise
no obligation or liability to speak about (Asian
Terminal, Inc. v. Padodon Stainless Steel
Corporation G.R. No. 211876, June 25, 2018).
Stipulations Pour Autrui formal or express but may be implied (Sps. Narvaez
If a contract should contain some stipulation in favor v. Sps. Alciso, G.R. No. 165907, July 27, 2009).
of a third person, a mere incidental benefit or interest
of a person is not sufficient. The contracting parties Exceptions to Relativity of Contracts:
must have clearly and deliberately conferred a favor 1. Exceptionally, a contract may confer benefits to a
upon a third person (CIVIL CODE, Art. 1311, par. 2) third person or what are otherwise known as
“stipulation pour autrui” (CIVIL CODE, Art. 1311,
A beneficial stipulation or stipulation pour autrui (“for par. 2);
another”) is a stipulation in a contract, clearly and 2. In contracts creating real right, third persons who
deliberately conferred by the contracting parties as a come into possession of the object of the contract
favor upon a third person, who must have accepted it may be bound thereby under the provisions of
before it could be revoked (JURADO, Obligations and mortgage laws and land registration law (CIVIL
Contracts, supra at 382). CODE, Art. 1312);
3. Creditors are protected in cases of contracts
Example: A stipulation in a contract of sublease that intended to defraud the (CIVIL CODE, Art. 1313);
the sublessee’s rent shall be paid directly to the 4. Accion directa is allowed by law in certain cases
principal lessor is a stipulation pour autrui (Limitless (CIVIL CODE, Art. 1729); and
Potentials, Inc. v. Quilala, G.R. No. 157391. July 15, 5. Any third person who induces another to violate
2005). his contract can be made liable for damages to
the other contracting party (CIVIL CODE, Art.
Test of Beneficial Stipulation 1314).
To constitute a valid stipulation pour autrui it must be
the purpose and intent of the parties to benefit the Intransmissible Contractual Rights Do Not Bind
third person. The test is whether or not the parties Heirs, Assigns, and Successors-in-interest
deliberately inserted terms in their agreement with the Contractual Rights which are by law, nature, or
avowed purpose of conferring a favor upon such third stipulation intransmissible cannot bind persons other
person (JURADO, Obligations and Contracts, at 383 than the parties thereto.
citing Florentino v. Encarnacion, G.R. No. L-27696.
September 30, 1977). Examples:
1. Membership in a non-stock corporation is
Requisites of Valid and Binding Stipulation Pour generally personal and intransmissible under the
Autrui: (FP-CUAR) Corporation Code (see REVISED
1. There is a stipulation in Favor of a third person; CORPORATION CODE, Sec. 89).
2. The stipulation is a Part, not the whole, of the
contract; 2. Personal obligations are intransmissible by
3. The contracting parties Clearly and deliberately nature.
conferred a favor to the third person — the favor
is not an incidental benefit; NOTE: Only personal obligations or those identified
4. The favor is Unconditional and uncompensated; with the persons themselves are extinguished by
5. The third person communicated his or her death (Stronghold Insurance Co. v. Republic-Asahi
Acceptance of the favor before its revocation; Glass Corp., G.R. No. 147561, June 22, 2006).
and
6. The contracting parties do not Represent, or are 3. Right to vote.
not authorized by, the third party (Republic of the
Philippines v. Legal Heirs of Jose L. Africa, G.R. Real Rights as to those Charged with Notice
No. 205722; August 19, 2015). A real right is a right belonging to a person over a
specific thing, without a passive subject individually
Acceptance of Benefit by Third Party Required determined, against whom such right may be
If a contract should contain some stipulation in favor personally enforced. Such a right, therefore, is
of a third person, he may demand its fulfillment enforceable against the whole world (JURADO,
provided he communicated his acceptance to the Obligations and Contracts, supra at 388).
obligor before its revocation (CIVIL CODE, Art. 1311,
par. 2). A real right is binding upon third persons who are
chargeable with notice of the same.
REASON: Relativity of Contracts
A recorded real estate mortgage is a right in rem
Form of Acceptance of Beneficiary (Paderes v. CA, G.R. No. 147074, July 15, 2005).
The acceptance may be made at any time before the
favorable stipulation is revoked and that the
acceptance may be in any form it does not have to be
Transferees of Property Alienated In Fraud
Contracts entered into in order to defraud a creditor CONSENT
are rescissible (CIVIL CODE, Art. 1381(3)).

The transferees are effectively bound to the contract

between the transferor and the charging creditor such CONSENT
that any transfer of title to them are rescissible.
Consent is manifested by the meeting of the offer and
the acceptance upon the thing and the cause which
Tortious Interference
are to constitute the contract. The offer must be
There is tortious interference where the third person
certain and the acceptance absolute. A qualified
induces a contracting party to violate his contract.
acceptance constitutes a counter-offer (CIVIL CODE,
Such third person can be held liable for damages
Art. 1319).
(CIVIL CODE, Art. 1314).

NOTE: The rule on tortious interference implies that REQUISITES OF VALID CONSENT: (CCI)
any person aware that a binding contract exists 1. Must be manifested by the Concurrence of the
between parties is bound to respect such juridical tie. offer and acceptance (CIVIL CODE, Arts. 1319-
1326);
Requisites of Tortious Interference: (MIKE) 2. Parties must possess the necessary legal
1. Existence of Malice; Capacity (CIVIL CODE, Arts. 1327-1329); and
2. Interference by third person without legal 3. Must be Intelligent, free, spontaneous, and real
justification or excuse; (CIVIL CODE, Arts. 1330-1346).
3. The Existence of a valid contract; and
4. Knowledge on the part of the third person of the “PARTIES” NOT SAME AS “PERSONS”
existence of the contract (JURADO, Obligations A contract must have at least two parties. However,
and Contracts, supra at 390). a party to a contract need not be a single person, nor
is it necessary that there are two or more persons to
Contracts by Agent without Authority are constitute a party.
Unenforceable
As a general rule, a person is not bound by the 1. Auto-contracts
contract of another of which he has no knowledge or – a contract which is executed only by one
to which he has not given his consent (CIVIL CODE, person except that the same person is executing
Art. 1311, par. 1). the contract in several capacities for several
parties.
A contract entered into in the name of another by one
who has no authority is unenforceable against the Example: X is the agent of Y. X purchases a
former unless it is ratified by him before it is revoked property from Y. In the deed, X signs in his own
by the other contracting party (CIVIL CODE, Art. 1317 name as buyer. He then signs in a representative
& 1403 (1)). capacity as agent of Y, signing for the Seller.
A contract entered into by an agent in excess of his 2. Collective contracts
authority is unenforceable against the principal, but – Contracts entered into by several persons as a
the agent is personally liable to the party with whom single party
he contracted where such party was not given
sufficient notice of the limits of the powers granted by Example: Collective bargaining contracts where
the principal (CIVIL CODE, Art. 1897). the collective bargaining unit, composed of many
persons who are employees of the same
When a Person Bound by the Contract of Another employer is bound as a single party.
In order that a person may be bound by the contract
of another, there are two requisites:
1. The person entering into the contract must be CONCURRENCE OF OFFER AND
duly authorized, expressly or impliedly, by the ACCEPTANCE
person in whose name he contracts or he must
have, by law, a right to represent him (like a OFFER
guardian or an administrator); and The proposal to make a contract (JURADO,
Obligations and Contracts, at 401).
2. He must act within his power.
In order to constitute a binding proposal, the offer
must be certain or definite (CIVIL CODE, Art. 1319).
REQUISITES OF VALID OFFER: (DICD) A qualified acceptance must, in turn, be accepted
1. It must be Definite; absolutely in order that there will be a contract (DE
2. It must be Intentional; LEON, Obligations and Contracts, supra at 516).
3. It must be Complete; and
4. It must be Directed to a person or persons with COMPLEX OFFERS
whom the offeror intends to enter into a contract, When a single offer involves two or more contracts,
except definite offers which are not directed to a the perfection, where there is only partial acceptance,
particular person but to the public in general (i.e., will depend upon the relation of the contracts
public auction). between themselves, whether due to their nature or
due to the intent of the offeror (4 TOLENTINO, supra
DEFINITE OFFER at 452).
An offer is definite if it is clearly stated. It must not be
vague or doubtful in its terms as to put to inquiry what RULE ON COMPLEX OFFERS:
is to be accepted (4 TOLENTINO, supra at 448). 1. Offers are interrelated
– contract is perfected if all the offers are
INTENTIONAL OFFER accepted.
An offer is intentional if it is seriously made with clear
intent and purpose to enter into a contract. There 2. Offers are not interrelated
must be a view of entering into an agreement. – single acceptance of each offer results in a
perfected contract unless the offeror has made it
NOTE: An offer clearly made in jest without intent to clear that one is dependent upon the other and
be bound if accepted is not a valid offer (Id.at 449). acceptance of both is necessary (JURADO,
Obligations and Contracts, supra at 401).
COMPLETE OFFER
An offer is complete if it is not lacking in its terms as ACCEPTANCE
to require the parties to enter into subsequent The acceptance must also be certain or definite and
agreements. Any terms and conditions, and other must be absolute in character. A qualified acceptance
accessory stipulations must be communicated (Id.at constitutes a counter-offer (CIVIL CODE, Art. 1319).
449).
It may be express or implied (CIVIL CODE, Art.
DIRECTED OFFER 1320).
For the offer to be valid, it must be effectively
communicated to the person with whom the offeror REQUISITES OF ACCEPTANCE:
intends to contract with (Id.at 449). (ADI-PC)
1. Absolute (no vitiation);
NOTE: A written offer not delivered to the intended 2. Directed to the offeror;
recipient, but remained in a sealed envelope on the 3. Made with the Intention to be bound (animus
person’s desk cannot be accepted. contrahendi);
4. Made within the Proper time; and
WITHDRAWAL OF OFFER 5. Communicated to the offeror and learned by him
Offer or proposal may be withdrawn so long as the unless the offeror knows of the acceptance.
offeror has no knowledge of acceptance by offeree
(JURADO, Obligations and Contracts, supra at 401). AMPLIFIED ACCEPTANCE
Pending the acceptance of an offer, the offeror can Under certain circumstances, a mere amplification on
perfect a contract over the same thing with another the offer must be understood as an acceptance of the
person (4 TOLENTINO, supra at 458). original offer, plus a new offer which is contained in
the amplification. The intent of the offeree, however,
EXCEPTION: Option Contract – if it is founded upon controls (4 TOLENTINO, supra at 452).
a consideration, as something paid or promised
(CIVIL CODE, Art. 1324). SUCCESSIVE AGREEMENTS
If the intention of one or both parties is that there be
COUNTER-OFFER concurrence on all points, the contract is not
This refers to qualified acceptance; involves a new perfected if there is a point of disagreement, even if
proposal; a rejection of the original offer (JURADO, there is already agreement on the essential elements
Obligations and Contracts, supra at 401). of the contract (4 TOLENTINO, supra at 452).

Example: Either or both parties have declared that

there must be agreement on who should bear the
expenses of transportation of the thing upon delivery, the knowledge of its contents, even if he is not
the contract is not yet perfected (4 TOLENTINO, able to actually acquire such knowledge.
supra at 453).
NOTE: This is adhered to by the E-Commerce
IMPLIED ACCEPTANCE Act in some cases.
Implied acceptance may arise from acts or facts
which reveal the intent to accept, such as the 4. Cognition Theory
consumption of the things sent to the offeree, or the – perfected from the moment the acceptance
fact of immediately carrying out the contract offered comes to the knowledge of the offeror. This is
(4 TOLENTINO, supra at 460). adhered to by the CIVIL CODE (JURADO,
Obligations and Contracts, supra at 402).
RIGHT OF THE OFFEROR TO SET
MANNER OF ACCEPTANCE SILENCE CONSTRUED AS CONSENT
Requisites: (DCC)
The offeror may fix the time, place, and manner of
1. There is a Duty or possibility to express oneself;
acceptance, all of which must be complied with
2. The manifestation of the will Cannot be
(CIVIL CODE, Art. 1321).
interpreted in any other way; and
3. There is a Clear identity in the effect of the silence
NOTE: An acceptance which is not made in the
and the undisclosed will (4 TOLENTINO, supra at
manner prescribed by the offeror is not effective, but
455).
constitutes a counter-offer which the offeror may
accept (4 TOLENTINO, supra at 462).
OPTION CONTRACT
OFFER MADE THROUGH AN AGENT A preparatory contract giving a person for a
consideration a certain period and under specified
An offer made through an agent (not mere
conditions within which to accept the offer of the
messenger) is accepted from the time acceptance is
offeror. It is separate and distinct from the projected
communicated to him (CIVIL CODE, Art. 1322).
main agreement or principal contract itself (subject
matter of the option) which the parties may enter into
NOTE: Art. 1322 is not applicable when an
upon the consummation of the option or which will be
intermediary has no power to bind either the offeror
perfected upon the acceptance of the offer (DE
or the offeree. Thus, the communication of the
LEON, at 527).
acceptance to him does not perfect the contract (4
TOLENTINO, supra at 462).
NOTE: The consideration need not be monetary; it
may consist of other things or undertaking but they
Both the offer and acceptance are made through an
must be of value, in view of the onerous nature of the
agent. If acceptance is through an agent, offer must
contract of option (Navotas Industrial Corporation v.
be authorized (DE LEON, Obligations and Contracts,
Cruz, G.R. No. 159212, September 12, 2005)
supra at 575).
Requisites:
THEORIES THAT DETERMINE THE 1. It is supported by an independent consideration;
EXACT MOMENT OF PERFECTION and
WHEN ACCEPTANCE IS MADE BY
LETTER OR TELEGRAM: (MERC) NOTE: If the option is without a consideration, it
is a mere offer to sell which is not binding until
1. Manifestation Theory accepted. If, however, acceptance is made
– perfected from the moment the acceptance is
before a withdrawal, it constitutes a binding
declared or made.
contract (Sanchez v. Rigos, G.R. No. L-25494,
June 14, 1972).
Note: This is adhered to by the Code of
Commerce.
2. It is exclusive (4 TOLENTINO, supra at 466).
2. Expedition Theory
– perfected from the moment the offeree
ARTICLES 1324 AND 1479 COMPARED
transmits the notification of acceptance to the Article 1324 lays down the general rule regarding
offeror. offer and acceptance. It has been interpreted as
modified by the provision of Article 1479 of the CIVIL
3. Reception Theory CODE which applies specifically to “a promise to buy
– perfected from the moment that the notification or sell” (DE LEON, Obligations and Contracts, supra
is in the hands of the offeror in such a manner at 582).
that he can, under ordinary conditions, procure
An unconditional mutual promise to buy and sell as provides that advertisements for bidders are simply
long as the object is made determinate and the price invitations to make proposals, and that an advertiser
is fixed can be obligatory on the parties, and is not bound to accept the highest bidder unless the
compliance therewith may accordingly be exacted contrary appears (Northern Mindanao Industrial Port
(Asuncion v. CA, G.R. No. 109125, December 2, and Services Corporation v. Iligan Cement
1994). Corporation, G.R. No. 215387, April 23, 2018).

A unilateral promise to buy or sell a determinate thing NOTE: It is not applicable to judicial sales because
not supported by any consideration distinct from the the highest bid must necessarily be accepted (4
price for which that thing was intended to be sold by TOLENTINO, supra at 469).
or to the promisee (offeree) does not bind the
promissor (offeror), even if accepted, and may be LEGAL CAPACITY TO CONSENT
withdrawn at any time (Asuncion v. CA, G.R. No.
109125, December 2, 1994).
LEGAL CAPACITY
NOTE: The optionee (holder of option) has the right, It refers not only to natural persons, but also to
but not the obligation, to buy or sell. Once the option artificial as well. The absence of legal capacity results
is exercised timely, i.e., the offer is accepted before a in legal incapacity, the causes of which are based on
breach of the option, a bilateral promise to buy and positive provisions of law, and exist in opposition to,
sell ensues and both parties are then reciprocally or as limitations of, natural capacity, as in the case of
bound to comply with their respective undertakings persons under civil interdiction (DE LEON,
(Asuncion v. CA, G.R. No. 109125, December 2, Obligations and Contracts, supra at 543).
1994). In other words, a perfected contract of option
does not result in the perfection or consummation of The capacity of the contracting parties is an
the sale. Only when the option is exercised may a indispensable requisite of consent (JURADO,
sale be perfected (Abalos v. Macatangay, Jr., G.R. Obligations and Contracts, supra at 417).
No. 155043, September 30, 2004).
PERSONS INCAPACITATED TO GIVE
BUSINESS ADVERTISEMENTS CONSENT ACCORDING TO THE CIVIL
GENERAL RULE: They are mere invitations to make CODE: (MID)
an offer, and not definite offers, unless it appears 1. Minors
otherwise (CIVIL CODE, Art. 1325). 2. Insane or Demented
3. Deaf mutes who cannot read nor write.
EXCEPTION: However, if the advertisement is
complete in all the particulars necessary in a contract, CONSENT OF MINORS
it may amount to a definite offer which, if accepted, Under the Civil Code, minors have a limited capacity
will produce a perfected contract (DE LEON,
to consent. Consent by a minor is not an absence of
Obligations and Contracts, supra at 539).
consent as to render the resulting contract void. A
minor’s consent only results in a voidable contract.
Example: For sale: 1,000 square meters lot at Green
Plains Village, Quezon City located at the corner of
Geronimo and Magallanes Streets for P5,000,000 MINORS MAY CONTRACT THROUGH
cash. — Tel. No. 817-12-84.” This is a definite offer THEIR GUARDIANS
(Id. at 539). Minors may validly contract without any impairing the
validity of said contract when they contract through
ADVERTISEMENTS FOR BIDDERS their natural guardians (parents) or legal guardians
They are simply invitations to make proposals. The (Id. at 418).
advertiser is not bound to accept the highest or lowest
bidder, unless the contrary appears (CIVIL CODE, INSTANCES WHEN MINOR’S CONSENT
Art. 1326). IS NOT DEEMED VITIATED
1. When the contract is entered into by a minor who
An advertisement to possible bidders is simply an actively misrepresents his age (not merely
invitation to make proposals, and that an advertiser is constructive representation) (Mercado v. Espiritu,
not bound to accept the lowest bidder unless the G.R. No. L-11872, December 1, 1917);
contrary appears; respondent had the right to reject
bids, and it cannot be compelled to accept a bidder's This exception is based on estoppel. Estoppel
proposal and execute a contract in its favor. Indeed, presupposes capacity to misrepresent. The
under Article 1326 of the Civil Code, which circumstances of the minor (i.e. he appears to be
specifically tackles offer and acceptance of bids, of legal age) must be of such nature that it could
 have been relied upon by the other party. LUCID INTERVAL
Otherwise, the contract remains voidable Contracts entered into during a lucid interval are valid
(Mercado v. Espiritu, G.R. No. L-11872, (CIVIL CODE, Art. 1328)
December 1, 1917).
A person under guardianship for insanity may still
2. When it involves the sale and delivery of enter into a valid contract and even convey property,
necessaries to minors (CIVIL CODE, Art. 1489, provided it is proven that at the time of entering into
par. 2); said contract, he was not insane or that his mental
defect, if mentally deranged, did not interfere with or
3. When it involves a natural obligation and such affect his capacity to appreciate the meaning and
obligation is fulfilled voluntarily by the minor significance of the transaction entered into by him
(CIVIL CODE, Arts. 1425-1427); (JURADO, Obligations and Contracts, supra at 422).

CONTRACTS ENTERED INTO BY PRESUMPTION OF CAPACITY

MINORS MAY BE RATIFIED There is a prima facie presumption that every person
When upon reaching the age of majority, they ratify of legal age possesses the necessary capacity to
the same (Badillo v. Ferrer, G.R. No. L-51369, July execute a contract (Id. at 423).
29, 1987).
DEAF-MUTES WHO DO NOT KNOW HOW
INSANE OR DEMENTED PERSONS TO WRITE
An insane or demented person includes any person, Being a deaf-mute is not by itself a disqualification for
who, at the time of the celebration of the contract, giving consent. The law refers to the deaf-mute who
cannot understand the nature and consequences of does not know how to write (4 TOLENTINO, supra at
the act or transaction by reason of any cause 471).
affecting his intellectual or sensitive faculties whether
permanent or temporary (JURADO, Obligations and
Contracts, supra at 421).
INCOMPETENTS
Under the Rules of Court, the following are
It is not necessary that there be a previous considered incompetents and may be placed under
declaration of mental incapacity in order that a guardianship:
contract entered into by a mentally defective person 1. Civil Interdiction
may be annulled; it is enough that the insanity existed 2. Hospitalized lepers
at the time the contract was made (4 TOLENTINO, 3. Prodigals (spendthrift)
supra at 471). 4. Deaf and dumb who are unable to read and write
5. Those of unsound mind even though they have
NOTE: Mere forgetfulness without evidence that the lucid intervals
same has removed from a person the ability to 6. Those who by reason of age, disease, weak mind
intelligently and firmly protect his property rights, will and other similar causes, cannot without outside
not by itself incapacitate a person from entering into aid, take care of themselves and manage their
contracts (Almeda v. Heirs of Ponciano Almeda, G.R. property becoming thereby an easy prey for
No. 194189, September 14, 2017). deceit and exploitation (RULES OF COURT,
SECTION 2, Rule 92)
STATE OF DRUNKENNESS OR
NOTE: Incompetents are also incapacitated from
HYPNOTIC SPELL giving unimpaired consent.
Contracts agreed to in a state of drunkenness or
during a hypnotic spell are voidable (CIVIL CODE, EFFECT WHERE BOTH CONTRACTING
Art. 1328).
PARTIES ARE INCAPABLE OF GIVING
But the same must be of a degree that obscures UNIMPAIRED CONSENT
completely the faculties and almost extinguishes the If both of the parties are incapable of giving consent,
consciousness of acts (JURADO, Obligations and the contract is unenforceable (CIVIL CODE, Art.
Contracts, supra at 422). 1403).

It is the result of the use of alcohol or drugs upon the DISQUALIFICATION TO CONTRACT
condition of the mind which determines whether the Refers to those who are prohibited from entering into
user has capacity to contract at any given moment; a contract with certain persons with regard to certain
the mere use in itself does not incapacitate him (4 property under certain circumstances and not to
TOLENTINO, supra at 472).
those who are incapacitated to give their consent to a. Violence;
a contract (CIVIL CODE, Arts. 1490& 1491). b. Intimidation;
c. Mistake
INCAPACITY V. DISQUALIFICATION d. Fraud; and
e. Undue influence (CIVIL CODE, Art. 1330).
INCAPACITY TO
DISQUALIFICATION TO
GIVE CONSENT 2. Vices of declaration (vicios de la
CONTRACT (CIVIL
(CIVIL CODE, ART.
CODE, ART. 1329) declaracion);
1327)

As to Restrictions 3. Simulation of contracts (CIVIL CODE, Arts.

1345-1346).
Restrains the exercise Restrains the very right
of the right to contract. itself. MISTAKE
Mistake or error is the false notion of a thing or a fact
As to Basis
material to the contract (DE LEON, Obligations and
Based upon subjective Based upon public policy Contracts, supra at 556).
circumstances of and morality.
certain persons. TWO GENERAL KINDS OF MISTAKE
MISTAKE OF FACT MISTAKE OF LAW
As to Validity
As to Existence
Voidable Void
(JURADO, Obligations and Contracts, supra at 428). One or both contracting One or both parties arrive
parties believe that a at an erroneous
PERSONS DISQUALIFIED TO fact exists when in conclusion regarding the
reality it does not or vice interpretation of a
CONTRACT versa. question of law or legal
1. Those under Civil interdiction for transactions effects of a certain act or
inter vivos (REVISED PENAL CODE, Art. 34) transaction.
2. Undischarged insolvents (INSOLVENCY LAW,
Sec. 24) As to Vitiation of Consent
3. Husband and wife cannot donate to each other to
each other(FC, Art. 87) Vitiates consent. Does not vitiate consent
4. Husband and wife cannot sell property to each except when it involves
other except when they are by consent or by mutual error as to the
judicial order under a regime of separation of effect of an agreement
property (CIVIL CODE, Art. 1490) when the real purpose is
5. Either spouse may not alienate or encumber frustrated.
community or conjugal property without the
(JURADO, Obligations and Contracts, supra at 429).
consent of the other spouse (FC, Arts 96 and
124)
6. The following cannot purchase (CIVIL CODE, REQUISITES OF MISTAKE OF FACT
Art.1491): WHICH VITIATES CONSENT: (SEM)
a. The guardian: his ward’s property 1. The error must be Substantial regarding:
b. The agent: the principal’s property a. The object of the contract (error in re) which
c. Executors and administrators: property may be:
under administration; i. Mistake as to the identity of the thing
d. Public officers: state property under their (error in corpore);
administration; ii. Mistake as to the substance of the thing
e. Justices, judges, prosecutors, clerks of court, (error in substantia);
lawyers: property attached in litigation. iii. Mistake as to the condition or state of the
thing; or
CONSENT MUST BE FREE, iv. Mistake as to the quantity of the thing
INTELLIGENT, SPONTANEOUS, REAL (error in quantitate) (Id. at 433);
b. The conditions which primarily moved or
induced one or both of the parties to enter
VICES OF CONSENT into the contract (CIVIL CODE, Art. 1331);
1. Vices of the will (vicios de la formacion c. Identity or qualifications of one of the parties
de la voluntad): (VIMFU) (error in persona), but only if such was the
 principal cause of the contract (CIVIL CODE, The only mistake with regard to persons which will
Art. 1331, par. 2). vitiate consent are mistakes with regard to the identity
2. The error must be Excusable; and or the qualifications of one of the contracting parties.
3. The error must be a Mistake of fact, and (CIVIL CODE, Art. 1331, par. 2).
not of law (JURADO, Obligations and Contracts,
supra at 430-432). MISTAKE OF LAW
Mistake of law as a rule will not vitiate consent, except
ERROR IN RE when mutual error as to the legal effect of an
In order that mistake may invalidate consent, it should agreement when the real purpose of the parties is
refer to the substance of the thing which is the object frustrated, may vitiate consent (CIVIL CODE, Art.
of the contract, or to those conditions which have 1334).
principally moved one or both parties to enter into the
contract (CIVIL CODE, Art. 1331, par. 1). REQUISITES OF MISTAKE OF LAW
1. Mistake as to the identity of the thing as when the WHICH VITIATES CONSENT: (LMF)
thing which constitutes the object of the contract
is confused with another thing; 1. The mistake must be with respect to the Legal
2. Mistake as to the substance of the thing (error in effect of an agreement;
substantia); 2. The mistake must be Mutual; and
3. Mistake as to the conditions of the thing, provided 3. The real purpose of the parties must have been
such conditions have principally moved one or Frustrated (CIVIL CODE, Art. 1334).
both parties to enter into the contract; and
4. Mistake as to the quantity of the thing (error in BURDEN OF PROVING DEFENSE OF
quantitate), provided that the extent or dimension SUFFICIENT UNDERSTANDING
of the thing was one of the principal reasons of There is no mistake if the party alleging it knew the
one or both of the parties for entering into the doubt, contingency or risk affecting the object of the
contract. contract (CIVIL CODE, Art. 1333).

MISTAKES WHICH DO NOT IN ANY The obligation to show that the terms of the contract
MANNER AFFECT THE VALIDITY OF THE had been fully explained to the party who is unable to
CONTRACT read or understand the language of the contract,
when fraud or mistake is alleged, devolves on the
1. Error with respect to accidental qualities of the party seeking to enforce it (CIVIL CODE, Art. 1332).
object of the contract (e.g. the quality of the
paper of a book, the adjoining owners of a piece For Art. 1332 to apply, it must first be convincingly
of land); established that the illiterate or disadvantaged party
2. Error in the value of the thing (e.g. when a could not read or understand the language in which
person, having forgotten the cost price of the contract was written, or that the contract was left
merchandise, erroneously sells it for less); and unexplained to said party (Dela Cruz v. Dela Cruz,
3. Error which refers, not to the conditions of the G.R. No. 146222, January 15, 2004).
thing, but to accessory matters in the contract
foreign to the determination of the object (4
TOLENTINO, supra at 480).
ILLITERATE WHO SIGNS A CONTRACT
IS PRESUMED TO KNOW ITS CONTENTS
ERROR IN QUANTITATE The rule that one who signs a contract is presumed
It is important that this class of mistake should be to know its contents has been applied even to
distinguished from a mistake of account or contracts of illiterate persons on the ground that if
calculation. In the first, there is a real mistake as to such persons are unable to read, they are negligent
the extent of the object of the contract; in the second, if they fail to have the contract read to them (Diampoc
there is only an apparent mistake, a mere mistake in v. Buenaventura, G.R. No. 200383; March 19, 2018).
mathematical computation. As a consequence, in the
first, the contract is voidable; in the second, it is not It is a well-settled principle that the law will not relieve
(JURADO, Obligations and Contracts, supra at 430). parties from the effects of an unwise, foolish or
disastrous agreement they entered into with all the
required formalities and with full awareness of what
ERROR IN PERSONA they were doing (Diampoc v. Buenaventura, G.R.
This kind of mistake or error may refer either to the No. 200383; March 19, 2018).
name or to the identity or to the qualification of a
person. VIOLENCE
When in order to wrest consent, serious or irresistible
force is employed (CIVIL CODE, Art. 1335).
 the other to proceed against him through the courts,
REQUISITES FOR EXISTENCE OF the contract would still be perfectly valid and not
VIOLENCE SUFFICIENT TO VITIATE voidable (JURADO, Obligations and Contracts, supra
at 441).
CONSENT: (SD)
1. The force employed to wrest consent must be The intimidation that will annul a contract has to do
Serious or irresistible; and with the evil or harm arising from an unlawful act. The
2. Must be the Determining cause for the party upon fear in itself does not justify the annulment of the
whom it is employed in entering into the contract contract, unless such fear was induced by a
(JURADO, Obligations and Contracts, supra at threatened wrong (4 TOLENTINO, supra at 491-492).
436).
REVERENTIAL FEAR
INTIMIDATION If a contract is signed merely because of “fear of
There is intimidation when one of the contracting displeasing persons to whom obedience and respect
parties is compelled by a reasonable and well- are due,” the contract is still valid, for by itself,
grounded fear of an imminent and grave evil upon his reverential fear is not wrong (4 PARAS, supra at 639).
person or property, or upon the person or property of
his spouse, descendants or ascendants, to give his EXCEPTION: If in addition to such fear of causing
consent (CIVIL CODE, Art. 1335). displeasure, there is an imposition upon the will, then
the consent will be vitiated (4 TOLENTINO, supra at
REQUISITES FOR EXISTENCE OF 498).
INTIMIDATION SUFFICIENT TO VITIATE
CONSENT: (CIRUP) NOTE: Consent given through intimidation must not
be confused with consent given reluctantly and even
1. One party is Compelled to give his consent by a
against good sense and judgment. It is clear that one
reasonable and well-grounded fear of an evil;
acts as voluntarily and independently in the eyes of
2. The evil must be Imminent and grave;
the law when he acts reluctantly and with hesitation
3. It is the Reason why he enters the contract;
as when he acts spontaneously and joyously
4. The evil must be Unjust (JURADO, Obligations
(JURADO, Obligations and Contracts, supra at 437
and Contracts, supra at 436); and
citing Vales v. Villa, G.R. No. 10028, December 16,
5. The evil must be upon his Person or property, or
1916).
that of his spouse, descendants, or ascendants
(DE LEON, Obligations and Contracts, supra at
566). VIOLENCE V. INTIMIDATION
VIOLENCE INTIMIDATION
FACTORS THAT MAY BE CONSIDERED
IN DETERMINING INTIMIDATION Refers to physical Refers to moral
compulsion compulsion
To determine the degree of intimidation, the age, sex
and condition of the person shall be borne in mind External or prevents the Internal or induces the
(CIVIL CODE, Art. 1335, par. 3). will to manifest itself performance of an act

It refers principally to the person intimidated. By (JURADO, Obligations and Contracts, supra at 435).
condition here is meant not only the resolute or weak
character of the person intimidated, but also his other VIOLENCE NEED NOT COME FROM
circumstances, such as his capacity or culture, which PARTIES
permits him to appreciate whether or not there is an Violence or intimidation shall annul the obligation,
imminent danger, his position, by which he can although it may have been employed by a third
determine whether or not it gives him a chance to person who did not take part in the contract (CIVIL
thwart the danger (JURADO, Obligations and CODE, Art. 1336).
Contracts, supra at 441).
UNDUE INFLUENCE
NOTICE OR WARNING OF JUST ACTION When a person takes improper advantage of his
NOT INTIMIDATION power over the will of another, depriving the latter of
A threat to enforce one’s claim through competent a reasonable freedom of choice (CIVIL CODE, Art.
authority, if the claim is just or legal, does not vitiate 1337).
consent. (CIVIL CODE, Art. 1335, par. 4).

Even if it can be established that the reason or motive

of a party in entering into a contract was the threat of
REQUISITES FOR EXISTENCE OF interest or ill-will that partakes of the nature of fraud
UNDUE INFLUENCE SUFFICIENT TO (Cathay Pacific, Ltd. v. Vasquez, G.R. No. 150843,
March 14, 2003).
VITIATE CONSENT: (IPD)
1. Improper advantage; INSIDIOUS WORDS AND
2. Power over the will of another; and
3. Deprivation of the latter’s will of a reasonable MACHINATIONS
freedom of choice (JURADO, Obligations and Constitutes deceit, including false promises,
Contracts, supra at 443). exaggeration of hopes or benefits, abuse of
confidence, fictitious names, qualifications or
NOTE: Undue influence must be distinguished from authority (4 TOLENTINO, supra at 505).
intimidation, in that in intimidation there must be an
unlawful or unjust act which threatens, and which REQUISITES OF FRAUD UNDER
causes consent to be given, while in undue influence, ARTICLE 1338: (BE-SIN)
there need not be an unjust or unlawful act (4 1. It must be made in Bad faith, i.e., with knowledge
TOLENTINO, supra at 501). of its falsity (4 TOLENTINO, supra at 445-446);
2. One party must have Employed fraud or insidious
Test of Undue Influence: Whether or not the words or machinations;
influence exerted has so overpowered or subjugated 3. It must have been Serious;
the mind of a contracting party as to destroy his free 4. It Induced the other party to enter into a contract;
agency, making him express the will of another rather and
than his own (JURADO, Obligations and Contracts, 5. It must have been employed by one contracting
supra at 444 citing Coso v. Fernandez Deza, G.R. party upon the other and Not employed by both
No. L-16763, December 22, 1921). contracting parties or by third persons.
NOTE: By analogy, undue influence employed by a
third person may annul the contract (4 TOLENTINO,
FRAUD NOT PRESUMED
supra at 503 citing Commission Memorandum to Bad faith and fraud are allegations of fact that
Joint Congressional Committee on Codification, demand clear and convincing proof. They are serious
March 8, 1951). accusations that can be so conveniently and casually
invoked, and that is why they are never presumed
FRAUD IN CONTRACTS (Cathay Pacific Airways, Ltd., v. Sps. Vazquez, G.R.
No. 150843, March 14, 2003; DPWH v. Quica, G.R.
When, through insidious words or machinations of No. 183444, February 08, 2012).
one of the contracting parties, the other is induced to
enter into a contract which, without them, he would
not have agreed to (CIVIL CODE, Art. 1338).
LEGAL EXAMPLES AND
ILLUSTRATIONS OF FRAUD
Fraud is deemed to comprise anything calculated to 1. Fraud by concealment
deceive, including all acts, omissions, and Failure to disclose facts, when there is a duty to
concealment involving a breach of legal or equitable reveal them, constitutes fraud (CIVIL CODE, Art.
duty, trust, or confidence justly reposed, resulting in 1339).
damage to another, or by which an undue and
unconscientious advantage is taken of another A neglect or failure to communicate that which a
(Information Technology Foundation of the party to a contract knows and ought to
Philippines v. Commission on Elections, G.R. No. communicate constitutes concealment. In this
159139, June 6, 2017). case, concealment is equivalent to
misrepresentation (INSURANCE CODE, Sec.
MALICIOUS INTENT IS BASIS OF 26).
LIABILITY FOR FRAUD
NOTE: Silence or concealment by itself does not
As a ground for damages, malice or dishonesty is constitute fraud. The concealment contemplated
implied. It is the element of intent and not the harm in Article 1339 presupposes a purpose or design
done (JURADO, Obligations and Contracts, supra at to hide facts which the other party ought to know
64). (DE LEON, Obligations and Contracts, supra at
641).
FRAUD SYNONYMOUS WITH BAD FAITH
Bad faith does not simply connote bad judgment or The injured party is entitled to cancel or annul a
negligence; it imports a dishonest purpose or some contract whether the failure to disclose the
moral obliquity and conscious doing of a wrong, a material facts is intentional or unintentional as
breach of a known duty through some motive or long as there is a duty to reveal or disclose them
 or according to good faith such disclosure should WHEN MISREPRESENTATION NOT
be made and the other party is misled or FRAUD
deceived in entering into the contract. If the
failure is unintentional, the basis of the action for Misrepresentation made in good faith is not
annulment is not fraud but mistake or error (CIVIL fraudulent but may constitute error (CIVIL CODE, Art.
CODE, Art. 1343). 1343).
MUTUAL FRAUD
If unintentional and there is no duty to make the When both parties use fraud reciprocally, neither one
disclosure, the parties are bound by their contract has an action against the other, and neither party can
(Id.). ask for the annulment of the contract (DE LEON,
Obligations and Contracts, supra at 651 citing Valdez
2. Principle of Tolerated Fraud (Dolus v. Sibal, G.R. No. L-26278, August 4, 1927).
Bonus)
The usual exaggerations in trade, when the other DISTINCTION OF FRAUD IN CONTRACTS
party had an opportunity to know the facts, are There are two types of fraud contemplated in the
not in themselves fraudulent (CIVIL CODE, Art. performance of contracts: dolo incidente or
1340). incidental fraud and dolo causante or fraud serious
enough to render a contract voidable (Tankeh v.
This is known as “tolerated fraud” which includes Development Bank of the Philippines, G.R. No.
minimizing the defects of the thing, exaggerating 171428, November 11, 2013).
its good qualities, and giving it qualities that it
does not have. They do not affect the validity of DOLO INCIDENTE V. DOLO CAUSANTE
the contract, so long as they do not go to the
extent of malice or bad faith (4 TOLENTINO, DOLO INCIDENTE DOLO CAUSANTE
supra at 510).
As to Source
Dealer’s talk or trader’s talk are representations
Referred to in Article Referred to in Article
which do not appear on the face of the contract
1344. 1338.
and these do not bind either party (DE LEON,
Obligations and Contracts, supra at 582; Puyat v. As to Character
Arce Amusement Co., G.R. No. L-47538, June
20, 1941; Philippine Steel Coating Corp. v. Not serious in character Deceptions or
Quinones, G.R. No. 194533, April 19, 2017). and without which the misrepresentations of a
other party would still serious character
3. Expression of an Opinion have entered into the employed by one party
A mere expression of an opinion does not signify contract. and without which the
fraud unless made by an expert and the other other party would not
party relied on the former’s special knowledge have entered into the
(CIVIL CODE, Art. 1341). contract.

An opinion of an expert is like a statement of a As to Cause

fact, and if false, may be considered a fraud
giving rise to annulment (4 TOLENTINO, supra at Only to some particular The essential cause of
511). or accident of the the consent.
obligation.
4. Fraud by Third Person
As to Effect
Fraud by a third person does not vitiate consent
and merely gives rise to an action for damages Person employing it Nullity of the contract
by the party injured against such third person must pay damages. and the indemnification
unless: of damages.
1. It has created a substantial mistake and the
same is mutual (CIVIL CODE, Art. 1342). (Geraldez v. Court of Appeals, G.R. No. 108253,
2. A third person makes the misrepresentation February 23, 1994).
with the complicity, or at least with the
knowledge but without the objection, of the SOME EXAMPLES OF WHAT
contracting party who is favored (JURADO, CONSTITUTE DOLO CAUSANTE OR
Obligations and Contracts, supra at 449). CAUSAL FRAUD:
1. When the seller, who had no intention to part with
her property, was "tricked into believing" that
 what she signed were papers pertinent to her QUANTUM OF EVIDENCE TO PROVE
application for the reconstitution of her burned THE EXISTENCE OF FRAUD AND THE
certificate of title, not a deed of sale;
2. When the signature of the authorized corporate LIABILITY OF THE PARTIES
officer was forged; or In order to constitute fraud that provides basis to
3. When the seller was seriously ill, and died a week annul contracts, it must fulfill two conditions:
after signing the deed of sale raising doubts on 1. First, the fraud must be dolo causante or it must
whether the seller could have read, or fully be fraud in obtaining the consent of the party.
understood, the contents of the documents he
signed or of the consequences of his act In order for the deceit to be considered serious, it
(Spouses Carmen S. Tongson and Jose C. is necessary and essential to obtain the consent
Tongson, et al., v. Emergency Pawnshop Bula, of the party imputing fraud. To determine whether
Inc., G.R. No. 167874, January 15, 2010). a person may be sufficiently deceived, the
personal conditions and other factual
circumstances need to be considered.
PRETENDING THAT ONE HAD THE
EXCLUSIVE FRANCHISE AND 2. Second, this fraud must be proven by clear and
PROMISING TO TRANSFER IT TO GET convincing evidence (Tankeh v. Development
THE OTHER PARTY'S CONSENT IS Bank of the Philippines, G.R. No. 171428,
DOLO INCIDENTE November 11, 2013).
Plaintiff Charles Woodhouse entered into a written
agreement with the defendant Fortunato Halili to SIMULATION OF CONTRACTS
organize a partnership for the bottling and distribution It is the declaration of a fictitious will, deliberately
of soft drinks. However, the partnership did not come made by agreement of the parties, in order to
into fruition, and the plaintiff filed a Complaint in order produce, for purposes of deception, the appearance
to execute the partnership. The defendant filed a of a juridical act which does not exist or is different
Counterclaim, alleging that the plaintiff had defrauded from that which was really executed (4 TOLENTINO,
him because the latter was not actually the owner of supra at 516).
the franchise of a soft drink bottling operation. Thus,
defendant sought the nullification of the contract to The main characteristic of an absolute simulation is
enter into the partnership. that the apparent contract is not really desired or
intended to produce legal effect or in any way alter
It was concluded that plaintiff did actually represent the juridical situation of the parties. As a result, an
to defendant that he was the holder of the exclusive absolutely simulated or fictitious contract is void, and
franchise. The defendant was made to believe, and the parties may recover from each other what they
he actually believed, that plaintiff had the exclusive may have given under the contract (Tanchuling v.
franchise. The record abounds with circumstances Cantela, G.R. No. 209284; November 10, 2015).
indicative that the fact that the principal consideration,
the main cause that induced defendant to enter into Under Article 1345 of the CIVIL CODE, simulation of
the partnership agreement with plaintiff, was the a contract may be absolute, when the parties do not
ability of plaintiff to get the exclusive franchise to intend to be bound at all, or relative, when the parties
bottle and distribute for the defendant or for the conceal their true agreement. The former is known as
partnership. The defendant was, therefore, led to the contracto simulado while the latter is known as
belief that plaintiff had the exclusive franchise, but contracto disimulado. An absolutely simulated or
that the same was to be secured for or transferred to fictitious contract is void while a relatively simulated
the partnership. contract when it does not prejudice a third person and
is not intended for any purpose contrary to law,
Thus, while the representation that plaintiff had the morals, good customs, public order or public policy
exclusive franchise did not vitiate defendant's binds the parties to their real agreement. Here, in
consent to the contract, it was used by plaintiff to get executing the Deed of Assignment, Ferrochrome
from defendant a share of 30 percent of the net Philippines, Inc. (FPI)'s intention was not to transfer
profits; in other words, by pretending that he had the absolutely the assigned assets to G Holdings, Inc. in
exclusive franchise and promising to transfer it to payment of FPI's obligations. It did not really intend to
defendant, he obtained the consent of the latter to divest itself of its title and control of the assigned
give him (plaintiff) a big slice in the net profits. This is properties (G Holdings v. Cagayan Electric Power
the dolo incidente defined in article 1270 of the and Light Company Co. (CEPALCO), G.R. No.
Spanish Civil Code, because it was used to get the 226213, September 27, 2017).
other party's consent to a big share in the profits, an
incidental matter in the agreement (Woodhouse v.
Halili, G.R. No. L-4811, July 31, 1953).
REQUISITES: (DAP) REQUISITES OF VALID CONTRACTUAL
1. A Deliberate declaration contrary to the will of the OBJECT: (CLRT-D)
parties; 1. Must be within the Commerce of man (CIVIL
2. Agreement of the parties to the apparently valid CODE, Art. 1347);
act; and 2. Should be Licit (CIVIL CODE, Art. 1347);
3. The Purpose is to deceive or to hide from third 3. Should be Real or possible (CIVIL CODE, Art.
persons (Loyola v. CA, G.R. No. 115734, 1348);
February 23, 2000). 4. Should be Transmissible (CIVIL CODE, Art.
1347);
ABSOLUTE V. RELATIVE SIMULATION 5. Should be Determinate, or at least possible of
determination as to its kind (CIVIL CODE, Art.
ABSOLUTE RELATIVE
1349).
(SIMULADOS) (DISIMULADOS)

As to Intention to be Bound ALL THINGS MAY GENERALLY BE

SUBJECT OF CONTRACTS
Parties do not intend to Parties have an All things or services may be the object of contracts.
be bound by the agreement which they This includes future things or rights which do not
contract at all. conceal under the guise belong to the obligor when the contract was made
of another contract(4 (CIVIL CODE, Art. 1347).
TOLENTINO, supra at
516) As a general rule, all rights may be the object of a
contract. The exceptions are when they are
As to Binding Effect
intransmissible by their nature, or by stipulation, or by
Void (JURADO, Binds the parties to their provision of law (CIVIL CODE, Art. 1311, par. 1).
Obligations and real agreement, when it
Contracts, supra at does not prejudice a third INVALID OBJECTS OF CONTRACTS:
454). person and is not (OIF-SIN)
intended for any purpose 1. Things Outside the commerce of men (CIVIL
contrary to law, morals, CODE, Art. 1347);
good customs, public 2. Intransmissible rights (CIVIL CODE, Art 1347);
order or public 3. Future inheritance;
policy(CIVIL CODE, Art. 4. Services contrary to law, morals, good customs,
1346). public order or public policy (CIVIL CODE, Art.
1306);
THIRD PERSON ACTING IN GOOD FAITH 5. Impossible things or services; and
6. Objects Not possible of determination as to their
With respect to a third person acting in good faith, the kind.
apparent contract must be considered as the true
contract. The declaration that the contract is NOTE: In order that a thing, right or service may be
simulated does not prejudice him (4 TOLENTINO, the object of a contract, it should be in existence at
supra at 519). the moment of the celebration of the contract, or at
least, it can exist subsequently or in the future (4
TOLENTINO, supra at 521).

OBJECT OF Examples:
CONTRACTS Things of public ownership such
Outside the as sidewalks, public places,
Commerce of bridges, streets, etc.; things that
Men are common to everybody such
OBJECT as air, sunlight, rain
The thing, right or service which is the subject matter
of the obligation arising from the contract (JURADO, Prohibited drugs and all illicit
Obligations and Contracts, supra at 456). objects; to kill a person, etc.
Impossible,
(illicit things or services are also
Physically or
outside the commerce of men.);
Legally
to get soil from planet Jupiter; to
construct a building in one day
 CIVIL CODE relating to testamentary succession
All the cavans of rice in a
(FC, Art. 130); and
warehouse; all the eggs in a
Determinable 2. A person may make a partition of his estate by an
basket; my land with the
Things act inter vivos, provided that the legitime of
smallest area; the land at the
compulsory heirs is not prejudiced (CIVIL CODE,
corner of a particular street
Art. 1080).
Things to be manufactured,
raised, or acquired after the IMPOSSIBLE THINGS OR SERVICES
perfection of the contract such Impossible things or services cannot be the object of
as wine that a vineyard is contracts (CIVIL CODE, Art. 1348).
expected to produce; wool that
Future Things
shall thereafter grow upon a KINDS OF IMPOSSIBILITY
or Rights
sheep; rice to be harvested next
1. Absolute or objective
harvesting season; milk that a
– when nobody can perform the service. It
cow may yield; eggs that hens
nullifies the contract; or
may lay; young animals not yet
in existence, etc.
2. Relative or subjective
Political rights such as the right – when due to the special conditions or
to vote; family, marital, and qualifications of the debtor, it cannot be
Intransmissible performed. If temporary, it does not nullify the
parental rights; right to public
Rights contract (4 TOLENTINO, supra at 526).
office, or to run for public office,
etc.
(DE LEON, Obligations and Contracts, supra at 599).
PARTIAL IMPOSSIBILITY
If the thing is partly possible and partly impossible,
the effect will depend upon the divisibility of the thing.
FUTURE THINGS If it is indivisible, by its nature or by the intention of
A future thing may be the object of a contract. Such the parties, there is no contract; the consent would be
contract may be either be: wanting. But if the thing is divisible, then the contract
1. Conditional is valid to the extent possible (4 TOLENTINO, supra
– if its efficacy should depend upon the future at 527).
existence of the thing (4 TOLENTINO, supra at
521). DIFFICULTY OF PERFORMANCE
A showing of mere inconvenience, unexpected
2. Aleatory impediments, or increased expenses is not enough to
– if one of the contracting parties should bear the
relieve a party of the obligation (JURADO,
risk that the thing will never come into existence
Obligations and Contracts, supra at 294; De Castro
(4 TOLENTINO, supra at 522).
v. Longa, G.R. No. L-2152-53, July 31, 1951).
EXCEPTION: No contract may be entered into with
The difficulty of performance should be such that the
respect to future inheritance except in cases
party seeking to be released from a contractual
expressly authorized by law (CIVIL CODE, Art. 1347,
obligation would be placed at a disadvantage by the
par. 2).
unforeseen event. Mere inconvenience, unexpected
impediments, increased expenses, or even pecuniary
ELEMENTS OF FUTURE INHERITANCE: inability to fulfil an engagement, will not relieve the
(OPE) obligor from an undertaking that it has knowingly and
1. The succession has not yet been Opened; freely contracted (Sps. Poon v. Prime Savings Bank,
2. The object of the contract forms Part of the G.R.No.183794, June 13, 2016).
inheritance; and
3. The promissor has a mere Expectancy of a right QUANTITY SHOULD BE DETERMINATE
which is purely hereditary in nature (J.L.T. Agro AS TO ITS KIND OR SPECIES
Inc. v. Balansag, G.R. No. 141882. March 11,
The fact that the quantity is not determinate shall not
2005).
be an obstacle to the existence of the contract,
provided it is possible to determine the same, without
EXCEPTIONS TO THE EXCEPTION
the need of a new contract between the parties (CIVIL
1. Future spouses may give or donate to each other
CODE, Art. 1349).
in their marriage settlement their future property
to take effect upon the death of the donor and to
The object of a contract, in order to be considered as
the extent laid down by the provisions of the
“certain,” need not specify such object with absolute
certainty as long as it is determinable (Domingo CAUSE V. MOTIVE
Realty v. CA, G.R. No. 126326, January 26, 2007).
CAUSE MOTIVE

As to Proximity
CAUSE OF CONTRACTS Direct and most Indirect/particular or
proximate/essential remote reason.
reason of a contract.

CAUSE As to Characteristic of Reason

It is the immediate, direct or most proximate reason
Objective or juridical Psychological, individual
which explains and justifies the creation of an
reason for the existence or purely personal
obligation through the will of the contracting parties
of a contract. reason.
(JURADO, Obligations and Contracts, supra at 464).
As to Contracting Parties
ESSENTIAL REQUISITES OF CAUSE:
(ELT) Always the same for Differs for each
1. Existing at the time of the celebration of the each contracting party. contracting party.
contract
As to Effect in the Validity of Contract
2. Licit or lawful; and
3. True (JURADO, Obligations and Contracts, Its legality affects the Its legality does not affect
supra at 472). existence or validity of the existence or validity
the contract. of contract.
NOTE: A promise made by one party, if made in
accordance with the forms required by law, may be a (4 TOLENTINO, supra at 466).
good cause or consideration for a promise made by
the other party (4 TOLENTINO, supra at 532). NOTE: Motive becomes causa when it predetermines
the purpose of the contract (4 TOLENTINO, supra at
CAUSE V. OBJECT 466).

CAUSE OBJECT CAUSE IN DIFFERENT CONTRACTS

As to Remuneratory Contracts CAUSE

The service or benefit The thing which is given For each contracting party, the
which is remunerated in remuneration prestation or promise of a thing or
service by the other;
As to Gratuitous Contracts NOTE: A promise made by one
party may be a sufficient cause for
The liberality of the The thing which is given Onerous a promise made by another party.
donor or benefactor or donated Contracts It is not, therefore, necessary that
the cause or consideration should
As to the Thing pass from one party to the other
Prestation or promise of The thing or service itself at the time of the execution of the
a thing or service by the contract (JURADO, Obligations
other and Contracts, supra at 468).

As to Contracting Parties The service or benefit which is

remunerated.
Different with respect of May be the same for both
each party the parties NOTE: Remuneratory contract is
one in which one of the
(4 TOLENTINO, supra at 464-465). Remuneratory
contracting parties remunerates
Contracts
or compensates the service or
benefit rendered or given by the
other party, although such service
or benefit does not constitute a
demandable debt (Id. at 471).
 NOTE: The presumption that a contract has sufficient
Gratuitous Mere liberality of the benefactor
consideration cannot be overthrown by a mere
Contracts (Id. at 472).
assertion that it has no consideration. To overcome
Accessory Same as that of the principal the presumption, the alleged lack of consideration
Contracts contract (Id. at 469). must be shown by preponderance of evidence. The
burden to prove lack of consideration rests upon
(CIVIL CODE, Arts. 1350 & 2052). whoever alleges it (Mendoza v. Sps. Palugod, G.R.
No. 220517, June 20, 2018).
MORAL OBLIGATION AS CAUSE
Where the moral obligation arises wholly from ethical
considerations, unconnected with any civil FORM OF CONTRACTS
obligations, it cannot constitute a sufficient cause or
consideration to support an onerous contract (ARTS. 1356-1358)
(JURADO, Obligations and Contracts, supra at 469;
see Fisher v. Robb, G.R. No. 46274, November 2,
1939).
FORM OF CONTRACTS
Where such moral obligation is based upon a Contracts shall be obligatory, in whatever form they
previous civil obligation which has already been may have been entered into, provided all the
barred by the statute of limitations at the time when essential requisites for their validity are present
the contract is entered into, it constitutes a sufficient (CIVIL CODE, Art. 1356).
cause or consideration to support a contract, it is then
already a natural obligation (Id. at 469-470). NOTE: Art. 1356 retained the “Spiritual System” of
the Spanish Code by virtue of which the law looks
EFFECTS OF LACK, ILLEGALITY, more at the spirit rather than the form of contracts
(JURADO, Obligations and Contracts, supra at 479).
FALSITY, OR INADEQUACY OF CAUSE
1. Total lack or absence of cause – the contract
confers no right and produces no legal effect
CONSENT IS GENERALLY SUFFICIENT
(CIVIL CODE, Art. 1352). FOR VALIDITY, ENFORCEABILITY AND
EFFECTIVITY
NOTE: Even if the cause is not stated in the A contract may be (1) parol or oral, or (2) in writing,
contract, it is presumed that it exists and is lawful, or (2) partly oral and partly in writing. If in writing, it
unless the debtor proves the contrary (CIVIL may be in a public or a private instrument.
CODE, Art. 1354)
A contract need not be contained in a single writing.
2. Illegal/Unlawful cause – the contract is null and It may be collected from different writings which do
void (CIVIL CODE, Art. 1409 (1)). not conflict with each other and which when
connected, show the parties, subject matter, terms
3. False cause – the contract is void unless it should and consideration, as in contracts entered into by
be proved that it be founded upon another cause correspondence (DE LEON, Obligations and
which is true and lawful (CIVIL CODE, Art. 1353). Contracts, supra at 634).

4. Inadequacy of cause/lesion – the contract is IMPLIED-IN-FACT CONTRACT

valid. However, under certain conditions, it is
One implied from facts and circumstances showing a
rescissible under Article 1381(1).
mutual intention to contract. It arises where the
intention of the parties is not expressed but
Even if the consideration for the contract is only
manifested by conduct and not by direct or explicit
P1.00, it will not render the contract void,
words between parties but is to be deduced from
because it is the absence of consideration, not
conduct of the parties, language used, or things done
mere inadequacy which will result in a void
by them, or other pertinent circumstances attending
contract (Carantes v. CA, G.R. No. L-33360, April
the transaction (UP v. Philab Industries, Inc., G.R.
25, 1977).
No. 152411, September 29, 2004).
PRESUMPTION OF LAWFUL CAUSE EXCEPTIONS TO GENERAL RULE:
When the cause is not stated, it shall be presumed to 1. When the law requires that the contract be in a
be in existence and lawful unless proof to the contrary certain form to be valid (CIVIL CODE, Art. 1356);
is shown (CIVIL CODE, Art.1354). 2. When law requires that the contract be in a
certain form to be enforceable (CIVIL CODE, Art.
1403); and
3. When required to make the contract effective as appearing or which should appear in a public
against third parties (CIVIL CODE, Art. 1357- document, or should prejudice a third person
1358). (CIVIL CODE, Art. 1358(3)); and
d. The cession of actions or rights proceeding
CONTRACTS WHICH BY LAW MUST from an act appearing in a public document
APPEAR IN WRITING (CIVIL CODE, Art. 1358(4)).
1. For Validity 3. To Bind Third Persons
a. Wills (CIVIL CODE, Art 804); a. Assignment (CIVIL CODE, Art. 1625);
b. Stipulation limiting Common carrier’s duty of b. Sale/transfer of large cattle (Anti-Cattle
extraordinary diligence to ordinary diligence Rustling Law of 1974, P.D. No. 533);
(CIVIL CODE, Art. 1744); c. Matters required to be registered and
c. Donation of personal property whose value annotated on a Certificate of Title to Land
exceeds P5,000 (CIVIL CODE, Art. 748); (P.D. No. 1529).
d. Antichresis (CIVIL CODE, Art. 2134);
e. Sale of a piece of Land or any interest therein
through an agent (CIVIL CODE, Art. 1874); ACTION FOR EXECUTION OF FORMAL
f. Agreements regarding payment of Interest in INSTRUMENT DOES NOT CURE
contracts of loan (CIVIL CODE, Art. 1956); INVALIDITY
g. Donation propter nuptias (FC, Art. 82); and If the law requires a document or other special form,
h. Sale of transfer of large cattle (P.D. No. 533, as in the acts and contracts enumerated in the
August 8, 1974). following article, the contracting parties may compel
each other to observe that form, once the contract
2. For Enforceability has been perfected. This right may be exercised
a. An agreement that by its terms is not to be simultaneously with the action upon the contract.
performed within a year from the making (CIVIL CODE, Art. 1357).
thereof;
b. A contract of guarantee NOTE: Because Article 1357 presupposes the
c. A contract propter nuptias execution of a memorandum of a contract already
d. Sale of personal property worth more than perfected, Article 1357 is not applicable to contracts
P500 who require certain formalities for their validity.
e. Sale of real property
f. A lease for a period longer than one year SIGNING OF INSTRUMENTS
g. A representation as to the credit of a third
A contract may be encompassed in several
person.
instruments even though every instrument is not
signed by the parties, since it is sufficient if the
CONTRACTS WHICH MUST APPEAR IN A unsigned instruments are clearly identified or referred
PUBLIC DOCUMENT to and made part of the signed instruments (BF
1. For Validity Corporation v. CA, G.R. No. 120105, March 27,
a. Donation of immovable properties (CIVIL 1998).
CODE, Art. 749);
b. Donation of personal property, the value of ELECTRONIC CONTRACTS
which exceeds P5,000 (CIVIL CODE, Art. The formal requirements to make contracts effective
748); as against third persons and to establish the
c. Partnership where immovable property or existence of a contract are deemed complied with,
real rights are contributed to the common provided that the electronic document is unaltered
fund (CIVIL CODE, Arts. 1771 &1773). and can be authenticated as to be usable for future
reference (Electronic Commerce of 2000, R.A. No.
2. For Efficacy and Convenience 8792, sec. 7 (a)).
a. Acts and contracts which have for their
object, creation, transmission, modification PROBATIVE VALUE OF PUBLIC
or extinguishment of real rights over
DOCUMENTS
immovable property, except sale of real
property (CIVIL CODE, Art. 1358(1)); The effect of the notarization of a private document is
b. The cession, repudiation or renunciation of to convert the said document into a public one and
hereditary rights or of those of the conjugal render it admissible in evidence in court without
partnership of gains (CIVIL CODE, Art. further proof of its authenticity and due execution
1358(2)); (Nadayag v. Grageda, A.C. No. 3232, September 27,
c. The power to administer property, or any 1994).
other power which has for its object an act
By law, a notarial document is entitled to full faith and THE PAROL EVIDENCE RULE
credit upon its face.24 It enjoys the presumption of When the terms of an agreement have been reduced
regularity and is a prima facie evidence of the facts to writing, it is considered as containing all the terms
stated therein – which may only be overcome by agreed upon and there can be, between the parties
evidence that is clear, convincing and more than and their successors in interest, no evidence of such
merely preponderant. Without such evidence, the terms other than the contents of the written
presumption must be upheld (Heirs of Sps. Liwagon agreement (RULES OF COURT, Rule 130, Sec. 9,
and Dumalagan v. Heirs of Sps. Liwagon and par. 1).
Liwagon, G.R. No. 193117, November 26, 2014).
The rule excludes extrinsic evidence by which a party
seeks to contradict, vary, add to or subtract from the
terms of a valid agreement or instrument.
REFORMATION OF
INSTRUMENTS EXCEPTION:
1. When there is an intrinsic ambiguity, mistake or
(ARTS. 1359-1369) imperfection in the written agreement;
2. When there is failure of the written agreement to
express the true intent and agreement of the
parties thereto (RULES OF COURT, Rule 130,
REFORMATION OF INSTRUMENTS Sec. 9, par. 2).
The remedy through which a written instrument is
made or construed so as to express or conform to the REFORMATION V. ANNULMENT
real intention of the parties when some error or REFORMATION ANNULMENT
mistake has been committed (JURADO, Obligations
and Contracts, supra at 487). As to Validity of Contract

RATIONALE: It would be unjust to enforce a written Presupposes that there The contract was not
instrument which does not truly reflect the real is a valid contract but validly entered into as
agreement of the parties. In reforming an instrument, the when their minds did not
no new contract is created for the parties, rather, the document/instrument meet or if the consent
reformed instrument establishes the real agreement executed does not was vitiated.
between the parties (Makati Tuscany Condominium express their true
Corporation v. Multi-Realty Development intention.
Corporation, G.R. No. 185530; April 18, 2018).
As to Effect
REQUISITES: (MIMIC)
Gives life to the contract Involves a complete
1. Meeting of the minds of the parties; by making the nullification of the
2. Their true Intention is not expressed in the instrument conform to contract.
instrument; the true intention of the
3. Failure to express true intention is due to Mistake, parties.
fraud, inequitable conduct or accident
4. The facts upon which relief by way of reformation (JURADO, Obligations and Contracts, supra at 488).
of the instrument is sought are put in Issue by the
pleadings; and CAUSES/GROUNDS FOR
5. Clear and convincing proof of mistake, accident, REFORMATION: (MFCIO)
relative simulation, fraud, or inequitable conduct
1. Mutual Mistake
(DE LEON, Obligations and Contracts, supra at
– In case of mutual mistake of the parties (CIVIL
648).
CODE, Art. 1361)
NOTE: However, intentions involve a state of mind,
making them difficult to decipher; therefore, the 2. Fraud
subsequent and contemporaneous acts of the parties – When one party was mistaken and the other
must be presented into evidence to reflect the parties' party acted fraudulently (CIVIL CODE, Art. 1362).
intentions (Makati Tuscany Condominium
Corporation v. Multi-Realty Development 3. Concealment amounting to Fraud
Corporation, G.R. No. 185530; April 18, 2018). – When one party was mistaken, the other knew
or believed that the instrument does not show
their real intent but concealed that fact to the
former (CIVIL CODE, Art. 1363).
 Capital and Management Corp. v. Stalwart
4. In case of Ignorance, lack of skill, Management Services Corp., G.R. No. 157439,
negligence or bad faith on the part of the July 4, 2007).
person drafting the instrument or the
clerk or typist (CIVIL CODE, Art. 1364); and 4. When one of the parties has brought an
action to enforce the instrument, no
5. Equitable Mortgage subsequent reformation can be asked
– When parties agree upon the mortgage of a real (Principle of Estoppel) (CIVIL CODE, Art.
property, but the instrument states that the 1367).
property is sold absolutely or with a right of
repurchase (CIVIL CODE, Art. 1365).

NOTE: Correlate to Article 1605. INTERPRETATION OF

WHO MAY ASK FOR REFORMATION CONTRACTS
1. In case of mutual mistake, the action for (ARTS. 1370-1379)
reformation may be brought by instance of either
party or their successors in interest;
2. In other cases, the action may be brought by the
instance of the injured party or his successors-in- 1. If the terms are clear and no doubt upon the
interest (CIVIL CODE, Art. 1368). intention of the parties, the literal meaning of its
stipulations shall control (CIVIL CODE, Art. 1370,
INSTANCES WHEN THERE CAN BE NO par. 1).
REFORMATION: (SWAE) The contract is the law between the parties and
1. Simple donations inter vivos wherein no when the words of the contract are clear and can
condition is imposed (CIVIL CODE, Art. easily be understood, there is no room for
1366(1)); construction (Olivares and Robles v. Sarmiento,
G.R. No. 158384, June 12, 2008).
REASON: An action to reform an instrument is in
the nature of specific performance and requires a If the terms of a contract are clear and leave no
valuable consideration – an element lacking as doubt upon the contracting parties’ intention,
between donor and donee, and between testator such terms should be applied in their literal
and beneficiary (4 TOLENTINO, supra at 556). meaning (Sps. Dumlao v. Marlon Realty Corp.,
G.R. No. 131491, August 17, 2007).
2. Wills (CIVIL CODE, Art. 1366(2));
2. If words are contrary to the intention, the latter
NOTE: Only imperfect or erroneous descriptions shall prevail over the former (CIVIL CODE, Art.
of persons or property can be corrected, but the 1370, par. 2).
manner in which the testator disposes of his
property cannot be changed by a reformation of Well-settled is the rule that in case of doubt, it is
the instrument (4 TOLENTINO, supra at 556). the intention of the contracting parties that
prevails (Marquez v. Espejo, G.R. No. 168387,
3. When the real Agreement is void (CIVIL August 25, 2010).
CODE, Art.1366(3))
When the true intent and agreement of the parties
NOTE: Upon the reformation of an instrument, is established, it must be given effect and prevail
the general rule is that it relates back to and takes over the bare words of the written contract (4
effect from the time of its original execution as TOLENTINO, supra at 559-560).
between the parties.
3. The contemporaneous and subsequent acts of
If mistake, fraud, inequitable conduct or accident the parties shall be considered (CIVIL CODE, Art.
has prevented a meeting of the minds of the 1371).
parties, the proper remedy is not reformation of
the instrument but annulment of the contract 4. If the terms in a contract are general, they shall
(CIVIL CODE, Art. 1359, par.2). not be understood to comprehend things that are
distinct and different from those which the parties
Expediency and convenience are not grounds for intended (CIVIL CODE, Art. 1372).
the reformation of an instrument (Multi-Ventures
5. If some stipulation should admit of several
meanings, it shall be understood as bearing that RESCISSIBLE
import which is most adequate to render it
effectual (CIVIL CODE, Art. 1373). CONTRACTS
6. Various stipulations shall be interpreted together
(ARTS. 1380-1389)
(CIVIL CODE, Art. 1374).

NOTE: A contract cannot be construed by parts,

RESCISSIBLE CONTRACTS
but its clauses should be interpreted in relation to
one another. The whole contract must be These are contracts which are valid but are defective
interpreted or read together in order to arrive at because of injury or damage to either of the
its true meaning (4 TOLENTINO, supra at 563). contracting parties or to third persons and, as a
consequence thereof, it may be rescinded by means
7. Words with different significations shall be of a proper action for rescission (JURADO,
understood in that which is most in keeping with Obligations and Contracts, supra at 502-503).
the nature and object of the contract (CIVIL
CODE, Art. 1375). CONCEPT OF RESCISSION
Rescission (as contemplated in Articles 1380 to 1389
8. Usage or custom of the place shall be considered of the CIVIL CODE) is a remedy granted by law to the
in the interpretation of the ambiguities of a contracting parties and even to third persons, to
contract and shall fill the omission of stipulations secure the reparation of damages (lesion or
which are ordinarily established (CIVIL CODE, pecuniary damage) caused to them by a contract,
Art. 1376). even if this should be valid, by restoration of things to
their condition at the moment prior to the celebration
9. Interpretation of obscure words or stipulations of the contract (Buenviaje v. Spouses Salonga, G.R.
shall not favor those who caused the obscurity No. 216023, October 5, 2016).
(CIVIL CODE, Art. 1377).
REQUISITES OF RESCISSION:
Rule 123 of the Rules of Court shall likewise be (VLE-P2NR)
observed in the construction of contracts (CIVIL
CODE, Art. 1379). 1. The contract must be Validly agreed upon (CIVIL
CODE, Art. 1380);
NOTE: When an instrument consists partly of 2. There must be Lesion or pecuniary prejudice or
written words and partly of a printed form, and the damage to one of the parties or to a third person
two are inconsistent, the former controls the latter (CIVIL CODE, Art. 1381);
(RULES OF COURT, Rule 130, Sec. 15). 3. The rescission must be based upon a case
Especially provided by law (CIVIL CODE, Art.
1380-1382);
RULES ON SETTLING DOUBTS IN 4. The object of the contract must not legally be in
CONTRACTS the Possession of third persons who did not act
1. Gratuitous Contracts in bad faith (CIVIL CODE, Art. 1385, par. 2);
– when the doubts refer to its incidental 5. The Period for filing the action for rescission must
circumstances, the least transmission of rights not have prescribed. (CIVIL CODE, Art. 1389);
and interests shall prevail (CIVIL CODE, Art. 6. There must be No other legal remedy to obtain
1378). reparation for the damage (CIVIL CODE, Art.
1383); and
2. Onerous Contracts 7. The party asking for rescission must be able to
– the doubt shall be settled in favor of the Return what he is obliged to restore by reason of
greatest reciprocity of interests (CIVIL CODE, the contract (CIVIL CODE, Art. 1385, par. 1).
Art. 1378).
RESCISSION UNDER ART. 1911 ONLY
3. Principal Object APPLIES IN SUBSTANTIAL BREACH
– if the doubts are cast upon the principal object Rescission of a contract will not be permitted for a
of the contract in such a way that it cannot be slight casual breach, but only for such substantial and
known what may have been the intention or will fundamental breach as would defeat the very object
of the parties, the contract shall be null and void of the parties in executing the agreement (Vermen
(CIVIL CODE, Art. 1378). Realty Corp. v. Court of Appeals, G.R. No. 101762,
July 6, 1993).
In order that there may be substantial performance of
an obligation, there must have been an attempt in RESOLUTION FOR
good faith to perform, without any willful or intentional RESCISSION BY
BREACH OF
departure therefrom. The deviation from the REASON OF LESIÓN
STIPULATION (CIVIL
obligation must be slight, and the omission or defect OR DAMAGE
CODE, ART. 1191)
must be technical and unimportant, and must not
pervade the whole or be so material that the object
which the parties intended to accomplish in a As to Party Who May Institute Action
particular manner is not attained. The non-
May be demanded only May be demanded by a
performance of a material part of a contract will
by a party to the third party prejudiced by
prevent the performance from amounting to a
contract. the contract.
substantial compliance (International Hotel Corp. v.
Joaquin, G.R. No. 158361, April 10, 2013). As to Power of the Courts

RESOLUTION FOR BREACH OF May be denied by court Extension of time does

STIPULATION V. RESCISSION BY when there is sufficient not affect the right to ask
REASON OF LESIÓN OR DAMAGE reason to justify the for rescission.
extension of time.
RESOLUTION FOR As to Causes
RESCISSION BY
BREACH OF
REASON OF LESIÓN
STIPULATION (CIVIL Non-performance is the Various reasons of equity
OR DAMAGE
CODE, ART. 1191) only ground for the right are grounds for
to rescission rescission
As to Nature of Action As to Contracts Which May Be Rescinded or
Principal action; Subsidiary action and Resolved
retaliatory action involves partial Applies only to Applies to either
against the other party. resolution. reciprocal obligations reciprocal or unilateral
where one party has obligations and whether
As to Basis failed to comply with the contract has been
what is incumbent upon fully fulfilled or not.
Based on breach of Based on lesion or him.
trust. economic prejudice,
rendering the contract As to Prescriptive Period
rescissible by law. Ten years Four years (CIVIL
.
CODE, Art. 1389)
A subsidiary action based
on injury to the plaintiff’s Similarities
economic interests as
described in Articles 1380 1. Both presuppose contracts validly entered into
and 1381. and existing (this distinguishes rescission from
annulment, in which there is a defect which
vitiates the contract); and
As to Effect
2. Both require mutual restitution when declared
Termination of the Abrogation of the contract
proper.
obligation and release from the beginning and
of the parties from restoration of the parties (Heirs of Sofia Quirong v. Development Bank of the
further obligations from to their relative positions Philippines, G.R. No. 173441 December 3, 2019;
each other. as if no contract has been Congregation of the Religious of the Virgin Mary,
made. et.al., v. Orola, G.R. No. 169790, April 30, 2008).

To declare the contract NOTE: The term “resolution” is based on Art. 1124 of
void at its inception and to the Old Civil Code but the present Code uses the term
put an end to it as though “rescission.”
it never was
CONTRACTS THAT ARE RESCISSIBLE: 5. Person bringing the action must be able to
(GAFILS) return whatever he may be obliged to restore
(CIVIL CODE, Art. 1385, par. 1); and
1. Those which are entered into by Guardians 6. Object of the contract must not be legally in the
whenever the wards whom they represent suffer possession of a third person who did not act in
lesion by more than one-fourth of the value of the bad faith (CIVIL CODE, Art. 1385, par. 2).
things which are the object thereof;
2. Those agreed upon in representation of In rescission by reason of lesion or economic
Absentees, if the latter suffer the lesion stated in prejudice, the cause of action is subordinated to the
the preceding number; existence of that prejudice, because it is the raison
3. Those undertaken in Fraud of creditors when the d'être as well as the measure of the right to rescind.
latter cannot in any other manner collect the Hence, where the defendant makes good the
claims due them; damages caused, the action cannot be maintained or
4. Disposition of Property made in state of continued, as expressly provided in Articles 1383 and
Insolvency whose fulfillment cannot be 1384 (Buenviaje v. Spouses Salonga, G.R. No.
compelled at the time; 216023, October 5, 2016).
5. Those which refer to things under Litigation if
they have been entered into by the defendant
without the knowledge and approval of the ACT OF ADMINISTRATION V. ACT OF
litigants or of competent judicial authority STRICT DOMINION
6. All other contracts Specially declared by law to be The guardian (legal representative) is only authorized
subject to rescission (CIVIL CODE, Art. 1381& to manage the estate of his ward (absentee).
2).
He has no power to dispose of or encumber any part
CONTRACTS CAUSING LESION IN thereof (CIVIL CODE, Arts. 1647 and 1878 (8) and
VIOLATION OF FIDUCIARY DUTY FC, Arts. 96 and 124).
1. Those entered into by guardians where the ward NOTE: A guardian is authorized only to manage the
suffers lesion of more than one-fourth (¼) of the estate of the ward; should he dispose a portion
value of the things which are objects thereof; thereof without authority from the court by way of a
2. Those agreed upon in representation of contract, the same is unenforceable under Art.
absentees, if the latter suffer lesion by more than 1403(1], irrespective of whether there is lesion or not
one-fourth (¼) of the value of the things which are (4 TOLENTINO, supra at 575).
subject thereof (CIVIL CODE, Art. 1381, nos. 1
and 2);
CONTRACTS IN FRAUD OF CREDITORS
Those undertaken in fraud of creditors when the latter
LESION
cannot in any manner claim what are due them (CIVIL
The injury which one of the parties suffers by virtue of CODE, Art. 1381, no. 3);
a contract which is disadvantageous for him. To give
rise to rescission, the lesion must be known or could These are contracts executed with the intention to
have been known at the time of making of the contract prejudice the rights of creditors, and should not be
and not due to circumstances subsequent thereto or confused with those entered into without such
unknown to the parties (4 TOLENTINO, supra at intention, even if, as a consequence thereof, some
574). particular damage may be caused to a creditor (4
TOLENTINO, supra at 575).
REQUISITES OF ACTION FOR
RESCISSION ON GROUND OF LESION DISPOSITION OF PROPERTY IN STATE
1. Contract was entered into by a guardian in OF INSOLVENCY
behalf of his ward or by a legal representative in Payments made in a state of insolvency for
behalf of an absentee (CIVIL CODE, Art. 1381, obligations to whose fulfillment the debtor could not
Nos. 1 and 2); be compelled at the time they were effected are also
2. It was entered into without judicial approval rescissible (CIVIL CODE, Art. 1382).
(CIVIL CODE, Art. 1386);
3. Ward or absentee suffered lesion of more than REASON: Where a debtor is insolvent and is
¼ of the value of the property which is the object indebted to several debtors, a debtor cannot be
of the contract (CIVIL CODE, Art. 1381, Nos. 1 compelled to pay one of them without necessarily
and 2); causing fraud or prejudice to the others. This is
4. There is no other legal means of obtaining because the possibility that the other will be repaid in
reparation for the lesion (CIVIL CODE, Art. the earliest possible time is impaired. There is a
1383);
presumption that the creditors who were paid ahead BADGES OF FRAUD:
of the other creditors intended to defraud the others. 1. The fact of inadequate or fictitious cause or
consideration of the conveyance;
REQUISITES BEFORE A CONTRACT 2. Transfer by a debtor after suit has been begun
ENTERED INTO IN FRAUD OF and while it is pending against him;
CREDITORS MAY BE RESCINDED: 3. Sale on credit by an insolvent debtor;
(CFCP) 4. Evidence of large indebtedness or complete
insolvency
1. There is a Credit existing prior to the celebration 5. Transfer of all or nearly all of debtor’s property by
of the contract; him, especially when he is insolvent or greatly
2. There is Fraud, or at least, the intent to commit embarrassed financially;
fraud to the prejudice of the creditor seeking 6. Transfer between father and son, where others of
rescission; the above circumstances are present;
3. Creditor cannot in any legal manner Collect his 7. Failure of the vendee to take exclusive
credit; and possession of the property sold; and
4. Object of the contract must not be legally in the 8. Gross disparity between the price and the value
Possession of a third person who did not act in of the property
bad faith (JURADO, Obligations and Contracts, 9. At the time of the conveyance, the vendee was
supra at 508). living with the vendor and the former knew that
there was judgment against the latter;
CONTRACTS IN FRAUD OF CREDITORS 10. It was known to the vendee that the vendor had
MAY BE VOID no properties other than that sold to him (Cabaliw
Some contracts entered into to defraud creditors are v. Sadorra, G.R. No. L-25650, June 11, 1975);
VOID and not merely rescissible, such as those 11. The certificate of title covering the lands sold
contemplated by: remained in the name of the vendor who declared
1. Section 4 of Act No. 3952 (Bulks Sales Law), them for taxation purposes (Castro v. Escutin,
2. Section 52 and 58 of R.A. No. 10142 (Financial G.R. No. L-27406, May 31, 1979);
Rehabilitation and Insolvency Act) 12. Where the mortgagor-vendor and mortgagee-
vendee are bosom friends with long history of
TRANSFEREE OF PROPERTY MUST BE trust and intimacy and the element; and
13. Where the seller and the buyer are half-brothers
IN BAD FAITH and the sale was executed and registered about
For a contract to be rescinded for being in fraud of one month after a decision was rendered against
creditors, both contracting parties must be shown to the seller (Nerona v. IAC, G.R. No. L-42505,
have acted maliciously so as to prejudice the December 26, 1984; DE LEON, Obligations and
creditors who were prevented from collecting their Contracts, supra at 733).
claims (Union Bank of the Phils. v. Ong, G.R. No.
152347, June 21, 2006). NOTE: The above enumeration is not an exclusive
list. When clear and unmistakable, badges of fraud
NOTE: The presumptions under Art. 1387 are will serve to destroy the camouflage of validity of a
rebuttable and not conclusive (Buencamino v. contract. Where the sale is fictitious and fraudulent,
Bantug, G.R. No. L-37849, October 5, 1993). the action or defense for the declaration of its
inexistence does not prescribe (Id. at 733).
If the case is NOT one for which the law establishes
a presumption of fraud(CIVIL CODE, Art. 1387), the UNAUTHORIZED CONTRACTS OF
creditor seeking rescission must prove the existence
of such fraud (Lee v. Bangkok Bank Public Company
THINGS UNDER LITIGATION
Limited, G.R. No. 173349, February 9, 2011). Those which refer to things under litigation if they
have been entered into by the defendant without the
knowledge and approval of the litigants or of
PRESUMPTION OF FRAUD
competent judicial authority (CIVIL CODE, Art. 1381,
1. Alienation by gratuitous title if the debtor has not No. 4);
reserved sufficient property to pay all of his debts
contracted before alienation (CIVIL CODE, Art.
1387, par. 1);
REQUISITES:
2. Alienation by onerous title if made by a debtor 1. There is a suit that involves a property; and
against whom some judgment has been 2. The DEFENDANT entered into a contract without
rendered in any instance or some writ of the knowledge and approval of the litigants or of
attachment has been issued (CIVIL CODE, Art. competent judicial authority (JURADO,
1387, par. 2). Obligations and Contracts, supra at 509).
EXAMPLES OF OTHER CONTRACTS the expiration of the period; but if the obligation with
DECLARED BY LAW TO BE SUBJECT TO a period became due after the obligation to the
creditor seeking rescission became due, then the
RESCISSION: latter can rescind the payment (DE LEON,
1. Partition of inheritance where an heir suffers Obligations and Contracts, supra at 510).
lesion of at least one-fourth (¼) of the share to
which he is entitled (CIVIL CODE, Art. 1098); ACCION PAULIANA
2. Deterioration of the thing through the fault of the
debtor, if the creditor chooses to rescind (CIVIL The action to rescind contracts in fraud of creditors is
CODE, Art. 1189, no. 4); known as accion pauliana. Consequently, accion
3. Right of unpaid seller to rescind (CIVIL CODE, pauliana presupposes a judgment and an unsatisfied
Art. 1526, no. 4); execution which cannot exist when the debt is not yet
4. Deterioration of the object of the sale before its demandable at the time the rescissory action is
delivery (CIVIL CODE, Art. 1538); brought (4 TOLENTINO, supra at 576).
5. Sale of real estate with a statement of its area, at
the rate of a certain price for a unit of measure or PARTIES WHO MAY INSTITUTE ACTION:
number, where the vendor failed to deliver the 1. The creditor who is defrauded in rescissory
area stated; the vendee may ask for rescission of actions on ground of fraud, and other person
the contract if the lack of area is not less than authorized to exercise the same in other
one-tenth (1/10) of that stated (CIVIL CODE, rescissory actions;
Art.1539, par. 2); 2. Their representatives;
6. The vendee does not accede to the failure of the 3. Their heirs; and
vendor to deliver what has been stipulated (CIVIL 4. Their creditors by virtue of the subrogatory action
CODE, Art. 1542, par. 2); defined in Art. 1177 of the CIVIL CODE
7. When, through eviction, the vendee loses a part (JURADO, Obligations and Contracts, supra at
of the thing sold of such importance, in relation to 511).
the whole, that he would not have bought it
without said part (CIVIL CODE, Art. 1556, par. 1); NOTE: The action for rescission is subsidiary; it
8. Sale of immovable encumbered with any non- cannot be instituted except when the party suffering
apparent burden or servitude, not mentioned in damage has no other legal means to obtain
the agreement, of such nature that it must be reparation for the same (CIVIL CODE, Art. 1383).
presumed that the vendee would not have Rescission shall be only to the extent necessary to
acquired it had he been aware thereof (CIVIL cover the damages caused (CIVIL CODE, Art. 1384).
CODE, Art. 1560, par. 1);
9. Election of the vendee to withdraw from the EFFECT OF RESCISSION
contract in the cases under Art. 1561, 1562,
1. As to the parties
1564, 1565 and 1566 (CIVIL CODE, Art. 1567);
– mutual restitution of the objects of the contract,
and
together with their fruits and the price with its
10. Rescission by the aggrieved party in a contract of
interest (CIVIL CODE, Art. 1385).
lease when the other party does not comply with
Art. 1654 and 1657 (CIVIL CODE, Art. 1659).
NOTE: This is applicable only to rescissory
actions on the ground of lesion and not to
APPARENT CONFLICT BETWEEN CIVIL rescissory actions on the ground of fraud (DE
CODE ARTICLE 1382 AND ARTICLE LEON, Obligations and Contracts, supra at 514).
1198(1) IF THE OBLIGATION IS SUBJECT
TO A SUSPENSIVE PERIOD When it is no longer possible to return the object
of the contract, an indemnity for damages
Under Article 1382 of the CIVIL CODE, payment
operates as restitution (Coastal Pacific Trading,
made by an insolvent is rescissible. Under Article
Inc. v. Southern Rolling Mills, G.R. No. 118692,
1198(1) of the CIVIL CODE, a debtor can be
July 28, 2006).
compelled to pay by the creditor even before the
expiration of the period since by his insolvency he has
already lost his right to the benefit of such period.
2. As to third persons
a. In bad faith or not in legal possession –
The conflict can easily be resolved by considering the obliged to return; the creditor who is
priority of dates between the two debts. If the prejudiced can run after the third person in
obligation with a period became due before the possession of the thing.
obligation to the creditor seeking the rescission
became due, then the latter cannot rescind the NOTE: It is not necessary that the transferee
payment even if such payment was effected before should have connived with the transferor to
defraud the latter’s creditors. It is enough that
 the transferee knows of the intention of the is vitiated either by lack of legal capacity of one of the
transferor to defraud creditors (4 contracting parties, or by mistake, violence,
TOLENTINO, supra at 594). intimidation, undue influence, or fraud. It is binding
until it is annulled by a competent court (JURADO,
b. In good faith or in legal possession – no Obligations and Contracts, supra at 533).
rescission; however, indemnity for damages
may be demanded from the person causing CHARACTERISTICS OF VOIDABLE
the loss (CIVIL CODE, Art. 1388). CONTRACTS: (VBC3RD)
1. The defect consists of the Vitiation of consent of
EXTENT OF RESCISSION one of the contracting parties;
Rescission shall be only to the extent necessary to 2. They are Binding until annulled;
cover the damages caused (CIVIL CODE, Art. 1384). 3. They are susceptible of Convalidation by
The rescission shall only be to the extent of the ratification or prescription; and
creditor’s unsatisfied credit. The policy of the law is to 4. The defect or voidable character cannot be
preserve or respect the contract, not to extinguish it invoked by 3rd persons (Id. at 531-532).
(DE LEON, Obligations and Contracts, supra at 716).
VOIDABLE OR ANNULLABLE
PRESCRIPTIVE PERIOD FOR ACTION CONTRACTS: (VIMFU-I)
FOR RESCISSION: 1. Those where the consent is vitiated by Mistake,
1. Under Art. 1381, No. 1 Violence, Intimidation, Undue influence, or Fraud
– within 4 years from the time of the termination 2. Those where one of the parties is Incapable of
of the incapacity of the ward giving consent to a contract (CIVIL CODE, Art.
1390).
2. Under Art. 1381, No. 2
– within 4 years from the time the domicile of the NOTE: If both parties are incapable of giving
absentee is known consent, the contract is unenforceable (CIVIL
CODE, Art. 1403(3)).
3. Under Art. 1381 Nos. 3 and 4 as well as
Art. 1382 PROPER ACTION IN COURT
– within 4 years from the time of the discovery of Art. 1390 of the CIVIL CODE refers to a “proper action
fraud (CIVIL CODE, Art. 1389). in court.” The validity of a voidable contract may only
be attacked either by way of a direct action or by way
NOTE: In certain cases of contracts of sale which are of defense via a counterclaim, and not by a special or
specially declared by law to be rescissible, however, affirmative defense (JURADO, Obligations and
the prescriptive period for the commencement of the Contracts, supra at 531).
action is 6 months or even 40 days, counted from the
day of delivery (CIVIL CODE, Arts. 1543, 1571, and INJURY NOT ESSENTIAL
1577).
Even though there are no right to damages between
the contracting parties, the contracts enumerated in
RESCISSION IS NOT ALLOWED WHEN: Art. 1390 are still voidable (Id. at 533).
1. The party who demands rescission cannot return
what he is obliged to restore under the contract MODES TO EXTINGUISH AN ACTION
(CIVIL CODE, Art. 1385, par. 1); and
2. The property is legally in the possession of a third
FOR ANNULMENT:
person who acted in good faith (CIVIL CODE, Art. 1. Prescription (CIVIL CODE, Art. 1391);
1385, par. 2). 2. Ratification (CIVIL CODE, Art. 1392); or
3. Loss of the thing which is the object of the contract
through fraud or fault of the person who is entitled
to institute the action (CIVIL CODE, Art. 1401).
VOIDABLE CONTRACTS PRESCRIPTIVE PERIOD FOR ACTION
(ARTS. 1390-1402) FOR ANNULMENT
1. Contracts entered into by incapacitated
person
VOIDABLE CONTRACTS – within 4 years from the time guardianship
ceases;
Contracts where all of the essential elements for
validity are present, although the element of consent
2. Where consent is vitiated by violence, NOTE: The right to ratify may be exercised by the
intimidation or undue influence guardian of the incapacitated person having such
– within 4 years from the time such violence, right (CIVIL CODE, Art. 1394). Ratification does not
intimidation or undue influence ceases; require the conformity of the contracting party who
has no right to bring an action for annulment (CIVIL
3. Where consent is vitiated by mistake or CODE, Art. 1395).
fraud
– within 4 years from the time of the discovery of WHO MAY INSTITUTE ACTION FOR
such mistake or fraud (CIVIL CODE, Art. 1391). ANNULMENT
An action for annulment may be instituted by all who
NOTE: These periods apply only to the parties to the are thereby obliged principally or subsidiarily, except
contract and not to 3rd persons (4 TOLENTINO, supra the following:
at 599). 1. The party who contracts with an incapacitated
person;
The running of the prescriptive period of 4 years 2. The one who caused that which vitiates the
cannot be interrupted by an extrajudicial demand contract or has chargeable knowledge thereof
made by the party whose consent was vitiated (CIVIL CODE, Art. 1397).
(Miailhe v. CA, G.R. No. 108991, March 20, 2001).
REQUISITES:
Mistrust of the courts and of judicial processes is no
1. Plaintiff must have interest in the contract; and
excuse for their non-observance of the prescriptive
2. The victim and not the party responsible for the
period set down by law (First Philippine Holdings
vice or defect must assert the same (JURADO,
Corporation v. Trans Middle East (Phils.) Equities
Obligations and Contracts, supra at 550).
Inc., G.R. No. 179505, December 4, 2009).
A third person who is prejudiced in his rights with
RATIFICATION respect to one of the contracting parties, and can
The act or means by virtue of which efficacy is given show detriment which would positively result to him
to a contract which suffers from a vice of curable from the contract in which he has no intervention may
nullity (4 TOLENTINO, supra at 600). seek annulment (Teves v. People’s Homesite &
Housing Corp., G.R. No. L-21498, June 27, 1968).
FORMS OF RATIFICATION:
1. Express ratification (CIVIL CODE, Art. 1393); EFFECTS OF ANNULMENT:
1. If contract has not yet been
2. Implied ratification consummated
– there is a tacit ratification if, with knowledge of – parties shall be released from the obligations
the reason which renders the contract voidable arising therefrom;
and such reason having ceased, the person who
has a right to invoke it should execute an act 2. If contract has already been
which necessarily implies an intention to waive consummated
his right (CIVIL CODE, Art. 1393). – rules provided in Art. 1398-1402 shall govern
(JURADO, Obligations and Contracts, supra at
EFFECTS OF RATIFICATION: 552).
1. Extinguishes the action for annulment of a
voidable contract (CIVIL CODE, Art. 1392); OBLIGATION OF MUTUAL RESTITUTION
2. Cleanses the contract of its defects from the
1. Obligation to give
moment it was constituted (CIVIL CODE, Art.
– The parties shall restore to each other things
1396).
which have been the subject matter of the
contract with fruits and the price with interest,
REQUISITES OF RATIFICATION: (VEKD) except in cases provided by law (CIVIL CODE,
1. Contract is tainted with a Vice susceptible of Art. 1398).
being cured;
2. Confirmation is Effected by the person who is EXCEPTION: When the defect of the contract
entitled to do so under the law; consists in the incapacity of one of the contracting
3. It is effected with Knowledge of the vice or defect parties, the incapacitated person is not obliged to
of the contract; and make restitution except insofar as he has been
4. Cause of the nullity or Defect has already benefited by the thing or price received by him
disappeared (JURADO, Obligations and (CIVIL CODE, Art. 1399).
Contracts, supra at 547).
 NOTE: The profit or benefit received by the
incapacitated person, which obliges him to make UNENFORCEABLE
restitution, is not necessarily a material and
permanent increase in fortune, but any prudent CONTRACTS
and beneficial use by the incapacitated of the
thing he received for his necessities, social
(ARTS. 1403-1408)
disposition or discharge of his duties to others (4
TOLENTINO, supra at 610-611).
UNENFORCEABLE CONTRACT
It is presumed, in the absence of proof, that no
such benefit has accrued to the incapacitated Those which cannot be enforced by a proper action
person (JURADO, Obligations and Contracts, in court unless they are ratified, because, either:
supra at 553-554). 1. They are entered into without or in excess of
authority (CIVIL CODE, Arts. 1403, par. 1 and
Art. 1399 cannot be applied to those cases where 1317);
the incapacitated person can still return the thing 2. They do not comply with the Statute of Frauds
which he has received (Id. at 554). (CIVIL CODE, Art. 1403, par. 2); or
3. Both of the contracting parties are incapable of
Innocent third parties are not bound to restore giving consent (CIVIL CODE, Art. 1403, par. 3).
(Peralta v. Heirs of Bernardina Abalon, G.R. No.
183448, June 30, 2014). CHARACTERISTICS OF
UNENFORCEABLE CONTRACTS:
2. Obligation to do or not to do 1. They cannot be enforced by a proper action in
– There will be an apportionment of damages court (CIVIL CODE, Art. 1403);
based on the value of such prestation with 2. They are susceptible of ratification (CIVIL CODE,
corresponding interests (JURADO, Obligations Art. 1403, 1405, 1407, 1371); and
and Contracts, supra at 552-553). 3. They cannot be assailed by third persons (CIVIL
CODE, Art. 1408).
EFFECTS OF FAILURE TO MAKE
RESTITUTION PRINCIPLES UNDER CONTRACTS
Where the thing is lost: ENTERED INTO WITHOUT OR IN EXCESS
1. Due to fault of defendant OF AUTHORITY:
– he shall return the fruits received and the value 1. No one may contract in the name of another
of the thing at the time of loss, with interest from without being authorized by the latter or unless
the same date (CIVIL CODE, Art. 1400); he has a right to represent him. If he is duly
authorized, he must act within the scope of his
2. Due to fault or fraud of plaintiff powers (CIVIL CODE, Arts. 1317 &1881);
– the action for annulment shall be extinguished;
2. A contract entered into in the name of another by
3. Due to fault of the incapacitated one who has no authority or legal representation,
– whether the loss occurred during the plaintiff’s or who has acted beyond his powers, is
incapacity or after he had acquired capacity, the unenforceable (CIVIL CODE, Arts. 1403, par. 1
action for annulment would still be extinguished and 1317); and
in accordance with Art. 1401, par. 1; and
3. However, such contract may be ratified,
4. Due to fortuitous event expressly or impliedly by the person in whose
– contract can still be annulled, but the defendant behalf it has been executed, before it is revoked
can be held liable only for the value of the thing by the other contracting party (CIVIL CODE, Art.
at the time of loss without interest thereon 1317).
(JURADO, Obligations and Contracts, supra at
555-557). CONTRACTS COVERED BY THE
STATUTE OF FRAUDS
In the following cases, an agreement hereafter made
shall be unenforceable by action, unless the same,
or some note or memorandum thereof, be in writing,
and subscribed by the party charged, or by his agent;
evidence thereof, of the agreement cannot be
received without the writing, or a secondary evidence
of its contents: (1PM-GLSR)
1. An agreement that by its terms is not to be This serves as the basis to an action for damages
performed within 1 year from the making thereof; against the party who made the representation, if
the same turns out to be false or incorrect.
NOTE: Only full or complete performance by one
party within a year from the execution thereof will NOTE: The Statute of Frauds is exclusive, that is, it
take the case out of the Statute of Frauds applies only to the agreements or contracts
(JURADO, Obligations and Contracts, supra at enumerated therein (PINEDA, Obligations and
563-564). Contracts, supra at 638).

2. A special Promise to answer for the debt, default REASON FOR THE STATUTE OF FRAUDS: To
or miscarriage of another; prevent fraud and perjury in the enforcement of
obligations (DE LEON, Obligations and Contracts,
NOTE: If the promise is an original one or supra at 763, citing Phil. National Bank v. Phil.
independent one, that is, the promisor becomes Vegetable Oil Co. Inc., G.R. No. L-25400, January
thereby primarily liable for the payment of the 14, 1927).
debt, the promise is not within the statute. But on
the other hand, if the promise is collateral to the REMOVAL FROM COVERAGE OF
agreement of another and the promisor, the STATUTE OF FRAUDS
promise must be in writing (Reiss v. Memije, G.R.
No. 5447, March 1, 1910). 1. Express or Implied Ratification of a party bound
by it;
3. An agreement made in consideration of 2. Partial or Total Performance of the Obligations
Marriage, other than a mutual promise to marry under the Contract (Executed Contracts)
(e.g. Pre-Nuptial Agreement, Marriage 3. Execution of one or more Note or Memorandum
Settlements, and Donation Propter Nuptias); in written form and subscribed by the party
charged or his agent (CIVIL CODE, Art. 1403(2)
NOTE: When the marriage is a mere incident, & 1405).
and the end to be attained by the agreement, the
contract is not in consideration of a marriage, and FULL OR PARTIAL EXECUTION
oral evidence can prove the agreement (4 Contracts infringing the Statute of Frauds, are ratified
TOLENTINO, supra at 622). by the failure to object to the presentation of oral
evidence to prove the same, or by the acceptance of
4. An agreement for the sale of Goods, chattels or benefits under them (CIVIL CODE, Art. 1405).
things in action, at a price not less than P500,
unless the buyer accepted and received such If a contract has been totally or partially performed,
goods and chattels or evidences or some of the exclusion of parol evidence would promote fraud
them, of such things in action or pay at the time or bad faith, for it would enable the defendant to keep
some part of the purchase money; but when a the benefits already delivered by him from the
sale is made by auction and entry is made by the transaction in litigation, and, at the same time, evade
auctioneer in his sales book, at the time of sale, the obligations, responsibilities or liabilities assumed
of the amount and kind of property sold, terms, or contracted by him thereby (Mactan-Cebu
price, names of the purchasers and persons to International Airport Authority v. Tudtud, GR 174012,
whose account the sale is made, it is a sufficient November 14, 2008).
memorandum;
NOTE: In other words, the Statute only covers
NOTE: Where there is a purchase of a number of executory contracts. It no longer covers contracts
articles which separately do not have a price of which have been partially or fully executed.
P500 each but has an aggregate sum exceeding
P500, the statute is only applicable if the NOTE OR MEMORANDUM MUST BE
transaction is inseparable (Id. at 624). COMPLETE
For a note or memorandum to satisfy the Statute, it
5. An agreement for the Leasing of real property for
must be complete in itself and cannot rest partly in
a longer period than one (1) year;
writing and partly in parol (Swedish Match, AB v. CA,
G.R. No. 128120, October 20, 2004).
6. An agreement for the Sale of real property or
interest (e.g. usufruct, easement) therein; and
The note or memorandum must contain the names of
the parties, the terms and conditions of the contract,
7. A Representation as to the credit of a third
and a description of the property sufficient to render
person.
it capable of identification. (Swedish Match, AB v. CA, 3. The right to set up the defense of inexistence or
G.R. No. 128120, October 20, 2004). Absolute nullity cannot be waived or renounced
(CIVIL CODE, Art. 1409);
Such note or memorandum must contain the 4. The action or defense for the declaration of their
essential elements of the contract expressed with inexistence or nullity is Imprescriptible (CIVIL
certainty that may be ascertained from the note or CODE, Art. 1410);
memorandum itself, or some other writing to which it 5. The inexistence or absolute nullity of a contract
refers or within which it is connected, without cannot be invoked by a person whose interests
resorting to parol evidence (Swedish Match, AB v. are not Directly affected (Tongoy v. CA, G.R. No.
CA, G.R. No. 128120, October 20, 2004). L-45645, June 28, 1983); and
6. The defense of illegality of contract is not
PRINCIPLES UNDER CONTRACTS available to 3rd persons whose interests are not
WHERE BOTH PARTIES ARE directly affected (CIVIL CODE, Art. 1421).
INCAPACITATED:
VOID V. INEXISTENT CONTRACTS
1. These contracts are also unenforceable (CIVIL
CODE, Art. 1403, par. 3); and INEXISTENT
VOID CONTRACTS
CONTRACTS
2. If only one of the parties is incapacitated, the
contract is voidable (CIVIL CODE Art. 1390, no. As to Requisites
1).
Those where all of the Those where one or
requisites of a contract some or all of the
3. The contract may be ratified by the parents or
are present but the requisites essential for
guardians of the contracting parties, or by the
cause, object or the validity of a contract
parties themselves upon attaining or regaining
purpose is contrary to are absolutely lacking
capacity.
law, morals, good such that it could not
a. Ratification on the part of only one of the
customs, public order or come to existence,
parties – the contract becomes voidable;
public policy, or the whether valid or void.
b. Ratification on the part of both parties – the
contract itself is
contract shall be validated from its inception
prohibited or declared
(JURADO, Obligations and Contracts, supra
void by law.
at 572).
As to Application of Pari Delicto

Principle of in pari Principle of in pari delicto

VOID OR INEXISTENT delicto is applicable. is not applicable.

CONTRACTS As to Effect
(ARTS. 1409-1422) May produce legal Cannot produce any
effects. effect.

As to Scope
VOID OR INEXISTENT CONTRACTS
Covers Art. 1409 Nos. Covers Art. 1409 Nos. 2
In general, they are those which lack absolutely either
1, 3,4,5,6, and 7. and 3.
in fact or in law one or some of the elements essential
for its validity. It has no force and effect from the very (JURADO, Obligations and Contracts, supra at 574-
beginning, as if it has never been entered into, and 575).
which cannot be validated either by time or by
ratification (JURADO, Obligations and Contracts, CONTRACTS WHICH ARE INEXISTENT
supra at 574). AND VOID AB INITIO: (ACE-PI2O)
1. Those whose cause, object or purpose is
Characteristics Of Void Contracts: Contrary to law, morals, good customs, public
(Leg-RAID-3rd) order or public policy;
1. They do not produce any Legal effect (quod 2. Those which are Absolutely simulated or
nullum est nullum producit effectum); fictitious;
2. They are not susceptible of Ratification (CIVIL 3. Those whose cause or object did not Exist at the
CODE, Art. 1409); time of the transaction;
4. Those whose object is Outside the commerce of
men;
5. Those which contemplate an Impossible service; 3. Payment of money or delivery of property made
6. Those where the Intention of the parties relative by an incapacitated person, if the interest of
to the principal object of the contract cannot be justice so demands (CIVIL CODE, Art. 1415);
ascertained; and
7. Those expressly Prohibited or declared void by 4. Agreement or contract not illegal per se but
law (CIVIL CODE, Art. 1409). merely prohibited by law, and the prohibition is
designed for the plaintiff’s protection (CIVIL
OTHER VOID AND INEXISTENT CODE, Art. 1416);
CONTRACTS: (ICF)
NOTE: The exception should not be applied if
1. Those which are the direct result of previous public policy will not thereby be enhanced or
Illegal contracts (CIVIL CODE, Art. 1422); subserved (Philippine Banking Corporation v. Lui
2. Those where there is no Concurrence between She, G.R. No. L-17587, September 12, 1967).
offer and acceptance with regard to the object
and the cause of the contract; and 5. Payment of any amount in excess of the
3. Those which do not comply with the required maximum price of any article or commodity fixed
Form where such form is essential for validity by law (CIVIL CODE, Art. 1417);
(JURADO, Obligations and Contracts supra at
578). 6. Contract whereby a laborer undertakes to work
longer than the maximum number of hours fixed
THE FOLLOWING STIPULATIONS ARE by law (CIVIL CODE, Art. 1418);
VOID:
1. Pactum comissorium NOTE: The laborer may still demand additional
– a stipulation that allows the creditor to compensation for service rendered beyond the
automatically appropriate the things given by way time limit even if the contract was signed
of mortgage or dispose of them upon default of voluntarily by the laborer (Luzon Stevedoring Co.
the obligation(CIVIL CODE, Art. 2088). Inc. v. Luzon Marine Department Union, G.R. No.
L-9265, April 29, 1957.)
2. Pactum de non alienado
– a stipulation forbidding the owner from 7. Contract whereby a laborer accepts a wage lower
alienating the immovable mortgaged (CIVIL than the minimum wage fixed by law (CIVIL
CODE, Art. 2130). CODE, Art. 1419);

8. In case of divisible contracts, the legal terms may

3. Pactum leonina
be enforced separately from the illegal terms
– a stipulation which excludes one or more
(CIVIL CODE, Art. 1420); and
partners from any share of the profits or losses
(CIVIL CODE, Art. 1799).
9. One who lost in gambling because of fraudulent
schemes practiced on him. He is allowed to
NOTE: The above enumeration is not exclusive.
recover his losses (RPC, Art. 315 (3b)) even if
gambling is prohibited (JURADO, Obligations
PRINCIPLE OF IN PARI DELICTO and Contracts, supra at 602-603).
When the defect of a void contract consists in the
illegality of the cause or object of the contract and EFFECTS WHEN BOTH PARTIES ARE AT
both of the parties are at fault or in pari delicto, the
law refuses them any remedy and leaves them where
FAULT AND THE ACT CONSTITUTES A
they are (CIVIL CODE, Art. 1411). CRIMINAL OFFENSE:
1. They shall have no action against each other;
EXCEPTIONS: 2. Both shall be prosecuted; and
1. Payment of usurious interest (CIVIL CODE, Art. 3. The effects or instruments of the crime shall be
1413); confiscated in favor of the government (CIVIL
CODE, Art. 1411).
2. Payment of money or delivery of property for an
illegal purpose, where the party who paid or EFFECTS WHEN ONLY ONE IS AT FAULT
delivered repudiates the contract before the AND THE ACT CONSTITUTES A
purpose has been accomplished, or before any
damage has been caused to a third person
CRIMINAL OFFENSE:
(CIVIL CODE, Art. 1414); 1. The guilty party will be prosecuted;
2. The instrument of the crime will be confiscated;
and
3. The innocent one may claim what he has given;
or if he has not given anything yet, he shall not
be bound to comply with his promise (CIVIL
CODE, Art. 1411).

NOTE: Art. 1411, par. 1 of the CIVIL CODE is not

applicable to Art. 1409 par 2 and 3 (JURADO,
Obligations and Contracts, supra at 575).

EFFECTS WHEN BOTH PARTIES ARE AT

FAULT AND THE ACT DOES NOT
CONSTITUTE A CRIMINAL OFFENSE:
1. Neither may recover what he has given by virtue
of the contract; and

2. Neither can demand the performance of the

other’s undertaking (CIVIL CODE, Art. 1412, par.
1).

EFFECTS WHEN ONLY ONE IS AT FAULT

AND THE ACT DOES NOT CONSTITUTE
A CRIMINAL OFFENSE:
1. Guilty party cannot recover what has been given
by reason of the contract, or ask the fulfillment of
what has been promised him;

2. Innocent party may demand the return of what he

has given without any obligation to comply with
his promise (CIVIL CODE, Art. 1412, par. 2).

NOTE: In the principle of in pari delicto where

only one of the contracting parties is at fault, the
non-availability of recovery of the thing given
extends to his heirs. Thus, the heirs may not
institute an action for nullity as the principle
constitutes a bar for action (Liguez v. CA, G.R
No. L-11240, Dec. 18, 1957).
 COMPARATIVE TABLE OF DEFECTIVE CONTRACTS
RESCISSIBLE VOIDABLE UNENFORCEABLE INEXISTENT VOID

As to Defect

Defect is caused by Defect is caused by Defect is caused by lack of Defect is caused Defect is caused
injury/ damage vice of consent required form, authority, or by the absence by illegality or
either to one of the capacity of both parties, not of at least one of invalidity of any
parties or to a third cured by prescription the essential one of its
person requisites. essential
elements, or the
contract itself

As to Status of Contract

Valid and Valid and Cannot be enforced by a Do not, as a general rule, produce
enforceable until enforceable until proper action in court any legal effect
rescinded by a annulled by a
competent court competent court

As to Remedy

Rescission Annulment; Ratification Declaration of Absolute Nullity or

Ratification Inexistence

As to Prescription of Defense or Action

Action for rescission Defense or Action Corresponding action for Defense or Action for the declaration
prescribes in 4 years for annulment recovery, if there was total of nullity or inexistence do not
prescribes in 4 years or partial performance of prescribe
the unenforceable contract
under nos. 1 or 3 of Article
1403, may prescribe

As to Real Party In Interest

Contracting parties Contracting parties Contracting parties Contracting parties and a third
and a third person person whose interest is directly
who is prejudiced or affected
damaged by the
contract

As to Susceptibility of Ratification

Need not be ratified Can be ratified Can be ratified Cannot be ratified

As to How Contracts May Be Assailed

Assailed directly or Assailed directly May be assailed only by a Assailed directly or collaterally
collaterally only contracting party
 REMEDIES AVAILABLE AGAINST DEFECTIVE CONTRACTS
PARTY WHO MAY PERIOD TO BRING AN ACTION
DEFECTIVE CONTRACT
INSTITUTE AN ACTION FOR RESCISSION/ANNULMENT

Rescissible Contracts

1. Contracts entered into by guardians By ward Within four years from gaining capacity
whenever the wards whom they
represent suffer lesion by more than
¼ of the value of the things which are
objects thereof;

2. Contracts agreed upon in By absentee Within four years from knowledge of

representation of absentees, if the domicile or knowledge of fraudulent
latter suffers lesion by more than ¼ contract
of the value of the things which are
subject thereof;

3. Contracts undertaken in fraud of By creditor Within four years from knowledge of

creditors when the latter cannot in fraudulent act
any manner collect the claims due
them;

4. Payments made in a state of By creditor

insolvency for obligations whose
Within four years from knowledge of
fulfillment the debtor could not be
fraudulent contract
compelled at the time they were
effected

5. Contracts which refer to the things By party litigant

under litigation if they have been
Within four years from knowledge of
entered into by the defendant without
fraudulent contract
the knowledge and approval of the
litigants and the court

Voidable Contracts

1. Contracts where one of the parties is By party who is Within four years from gaining or
incapable of giving consent to the incapacitated regaining capacity to act
contract

2. Contracts where the consent is By party whose consent Within four years from cessation of
vitiated by mistake, violence, was vitiated force, intimidation or undue influence;
intimidation, undue influence or fraud within four years from discovery of
fraud or mistake

Unenforceable Contracts

1. Contract entered into in the name of Person in whose name the At any time whenever one party
another person without authority or in contract is entered into attempts to enforce the contract
excess of authority against another through court action

2. Contract entered into which does not By party against whom the
comply with the Statutes of Fraud contract is being enforced

3. Contract where both contracting By parents or guardians of

parties do not possess the required both parties, or both
legal capacity parties after regaining
capacity to act
 PARTY WHO MAY PERIOD TO BRING AN ACTION
DEFECTIVE CONTRACT
INSTITUTE AN ACTION FOR RESCISSION/ANNULMENT

Void or Inexistent Contracts

1. Contract whose cause, object or By innocent party; Imprescriptible

purpose is contrary to law, good By 3rd persons whose
customs, morals, public order or interests are directly
public policy affected

2. One or some of essential requisites By any of the contracting

of valid contract is lacking in fact or in parties;
law: By 3rd persons whose
a. Absolutely simulated interests are directly
b. Cause or object did not exist affected
c. Object is outside the commerce
of man
d. Contemplate an impossible
service
e. Intention of parties relative to the
principal object of contract
cannot be ascertained

3. Contracts expressly prohibited by By the party in whose

law protection the prohibition
of the law is designed;
By 3rd party whose
interests are directly
affected
 NOTE: Article 2052 provides that natural obligations
NATURAL OBLIGATIONS may be guaranteed. In principle, however, a natural
obligation cannot be guaranteed, because the
(ARTS. 1423-1430) liability of the guarantor presupposes that there must
be a prior exhaustion of the property of the principal
debtor, and that the guarantor after paying can
recover from the principal debtor – and both of this
NATURAL OBLIGATIONS cannot be legally done when the obligation is natural
Those based on equity and natural law, which do not (Id. at 651).
grant a right of action to enforce their performance,
but after voluntary fulfillment by the obligor, ILLICIT OBLIGATIONS
authorize the retention of what has been delivered or Obligations which are contrary to morals and good
rendered by reason thereof (CIVIL CODE, Art. customs do not constitute natural obligations, and,
1423). therefore, whatever is paid under such obligations
can be recovered, without prejudice to the provisions
NOTE: The binding tie of these obligations is in the of Articles 1411 and 1412 (Id. at 651).
conscience of man, for under the law, they do not
have the necessary efficacy to give rise to an action
(4 TOLENTINO, supra at 646).
NATURAL OBLIGATION
V. MORAL OBLIGATION
NECESSITY OF JURIDICAL TIE NATURAL
MORAL OBLIGATION
In order that there may be a natural obligation there OBLIGATION
must be a juridical tie which is not prohibited by law
and which in itself could give a cause of action but As to Juridical Tie
because of some special circumstances is actually
There is a juridical tie No juridical tie
without legal sanction or means of enforcing
between the parties whatsoever.
compliance by intervention of courts (4
which is not enforceable
TOLENTINO, supra at 646).
by court action
TWO CONDITIONS NECESSARY FOR As to Legal Effect of Voluntary Fulfillment
NATURAL OBLIGATIONS:
Voluntary fulfillment of Voluntary fulfillment of
1. That there be a juridical tie between two
persons; and such produces legal such does not produce
2. That this tie is not given effect by law. effects which the court any legal effect which
will recognize and the court will recognize
NOTE: The first requirement distinguishes the protect. and protect.
natural obligation from the moral, and the second As to Domain
distinguishes it from the civil (4 TOLENTINO, supra
at 646). Within the domain of Within the domain of
law. morals.
CONVERSION INTO CIVIL OBLIGATION
(4 TOLENTINO, supra at 647-649).
The promise to perform a natural obligation is as
effective as performance itself and converts the
obligation into a civil obligation (Id. at 649).
NATURAL OBLIGATION
V. CIVIL OBLIGATION
NOTE: A natural obligation may also be converted NATURAL OBLIGATION CIVIL OBLIGATION
into a civil obligation by novation or by confirmation
or ratification (Id. at 650). As to Basis

Example: Acknowledgement of a prescribed debt. Is based on equity and Based on positive

natural law. law.
EFFECT OF PARTIAL PAYMENT As to Enforceability by Court Action
As a general rule, partial payment of a natural
obligation does not make it civil; the part paid cannot Not enforceable by court Enforceable by court
be recovered but payment of the balance cannot be action. action.
enforced (Id. at 651).
(JURADO, Obligations and Contracts, supra at 635).
EXAMPLES OF NATURAL DISTINGUISHED FROM WAIVER
OBLIGATIONS: A waiver is a voluntary and intentional abandonment
1. Performance after the civil obligation has or relinquishment of a known right. It carries no
prescribed (CIVIL CODE, Art. 1424); implication of fraud. It involves the act or conduct of
2. Reimbursement made to a third person who paid only one of the parties. An equitable estoppel may
for a debt that has prescribed (CIVIL CODE, Art. arise, however, even where there is no intention on
1425); the part of the person estopped to relinquish any
3. Performance after action to enforce civil existing right, and frequently carries the implication
obligation has failed (CIVIL CODE, Art. 1428); of fraud. It involves the conduct of both parties (4
4. Payment by heir of debt exceeding value of TOLENTINO, supra.at 657).
property inherited (CIVIL CODE, Art. 1429); and
5. Payment of legacy after the will has been DISTINGUISHED FROM RATIFICATION
declared void (CIVIL CODE, Art. 1430). The party in ratification is bound because he
intended to be; in the latter, he is bound
RESTITUTION BY MINOR notwithstanding the fact that there was no such
After a decree of annulment of a contract, the parties intention, because the other party will be prejudiced
are generally bound to make restitution. When the and defrauded by his conduct unless the law treats
ground for annulment, however, is the incapacity of him as legally bound (Id. at 657).
the plaintiff, he is not bound to make restitution
except to the extent that he was benefited. Kinds of Estoppel:
1. Estoppel in pais or by conduct
However, he has a natural obligation to do so; hence – Applies to a situation where, because of
under Article 1426, if he voluntarily makes restitution, something which a person has done or omitted
he cannot recover what he has delivered, if he is a to do, a party is denied the right to plead or prove
minor over 18 years of age. A minor of such age is an otherwise important fact (Id. at 664).
deemed to have sufficient mental and moral a. Estoppel by silence (e.g., CIVIL CODE,
development to be aware of his debt of conscience Art. 1437);
(4 TOLENTINO, supra at 652). b. Estoppel by acceptance of benefits (e.g.,
CIVIL CODE, Art. 1438)
PAYMENT BY MINOR c. Promissory estoppel – a promise to do or
Article 1427 deals with voluntary payment by minor not to do results in estoppel, provided that
over 18 years of age under an annullable contract. the promise which was intended to be relied
There is no natural obligation in the situation upon, was relied upon and the refusal to
contemplated by this Article; the obligation here is a enforce it would sanction fraud or injustice (4
civil obligation, which exists and is enforceable TOLENTINO, supra at 658).
unless it is set aside or annulled by competent court
in an action for that purpose (Id. at 653). Elements (CIK):
a. Conduct amounting to false representation
or concealment of material facts, or at least
calculated to convey the impression that the
ESTOPPEL facts are otherwise than, and inconsistent
with, those which the party subsequently
(ARTS. 1431-1439) attempts to assert;
b. Intent, or at least expectation that this
conduct shall be acted upon by, or at least
influence, the other party; and
ESTOPPEL c. Knowledge, actual or constructive, of the
Through estoppel, an admission or representation is real facts (Id. at 664).
rendered conclusive upon the person making it, and
cannot be denied or disproved as against the person 2. Technical estoppels:
relying thereon (CIVIL CODE, Art. 1431). a. Estoppel by deed – a party to a deed is
precluded from asserting as against the
NOTE: Estoppel is the condition where a person is other party, any material fact asserted
rendered unable to deny an admission or therein; and
representation made to the person who had already b. Estoppel by record – a party is precluded
relied on such admission in good faith (PNB v. IAC, from denying the truth of matters set forth in
G.R. No. 66715, September 18, 1990). a record, whether judicial or legislative
(JURADO, Obligations and Contracts, supra
at 640).
3. Estoppel by judgment ESTOPPEL AGAINST OWNER
– a party to a case is precluded from denying the When in a contract between third persons
facts adjudicated by a court of competent concerning immovable property, one of them is
jurisdiction (RULES OF COURT, Rule 39, misled by a person with respect to the ownership or
Section 47(b)); real right over the real estate, the latter is precluded
from asserting his legal title or interest therein,
4. Estoppel by laches provided all these requisites are present:
– failure or neglect for an unreasonable and 1. There must be fraudulent representation or
unexplained length of time, to do that which, by wrongful concealment of facts known to the
exercising due diligence, could or should have party estopped;
been done earlier (Regalado v. Go, G.R. No. 2. The party precluded must intend that the other
167988, February 6, 2007). should act upon the facts as misrepresented;
3. The party misled must have been unaware of the
EXAMPLES OF ESTOPPEL: true facts; and
1. If a person, in representation of another sells or 4. The party defrauded must have acted in
alienates a thing, the former cannot accordance with the misrepresentation (CIVIL
subsequently set up his title as against the buyer CODE, Art. 1437).
or grantee (CIVIL CODE, Art. 1435).
NOTE: The rule is well-settled that the title to land or
2. A lessee or bailee is estopped from asserting real property may pass by an equitable estoppel
title to the thing leased or received, as against which is effectual to take the title to land from one
the lessor or bailor (CIVIL CODE, Art. 1436). person and vest it in another where justice requires
that such action be done. Thus, by intentional
Estoppel of Tenant misrepresentation, misleading conduct, or wrongful
A tenant will not be heard to dispute his concealment, a person may preclude himself from
landlord’s title. Once the contract of lease is asserting his legal title to land or from enforcing an
shown to exist between the parties, the lessor encumbrance on, or maintaining an interest in, real
cannot be compelled to prove his title thereto estate (DE LEON, Obligations and Contracts, supra
(TOLENTINO, supra at 665). at 962).

3. When in a contract between third persons ESTOPPEL BY ACCEPTANCE OF

concerning immovable property, one of them is BENEFITS
misled by a person with respect to the ownership One who has allowed another to assume apparent
or real right over the real estate, the latter is ownership of personal property for the purpose of
precluded from asserting his legal title or interest making any transfer of it, cannot, if he received the
therein, provided all the following requisites are sum for which a pledge has been constituted, set up
present: (FIUA) his own title to defeat the pledge of the property,
a. There must be Fraudulent representation or made by the other to a pledgee who received the
wrongful concealment of facts known to the same in good faith and for value (CIVIL CODE, Art.
party estopped; 1438).
b. The party precluded must Intend that the
other should act upon the facts as (The laws on pledges and chattel mortgage are
misrepresented; repealed by RA 11057 otherwise known as the
c. The party misled must have been Unaware Personal Property Security Act (hereinafter PPSA).
of the true facts; and Based on Section 68 and 26 of the PPSA, the
d. The party defrauded must have Acted in implementation of this act shall be conditioned upon
accordance with the misrepresentation the establishment and operation of the Registry).
(CIVIL CODE, Art. 1437).
NOTE: Estoppel is frequently based upon the
SUBSEQUENT ACQUISITION OF TITLE acceptance and retention by one having knowledge
Although plaintiff’s father did not obtain title to the or notice of the facts, of benefits from a transaction,
land until some years after he had sold such land, contract, instrument regulation, or statute which he
his subsequent acquisition of the land would have might have rejected or contested. It has been said
the effect of making his conveyance of the same to that the case is referable, when no fraud, either
defendant valid. A person who sells a property when actual or constructive, is involved to the principles of
he did not have title to it, cannot deny validity to the ratification (See CIVIL CODE, Arts. 1317, 1403 (1),
sale after he has acquired title (See CIVIL CODE, and 1405) rather than to those of estoppel.
Art. 1434; Inquimboy v. Cruz, G.R. No. L-13953, July
26, 1960).
The result produced, however, is clearly the same, REASON: Mutuality is an essential element of
and the distinction is not usually made. Such estoppel; and estoppel must bind both parties or
estoppel precludes one who accepts the benefits neither is bound (DE LEON, Obligations and
from repudiating the accompanying or resulting Contracts, supra at 964).
obligation, and may operate to prevent a party from
profiting by his own wrong (DE LEON, Obligations Thus, a grantor is not estopped by his deed as
and Contracts, supra at 962-963). against one who is neither a party thereto nor in
privity with a party. If anybody may be heard to
Examples: challenge the application of the doctrine of estoppel,
1. It has been held that where an employee had it is only the party against whom it may be invoked
accepted the benefits accruing from the abolition (Id. at 964).
of his office by enjoying his unused vacation and
sick leave and receiving the corresponding The government, however, is not estopped by the
gratuity, he is estopped from questioning its mistake or error on the part of its officials or agents
validity or deemed to have waived the right to (Id. at 964; Luciano v. Estrella, G.R. No. L-30306,
contest the same (Magana v. Auditor General, January 31, 1969), especially true when the
G.R. No. L-12180, April 26, 1960). government's actions are sovereign in nature (Hi-
Lon Manufacturing Inc. v. COA, G.R. No. 210669,
2. In a case, the appointees, having accepted the August 01, 2017).
acting appointments (as acting Mayor, Vice-
Mayor, and councilors of a newly created
municipality) extended to them without any
protest or reservation, and having acted LACHES
thereunder for a considerable time, the court
ruled that they “cannot now be heard to say that
such appointments were, in reality, permanent
and that, by reason of their being so, they could LACHES OR “STALE DEMANDS”
not be removed, except for cause, before the
Failure or neglect, for an unreasonable and
end of the term for which they were supposedly
unexplained length of time, to do that which, by
appointed” (Cabiling v. Pabualan, G.R. No. L-
exercising due diligence, could or should have been
21764, May 31, 1965).
done earlier; it is the negligence or omission to
assert a right within a reasonable time, warranting a
3. But the plaintiff’s acceptance of the offer of
presumption that the party entitled to assert it either
settlement of the defendant should not be
has abandoned it or declined to assert it (Tijam v.
deemed a waiver of the action where his
Sibonghanoy, G.R. No. L-21450, April 15, 1968;
acceptance was conditional and the condition
Department of Education v. Casibang, G.R. No.
was not accepted. The doctrine of estoppel
192268, January 27, 2016).
cannot, therefore, be slapped against him
(Switzerland Gen. Ins. Co., Ltd. v. Java Pacific &
NOTE: Laches operates not really to penalize
Hoegh Lines, G.R. No. L-21760, April 30, 1966).
neglect or sleeping on one's rights, but rather to
avoid recognizing a right when to do so would result
4. Quitclaims executed by laborers are commonly
in a clearly inequitable situation (Spouses Sierra v.
frowned upon as contrary to public policy and
PAIC Savings and Mortgage Bank, Inc., G.R. No.
ineffective to bar claims for the full measure of
197857; September 10, 2014).
the workers’ rights under the law. Acceptance of
benefits such as separation pay by employees
NOTE: While a person may not acquire title to the
does not amount to estoppel (Blue Bar Coconut
registered property through continuous possession,
Phils., Inc. v. NLRC, G.R. No. 95914, May 5,
the heir of the latter may lose his right to recover
1992).
back the possession of the property and the title
thereto, by reason of laches. The petitioners' laches
PERSONS AFFECTED BY ESTOPPEL extends to his heirs, since they stand in privity with
Estoppel is effective only as between the parties him (Heirs of Lacamen v. Heirs of Laruan, G.R No.
thereto or their successors in interest (CIVIL CODE, 27088, July 31, 1975).
Art. 1439).
ELEMENTS OF LACHES (CDLI):
NOTE: A stranger to a transaction is neither bound
1. Conduct on the part of the defendant, or of one
by, nor in a position to take advantage of, an
under whom he claims, giving rise to the
estoppel arising therefrom (Resuena v. CA, G.R. No.
situation of which complaint is made and for
128338, March 28, 2005).
which the complaint seeks a remedy;
2. Delay in asserting the complainant’s rights, the
complainant having had knowledge or notice of
the defendant’s conduct and having been
afforded an opportunity to institute a suit;

3. Lack of knowledge or notice on the part of the

defendant that the complaint would assert the
right on which he bases his suit; and

4. Injury or prejudice to the defendant in the event

relief is accorded to the complainant, or the suit
is not held to be barred (Pangasinan v. Disonglo
Almazora, G.R. No. 200558, July 1, 2015).

PRESCRIPTION V. LACHES
PRESCRIPTION LACHES

As to its Relation to Delay

Concerned with the fact Concerned with the

of delay. effect of delay.

As to Nature

Question or matter of Question of inequity of

time. permitting the claim to
be enforced.

As to Basis

Statutory Not statutory

As to Application

Applies in law Applies in equity

As to Availability as a Defense

Cannot be availed of Being a defense in

unless it is specifically equity, it need not be
pleaded as an specifically pleaded.
affirmative allegation.

As to Basis in Respect of Fixed Time

Based on a fixed time. Not based on a fixed

time.
(JURADO, Obligations and Contracts, supra at 648-
649).
 deposit, guardianship, and agency, in that the
TRUSTS trustee has legal title to the property (Heirs of
Labanon v. Heirs of Labanon, G.R. No. 160711,
August 14, 2007).

TRUST (FIDEICOMISSO) Not all Trusts are Contracts

A trust, either express or implied, is the fiduciary Express trusts are created by the intention of the
relationship between one person having an trustor or of the parties (NEW CIVIL CODE, Art.
1441). Express trusts therefore comply with the
equitable ownership of property and another person
elements of a contract: consent, object, and cause
owning the legal title to such property, the equitable
(NEW CIVIL CODE, Art. 1318).
ownership of the former entitling him to the
performance of certain duties and the exercise of
certain powers by the latter (Goyanko Jr. v. United NOTE: This is why express trusts are sometimes
Coconut Planters Bank, G.R. No. 179096, February referred to as conventional trusts.
6, 2013).
Implied trusts however are created by operation of
In its technical legal sense, a trust is defined as the law (NEW CIVIL CODE, Art. 1441). The obligations
right, enforceable solely in equity, to the beneficial between the parties in an implied trust are created
enjoyment of property, the legal title to which is by law as a matter of equity in recognition of the trust
vested in another, but the word "trust" is frequently relation between them. They are created with or
employed to indicate duties, relations, and without the consent of the parties to the relation.
responsibilities which are not strictly technical trusts
(Peñalber v. Ramos, G.R. No. 178645, January 30,
2009).
GENERAL PROVISIONS
NOTE: Trust denotes “confidence,” “fiduciary
relationship,” etc. and is often used in reference to
ARTS. 1440-1442
the confidential aspect of any kind of a bailment or
possession by one person of the property of another
(DE LEON, Comments and Cases on Partnership,
PERSONS INVOLVED IN A TRUST
Agency and Trusts (2019), p. 629, [hereinafter, DE
LEON, Partnership, Agency & Trusts]). 1. Trustor
– The person who establishes the trust (CIVIL
There is a fiduciary relation between the trustee and CODE, Art. 1440).
the beneficiary (cestui que trust) as regards certain
property, real, personal, money or choses in action 2. Trustee
(Peñalber v. Ramos, G.R. No. 178645, January 30, – The one in whom confidence is reposed as
2009). regards property for the benefit of another
person (CIVIL CODE, Art. 1440).
Difference of Trust from Other Relationships of a
Fiduciary Character 3. Beneficiary or the cestui que trust
This legal relationship can be distinguished from – The person for whose benefit the trust has
other relationships of a fiduciary character, such as been created (CIVIL CODE, Art. 1440).

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA R. TAMPUS, Vice
Chairperson for Secretariat | ARVY KEITH N. CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice
Chairperson for Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. THERESA GENEVIEVE NUEVE-CO and Atty. LUIS MANUEL BUGAYONG

 NOTE: The trust may provide for more than one TRUST V. CONTRACT
beneficiary (DE LEON, Partnership, Agency &
Trusts, supra at 642). TRUST CONTRACT

Always involves A legal obligation based

TRUSTOR AS TRUSTEE OR ownership, embracing on an undertaking
BENEFICIARY a set of rights and supported by a
The trustor may establish a trust with him as the duties fiduciary in consideration, which
trustee or the beneficiary. He cannot, however, be character, which may obligation may or may
both the sole trustee and the sole beneficiary of a be created by a not be fiduciary in
single trust (Id. at 642). declaration without character.
consideration.
CHARACTERISTICS OF A TRUST (Id. at 641).
1. It is a relationship;
2. It is a relationship of fiduciary character; TRUST V. AGENCY
3. It is a relationship with respect of property not
involving merely personal duties; TRUST AGENCY
4. It involves the existence of equitable duties
imposed upon the holder of the title to the As to Transfer of Title and Control
property to deal with it for the benefit of another;
and Title and control of the Agent merely represents
5. It arises as a result of a manifestation to create property under the trust and acts for his
the relationship (Morales v. Court of Appeals, instrument passes to principal.
G.R. No. 117228, June 19, 1997). the trustee who acts in
his own name.
CHARACTER OF OFFICE OF TRUSTEE
1. As principal As to Termination
– The trustee is not an agent of the trust estate
or of the cestui que trust, but he acts for himself
Trust may ordinarily be Agency may in general
in the administration of the trust estate, although
terminated only by the be revoked at any time.
subject to the terms of the trust and the law of
fulfillment of its
trusts.
purpose.
2. As agent
– In some cases, however, a trustee has been
TRUST AGENCY
regarded as an agent of beneficiaries of the trust
at least for certain purpose, such as for the
purpose of imputing to the beneficiaries of the As to The Extent of Supervision
trust notice given to the trustee.
Trust is based on the Agency is formed with
3. As fiduciary idea of discretion in the the thought of constant
– A trustee holds an office of trust. A trustee has trustee and guidance supervision and control
a duty of loyalty. He has the obligation to avoid by the settler or cestui by the principal.
conflicts of interest with the beneficiary, and only to a limited extent
even potential conflicts of interest. He is and when expressly
expected to exercise the degree of care, provided for.
prudence and skill that a reasonably prudent (Id. at 372).
person would exercise in administering and
protecting his own property (Id. at 644-645). TRUST V. USUFRUCT
TRUST DISTINGUISHED FROM OTHER TRUST USUFRUCT
RELATIONS As to Transfer of Title
What distinguishes a trust from other relations is the
separation of the legal title and the equitable Trustor transfers legal The owner transfers only
ownership of the subject property between two or title to the trustee. He beneficial title to the
more people (Id. at 640). may retain beneficial usufructuary, retaining
title for himself, or also legal title for himself.
transfer beneficial title
to a third person.
 TRUST USUFRUCT TRUST V. LEASE
TRUST LEASE
As to Existence of Fiduciary Relationship
As to Title Transferred
There is a fiduciary There is no fiduciary
relationship between relationship between the Trustor transfers title to Lessor retains naked
a trustee and a naked owner and two persons: the trustee title, transferring only
beneficiary. usufructuary. and beneficiary, with beneficial right to use
the former acquiring and possess to the
As to the Preservation of The Property legal title and the latter lessee.
acquiring beneficial title.
It is the trustee, the It is the usufructuary who
naked title holder, who is obliged to preserve the NOTE: Trustor may
actively manages and form and substance of the also merely transfer
administers the trust property held in usufruct, naked title to the trustee
property, and the and to take care of it with while retaining
beneficiary mainly is a the diligence of a good beneficial title as
passive receiver of the father of a family for the beneficiary.
fruits and benefits benefit of the naked title
arising from the trust holder at the end of the As to Cause of Contract
property. usufruct.
Essence of the contract Essence of the contract
(VILLANUEVA, Agency &Trusts, Partnerships & is for the trustee to is the enjoyment of the
Joint Ventures, (2018), p.300 [hereinafter, manage the trust possession and use of
VILLANUEVA, Agency &Trusts, Partnerships & property as the legal the leased property.
Joint Ventures]). title holder for benefit or
interest of the
TRUST V. SALE beneficiary.
TRUST SALE As to Term of Beneficial Title
As to Perfection Benefits enjoyed by the Benefits enjoyed by the
beneficiary are usually lessee are only for a
A trust requires the Perfected by mere
of a permanent nature. limited contracted
actual delivery of the consent (CIVIL CODE,
period.
naked or legal title to the Art. 1475).
trustee. (Id. at 300).

As to Ownership of Property Holder TRUST V. DONATION

Trustee merely holds Buyer takes both legal TRUST DONATION
naked title. Beneficial and equitable
title is vested in the ownership of the As to Nature
trustor/beneficiary. property sold.
A trust is an existing Donation is a transfer of
As to Purpose of Acquisition of Legal Title legal relationship and property and involves a
involves the separation disposition of both legal
Constituted merely as a Entered into for its own legal and equitable title and equitable
preparatory end, the acquiring of (DE LEON, supra at ownership.
arrangement, a title of the subject 630).
medium, by which the matter by the buyer.
trustee is expected to As to Form of Acceptance of Benefit
pursue other juridical
acts for the benefit of Beneficiary need not The donee must comply
the beneficiary. execute any formal with the formal
acceptance in order torequirements in
(Id. at 301). enforce his rights. accepting donations
under Article 749 of the
NOTE: Acceptance of New Civil Code.
beneficiary necessary
(NEW CIVIL CODE, Art.
1446).
TRUST V. STIPULATION POUR AUTRUI or otherwise dispose of them. The beneficiary can
transfer only the interest he holds – the equitable title
STIPULATION POUR (Id. at 644).
TRUST
AUTRUI

As to Origin NECESSITY OF EXISTENCE OF

BENEFICIARY
A trust may exist A stipulation pour autrui A trust is not void for indefiniteness if the whole
because of legal can arise only in the property will go to beneficiaries who will be
provision or because of case of contracts. determined at the termination of the trust, at the
an agreement. latest (e.g., “my minor children”, “my brothers and
sisters”). It is not necessary to the creation of a trust
As to Subject Property that the cestui que trust be named or identified or
even be in existence at the time of its creation (Id. at
A trust refers to a A stipulation pour autrui 646).
specific property. refers to specific
property or to other
KINDS OF TRUSTS
things.
Trusts are either:
(4 PARAS, supra at 889). 1. Express Trusts
Express trusts are created by the intention of
TRUST PROPERTY the trustor or of the parties (NEW CIVIL CODE,
The property so held is referred to as the “trust Art. 1441).
property” or “trust res”, which is the subject matter of
the trust. The subject matter of a trust may be any 2. Implied Trusts
property of value – real, personal, funds or money, Implied trusts come into being by operation of
or choses in action (DE LEON, Partnership, Agency law (NEW CIVIL CODE, Art. 1441).
& Trusts, supra at 642-643).
TYPES OF IMPLIED TRUSTS
Property Must be Existing 1. Resulting trust
It must consist of property actually in existence in
One in which the intention to create a trust is
which the trustor has a transferable interest or title
presumed by law to exist from the transaction
although it may, as a rule, be any kind of transferable
and facts of the case.
property either realty or personalty including
undivided, future, or contingent interest therein. But
Example: Includes those contemplated under
it cannot be a mere expectancy without right or
Articles 1448, 1449, 1451, 1452, 1453 of the
interest or a mere interest in the performance of a
Civil Code (NEW CIVIL CODE, Art. 1447).
contract although such interest is in the nature of a
property right (Id. at 643).
(Please refer to page 517 herein).

NATURE OF OWNERSHIP OF TRUSTEE 2. Constructive trust (trust ex malefacio,

AND BENEFICIARY trust ex delicto, and de son tort)
The trust property is owned by two persons at the One imposed by law irrespective of and even
same time, the relation between the two owners contrary to the intention of the parties. It is
being such that one of them is under an obligation to designed to promote justice, frustrate fraud and
use his ownership for the benefit of the other. The prevent unjust enrichment (DE LEON,
former is called the trustee, and his ownership is Partnership, Agency & Trusts, supra at 647).
trust-ownership; the other is called the beneficiary,
and his is beneficial ownership (Id. at 643). Example: Includes, but is not limited to, those
contemplated under Articles 1450, 1454, 1455,
The ownership of the trustee is a mere matter of form 1456 of the Civil Code (NEW CIVIL CODE, Art.
rather than substance, and nominal rather than real. 1447)
The trustee is not a mere agent, but an owner. A
trustee is a person to whom the property of someone (Please refer to page 518 herein).
is fictitiously attributed by the law, to the extent that
the rights and powers thus vested in a nominal
owner shall be used by him on behalf of the real
owner (Id. at 644).

The interest of the beneficiary in the trust can, in

general, be reached by his creditors, and he can sell
 EXPRESS TRUST V. IMPLIED TRUST 2. As to revocability
– From the viewpoint of whether they may be
EXPRESS TRUST IMPLIED TRUST
revoked by the trustor, they may be either:
As to Creation
a. Revocable trust – one which can be revoked
Created by the intention Comes into being by or cancelled by the trustor or
of the trustor or parties operation of law (NEW another individual given the power; or
(NEW CIVIL CODE, Art. CIVIL CODE, Art. b. Irrevocable trust – one which may not be
1441). 1441). terminated during the specified term of the
trust (Id. at 647-648).
As to Proof of Trust

An express trust over an An implied trust,

immovable property or
any interest therein
whether the property
subject to trust is real or
EXPRESS TRUSTS
cannot be proved by personal may be proved ARTS. 1443-1446
parol evidence (NEW by oral evidence (NEW
CIVIL CODE, Art. CIVIL CODE, Art.
1443). 1457).
ELEMENTS OF AN EXPRESS TRUST:
As to Prescription (CORB-DA)
Imprescriptible; the Being obligations 1. Competent trustor and trustee;
property held in trust created by operation of 2. Ascertainable trust Res; and
can be recovered law, actions to enforce 3. Sufficiently certain Beneficiaries
anytime implied trusts 4. A present and complete Disposition of the trust
prescribed in 10 years property;
EXCEPTION: If there is from the time the cause 5. Establishment of some power of Administration
repudiation of express of action arises (NEW other than a mere duty to perform a contract
trust, the action for CIVIL CODE, Art. 1144 although the contract is for a third party
reconveyance (2)). beneficiary (Goyanko Jr. v. United Coconut
prescribes 10 years Planters Bank, G.R. No. 179096, February 6,
from the repudiation of 2013).
trust (AQUINO,
Reviewer on Civil Law INTENT TO CREATE A TRUST MUST BE
(2018) p. 622). DEFINITELY ESTABLISHED
A failure on the part of the settlor definitely to
As to Applicability of Doctrine of Laches describe the subject-matter of the supposed trust or
the beneficiaries or object thereof is strong evidence
An express repudiation In constructive trusts, that he intended no trust. The intent to create a
made known to the even if there is no trust must be definite and particular. It must show
beneficiary is necessary repudiation, laches may a desire to pass benefits through the medium of a
in order that laches or bar an action to enforce trust, and not through some related or similar device
acquisitive prescription an implied trust (Mindanao Development Authority v. Court of
may bar an action to Appeals, G.R. No. L-49087, April 5, 1982).
enforce an express EXCEPTION: If there is
trust. (DE LEON supra concealment (DE LEON
at 669). supra at 669-671).
COMMON TYPES OF EXPRESS
TRUSTS: (P2EAS2D)
OTHER CLASSIFICATIONS OF TRUST 1. Publicly-Regulated Trust
1. As to Effectivity – One where the State provides the vehicle by
– From the viewpoint of whether they become which institutions are allowed to administer large
effective after the death of the trustor or during funds for the benefit of the public. Among such
his life, it may be either: funds created under the law would be pension
and benefits funds administered by GSIS, SSS,
a. Testamentary trust – one which is to take and Pag-Ibig Fund (VILLANUEVA, Agency &
effect upon the trustor’s death. Trusts, Partnerships & Joint Ventures, supra at
b. Trust inter vivos (sometimes called “living 288);
trusts”) – one established effective during
the owner’s life.
2. Private Trust relationship which he intends to create is called a
– Not for the good of the public in general or trust, and whether or not he knows the precise
society as a whole; characteristics of the relationship which is called a
trust (Go v. Estate of de Buenaventura, G.R. No.
3. Eleemosynary/Charitable Trust 211972, July 22, 2015).
– Designed for the benefit of a segment of the
public or the public in general; EXCEPTION: No express trust concerning an
immovable or any interest therein may be proved by
4. Accumulation Trust parol evidence (NEW CIVIL CODE, Art. 1443).
– One that will accumulate income to be
reinvested by the trustee in the trust for the NOTE: The burden of proving the existence of the
period of time specified; trust is on the party alleging its existence by clear,
satisfactory and convincing proof (Ramos v. Ramos,
5. Spendthrift Trust G.R. No. L-19872, December 3, 1974).
– Income will be paid to the prodigal-beneficiary
only when necessary; and FORMALITIES OF EXPRESS TRUST A
MATTER OF ENFORCEABILITY
6. Sprinkling Trust 1. The requirement that the express trust over an
– Gives the trustee the right to determine the immovable be written is only for enforceability,
income of beneficiaries who should receive not for validity between the parties. Hence,
income each year and the amount thereof; Article 1443 may by analogy be included under
the Statute of Frauds.
7. Discretionary Trust 2. By implication, for a trust over personal property
– Gives the trustee discretion to pay or not to pay an oral agreement is valid and enforceable
the income or principal (DE LEON, Partnership, between the parties.
Agency & Trusts, supra at 657). 3. Regarding third persons, the trust must be in a
public instrument and registered in the Registry
CREATION OF EXPRESS TRUST of Property if it concerns real property (4
Express trusts are intentionally created by direct and PARAS, supra at 892)
positive acts of the trustor – by some writing, deed,
will, or oral declaration evincing an intention to WHEN TRUSTEE DECLINES
create the trust. DESIGNATION
GENERAL RULE: No trust shall fail because the
The creation of an express trust must be manifested trustee appointed declines the designation.
with reasonable certainty and cannot be assumed
from loose and vague declarations or circumstances EXCEPTION: Unless the contrary should appear in
capable of other interpretations (Philippine National the instrument constituting the trust (CIVIL CODE,
Bank v. Aznar, G.R. No. 171805, May 30, 2011). Art. 1445).

PERFECTION OF EXPRESS TRUST One designated or appointed as trustee may decline

Express trust is perfected at the moment that there the responsibility and thereby be free from any legal
existed a separation of title and equitable interest or equitable duty or liability in the matter. Unless the
over the trust property. contrary intention appears in the instrument
constituting the trust, declination or refusal or
FORM OF EXPRESS TRUST disqualification of a trustee does not operate to
defeat or void the trust; nor does it operate to vest
GENERAL RULE: No particular words are required
legal title as well as equitable title in the beneficiary
for the creation of an express trust, it being sufficient
(DE LEON, Partnership, Agency & Trusts, supra at
that a trust is clearly intended (NEW CIVIL CODE,
659-660).
Art. 1444).
Where a trustee under a written instrument declines,
The mere fact that the word “trust” or “trustee” is
resigns, dies, or is removed before the objects of the
employed does not necessarily indicate or prove an
trust are accomplished, and no adequate provision
intention to create a trust (DE LEON, Partnership,
is made in such instrument for supplying the
Agency & Trusts, supra at 655).
vacancy, the proper Court of First Instance may,
after due notice to all persons interested, appoint a
The question in each case is whether the trustor
new trustee to act alone or jointly with the others, as
manifested an intention to create the kind of
the case may be (see RULES OF COURT, Rule 98,
relationship which to lawyers is known as trust. It is
Sec.3).
immaterial whether or not he knows that the
NOTE: There are cases in which it may appear that the bond shall be deemed to be altered accordingly
the trustor intended the trust to continue only so long (see RULES OF COURT, Rule 98, Sec.6).
as the person designated by him as trustee should
continue as such. It may be so provided by the terms APPRAISAL
of the trust, or it may appear that the purposes of the When an inventory is required to be returned by a
trust cannot be carried out unless the person named trustee, the estate and effects belonging to the trust
as trustee continues to act. In such a case, the trust shall be appraised and the court may order one or
will fail, if the trustee resigns, dies, is removed or more inheritance tax appraisers to assist in the
otherwise ceased to be a trustee (VILLANUEVA, appraisement (see RULES OF COURT, Rule 98,
Agency & Trusts, Partnerships & Joint Ventures, Sec.7).
supra at 292).
COMPENSATION OF TRUSTEE
TRUSTEE MUST FILE A BOND The compensation of the trustee shall be fixed by the
Before entering on his duties, a trustee shall file with court, if it be not determined in the instrument
the clerk of the court a bond payable to the creating the trust (see RULES OF COURT, Rule 98,
Government of the Philippines, sufficient and Sec.7).
available for the protection of any party in interest. A
trustee who neglects to file such bond shall be
considered to have declined or resigned the trust;
REMOVAL OR RESIGNATION OF
but the court may exempt a trustee under a will from TRUSTEE
giving a bond when the testator has directed or The proper Regional Trial Court may, upon petition
requested such exemption and may so exempt any of the parties beneficially interested and after due
trustee when all persons beneficially interested in notice to the trustee and hearing, remove a trustee if
the trust request the exemption. Such exemption such removal appears essential in the interest of the
may be cancelled by the court at any time and the petitioner. The court may also, after due notice to all
trustee required to forthwith file a bond (see RULES persons interested, remove a trustee who is insane
OF COURT, Rule 98, Sec.5). or otherwise incapable of discharging his trust or
evidently unsuitable therefor. A trustee, whether
CONDITIONS INCLUDED IN BOND appointed by the court or under a written instrument,
WHETHER WRITTEN THEREIN OR NOT may resign his trust if it appears to the court proper
to allow such resignation (see RULES OF COURT,
1. That the trustee will make and return to the
Rule 98, Sec.8).
court, at such time as it may order, a true
inventory of all the real and personal estate
belonging to him as trustee, which at the time of ACCEPTANCE OF BENEFICIARY
the making of such inventory shall have come NECESSARY
to his possession or knowledge; Acceptance by the beneficiary is necessary (NEW
2. That he will manage and dispose of all such CIVIL CODE, Art. 1446).
estate, and faithfully discharge his trust in
relation thereto, according to law and the will of However, if the trust imposes no onerous condition
the testator or the provisions of the instrument upon the beneficiary, his acceptance shall be
or order under which he is appointed; disputably presumed, if there is no proof to the
3. That he will render upon oath at least once a contrary (NEW CIVIL CODE, Art. 1446).
year until his trust is fulfilled, unless he is
excused therefrom in any year by the court, a Form of Acceptance of Beneficiary
true account of the property in his hands and Even if real property is involved, acceptance by the
the management and disposition thereof, and beneficiary need not be in a public instrument
will render such other accounts as the court (Cristobal v. Gomez, G.R. No. L-27014, October 5,
may order; 1927).
4. That at the expiration of his trust he will settle
his account in court and pay over and deliver all NOTE: Acceptance by the beneficiary of a gratuitous
the estate remaining in his hands, or due from trust is not subject to the rules for the formalities of
him on such settlement, to the person or donations (4 PARAS, supra at 898).
persons entitled to thereto.
Effect of Non-Acceptance of Beneficiary After
NOTE: But when the trustee is appointed as a Legal Title has been transferred to Trustee
successor to a prior trustee, the court may dispense Author Cesar Villanueva opines as follows: “The
with the making and return of an inventory, if one has essential characteristic of express trust being a
already been filed, and in such case the condition of preparatory contract would mean that with the
purpose of the trust no longer availing, since the
designated beneficiary has refused the trust (Filipinas Port Services Inc. v. Go, G.R. No. 161886,
relationship, the trust ceases to have an objective. March 16, 2007).
But since the naked or legal title remains with the
trustee, his obligations are to comply with the An implied trust is neither dependent upon an
instructions of the trustor, and to dispose of the trust express agreement nor required to be evidenced in
properties in accordance with the instructions of the writing, Article 1457 of our Civil Code authorizes the
trustor, which may include the designation of a new admission of parol evidence to prove their existence.
beneficiary (VILLANUEVA, Agency & Trusts, Parol evidence that is required to establish the
Partnerships & Joint Ventures, supra at 266). existence of an implied trust necessarily has to be
trustworthy and it cannot rest on loose, equivocal or
EXTINGUISHMENT OF EXPRESS indefinite declarations (Jose Juan Tong et al. v. Go
2
TRUST: (THE-MAD -BRAM) Tiat Kun et al., G.R. No. 196023, April 21, 2014).
1. Total loss of the object of the trust;
2. Happening of the resolutory condition, if one had RESULTING TRUST V. CONSTRUCTIVE
been imposed; TRUST
3. Expiration of the agreed term; RESULTING TRUST CONSTRUCTIVE
4. Mutual agreement of all parties; TRUST
5. Annulment or rescission of the trust;
6. Decision of court declaring the trust terminated; As to the Intention to Create Trust
7. Death or legal incapacity of the trustee when the
trustor intended no other person to administer The intent of the parties The trust is created
the trust (Cañezo v. Rojas, G.R. No. 148788, to create a trust is irrespective of or even
November 23, 2007); presumed or implied by contrary to the intention
8. Breach of trust; law from the nature of of the parties to promote
9. Revocation by the trustor when such power is their transaction. justice, frustrate fraud
reserved (VILLANUEVA, Agency & Trusts, and to prevent unjust
Partnerships & Joint Ventures, supra at 302); enrichment.
10. Accomplishment of the purpose of trust; and
11. Merger of the rights of the trustor and the As to Prescriptive Period
trustee, as when the trustor waived his beneficial The 10-year The 10-year
rights in favor of the trustee, or vice versa (4 prescriptive period shall prescriptive period shall
PARAS, supra at 899). be counted from the be counted from the
time repudiation is time the trustor or
made known to the beneficiary is charged
trustor or beneficiary. with constructive
IMPLIED TRUSTS knowledge of the
ARTS. 1447-1457 constructive trust.
(DE LEON, Partnership, Agency & Trusts, supra at
661-662).

IMPLIED TRUST IMPLIED TRUST RECOGNIZED BY THE

Those which, without being express, are deducible CIVIL CODE
from the nature of the transaction as matters of Resulting trusts
intent, or which are superinduced on the transaction 1. Purchase money resulting trust (NEW CIVIL
by operation of law, as matters of equity CODE, Art. 1448);
independently of the particular intention of the 2. Donations made to a person but the beneficial
parties (Philippine National Bank v. CA, G.R. No. interest is vested in another. The donee is the
97995, January 21, 1993). trustee while the designated third person is the
beneficiary (NEW CIVIL CODE, Art. 1449);
PROOF OF IMPLIED TRUSTS 3. Legal title to land inherited by heir placed in the
While implied trusts may be proved by oral evidence, name of another (NEW CIVIL CODE, Art. 1451);
the evidence must be trustworthy and received by 4. Legal title to property purchased taken in one co-
the courts with extreme caution, and should not be owner (NEW CIVIL CODE, Art. 1452); or
made to rest on loose, equivocal or indefinite 5. Conveyance under a promise to hold for, or
declarations. The proof should be as fully transfer to another (NEW CIVIL CODE, Art.
convincing as if the acts giving rise to the trust 1453).
obligation are proven by an authentic document
Constructive trusts three (3) lands to her son, Roberto, to support his
1. Purchase with borrowed funds and the application for travel to the US.
conveyance is made to lender to secure
payment of debt (NEW CIVIL CODE, Art. 1450); As a trustee of a resulting trust, therefore, Roberto,
2. Absolute conveyance to a person to secure like the trustee of an express passive trust, is merely
performance of grantor’s obligation (NEW CIVIL a depositary of legal title having no duties as to the
CODE, Art. 1454); management, control or disposition of the property
3. Purchase of property with use of trust funds and except to make a conveyance when called upon by
causes the conveyance to be made to the the cestui que trust (Estate of Cabacungan v. Laigo,
trustee or to a third person (NEW CIVIL CODE, G.R. No. 175073, August 15, 2011).
Art. 1455);
4. Property acquired through mistake or fraud Conversion of Resulting Trust to Express Trust
(NEW CIVIL CODE, Art. 1456). An implied trust can be converted into an express
trust if the implied trustee recognized the right of the
Enumeration not Exclusive owner over the property (PINEDA, Partnership,
The enumeration of cases of implied trusts does not Agency & Trusts (2006) p.446 [hereinafter PINEDA,
exclude others established by the general law of Partnership, Agency & Trusts]).
trust but the limitation laid down in Art. 1442 is
applicable (NEW CIVIL CODE, Art. 1447). A trust may have a constructive or implied nature in
the beginning, but the registered owner’s
An implied trust arising from mortgage contracts is subsequent express acknowledgement in a public
not among the trust relationships the Civil Code document of a previous sale of the property to
enumerates. However, the Code itself provides that another party effectively converted the same into an
such listing "does not exclude others established by express trust (Tamayo v. Callejo, G.R. No. L-25563,
the general law on trust.” Under the general July 28, 1972).
principles on trust, equity converts the holder of
property right as trustee for the benefit of another if 1. Purchase Money Resulting Trust;
the circumstances of its acquisition makes the holder When property is sold, and the legal estate is
ineligible "in good conscience to hold and enjoy it." granted to one party but the price is paid by
(Juan v. Yap, Sr., G.R. No. 182177, March 30, another party for the purpose of having the
2011). beneficial interest of the property (NEW CIVIL
CODE, Art. 1448).
The Court has recognized unconventional implied
trusts in contracts involving the purchase of housing GENERAL RULE: Purchase money resulting
units by officers of tenants’ associations in breach of trust occurs when there is:
their obligations, the partitioning of realty contrary to a. An actual payment of money, property or
the terms of a compromise agreement, and the services or an equivalent, constituting
execution of a sales contract indicating a buyer valuable consideration; and
distinct from the provider of the purchase money. In b. Such consideration must be furnished by the
all these cases, the formal holders of title were alleged beneficiary of a resulting trust
deemed trustees obliged to transfer title to the (Gabutan v. Nacalaban, G.R. Nos. 185857-
beneficiaries in whose favor the trusts were deemed 58 & 194314-15, June 29, 2016).
created. Thus, there is no reason to bar the
recognition of the same obligation in a mortgage EXCEPTIONS:
contract meeting the standards for the creation of an a. If the person to whom the title is conveyed is
implied trust. (Juan v. Yap, Sr., G.R. No. 182177, a child, legitimate or illegitimate, of the one
March 30, 2011). paying the price of the sale, it is disputably
presumed that there is a gift in favor of the
IMPLIED RESULTING TRUSTS child; (NEW CIVIL CODE, Art. 1448);
The principle of a resulting trust is based on the b. Where an actual contrary intention is
equitable doctrine that valuable consideration and proved;
not legal title determines the equitable title or interest c. Where the purchase is made in violation of
and are presumed always to have been an existing statute and in evasion of its
contemplated by the parties (Jose Juan Tong et al. express provision, no trust can result in
v. Go Tiat Kun et al., G.R. No. 196023, April 21, favor of the party who is guilty of fraud
2014). (Morales v. Court of Appeals, G.R. No.
117228, July 19, 1997).
Trustee as merely a depositary of legal title
FACTS: Unknown to the other children of Margarita,
the mother transferred the tax declarations of her
 No Implied Trust is Created when Purchase 1. Purchase with Borrowed Money;
is Made in Violation of Law If the price of a sale of property is loaned or paid
Where the purchase is made in violation of an by one person for the benefit of another and the
existing statute and in evasion of its express conveyance is made to the lender or payor to
provision, no trust can result in favor of the secure the payment of the debt, a trust arises by
party who is guilty of the fraud (Banco Filipino operation of law in favor of the person to whom
and Savings and Mortgage Bank vs. Tala the money is loaned or for whom it is paid. The
Realty Services Corporation et.al., G.R. No. latter may redeem the property and compel a
181933, September 9, 2013). conveyance thereof to him. (NEW CIVIL CODE,
Art. 1450).
2. Donation to a Person but Beneficial
Interest Vested in Another; NOTE: An agreement between the parties
A trust results in favor of the person in whom it whereby the property purchased shall be
is intended to vest the beneficial interest in the considered sold to the trustee in case the
property donated, with the done being the beneficiary fails to reimburse him is tantamount
trustee (DE LEON, Partnership, Agency & to pactum commissorium (DE LEON,
Trusts, supra at 688). Partnership, Agency & Trusts, supra at 689).

3. Legal Title to Land Inherited by Heir 2. Absolute Conveyance of Property is

Placed in the Name of Another; Made in order to Secure Performance of
Where a person who has acquired land by Grantor’s Obligation;
inheritance causes the legal title to be placed in If an absolute conveyance of property is made
the name of another, a resulting trust is instead in order to guarantee the performance of
presumed by law in favor of the true owner, the an obligation of the grantor toward the grantee,
heir (DE LEON, Partnership, Agency & Trusts, an implied trust is created by operation of law for
supra at 690). the benefit of the grantor (DE LEON,
Partnership, Agency & Trusts, supra at 694).
4. Legal Title to Property Purchased Taken
in One Co-owner; and 3. Purchase of Property with the Use of
For Article 1452 to apply, all that a co-owner Trust Funds and Causes the
needs to show is that there is “common consent” Conveyance to be Made to the Trustee or
among the purchasing co-owners to put the Third Person; and
legal title to the purchased property in the name The rule stands on the moral obligation to refrain
of the co-owner for the benefit of all. The from placing one’s self in position which
property must be capable of private ownership; ordinarily excite conflicts between self-interest
otherwise Article 1452 is not applicable (DE and integrity.
LEON, Partnership, Agency & Trusts, supra at
691). The rule in Article 1455 is entirely independent
of whether any fraud has intervened. No fraud,
5. Conveyance Under a Promise to Hold in fact need be shown, and no excuse will be
For, or Transfer to Another heard from the trustee (Id. at 695).
Article 1453 is based on the promise or
representation of the grantee to hold the 4. Acquisition of Property through Mistake
property conveyed for, or transfer it to another or or Fraud
the grantor. The grantee is estopped from Where a party acquires through mistake or fraud
asserting ownership in himself by denying his a legal title to the property to which another has
representation as against the person for whose a better right, there is created by law what is
benefit the implied trust is created (Id. at 693). termed in jurisprudence as constructive trust in
favor of the aggrieved party who is truly entitled
CONSTRUCTIVE TRUSTS to it or his successors-in –interest, and grants to
NOTE: A constructive trust does not emanate from the latter the right to recover his or their over the
or generate a fiduciary relation. Constructive trusts property by way of reconveyance while the
are created by the construction of equity in order to same has not yet passed to an innocent
satisfy the demands of justice and prevent unjust purchaser for value in keeping with the primary
enrichment (Jose Juan Tong et al. v. Go Tiat Kun et principle of law and equity that one should not
al., G.R. No. 196023, April 21, 2014). unjustly enrich himself at the expense of another
(Id. at 696).
DISTINCTION FROM RESULTING 2. The so-called trustee neither accepts any trust
TRUSTS nor intends holding the property for the
beneficiary (Estate of Cabacungan v. Laigo,
1. Resulting trusts are essentially G.R. No. 175073, August 15, 2011).
contractual 3. The implied trustee shall deliver the possession
a. The cases contemplated from Articles 1448 and reconvey title to the property to the
to 1454 all involve an implied intention by beneficiary of the trust, and to pay to the latter
the trustor to establish a trust in his own the fruits and other net profit received from such
favor or in favor of a third person. property during the period of wrongful or
b. The intentionality of the conveyance of unconscionable holding, and otherwise to adjust
property in favor of another instead of the the equities between the trustee holding the
equitable owner makes its contractual legal title and the beneficiaries of the trust
nevertheless. (Sumaoang v. Judge, RTC, G.R. No. 78173,
c. The right of the trustor or beneficiary to the October 26, 1992).
return and reconveyance of the trust
property is founded on the obligation to
INNOCENT PURCHASER FOR VALUE
restitute in case of rescission or annulment
of contract following its breach (See NEW The right of action in this constructive trust should
CIVIL CODE, Arts. 1385 and 1398). be exercised against the trustee, who caused the
d. The trustee has legal title to the trust fraud, and not against an innocent purchaser for
property and has no obligation to return value, as the Susana Realty, Inc. This right may
unless his ownership has become unlawful also be exercised against Santiago Cruz who also
or contrary to the objective of the trust. obtained title to the land with knowledge of the
fraud, but not with regard to Susana Realty, Inc.
which, as already stated, has bought the property in
2. Constructive Trusts are based on equity
good faith. The remedy in this case of the defrauded
a. Constructive Trusts as defined under Article
heirs is to bring an action for damages against those
1456 however contemplates situation where
who caused the fraud or were instrumental in
the conveyance of a property is by mistake
depriving them of the property. Their action cannot
or fraud therefore lacking in an intent to
reach an innocent purchaser for value who is
establish a trust.
protected by law (Avecilla v. Yatco, G.R. No. L-
b. The trust is purely a matter of equity and is
11578, May 14, 1958).
created even without any intention on the
part of the implied trustor.
c. As the basis of the trustee’s obligation is
mistake or fraud, a quasi-contract is created
instead. ACTIONS BASED ON TRUSTS
d. The obligation of the trustee to reconvey the
property wrongfully conveyed to him is
based on the principle against unjust
enrichment (NEW CIVIL CODE, Art. 22; REPUDIATION OF EXPRESS OR
Laureano v. Stevenson, G.R. No. 20783, RESULTING TRUST
October 16, 1923). A trustee (express trust or implied trust) cannot
acquire by prescription ownership over property
No Fiduciary Relation Exists entrusted to him until and unless he repudiates the
A court of equity does not consider a constructive trust (Vda. De Esconde v. Court of Appeals, G.R.
trustee for all purposes as though he were in reality No. 103635, February 1, 1996).
a trustee; although it will force him to return the
property, it will not impose upon him the numerous The repudiation constitutes a breach of contract
fiduciary obligations ordinarily demanded from a which gives the trustor and/or the beneficiary a
trustee of an express trust. It must be borne in mind cause of action (NEW CIVIL CODE, Art. 1170).
that in an express trust, the trustee has active duties
of management while in a constructive trust, the duty REQUISITES FOR VALID REPUDIATION:
is merely to surrender the property (PNB v. CA & (UPE)
B.P. Mata, G.R. No. 97995, January 21, 1993). 1. The trustee has performed Unequivocal acts of
repudiation amounting to an ouster of the cestui
NOTES: que trust;
1. In constructive trusts, there is neither a promise 2. Such Positive acts of repudiation have been
nor any fiduciary relation to speak of (Estate of made known to the cestui que trust; and
Cabacungan v. Laigo, G.R. No. 175073, August
15, 2011).
3. Evidence thereon is clear and positive (Vda. de When Cause of Action Over an Express or
Cabrera v. Court of Appeals, G.R. No. 108547, Resulting Trust Accrues
February 3, 1997). The cause of action accrues from the time when the
trustee’s repudiation of the trust is communicated
Repudiation Not Necessary in Constructive and made known to the trustor or beneficiary
Trusts (Salinas v. Tuason, G.R. No. L-33626, March 2,
In constructive trusts, the legal title of the 1931).
constructive trustee is acquired by fraud or mistake
and is therefore adverse from the beginning. It is not Prescription of Actions for Conveyance Based
necessary for the constructive trustee to repudiate on Constructive Trust
the trust. The obligation of the constructive trustee is created
by law (NEW CIVIL CODE, Art. 22). It follows that
Trustee Cannot Repudiate Trust by Relying on actions to enforce obligations created under a
Registration of property In His Own Name constructive trust prescribes within 10 years from the
A certificate of title under the Torrens System is accrual of cause of action (NEW CIVIL CODE, Art.
aimed to protect dominion, and should certainly be 1144, par. 2).
not turned into an instrument for deprivation of
ownership (Adriano v. CA, G.R. No. 124118, March NOTE: If the owner however is in possession of the
27, 2000). property wrongfully conveyed by fraud or mistake,
then the action to reconvey legal title acquired under
NOTE: The principle that a trustee who puts a a constructive trust partakes in the nature of quieting
certificate of registration in his name cannot of title. In such cases, the action does not prescribe
repudiate the trust by relying on the registration is (Heirs of Narvasa Sr. v. Imbornal, G.R. No. 182908,
one of the well-known limitations upon a title. (Jose August 6, 2014).
Juan Tong et al. v. Go Tiat Kun et al., G.R. No.
196023, April 21, 2014). The 4-year prescriptive period under Art. 1391
applies only if the fraud does not give rise to an
NOTE: Registration of a registered land by an implied trust, and the action is to annul avoidable
innocent purchaser for value shall be respected as a contract under Art. 1390 (Bejoc v. Cabreros, G.R.
matter of public policy to protect the integrity of the 145849, July 22, 2005).
Torrens System (Avecilla v.Yatco, G.R. No. L11578,
May 14, 1958). When Cause of Action Over a Constructive Trust
Accrues
PRESCRIPTION OF ACTIONS TO The right to seek reconveyance on an implied or
ENFORCE EXPRESS OR RESULTING constructive trust is not absolute. It is subject to
extinctive prescription. An action for reconveyance
TRUSTS based on implied or constructive trust prescribes in
1. Express Trusts Over Immovables 10 years. This period is reckoned from the date of
Express trusts over immovables must be written the issuance of the original certificate of tile or
(NEW CIVIL CODE, Art. 1443). transfer certificate of title. Since such issuances
operates as a constructive notice to the whole world
An action to enforce a written contract (Bejoc v. Cabreros, G.R. 145849, July 22, 2005).
prescribes within 10 years from the time the
cause of action accrues (NEW CIVIL CODE, Art. In constructive trusts (that are imposed by law),
1144, par. 1). there is neither promise nor fiduciary relation; the so-
2. Express Trusts Over Personalty called trustee does not recognize any trust and has
a. If the trust is written: 10 years from accrual no intent to hold for the beneficiary; therefore, the
of cause of action (NEW CIVIL CODE, Art. latter is not justified in delaying action to recover his
1144, par. 1). property. It is his fault if he delays; hence, he may be
b. If the trust is oral: 6 years from accrual of estopped by his own laches (Diaz v. Gorricho, G.R.
cause of action (NEW CIVIL CODE, Art. No. L-11229, March 29, 1958).
1145, par. 1).

3. Resulting Trusts
The obligations of the implied trustee are
created by law (NEW CIVIL CODE, Art. 1441). It
follows that actions to enforce obligations
created under an implied trust prescribes within
10 years from the accrual of cause of action
(NEW CIVIL CODE, Art. 1144, par. 2).
RULES ON PRESCRIPTION OF ACTION GROUND PRESCRIPTIVE PERIOD
FOR RECONVEYANCE BASED ON
IMPLIED TRUST wait until his possession is
The following are the rules on prescription and disturbed or his title is
laches in an action to recover the property held in attacked before taking steps
trust: to vindicate his right. His
undisturbed possession gives
him a continuing right to seek
GROUND PRESCRIPTIVE PERIOD the aid of a court of equity to
ascertain and determine the
If the action for The period of prescription is nature of the adverse claim of
reconveyance four (4) years from the a third party and its effect on
involves the discovery of fraud. his own title, which right can
annulment of a be claimed only by one who is
voidable contract REASON: The action for in possession (Gabutan v.
(Article 1390) annulment of voidable Nacalaban, G.R. Nos.
which became the contract shall be brought 185857-58 & 194314-15,
basis for within four years (CIVIL June 29, 2016).
fraudulent CODE, Art. 1391).
registration of the
subject property
TRUST PURSUIT RULE
Equity will pursue property that is wrongfully
If the action does The period of prescription is converted by the fiduciary, or otherwise compel
not involve an ten (10) years from the time restitution to the beneficiary. A trust will follow the
annulment of a the cause of action accrues. property through all changes in its state and form
contract, but there even into the hands of a transferee other than a
was fraud in the REASON: An action based bona fide purchaser for value, or restitution will be
registration of the upon an obligation by law enforced at the election of the beneficiary through
subject property must be brought within ten recourse against the trustee or the transferee
(10) years from the time the personally. (Estate of Margarita Cabacungan v.
right of action accrues (CIVIL Marilou Laigo, G.R. No. 175073, August 15, 2011).
CODE, Article 1144(2)).

If the action The action is imprescriptible.

involves the
declaration of the REASON: The action or
nullity or defense for the declaration of
inexistence of a the inexistence of a contract
void or inexistent does not prescribe (CIVIL
contract which CODE, Art. 1410).
became the basis
of fraudulent
registration of the
subject property

If the plaintiff or The action is imprescriptible.

the person In effect, the action for
enforcing the trust reconveyance is an action to
is in actual quiet the property title, which
possession of the does not prescribe.
property
Reason: The one who is in
actual possession of the land
claiming to be its owner may
 The absence of any of the essential elements
SALE shall negate the existence of a perfected
contract of sale (Dantis v. Maghinang Jr., G.R.
(ARTS. 1458-1637) No. 191696, April 10, 2013).

2. Natural
– Those elements which are deemed to exist in
CONTRACT OF SALE certain contracts in the absence of any contrary
By the contract of sale, one of the contracting parties stipulations (DE LEON, supra at 12).
obligates himself to transfer the ownership of and to
deliver a determinate thing, and the other to pay Examples: Warranty against eviction (CIVIL
therefor a price certain in money or its equivalent CODE, Art. 1548) and warranty against hidden
(CIVIL CODE, Art. 1458). defects (CIVIL CODE, Art. 1561).

ELEMENTS OF A CONTRACT OF SALE: 3. Accidental

1. Essential – Those elements which may be present or
– Those elements, without which, there can be absent depending on the stipulations of the
no valid sale. parties (e.g., conditions, interest, penalty, time
or place of payment) (DE LEON, supra at 12).
a. Consent / Meeting of the Minds – refers to
the consent on the part of the seller or PHASES OR STAGES OF CONTRACT
vendor to transfer and deliver, and on the OF SALE
part of the buyer or vendee to pay (CIVIL 1. Preparation
CODE, Art. 1475). – The period of negotiation and bargaining,
ending at the moment of agreement of the
NOTE: There may be a sale against the will parties.
of the owner in case of expropriation of
property for public use, which is governed by Policitation is an unaccepted unilateral promise
special laws (CIVIL CODE, Art. 1488). to buy or sell, prior to acceptance, and does not
give rise to any obligation or right. This produces
b. Object / Subject – refers to the determinate no juridical effect and creates no legal bond.
thing which is the object of a contract (CIVIL This is a mere offer and has not yet been
CODE, Art. 1460). converted into a contract except at the moment
it is accepted (Diamante v. CA, G.R. No. L-
c. Cause / Consideration – refers to a price 51824, February 7, 1992).
certain in money or its equivalent (CIVIL
CODE, Art. 1458). It is presumed that a 2. Perfection
contract has sufficient consideration (DE
– Birth of contract; a contract of sale is perfected
LEON & DE LEON JR., Comments and
upon the meeting of the minds of the parties:
Cases on Sales and Lease, (2014), p.12
a. To enter into a contract of sale, i.e.,
[hereinafter, DE LEON]). It includes the
acceptance of offer;
manner of payment.
b. Upon the thing which is the object of the
contract; and

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA R. TAMPUS, Vice
Chairperson for Secretariat | ARVY KEITH N. CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice
Chairperson for Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. THERESA GENEVIEVE NUEVE-CO and Atty. LUIS MANUEL BUGAYONG

c. On the consideration or price certain in Business Advertisements of Things for Sale
money or its equivalent (CIVIL CODE, Art. Unless it appears otherwise, they are not
1475, par. 1). definite offers but mere invitations to make an
offer (CIVIL CODE, Art. 1325).
From that moment, the parties may reciprocally
demand performance, subject to the provisions Advertisements for Bidders
of the law governing the form of contracts (CIVIL They are simply invitations to make proposals
CODE, Art. 1475, par. 2). and the advertiser is not bound to accept the
highest or lowest bidders, unless the contrary
EXCEPTION: When the sale is subject to a appears (CIVIL CODE, Art. 1326).
suspensive condition, because perfection takes
place from the moment the condition is fulfilled An offer becomes ineffective upon the death,
(Reyes v. Tuparan, G.R. No. 188064, June 1, civil interdiction, insanity, or insolvency of either
2011). party before acceptance is conveyed (CIVIL
CODE Art. 1323).
NOTE: Actual delivery of the subject matter or
payment of the price agreed upon are not Form of Acceptance
necessary components to establish the It must be absolute. A qualified acceptance
existence of a valid contract of sale. Neither is constitutes a counter-offer (CIVIL CODE, Art.
the delivery of the thing bought nor the payment 1319, par. 1). An acceptance may be express or
of the price necessary for the perfection of the implied (CIVIL CODE, Art. 1320).
contract of sale (DE LEON, supra at 16); their
non-performance do not also invalidate, or Acceptance by a letter or telegram
render void a sale that has begun to exist as a It does not bind the offeror except from the time
valid contract at perfection (VILLANUEVA, it came to his knowledge. Therefore, even if an
supra at 8). The non-performance merely acceptance has been mailed or sent to the
becomes the legal basis for remedies of either offeror, the offeror may still withdraw his offer
specific performance or rescission, with any time before he has knowledge of the
damages in either case (Gabelo v. CA, G.R. No. acceptance (CIVIL CODE, Art. 1319, par. 2).
111743, October 8, 1999).
The person making the offer may fix the time,
Consent place, and manner of acceptance, all of which
It is manifested by the concurrence of the offer must be complied with (CIVIL CODE, Art. 1321).
and the acceptance upon the thing and the An offer made through an agent is accepted
cause, which are to constitute the contract from the time acceptance is communicated to
(CIVIL CODE, Art. 1319, par. 1). him (CIVIL CODE, Art. 1322).

Elements of Consent: (SC3) 3. Consummation

a. Subjects / contracting parties (CIVIL CODE, – Death of contract; delivery/ actual transfer of
Art. 1318); ownership of the thing together with the payment
b. Concurrence of offer and acceptance (CIVIL of the price marks the consummation of the
CODE, Arts. 1319-1326); contract of sale (Robern Development Corp. v.
c. Legal Capacity of the contracting parties People’s Landless Associated, G.R. No.
(CIVIL CODE, Arts. 1327-1329); and 173622, March 11, 2013).
d. The Consent must be given intelligently,
freely, and spontaneously (CIVIL CODE, CHARACTERISTICS: (PNB-TOC2)
Arts. 1330-1336).
1. Principal
NOTE: The contract to sell is a bilateral contract. – It can stand on its own and does not depend
Where there is merely an offer by one party on another contract for its validity or existence
without the acceptance of the other, there is no (VILLANUEVA, supra at 5);
consent. (Salonga v. Farrales, G.R. No. L-
47088, July 10, 1981). 2. Nominate
– It has been given a particular name by law
Form of Offer (CIVIL CODE, Art. 1458);
It must be certain, definite, and intentional
(CIVIL CODE, Art. 1319, par. 1). 3. Bilateral
– It imposes an obligation on both parties
(VILLANUEVA, supra at 5);
a. Obligation of seller–to transfer ownership
 of and deliver a determinate thing; and CONTRACTS OF SALE DISTINGUISHED
b. Obligation of buyer–to pay a price certain FROM OTHER KINDS OF CONTRACTS
in money or its equivalent.
A contract is what the law defines it to be, taking into
consideration its essential elements, and not what it
4. Title
is called by the contracting parties (ACE Foods, Inc.
– Sale is merely a title that creates the obligation
v. Micro Pacific Technologies Co., Ltd., G.R.
on the part of the seller to transfer ownership
200602, December 11, 2013).
and deliver possession, but on its own, it is not
a mode that transfers ownership. (San Lorenzo
Development Corporation v. CA, G.R. No. CONTRACT OF AGENCY
124242, January 21, 2005); By the contract of agency a person binds himself to
render some service or to do something in
5. Onerous representation or on behalf of another, with the
– It imposes a valuable consideration, which is a consent or authority of the latter (CIVIL CODE, Art.
price certain in money or its equivalent (CIVIL 1868).
CODE, Art. 1458);
The transfer of title or agreement to transfer for a
Consequence: All doubts in construing an price paid is the essence of sale. If such transfer puts
onerous contract shall be resolved in greater the transferee in the position of an owner and makes
reciprocity of interests (CIVIL CODE, Art. 1378). him liable for the agreed price, the transaction is a
sale. On the other hand, the essence of an agency
6. Commutative to sell is the delivery to an agent, not as his property,
– Wherein a thing of value is exchanged for but as the property of his principal, who remains the
equal value, i.e., the value of the subject matter owner and has the right to control sales, fix the price
is equivalent to the price paid (VILLANUEVA, and terms, demand and receive the proceeds less
supra at 11); and the agent's commission upon the sales made (Sps.
Viloria v. Continental Airlines, Inc., G.R. No. 188288,
January 16, 2012).
7. Consensual
– It is perfected by mere consent (CIVIL CODE,
Art. 1475). SALE AND AGENCY TO SELL,
DISTINGUISHED
TWO MAJOR TYPES OF A CONTRACT SALE AGENCY TO SELL
OF SALE:
1. Absolute Sale As to Obligation to the Price
– No conditions attached; transfer of ownership Buyer pays the price. Agent delivers the price,
is vested upon delivery (CIVIL CODE, Art. which he got from his
1497); and buyer, to his principal.
2. Conditional Sale As to Transfer of Ownership
– Contemplates a contingency (CIVIL CODE,
Arts. 1461, 1462, par.2, and 1465) and subject Buyer receives the Agent receives the
to certain conditions (CIVIL CODE, Art. 1503, goods as owner. goods as goods of the
par. 1); ownership will not automatically transfer principal who retains his
to the buyer although the property may have ownership over them.
been previously delivered to him (Coronel v. CA,
G.R. No. 103577, October 7, 1996). As to Warranty of the Object Sold

Test: If the condition is imposed upon the seller’s Seller warrants the Agent makes no
obligation to transfer the ownership of and deliver thing sold (CIVIL warranty for which he
the thing, there is a conditional sale. (Santos v. CA, CODE, Arts. 1547, assumes personal
G.R. No. 120820, August 1, 2000). 1548, 1561, 1562, liability as long as he
1564, 1565, and 1566). acts within his authority
However, if the condition is imposed upon the and in the name of the
buyer’s obligation to pay the price, the sale is still seller.
absolute. Payment of the purchase price is part of
the consummation stage of the contract of sale.
(Heirs of J.M. Mascuñana v. CA, G.R. No. 158646,
June 23, 2005).
 SALE AGENCY TO SELL CONTRACT FOR A
SALE
PIECE OF WORK
As to the Right to Return the Thing
CODE, Arts. 1717-
Buyer, as a general Agent can return the 1718).
rule, cannot return the goods in case he is
object sold. unable to sell the same As to Object of the Contract
to a third person.
Sale of a manufactured The services dominate
As to the Right Over the Thing item; it is a sale of goods the contract even
even though the item is though there is a sale
Buyer, being the owner, The agent, in dealing manufactured by labor of goods involved (DE
can deal with the thing with the thing received, furnished by the seller LEON, supra at 55).
sold as he pleases. must act according to and upon previous order
the instructions of the of the customer (DE
principal. LEON, supra at 55).
As to Revocability As to Applicability of Statute of Frauds
Contract of sale is not Essentially revocable, Governed by the Statute Not governed by the
unilaterally revocable because it covers an of Frauds (CIVIL CODE, Statute of Frauds (DE
(VILLANUEVA supra at underlying fiduciary Art. 1483). LEON, supra at 55).
29). relationship between
the principal and the As to Existence of Thing
agent (CIVIL CODE,
Arts. 1919-1920). The thing transferred is The thing transferred
one which would have is not in existence and
(CIVIL CODE, Art. 1466; DE LEON, supra at 51-52) existed and would have would never have
been the subject of sale existed but for the
CONTRACT FOR A PIECE OF WORK to some other person, order of the party
When a factory accepts a job that requires the use even if the order had not desiring to acquire it
of extraordinary or additional equipment, or if it been given. (DE LEON, supra at
involves services not generally performed by it, the 55).
factory thereby contracts for a piece of work
(Celestino Co. v. CIR, G.R. No. L-8506, August 31, As to Rules in Determining if the Contract
1956). is One of Sale or a Piece of Work

The distinction between a contract of sale and one If ordered or If manufactured

for work, labor, and materials is tested by the inquiry manufactured in the especially for the
ordinary course of customer and upon his
whether the thing transferred is one not in existence
business (CIVIL CODE, special order, and not
and which never would have existed but for the order Art. 1467). for the general market
of the party desiring to acquire it, or a thing which (CIVIL CODE, Art.
would have existed and has been the subject of sale 1467).
to some other persons even if the order had not been
given (Del Monte PH, Inc. v. Aragones, G.R.
153033, June 23, 2005). BARTER
By the contract of barter or exchange one of the
SALE AND CONTRACT FOR A PIECE parties binds himself to give one thing in
OF WORK, DISTINGUISHED consideration of the other's promise to give another
thing (CIVIL CODE, Art. 1638).
CONTRACT FOR A
SALE
PIECE OF WORK SALE AND BARTER, DISTINGUISHED
As to Risk of Loss SALE BARTER

Borne by the buyer Borne by the worker or As to Nature

(CIVIL CODE, Arts. contractor, not by the
1189, 1480, 1538). employer [the person A thing is given in A thing is given in
who ordered] (CIVIL exchange for a price exchange for another
certain in money or its thing (CIVIL CODE, Art.
1638).
 SALE BARTER SALE AND DACION EN PAGO,
DISTINGUISHED
equivalent (CIVIL
SALE DATION IN PAYMENT
CODE, Art. 1458).

As to Applicable Law As to Existence of Credit

Law on Sales Law on Barter or There is a re-existing

No pre-existing credit.
credit.
Exchange (CIVIL
CODE, Arts. 1638- As to Payment of Price
1641).
Buyer still has to pay the The debtor receives the
As to Applicability of Statute of Frauds price. payment before the
The rules on the Statute The rules on Statute of contract is perfected.
of Frauds, which apply Frauds, which apply to As to Consideration
to the sale of real the sale of real property
property and personal and personal property On the part of the seller: On the part of the
property bought at P500 bought at P500 or the price. debtor: the
or more, apply. more, do not apply extinguishment of the
(VILLANUEVA, supra On the part of the buyer: debt.
at 18). the acquisition of the
object. On the part of the
When the Consideration is Partly in Money creditor: the acquisition
and Partly in Another Thing of the object offered in
lieu of the original
1. The transaction is characterized by the
credit.
manifest intention of the parties.
2. If there is no manifest intention – As to Determination of Price
a. Barter if the value of the thing is more
valuable than money (value of the thing > Greater freedom in Less freedom in
money) determining the price. determining the price.
b. Sale if the value of the thing is equal or less
than the amount of money (CIVIL CODE, As to Obligation
Art. 1468). (Value of the thing = or <
money). Obligations are created Obligations are
(CIVIL CODE, Art. extinguished (CIVIL
1458). CODE, Art. 1245).
RULE ON MONEY EXCHANGE
If local currency is exchanged for foreign currency, As to Governing Law
there is purchase and sale.
Law on Sales (CIVIL CODE, Art. 1245).
If the local currency is exchanged with other (DE LEON, supra at 58-59)
denominations of the same local currency, there is
barter.
LEASE
The rule is the same if a foreign currency is A contract whereby one person (lessor) binds
exchanged in the Philippines for another foreign himself to grant temporarily the enjoyment or use of
currency (5 PINEDA, Civil Code of the Philippines a thing or to render of some work or service to
Annotated V, (2010), p. 42 [hereinafter, 5 PINEDA, another (lessee) who undertakes to pay some rent,
Civil Code]). compensation or price therefor (DE LEON, supra at
703).
DATION IN PAYMENT
(DACION EN PAGO) SALE AND LEASE, DISTINGUISHED
Dation in payment is a mode of extinguishment of SALE LEASE
obligation whereby property is alienated to the
creditor in satisfaction of a debt in money. As to transfer of ownership

Ownership is No transfer of
transferred upon ownership because the
rights of the lessee are
 regarding the reservation of ownership to the
SALE LEASE
seller, it will be construed as a contract to sell if
delivery (CIVIL CODE, limited to the use and the true intent of the parties is to transfer the
Art. 1496). enjoyment of the thing ownership of the properties only upon the
leased (CIVIL CODE, buyer’s full payment of the purchase price (Sps.
Art. 1643). Orden, v. Sps. Aurea, G.R. No. 172733, August
20, 2008).
As to extent of transfer
3. There is a contract to sell when execution of a
Permanent transfer of Temporary transfer of deed of absolute sale was made dependent
ownership, unless possession (DE LEON, upon the proper court's approval of the sale of
subject to a resolutory supra at 720). the shares of the minor owners. A contract to sell
condition (CIVIL CODE, is a bilateral contract whereby the prospective
Art. 1465). seller, while expressly reserving the ownership
of the subject property despite delivery thereof
As to who may convey the property to the prospective buyer, binds himself to sell the
said property exclusively to the latter upon his
Seller must be the Lessor need not be the fulfillment of the conditions agreed upon. The
owner at the time the owner (DE LEON, fulfillment of the suspensive condition will not
property is delivered, or supra at 720). automatically transfer ownership to the buyer
at least authorized by although the property may have been previously
the owner to transfer delivered to him. The prospective seller still has
ownership (CIVIL to convey title to the prospective buyer by
CODE, Art. 1459). entering into a contract of absolute sale (Villamil
v. Sps. Erguiza, G.R. No. 195999, June 20,
As to significance of price of object
2018).
Usually, the selling The price of the object,
price is mentioned, as distinguished from the CONTRACT OF SALE AND CONTRACT
the parties involved can rent, is usually not TO SELL, DISTINGUISHED
fix it. However, the mentioned (DE LEON,
CONTRACT OF CONTRACT TO SELL
fixing of the price supra at 720).
SALE
cannot be left to the
discretion of one of the As to Effect of Perfection of Contract
contracting parties
(CIVIL CODE, Art. Gives rise to reciprocal Only gives rise to a
1473). demandable reciprocal suspensive
obligations: conditional obligation
CONTRACT TO SELL (i.e., non-demandable
1. On seller - to obligation until the
1. A bilateral contract where the prospective seller, transfer ownership condition happens) on
while expressly reserving the ownership of the and deliver the seller to transfer
subject property despite delivery thereof to the possession of the ownership only when the
prospective buyer, binds himself to sell the said thing buyer paid the price in
property exclusively to the prospective buyer full.
upon fulfillment of the condition agreed upon, 2. On buyer – to pay
that is, full payment of the purchase price. a price certain in
Failure to do so is not a breach but a situation money or its
preventing the obligation of the vendor to convey equivalent (CIVIL
title from acquiring obligatory force. Thus, for its CODE, Art. 1458).
non-fulfillment, there will be no contract to speak
of for the obligor failed to perform the suspensive
condition which enforces a juridical relation As to Transfer of Ownership
(Zamora Realty and Dev’t Corporation v. Office
of the President, G.R. No. 165724, November 2, Title passes to the Ownership will pass only
2006). buyer upon delivery of upon full payment of the
the thing sold (CIVIL price (CIVIL CODE, Art.
2. The real character of the contract is determined CODE, Art. 1496). 1478).
by the intention of the parties. Although a
document is denominated as “Deed of Absolute
Sale,” and there is no provision therein As to Effect of Non-Payment of Price
 CONTRACT OF CONTRACT TO SELL
A deed of sale is absolute in nature although
SALE
denominated as a “Deed of Conditional Sale” where
Failure to pay is a It is not a breach of the nowhere in the contract in question is a proviso or
negative resolutory contract but simply an stipulation to the effect that title to the property sold
condition, which puts event that prevents the is reserved in the vendor until the full payment of the
an end to the obligation of the vendor purchase price, nor is there a stipulation giving the
transaction (CIVIL to convey title from vendor the right to unilaterally rescind the contract
CODE, Art. 1179). acquiring a binding force from the moment the vendee fails to pay within a
(Manuel Uy & Sons, Inc. fixed period (Dignos v. CA, G.R. No. L-59266
v. Valbueco, Inc., G.R. February 29, 1988).
No. 179594, September
11, 2013). The Suspensive Condition in a Contract to Sell
is Commonly Full Payment of the Purchase Price
As to Remedy in Case of Non-Payment of A contract to sell is akin to a conditional sale where
Price the efficacy or obligatory force of the vendor's
obligation to transfer title is subordinated to the
1. Specific Action to recover happening of a future and uncertain event, so that if
performance; OR possession–if the buyer the suspensive condition does not take place, the
2. Rescission refuses to surrender the parties would stand as if the conditional obligation
thing to the seller. had never existed. The suspensive condition is
With the payment of commonly full payment of the purchase price
damages in either (Spouses Intac v. Spouses Cueto, G.R. No. 204735,
case (CIVIL CODE, February 19, 2018).
Art. 1191).
ABSOLUTE CONTRACT OF SALE AND
As to Ownership of Vendor
CONDITIONAL CONTRACT OF SALE,
Vendor has lost and Title remains in the DISTINGUISHED
cannot recover the vendor unless and until ABSOLUTE CONDITIONAL
ownership until and the vendee does not CONTRACT OF SALE CONTRACT OF SALE
unless the contract of comply with the
sale itself is resolved condition precedent. As to When Title Passes
and set aside.
Title passes to the There is a stipulation
As to Execution of Sale Document buyer upon delivery. reserving the title to the
seller until the fulfillment
Vendee becomes the Vendor still need to of the condition even if
owner of the property execute another there is delivery.
upon delivery of the instrument conveying
thing sold. the property to the As to Right to Rescind the Contract
vendee (e.g., deed of
absolute sale). Both parties have the There is a stipulation
(DE LEON, Supra at 21-23). right to rescind the that the seller may
contract. unilaterally rescind the
contract in case of non-
CONDITIONAL SALE fulfillment of the
1. In conditional obligations, the acquisition of condition.
rights, as well as the extinguishment or loss of
those already acquired, shall depend upon the (Dignos v. CA, G.R. No. L-59266, Feb. 29, 1988).
happening of the event which constitutes the
obligation (CIVIL CODE, Art. 1181);

2. There was no perfected sale of a lot if it was

conditionally or contingently awarded subject to
the approval by the city council of the proposed
consolidation subdivision plan, and the approval
of the award by the valuation committee and
higher authorities (People’s Homesite &
Housing Corp. v. CA, G.R. No. L-61623,
December 26, 1984).
 CONDITIONAL SALE AND CONTRACT It is a preparatory contract in which one party grants
TO SELL, DISTINGUISHED to the other, for a fixed period and under specified
conditions, the power to decide, whether or not to
CONDITIONAL SALE CONTRACT TO SELL enter into a principal contract. It binds the party who
has given the option not to enter into a principal
As to Reservation of Title to the Subject contract with any other person during the period
Property designated, and, within that period, to enter into such
contract with the one to whom the option was
In both cases the seller may reserve the title to
granted, if the latter should decide to use the option.
property until fulfillment of the suspensive
It is a separate agreement distinct from the contract
condition (e.g., payment) (Serrano v. Caguiat,
of sale, which the parties may enter into upon the
G.R. No. 139173, February 28, 2007).
consummation of the option (Carceller v. CA, G.R.
As to Effect of Fulfillment of Suspensive No. 124791, February 10, 1999).
Condition
CONTRACT OF SALE AND OPTION
The sale is perfected; if Ownership is not CONTRACT, DISTINGUISHED
there has been previous automatically
delivery of subject transferred to the buyer CONTRACT OF SALE OPTION CONTRACT
property to the buyer, (even if there has been
As to Kind of Contract
ownership previous delivery to
automatically transfers him) upon fulfillment of Bilateral contract. Unilateral contract. Only
to the buyer by suspensive condition the offeror has an
operation of law without (i.e., full payment of obligation
any further act on the purchase price). (VILLANUEVA, supra at
part of the seller. 125).
Seller still has to convey
title to prospective As to Consideration
buyer by entering into a
contract of absolute Consideration must be Consideration may be
sale. a price certain in money anything of value.
or its equivalent (CIVIL
As to Effect of Sale of the Subject Property to CODE, Art. 1458). Such consideration is
Third Persons separate and distinct
from the purchase price
Upon the fulfillment of There is no double sale (San Miguel Properties
suspensive condition, (because there is no Philippines, Inc. v.
sale becomes absolute previous sale of Huang, G.R. No.
which affects the property despite 137290, July 31, 2000).
seller’s title. fulfillment of suspensive
condition). As to Consent
The third person
becomes a buyer in bad The consent is the
The consent is the
faith if he possesses The third person is not a acceptance by the
acceptance of the offer
constructive or actual buyer in bad faith. offeree of the offeror’s
itself whereby the
knowledge of defect in promise to sell (or to
Prospective buyer offeree asserts his or
seller’s title. buy) the determinate
cannot seek relief of her right or privilege to
thing, i.e., the offeree
buy (or to sell), which
A subsequent buyer reconveyance of agrees to hold the right
constitutes as his or her
cannot defeat the first property. or privilege to buy (or to
consent to the sales
buyer’s title. sell) within a specified
contract.
period.
(DE LEON, supra at 29).
As to Subject Matter
OPTION CONTRACT
An option contract is an accepted promise to buy or The determinate thing the right or privilege to
to sell a determinate thing for a price certain which itself. buy (or to sell) a
is binding upon the promisor if the promise is determinate thing for a
supported by a consideration distinct from the price price certain (Philippine
(CIVIL CODE, Art. 1479). National Oil Company
v. Keppel Philippines
 Holdings, G.R. No. RULES WHEN A PERIOD IS GIVEN TO
202050, July 25, 2016) THE OFFEREE WITHIN WHICH TO
ACCEPT THE OFFER (I.E., OPTION)
ELEMENTS OF A VALID OPTION 1. If the period itself is not founded upon or
supported by a separate consideration, the
CONTRACT: (CSP) offeror is still free and has the right to withdraw
1. Consent; the offer before its acceptance, or, if an
acceptance has been made, before the offeror’s
2. Subject Matter coming to know of such fact, by communicating
– An option right to an “unaccepted unilateral that withdrawal to the offeree (Sanchez
offer to sell, or to buy” or an “accepted promise Doctrine);
to sell or promise to buy”: 2. The right to withdraw, however, must not be
a. A determinate object or determinable object; exercised whimsically or arbitrarily; otherwise, it
b. For a price certain, including the manner of could give rise to a damage claim under Article
payment thereof; 19 of the Civil Code;
3. If the period has a separate consideration, a
3. Prestation contract of option is deemed perfected, and it
– A consideration separate and distinct from the would be a breach of that contract to withdraw
purchase price for the option given the offer during the agreed period;
(VILLANUEVA, supra at 126). 4. The option is an independent contract by itself
and should be distinguished from the projected
NOTE: In an option contract, the option granted to main agreement. If the optioner-offeror
the offeree is for a fixed period and a determined withdraws the offer before its acceptance
price. Lacking these two essential requisites, what is (exercise of option) by the optionee-offeree, the
involved is only a right of first refusal (DE LEON, latter may not sue for specific performance on
supra at 101). the proposed contract (object of the option)
since there is no perfection of the option
WHEN THERE IS NO CONSIDERATION contract. The optioner-offeror, however, is liable
PRESENT for damages due to breach of the option
contract; and
The Supreme Court held that without a consideration 5. Care should be taken of the real nature of the
separate and distinct from the purchase price, an consideration given, for if in fact, it has been
option contract would be void as a contract, but intended to be part of the consideration for the
would still constitute a valid offer, so that if the main contract with a right of withdrawal on the
option is exercised prior to its withdrawal, the offer is part of the optionee, the main contract could be
accepted, and a valid and binding contract of sale is deemed perfected; a similar instance would be
entered into (Sanchez v. Rigos, G.R. No. L-25494, an earnest money in a contract of sale that can
June 14, 1972). evidence its perfection (Ang Yu Asuncion v. CA,
G.R. No. 109125, December 2, 1994).
When the offeror has allowed the offeree a certain
period to accept, the offer may be withdrawn at any
time before acceptance by communicating such PROPER EXERCISE OF OPTION
withdrawal, except when the option is founded upon The payment of the price is contingent upon the
a consideration, as something paid or promised delivery of the deed of sale. Unless and until the
(CIVIL CODE, Art. 1324). owner has done this, the buyer who has the option
is not and cannot be held in default in the discharge
Accordingly, when an option to buy or to sell is not of his obligation to pay (Nietes v. CA, G.R. No. L-
supported by a consideration separate from the 32873, August 18, 1972). Also, since the obligation
purchase price, the option constitutes as an offer to to pay is not yet due, consignation in court of the
buy or to sell, which may be withdrawn by the offeror purchase price is not required (Heirs of Luis Bacus
at any time prior to the communication of the v. CA, G.R. No. 127695, December 3, 2001).
offeree's acceptance. When the offer is duly
accepted, a mutual promise to buy and to sell under PERIOD WITHIN WHICH TO ENFORCE
the first paragraph of Article 1479 of the Civil Code THE VALID EXERCISE OF AN OPTION
ensues and the parties' respective obligations
Even when an option is exercised within the option
become reciprocally demandable (PNOC v. Keppel
period by the proper tender of the amount due,
Philippines Holdings, Inc., G.R. No. 202050, July 25,
nevertheless the action for specific performance to
2016).
enforce the option to purchase must be filed within
10 years after the accrual of the cause of action as
NOTE: There are other cases decided differently.
provided under Art. 1144 of the Civil Code (Dizon v. accepts the promise, but does not in turn
CA, G.R. No. 122544, January 28, 1999). promise to buy).

EFFECT OF EXERCISE OF OPTION When the offer is duly accepted, a mutual

Once an option is exercised, there arises a promise to buy and to sell under the first
reciprocal obligation. The performance of one paragraph of Article 1479 of the Civil Code
obligation is conditional on the simultaneous ensues and the parties' respective obligations
fulfillment of the other obligation (Heirs of Luis Bacus become reciprocally demandable (PNOC v.
v. CA, G.R. No. 127695, December 3, 2001). Keppel Philippines Holdings, Inc., G.R. No.
202050, July 25, 2016).
RIGHT OF FIRST REFUSAL Pending notice of its withdrawal, the accepted
When a lease contract contains a right of first promise partakes the nature of an offer to sell,
refusal, the lessor is under a legal duty to the lessee which if accepted, results in a perfected contract
not to sell to anybody at any price until after he has of sale, although the option is given without
made an offer to sell to the latter at a certain price consideration (Sanchez v. Rigos, G.R. No. L-
and the lessee has failed to accept it. The lessee has 25494, June 14, 1972).
a right that the lessor's first offer shall be in his favor
(Tanay Recreation Center and Development Corp. 2. Bilateral promise to buy and sell (CIVIL
v. Fausto, G.R. No. 140182, April 12, 2005). CODE, Art. 1479, par. 1).
When one party accepts the other’s promise to
A deed of sale executed in favor of a third party not buy, and the latter accepts the former’s promise
deemed a purchaser in good faith, in violation of the to sell a determinate thing for a price certain, it
right of first refusal granted to the optionee is valid has the same effect as a perfected contract of
but rescissible under Arts. 1380 to 1381[3] of the sale since it is reciprocally demandable (DE
New Civil Code which states that a contract which is LEON, supra at 122).
valid may be rescinded by reason of injury to third
persons (Riviera Filipina, Inc. v. CA, G.R. No. Since it is reciprocally demandable, the parties
117355, April 5, 2002). have the right to demand fulfillment or damages,
but there is no transfer of title of dominion yet. It
In an option to buy, the basis of the right of first requires no consideration distinct from the
refusal must be the current offer to sell of the seller selling price.
or offer to purchase of any prospective buyer. Only
after the optionee fails to exercise its right of first The prospective seller still has to convey title to
priority under the same terms and within the period the prospective buyer by entering into a contract
contemplated could the owner validly offer to sell the of absolute sale (Coronel v. CA, G.R. No.
property to a third person, again, under the same 103577, October 7, 1996).
terms as offered to the optionee (Parañaque Kings
Enterprises, Inc. v. CA, G.R. No. 111538, February
26, 1997).
RULES GOVERNING AUCTION SALES
(CIVIL CODE, Art. 1476)
1. Sales of separate lots by auction are separate
MUTUAL PROMISES TO BUY AND SELL
contracts of sale;
Promise to sell a determinate thing coupled with a
correlative promise to buy at a specified price is 2. Sale is perfected when the auctioneer
binding as an executory agreement (CIVIL CODE, announces its perfection by the fall of the
Art. 1479). hammer or in other customary manner; and
Until such announcement is made:
In an agreement to buy and sell, which is an a. Any bidder may retract his bid; and
executory contract, title to the property does not b. The auctioneer may withdraw the goods
pass to the promisee and the contracting parties are from the sale unless the auction has been
merely given the right to demand fulfillment of the announced to be without reserve.
contract in the proper cases, or damages for breach 3. Seller or his agent has the right to bid in the
thereof where it is not possible to carry out its terms auction, provided:
(Coronel v. CA, G.R. No. 103577, October 7, 1996). a. Such right was reserved;
b. Notice was given that the sale was subject
EFFECT OF PROMISE to a right to bid on behalf of the seller; and
1. Accepted unilateral promise to sell or c. Right is not prohibited by law or by
buy (CIVIL CODE, Art. 1479, par. 2) stipulation.
Only one makes the promise, which is accepted
by the other (e.g., A promise to sell to B, B
 REASON: To avoid puffing or secret bidding by Optima Realty Corp. v. Securitron Security Services,
or on behalf of the seller (DE LEON, supra at G.R. No. 199648, January 28, 2015).
95).
EARNEST MONEY AND OPTION
The owner of the property sold at the auction may MONEY, DISTINGUISHED
provide terms under which the auction will proceed
and the same are binding upon all bidders, whether EARNEST MONEY OPTION MONEY
they knew of such conditions or not (Leoquinco v.
The Postal Savings Bank, G.R. No. L-23630, August As to Transfer of Ownership
25, 1925).
Title passes to the Ownership is reserved
buyer upon delivery of to the seller and is not
When the auction sale had already been perfected,
the thing sold. passed until full
a supplemental sale with higher consideration at the
payment.
instance of only one party could no longer be validly
executed (Dizon v. Dizon, G.R. No. 156539, As to Effect of Non-Payment
September 5, 2007).
Action for specific There can be an action
EARNEST MONEY OR “ARRAS” performance or for for specific
Something of value to show that the buyer was really rescission can be filed performance.
in earnest and given to the seller to bind the bargain by the injured party.
(DE LEON, supra at 137).
As to Consideration
It is considered as:
It is part of the purchase Money is given as a
1. Part of the purchase price (an advance or down
price. distinct consideration
payment), and earnest money is deducted from
for an option contract
the total price; and
(see CIVIL CODE, Art.
2. Proof of perfection of the contract (CIVIL CODE,
1479, Par. 2).
Art. 1482).
As to Obligation of the Buyer Upon Payment
NOTE: Option money may become earnest money of Consideration
if the parties agree, or when it is considered as such
based on other terms or words used in the contract When given, the buyer The would-be buyer is
(DE LEON, supra at 139). is bound to pay the not required to buy.
balance.
By agreement of the parties, the amount given may
be merely a deposit of what would eventually As to Perfection of Sale
become earnest money or down payment should a
contract of sale be made by them, not as a part of There is already a sale. Applies to a sale not yet
the purchase price and as a proof of the perfection perfected.
of the contract of sale but only as a guarantee that
the buyer would not back out of the sale. It is only a "Earnest money" and "option money" are not the
proof of the concurrence of all essential elements of same but distinguished thus; (a) earnest money is
a contract which establishes the existence of a part of the purchase price, while option money is the
perfected contract (Manila Metal Container Corp. v. money given as a distinct consideration for an option
PNB, G.R. No. 166862, December 20, 2006). contract; (b) earnest money given only where there
is already a sale, while option money applies to a
In a potential sale transaction, the prior payment of sale not yet perfected; and, (c) when earnest money
earnest money even before the property owner can is given, the buyer is bound to pay the balance, while
agree to sell his property is irregular and cannot be when the would-be buyer gives option money, he is
used to bind the owner to the obligations of a seller not required to buy, but may even forfeit it depending
under an otherwise perfected contract of sale. The on the terms of the option (Limson v. CA, G.R. No.
property owner-prospective seller may not be legally 135929, April 20, 2001).
obliged to enter into a sale with a prospective buyer
through the latter’s employment of questionable
EFFECT OF RESCISSION ON EARNEST
practices which prevent the owner from freely giving
his consent to the transaction; this constitutes a MONEY RECEIVED
palpable transgression of the prospective seller’s In the absence of an express stipulation, the seller
rights of ownership over his property, an anomaly cannot keep the earnest money received to answer
which the Court will certainly not condone (First for the damages sustained in the event the sale fails
due to the fault of the prospective buyer (Goldenrod, thereof at the time it is delivered (CIVIL
Inc. v. CA, G.R. No. 126812, November 24, 1998). CODE, Art. 1459).

EXPENSES OF EXECUTION AND Requisites: (Co-In-In)

REGISTRATION i. It is not outside the Commerce of men;
ii. It is not Intransmissible; and
The expenses for the execution and registration of iii. It does not contemplate a future
the sale shall be borne by the vendor, unless there Inheritance, unless expressly
is a stipulation to the contrary (CIVIL CODE, Art. authorized by law (CIVIL CODE, Art.
1487). 1347).

When the subject matter is illicit, the

resulting contract is void (CIVIL CODE, Art.
OBJECTS OF SALE 1409, par. 1).

Kinds of Illicit Things:

i. Illicit per se (of its nature); and
GENERAL RULE: A person cannot sell or convey ii. Illicit per accidens (because of some
what he does not have or own. provisions of law declaring it illegal) (DE
LEON, supra at 31).
EXCEPTIONS:
1. Sale of a thing having potential existence (CIVIL Examples of Void Sale Due to Being Illicit
CODE, Art, 1461); per accidens:
2. Sale of future goods (CIVIL CODE, Art. 1462); i. Sale of animals suffering from
and contagious diseases (CIVIL CODE, Art.
3. Contract for the delivery at a certain price of an 1575, par. 1).
article which the vendor in the ordinary course of ii. Sale of animals if the use or service for
business manufactures or procures for the which they are acquired has been
general market, whether the same is on hand at stated in the contract, and they are
the time or not (CIVIL CODE, Art. 1467). found to be unfit therefor (CIVIL CODE,
Art. 1575, par. 2).
1. Rights iii. Sale of future inheritance except in
Requisites: cases expressly authorized by law
a. Transmissible or personal (CIVIL CODE, (CIVIL CODE, Art. 1347).
Art. 1459); iv. Sale of land in violation of the
b. Licit – it should not be contrary to law, constitutional prohibition against the
morals, good customs, public order, or transfer of lands to aliens (CONST., Art.
public policy (CIVIL CODE, Arts. 1459 and XII).
1347). v. Pursuant to the Public Land Act, a
contract which purports to alienate,
2. Things transfer, convey, or encumber any
Requisites: homestead within the prohibitory period
a. Actual or possible (CIVIL CODE, Arts. of five (5) years from the date of the
1461,1462 and 1465); issuance of the patent (Binayug v.
It must be existing, future, or subject to a Ugaddan, G.R. No. 181623, December
resolutory condition (CIVIL CODE, Arts. 5, 2012).
1461, 1462, par. 2). vi. Narcotics (R.A. 6425).
vii. Wild birds or mammals (Act. 2590, Sec.
A thing is actual when it is existing. A thing 7).
is possible when it has a potential existence. viii. Rare wild plants (Act. 2983, Sec. 1).
ix. Poisonous plants or fruits (R.A. 1288).
NOTE: When the requisite that the thing x. Dynamited fish (R.A. 428, Sec. 1).
should be actual or possible does not exist xi. Gunpowder and explosives (Sec. 1, Act.
as to subject matter, the resulting contract of 2255).
sale would be void (CIVIL CODE, Art. 1409, xii. Firearms and ammunitions (P.D. 9).
par. 3).
c. Determinate or at Least Determinable
b. Licit (CIVIL CODE, Art. 1459); (CIVIL CODE, Arts. 1458 & 1460).
The thing must be licit, and the vendor must Determinate Thing – that which is:
have a right to transfer the ownership i. Particularly designated; or
 ii. Physically segregated from all others of depends upon a contingency which may or may
the same class (CIVIL CODE, Art. 1460, not happen. In such case, the vendor assumes
par. 1). the risk of acquiring the title and making the
conveyance or responding in damages for the
NOTE: A determinate thing is identified by vendee's loss of his bargain (Martin v. Reyes,
its individuality (DE LEON, supra at 36). G.R. No. L-4402, July 28, 1952).

Illustration: A person may validly sell all the NOTE: The sole owner of a thing may sell an
cavans of rice inside a particular bodega but undivided interest therein (CIVIL CODE, Art. 1463).
if it is not specified and the seller has more
than one bodega, the contract shall be null A co-owner may sell, but the sale is limited to the
and void (DE LEON, supra at 86). portion which may be allotted to him in the division
of the thing upon the termination of the co-ownership
NOTE: Art. 1165 of the Civil Code provides (CIVIL CODE, Art. 493).
that if the obligation is to deliver a
determinate thing, the creditor has the right NOTE: The co-owners can dispose of their shares
to compel specific performance and to even without the consent of the other co-owners
recover damages for breach of the except when personal rights are involved (CIVIL
obligation (JURADO, Obligations and CODE, Art. 493). The effect is that the buyer
Contracts, (2010), p. 45 [hereinafter, becomes a co-owner in the thing sold (DE LEON,
JURADO, Obligations and Contracts]). supra at 47).

NOTE: A contract of sale is also perfected NOTE: An undivided share of a specific mass, in
even when the exact quantity or quality of case of fungible goods, may be sold (CIVIL CODE,
the subject matter is not known, so long as Art. 1464).
the source of the subject is certain and fixed
(National Grains Authority v. IAC, G.R. No. Effect: The buyer becomes a co-owner with the
74470, March 8, 1989). seller of the whole mass in the proportion in which
the definite share bought bears to the mass (CIVIL
GOODS CODE, Art. 1464).
Includes all chattels personal but not things in action
or money of legal tender in the Philippines. The term If later on, it be discovered that the mass of fungible
includes growing fruits or crops (CIVIL CODE, Art. goods contains less than what was sold, the buyer
1636). becomes the owner of the whole mass, and the
seller shall supply whatever is lacking from goods of
the same kind and quality, subject to any stipulation
KINDS OF GOODS: to the contrary (CIVIL CODE, Art. 1464).
1. Existing goods
– Those that are owned or possessed by the NOTE: Things subject to a resolutory condition (e.g.
seller may be the object of sale (CIVIL CODE, pacto de retro sale) may be the object of a contract
Art. 1462). of sale (CIVIL CODE, Art. 1465).

The seller must have the right to transfer NOTE: When the conditions have for their purpose
ownership at the time the thing is delivered. the extinguishment of an obligation to give, the
Hence, it is not required that the seller is the parties, upon the fulfillment of the said conditions,
owner of the thing at the moment of the shall return to each other what they have received
perfection of the contract of sale (CIVIL CODE, (CIVIL CODE, Art. 1190).
Art. 1459).
EMPTIO REI SPERATAE
2. Future goods (SALE OF THE THING EXPECTED)
– Cover goods that are to be manufactured,
raised, or acquired by the seller after the It is the sale of a thing with potential existence,
perfection of the contract of sale (CIVIL CODE, subject to a suspensive condition that the thing will
Art. 1462). come into existence (CIVIL CODE, Art. 1461).
Property or goods which at the time of the sale
are not owned by the seller but are to be If the subject matter does not come into existence,
acquired by him, cannot be the subject of an the contract is deemed extinguished as soon as the
executed sale but may be the subject of a time expires or if it has become indubitable that the
contract for the future sale and delivery thereof, event will not take place (CIVIL CODE, Art. 1461).
even though the acquisition of the goods The contract of sale will not become effective. As
such, the buyer will have no obligation to pay the EMPTIO REI SPERATAE AND EMPTIO
price (DE LEON, supra at 40).
SPEI, DISTINGUISHED
Illustration: S binds himself to sell, for a specified EMPTIO REI
EMPTIO SPEI
price, to B a parcel of land if he wins a case for the SPERATAE
recovery of said land pending in the Supreme Court.
The obligation will arise if the “expected thing” (which As to Effectivity of the Contract
is the land) will come into existence (i.e. if he wins
the case). Before a decision is rendered, there is Sale is subject to the Sale is effective even if
only “the mere hope or expectancy” that thing will condition that the thing the thing does not come
come into existence (DE LEON, supra at 42). will exist; if it does not, into existence, UNLESS
there is no contract. it is a vain hope or
An emptio rei speratae covers only contracts of sale expectancy.
whose subject matter are determinate and has no
As to Uncertainty
application to determinable generic things since the
condition that they must come into existence is It is with regard to the It is with regard to the
wholly irrelevant, for generic subject matters are quantity and quality of existence of the thing.
never lost (VILLANUEVA, supra at 67). the thing and not the
existence of the thing.
EMPTIO SPEI (“SALE OF HOPE”)
Sale of a mere hope or expectancy, which is deemed As to Object of Sale
subject to a condition that the thing will come into
existence (CIVIL CODE, Art. 1461, par. 2). Future thing. Present thing which is
the hope or expectancy.
Illustration: B buys a sweepstakes ticket in the (DE LEON, supra at 42).
hope of winning a prize. Here, the object of the
contract is the hope itself, not the prize. The sale is NOTE: In case of doubt, the presumption is in favor
valid even if B does not win a prize because it is not of emptio rei speratae; it is more in keeping with the
subject to the condition that the hope will be fulfilled commutative character of the contract (Id. at 43).
(DE LEON, supra at 42).

Emptio spei typifies a situation where the

commutative nature of a contract of sale seems not
to be complied with (VILLANUEVA, supra at 76).
PRICE
The sale of a vain hope or expectancy is void (CIVIL
CODE, Art. 1461). This affirms the requisite of PRICE
“possibility” of a subject matter as contrasted from
an impossible subject matter (VILLANUEVA, supra The sum stipulated as the equivalent of the thing
at 67). sold and also every incident taken into consideration
for the fixing of the price, put to the debit of the
Illustration: Sale of a losing ticket for a vendee and agreed to by him (Inchausti & Co. v.
sweepstakes already run. Cromwell, G.R. No. 6584, October 16, 1911).

However, the sale is valid if the ticket be a collector’s REQUISITES FOR VALID PRICE:
item (5 PARAS, Civil Code of the Philippines, (2016), (CARM2)
p. 21 [hereinafter, 5 PARAS]). 1. Certain or Ascertainable (CIVIL CODE, Art.
1458);
2. Real (CIVIL CODE, Art. 1471);
3. In Money or its Equivalent (CIVIL CODE, Arts.
1458 and 1468); and
4. Manner of payment must be agreed upon (CIVIL
CODE, Arts. 1458 and 1468).

REAL (NOT SIMULATED)

Price is real when at the perfection of the contract,
there is legal intention on the part of the buyer to pay
the price, and legal expectation on the part of the
seller to receive such price (VILLANUEVA, supra at
FALSE PRICE OR NON-PAYMENT OF
89).
CONSIDERATION PRICE
If the Price is Simulated declared, and what is
GENERAL RULE: The sale is void (CIVIL CODE, stated or declared in the
Art. 1471). sale is not the one
intended to be paid.
EXCEPTION: If it can be shown to be a donation or
another contract (CIVIL CODE, Art. 1471). As to Effect
The price is simulated when neither party had any
intention that the amount will be paid (Yu Bun Guan The statement of a false Failure to pay does not
v. Ong, G.R. No. 144735, October 18, 2001). cause or consideration make the sale null and
shall render a contract void for lack of
When a contract is void due to absence of void if it should not be consideration but
consideration, no title over the subject matter can be proved that it was results in buyer’s
conveyed. Nemo potest nisi quod de jure potest – no founded upon another default, for which the
man can do anything except what he can do lawfully cause which is true and seller may exercise his
(Traders Royal Bank v. CA, G.R. No. 93397, March lawful (CIVIL CODE, legal remedies
3, 1997). Art. 1353). (Balatbat v. CA, G.R.
No. 109410, August 26,
Requisites of Simulated Contract (FOP) If the price indicated in 1996).
1. An Outward declaration of will different from the the covering instrument
will of the parties; is false (i.e. there is REASON: Contract of
2. The False appearance must have been intended actually another price sale, being consensual,
by mutual agreement; and upon which the minds of is perfected by mere
3. The Purpose is to deceive third persons the parties have met), consent (CIVIL CODE,
(Payongayong v. CA, G.R. No. 144576, May 28, the contract of sale is Art. 1475). Delivery of
2004). valid, but the underlying the thing bought, or
deed is subject to payment of the price is
GENERAL RULE: When the price in a purported reformation to indicate not necessary for the
contract of sale is completely simulated, the in pari the real price agreed perfection of the
delicto non oritur actio shall apply, which denies all upon (CIVIL CODE, Art. contract (Alcantara-
recovery to the guilty parties inter se. Such principle 1359). Daus v Sps. De Leon.,
applies to cases where the nullity arises from the G.R. No. 149750, June
illegality of the consideration or the purpose of the There is a presumption 16, 2003.
contract (Modina v. CA, G.R. No. 109355, October that the consideration
25, 1999). exists and that it is
lawful. Even though it is
When the deed of sale states that the purchase price not stated in the
has been paid, but in fact has never been paid, the contract (CIVIL CODE,
deed of sale is null and void for lack of consideration. Art. 1354).
If no payment was actually made, this fact indicates
that its price purportedly paid was simulated (Heirs
of Ureta v. Heirs of Ureta, G.R. No. 165748, CERTAIN OR ASCERTAINABLE
September 14, 2011). 1. Certain
– Expressed and agreed in terms of specific
EXCEPTION: When the principle is invoked with pesos and/or centavos (VILLANUEVA, supra at
respect to inexistent and void contracts (Yu Bun 100).
Guan v. Ong, G.R. No. 144735, October 18, 2001).
2. Ascertainable
FALSE PRICE AND NON-PAYMENT – It is sufficient that the price is with reference
to another thing certain or that the determination
OF PRICE, DISTINGUISHED thereof be left to the judgment of a specified
FALSE PRICE OR NON-PAYMENT OF person or persons (CIVIL CODE, Art. 1469):
CONSIDERATION PRICE a. Fixed by a specified third person or persons
– if the third person or persons is unable or
As to Definition unwilling to fix the price, the contract shall
be inefficacious, unless the parties
The price is false when The failure of the buyer subsequently agree upon the price (CIVIL
there is a real price not to pay the price. CODE, Art. 1469).
 of which are subject to fluctuations of the market (DE
If the third person or persons is prevented LEON, supra at 73).
from fixing the price or terms by fault of
either the seller or the buyer, the party not in Example: I can sell you today my Mont Blanc
fault may have such remedies (rescission or fountain pen at the price equivalent to the stock
fulfillment, with damages in either case) quotation two days from today of 100 shares of
against the party in fault as are allowed the PLDT (5 PARAS, supra at 35).
seller or the buyer, as the case may be
(CIVIL CODE, Arts. 1469, 1191, par. 2 and Under Art. 1469 of the Civil Code, the parties give
1594). rise to a contract of sale when they appoint a third
party to fix the price. However, this is not allowed for
The party may demand from the courts the the determination of the subject matter of the sale.
fixing of a reasonable price, under the
principle that when the party prevents a REASON: The obligation to pay the price is a
condition from happening, that condition can fungible obligation; the price is essentially generic,
be deemed fulfilled by the other party (CIVIL and generally, cannot be extinguished by fortuitous
CODE, Art. 1186). event. On the other hand, the obligation to deliver a
subject matter and the title thereto is a specific
Even before the fixing of the price by the obligation, and therefore its designation cannot be
designated third person, a contract of sale is left to the will of a third party who may choose a
deemed to be perfected and existing, albeit subject matter beyond the capacity of the seller to
conditional (VILLANUEVA, supra at 101). comply with his obligations to deliver the same (DE
LEON, supra at 62).
Question: If the money paid is a counterfeit,
would the sale still be valid? FIXING OF THE PRICE BY ONE OF THE
PARTIES
Answer: Yes, for we cannot say that the
consideration or cause of the contract is the The fixing of the price can never be left to the
illegal currency. The real consideration or discretion of one of the contracting parties. However,
cause is still the VALUE or price agreed if the price fixed by one of the parties is accepted by
upon (5 PARAS, supra at 30). the other, the sale is perfected (CIVIL CODE, Art.
1473).
b. Fixed by the courts – where the third person
or persons fixes the price in bad faith or by Basis: The validity or compliance of a contract
mistake (CIVIL CODE, Art. 1469); cannot be made to depend upon the will of one party
(CIVIL CODE, Art. 1308).
c. Fixed by reference to a definite day, or in a
particular exchange or market (CIVIL The owner of a thing has the right to quote his own
CODE, Art. 1472). price, reasonable or unreasonable. It is up to the
prospective buyer to accept or reject it (Cornejo v.
Requisites: (MAD) Calupitan, G.R. No. L-2342, October 27, 1950).
i. Meeting of the minds as to the subject
matter; IN MONEY OR ITS EQUIVALENT
ii. Agreement that a price will be paid; and Article 1468 of the Civil Code recognizes that if the
iii. Delivery and appropriation consideration consists partly in money and partly in
another thing, the transaction can still be considered
Price of Securities, Grains, Liquids, and Other a contract of sale when it is the manifest intention of
Things is Considered Certain When: the parties.
1. The price fixed is that which the thing would
have on a definite day, or in a particular NOTE: The phrase “or its equivalent” means that
exchange or market (CIVIL CODE, Art. 1472); there is certainty as to the price but what is given as
2. An amount is fixed above or below the price on payment is an object (e.g., P50,000.00 worth of
such day, or in exchange or market, provided Maggi noodles).
said amount be certain (CIVIL CODE, Art.
1472); or MANNER OF PAYMENT MUST BE
3. Fixed by reference to another thing certain AGREED UPON
(CIVIL CODE, Art. 1469).
Before a valid and binding contract of sale can exist,
the manner of payment of the purchase price must
Article 1472 is especially applicable to fungible
first be established since the agreement on the
things (e.g., securities, grains, liquids, etc.) the price
manner of payment goes into the price, such that a
disagreement on the manner of payment is Rehabilitation Finance Corporation, G.R. No. L-
tantamount to a failure to agree on the price (Sps. 24571, December 18, 1970).
Navarra v. Planters Development Bank, G.R. No.
172674, July 12, 2007). EXCEPTIONS:
a. Where the price is so low as to be shocking
GROSS INADEQUACY OF PRICE (CIVIL to the moral conscience, judicial sale of
CODE, Arts. 1355 and 1470) personal property will be set aside; and
The price must be grossly inadequate or shocking to b. If in the event of a resale, a better price can
the conscience such that the mind revolts against it be obtained.
and such that a reasonable man would neither NOTE: The validity of the sale is not necessarily
directly nor indirectly be likely to consent to it. It must affected where the law gives to the owner the
be stressed that the property was mortgaged by right to redeem, upon the theory that the lesser
Lasola to the Rural Bank for P100,000.00. It was the price, the easier it is for the owner to effect
bought by the Rural Bank at the extra-judicial sale at redemption (The Abaca Corporation of the
P108,185.34. Also, the Certificate Authorizing Phils., v. Garcia, G.R. No. 118408, May 14,
Registration issued by the Bureau of Internal 1997).
Revenue to petitioners shows that the prevailing fair
market value of the property in 1989 was 3. RESCISSIBLE CONTRACTS OF
P85,260.00. All these show that the price in the SALE
amount of P150,000.00 paid by petitioners for the Inadequacy of price is a ground for rescission of
purchase of the property was within reasonable conventional sale in case of rescissible
bounds (Tio v. Abayata, G.R. No. 160898, June 27, contracts covered under Article 1381 of the Civil
2008). Code, namely:
a. Those entered into by guardians whenever
Inadequacy of price may be a ground for setting the ward whom they represent suffer lesion
aside an execution sale but is not a sufficient ground by more than one-fourth (¼) of the value of
for cancellation of a voluntary contract of sale the object of the sale; and
otherwise free from invalidating effects (Babasa v. b. Those agreed upon in representation of
CA, G.R. No. 124045, May 21, 1998). absentees, if the latter should suffer lesion
by more than one-fourth (¼) of the value of
1. VOLUNTARY SALES the object of the sale.
GENERAL RULE: Mere inadequacy of price
does not affect the validity of the sale if fixed in EXISTENCE OF SALE EVEN WHEN NO
good faith and without fraud (Hulst v. PR PRICE IS AGREED UPON
Builders, Inc., G.R. No. 156364, September 3, GENERAL RULE: When the price cannot be
2007). determined in accordance with Articles 1469 to
1473, the contract is inefficacious (“inefficacious”
EXCEPTIONS: means “the inability to produce the effect wanted”).
a. Where a low price indicates a vice of
consent, sale may be annulled (CIVIL EXCEPTION: The thing or a part thereof has been
CODE, Art. 1355), or the contract is delivered to and appropriated by the buyer, in which
presumed to be an equitable mortgage case the buyer has to pay a reasonable price
(CIVIL CODE, Art. 1602, par. 1 (1)); therefor (CIVIL CODE, Art. 1474). It is based on the
b. Where the price is so low as to be “shocking fundamental principle that no one should enrich
to the conscience,” sale may be set aside himself at the expense of other.
(Aguilar v. Rubiato, G.R. No. L-14823,
December. 9, 1919);
Appropriation
c. Where the price is simulated such as when
“Acceptance” by the buyer, having treated the
the parties intended a donation or some
subject matter as his own (VILLANUEVA, supra at
other act or contract (CIVIL CODE, Art.
110).
1471); and
d. Where the parties did not intend to be bound
Requisites for the Applicability of the Exception:
at all, the contract is simulated and void
(MAD)
(VILLANUEVA, supra at 131).
1. Meeting of the minds as to the subject matter;
2. Agreement that a price will be paid which fails to
2. INVOLUNTARY OR FORCED SALES meet the criteria of being certain or
GENERAL RULE: Mere inadequacy of the price ascertainable; and
is not a sufficient ground for the cancellation of 3. Delivery by the seller and appropriation by the
the sale of real property (Ponce de Leon v. buyer of the subject matter (Id. at 112).
 3. Sale of land by “Non-Muslim hill tribe cultural
Reasonable Price is generally the market price at minorities all throughout the Philippines” is void
the time and place fixed by the contract or by law for if not approved by the National Commission on
the delivery of the goods (DE LEON, supra at 74). Indigenous Peoples (ADMINISTRATIVE CODE
OF MINDANAO AND SULU, Sec. 145).

WHEN FORM IS IMPORTANT IN

FORMALITIES OF ENFORCEABILITY: (PReY Form)
CONTRACT OF SALE The following must be in writing to be enforceable:
1. Sale of Personal property at a price not less than
Five Hundred Pesos (P500);
2. Sale of Real property or an interest therein
GENERAL RULE: Contracts shall be obligatory in regardless of the price involved;
whatever form they may have been entered into, 3. Sale of property or of an interest therein not to
provided all the essential requisite for their validity be performed within a Year from the date thereof
are present (CIVIL CODE, Art. 1356). regardless of the nature of the property and the
price involved; and
EXCEPTION: When the law requires that a contract 4. When an applicable statute requires that the
be in some form in order that it may be valid or contract of sale be in a certain Form (CIVIL
enforceable, or that a contract be proved in certain CODE, Arts. 1403 par. 2, [a, d and e], and 1356).
way, that requirement is absolute and indispensable.
(CIVIL CODE, Art. 1356). EXCEPTIONS:
1. When there is a note or memorandum in writing
THE FORM OF SALE WILL AFFECT THE and subscribed by the party charged or his agent
VALIDITY UNDER THE FOLLOWING (CIVIL CODE, Art. 1403);
CIRCUMSTANCES: (PLN) 2. When there has been partial consummation of
the sale (CIVIL CODE, Art. 1403.);
1. In a sale of a Piece of land or any interest therein
3. When there has been failure to object to the
through an agent, the authority of the latter shall
presentation of evidence aliunde as to the
be in writing; otherwise the sale shall be void
existence of a contract (Barretto v. Manila
(CIVIL CODE, Art. 1874).
Railroad Co., G.R. No. L-21313, March 29,
1924; VILLANUEVA, supra at 172); and
If the proof of capacity consists of a special
4. When sales are effected through electronic
power of attorney duly notarized, mere
commerce (R.A. 8792, The Electronic
inspection of the face of such public document
Commerce Act, Sec. 6).
already constitutes sufficient inquiry. If no such
special power of attorney is provided or there is
NOTE: Statute of Frauds is applicable only to
one but there appears to be flaws in its notarial
executory contracts and not to contracts which are
acknowledgment, mere inspection of the
totally or partially performed (DE LEON, supra at
document will not do; the buyer must show that
144).
his investigation went beyond the document and
into the circumstances of its execution. Article
Statute of Frauds is inapplicable in a case of a verbal
1874 of the Civil Code provides that "when a
sale that had been executed (Heirs of Alido v.
sale of a piece of land or any interest therein is
Campano, G.R. No. 226065, July 29, 2019).
through an agent, the authority of the latter shall
be in writing; otherwise, the sale shall be void."
NOTE: Article 1358 of the Civil Code requires that
In other words, if the subject SPA was not
the form of a contract that transmits or extinguishes
proven to be duly executed and authentic, then
real rights over immovable property should be in a
it cannot be said that the foregoing requirement
public document, yet the failure to observe the
had been complied with; hence, the sale would
proper form does not render the transaction invalid.
be void (Heirs of Sarili v. Lagrosa, G.R. No.
The necessity of a public document for said
193517, January 15, 2014).
contracts is only for convenience; it is not essential
for validity or enforceability (Diampoc v.
2. Sale of Large cattle must be in writing otherwise
Buenaventura, G.R. No. 200383, March 19, 2018).
the sale will be void; and no sale of large cattle
shall be valid unless the sale is registered with
Even a sale of real property, though not contained in
the municipal treasurer who shall issue a
a public instrument or formal writing, is nevertheless
certificate of transfer (CIVIL CODE, Art. 1581;
valid and binding, for even a verbal contract of sale
P.D. 533).
or real estate; produces legal effects between the
parties. Consequently, when there is a defect in the legal capacity to contract (CIVIL CODE, Art.
notarization of a document, the clear and convincing 1327).
evidentiary standard originally attached to a duly-
notarized document is dispensed with, and the The contracts entered into by such legally
measure to test the validity of such document is incapacitated persons are not void, but merely
preponderance of evidence. Nevertheless, the voidable, subject to annulment or ratification
defective notarization of the deed does not affect the (CIVIL CODE, Art. 1390, Francisco v. Herrera,
validity of the sale of the house. Although Article G.R. No. 139982, November 21, 2002).
1358 of the Civil Code states that the sale of real
property must appear in a public instrument, the a. Purchase by a Minor
formalities required by this article is not essential for GENERAL RULE: The contract is voidable
the validity of the contract but is simply for its greater (CIVIL CODE, Art. 1390, par. 1).
efficacy or convenience, or to bind third persons, and
is merely a coercive means granted to the EXCEPTION: Where necessaries are sold
contracting parties to enable them to reciprocally and delivered to a minor or other person
compel the observance of the prescribed form. without capacity to act, the incapacitated
Consequently, the private conveyance of the house person must pay a reasonable price therefor
is valid between the parties (Diampoc v. (CIVIL CODE, Art. 1489, par. 2).
Buenaventura, G.R. No. 200383, March 19, 2018).
Necessaries cover everything
IF NOTARY PUBLIC IS NOT indispensable for sustenance, dwelling,
AUTHORIZED clothing, medical attendance, education,
and transportation, in keeping with the
If the deed of sale of land is notarized by a Notary
financial capacity of the family (FAMILY
Public whose authority had expired, the sale would
CODE, Art. 194).
still be valid, since for validity of the sale, a public
instrument is not even essential (Soriano v. Latoño,
G.R. No. L-3408, December 23, 1950). b. Sale by Minor
The sale of real property made by minors
who have already passed the age of puberty
IMPLIED IN FACT CONTRACT OF SALE and adolescence and are near the adult age
An Implied in Fact contract is one implied from facts when they pretend to have already reached
and circumstances showing a mutual intention to their majority, while in fact they have not,
contract. It is a contract, the existence and terms of and the other party had good reason to
which are manifested by conduct of the parties and believe that the minor was capable of
not by direct or explicit words between them. To contracting, is valid. The parties cannot be
create contracts implied in fact, circumstances must permitted afterwards to excuse themselves
warrant inference that one expected compensation from compliance with the obligation
and the other to pay (University of the Philippines v. assumed by them or to seek their
PHILAB, G.R. No. 152411, September 29, 2004). annulment. (RULES OF COURT, Rule 131,
Sec. 2) and the principle of estoppel applies
(Mercado and Mercado v. Espiritu, G.R. No.
L-11872, December 1, 1917).
CAPACITY TO BUY OR
SELL c. Sale by Insane or Demented Persons
Contracts entered into during lucid intervals
by insane or demented persons are
generally valid. Contracts agreed to in a
GENERAL RULE: All persons, whether natural or state of drunkenness or during a hypnotic
juridical, who can bind themselves, have legal spell are voidable (CIVIL CODE, Art. 1328).
capacity to buy and sell (CIVIL CODE, Art. 1489,
Par. 1 (1)). 2. RELATIVE INCAPACITY
–When certain persons, under certain
EXCEPTIONS: circumstances, cannot buy certain property
1. ABSOLUTE INCAPACITY (Wolfson v. Estate of Martinez, G.R. No. L-5970,
–Persons who cannot bind themselves (DE October 13, 1911).
LEON, supra at 184).
NOTE: Among people relatively incapacitated
Minors, insane or demented persons, and deaf- are those mentioned in Articles 1490 and 1491
mutes, who do not know how to write, have no of the Civil Code (5 PARAS, supra at 90).
a. Husband and Wife b. Incapacity by Reason of Relation to
GENERAL RULE: A sale between husband Property (CIVIL CODE, Art. 1491)
and wife is inexistent and void from the The following cannot acquire property by
beginning because such contract is purchase, even at a public auction, either in
expressly prohibited by law (CIVIL CODE, person or through the mediation of another:
Art. 1409, par. 7). (GAE-PJO)

NOTE: The prohibition applies to common- i. Guardian, with respect to the property of
law spouses. If the same rule is not applied, his ward;
“the condition of those who incurred guilt
would turn out to be better than those in Reason: Relationship is so intimate, the
legal union. Here, the contract is void not dependence so complete and the
because it falls under Article 1490 but influence so great that any transaction
because the Supreme Court deems such between the two (2) parties entered
contract as void for being contrary to morals while the relationship exists are
and public policy (Ching v. Goyangko, G.R. suspicious, and presumptively
No. 165879, November 10, 2006). fraudulent (DE LEON, supra at 194).

REASONS: ii. Agents, with respect to the property

i. To prevent commission of fraud or whose administration or sale may have
prejudice to third persons; been entrusted to them, unless the
ii. To prevent one from unduly influencing consent of the principal has been given;
the other; and
iii. To avoid indirect donations (Medina v. REASON: The agent and the principal
Collector of Internal Revenue, G.R. no. form one juridical person (Id. at 195).
L-15113, January 28, 1961).
After the termination of the relationship,
EXCEPTIONS: the agent is not prohibited to purchase
i. Regime of separation of property a property belonging to the erstwhile
governs them; principal (Valera v. Velasco, G.R. No. L-
ii. A judicial separation of property under 28050 March 13, 1928).
Article 135 of the Family Code has been
decreed (CIVIL CODE, Art. 1490, par. Neither is he prohibited from buying
2); properties of the principal, which are not
iii. Moderate gifts on the occasion of family included among the properties of which
rejoicing (FAMILY CODE, Art. 87). he was commissioned to sell (Moreno v.
Vilonea, 40 O.G. 2322 as cited in DE
NOTE: If the spouses had been legally LEON, supra at 151).
separated, there is no more prohibition for
them to sell properties to one another for However, the agent may buy the
they are now governed by the regime of property placed in his hands for sale
separation of property (PINEDA, Sales and and administration if the principal gives
Other Special Contracts, (2010), p. 108 his consent thereto (Cui v. Cui, G.R. No.
[hereinafter PINEDA, Sales]). L-7041, February 21, 1957).

Persons Permitted to Question the Sale iii. Executor or administrator, with respect
between Husband and Wife: to the property of the estate under
i. Persons who bear such a relationship to administration;
the spouses or to the property itself that
such transfer interferes with their rights Executors do not administer hereditary
or interest (Cook v. McMicking, G.R. No. rights of any heir; hence, there is no
L-8913, March 3, 1914), i.e., heirs of prohibition as to the purchase by an
either spouse, as well as creditors at the executor of hereditary rights (Naval v.
time of the transfer but not creditors who Enriquez, G.R. No. 1318 April 12,
became only such after the transaction; 1904).
and
ii. The Government is always an NOTE: With respect to Art. 1491 (1, 2,
interested party in all matters governing and 3), the sale shall only be voidable
taxable transactions (Medina v. CIR, because in such cases only private
G.R. No. L-15113, January 28, 1961). interests are affected (Wolfson v. Estate
 of Martinez, G.R. No. L-5970, October Lacaya, G.R. No. 173188, January 15,
13, 1911). 2014).

The defect can be cured by ratification The prohibition on purchase is all

of the seller (CIVIL CODE, Arts. 1392- embracing to include not only sales to
1396). private individuals but also public or
judicial sales (Ramos v. Ngaseo, A.C.
iv. Public officers and employees, with No. 6210, December 9, 2004).
respect to the properties of the
government, its political subdivisions, or Violation of this prohibition would
GOCCs that are entrusted to them. constitute breach of professional ethics
and malpractice for which the lawyer
The prohibition includes judges and may be reprimanded, suspended or
government experts who, in any disbarred from the practice of the legal
manner, take part in the sale. profession (Mananquil v. Villegas, A.M.
No. 2430, August 30, 1990).
REASON: To prevent the opening of
the floodgates to abuse, as it would be While contingent fee agreements are
very easy for such persons to justify indeed recognized in this jurisdiction as
gain or advantage on the part of the a valid exception to the prohibitions
persons whom they represent. under Article 1491(5) of the Civil Code .
Precisely to avoid such temptation and . . this recognition does not apply to the
quibbling, Article 1491 has entirely shut present case. A contingent fee
the door to such persons occupying contract is an agreement in writing
fiduciary positions, to even desire to where the fee, often a fixed percentage
acquire, directly or indirectly, properties of what may be recovered in the action,
of their ward, estate or principal, as the is made to depend upon the success of
case may be (VILLANUEVA, supra at the litigation. The payment of the
62). contingent fee is not made during the
pendency of the litigation involving the
v. Judges, justices, prosecuting attorneys, client’s property but only after the
clerks of courts, etc., with respect to judgment has been rendered in the case
property in custodia legis; and handled by the lawyer (Conjugal
partnership of Sps. Cadavedo v.
Prohibition with respect to Judges, Lacaya, G.R. No. 173188, January 15,
Justices 2014).
It is not required that some contest or
litigation over the property itself should The fact that the property in question
have been tried by the judge; such was first mortgaged by the client to his
property is in litigation from the moment lawyer and only subsequently acquired
that it became subject to the judicial by the latter in a foreclosure sale long
action of the judge, such as levy on after the termination of the case will not
execution (Tiangco v. Pabinguit, G.R. remove it from the scope of the
No. L-10439, October 17, 1916). prohibition for at the time the mortgage
was executed the relationship of lawyer
Prohibition with Respect to Lawyers and client still existed. To rule otherwise
For the prohibition to apply, the sale or would be to countenance indirectly what
assignment of the property must take cannot be done directly (Fornilda v.
place during the pendency of the RTC, G.R. No. 72306, October 6, 1988).
litigation involving the property. Where
the property is acquired after the Article 1491 (5) of the Civil Code
termination of the case, no violation of prohibits the purchase by lawyers of any
paragraph 5, Article 1491 of the Civil interest in the subject matter of the
Code attaches (Sabidong v. Solas, A.M. litigation in which they participated by
No. P-01-1448, June 23, 2013). reason of their profession. Here,
however, respondent lawyer was not
A thing is in litigation if there is a contest the purchaser or buyer of the property or
or litigation over it in court or when it is rights in litigation. For, in point of fact, it
subject of the judicial action (Conjugal was his son Julius, and not respondent
partnership of Sps. Cadavedo v. lawyer, who purchased the subject
 property (Santos v. Arrojado, A.C. No.
8502, June 27, 2018). SALE BY NON-OWNER
vi. Any Other person specially disqualified
by law (CIVIL CODE, Art. 1491).
Ownership is necessary only at the time of delivery
NOTE: With respect to Art. 1491 (4, 5, and 6), (CIVIL CODE, Art. 1459). Thus, sale by non-owner
the sale shall be null and void; public interest is at time of perfection is valid.
involved (CIVIL CODE, Art. 1409, par. 1; Rubias
v. Batiller, G.R. No. L-35072, May 29, 1973). When a person who is not the owner of a thing sells
or alienates and delivers it, and later the seller or
NOTE: The persons disqualified to buy referred grantor acquires title thereto, such title passes by
to in Articles 1490 and 1491 are also disqualified operation of law to the buyer or grantee (CIVIL
to become lessees of the things mentioned CODE, Art. 1434).
thereon (CIVIL CODE, Art. 1646).
PERFECTION STAGE:
Examples of Persons Especially Disqualified by
1. Sale by owner
Law:
– Valid
1. Aliens who are disqualified to purchase private
agricultural lands, unless by hereditary
2. Sale by non-owner
succession (intestate succession) (CONST. Art.
– Valid
XII, Secs. 3 and 7).

Where a land is sold to an alien who later sold it CONSUMMATION STAGE:

to a Filipino, the sale to the latter cannot be 1. Sale by owner
impugned. In such case, there would be no more – The contract is valid; the transfer of title is also
public policy to be served in allowing the Filipino valid.
seller or his heirs to recover the land as it is
already owned by a qualified person (Vicente 2. Sale by non-owner
Godinez v. Fong Pak Luen, G.R. No. L-36731, – The contract is valid because it has passed
January 27, 1983). perfection stage; the transfer of title is void (Id.
at 322-323).
Aliens may still be lessees even if they cannot
buy lands. Since the residence of aliens in the GENERAL RULE: Where goods are sold by a
Philippines is temporary, they may be granted person who is not the owner thereof, and who
temporary rights such as a lease contract which does not sell them under authority or with the
is not prohibited by the Constitution (DE LEON, consent of the owner, the buyer acquires no
supra at 736; Krivenko v. Register of Deed, G.R. better title to the goods than the seller had
No. L-630, November 15, 1947). (CIVIL CODE, Art. 1505).

2. An unpaid seller having a right of lien or having REASON: Nemo dat quod non habet (nobody
stopped the goods in transitu, who is prohibited can dispose of that which does not belong to
from buying the goods either directly or indirectly him).
in the resale of the same at a public or private
sale (CIVIL CODE, Art. 1533, par. 5). EXCEPTIONS: (ERJ-MTA-CU)
a. Owner is Estopped or precluded by his
3. The officer conducting the execution sale, or his conduct (CIVIL CODE, Art. 1505);
deputies cannot become a purchaser (RULES b. Sale made by the Registered or apparent
OF COURT, Rule 39, Sec. 19). owner in accordance with registration laws
(CIVIL CODE, Art. 1505);
NOTE: The prohibitions are applicable to sales in c. Sales sanctioned by Judicial or statutory
legal redemption (CIVIL CODE, Art. 1619); authority (CIVIL CODE, Art. 1505);
compromises (CIVIL CODE, Art. 2028); and
renunciations (CIVIL CODE, Arts. 6 and 1270). NOTE: The government does not warrant
the title to properties sold by the sheriff at
public auction or judicial sales (see CIVIL
CODE, Art. 1570).
 d. Purchases in Merchant's stores, fairs or Illustration: “A” purchased a genuine Rolex watch
markets (CIVIL CODE, Art. 1505, par. 3; from “B” who is a minor, “C” in turn purchased the
CODE OF COMMERCE, Arts. 85-86). watch from “A”. Although the title of “A” is voidable
due to minority of “B”, “C” became the owner of the
NOTE: To allow recovery would retard watch after it was delivered to him there being no
commerce. annulment of the purchase made. The possible
remedy of “B” is to go after “A”.
e. When a person who is not the owner sells
and delivers a thing, and subsequently TITLE AS TO MOVABLE PROPERTIES
acquires Title thereto (CIVIL CODE, Art. GENERAL RULE: Possession of movable property
1434); acquired in good faith is equivalent to title (CIVIL
CODE, Art. 559, par. 1).
f. When the seller has a voidable title which
has not been Avoided at the time of the sale EXCEPTIONS:
(CIVIL CODE, Art. 1506), provided that the 1. Owner lost the movable
buyer acquires the goods– – Owner may recover the movable without
a. In good faith; reimbursement (CIVIL CODE, Art. 559, par. 1.);
b. For value; and and
c. Without notice of the seller’s defect of
title. 2. Owner is unlawfully deprived of the movable
– Owner may recover the movable without
g. Sale by Co-owner of whole property or a reimbursement (CIVIL CODE, Art. 559, par. 1).
definite portion thereof (CIVIL CODE, Art.
493); Unlawful Deprivation
It is when the original owner has been
NOTE: If a co-owner sells the whole dispossessed without his consent (Dizon v.
property as his, the sale will affect only his Suntay, G.R. No. L-30817, September 29,
share, but not those of the other co-owners 1972). It includes not only cases of theft or
who did not consent to the sale. Only the robbery, but also those occasioned by swindling
rights of the seller are transferred, thereby or estafa (Del Rosario v. Lucena, G.R. No. L-
making the buyer a co-owner of the property 3546, September 13, 1907).
(Tomas Claudio Memorial College, Inc. v.
CA, G.R. No. 124262. October 12, 1999). EXCEPTIONS TO THE EXCEPTIONS:
1. The person who possesses the movable
h. Special rights of Unpaid seller (CIVIL property has acquired the same in good faith at
CODE, Arts. 1526-1533). a public sale (CIVIL CODE, Art. 559, par. 2);

ARTICLE 1505 AND ARTICLE 1506, NOTE: The owner cannot obtain its return
DISTINGUISHED without reimbursing the price paid therefor
Article 1505 refers to sale with void title, while (CIVIL CODE, Art. 559, par. 2).
Article 1506 refers to a sale with voidable title.
2. The buyer bought the movable at a merchant
SALE BY SELLER WITH VOIDABLE store (CIVIL CODE, Art. 1505).
TITLE
PUBLIC SALE
When a buyer buys a property from a seller with
voidable title to property, he acquires a good title to A sale of property at auction, where any and all
the property if (CIVIL CODE, Art. 1506). persons who choose are permitted to attend and
offer bids (BLACK’S LAW DICTIONARY).
Requisites: (GFA)
1. He buys it in Good faith; Store is any place where goods are kept for sale,
2. He buys it For value; and whether by wholesale or retail (5 PARAS, supra at
3. He is not Aware of the seller’s defect of title. 132).

REASON: Art. 1506 is predicated on the principle

that where loss has happened which must fall on one
of two innocent persons, it should be borne by him
who is the occasion of the loss (DE LEON, supra at
261).
 thereof may be considered as a specific thing (DE
EFFECTS ON THE LEON, supra at 207).

CONTRACT WHEN THE

THING SOLD HAS BEEN
NEGOTIABLE
LOST
DOCUMENTS
OF TITLE
EFFECT OF LOSS OF THING AT THE
TIME OF SALE:
1. Thing Entirely Lost DOCUMENT OF TITLE
– The contract shall be without any effect (CIVIL It is a document used in the ordinary course of
CODE, Art. 1493, par. 1). Where the thing is business in the sale or transfer of goods:
entirely lost at the time of perfection, the contract 1. As a proof of the possession or control of the
is inexistent and void (CIVIL CODE, Art. 1409, goods; or
par. 3) because there is no object (CIVIL CODE, 2. Authorizing or purporting to authorize the
Art. 1318, par. 2). possessor of the document to transfer or
receive, either by endorsement or by delivery,
The thing is lost when it perishes, or goes out of goods represented by such document (CIVIL
commerce, or disappears in such a way that its CODE, Art. 1636).
existence is unknown, or it cannot be recovered
(CIVIL CODE, Art. 1189, par. 2). KINDS:
1. Bill of Lading
2. Thing Partially Lost
– A document that serves as evidence of receipt
– If the subject matter is only partially lost, the
of goods for shipment issued by a common
vendee may elect between:
carrier. It is an instrument of two-fold character.
a. Withdrawing from the contract; or
It is at once a receipt and a contract. In the
b. Demanding the remaining part of the object,
former character it is an acknowledgment of the
paying its price in proportion to the sum
receipt of the property on board his vessel by the
agreed upon (CIVIL CODE, Art. 1493, par.
owner of the vessel. The receipt of the goods lies
2).
at the foundation of the contract to carry and
deliver (PINEDA, Sales, supra 146);
EFFECT OF LOSS IN CASE OF SPECIFIC
GOODS 2. Dock Warrant
Specific Goods – Goods identified and agreed – A warrant given by dock-owners to the owner
upon at the time a contract of sale is made (CIVIL of merchandise imported and warehoused on
CODE, Art. 1636, par. 1). the dock upon the faith of the bills of lading as a
recognition of his title to the goods (DE LEON,
Where the specific goods, without the knowledge of supra at 264);
the seller, have perished in part or have wholly or in
a material part so deteriorated in quality as to be 3. Warehouse Receipt
substantially changed in character, the buyer may: – A document of title issued by a
1. Rescind or withdraw from the contract; or warehouseman. It is a receipt wherein it is stated
2. Give it a legal effect, paying the proportionate that certain goods were received by the bailee to
price of the remaining object (DE LEON, supra be delivered to the bearer or to the order of any
at 207). person named in such receipt or to a specified
person (DE LEON, supra at 264); and
Divisible Sale: Option 2 is available only if the sale
is divisible (CIVIL CODE, Art. 1494, par. 2). A 4. Quedan
contract is divisible when its consideration is made – A warehouse receipt that covers sugar,
up of several parts (CIVIL CODE, Art. 1420). tobacco, rice or hemp (Philippine Legal
Encyclopedia, p. 811).
Indivisible Sale: It is believed that the buyer should
be made to pay only the proportionate price of the
remaining goods as provided for in Art. 1493(2) of NEGOTIABLE DOCUMENT OF TITLE
the Civil Code. If the sale is indivisible, the object A document of title in which it is stated that the goods
referred to will be delivered to the bearer, or to the
order of any person named in such document (CIVIL convey to a purchaser in good faith for value;
CODE, Art. 1507). and
2. Direct obligation of the bailee issuing the
HOW NEGOTIATED: document to hold possession of the goods for
him according to the terms of the document as
1. By Delivery
fully as if such bailee had contracted directly with
a. Where by the terms of the document, the
him (CIVIL CODE, Art. 1513).
one issuing the same undertakes to deliver
the goods to the bearer (CIVIL CODE, Art.
1508, par. 1); or UNAUTHORIZED NEGOTIATION
b. Where by the terms of the document, the As between the owner of a negotiable document of
one issuing the same undertakes to deliver title who indorsed it in blank and entrusted it to a
the goods to the order of a specified person, friend, and the holder of such negotiable document
and such person or a subsequent endorsee of title to whom it was negotiated in good faith and
has indorsed it in blank or to the bearer for value, the latter is preferred, under the principle
(CIVIL CODE, Art. 1508, par. 2). that as between two innocent persons, he who made
the loss possible should bear the loss (Siy Cong
Mere delivery without indorsement is sufficient if Bieng v. Hongkong and Shanghai Banking Corp,
the document is deliverable to the bearer. G.R. No. 34655, March 5, 1932).
However, even though the document is
deliverable to the order of a specified person, if A purchaser in good faith is one who has purchased
the latter indorsed it in blank by simply signing the property in good faith without notice of the defect
his name without specifying any person to whom of the title of the seller and for valuable consideration
the goods are to be delivered or indorsed it to (Inquimboy v. Vda. De Cruz, G.R. No, L-13953, July
bearer, the document may now be negotiated by 26, 1960).
mere delivery (PINEDA, Sales, supra at 149).
THE VALIDITY OF THE NEGOTIATION
2. By Endorsement and Delivery OF A NEGOTIABLE DOCUMENT OF
– The endorsement may be in blank, to bearer, TITLE IS NOT IMPAIRED BY THE FACT:
or to a specified person (CIVIL CODE, Art.
1509). 1. That the negotiation was a breach of duty on the
part of the person making the negotiation; or
If indorsed to a specified person, it may be again 2. That the owner of the document was deprived of
negotiated by endorsement of such person in the possession of the same by loss, theft, fraud,
blank, to bearer or to another specified person accident, mistake, duress or conversion, if the
(CIVIL CODE, Art. 1509). person to whom the document was negotiated
or a person to whom the document was
subsequently negotiated paid value therefor in
WHO MAY NEGOTIATE: good faith without notice of the breach of duty or
1. The owner of the document (i.e., the person to loss, theft, fraud, accident, mistake, duress or
whom it was originally issued); or conversion (CIVIL CODE, Art. 1518).
2. Any person to whom the possession or custody
of the document has been entrusted by the It is in protecting the rights and contractual
owner if: expectations of a buyer in good faith that the law
a. By the terms of the document, the goods are encourages the public to accept by way of
deliverable to the order of the person to negotiations and at face value negotiable
whom the possession or custody of the documents of title (VILLANUEVA, supra at 284).
document has been entrusted; or
b. By the time of such entrusting the document NEGOTIABLE INSTRUMENT V.
is in such form that it may be negotiated by
delivery (CIVIL CODE, Art. 1512). NEGOTIABLE DOCUMENT OF TITLE
NEGOTIABLE NEGOTIABLE
EFFECTS OF NEGOTIATION INSTRUMENT DOCUMENT OF TITLE
A person to whom the document is negotiated
As to Function
acquires:
1. Title to the goods as the person negotiating the It operates as a It operates as proof of
document to him had or had ability to convey to substitute for money. the possession or
a purchaser in good faith for value, and also control of the goods.
such title to the goods as the person to whose Authorizes or purports
order the goods were to be delivered by the to authorize the
terms of the document had or had ability to
 transferee no additional right (CIVIL CODE, Art.
NEGOTIABLE NEGOTIABLE
1511).
INSTRUMENT DOCUMENT OF TITLE

possessor of the The term “negotiation” is used with respect to

document to transfer or documents negotiable in form while non-negotiable
receive, either by documents may simply be transferred thing (DE
endorsement or by LEON, supra at 269).
delivery, goods
represented by such A non-negotiable document contains terms wherein
document (CIVIL the goods are deliverable to a specified person. In
CODE, Art. 1636). contrast, the terms of a negotiable document provide
that it is deliverable to the bearer, or to the order of
As to Governing Law any person named in the document (DE LEON,
supra at 265).
Governed by the Governed by the Civil
Negotiable Instruments Code, and in some EFFECTS OF TRANSFER
Law cases, by the A person to whom the document is assigned
Warehouse Receipt acquires:
Law and the Code of 1. The title to the goods, subject to the terms of any
Commerce agreement with the transferor; and
As to Special Endorsement of a Bearer 2. The right to notify the bailee who issued the
Instrument document of the transfer and also acquire the
direct obligation of such bailee to hold
A bearer instrument is The special possession of the goods for him according to the
always a bearer endorsement of a terms of the document (CIVIL CODE, Art. 1514,
instrument even if a bearer instrument has pars. 1 and 2).
special endorsement is the effect of converting
made (NEGOTIABLE the bearer instrument NOTE: Notification is an operative act to transfer
INSTRUMENTS LAW, into an order instrument the title or possession of the goods in favor of
Sec. 40). (DE LEON, supra at the transferee.
267).
Before notification, the bailee is not bound to
As to Placing of the Words “Non-Negotiable” transfer whose right may be defeated by a levy
on the Instrument or Document or attachment or execution upon the goods by
the creditor of the transferor or by notification to
The instrument is no If words “non- such bailee of the subsequent sale of the goods
longer negotiable. negotiable” or the like (CIVIL CODE, Art. 1514, par. 3).
are placed on the
document, such There is no legal relationship between the
document may assignee and the bailee until the latter is
nevertheless be informed by the former of the assignment of the
negotiated by the holder document of title (VILLANUEVA, supra at 285).
(CIVIL CODE, Art.
1510). TRANSFER OF ORDER DOCUMENT
WITHOUT INDORSEMENT
NON-NEGOTIABLE DOCUMENT OF This article specifies the rights of a person with
TITLE whom an order document of title, which may not be
A document of title which does not state that the properly be negotiated by mere delivery, has been
goods referred to document are deliverable either to delivered, without indorsement.
bearer or to the order of any person named 1. Right to the goods as against the transferor; and
(VILLANUEVA, supra at 279). 2. Right to compel the transferor to indorse the
document.
HOW TRANSFERRED OR ASSIGNED The negotiation shall take effect as of the time when
A document of title which is not in such form that it the indorsement is actually made (CIVIL CODE, Art.
can be negotiated by delivery may be transferred by 1515).
the holder by delivery to a purchaser or donee. A
non-negotiable document cannot be negotiated and NOTE: If the Intention of the parties is that the
the endorsement of such a document gives the document should be merely transfer, the transferee
has no right to require the transferor to indorse the Prior to notification of the bailee of the transfer
document (DE LEON, supra at 277). of document of title, the title of the transferee to
the goods may be defeated by levy of
WARRANTIES ON NEGOTIATION OR attachment of execution (CIVIL CODE, 1514,
ASSIGNMENT par. 3).
A person who negotiates or transfers a document of
title warrants that: (MINT-G)
1. The goods are Merchantable or fit for a particular
purpose; OBLIGATIONS OF THE
2. He has knowledge of no fact which would Impair VENDOR
the validity or worth of the document;
3. He has a legal right to Negotiate or transfer it;
4. He has a right to Transfer the title to the goods;
and OBLIGATIONS OF THE VENDOR:
5. The document is Genuine (CIVIL CODE, Art.
(ADDED-MENT)
1516).
1. Accord the buyer the right to examine the goods
The endorsement of a document of title shall not (CIVIL CODE, Art. 1584);
make the endorser liable for any failure on the part 2. Deliver the thing sold (CIVIL CODE, Arts. 1458
of the bailee who issued the document or previous and 1495)–cannot be waived;
endorsers thereof to fulfill their respective 3. Deliver the fruits and accessories (CIVIL CODE,
obligations (CIVIL CODE, Art. 1517). The Arts. 1164, 1166, and 1537);
indorsement of a document of title in the law on sales 4. Enter into a contract with the carrier on behalf of
is merely a conveyance of the document by the the buyer as may be reasonable under the
transferor to the holder. It is not a contract of circumstances (CIVIL CODE, Art. 1523);
guaranty (DE LEON, supra at 279). 5. Take care of the thing, upon perfection and prior
to delivery, with the proper Diligence of a good
NOTE: The warranties of one who negotiates a father of a family (CIVIL CODE, Art. 1163;
negotiable document of title, and one who assigns a VILLANUEVA, supra at 195);
non-negotiable document of title are the same 6. Make warranties (CIVIL CODE, Arts. 1495,
(VILLANUEVA, supra at 311). 1545-1581)–can be waived or modified;
warranty is not an essential element of the
contract of sale;
RULES ON LEVY / GARNISHMENT OF 7. Pay for the Expenses for the execution and
GOODS registration of the sale, unless there is
1. Negotiable Document of Title stipulation to the contrary (CIVIL CODE, Art.
Goods cannot be attached by garnishment or 1487);
levied, unless: 8. Notify the buyer regarding the necessity to
a. The document is first surrendered; insure goods if it is usual to insure them (CIVIL
b. The negotiation of the document is enjoined; CODE, Art. 1523); and
or 9. Transfer ownership (CIVIL CODE, Arts. 1458
c. The document is impounded by the court and 1495)–cannot be waived.
(CIVIL CODE, Art. 1519).
TRANSFER OF OWNERSHIP (CIVIL CODE,
A creditor whose debtor is the owner of a Arts. 1458 and 1495)
negotiable document of title shall be entitled to GENERAL RULE: Ownership of the thing sold is
aid from the courts of appropriate jurisdiction by acquired only upon its delivery, actual or
injunction and otherwise in attaching the constructive, to the buyer even if purchase was
document or in satisfying the claim by means made on credit (Alcantara-Daus v. Sps. De Leon,
thereof as is allowed at law or in equity in regard G.R. No. 149750, June 16, 2003).
to property which cannot be attached or levied
upon by ordinary legal process (CIVIL CODE, Payment of the purchase price is not essential to the
Art. 1520). transfer of ownership, as long as the property sold
has been delivered (Sampaguita Pictures, Inc. v.
2. Non-Negotiable Document of Title Jalwindor Manufacturers, Inc., G.R. No. L-43059,
It cannot be negotiated but it can only be October 11, 1979).
transferred or assigned by delivery. Even if the
document is indorsed, the transferee acquires Non-payment only creates a right to demand
no additional right. payment or to rescind the contract, or to criminal
prosecution in the case of bouncing checks (EDCA
Publishing and Distributing Corp. v. Santos, G.R. (CIVIL CODE, Art. 1502, par. 1). What is
No. 80298, April 26, 1990). reasonable is a question of fact. It depends upon
the prevailing circumstances. Moreover, the
EXCEPTIONS (Cases Where There is decision to return or tender on the part of the
Reservation of Ownership Despite Delivery): buyer is discretionary on his part without
(PRANC) reference to the quality of goods (PINEDA,
1. Pactum reservati dominii (contractual Sales, supra at 125).
reservation of title)
– In sale, the general rule is that delivery of the 4. Sale by a Non-Owner
thing transfers ownership to the buyer (CIVIL – The contract is valid because it has passed the
CODE, Art. 1477). However, the parties may perfection stage, but the transfer of title is void.
agree that the ownership shall remain with the Rationale: Nemo dat quod non habet (nobody
seller until the full payment of the purchase price can dispose of that which does not belong to
(CIVIL CODE, Art. 1478). him) (Gochan v. Heirs of Baba, G.R. No.
138945, August 19, 2003).
2. Implied Reservation of Ownership under Article
1503: 5. Contract to sell (Coronel v. CA, G.R. No.
a. Where goods are shipped and, by the bill of 103577. October 7, 1996).
lading the goods are deliverable to the
seller, or his agent, or to the order of the DELIVERY OF THE THING SOLD (CIVIL
seller or agent–seller reserves ownership in CODE, Arts. 1458 and 1495)
the goods;
b. Where goods are shipped, and by the bill of It is a mode of acquiring ownership, as a
lading the goods are deliverable to the order consequence of certain contracts such as sale, by
of the buyer or his agent, but the possession virtue of which, actually or constructively, the object
of the bill of lading is retained by the seller is placed in the control and possession of the
or his agent–seller reserves a right to the vendee.
possession of the goods; and
c. Where the seller of the goods draws on the Seller is bound to deliver all goods unless delivery
buyer for the price and transmits the bill of by installment has been agreed upon (CIVIL CODE,
lading and bill of exchange to the buyer to Art. 1583).
secure acceptance or payment of the bill of
exchange and the buyer does not honor the Seller is bound to deliver the thing sold and its
bill of exchange. Here, the seller is the accessions and accessories in the condition in which
drawer and the buyer is the drawee. If the they were upon the perfection of the contract (CIVIL
buyer, as drawee, does not honor the bill of CODE, Art. 1537).
exchange, he shall return the bill of lading.
If he retains the same, he acquires no added DELIVERY IN CASES OF EXECUTION
right thereby. SALES
The judgment debtor in an execution sale is not
3. Sale on Acceptance/trial/approval/satisfaction obliged to deliver the property sold to the buyer
(CIVIL CODE, Art. 1502). immediately after the sale since he is given the right
of redemption. He can redeem the property within
Ownership passes to the buyer only when: one (1) year from the registration of the sale in the
a. He signifies his approval or acceptance to Office of the Registry Property (Techico v. Serrano,
the seller or does any act adopting the G.R. No. L- 12693, May 29, 1959).
transaction; or
b. He does not signify his approval or It is only after the lapse of one (1) year from the
acceptance but retains the goods without registration of the sale that the buyer may take
giving notice of rejection, then if a time has possession of the property. If the seller refuses to
been fixed for the return of the goods, on the surrender possession of the property, the buyer may
expiration of such time, and, if no time has petition the court for a Writ of Possession (PINEDA,
been fixed, on the expiration of a reasonable Sales, supra at 113).
time (CIVIL CODE, Art. 1502, pars.1 and 2).

NOTE: In “Sale or Return,” ownership passes to

the buyer on delivery, but he may revest the
ownership in the seller by returning or tendering
the goods within the time fixed in the contract, or
if there is no time fixed, within a reasonable time
KINDS OF DELIVERY: (DAD-QTL) buyer under control (Santos v. Santos, G.R. No.
1. Delivery through document of title (CIVIL CODE, 133895, October 2, 2001).
Arts. 1507-1520);
2. Actual or Real (CIVIL CODE, Art. 1497); NOTE: In all forms of delivery, it is necessary
3. Delivery through carrier (CIVIL CODE, Art. that the act of delivery, whether constructive or
1503); actual, should be coupled with the intention of
4. Quasi-tradition (CIVIL CODE, Art. 1501); delivering the thing. The act, without the
5. Tradition by operation of law (CIVIL CODE, Art. intention, is insufficient. . . Without that intention,
1434); and there is no tradition (Union Motor Corporation v.
6. Legal or Constructive (CIVIL CODE, Art. 1498- CA, GR 117187, July 20, 2001).
1500).
TYPES:
ACTUAL OR REAL 1. Delivery by Execution of Public
Placing the thing under the control and possession Instrument (CIVIL CODE, Art. 1498, par. 1)
of the buyer (CIVIL CODE, Art. 1497). – It gives rise to a prima facie presumption of
delivery, which is destroyed when actual
LEGAL OR CONSTRUCTIVE delivery is not effected due to legal impediment
(Ten Forty Realty v. Cruz, G.R. No. 151212,
Delivery is represented by other signs or acts
September 10, 2003).
indicative thereof. It is a delivery by fiction of law.
The notarized deed of sale has two
Under Article 1496 of the Civil Code, constructive
functions:
delivery can take several forms, and may be any
a. It operates as a formal or symbolic delivery
“manner signifying an agreement that the
of the property sold; and
possession is transferred from the vendor to the
b. It authorizes the buyer to use the document
vendee.” The essence of most forms of constructive
as proof of ownership (VILLANUEVA, supra
delivery is the existence of an agreement between
at 201).
the seller and the buyer, and that the latter is
understood to have control of the subject matter of
Exceptions (Cases Where the Execution of
the sale (VILLANUEVA, supra at 200).
Public Instrument Does NOT Produce the
Effects of Delivery):
Requisites: (ACI)
a. There is a stipulation in the instrument to the
1. The seller must have Actual possession and
contrary.
control over the thing;
2. The object must be placed under Control of the
Instances where contrary stipulation is
vendor; and
present:
3. There must be an Intention to deliver the thing
i. A certain date is fixed for the purchaser
for purposes of transferring ownership.
to take possession of the property
subject of the conveyance;
NOTE: (3I’S OF DELIVERY) ii. In sale by installments, where it is
1. Identity stipulated that until the last installment is
– The very same object must be delivered. The made, the title to the property should
absolute giving up of control and custody of the remain with the seller;
property on the party of the vendor and the iii. When the seller reserves the right to use
assumption of the same by the vendee and enjoy the property until the
(Equatorial Realty Development, Inc. v. Mayfair gathering of the pending crops; or
Theater, Inc., G.R. No. 106063, November 21, iv. Where the seller has no control over the
1996); thing sold at the moment of the sale,
and, therefore, its material delivery
2. Integrity could not have been made (Villamar v.
– A seller’s duty is to deliver the thing sold in a Mangaoil, G.R. No. 188661, April 11,
condition suitable for its enjoyment by the buyer 2012).
for the purposes contemplated (Consing v. CA,
G.R. No. 78272, August 29, 1989); and b. When at the time of the execution of the
public instrument, the subject matter was
3. Intentional not subject to the control of the seller or
– The act of delivery must be coupled with the there is an impediment that may prevent the
intention of delivering the thing and putting the passing of the property.
 If, notwithstanding the execution of the subject matter of the sale by virtue of another
instrument, the purchaser cannot have the title which is not ownership (e.g., as lessee), and
enjoyment and material tenancy of the thing pursuant to a sale, he would now hold
and make use of it himself or through possession in the concept of an owner (CIVIL
another in his name, because such tenancy CODE, Art. 1499).
and enjoyment are opposed by another, the
delivery has not been effected. It is not NOTE: Article 1499 expressly applies to
enough for the vendor to vest unto the movable property. This notwithstanding, traditio
vendee the ownership and the right of longa manu and tradition brevi manu, apply to
possession over the property, but it must immovable property.
also be placed in his control (Addison v.
Felix, G.R. No. L-12342, August 3, 1918). 5. Traditio Constitutum Possessorium
Opposite of Traditio Brevi Manu (DE LEON,
c. The control or ability to transfer physical supra at 231). The delivery consists in the
possession and enjoyment does not subsist owner’s continuous possession of the property
for a reasonable length of time after the he had already sold to another person, but his
execution of the instrument (Cebu Winland present possession is no longer that of an owner
Development Corporation v. Ong Siao Hua, but under another capacity, like that of a lessee,
G.R. No. 173215, May 21, 2009). depository, etc. Under this kind of tradition, the
law considers all these formalities to have taken
The absence of control for a reasonable place by agreement of the parties (Carbonell v.
length of time after execution would create CA, G.R. No. L-29972, January 26, 1976). There
undue burden on the part of the buyer who is both constructive and actual delivery in
would be compelled to literally jump into the tradition constitutum possessorium (CIVIL
possession of the subject matter soon after CODE, Art. 1500).
signing the instrument, for he would then
obtain no remedy from the seller QUASI-TRADITIO
(VILLANUEVA, supra at 207).
Delivery of rights, credits or incorporeal property,
made by:
Since tradition is an obligation on the part of
1. Execution of a public instrument; or
the seller, then the burden must continue to
2. Placing titles of ownership in the possession of
lie with the seller to grant the buyer a
the vendee; or
reasonable period to take possession of the
3. The use and enjoyment by the buyer of the rights
subject matter (Vda. de Sarmiento v.
pertaining to the incorporeal property, with the
Lesaca, G.R. No. L-15385, June 30, 1960).
seller’s consent (CIVIL CODE, Art. 1501).
2. Traditio Symbolica
To effect delivery, the parties may use a token
TRADITION BY OPERATION OF LAW
or symbol to represent the thing delivered (e.g., When a non-owner who sells and delivers a thing
key to a house) (CIVIL CODE, Art. 1498). subsequently acquires title thereto, the title passes
by operation of law to the buyer (CIVIL CODE, Art.
3. Traditio Longa Manu (Long Hand 1434).
Delivery)
Delivery of a thing by mere agreement where the DELIVERY THROUGH DOCUMENT OF
seller points out to the buyer the property without TITLE (CIVIL CODE, Arts. 1507-1520)
the need of actually delivering (as when the thing Please see the discussion on Negotiable
sold cannot be transferred to the possession of Documents of Title on page 545.
the vendee at the time of sale) but must be within
the sight of the parties (CIVIL CODE, Art. 1499). DELIVERY THROUGH CARRIER
GENERAL RULE: Where the seller is authorized or
NOTE: The delivery “by mere consent or
required to send the goods to the buyer, delivery to
agreement of the contracting parties” is qualified
the carrier constitutes delivery to the buyer (CIVIL
by the phrase “if the thing sold cannot be
CODE, Art. 1523).
transferred to the possession of the vendee at
the time of the sale (DE LEON, supra at 231).
EXCEPTIONS:
1. When a contrary intention appears (i.e., the
4. Traditio Brevi Manu (Short Hand parties did not intend the delivery of the goods
Delivery) through the carrier); or
Before the contract of sale, the would-be buyer
was already in possession of the would-be
2. Implied reservation of ownership (CIVIL CODE, 3. A period for payment has been fixed in the
Art. 1503, pars. 1, 2 and 3). contract but the vendee has lost the right to
make use the term as provided in Article 1198
KINDS OF DELIVERY TO CARRIER: (CIVIL CODE, Art. 1536).
1. F.A.S. (Free Alongside Vessel)
The seller pays all charges and bears the risk PLACE OF DELIVERY:
until the goods are placed alongside the vessel. 1. The place of delivery agreed upon;
2. In the absence of an agreement, place is
determined by usage of trade;
2. F.O.B. (Free on Board) 3. In the absence of an agreement and there is also
Goods are to be delivered free of expense to the no prevalent usage, the seller’s place of
buyer to the point where they are F.O.B. The business;
point of F.O.B. (either at the point of shipment or 4. In any other case, the place of delivery is the
the point of destination) determines when the seller’s residence; or
ownership passes. 5. In case of specific goods known by the parties at
a. F.O.B. Shipping point–delivery of the some place at the time of the perfection of sale,
goods to the carrier is equivalent to delivery such is the place of delivery, in the absence of
to the buyer, and at that point the risk of loss agreement or usage of trade to the contrary
pertains to the buyer. (CIVIL CODE, Art. 1521).
b. F.O.B. Destination–only when the vessel
has arrived at the point of destination would Wherever the proper place of delivery may be, either
there be delivery to the buyer; and prior to party acquires a right of action by being ready and
that point in time, the risk of loss will be willing at that place to perform his legal duty, if the
borne by the seller. other party is not present or even if present, is not
prepared to perform in a proper manner with what is
3. C.I.F. (Cost, Insurance, Freight) incumbent upon him (CIVIL CODE, Art. 1169, par.
It signifies that the price fixed covers the costs of 3).
the goods, the expenses of the freight and the
insurance all of which are to be paid by the seller Where, however, the delivery was not effected at the
up to the point of destination. place specified in the contract, but the buyer
accepted the goods without complaint, the buyer
4. C.O.D. (Collect on Delivery) would be deemed to have waived the seller’s
The carrier acts for the seller in collecting failure to deliver according to the terms of the
purchase price, which the buyer must pay to contract and would be liable to pay the price agreed
obtain possession of the goods (DE LEON, upon (Sullivan v. Gird, 22 Ariz. 332 as cited in DE
supra at 293-295). LEON, supra at 284).

NOTE: The terms F.O.B. and C.O.D. merely make TIME OF DELIVERY:
rules of presumption, which yield to proof of contrary 1. Agreement of the parties; or
intention (General Foods Corp. v. National Coconut 2. In the absence thereof, within a reasonable time
Corp., G.R. No. L-8717, November 20, 1956). (CIVIL CODE, Art. 1521, par. 2).

INSTANCES WHEN THE VENDOR IS Hour of delivery

NOT BOUND TO DELIVER: The demand or tender of delivery to be effectual
must be made at a reasonable hour of the day (CIVIL
1. If vendee has not paid him the price (CIVIL CODE, Art. 1521, par. 4)
CODE, Art. 1524);

EXCEPTION: If parties stipulated on different

DUTY OF SELLER TO PUT GOODS IN
periods for delivery and payment of price, DELIVERABLE CONDITION
vendor must deliver on the time agreed on Unless otherwise agreed, the seller bears the
despite non-payment of price at the time of expenses to place the thing in a deliverable state
delivery as price is considered due only upon the (CIVIL CODE, Art. 1521, par. 5).
expiration of the term agreed on (CIVIL CODE,
Art. 1193). How does an “as-is where-is” type of sale affect
the vendor’s obligation to deliver?
2. If no period for payment has been fixed in the The phrase “as-is where-is” basis pertains solely to
contract (CIVIL CODE, Art. 1524); or the physical condition of the thing sold, not to its
legal situation, and therefore does not amount to a
waiver on the legal defects pertaining to the subject
matter (NDC v. Madrigal Wan Hai Lines Corp., G.R. price; such sale depends upon the discretion of the
No. 148332, September 30, 2003). buyer (CIVIL CODE, Art. 1502, par. 1).

It is merely descriptive of the state of the thing sold. Rules:

Thus, the “as-is where-is” basis merely describes the 1. Title passes to the buyer upon delivery;
actual state and location of the property sold. The 2. Buyer bears the risk of loss;
depiction does not alter the seller’s responsibility to 3. The option to purchase or return the goods rests
deliver the property to the buyer (Asset Privatization entirely on the buyer without reference to the
Trust v. T.J. Enterprises, G.R. No. 167195, May 8, quality of the goods;
2009). 4. The buyer may revest the ownership in the seller
by returning or tendering the goods within the
SALE ON ACCEPTANCE, TRIAL, time fixed in the contract or within a reasonable
APPROVAL, OR SATISFACTION time if no time is fixed; and
5. The buyer must comply with the express or
A contract is in the nature of an option to purchase if implied conditions attached to the privilege;
the goods prove to be satisfactory, with the approval otherwise, the sale becomes absolute and
of the buyer being a condition precedent; the sale is becomes liable for the price (DE LEON, supra at
dependent upon the quality of goods (CIVIL CODE, 236).
Art. 1502, par. 2).

Rules: SALE OR RETURN AND SALE ON

1. Title remains in the seller, until the sale TRIAL, DISTINGUISHED
becomes absolute by: SALE OR RETURN SALE ON TRIAL
a. Buyer’s approval of the goods; or
b. Buyer’s failure to comply with the express or As to Condition Imposed
implied conditions of the contract as to
giving notice of dissatisfaction or as to Subject to a resolutory Subject to a suspensive
returning the goods; or condition. condition.
c. By his doing any other act adopting the
transaction (e.g., mortgaging the property or As to Option of the Buyer to Purchase
selling it to a third person).
Depends entirely on the Depends on the
will of the buyer. character of the goods.
2. Risk of loss remains with the seller, except
when the buyer is at fault or has agreed to bear As to Transfer of Ownership
the loss;
Ownership passes to Ownership remains in
3. Buyer must give the goods a trial, except where the buyer on delivery the seller until the buyer
it is evident that it cannot perform the work and subsequent return signifies his approval or
intended; reverts ownership to acceptance to the seller.
the seller.
4. Period within which buyer must signify
acceptance runs only when all parts essential for Ownership is revested There is no revesting of
the operation of the object have been delivered; in the seller if the buyer ownership because it is
so decides. retained by the seller
5. If it is stipulated that a third person must signify until the sale becomes
approval or satisfaction, the provision is valid, absolute.
but the third person must be in good faith. If
refusal to accept is not justified, the seller may As to Risk of Loss
still sue; and
Risk of loss or injury Risk of loss remains
6. Generally, the sale and delivery to a buyer who rests upon the buyer. with the seller.
is an expert on the object purchased is not a sale (Id. at 237-238)
on approval, trial, or satisfaction (DE LEON,
supra at 236-237). SALE BY DESCRIPTION
A sale where a seller sells a thing as being of a
SALE OR RETURN certain kind, the buyer merely relying on the seller’s
Property is sold but the buyer, who becomes the representations or descriptions (CIVIL CODE, Art.
owner of the property on delivery, has the option to 1481).
return the same to the seller instead of paying the
SALE BY SAMPLE or disposal of the goods, the
A sale where a small quantity of a commodity is buyer is not liable for more than
exhibited by the seller as a fair specimen of the bulk, the fair value to him of the
which is not present and as to which there is no goods delivered.
opportunity to inspect or examine (Mendoza v.
David, G.R. No. 147575, October 22, 2004). This is “Fair value to him” is the benefit
intended to save the parties from the time and which the buyer may have received
expense of examining the whole quantity of the from the goods. It is not necessarily
goods being purchased (DE LEON, supra at 135). the market value. Since the
defaulting seller is the wrong doer,
Mere exhibition of the sample does not necessarily the buyer is not required to pay
make it a sale by sample. The exhibition must have more than the contract price if such
been the sole basis or inducement of the sale (DE price for the goods is more than fair
LEON, supra at 135). value to him of the goods (DE
LEON, supra at 287).
Warranty: That the bulk of the commodity will ii. Larger–
correspond in kind, quality, and character with the Buyer has three (3) options:
sample exhibited examine (CIVIL CODE, Arts. 1481 1.) Accept per contract and reject the
and 1565). rest;
2.) Accept the whole and pay at the
Rights of the Buyer in a Sale by Sample: contract rate; or
1. Return the thing and recover the money paid; or 3.) If indivisible, reject the whole or
2. Retain the thing and sue for the breach of accept it entirely.
warranty (5 PARAS, supra at 71). iii. Mixed with Goods of Different
Description–
Buyer has two (2) options:
SALE BY DESCRIPTION AND SAMPLE 1.) Accept the goods which are in
Must satisfy the requirements in both, and not in only accordance with the contract and
one (Id.). reject the rest; or
2.) If indivisible, reject the goods
Two-Fold Warranty in Sale by Sample and entirely or accept them entirely.
Description
1. That the goods purchased matched with the 2. Immovables
description; and a. Sold Per Unit or Number (CIVIL CODE,
2. That the goods matched in kind, quality and Art. 1539-1540)–contains a statement of the
character with the samples exhibited to the area at the rate of a certain price for a unit
buyer (CIVIL CODE, Art. 1481, par. 1). or measure or number. Art. 1539-1540 of
the Civil Code shall also apply to judicial
NOTE: The buyer shall be given a reasonable sales (CIVIL CODE, Art. 1541).
opportunity to compare the bulk of the goods with the
description made on the sample presented. If the Rules:
buyer has failed to notice the differences, the seller i. GENERAL RULE: If the vendee should
is not excused from his warranties (CIVIL CODE, demand, the vendor must deliver all that
Art. 1481, par. 2). may have been stated in the contract.
ii. When the entire area cannot be
COMPLETENESS OF DELIVERY delivered–the object of the contract, its
1. Movables (CIVIL CODE, Art. 1522) cause as far as the vendee is
a. Where, in relation to what is contracted to concerned, is not delivered. Hence is
sell, the quantity of goods delivered is: entitled to rescind it.
i. Less– iii. If what is delivered is:
Buyer has two (2) options: 1.) Less in area OR of inferior or
1.) Reject the goods; or different quality
2.) Accept them Buyer may seek Rescission, if:
a.) When the acceptance is with a.) Lack in area is at least 1/10 of
knowledge that the seller is not the area agreed upon;
going to perform the contract, b.) The deficiency in quality
the buyer shall pay at contract specified in the contract
rate; or exceeds 1/10 of the price
b.) When knowledge is after the agreed upon;
acceptance and consummation
 c.) The vendee would not have
bought the immovable had he Rules:
known of its smaller area or i. There shall be no increase or decrease
inferior quality; and of the price although there be a greater
d.) Proportional reduction of price or lesser area or number than that
in case of fulfillment. stated in the contract, especially with
2.) Greater in area the use of qualifying words of “more or
The vendee may accept the area less” in describing the area;
included in the contract and reject ii. The same rule applies when two or
the rest. If he accepts the whole more immovable are sold for a single
area, he must pay at the contract price;
rate (CIVIL CODE, Art. 1540). iii. But if, besides mentioning the
boundaries which is indispensable in
In a lump sum contract, a vendor is every conveyance of real estate, its
generally obligated to deliver all the area or number should be designated in
land covered within the boundaries, the contract, the vendor shall be bound
regardless of whether the real area to deliver all that is included within said
should be greater or smaller than boundaries, even when it exceeds the
that recited in the deed. However, in area or number specified in the contract
case there is conflict between the (VILLANUEVA, supra at 227).
area actually covered by the
boundaries and the estimated area NOTE: The rule does not apply if the
stated in the contract of sale, he/she deficiency is so material as to go to the
shall do so only when the excess or essence of the contract for under such
deficiency between the former and circumstances, gross mistake may be
the latter is reasonable (Arcaina v. inferred which is the duty of a court of equity
Ingram, G.R. No. 196444, February to correct (Asiain v. Jalandoni, G.R. No. L-
15, 2017). 20435, October 23, 1923).

The SC held that the difference of PRESCRIPTION OF ACTION

5,800 sq. m. is too substantial to be Action for rescission arising from Articles 1539 and
considered reasonable. The Court 1542 shall prescribe in six (6) months counted from
noted that only 6,200 sq. m. was the day of delivery of the thing to the vendee (CIVIL
agreed upon between petitioners CODE, Art. 1543).
and Ingram. Declaring Ingram as
the owner of the whole 12,000 sq. NOTE: The Civil Code presumes that the purchaser
m. on the premise that this is the had in mind a particular piece of land and that he
actual area included in the ascertained its area and quality before the contract
boundaries would be ordering the of sale was perfected. If he did not do so, or if having
delivery of almost twice the area done so he made no objection and consented to the
stated in the deeds of sale. Surely, transaction, he can blame no one but himself (Teran
Article 1542 does not contemplate v. Vda. de Riosa, G.R. No. L-34697, March 26,
such an unfair situation to befall a 1932).
vendor-that he/she would be
compelled to deliver double the Where the area of the immovable is stated in the
amount that he/she originally sold contract based on an estimate, the actual area
without a corresponding increase in delivered may not measure up exactly with the area
price (Arcaina v. Ingram, G.R. No. stated in the contract. According to Article 1542 of
196444, February 15, 2017). the Civil Code, in the sale of real estate made for a
lump sum, there shall be no increase or decrease of
b. Sold for Lump Sum (CIVIL CODE, Art. the price, although there be a greater or lesser area
1542) or number than that stated in the contract (Feliciano
A cuerpo cierto / por precio alzado; when Esguerra, et al. v. Virginia Trinidad, G.R. No.
two or more real estates are sold for a single 169890, March 12, 2007).
price, the rule is the same as when the real
estate is sold for a lump sum. There shall be The vendor is obligated to deliver all the land
no increase or decrease in the area actually included within the boundaries, regardless of
delivered and the area stated in the contract whether the real area should be greater or smaller
(Rudolf Lietz, Inc. v. Court of Appeals, G.R. than that recited in the deed (Balantakbo v. CA. G.R.
NO. 122463 December 19, 2005). No. 108515, October 16, 1995).
 (Radiowealth Finance Co. v. Palileo, G.R. No.
If the vendor cannot deliver to the vendee all that is 83432, May 20, 1991);
included within the boundaries mentioned in the
contract, the latter has the option to (1) reduce the NOTE: The principle of prior tempore, potior jure
price in proportion to the deficiency or (2) to set aside (he who is first in time is preferred in right)
the contract (CIVIL CODE, Art. 1542, par. 2). should also apply.

7. The first sale occurs when land is not yet

DOUBLE SALE (CIVIL CODE, ART. 1544) registered and the second sale is done when the
Requisites: (VIOS) land is already registered (Dagupan Trading Co.
1. Two or more transactions must constitute Valid v. Macam, G.R. No. L-18497, May 31, 1965);
sales;
2. Two or more buyers who are at odds over the NOTE: The principle of prior tempore, potior jure
rightful ownership of the subject matter must (first in time, stronger in right) should also apply.
each represent conflicting Interests;
3. They must pertain exactly to the same Object or 8. When the property was already registered under
subject matter; and the Torrens system, the first buyer’s registration
4. They must be bought from the same or of the sale under Act No. 3344 is not effective for
immediate Seller (Vda. de Viray v. Sps. Usi, purposes of Article 1544. Thus, the second
G.R. No. 192486, November 21, 2012). buyer prevails over the first if the second buyer
recorded the sale in good faith with the Register
Article 1544 applies only to purchasers in good faith of Deeds in accordance with P.D. No. 1529
and disqualifies any purchaser in bad faith (De Leon (Sps. Abrego v. De Vera, G.R. No. 154409, June
v. Ong, G.R. No. 170405, February 2, 2010). 21, 2004);

Art. 1544 does not apply when: 9. When the owner had previously sold his
1. Not all the elements are present; property (and dominion already transferred) and
thereafter executed a second sale in favor of
NOTE: The principle of prior tempore, potior jure another person, the latter cannot acquire any
(he who is first in time is preferred in right) right. At the time of the second sale, the vendor
should apply. had no more existing right over the property
which he could lawfully dispose of (Consolidated
2. Where one of the sale is totally abhorrent and Rural Bank (Cagayan Valley), Inc. v. CA, G.R.
repugnant to the Philippine Constitution and is No. 132161, January 17, 2005);
thus, void ab initio, it stands to reason that there
can be no double sale to speak of (Magnique- 10. When the earlier transaction is a pacto de retro
Stone v. Cattleya Land, G. R. No. 195975, sale of an unregistered land and the subsequent
September 5, 2016); conveyance is a donation of the land in favor of
another by the vendor a retro (Sps. De Guzman
3. The two different contracts of sale are made by v. CA, G.R. No. L-46935, December 21, 1987)
two different persons, one of them not being the
owner of the property sold (Sps. Salera v. Sps. 11. Where there is only one valid sale, the previous
Rodaje, G.R. No. 135900, August 11, 2007); sale having been found to be fraudulent (Fudot
v. Cattleya, Inc, G.R. No. 171008, September
4. Sales involved were initiated not by just one 13, 2007); if one sale is simulated and the other
vendor but by several vendors, i.e., from one of is genuine (De Leon v. Caluag, G.R. No. L-
its co-owners and the other from all the co- 18722, September 14, 1967);
owners (Sps. Manlan v. Sps. Beltran, G.R. No.
222530, October 16, 2019); 12. Where one sale is absolute and the other is a
pacto de retro sale and the period to redeem has
5. Sales involving unregistered lands; Under Act not yet expired (Teodosio v. Sabala, G.R. No. L-
No. 3344, registration of documents affecting 11522, January 31, 1957);
unregistered land is “without prejudice to a third
party with a better right; 13. Where one of the sales is subject to a
suspensive condition, which was not complied
6. Mere registration of a sale in one’s favor does with and the other is an absolute sale. The
not give him any right over the land if the vendor reason being a conditional sale is not a sale
was not anymore, the owner of the land, having before the condition had been performed
previously sold the same to somebody else, (Mendoza v. Kalaw, G.R. No. L-16420, October
even if earlier sale was unrecorded 12, 1921);
 Lis Pendens (Suit Pending)
14. Where one is a sale and the other is an A buyer cannot be considered an innocent
assignment of the right to repurchase the same purchaser for value where he ignored the notice of
property (Dichoso v. Roxas, G.R. No. L-17441, lis pendens on the title when he bought the lot
July 31, 1962); (Limketkai Sons Milling, Inc. v. CA, G.R. No. 118509,
December 1, 1995).
15. Where one transaction is a sale and the other is
a mortgage (Mamuyac v. Abena, G.R. No. L- First Buyer is Always in Good Faith
45742, April 12, 1939); and Indeed, knowledge gained by the first buyer of the
second sale cannot defeat the first buyer's rights
16. In a contact to sell, there being no previous sale except only as provided by law, as in cases where
of property, a third person buying such property the second buyer first registers in good faith the
despite the fulfillment of the suspensive second sale ahead of the first. Such knowledge of
condition cannot be deemed a buyer in bad faith the first buyer does bar her from availing of her rights
and the prospective buyer cannot seek relief of under the law, among them, first her purchase as
reconveyance of the property (Coronel v. CA, against the second buyer (Spring Homes
G.R. No. 103577, October 7, 1996). Subdivision v. Sps. Tablada, G. R. No. 200009,
January 23, 2017).
Rules on Preference (CIVIL CODE, ART. 1544):
1. Personal Property If the second buyer in a sale of land registers the
– first possessor in good faith sale after he has acquired knowledge that (1) there
was a previous sale of the same land to another, or
2. Real Property (2) that another person claims the same land, the
a. First registrant in good faith: second buyer registration by the second buyer will not confer any
must register the document in good faith; right upon him. The first vendee who took
otherwise, he does not have a better right possession of the land in good faith is preferred
(Fudot v. Cattleya Land Inc., G.R. No. (Berico v. CA, G.R. No. 96306, August 20, 1993).
171008, September 13, 2007);
b. First possessor in good faith; or Illustration: A sold his land to B for P500,000.
c. Person with oldest title in good faith Before B could fully pay the price, A sold the land to
(Martinez v. CA, G.R. No. 123547, May 21, C and took possession of the land. B learned that the
2001). sale between A and C is not yet registered. Thus, B
registered an adverse claim over the lot with the
Applicability of the Rule of Caveat Emptor (Buyer register of deeds. Subsequently, the deed of sale in
Beware) favor of C was registered and a TCT was issued to
One who purchases real property, which is in actual her but with annotation of the adverse claim. Who
possession of others, should make some inquiry has a better right over the land?
concerning the rights of those in possession
(Rosaroso v. Soria, G.R. No. 194846, June 19, Answer: B, the first buyer. At the time of the first
2013). sale, B was in good faith because the title was still in
the name of A. And B could not have been aware of
Purchaser in Good Faith any sale involving the property. B’s good faith did not
One who – cease after he learned of the subsequent sale
1. Buys the property without notice that some other between A and C. The recording of the adverse
person has a right to, or interest in, such claim was done to protect B’s rights. Consequently,
property; and the subsequent registration by C of the sale was
2. Pays a full and fair price for the same at the time done in bad faith. Although at the time of the second
of such purchase, or before he has notice of the sale C was a buyer in good faith, his status as such
claim or interest of some other person in the ceased after the prior sale was made known to him
property (Agricultural and Home Extension Dev’t (Carbonell v. CA, G.R. No. L-29972, January 26,
Group v. CA, G.R. No. 92310, September 3, 1976).
1992).
Note that in all the rules there must be good faith;
Burden of Proof otherwise, the order of preference does not apply
He who asserts the status of a purchaser in good (Romeo Paylago and Rosario Dinaandal v. Ines
faith and for value has the burden of proving such Pastrana Jorabe and the Court of Appeals, L-20046,
assertion (Mathay v. CA, G.R. No. 115788. Mar. 27, 1968).
September 17, 1998).
Examination of Certificate of Title is not applicable in this case (Sps. Abrigo v. De Vera,
GENERAL RULE: A buyer may rely on the Torrens G.R. No. 154409, June 21, 2004)
title of the seller. The buyer is not obligated to look
beyond the certificate to investigate the title of the Registration
seller appearing on the face of the certificate (AFP Any entry made in the books of registry, including
Mutual Benefit Association, Inc. v. CA, G.R. No. both registration in its ordinary and strict sense, and
104769, March 3, 2000). cancellation, annotation, and even marginal notes
(Cheng v. Genato, G.R. No. 129760, December 29,
1998).
EXCEPTION: When there exist important facts that
would create suspicion in a reasonable man to go It is the entry made in the registry which records
beyond the present title and to investigate those that solemnly and permanently the right of ownership
preceded it (Mercado v. Allied Banking Corp., G.R. and other real rights (DE LEON, supra at 342).
No. 171460, July 27, 2007).
Registration Requires Actual Recording
Rule Governing Banks If the property was never really registered as when
The rule that persons dealing with registered lands the registrar forgot to do so although he has been
can rely solely on the certificate does not apply to handed the document, there is no registration.
banks because their business is one affected with Registration in its juridical aspect must be
public interest keeping in trust the money belonging understood as the entry made in a book or public
to their depositors (Sps. Sarmiento v. CA, G.R. No. registry of deeds (Po Sun Tun v. Price, G.R. No. L-
152627, September 16, 2005). 31346, December 28, 1929).

When the Subject of Sale is an Unregistered Bad faith on the part of one buyer amounts to
Land registration in favor of the innocent buyer (DE LEON,
The rules in double sale under Article 1544 of the supra at 344).
Civil Code, whereby the buyer who is able to first
register the purchase in good faith is in full accord A buyer of an unregistered land acquires a better title
with Section 51 of P.D. 1529 which provides that no than a subsequent buyer, even if the latter registered
deed, mortgage, lease or other voluntary instrument, the sale in good faith after the registration of the land
except a will purporting to convey or affect registered by the seller because the second buyer merely steps
land shall take effect as a conveyance or bind the into the shoes of the seller who at the time of the sale
land until its registration. Thus, if the sale is not to him is no longer the owner of the property
registered, it is binding only between the seller and (Radiowealth Finance Co. v. Palileo, G.R. No.
the buyer but it does not affect innocent third 83432, May 20, 1991).
persons (Sps. Abrigo v. De Vera, G.R. No. 154409,
June 21, 2004). Double Donation
Art. 1544 applies to a double donation. A deed of
Illustration: A sold his land to B with the right to donation executed with all the formalities of the law
repurchase the same. A failed to redeem the is on the same footing as a deed of sale in the form
property, thus B registered the land in his name. of a public instrument (Cagaoan v. Cagaoan, G.R.
Unknown to B, A obtained a free patent over the No. 17900, June 21, 1922).
land. The free patent was later on cancelled by a
TCT. Meanwhile, B sold the land to C. A also sold Donations of the same thing to two or more different
the land to D who registered the sale and a TCT was donees shall be governed by the provisions
issued in her name. Who has a better right? concerning the sale of the same thing to two or more
different persons (CIVIL CODE, Art. 744)
Answer: D. Both C and D registered the sale of the
property. Since C did not know that the property was Possession
covered by Torrens System, he registered the sale Possession means both actual and constructive
under Act 3344; while D registered the transaction (The Roman Catholic Church v. Pante, G.R. No.
under the Torrens system, because during the sale, 174118, April 11, 2012).
A presented the TCT covering the property. It has
been held that registration must be done in the Possession under Art. 1544 of the Civil Code is
proper registry in order to bind the land. Since either material or symbolic (Ten Forty Realty v. Cruz
the property in dispute was already registered under G.R. No. 151212, September 10, 2003).
the Torrens System, C’s registration of the sale .
under Act 3344 was not effective for purposes of Art. Good Faith Must Concur with Registration
1544 of the Civil Code. The priority in time principle To be entitled to priority, the second purchaser must
not only establish prior recording of his deed, but
must have acted in good faith. Therefore, the he shall acquire no real right over it until the same
requirement of the law is two-fold: (1) acquisition in has been delivered to him (CIVIL CODE, Art. 1164).
good faith and (2) registration in good faith (Gabriel
v. Sps. Mabanta, G.R. No. 142403, March 26, 2003). The fruits (natural, industrial or civil) shall pertain to
the buyer from the day on which the contract was
Act of registration must be coupled with good faith- perfected (CIVIL CODE, Art. 1537, par. 2).
that is registrant must have no knowledge of the
defect or lack of title of his vendor or must not have The obligation to give a determinate thing includes
been aware of facts which should have put him upon the delivery of all its accessions and accessories,
such inquiry and investigation as might be necessary even though they may not have been mentioned
to acquaint him with the defects in the title of his (CIVIL CODE, Art. 1166).
vendor (Rosaroso v. Soria, G. R. No. 194846, June
19, 2013). WHEN THE VENDEE IS NOT ENTITLED
TO THE FRUITS
Duly Registered Attachment
It is a settled rule that an attachment, which is duly 1. By agreement of the parties;
registered, takes precedence over a prior 2. When the vendee rescinds the contract of sale
unregistered sale. instead of exacting the fulfillment thereof (CIVIL
CODE, Art. 1385); and
The preference created by the levy is not diminished 3. In a contract of promise to sell since the only
even by subsequent registration of the prior sale. right of the contracting parties is to reciprocally
The reason is that an attachment is a proceeding in demand the fulfillment of the contract (DE
rem. It is against the particular property and is LEON, supra at 324).
enforceable against the whole world (Valdevieso v.
Dalamerio, G.R. No. 133303, February 17, 2005). CONDITION
An uncertain event or contingency upon the
DELIVERY OF FRUIT AND happening of which the obligation or right of the
ACCESSORIES (CIVIL CODE, Arts. 1164, 1166 contract depends. In such case, the obligation of the
contract does not attach until the condition is
and 1537)
performed (DE LEON, supra at 374).

ACCESSIONS NOTE: There may be a contract of sale of goods,

It is the fruits of a thing; or additions to, or whose acquisition by the seller depends upon a
improvements upon, a thing (e.g. young of animals, contingency, which may or may not happen (CIVIL
house or trees on a land, etc.) (DE LEON, supra at. CODE, Art. 1462, par. 2).
322). The term “fruits” here includes natural,
industrial and civil fruits (Binalbagan Estate v. Effect of Non-Fulfillment of Condition
Gatuslao, G.R. No. 48560, February 26, 1943). 1. The other party may:
a. Refuse to proceed with the contract; or
ACCESSORIES b. Proceed with the contract, waiving the
performance of the condition.
Anything attached to a principal thing for its
completion, ornament, or better use (e.g., picture 2. If the condition is in the nature of a promise that
frame, key of a house, etc.) (DE LEON, supra at it should happen, the non-performance of such
323). condition may be treated by the other party as
breach of warranty (CIVIL CODE, Art. 1545, par.
The seller is bound to deliver accessions and 1).
accessories in the condition in which they were upon
perfection of the contract (CIVIL CODE, Art. 1537). Article 1545 presupposes that there is a perfected
contract between the parties and that one of them
This means that the seller has the duty to preserve fails in the performance of an obligation under the
the thing and its accessions and accessories from contract (Dev’t Bank of the Philippines v. Medrano,
the moment of perfection of the contract of sale. If G.R. No.167004, February 7, 2011).
anything happens to the thing before its delivery,
(e.g., loss or deterioration, improvement), the Distinction Between Condition Imposed on
seller’s rights and liabilities will be governed by the Perfection of Contract and Condition Imposed
rules in Art. 1189 of the Civil Code, the seller being on Performance of Obligation:
considered its debtor (CIVIL CODE, Art. 1538). 1. Condition imposed on perfection of contract
– Prevents the juridical relation from coming into
The buyer has a right to the fruits of the thing from existence.
the time the obligation to deliver it arises. However,
 A warranty is not necessarily written. It may be oral
2. Condition imposed on performance of as long as it is not given as a mere opinion or
obligation judgment. Rather, it is a positive affirmation of a fact
– Gives the option to the party either to refuse that buyers rely upon, and that influences or
or proceed with the contract of sale and waive induces them to purchase the product (Philippine
the condition (Romero v. CA, G.R. No. 107207, Steel Coating Corp. v. Quinones, G.R. No. 194533,
November 23, 1995). April 19, 2017).

The vendor is bound to transfer the ownership of and

WARRANTY V. CONDITION deliver, as well as warrant the thing which is the
object of the sale (CIVIL CODE, Art. 1495).
WARRANTY CONDITION
While warranty is not an essential element of a sale,
As to the Obligation of the Parties there can be no warranty without a sale. If the sale
Goes into the Goes into the root of is illegal, the buyer cannot maintain an action on a
performance of such the existence of the warranty accompanying it (Id. at 378).
obligation and in fact obligation.
may constitute an The decisive test is whether the seller assumes to
obligation in itself. assert a fact of which the buyer is ignorant
(Goodyear Philippines Inc. v. Sy, G.R. No. 154554,
As to Existence on Contract November 9, 2005).

May form part of the Must be stipulated by NOTE: The buyer may make warranties as well, as
obligation or contract by the parties in order to when he warrants that he will pay or when he makes
provision of the law form part of an any affirmation or promise to induce the seller to
without the parties obligation. enter into the contract of sale (DE LEON, supra at
having agreed thereto. 379).

In Relation to Subject Matter of Contract Time of Warranty

Under Article 1546, the affirmation must induce the
Whether express or May attach itself either buyer to purchase the good and the buyer purchases
implied, relates to the to the obligation of the the thing relying on the affirmation. If the warranty is
subject matter itself or to seller or of the buyer to given after the contract of sale has been perfected,
the obligations of the deliver possession and the warranty must generally, in order to be effective,
seller as to the subject transfer ownership be accompanied by a new and separate
matter of the sale. over the subject matter consideration (Id. at 380-381).
of the sale.
Intention to Make a Warranty
Effect of Non-Fulfillment It is the natural tendency of the affirmation of
promise to induce the buyer to purchase that is
Non-fulfillment of a Although it may
warranty would extinguish the important, and not the intention of the seller to
constitute a breach of obligation upon which it warrant, and in the absence of an intention to
warrant is of no consequence (Id. at 381).
contract. is based, it generally
does not amount to a
Warranty is a collateral undertaking
breach of the contract
Since an assignee merely steps into the shoes, so
of sale.
to speak, of an assignor, the assignee shall likewise
(VILLANUEVA, supra at 454). shoulder all the obligations of a vendor-assignor,
including the vendor's warranty. As a collateral
WARRANTY undertaking, it follows where the principal obligation
A warranty is a statement or representation made by goes (Koa v. CA, G.R. No. 84847, March 5, 1993).
the seller of goods - contemporaneously and as part
of the contract of sale - that has reference to the A warranty is a collateral undertaking in a sale of
character, quality or title of the goods; and is issued either real or personal property, express or implied;
to promise or undertake to insure that certain facts that if the property sold does not possess certain
are or shall be as the seller represents them incidents or qualities, the purchaser may either
(Philippine Steel Coating Corp. v. Quinones, G.R. consider the sale void or claim damages for breach
No. 194533, April 19, 2017). of warranty. An express warranty pertains to any
affirmation of fact or any promise by the seller
relating to the thing, the natural tendency of which is
to induce the buyer to purchase the same. An parties, irrespective of any intention of the seller
implied warranty is one which the law derives by to create it (Ang v. CA, G.R. No. 177874,
application or inference from the nature of September 29, 2008).
transaction or the relative situation or circumstances
of the parties, irrespective of any intention of the The principle of implied warranties is an
seller to create it (Pilipinas Makro, Inc. v. Coco exception to the rule of caveat emptor (DE
Charcoal Philippines, Inc., G.R. No. 196419, LEON, supra at 387).
October 4, 2017).
NATURE OF IMPLIED WARRANTY
KINDS OF WARRANTY: It is a natural element of a contract, deemed
1. Express incorporated in the contract of sale (Id.).
– It is any affirmation of fact or promise by the
seller relating to the thing, inducing the buyer to It may be waived or modified by express
purchase the same and if the buyer purchases stipulation (e.g. warranty against eviction,
the thing relying thereon (CIVIL CODE, Art. warranty against hidden defects) (Id.).
1546).
Although only a seller is bound by implied
Requisites: (AIR) warranties of law, nevertheless, an agent of the
a. It must be an Affirmation of fact or any seller may bind himself to such warranties, by
promise by the seller relating to the subject express contractual stipulation (Schmid and
matter of the sale; Oberly Inc. v. RJL Martinez Fishing Corporation,
b. The natural tendency of such affirmation or G.R. No. 75198, October. 18, 1988).
promise is to Induce the buyer to purchase
the thing; and Illustrations:
c. The buyer purchases the thing Relying on a. Warranty that the seller has a right to sell;
such affirmation or promise (Philippine Steel b. Warranty against eviction;
Coating Corp. v. Quinones, G.R. No. c. Warranty against non-apparent burden or
194533, April 19, 2017). servitudes;
d. Warranty against hidden defects or
The breach of an express warranty makes the unknown encumbrance (CIVIL CODE. Art.
seller liable for damages (VILLANUEVA, supra 1561);
at 455). e. Warranty against redhibitory defects on
animals;
The usual exaggerations in trade, when the f. Warranties as to fitness or merchantable
other party had an opportunity to know the facts, quality (CIVIL CODE, Art. 1562);
are not in themselves fraudulent (CIVIL CODE, g. Warranties for consumer goods (R.A. 7394,
Art. 1340). Art. 68).

Dealer’s or Trader’s Talk WHEN IMPLIED WARRANTY NOT

Dealer’s talk like “excellent,” cannot be APPLICABLE:
considered as an express warranty (PARAS,
supra at 208). The law allows considerable
1. As is and where is Sale
latitude to seller’s statement or dealer’s talk – The vendor makes no warranty as to the
(Tankeh v. Dev’t Bank of the Philippines, G.R. quality or workable condition of the goods and
No. 171428, November 11, 2013). the vendee takes them in the conditions in which
they are found and from the place they are
A mere expression of opinion, no matter how located (DE LEON, supra at 387).
positively asserted, does not import a warranty,
unless the seller is an expert and his opinion NOTE: It does not extend to liens or
was relied upon by the buyer (CIVIL CODE, Art. encumbrances unknown to the vendee and could
1341). not be disclosed by a principal examination of the
goods sold (Id.).
Misrepresentation made in good faith is not
fraudulent but may constitute error (CIVIL 2. Sale of Second Hand Articles
CODE, Art. 1343). – There is no implied warranty as to the
condition, adaptation, fitness or suitability or the
2. Implied quality of an article sold as a second-hand
– It is that which the law derives by implication article. Such articles might be sold under such
or inference from the nature of the transaction or circumstances as to raise an implied warranty. A
the relative situation or circumstances of the certification issued by a vendor that a second-
 hand machine was in A-1 condition is an express
warranty binding on the vendor (Moles v. IAC, 3. Judgment is based on a right Prior to the
G.R. No. 73913, January 31, 1989). sale or an act Imputable to the vendor;
3. Sale by Virtue of Authority in Suit or Law 4. Vendor was Summoned in the suit for
– Not applicable to a sheriff, auctioneer, eviction at the instance of the vendee:
mortgagee and other person who sells by virtue a. To enable the seller to prove his claim;
of authority in fact or law (the principle applicable b. To avoid multiplicity of suits; and
to execution sales is caveat emptor because the c. To satisfy due process.
purchaser acquires no better title than the
judgment debtor has) (Allure Manufacturing Inc., The vendor shall not be obliged to make good
v. CA, G.R. No. 94452, July 16, 1991). the proper warranty, unless he is summoned in
the suit for eviction at the instance of the vendee
NOTE: The persons enumerated are, however, (CIVIL CODE, Art. 1558).
liable for actual representations, fraud or negligence
in the exercise of their duties (DE LEON, supra at REASON: In order to give the vendor an
389). opportunity to intervene and defend the title that
he has transferred, for, after all, he alone would
WARRANTY THAT SELLER HAS A know the circumstances or reasons behind the
RIGHT TO SELL claim of the plaintiff and be in a position to
Although Art. 1547 uses the phrase “unless a defend the validity of his title (De la Riva v.
contrary intention appears”, there can be no legal Escobar, G.R. No. 27300, December 17, 1927).
waiver of such warranty without changing the basic
nature of the relationship, for the warranty on the The defendant vendee shall ask, within the time
part of the seller that he has the capacity to sell, i.e. fixed in the Rules of Court for answering the
to transfer ownership of the thing is the essence of complaint, that the vendor be made a co-
sale, unless it amounts to clear assumption of risk defendant (CIVIL CODE, Art. 1559).
on the part of the buyer (VILLANUEVA, supra at
497). Eviction Suit
It refers to a case where the vendee is the
defendant in a suit instituted to deprive him of
WARRANTY AGAINST EVICTION
the thing purchased (DE LEON, supra at 406).
The seller guarantees that he has the right to sell the
thing sold and to transfer ownership to the buyer,
5. No waiver of warranty by the vendee (Id. at
who shall not be disturbed in his legal and peaceful
391).
possession thereof (CIVIL CODE, Art. 1548).
The vendor’s liability for warranty against
eviction in a contract of sale is generally
ELEMENTS: DJ-PIS-NO
waivable and may be renounced by the vendee
1. Vendee is Deprived, in whole or in part, of (Andaya v. Manansala, G.R. No. L-14714, Apr.
the thing purchased; 30, 1960).

2. Deprivation is by virtue of a final Judgment; In the absence of any of these essential

The warranty cannot be enforced until a final requisites, breach of warranty of eviction cannot
judgment has been rendered, whereby the be declared (DE LEON, supra at 391).
vendee loses the thing acquired or a part thereof
(CIVIL CODE, Art. 1557). The disturbance referred to in the case of
eviction is a disturbance in law which requires
NOTE: The term final judgment in article 1548 that a person go to courts of justice claiming the
refers to “final and executory judgment” thing sold, or part thereof, and invoking reasons
(Perez v. Zulueta, G.R. No. L-10374, September (Id. at 392).
30, 1959).
NOTE: Mere trespass in fact does not give rise
Eviction may take place by virtue of a final to the application of the doctrine of eviction
judgment of an administrative office or board. It (CIVIL CODE, Art. 1590). In such case, the
is not necessary that a court makes final vendee has a direct action against the
judgment, provided it was rendered by a trespasser in the same way as the lessee has
competent authority and in conformity with the such right (CIVIL CODE, Art. 1664).
procedure prescribed by law (Bonzon v.
Standard Oil Co. of New York, G.R. No. L-
10297, March 11, 1916).
Rules that Govern Eviction Suit: of contract of sale and may therefore, be increased,
1. No appeal is needed nor for buyer to resist diminished, or suppressed by agreement of the
eviction for right to accrue; it is enough that the parties (CIVIL CODE, Art. 1548, par. 3).
aforementioned requisites are complied with
(CIVIL CODE, Art. 1549). EXCEPTION: The waiver is contrary to law, public
2. Applies to judicial sale; judgment debtor order, public policy, morals, or good customs, or
responsible for eviction unless otherwise prejudicial to a third person with a right recognized
decreed in judgment (CIVIL CODE, Art. 1552). by law (CIVIL CODE, Art. 6).
3. Vendor not liable for eviction if adverse
possession had been commenced before sale
but prescriptive period is completed after Vendor's Liability
transfer (CIVIL CODE, Art. 1550). In case of Total Eviction (CIVIL CODE, Art. 1555),
4. If the property is sold for nonpayment of taxes the vendor’s liability shall consist of: (VICED)
due and not made known to the vendee before 1. Value of the thing at the time of eviction;
the sale, vendor is liable for eviction (CIVIL All kinds of improvements whether useful or
CODE, Art. 1551). necessary or even recreational expenses
5. Rescission is not a remedy in case of eviction voluntarily incurred by the vendee or caused by
because rescission contemplates that the one the nature or time, insofar as they may affect the
demanding it is able to return whatever he has value of the property, are taken into account in
received under the contract. Since the vendee determining the value of the property (Sta.
can no longer restore the subject-matter of the Romana v. Imperio, G.R. No. l-170280,
sale to the vendor, rescission cannot be carried December 29 , 1965).
out (CIVIL CODE, Art. 1385).
6. The suit for the breach can be directed only NOTE: Article 1555 does not speak of payment
against the immediate seller, unless the sellers of interest on the purchase price. The law had
of the seller had promised to warrant in favor of intended that the interest on the price shall be
later buyers or the immediate seller has set off against the fruits received by the vendee
expressly assigned to the buyer his own right to from the thing while in his possession (DE
sure his own seller (De la Riva v. Viuda de LEON, supra at 398.)
Limjap, G.R. No. 27300, December 17, 1927).
7. The disturbance referred to in the case of 2. Income or fruits, only if so decreed by the court;
eviction is a disturbance in law which requires
that a person go to courts of justice claiming the NOTE: To the vendee belongs the use, free of
thing sold, or part thereof and invoking reasons. any liability, of the subject matter of sale (Id. at
8. Mere trespass in fact shall not authorize the 399).
suspension of the payment of the price (CIVIL
CODE, Art. 1590). 3. Costs of the suit (RULES OF COURT, Rule 142,
9. Vendor’s liability is waivable but any stipulation Sec. 1);
exempting the vendor from the obligation to
answer for eviction shall be void if he acted in NOTE: It does not include travelling expenses
bad faith (CIVIL CODE, Art. 1553). incurred by the vendee in defending himself in
an action (Orense v. Jaucian, G.R. No. L-5619,
Where Warranty Against Eviction is Not March 11, 1919).
Applicable
1. The sale of an inheritance, in which the seller It does not also apply to a situation where the
shall only be answerable for his character as an judgment is in favor of the vendor except if the
heir, but not ownership of all the things that vendor acted with fault or negligence (CIVIL
supposedly comprise the inheritance (CIVIL CODE, Arts. 1170 and 2176).
CODE, Art. 1630); or
2. The sale for a lump sum of the whole of certain 4. Expenses of the contract; and
rights, rent, or products, in which case the
vendor is not obliged to warrant each of the GENERAL RULE: The expenses in execution
various parts of which it may be composed, and registration of the sale are borne by the
except in a case of eviction from the whole or vendor (CIVIL CODE, Art. 1487).
part of greater value of the thing sold (CIVIL
CODE, Art. 1631). EXCEPTION: If the vendee should have paid for
such expenses, he shall have the right to
Vendor’s Liability is Waivable demand from the vendor (DE LEON, supra at
GENERAL RULE: The obligation of the vendor to 399).
warrant against eviction is not an essential element
5. Damages and interests and ornamental When the prescription has commenced to run
expenses, if the sale was in bad faith. against the vendor and was completed before the
sale, the vendee can enforce the warranty against
NOTE: The vendee is not entitled to recover eviction (Id. at 394).
damages if the vendor acted in good faith (Id. at
399). Basis: The deprivation is based on a right prior to
the sale and an act imputable to the vendor.
The interest contemplated in Article 1555(5)
refers to interest on costs other than the NOTE: Article 1550 will have no application if the
purchase price (e.g., cost of suit and expenses property sold is a land registered under the Torrens
of the contract) (Id. at 400). System. Under the latter, ownership of the land is not
subject to prescription (Id. at 394).
In case of Partial Eviction, vendee may (CIVIL
CODE, Art. 1556): Liability of Judgment Debtor
1. Enforce vendor’s liability for eviction (VICED); or The judgment debtor is also responsible for eviction
2. Demand rescission of the contract. in judicial sales, unless it is otherwise decreed in the
judgment (CIVIL CODE, Art. 1552).
The choices are available in the following instances:
1. When the vendee is deprived of a part of the Basis: Principle of law that a person may not enrich
thing sold if such part is of such importance to himself at the expense of another (DE LEON, supra
the whole that he would not have bought the at 395).
thing without said part (CIVIL CODE, Art. 1556,
par. 1); or Deprivation for Non-Payment of Taxes
2. When two (2) or more things are jointly sold, If the property is sold for non-payment of taxes due
whether for a lump sum or for a separate price and not made known to the vendee before the sale,
for each, and the vendee would not have the vendor is liable for eviction (CIVIL CODE, Art.
purchased one without the other (CIVIL CODE, 1551).
Art. 1556, par. 2).
Vendee must act in good faith. He must not have
In applying Article 1556, the intention of the knowledge of the non-payment of taxes at the time
vendee should be determined as of the of the sale (DE LEON, supra at 395).
perfection of the sale. In this regard, under
Article 1371, in order to judge the intention of the Inapplicability of Rescission
contracting parties, their contemporaneous and Rescission is not a remedy in case of eviction
subsequent acts shall be principally observed because rescission contemplates that the one
(DE LEON, supra at 402). demanding it is able to return whatever he has
received under the contract. Since the vendee can
Vendee Has No Duty to Appeal from the no longer restore the subject matter of the sale to the
Judgment vendor, rescission cannot be carried out (CIVIL
Appeal is not needed, and the buyer need not resist CODE, Art. 1385).
eviction for the right against the vendor to accrue. It
is enough that the requisites are complied with EXCEPTION: The buyer may demand rescission in
(CIVIL CODE, Art. 1549). case of partial eviction, because there still remains a
portion of the thing sold (DE LEON, supra at 403).
The requirement of final judgment does not also
mean that the parties have taken all the remedies. The suit for the breach can be directed only against
Thus, the final judgment may be based on a the immediate seller, unless the sellers of the seller
compromise agreement among the parties (DE had promised to warrant in favor of later buyers or
LEON, supra at 394). the immediate seller has expressly assigned to the
buyer his own right to sue his own seller (Id. at 401).
Effect of Prescription
When an adverse possession had been commenced Waiver of Liability
before the sale but the prescriptive period is Vendor’s liability is waivable, but any stipulation
completed after the transfer, the vendor shall not be exempting the vendor from the obligation to answer
liable for eviction (CIVIL CODE, Art. 1550). for eviction shall be void, if he acted in bad faith
(CIVIL CODE, Art. 1553).
Basis: The vendee could easily interrupt the running
of the prescriptive period by bringing the necessary Effect of Vendee’s Bad Faith
action (DE LEON, supra at 394). He cannot claim that the vendor has warranted his
legal and peaceful possession of the property sold
on the theory that he proceeded with the sale with ground of mistake (CIVIL CODE, Arts. 1331, 1556 &
the assumption of the danger of eviction (J.M. 1566).
Tuason & Co., Inc. v. CA, G.R. No. L-41233,
November 21, 1979). NOTE: Servitude (or easement) is an encumbrance
imposed upon an immovable for the benefit of
Kinds Of Waiver of Eviction (CIVIL CODE, Art. another immovable belonging to a different owner
1554) (CIVIL CODE, Art. 613).
1. Consciente / Simple
– The waiver is voluntarily made by the vendee Remedy of the Buyer in Case of Breach:
without the knowledge and assumption of the 1. Rescission; or
risks of eviction. The vendor shall pay only the 2. Indemnity (CIVIL CODE, Art. 1560).
value which the thing sold had at the time of
eviction. When warranty not applicable: (ARAK)
1. Servitude is Apparent;
2. Intencionada / Calificada 2. Non-apparent burden or servitude is Recorded
– The waiver is made by the vendee with in the Registry of Property, except when there
knowledge of the risks of eviction and is express warranty that the thing is free from all
assumption of its consequences, in which case burdens and encumbrances;
vendor is not liable provided he did not act in bad 3. The servitude is mentioned in the Agreement;
faith (CIVIL CODE, Art. 1554). 4. Vendee had Knowledge of servitude (DE LEON,
supra at 408).
NOTE: Every waiver is presumed to be consciente.
To consider it intencionada, it must be accompanied Prescriptive Period (Rescission)
by some circumstance, which reveals the vendee’s The period is one (1) year, computed from the
knowledge of the risks of eviction and his intention execution of the deed (CIVIL CODE, Art. 1560, par.
to submit to such consequences (El Banco Nacional 2).
Filipino v. Silo, G.R. No. L-47920, April 30, 1941).
If the period has already elapsed, the vendee may
Formal Summons to Vendor Essential only bring an action for damages within one (1) year
The vendor shall not be obliged to make good the from the date of the discovery of the non-apparent
proper warranty, unless he is summoned in the suit burden or servitude (CIVIL CODE, Art. 1560, pars. 2
for eviction at the instance of the vendee (CIVIL and 3).
CODE, Art. 1558).
WARRANTY AGAINST HIDDEN
The phrase “unless he is summoned in the suit for DEFECTS
eviction” means that the vendor should be made a
party to the suit either by way of asking that the Seller guarantees that the thing sold is free from any
former be made a co-defendant (CIVIL CODE Art. hidden faults or defects or any charge or
1559), or by the filing of a third-party complaint encumbrance not declared or known to the buyer
against said vendor (DE LEON, supra at 404). (CIVIL CODE, Art. 1561).

In the absence of such opportunity, the vendor is not Hidden faults or defects pertain only to those that
bound to his warranty (Escaler v. CA, G.R. No. L- make the object unfit for the use for which it was
42636, August 1, 1985). intended at the time of the sale (Investments & Dev’t
Inc. v. CA, G.R. No. L-51377, June 27, 1988).
WARRANTY AGAINST NON-APPARENT This warranty in sales is applicable in lease (Yap
BURDEN OR SERVITUDES (CIVIL CODE, Kim Chuan v. Tiaoqui, G.R. No. 10006, September
Art. 1560) 18, 1915).
Requisites:
1. Immovable sold is encumbered with non– NOTE: The provisions governing warranty
apparent burden or servitude not mentioned in contained in the Title on Sales, shall be applicable to
the agreement; and the contract of lease (CIVIL CODE, Art. 1653).
2. Nature of non–apparent servitude or burden is
such that it must be presumed that the buyer Redhibition
would not have acquired it had he been aware The avoidance of a sale on account of some vice or
thereof. defect in the thing sold, which renders its use
impossible, or so inconvenient and imperfect that it
Lack of knowledge on part of the vendor is not a must be supposed that the buyer would not have
defense. The contract can still be invalidated on the purchased it had he known of the vice (DE LEON,
supra at 409).
Redhibitory Action Defect at the time of Sale
An action instituted to avoid a sale on account of The vendor cannot be held liable for defects suffered
some vice or defect in the thing sold (Id.). by the thing sold after the perfection of the sale. The
vendee must prove that the defect existed at the time
Redhibitory Vice or Defect of the sale visible (DE LEON, supra at 413).
A defect in the article sold against which defect the
seller is bound to warrant (Id.). Knowledge of Vendor, Not Important
(Applicability of Doctrine of Caveat Venditor or
Elements: (SHEN-PW) Vendor Beware)
1. Defect is Serious or important such that: GENERAL RULE: Seller is liable even though he is
a. The hidden defect should render the subject unaware of the hidden defect (CIVIL CODE, Art.
matter unfit for the use for which it is 1566, par. 1).
intended; or
b. The hidden defect should diminish the EXCEPTION: When there is a stipulation to the
thing’s fitness such that the buyer would contrary and the seller is not aware of it (CIVIL
not have acquired it or would have given CODE, Art. 1566, par. 2).
a lower price for it had he been aware of the
defect (Id. at 410; CIVIL CODE, Art. 1561). NOTE: Good faith cannot be availed of as a defense
by the vendor (DE LEON, supra at 421).
An imperfection or defect of little consequence
does not come within the category of being REASON: A sound price warrants a sound article
redhibitory. It must be serious (Id. at 410). (McCullough v. Aenlle & Co., G.R. No. 1300,
February 3, 1904).
2. Defect is Hidden
Hidden – Not known or could not have been NOTE: If the vendee is aware of the defect in the
known to the vendee (Supercars Management thing he buys or the lack of title in the vendor, he is
and Development Corp. v. The Late Filemon deemed to have willfully and voluntarily assumed the
Flores G.R. No. 148173, December 10, 2004); risk attendant to the sale (Martinez v. CA, G.R. No.
Hidden to the eyes and cannot be discovered by L-31271, April 29, 1974).
ordinary careful inspection. Hence, there is no
warranty if the defect is patent or visible (Id. At Obligation of Seller in Case of Loss of the Thing
411) Sold on Account of Hidden Defects (CIVIL CODE,
Art. 1568)
3. Exists at the time of the sale; If there was no waiver of warranty and the thing was
lost due to hidden defects:
4. Vendee must give Notice of the defect to the 1. When seller is aware of the hidden defects:
vendor within a reasonable time (CIVIL CODE, (L-PED)
Art. 1586); a. Bear the Loss;
b. Return the Price;
5. Remedies must be brought within the Period of c. Refund the Expenses of the contract; and
six (6) months from delivery of the thing or forty d. Pay Damages.
(40) days from date of delivery in case of
animals (CIVIL CODE, Arts. 1571 & 1577); and 2. When seller is not aware of the hidden defects:
(L-PIE)
6. No Waiver of the warranty on the part of the a. Bear the Loss;
vendee (CIVIL CODE, Art. 1548, par. 3). b. Return the Price;
c. Return the Interest; and
Vendor is NOT Liable for: d. Reimburse Expenses of the contract if paid
1. Patent Defects by the vendee.
a. Defect, which the buyer must have
observed; or If there was a waiver of warranty (CIVIL CODE, Art.
b. Defect, which is not obvious, but the seller 1566, par. 2):
tells the buyer, or which the buyer knows or 1. When the seller is aware of the hidden defects,
should have known (CIVIL CODE, Art. the waiver is in bad faith; as a corollary, seller is
1561). still liable.
2. Those that are not visible but the buyer is an 2. When the seller is not aware of the hidden
expert who, by reason of his profession, should defects and if the contrary has been stipulated,
have known them (CIVIL CODE, Art. 1561). the seller is not liable.
Effect of Loss of Defective Thing Sold Applicability to Judicial Sale
If the thing sold had any hidden fault at the time of The warranty is applicable to judicial sales;
the sale and should thereafter be lost through a however, the judgment debtor is not liable for
fortuitous event or through the fault of the buyer, damages for the reason that he is merely compelled
the buyer may demand of the seller the price paid to sell his property (CIVIL CODE, Art. 1570).
less the value of the thing at the time of loss (CIVIL
CODE, Art. 1569). Prescriptive Period
Six (6) months from the delivery of the thing sold
The difference between the price paid for the thing (CIVIL CODE, Art. 1571).
and the value at the time of the loss represents
damage suffered by the vendee. It is also the The prescriptive period of six (6) months is only
amount by which the vendor has enriched himself; in applicable to implied warranties. For express
other words, the vendor is still made liable on his warranties, the prescriptive period of four (4) years
warranty (DE LEON, supra at 425). shall apply (DE LEON, Sales, supra at 427) unless
another period is specified in the express warranty
Illustration: A purchased a television from B at (Isidro v. Nissan Motor PHL., Inc., G.R. No.136500,
P250,000 which was paid in full. The television has December 3, 1999).
hidden defects, the repair of which will cost P50,000.
The television, however, was lost through fortuitous WARRANTY AGAINST REDHIBITORY
event. At the time of the loss the television is worth DEFECTS ON ANIMALS
P200,000. B is liable to refund to A the sum of
P50,000. Instances where there is Redhibitory Defect: (EVA)
1. Expert knowledge is not sufficient to discover it
If it is the vendee who caused the loss of the thing, (CIVIL CODE, Art. 1576, par. 1); or
the vendor is still liable by virtue of the existence of 2. The Veterinarian failed to discover or disclose it
the defects in the thing. He will be liable for P50,000 through ignorance or bad faith (CIVIL CODE,
the amount needed for the repairs of the thing had it Art. 1576, par. 2); or
not been lost. 3. The Animal dies within three (3) days after its
purchase and the disease which caused the
Alternative Remedies of the Buyer to Enforce death existed at the time of the contract (CIVIL
Warranty (CIVIL CODE, Art. 1567) CODE, Art. 1578).
Buyer may choose between the following:
1. Accion Redhibitoria (Redhibitory Action) NOTE: The claim of the buyer must be based on
– The buyer withdraws from the contract. a finding of an expert that the disease causing
the death existed at the time of the contract (DE
2. Accion Quanti Minoris LEON, supra at 432).
– Proportionate reduction of the price.
If the death occurs after three (3) days from
NOTE: In case of a breach of an implied purchase or the defect is patent or visible, the
warranty against hidden defects, the buyer may seller is not liable. If the loss is caused by a
either elect between withdrawing from the fortuitous event or by the fault of the vendee, and
contract and demanding a proportionate the animal has vices, Article 1569 should be
reduction of the price, with damages in either applied (Id.).
case (Sps. Batalla v. Prudential Bank, G. R. No.
200676, March 25, 2019). Sale of Animals at Fairs or at Public Auctions or
as Condemned
The choice of remedies (accion quanti minoris There is no warranty against hidden defect of
or accion redhibitoria) is available to the buyer animals sold at fairs or at public auctions, or of
only when the thing has not been lost livestock sold as condemned (CIVIL CODE, Art.
(VILLANUEVA, supra at 464). 1574).

The same right is given to the buyer in the sale Basis: It is assumed that the defects must have
of animals with redhibitory defects (CIVIL CODE, been clearly known to the buyer (DE LEON, Sales,
Art. 1580). supra at 429).

The buyer must present proof that he suffered Public auctions may either be judicial or extrajudicial.
damages as a result of the breach of the seller’s The law does not distinguish (Id.).
warranty to be entitled to actual damages (De
Vera, Jr. v. CA, G.R. No. 132869, October 18, Sale of a Team (CIVIL CODE, Art. 1572)
2001). GENERAL RULE: The defect of one will only give
rise to its redhibition and not of the others.
 particular purpose for which the goods are
EXCEPTION: When the buyer would not have acquired; and
purchased the sound animal/s without the defective b. Where the buyer relies upon the seller’s skill
one. or judgment (CIVIL CODE, Art. 1562 par. 1).

The exception is presumed when what is bought is 2. Warranty of Merchantability

a team, yoke, pair or set (even if separate price has The seller guarantees, where the goods were
been fixed for each one of the animals composing bought by description, that they are reasonably
the same). fit for the general purpose for which they are
Remedy sold.
1. Accion Redhibitoria; or
2. Accion Quanti Minoris (CIVIL CODE, Art. 1580). It requires identity between what is described in
the contract and what is tendered, in the sense
Sale of Two or More Things Together (CIVIL that the latter is of such quality and value (CIVIL
CODE, Art. 1573). CODE, Art. 1562 par. 2).
Article 1572, with respect to the sale of animals, shall
in like manner be applicable to the sale of other The requirement of merchantable quality carries
things. with it no implication that the goods shall be
saleable in a particular market (DE LEON, supra
When Sale of Animals Void at 416).
1. Sale of animals with contagious diseases.
2. Sale of unfit animals, i.e. the use or service for NOTE: Article 1562 which applies to goods
which the animals are acquired has been stated bought by description and refers to an implied
in the contract and they are found to be unfit warranty that the goods are of “merchantable
therefor (CIVIL CODE, Art. 1575). quality.” Article 1565 which applies to goods
bought by sample and refers to an implied
Obligation of Buyer to Return warranty that the goods shall be free from any
In case of rescission, the animal shall be returned in defect rendering them “unmerchantable”.
the condition in which it was sold and delivered, the
vendee being answerable for any injury due to his Causes of unmerchantability
negligence, and not arising from the redhibitory fault Goods may be unmerchantable not because of
or defect (CIVIL CODE, Art. 1579). a physical defect but because of some other
circumstances (e.g. infringement of trademark,
Prescriptive Period use of them is dangerous) (DE LEON, supra at
Forty (40) days from the date of delivery to the buyer 417).
(CIVIL CODE, Art. 1577).
Manufacturer or seller of animal feeds
The prescriptive period shall apply only with respect cannot be held liable for any damage
to faults and defects, which are determined by law allegedly caused by the product in the
or by local customs (CIVIL CODE, Art. 1577, par. 2). absence of proof that the product was
defective
WARRANTIES IN SALE OF GOODS / It is incumbent on petitioners to establish liability
WARRANTIES OF QUALITY (CIVIL CODE, on the basis of breach of implied warranty. The
Art. 1562) manufacturer or seller of animal feeds cannot be
held liable for any damage allegedly caused by
Quality of goods
the product in the absence of proof that the
It includes their state or condition (CIVIL CODE, Art.
product was defective. The defect of the product
1636, par. 1).
requires evidence that there was no tampering
with, or changing of the animal feeds. The Court
PURPOSE: To promote high standard in business
explained that "in the sale of animal feeds, there
and to discourage sharp dealings. They are based
is an implied warranty that it is reasonably fit and
on the principle that “honesty is the best policy” (DE
suitable to be used for the purpose which both
LEON, supra at 414).
parties contemplated." (Padilla v. Universal
Robina Corporation, G.R. No. 214805,
1. Warranty of Fitness December 14, 2017).
The seller guarantees that the thing sold is
reasonably fit for the known particular purpose
for which it was acquired by the buyer. It exists
in the following instances:
a. Where the buyer, expressly or by
implication, manifests to the seller the
SALE UNDER A PATENT OR TRADE 3. To bear the expenses for the execution and
NAME registration of the sale and putting the goods in
a deliverable state, if such is the stipulation (DE
There is no warranty as to its fitness for any LEON, supra at 435).
particular purpose, unless there is a stipulation to the
contrary (CIVIL CODE, Art. 1563).
GRACE PERIOD TO VENDEE
BASIS: By exactly defining what he wants, the buyer A grace period granted the vendee in case of failure
has exercised his own judgment instead of relying to pay the amount/s due is a right, not an obligation.
upon that of the seller (DE LEON, supra at 418). The grace period must not be likened to an
obligation, the nonpayment of which, under Article
EFFECT OF USAGE OF TRADE 1169 of the Civil Code, would still generally require
judicial or extra-judicial demand before default can
An implied warranty or condition as to the quality or
be said to arise (Optimum Development Bank v.
fitness for a particular purpose may be annexed by
Sps. Jovellanos, G.R. No. 189145, December 04,
the usage of trade (CIVIL CODE, Art. 1564).
2013).
A usage in order to bind both parties:
1. It must be known both; or RULES:
2. If unknown to one, the other must be justified in 1. In a contract of sale, the vendor is not required
assuming knowledge on the part of the person to deliver the thing sold until the price is paid, nor
with whom he is dealing (DE LEON, supra at the vendee to pay the price before the thing is
419). delivered in the absence of an agreement in the
contract (CIVIL CODE, Art. 1524);
MERCHANTABILITY OF GOODS BY 2. If stipulated, the vendee is bound to accept
delivery and to pay the price at the time and
SAMPLE place designated;
In the case of a contract of sale by sample, if the 3. If there is no stipulation as to the time and place
seller is a dealer in goods of that kind, there is an of payment and delivery, the vendee is bound to
implied warranty that the goods shall be free from pay at the time and place of delivery;
any defect rendering them unmerchantable which 4. In the absence of a stipulation as to the place of
would not be apparent on reasonable examination of delivery it shall be made wherever the thing
the sample (CIVIL CODE, Art. 1565). might be at the moment the contract was
perfected (CIVIL CODE, Art. 1251);
FORM OF SALE OF LARGE CATTLE 5. If only the time for delivery of the thing sold has
Governed by special laws (i.e. P.D. No. 533 or The been fixed in the contract, the vendee is required
Anti-Cattle Rustling Law) (CIVIL CODE, Art. 1581). to pay even before the thing is delivered to him.
If only the time for payment of the price has been
PRESERVATION OF THE THING fixed, the vendee is entitled to delivery even
PENDING DELIVERY before the price is paid by him (CIVIL CODE, Art.
1524; DE LEON, supra at 437).
The seller is bound to take care of the thing with the
diligence of a good father of a family (CIVIL CODE,
Art. 1163).
LIABILITY OF VENDEE FOR
OBLIGATIONS OF COMPANY BOUGHT
OUT
1. Obligation not of considerable amount or
OBLIGATIONS OF THE value
– The vendee may be said to assume the
VENDEE obligations of the company bought out (e.g.
when incurred in the ordinary course of trade
and when the business of the latter company is
continued).
PRINCIPAL OBLIGATIONS (CIVIL CODE,
ART. 1582) 2. Obligation of considerable amount or value
– The vendee cannot be said to assume all the
OBLIGATIONS OF THE VENDEE: obligations of the rival company (e.g. when the
company was bought to stop its operations in
1. To accept delivery of the thing sold;
order to eliminate competition) (PH Airlines v.
2. To pay the price of the thing sold in legal tender
Balinquit, G.R. No. L-8715, June 30, 1956).
unless another mode has been agreed upon at
the time and place stipulated in the contract; and
3. Monetary liabilities to selling company’s This applies even if a term has been
employees fixed for the payment of price (Id. at
455).
GENERAL RULE: Unenforceable against the
transferee of an enterprise (e.g. labor contracts like iii. Vendee is guilty of default (Id. at 455).
Collective Bargaining Agreement (CBA)).
Under Art. 1169 of the Civil Code, the
REASON: Labor contracts are in personae and debtor incurs delay from the time of
binding only between the parties (Barayoga v. Asset judicial or extra-judicial demand for
Privatization Trust, G.R. No. 160073, October 24, payment of the price. However, demand
2005). is not necessary to constitute delay in
the following cases: (LTD)
EXCEPTION: Unless expressly assumed, or the 1.) The Law or obligation expressly
sale or transfer was made in bad faith (Barayoga v. provides;
Asset Privatization Trust, G.R. No. 160073, October 2.) Time is of the essence; or
24, 2005). 3.) Demand would be useless as when
the obligor has rendered it beyond
OTHER OBLIGATIONS: his power to perform.
1. To take care of the goods without the obligation
to return, where the goods are delivered to the PARTIAL PAYMENT
buyer and he rightfully refuses to accept it. It is Article 1589 applies to a situation where the seller
sufficient that the buyer notifies the seller that he delivers the thing to the buyer, who makes partial
refuses to accept them (CIVIL CODE, Art. payment of the purchase price (DE LEON, supra at
1587). 456).

If the seller refuses to take delivery of the goods NOTE: Article 1589 (3) will not apply if the seller files
after being notified to do so by the buyer, the and action to nullify the contract of sale (Id.).
latter may resell the goods (DE LEON, supra at
453). Acceptance, Not a Bar to Action for Damages or
Other Legal Remedy (CIVIL CODE, Art. 1586).
The buyer in such a case is in the position of a
bailee who has had goods entrusted upon him ACCEPTANCE
without his assent. He has the obligation to take Acceptance is the assent to become the owner of
reasonable care of the goods but nothing more specific goods when delivery of them is offered to the
can be demanded of him (Id.). buyer (DE LEON, supra at 451).
The goods in the buyer’s possession are at the Acceptance and delivery are different and separate
seller’s risk (Id.). acts. Acceptance is the buyer’s obligation while
delivery is the vendor’s obligation (DE LEON, supra
2. To be liable as a depositary if he voluntarily at 368).
constituted himself as such (CIVIL CODE, Art.
1587). Acceptance is not a condition to complete delivery.
a. To pay interest for the period between Vendee has nothing to do with the vendor’s delivery.
delivery of the thing and the payment of the The seller must comply with his obligation to deliver
price in the following cases (CIVIL CODE, although there is no acceptance yet by the buyer (La
Art. 1589): (IFV) Fuerza Inc., v. CA, G.R. No. L-24069, June 28,
i. Interest is stipulated; 1968).
It is the rate stipulated which governs;
otherwise, the legal rate of interest shall GENERAL RULE: Unless otherwise agreed upon,
be due (DE LEON, supra at 455). acceptance of the goods (CIVIL CODE, 1587) by the
buyer does not discharge the seller from liability for
NOTE: Interest which must be in writing damages or other legal remedy (like rescission) in
refers only to contracts of loan (CIVIL breach of any promise (CIVIL CODE, Art. 1586) or
CODE, Art. 1956). warranty in the contract of sale (CIVIL CODE, Art.
1547).
ii. Fruits or income are received by the
vendee from the thing sold (DE LEON, EXCEPTION: If the buyer, after acceptance of the
supra at 455); goods, fails to give notice to the seller of the breach
in any promise or warranty within a reasonable time
after the buyer knows or ought to know of such
breach. 3. Reject delivery of a wrong quantity of goods or
of goods of a different description not included
PURPOSE: To protect the seller against belated in the contract, which are mixed with the goods
claims (DE LEON, supra at 452). sold (CIVIL CODE, Art.1522).

RIGHTS OF THE BUYER: 4. If he refuses to accept the goods, having the

1. Not bound to accept delivery of goods by right to do so, he is not bound to return them to
installments (CIVIL CODE, Art. 1583); the seller; it being sufficient that he notifies the
seller of his refusal to accept (CIVIL CODE,
However, where the contract provides for the Art.1522).
delivery of goods by installments and a separate
price has been agreed upon for each NOTE: As to registered and titled land, the buyer
installment, it depends on each case of the has no obligation to inquire beyond four corners
terms of the contract and the circumstances of of title Rule applies only when:
the case whether the breach is severable or not a. Sale is the registered owner of the land;
(DE LEON, supra at 440). b. Owner of the land is in possession thereof;
and
Where Breach Affects the Whole Contract c. Buyer was not aware at the time of the sale
If the seller makes defective, partial or of any claim or interest of some other person
incomplete deliveries or the buyer wrongfully in the property or of any defect or restriction
neglects or refuses to accept delivery or fails to in the title of the seller (EEG Development
pay installment, the injured party may sue for Corporation v. Heirs of De Castro, G. R. No.
damages for breach of the entire contract if the 219694, June 26, 2019).
breach is so material, that is, breach of one
installment prevents the performance of the If he voluntarily constitutes himself as depositary of
contract, as to affect the contract as a whole (Id. the goods, he shall be liable as such (CIVIL CODE,
at 441). Art.1587).

Where the Breach is Severable Effect of Refusal to Accept Goods Without Just
It will merely give rise to a claim for Cause
compensation for the particular breach but not a Title to the goods passes to the buyer from the
right to treat the whole contract as broken (Id.) moment they are placed at his disposal, except if
ownership has been reserved by the seller (CIVIL
2. GENERAL RULE: Reasonable opportunity to CODE, Art.1588).
examine the goods upon delivery to ascertain
whether they are in conformity with the contract Acceptance and Actual Receipt
before accepting the same (CIVIL CODE, Acceptance and actual receipt do not imply each
Art.1584). other.

EXCEPTIONS: ACCEPTANCE V. ACTUAL RECEIPT

a. There is a stipulation to the contrary (CIVIL ACCEPTANCE ACTUAL RECEIPT
CODE, Art. 1584).
b. In case of C.O.D. (collect on delivery) – Implies approval of the Refers only to the
buyer is not entitled to examine until contract (e.g. where the physical act of taking or
payment is made; except if: goods are selected by receiving the goods
i. There is an agreement permitting the buyer). With the sold.
examination; or delivery and transfer of
ii. The usage of trade permits the title postponed until a
examination (CIVIL CODE, Art. 1523, later time.
par. 3).
(DE LEON, supra at 448).
The right of examination is not absolute. The
seller is bound to afford the buyer a reasonable Acceptance by the buyer may precede actual
opportunity of examining goods only on delivery; there may be actual receipt without
“request” (CIVIL CODE, Art. 1584, par. 2). acceptance and there may be acceptance without
receipt (DE LEON, supra at 451).
If the seller refused to allow inspection, the buyer
may rescind the contract (DE LEON, supra at
444).
Modes of Manifesting Acceptance (CIVIL CODE,
(CIVIL CODE, Art. the vendee (CIVIL
Art. 1585):
1495). CODE, Art. 1582).
1. Express Acceptance
– When the buyer, after delivery of the goods,
intimates to the seller, verbally osr in writing, that PAYMENT
he has accepted them. Non-payment does not prove simulation; at most, it
gives the seller the right to sue for collection.
2. Implied Acceptance Payment of the price is a resolutory condition and
a. When buyer, after delivery of goods, the remedy of the seller is to exact fulfillment or, in
performs acts of ownership case of substantial breach, to rescind the contract
b. Failure to return goods after reasonable under Art. 1191 of the Civil Code (DE LEON, supra
lapse of time (DE LEON, supra at 448). at 71).

USE OF PROPERTY
GENERAL RULE: An act inconsistent with the REMEDIES FOR
seller’s ownership prevents the buyer from claiming
that he has not accepted the goods. BREACH OF CONTRACT
Example:
1. Resale or mortgage of the goods;
2. Alteration in a manner proper only for an owner; RESCISSION IN CASE OF BREACH OF A
or PARTY OR IN CASE OF LESION
3. Sells or attempts to sell the goods (Id.). 1. Rescission based on Art. 1191
a. Legal basis is substantial breach;
EXCEPTION: b. Principal remedy, retaliatory versus unjust
If such use does not affect the condition or value of party;
the property (e.g. where the use is for the purpose of c. Effect is mutual restitution.
trial) (Id. at 449).
2. Rescission based on Art. 1381
EXCEPTION TO THE EXCEPTION: a. Legal basis is lesion (rescissible contract);
If the buyer prolongs the trial beyond a reasonable b. Subsidiary remedy - cannot be instituted
period, or uses more of the goods than is fairly and except when other remedies are exhausted;
reasonably necessary in making the tests (Id.). c. Effect is mutual restitution.

NOTE: The buyer must notify the seller within a REMEDIES OF THE BUYER
reasonable time after the buyer knows or ought to
know of the breach; otherwise, the seller will be
released from such liability (CIVIL CODE, Art. 1586). WHEN THE SUBJECT MATTER OF THE
CONTRACT OF SALE IS IMMOVABLE
Notice is still required even if the seller has PROPERTY
knowledge of the facts constituting the breach 1. Suspension of payment (CIVIL CODE, Art.
because whether or not the defect constitute a 1590);
breach must be taken from the point of view of the It contemplates a situation where the contract is
buyer (5 TOLENTINO, Civil Code of the Philippines not yet consummated (DE LEON, supra at 457).
Annotated, p. 134 [hereinafter, 5 TOLENTINO]).
It is applicable in the following cases (grounds to
DELIVERY V. ACCEPTANCE invoke suspension of payment):
DELIVERY ACCEPTANCE a. Where the vendee is disturbed in
possession or ownership of the thing
As to Nature bought; or
b. Vendee has reasonable ground to fear that
An act of the vendor. An act of the vendee. his possession or ownership would be
disturbed (by a vindicatory action or a
As to Obligation foreclosure of mortgage).
One of the obligations of Acceptance is an In both instances, the vendee may retain only
the vendor is the obligation on the part of the price that has not been paid to the vendor.
delivery of the thing sold
 He is not entitled to recover what has already New Term
been paid (DE LEON, supra at 457). GENERAL RULE: Once a demand for
rescission by suit or notarial act is made, the
Under the second case, it is not necessary that court may not grant the vendee a new term
an action be brought against the vendee (Id.). (CIVIL CODE, Art.1592).

Exceptions to Suspension of Payment EXCEPTION: In the interest of justice and

(where vendee has no right to suspend equity, where the vendee has substantially
payment): (SSCTP) performed in good faith (J.M. Tuazon & Co. v.
a. Vendor gives Security for the return of the Javier, G.R. No. L-28569, February 27, 1970).
price in a proper case (CIVIL CODE, Art.
1590); Art. 1592 is not applicable in the following
b. Stipulation that vendee must make payment cases:
notwithstanding such contingency (CIVIL a. Sale of installment on real estate – It does
CODE, Art. 1590); not apply to a sale on installment of real
c. Cessation of disturbance or danger (Bareng property when the parties have laid down
v. CA, G.R. No. L-12973, April 25, 1960); the procedure to be followed in the event
d. Disturbance is a mere act of Trespass (DE that the vendee failed to fulfill his obligation
LEON, supra at 457); or (Albea v. Inquimboy, G.R. No. L-1601, May
e. Vendee has Paid the price in full (Id.). 29, 1950).

NOTE: When the disturbance is caused by non- b. Contract to sell/conditional sale of real
apparent servitude, the remedy is rescission, not estate – In this case, the title remains with
suspension of payment (CIVIL CODE, Art. the vendor until full payment of the purchase
1560). price (Roque v. Lapuz, G.R. No. L-32811,
March 31, 1980). Payment in this case is a
Length of Suspension of Payment positive suspensive condition, the failure of
The right to suspend payment granted by law to which prevents the obligation of the vendor
the vendee exists only while the danger or to convey title. In an absolute sale, non-
disturbance lasts. Once the vendor has caused payment is a resolutory condition
the cessation of this disturbance such as by (Pangilinan v. CA, G.R. No. 83588,
compromising with the third person who poses September. 29, 1997).
the danger or disturbance to the vendee’s
possession or ownership, the vendee must Cases covered by the Realty Installment Buyer
already pay (Bareng v. CA, G.R. No. L-12973, Act, also known as the Maceda Law (R.A. 6552).
April 25, 1960).
NOTE: Article 1191 is subordinated to the
Mere Act of Trespass provisions of Article 1592 when applied to sales
A mere act of trespass shall not authorize the of immovable property (DE LEON, supra at
suspension of the payment of the price (CIVIL 459).
CODE, Art. 1590).
The mere failure to fulfill the contract does not
2. In the sale of immovable property, to pay even operate ipso facto as its rescission (DE LEON,
after the expiration of the period agreed upon, supra at 459).
as long as no demand for rescission of the
contract has been made upon him either A judicial or notarial act is necessary before a
judicially or by a notarial act, even though it may valid rescission can take place; whether or not
have been stipulated that rescission shall of right automatic rescission has been stipulated
take place upon failure to pay the price at the (Iringan v. CA, G.R. No. 129107, September 26,
time agreed upon (CIVIL CODE, Art.1592). 2001).

The defaulting vendee may defeat the vendor’s A complaint by the vendor seeking the
right to rescind the contract of sale if he pays the cancellation of the vendee’s adverse claim on
amount due before he receives a demand for the vendor’s original certificate of title and for the
rescission, either judicially or by a notarial act, refund of the payments made cannot be
from the vendor (Heirs of Pangan v. Sps. considered a judicial demand under Article
Perreras, G.R. No. 157374, August 27, 2009). 1592. Seeking discharge from contractual
obligations and an offer for restitution is not the
same as abrogation of the contract (Ocampo v.
CA, G.R. No. 97442, June 30, 1994).
 Theory of Recoupment
NOTE: In Articles 1191 and 1592, the rescission The seller’s damages are cut down to an
is a principal action which seeks the resolution amount which will compensate him for the
or cancellation of the contract, while Article value of what he has given (DE LEON, supra
1381, the action is a subsidiary one limited to at 482).
cases of rescission for lesion as enumerated in
said article (DE LEON, supra at 461). Remedy of recoupment must be
exercised in relation to the same
3. In case of Subdivision or Condominium transaction: Recoupment must arise out of
Projects (P.D. 957, The Subdivision and the contract or transaction upon which the
Condominium Buyer’s Protective Decree). plaintiff’s claim is founded. To be entitled to
recoupment, the claim must arise from the
Non-forfeiture of Payments same transaction. That there was a series of
No installment payments made by the buyer in a purchases made by petitioners could not be
subdivision or condominium project for the lot or considered as a single transaction (First
unit he contracts to buy shall be forfeited in favor United Constructors Corporation v.
of the owner or developer when the buyer, after Bayanihan Automotive Corporation, G.R.
due notice to the owner or developer desists No. 164985, January 15, 2014).
from further payment due to the failure of the
owner or developer to develop the subdivision or ii. Accept the goods and maintain an action for
condominium project according to the approved damages for breach of warranty (CIVIL
plans and within the time limit for complying with CODE, Art. 1599, par. 1 (2));
the same (P.D. 957, Section 23).
iii. Action or counterclaim for Damages –
4. Rights provided for under Maceda Law Refuse to accept the goods and maintain an
(see Maceda Law section). action for damages for breach of warranty
(CIVIL CODE, Art. 1599, par. 3); or
WHEN THE SUBJECT MATTER OF THE
Note: Acceptance with knowledge if the
CONTRACT OF SALE IS A MOVABLE breach of warranty does preclude rescission
PROPERTY but it does not necessarily preclude a right
a. In case of failure of seller to deliver, the buyer to recoupment or damages (DE LEON,
may seek action for specific performance, supra at 483).
without giving the seller the option of retaining
the goods on payment of damages (CIVIL iv. Rescission – Rescind the contract and
CODE, Art. 1598). refuse to receive the goods; or if goods have
already been received, return them or offer
REASON: Damages are imposed by law to to return them and recover what was paid or
insure fulfillment of contract and not substitute any part of it concurrently with return or
for it (DE LEON, supra at 479). immediately after it (CIVIL CODE, Art. 1599,
par. 4).
b. The judgment may be unconditional, or upon
such terms and conditions as to damages, These are alternative remedies, without
payment of the price and otherwise, as the court prejudice to paragraph 2 of Article 1191 of
may deem just (CIVIL CODE, Art. 1598). the Civil Code (a party may still seek
rescission after choosing specific
This article applies only where the goods to be performance if the latter is impossible)
delivered are specific or ascertained (CIVIL (CIVIL CODE, Art. 1599, par. 4 (2)).
CODE, Art. 1598).
NOTE: Article 1599 applies both to implied
c. In case of breach of seller’s warranty, the buyer warranties and to express warranties,
may, at his election, avail of the following whether of quality of or of title (DE LEON,
remedies: (RADaR) supra at 481).
i. Recoupment – Accept or keep the goods
and set up the seller’s breach to reduce or Article 1599 does not apply if the contract of
extinguish the price (CIVIL CODE, Art. 1599, sale was not perfected (Insular Life
par. 1); Company Ltd. v. Young, G.R. No.140964,
January 16, 2002).
 When Rescission by Buyer Not Allowed:
1.) If the buyer accepted the goods SALE BY DESCRIPTION AND BY
knowing the breach of warranty without SAMPLE
protest;
2.) If he fails to notify the seller within a The goods must satisfy all the warranties
reasonable time of his election to appropriate to either kind of sale (DE LEON, supra
rescind; or at 136).
3.) If he fails to return or offer to return the
goods in substantially as good BUYER’S RIGHT TO SPECIFIC
condition as they were in at the time of PERFORMANCE
the transfer of ownership to him. But In case the seller should violate his obligation to
where the injury to the goods as caused make delivery, the buyer as a matter of right can
by the very defect against which the demand specific performance upon application to
seller warranted, the buyer may still the court (CIVIL CODE, Art. 1598).
rescind the sale (CIVIL CODE, Art.
1599, par. 4(3)). The seller cannot retain the goods on payment of
damages (Id.).
Rights and Obligations of Buyer in REASON: Payment of damages is not a substitute
Case of Rescission: for specific performance. It is imposed by law to
1.) Buyer shall cease to be liable for the insure fulfillment of the contract (DE LEON, supra at
price, his only obligation being to 479).
return the goods (CIVIL CODE, Art.
1599, par. 4 (4)); The judgment or decree by the court may be
2.) If he has paid the price or any part unconditional, or upon such terms and conditions as
thereof, he may recover it from the to damages, payment of the price and otherwise, as
seller (CIVIL CODE, Art. 1599, par. 4 the court may deem just (CIVIL CODE, Art. 1598).
(4));
3.) He has the right to hold the goods as COMPARATIVE TABLE OF REMEDIES
bailee for the seller should the latter
refuse to accept the offer of the buyer
IN CASE OF BREACH
to return the goods (CIVIL CODE, Art. Vendor/Seller Vendee/Buyer
1599, par. 4 (5)); and
4.) He has a right to have a lien on the Rescission based on Rescission based on
goods for any portion of the price substantial breach substantial breach
already paid which such lien may be (CIVIL CODE, Art. (CIVIL CODE, Art.
enforced as if he were an unpaid 1191). 1191).
seller (CIVIL CODE, Art. 1599, par. 4
(5)). Action for damages Action for damages
(CIVIL CODE, Art. (CIVIL CODE, Art.
d. In case of sale of goods by sample or by 1170). 1170).
description, the buyer may demand rescission:
Immovables
i. In a contract of sample or description, if the
bulk of the goods do not correspond to the 1. Rescission based on 1. Suspension of
sample or description; or Anticipatory Breach payment (CIVIL
ii. In sale by description and sample, if the (CIVIL CODE, Art. CODE, Art. 1590);
bulk of the goods do not correspond with 1591); 2. Right to grace period
the sample and description (CIVIL CODE, 2. Rescission based on under the Maceda
Art. 1481). a stipulation Law.
regarding automatic
SALE BY DESCRIPTION rescission (CIVIL
Purchaser has not seen the article sold and relies on CODE, Art. 1592);
the description given to him by the vendor, or has 3. Maceda Law.
seen the goods but the want of identity is not
apparent on inspection (DE LEON, supra at 135). Movables

1. Action for the price 1. Action for specific

SALE BY SAMPLE of the goods/specific performance in case of
It must appear that the parties contracted solely with performance (CIVIL specific or ascertained
reference to the sample, with the understanding that CODE, Art. 1595); goods (CIVIL CODE,
the bulk was like it (DE LEON, supra at 135). Art. 1598);
 sufficient to defeat vendor’s prerogative.
Vendor/Seller Vendee/Buyer
Vendor’s right to rescind is not absolute;
2. Technical 2. In case of breach of c. Art. 1191(3) of the Civil Code provides that
Rescission (CIVIL warranty of seller (CIVIL the court may grant vendee a new term.
CODE, Art. 1597); CODE, Art. 1599). However, if there is already a demand, the
3. Rescission based on court may no longer fix a term.
a stipulation
regarding automatic Applicability of Art. 1592
rescission (CIVIL It applies only to a contract of sale of real
CODE, Art. 1593); property where title passes to the vendee upon
4. Remedies of unpaid the delivery of the thing sold usually effected
seller (CIVIL CODE, through the execution of public document. It
Art. 1526). does not apply to conditional sale where the title
remains with the vendor until full payment of the
price (Valarao v. CA, G.R. No. 130347. March 3,
REMEDIES OF THE SELLER 1999).
Meaning of “even though”
According to Justice Paras and Dean
WHEN THE SUBJECT MATTER OF THE Villanueva, the phrase “even though” signifies
SALE IS IMMOVABLE that Article 1592 of the Civil Code is applicable
1. When there is anticipatory breach to all sales of immovable even when there is no
Seller may sue for rescission if the following stipulation on automatic rescission (5 PARAS,
concur: supra at 244; VILLANUEVA, supra at 394).
a. There is delivery of immovable property;
b. Vendee has not yet paid the price; and According to De Leon, however, the phrase
c. Vendor has reasonable ground to fear the: “even though” emphasizes that when no
i. Loss of the immovable property; and stipulation is found on automatic rescission, the
ii. Loss of price (CIVIL CODE, Art. 1591). judicial or notarial requirement still applies.
According to him, therefore, the buyer may still
This contemplates a situation where there has pay the price even after the expiration of the
been delivery of the immovable property, but the period and notwithstanding a stipulation on
vendee has not yet paid the price (DE LEON, automatic rescission, as long as there is no
supra at 458). demand by judicial or notarial act (DE LEON,
supra at 460).
This is applicable to both cash sales and to sales
in installments as Art. 1591 of the Civil Code Prescriptive Period (rescission under Articles
does not distinguish between one and the other 1191 and 1592)
(Id. at 459). It must be brought within ten (10) years from the time
the right of action accrues (CIVIL CODE, Art. 1144).
Pursuant to Art. 1191 of the Civil Code, the
vendor may sue for either fulfillment or Seller is given an option to demand rescission upon
rescission with damages in either case upon the judicial or notarial demand (CIVIL CODE, Art. 1592).
vendee’s failure to comply with his obligation to
pay the agreed price (Id.). NOTE: An action for reconveyance is not an action
for rescission. The judicial rescission of a contract
Rescission of a contract would not be permitted gives rise to mutual restitution which does not
for a slight or casual breach but only for such happen in an action for reconveyance (Olympia
substantial or fundamental breach that would Housing Inc. v. Panasiatic Travel Corp., G.R. No.
defeat the very object of the parties (Id.). 140468, January 16, 2003).

2. When there is failure on the part of buyer However, when there is no judicial or notarial
to pay the price demand, the buyer may still pay. Offer to pay is
Automatic rescission of sale of immovable sufficient to defeat seller’s prerogative (DE LEON,
property is stipulated (CIVIL CODE, Art. supra at 460).
1592).
a. Vendor is given an option to rescind upon The right of automatic rescission, which is
JUDICIAL OR NOTARIAL demand; stipulated in a contract of sale, is subject to waiver.
b. When there is no judicial or notarial demand, In this case, the right was held waived by the vendor
vendee may still pay. Offer to pay is who granted many extensions to the vendee, in all
of which, the vendor never called attention to the
proviso on “automatic rescission” (Pilipinas Bank v. passed to the buyer and he wrongfully
IAC, G.R. No. L-67881, June 30, 1987). neglects or refuses to pay for the goods
according to the terms of the contract,
WHEN THE SUBJECT MATTER OF THE the seller may maintain an action
SALE IS MOVABLE against him for the price of goods (CIVIL
CODE, Art. 1595, par. 1).
1. Movables in general
Automatic rescission shall take place in the When price is payable on a certain day,
interest of the seller if the buyer without any valid irrespective of delivery or transfer of
cause, upon the expiration of the period for title, and the buyer wrongfully neglects
delivery of thing: or refuses to pay, the seller may
a. Should not have appeared to receive it; or maintain an action for the price although
b. Having appeared, should not have tendered the ownership in the goods has not
the price at the time, unless a longer period passed (CIVIL CODE, Art. 1595, par. 2)
is stipulated for its payment (CIVIL CODE, .
Art. 1593). However, it is a defense to such action
that seller has manifested an inability to
Reason behind Art. 1593: The delay is perform the contract of sale on his part
prejudicial to the vendor since personal or an intention not to perform it at any
properties are not capable of maintaining a time before the judgment (CIVIL CODE,
stable price in the market (DE LEON, supra at Art. 1595, par. 2).
468).
Reason: A contract of sale
It applies only when thing sold has not been contemplates a double exchange.
delivered to the buyer. There is justice as well as good reason
for excusing the buyer from prior
REASON: The buyer cannot take the law in his performance when he will not get
hands (Id.). subsequent performance from the seller
(DE LEON, supra at 473).
2. Sale of Goods
Provisions Governing Breach of Contract of ii. If goods cannot readily be resold for a
Sale of Goods (CIVIL CODE, Art. 1594) reasonable price, although transfer of
Governed particularly by the provisions of ownership has not passed, and if the
Chapter 6 (CIVIL CODE, Arts. 1595-1599), and provisions of Article 1596 par. 4, are not
secondarily, by the other provisions of the Title applicable – seller may offer to deliver
on sales so far as said provisions can apply (DE the goods to the buyer (CIVIL CODE,
LEON, supra at 470). Art. 1595, par. 3).

“Goods” include all chattels personal but not iii. If buyer refuses to receive, seller may
things in action or money of legal tender in the notify the buyer that he holds the goods
Philippines. The term includes growing fruits or as bailee for the buyer. Thereafter, the
crops (CIVIL CODE, Art. 1636, par. 1). seller may treat the goods as the buyer’s
and may maintain an action for the price
Actions available (CIVIL CODE, Art. 1595, par. 3).
In general, the actions available for breach of
the contract of sale of goods are the following: b. Seller’s Right of Action for Damages
1. Payment of the price (CIVIL CODE, Art. i. When the buyer wrongfully neglects or
1595); refuses to accept and pay for the goods
2. Damages for non-acceptance of the goods (CIVIL CODE, Art. 1596, par. 1);
(CIVIL CODE, Art. 1596); ii. In an executory contract, where the
3. Rescission of the contract for breach thereof ownership in the goods has not passed,
(CIVIL CODE, Art. 1597); and the seller cannot maintain an action
4. Specific Performance (CIVIL CODE, Art. to recover the price (CIVIL CODE, Art.
1598); and 1595, par. 4); or
5. Rescission or damages for breach of iii. If the goods are not yet identified at the
warranty (CIVIL CODE, Art. 1599). time of the contract or subsequently, the
seller’s right is necessarily confined to
a. Seller’s Right of Action for the Price an action for damages (DE LEON,
(CIVIL CODE, Art. 1595) supra at 475).
i. When the ownership of the goods has
 Measure of Damages In the following instances, the seller may
Estimated loss directly and naturally totally rescind by giving notice of his election
resulting in the ordinary course of events to do so to the buyer:
from the buyer’s breach (CIVIL CODE, Art. i. Buyer has repudiated the contract of
1596, par. 2). sale;
ii. Buyer has manifested his inability to
Measure of Damages (when there is perform obligations thereunder; or
available market) iii. Buyer has committed a breach
In the absence of special circumstances
showing proximate damage of a different NOTE: The seller is required to give notice
amount, the difference between the contract of his election to seek rescission. Formal
price and the market or current price at the notice is certainly not a requisite, and
time the goods ought to have been bringing an action promptly for restitution is
accepted, or at the time of refusal to accept sufficient (DE LEON, supra at 477).
when there is no time fixed (CIVIL CODE,
Art. 1596, par. 3). This follows the general If the goods have been delivered, the seller
rule that damages comprehend not only the may recover the value of what he has given
actual loss suffered but also unrealized (CIVIL CODE, Art 1595).
profit (CIVIL CODE, Art 2200) (DE LEON,
supra at 475).

Measure of Damages (when there no UNPAID SELLER

available market)
The seller is entitled to the full amount of
damage which he has really sustained by a
breached of the contract (DE LEON, supra 1. The seller who to whom the whole of the price
at 475). has not been paid or tendered;
2. The seller of the goods, in case a bill of
Measure of Damages (special exchange or other negotiable instrument has
circumstance showing proximate been received as conditional payment, and the
damage) condition on which it was received has been
An amount greater than the difference broken by reason of the dishonor of the
between the contract price and market price instrument, insolvency of the buyer or otherwise
when “may be reasonably attributed to the (CIVIL CODE, Art. 1525).
non-performance of the obligation (CIVIL
CODE, Art. 2201, par. 2). The term seller as used in Articles 1525 to
1535 includes the following:
Example: Hospitalization expenses due to a. Agent of the seller, to whom the bill of lading
the refusal of the buyer, without just cause, has been indorsed;
to accept the delivery so angered the seller b. Consignor or agent who has himself paid, or
that the latter suffered a heart attack for is directly responsible for the price; or
which he was hospitalized (DE LEON, supra c. Any other person in the position of the seller
at 476). (CIVIL CODE, Art. 1525).

Measure of Damages for Repudiation or NOTE: A seller is unpaid within the definition
Countermand whether title has or has not passed (CIVIL CODE,
The measure of damages would include: Art. 1526).
i. The labor performed and expenses
incurred for materials before receiving TENDER OF PAYMENT BY BUYER
notice of the buyer’s repudiation; and
So far as concerns his rights against the goods, he
ii. The profit he would have realized if the
is not an unpaid seller after the tender of the price
sale had been fully performed (CIVIL
CODE, Art. 1596, par. 4). (DE LEON, supra at 298).

c. Technical Rescission (CIVIL CODE, Art. REMEDIES OF UNPAID SELLER:

1597) (PoS4A2RM)
This article applies where there has been no 1. Possessory lien (CIVIL CODE, Arts. 1527 to
delivery of goods yet. 1529);
2. Stoppage of goods in transitu (CIVIL CODE, Art.
1530);
3. Special right of resale (CIVIL CODE, Art. 1533); When unpaid seller loses his lien: (COW)
4. Special right of rescission (CIVIL CODE, Art. 1. Delivery of the goods to a Carrier or other bailee
1534); for the purpose of transmission to the buyer
5. Specific performance; without reserving ownership in the goods or right
6. Action for the price; to the possession thereof;
7. Action for damages;
8. Recto Law (CIVIL CODE, Art. 1484); and REASON: An unconditional delivery to an agent
9. Maceda Law (R.A. No. 6652). or bailee for the buyer is the same as delivery to
the buyer insofar as the seller’s lien is concerned
POSSESSORY LIEN (CIVIL CODE, Art. 1527) (DE LEON, supra at 303).
The seller is entitled to retain possession of the
goods as security for the purchase price. 2. When the buyer or his agent lawfully Obtains
possession of the goods;
When it may be exercised: (WEI)
1. The goods have been sold Without any REASON: The seller has no possession
stipulation as to credit. necessary for a lien (Id.).

The seller is entitled to the payment of the price 3. By Waiver of the lien (CIVIL CODE, Art. 1529).
at the same time that he transfers the
possession of the goods (CIVIL CODE, Art. Loss of Lien
1524). The lien of the seller depends upon either
possession or control of the property on which the
2. The goods have been sold on credit, but the lien is claimed, and if the seller permits the property
term of credit has Expired. to go into actual possession of the buyer, such lien
The obligation of the buyer to pay shall be is lost, although he delivers on the faith of a chattel
governed by Article 1524 of the Civil Code (DE mortgage which turns out to be invalid, or draft given
LEON, supra at 301). in payment was dishonored. If, however, the seller
has been induced to part with possession by fraud,
3. The buyer becomes Insolvent (CIVIL CODE, Art. the lien of the seller is not lost but continues (5
1527). TOLENTINO, Civil Code, supra at 82).

Insolvent – A person who ceased to pay his Revival of Lien after Delivery:
debts in the ordinary course of business or 1. If the goods are rejected by the buyer, and the
cannot pay his debts as they become due, carrier or other bailee continues in possession of
whether insolvency proceedings have been them, even if the seller has refused to receive
commenced or not (CIVIL CODE, Art. 1636, par. them back (CIVIL CODE, Art. 1531, pars. 1 and
2). 2).

Basis: When one party to a bilateral contract is 2. If the buyer refuses to receive the goods in
incapacitated from performing his part of the wrongful repudiation of the sale, provided that
agreement, the other party is also excused from the seller makes it clear in accepting the goods
performing his part (DE LEON, supra at 300). from the buyer that he is not assenting to the
rescission of the sale (DE LEON, supra at 304).
NOTE: The seller may exercise his right of lien
notwithstanding that he is in possession of the goods However, the return of the goods by the buyer to
as agent or bailee for the buyer (CIVIL CODE, Art. the seller not in repudiation of the sale but for
1527, par. 2). some special purpose, such as to have repairs
or alterations by the seller, does not revive the
When Unpaid Seller Has Made Part Delivery of lien of the seller (5 TOLENTINO, supra at 83).
the Goods
GENERAL RULE: He may exercise his right of lien NOTE: Possessory lien is lost after the seller loses
on the remainder that has not been delivered (CIVIL possession but his lien as an unpaid seller remains.
CODE, Art. 1528). His preference can only be defeated by the
government’s claim to the specific tax on the goods
EXCEPTION: When part delivery has been made themselves (CIVIL CODE, Arts. 2241, 2242 and
under such circumstances as to show an intent to 2247).
waive the lien or right of retention (CIVIL CODE, Art.
1528). Possessory lien is different from lien on the price. In
the first, the seller is entitled to retain possession of
the goods as security for the purchase price. In the
second, after delivery, the seller loses his Cash Sales
possessory lien but retains his lien on the price of the No right of stoppage in transitu exists in a cash sale.
goods (PINEDA, Sales, supra at 199). The sale must be on credit to entitle the seller the
right (DE LEON, supra at 306).
STOPPAGE OF GOODS IN TRANSITU
A right which a seller of goods on credit has to recall Effect of the Exercise of Right by Seller
1. To restore the seller to the same position as if
them or retake them while they are in possession of
the property never left his possession (CIVIL
a carrier or other middleman who received them for
CODE, Art. 1530), but subject to lien of carrier
delivery to the buyer, on discovery of the insolvency for freight charges;
of the buyer (DE LEON, supra at 305). 2. It does not operate to rescind the sale, and if the
buyer has paid part of the price, does not entitle
Requisites: (UI-TE-RE)
the buyer to recover such part payment; and
1. Seller must be Unpaid (CIVIL CODE, Art. 1525);
3. The seller may sue and recover the agreed
2. Buyer must be Insolvent (CIVIL CODE, Art.
price, provided he is ready and willing to deliver
1530);
the goods on payment (DE LEON, supra at 308).
NOTE: The buyer’s insolvency need not be
Requirement of Insolvency
judicially declared (CIVIL CODE, 1636 par. 2).
The seller cannot exercise the right at the mere
caprice of the seller where no insolvency exists. The
3. Goods must be in Transit (CIVIL CODE, Art.
following circumstances do not justify the exercise of
1531); and
the right of stoppage in transitu:
1. The buyer was in default in the performance of
4. Seller or his agent in that behalf must Either:
his obligations;
a. Actually take possession of the goods sold;
2. The death of the buyer, unless his estate is
or
insolvent; or
b. Give notice of his claim to the carrier or other
3. The fact that the goods have been levied on by
person in possession of the goods (CIVIL
attaching creditors of the buyer, unless the
CODE, Art. 1532, par. 1).
buyer is insolvent (DE LEON, supra at 307).
NOTE: The carrier may incur liability to the seller
Time of Insolvency
for delivering the goods to the buyer
The buyer became insolvent before he has taken
notwithstanding the proper and timely notice to
possession of the goods, or insolvency existed at the
stop in transitu (DE LEON, supra at 308).
time of the sale, if it was not discovered until
afterwards by the seller, then the seller has the right
5. The carrier or other person in possession must
of stoppage (Id.).
Redeliver the goods to, or according to the
directions of, the seller (CIVIL CODE, Art. 1532,
When the Goods are considered “In Transit”:
par. 2); and
1. From the time when they are delivered to a
carrier or other bailee and before the buyer or
6. The seller must bear the Expenses of delivery of
his agent takes delivery of them; and
the goods after the exercise of the right (CIVIL
2. If the goods are rejected by the buyer, and the
CODE, Art. 1532, par. 2).
carrier or other bailee continues in possession of
them (even if the seller refused to receive them
Notice may be given either to the person in actual
back) (CIVIL CODE, Art. 1531, par. 1).
possession of the goods or to his principal (CIVIL
CODE, Art. 1532, par. 1).
Mere arrival of the goods at or on the premises of the
Basis of the Right of Stoppage in Transitu carrier at the point of destination does not terminate
The injustice of allowing the buyer to acquire the transportation for transit includes not only the
ownership and possession of the goods when he carriage of the goods to the destination, but also
has not paid and, owing to his insolvency, cannot delivery according to the terms of the contract (DE
pay the price which was to be given in return for the LEON, supra at 310).
goods.
The mere act of the carrier or middleman in giving
One man’s property should not be applied in notice to the buyer regarding the arrival of the goods
payment of another’s man’s debt (DE LEON, supra is not a termination of the transit (Id.).
at 307).
NOTE: Taking of the goods in transit by an
unauthorized agent of the buyer does not extinguish
the right of stoppage in transitu (5 PARAS, Civil up possession of the whole of the goods (CIVIL
Code, supra at 166). CODE, Art. 1531, par. 4)

In case of misdelivery, the goods are still considered Effects of the Exercise of the Right of Stoppage
in transit, hence, the seller may still exercise said in Transitu:
right pursuant to Article 1532 of the Civil Code, which 1. The goods are no longer in transit (CIVIL CODE,
provides that an unpaid seller may exercise his right Art. 1531, par. 2);
of stoppage in transitu by giving notice of his claim 2. The contract of carriage ends after the arrival of
to the carrier “or other bailee in whose possession the goods at the destination. The carrier now
the goods are.” becomes a mere bailee, and will be liable as
such (CIVIL CODE, Art. 1531, par. 2(2)); and
When the Goods are NO Longer in Transit: 3. The seller would have the same rights to the
(ADAR) goods as if he had never parted possession with
1. After delivery to the buyer or his agent in that it (CIVIL CODE, Art. 1530).
behalf;
2. If the buyer or his agent obtains Delivery of the Ways of Exercising the Right:
goods at a point before their arrival at the 1. By taking actual possession of the goods; or
appointed destination; 2. By giving notice of his claim to the carrier or
3. If after the arrival of the goods at the appointed bailee in whose possession the goods are
destination, the carrier or the bailee (CIVIL CODE, Art. 1532, par. 1).
Acknowledges to hold the goods in behalf of the
buyer (also known as Attornment by the Bailee)
(DE LEON, supra at 310); and Effect if the Buyer Already Sold the Goods:
4. If the carrier or bailee wrongfully Refuses to GENERAL RULE: The unpaid seller’s right to lien or
deliver the goods to the buyer (CIVIL CODE, Art. stoppage in transitu remains even if buyer has sold
1531, par. 2). the goods (CIVIL CODE, Art. 1535).

When a carrier first receives goods consigned to the EXCEPTIONS:

buyer, the carrier is agent for the seller for the 1. When the seller has given consent thereto; and
purpose of delivering the goods to the buyer. In order 2. When a negotiable document of title has been
to terminate the seller’s right to stop, the carrier must issued for the goods (CIVIL CODE, Art. 1535).
enter into a new relation, distinct from the original
contract of carriage, so that he then holds REASON: It operates as a delivery of the goods
possession of goods for the buyer as his agent for described therein when indorsed. It protects a
the purpose of custody on the buyer’s account (DE purchaser without notice after the seller had
LEON, supra at 311). stopped the goods either by virtue of his lien or
stoppage in transitu (DE LEON, supra at 320).
Effect of Refusal to Deliver:
1. Wrongful Refusal Where Goods Not Covered by Negotiable
– The goods are no longer in transit. The carrier Document of Title
is not allowed to extend the seller’s right by A seller cannot give any right larger than he has.
refusing to deliver the goods to the buyer or his When the goods are subject to a legal lien, a
agent in that behalf (CIVIL CODE, Art. 1531, par. purchaser from the original buyer can acquire only
2(3)). such rights as the buyer then had (Id.).

2. Rightful Refusal SPECIAL RIGHT OF RESALE: (LSPRD)

– Right to stop by the seller would not be An unpaid seller can exercise the right to resell only
terminated (DE LEON, supra at 311). when he has either:
1. A right of Lien (CIVIL CODE, Art. 1526 (1)); or
Delivery to a Carrier Chartered by the Buyer 2. Exercised the right to Stop the goods in transit
It does not make a delivery to the carrier a delivery (CIVIL CODE, Art. 1526 (2)); and under any of
to the buyer. It is a question depending on the the three (3) following cases:
circumstances of the particular case (CIVIL CODE, a. Goods are Perishable in nature;
Art. 1531, par. 3). b. The right to resell is expressly Reserved in
case the buyer should make a default; or
Effect of Partial Delivery c. The buyer Delays in the payment of the
It does not deprive the seller of the right to stop with price for an unreasonable time (CIVIL
respect to the remainder unless it may be shown that CODE, Art. 1533).
the seller has an agreement with the buyer to give
NOTE: Article 1533 of the Civil Code applies only if NOTE: The seller cannot, arbitrarily and without
the title to goods has already passed to the buyer. good reason, take the goods to another market and
Otherwise, the goods cannot be resold. hold the buyer for the difference between the
contract price and the amount for which the property
Article 1533 provides that the seller having the right was resold, including the cost of transportation (Id.).
“may resell the goods”. The language is permissive
in nature rather than mandatory (DE LEON, supra at SPECIAL RIGHT TO RESCIND: (LSRD)
316).
The unpaid seller having either:
1. The right of Lien (CIVIL CODE, Art. 1526, par.
Effect of Resale
1); or
The new buyer acquires a good title as against the
2. A right to Stop the goods in transit, when seller
original buyer (CIVIL CODE, Art. 1533, par. 2).
has already parted with possession of the goods
(CIVIL CODE, Art. 1526, par. 1, (2)), and under
IF SOLD FOR MORE IF SOLD FOR LESS either of the two (2) situations:
THAN THE ORIGINAL THAN THE a. Where the right to rescind on default has
PRICE ORIGINAL PRICE been expressly Reserved; or
b. Where the buyer has been in Default for an
The seller is not liable to The seller has right unreasonable time (CIVIL CODE, Art. 1534,
the original buyer for any to sue for the par. 1).
profit earned in the resale balance (CIVIL
(CIVIL CODE, Art. 1533, CODE, Art. 1533, Effect of Exercising Right of Rescission
par. 1). par 1). The seller shall not thereafter be liable to the buyer
The seller is not liable to the original buyer for any upon the contract of sale but may recover from the
profit earned in the resale and may recover damages buyer damages for any loss occasioned by the
occasioned by the buyer’s breach of the contract of breach of contract (CIVIL CODE, Art. 1534, par. 1).
sale. Action for the rescission of the sale is not
necessary (PINEDA, Sales, supra at 211). Effect of Rescission
The seller resumes the ownership of the goods
Notice of Resale Not Essential (CIVIL CODE, Art. 1534, par. 1).
Though the seller is not bound to give notice of his
intention to resell and of the time and place where Manner of Rescission
the resale will be held (CIVIL CODE, Art. 1533, par. There must be notice or some other overt act of an
intention to rescind. Overt act need not be
4).
communicated but the giving of notice is relevant in
It is prudent to give the buyer such notice, as the determining the reasonableness of the time given
giving or failure to give it may be important evidence the buyer to make good his obligations under the
in regard to the fairness of the sale (DE LEON, supra contract (CIVIL CODE, Art. 1534, par. 2).
at 317).

Manner of Resale
The law is satisfied with a fair sale made in good faith RISK OF LOSS AND
according to established business methods with no
attempt to take advantage of the vendee (Id.). DETERIORATION AND
ITS EFFECTS
NOTE: The seller cannot, directly or indirectly, buy
the goods (CIVIL CODE, Art. 1491, par. 6).

Time of Resale 1. Loss of the thing BEFORE

Must be made within a reasonable time after the PERFECTION of the contract
breach (DE LEON, supra at 317).
The thing perishes with the owner (res perit
Place of Resale domino) (CIVIL CODE, Art. 1504).
GENERAL RULE: At the place of delivery (Id.).
Seller still owns the thing because there is no
EXCEPTION: At another place if the seller is unable delivery or transfer of ownership yet. Hence, the
to sell readily at a fair price at the place of delivery seller bears the risk of loss (VILLANUEVA,
and can get a better price by reshipment and sale at supra at 316).
another place (Id.).
2. Loss of the thing AT PERFECTION of
the contract Under the same law, “the risk of the thing
sold passes to the buyer, even though he
Res perit domino applies (CIVIL CODE, Art. has not received the thing. For the seller is
1504). not liable for anything which happens
a. If the thing is entirely lost, the contract is without his fraud or negligence x x x.”
without effect (CIVIL CODE, Art. 1493, par.
1). The Spanish Civil Code follows Roman law
b. If the thing should have been lost in part by imposing upon the vendee the obligation
only, the buyer may choose between: to pay the price of the thing sold that was
i. Withdrawing from the contract; or lost as a result of fortuitous event (DE
ii. Demanding the remaining part, paying LEON, supra at 125).
its proportionate price (CIVIL CODE,
Art. 1493, par. 2). Article 1480 of the Civil Code is based on
Article 1452 of the Spanish Civil Code; there
NOTE: As there is no distinction, even if the loss is reasonable basis for the proposition that
is not substantial, res perit domino applies Article 1480 follows the principle of
(PINEDA, Sales, supra at 109). perfection (e.g. the risk of loss is transmitted
to the buyer from the moment the contract is
The contract is considered void or inexistent perfected) (Id. at 126).
because the object did not exist at the time of
the transaction. Any action for the enforcement This theory is an exception to the rule of res
of such void contract can be defeated by a perit domino.
motion to dismiss or by setting up a counter-
claim for the declaration of its nullity (Id. at 108). Article 1164 gives the creditor (buyer) the
right to the fruits of the ting from the time the
3. Loss of the thing AFTER obligation to deliver arises (or from the time
PERFECTION BUT BEFORE perfection of the contract)
DELIVERY
a. Loss Pursuant to Article 1537 of the Civil Code,
all the fruits shall pertain to the vendee from
GENERAL RULE: Who bears the risk of
the day on which the contract was perfected.
loss is governed by the stipulations in the
contract.
Rationale: If the buyer is entitled to the fruits
of the thing from the moment of perfection of
In the absence of stipulation, there are two
the contract, it is logical that the buyer bears
conflicting views:
the risk of loss from the moment of the
perfection (Id.).
First View: Res perit creditori or buyer
bears the risk of loss (this is the view
Under Article 1165, the implication is that if
subscribed to by the following Civil Law
the seller was not at fault, the buyer is
authors: Paras, Vitug, Padilla, and De
responsible for the fortuitous event even
Leon).
prior to the delivery.
Justification: Art. 1504 of the Civil Code,
Pursuant to Article 1262 of the Civil Code, if
which embodies res perit domino, only
the thing is lost or destroyed without the fault
covers goods.
of the debtor (or seller in case of sale), the
obligation to deliver is extinguished but the
Goods, as defined in Art. 1636 par. 1 (1) of
obligation to pay, shall subsist (PINEDA,
the Civil Code, includes all chattels personal
Sales, supra at 70).
but not things in action or money of legal
tender in the Philippines. The term includes
The third paragraph of Article 1480 purports
growing fruits or crops.
to provide different rule from the first two (2)
paragraphs of Article 1480. Under the third
The obligation to pay on the part of the buyer
paragraph, should fungible things be sold for
is not extinguished (as he is not the obligor)
a price fixed according to weight, number, or
(VILLANUEVA, supra at 319).
measure, the risk shall not be imputed to the
vendee (buyer) until they have weighed,
Under the Roman Law, the reciprocal
counted, or measured, and delivered.
obligations of the parties are considered
distinct stipulations.
NOTE: The implication is that with respect b. Deterioration
to items covered by the first two (2) Impairment is borne by the buyer if the thing
paragraphs, the risk of loss is with the buyer deteriorates without the fault of the seller
even prior to the delivery (DE LEON, supra (CIVIL CODE, Art. 1189, par. 3)
at 127).
If it deteriorates through the fault of the
Second View: Res perit domino or seller debtor, the creditor may choose between
bears the risk of loss (this is the view the rescission of the obligation and its
subscribed to by the following Civil Law fulfillment, with indemnity for damages in
authors: Tolentino, Jurado, Baviera, and either case (CIVIL CODE, Art. 1189, par. 4).
Villanueva).
4. AFTER DELIVERY
Justification: Dr. Tolentino opines that in
Res perit domino applies.
reciprocal obligations, the extinguishment of
the obligation due to loss of the thing affects
The buyer is the owner, hence, the buyer bears
both debtor and creditor; the entire juridical
risk of loss (CIVIL CODE, Art. 1504).
relation is extinguished. Under this view, the
rule on loss under Article 1189 would be
Exceptions:
different from the rule on deterioration – the
a. Where delivery has been made either to the
loss would be for the account of the seller,
buyer or to the bailee for the buyer, but
while the deterioration would be for the
ownership in the goods has been retained
account of the buyer (this view is affirmed by
by the seller merely to secure performance
Baviera).
by the buyer of his obligations under the
contract (CIVIL CODE, Art. 1504, par. 1);
Article 1480, paragraph 3, is not an
and
exception but is an expression of the
b. Where actual delivery has been delayed
general rule that the risk is not imputed to
through the fault of either the buyer or seller,
the vendee until after delivery (A.M
the goods are at the risk of the party in fault
Tolentino, op.cit., pp. 23-27).
(CIVIL CODE, Art. 1504, par. 2).
Purchase and sale is an onerous contract,
where the cause, with respect to the
vendee, is the thing. If he cannot have the
thing, it is juridically illogical and unjust to EXTINGUISHMENT
make him pay the price (Id.). OF SALE
According to Justice Jurado, this view is
more just and equitable and more in
conformity with the principle of res perit CAUSES OF EXTINGUISHMENT:
domino.
1. Same causes as all other obligations (CIVIL
CODE, Arts. 1231 and 1600);
According to Dean Villanueva, this view
2. Conventional Redemption (CIVIL CODE, Arts.
would make Articles 1480 and 1538
1601-1618); or
consistent with the provisions of Article 1504
3. Legal Redemption (CIVIL CODE, Arts. 1619-
(VILLANUEVA, supra at 323).
1623).
According to Pineda:
Payment or performance only extinguishes the
i. Ownership is transferred only after
obligations to which they pertain to in a contract of
delivery;
sale, but not necessarily the contract itself since the
ii. Art.1480, par. 3, is an expression of the
relationship between buyer and seller remains after
general rule that the risk is not imputed
the performance or payment, such as the continuing
to the vendee until after delivery; and
enforceability of the warranties of the seller
iii. The contract is reciprocal. If the vendee
(VILLANUEVA, supra at 516).
cannot have the thing, it is illogical and
unjust to make him pay the price
(PINEDA, Sales, supra at 69). CAUSES OF EXTINGUISHMENT, IN
GENERAL: (PaLoCo3-PARe-FuN)
1. Payment or performance of obligation;
2. Loss of the thing due;
3. Condonation or remission of debt;
4. Confusion or merger of rights; 8. Gives Reciprocal obligation (CIVIL CODE, Art.
5. Compensation; 1616); and
6. Prescription; 9. Reserved at the Moment of the perfection of
7. Annulment; contract (Diamante v. CA, G.R. No. L-51824,
8. Rescission; February 7, 1992).
9. Fulfillment of a resolutory condition; or
10. Novation (CIVIL CODE, Art. 1231). Proper Reservation of Right to Repurchase
The right to redeem must be reserved by the seller
CONVENTIONAL REDEMPTION through a stipulation to that effect in the contract of
The right which the vendor reserves to himself, to sale (Villarica v. CA, G.R. No. L-19196, November
reacquire the property sold, provided he returns to 29, 1968).
the vendee: (PEONU)
For a sale to be one a retro, the right must be
1. Price of the sale;
reserved in the same sale contract (Torres v. CA,
G.R. No. 134559, December 9, 1999).
NOTE: The law speaks of “price of the sale” and
not the value of the thing. It is lawful for the
The essence of a pacto de retro sale is that title and
parties to agree that the price to be returned will
ownership of the property sold is immediately vested
be more or less than the original sum paid by the
in the vendee a retro, subject to the restrictive
vendee (DE LEON, supra at 539).
condition of repurchase by the vendor a retro within
the redemption period (Misterio v. Cebu State
2. Expenses of the contract; College of Science and Technology, G.R. No.
152199, June 23, 2005).
3. Any Other legitimate payments made
therefore; Parol Evidence
The right of repurchase may be proved by parol
NOTE: Numbers 1 and 2 need not be paid at the evidence when the contract of sale has been
very time of the exercise of the right since they reduced in writing (Mactan Cebu International
are unknown amounts. They may be paid later. Airport Authority v. CA, G.R. No. 121506, October
The same is true of necessary and useful 30, 1996).
expenses (DE LEON, supra at 539).
RIGHT TO REDEEM V.
4. Necessary expenses made on the thing
OPTION TO PURCHASE
sold; and
OPTION TO
RIGHT TO REDEEM
5. Useful expenses made on the thing sold PURCHASE
(CIVIL CODE, Arts. 1601 and 1616).
As to Nature
NOTE: The vendor must comply not only with
Not a separate contract Generally, it is a
the provisions of Article 1616 but also with other
but merely part of the principal contract and
stipulation that may have been agreed upon by
main contract of sale. may be created
the parties relating to the exercise of the right
independent of another
(Solid Homes, Inc. v.CA, G.R. No. 117501, July
contract.
8, 1997).
As to Consideration
Nature of Conventional Redemption:
(CAP2OR3M) Does not need its To be valid, it must have
1. Purely Contractual (Ordonez v. Villaroman, G.R. separate consideration a consideration
No. L-238, March 13, 1947); in order to be valid and separate and distinct
2. Accidental (Alojado v. Lim Siongco, G.R. No. effective. from the purchase
27084, December 31 1927); price.
3. Potestative (CIVIL CODE, Art. 1182);
4. Power or privilege (Ocampo v. Potenciano, G.R. As to Maximum Period for Exercise of the
No. L-2263, May 30 1951); Right
5. Person entitled to exercise is necessarily the
Owner (Quimson v. PNB, G.R. No. L-24920, Cannot exceed ten (10) May be beyond ten (10)
November 24 1970); years years.
6. Real right (CIVIL CODE, Art. 1608);
7. Resolutory condition (CIVIL CODE, Art. 1179);
 period is not really one of redemption but a right of
OPTION TO
RIGHT TO REDEEM repurchase (Id. at 489).
PURCHASE

As to How Exercised Pendency of Action Tolls Redemption Period

The pendency of an action brought in good faith and
There must be a tender May be exercised by relating to the validity of a sale a retro tolls the
of payment of the notice of its exercise to running of the period of redemption (Ong Chua v.
amount required by law, the offeror. Carr, G.R. No. L-29512, January 17, 1929).
including consignment
thereof if tender of Non-payment of price does not affect the running of
payment cannot be the redemption period (Catangcatang v. Legayada,
made effectively on the G.R. No. L-26295, July 14, 1978).
buyer.
Possession of the Subject Matter during Period
(DE LEON, supra at 488). of Redemption
Buyer has a right to the immediate possession of the
Period of Redemption property sold, unless otherwise agreed upon. This is
When No Period is agreed upon subject only to the resolutory condition of repurchase
It shall last for four (4) years from the date of the by the seller a retro within the stipulated period (Solid
contract (Id. at 519; CIVIL CODE, Art. 1606). Homes, Inc. v. CA, G.R. No. 117501, July 8, 1997).
However, in Misterio v. Cebu State College of Exercise of Redemption
Science and Technology, the four (4) year period Tender of payment is sufficient to compel
was held to begin from the happening of the redemption but is not in itself a payment that relieves
stipulated condition contained in the covering deed the vendor from his liability to pay the redemption
of sale rather than from the date of the contract, and price (Mclaughlin v. CA, G.R. No. L-57552, October
even when the entire covered period from the date 10, 1986).
of the contract would exceed ten years. Since the
vendor may still exercise the right to repurchase The law requires that the offer must be a bona fide
within thirty days from the time final judgment was one and accompanied by an actual and
rendered in a civil action on the basis that the simultaneous tender of payment or consignation of
contract was a true sale with right to repurchase the full amount agreed upon for repurchase
(G.R. No. 152199, June 23, 2005). (Catangtang v. Legayada, G.R. No. L-26295, July
14,1978).
When Period is agreed upon
The period cannot exceed ten (10) years (CIVIL It is enough for the vendor a retro to tender the
CODE, Art. 1606). If it exceeds ten (10) years, the repurchase price at the time of redemption. The
agreement is valid only for the first ten (10) years other amounts provided under Article 1616 of the
(Anchuelo v. IAC, G.R. No. 71391, January 29, Civil Code may be paid afterwards. Tender of
1987). payment is needed in order to show that the
repurchase was made within the redemption period
When a period of redemption is agreed upon by the (5 TOLENTINO, supra at 175).
parties in a sale a retro, although the period agreed
upon may be unclear or void, it is the 10-year period
and not the four (4) year period that shall apply CONSIGNATION
(Tayao v. Dulay, G.R. No. L-21160, April 30, 1965). GENERAL RULE: It is not a legal requisite for a
vendor to make consignation or judicial deposit of
When the Period agreed upon is “Indefinite" the price if the offer or tender is refused. He is not a
(E.g. vendor a retro shall repurchase “at any time he debtor. He has a right, not an obligation, to
has money” or vendor will redeem “within the month repurchase (DE LEON, supra at 543).
of March of any year”), the time of redemption is
within ten (10) years from execution of contract EXCEPTION:
(PINEDA, Sales, supra at 38). 1. The vendee a retro refuses to accept the
redemption price (Torrijos v. Crisologo, G.R. No.
Date from which Period Reckoned L-17734, September 29, 1962); or
At the date of the contract from which the contract 2. When a judicial action has already been filed to
produces its effects (e.g. from the fulfillment of the enforce compliance with the contract of sale with
suspensive condition) (DE LEON, supra at 526). right of repurchase (Rivero v. Rivero, G.R. No.
L-578, April 30, 1948).
NOTE: The right to redeem becomes functus officio
on the date of its expiry, and its exercise after the
Consignation is imperative when the tender of REASON: It would be unjust to require the co-
payment cannot be validly made because the buyer owners to come to an agreement with regard to the
cannot be located, and failing to do so within the repurchase of the thing sold, and certainly, it would
redemption period, the right of redemption shall be worse to deprive them of their right in case they
lapse (Catangtang v. Legayada, G.R. No. L-26295, fail to disagree.
July 14, 1978).
The very purpose of the law is to prevent unjust
IN CASE OF MULTI-PARTIES enrichment (DE LEON, supra at 538).
Redemption in Sale of Part of Undivided
Illustration: X, Y and Z are co-owners of a parcel of
Immovable land. If they should sell the property to B with the
The buyer of a part of an undivided immovable who right to repurchase in the contract, each one of them
acquires the whole thereof in the case of Article 498 may exercise that right only as regards his own
of the Civil Code may compel the seller to redeem share or for one-third portion of the property.
the whole property, if the latter wishes to make use The same rule applies if C is the sole owner of the
of the right of redemption (CIVIL CODE, Art. 1611). land and he sold it with right to repurchase to B and
should he die and leave X, Y and Z as his heirs. Each
Illustration: A, B and C are co-owners of an one of them can only exercise the right of
undivided parcel of land. A sold his undivided portion redemption for the one-third portion he has inherited.
to D with right of repurchase. As a result of a
partition, D who is now one of the co-owners, But B can demand that they come to an agreement
acquired the whole land after paying the portions upon the repurchase of the whole property by all of
belonging to B and C. If A would like to repurchase them or any one of them. If they do not do so, B
the portion sold by him, D may compel him to cannot be compelled to assent to a partial
redeem the entire parcel of land so that the property redemption (CIVIL CODE, Art. 1611).
will not revert to a state of co-ownership (DE LEON,
supra at 534-535). If X, Y and Z sold their respective shares to B with
the right of repurchase in separate instruments and
Redemption in Joint Sale by Co-Owners / at different dates, each one of them may exercise his
Co-Heirs of Undivided Immovable right independently of the others and B cannot
If several persons, jointly and in the same contract, compel any of them to redeem the whole property.
should sell an undivided immovable with a right of
repurchase, none of them may exercise this right for Redemption against Heirs of Vendee
more than his respective share. The same rule shall If the vendee should leave several heirs, the action
apply if the person who sold an immovable alone has for redemption cannot be brought against each of
left several heirs (CIVIL CODE, Art. 1612). them except for his own share, whether the thing is
undivided or it has been partitioned among them. But
The buyer may demand of all the vendors or co-heirs if the inheritance has been divided and the thing sold
that they come to an agreement upon the re- has been awarded to one of heirs, the action for
purchase of the whole thing sold; and should they redemption may be instituted against him for the
fail to do so, the buyer cannot be compelled to whole (CIVIL CODE, Art. 1615).
consent to a partial redemption (CIVIL CODE, Art.
1613). Illustration: S sold his parcel of land to B with right
to repurchase. Then B died leaving C, D and E as
NOTE: The redeeming co-owner cannot claim his heirs. The right of redemption of S is against
exclusive right to the property owned in common. each of the heirs only for his respective share or for
Registration of property is not a means of acquiring one-third of the property. If the property has been
ownership. It operates as a mere notice of existing awarded to C by partition, then the action of
title, that is, if there is one (Adille v. CA, G.R. No. L- redemption may be instituted against him for the
44546, January 29, 1988). entire property.

Redemption in Separate Sales by Co- In De Guzman v. CA, the Court held that under the
Owners of Undivided Immovable rules in Article 1612 of the Civil Code, should one of
Each one of the co-owners of an undivided the co-owners or co-heirs succeed alone in
immovable who may have sold his share separately, redeeming the whole property, such co-owner or co-
may independently exercise the right of repurchase heir shall be considered as a mere trustee with
as regards his own share, and the buyer cannot respect to the shares of his co-owners or co-heirs;
compel him to redeem the whole property (CIVIL accordingly, no prescription will lie against the right
CODE, Art.1614). to any co-owner or co-heir to demand from the
redemptioner his respective share in the property
redeemed (De Guzman v. CA, G.R. No. L-47378, precedent to the exercise of the right of legal
February 27, 1987). redemption (Pangilinan v. Ramos, G.R. No. 75304,
January 23, 1990).
NOTE: The purpose of Article 1611-1615 is to
discourage co-ownership which is recognized as Non-Applicability
undesirable, since it does not encourage the 1. Contract found to be an absolute sale (Tapas v.
improvement of the property co-owned (DE LEON, CA, G.R. No. L-22202, February 27, 1976);
supra at 534). 2. Sale known and admitted by vendor as pacto de
retro (Felicen, Sr. v. Orias, G.R. No. L-33182,
Judicial Order for Recording of December 18, 1987); and
Consolidation of Ownership 3. When a party abandoned his position that the
In case of real property, the consolidation of transaction was an equitable mortgage after
ownership in the buyer shall not be recorded in the judicial declaration of transaction as a pacto de
Registry of Property without a judicial order, after the retro sale (Abilla v. Gobonseng, G.R. No.
seller has been duly heard (CIVIL CODE, Art. 1607). 146651, January 17, 2002).

Art. 1607 of the Civil Code abolished automatic Effect of Stipulating Extending Period of
consolidation of title in the buyer (a retro) upon Repurchase
expiration of the redemption period by requiring the 1. After expiration of period of redemption – void
buyer to institute an action for consolidation where and no effect because there is nothing to extend.
the vendor (a retro) may be heard (VILLANUEVA, The ownership in the vendee is already
supra at 484). consolidated, and becomes absolute (DE
LEON, supra at 526).
Notwithstanding Article 1607 of the Civil Code, the NOTE: The parties can enter into an entirely
recording of the consolidation of ownership is not a new agree contract involving the same property,
condition sine qua non to transfer the ownership independent of the pacto de retro sale (Id.).
(VILLANUEVA, supra at 485).
2. Before the expiration of the period of redemption
PURPOSE: To minimize the evils of which the pacto – the original term may be extended provided
de retro sale has caused in the hands of usurpers that the extension, including the original term,
(Cruz v. Leis, G.R. No. 125233, March 9, 2000). shall not extend beyond 10 years; otherwise, the
extension is void as to the excess (Id.).
A judicial order is necessary in order to determine
the true nature of the transaction and to prevent the Reason for Limiting Period of Redemption
interposition of buyers in good faith while the It is not a good thing that the title to property should
determination is being made (Cruz v. Leis, G.R. No. be left for a long period of time subject to indefinite
125233, March 9, 2000). conditions of this nature. The intention of the law is
restrictive and limitative (Id. at 527).
Grant of 30-day Redemption Right in Case of
Litigation Rights of Parties as to Fruits of Land
When the period of redemption has expired, then If at the time of the execution of the sale there should
ipso jure the right to redeem has been extinguished. be visible or growing fruits on the land, there shall be
However, even when the right to redeem has no reimbursement for or pro-rating of those existing
expired, and there has been a previous suit on the at the time of redemption, if no indemnity was paid
nature of the contract, the seller may still exercise by the purchaser when the sale was executed (CIVIL
the right to repurchase within thirty (30) days from CODE, Art. 1617, par. 1).
the time final judgment was rendered in a civil action
on the basis that the contract was a true sale with Should there have been no fruits at the time of the
right to repurchase (CIVIL CODE, Art. 1606, par. 3). sale and some exist at the time of redemption, they
shall be pro-rated between the redemptioner and the
Date from which Period Reckoned buyer, giving the latter the part corresponding to the
At the time the judgment becomes final; and a time he possessed the land in the last year, counted
judgment becomes final after the period to appeal from the anniversary of the date of the sale (CIVIL
had lapsed without one having perfected (DE LEON, CODE, Art. 1617, par. 2).
supra at 526).
Applicability
The 30-day Period is Peremptory Article 1617 applies only when there is no sharing
The policy of the law is not to leave the purchaser’s agreement with respect to the fruits existing at the
title in uncertainty beyond the said period. It is not a time of redemption (Almeda v. Daluro G.R. No. L-
prescriptive period but more a requisite or condition 28070, October 5, 1997). Otherwise, such
agreement will control. It refers only to natural and When Presumed: (T-PERIOD)
industrial fruits. Civil fruits are deemed to accrue 1. Vendor binds himself to pay the Taxes of the
daily and belong to the vendee in that proportion (DE thing sold (Lumayag v. Heirs of Nemeno, G.R.
LEON, supra at 544). No. 162112, July 3, 2007);
2. Possession by the vendor remains, as lessee or
Right of Vendor a Retro to Recover Thing Sold otherwise (Capulong v. CA, G.R. No. L-61337,
Free from Charges June 29, 1984);
The vendor who recovers the thing sold shall receive 3. Extension of redemption period after expiration
it free from all charges or mortgages constituted by (Lacorte v. CA, G.R. No. 124574, February 2,
the vendee, but he shall respect the leases which the 1998);
latter may have executed in good faith, and in 4. Retention by the vendee of part of the purchase
accordance with the custom of the place where the price (Camus v. CA, G.R. No. 102314, May 26,
land is situated (CIVIL CODE, Art. 1618). 1993);
NOTE: The law establishes an exception with 5. Unusually Inadequate purchase price (Cachola
respect to leases which the vendee may have v. CA, G.R. No. 97822, May 7, 1992);
entered into in good faith according to the customs 6. Any Other case where the parties really
of the place where the land is located. The exception intended that the transaction should secure the
is dictated by public convenience in the interest of payment of a debt or the performance of any
agriculture (DE LEON, supra at 546). obligation (CIVIL CODE, Art. 1602); or
7. In case of Doubt as to whether contract is
EQUITABLE MORTGAGE contract of sale with right of repurchase or an
One which, although lacking in some formality, or equitable mortgage (CIVIL CODE, Art. 1603).
form or words, or other requisites demanded by a
statute, nevertheless reveals the intention of the NOTE: The provision of Article 1602 shall also apply
parties to charge real property as security for a to a contract purporting to be a sale with right to
debt, and contains nothing impossible or contrary repurchase shall be construed as an equitable
to law (Ceballos v. Mercado, G.R. No. 155856, May mortgage (CIVIL CODE, Art. 1604).
28, 2004).
This holds true if indeed, the real intention of the
Presumption of Equitable Mortgage Arises when parties is that the transaction shall secure the
1. Parties entered into a contract denominated as payment of a debt or the performance of any other
sale; and obligation (Cruz v. CA, G.R. No. 143388, October 3,
2. Their intention was to secure an existing debt by 2003).
way of mortgage (Romulo v. Sps. Layug, G.R.
No. 151217, September 8, 2006). PACTO DE RETRO V. MORTGAGE
PACTO DE RETRO MORTGAGE
A Right of Repurchase for an Extended Period is
in Reality an Equitable Mortgage As to Nature
A perusal of the Deed of Conditional Sale reveals the
real intention of the parties is not to enter into a Ownership is Ownership is not
contract of sale but merely to secure the payment of immediately transferred, transferred but the
the loan of Prisco+. This is evident from the fact that subject to the resolutory property is merely
the latter was given the right to repurchase the condition of repurchase subject to a charge or
subject property even beyond the 12-year (original by the vendee. lien as security.
and extended) period, allowing in the meantime the
continued possession of Ernesto pending payment As to Interest
of the consideration. Under these conditions and in
accordance with Article 1602 of the Civil Code. The Failure of seller to Mortgagor does not
constituted pacto de retro sale is in reality an repurchase loses all his lose his interest if he
equitable mortgage. (Gua-an v. Quirino, G.R. No. interest in the property, fails to pay his debt at
198770; November 12, 2012). title to which vests upon maturity but subjects
the buyer by operation of the property to
NOTE: When in doubt, courts are generally inclined law. foreclosure and public
to construe a transaction purporting it to be a sale as sale.
an equitable mortgage, which involves a lesser
As to Foreclosure and Redemption
transmission of rights and interest over property in
controversy (CIVIL CODE, Art. 1603; Salonga v. No obligation upon the Duty of the mortgagee
Concepcion, G.R. No. 151333, September 20, purchaser to foreclose to foreclose if he
2005). nor the vendor to redeem wishes to secure a
 NOTE: The creditor cannot appropriate the things
after the maturity of the perfect title thereto,
given by way of mortgage or dispose of them. Any
debt. and mortgagor has
stipulation to the contrary is void (CIVIL CODE, Art.
right to redeem after
2088)
maturity of the debt
and before
The proper remedy is foreclosure of the mortgage. If
foreclosure.
there is no foreclosure, the debtor retains the
(DE LEON, supra at 492-493). ownership (Vasquez v. CA, G.R. No. 144882,
February 4, 2005).
Reason behind the Provisions on Equitable
Mortgage: To curtail circumvention of the usury law Pactum commisorium applies only when the
and pactum commissorium (Ching Sen Ben v. CA, covering transaction is a mortgage or other security
G.R. No. 124355, September 21, 1999). contracts and has no application to a true sale or
transfer transaction (Vda. De Zulueta v. Octaviano,
Proof by Parol Evidence G.R. No. L-55350, March 28, 1983).
Parol evidence may be adduced to prove the
agreement granting the seller a right to repurchase LEGAL REDEMPTION
the property sold, since the deed of sale and the
The right to be subrogated, upon the same terms
verbal agreement allowing the right of repurchase
and conditions stipulated in the contract, in the place
should be considered as an integral whole (Mactan
of one who acquires a thing by:
Cebu International Airport Authority v. CA, G.R. No.
1. Purchase;
121506, October 30, 1996).
2. Dation in payment; or
3. Any other transaction whereby ownership is
Effects when Sale is adjudged as an Equitable
transferred by onerous title (CIVIL CODE, Art.
Mortgage:
1619).
1. Money, fruit or other benefit to be received by
the buyer as rent or otherwise shall be
It may beeffected against movables and immovables
considered as interest (CIVIL CODE, Art. 1602,
(U.S. v. Caballero, G.R. No. 8608, September 26,
par. 2);
1913).
2. The apparent seller may ask for the reformation
of the instrument (CIVIL CODE, Art. 1605);
Note: “Ownership is transferred by onerous title”
3. The court may decree that “vendor”-debtor pay
hence, it is not available in cases of donation,
his outstanding loan to the “vendee”-creditor
succession, barter, mortgage or lease (DE LEON,
(Banga v. Bello, G.R. No. 156705, September
supra at 547).
30, 2005).
4. A remand of the case to the trial court where the
Illustration: B is the owner of a land adjoining the
latter did not pass upon the mortgagor’s claim
land of A. A donated his own land to X. In this case,
that he had paid his mortgage obligation, for the
B cannot exercise legal redemption to acquire the
purpose of the determining whether said
property of A from X since the latter acquired the
obligation has been paid, and if not, how much
adjoining lot gratuitously (donation) and not by
should still be paid (Banga v. Bello, G.R. No.
onerous title
156705, September 30, 2005).
It operates only one way and in favor of the
PACTUM COMMISSORIUM redemptioner. Not having parted with anything, the
A stipulation for automatic vesting of title over the legal redemptioner can compel the purchaser to sell
security in the creditor in case of debtor’s default but the former cannot be compelled to buy (DE
(VILLANUEVA, supra at 492). LEON, supra at 549).

Pactum commissorium is among the contractual In sales of property approved by the court in testate
stipulations that are deemed contrary to law. It is or intestate proceedings for the purpose of raising
defined as “a stipulation empowering the creditor to funds for payment of debts of the estate are final and
appropriate the thing given as guaranty for the are not subject to legal redemption unlike in ordinary
fulfillment of the obligation in the event the obligor execution sales (Plan v. IAC, G.R. No. L-65656,
fails to live up to his undertakings, without further February 28, 1985).
formality, such as foreclosure proceedings, and a
public sale.” It is explicitly prohibited under Article Exercise of Right of Pre-emption or Redemption
2088 of the Civil Code (Philnico Industrial Corp. v. It must be exercised within thirty (30) days from the
Privatization and Management Office, G.R. No. notice in writing by the prospective vendor, or by the
199420, August 27, 2014). vendor, as the case may be (CIVIL CODE, Art.
1623).
 Realty Corporation v. CA, G.R. No. 104114,
REASON: The seller of an undivided interest is in December 4, 1995).
the best position to know who are his co-owners that
under the law must be notified of the sale (Cuizon v. Basis and Nature of the Right of Legal
Remoto, G.R. No.143027, October 11, 2005). Redemption
Source of the right proceeds from the law, which
In stressing the mandatory character of the creates it. However, it may be converted into one of
requirement, the law states that the deed of sale conventional redemption (DE LEON, supra at 548).
shall not be accorded in the Registry of Property
unless the same is accompanied by an affidavit of It is not predicated on proprietary right but on a bare
the vendor that he has given notice thereof to all statutory privilege to be exercised only by the person
possible redemptioners (Primary Structures Corp. v. named in the statute. The statute does not make
Valencia, G.R. No. 150060, August 19, 2003). actual ownership at the time of sale or redemption a
Notice must be in Writing condition precedent, the right following the person
To remove all uncertainty as to the sale, its terms and not the property (Magno v. Viola and Sotto, G.R.
and its validity and to quiet any doubts that the No. 37521, December 22, 1934).
alienation is not definitive (Conejero v. CA, G.R. No.
L-21812, April 29, 1966). Legal redemption is in the nature of a privilege
created partly for a reason of public policy and partly
NOTE: Without the written notice, the period of 30 for the benefit and convenience of the redemptioner.
days within which the right of legal pre-emption or It is intended to minimize co-ownership, the latter
redemption may be exercised, does not start being not favored by law (DE LEON, supra at 549).
(Guillen v. CA, G.R. No. 159755, June 18, 2009).
CONVENTIONAL REDEMPTION
Form of Written Notice V. LEGAL REDEMPTION
Article 1623 does not prescribe any particular form
of notice so long as the reasons for a notice are CONVENTIONAL LEGAL
present or otherwise satisfied as long as the
redemptioner is informed in writing of the sale and As to Constitution
the particulars thereof (DE LEON, supra at 574).
By express reservation in Does not have to be
Actual Knowledge
a contract of sale at time expressly reserved
GENERAL RULE: A written notice to co-owners is
of perfection. and covers sales and
mandatory notwithstanding actual knowledge of the
other “onerous
other co-owners of the sale (DE LEON, supra at
transfers of title.”
578).
As to Who May Exercise the Right
EXCEPTION: In the case of Alonzo v. IAC, the Court
adopted an exception to the general rule, in view of In favor of the seller. Given to a third party
the “peculiar circumstances of this case” wherein the to the sale.
co-heirs were undeniably informed of the sales
although no notice in writing was given them. The As to the Effect of its Exercise
30-day period began and ended during the 14 years
between the sales and the filing of the complaint for Extinguishes the Actually constitutes a
redemption in 1977, without the co-heirs exercising underlying contract of new sale in substitute
their right of redemption (G.R. No. 72873, May 28, sale as though there was of the original sale.
1987). never any contract at all.
(VILLANUEVA, supra at 506-507).
Contents of Written Notice of Sale
The notice, which Article 1623 of the Civil Code
requires to be made, is a notice not only of a
PRE-EMPTION V. REDEMPTION
perfected sale but of the actual execution and PRE-EMPTION REDEMPTION
delivery of the deed of sale. This is implied from the
second sentence of Art.1623 of the Civil Code (DE As to Time of Exercise of Right
LEON, supra at 576).
Arises before sale. Arises after sale.
There is no prescribed form for an offer to redeem to
be properly effected. What is paramount is the use
of the fixed and definite period within which to
exercise the right of legal redemption (Lee Chuy
 a new participant is not added to the
PRE-EMPTION REDEMPTION
ownership (Fernandez v. Tarun, 391
Remedy of Rescission SCRA 653 (2002).

No rescission because There can be Price of Redemption

the sale does not yet rescission of the Generally, it is the purchase price paid by
exist. original sale. the owners to the selling co-owner(s) (DE
LEON, supra at 558).
Against Whom the Action is Directed
If the price is grossly excessive, the
The action is directed Action is directed redemptioner shall pay only a reasonable
against the prospective against the buyer. one. This is to prevent collusion between the
seller. purchaser and the selling co-owner. The
(DE LEON, supra at 564). payment of reasonable price requires tender
of payment and consignation of the price,
INSTANCES OF LEGAL REDEMPTION: independently of the size of the
redemptioner’s share in the co-owned
1. Under the Civil Code: property (PINEDA, Sales, supra at 390).
a. Sale of a Co-owner of His Share to A
Stranger (CIVIL CODE, Art. 1620) The co-owners may only exercise
redemption in proportion to the share they
Requisites: (BRACES) may respectively have (CIVIL CODE, Art.
i. The sale must be Before partition (DE 1620, par. 2).
LEON, supra at 555);
The right of redemption of co-owners
NOTE: The basis of the right of legal excludes that of adjoining owners (CIVIL
redemption is the status of an owner CODE, Art. 1623, par.2).
(Butte v. M. Uy & Sons, Inc., G.R. No. L-
15499, February 28, 1962). Illustration of Legal Redemption between
Co-owners: A, B and C are co-owners of an
ii. The vendee must be Reimbursed for the undivided property valued at Php 50,000. A
price of the sale (DE LEON, supra at sells his interest to D for P20,000. B or C
555); may exercise the right of redemption by
iii. There must be Alienation of all or any of reimbursing D of the price of the sale. If both
the shares of the co-owners (Id.); B and C redeem the interest sold by A, each
iv. There must be subsisting Co- of them shall pay P10,000 to D which is the
ownership; proportion of their respective shares in the
PURPOSE: The rule proceeds on the co-ownership. If the price of P20,000 is
theory that the privilege conferred upon grossly excessive, the same may be
the co-owner to redeem is intended to equitably reduced by the courts (DE LEON,
facilitate the termination of ownership in supra at 555-556).
common, which may be an obstacle in
the development of property, of industry Art. 1620 Does NOT Apply When:
and of wealth, and to consolidate the i. The thing owned in common had been
dominion in a sole owner (Magno v. partitioned, judicially or extra-judicially;
Viola and Sotto, G.R. No. 37521, ii. The shares of all co-owners are sold; or
December 21, 1934). iii. The thing owned in common had been
offered for sale by co-owners (DE
v. The right must be Exercised within the LEON, supra at 557-558).
period provided in Art. 1623 of the Civil
Code (DE LEON, supra at 555); and b. Sale of Adjacent Rural Lands Not
Exceeding One (1) Hectare
vi. The sale must be made to a Stranger,
(i.e., anyone who is not a co-owner). Requisites: (RATE-OS)
i. Both the land of the one exercising the
NOTE: The right of redemption may be right of redemption and the land sought
exercised by a co-owner only when part to be redeemed must be Rural;
of the community property is sold to a
stranger; where it is sold to another co- A rural land refers to a land adapted and
owner, the right does not arise because used for agricultural or pastoral
 purposes. It is principally used for the
purpose of obtaining products from the 2. The piece of land is urban;
soil (DE LEON, supra at 561). 3. The land sold must be so small and so
situated that major portion thereof cannot
The intention of the law is the promotion be used for any practical purpose within
and protection of agriculture by the reasonable time;
union of small agricultural lands under 4. It was bought mere merely for
one owner for better exploitation of the speculation; and
two lands (Fabia v. Intermediate 5. The land is about to be resold, or that its
Appellate Court, G.R. No. L-66101, resale has been perfected (CIVIL CODE,
November 21, 1984). Art. 1622).

ii. The lands must be Adjacent; Preference as Between Two (2) or More
iii. There must be alienation in favor of a Adjacent Owners
Third person, not in favor of another The owner whose intended use of the land
adjacent owner; in question appears best justified shall be
preferred (CIVIL CODE. Art. 1622, par. 3).
PURPOSE: To prevent the passing of
the land to the hands of strangers Urban Lands
whose possession over the same will Their purpose or being for dwelling, industry
not be for public welfare (Del Pilar v. or commerce, and not for agricultural,
Catindig, G.R. No. 10432, November 4, fishing, or timber exploration (DE LEON,
1916). supra at 567).

iv. The piece of rural land alienated must It refers to the character of community or
not Exceed one hectare (10,000 square vicinity in which it is found. Even if land is
meters) in area; somehow dedicated to agriculture, it is still
urban if it is located within the center of the
PURPOSE: To prevent the creation of population or more or less portion of a city or
big landed estates (10 Manresa 372). town (Ortega v. Orcine, G.R. No. L-28317,
v. The vendee must already Own some March 31, 1971).
rural land; and
vi. The rural land sold must not be Meaning of “to Speculate”
Separated by brooks, drains, ravines, To engage in a hazardous business
roads and other apparent servitudes transaction for the chance of an unusually
from the adjoining land. large profit (DE LEON, supra at 568).

In case two (2) or more adjacent owners d. When A Credit or Other Incorporeal Right
desire to exercise the right of redemption, in Litigation is Sold
the law gives preference to the owner of the
adjoining land of smaller area but if both Requisites: (SAD-P2E)
lands have the same area, to the one who i. There must be a Sale or Assignment of
first requested to redeem (CIVIL CODE, Art. a credit or other incorporeal right;
1621, par. 3). ii. The assignee must have Demanded
payment from the debtor;
PURPOSE: To encourage the maximum iii. The credit or right must be the subject of
development and utilization of agricultural a Pending litigation at the time of its
lands (Ortega v. Orcine, G.R. No. L-28317, assignment or sale, i.e. that an answer
March 31, 1971). to the complaint is already filed;
iv. The debtor must Pay the assignee:
c. Sale of Adjoining Owners of Urban Land 1.) the price paid;
Requirements for the exercise of the right of 2.) judicial costs; and
pre-emption or redemption of urban lands: 3.) interest on the price from the date of
1. The one exercising the right must be an payment;
adjacent owner; v. The right must be Exercised by the
debtor within thirty (30) days from the
PURPOSE: To discourage speculation in date the assignee demands (judicially or
real estate and consequent aggravation extrajudicially) payment from him (CIVIL
of the housing problems in centers of CODE, Art. 1634; Id. at 601).
population (DE LEON, supra at 569).
 Purpose of Grant of Right to Debtor than one hundred twenty (120) days after
Gives an advantage to the debtor because entry of judgment or even after the
he will pay less than the value of the credit foreclosure sale but prior to confirmation of
assigned if he exercises his right to redeem sale (GSIS v. Court of First Instance of Iloilo,
the same. To avoid the purchase by the third Branch III, G.R. No. L-45322, July 5, 1989).
person of credits in litigation merely for
speculation (DE LEON, supra at 601). b. Right of Redemption in cases of Extra-
Judicial Foreclosures
EXCEPTIONS: The right must be exercised within one (1)
i. Sale to a co-heir or co-owner of the right year from and after the date of sale and
assigned; registration of the certificate of sale (Lee
Chuy Realty Corp. v. CA, G.R. No. 104114,
REASON: The law does not favor co- December 4, 1995).
ownership (DE LEON, supra at 604).
The execution of dacion en pago by sellers
ii. Sale to a creditor in payment of his effectively waives the redemption period
credit; or normally given by the mortgagor (First
Global Realty and Development Corp v. San
Presumption: The assignee cannot be Agustin, G.R. No. 144499, February 19,
considered as vendee of a right in 2002).
litigation and as a speculator. It really
refers to a dation in payment (Id. at 605). c. Redemption of Homesteads
Conveyance of land acquired under free
iii. Sale to the possessor of property in patent homestead provisions shall be
question. subject to repurchase within five (5) years
from the date of conveyance (PUBLIC
PURPOSE: to presumably preserve the LAND ACT, Sec. 117).
tenement, and not to speculate at the
expense of the debtor (Id. at 605; CIVIL d. Redemption in tax sales
CODE, Art. 1635). The delinquent taxpayer may exercise the
right within one (1) year from the date of sale
e. Sale of an Heir of His Hereditary Rights (NATIONAL INTERNAL REVENUE CODE,
to a Stranger Sec. 214).
Should any of the heirs sell his hereditary
rights to a stranger before partition, any or e. Redemption by an agricultural tenant of
all of the co-heirs may be subrogated to the land sold by the landowner
rights of the purchaser by reimbursing him The agricultural lessee has the right to
for the price of the sale within one (1) month redeem within one hundred eighty (180)
from the time they were notified in writing of days from notice in writing (AGRARIAN
the sale by selling co-heir (CIVIL CODE, Art. REFORM CODE, Sec. 12).
1088).
f. Redemption in foreclosure by rural
The right of legal redemption applies only to banks (R.A. 720)
the sale by an heir of his hereditary right, it If the land is mortgaged to a rural bank,
doesn’t apply to sale of estate property (Plan mortgagor may redeem within two (2) years
v. IAC, G.R. No. L-65656, February 28, from the date of foreclosure or from the
1985). registration of the sheriff’s certificate of sale
at such foreclosure if the property is not
When the subject matter was a particular covered or is covered, respectively, by
property and not hereditary right, the Torrens Title. If the mortgagor fails to
redemption by co-owner redounds to the exercise such right, he or his heirs may still
benefit of all other co-owners; while repurchase within five (5) years from
redemption by a co-heir is only for his own expiration of the 2-year redemption period
account. pursuant to section 119 of the Public Land
Act (Rural bank of Davao City v. CA, G.R.
2. Under Special Laws: No. 83992, January 27, 1993).
a. Equity of Redemption in cases of
Judicial Foreclosures
The right must be exercised within a period
of not less than ninety (90) days nor more
 CONTRACT OF SALE V.
ASSIGNMENT OF ASSIGNMENT OF CREDIT
CREDIT CONTRACT OF ASSIGNMENT OF
SALE CREDITS

As to Object
An agreement by virtue of which the owner of a
credit (known as the assignor), by a legal cause - Property (PNB v. CA, Credit, incorporeal rights
such as sale, dation in payment or exchange or G.R. No. 11681, or rights of action (PNB
donation - and without need of the debtor's consent, January 6, 1997). v. CA, supra).
transfers that credit and its accessory rights to
another (known as the assignee), who acquires the As to Manner of Delivery of Object
power to enforce it, to the same extent as the
Need not be through a Public instrument (CIVIL
assignor could have enforced it against the debtor.
public instrument CODE, Art. 1625).
(Far East Bank & Trust Company v. Diaz Realty,
(CIVIL CODE, Art.
Inc., G.R. No. 138588. August 23, 2001)
1497).
NATURE OF ASSIGNMENT OF CREDIT As to the Person/s Obligated
1. Consensual, bilateral, onerous, and
commutative or aleatory contract (DE LEON, Whole world Definite third person
supra at 588); (VILLANUEVA, supra at
2. The assignment involves no transfer of 573)
ownership but merely effects the transfer of
rights which the assignor has at the time to the As to When Ownership is Transferred
assignee (Casabuena v. CA, G.R. No. 115410,
Transfer of ownership Ownership is transferred
February 27, 1998);
need not be upon upon delivery of the
3. It may be done onerously (i.e., exchange, dacion
delivery of the thing. documents evidencing
en pago) or gratuitously (i.e., donation) (DE
The parties may agree the credit or incorporeal
LEON, supra at 589); and
that ownership be rights (constructive
4. As a general rule, all principles governing sales
transferred only after delivery) (VILLANUEVA,
also applicable to this transaction. The act of
full payment (CIVIL supra at 576).
assignment cannot operate to erase liens or
CODE, Art. 1478).
restrictions burdening the right assigned
(Gonzales v. Land Bank of the Philippines, G.R. As to the Consideration
No. 76759, March 22, 1990).
It is always a requisite Not always a requisite.
PERFECTION OF CONTRACT FOR (PNB v. CA, supra). Action may be
ASSIGNMENT OF CREDIT (CIVIL CODE, Art. maintained by the
1624) assignee based on his
The contract is perfected from the moment the title even if there is no
parties agree upon the credit or right assigned and consideration (PNB v.
upon the price even if neither has been delivered CA, supra).
(CIVIL CODE, Art. 1475). However, the assignee will (PINEDA, Sales, supra at 408).
acquire ownership only upon delivery (CIVIL CODE,
Arts. 1498, par. 2 and Art. 1501).
EFFECTS OF ASSIGNMENT
Consent of Debtor Not Necessary 1. It transfers the right to collect the full value of the
In an assignment of credit, the consent of the debtor credit, even if he paid a price less than such
is not necessary in order that the assignment may value; and
fully produce the legal effects (DE LEON, supra at
590). 2. It transfers all the accessory rights (e.g.
guaranty, mortgage, or preference) (CIVIL
REASON: Otherwise, all creditors would be CODE, Art. 1627);
prevented from assigning their credits because of
the possibility of the debtor’s refusal to give consent NOTE: If the period for payment has been
(Rodriguez v. CA, G.R. No. 84220 March 25, 1992). extended without the consent of the guarantor,
the assignee cannot go after the former
because, as to him his guaranty is only up to the
original period.
 assignment of the obligation. He thereby acts in
Illustration: A obtained a loan (P100,000) from bad faith (DE LEON, supra at 594)
B. To secure the payment of loan, C mortgaged
his property to B. B assigned his credit owing WARRANTIES OF THE ASSIGNOR OF
from A to D. A failed to pay the loan. D can CREDIT: (LES)
foreclose the mortgage because being an
accessory right, it is deemed included in the 1. The Legality and Existence of the credit at the
assignment. time of sale unless he sold it as doubtful, (i.e.,
he is not sure of the validity of his acquisition of
3. Debtor can set up against the assignee all the the thing sold which fact he has disclosed to the
defenses he could have set up against the assignee);
assignor (Koa v. CA, G.R. No. 84847, March 5, 2. The Solvency of the debtor, if expressly
1998); and stipulated, or if the insolvency of the debtor was
4. Assignee cannot go after the assignor to enforce prior to the sale and of common knowledge
the credit if through his own negligence he (CIVIL CODE, Art. 1628, par.1).
allowed the credit to prescribe provided the
assignee was given enough time to enforce the LIABILITIES OF THE ASSIGNOR OF
said credit. CREDIT FOR VIOLATION OF HIS
WARRANTIES:
Illustration: A lends money to B on March 30, 2009. 1. Assignor in Good Faith
A then assigned the credit to C on April 30, 2009. C
– Liability is limited only to the price received and
demanded payment from B only on May 30, 2019.
to the expenses of the contract, and any other
For ten years, C cannot collect from B since the loan
legitimate payments by reason of the
has already prescribed; neither can he collect from
assignment (CIVIL CODE, Art. 1628, par. 2);
A (the assignor) - he cannot through his own
negligence, (and considering he was given enough
time to enforce the credit) go after the assignor if he
2. Assignor in Bad Faith
– Liable not only for the payment of the price and
cannot anymore collect from the debtor.
all the expenses but also for damages (CIVIL
CODE, Art. 1628, par. 3).
ENFORCEABILITY AGAINST THIRD
PERSONS: DURATION OF ASSIGNOR’S LIABILITY
1. As between the parties, the assignment is valid WHERE DEBTOR’S SOLVENCY
although it appears only in a private document
so long as the law does not require a specific
GUARANTEED (CIVIL CODE, Art. 1628)
form for its validity (CIVIL CODE, 1356). This provision does not apply if the assignor acted in
2. If the assignment involves credit, right or action, bad faith.
a public instrument is needed to make the
assignment effective against third persons. The duration of the assignor’s liability as follows:
3. If real property is involved, recording in the 1. If there is a stipulation, then for the term or
Registry of Property would be needed (CIVIL period fixed;
CODE, Art. 1625). 2. If there is no stipulation:
a. One (1) year from the assignment of credit -
EFFECT OF PAYMENT BY THE DEBTOR when the period for payment of the credit
has expired; or
AFTER THE ASSIGNMENT OF CREDIT: b. One (1) year after its maturity – when such
1. Before notice of the assignment period for payment has not expired.
– Payment to the original creditor is valid and
debtor shall be released from his obligation Reasons for the Rule:
(CIVIL CODE, Art. 1626); or 1. To prevent fraud which may be committed by
feigning the solvency of the debtor at the time of
2. After notice of the assignment the assignment when in fact he is solvent; and
– Payment to the original creditor is not valid as 2. To oblige the assignee to exert efforts in the
against the assignee. He can be made to pay recovery of the credit and thereby avoid by his
again by the assignee (DE LEON, supra at 593). oversight, the assignor may suffer (DE LEON,
supra at 597).
3. Even without notice but with knowledge
– Even without notice, the debtor will not be
released from his obligation should he pay the
creditor after having had knowledge of the
SALE OF SUCCESSIONAL OR
HEREDITARY RIGHTS BARTER
One who sells an inheritance without enumerating (ARTS. 1638-1641)
the things of which it is composed, shall only be
answerable for his character as an heir (CIVIL
CODE, Art. 1630).
BARTER
This refers to the sale of successional right or the
A contract whereby one of the parties binds himself
right to an inheritance before partition (DE LEON,
to give one thing in consideration of the other’s
supra at 597).
promise to give another thing (CIVIL CODE, Art.
1638).
While an heir may sell his hereditary right before
partition, the law prohibits the sale of a future
It is similar to a sale with the only difference that
inheritance, upon which no contract can be made
instead of paying a price in money, another thing is
other than those making a division inter vivos of an
given in lieu thereof (DE LEON, supra at 610).
estate in accordance with Article 1347 of the Civil
Code (Id.).
A contract whereby one person transfers the
ownership of non-fungible things to another with the
WARRANTIES OF SELLER obligation on the part of the latter to give things of
The seller of hereditary rights warrants only the fact the same kind, quantity, and quality (CIVIL CODE,
of heirship but does not warrant the objects which Art. 1954).
make up his inheritance (Id. at 598).
PERFECTION AND CONSUMMATION OF
Illustration: H and I are the heirs of the estate left
by D, deceased. Before partition and without
THE CONTRACT
specifying his definite share in the inheritance, H Perfected from the moment there is meeting of
sold his share to B for P100,000. In this case, H only minds upon the things promised by each party in
warrants the fact the he is an heir to D. He is not consideration of the other (CIVIL CODE, Art. 1475).
liable to B should his share after the partition be less
than P100,000 (Id.). Consummated from the time of mutual delivery by
the contracting parties of the things promised
(Tagaytay Development Corp. v. Osorio, G.R. No. L-
SALE OF WHOLE OF CERTAIN RIGHTS, 46069, November 16, 1939).
RENTS OR PRODUCTS
The vendor warrants only the legitimacy of the whole RULES GOVERNING BARTER:
and not the various parts of which it may be
1. Where the giver of the thing bartered is not the
composed. The vendor is not liable for eviction of the
lawful owner thereof, the aggrieved party cannot
various parts unless the eviction involves the whole
be compelled to deliver the thing which he has
or part of a greater value (CIVIL CODE, Art. 1631).
promised. He is also entitled to damages (CIVIL
CODE, Art. 1639).
LIABILITY OF VENDOR OF 2. Where a party is evicted of the thing exchanged,
INHERITANCE FOR FRUITS RECEIVED the injured party is given the option, either to
Should the vendor have profited by some of the fruits recover the property he has given in exchange
or received anything from the inheritance sold, he with damages or claim an indemnity for
shall pay the vendee thereof, if the contrary has not damages. The right to recover is subject to the
been stipulated (CIVIL CODE, Art. 1632). rights of innocent third persons (CIVIL CODE,
Arts. 1640 and 1385).
LIABILITY OF VENDEE FOR DEBTS OF 3. As to matters not provided for by the provisions
on barter, the provisions on Sales will apply
AND CHARGES ON ESTATE
suppletorily (CIVIL CODE, Art. 1641)
The vendee, on his part, reimburse the vendor for all
that the latter may have paid for the debts of and
charges on the estate and satisfy the credits he may
have against the same, unless there is an
agreement to the contrary (CIVIL CODE, Art. 1633).
 right to possess the same, without going through the
RECTO LAW process of foreclosure, in the event the vendee-
lessee defaults in the payment of the installment.
There arises no need to constitute a chattel
mortgage over the immovable sold (Filinvest Credit
It provides for remedies of a vendor in the sale of Corp. v. CA, G.R. No. 82508, September 29, 1989).
personal property by installments (CIVIL CODE, Art.
1534; VILLANUEVA, supra at 345). Repossession by the Lessor Need Not be
through Court Action
SALE ON INSTALLMENT If the lessee-buyer does so in obedience to the
When there is an initial payment and the balance is lessor’s demand or where the contract specifically
payable in the future, there is no basis to apply the authorizes the lessor-seller to repossess the
Recto Law. Such is not a sale on installments but property whenever the lessee-buyer defaults in the
rather a “straight sale”. Under the language of then payment of rent (U.S. Commercial Co. v. Halili, G.R.
Article 1454 (now 1484) of the Civil Code, the buyer No. L-5535, May 29, 1953).
needs to have defaulted in the payment of two or
more installments to allow the seller to rescind or Article 1484 of the Civil Code, which governs the
foreclose on the chattel mortgage (Levy Hermanos, sale of personal properties in installments which
Inc. v. Gervacio, G.R. No. L-46306, October 27, gives the vendee the remedies, applies only when
1939). there is a vendor-vendee relationship between the
parties and not a debtor-mortgagor and creditor-
NOTE: Provisions on Chattel Mortgage was already mortgagee. A judicious perusal of the records would
repealed. reveal that respondent never bought the subject
vehicle from petitioner but from a third party, and
merely sought financing from petitioner for its full
PURPOSE OF THE RECTO LAW purchase price. Since it is undisputed that petitioner
To remedy the abuses committed in connection with had regained possession of the subject vehicle, it is
the foreclosure of chattel mortgages and was meant only appropriate that foreclosure proceedings, if
to prevent mortgagees from seizing the mortgaged none yet has been conducted/concluded, be
property, buying it at foreclosure sale for a low price commenced in accordance with the provisions of Act
and then bringing suit against the mortgagor for a No. 1508, otherwise known as "The Chattel
deficiency judgment (Universal Motors Corp. v. Dy Mortgage Law," as intended (Equitable Savings
Hian Tat, G.R. No. L-23788, May 16, 1969). Bank v. Palces, G.R. No. 214752, March 3, 2016).

Requisites: (SPIF) Art. 1484 of the Civil Code does NOT apply to:
1. Contract of Sale; 1. Sale of personal property payable in straight
2. Personal property; terms (partly in cash and partly in one term)
3. Payable in Installments; and (Levy Hermanos, Inc. v. Gervacio, G.R. No. L-
4. In the case of the second and third remedies, 46306, October 27, 1939);
that there has been a Failure to pay two or more 2. Sale or mortgage of real estate;
installments (CIVIL CODE, Art. 1484). 3. Action for replevin;
4. Contracts to sell on movables. In this case, the
NOTE: Art. 1484 applies to contracts purporting to rules on rescission and substantial breach are
be leases of personal property with option to not applicable (VILLANUEVA, supra at 381).
buy, when the lessor has deprived the lessee of the
possession or enjoyment of the thing (CIVIL CODE, ALTERNATIVE AND EXCLUSIVE
Art. 1485) i.e. where a lease agreement is in reality
a lease with an option to purchase an equipment REMEDIES
to which Article 1485 applies (PCI Leasing & The remedies under Article 1484 of the Civil Code
Finance, Inc. v. Giraffe- X Creative Imaging Inc., July have been recognized as alternative, not
12, 2007). cumulative, in that the exercise of one would bar the
exercise of the others (Delta Motors Sales Corp. v.
PURPOSE: To prevent vendors from resorting to Niu Kim Duan, G.R. No. 61043, September 2, 1992).
this form of contract which usually is in reality a
contract of sale of personal property payable in NOTE: The remedies cannot also be pursued
installment in contravention of the provisions of simultaneously. Availment of all the remedies is
Article 1484 (DE LEON, supra at 179). irregular and flagrant circumvention of the
prohibition of the law (Luneta Motor Co. v. Dimagiba,
The vendor by retaining ownership over the property G.R. No. L-17061, December 30, 1961).
in the guise of being the lessor, retains likewise the
1. Specific Performance upon Vendee’s not be unconscionable under the circumstances
Failure to Pay (CIVIL CODE, Art. 1486). Otherwise, the court
The vendor may, after obtaining favorable has the power to order the return of the portion
judgment from the court, cause the sheriff to levy of the total amount paid in installments or rent
on the thing sold and have it sold at a public (DE LEON, supra at 181).
auction. If the proceeds of the sale were not
enough, the vendor may cause an alias of writ of It is recognized that when the seller takes
execution to be issued on the other properties of possession of the subject property in rescission
the vendor (DE LEON, supra at 157). of the sale, the seller is barred from recovering
the balance of the price. Although no barring
In sales on installments, where the action effect is expressly provided for such remedy
instituted is for specific performance and the under Article 1484, the same is implicit from the
mortgaged property is subsequently attached nature of the remedy of rescission, which
and sold, the sale thereof does not amount to a requires mutual restitution (VILLANUEVA, supra
foreclosure of the mortgage, hence, the seller- at 388).
creditor is entitled to a deficiency judgment
(Southern Motors Inc. v. Moscoso, G.R. No. L- 3. Foreclosure of the Chattel Mortgage
14475, May 30, 1961). Constituted on the Thing Sold if Vendee
shall have failed to Pay Two (2) or More
When Deemed Chosen Installments
The seller is deemed to have chosen specific In this case, there shall be no deficiency
performance when he files an action in court for judgment (CIVIL CODE, Art. 1484, par. 3).
recovery (VILLANUEVA, supra at 355).
When Deemed Chosen
Resort to Rescission after Choosing Specific At the time of actual sale of the subject property
Performance at public auction pursuant to the foreclosure
GENERAL RULE: When the seller has chosen proceedings commenced (Manila Motor Co.,
specific performance, he can no longer seek for Inc. v. Fernandez, G.R. No. L-8377, August 28,
rescission or foreclosure of the chattel mortgage 1956).
constituted on the thing sold (VILLANUEVA,
supra at 355). Barring Effect of Foreclosure
It is the foreclosure and actual sale at public
EXCEPTION: Even if the seller had chosen auction of the mortgaged chattel that shall bar
specific performance, if the same has become further recovery by the seller of any balance on
impossible, the seller may still choose rescission the purchaser’s outstanding obligation not
(CIVIL CODE, Art. 1191, par. 2). satisfied by the sale prior to that point in time,
the seller has every right to receive payments on
2. Rescission of the Sale if Vendee shall the unpaid balance of the price from the buyer
have Failed to Pay Two (2) or More (Manila Motor Co., Inc. v. Fernandez, G.R. No.
Installments When Deemed Chosen L-10910, January 16, 1959; VILLANUEVA,
When the seller has clearly indicated to end the supra at 390-391).
contract such as when: (NPA)
a. He sends a Notice of rescission; Any agreement allowing for further action to
b. He takes Possession of the subject matter recover unpaid balance is void (CIVIL CODE,
of the sale; or Art. 1484, par. 3).
c. He files an Action for rescission
(VILLANUEVA, supra at 387). NOTE: Article 1484 (3) is inapplicable where the
amounts adjudged in favor of the vendor-
Forfeiture of Installment or Rentals Paid mortgagee were not part of unpaid balance of
GENERAL RULE: Rescission creates the the purchase price or in the concept of a
obligation to return the things which were the deficiency but were expenses of the suit
object of the contract, together with the fruits, (Universal Motors Corp. v. Velasco, G.R. No. L-
and the price with its interests. It can be carried 25140, July 15, 1980).
out only when he who demands rescission can
return whatever he may be obliged to restore Recoverable expenses would include expenses
(CIVIL CODE, Art. 1385). properly incurred in effecting seizure of the
chattel and attorney’s fees in prosecuting the
EXCEPTION: A stipulation that the installments action for replevin (Agustin v. CA, G.R. No.
or rents paid shall not be returned to the vendee 107846, April 18, 1997).
or lessee shall be valid insofar as the same may
 The mere fact that the seller secures the the guarantor will be entitled to recover what he has
possession of the personal property through an paid from the debtor-vendee, so that ultimately, it will
attachment after filing an action for collection of be the vendee who will be made to bear the payment
the unpaid balance, with a prayer for an of the balance of the price (Cruz v. Filipinas
issuance of a writ of preliminary attachment Investment & Finance Corp., G.R. No. L-24772, May
does not necessarily mean that he intends to 27, 1968).
resort to a foreclosure of the mortgage (Palma
v. CA, G.R. No. 45158, June 2, 1994). The word “action” is referring to any judicial or extra-
judicial proceeding by virtue of which the vendor may
Prior to foreclosure and actual sale at public lawfully satisfied balance of the purchase price from
auction, the seller has every right to receive the purchaser or his privy (Cruz v. Filipinas
payments on the unpaid balance of the price Investment & Finance Corp., G.R. No. L-24772, May
from the buyer (Sps. Rosario v. PCI Leasing and 27, 1968).
Finance, G.R. No. 139233, November 11,
2005). SELLER’S ASSIGNMENT OF CREDIT
When the seller assigns his credit to another person,
Payments made before actual foreclosure could the same law likewise binds the latter. Accordingly,
be retained by the vendor (Northern Motors, Inc. when the assignee forecloses on the mortgage,
v. Sapinoso, G.R. No. L-28074, May 29, 1970). there can be no further recovery of the deficiency
and the seller-mortgagee is deemed to have
The following situations were not considered renounced any right thereto. To rule otherwise would
as having “exercised” the remedy of pave the way for subverting the policy under Article
foreclosure because of its incomplete 1484 (Borbon II v. Servicewide Specialists, Inc.,
implementation: G.R. No. 106418, July 11, 1996).
a. The seller merely informed purchaser of
intention to foreclose and did not actually Art. 1484 (3) of the Civil Code does not bar one to
foreclose (Radiowealth, Inc. v. Lavin, G.R. whom the vendor has assigned on a with recourse
No. L-18563, April 27, 1963). basis his credit against the vendee from recovering
b. Mere demand for surrender of thing sold but from the vendor the assigned credit in full although
no foreclosure (Tobias Industrial Finance the vendor may have no right of recovery against the
Corp. v. Tobias, G.R. No. L-41555, July 27, vendee for the deficiency (Filipinas Investment &
1977). Finance Corp. v. Vitug, Jr., G.R. No. L-25951, June
c. Action for replevin (Universal Motors Corp. 30, 1969).
v. Velasco, G.R. No. L-25140, July 15,
1980).
d. Action for specific performance (Southern
EXTENT OF BARRING EFFECT
Motors, Inc. v. Moscoso, G.R. No. L-14475, Despite the limiting language of Article 1484 of the
May 30, 1961). Civil Code, which uses the phrase “any unpaid
e. Vendor given possession by vendee did not balance,” the Supreme Court, in Macondray & Co.,
foreclose (Filinvest Credit Corp. v. Phil Inc. v. Eustaquio, ruled that the barring effect also
Acetylene Co., Inc. G.R. No. L-50449, applies to all other claims (e.g., the interest on the
January 30, 1982). principal, attorney’s fees, expenses of collection,
f. Seller filed petition for extrajudicial and the costs) (G.R. No. L-43683, July 16, 1937).
foreclosure and obtained possession but did
not foreclose (De la Cruz v. Asian Consumer PERVERSE BUYER-MORTGAGOR
& Industrial Finance Corp., G.R. No. 94828, When a defaulting buyer-mortgagor refuses to
September 18, 1992). surrender the chattel to the seller to allow the latter
g. Thing not sold at public auction as it was to be able to proceed with foreclosure, then the
released by sheriff (Pacific Commercial Co. seller, even after foreclosure, should be allowed to
v. De La Rama, G.R. No. L-47771, June 17, recover expenses and attorney’s fees incurred in
1941). trying to obtain possession of the chattel (Filipinas
Investment & Finance Corp, v. Ridad, G.R. No. L-
BARRING EFFECT ON OTHER 27645, November 28, 1969). In effect, the Ridad,
SECURITIES GIVEN FOR PAYMENT OF Universal Motor Corp. and Agustin ruling provides
an exception to the complete barring effect
PRICE
espoused in Macondray & Co., Inc. ruling.
After foreclosure, the vendor cannot proceed against
any third party who may have guaranteed the
vendee’s performance of his obligation, for if the
guarantor should be compelled to pay the balance,
 SALE BY INSTALLMENTS
MACEDA LAW Its definition is the same for sale of movables by
(R.A. NO. 6552) installments, which would involve at least two (2)
installments (VILLANUEVA, supra at 382).

NOTE: While under Sec. 3, down payment is

included in computing the total number of installment
PURPOSE payments made, the proper divisor is the monthly
It is an expression of public policy to protect buyers installment on the down payment (Jestra
of real estate on installments against onerous and Development and Management Corp. v. Pacifico,
oppressive conditions (R.A. 6552, Sec. 2). G.R. No. 167452, January 30, 2007).

COVERAGE Maceda Law Cannot be availed of by the

Transactions or contracts involving sale or financing Developer
of real estate on installment payments including The Maceda Law has no application to protect the
residential condominium apartments (R.A. 6552, developer or one who succeeds the developer
Sec. 3). (Lagandaon v. CA, G.R. Nos. 102526, May 21,
1998).
IT DOES NOT APPLY TO:
1. Sale covering industrial lots; RIGHTS OF THE BUYER:
2. Sale covering commercial buildings (and 1. If the buyer has paid at least two (2) years of
commercial lots by implication); installments:
3. Sale to tenants under agrarian reform laws; or a. The buyer must pay, without additional
4. Sale of lands payable in straight terms (R.A. interest, the unpaid installments due within
6552, sec. 3). the total grace period earned by him. There
shall be one (1) month grace period for
It is clear that the buyer's protection under R.A. No. every one (1) year of installment payments
6552 only applies to contracts of sale of real estate made (R.A. 6552, Sec. 3).
on installment payments, including residential
condominium apartments, but excluding industrial NOTE: This right shall be exercised by the
lots, commercial buildings and sales to tenants. A buyer only once every five (5) years of the
purchase by a company involved in the real estate life of the contract and its extensions (R.A.
business of a six-hectare lot can hardly be 6552, Sec. 3).
considered as residential (Royal Plains View v.
Meija, G.R. No. 230832. November 12, 2018). b. Actual cancellation can only take place after
thirty (30) days from receipt by the buyer of
The enumeration of the transactions not covered by the notice of cancellation or demand for
the Maceda Law is NOT exclusive, since other rescission by a notarial act and upon full
transactions over immovables, although not within payment of the cash surrender value to the
the enumerated exclusions are to be considered buyer (R.A. 6552, Sec. 3; Olympia Housing
excluded. An example would be the sale on v. Panasiatic Travel Corp., G.R. No.
installment of commercial condominium units 140468, January 16, 2003).
(VILLANUEVA, supra at 384).
c. Cancellation of Contract
NOTE: Section 3 of the Maceda Law is For a valid and effective cancellation of the
comprehensive enough to include both contracts of contract under the Maceda Law, the
sale and contracts to sell, provided that the terms of mandatory twin requirements of a notarized
the payment of the price require at least two notice of cancellation and refund of the
installments (Id. at 385). cash surrender value must be complied with
(Gatchalian Realty Inc., v. Angeles, G.R.
Requisites: No. 202358, November 27, 2013).
1. Transactions or contracts involving the sale or
financing of real estate on installment payments, NOTE: The seller shall refund to the buyer
including residential condominium apartments; the cash surrender value of the payments on
and the property equivalent to fifty percent (50%)
2. Buyer defaults in payment of succeeding of the total payments made. After five (5)
installments (R.A. 6552, Sec. 3). years of installments, there shall be an
additional five percent (5%) every year but
 not to exceed ninety percent (90%) of the b. The buyer shall have the right to sell his
total payments made (R.A. 6552, Sec. 3). rights or assign the same to another person
or to reinstate the contract by updating the
The right of the buyer to refund accrues only account during the grace period and before
when he has paid at least two years of the actual cancellation of the contract (R.A.
installments (Manuel Uy & Sons, Inc., v. 6552, Sec. 5).
Valbueco, Inc., G.R. No. 179594, c. The buyer shall have the right to pay in
September 11, 2013). advance any installment or the full unpaid
balance of the purchase price any time
Cancellation of a contract to sell may be without interest and to have such payment
done outside of court, however, the annotated in the certificate of title covering
cancellation by the seller must be in the property (R.A. 6552, Sec. 6).
accordance with Sec. 3 (b) of R.A. No. 6552.
Where the buyer has paid at least two years NOTE: Section 4 of R.A. 6552 is the provision
of installments and in case he defaults in the applicable to buyers who have paid less than
payment of succeeding installments, he is two (2) years-worth of installments.
entitled to the refund of the cash surrender
value of the payments on the property For buyers who have paid less than two (2)
equivalent to fifty per cent of the total years-worth of installments, the following
payments made, and after five years of requisites must be satisfied:
installments, an additional five per cent a. The seller shall give the buyer a sixty (60)
every year but not to exceed ninety per cent day grace period to be reckoned from the
of the total payments made. Provided, that date the installment became due;
the actual cancellation of the contract shall b. The seller must give the buyer a notice of
take place after thirty days from receipt by cancellation/demand for rescission by
the buyer of the notice of cancellation or the notarial act if the buyer fails to pay the
demand for rescission of the contract by a installments due at the expiration of the said
notarial act and upon full payment of the grace period; and
cash surrender value to the buyer c. The seller may actually cancel the contract
(Associated Marine Officers and Seamen’s only after thirty (30) days from the buyer’s
Union of the Philippines PTGWO-ITF v. receipt of the said notice of
Decena, G.R. No. 178584; October 8, cancellation/demand for rescission by
2012). notarial act (Optimum Dev’t Bank v. Sps.
Jovellanos, G.R. No. 189145, December 04,
d. The buyer shall have the right to sell his 2013).
rights or assign the same to another person
OR to reinstate the contract by updating the NOTE: Down payments, deposits or options on
account during the grace period and before the contract shall be included in the computation
actual cancellation of the contract (R.A. of the total number of installment payments
6552, Sec. 5). made (R.A. 6552, Sec. 3).

e. The buyer shall have the right to pay in When Republic Act No. 6552 or the Maceda Law
advance any installment or the full unpaid speaks of paying "at least two years of
balance of the purchase price any time installments" in order for the benefits under its
without interest and to have such payment Section 3 to become available, it refers to the
annotated in the certificate of title covering buyer's payment of two (2) years' worth of the
the property (R.A. 6552, Sec. 6). stipulated fractional, periodic payments due to
the seller. When the buyer's payments fall short
2. If Buyer has paid less than two (2) years of of the equivalent of two (2) years' worth of
installments: installments, the benefits that the buyer may
a. The seller shall give the buyer a grace avail of are limited to those under Section 4.
period of not less than sixty (60) days from Should the buyer still fail to make payments
the date the installment became due. If the within Section 4's grace period, the seller may
buyer fails to pay the installments due at the cancel the contract. Any such cancellation is
expiration of the grace period, the seller may ineffectual, however, unless it is made through a
cancel the contract after thirty (30) days valid notarial act (Obre v. Filinvest Land, Inc.
from receipt by the buyer of the notice of G.R. No. 208185, September 6, 2017).
cancellation or the demand for rescission of
contract by a notarial act (R.A. 6552, Sec.
4).
 The notice of cancellation accompanied by a Issuance of the certificate by the city engineer's
jurat is not the valid notarial act office is not required for the perfection of a
contemplated by the Maceda Law contract of lease. Being a consensual contract,
Notarization under the Maceda Law extends a lease is perfected at the moment there is a
beyond converting private documents into public meeting of the minds upon the thing and the
ones. Under Sections 3 and 4, notarization cause or consideration which are to constitute
enables the exercise of the statutory right of the contract (Hilltop Market Fish Vendors'
unilateral cancellation by the seller of a Association, Inc. v. Yaranon, G.R. No. 188057,
perfected contract. Through an December 7, 2017).
acknowledgement, individuals acting as
representatives declare that they are authorized 2. Commutative;
to act as such representatives. It is imperative 3. Onerous (there must be rent or price certain);
that the officer signing for the seller indicate that 4. Bilateral;
he or she is duly authorized to effect the 5. Principal; and
cancellation of an otherwise perfected contract.
6. Nominate.
Respondent's notice of cancellation here was
executed by an individual identified only as
belonging to respondent's Collection LEASE CONTRACT IS NOT
Department. A jurat is a distinct notarial act, ESSENTIALLY PERSONAL IN
which makes no averment concerning the CHARACTER
authority of a representative (Obre v. Filinvest GENERAL RULE: It survives the death of the parties
Land, Inc. G.R. No. 208185, September 6, and continues to bind the heirs.
2017).
EXCEPTION: If the contract states otherwise
(Inocencion v. Hospicio de San Jose, G.R. No.
201787, September 25, 2013).
LEASE
(ARTS. 1642-1679) RULES ON TEMPORARY ENJOYMENT
OR USE
1. Period is either definite or indefinite (5 PARAS,
supra at 323-325)
DEFINITION OF CONTRACT OF LEASE 2. However, in the lease of things, no lease for
A contract whereby one person (lessor) binds more than 99 years shall be valid (CIVIL CODE,
himself to grant temporarily the enjoyment or use of Art. 1643)
a thing or to render of some work or service to
another (lessee) who undertakes to pay some rent, KINDS OF LEASE AS TO THE SUBJECT
compensation or price therefor (DE LEON, supra at MATTER (CIVIL CODE, Art. 1642):
703). 1. Lease of things (CIVIL CODE, Art. 1654);
2. Lease of service (CIVIL CODE, Arts. 1689,
ESSENTIAL ELEMENTS OF A 1700 and 1732); and
CONTRACT OF LEASE 3. Lease of work (CIVIL CODE, Art. 1713).
As in ordinary contract, a contract of lease has three
elements, namely: (COC) LEASE OF THINGS
1. Consent of the contracting parties; One of the parties (lessor) binds himself to give to
2. Object certain which is the subject matter of the another (lessee) the enjoyment or use of a thing for
contract; and a price certain, and for a period which may be
3. Cause of the obligation which is established definite or indefinite. However, no lease for more
(CIVIL CODE, Art. 1318) than ninety-nine (99) shall be valid (CIVIL CODE,
Art. 1643).
CHARACTERISTICS OF LEASE OF
THINGS: ESSENCE OF LEASE
1. Consensual; The transmission of the temporary enjoyment or use
Hence, as a rule, lease may be entered orally. by the lessee of a thing for a certain period in
However, if the lease of real property is for more consideration of the undertaking to pay rent therefor
than one (1) year, it must be in writing, in (DE LEON, supra at 705).
compliance with Statue of Frauds (CIVIL CODE,
Art. 1403. par. 2, (e))
Hence, the object of lease must be within the commodatum (which is essentially gratuitous)
commerce of man (CIVIL CODE, Art. 1317); (CIVIL CODE, Art. 1933).
otherwise, it is void (Id.)
RIGHT TO FIX RENT
SUBJECT MATTER OF LEASE It belongs to lessor as lease is a consensual
Article 1643 applies to lease of things, whether contract, similar to sale. If the rentals being claimed
movable or immovable. are exorbitant, the courts could intervene as a matter
of fairness and equity. The burden of proof to show
The Civil Code makes no special provisions for the the unreasonableness of the rent is on the lessee
lease of movables. Nevertheless, the provisions of (Ramon Magsaysay Award Foundation v. CA, G.R.
the Code on leases of lands are also applicable to No. L-55998, January 17, 1985).
leases of personal property except those provisions
which by their nature and intent, can only be applied RIGHT TO INCREASE RENT
where the object of the lease is immovable (Id. at It is not an absolute right on the part of the lessor
706). without the consent of the lessee (Ramon
Magsaysay Award Foundation v. CA, G.R. No. L-
RULE FOR LEASE OF CONSUMABLE 55998, January 17, 1985). Neither can the court fix
GOODS a different rental, even where there is an increase in
GENERAL RULE: Consumable goods cannot be realty taxes (Ledesma v. Javellana, G.R. No. L-
the subject matter of a contract of lease of things 55187, April 28, 1983)
(CIVIL CODE, Art. 1645).
SALE v. LEASE
REASON: To use or enjoy them, they will have to be
CONTRACT OF SALE LEASE
consumed. This cannot be done in lease since
returning the thing is the essence of lease (CIVIL As to Nature of Obligation
CODE, Art. 1643).
Obligation to absolutely Obligation to transfer
EXCEPTIONS: transfer ownership the use of the thing
1. If they are merely to be exhibited; or (CIVIL CODE, Art. only (CIVIL CODE, Art.
2. If they are accessory to an industrial 1460). 1642).
establishment (CIVIL CODE, Art. 1645).
As to Consideration
OWNERSHIP OF THING
Consideration is price Consideration is rent
The lessor need not be the owner of the thing leased
(CIVIL CODE, (CIVIL CODE, Art.
as long as he can transmit its enjoyment or use to
Art.1473) 1642)
the lessee since the ownership is not being
transferred (Id.). As to Necessity of Owning the Object at the
Time of Transfer
Even the lessee himself may lease the property to
another; in such case, a sublease results (CIVIL Seller needs to be the Lessor need not be the
CODE, Art. 1650). owner of the thing to owner (DE LEON,
transfer ownership Sales, supra at 706).
CONSIDERATION OF LEASE (CIVIL CODE, Art.
RENT 1459).
It is the cause of the contract of lease, in money or
As to Significance of Price of Object
in its equivalent, such as products, fruits or other
useful things or some other prestation which the The price of the object, is The price of the thing is
lessee binds himself to undertake. The important is usually not mentioned usually fixed in the
that what have given by the lessee has value (DE (DE LEON, supra at contract (CIVIL CODE,
LEON, supra at 707). 720). Art. 1473).
NOTE: It must be capable of determination (since (DE LEON, supra at 720).
the law says “price certain”) (5 PARAS, supra at
324).

It must not be fictitious or nominal. Otherwise, there

is a possibility that the contract is one of
 LEASE V. SIMPLE LOAN LEASE COMMODATUM
SIMPLE LOAN
LEASE As to Contract
(MUTUUM)
Consensual Real
As to Transfer of Ownership
(DE LEON, supra at 721).
Lessor does not lose Ownership of the thing
ownership. transfers to the NOTE: Both consist in the transmission of the
borrower or debtor enjoyment or use of a thing to another (CIVIL CODE,
(CIVIL CODE, Art. Art. 1933).
1953).

As to Relationship Between the Parties

LEASE V. USUFRUCT
LEASE USUFRUCT
Lessor and lessee. Obligor or debtor and
oblige or creditor. As to Extent

As to Applicability of the Statute of Frauds Limited to the use Includes all possible
specified in the contract. uses and enjoyment of
If what is leased is real Not governed by the the thing (CIVIL
property for more than Statute of Frauds. CODE, Arts. 562, 564
one (1) year, the Statute and 566).
of Frauds must be
complied with (CIVIL As to Nature of Right
CODE, Art. 1403, 2 (e)).
A real right only by Always a real right
As to Object exception, when it (CIVIL CODE, Art.
involves land, and it is for 567, par. 3).
Covers real and Covers personal more than 1 year, or is
personal property. property only. registered.
As to Usury Law As to Creator of the Right
Not governed by the Governed by Usury Law The lessor may or may Can be created only
Usury Law. (CIVIL CODE, Arts. not be the owner, be the owner, or by
1175 and 1961). therefore he may or may duly authorized agent
(DE LEON, supra at 721-722). not be the creator of the acting in behalf of the
right. owner (CIVIL CODE,
Art. 563).
LEASE V. COMMODATUM
LEASE COMMODATUM As to Origin

As to Transfer of Ownership May be created only by May be created by

contract; and by way of law, by the will of
No transfer of No transfer of exception, by law (as in private persons
ownership. ownership. the case of implied new expressed in acts inter
lease; or when a builder vivos or in a last will
As to Cause has built in good faith a and testament, and by
building on the land of prescription (CIVIL
Onerous, although the Essentially gratuitous; if another, when the land is CODE, Art. 563).
rent may be there is a price or rent, considerably worth more
subsequently condoned the contract ceases to in value than the
or remitted. be commodatum. building).
As to Nature As to Cause
Personal in character. Owner or lessor is more The owner is more or
Not essentially personal
Thus, the death of or less active, and he less passive and he
in character. Hence, the
either the bailor or makes the lessee enjoy allows the
right may be transmitted
bailee ends the the thing – “hace gozar”. usufructuary to enjoy
to the heirs.
commodatum. the thing given in
 LEASE USUFRUCT LEASE DEPOSIT

usufruct – “dejagozar” at will (CIVIL CODE,

(CIVIL CODE, Art. Art. 1972).
62).

As to Repairs As to Consideration

The lessee generally has The usufructuary has Onerous. May be gratuitous
no duty to pay for repairs. the duty to make the (CIVIL CODE, Art.
ordinary repairs 1965).
(CIVIL CODE, Art.
592). As to Perfection of the Contract

As to Taxes Consensual. Real contract,

perfected only upon
The lessee generally The usufructuary pays delivery of the thing
pays no taxes. for the annual charges (CIVIL CODE, Art.
and taxes on the fruits 1963).
(CIVIL CODE, Art. (DE LEON, supra at 723).
596).

As to Other Things
LEASE OF SERVICES V.
CONTRACT FOR A PIECE OF WORK
The lessee cannot A usufructuary may LEASE OF SERVICES CONTRACT FOR A
constitute a usufruct on lease the property (LOCATIO PIECE OF WORK
the property leased. itself to another (CIVIL OPERARUM) (LOCATIO OPERIS)
CODE, Art. 581).
(DE LEON, supra at 722-723). As to Object of Contract

The object of the The object of the

LEASE V. DEPOSIT contract is the labor or contract is the work
LEASE DEPOSIT service itself performed done (the result of the
by the lessor. labor) without
As to Nature considering the labor
that produced it (CIVIL
A real right only by Real right. CODE, Arts. 1689 and
exception, that is, when 1700).
it involves land, and it is
for more than one (1) As to Payment for Labor Performed
year or is registered.
The result is generally The result is generally
As to Object not important; hence the important; the price is
laborer is entitled to be not payable until the
Covers real and In extrajudicial deposit, paid even if there is work is completed and
personal property. only a movable thing destruction of the work said price cannot be
may be the object through fortuitous event lawfully demanded if
(CIVIL CODE, Art. or the result intended is the work is destroyed
1966). not attained. before it is finished and
accepted.
As to Purpose
As to Similarities
Enjoyment or use of the Safekeeping of the
thing leased. thing delivered (CIVIL 1. There is a price certain (compensation)
CODE, Art. 1962). 2. The relation of principal and agent does not
exist between the lessor and lessee.
As to When Demand for the Thing Can Be
Made x(5 PARAS, supra at 337-338).

Only upon expiration of Demand for return of

the contract. the thing can be made
 LEASE OF SERVICES V. AGENCY LEASE OF SERVICES AGENCY
LEASE OF SERVICES AGENCY
As to Liability as to Third Persons
As to Basis of Contract
Independent contractor GENERAL RULE:
It is based on It is based on personally liable for his Agent is not liable to
employment (the lessor representation – agent contracts with third third persons.
of services does not represents his principal persons. EXCEPTION: When
represent his employer and enters into juridical the agent expressly
nor does he execute acts. binds himself or
juridical acts). exceeds the limit of his
Agent enters into authority (CIVIL CODE,
Lessor does not enter juridical acts in behalf Art. 1897).
into juridical acts in of the principal (CIVIL
behalf of lessee. CODE, Art. 1868). As to Powers Possessed

As to Type of Contract Lessor is only limited to Agent exercises

ministerial duties. discretionary power
Principal contract Preparatory contract; (CIVIL CODE, Arts.
the purpose is for the 1876, 1877, 1881,
agent to enter into 1882, 1884, 1887 and
other contracts which 1888).
he is authorized to (DE LEON, supra at 724-725).
enter.

As to Work to be Done LEASE OF CHATTELS

V. EMPLOYMENT
The lessor performs a The agent executes a
material act for the juridical act for and in LEASE OF CHATTELS EMPLOYMENT
benefit of his employer behalf of the principal
As to Relationship Between the Parties
without representation of (CIVIL CODE, Art.
the latter (CIVIL CODE, 1868). Lessor and lessee. Employer and
Art. 1644). employee (CIVIL
CODE, Arts. 1689 and
As to Consideration
1713).
Work or service must be Presumed to be for a
for a price or price or consideration
As to Control or Management Over the
consideration. (CIVIL CODE, Art.
Chattel
1875).
Lessor loses control or The employer retains
As to Extinguishment
management over the control or management
Will of both parties Will of one is sufficient chattel leased. over his chattel.
necessary. (CIVIL CODE, Arts.
1919 (1, 2), 1920 and
As to Control or Supervision Over the Lessee
1928).
or Employee
As to Persons Involved
Lessor has no control or The employer
Two persons – lessor Three persons – supervision over the exercises control and
and lessee. principal, agent, and lessee. supervision over the
third person. employee.

As to Risk of Loss Before Delivery

As to Payment or Compensation
Borne by the Borne by the principal
independent contractor since agent merely Lessee pays rent to the Employer pays wages
(CIVIL CODE, Arts. acts as representative. lessor for the enjoyment or salary for the
1717 and 1718). or use of the chattel. services of the
employee.
(DE LEON, supra at 724).
SERVICE AS DRIVER UNDER WHERE LEASE CONTRACT AMOUNTS
BOUNDARY SYSTEM TO VIRTUAL TRANSFER OF
Under the boundary system, the relation between OWNERSHIP
the driver and the jeepney owner is that of employer A contract whereby an alien is given not only a lease
and employee, not lessor and lessee (DE LEON, but also an option to buy a parcel of land by virtue of
supra at 733). which Filipino owner cannot sell or otherwise
dispose of her property for 50 years, circumvents the
LEASE OF THINGS constitutional ban against alien landholding
V. LEASE OF SERVICES (Philippine Banking Corp. v. Lui She, G.R. No. L-
17587, September 12, 1967).
LEASE OF THINGS LEASE OF SERVICES

As to Object of the Contract MAXIMUM PERIOD OF LEASE TO

ALIENS
Object is some work or Under P.D. No. 471, the maximum period is 25
Object of contract is a
service. years, renewable for another 25 years upon mutual
thing.
agreement of both lessor and lessee. R.A. No. 7652
(Investors’ Lease Act), regulates the long-term lease
As to Obligation of the Lessor of private lands by foreign investors.
Lessor has to perform
Lessor has to deliver PROPER AUTHORITY REQUIRED IF
some work or service.
the thing leased.
LEASED TO BE RECORDED IN
REGISTRY OF PROPERTY (CIVIL CODE,
As to Remedy in Case of Breach Art. 1647)
In case of breach, there In case of breach, no If a lease is to be recorded, the following persons
can be an action for action for specific must have proper authority (special power of
specific performance. performance. attorney to constitute the lease):
1. The husband with respect to the paraphernal
(DE LEON, supra at 724). real estate of the wife, unless the administration
of such properties has been transferred to the
PERSONS DISQUALIFIED TO BE husband done in a public instrument duly
LESSEES recorded (FAMILY CODE, Art. 110). Conjugal
property cannot be leased without the joint
The persons disqualified to buy referred to in
consent of the spouses;
Articles 1490 and 1491, are also disqualified to
2. The father or guardian with respect to the
become lessees of the things mentioned therein
property of the minor or the ward (CIVIL CODE,
(CIVIL CODE, Art. 1646).
Art. 1647); and
3. The manager (administrator) with respect to the
The prohibition is adopted in Article 1946 because of
property under his administration (CIVIL CODE,
the similarity between the contract of lease and that
Art. 1647).
of sale (DE LEON, supra at 736).
NOTE: Article 1647 does not specify the term of the
(Please refer to the discussions on Articles 1490 and
lease. Every lease of real estate may be recorded,
1491 in page 541). and if recorded, creates a real right binding upon the
parties (CIVIL CODE, Art. 1648).
LEASE OF REAL PROPERTY TO ALIENS
GENERAL RULE: Foreigners are prohibited by the REASON: The registration of the lease is an act of
Constitution ownership or strict dominion; hence, a special power
of attorney is necessary (DE LEON, supra at 739).
EXCEPTION: In cases of hereditary successions, to
acquire lands in the Philippines (CONST., Art. XII, THE MANAGER’S SPECIAL POWER OF
Secs. 2 and 7).
ATTORNEY IS REQUIRED FOR
Nevertheless, they can lease real or immovable VALIDITY
property in the Philippines (Investors Lease Act, R.A. The requirement under Article 1878 (8) is imposed
7652, Sec. 4). whether or not the lease will be recorded. In the
absence of a special power, a lease for more than
one (1) year executed by persons mentioned in
Article 1647 is valid only for one (1) year but void as the substitution of the person of one of the parties —
to the excess (DE LEON, supra at 739). the lessee. The personality of the lessee, who
dissociates from the lease, disappears; only two
NOTE: The word manager in the law is a broad term persons remain in the juridical relation — the lessor
and may be: and the assignee who is converted into the new
1. The administrator of conjugal property (Chua v. lessee (Inocencio v. De San Jose, G.R. No. 201787,
CA, G.R. No. L-60015, December 19, 1984); September 25, 2013).
2. Administrator of co-ownership (Melencio v. Dy
Tiao Lay, G.R. No. L-32047, November 1, The objective of the prohibition is to protect the
1930); lessor or owner of the leased property (Dakudao v.
3. Administrator of state patrimonial property Consolacion, G.R. No. L-54753, June 24, 1983).
(Tipton v. Andueza, G. R. No. 2070, January 2,
1906). EXCEPTION: If there is stipulation to the contrary
(CIVIL CODE, Art. 1649).
RECORDING OF THE LEASE OF REAL
PROPERTY An assignment exists when the lessee made an
absolute transfer of his leasehold rights in a contract,
Its purpose is to notify strangers to the transaction and he has disassociated himself from the original
(CIVIL CODE, Art. 1648). It is intended to protect the contract of lease. Consequently, the juridical relation
lessee, who cannot be ousted by the buyer if the is only between the lessor and the assignee
lease is recorded (Report of the Civil Code (Manlapat v. Salazar, G.R. No. L-8221, January 31,
Commission, p. 142). 1956).
However, if the purchaser has actual knowledge of
the existence of the lease, which knowledge is
equivalent to registration, he is bound by the lease
(Lao v. Lao, G.R. No. 149599, May 16, 2005).
SUBLEASE
LEASE AS PERSONAL OR REAL RIGHT
GENERAL RULE: Lease is only a personal right
(DE LEON, supra at 703). It is a separate and distinct contract of lease wherein
the original lessee becomes a sublessor to a
EXCEPTIONS: Lease partakes of the nature of real sublessee of the thing, in whole or in part, without
right if: prejudice to his responsibility for the performance of
1. Lease of real property is more than one (1) year, the contract toward the lessor (CIVIL CODE, Art.
and to be enforceable, it must be in writing; or 1650).
2. Lease of real property is registered regardless of
duration with Registry of Property (CIVIL CODE, As the existence of the sublease depends upon the
Art. 1648). lease, the sublease is terminated upon the
rescission of the lease contract (Go King v.
NOTE: Lease of personal property cannot be Geronimo, G.R. No. L-2126, August 27, 1948).
registered. To be binding against third persons, the
parties must execute a public instrument (DE LEON, A sublease cannot have a term longer than that of
supra at 740-741). the lease on which it is dependent. It terminates
upon the termination of the lease, unless the lease
EFFECT OF ACTUAL NOTICE OF is for a shorter term (Blas v. CA, G.R. No. 82813,
UNREGISTERED LEASE BY THE December 14, 1989).
PURCHASER
Where a purchaser of a land at the time of the
RIGHTS OF THE LESSEE TO SUBLEASE
purchase has full knowledge that the land has been Unlike in assignment, a lessee may generally
leased to a third person, he is bound to respect said sublease the property in the absence of express
lease, although it is not entered upon the certificate prohibition (CIVIL CODE, Art. 1650).
of sale (Lao v. Lao, G.R. No. 149599, May 16, 2005).
REASON: The lessee remains a party (bound by the
ASSIGNMENT OF LEASE BY LESSEE terms and conditions of the contract) to the lease
even if he has already created a sublease thereon
GENERAL RULE: A lessee cannot assign the lease (DE LEON, supra at 744).
without consent of lessor (CIVIL CODE, Art. 1649).
NOTE: Under Section 9 (a) of R.A. 9653 (Rent
REASON: In the case of cession or assignment of Control Act of 2009), assignment of lease or
lease rights on real property, there is a novation by subleasing of residential in whole or in part, including
the acceptance of boarders or bed spacers, without RESPONSIBILITY OF A SUBLESSEE TO
the written consent of the owner/lessor is a ground THE LESSOR
for judicial ejectment.
GENERAL RULE: The sublessee is directly liable to
Accepting boarders is not equivalent to subleasing the sublessor and not the lessor (Manlapat v.
since the lessee does not relinquish or surrender his Salazar, G.R. No. L-8221, January 31, 1956).
lease to them. He did not cease to become the
actual occupant and possessor of the demised REASON: There is no juridical relationship between
premises (Malasarte v. CA, G.R. No. 178 SCRA 310, the lessor and the sublessee (CIVIL CODE Art.
1989). 1311).

EXCEPTIONS:
RIGHTS OF THE LESSOR IF SUBLEASE The sublessee is responsible to the lessor for:
IS PROHIBITED BUT SUBSEQUENTLY 1. All acts which refer to the use and preservation
ENTERED INTO BY THE LESSEE: of the thing leased in the manner stipulated
1. Rescission and damages; or between the lessor and the lessee (CIVIL
2. Damages only (Contract will be allowed to CODE, Art. 1651); and
remain in force). 2. Rent due to the lessor from the lessee which the
latter failed to pay (CIVIL CODE, Art. 1652).
As the existence of the sublease depends upon the
lease, the sublease is terminated upon the Amount recoverable: Since the liability of the
rescission of the lease contract (Go King v. sublessee is subsidiary, the sublessee shall not be
Geronimo, G.R. No. L-2126, August 27, 1948). responsible beyond the amount of rent due from him,
in accordance with the terms of the sublease, at the
time of the extrajudicial demand by the lessor (CIVIL
SUBLEASE V. ASSIGNMENT OF LEASE CODE, Art. 1652).
ASSIGNMENT OF PURPOSE: To prevent situation where the lessee
SUBLEASE
LEASE collects rents from the sublessee but does not pay
his rents to the lessor (DE LEON, supra at 744-745).
As to Number of Juridical Relations Created

There are two leases There is only one ACCION DIRECTA

and two distinct juridical juridical relationship, It is a direct action which the lessor may bring
relationships although that of the lessor and against a sublessee who misuses the subleased
immediately connected the assignee, who is property (5 PARAS, supra at 354).
and related to each converted into a
other. lessee. NOTE: If the lessor was compelled to file a
complaint, which is equivalent to a judicial demand,
As to Personality of Lessee the lessor can claim other forms of damages from
the sublessee like attorney’s fees, costs, etc.
The personality of the The personality of the (PINEDA, Sales, supra at 485).
lessee does not lessee disappears.
disappear.
NECESSITY OF JUDGMENT AGAINST
As to Transfer of Rights and Obligations THE LESSEE
There must be a judgment against the lessee
The lessee does not The lessee transmits evicting the latter from the premises, or cancelling
transmit absolutely his absolutely his rights to the lessee’s lease contract, when he cannot pay the
rights and obligations to the assignee. rentals and the sublessee is in possession. The
the sublessee. mere failure of the lessee to pay the rentals does not
make the sublessee subsidiarily liable (Wheelers
As to Right of Action Against Lessor
Club Int’l v. Bonifacio Jr., G.R. No. 139540, June 29,
The sublessee, The assignee has a 2005).
generally, does not have direct action against
any direct action against the lessor. LIABILITY FOR RENTS PAID IN
the lessor. ADVANCE
(DE LEON, supra at 744-745). Payments of rents in advance by the sublessee shall
be deemed not have been made, so far as the
lessor’s claim is concerned, unless said payments
were effected in virtue of the customs of the place
(CIVIL CODE, Art. 1652, par. 2). 5. Making of Necessary repairs, unless there is a
stipulation to the contrary (CIVIL CODE, Art.
REASON: To avoid collusion between the lessee 1654, par. 2).
and sublessee (DE LEON, supra at 749).
NOTE: In default of a special stipulation, the
WARRANTY OF THE LESSOR custom of the place shall be observed as to the
The provisions governing warranty, contained in the kind of repairs (CIVIL CODE, Art. 1686).
Title on Sales, shall be applicable to the contract of
lease. (CIVIL CODE, Art. 1653). WHERE LEASE CONTRACT CONTAINS
RIGHT OF FIRST REFUSAL
In cases where the return of the price is required, The lessor is under a legal duty to the lessee not to
reduction shall be made in proportion to the time sell to anybody at any price until after he has made
during which the lessee enjoyed the thing (Id.). an offer to sell to the latter at a certain price and the
lessee has failed to accept it (PUP v. CA, G.R. No.
143513, November 14, 2001).

OBLIGATIONS The sale in violation of such right is valid. It may be

rescinded or may be the subject of an action for
OF LESSOR specific performance (PUP v. Golden Horizon Realty
Corp., G.R. No. 183612, March 15, 2010).

RIGHT OF LESSOR TO CONTINUE

OBLIGATIONS OF THE LESSOR: SAME BUSINESS OR INDUSTRY
(CT-DAN) ENGAGED IN BY LESSEE
1. Cannot alter the form of the thing leased (CIVIL GENERAL RULE: The lessor of a business or
CODE, Art. 1661); industrial establishment may continue engaging in
the same business or industry to which the lessee
Alteration – to constitute alteration, the devotes the thing leased (CIVIL CODE, 1656).
modification must be in such manner that it
would destroy the substance of the thing leased EXCEPTION: There is a stipulation to the contrary.
unserviceable for the use intended (DE LEON,
supra at 767). REASON: A lease is no warranty by the lessor to the
lessee that the latter’s business would be
2. The obligation to protect the lessee covers acts successful. Even if the lessee should suffer losses,
of Third persons and of the lessor (Bercero v. he would still be bound to fulfill the terms of the lease
Capitol Development Corp., G.R. No. 154765, (City of Naga v. CA, G.R. No. L-5944, November 26,
March 29, 2007); 1954).
3. Delivery of the object (actual or constructive;
cannot be waived) (CIVIL CODE, Art. 1654, par.
RULES ON ALTERATION OF THE FORM
1); OF THE LEASE
The lessor cannot alter the form of the thing leased
NOTE: At the time of the delivery, the thing must in such a way as to impair the use to which the thing
be in a condition fit for the use intended; is devoted under the terms of the lease (CIVIL
otherwise, lessee’s cause of action is against CODE, Art. 1661).
the lessor for breach of contract. The lessee has
no cause of action against the possessor REASON: Right of the lessee to be maintained in
because he has no relation (Republic v. De Los peaceful enjoyment for the entire duration of the
Angeles, G.R. No. L- 26112, October 4, 1971). contract (CIVIL CODE, Art. 1654, par. 3).

4. Maintenance in peaceful and Adequate NOTE: To constitute alteration, the modification

enjoyment of the lease for the entire duration of must be in such manner that it would destroy the
the contract (CIVIL CODE, Art. 1654, (3)). substance of thing leased unserviceable for the use
intended (Id.).
The obligation arises only when legal trespass
disturbs the lessee’s peaceful enjoyment thereof
(Bercero v. Capitol Development Corp., G.R.
No. 154765, March 29, 2007);
RULES IN CASE OF USEFUL 2. Rights of Lessee in case of Ornamental
IMPROVEMENTS AND ORNAMENTAL Expenses
EXPENSES The lessee has no right of reimbursement, but
he may remove them, provided:
1. Rights of Lessee in case of Useful a. No damage is caused to the principal thing;
Improvement and
a. To remove the improvements should the b. Lessor does not choose to retain them by
lessor refuse to reimburse although the paying their value at the time of the lease
principal may suffer damage; or (CIVIL CODE, Art. 1678, par. 2).
b. To be reimbursed by one-half (1/2) of the
value of said improvements at the time of Rules in Case of Urgent Repairs
termination of the lease should the lessor The lessor has the obligation to make necessary
choose to appropriate it (CIVIL CODE, Art. repairs (CIVIL CODE, Art. 1654, par. 2); and the
1678, par. 1). lessee is obliged, within the shortest possible
time, to advise of the need of such repair (CIVIL
PURPOSE: To prevent unjust enrichment of the CODE, Art. 1663, par.2).
lessor. The lessee is not a possessor in good
faith in the sense he believes himself to be the The lessee is obliged to tolerate the work
owner, but neither is he a possessor in bad faith. although it may be very annoying to him and
He is in possession by virtue of a contract, so his although during the same time he may be
possession is lawful. deprived of a part of the premises, if repairs last
for less than forty (40) days (CIVIL CODE, Art.
The lessor is to pay only one-half (1/2) of the 1662, par. 1).
value of the improvements at the time the lease
terminates because the lessee has enjoyed the The burden is on the lessor to prove the urgency
same. On the other hand, the lessor will enjoy of the repair (DE LEON, supra at 769).
them indefinitely thereafter (Report of the Civil
Code Commission, pp. 144-145). If the repairs are not urgent, the lessor is liable
for damages suffered by the lessee (PINEDA,
Parties may stipulate that the lessor may Sales, supra at 485).
appropriate them without reimbursing the lessee
should the latter fail to comply with the terms of NOTE: Article 1642 speaks of repairs.
the lease contract. Courts may equitably reduce Modifications or improvements which the lessor
a stipulated penalty in the contracts (1) if the may want to make on the property during the
principal obligation has been partly or irregularly period of the lease cannot be done against the
complied with; and (2) even if there has been no objection of the lessee (Id. at 769).
compliance if the penalty is iniquitous or
unconscionable in accordance with Article 1229 Rights of Lessee in Case of Urgent Repairs
of the Civil Code (Florentino v. Supervalue, Inc., If forty (40) days or more - the lessee can ask
G.R. No. 172384, September 12, 2007). for reduction of the rent in proportion to the time
– including the first forty (40) days – and the part
To be entitled to either two remedies, the of the property of which he is deprived (Id.).
following must concur:
a. Lessee must be a considered a builder in If less than forty (40) days - the lessee cannot
good faith (Florentino v. Supervalue, Inc., ask for reduction of the price in the absence of a
G.R. No. 172384, September 12, 2007); provision in the contract giving him such right or
for rescission (Id.).
NOTE: The improvements can be
considered made in good faith if they are not When Rescission may be availed of
in violation of the lease contract (DE LEON, In either case, rescission may be availed of if the
supra at 808). main purpose of the lease is to provide a
dwelling place for the lessee and the property
b. Improvements must be suitable to the use becomes uninhabitable (CIVIL CODE, Art.
for which the lease is intended; and 1662).

c. The form and substance of the property Remedies if the Lessor Fails to Make Urgent
leased should not be altered (Inocencio v. Repairs
Hospicio de San Jose, G.R. No. 201787, The lessee may: (RISA)
September 25, 2013). a. Order Repairs at the lessor’s cost, to avoid
imminent danger;
 b. Indemnification for damages; occupying the same was a trespass in law under
c. Suspend the payment of the rent; or the rules of “belligerent occupation” (Villaruel v.
d. Ask for rescission, in case of substantial Manila Motor Co., G.R. No. 10394, December
damage to him (CIVIL CODE, Art. 1663). 13, 1958).

If the lessor refuses to make urgent repairs A lessor is not responsible for the lessee’s
despite notice, the remedy of the lessee is to eviction through condemnation proceedings and
make urgent repairs themselves and to charge cannot be held liable for damages therefor. The
the cost to the lessor and not to suspend lessee must look to the expropriating plaintiff for
payment of rentals (Banzon v. Ubay, G.R. No. L- his compensation (Sayo v. Manila Railroad Co.,
46464, November 21, 1979). G.R. No. L-17357, June 21, 1922).
The obligation to maintain the lessee in the
TWO KINDS OF TRESPASS IN LEASE peaceful and adequate enjoyment of the leased
property seeks to protect the lessee not only
1. Trespass in Fact (perturbacion de mero
from the acts of third persons but also from the
hecho) acts of the lessor (Bercero v. Capitol
A physical disturbance on the property leased Development Corp., G.R. No. 154765, March
such as an intrusion without any legal claim to 29, 2007).
justify entry into the property (CIVIL CODE, Art.
1664). PRESUMPTION OF RECEIPT OF THING
Illustration: Forcible entry LEASED IN GOOD CONDITION (CIVIL
CODE, Art. 1666)
Liability of lessor: Lessor will not be held liable. In the absence of a statement (or representation),
written or oral concerning the condition of the thing
REASON: The duty to maintain the lessee in the at the time the lease was constituted, the law
peaceful enjoyment of the lease is a warranty presumes that the lessee received it in good
that the lessee shall not be disturbed in his legal, condition, unless there is a proof to the contrary.
and not physical, possession (Bercero v. Capitol
Development Corp., G.R. No. 154765, March
29, 2007).
OBLIGATIONS OF
The lessee is authorized by law to pursue a
direct action against the usurper or intruder LESSEE
(CIVIL CODE, Art. 1664).

2. Trespass in Law (perturbacion de

derecho) OBLIGATIONS OF THE LESSEE:
A third person claims legal right to enjoy the (PUT-EN2R)
premises. 1. To Pay the price of the lease according to the
terms stipulated (CIVIL CODE, Art. 1657 par. 1).
Liability of lessor: The lessor will be held liable
to the lessee. The lessor may maintain an action The lessee is obliged to pay rentals during the
to recover title (accion reinvindicatoria), or to pendency of the action for rescission of the lease
establish his better right of possession (accion (M & M Management Aids, Inc. v. CA, G.R. No.
publiciana) (DE LEON, supra at 773). L-53924, June 29, 1984).

NOTE: In the Goldstein case, trespass in fact is Proper rate for back rentals is 6% (BSP Cir. No.
distinguished from legal transfer. If the trespass 799, S. 2013) per annum computed from the
is not accompanied or preceded by anything time of demand. Back rentals are equivalent to
which reveals a juridical intention on the part of a loan or forbearance of money (Castro v.
the trespasser, in such wise that the lessee can Palenzuela, G.R. No. 184698, January 21,
only distinguish the material fact, stripped of all 2013).
legal forms or reasons, it is only trespass in fact
(de mero hecho) (Nakpil v. Manila Towers The lessor has not only the right to terminate the
lease upon the expiration of the term but also to
Development Corp., G.R. No. 160867,
increase the rent in case of renewal. The lessee
September 26, 2006).
has an option to accept the new rate or vacate
the premises; otherwise, he will be considered a
The act of the Japanese armed forces in evicting possessor in bad faith of the property (De Leon
the lessee from the leased premises and
 Vda. de Roxas v. CA, G.R. No. L-39146, March Notification is not essential if the lessor actually
25, 1975). knows the need for the repairs (Johnson Picket
Rope Co. v. Grey, CA, 40 O.G. (Supp. 11) 239).
2. To Use the thing leased as a diligent father of a
family would, devoting it to the use stipulated; 7. To Return the property leased upon termination
and in the absence thereof, to that inferred from of the lease in the same condition as he received
the nature of the thing leased according to the it save what has been lost or impaired by:
custom of the place (CIVIL CODE, Art. 1657, a. Lapse of time;
(2)). b. Ordinary wear and tear; or
c. Inevitable cause/fortuitous event (CIVIL
The lessee is liable for any deterioration caused CODE, Art. 1665).
by members of his household, guests and
visitors (CIVIL CODE, Art. 1668). NOTE: If the lessee fails to comply with (5) and (6),
he would be liable for damages which the lessor
Basis: He is made legally responsible for their would suffer and which could have been avoided by
acts as in quasi-delicts (CIVIL CODE, Arts. 2176 the lessee's diligence (CIVIL CODE, Art. 1663, par.
and 2180) under the principle of command 3).
responsibility. The law makes no distinction
between intentional or negligent acts of third RESPONSIBILITY OF THE LESSEE FOR
persons. The lessee may recover from the third
DETERIORATION OR LOSS OF THING
persons what he has paid in satisfaction of the
claim of the lessor (DE LEON, supra at 777). LEASED (CIVIL CODE, 1667)
The lessee is responsible for the deterioration or loss
3. To Tolerate urgent repairs even if annoying to of the thing leased, unless he proves that it took
him and although during the same, he may be place without his fault. This burden of proof on the
deprived of part of the premises (CIVIL CODE, lessee does not apply when the destruction is due to
Art. 1662, par. 1) unless the dwelling becomes earthquake, flood, storm, or other natural calamity.
uninhabitable (CIVIL CODE, Art. 1662, par. 3).

4. To pay Expenses for the deed of lease (CIVIL

CODE, Art. 1657, par. 2). REMEDIES
NOTE: By agreement, the obligation may be
assumed by the lessor (DE LEON, supra at
760). ALTERNATIVE REMEDIES OF
5. To Notify the lessor of usurpation or untoward
AGGRIEVED PARTY
acts which any third person may have If the lessor or the lessee should not comply with the
committed or may be openly preparing to carry obligations set forth in Article 1654 and 1657, the
out upon the leased thing (CIVIL CODE, Art. aggrieved party ask for:
1663). 1. Rescission and damages (CIVIL CODE, Art.
1659);
REASONS:
a. So that the lessor may bring proper action NOTE: The lessor may directly file an action for
against the usurper (Simpao v. Dizon, G.R. ejectment against the lessee instead of
No. 452, April 30, 1902). rescinding the contract (Pamintuan v. Tiglao,
b. It is unjust to compel the lessor to stand idly G.R. No. L-29292, March 13, 1929).
and trust the defense of his property to a
mere lessee (Roxas v. Mijares, G.R. No. The court cannot apply Article 1191 par. 3 to
3823, November 23, 1907). grant additional time for the performance of the
obligation if the aggrieved party avails the option
6. To Notify the lessor of need for repairs (CIVIL of rescission in Article 1659 (DE LEON, supra at
CODE, Art. 1663, par. 2). 762).

REASON: Because the lessee is in possession A lessee cannot take advantage of his own
and the lessor has no duty to make constant wrongdoing to rescind the lease. He cannot
inspection (Gregorio Araneta Inc. v. Lyric Film refuse to pay the rent and then declare the lease
Exchange Inc., G.R. 37730, November 14, rescinded. Rescission is a remedy granted only
1933). to the injured part and cannot be availed of by
 the wrongdoer (Fernandez Hermanos v. Pitt, contract of lease as a matter of right
G.R. No. L-11068, March 29, 1916). notwithstanding the fact that lessor is not guilty
of breach or negligence.
2. Damages only, allowing the contract to remain
in force – Specific Performance (CIVIL CODE, 3. Terminate the lease in case a dwelling place or
Art. 1659); any other building intended for human habitation
that its use brings imminent and serious danger
NOTE: Damages recoverable in ejectment to life and health (CIVIL CODE, Art. 1660); or
cases are the rents or the fair rental value of the
premises and liquidated damages if agreed Immediate Termination of Lease with Notice
upon by the parties (DE LEON, supra at 762). under Art. 1660 of the Civil Code Applies:
a. Only to dwelling place or any other building
The following cannot be successfully intended for human habitation; and
claimed: b. Even if at the time the contract was
a. Profits plaintiff could have earned were it not perfected, the lessee knew of the dangerous
for the forcible entry or unlawful detainer; condition or waived the right to rescind on
b. Material injury to the premises; and account of such condition.
c. Actual, moral, or exemplary damages
(Baens v. CA, G.R. No. L-57091, November The rule can apply to commercial buildings
23, 1983). where workers perform their jobs (PINEDA,
d. Future rents where the termination of the Sales, supra at 483).
lease abrogated liability for future rents
(Rios v. Jacinto, Palma y Hermanos, G.R. REASON: The right of the lessee is a precaution
No. L-23893, March 23, 1926). for public safety which is above any stipulation.
(Report of the Code Commission, p. 142). It
OTHER REMEDIES OF THE LESSOR cannot be waived (CIVIL CODE, Art. 6).
1. May hold the sublessee bound for all acts which
refer to the use and preservation of the things 4. Suspension of the payment of rent (CIVIL
leased (CIVIL CODE, Art. 1651); CODE, Art. 1658).
2. May hold the sublessee subsidiarily liable for
any rent due from the lessee (CIVIL CODE, Art. NOTE: However, in the Banzon case, the SC
1652); or ruled that the remedy is not to suspend payment
3. Ejectment (CIVIL CODE, Art. 1673 (1), (2), (3) but to make the urgent repair and charge cost
& (4)). thereof against the lessor (G.R. No. L-46464,
November 21, 1979).
REMEDIES OF THE LESSEE:
INSTANCES WHEN THE LESSEE MAY
1. Extinguishment of the lease in case of total
destruction of the thing leased caused by SUSPEND THE PAYMENT OF RENT:
fortuitous event (CIVIL CODE, Art. 1655); 1. Lessor fails to make the necessary repairs; or

Where the buildings and the land, which formed In case the lessee makes the repairs, he cannot
part of the consideration of the lease contract, suspend the payment of rent as a matter of right.
constituted an indivisible unit, the destruction of The remedy is legal compensation. He still
the building extinguished the obligation or needs to pay the rent but it will be compensated
terminated the lease contract (Rohde Shotwell by the amount he spent for the repairs.
v. Manila Motors Co., Inc., G.R. No. L-7637,
December 29, 1956). 2. Lessor fails to maintain the lessee in peaceful
and adequate enjoyment of the property leased
2. Proportional reduction of the rent or rescission in (CIVIL CODE, Art. 1658).
case of partial destruction of the thing leased
caused by fortuitous event (CIVIL CODE, Art. NOTE: “Suspend”– for the intervening period,
1655); the lessee does not have to pay the rent unless
the lessor can prove that the suspension was not
Once the choice of the lessee has been legally justifiable (DE LEON, supra at 761).
communicated to the lessor, the former cannot
change it (CIVIL CODE, Art. 1201). Article 1658 of the Civil Code allows a lessee to
postpone the payment of rent if the lessor fails
NOTE: Art. 1655 of the Civil Code provides for to either (1) "make the necessary repairs" on the
an instance where the lessee may rescind the property or (2) "maintain the lessee in peaceful
and adequate enjoyment of the property
 leased." This provision implements the If from the circumstances it can be inferred that a
obligation imposed on lessors under Article period was intended, the court may fix the duration
1654 (3) of the Civil Code. The failure to thereof under Article 1197 of the Civil Code.
maintain the lessee in the peaceful and
adequate enjoyment of the property leased does A lease of things during the lifetime of one of the
not contemplate all acts of disturbance. Lessees parties, as the lessor or lessee may please, is one
may suspend the payment of rent under Article for life, ending upon the death of either party
1658 of the Civil Code only if their legal (Eleizegui v. The Manila Lawn Tennis Club, G.R. No.
possession is disrupted. The duty 'to maintain 967, May 19, 1903).
the lessee in the peaceful and adequate A month-to-month lease is for a definite period.
enjoyment of the lease for the duration of the Where the parties agreed that upon the thirty (30)
contract' mentioned in [N]o. 3 of [Article 1654] is day notice, either party may terminate the
merely a warranty that the lessee shall not be agreement, the lease is for a definite period (Rantael
disturbed in his legal, and not physical, v. CA, G.R. No. L-47519, April 30, 1980).
possession." (Racelis v. Spouses Javier, G.R.
No. 189609, January 29, 2018). When the action is to terminate the lease, notice or
demand to vacate is not necessary. Demand is only
EFFECTIVITY OF THE SUSPENSION a prerequisite to an action for unlawful detainer when
The right begins: the action is for failure to pay rent due, or to comply
1. In the case of repairs, from the time demand is with the conditions of the lease (Co Tiamco v. Diaz,
made upon the lessor and the latter fails to G.R. No. L-7, January 22, 1946). Thus, the absence
perform his obligation; of demand does not change the fact that the lease
2. In the case of eviction, from the time he is contract has ended upon the termination of the
unlawfully dispossessed (DE LEON, supra at period fixed for its existence.
761).
IF THERE IS NO FIXED PERIOD
DURATION OF THE LEASE (INDEFINITE):
The period may be definite or indefinite but, in any 1. For rural lands
case, the period is only temporary, not perpetual. If a. It shall be for all the time necessary for the
there is a determinate time or period fixed (definite), gathering of fruits which the whole estate
the lease will be for the said period and ends on the may yield in one (1) year; or
day fixed without the need of demand (CIVIL CODE, b. Which it may yield once although two or
Art. 1669). more years have elapsed (CIVIL CODE, Art.
1682).
Ninety-nine (99) year Limitation
The longest period that can be stipulated is only 2. For urban lands
ninety-nine (99) years. a. If rent is paid daily, lease is from day to day;
b. If rent is paid weekly, lease is from week to
If period is more than ninety-nine (99) years, the week;
lease is considered as having expired at the end of c. If rent is paid monthly, lease is from month
99 years. The excess is considered to be an to month; or
indefinite period should an implied new lease arise. d. If rent is paid yearly, lease is from year to
year (CIVIL CODE, Art. 1687).
PURELY POTESTATIVE CONDITION
NOTE: Article 1687 does not apply where there
As a rule, a lease contract providing that the lessee
is a fixed period, whether such period is definite
can stay in the premises for as long as he wants and
or indefinite (DE LEON, supra at 820).
for as long as he can pay the rentals and its
a. A lease contract on a month-to-month basis
increases are not permissible as it is a purely
(Junson v. Martinez, G.R. No.141324, July
potestative condition, leaving the effectivity and
8, 2003);
enjoyment of leasehold rights to the sole and
b. A lease stipulating that the lessee will vacate
exclusive will of the lessee. However, the SC upheld
as soon as the lessor needed the premises
that a lease contract, which provides that “the lease
(Lim v. Legarda Vda. de Prieto, G.R. No.
contract shall continue for an indefinite period
9189, March 30, 1957);
provided that the lessee is up-to-date in the payment
c. A lease contract with a period subject to a
of his monthly rentals” for the contract is one with a
resolutory condition (Jespajo Realty v. CA,
period subject to a resolutory condition (Jespajo
G.R. No. 113626, September 27, 2002).
Realty v. CA, G.R. No. 113626, September 27,
2002).
NOTE: In all cases, whether for definite or indefinite
period (except for the last paragraph mentioned in
number 1 above), the lease is not terminated by courts to establish a grace period is potestative
reason of the death of either the lessor or lessee or discretionary, depending on the particular
(Inocencion v. Hospicio de San Jose, G.R. No. circumstances of the case (Malayan Realty, Inc.
201787, September 25, 2013). v. Uy Han Yong, G.R. No. 163763, November
10, 2006).
BASIS: Relativity of contracts
10. A verbal agreement to extend the lease is
RULES ON EXTENSION OF THE LEASE admissible to qualify the terms of a written
PERIOD: contract (Florentino v. Supervalue Inc., G.R. No.
172384, September 12, 2007).
1. If a lease contract for a definite term allows
lessee to extend the term, there is no necessity 11. The extension granted shall be commensurate
for lessee to notify lessor of his desire to extend with the period of occupation (Araneta v. De
the term, unless the contrary is stipulated Mesa, G.R. No. L-21972, September 30, 1970).
(Cosmopolitan Ballet and Dance School, et. al.
v. Teodoro, G.R. Nos. L-7838, November 10, NOTE: The lessor has the right to increase rent for
1942). each period subject to existing laws in the same way
that the lessee has all the right to refuse to
2. “May be extended” as stipulation acquiesce. Upon such refusal, the contract of lease
– Lessee can extend without lessor’s consent between the parties is deemed terminated (Chua v.
but lessee must notify lessor (Koh v. Ongsiako, Victorino, G.R. No. 155768, May 18, 2004).
G.R. No. 11106, January 27, 1917).

3. “May be extended for six (6) years agreed upon RULE IF THE LESSOR OBJECTS TO THE
by both parties” as stipulation LESSEE’S CONTINUED POSSESSION
– This must be interpreted in favor of the lessee. Requisites:
Hence, ordinarily the lessee at the end of the 1. Contract has expired;
original period may either: 2. Lessee continues enjoying the thing; and
a. Leave the premises; or 3. Lessor objected to this enjoyment (CIVIL CODE,
b. Remain in possession (Cruz v. Alberto, G.R. Art. 1671).
No. 13791, August 7, 1919).
NOTE: If the three requisites are present, the lessee
4. In co-ownership, assent of all is needed, shall be considered a possessor in bad faith (CIVIL
otherwise it is void or ineffective against non- CODE, Art. 1671).
consenting owners (Leonzon v. Limlingan, et al,
G.R. No. L-9552, September 30, 1957). REMEDY OF THE LESSOR
Bring an action of unlawful detainer to recover
5. Where according to the terms of the contract, the possession of the premises and the rents or fair
lease can be extended only by the written rental value of the property (DE LEON, supra at
consent of the parties, no right of extension can 670).
arise without such written consent (Teodoro v.
Mirasol, G.R. No. L-8934, May 18, 1956). NOTE: Profits, which the plaintiff might have
received were it not for the forcible entry or unlawful
6. If the option is given to the lessor, the lessee detainer, are not covered for it does not represent
cannot renew the lease against the former's “fair value” (DE LEON, supra at 789).
refusal. The lease is deemed terminated (DE
LEON, supra at 661).
IMPLIED NEW LEASE (TACITA
7. Where a lessee is given the option to continue RECONDUCCION)
or renew the contract of lease and is silent upon Arises if at the end of the contract, the lessee should
the rentals, the old terms are to be followed in continue enjoying the thing leased for at least fifteen
the renewed lease (Gustilo v. CA, G.R. No. L- (15) days with the acquiescence of the lessor, unless
61083, February 28, 1983). a notice to the contrary had previously been given by
either party (5 PARAS, supra at 393).
8. The lessor may impose additional conditions
after the expiration of the original period. Requisites:
1. The term of the original contract has expired;
9. Article 1687 par. 2 of the Civil Code provides 2. The lessor or lessee has not previously given a
that in the event that the lessee has occupied notice to vacate; and
the leased premises for over a year, courts may 3. The lessee continued enjoying the thing leased
fix a longer term of lease. The power of the for at least fifteen (15) days at the end of the
 contract with the acquiescence of the lessor PURCHASE OF THE LEASED
(CIVIL CODE, Art. 1670). PROPERTY (CIVIL CODE, Art. 1676)
NOTE: The notice required is the one given after the GENERAL RULE: Purchaser of thing leased can
expiration of the lease period for the purpose of terminate lease (CIVIL CODE, Art. 1676, par. 1).
aborting an implied renewal of lease (Tagbilaran
Integrated Settlers Assoc v. CA, G.R. No. 148562, EXCEPTIONS:
November 25, 2004). 1. Lease is recorded in Registry of Property;

A lessor who gives notice after the 15-day period has REASON: An unrecorded lease is terminable at
no cause of action for unlawful detainer as there is the will of the new owner who is an innocent
already an implied new lease (DE LEON, supra at purchaser for value.
787).
2. There is a stipulation in the contract of sale that
Instances when there is NO Implied New Lease: purchaser shall respect the lease until
1. When before or after the expiration of the term, termination of its period;
there is a notice to vacate given by either party 3. Purchaser has actual knowledge of the
(CIVIL CODE, Art. 1670); existence of the lease;
2. When there is no definite or fixed period in the
original lease contract as in the case of REASON: Such is equivalent to registration
successive renewals of the lease under Art.
1687 of the Civil Code; 4. Sale is fictitious; there is a disputable
3. There is a stipulation against renewal (Agalo-os presumption that it is fictitious if the sale is not
v. IAC, G.R. No. L-67220, May 7, 1987); registered (CIVIL CODE, Art. 1676, par. 3);
4. Invalidity of original lease (Estate of Santos v. 5. Sale is made with right of repurchase (CIVIL
De Veyra, G.R. No. L-30027, July 31, 1969); CODE, Art. 1677).
5. Acceptance of rentals beyond original term (DE
LEON, supra at 669); NOTE: The buyer may make use of the power to
6. Acceptance of rentals less than amounts oust the lessee if any of the grounds for ejectment
stipulated (DE LEON, supra at 788); and under Article 1673 is present. (DE LEON, supra at
7. Non-payment of rentals (Rivera v. Roman, G.R. 805)
No. 142402, September 20, 2005).
GROUNDS FOR JUDICIAL EJECTMENT
Effects: UNDER ART. 1673 OF THE CIVIL CODE:
1. The period of the new lease is not that stated in (ENVI)
the original contract but the time established in 1. Expiration of the period agreed upon or the
Articles 1682 and 1687 of the Civil Code (CIVIL period under Arts. 1682 and 1687 of the Civil
CODE, Art. 1670); Code;
2. Accessory obligations contracted by a third 2. Non-payment of the rentals agreed upon;
person are extinguished (CIVIL CODE, Art. 3. Violation of any of the conditions agreed upon in
1672); and the contract; and
4. Improper use or enjoyment by the lessee of the
NOTE: The renewal of the lease is, in effect, a thing leased.
novation of the original contract of lease (CIVIL
CODE, Art. 1291). NOTE: In all cases except number 1, for the case of
unlawful detainer to prosper, a demand to pay and
3. Other terms of the original contract are revived vacate should be given to the lessee (Racaza v.
(CIVIL CODE, Art. 1670). Gozum, G.R. No. 148759, June 8, 2006).
NOTE: Terms that are revived are only those An alternative notice to pay an increased rental or
which are germane to the enjoyment of vacate the premises is not the demand
possession (e.g. amount of rent, date of contemplated by the Rules of Court in unlawful
payment, care of the property, etc.), but not detainer cases. Hence, if the lessee elects to stay,
those with respect to special agreements which he merely assumes the new rental and until he
are by nature foreign to the right of occupancy defaults in said obligation, he cannot be ejected
or enjoyment inherent in a contract of lease – (Vda. De Murga v. Chan, G.R. No. L-24680, October
such as an option to purchase the leased 7, 1968).
premises (Dizon v. Magsaysay. G.R. No. L-
23399, May 31, 1974). A notice or demand to vacate does not have to
expressly use the word “vacate” as it suffices that the
demand letter puts the lessee or occupant on notice Question: Upon the termination of the lease, the
that if he does not pay the rentals or comply with the lessee claims reimbursement for the improvements
terms of the lease contract, he should move out of introduced on the property alleging that they were
the leased premises (Irao v. By the Bay, Inc., G.R. made in good faith. Will the claim prosper?
No. 177120, July 14, 2008).
Suggested Answer: No. To be entitled to
The ejectment of tenants of agricultural lands is reimbursement for improvements introduced on the
governed by special laws (CIVIL CODE, Art 1673). property of another, he must be a builder in good
faith. A builder in good faith is one who is unaware
For a tenancy relationship to exist between the of any flaw on his title. A lessee cannot claim to be
parties, the following elements must concur: (a) the a builder in good faith because he knows that his
parties are the landowner and the tenant; (b) the occupation would continue only for the life of the
subject matter is an agricultural land; (c) there is lease (Josefa v. Buenaventura, G.R. No. 163429,
consent between the parties; (d) the purpose is March 3, 2006).
agricultural production; (e) there is personal
cultivation by the tenant; and (f) there is sharing of
the harvests between the parties (Quintos v.
Department Of Agrarian Reform Adjudication Board SUBDIVISION AND
and Kanlurang Mindoro Farmer’s Cooperative, Inc.,
G.R. No. 185838, February 10, 2014). CONDOMINIUM BUYERS
PROTECTIVE DECREE
PRELIMINARY MANDATORY
INJUNCTION TO RESTORE (P.D. NO. 957)
POSSESSION
In ejectment cases where an appeal is taken, the Date Approved: July 12, 1986
lessor is entitled to a writ of preliminary injunction to
restore him in his possession in case the higher
court is satisfied that the lessee’s appeal is frivolous PURPOSE
or dilatory (i.e. without merit) or the lessor’s appeal
To afford its inhabitants the requirements of a decent
is prima facie meritorious. The period of ten (10)
human settlement and to provide them with ample
days shall be counted from the time the appeal is
opportunities for improving their quality of life (DE
perfected (CIVIL CODE, Art. 1674).
LEON, supra at 531).
REASON: To put an end to the then state of the law
which unjustly allowed the lessee to continue in NATIONAL HOUSING AUTHORITY
possession during an appeal to the higher court It shall have exclusive jurisdiction to regulate real
(Report of the Code Commission, supra at 143). estate trade and business in accordance with the
provisions of this decree (hereinafter referred to as
GROUNDS FOR THE TERMINATION OF “the authority”) (P.D. 957, Sec. 3).
THE LEASE: NOTE: Under E.O. 648 of 1981, the implementation
1. By the expiration of the period (CIVIL CODE, Art. of P.D. 957 was transferred from the National
1673, par. 1); Housing Authority (NHA) to the Housing and Land
2. When the lessor has no right to enter into a lease Use Regulatory Board (HLURB).
contract (e.g. when the lessor is not the owner
or has no authority or right to lease the property) REGISTRATION OF PROJECTS
(Ballesteros v. Abion, G.R. No. 143361,
February 9, 2006); The registered owner of a parcel of land who wishes
3. By the will of the purchaser or transferee of the to convert the same into a subdivision project shall
thing (CIVIL CODE, Art. 1676, par. 1); submit his subdivision plan to the Housing and
4. By total loss of the thing (CIVIL CODE, Art. Land Use Regulatory Board, which shall act upon
1655); and approve the same, upon a finding that the plan
5. By rescission due to non-performance of the complies with the Subdivision Standards and
obligation of one of the parties set forth in Arts. Regulations enforceable at the time the plan is
1654 and 1657 of the Civil Code (CIVIL CODE, submitted. The same procedure shall be followed in
Art. 1659); or the case of a plan for a condominium project except
6. In case the dwelling place or any other building that, in addition, said Authority shall act upon and
is unfit for human habitation and is dangerous to approve the plan with respect to the building or
life or health (CIVIL CODE, Art. 1660). buildings included in the condominium project in
accordance with the National Building Code (P.D. or has become misleading, incorrect, inadequate or
957, Sec. 4). incomplete or the sale or offering for a sale of the
subdivision or condominium project may work or
The subdivision plan, as so approved, shall then be tend to work a fraud upon prospective buyers.
submitted to the Director of Lands for approval in
accordance with the procedure prescribed in Section The suspension order may be lifted if, after notice
44 of the Land Registration Act (Act 496, as and hearing, the Authority is convinced that the
amended by R.A. 440): Provided, that in case of registration statement is accurate or that any
complex subdivision plans, court approval shall no deficiency therein has been corrected or
longer be required. The condominium plan as supplemented or that the sale to the public of the
approved shall be submitted to the Register of subdivision or condominium project will neither be
Deeds of the province or city in which the property fraudulent not result in fraud. It shall also be lifted
lies and shall be acted upon subject to the conditions upon dismissal of the complaint for lack of legal
and in accordance with the procedure prescribed in basis (P.D. 957, Sec. 8).
Section 4 of the Condominium Act (R.A. 4726).
GROUNDS FOR THE REVOCATION OF
LICENSE TO SELL REGISTRATION OF THE CERTIFICATE
Such owner or dealer to whom a registration AND LICENSE TO SELL OF OWNERS OR
certificate has been issued shall not be authorized to DEALERS: (Not-Mi-VIBE)
sell any subdivision lot or condominium unit in the
registered project unless he has obtained a license 1. Does Not conduct his business in accordance
to sell the project within two weeks from the with law or sound business principles; or
registration of such project (P.D. 957, Sec. 5). 2. Has made any Misrepresentation in any
prospectus, brochure, circular or other literature
about the subdivision project or condominium
PERFORMANCE BOND project that has been distributed to prospective
No license to sell subdivision lots or condominium buyers; or
units shall be issued by the NHA unless the owner 3. Has Violated any of the provisions of this Decree
or dealer shall have filed an adequate performance or any applicable rule or regulation of the
bond approved by said Authority to guarantee the Authority, or any undertaking of his/its
construction and maintenance of the roads, gutters, performance bond; or
drainage, sewerage, water system, lighting systems, 4. If Insolvent; or
and full development of the subdivision project or the 5. Is of Bad business repute; or
condominium project, and the compliance by the 6. Has been or is Engaged or is about to engage in
owner or dealer with the applicable laws and rules fraudulent transactions (P.D. 957, Sec. 9).
and regulations (P.D. No. 957, Sec. 6).
REGISTERS OF SUBDIVISION LOTS
EXEMPT TRANSACTIONS AND CONDOMINIUM UNITS
A license to sell and performance bond shall not be A record of subdivision lots and condominium units
required in any of the following transactions: shall be kept in the authority, wherein all orders of
1. Sale of a subdivision lot resulting from the the authority shall be entered. The registers shall be
partition of land among co-owners and co-heirs. open for public inspection within reasonable hours
2. Sale or transfer of a subdivision lot by the as promulgated by the authority (P.D. 957, Sec. 10).
original purchaser thereof and any subsequent
sale of the same lot.
3. Sale of a subdivision lot or a condominium unit REGISTRATION OF DEALERS,
by or for the account of a mortgagee in the BROKERS, AND SALESMEN
ordinary course of business when necessary to No real estate dealer, broker or salesman shall
liquidate a bona fide debt (P.D. 957, Sec. 7). engage in the business of selling subdivision lots or
condominium units unless he has registered himself
SUSPENSION OF LICENSE TO SELL with the Authority in accordance with the provisions
Upon verified complaint by a buyer of a subdivision of this section (P.D. 957, Sec. 11).
lot or a condominium unit in any interested party, the
Authority may, in its discretion, immediately suspend GROUNDS FOR THE REVOCATION OF
the owner's or dealer's license to sell pending REGISTRATION AS DEALERS,
investigation and hearing of the case. BROKERS OR SALESMEN: (V-Ma-FUCh)
1. Has Violated any provision of this Decree or any
The Authority may motu proprio suspend the license rule or regulation made hereunder; or
to sell if, in its opinion, any information in the
registration statement filed by the owner or dealer is
2. Has Made a material false statement in his
application for registration; or RENT CONTROL ACT
3. Has been guilty of a Fraudulent act in connection
with any sale of a subdivision lot or condominium (R.A. NO. 9653)
unit; or
4. Has demonstrated his Unworthiness to transact
the business of dealer, broker, or salesman, as Date approved: July 14, 2009
the case may be.
5. In case of Charges against a salesman, notice
thereof shall also be given the broker or dealer PURPOSE: To encourage the development of
employing such salesman (P.D. 957, Sec. 12). affordable housing for the lower income brackets
and other beneficiaries and to protect them from
Pending hearing of the case, the Authority shall have unreasonable rent increases (R.A. 9653, Sec. 2).
the power to order the suspension of the dealer's,
broker's, of salesman's registration; provided, that Coverage:
such order shall state the cause for the suspension 1. All residential units in the National Capital
(P.D. 957, Sec. 12). Region and other highly urbanized cities, the
total monthly rent for each of which ranges from
one peso (P1.00) to ten thousand pesos
(P10,000.00).
THE CONDOMINIUM 2. All residential units in all other areas the total
monthly rent for each of which ranges from one
ACT peso (P1.00) to five thousand pesos (5,000.00).
EXCEPT: Already existing contracts (R.A. 9653,
(R.A. NO. 4726) Sec. 5).

EXCEPTION: Rent-to-Own Scheme –at the option

Date Approved: June 18, 1966 of the lessor, he or she may engage the lessee in a
written rent-to-own agreement that will result in the
(See discussion under Property). transfer of ownership of the particular dwelling in
favor of the latter (R.A. 9653, Sec. 11).
NOTE: Any transfer or conveyance of a unit or an
apartment, office or store or other space therein, LIMIT ON INCREASE IN RENT
shall include the transfer or conveyance of the For a period of one (1) year from effectivity, no
undivided interests in the common areas or, in a increase shall be imposed on the rent of any
proper case, the membership or shareholdings in the residential unit covered by this Act.
condominium corporation: Provided, however, That
where the common areas in the condominium After such period until December 31, 2013, the rent
project are owned by the owners of separate shall not be increased by more than seven percent
units as co-owners thereof, no condominium (7%) annually as long as the unit is occupied by the
unit therein shall be conveyed or transferred to same lessee.
persons other than Filipino citizens, or
corporations at least sixty percent of the capital When the residential unit becomes vacant, the
stock of which belong to Filipino citizens, except lessor may set the initial rent for the next lessee.
in cases of hereditary succession. Where the
common areas in a condominium project are held by In case of boarding houses, dormitories, rooms, and
a corporation, no transfer or conveyance of a unit bed spaces offered to students, no increase in rental
shall be valid if the concomitant transfer of the more than once per year shall be allowed (R.A.
appurtenant membership or stockholding in the 9653, Sec. 4).
corporation will cause the alien interest in such
corporation to exceed the limits imposed by existing Notwithstanding the lapse of the period, the Housing
laws (R.A. 4726, Sec. 5). and Urban Development Coordinating Council
(HUDCC) is granted the authority to continue the
regulation of rental of certain residential units, to
determine the period of regulation and its
subsequent extensions if warranted (R.A. 9653, Sec
6).
DEFINITION OF TERMS (R.A. 9653, Sec. 3) In the event that the lessee fails to:
Rent 1. Settle rent, electric, telephone, or other utility
Is the amount paid for the use or occupancy of a bills; or
residential unit whether payment is made on a 2. Destroys any house components or
monthly or other basis. accessories.

Residential Unit The deposits and interests shall be forfeited in favor

Shall refer to an apartment, house and/or land on of the latter in the amount commensurate to the
which another’s dwelling is located and used for pecuniary damage done by the former (R.A. 9653,
residential purposes and shall include not only Sec. 7).
buildings, part or units thereof used solely as
dwelling places, boarding houses, dormitories, ASSIGNMENT OF LEASE OR
rooms and bed spaces offered for rent by their SUBLEASING
owners, except motels, motel rooms, hotels, hotel Assignment of lease or subleasing of the whole or
rooms but also those used for home industries, retail any portion of the residential unit, including the
stores or other business purposes if the owner acceptance of boarders or bed spacers, without the
thereof and his or her family actually live therein and written consent of the owner or lessor is prohibited
use it principally for dwelling purposes. (R.A. 9653, Sec. 8).

Immediate members of family of the lessee or GROUNDS FOR JUDICIAL EJECTMENT:

lessor
For purposes of repossessing the leased premises, (Ex-AURA)
are limited to his or her spouse, direct descendants 1. Expiration of the period of the lease contract;
or ascendants, by consanguinity or affinity. (R.A. 9653, Sec. 9)
2. Assignment of lease or subleasing of residential
Lessee units in whole or in part, including the
Is the person renting a residential unit. acceptance of boarders or bed spacers, without
the written consent of the owner/lessor;
Owner/Lessor 3. Legitimate need of the owner / lessor to
Includes the owner or administrator or agent of the repossess his share or her property for his or her
owner of the residential unit. own Use or for the use of any immediate
member of his family as a residential unit
Sublessor
Is the person who leases or rents out a residential Conditions:
unit leased to him by an owner. a. The lease for a definite period has expired;
b. The lessor has given the lessee formal
Sublessee notice three (3) months in advance of the
Is the person who leases or rents out a residential lessor’s intention to repossess the property;
unit from a sublessor (R.A. 9653, Sec. 3). c. The owner/lessor is prohibited from leasing
the residential unit or allowing its use by a
RENT AND REQUIREMENT OF A BANK third party for a period of at least one (1)
year from the time of repossession
DEPOSIT
Rent shall be paid in advance within the first five (5) 4. Need of the lessor to make necessary Repairs
days of every current month or the beginning of the of the leased premises which is the subject of an
lease agreement unless the contract provides for a existing order of condemnation by appropriate
later date of payment (R.A. 9653, Sec. 7). authorities concerned in order to make the said
premises safe and habitable
LESSOR IS PROHIBITED:
1. To demand more than one (1) month advance Conditions:
rent; and a. After said repair, the lessee ejected shall
2. To demand more than two (2) months deposit, have the first preference to lease the same
which shall be kept in a bank under the lessor’s premises;
account name during the entire duration of the b. The new rent shall be reasonably
lease agreement. commensurate with the expenses incurred
for the repair of the said residential unit;
Any and all interest that shall accrue shall be c. That if the residential unit is condemned or
returned to the lessee at the expiration of the lease completely demolished, the lease of the new
contract. building will no longer be subject to the
aforementioned first preference rule.
5. Arrears in payment of rent for a total of three (3)
months. In case of refusal by the lessor to accept
payment of the rent agreed upon, the lessee
may either deposit, by way of consignation, the
amount in court or with the city or municipal
treasurer, as the case may be, or barangay
chairman, or in a bank in the name of and with
notice to the lessor, within one (1) month after
the refusal of the lessor to accept payment.

Lessee shall thereafter deposit the rent within

ten (10) days of every current month. Failure to
deposit the rent for three months shall constitute
a ground for ejectment.

The lessor, upon authority of the court in case of

consignation or upon joint affidavit by him and
the lessee to be submitted to the city or
municipal treasurer or barangay chairman and
to the bank where deposit was made, shall be
allowed to withdraw the deposits;

PROHIBITION AGAINST EJECTMENT

BY REASON OF SALE OR MORTGAGE
No lessor or his successor in interest shall be
entitled to eject the lessee upon the ground that the
leased premises have been sold or mortgaged to a
third person regardless of whether the lease or
mortgage is registered or not (R.A. 9653, Sec. 10).

APPLICATION OF THE CIVIL CODE AND

RULES OF COURT
Except when the lease is for a definite period, the
provision of paragraph (1) of Article 1673 of the Civil
Code, insofar as they refer to residential units
covered by this Act, shall be suspended during the
effectivity of this Act, but other provisions of the Civil
Code and the Rules of Court on lease contracts,
insofar as they are not in conflict with the provisions
of this Act shall apply (R.A. 9653, Sec. 12).

PENALTIES:
1. A fine not less than P25,000.00 nor more than
P50,000.00;
2. Imprisonment of not less than one month and
one day to not more than six months; or
3. Both (R.A. 9653, Sec. 13).
 DISTINCT CHARACTERISTIC OF A
AGENCY CONTRACT OF AGENCY:
1. Representative Character
– In a contract of agency, the agent acts as a
representative of the principal, and not for
A contract of agency is one whereby a person
himself;
(agent) binds himself to render some service or to do
something in representation or on behalf of another
2. Derivative authority (Id. at 334); and
(principal), with the consent or authority of the latter
(NEW CIVIL CODE, Art. 1868).
3. The agent’s power to bring about business
relations between his principal and third persons
CHARACTERISTICS OF AN AGENCY is the most distinctive mark of the agent, as
CONTRACT: (PF-BORN-CP) contrasted with others who act in representative
1. Preparatory; capacity but are not agents (Id. at 353).
2. Fiduciary;
3. Bilateral (but may be unilateral); PARTIES TO THE CONTRACT OF
4. Onerous (generally); AGENCY:
5. Representative Relation;
6. Nominate; 1. Principal
7. Consensual; and – One whom the agent represents and from
8. Principal (5 PARAS, supra at 770-771). whom he derives authority (DE LEON, supra at
335);

a. He must be capacitated to enter into a

NATURE, FORM, AND contract.
b. He may be a natural or juridical person
KINDS OF AGENCY c. The agent is not liable where he was
ignorant of the principal’s incapacity (DE
ARTS. 1868-1883 LEON, supra at 338-339).

2. Agent
– One who acts for and represents another (Id. at
NATURE OF AN AGENCY 335).
It is both a contract and a representative relation (DE
LEON, Comments and Cases on Partnership, a. Insofar as third person is concerned –
Agency, and Trusts (2019), p.332) [hereinafter DE capacity of the principal is enough (DE
LEON, Partnership, Agency, & Trusts]). LEON, supra at 340)
b. Insofar as the obligations of an agent to
Exception to Contractual Nature his principal is concerned – the agent
Agency may be created by operation of law (DE must be able to bind himself
LEON, supra, at 333). c. Some mental capacity is necessary as
an agent. Therefore, those who are
absolutely incapacitated such as insane

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA R. TAMPUS, Vice
Chairperson for Secretariat | ARVY KEITH N. CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice
Chairperson for Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. THERESA GENEVIEVE NUEVE-CO and Atty. LUIS MANUEL BUGAYONG

 or demented persons cannot become an f. Insofar as his obligations to his principal are
agent (DE LEON, supra at 341). concerned, the agent must be competent to
bind himself. The extent to which an agent is
PURPOSE OF AN AGENCY a fiduciary and is subjected to duties and
To extend the personality of the principal through the liabilities to his principal depends upon his
facility of the agent. It enables the activity of man capacity (Id.).
which is naturally limited in its exercise by the
impositions of his physiological conditions to be g. In an agent-principal relationship, the
legally extended by permitting him to be personality of the principal is extended
constructively present in many different places and to through the facility of the agent. In so doing,
perform diverse juridical acts and carry on many the agent, by legal fiction, becomes the
different activities through another when physical principal, authorized to perform all acts which
presence is impossible or inadvisable at the same the latter would have him do. Such a
time (DE LEON, supra at 334-335). relationship can only be effected with the
consent of the principal, which must not, in
any way, be compelled by law or by any court
ELEMENTS OF AN AGENCY: (COC-RW) (Orient Air Services and Hotel
1. Consent, express or implied Representatives v. Court of Appeals, G.R.
a. Express Nos. 76931 & 76933, May 29, 1991).
A person may express his consent through a
contract either orally or in writing (NEW CIVIL 2. Object
CODE, Art. 1868). – Execution of a juridical act in relation to a third
person;
b. Implied
A person may impliedly express his consent 3. Cause
through his conducts (NEW CIVIL CODE, – May be onerous or gratuitous but presumed for
Art. 1869); or through ratification (NEW CIVIL compensation (NEW CIVIL CODE, Art. 1875);
CODE, Art. 1910).
It is not necessary that there is a consideration
NOTE: Consent may also arise by for the relationship to be created.
presumption or operation of law.

c. For a contract of agency to exist, it is

4. The agent acts as Representative of the
essential that the principal consents that the principal and not for himself;
other party, the agent, shall act on its behalf, The acts of the agent on behalf of the principal,
and the agent consents so as to act. (Apex within the scope of his authority (NEW CIVIL
Mining Co., Inc v. Southeast Mindanao Gold CODE, Art. 1881), produce the same legal and
Mining Corp., G.R. No. 152613, June 23, binding effects as if they were personally done by
2006). the principal.

d. A principal must be capacitated or have a 5. The agent acts Within the scope of his
legal capacity to enter into a contract. The authority (DE LEON, supra at 336).
agent’s capacity is usually immaterial; he The agent must act as a representative and not
does not have to possess full capacity to act for himself, and must act within the scope of his
for himself insofar as third persons are authority (NEW CIVIL CODE, Art. 1881).
concerned (DE LEON, supra at 338-340).
ACTS THAT MAY BE DELEGATED TO AN
Thus, even one under legal disability (e.g., AGENT
minor), whose contracts are not binding upon GENERAL RULE: What a man may do in person, he
him, may act as an agent and bind his may do through another (DE LEON, supra at 342).
principal. But in some instances, additional
qualifications may exist, the lack of which EXCEPTIONS:
may void a relationship (e.g., lawyer to 1. Personal Acts (e.g., right to vote, making of a will)
represent in legal matters) (Id. at 341). 2. Criminal Acts or acts not allowed by law if done
by the principal (e.g., ownership of private
e. Any person or entity having juridical capacity agricultural lands by aliens through an agent,
and capacity to act and not otherwise persons prohibited to acquire a property by
disqualified, may enter into an agency. reason of position or relation to the person cannot
do the same through the mediation of another,
 participation in the commission of a crime) (Id. at (Id. at 367-368).
343).
AGENCY AND LEASE OF SERVICES,
KNOWLEDGE OF AGENT IS IMPUTED TO DISTINGUISHED
PRINCIPAL LEASE OF
GENERAL RULE: The knowledge of the agent is AGENCY
SERVICES
imputed to the principal even though the agent never
communicated such knowledge to the principal (DE As to Basis
LEON, supra at 351).
Principle of
Principle of
NOTE: Knowledge of the principal cannot be imputed representation is
employment is applied.
to his agent (Sunace International Management applied.
Services, Inc. v. NLRC, G.R. No. 161757, January
25, 2006). As to Extinguishment

EXCEPTIONS: (ABC) Extinguished at will of

Concurrence of parties
1. Where the agent’s interest is Adverse to those of the principal or the
is necessary.
the principal; agent.
2. Where the person claiming the Benefit of the rule
colludes with the agent to defraud the principal; As to Exercise of Power
and
Employee exercises
3. Where the agent’s duty is not to disclose the Agent exercises
ministerial functions
information, as where he is informed by way of discretionary power.
only.
Confidential information (DE LEON, supra at
352). As to Kind

SALE Preparatory contract. Principal contract.

By a contract of sale, one of the contracting parties (Id. at 355-356; PARAS, supra at 777).
obligates himself to transfer the ownership of and to
deliver a determinate thing, and the other to pay
therefore a price certain in money or its equivalent AGENCY AND TRUST,
(NEW CIVIL CODE, Art. 1458). DISTINGUISHED
AGENCY TRUST
AGENCY TO SELL AND SALE,
DISTINGUISHED As to basis
AGENCY TO SELL SALE Contract. Contract or law.
As to Ownership As to extinguishment
Agent receives the The buyer receives the May be revoked Is terminated upon the
goods as the goods of goods as owner. anytime. accomplishment of its
the principal. purpose.
As to Payment As to title

Agent delivers the Buyer pays the price. Agent does not hold title Trustee holds title over
proceeds of the sale. over the property the property subject of a
subject of agency. trust agreement.
As to Power to Return
As to representative capacity
Agent can return the The buyer, as a rule,
object in case he is cannot return the object Agent acts in the name The trustee may act on
unable to sell it. sold. of his principal. his own name.

As to Control of the Object of Sale Agent has authority to The trustee does not
represent the principal. have authority to bind
Bound to act according The buyer can deal with the trustor.
to the instructions of his the thing as he pleases
principal. being the owner.
 b. Compensated or onerous (NEW CIVIL
AGENCY TRUST
CODE, Art. 1875).
As to property
3. As to extent of Scope of business
May or may not involve Trust always involves covered
a property. control over property. a. General – comprises all the business of the
(5 PARAS, supra at 780). principal;
b. Special – comprises one or more specific
transactions (NEW CIVIL CODE, Art. 1876).
AGENCY AND GUARDIANSHIP,
DISTINGUISHED 4. As to Authority conferred
AGENCY GUARDIANSHIP a. Couched in general terms - one which is
created in general terms and is deemed to
As to Creation comprise only acts of administration (NEW
CIVIL CODE, Art. 1877);
Founded upon consent Created irrespective of b. Couched in specific terms.
of the parties thereto. the consent or capacity
of the ward. 5. As to its Nature and effects
a. Ostensible / representative - agent acts in the
As to Representation
name and in representation of the principal;
Agent represents a A guardian represents b. Simple / commission - agent acts in his own
person who has the an incapacitated name but for the account of the principal (DE
capacity to contract for person. LEON, supra at 380).
himself.
FORMS OF AGENCY
As to Authority GENERAL RULE: There are no formal requirements
governing the appointment of an agent. It may be oral
Agent derives his Guardian does not or written and may also be in public or private writing
authority from his derive his authority (NEW CIVIL CODE, Art. 1869).
principal. from the ward.
1. Express;
As to Appointment
2. Implied:
Appointment of an agent Guardian is appointed a. From the acts of the principal;
is derived from contract. by the court and b. From his silence or lack of action; to
stands in loco parentis. repudiate the agency knowing that another
Agent’s power may at person is acting on his behalf without
any time be abrogated or Legal guardian may be authority (NEW CIVIL CODE, Art. 1869); and
modified by the principal. substituted by law. c. If the principal delivers his power of attorney
to the agent and the latter receives it without
As to Power of Control any objection (NEW CIVIL CODE, Art. 1871).

Agents are subject to the Not subject to the

control of their principals. direction of their EXCEPTION:
wards. 1. When the law requires a specific form (e.g., sale
of a piece of land or any interest therein thru an
(DE LEON, supra. at 377).
agent), authority of the agent shall be in writing,
otherwise, the sale is void (NEW CIVIL CODE,
KINDS OF AGENCY: (C2SAN) Art. 1874).
1. As to Manner of Creation
a. Express: Is the rule provided in Article 1874 in conflict
i. Oral or Verbal with the rule under Article 1403 no. 2, par. E?
ii. Written – when the law requires a Under Article 1874, the authority of the agent in
specific form (NEW CIVIL CODE, Art. selling a piece of land or any interest therein shall
1869, par. 2). be in writing, otherwise, the sale shall be void.
b. Implied. While Article 1403 provides that the sale of real
property or any interest therein shall be in writing,
2. As to its Character otherwise the sale shall be unenforceable.
a. Gratuitous;
 Thus, Article 1874 provides that the authority of b. When the principal entrusts to him by letter
the agent in selling a piece of land or any interest or telegram a power of attorney with respect
therein shall be in writing. While Article 1403, on to the business in which he is habitually
the other hand, speaks of the transaction itself or engaged as an agent, and he did not reply
the contract instituted by the agent with the third to the letter or telegram (NEW CIVIL CODE,
person on behalf of the principal that should be in Art. 1872).
writing.
DISTINCTIONS BETWEEN ART. 1872
2. When it is required to make the contract effective EXCEPTION A AND B
against third persons (DE LEON, supra at 381).
EXCEPTION A EXCEPTION B
3. When it is required for the purpose of proving the
existence of the contract (Id.). As to Agent

Engaged for the first Habitually engaged.

In an implied agency, the principal is still bound by
time.
the acts of the agent just as in case of express
agency. As to Reply or Objection
NOTE: It is not essential that the agent should be Replies or No reply at all.
appointed directly by the principal, but the acknowledges receipt
appointment may be made through another, as by without any objection.
referring an applicant to another and representing
that he has authority to act, or the relation may arise
out of an agreement to employ the agent of another, DISTINCTIONS BETWEEN ARTICLE
such person then becoming an agent of the first party 1871 AND ARTICLE 1872
(DE LEON, supra at 378).
ARTICLE 1871 ARTICLE 1872
FORMS OF ACCEPTANCE BY AGENT: As to Condition of Creation
Acceptance by the agent may also be express or
implied from his acts which carry out the agency, or When created, both the
When created, both
from his silence or inaction according to the principal and the agent
principal and agent are
circumstances (NEW CIVIL CODE, Art. 1870). are absent.
present
1. Express; and
2. Implied: As to Manner of Delivery
a. From his acts which carry out the agency; or
The power of attorney is The power of attorney
b. From his silence or inaction according to the
personally delivered by is not personally
circumstances (NEW CIVIL CODE, Art.
the principal to the agent delivered. There is
1870).
transmission by
messenger, or by letter
KINDS OF IMPLIED ACCEPTANCE: or telephone.
1. Between persons who are present (NEW
(PINEDA, supra at 263).
CIVIL CODE, Art. 1871);
a. Principal delivers his power of attorney to the
agent; and PRESUMPTION OF AGENCY
b. Agent receives it without any objection. GENERAL RULE: Agency is not presumed

“Present” – meaning “face to face” or conversing with EXCEPTIONS:

each other through mobile cellphone (5 PARAS 1. By operation of law
supra at 787). 2. To prevent unjust enrichment (DE LEON, supra
at 384).
2. Between persons who are absent (NEW
CIVIL CODE, Art. 1872), the acceptance of the POWER OF ATTORNEY
agency cannot be implied from the silence of the It is an instrument in writing by which one person, as
agent, except: principal, appoints another as his agent, and confers
a. When the principal transmits his power of upon him the authority to perform certain specified
attorney to the agent, who receives it acts or kinds of acts in behalf of the principal (DE
without any objection; LEON, supra at 388).
PURPOSE: Not to define the authority of the agent is what he appears to be (Cuison v. Court of Appeals,
but to evidence the authority of the agent to third G.R. No. 88539, October 26, 1993).
parties with whom the agent deals (Id.).
REQUISITES FOR AGENCY BY
Except as may be required by statute, a power of ESTOPPEL: (MARC)
attorney is valid even though no notary public
intervened in its execution (Angeles v. Phil. National 1. The principal Manifested a representation of the
Railways, G.R. No. 150128, August 31, 2006). agent's authority or knowingly allowed the agent
to assume such authority;
2. The third person, in good faith, Relied upon such
EFFECTS OF SPECIAL INFORMATION representation; and
OR PUBLIC ADVERTISEMENT 3. Relying upon such representation, such third
If a person specially informs another or states by person has Changed his position to his detriment.
public advertisement that he has given a power of (Litonjua v. Eternit Corporation, G.R. NO.
attorney to a third person, the latter thereby becomes 144805, June 08, 2006).
a duly authorized agent, in the former case with
respect to the person who received the special ESTOPPEL TO DENY AGENCY:
information, and in the latter case with regard to any
1. Estoppel of agent
person.
– One professing to act as agent may be
estopped to deny agency both against the
The power shall contribute to be in full force until the
asserted principal and third persons.
notice is rescinded in the same manner in which it
was given (NEW CIVIL CODE, Art. 1873).
2. Estoppel of principal
a. As to agent – if he knows that another is
MANNER OF TERMINATION OR acting as his agent and fails to repudiate his
RESCISSION OF AGENCY CREATED acts or accepts the benefits of them.
UNDER ARTICLE 1873 b. As to sub-agent – he must have known or be
The power of attorney created under Art. 1873 shall charged with the knowledge of the fact of
continue to exist and be effective until the notice transaction and terms of agreement between
(information or advertisement) had been rescinded in the agent and sub-agent.
the same manner in which it was given (PINEDA,
supra at 267). 3. Estoppel of third persons
– A third person, having dealt with one as an
If the agency has been entrusted for the purpose of agent may be estopped to deny the agency as
contracting with specified persons, its revocation against the principal, agent, or third persons in
shall not prejudice the latter if they were not given interest. He will not, however, be estopped where
notice thereof (NEW CIVIL CODE, Art. 1921). he has withdrawn from the contract made with
the unauthorized agent before receiving any
If the agent had general powers, revocation of the benefits thereunder.
agency does not prejudice third persons who acted in
good faith and without knowledge of the revocation. 4. Estoppel of the government
Notice of the revocation in a newspaper of general – The government is neither estopped by the
circulation is a sufficient warning to third persons mistake or error on the part of its agents. But it
(NEW CIVIL CODE, Art. 1922). may be estopped through affirmative acts of its
officers acting within the scope of their authority
Revocation made in any manner is effective where (DE LEON, supra at 395).
the person dealing with the agent has actual
knowledge thereof; otherwise, bad faith and fraud AGENCY BY ESTOPPEL AND IMPLIED
would be committed (DE LEON, supra at 393).
AGENCY, DISTINGUISHED
To forestall fraud, a revocation made in any manner AGENCY BY IMPLIED
shall be effective against all persons having actual ESTOPPEL AGENCY
knowledge thereof (5 PARAS, supra at 789).
As to Proof
RULE ON AGENCY BY ESTOPPEL
To be proved from
One who clothes another with apparent authority as Should be restricted to
deductions or
his agent, and holds him out to the public as such, cases where authority is
inferences from other
cannot be permitted to deny the authority of such not real but apparent.
facts.
person in good faith, and in the honest belief that he
 v. Eternit Corporation, G.R. No. 144805, June 8,
As to Reliance by Third Persons
2006).
Reliance by third Reliance is not
persons in good faith is necessary. RULE ON BROKER’S COMMISSION
necessary. GENERAL RULE: A broker is never entitled to
commission for unsuccessful efforts. Even if the
As to Existence of Actual Agency broker is responsible for making the owner and the
possible buyer to meet and discuss the terms, if no
There is no agency at There is actual agency. sale was consummated, he is not entitled to a
all, but the one The Principal alone is commission (DE LEON, supra at 404).
assuming to act as liable.
agent has apparent or EXCEPTION: The broker should be paid his
ostensible, although not commission where he is the efficient procuring cause
real, authority to in bringing the sale (Manotok Brothers v Court of
represent another. Appeals, G.R. No. 94753, April 7, 1993).
As to Nature of Authority
When there is a close, proximate and causal
An apparent agent has Agent has actual connection between the agent's efforts and the sale
none of the rights of an authority to act on of the property, the agents are entitled to their
agent, except where the behalf of the principal. commission (Ticong v. Malim, G.R. No. 220785.
principal’s conduct or March 1, 2017).
representations are
such that the agent LIABILITY OF PRINCIPAL TO PAY
reasonably believed COMPENSATION:
that the principal 1. Amount
intended him to act as – the principal must pay the agent the
agent in the matter. compensation agreed upon, or the reasonable
(DE LEON, supra. at 396-397). value of the agent’s services, if no compensation
was specified (DE LEON, supra at 403).
AGENCY FOR COMPENSATION
GENERAL RULE: Agency is presumed to be for 2. Compliance by agent with his obligations
compensation (NEW CIVIL CODE, Art. 1875). – the liability of the principal to pay commission
presupposes that the agent has complied with his
EXCEPTION: Unless there is proof to the contrary. obligation as such to the principal (Id. at 404).

NOTE: The relation of principal and agent can be 3. Procuring Cause of the transaction
created although the agent receives no Governing Rule: The agent must prove that he
compensation (DE LEON, supra at 403). was the guiding cause or the “procuring cause”
(DE LEON, supra at 405).
GRATUITOUS AGENT
Procuring Cause
A person who agrees to act as an agent without A cause originating a series of events which,
compensation. The promise of a gratuitous agent is without break in their continuity, result in the
ordinarily not enforceable but the fact that he is such accomplishment of the prime objective of the
has no effect upon his rights and duties with employment of the broker – producing a
reference to the principal and third persons. The fact purchaser ready, willing and able to buy on the
that the agency was for compensation or not, shall be owner’s terms (Ticong v. Malim, G.R. No.
considered by the court in determining the extent of 220785. March 1, 2017).
liability of agent for fraud or negligence (Id.).
4. Evasion of commission in bad faith
REAL ESTATE BROKER 5. Compensation contingent on profits
A real estate broker is one who negotiates the sale of 6. Reduction by principal of overprice
real properties. His business, generally speaking, is
7. Termination of agency contract
only to find a purchaser who is willing to buy the land
upon terms fixed by the owner. He has no authority
8. Grant of compensation on equitable
to bind the principal by signing a contract of sale. ground
Indeed, an authority to find a purchaser of real 9. Right of agent’s companion to
property does not include an authority to sell (Litonjua compensation
10. Validity of exclusive sales agency GENERAL AGENT SPECIAL AGENT
agreement (DE LEON, supra at 407-410).
As to Construction of Instructions of Principal
CLASSES AND KINDS OF AGENTS:
Statement of principal Authority of agent must
1. Universal Agent with respect to the be strictly pursued.
– one authorized to do all acts for his principal
agent’s authority would
which can lawfully be delegated to an agent. So
ordinarily be regarded
far as such a condition is possible, such an agent
as advisory only.
may be said to have universal authority.
As to Termination of Authority
2. General Agent
– one authorized to do all acts pertaining to a Apparent authority does Mere revocation is
business of a certain kind or at a particular place, not terminate by the effective to terminate
or all acts pertaining to a business of a particular mere revocation of his the authority as to third
class or series. He usually has authority either authority without notice persons because the
expressly conferred in general terms or in effect to the third party. third person has a duty
made general by the usages, customs or nature to inquire.
of the business which he is authorized to
(DE LEON, supra at 415-418).
transact.

3. Special or Particular Agent AGENCY COUCHED IN GENERAL AND

– one authorized to do some particular act or to SPECIAL TERMS
act upon some particular occasion. He acts According to the power or authority conferred, the
usually in accordance with specific instructions or agency may be:
under limitations necessarily implied from the
nature of the act to be done (Siasat v. IAC, G.R. 1. Couched in general terms; or
No. L-67889, October 10, 1985). An agency couched in general terms comprises
only acts of administration, even, even if the
GENERAL AGENT AND SPECIAL principal should state that he withholds no power
AGENT, DISTINGUISHED or that the agent may execute such acts as he
may consider appropriate, or even though the
GENERAL AGENT SPECIAL AGENT agency should authorize a general and unlimited
management (NEW CIVIL CODE, Art. 1877).
As to Scope of Authority
NOTE: It includes only acts of administration and
Usually authorized to do Authorized to do only
express power is necessary to perform any act of
all acts connected with acts in pursuance of
strict ownership (NEW CIVIL CODE, Art. 1878;
the business or particular instructions or
Yoshizaki v. Joy Training Center of Aurora, Inc.,
employment in which he with restrictions
G.R. No. 174978, July 31, 2013).
is engaged. necessarily implied
from the acts to be
Acts of Administration
done.
Acts of administration are those which do not
As to Extent by Which Agent May Bind imply the authority to alienate (DE LEON, supra
Principal at 419).

Binds his principal by an Cannot bind his The power of administration does not include
act within the scope of principal in a manner acts of disposition or encumbrance, which are
his authority although it beyond or outside the acts of strict ownership. As such, an authority to
may be contrary to his specific acts which he is dispose cannot proceed from an authority to
special instructions. authorized to perform administer, and vice versa, for the two powers
on behalf of the may only be exercised by an agent by following
principal. the provisions on agency of the Civil Code (from
Article 1876 to Article 1878). Specifically, the
As to Continuity apparent authority of Atty. Parulan, being a
special agency, was limited to the sale of the
Conducts a series of Usually involves a property in question, and did not include or
transactions involving a single transaction or a extend to the power to administer the property
continuity of service. series of transactions (Sps. Aggabao v. Parulan, G.R. No. 165803,
not involving continuity. September 01, 2010).
2. Couched in specific terms under special Arbitration
power of attorney (NEW CIVIL CODE, Art. It is where parties submit their controversies to
1878). one or more arbitrators for a decision (DE LEON,
supra at 427).
INSTANCES WHERE SPA IS
NOTE: The absence of an SPA does not mean
NECESSARY (NEW CIVIL CODE, ART. that the compromise agreement is void for it is
1878): (PECWEM-LLB-BOCARO) merely unenforceable (Dungo v. Lopena, G.R.
No. L-18377, December 29, 1962).
1. To make Payments as are not usually
considered as acts of administration; An agent cannot waive: the right to appeal from
Payment is the delivery of money or the a judgment; objections to the venue of an action;
performance in any other manner of an prescription already acquired by the principal
obligation. It is an act of ownership because it (PINEDA, supra at 293).
involves the conveyance of ownership of money
or property (DE LEON, supra at 426). 4. To Waive any obligation gratuitously;
This is condonation or remission (NEW CIVIL
When payment is made in the ordinary course of CODE, Art. 1270). The agent cannot waive a
management, it is an act of administration (Id. at right belonging to the principal without
426). consideration (DE LEON, supra at 428).

NOTE: If the payment is usually considered an Express condonation shall comply with the forms
act of administration, no special power of of donation (NEW CIVIL CODE, Art. 1270). The
attorney is needed. It should be noted, however, waiver is an act of ownership (PINEDA, supra at
that some acts of administration carry with them 294).
the exercise of acts of dominion, e.g., the sale by
an administrator of fertile land or the products of 5. To Enter into any contract by which the
the land (5 PARAS, supra at 800). ownership of an immovable is
transmitted or acquired either
2. To Effect novations which put an end to gratuitously or for a valuable
obligations already in existence at time consideration.
the agency was constituted; The conveyance of an immovable, whether for a
Novation is the extinction of an obligation valuable consideration or gratuitously, is an act
through the creation of a new one which of ownership. Special power of attorney is
substitutes it by changing the object of principal needed to validly effect such conveyances
conditions thereof, substituting a debtor or (PINEDA, supra at 295).
subrogating another in the right of the creditor
(NEW CIVIL CODE, Art. 1291). NOTE: The authority of an agent to execute a
contract of sale of real estate must be conferred
The obligations must already be in existence at in writing and must give him specific authority,
the time of the constitution of the agency (5 either to conduct the general business of the
PARAS, supra at 801). principal or to execute a binding contract
containing terms and conditions which are in the
3. To Compromise, submit questions to contract he did execute (Cosmic Lumber
arbitration, renounce the right to appeal Corporation v. CA, G.R. No. 114311, November
from a judgment, waive objections to the 29, 1996).
venue of an action or abandon a
prescription already acquired (CAAWA); The special power of attorney mandated by law
There are five (5) different powers mentioned must be one that expressly mentions a sale or
here. A right given regarding one is not enough that includes a sale as a necessary ingredient of
to grant the others (5 PARAS, supra at 801). the authorized act. A special power of attorney
must express the powers of the agent in clear
Compromise and unmistakable language for the principal to
It is a contract whereby the parties, by making confer the right upon an agent to sell real estate.
reciprocal concessions, avoid a litigation or put When there is any reasonable doubt that the
an end to one already commenced (NEW CIVIL language so used conveys such power, no such
CODE, Art. 2028). construction shall be given the document
(Yoshizaki v. Joy Training Center of Aurora, Inc.,
G.R. No. 174978, July 31, 2013).
 Absence of Written Authority If the lease is not for more than one (1) year, it is
It has been repeatedly held that the absence of a merely an act of administration provided it is not
written authority to sell a piece of land is ipso jure, registered (Id.).
void, precisely to protect the interest of an
unsuspecting owner from being prejudiced by the The principal is the lessor and not the lessee
unwarranted act of another (Pahud v. CA, G.R. (Id.).
No. 160346, August 25, 2009).
NOTE: The lease here does not refer to lease of
6. To Make gifts, except customary ones for real property from another person and to lease of
charity or those made to employees in the personal property (DE LEON, supra at 432).
business managed by the agent;
GENERAL RULE: Gifts are donations. A The requirement of special power of attorney
donation is an act of liberality whereby a person extends to renewal or extension of lease of real
disposes of a thing or right in favor of another property to another (Id.).
who accepts it. It is an act of ownership. Hence a
special power of attorney is necessary. 9. To Bind the principal to render some
service without compensation;
EXCEPTION: Gifts which are customary for While the agent may agree to render some
charity or given to employees in the business service without compensation, he cannot without
managed by the agent (PINEDA, supra at 297). authority bind his principal to do so, unless he is
given a special power to that effect. This is
7. To Loan or borrow money, unless the tantamount to bind him to render service without
latter act be urgent and indispensable for compensation. This is involuntary servitude
the preservation of the things which are (PINEDA, supra at 298).
under administration;
The mere act of the principal of giving pre-signed 10. To Bind the principal in a contract of
checks to the agent is not authority for the agent partnership;
to loan in the name of the principal. In the By the contract of partnership, the partners bind
absence of any authorization, Gutierrez could not themselves to contribute money, property or
enter into a contract of loan in behalf of the industry to a common fund with the intention of
petitioner (Patrimonio v. Gutierrez, G.R. No. dividing the profits among themselves (NEW
187769, June 04, 2014). CIVIL CODE, Art. 1767). The contract of
partnership thus creates obligations the
The same principle applies to the act of fulfillment of which requires an act of strict
borrowing money. Without a SPA, the agent ownership (DE LEON, supra at 432).
cannot lend or borrow money in behalf of the
principal (Rural Bank of Caloocan v. CA, G.R. Furthermore, the principal must personally have
No. L-32116, April 21, 1981). trust and confidence in the proposed partners.
(Id.).
The power to borrow money is one of those
cases where corporate officers as agents of the 11. To Obligate the principal as guarantor or
corporation need a special power of attorney. surety;
Therefore, there was no basis to hold the By the contract of guaranty, the guarantor binds
corporation liable since there was no authority himself to the creditor to fulfill the obligation of the
given to borrow money (Yasuma v. Heirs of de principal debtor in case the latter should fail to do
Villa, G.R. No. 150350, August 22, 2006). so (NEW CIVIL CODE, Art. 2047). A contract of
guaranty is unenforceable unless it is made in
The rule is that the agent cannot borrow money writing (NEW CIVIL CODE, Art. 1403 par. 2(b)).
without a SPA except when the funds are This is an act of ownership because to fulfill the
necessary and indispensable for the preservation obligation, there may be a need to pay in cash or
of the property being administered by the said property (PINEDA, supra at 299).
agent (PINEDA, supra at 297).
In suretyship, the surety binds himself solidarily
8. To Lease any real property to another with the principal debtor. The creditor can make
person for more than one year; the surety personally liable for the debt of the
The special power of attorney is necessary principal debtor (Trade and Investment
because a lease for more than one (1) year Development Corp. of the Phil v. Asia Paces
creates a real right. (PINEDA, supra at 298). Corp., G.R. No. 187403, February 12, 2014).
This is an act of strict ownership (PINEDA, supra
at 299).
12. To Create or convey real rights over SPA under Art. 1878 need not be in writing
immovable property; As long as the mandate is express, such authority
An agent cannot create real rights (i.e. usufruct, may be either oral or written. The authority must be
mortgage, voluntary easement etc.) over the duly established by competent and convincing
immovable property of his principal without a evidence other than the self-serving assertion of the
special power of attorney. This is an act of strict party claiming that such authority was verbally given,
ownership. With more reason, an agent cannot thus: The requirements of a special power of attorney
convey same real rights. Both acts constitute acts in Article 1878 of the Civil Code and of a special
of strict ownership. A special power is needed authority in Rule 138 of the Rules of Court refer to the
(Id.). nature of the authorization and not its form. The
requirements are met if there is a clear mandate from
13. To Accept or repudiate an inheritance; the principal specifically authorizing the performance
Any person having the free disposal of his of the act (Patrimonio v. Gutierrez, G.R. No. 187769,
property may accept or repudiate an inheritance June 04, 2014).
(NEW CIVIL CODE, Art. 1044). This act is one of
strict dominion; hence, the necessity of a special SPECIAL POWERS OF ATTORNEY
authority (DE LEON, supra at 434). Even if a document is titled as a general power of
attorney, the requirement of a special power of
14. To Ratify or recognize obligations attorney is met if there is a clear mandate from the
contracted before the agency; principal specifically authorizing the performance of
An agent cannot effect novation of obligations the act. There was no need to execute a separate and
existing at the time of the constitution of the special power of attorney since the general power of
agency unless he be specially authorized to do attorney had expressly authorized the agent or
so. Also, the agent cannot ratify or recognize attorney in fact the power to sell the subject
obligations contracted before the agency without property. The special power of attorney can be
special power of attorney (Id.). included in the general power when it is specified
therein the act or transaction for which the special
15. Any Other act of strict dominion. power is required (Bravo-Guerrero v. Bravo, G.R. No.
Included in the general provisions are all acts of 152658, July 29, 2005).
strict dominion not mentioned in the first cases
enumerated in the article (PINEDA, supra at Effect of Lack of SPA Where One Is Required
300). The contract is unenforceable (NEW CIVIL CODE,
Art. 1403).
PRESENTATION OF POWER OF
ATTORNEY SCOPE OF AGENT’S AUTHORITY
A third person with whom the agent wishes to The scope of the agent’s authority is what appears in
contract on behalf of the principal may require the the written terms of the power of attorney. While third
presentation of the power of attorney or the persons are bound to inquire into the extent or scope
instructions as regards the agency. Private or secret of the agent’s authority, they are not required to go
orders and instructions of the principal do not beyond the terms of the written power of attorney.
prejudice third persons who have relied upon the Third persons cannot be adversely affected by an
power of attorney or instructions shown them (NEW understanding between the principal and his agent as
CIVIL CODE, Art. 1902). to the limits of the latter’s authority. In the same way,
third persons need not concern themselves with
NOTE: It is a settled rule that persons dealing with an instructions given by the principal to his agent outside
agent are bound at their peril, if they would hold the the written power of attorney (Siredy Enterprises, Inc.
principal liable, to ascertain not only the fact of v. Court of Appeals, et al. G.R. No. 129039,
agency but also the nature and extent of authority, September 17, 2002).
and in case either is controverted, the burden of proof
is upon them to establish it. If he does not make such SCOPE OF AUTHORITY TO SELL
an inquiry, he is chargeable with knowledge of the Special power to sell excludes the power to
agent’s authority and his ignorance of that authority mortgage; and a special power to mortgage does not
will not be any excuse. The principal, on the other include the power to sell (NEW CIVIL CODE, Art.
hand, may act on the presumption that third persons 1879).
dealing with his agent will not be negligent in failing
to ascertain the extent of his authority as well as the The power or authority to sell by virtue of the
existence of his agency. (Manila Memorial Park extrajudicial foreclosure of the REM could not be
Cemetery, Inc. v. Linsangan, G.R. No. 151319, necessarily implied from the text of
November 22, 2004). paragraph, expressing the petitioners' agreement to
the extrajudicial foreclosure (Baysa v. Plantilla, G.R. 2. Apparent or ostensible
No. 159271, July 13, 2015). - The doctrine of apparent authority provides that
even if no actual authority has been conferred on
LIMITATION OF POWER TO an agent, his or her acts, as long as they are
COMPROMISE within his or her apparent scope of authority, bind
the principal. However, the principal's liability is
A special power of attorney to compromise does not
limited to third persons who are reasonably led to
authorize submission to arbitration (NEW CIVIL
believe that the agent was authorized to act for
CODE, Art. 1880).
the principal due to the principal's conduct
(Calubad v. Ricarcen Development Corp., G.R.
REASON: A special power to compromise does not
No. 202364, August 30, 2017).
authorize submission to arbitration because while the
principal may have the trust and confidence in the
judgment of his agent, he may not have the same 3. General
trust and confidence on the designate arbitrators – refers to all the business of the principal.
(PINEDA, supra at 301).
4. Special
To authorize a person to submit the principal’s – limited only to one or more specific
transactions in question to arbitration, there must be transactions; and
a special power of attorney to that effect (NEW CIVIL
CODE, Art. 1878, par. 3). Thus, if the principal has 5. Emergency or authority by necessity or
designated the names of the arbitrators to arbitrate, operation of law (DE LEON, supra at 443-
the agent cannot submit the matter in controversy to 444).
the other arbitrators (Cox v. Fay 54 Vt. 446). If there
is no designation, the agent may submit the matter in WHEN A PRINCIPAL IS NOT BOUND BY
question to any arbitrator (PINEDA, supra at 302). ACT OF THE AGENT (ID. AT 448):
1. Agent acts without or beyond the scope of his
WHEN A PRINCIPAL IS BOUND BY ACT authority in the principal’s name; and
OF THE AGENT: 2. Agent acts within the scope of his authority but in
1. Agent must act within the scope of his authority his own name, except when the transaction
(NEW CIVIL CODE, Art. 1881); and involves a thing belonging to the principal (NEW
2. Agent must act in behalf of the principal (DE CIVIL CODE, Art. 1883, par. 2).
LEON, supra at 447).
REASON: There is no representation of the
NOTE: The limits of the agent’s authority shall not be principal (DE LEON, supra at 448).
considered exceeded should it have been performed
in a manner more advantageous to the principal than EFFECTS OF AGENT’S ACTS:
that specified by him (NEW CIVIL CODE, Art. 1882).
1. With Authority
a. In principal’s name – valid; principal is
AUTHORITY bound; agent not personally liable unless he
It is the power of the agent to affect the legal relations expressly bound himself or exceeded the
of the principal by acts done in accordance with the limits of his authority without giving such
principal’s manifestation of consent to him (DE party sufficient notice of his powers (NEW
LEON, supra at 441). CIVIL CODE, Art. 1897);

NOTE: Authority may be considered as the source or Illustration:

cause, while power is the effect (Id.). P authorized A to sell his (P’s) car. A then
sold the car in P’s name. (5 PARAS, supra at
KINDS OF AUTHORITY 812).
1. Actual
- may be express or implied; the principal is b. In his own name – apply Article 1883;
bound by the acts of the agent on his behalf (Id. generally not binding on the principal; agent
at 443). and stranger are the only parties, except
a. Express – directly conferred by words, regarding things belonging to the principal or
either orally or in writing when the principal ratifies the contract or
b. Implied – incidental or reasonably derives benefit therefrom.
necessary to accomplish the main
purpose of the agency or enable the Illustration – GENERAL RULE:
agent to perform his assigned duties. If P authorized A to find for him (P) a singing
engagement at the Manila Grand Opera
 House, and A acts in his own (A’s) behalf, ACTS OF THE AGENT AND VALIDITY OF
that is, A wanted to sing and he got the job, THE CONTRACT
only A and the Opera House would be bound
to each other. Validity of the Contract

Illustration – EXCEPTION: Agent Is Agent Is

P authorized A to sell his (P’s) car. A then Acting in the Acting in His
Acts of the
sold the car in his (A’s) own name, without Name of the Own Name
Agent
disclosing who the principal was. Ordinarily, Principal
the agent can only have recourse against the
As to the As to the
buyer, and the buyer can have recourse only
Principal Agent
against the agent under Article 1883.
However, in this particular case, since the car Valid and Valid (NEW
belonged to the principal, P can have Within binding (NEW CIVIL CODE,
recourse against the buyer and the buyer can
Authority CIVIL CODE, Art. 1883)
have recourse against agent P(Id.). Art. 1897)
2. Without Authority Unenforceable Valid
a. In principal’s name – unauthorized & (NEW CIVIL
unenforceable but may be ratified by the In Excess/ CODE, Art.
principal, in which case, may be validated Beyond 1403 par. 1)
retroactively from the beginning (NEW CIVIL Authority
CODE, Art. 1407); Void (NEW
CIVIL CODE,
Illustration: Without P’s authority, A sold P’s Art. 1898)
car to a buyer in P’s behalf. The transaction,
insofar as P is concerned is unauthorized, No agency Valid but no
hence unenforceable (NEW CIVIL CODE, (NEW CIVIL agency.
Art. 1403, par. 1). P is therefore not bound, CODE, Art. Deemed as
unless he ratifies the transaction. Without the Without 1403 par. 1) an ordinary
necessary ratification, the buyer can have a Authority contract –
claim only against the alleged agent A. The since there is
moment a ratification is made, A steps out of no principal,
the picture, since he would no longer be there is no
personally liable, and now it is P who will agent.
have to deal with the buyer (5 PARAS, supra
at 812). NOTE: If the party with whom the agent contracted is
aware of the limits of the powers granted by the
b. In his own name – valid, whether or not the principal (in bad faith), the contract is void; otherwise
subject matter belongs to the principal; (in good faith), the contract is unenforceable (NEW
Provided, that at the time of delivery, the CIVIL CODE, Art. 1898).
“agent” can legally transfer the ownership of
the thing. Otherwise, he will be held liable for
breach of warranty against eviction; Art. 1883
WHEN THE PRINCIPAL IS BOUND BY
does NOT apply (Id. at 811). THE ACTS OF THE AGENT BEYOND THE
LATTER’S POWERS: (De-LiBRa)
Illustration: 1. Where the principal’s acts have contributed to
A, without authority from P, and representing Deceive a third person in good faith;
himself to be the owner of P’s car, sold it to a 2. Where the Limitations upon the power created by
buyer. Here, A acted without authority. him could not have been known by the third
Moreover, he acted in his own behalf. It is person (DE LEON, supra at 450).
clear that the transaction (sale) is valid 3. Where the principal has placed in the hands of
provided that at the time delivery is to be the agent instruments signed by him in Blank
made, the “agent” can transfer legally the (Strong v. Repide, G.R. No. L-7154, February 21,
ownership of the thing. Otherwise, he will be 1912);
held liable for breach of warranty against 4. Contracts entered into by a corporate president
eviction. It is also clear that only A is liable to without prior board approval binds the
an innocent purchaser. Here, Article 1883 corporation when such officers’ apparent
does not apply because Article 1883 authority is established and when these contracts
presupposes authority (Id. at 812). are ratified by the corporation. (People’s Aircargo
 vs.. Court of Appeals, G.R. No. 117847, October
7, 1998); OBLIGATIONS OF THE AGENT
5. Where the principal has Ratified the acts of the
agent (DE LEON, supra at 451). ARTS. 1884-1909
DOCTRINE OF AGENCY BY NECESSITY
If there is an emergency to meet, the authority of the
GENERAL OBLIGATIONS OF AN AGENT
agent is expanded to cover the exigencies of the
moment. TO PRINCIPAL: (ObAE)
1. To Obey all lawful orders and instructions of
Requisites: (ECARC) principal within the scope of the agency
1. The real existence of an Emergency; 2. To Act with utmost good faith and loyalty for
2. Inability of the agent to Communicate with the furtherance of principal’s interests; and
principal; 3. To Exercise reasonable care, skill and diligence
3. Exercise of the additional Authority for the (DE LEON, supra at 462-464).
principal’s own protection;
4. The adoption of fairly Reasonable means, SPECIFIC OBLIGATIONS OF AN AGENT
premises duly considered; and TO PRINCIPAL: (CAFOA-DALAR–PAID-
5. The Ceasing of the authority the moment the
emergency no longer demands the same
BIR)
(PINEDA, supra at 305). 1. To Carry out the agency which he has
accepted (NEW CIVIL CODE, Art. 1884);
NOTE: Strictly speaking, agency can never be The provision is clear that an agent is bound to
created by necessity; what is created is additional carry out the agency. The relationship existing
authority in an agent appointed and authorized before between principal and agent is a fiduciary one,
the emergency arose (5 PARAS, supra at 819). demanding conditions of trust and confidence. It
is the duty of the agent to act in good faith for the
AGENCY WITH AN UNDISCLOSED advancement of the interests of the principal. In
this case, BPI had the obligation to carry out the
PRINCIPAL
agency by informing the beneficiary, who
GENERAL RULE: Agent is directly liable to the appeared before BPI to withdraw funds of the
person with whom he had contracted as if the insured who was BPI's depositor, not only of the
transaction were his own. existence of the insurance contract but also the
accompanying terms and conditions of the
EXCEPTION: Contract that involves things belonging insurance policy in order for the beneficiary to be
to the principal (NEW CIVIL CODE, Art. 1883, par. 2). able to properly and timely claim the benefit (BPI
v. Laingo, G.R. No. 205206, March 16, 2016).
Art. 1883 pertains to the act of an agent who is
authorized, but instead of acting in behalf of the EXCEPTION: An agent shall not carry out an
principal, he acts in his own behalf. Art. 1883 does agency if its execution would manifestly result in
not apply if the agent was unauthorized or he acts in loss or damage to the principal (NEW CIVIL
excess “of his authority” (5 PARAS, supra at 822- CODE, Art. 1888).
823).
2. To Answer for damages which through
Undisclosed Principal
his non-performance the principal may
Is one whom the other party dealing with the agent
has no notice of the fact that the said agent is acting suffer (NEW CIVIL CODE, Art. 1884);
for a principal (PINEDA, supra at 308). This rule is an application of the general rule in
contracts that any person guilty of fraud,
REASON: To protect third persons against possible negligence, or delay in the fulfillment of his
collusion between the agent and the principal. It obligation, or who in any other manner fails to
applies only when the agent has, in fact, been comply with the terms thereof shall be liable for
authorized by the principal to enter into the particular damages (NEW CIVIL CODE, Art. 1170).
transaction, but the agent, instead of contracting for
and in behalf of the principal, acts in his own name It is a well-settled rule that an agent is also
(DE LEON, supra at 455). responsible for any negligence in the
performance of its function and is liable for
damages which the principal may suffer by
reason of its negligent act. Hence, the Court of
Appeals erred when it opined that BA, being the
principal, had no cause of action against PAL, its
 agent or sub-contractor (British Airways v. CA, advantageous to the principal than that specified
G.R. No. 121824, January 29, 1998). by him, in no case shall the agent carry out the
agency if its execution would manifestly result or
3. To Finish the business already begun on damage to the principal. Wincorp had no
the death of the principal should delay authority to absolve Power Merge from the
entail any danger (NEW CIVIL CODE, Art. latter's indebtedness to its lenders. Doing so
1884); therefore violated the express terms of the SPAs
that limited Wincorp's authority to contracting the
loan (Virata v. Ng Wee, G.R. 220926, July 05,
4. To Observe diligence of a good father of
2017).
a family in the custody and preservation
of the goods forwarded to him by the 7. To Answer for damages if there being a
owner in case he declines an agency until conflict between his interest and those of
an agent is appointed (NEW CIVIL CODE, the principal, he should prefer his own
Art. 1885);
(NEW CIVIL CODE, Art. 1889);
Art. 1889 does not declare the contract or
GENERAL RULE: When a person declines the transaction the agent entered into as void, but
offer to make him an agent, generally, no contract merely makes the agent liable for damages
of agency arises and thereby no obligation is suffered by the principal (VILLANUEVA, supra at
assumed by such person to the offeror based on 139).
the absence of privity.
NOTE: Where the agent’s interests are superior,
EXCEPTION: Art. 1885 provides for an such as where he has a security interest in goods
exception as when the offeree, in spite of his of the principal in his possession, he may protect
refusal to accept the appointment, assumes this interest even if in so doing he disobeys the
certain liabilities (VILLANUEVA, supra at 129). principal’s orders or injures his interest (DE
LEON, supra at 478-479).
The duty of care over goods given to his custody
can only cover a “reasonable period” because Remedy when an Agent Wishes to Prefer His
the law provides that “the owner shall as soon as Own Interest: He must timely renounce the
practicable either appoint an agent or take agency, provided his renunciation is not for the
charge of the goods” (Id.). purpose of profiting from the transaction
(PINEDA, supra at 321).
5. To Advance the necessary funds should
there be a stipulation to do so (NEW CIVIL 8. Not to Loan to himself if he has been
CODE, Art. 1886); authorized to lend money at interest (NEW
CIVIL CODE, Art. 1890);
EXCEPTION: The agent is not bound to provide
the funds if the principal is insolvent (NEW CIVIL EXCEPTION: When the principal consents to the
CODE, Art.1886). same (NEW CIVIL CODE, Art. 1890).

6. Not to carry out the agency if its If the agent has been expressly empowered to
execution would manifestly result in loss borrow money, he may himself be the lender at
or Damage to the principal (NEW CIVIL the current rate of interest. (DE LEON, supra at
CODE, Art. 1888); 479).

NOTE: Notice that the article covers only acts REASON: The principal will suffer no prejudice
that would “manifestly” lead to losses, in other because the principal, just the same, will be liable
words, the agent cannot be a guarantor that the to pay interest (Id.).
principal would suffer no loss or damage in the
pursuit of the agency; the sustaining of losses 9. To render an Account of his transactions
due to human error is part of the risk that every and to deliver to the principal whatever he
owner or principal assumes (VILLANUEVA, may have received by virtue of the
supra at 134).
agency, even though it may not be owing
Of the established rules under the Code, one to the principal (NEW CIVIL CODE, Art.1891);
cannot be more basic than the obligation of the All profits made and advantage gained by the
agent to carry out the purpose of the agency agent in the execution of the agency belong to
within the bounds of his authority. Though he the principal. And it matters not whether such
may perform acts in a manner more profit or advantage be the result of the
performance or of the violation of the duty of the v. Domingo, G.R. No. L-30573, October 29,
agent if it be the fruit of the agency (Dumaguin v. 1971).
Reynolds, G.R. No. L-3572, September 30,
1952). Report Distinguished from Accounting
a. Report imports a statement of collections.
Stipulation Exempting Agent from Duty to b. Accounting means settling of account of
Account is Void administration or agency, which includes
REASON: It is contrary to public policy (NEW payment (DE LEON, supra at 487).
CIVIL CODE, Art. 1306) as it would encourage
fraud. It is in the nature of an action for future AGENT AND BANK TELLER,
fraud which is void (PINEDA, supra at 326). DISTINGUISHED
The agent has an absolute duty to make a full AGENT BANK TELLER
disclosure or accounting to his principal of all
transactions and material facts that may have As to Right to Possession
some relevance with the agency (Domingo v.
Has independent and Has no independent
Domingo, G.R. No. L-30573, October 29, 1971).
autonomous right. right, payment to him is
payment to the bank
Obligation to Account NOT Applicable:
itself. He is a mere
(SLIM)
custodian.
a. In cases of Solutio indebiti (PINEDA, supra
at 326); As in Case of Misappropriation
b. Where a right of Lien exists in favor of the He is guilty of estafa. He is guilty of qualified
agent, the rule is not also applicable (DE theft.
LEON, supra at 486).
i. The agent may, under Art.1914, retain in (DE LEON, supra at 488).
pledge the things which are the object of
the agency until the principal effects the 10. To be Responsible in certain cases for
reimbursement and pays the indemnity the acts
provided in Arts. 1912 and 1913. a. Of the substitute appointed by him when:
ii. A lawyer shall have a lien upon the i. He was not given the power to appoint
funds, documents and papers of his one; and
client and may retain the same until his ii. He was given such power, but without
lawful fees and disbursements have designating the person, and the person
been paid (RULES OF COURT, Rule appointed was notoriously incompetent
138, Sec. 37). or insolvent (NEW CIVIL CODE, Art.
1892);
c. Neither would the rule apply if the agent or
broker had Informed the principal of the gift 11. To Pay interest on funds he has applied
or bonus or profit he received from the to his own use (NEW CIVIL CODE, Art. 1896);
purchaser and his principal did not object
thereto (DE LEON, supra at 486). Two Cases in Contemplation of the Rule:
a. The sum belonging to the principal which he
d. The duty embodied in Art. 1891 will not apply applied to his own use; and
if the agent or broker acted only as a b. The sum that the agent still owed the
Middleman with the task of merely bringing principal after the extinguishment of the
together the vendor and the vendee, who agency (NEW CIVIL CODE, Art. 1896).
themselves thereafter will negotiate on the
terms and conditions of the transaction 12. To Act in accordance with the
(Domingo v. Domingo, G.R. No. L-30573, instructions of the principal, and in
October 29, 1971). default thereof, to do all that a good father
of a family would do (NEW CIVIL CODE, Art.
NOTE: An agent who takes a secret profit is 1887);
guilty of breach of his loyalty and forfeits his right
to collect the commission. It does not even matter Note: Acting in accordance with the instructions
if the agency was a gratuitous one, or that the of the principal is different from acting within the
principal obtained better results, or that usage or scope of the agent’s authority. The former refers
custom allows a receipt of such bonus (Domingo to the details of the execution of the agency while
the latter refers to the general parameters or
 extent of the agency (PINEDA, supra at 317- OBLIGATION OF THE PERSON WHO
318). DECLINES AN AGENCY
If the owner has appointed a person to be his agent
13. To Inform the principal, where an
and has forwarded goods to the latter whom he
authorized sale of credit has been made, expected to accept the agency but did not, the latter
of such sale (NEW CIVIL CODE, Art. 1906); is required to observe ordinary diligence in the
custody and preservation of the goods until the owner
14. To Distinguish goods by countermarks thereof has appointed an agent to take care of them.
and designate the merchandise Failure to do so on the part of the declining person
respectively belonging to each principal, will render him liable for damages (PINEDA, supra at
in the case of a commission agent who 316).
handles goods of the same kind and
mark, which belong to different owners DILIGENCE OF A GOOD FATHER OF
(NEW CIVIL CODE, Art. 1904); FAMILY
The commission agent must provide identifying A person who declines an agency is still bound to
marks on the goods belonging to different owners observe diligence of a good father of a family in the
so that segregation may be easy (PINEDA, supra custody and preservation of the goods forwarded to
at 353). He may not commingle goods his him by the owner (NEW CIVIL CODE, Art. 1885).
principal’s property with his own or to deal with it
in a way which would make it appear to be his WHEN AN AGENCY SHOULD NOT BE
own property (DE LEON, supra at 530).
CARRIED OUT:
15. To Bear the risk of collection, should he If its execution would manifestly result in loss to the
receive also on sale, a guarantee principal (NEW CIVIL CODE, Art. 1888).
commission (NEW CIVIL CODE, Art. 1907);
REASON: The duty of the agent who is merely an
extension of the personality of the principal is to
Guarantee Commission or Del Credere
render service for the benefit of the principal and not
Commission
to act to his detriment (DE LEON, supra at 477).
It is one where the factor or commission agent
guarantees to the principal the payment of debts
arising through his agency in consideration AUTHORITY TO BORROW OR LEND
of an increased or higher commission MONEY
(DE LEON, supra at 533). 1. If he has been expressly empowered to borrow
money, he may himself be the lender at the
16. To Indemnify the principal for damages current rate of interest (NEW CIVIL CODE, Art.
for his failure to collect the credits of his 1890).
principal at the time that they become due
(NEW CIVIL CODE, Art. 1908); REASON: The principal will suffer no prejudice
because even if the agent finds a third person as
NOTE: Not applicable to guarantee commission lender, the principal just the same will be liable to
(NEW CIVIL CODE, Art. 1907). pay interest at the current rate or probably more
(PINEDA, supra at 321).
17. To be Responsible for fraud or
negligence (NEW CIVIL CODE, Art. 1909). 2. If the agent has been authorized to lend money
at interest, he cannot be the borrower without the
consent of the principal (NEW CIVIL CODE, Art.
OBLIGATION TO CARRY OUT THE 1890).
AGENCY
The agent is bound by his acceptance to carry out the REASON: To protect the principal. The agent
agency and is liable for the damages which, through may not be a good payer, or may be insolvent, or
his non-performance, the principal may suffer. may not be a good risk. More, conflict of interests
is bound to arise (PINEDA, supra at 322).
He must also finish the business already begun on
the death of the principal, should delay entail any EXCEPTION: When the principal gives his
danger (NEW CIVIL CODE, Art. 1884). consent, either orally or in writing (Id.).
The agent may appoint a substitute if the EFFECTS OF SUBSTITUTION
principal has not prohibited him from doing so;
1. Substitution expressly prohibited:
but he shall be responsible for the acts of the
a. All acts of the substitute shall be void (NEW
substitute:
CIVIL CODE, Art.1892, par. 2);
1. When he was not given the power to appoint one;
2. When he was given such power, but without
NOTE: Although Art. 1892 provides that all
designating the person, and the person
acts of the substitute appointed against the
appointed was notoriously incompetent or
prohibition of the principal shall be void, the
insolvent.
contracts are really unenforceable insofar as
the principal is concerned and subject to his
NOTE: In these two cases the principal may further
ratification pursuant to Article 1317 of the
bring an action against the substitute with respect to
New Civil Code (VILLANUEVA, supra at 151-
the obligations that the latter has contracted under
152).
the substitution (NEW CIVIL CODE, Art. 1893).
In a situation where the SPA to sell a piece
All acts of the substitute appointed against the
of land does not empower the attorney-in-
prohibition of the principal shall be void (NEW CIVIL
fact to appoint a substitute, but nevertheless
CODE, Art. 1892).
the agent appoints a substitute who executes
the deed of sale in the name of the principal,
In the cases mentioned in Nos. 1 and 2 of Art. 1892,
while it may be true that the agent may have
the principal may furthermore bring an action against
acted outside the scope of his authority, that
the substitute with respect to the obligations which
did not make the sale void, but merely
the latter has contracted under the substitution (NEW
unenforceable under Art. 1317. Although the
CIVIL CODE, Art. 1893).
principal denied the sale, his acceptance of
the proceeds thereof was tantamount to
SUB-AGENT ratification thereof (Escueta v. Lim, G.R.
A person employed or appointed by an agent as his No.137162, January 24, 2007).
agent, to assist him in the performance of an act for
the principal, which the agent has been empowered b. Agent is personally liable for the acts of the
to perform (DE LEON, supra at 489). substitute, as though the contracts of the
substitute were his own; and
GENERAL RULE: An agent may appoint a sub- c. Principal would have no cause of action
agent. The agent in this situation is a principal with against the substitute (VILLANUEVA, supra
respect to the substitute (Id.). at 153).

REASON: For convenience and practical utility (Id.). 2. Substitution authorized:

a. The substitute was designated by the agent
EXCEPTIONS: – it has the effect of releasing the agent from
1. When prohibited by the principal; his responsibility unless the person
2. When the work entrusted to the agent to carry out appointed is notoriously incompetent or
requires special knowledge, skill or competence insolvent (NEW CIVIL CODE, Art. 1892, par.
(Id.). 2).
b. The substitute was designated by the
EXCEPTION TO THE 2ND EXCEPTION: When principal – absolute exemption of the agent
authorized to do so by the principal (Id.). (DE LEON, supra at 492).

EFFECT OF DEATH OF 3. Substitution not authorized, but not

PRINCIPAL/AGENT prohibited
It will depend from whom the authority of the sub- – if the substitution has occasioned damage to
agent was derived: the principal, the agent shall be primarily
1. From the principal responsible for the acts of the substitute (Serona
– Death of the agent who appointed him does not v. CA, G.R. No. 130423, November 18, 2002).
affect his authority. The principal also has a right of action against the
substitute. (DE LEON, supra at 492).
2. From the agent who appointed him
– Death of the agent terminates his authority (DE RESPONSIBILITY OF TWO OR MORE
LEON, supra at 490). AGENTS
The responsibility of two or more agents, even though
they have been appointed simultaneously, is not
solidary, if solidarity has not been expressly EXCEPTIONS: INSTANCES WHEN
stipulated (NEW CIVIL CODE, Art. 1894). AGENT MAY INCUR PERSONAL
LIABILITY (FOI-WEEP) (NEW CIVIL
JOINT AGENTS
CODE, ART. 1897):
Agents appointed by one or more principals under
such circumstances as to induce the inference that it 1. Fraud and negligence by agent (NEW
was the principal’s intent that all should act in CIVIL CODE, Art. 1909);
conjunction in consummating the transaction for
which they were appointed (DE LEON, supra at 494). NOTE: Although the agent becomes personally
liable, this does not mean that the principal is
Liability of Joint Agents exempted from liability. Since the acts of the
Their responsibility is joint; except if solidarity has agent are by law those of the principal, both the
been expressly stipulated (NEW CIVIL CODE, Art. principal and the agent are deemed joint
1894). tortfeasors and are deemed solidarily liable
insofar as third persons are concerned
If solidarity has been agreed upon, each agent is (VILLANUEVA, supra at 162-163).
responsible for the:
1. Non-fulfillment of the agency; and The remedy of the principal is to sue the agent
2. Fault or negligence of his fellow agents, unless for damages due to agent’s fraudulent or
the fellow agents acted beyond the scope of their negligent acts (Id. at 163).
authority (NEW CIVIL CODE, Art. 1895).
2. Agent acts in his Own name;
NOTE: The liability referred to in Art. 1894 and 1895
is the liability of agents towards principal and not EXCEPTION: When the contract involves things
towards third parties (5 PARAS, supra at 839). belonging to the principal (NEW CIVIL CODE,
Art.1883, par. 2).
LIABILITY OF AGENT FOR INTEREST
3. A person who acts as an agent of an
The agent owes interest on the sums he has applied
to his own use from the day on which he did so, and Incapacitated principal;
on those, which he still owes after the extinguishment
of the agency (NEW CIVIL CODE, Art. 1896). EXCEPTION: Unless the third party was aware
of the incapacity at the time of the making of the
The agent who converted to his personal use the contract (DE LEON, supra at 506).
funds of the principal is liable for interest by way of
compensation or indemnity (which is different from 4. When a person acts as an agent Without
interest for delay) which shall be computed from the authority or without a principal (Id. at 505);
day he did so, without prejudice to any criminal action
for the conversion (DE LEON, supra at 496). 5. Agent Expressly binds himself;
The individual liability of the agent can be
While there is no liability for interest on sums which considered as further security in favor of the
have not been converted for the agent’s own use (De creditor and does not affect or preclude the
Borja vs. De Borja, G.R. No. L-38479, November 20, liability of the principal; both are liable (Id. at 500).
1933) the agent who is found to owe the principal
sums after the extinguishment of the agency is liable 6. Agent Exceeds his authority; and
for interest from the date the agency is extinguished
(DE LEON, supra at 496). NOTE: If the agent contracts in the name of the
principal, exceeding the scope of his authority,
LIABILITY OF AN AGENT TO THIRD and the principal does not ratify the contract, it
PERSONS shall be void if the party with whom the agent
contracted is aware of the limits of the powers
GENERAL RULE: Agent is not personally liable to
granted by the principal. In this case, however the
third persons (NEW CIVIL CODE, Art. 1897).
agent is liable if he undertook to secure the
principal’s ratification (NEW CIVIL CODE, Art.
REASON: The agent acquires no rights nor does he
1898).
incur any liabilities from the contract entered into by
him on behalf of his principal (DE LEON, supra at
NOTE: If the party with whom the agent
497).
contracted is unaware of the limits of the powers
granted by the principal, the contract is
 unenforceable under Article 1403 of the New Civil not be any excuse (Bacaltos Coal Mines v. CA,
Code. G.R. No. 114091, June 29, 1995).

The agent is not bound or liable: 2. When authority is in writing

a. When the principal ratifies the act, in which – Such person is not required to inquire further
case, the principal becomes liable. than the terms of the written power of attorney
b. When the agent has given the third person (DE LEON, supra at 512).
sufficient notice about the extent of his power
to put him on guard. If the duly authorized agent acts in accordance with
c. When the third person is aware of the limits the orders of the principal, the latter cannot set up the
of the agent’s powers (DE LEON, supra at ignorance of the agent as to circumstances whereof
500-501). he himself was, or ought to have been, aware (NEW
CIVIL CODE, Art. 1899).
If the agent acts in excess of his authority,
the principal is not bound insofar as the So far as third persons are concerned, an act is
excess is concerned. It is unfair if the deemed to have been performed within the scope of
principal be bound in a contract which he did the agent’s authority, if such act is within the terms of
not authorize (PINEDA, supra at 340). the power of attorney, as written, even if the agent
has in fact exceeded the limits of his authority
7. Acts of the agent Prevent performance on according to an understanding between the principal
the part of the principal (DE LEON, supra at and the agent (NEW CIVIL CODE, Art. 1900).
505).
METHODS OF BROADENING AND
INSTANCES WHEN THIRD PARTY IS RESTRICTING AGENT’S AUTHORITY:
LIABLE TOWARDS THE AGENT: (CBIT) (UNDIE) (DE LEON, supra at 518-520).
1. Where the agent Contracts in his own name for 1. By Usage and custom;
an undisclosed principal, in which case, the agent
may sue the third party to enforce the contract EXCEPTIONS: (V-DEC)
(NEW CIVIL CODE, Art. 1883); a. Where it is sought to Vary the terms of an
2. Where the agent possesses a Beneficial interest express authorization;
in the subject matter of the agency (NEW CIVIL b. Where it is sought thereby to Dispense with
CODE, Art. 1927); a legal requirement enacted for the
3. Where the agent pays money of his principal to a principal’s benefit;
third party by mistake or under a contract which c. Where it is sought to vary an Essential quality
proves subsequently to be Illegal, the agent of the agency relationship; and
being ignorant with respect to its illegal nature; d. Where it is sought thereby to Change a rule
and of law or as to dispense with a formality
4. Where the third party commits a Tort against the required by law (DE LEON, supra at 519).
agent (DE LEON, supra at 506).
It is required that the principal must have notice
SCOPE OF AGENT’S AUTHORITY AS TO of the alleged custom before the agent’s acts
THIRD PERSONS may bind the former. However, a principal is
Includes not only the actual authorization conferred deemed to have notice of a given usage: (1)
upon the agent by his principal, but also that which where the principal and the agent reside in the
was apparently or impliedly delegated to him same community, the usage is definite and well
(Angerosa v. The White Company, 210 N.Y.S. 204, known and the agent has no notice that he is to
1936 as cited in DE LEON, supra at 509). act to the contrary; and (2) where the agent is
authorized to deal in a particular market or
exchange (DE LEON, supra at 519).
1. When authority is not in writing
– Every person dealing with an assumed agent is
put upon an inquiry and must discover upon his 2. By Necessity;
peril, if he would hold the principal liable, not only Requisites: (EUPRe)
the fact of the agency but the nature and extent a. The Emergency really exists;
of the authority of the agent (DE LEON, supra at b. The agent is Unable to communicate with the
509). principal
c. The agent’s enlarged authority is exercised
NOTE: If he does not make such inquiry, he is for the principal’s Protection;
chargeable with knowledge of the agent’s d. The means adopted are Reasonable under
authority, and his ignorance of that authority will the circumstances (Id. at 520).
3. By certain Doctrines; AUTHORITY
INSTRUCTION
a. Of apparent authority;
b. Of liability by estoppel; and only a private rule of limited in scope and such
c. Of ratification (DE LEON, supra at 520). guidance to the agent limitations are
and is independent themselves part of the
4. By Implication (Id. at 518); or and distinct in authority (NEW CIVIL
character. CODE, Art.1881 and Art.
5. By the rule of Ejusdem generis (Id. at 520). 1882).

RESPONSIBILITY OF PRINCIPAL Refers to the manner Relates to the subject

WHERE AGENT ACTED WITH IMPROPER or mode of his action with which the agent is
with respect to matters empowered to deal or the
MOTIVES which in their kind of business or
GENERAL RULE: The motive of the agent in substance are within transactions upon which
entering into a contract with a third person is the scope of permitted he is empowered to act.
immaterial. action.

EXCEPTIONS: As to Effect of Limitation of Authority

1. Where the third person knew that the agent was
acting for his private benefit (DE LEON, supra at Without significance Limitations of authority
521). as against those are operative as against
2. Where the owner is seeking recovery of personal dealing with the agent those who have or are
property of which he has been unlawfully without knowledge or charged with knowledge
deprived (NEW CIVIL CODE, Art. 559; Dizon v. notice of them of them and ignorance of
Suntay, G.R. No. L-30817, September 29, 1972). because they concern the authority will not be
only the principal and any excuse (see Art.
RATIFICATION BY PRINCIPAL the agent (see Art. 1900).
1902).
A third person cannot set up the fact that the agent
has exceeded his powers, if the principal has ratified, As to Notice to Third Persons
or has signified his willingness to ratify the agent’s
acts (NEW CIVIL CODE, Art.1901). Not expected to be Contemplated to be
made known to those made known to the third
IMPLIED RATIFICATION whom the agent deals person dealing with the
A principal is deemed to have ratified an act of an with. agent. Third persons
agent where he receives and retains the benefits of must therefore verify or
the transaction with knowledge of the material facts investigate the authority.
surrounding the same (DE LEON, supra at 527). (DE LEON, supra at 471-472).

PRESENTATION OF INSTRUCTIONS WHEN DEPARTURE FROM PRINCIPAL’S

GENERAL RULE: A third person is bound to inquire INSTRUCTIONS IS JUSTIFIED: (SAI)
as to the extent of the agent’s authority. A third
person deals with an agent at his peril (NEW CIVIL
1. Sudden Emergency
– Where some unexpected emergency or
CODE, Art. 1902).
unforeseen event occurs which will admit no
delay for communication with the principal, the
EXCEPTION: Private or secret orders or instructions
agent is justified in adopting the course which
of the principal do not prejudice third persons (NEW
seems best to him under the circumstances.
CIVIL CODE, Art. 1902).
2. Ambiguous Instructions
INSTRUCTION AND AUTHORITY, – Where instructions are ambiguous, the agent is
DISTINGUISHED not chargeable with disobedience or its
INSTRUCTION AUTHORITY consequences in case he makes an honest
mistake and adopts a construction different from
As to Nature that intended by the principal. It is the duty of the
principal to couch his instructions in clear terms.
Directs the manner of The sum total of the
transacting the powers committed or 3. Insubstantial Departure
authorized business permitted to the agent by – An agent may not be said to have breached
and contemplates the principal; may be the agency contract by reason of an insubstantial
 departure from the principal’s instructions, which
COMMISSION ORDINARY
does not affect the result (DE LEON, supra at BROKER
475-476). AGENT AGENT

As to Representation
FACTOR/COMMISSION AGENT
A person whose business is to receive and sell goods Sells in his own Transacts in Transacts in
entrusted to him by the principal for a commission name. the name of the name of
and is usually selling in his own name (PINEDA, the principal. those who
supra at 351). employed him.
(Id. at 365-366; 529)
The commission agent shall be responsible for the
goods received by him in the terms and conditions
The commission agent cannot, without the express or
and as described in the consignment, unless upon
implied consent of the principal, sell on credit. Should
receiving them he should make a written statement of
he do so, the principal may demand from him
the damage and deterioration suffered by the same
payment in cash, but the commission agent shall be
(NEW CIVIL CODE, Art. 1903).
entitled to any interest or benefit, which may result
from such sale (NEW CIVIL CODE, Art. 1905).
Factorage
Compensation of a factor or commission agent (DE
If such sale is made without authority, the principal is
LEON, supra at 529).
given two alternatives (NEW CIVIL CODE, Art.1905):
Broker
1. He may require payment in cash, in which case
A middleman or intermediary who, in behalf of others
any interest or benefit from the sale on credit
and for a commission or fee, negotiates or contracts
shall belong to the agent since the principal
transactions relating to real or personal property and
cannot be allowed to enrich himself at the agent’s
never acting in his own name but in the name of those
expense;
who employed him (DE LEON, supra at 365).
Illustration: If an agent was authorized to sell a
Commission of Brokers
Godin electric acoustic guitar for P100,000 cash,
The brokers are entitled to their commission because
but he sells it on credit for P120,000, the principal
they were instrumental in the sale of the property.
can demand from said agent the sum of
They set the sale in motion (Tan v. Gullas, G.R. No.
P100,000 in cash. However, should the agent
143978, December 3, 2002).
eventually collect the entire sum of P120,000, he
gets an ultimate personal gain of P20,000 (5
In the absence of an express contract between the PARAS, supra at 845-846).
broker and his principal, the implication generally is
that the broker becomes entitled to the usual 2. He may ratify the sale on credit in which case it
commissions (Medrano v. Court of Appeals, G.R. No. will have all the risks and advantages to him (DE
150678, February 18, 2005). LEON, supra at 531).
Ordinary Commission
It is the compensation for the sale of goods which are RULE WHEN THE COMMISSION AGENT
placed in the agent’s possession or at his disposal. IS AUTHORIZED TO SELL ON CREDIT
Should the commission agent, with authority of the
COMMISSION AGENT V. principal, sell on credit, he shall so inform the
principal, with a statement of the names of the
ORDINARY AGENT V. BROKER buyers. Should he fail to do so, the sale shall be
COMMISSION ORDINARY deemed to have been made for cash insofar as the
BROKER principal is concerned (NEW CIVIL CODE, Art.
AGENT AGENT
1906).
As to Possession of Goods
GUARANTEE COMMISSION
Needs to have No need to No need to
Should the commission agent receive on sale, in
possession of have have
addition to the ordinary commission, another called a
the goods. possession. possession.
guarantee commission, he shall bear the risk of
collection and shall pay the principal the proceeds of
the sale on the same terms agreed upon with the
purchaser (NEW CIVIL CODE, Art. 1907).
PURPOSE OF THE COMMISSION: To compensate should make a written statement of the damage
the agent for the inconveniences and risks he has to and deterioration suffered by the same (NEW
undergo in the collection of the purchase price CIVIL CODE, Art. 1903);
payable to the principal (DE LEON, supra at 533).
2. If he handles goods of the same kind and mark
Liability of the Del Credere Agent belonging to different owners, to distinguish them
The liability of the del credere agent is contingent. If by Countermarks, and designate the
the buyer fails to pay, he shall pay the principal. He merchandise respectively belonging to each
has no right to invoke the benefit of excussion (NEW principal (NEW CIVIL CODE, Art. 1904);
CIVIL CODE, Arts. 2058-2059) because he is not
really a guarantor. Precisely, he is given an additional 3. To Not sell on credit, without the express or
commission for this obligation because he assumes implied consent of the principal. Should he do so,
the risk of collection for the principal (PINEDA, supra the principal may demand from him payment in
at 357). case, but the commission agent shall be entitled
to any interest or benefit, which may result from
The liability of the del credere agent is limited to the such sale (NEW CIVIL CODE, Art. 1905);
payment of the purchase price. It does not extend to
the other obligations arising from the contract such as 4. If he is authorized to sell on credit, to Inform the
damages (Id.). principal, with a statement of the names of the
buyers. Should he fail to do so, the sale shall be
Illustration: deemed to have been made for cash insofar as
The agent was authorized to sell on credit an Ibanez the principal is concerned (NEW CIVIL CODE,
electric guitar for P40,000 with a 10% ordinary Art. 1906);
commission (P4,000). He was also paid guaranteed
commission of 5% (P2,000). His total profit would 5. To Bear the risk of collection and pay the
therefore be P6,000. However, every time the principal the proceeds of the sale on the same
customer fails to pay an installment that is due, the terms agreed upon with the purchaser, if he
agent himself pays said amount to the principal (5 should receive on sale, in addition to the ordinary
PARAS, supra at 850). commission, a guarantee commission (NEW
CIVIL CODE, Art. 1907);
NOTE: Art. 1907 includes both credit and cash sales
because the law did not make any distinction (Id. at 6. To be liable for Damages if he does not collect
851). credits of his principal at the time when they
become due, unless he proves that he exercised
If the agent receives guarantee commission, he due diligence for that purpose (NEW CIVIL
cannot put the defense that the debtor-third person CODE, Art. 1908).
possesses property (Id.).

Who may Sue the Buyer who failed to Pay

Either the principal or the del credere agent may sue
the buyer. The suit of one will bar the subsequent suit
OBLIGATIONS OF THE
of the other (PINEDA, supra at 357). PRINCIPAL
Duty of Commission Agent
ARTS. 1910-1918
The commission agent who does not collect the
credits of his principal at the time when they become
due and demandable shall be liable for damages,
unless he proves that he exercised due diligence for GENERAL OBLIGATIONS OF PRINCIPAL
that purpose (NEW CIVIL CODE, Art. 1908). TO AGENT
Duties and liabilities of the principal are primarily
Article 1908 does not apply to a guarantee based upon the contract and the validity of the
commission (DE LEON, supra at 534). contract between them. In addition to his contractual
duties, the principal is under an obligation to deal
SPECIFIC OBLIGATIONS OF A fairly and in good faith with his agent (DE LEON,
COMMISSION AGENT supra at 539).
(CRIB-ND)
SPECIFIC OBLIGATIONS OF PRINCIPAL
1. To be Responsible for the goods received by him
in the terms and conditions and as described in TO AGENT: (CARIP)
the consignment, unless upon receiving them he 1. To Comply with all the obligations which the
agent may have contracted within the scope of
 his authority (NEW CIVIL CODE, Art. 1910) and representation, or who acted beyond his powers shall
in the name of the principal; be unenforceable (NEW CIVIL CODE, Art. 1317).

2. To Advance to the agent, should the latter so EXCEPTIONS:

request, the sums necessary for the execution of 1. When the principal ratifies such contract,
the agency (NEW CIVIL CODE, Art. 1912); expressly or tacitly (NEW CIVIL CODE, Art.
1910);
NOTE: Compare this with Art.1886 where the 2. When the principal has allowed the purported
agent is bound to advance the sums necessary agent to act as though he had full powers (NEW
to carry out the agency, should there be a CIVIL CODE, Art. 1911); and
stipulation and if the principal is solvent. 3. When the principal has revoked the agency but
the third party has acted in good faith without
3. To Reimburse the agent for what the latter has notice of the revocation (NEW CIVIL CODE, Art.
advanced (plus interest), even if the business 1921).
was not successful, provided the agent was free
from fault (NEW CIVIL CODE, Art. 1912); LIABILITY OF THIRD PERSONS TO
PRINCIPAL
4. To Indemnify the agent for all the damages,
which the execution of the agency may have 1. Based on contract
caused the latter without fault or negligence on – third person is liable to the principal upon
his part (NEW CIVIL CODE, Art. 1913); contracts entered into by his agent, in the same
manner as though the contract were entered into
5. To Pay the agent the compensation agreed upon, by the principal himself (DE LEON, supra at 545).
or if no compensation was specified, the
reasonable value of the agent’s services (DE REASON: As the nature of agency is
LEON, supra at 540). representative, the relationship of the third party
to the principal is the same as that in a contract
As for any obligation wherein the agent has exceeded in which there is no agent (Id.).
his power, the principal is not bound except when he
ratifies it expressly or tacitly (NEW CIVIL CODE, Art. 2. In tort
1910). – third person’s tort liability to the principal arises
in three main factual situations:
a. Where third person damages or injures
PRINCIPAL BOUND BY AGENT’S ACTS
property or interest of the principal in agent’s
DONE WITHIN THE SCOPE OF THE possession;
LATTER’S AUTHORITY b. Where third person colludes with the agent to
GENERAL RULE: Whatever has been done or injure or defraud the principal;
executed by the agent within the scope of his c. Where third person induces the agent to
authority and in the name of the principal, is binding violate his contract with the principal to
upon the principal. Consequently, the principal must betray the trust reposed upon him by the
comply with all the obligations arising from the principal (Id. at 546).
authorized acts of the agent (PINEDA, supra at 364).
3. In respect of property received
REASON: The act of such agent is the act of the – in the absence of a law or the possession by
principal (DE LEON, supra at 540-541). the agent of apparent authority or circumstances
of estoppel against the principal, the latter may
Conversely, the principal is not bound by the acts of recover property from the agent’s transferee (Id.
the agent if the latter acted without or in excess of his at 546).
authority (PINEDA, supra at 364).
NOTE: In negotiable instrument, the law protects
EXCEPTION: The principal may be bound if he third parties who are holders in due course (Id. at
expressly or impliedly ratifies the contract (NEW 547).
CIVIL CODE, Art. 1910).
LIABILITY OF PRINCIPAL FOR TORT OF
BINDING EFFECT OF CONTRACTS AGENT RULE
MADE WITHOUT AUTHORITY OR The principal is civilly liable to third persons for torts
OUTSIDE THE SCOPE OF AUTHORITY of an agent committed at the principal’s direction or
GENERAL RULE: A contract entered into in the in the course and within the scope of the agent’s
name of another by one who has no authority or legal employment. Whether the tort is committed willfully or
negligently has no effect on the extent or degree of the result was achieved (DE LEON, supra at
the principal’s liability (Id. at 552-553). 556).

REASON: Based upon the principle that he who does The act must be ratified in its entirety or not at all.
an act through another does it himself. The agent is The principal cannot accept the benefits of a
also liable with the principal and their liability is transaction and refuse to accept the obligations.
solidary (Id.at 553). (Id.).

MOTIVATION-DEVIATION TEST 4. Act must be Capable of ratification; and

The bounds of the agent’s authority are not the limits
of the principal’s tort liability, but rather the “scope of 5. Principal must have had Knowledge or
the employment” which may or may not be within had reason to know of material facts
the bounds of authority. Scope of employment is about the transaction (Id. at 549).
much wider than scope of authority (Id.). Thus, if material facts were suppressed or
unknown, there can be no valid ratification and
REQUISITES FOR VICARIOUS LIABILITY this [is] regardless of the purpose or lack thereof
FOR TORT: in concealing such facts and regardless of the
parties between whom the question of ratification
1. Satisfactory evidence that the employee in doing
may arise (Manila Memorial Park Cemetery, Inc.
the act, in doing of which the tort was committed,
v. Linsangan, G.R. No. 151319, November 22,
was motivated in part, at least, by a desire to
2004).
serve his employer; and
2. Satisfactory evidence that the act, in the doing of
which the tort is committed, was not an extreme ACTS THAT MAY BE RATIFIED:
deviation from the normal conduct of such 1. Valid acts;
employee (Id. at 554). 2. Voidable acts;
3. Unrevoked acts;
RATIFICATION The act must remain capable of ratification – the
act must be done by one party as agent for
It is the adoption or affirmance by a person of a prior
someone else.
act which did not bind him, but which was done or
professed to be done on his account, thus giving
4. Criminal acts; and
effect to the acts as if originally authorized (Id. at
5. Tortious acts (DE LEON, supra at 569-570).
558).

NOTE: It must be stressed though that only the NOTE: Acts which are absolutely void cannot be
principal, and not the agent, can ratify the authorized or ratified (Id. at 569).
unauthorized acts, which the principal must have
knowledge of (Country Bankers Insurance EFFECTS OF RATIFICATION BY
Corporation v. Keppel Cebu Shipyard, G.R. No. PRINCIPAL
166044, June 18, 2012). By ratification, the relation of principal and agency is
created since ratification by a principal is equivalent
CONDITIONS FOR RATIFICATION: (C- to prior authority. Once made, ratification becomes
BECK) irrevocable (Id. at 572).
1. Principal must have Capacity and power
1. With respect to agent
to ratify;
– Ratification relieves the agent from liability to
the third party to the unauthorized transaction,
2. Act must be done in Behalf of the and to his principal for acting without authority
principal; and he may recover the compensation due for
performing the act which has been ratified (Id. at
NOTE: A principal cannot ratify the unauthorized 572).
act of another person unless that person
purported to act as agent for, and in the name of 2. With respect to the principal himself
the principal, and not in his own behalf (Id. at – The principal who ratifies thereby assumes
561). responsibility for the unauthorized act as fully as
if the agent had acted under original authority but
3. Principal must ratify the acts in its is not liable for acts outside the authority
Entirety; approved by his ratification. Thus, ratification
The acceptance of the result of the act ratifies the does not render the principal liable for fraudulent
whole transaction, including the means whereby
 misrepresentations made by the agent without particular case, the agent is secretly abusing his
his knowledge (Id.). authority and attempting to perpetrate a fraud upon
his principal or some other person, for his own
3. With respect to third persons ultimate benefit. The bank, in its capacity as principal,
– Ordinarily, a third person is bound by a may be adjudged liable under the doctrine of
ratification to the same extent as he would have apparent authority. The principal's liability in this case
been bound if the ratified act had been authorized is solidary with that of his employee (Citystate
in the first instance, and he cannot raise the Savings Bank v Tobias, G.R. No. 227990, March 7,
question of the agent’s authority to do the ratified 2018).
act (Id.).
DOCTRINE OF APPARENT AUTHORITY
NOTE: To be effective, ratification need not be The doctrine of apparent authority or what is
communicated or made known to the agent or the sometimes referred to as the "holding out" theory, or
third party. The act or conduct of the principal, rather the doctrine of ostensible agency, imposes
than his communication is the key. But before liability, not "as the result of the reality of a
ratification, the third party is free to revoke the contractual relationship, but rather because of the
unauthorized contract (Id. at 573). actions of a principal or an employer in somehow
misleading the public into believing that the
RETROACTIVE EFFECT OF relationship or the authority exists.”
RATIFICATION
GENERAL RULE: The effect of ratification is the It is defined as the power to affect the legal relations
same as where the principal allowed the agent to act of another person by transactions with third persons
as though the latter had full authority from the arising from the other's manifestations to such third
beginning (Id. at 573). person such that the liability of the principal for the
acts and contracts of his agent extends to those
EXCEPTIONS: (DWCW) which are within the apparent scope of the authority
1. Where it would Defeat the rights of third parties conferred on him, although no actual authority to do
which have accrued between the time of the such acts or to make such contracts has been
making of the unauthorized contract and the time conferred (Citystate Savings Bank v. Tobias, G.R.
of ratification (Id. at 573). No. 227990, March 7, 2018).
2. If it will render Wrongful an otherwise rightful act
or omission which has taken place between the The principal’s liability, however, is limited only to
making of the unauthorized contract and the time third persons who have been led reasonably to
of its ratification (Id. at 574). believe by the conduct of the principal that such
3. If it will allow the Circumvention of a rule of law actual authority exists, although none was given. In
formulated in the interest of public policy (Id. at other words, apparent authority is determined only by
575). the acts of the principal and not by the acts of the
4. If the third party has Withdrawn from the contract, agent. There can be no apparent authority of an
the act or transaction is no longer capable of agent without acts or conduct on the part of the
ratification (Id.). principal; such acts or conduct must have been
known and relied upon in good faith as a result of the
exercise of reasonable prudence by a third party as
SOLIDARY LIABILITY claimant, and such acts or conduct must have
Even when the agent has exceeded his authority, the produced a change of position to the third party’s
principal is solidarily liable with the agent if the former detriment (Banate v. Philippine Countryside Rural
allowed the latter to act as though he had full powers Bank, G.R. No. 163825, July 13, 2010).
(NEW CIVIL CODE, Art. 1911).

When an agent exceeds his authority in his agency, ESTOPPEL

the principal whom he is supposedly representing is A bar which precludes a person from denying or
not bound thereby. The contract is considered asserting anything contrary to that which has been
“unenforceable” as long as it is not ratified by the established as the truth by his own deed or
principal (NEW CIVIL CODE, 1317, par. 2). Such representation either express or implied (DE LEON,
contract binds only the agent (NEW CIVIL CODE, Art. supra at 575).
1897; PINEDA, supra at 371).

However, a banking corporation is liable to innocent

third persons where the representation is made in the
course of its business by an agent acting within the
general scope of his authority even though, in the
 APPARENT AUTHORITY AND RATIFICATION ESTOPPEL
AUTHORITY BY ESTOPPEL,
DISTINGUISHED As to Substance

APPARENT AUTHORITY BY Confirmation of the Principal’s inducement

AUTHORITY ESTOPPEL unauthorized act or to another to act to his
contract after it has prejudice. Acts and
As to Definition been done or made. conduct amounting to
Ratification may be an estoppel in pais may
That which though not Where the principal, by complete without any in some instances
actually granted, the his culpable negligence, elements of estoppel. amount to ratification.
principal knowingly permits his agent to
permits the agent to exercise power not (Id. at 575-576).
exercise or hold him out granted to him, even
as possessing. though the principal has In an agency by estoppel or apparent authority, "the
no notice or knowledge principal is bound by the acts of his agent with the
of the conduct of the apparent authority which he knowingly permits the
agent. agent to assume, or which he holds the agent out to
the public as possessing." The principals’
(respondents) acquiescence of the agent’s (Hojilla)
As to Basis acts was made when they failed to repudiate the
latter's acts. They knowingly permitted the agent to
Founded on conscious Based on negligence of represent them and petitioners were clearly misled
permission of acts the principal in failing into believing the agent’s authority. Thus, the
beyond the powers properly to supervise principals are now estopped from repudiating the
granted. the affairs of agent, agent's authority, and the agent's actions are binding
allowing him to exercise upon the respondents (Republic of the Philippines v.
powers not granted to Bañez, G.R. No. 169442, October 14, 2015).
him, and so justifies
others in believing he NOTE: In implied agency, there is actual agency. The
possesses the requisite principal alone is liable. In agency by estoppel, the
authority. authority of the agent is not real but only apparent:
1. If the estoppel is caused by the principal, he is
(DE LEON, supra at 579). liable to pay third persons who relied on the
misrepresentation;
2. If it is caused by the agent, then only the agent is
RATIFICATION AND ESTOPPEL,
liable (Id. at 581).
DISTINGUISHED
RATIFICATION ESTOPPEL OBLIGATION TO ADVANCE FUNDS
The principal must advance to the agent, should the
As to Basis latter so request, the sums necessary for the
Rests on intention, Rests on prejudice execution of the agency.
express or implied, rather than intention.
regardless of prejudice Should the agent have advanced them, the principal
to another. must reimburse him therefor, even if the business or
undertaking was not successful, provided the agent
is free from all fault.
As to Effect
The reimbursement shall include interest on the sums
Is retroactive and Operates upon advanced, from the day on which the advance was
makes the agent’s something which has made (NEW CIVIL CODE, Art. 1912).
unauthorized act good been done but after the
from the beginning. misleading act and in In the absence of stipulation that the agent shall
reliance on it and may advance the necessary funds (NEW CIVIL CODE,
only extend to so much Art. 1886), the principal must advance to the agent
of such act as can be the sums necessary for the execution of the agency
shown to be affected by (DE LEON, supra at p. 582).
the stopping conduct.
Failure of the agency, through no fault of the agent
must be borne solely by the principal. It is unfair to
hold this failure against an innocent agent (5 PARAS, or property against which it is asserted must be
supra at 858). in his actual or constructive possession, and he
must have acquired such possession lawfully
Even if the agency be gratuitous, this Article still and in his capacity as an agent (Id.).
applies; hence, the agent will still be entitled to
reimbursement and interest. This is so because the 3. The right generally only in favor of agent – In the
reimbursement and interest in Article 1912 does not absence of ratification of the sub-agent’s acts by
refer to compensation or commission (Id.). the principal, the right of lien exists only in favor
of the agent and cannot be claimed by one to
The right of the agent to be reimbursed is not whom the agent delegates his authority where no
dependent upon the success of the undertaking or privity exists between the sub-agent and his
the transaction. The reimbursement shall include principal (Id. at 586).
interest. In the absence of any agreement, it shall be
the legal rate at six percent (6%) (PINEDA, supra at JOINT PRINCIPALS
374-375). Two or more persons who appoint an agent for a
common transaction or undertaking (PINEDA, supra
OBLIGATION TO INDEMNIFY FOR at 378).
DAMAGES
The principal must also indemnify the agent for all the Nature of Liability
damages which the execution of the agency may If two or more persons have appointed an agent for a
have caused the latter, without fault or negligence on common transaction or undertaking, they shall be
his part (NEW CIVIL CODE, Art. 1913). solidarily liable to the agent for all the consequences
of the agency (NEW CIVIL CODE, Art. 1915).
The liability of the principal for damages is limited only
to that which the execution of the agency has caused Solidarity is the rule under this Article because of the
the agent. Thus, no promise to indemnify will be common transaction. Thus, even if the agents have
implied for losses or damages caused by the been appointed separately, the rule should apply in
independent and unexpected wrongful acts of third the interest of justice (PINEDA, supra at 378).
persons for which the principal is in no way
responsible (DE LEON, supra at 584). NOTE: A transaction or undertaking is common to all
principals if it is one as to which their interests are in
The rule is based on equity and applies even more if accord and in harmony (11 Manresa 561 as cited in
the agency is gratuitous (5 PARAS supra at p. 859). DE LEON, supra at 587). The rule in Art. 1915 applies
even when the appointment was made by the
RIGHT OF LIEN principals in separate acts, provided that they are for
the same transaction (Id. at 587).
The agent may retain in pledge the things which are
the object of the agency until the principal effects the
Requisites of Solidary Liability: (2C2)
reimbursement and pays the indemnity set forth in
1. There are two (2) or more principals
the two preceding articles (NEW CIVIL CODE, Art.
2. The principals have all Concurred in the
1914).
appointment of the same agent; and
3. The agent is appointed for a Common transaction
Kinds
or undertaking (Id. at 587).
Legal pledge or pledge by operation of law (PINEDA,
supra at 377).
NOTE: Any one of the principals may revoke the
agency (NEW CIVIL CODE, Art. 1925).
For the protection of the agent, the law provides that
the agent has the right to retain in pledge the objects
Illustrations:
of the agency until the principal shall have
W, X, and Y employ A as agent to sell a land owned
reimbursed him for the advances he made with
in common by the three, with A receiving a
interest as well as the amount of indemnity for the
commission of P1, 500,000. If A is successful, A can
losses and damages he suffered while fulfilling the
collect from any of the three the sum of P1, 500,000
agency (Id.).
because of their solidary liability. Of course, if X pays
P1, 500,000, he can recover reimbursement of
NATURE OF AGENT’S RIGHT OF LIEN P500,00 each from W and Y (5 PARAS, supra at 859-
1. The right is limited to the subject matter of the 860).
agency (DE LEON, supra at 585).
C, D, and E appoint F as their agent to sell their
2. The right requires possession by agent of subject separate houses. The liability of C, D, and E are
matter – To entitle the agent to a lien, the funds merely joint and not solidary even if the appointment
is made in one instrument. This is because this is principal will receive the benefits derived from the
NOT a common transaction or undertaking (Id. at contract, there is ratification and therefore, he is
860). bound to pay the expenses incurred by the agent
(PINEDA, supra at 381-382).
TWO PERSONS CONTRACT
SEPARATELY WITH AGENT AND 2. When the expenses were due to the Fault of the
agent (NEW CIVIL CODE, Art. 1918 par. 2).
PRINCIPAL
When two persons contract with regard to the same REASON: Fairness dictates that where the
thing, one of them with the agent and the other with expenses were incurred because of the fault or
the principal, and the two contracts are incompatible negligence of the agent, he alone should bear the
with each other that of prior date shall be preferred, expenses (PINEDA, supra at 382).
without prejudice to the provisions of Article 1544.
(NEW CIVIL CODE, Art. 1916). 3. When the agent incurred them with Knowledge
that an unfavorable result would ensue, if the
When the principal and the agent separately principal was not aware thereof (NEW CIVIL
contracted for the sale of the same property which is CODE, Art. 1918 par. 3).
the object of the agency, the following rules shall be
observed: REASON: To punish the agent. He should not
1. The contract of prior date shall prevail. carry out the agency if the execution thereof
2. But, if the rule on double sale under Article 1544 would manifestly result in loss or damage to the
is applicable, said article applies. principal (NEW CIVIL CODE, Art 1888).
However, if the principal is aware of the resulting
LIABILITY TO THIRD PERSON OF AGENT effect of the execution and did not stop the agent,
OR PRINCIPAL WHO CONTRACTS the agent is excused from liability (PINEDA,
SEPARATELY supra at 382).
In the case referred to in the preceding article, if the
4. When it was Stipulated that the expenses would
agent has acted in good faith, the principal shall be
be borne by the agent, or that the latter would be
liable in damages to the third person whose contract
allowed only a certain sum (NEW CIVIL CODE,
must be rejected. If the agent acted in bad faith, he
Art. 1918 par. 4).
alone shall be responsible (NEW CIVIL CODE, Art.
1917).
REASON: The stipulation of exemption excuses
the principal from expenses. The parties are free
Whether the principal or the agent will be the one
to enter into allowable stipulations (NEW CIVIL
liable for damages to the third person who has been
CODE, Art. 1306).
prejudiced under Article 1916 depends on whether
the agent acted in bad faith or not. If the agent acted
in good faith and within the scope of his authority, the LIABILITY FOR AGENT’S ILLICIT ACTS
principal incurs liability. If the agent acted in bad faith, GENERAL RULE: Where the fault or crime
he alone shall be responsible to such third person committed by the agent is not in the performance of
(DE LEON, supra at 590). an obligation of the principal, the latter is not bound
by the illicit act of the agent, even if it is done in
LIABILITY OF PRINCIPAL FOR THE connection with his functions (5 TOLENTINO, supra
at 426).
EXPENSES INCURRED
GENERAL RULE: The principal is liable for the EXCEPTIONS: (DeSC)
expenses incurred by the agent in the execution of 1. Where the delict or the quasi-delict was
the agency (PINEDA, supra at 381). committed by the agent because of Defective
instructions from the principal, or due to the lack
EXCEPTIONS: The principal is not liable for the of necessary vigilance or supervision on his part,
expenses incurred by the agent in the following the principal is liable for his own negligence;
cases: (CF-KS) 2. When the agent Secures a contract through
1. If the agent acted in Contravention of the fraud, or makes a fraudulent alienation, or
principal’s instructions, unless the latter should executes a simulated contract, all of these acts
wish to avail himself of the benefits derived from are imputable to the principal as if done by him,
the contract (NEW CIVIL CODE, Art. 1918 par. because the illicit act is inseparable from the
1). transaction executed for him; or
3. When the crime consists in the performance of
REASON: To penalize the agent for disobeying an act which is within the powers of the agent, but
the instructions of the principal. However, if the becomes Criminal only because of the manner in
 which the agent has performed it, the principal is b. Mutual Withdrawal from the relationship by the
liable to third persons who act in good faith (Id. at principal and agent;
426-427). c. By the happening of a supervening event that
makes illegal or impossible the objective or
NOTE: Principal is still liable for mismanagement of purpose for which the agency was constituted,
business by the agent (Commercial Bank & Trust Co. like the destruction of the subject matter which is
v. Republic Armored Car Service Corp., G.R. No. L- the object of the agency.
18223, June 29, 1963).
NOTE: Agency is terminated, as a matter of law,
upon the outbreak of war (DE LEON, supra at 598).

MODES OF BASES OF THE MODES OF

EXTINGUISHMENT OF EXTINGUISHMENT:
1. Revocation
AGENCY Agency is an act of trust and confidence. It
ARTS. 1919-1932 ceases when the trust and confidence disappear.
Consequently, the principal is allowed to
terminate the agency when he loses his trust and
confidence is the agent. The unilateral act of
PRESUMPTION OF CONTINUANCE OF revocation of the principal is a sufficient cause
to extinguish the contract of agency (PINEDA,
AGENCY supra at 383).
When once shown to have existed, an agency
relation will be presumed to have continued, in the But the revocation must not be done in bad faith
absence of anything to show its termination (DE (Id.).
LEON, supra at 592).
Hence, if a principal acts in bad faith and with
CONTINUANCE OF AGENCY abuse of right in terminating the agency, then he
Parties must be: is liable in damages (Valenzuela v. Court of
a. Present; Appeals, G.R. No. 83122, October 19, 1990).
b. Capacitated; and
c. Solvent (DE LEON, supra at 593). The power to revoke agency is an exception to
the general rule on mutuality of contracts in
MODES OF EXTINGUISHMENT OF Article 1308 (Id.).
AGENCY: (EDWARDO)
2. Withdrawal of the Agent
1. Expiration of the period;
The agent may withdraw from the agency by
2. Death, civil interdiction, insanity or insolvency of
giving due notice to the principal (NEW CIVIL
the principal or of the agent;
CODE, Art. 1928). However, although his
3. Withdrawal of the agent;
withdrawal is for a valid reason, he must continue
to act until the principal has had the reasonable
NOTE: Agent may withdraw by giving notice to
opportunity to take necessary steps to meet the
the principal, but must indemnify the principal for
situation (NEW CIVIL CODE, Art. 1929).
damages that he may suffer by reason of such
withdrawal (NEW CIVIL CODE, Art. 1928).
3. Death
GENERAL RULE: Agency is extinguished ipso
4. Accomplishment of the object or the purpose of
jure upon the death of either principal or agent
the agency;
(DE LEON, supra at 594). The death of the
5. Revocation;
principal terminates the agency, even if a period
6. Dissolution of the firm or corporation, which
has been stipulated and such period has not yet
entrusted or accepted the agency
ended (5 PARAS, supra at 865).
7. Other modes of extinguishing a simple contract
(NEW CIVIL CODE, Art. 1919).
Under Article 1919, New Civil Code, agency is
extinguished by the death of the agent. His rights
Other Modes:
and obligations arising from the contract are not
Article 1919 gives only those causes of extinction
transmittable to his heirs (Sps. Terrado v. CA,
which are peculiar to agency. The list is not exclusive
G.R. No. L-58794, August 24, 1984).
(DE LEON, supra at 592).
a. Loss and novation (NEW CIVIL CODE, Art.
1231);
REASON: With the death of the principal, the for the agent’s (mortgagee) own protection.
source of authority is extinguished; whereas if the (DE LEON, supra at 595).
agent dies, he can no longer act for the benefit
and representation of the principal (DE LEON, The power to foreclose is not an ordinary
supra at 584). agency that contemplates exclusively the
representation of the principal by the agent
EXCEPTIONS: (IKCDAE) but is primarily an authority conferred upon
a. The agency is coupled with an Interest (NEW the mortgagee for the latter's own protection.
CIVIL CODE, Art. 1930). It is, in fact, an ancillary stipulation supported
i. If the agency has been constituted in the by the same causa or consideration for the
common interest of the principal and the mortgage and forms an essential and
agent; inseparable part of that bilateral agreement..
(Perez v. Philippine National Bank, G.R. No.
Interest in the Subject Matter L-21813, July 30, 1966).
In an agency coupled with an interest,
the agent’s interest must be in the The right of the mortgagee to extrajudicially
subject matter of the power conferred foreclose the mortgage after the death of the
and not merely an interest in the exercise mortgagor does not depend on the
of the power because it entitles him to authorization in the deed of mortgage
compensation. When an agent’s interest executed by the latter. The right exists
is confined in earning his agreed independently and is clearly recognized in
compensation, the agency is not one Sec. 7, Rule 86 of the Rules of Court (DE
coupled with an interest, since an agent’s LEON, supra at 595; Bicol Savings and Loan
interest in obtaining his compensation as Association v. Court of Appeals, G.R. No.
such agent is an ordinary incident of the 85302, March 31, 1989).
agency relationship (Lim v. Saban, G.R.
No. 163720, December 16, 2004). The agent must finish the business begun on
the death of the principal, should delay entail
Illustration: Zenaida borrows from Jose, any danger (NEW CIVIL CODE, Art. 1884).
and as a security, entrusts to Jose a ring,
which Jose can sell in case Zenaida fails c. Civil Interdiction (RPC, Art. 34), insanity and
to pay the debt at the time of the maturity. insolvency
Even if Zenaida dies, the agency of Jose Civil interdiction deprives the offender during the
would still remain (5 PARAS, supra at period of his sentence of the right to manage his
873). property and dispose of such property by any act
of any conveyance inter vivos. A person under
ii. If it has been constituted in the interest of civil interdiction cannot validly give consent
a third person who accepted the (NEW CIVIL CODE, Art. 1327).
stipulation in his favor (NEW CIVIL
CODE, Art. 1930). As by an act of insolvency the principal loses
control of the subject matter of the agency, the
Illustration: Melady sells his land to authority of the agent to act for his principal
Bravo and appoints Bravo his agent in generally ceases by operation of law upon an
paying with the purchase price what adjudication of the principal’s insolvency. The
Melady owes Arellano, a third person. insolvency of the agent will put an end to the
Here, even when Melady dies, the agency, if it is in any way connected with the
agency of Bravo continues to exist (5 agent’s business, which has caused his failure
PARAS, supra at 873). (DE LEON, supra at 594).

b. The act of the agent was executed without d. Dissolution of the firm or corporation
Knowledge of the death of the principal and If the agent appointed is a corporation or a firm
the third person who contracted with the (partnership) which has a juridical personality,
agent in good faith (NEW CIVIL CODE, Art. once it is dissolved, it could no longer function as
1931). a principal or an agent except for winding up of
corporate affairs (CORPORATION CODE, Sec.
NOTE: Under Act No. 3135, the power of 122; now REVISED CORPORATION CODE,
sale in a deed of mortgage survives the death Sec. 139) or partnership affairs (NEW CIVIL
of the principal (mortgagor) as it is primarily CODE, Art. 1832).
an authority conferred upon the mortgagee
e. Accomplishment of object of purpose – death, legal incapacity, or insolvency of one
At least as between the parties, principal and would legally terminate the agency (Id.).
agent, the fulfillment of the purpose for which the
agency is created ipso facto terminated the LOSS OR DESTRUCTION OF SUBJECT
agency, even though expressed to be irrevocable MATTER
(DE LEON, supra at 596). The agency becomes
functus officio. It has no more basis for its GENERAL RULE: Agency is terminated (DE LEON,
existence (PINEDA, supra at 388). supra at 599).

f. Expiration of the period for which it was EXCEPTION (CSP):

constituted 1. Contrary agreement.
Where an agency, by the terms of the original 2. If it is possible to be Substituted by another.
agreement, is created for a fixed period or is to 3. Partial loss or destruction does not always
end at a certain time, the expiration of such terminate the agency. It may continue in
period or the arrival of that time, results in the existence as to other property not affected (Id).
termination of the relationship, even though the
purpose for which the agency was created has CHANGE OF CONDITIONS
not been accomplished. The parties may consent GENERAL RULE: Where there is a basic change in
to the continuation of the agency relationship the circumstances surrounding the transaction, which
beyond the period originally fixed. was not contemplated by the parties and which would
reasonably lead the agent to believe that the principal
i. Time is specified – upon the arrival of the would not desire him to act, the authority of agent is
time agreed upon. terminated (Id. at 600).
ii. Time not specified – at the end of a
reasonable time. Either party can terminate EXCEPTIONS: (R2C)
the relationship at will by giving notice to the 1. If the original circumstances are Restored within
other. a reasonable period of time.
iii. Period implied – the period may be implied 2. Where agent has Reasonable doubts as to
from the terms of the agreement, the purpose whether the principal would desire him to act, his
of the agency, and the circumstances of the authority will not be terminated if he acts
parties (DE LEON, supra at 596 -597). reasonably.
3. Where the principal and agent are in close daily
ACTS DONE WITHOUT KNOWLEDGE OF Contact, the agent’s authority to act will not
terminate upon a change of circumstances if the
PRINCIPAL’S DEATH
agent knows the principal is aware of the change
Anything done by the agent, without knowledge of the and does not give him new instructions (Id).
death of the principal or of any other cause that
extinguishes the agency, is valid and shall be fully
effective with respect to third persons who may have
REVOCATION OF AGENCY BY
contracted with him in good faith (NEW CIVIL CODE, PRINCIPAL
Art. 1931). GENERAL RULE: Agency is revocable at will of the
principal, regardless of the term of the agreement, at
EFFECT OF DEATH IN CASE OF any time, with or without reason (NEW CIVIL CODE,
Art. 1920).
MULTIPLE AGENTS
1. In case of several agents constituted for REASON:
the same business or property 1. The trust and confidence of the principal may
– death of one or more, but not all of them would have been lost (Barreto v. Santa Marina, G.R.
not extinguish the agency, with respect to those No. L-8169, December 29, 1913).
who remain living. 2. Since the authority of the agent emanates from
the principal, it is enough if he wishes to withdraw
NOTE: The same rule applies in case of civil or terminate the agency.
interdiction, insanity or insolvency of any but not 3. The principal-agent relationship is consensual
all of the common agents (VILLANUEVA, supra and personal in nature and no one can be forced
at 227). to retain another agent against his will (DE
LEON, supra at 605).
2. When it is clear at the constitution of the
agency that the common agents were
intended to be considered as having
capacity as a group and not individually
REVOCATION AT WILL IS PROPER agency has been given not only for the interest of
1. Even if the agency is onerous; the principal but for the interest of third persons
2. Even if the period fixed has not yet expired (5 or for the mutual interest of the principal and the
PARAS, supra at 866). agent. The principal may not defeat the agent's
right to indemnification by a termination of the
When done by the principal, it is called “revocation” contract of agency. Where the principal
and when done by the agent, it is usually spoken of terminates or repudiates the agent's employment
as “withdrawal” or “renunciation” (NEW CIVIL CODE, in violation of the contract of employment and
Art. 1919, par. 2; DE LEON, supra at 605). without cause, the agent is entitled to receive
either the amount of net losses caused and gains
EXCEPTIONS: (COMBI) (NEW CIVIL CODE, Art. prevented by the breach, or the reasonable value
1927) of the services rendered (Valenzuela v. Court of
1. When the agency is Coupled with interest; (DE Appeals, G.R. No. 83122, October 19, 1990).
LEON, supra at 619).
LIABILITY OF PRINCIPAL FOR DAMAGE
The interest possessed by the agent is not in the CAUSED BY REVOCATION
proceeds arising from the exercise of the power, While the principal may have absolute power to
but interest in the subject matter of the power revoke the agency at any time, he must respond in
(Del Rosario, et al. v. Abad & Abad, G.R. No. L- damages for breach of contract where the termination
10881, September 30, 1958). is wrongful, although Art. 1920 does not expressly
provide, in those cases wherein not having the legal
2. If it is the means of fulfilling an Obligation already right to do so, he should discharge the agent (DE
contracted; LEON, supra at 606).

3. If a partner is appointed Manager of a partnership 1. Fixed period

and his termination is unjustifiable; – principal shall be liable by the wrongful
discharge of the agent before expiration of the
4. If a Bilateral contract depends upon it; period (Id.).

Illustration: P wanted to make A his surety so P 2. No fixed period

made A his agent as a sort of inducement to – the principal is at liberty to terminate agency at
safeguard him from eventual loss (5 PARAS, will subject only to the requirement of good faith
supra at 820); and (Danon v. Brimo & Co., G.R. No. 15823,
September 12, 1921).
5. If it is created not only for the Interest of the
principal but also for the interest of third persons,
NOTICE OF REVOCATION
who have accepted the stipulation in their favor.
1. To the agent
NOTE: Agency coupled with interest may be Express notice to the agent is not always
revoked for a just cause (DE LEON, supra at necessary. If the party to be notified actually
625). knows, or has reason to know, facts indicating
that his authority has been terminated or
A power of attorney can be made irrevocable by suspended, there is sufficient notice (DE LEON
contract only in the sense that the principal may supra at 609).
not recall it at his pleasure; but coupled with
interest or not, the authority certainly can be NOTE: A revocation without notice to the agent
revoked for a just cause, such as when the will not render invalid an act done in pursuance
attorney-in-fact betrays the interest of the of the authority (Id.).
principal. It is not open to serious doubt that the
irrevocability of the power of attorney may not be 2. To third persons
used to shield the perpetration of acts in bad Actual notice must be brought home to the former
faith, breach of confidence, or betrayal of trust, by customer. While notice by publication is sufficient
the agent for that would amount to holding that a to other persons (NEW CIVIL CODE, Art. 1873;
power coupled with an interest authorizes the DE LEON, supra at 609).
agent to commit frauds against the principal
(Coleongco v. Claparols, G.R. No. L-18616, In a case involving a general power of attorney
March 31, 1964). permitting the agent to deal with the general
public, the Supreme Court held that: Evidence
There is an exception to the principle that an had been adduced that notice in writing had been
agency is revocable at will and that is when the served not only on Choithram, but also on
 Ortigas, of the revocation of Choithram's power the two preceding articles (NEW CIVIL CODE,
of attorney by Ishwar's lawyer, on May 24, 1971. Art.1923).
A publication of said notice was made in the April
2, 1971 issue of The Manila Times for the IMPLIED REVOCATION MAY BE
information of the general public. Such notice of EFFECTED:
revocation in a newspaper of general
circulation is sufficient warning to third persons 1. By the act of the principal in appointing
including Ortigas (Ramnani v. CA, G.R. No. another agent for the same business or
85494, May 07, 1991). transaction (NEW CIVIL CODE, Art. 1923);

NOTE: In the absence of any notice of A special power of attorney giving the son the
revocation, the principal may also be held liable authority to sell the principal’s properties is
even to third persons who never dealt with the deemed revoked by a subsequent general power
agent previous to the revocation, if they, in of attorney that does not give such power to the
common with the public at large, are justified in son, and any sale effected thereafter by the son
believing that such agency continues to exist (DE in the name of the father would be void (Dy
LEON, supra at 609). Buncio & Co. v. Ong Guan Can, G.R. No. L-
40681, October 2, 1934).
KINDS OF REVOCATION:
The revocation does not become effective as
a. Express revocation; and
between the principal and the agent until it is in
b. Implied revocation (DE LEON, supra at 608).
some way communicated to the latter (DE LEON,
supra at 614).
AGENCY FOR THE PURPOSE OF
CONTRACTING WITH SPECIFIED THIRD The rights of third persons who acted in good
PERSONS faith and without knowledge of the revocation will
If the agency has been entrusted for the purpose of not be prejudiced thereby (Id. at 614).
contracting with specified persons, its revocation
shall not prejudice the latter if they were not given A special power revokes a general one as to the
notice thereof (NEW CIVIL CODE, Art. 1921). special matter involved in the latter (NEW CIVIL
CODE, Art.1926).
The revocation of this kind of agency shall not
prejudice specified persons who were not timely But there is no implied revocation where the
notified of the act of revocation. They must be given appointment of another agent is not incompatible
the opportunity to meet the situation so that they may with the continuation of a like authority in the first
be able to protect their rights and interest (PINEDA, agent, or the first agent is not given notice of the
supra at 391). appointment of the new agent (DE LEON, supra
at 614).
If the agent fails or refuses to return the power of
attorney, it is incumbent upon the principal to give NOTE: There is no proof in the record that the
proper notice to the members of the public who may first agent, the son, knew of the power-of-
be affected by the revocation. Under Article 1921 of attorney to his mother. It was necessary under
the New Civil Code, if the agency has been entrusted the law for the defendants, in order to establish
for the purpose of contracting with specified persons, their counterclaim, to prove that the son had
its revocation shall not prejudice the latter who were notice of the second power-of-attorney (Garcia v.
not given notice thereof (VILLANUEVA, supra at De Manzano, G.R. No.13414, February 4, 1919).
209).
2. By the act of the principal in directly
IMPLIED REVOCATION managing the business entrusted to the
If the agent had general powers, revocation of the agent (NEW CIVIL CODE, Art. 1924);
agency does not prejudice third persons who acted in
good faith and without knowledge of the revocation. The agency is deemed impliedly revoked
Notice of the revocation in a newspaper of general because there is no more basis for the existence
circulation is a sufficient warning to third persons of the agency. There is no more representation
(NEW CIVIL CODE, Art. 1922). of the principal, which is the basis of the agency.
(PINEDA, supra at 397).
The appointment of a new agent for the same But the intervention of the principal after having
business or transaction revokes the previous agency appointed an agent in the very business which he
from the day on which notice thereof was given to the has delegated to the latter will not revoke the
former agent, without prejudice to the provisions of
 agency if there is no incompatibility (DE LEON, is as yet no revocation of his powers (VILLANUEVA,
supra at 615). supra at 201).
When the agency is stipulated to be exclusive (or
The rule applies only in the case of when compensation is anchored on the success of
incompatibility. In case of true inconsistency, the the transactions entrusted to the agent), the principal
agency is revoked, for there would be no longer is deprived of the authority to appoint a new agent for
any basis therefor (11 Manresa 547 as cited in the same transaction whether the new appointment
DE LEON, supra at 615). is joint with the first agent or by way of revocation
(implied) of the power of first agent (PINEDA, supra
Revocation as a form of extinguishing an agency at 396).
under Article 1924 of the Civil Code only applies
in cases of incompatibility, such as when the REVOCATION BY ONE OF THE TWO OR
principal disregards or bypasses the agent in MORE PRINCIPALS
order to deal with a third person in a way that
excludes the agent. The principals' claim for loss When two or more principals have granted a power
cannot be seen as an implied revocation of the of attorney for a common transaction, any one of
agency or their way of excluding the agent them may revoke the same without the consent of the
(petitioner). They did not disregard or bypass the others (NEW CIVIL CODE, Art. 1925).
agent when they made an insurance claim;
rather, they had no choice but to personally do it As the appointment of an agent by two (2) or more
because of their agent's negligence. This is not principals for a common transaction or undertaking
the implied termination or revocation of an makes them solidarily liable to the agent for all the
agency provided for under Article 1924 of the consequences of the agency (NEW CIVIL CODE, Art.
Civil Code (International Exchange Bank vs. 1915), any one of the principals is granted under this
Spouses Briones, G.R. No. 205657; March 29, article the right to revoke the power of attorney
2017). without the consent of the others (DE LEON, supra at
617).
When is the agency revoked?
Although the provision does not state when the act of REASON: In a solidary obligation, the act of one is
revocation takes place, it can be presumed therefore the act of all (Id.).
that the moment the principal directly manages the 1. By the act of the principal in subsequently
business by dealing directly with third persons, the granting a special power of attorney as regards
agency is revoked (VILLANUEVA, supra at 201). the same business to another agent, where he
had previously granted a general power of
Logic dictates that when a principal disregards or attorney to one agent (NEW CIVIL CODE, Art.
bypasses the agent and directly deals with such 1926).
person in an incompatible or exclusionary manner,
said third person is deemed to have knowledge of the 2. When an agent is granted a general power to do
revocation of the agency. They are expected to know certain acts by his principal and the latter
circumstances that should have put them on guard as subsequently granted a special power to another
to the continuing authority of that agent. The mere agent to do the same matter or transaction, the
fact of the principal dealing directly with the third former power is impliedly revoked. There is a
person, after the latter had dealt with an agent, should parallelism with the rule that a special law
be enough to excite the third person's inquiring mind prevails over a general law. Impliedly, a general
on the continuation of his authority. (Yap Bitte v. power subsequently granted to another agent
Spouses Jonas, G.R. No. 212256, December 09, does not revoke the special power, unless it is
2015). clearly stated that the special power is revoked
by the subsequent general power (PINEDA,
Note: Revocation of the agency is only with respect supra at 399).
to the third persons with whom the principal deals
directly; as to third person who have previously NOTE: A special power is not revoked by a
known of the power of attorney of the agent and who subsequent general power of attorney given to
have not dealt with the principal, the agency cannot another agent, unless the latter refers also to the
be considered revoked (Id.). act authorized under the special power (5
TOLENTINO, supra at 436).
It is also apparent that unless the agent is aware or
given notice that the principal has directly managed
the business which is covered by his power of
attorney, then insofar as the agent is concerned there
REVOCATION AT WILL to remedy the situation caused by the withdrawal.
GENERAL RULE ON REVOCATION: The principal The purpose of the law is to prevent damage or
may revoke the agency at will. prejudice to the principal (DE LEON, supra at 629).

EXCEPTIONS: (BFA) The agency shall remain in full force and effect even
1. When a Bilateral contract depends upon it; after the death of the principal, if it has been
2. If it is a means of Fulfilling an obligation already constituted in the common interest of the latter and of
contracted; the agent, or in the interest of a third person who has
3. If a partner is Appointed manager or a accepted the stipulation in his favor (NEW CIVIL
partnership in the contract of partnership and his CODE, Art. 1930).
removal from the management is unjustifiable
(NEW CIVIL CODE, Art. 1927). EFFECT OF DEATH OF THE PRINCIPAL
General Rule: Agency is terminated instantly by the
AGENCY COUPLED WITH AN INTEREST death of the principal (NEW CIVIL CODE, Art. 1919,
An agency that is established for the mutual benefit par. 3).
of the principal and of the agent, or for the interest of
the principal and of third persons, and it cannot be An agency is extinguished by the death of the
revoked by the principal so long as the interest of the principal. Any act by the agent subsequent to the
agent or of a third person subsists (Lim v. Saban, principal's death is void ab initio, unless any of the
G.R. No. 163720, December 16, 2004). exceptions expressly recognized in Article 1930 and
Article 1931 of the Civil Code is applicable (Lopez v.
Court of Appeals, G.R. No. 163959, August 1, 2018).
WHEN A PARTNER IS APPOINTED
MANAGER OF A PARTNERSHIP AND IS Exceptions:
REMOVED UNJUSTIFIABLY 1. If the agency has been constituted in the
If a partner was agreed to be the manager of a common interest of the principal and the agent
partnership as indicated in the Certificate of (NEW CIVIL CODE, Art. 1930);
Partnership, and for which he would devote time and 2. If it has been constituted in the interest of a third
efforts and was thus induced to resign from his other person who has accepted the stipulation in his
professional works so he could render full time as favor (NEW CIVIL CODE, Art. 1930);
manager, and has been dealing with third persons as 3. If the agent had no knowledge of the death of the
a representative of the firm, his appointment as principal or any other cause which extinguishes
manager cannot be revoked without valid justification the agency, and the third person who may have
(NEW CIVIL CODE, Art. 1800). contracted with him was in good faith (NEW
CIVIL CODE, Art. 1931);
The agent may withdraw from the agency by giving 4. If the agent had already begun the business and
due notice to the principal. If the latter should suffer there is an imperative need to finish the same to
any damage by reason of the withdrawal, the agent avoid danger, prejudice or damage to the
must indemnify him therefore, unless the agent principal (NEW CIVIL CODE, Art. 1884).
should base his withdrawal upon the impossibility of
continuing the performance of the agency without VALIDITY OF THE ACTS OF THE AGENT
grave detriment to himself (NEW CIVIL CODE, Art. AFTER EXTINGUISHMENT OF AGENCY
1928). Anything done by the agent, without knowledge of the
death of the principal or of any other cause which
Just as the principal may, at his will, terminate the extinguishes the agency, is valid and shall be fully
representation conferred by revoking the power effective with respect to third persons who may have
executed, likewise the agent may terminate the contracted with him in good faith (NEW CIVIL CODE,
agency by renouncing the trust (PINEDA, supra at Art. 1931).
406).
An act done by the agent after the death of the
The agent, even if he should withdraw from the principal is valid and effective only under two
agency for a valid reason, must continue to act until conditions:
the principal has had reasonable opportunity to take 1. That the agent acted without knowledge of the
the necessary steps to meet the situation (NEW death of the principal; and
CIVIL CODE, Art. 1929). 2. The third person who contracted with the agent
acted in good faith (Rallos v. Go Chan & Sons,
Even when the agent withdraws from the agency for G. R. No. L-24332, January 31, 1978).
a valid reason, he must continue to act until the
principal has had reasonable opportunity to take the
necessary steps like the appointment of a new agent
NOTE: Both the agent and the third person must be
in good faith (PINEDA, supra at 412).

DUTY OF HEIRS TO NOTIFY UPON THE

DEATH OF AGENT
If the agent dies, his heirs have the duty to notify the
principal thereof and, in the meantime, adopt such
measures as the circumstances may demand in the
interest of the latter (NEW CIVIL CODE, Art. 1932).

NOTE: Art. 1932 does not impose on the heirs of the

principal the duty to notify the agent of the death of
the principal (DE LEON, supra at 636).

Can the heirs of the agent continue the agency?

GENERAL RULE: An agency cannot be performed
by the agent’s personal representatives in case of his
death because agency calls for personal services.

EXCEPTIONS:
1. In case of agency by operation of law or
presumed or tacit agency;
2. Where the agency is one coupled with an interest
(DE LEON, supra at 636-637).

NOTE: The Civil Code does not impose a duty on the

heirs to notify the agent of the death of the principal
(Rallos v. Go Chan & Sons, G. R. No. L-24332,
January 31, 1978).

EFFECT OF AN AGREEMENT THAT

AGENCY WILL CONTINUE AFTER
DEATH OF THE PRINCIPAL
If there is an agreement that even after the death of
the principal, the agency will still continue, the
agreement shall be void (PINEDA, supra at 416).
 CREATION OF BAILMENT
CREDIT TRANSACTIONS It may be created:
1. By contract
– in which case, it must contain all the elements
of a valid contract to be legally enforceable; or
CREDIT TRANSACTIONS
2. By operation of law (ld at 4).
Contracts of security that include all transactions
involving the purchase or loan of goods, services, or
money with a promise to pay or deliver in the future
PARTIES IN BAILMENT:
(DE LEON, Comments and Cases on Credit 1. Bailor (Comodatario)
Transactions, (2021), p. 1) [hereinafter, DE LEON]). – delivers the possession or custody of the thing
bailed; and
SECURITY
Ensures enforcement of an obligation or protects
2. Bailee (Comodante)
some interest in property (Id. at 2). – receives the custody or possession of the
thing thus delivered (Id. at 4).
TYPES OF CONTRACTS OF SECURITY:
KINDS OF CONTRACTUAL BAILMENT:
1. Secured transactions or contracts of real
1. For the sole benefit of bailee
security
a. Commodatum
– transactions supported by a collateral or an
b. Gratuitous simple loan/mutuum
encumbrance of property; and
2. For the sole benefit of bailor
2. Unsecured transactions or contracts of
a. Gratuitous deposit
personal security b. Mandatum
– transactions supported only by a promise to
pay, or commitment of another such as a
3. For the benefit of both parties (mutual-
guarantor or surety (Id. at 1).
benefit bailments)
a. bailments of mere keeping
BAILMENT b. bailments of carriage (private carriage)
It signifies a situation in which one person holds c. bailments of goods delivered to another
personal property, the ownership of which is in to work upon
another. The person who has possession is under d. bailments of goods delivered to another
the obligation to return the same goods, either in the to work with
same or in altered form to the owner, or disposes of e. bailments for security (pledges
them for his benefit, when the purpose of the f. bailments of vendor in possession after
bailment shall have been accomplished (Id. at 2). sale

4. Fortuitous Bailments
– bailments arising out of finding, salvage, theft,
etc. (Id. at 5-6).

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA R. TAMPUS, Vice
Chairperson for Secretariat | ARVY KEITH N. CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice
Chairperson for Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. TIMOTEO B. AQUINO

KINDS OF BAILMENT FOR HIRE: 2. Loan Agreement between the credit card
1. Hire of things (locatio rei) holder and the credit card issuer; and
– where goods are delivered for the temporary 3. The promise to pay between the credit card
use of the hirer. issuer and the merchant or business
establishment (Pantaleon v. American
2. Hire of service (locatio operis faciendi) Express International, Inc. G.R. No. 174269,
– where goods are delivered for some work or August 25, 2010).
labor upon it by the bailee.
The Credit Card Company has No duty to
3. Hire for carriage of goods (locatio operis Approve
mercium vehendarum) When the Card holder use their credit cards to pay
– where goods are delivered either to a their purchases, they merely offer to enter into loan
common carrier or to a private person for the agreements with the credit card company. Only after
purpose of being carried from place to place. the latter approves the purchase requests that the
parties enter into binding loan contracts (Id).
4. Hire of custody (location custodiae)
– where goods are delivered for storage (Id. at KINDS OF LOAN:
7).
1. Commodatum
– bailor delivers to the bailee a non-consumable
thing so that the latter may use it for a certain
time and return the identical thing; and
LOAN (ARTS. 1933–1934)
2. Simple loan (mutuum)
– lender delivers to the borrower money or other
consumable thing upon the condition that the
CONTRACT OF LOAN latter shall return the same amount of the same
A contract wherein one of the parties delivers to kind and quality (CIVIL CODE, Art. 1933).
another, either something not consumable so that
the latter may use the same for a certain time and Consumables – are those things which cannot
return it, in which case it is called commodatum; or be used in a manner appropriate to their nature
money, or other consumable things, upon the without their being consumed (CIVIL CODE, Art.
condition that the same amount of the same kind and 418).
quality shall be paid, in which case it is simply called
a loan or mutuum (CIVIL CODE, Art. 1933). COMMODATUM V. MUTUUM
The contract of loan is governed by the rules as to COMMODATUM MUTUUM
the requisites and validity of contracts in general (DE
LEON, supra at 9). As to Object

GENERAL RULE: Consumable/Fungible

MONEY MARKET TRANSACTION IS A Non-consumable/Non- (CIVIL CODE, Art. 418
LOAN fungible and Art. 1933)
A money market transaction is in the nature of a
loan. Money market has been defined to be a market EXCEPTION:
dealing in standardized short-term credit If the purpose of the
instruments where lenders and borrowers don’t deal contract is not the
directly with each other but through a middleman or consumption of the
dealer in the open market. In a money market object (e.g. for
transaction, the investor is the lender who loans his exhibition) (CIVIL
money to a borrower through a middleman or dealer CODE, Art. 1936)
(Cebu International Finance Corporation v. Court of
Appeals, G.R. No. 123031, October 12, 1999). As to Cause

Essentially gratuitous. Generally gratuitous

CREDIT CARDS although it may also be
Every Credit Card Transactions involves three onerous for there may
contracts, namely: be stipulation of
1. Contract of Sale between the cardholder interest.
and the merchant of business establishment
that accepted the card;
 COMMODATUM MUTUUM 2. Unilateral contract
– once the subject matter has been delivered, it
As to Purpose creates obligations on the part of only one of the
parties (i.e. borrower) (DE LEON, supra at 16).
Use or temporary Consumption.
possession. 3. Nominate contract
– it has been given a specific name by the Civil
Code (Id. at 16).
As to Subject Matter
4. Principal contract
Any property Personal property.
– its existence is not dependent on another
contract (Id. at 17).
NOTE: May be movable
or immovable and, if it is
movable property, it is 5. Informal contract
ordinary non- – no particular form is required for the contract
consumable (Id. at 17).

As to Ownership of the Thing 6. Gratuitous contract

– the bailee does not pay the bailor for the use
Retained by bailor. Passes to the debtor. of the thing (Id. at 17).

As to Return of the Thing LOAN V. CREDIT

Exact thing loaned. Equal amount of the LOAN CREDIT
same kind and quality.
Contract for the delivery Ability of a person to
As to Risk of Loss by one party and receipt borrow money or things
of other party of a given by virtue of the trust or
Bailor. Debtor or bailee. sum of money, or other confidence reposed by
consumable things the lender so that he will
As to Time of Return upon agreement, pay what he may
express or implied, to promise within a
In case of urgent need Upon expiration of the
repay the same amount specified period (DE
and commission of any term only.
of the same kind and LEON, supra at 10).
acts of ingratitude, even
quality, with or without
before the expiration of
interest (CIVIL CODE, The concession of
the term.
Art. 1933). “credit” necessarily
(DE LEON, supra at 13). involves the granting of
“loans” up to the limit of
CHARACTERISTICS: (RUN-PIG) the amount fixed in the
1. Real contract “credit” (ld. at 10).
– delivery of the thing loaned is necessary for
the perfection of the contract because the CREDIT IN RELATION TO DEBT
purpose of the contract is to transfer either the Credit is a sum credited on the books of a company
use or the ownership of the thing loaned (CIVIL to a person who appears to be entitled to it. It
CODE, Art. 1316). presupposes a creditor-debtor relationship, and may
be said to imply ability, by reason of property or
NOTE: An accepted promise to make a future estates, to make a promised payment (Chinatrust
loan is a consensual contract, and therefore (Phils.) Commercial Bank v. Turner, G.R. No.
binding upon the parties. However, it is only after 191458, July 3, 2017).
delivery of the subject matter will the real
contract of loan arise (CIVIL CODE, Art. 1934).
LOAN V. DISCOUNTING OF PAPER
The non-fulfillment of an accepted promise will DISCOUNTING OF
give rise to an action for damages only (5 LOAN
PAPER
TOLENTINO, Civil Code of the Philippines,
(1992), p. 443) [hereinafter 5 TOLENTINO]. As to When Interest is Deducted

Interest is taken at the Interest is deducted in

expiration of the credit. advance.
 DISCOUNTING OF
LOAN NOTE: Delivery of the thing is a condition sine
PAPER
qua non for the perfection of the contract. An
As to Expense accepted promise to deliver something, but not
yet followed by delivery, will constitute a contract
Less expensive than Slightly more expensive to loan, but it will not constitute a contract of
discounting. than obtaining loan commodatum (DE LEON, supra at 17).
because interest is
calculated on the 2. Principal
amount loaned and not – it can stand alone by itself;
on the amount actually
received. 3. Gratuitous
– the cause of which is the mere liberality of the
As to Whether it is Made on a Double/Single benefactor (CIVIL CODE, Art. 1350); and
Name Paper
4. Personal in Nature
Always on a single Always on a double
– because of the trust (5 PARAS, Civil Code of
name paper (one on name paper (one on
the Philippines Annotated (2016), p. 889)
which no other which two signatures
[hereinafter 5 PARAS].
indorsement, other than appear with both parties
the signature of the liable for payment).
maker appears. KINDS OF COMMODATUM:
1. Ordinary Commodatum
As to Repayment of Discount – use of the thing by the bailee is for a certain
period of time (CIVIL CODE, Art. 1933);
Loan must be paid The discount does not
back. have to be repaid 2. Precarium
(Herrera v. Petrophil – one whereby the bailor may demand the thing
Corp., G.R. No. L- loaned at will.
48349, December 29,
1986). A contract is precarium when:
(DE LEON, supra at 11). a. The duration and purpose of the contract are
not stipulated; or
b. The use of the thing is merely tolerated by
the owner (CIVIL CODE, Art. 1947).
COMMODATUM
OWNERSHIP OVER FRUITS
(ARTS. 1935–1952) GENERAL RULE: Bailee acquires the temporary
use of the thing but not its fruits since the bailor
remains the owner (CIVIL CODE, Art. 1935).
CONTRACT OF COMMODATUM NOTE: If the bailee is not entitled to the use of the
A contract wherein one party delivers to another thing, the contract is a deposit (CIVIL CODE, Art.
something not consumable so that the latter may use 1962).
the same for a certain time and return it (CIVIL
CODE, Art. 1933) When the bailee is obligated to maintain the property
in good condition, such contract is not a
CONTRACT AKIN TO DONATION commodatum, but is akin to one between a landlord
Both contracts of commodatum and donation confer and a tenant. (Pajuyo v. CA, G.R. No. 146364, June
benefit to the recipient. The presumption is that the 3, 2004)
bailor has loaned the thing for having no need
therefore (DE LEON, supra at 22). The cause or RATIONALE: The right to use a thing is distinct from
consideration for both is pure liberality (CIVIL CODE, the right to enjoy the fruits (DE LEON, supra at 29).
Art. 1350). The fruits pertain to the owner of the thing producing
the fruits (CIVIL CODE, Art. 441).
CHARACTERISTICS OF
EXCEPTION: When there is a stipulation to make
COMMODATUM: (RPGP) use of the fruits of the thing loaned (CIVIL CODE,
1. Real Art. 1940). Provided that the use of the fruits is
– perfected by delivery;
merely incidental; otherwise, it is usufruct (DE (DE LEON, supra at 22-29).
LEON, supra at 28).
BAILOR NEED NOT BE THE OWNER OF
Such stipulation to enjoy the fruits cannot be
THE THING LOANED (CIVIL CODE, Art. 1938)
presumed (Id. at 29).
It is sufficient that the bailor has:
1. Possessory interest; or
SUBJECT MATTER 2. The bailor has the right to allow the use of the
GENERAL RULE: Non-consumable goods, whether thing by the bailee (e.g. lessee, usufructuary)
movable or immovable property (CIVIL CODE, Arts. (DE LEON, supra at 19).
1936-1937).
REASON: Commodatum does not contemplate
EXCEPTION: Consumable goods may be the transfer of ownership.
subject matter of commodatum if the purpose of the
contract is not the consumption of the object as
EFFECTS OF THE PRINCIPLE THAT
when it is merely for exhibition, called commodatum
ad ostentationem (CIVIL CODE, Art. 1936). COMMODATUM IS PURELY PERSONAL
(CIVIL CODE, Art. 1939)
If consumable goods are loaned only for purposes of NOTE: Art. 1939 constitutes an exception to the
exhibition, or when the intention of the parties is to general rule under Article 1178 that all rights
lend consumable goods and to have the very same acquired in virtue of an obligation are transmissible
goods returned at the end of the period agreed upon, (DE LEON, supra at 27).
the loan is commodatum and not mutuum
(Producers Bank of the Phils. v. CA, G.R. No. 1. The death of either the bailor or the bailee
115324, February 19, 2003). extinguishes the contract (CIVIL CODE, Art.
1939, Par. 1).
CAUSE OR CONSIDERATION
The cause is the liberality of the bailor. EXCEPTIONS:
Commodatum is essentially gratuitous (CIVIL a. When there is a contrary stipulation that the
CODE, Art. 1933). commodatum is transmitted to the heirs of
either or both parties (CIVIL CODE, Art.
NOTE: If any compensation is to be paid by the 1306); and
borrower, there arises a lease contract; and if the b. If there are two or more borrowers, the death
consideration is to render some service, an of one does not extinguish the contract in
innominate contract will result (DE LEON, supra at the absence of stipulation to the contrary
19). (DE LEON, supra at 28).

COMMODATUM V. 2. The bailee can neither lend nor lease the

DEPOSIT/LEASE/USUFRUCT object of the contract to a third person (CIVIL
CODE, Art. 1939(2)).
As to Purpose
EXCEPTIONS:
Principal purpose is In DEPOSIT, the principal a. Understanding or agreement to the
the gratuitous and purpose is the contrary; and
temporary use of the safekeeping of the thing. b. Members of the household may make use of
thing by the borrower. the thing loaned (DE LEON, supra at 28).
As to Consideration
Household - the immediate members of the
Essentially gratuitous In LEASE, it is always for family or the occupants of the house (R.A. No.
a price. 10361, Sec. 4(f))

As to Object of the Contract REASON: They are not considered third

persons (Id. at 28).
Bailee acquires a In USUFRUCT, the
mere use of the thing, usufructuary acquires the EXCEPTIONS TO THE EXCEPTION IN (B):
but acquires no rights right over the fruits. a. If there is a contrary stipulation; and
over the fruits thereof b. If the nature of the thing forbids such use by
in the absence of the members of the bailee’s household (Id.
stipulation to that at 28).
effect.
OBLIGATIONS OF THE BAILEE The bailee cannot lawfully sell the thing to satisfy
the damages (DE LEON, supra at 37).

PRINCIPAL OBLIGATIONS: (TUP-R) Compensation shall not be proper when one of

1. Take care of the thing with diligence of a good the debts arises from a depositum or from the
father of a family (CIVIL CODE, Art. 1163); obligations of a depositary or a bailee in
commodatum (CIVIL CODE, Art. 1287).
REASON: The bailee is supposed to return the The mere failure of the bailee to return the
identical thing (CIVIL CODE, Art. 1933). subject matter of commodatum to the bailor
does not constitute adverse possession on the
2. Use the thing loaned only for the purpose for part of the bailee who holds the same in trust (Id.
which it was loaned and for no other purpose at 36).
(CIVIL CODE, Arts.1935, 1939, 1940).
Otherwise, he will commit a breach of contract Petitioner was in possession of the disputed
(DE LEON, supra at 31). property as borrower in commodatum from
private respondents since 1906 but in 1951
3. Pay ordinary expenses for the use and petitioner repudiated the trust when it declared
preservation of the thing and a portion of the property for tax purposes under its name.
extraordinary expenses arising from the actual The Supreme Court held that when it filed its
use of the thing (CIVIL CODE, Arts.1941, 1943, application for registration of the said property in
1945, 1949, 1950); 1962, petitioner had been in adverse possession
of the same for at least 10 years. Under Par. 4,
REASON: He acquires the use of the thing, and Art. 555 of the Civil Code, it is clear that the real
is supposed to return the identical thing (CIVIL right of possession of bailor over the property
CODE, Art. 1933; DE LEON, supra at 32). was lost or no longer existing after the lapse of
10 years that bailee had been in adverse
Liability for Extraordinary Expenses possession thereof (Catholic Vicar Apostolic of
If extraordinary expenses arise on the occasion the Mt. Province v. CA, G.R. No. 80294-95,
of the actual use of the thing by the bailee, even March 23, 1990).
though he acted without fault, they shall be
borne equally by both the bailor and bailee, OTHER OBLIGATIONS: (LDE)
unless there is a stipulation to the contrary 1. Liability for Loss due to fortuitous event (CIVIL
(CIVIL CODE, Art. 1949, Par. 2); CODE, Art. 1942);
EXCEPTION: If there is a stipulation for different GENERAL RULE: He is not liable because
apportionment (DE LEON, supra at 44). ownership remains with the bailor (DE LEON,
supra at 34).
4. Return and not to retain the identical thing
loaned except under certain circumstances EXCEPTIONS: He is liable for loss even if it
(CIVIL CODE, Arts.1933, 1944, 1946; DE LEON, should be through a fortuitous event in the
supra at 30). following cases (CIVIL CODE, Art. 1942):
(KLAS-D)
Right of Retention
GENERAL RULE: Bailee has no right to retain a. When he Keeps it longer than the period
the thing loaned as security on the ground that stipulated, or after the accomplishment of
the bailor owes him something, even though it the use for which the commodatum has
may be by reason of expenses (CIVIL CODE, been constituted;
Art. 1944).
REASON: Delay (CIVIL CODE, Arts. 1165,
REASONS: 1169, and 1170).
a. Ownership remains in the bailor; and
b. Only temporary use is given to the bailee b. When he Lends or leases it to third persons
(DE LEON, supra at 36). who are not members of his household;
EXCEPTION: The bailor who, knowing the flaws REASON: Commodatum is purely personal
of the thing loaned, does not advise the bailee of (CIVIL CODE, Art. 1939).
the same, shall be liable to the latter for the
damages which he may suffer by reason thereof c. When the thing loaned has been delivered
(CIVIL CODE, Art. 1951). with Appraisal of its value unless there is a
 stipulation exempting the bailee from OBLIGATIONS OF THE BAILOR: (RRL)
responsibility in case of fortuitous event. 1. Respect the duration of the loan (CIVIL CODE,
Art. 1946).
REASON: The law presumes that the
parties intended that the borrower shall be REASON: Bailor is bound by the terms of the
liable for the loss of the thing even if it is due contract of commodatum which is for a certain
to a fortuitous event for otherwise, they time (DE LEON, supra at 39).
would not have appraised the thing (DE
LEON, supra at 35). GENERAL RULE: He cannot demand return
before expiration of the period or
d. When, being able to Save either the thing accomplishment of the use (CIVIL CODE, Art.
borrowed or his own things, he chose to 1946).
save the latter.
EXCEPTIONS:
REASON: The bailee shows his ingratitude a. In case of urgent need of the thing, he may
after the thing is gratuitously loaned to him demand “its return” (meaning permanent) or
(DE LEON, supra at 35). temporary use (CIVIL CODE, Art. 1946 and
5 PARAS, supra at 897); and
e. When the bailee Devoted the thing for a
different use from that agreed upon. REASON: Commodatum is essentially
gratuitous (DE LEON, supra at 18).
REASON: The bailee acted in bad faith
(CIVIL CODE, Art. 1170). Effect: If for a temporary use, the contract
of commodatum is suspended while the
2. Liability for Deterioration due to the use of the thing is in the possession of the bailor (CIVIL
thing (CIVIL CODE, Art. 1943); CODE, Art. 1946).
GENERAL RULE: Bailee is not liable (DE b. If the bailee commits any act of ingratitude
LEON, supra at 35). specified in Article 765 of the Civil Code:
i. Bailee should commit some offenses
EXCEPTIONS (SNAP): against the person, honor or property of
a. If expressly Stipulated (Id. at 35); the bailor, or of his wife or children under
b. If guilty of Fault or Negligence (CIVIL CODE, his parental authority;
Art. 1170); ii. Bailee imputes to the bailor any criminal
c. If he devotes the thing to Any purpose offense, or any act involving moral
different from that for which it has been turpitude, even though he should prove
loaned (CIVIL CODE, Art. 1942, par. 1); and it, unless the crime or the act has been
d. If he uses the thing beyond the Period committed against the bailee himself,
stipulated (CIVIL CODE, Art. 1942, par. 2). his wife or children under his authority;
and
3. Liability for Expenses other than those under iii. Bailee unduly refuses the bailor support
Arts. 1941 and 1949 of the Civil Code for the when the bailee is legally or morally
purpose of making use of the thing (e.g. ordinary bound to give support to the bailor
expenses for the preservation and expenses for (CIVIL CODE, Art. 1948).
ostentation) (CIVIL CODE, Art. 1950).
c. In case of precarium, the bailor can always
NOTE: In case there are two (2) or more bailees, demand the thing loaned at will. (CIVIL
their obligation shall be solidary (CIVIL CODE, CODE, Art. 1947)
Art. 1945). This is an example of a solidary
obligation by operation of law or legal solidarity REASON: A commodatum is essentially
where solidarity is imposed by the law (DE gratuitous (CIVIL CODE, Art. 1933).
LEON, supra at 38).
There is no need for the existence of an act
REASON: To effectively safeguard the rights of of ingratitude (DE LEON, supra. at 43).
the bailor (Id. at 37).
NOTE: If the loan is for an illegal or immoral use,
the contract is void, and the lender can
immediately recover the thing, but cannot
recover damages or non-performance of
 obligations by the borrower. (5 TOLENTINO, abandoning the thing to the bailee (CIVIL
supra at 448) CODE, Art. 1952).

2. Refund to the bailee extraordinary expenses REASON: The expenses or damages may
incurred for the preservation of the thing, exceed the value of the thing loaned, and it
provided that the bailee brings the same to the would, therefore, be unfair to allow the bailor to
knowledge of the bailor before incurring them, just abandon the thing instead of paying for said
except when the reply to the notification cannot expenses and/or damages (DE LEON, supra at
be awaited without danger (CIVIL CODE, Art. 47).
1949, par. 1).
NOTE: The obligations enumerated are necessary
REASON: It is the bailor who profits by said consequences of the contract of commodatum or
expenses (DE LEON, supra at 44). arises only in certain specified instances and are not
present in all contracts of commodatum. Hence,
EXCEPTION: If the extraordinary expenses commodatum is a unilateral contract. (DE LEON,
arise on the occasion of the actual use of the supra at 21)
thing by the bailee, even though he acted
without fault, they shall be borne equally by both
the bailor and the bailee (CIVIL CODE, Art.1949,
Par. 2). MUTUUM
EXCEPTION TO THE EXCEPTION: Stipulation (ARTS. 1953–1955)
providing for a different apportionment of
expenses, or those expenses shall be borne by
the bailee or bailor only (DE LEON, supra at 44).
CONTRACT OF MUTUUM
Notice is required because it is possible that the A bilateral contract whereby one of the parties
bailor may not want to incur the extraordinary delivers to another money or other consumable thing
expenses. An exception lies where they are so with the understanding that the same amount, of the
urgent that the reply to the notification cannot be same kind and quality, shall be paid (CIVIL CODE,
awaited without danger (Id.). Art. 1933).

If the bailee is at fault, he alone should pay. It involves the return of the equivalent amount only
and not the identical thing because the borrower
3. Be Liable to the bailee for damages for known acquires ownership of the money or other
hidden flaws (CIVIL CODE, Art. 1951). consumable thing loaned. This obligation “to pay”
may include the accessory obligation to pay interest
Requisites: (FHANS) (DE LEON, supra at 48).
a. Existence of Flaw or defect;
b. The flaw or defect is Hidden; Subject Matter: Consumable or fungible goods
c. The bailor is Aware thereof;
d. Bailor does Not advise the bailee of the FUNGIBLE AND NON-FUNGIBLE:
same; and
e. The bailee Suffers damages by reason of
1. Fungible
– belongs to a common genus which includes
said flaw or defect (DE LEON, supra at 46).
several species of the same kind (e.g. grain,
wine, oil) (Id. at 58).
If the above requisites concur, the bailee has the
right of retention for damages (CIVIL CODE, Art.
1944). 2. Non-fungible
– specifically determined and cannot be
The bailor is made liable for his bad faith (DE substituted by others (e.g. specific land,
LEON, supra at 46). building, particular house).

If the defect is not known to the bailor, he is not Whether a thing is consumable or not depends upon
liable because commodatum is gratuitous (Id.) its nature and whether it is fungible or not depends
upon the intention of the parties (Id. at 58-59).
No Right of Abandonment
The bailor cannot exempt himself from the
payment of expenses or damages by
EFFECT OF THE LOSS OF THE THING NON-PAYMENT OF LOAN V. ESTAFA
LOANED BY MISAPPROPRIATION
The loss of the thing loaned does not extinguish NON-PAYMENT OF ESTAFA BY
one’s obligation to pay (unless it is stipulated) LOAN MISAPPROPRIATION
because his obligation is not to return the thing
loaned but to pay a generic thing. Genus nunquam As to Ownership Over the Thing
perit (generic thing never perishes) (Id. at 59). Unpaid/Misappropriated

NOTE: If the borrower loses the money or the goods, No ownership. subject
this does not affect his obligation to repay the property was only held
The borrower acquires
creditor. This is in accordance with the rule of res in trust, or on
ownership over the
perit domino (Id. at 62). commission, or for
thing (CIVIL CODE, Art.
administration
1953)
Illustration: (REVISED PENAL
Borrower X placed his money loaned inside his CODE, Art. 315 (b))
cabinet. The night after, his house, together with the
money, was turned into ashes. As to Obligation Undertaken by the Debtor

X is not excused to pay the thing loaned because he To pay the creditor an
An obligation involving
is not required to return the bills with the same serial equal amount of the
the duty to deliver or
numbers, but the same amount of the loan. same kind and property
return the same (Id.)
(Id.)
BANK DEPOSITS As to Liability Incurred for Breach
Whether fixed, savings, or current deposits are in the
nature of a contract of mutuum. There is a debtor- Civil in nature. Criminal in nature.
creditor relationship between the bank and its
depositor. The bank is the debtor and the depositor
BASIS: A person who receives a loan of money or
is the creditor. The debtor lends the bank money and
any other fungible thing acquires the ownership
the bank agrees to pay the depositor on demand
thereof and is bound to pay the creditor an equal
(Consolidated Bank and Trust Corp. vs CA, G.R. No.
amount of the same kind and quality (CIVIL CODE,
138569, September 11, 2003).
Art. 1953).
CASH ADVANCES NOTE: No person shall be imprisoned for non-
A cash advance is in the nature of a simple loan payment of debt (CONST. Art. III, Sec. 20).
(mutuum), hence, no fiduciary relationship is
created.Therefore, an employee who availed of cah MUTUUM AS COMPARED TO OTHER
advances may not be held liable for estafa for failure
CONTRACTS:
to return the same money which he received (Yong
Chan Kim v People G.R. No. 84719, January 25,
1991) 1. Lease
– a contract where one of the parties binds
NO CRIMINAL LIABILITY FOR FAILURE himself to give to another the enjoyment or use
TO PAY of a thing for a price certain, and for a period
No estafa is committed by a person who refuses to which may be definite or indefinite (CIVIL CODE,
pay his debt per se as the borrower effectively Art. 1643).
acquires ownership and being the owner, he can
dispose of the thing borrowed and his act will not be
considered misappropriation thereof (DE LEON,
MUTUUM V. LEASE
supra at 55). MUTUUM LEASE

As to Definition

Delivery of money or Delivery of some non-

some consumable thing consumable thing in
with a promise to repay order that the other
an equivalent of the may use it during a
same kind and quality. certain period and
return it to the former.
 MUTUUM LEASE 3. Barter
– a contract whereby one person transfers
As to Transfer of Ownership ownership of non–fungible things to another with
the obligation on the part of the latter to give
There is a transfer of There is no transfer of things of the same kind, quality and quantity
ownership of the thing ownership of the thing (CIVIL CODE, Art. 1954).
delivered. delivered. Lessor
simply loses his COMMODATUM/MUTUUM V. BARTER
control over the
property during the COMMODATUM/
BARTER
period of the contract. MUTUUM

As to Relationship of the Parties As to Subject Matter

Relationship between Relationship is that of In mutuum, the subject Subject matter is non-
the parties is that of a landlord and tenant. matter is money or fungible, (non-
obligor-obligee. fungible things. consumable) things.

As to Receipt of Payment As to Return of the Subject Matter

Creditor receives Landlord receives In commodatum, the The thing with

payment for his loan. compensation either in bailee is bound to return equivalent value is
money, provisions, the identical thing given in return for what
chattels, or labor borrowed. has been received.
(Tolentino v.
Gonzales, G.R. No. As to Cause or Consideration
26085, August 12,
1927). Mutuum may be Always onerous, and is
gratuitous and actually a mutual sale.
(DE LEON, supra at 55-56). commodatum is
essentially gratuitous.
2. Sale
(DE LEON, supra at 64).
– a contract where one of the contracting parties
obligates himself to transfer the ownership and
FORMS OF PAYMENT:
to deliver a determinate thing, and the other to
1. If the thing loaned is money, payment must be
pay therefor a price certain in money or its
made in the currency stipulated, if it is possible
equivalent (CIVIL CODE, Art. 1458). to deliver such currency; otherwise, that which is
legal tender in the Philippines.
MUTUUM V. SALE
MUTUUM SALE In case of extraordinary inflation or deflation,
payment shall be in the value of the currency at
As to Nature the time of the creation of the obligation (CIVIL
CODE, Arts. 1249, 1250 and 1955, par. 1).
Real contract. Consensual contract.
2. If the thing loaned is a fungible other than
As to Obligations money, the borrower is under obligation to pay
the lender another thing of the same kind, quality
Generally unilateral and quantity even if it should change in value.
Bilateral and
because only the
reciprocal.
borrower has obligations. In case it is impossible to do so, the borrower
(5 PARAS, supra at 885). shall pay its value at the time of the perfection of
the loan (CIVIL CODE, Art. 1955, par. 2).
NOTE: If the property is “sold”, but the real intent is
only to give the object as security for a debt – as
when the “price” is comparatively small – there really
is a contract of loan with an “equitable mortgage”
(CIVIL CODE, Art. 1602, par. 6).
 b. Interest accruing from unpaid interest (CIVIL
INTEREST CODE, Art. 2212).

(ARTS. 1956–1961) 3. Must be Lawful (DE LEON, supra at 69).

NOTE: The requirement that the payment of interest

must be expressly stipulated in writing applies only
Interest may be paid either as compensation for the to monetary interest, not to compensatory interest
use of the money (monetary interest) or as damages (DE LEON, supra at 70).
(compensatory interest). The former is the interest
referred to in Article 1956 of the Civil Code; while the If there is an agreement for the payment of monetary
latter is the interest mentioned in Article 2209 of the interest but not reduced in writing, there is only a
Civil Code (Republic of the Phil. v. Unimex Micro- natural obligation to pay the same (CIVIL CODE, Art.
Electronics GmBH, G.R. No. 166309-10, March 9, 1960).
2007).
STIPULATION OF A PARTICULAR
There are two types of interest — monetary interest
and compensatory interest. Interest as a INTEREST RATE
compensation fixed by the parties for the use or If a particular rate of interest has been expressly
forbearance of money is referred to as monetary stipulated by the parties, that interest, not the legal
interest, while interest that may be imposed by law rate of interest, shall be applied (Casa Filipina
or by courts as penalty for damages is referred to as Development Corp v. Deputy Executive Secretary,
compensatory interest (Hun Hyung Park v. Eung G.R. No. 96494, May 28, 1992).
Won Choi, G.R. No. 220826, March 27, 2019).
If the interest rate agreed upon by the parties are
The right to interest arises only by virtue of a contract found to be unconscionable, the legal interest rate
or by virtue of damages for delay or failure to pay prevailing at the time the agreement was entered
principal on which interest is demanded (5 PARAS, into shall be applied. The legal rate of interest, when
supra at 906; Barretto v. Santa Marina, G.R. No. L- applied as conventional interest, shall always be the
11908, February 4, 1918). legal rate at the time the agreement was executed
and shall not be susceptible to shifts in rate (Isla v.
KINDS OF INTEREST: Estorga, G.R. No. 233974, July 2, 2018).
1. Simple
– that which is paid for the principal at a LEGAL INTEREST ONLY APPLIES IN
certain rate fixed or stipulated by the parties THE ABSENCE OF STIPULATED
. INTEREST
2. Compound BSP-MB Circular No. 799 expressly states that the
– that which is imposed upon interest due legal interest applies only in the absence of
and unpaid. The accrued interest is added stipulated interest in loan contracts.
to the principal sum and the whole (principal
and accrued interest) is treated as a new If the rate of interest is stipulated, such stipulated
principal upon which the interest for the next interest shall apply and not the legal interest,
period is calculated. (DE LEON, supra at 67) provided the stipulated interest is not excessive and
unconscionable.The stipulated interest shall be
3. Legal applied until full payment of the obligation because
– that which the law directs to be charged in that is the law between the parties (Lara's Gift and
the absence of any agreement as to the rate Decors, Inc. v. Midtown Industrial Sales, Inc.. G.R.
between the parties (Id. at 68). No. 225433, August 28, 2019).

REQUISITES FOR DEMANDABILITY OF Paragraph 3 in the guidelines laid down in Eastern

INTEREST: (WEL) Shipping Lines failed to qualify that for loans or
forbearance of money, the prevailing legal interest
1. The agreement must be in Writing (CIVIL should only apply in the absence of stipulated
CODE, Art. 1956); interest. This omission resulted in several rulings of
this Court, which imposed the stipulated interest on
2. Must be Expressly stipulated (CIVIL CODE, Art. the adjudged amount until finality of the decision
1956); BUT applied the prevailing legal interest in lieu of the
EXCEPTIONS: stipulated interest from finality of the decision until
a. Indemnity for damages (CIVIL CODE, Art. full payment of the obligation. This is in direct
2209); and contravention of the law, particularly Article 2209 of
the Civil Code, which mandates that when a debtor the rate of interest, as well as the accrual
incurs a delay in obligations to pay a sum of money, thereof, is imposed, as follows:
the indemnity for damages shall be the payment of i. When the obligation is breached,
the interest agreed upon (Lara's Gift and Decors, and it consists in the payment of
Inc. v. Midtown Industrial Sales, Inc.. G.R. No. a sum of money, i.e., a loan or
225433, August 28, 2019). forbearance of money, goods,
credits or judgments, the interest
The ruling in Eastern Shipping Lines (G.R. No. due shall be that which is stipulated
97412, July 12, 1994), has now been modified by by the parties in writing
Bangko Sentral ng Pilipinas Monetary Board PROVIDED it is not excessive and
Circular No. 799, Series of 2013, which provides unconscionable, which, IN THE
that “the rate of interest for loan or forbearance of ABSENCE OF A STIPULATED
any money, goods or credits and the rate allowed in RECKONING DATE, shall be
judgments, in the absence of an express contract as computed from default, i.e., from
to such rate of interest, shall be 6% per annum.” Said extrajudicial or judicial demand in
circular took effect on July 1, 2013. accordance with Article 1169 of the
Civil Code, UNTIL FULL
THE LEGAL INTEREST RATE IN PAYMENT, without compounding
ARTICLE 2209 OF THE CIVIL CODE HAS any interest UNLESS compounded
interest is expressly stipulated by the
BEEN AMENDED parties, by law or regulation.
On 29 January 1973, Presidential Decree No. 116
(P.D. No. 116) was issued, which amended the ii. In the absence of stipulated
Usury Law and fixed the legal interest for loans, interest, the rate of interest on the
forbearance of money, goods, credits or judgments principal amount shall be the
at 6% per annum "or such rate as may be prevailing legal interest
prescribed by the Monetary Board of the Central prescribed by the Bangko Sentral
Bank of the Philippines." ng Pilipinas, which shall be
computed from default (i.e., judicial
PD. No. 116 amended all laws, including Article or extrajudicial demand) in
2209 of the Civil Code, prescribing the rate of legal accordance with Art. 1169 of the
interest to allow the Bangko Sentral ng Pilipinas to Civil Code UNTIL FULL PAYMENT,
calibrate the legal interest rate to meet changing without compounding any interest
economic conditions and to accelerate the growth of UNLESS compounded interest is
the national economy. If RD. No. 116 did not amend expressly stipulated by law or
Article 2209, then all "obligations consisting in the regulation.
payment of a sum of money," which is the all-
encompassing coverage of Article 2209 applying to iii. For breached obligations not
all loans or forbearance of money, goods, credits or constituting a loan or forbearance
judgments, would still be subject to the fixed 6% of money, goods, credits or
legal interest rate (Lara's Gift and Decors, Inc. v. judgments, an interest on amount
Midtown Industrial Sales, Inc.. G.R. No. 225433, of damages awarded may be
August 28, 2019). imposed at the discretion of the
court at the prevailing legal
To summarize, the guidelines on the imposition of interest prescribed by the Bangko
interest as provided in Eastern Shipping Lines and Sentral ng Pilipinas, pursuant to
Nacar are further modified in the case of Lara's Gift Articles 2210 and 2011 of the Civil
and Decors, Inc. v. Midtown Industrial Sales, Code. No interest shall be adjudged
Inc. (G.R. No. 225433, August 28, 2019) for clarity on unliquidated claims or damages,
and uniformity, as follows: except when or until the demand can
be established with reasonable
1. When an obligation, regardless of its source, certainty.
(i.e., law, contracts, quasi-contracts, delicts or i. Where demand is
quasi-delicts) is breached, the contravenor can established with reasonable
be held liable for damages and the provisions certainty, the prevailing
under Title XVIII on Damages of the Civil Code legal interest shall begin to
govern in determining the measure of run from time claim is made
recoverable damages; judicially or extrajudicially
2. With regard to an award of interest in the UNTIL FULL PAYMENT;
concept of actual and compensatory damages,
 ii. When certainty cannot be which arise out of "obligations consisting in the
reasonably established at payment of a sum of money, and the debtor incurs
the time demand is made, in delay," and thus where there is a debtor-creditor
interest shall begin to run relationship. Articles 2210 and 2211 refer to
only from date judgment of obligations that do not involve the payment of a sum
the trial court is made (at of money and there is no debtor-creditor
which time quantification of relationship. Moreover, the payment of interest in
damages may be deemed to Article 2209 is mandatory, while the payment of
have been reasonably interest in Articles 2210 and 2211 is discretionary on
ascertained) UNTIL FULL the court (Lara's Gift and Decors, Inc. v. Midtown
PAYMENT. The actual base Industrial Sales, Inc.. G.R. No. 225433, August 28,
for the computation of the 2019).
interest shall, in any case,
be on the principal amount AUTHORITY OF THE BSP MONETARY
finally adjudged, without BOARD (“BSP-MB”) TO PRESCRIBE
compounding any interest
unless compounded interest THE MAXIMUM INTEREST RATES
is expressly stipulated by In Advocates for Truth in Lending, Inc., v. Bangko
law or regulation. Sentral Monetary Board, G.R. No. 192986, January
iv. Whether the case falls on 15, 2013, the Supreme Court affirmed the authority
forbearance or non-forbearance of of the BSP Monetary Board (“BSP-MB”) to set
money, interest due on the principal interest rates and to issue and enforce circulars
amount accruing as of judicial when it ruled that the BSP-MB may prescribe the
demand shall SEPARATELY earn maximum rates of interest for all loans or renewals
legal interest at the prevailing rate therefor or the forbearance of any money, goods or
prescribed by the Bangko Sentral ng credits, including those for loans of low priority such
Pilipinas, from the time of judicial as consumer loans and loans made by pawnshops,
demand UNTIL FULL PAYMENT. finance companies and similar credit institutions.
The BSP-MB is also authorized to prescribe different
NOTE: The right to recover interest arises only either maximum rates for different types of borrowings,
by virtue of a contract (monetary interest) or as including deposits and deposit substitutes or loans
damages for the delay or failure to pay the principal of financial intermediaries. This ruling was again
loan on which interest is demanded (compensatory affirmed by the Supreme Court in Nacar v. Gallery
interest). Recovery of monetary interest requires Frames, G.R. No. 189871, August 13, 2013.
express stipulation in writing (Odiamar v. Valencia,
G.R. No. 213582, September 12, 2018). FACTORS THAT THE MONETARY
BOARD CONSIDERS IN FIXING THE
FORBEARANCE OF MONEY, GOODS MAXIMUM RATES OR RATES OF
OR CREDIT IS DIFFERENT FROM LOAN INTEREST:
Forbearance of money, goods or credits" refers to 1. The existing economic conditions in the country
"arrangements other than loan agreements, where a and the general requirements of the national
person acquiesces to the temporary use of his economy;
money, goods or credits pending happening of 2. The supply of and demand for credit;
certain events or fulfillment of certain conditions 3. The rate of increase in the price levels; and
(Crismina Garments, Inc. v. Court of Appeals G.R. 4. Such other relevant criteria as the Monetary
No. 128721, March 9, 1999). Board may adopt (P.D. 116, Sec. 6).

Forbearance of goods includes the sale of goods on In Sps. Andal v. Philippine National Bank (G.R. No.
installment, requiring periodic payment of money to 194201, November 27, 2013), the issue is whether
the creditor. Forbearance of credits includes the sale debtors shall be liable for interest on a loan after the
of anything on credit, where the full amount due can exorbitant stipulated interest thereon and the
be paid at a date after the sale (Lara's Gift and subsequent foreclosure of property that secured
Decors, Inc. v. Midtown Industrial Sales, Inc.. G.R. said loan were nullified in another case that became
No. 225433, August 28, 2019). final and executory. The Supreme Court ruled that
the fact that the rate of interest was subsequently
DIFFERENCE BETWEEN ARTICLE 2209 declared illegal and unconscionable does not entitle
AND ARTICLE 2210-2211 said debtors to stop payment of interest. Only the
Article 2209 of the Civil Code is applicable only to rate of interest was declared void, the stipulation to
loans or forbearance of money, goods or credit pay interest remains. The debtors are considered in
default from the date of finality of the other case and 2. Interest Accruing from Unpaid Interest
not during the time they were unable to pay the Interest due shall earn interest from the time it is
stipulated interest as it was exorbitant and hence, judicially demanded although the obligation is
declared void. silent upon this point (CIVIL CODE, Art. 2212).

INSTANCES WHEN INTEREST DOES EXCEPTION

NOT BEGIN TO RUN Where the court’s judgment, which did not
provide for the payment of interest has already
1. During the effectivity of the moratorium law,
become final, no interest may be awarded (Ruiz
which has the effect of suspending the collection
v. Caneba, G.R. No. 84884, December 3, 1990).
of payment of the principal obligation, which
carries the accessory obligation in the payment
RULE ON ACCRUED INTEREST
of interest;
GENERAL RULE: Accrued interest (interest
2. In case of insolvency of the bank, when the
due and unpaid) will not bear interest (CIVIL
Bangko Sentral prohibits the bank from doing
CODE, Art. 1959).
business; and
3. Despite defective consignation, from the time of
EXCEPTIONS:
the offer and tender of payment (5 TOLENTINO,
a. If there is agreement to this effect (CIVIL
supra at 452).
CODE, Art. 1959).
INCREASE IN INTEREST RATE Compounding Interest
No increase in interest shall be due unless such An express stipulation whereby the interest
increase has also been expressly stipulated due and unpaid shall be added to the
(Security Bank & Trust Co. v. RTC Makati, G.R. No. principal obligation and resulting total
113926, October 23, 1996; Spouses Toring v. amount shall earn interest (DE LEON, supra
Ganzon-Olan, G.R. No. 168782, October 10, 2008). at 67).

It was held that the unilateral determination and NOTE: Whatever compound interest is
imposition of increased rates is violative of the agreed upon, the effective rate of interest
principle of mutuality of contracts ordained in Article charged by the creditor shall not exceed
1308 of the Civil Code (New Sampaguita v. PNB, the equivalent of the maximum rate
G.R. No. 148753, July 30, 2004). prescribed by the Monetary Board, or, in
default thereof, whenever the debt is
LIABILITY FOR INTEREST IN THE judicially claimed, in which last case it shall
ABSENCE OF STIPULATION draw six per centum per annum interest or
such rate as may be prescribed by the
1. Indemnity for Damages
Monetary Board (Lara's Gift and Decors,
A debtor in delay is liable to pay legal interest
Inc. v. Midtown Industrial Sales, Inc.. G.R.
(DE LEON, supra at 72).
No. 225433, August 28, 2019).
The “obligation consisting in the payment of sum
b. When judicially demanded under Article
of money” referred to in Art. 2209 of the Civil
2212 of the Civil Code (DE LEON, supra at
Code is not confined to a loan or forbearance of
68).
money but also covers cases involving default in
the payment of price or consideration under a
contract of sale, an action for damages for injury FORMULA IN COMPUTING INTEREST
to persons, and loss of property and an action FOR LOAN OR FORBEARANCE OF
for damages arising from unpaid insurance MONEY:
claims (Castelo v. CA, G.R. No. 96372, May 22, TOTAL AMOUNT DUE = [principal + interest +
1995). interest on interest] – partial payments made

Interest as indemnity for damages is payable INTEREST = principal x stipulated interest x number
only in case of default or non-performance of the of years from due date UNTIL FULL PAYMENT
contract. As they are distinct claims, they may
be demanded separately (Sentinel Insurance v. INTEREST ON INTEREST = Interest computed as
CA, G.R. No. L-52482, February 23, 1990). of the filing of the complaint x legal interest x no. of
years until FULL PAYMENT

NOTE: Interest due on the principal amount accruing

as of judicial demand shall SEPARATELY earn legal
interest at the prevailing rate prescribed by the Should the vendee opt to purchase a subdivision
Bangko Sentral ng Pilipinas, from the time of judicial lot via the installment payment system, he is, in
demand UNTIL FULL PAYMENT (Lara's Gift and effect, paying interest on the cash price, whether
Decors, Inc. v. Midtown Industrial Sales, Inc., G.R. the fact and rate of such interest payment are
No. 225433, August 28, 2019). disclosed in the contract or not (Relucio v.
Brillante-Garfin, G.R. No. 76518, July 13, 1990).
The legal interest is now 6% per annum or as may
be fixed by the Monetary Board of the Bangko RULE ON APPLICATION OF
Sentral ng Pilipinas. PAYMENTS:
Illustrations: If the debt produces interest, payment of the
Under a written contract of loan, B obliged himself to principal shall not be deemed to have been made
pay A the sum of P20,000 at the end of the year. until the interests have been covered (CIVIL CODE,
If no payment of interest was mentioned, then no Art. 1953).
interest is due.
While this rule is obligatory upon the debtor; the
If B incurs in delay, he is liable to pay interest at the creditor may, however, agree on the application of
legal interest rate prescribed by the BSP from the payment to the principal prior to the payment of
date of delay. interest.

Suppose that A and B stipulated in their contract an FINANCE CHARGE

interest of 18% a year which is lawful. In this case, Finance charge includes interest, fees, service
all the requirements to entitle A to recover interest charges, discounts, and such other charges incident
are present. If B incurs in delay, he is liable to pay to the extension of credit as the Monetary Board may
the interest agreed upon as damages and not for the prescribe. (R.A. 3765, Section 3(3))
use of the money.
LIABILITY FOR SURCHARGES AND
B incurred in delay for one year. The indemnity for PENALTIES
damages shall also be the stipulated interest of 18%
The essence or rationale for the payment of interest
so that B shall be liable to pay a total of P7,200:
is separate and distinct from that of surcharges and
P3,600 as compensatory interest for the first year
penalties (DE LEON, supra at 79).
and another P3,600 as indemnity for the damages
for the one-year delay.
A penalty stipulation is not necessarily preclusive of
interest, if there is an agreement to that effect, the
If the interest was judicially demanded six months
two (2) being distinct concepts which may separately
after B incurred in delay, the interest due (P3,600 +
be demanded (Ligutan v. CA, G.R. No. 138677,
P1,800 = P5,400) shall earn a legal interest of 6%
February 12, 2002).
or as may be fixed by the Monetary Board of the
Bangko Sentral ng Pilipinas from the time of judicial
demand until payment is made. USURY
Usury may be defined as contracting for or receiving
DISCOUNTING something in excess of the amount allowed by law
for the loan or forbearance of money, goods or
1. Interest is deducted in advance from the
chattels (DE LEON, supra at 96).
proceeds of the principal obligation.
Elements of Usury (FUIT):
Illustrations:
1. Loan or Forbearance;
The stipulated rate of interest is 15%. If the
2. An Understanding between the parties that the
principal amount loaned is P10,000, how much
loan shall or may be returned;
is the interest?
3. An unlawful Intent to take more than the legal
rate for the use of money or its equivalent; and
Answer: P10,000 x 0.15 = P1,500
4. The Taking or agreeing to take for the use of the
loan of something in excess of what is allowed
2. Instead of giving P10,000 as proceeds, only
by law (DE LEON, supra at 96-97).
P8,500 was given. P1,500 was deducted in
advance but the amount to be returned is
The nature of usury law is both remedial and penal
P10,000. What is the interest rate?
under Philippine jurisdiction (DE LEON, supra at 98).
Answer: Divide the amount of interest by the
Contracts and stipulations, under any cloak or
actual amount received by the borrower.
device whatever, intended to circumvent the laws
1,500 / 8,500 = 17.64%
against usury shall be void. The borrower may ESCALATION CLAUSE MUST HAVE DE-
recover in accordance with the laws on usury (CIVIL ESCALATION CLAUSE
CODE, Art. 1957).
Escalation clauses refer to stipulations allowing an
Pursuant to Central Bank Circular No. 905, increase in the interest rate agreed upon by the
adopted on December 22, 1982, the Supreme Court contracting parties (Juico v. China Banking Corp.,
declared that the Usury Law is now "legally G.R. No. 187678, April 10, 2013).
inexistent". The interest chargeable depends upon
the agreement between the lender and the borrower De-escalation clause is a stipulation that the rate of
(Liam Law v. Olympic Sawmill Co., G.R. No. L- interest agreed upon shall be reduced in the event
30771, May 28, 1984). that the maximum rate of interest is reduced by law
or by the Monetary Board (PNB v. IAC, G.R. No.
However, C.B. Circular 905 did not repeal nor in 75223, March 14, 1990; Villa Crista Monte Realty &
anyway amend the Usury Law but simply suspended Development Corp. v. Equitable PCI Bank, G.R. No.
the latter's effectivity (Security Bank and Trust 208336, November 21, 2018).
Company v. RTC of Makati, G.R. No. 113926,
October 23, 1996). The presence of escalation clause without the
corresponding de-escalation clause in the event of a
reduction of interest as ordered by law makes the
VALIDITY OF UNCONSCIONABLE clause one-sided as to make it unreasonable. Any
INTEREST RATE IN A LOAN increase in the interest rate pursuant to an
GENERAL RULE: Interest stipulated by the escalation clause must be the result of an agreement
contracting parties is valid. between the two parties. Increases unilaterally
imposed by a bank are in violation of the principle of
EXCEPTION: If the interest is iniquitous and mutuality of contracts (PNB v. CA, G.R. No. 109563,
unconscionable (DE LEON, supra at 102). July 9, 1996; Equitable PCI Bank v. Ng Sheung
Ngor, G.R. No. 171545, December 19, 2007).
The Supreme Court said that nothing in said circular
suspending the Usury Law grants lenders authority It becomes inescapable for the Court to uphold the
to raise interest rates to levels which will either validity and enforceability of the escalation clause
enslave their borrowers or lead to a hemorrhaging of involved herein despite the absence of the de-
their assets (Sps. Almeda v. CA, G.R. No. 113412, escalation clause. The actual grant by the
April 17, 1996). respondent of the decreases in the interest rates
imposed on the loans extended to the petitioner
In Medel v. CA (G.R. No. 131622, November 27, rendered inexistent the evil of inequality sought to be
1998), it was ruled that while a stipulated interest of thwarted by the enactment and application of
5.5% per month on a loan is not usurious pursuant Presidential Decree No. 1684. We do not see here a
to C.B. Circular 905, the same must be equitably situation in which the petitioner did not stand on
reduced for being iniquitous, unconscionable and equality with the lender bank (Villa Crista Monte
exorbitant. It is contrary to morals (contra bonos Realty & Development Corp. v. Equitable PCI Bank,
mores). It was reduced to 12% per annum in G.R. No. 208336, November 21, 2018).
consonance with justice and fair play.

When the agreed rate is iniquitous and

unconscionable, the courts may reduce the same as DEPOSIT
reason and equity demand (Imperial v. Jaucian, G.R.
No. 149004, April 14, 2004). (ARTS. 1962 – 2009)
RECOVERY OF UNSTIPULATED
INTEREST CONTRACT OF DEPOSIT
If paid by mistake, the debtor may recover as in the
A contract constituted from the moment a person
case of solutio indebiti or undue payment (CIVIL
receives a thing belonging to another, with the
CODE, Art. 1960).
obligation of safely keeping it and of returning the
same (CIVIL CODE, Art. 1962).
NOTE: If voluntarily paid, there would be no
recovery as in the case of natural obligations (CIVIL
PRINCIPAL PURPOSE: Safekeeping the thing and
CODE, Art. 1423).
returning the same (CIVIL CODE, Art. 1962).
If “safekeeping” is not the principal purpose it may DEPOSIT AS COMPARED TO OTHER
be: CONTRACTS
1. Commodatum;
2. Lease; or
3. Agency (DE LEON, supra at 152). DEPOSIT V. MUTUUM
DEPOSIT MUTUUM
Illustration: In the case of valet parking the contract
entered into is one of deposit; while in an ordinary As to Purpose
car parking the contract entered into is one of lease
of things (RABUYA, Pre-Bar Reviewer in Civil Law For safekeeping or Consumption.
(2021), p.524). custody.

As to Subject Matter
CHARACTERISTICS: (RUN-PIG)
1. Real contract Movable/corporeal Money or fungible
– perfected by the delivery of the subject matter things only in case of things.
(CIVIL CODE, Art. 1316). extrajudicial deposit.

An agreement to constitute a deposit is binding, Any property in case of

but the deposit itself is not perfected until the judicial deposit.
delivery of the thing (CIVIL CODE, Art. 1963).
As to Relationship
Where there has been no delivery, there is
merely an agreement to deposit, which however Depositor and Creditor and borrower
is binding and enforceable on the parties. Such depositary (DE LEON, (DE LEON, supra at
agreement is consensual (DE LEON, supra at supra at 150). 52).
154). As to Compensation
2. Unilateral Generally gratuitous, May be gratuitous, or
– when deposit is gratuitous, because only the except by mutual with a stipulation to pay
depositary has an obligation (DE LEON, supra agreement or interest (CIVIL CODE,
at 147). depositary is engaged Art. 1933, Par. 3).
in storing goods (CIVIL
NOTE: It becomes bilateral if compensation is CODE, Art. 1965).
paid because it gives rise to obligations on the
part of both the depositary and depositor (Id. at As to Time of Return
147).
Depositor can demand The lender must wait
3. Nominate the return of the subject until the expiration of
– it has been given a specific name by the Civil matter at will. the period granted to
Code (Id.). the debtor.
(DE LEON, supra at 151-153).
4. Principal
– its existence is not dependent on another DEPOSIT V. COMMODATUM
contract (Id.).
DEPOSIT COMMODATUM
5. Informal As to Purpose
– no particular form is required for the contract
(Id.). Safekeeping. Transfer of the use.

6. Gratuitous As to Time of Return

– the bailee does not pay the bailor for the use
of the thing (Id.). The depositary must, as The borrower can use the
a rule, return the thing thing for the period
deposited upon demand stipulated, and can be
(ld. at 166). required to return only in
case of urgent need or
when the bailee has
committed any of the acts
 DEPOSIT COMMODATUM freedom in choosing the depositary (DE
LEON, supra at 158).
of ingratitude under Art. b. Necessary – made:
765 of the Civil Code. i. In compliance with a legal obligation;
ii. On occasion of any calamity;
As to Subject Matter iii. By travelers in hotels and inns; or
iv. By travelers with common carriers (Id. at
Movable / corporeal Both movable and 205).
things only in case of immovable may be the
extrajudicial deposit. object. NOTE: There is a lack of free choice in the
depositor (Id. at 158).
Any property in case of
judicial deposit. JUDICIAL
As to Compensation V. EXTRA-JUDICIAL DEPOSIT
JUDICIAL EXTRA-JUDICIAL
May be gratuitous. Essentially and always
gratuitous. As to Creation
As to Parties Involved Will of the court. Will of the parties or
contract.
Depositor and depositary Bailor and bailee
As to Purpose

(DE LEON, supra at 151-152). Insures the right of a Custody and

party to property or to safekeeping of the
DEPOSIT V. SALE AND BARTER recover in case of thing deposited.
favorable judgment.
DEPOSIT SALE AND BARTER
As to Subject Matter
As to Transfer of Ownership
May cover movable as Movables only (CIVIL
Ownership is not Ownership is well as immovable CODE, Art.1966)
transferred. transferred upon property (DE LEON,
delivery. supra at 158). Reason: Object is
safekeeping. The
Reason: The purpose of possibility that the
As to Nature
the deposit is to protect thing may disappear or
Real Consensual the rights of parties to a may be lost or stolen is
suit. not present in real
property.
As to Consideration
As to Cause
Generally gratuitous Always onerous
Always onerous. Generally gratuitous.
(5 PARAS, supra at 924).
As to Time of Return
KINDS OF DEPOSIT: (CIVIL CODE,
ART.1964) Upon order of the court Upon demand of
or when litigation is depositor.
1. Judicial or Sequestration ended.
– takes place when an attachment or seizure of
property in litigation is ordered (CIVIL CODE, As to in Whose Behalf it is Held
Arts. 2005-2008)
Person who has a right. Depositor.
2. Extra-judicial (Id. at 218).
a. Voluntary – delivery is made by the will of
the depositor or by two or more persons
each of whom believes himself entitled to
the thing deposited (CIVIL CODE, Arts.
1968 to 1995). The depositor has complete
CAUSE OR CONSIDERATION NOTE: Under the law, “persons who are
GENERAL RULE: A deposit is a gratuitous contract capable cannot allege the incapacity of those
(CIVIL CODE, Art.1965). with whom they contracted” (CIVIL CODE, Art.
1397).
EXCEPTIONS: (SES)
1. When there is a Stipulation; 2. If the depositary is incapacitated, he does not
2. Depositary is Engaged in business of storing incur the obligation of a depositary. However, he
goods; and is liable to:
3. Property is Saved from destruction without a. Return the thing deposited while still in his
knowledge of the owner (CIVIL CODE, Art. possession; or
2169). b. Pay the depositor the amount by which he
may have benefited himself with the thing or
its price subject to the right of any third
FORM OF DEPOSIT person who acquired the thing in good faith,
A contract of deposit may be made orally or in writing in which case the depositor may only bring
(CIVIL CODE, Art. 1969). an action against him for its recovery (CIVIL
CODE, Art. 1971).
REASON: No written form is required because the
contract is real, and thus, the delivery itself NOTE: A third person is considered to have acted in
constitutes performance which will evidence the bad faith if he has actual knowledge of the incapacity
perfection of the contract (DE LEON, supra at 161). of the depositary and if he has knowledge that the
thing is subject to the contract of deposit.
NEED NOT BE THE OWNER
The depositor need not be the owner of the thing OBLIGATIONS OF A DEPOSITARY
deposited because the purpose of the contract is 1. TO KEEP THE THING SAFELY (CIVIL
safekeeping and not transfer of ownership. The CODE, Art. 1972).
depositary cannot demand that the depositor prove
his ownership of the thing deposited (CIVIL CODE, He is liable if the loss occurs through his fault or
Art. 1984, Par. 1). The depositary is estopped (CIVIL negligence (CIVIL CODE, Art. 2207), even if the
CODE, Art. 1436). thing is insured (CIVIL CODE, Art. 1170).

DEPOSIT BY TWO OR MORE PERSONS REASON: The loss of the thing while in his
In case two or more persons each believe that he is possession ordinarily raises the presumption of fault
entitled to a thing deposited with a third person, the on his part (CIVIL CODE, Art. 1265).
depositary shall deliver it to the person to whom it
belongs (CIVIL CODE, Art. 1968). The remedy of the Degree of Care
depositary is to file an action for interpleader If the contract does not state the diligence which is
(RULES OF COURT, Rule 62, Sec. 1). to be observed in the performance, that of a good
father of a family shall be required (CIVIL CODE, Art.
WHEN DEPOSITARY DISCOVERED 1972, 1173, Par 2.)
THING WAS STOLEN
REASON:
Should the depositary discover that the thing 1. It is an essential requisite of the judicial relation
deposited has been stolen and who its true owner is, which involves the depositor’s confidence in
the depositary is required to advise the latter of the good faith and trustworthiness.
deposit. 2. Presumption that the depositor, in choosing the
depositary, took into account the diligence which
If the owner, in spite of such information, does not the depositary is accustomed with respect to his
claim it within ONE MONTH, the depositary shall be own property (DE LEON, supra at 165).
relieved of all responsibility by returning the thing
deposited to the depositor (CIVIL CODE, Art. 1984, EXCEPTIONS (VCB):
pars. 2 and 3). The required degree of care is extraordinary
diligence when:
EFFECTS OF THE INCAPACITY OF THE 1. It is the depositary who Voluntarily offered to
DEPOSITARY OR DEPOSITOR: keep the thing;
1. If the depositary is capacitated, he is subject 2. The deposit is Compensated; or
to all the obligations of a depositary whether the 3. The deposit produces Benefit to the depositary
depositor is capacitated or not (CIVIL CODE, (5 TOLENTINO, supra at 460).
Art. 1970).
2. TO RETURN THE THING (CIVIL CODE, Art. suffers inconvenience as a consequence (CIVIL
1972). CODE, Art. 1989).

Person to Whom the Thing Must Be Returned: NOTE: In cases under (1) and (2), the depositary
1. Depositor, his heirs and successors, or the must immediately inform the depositor of the
person who may have been designated in the attachment and opposition (CIVIL CODE, Art.
contract (CIVIL CODE, Art. 1972); 1988, par. 2).

1. Guardian or administrator of the person who What to Return:

made the deposit if the latter is incapacitated at 1. The thing deposited with all its products,
the time of deposit or the latter himself should he accessories, and accessions (CIVIL CODE, Art.
acquire capacity (CIVIL CODE, Art. 1970); 1983, par. 1);
2. If by force majeure or government order, the
2. Legal representative of the depositor should the depositary loses the thing, and receives money
latter subsequently lose his capacity during the or another thing in its place, he shall deliver the
deposit (CIVIL CODE, Art. 1986). sum or other thing to the depositor (CIVIL
CODE, Art. 1990).
When to Return
GENERAL RULE: Upon demand even though a Where to Return:
specified period of time for such return may have 1. If there is a stipulation, at the place agreed upon
been fixed (CIVIL CODE, Art.1988). by the parties but the depositor bears the
REASON: The period is for the benefit of the expenses for transportation.
depositor, but it may be validly waived by him 2. If there is no stipulation, at the place where the
(5 PARAS, supra at 951). thing deposited might be even if it should not be
the same place where the deposit was made
EXCEPTIONS: provided there was no malice on the part of the
1. It cannot be returned upon demand when the depositary (CIVIL CODE, Art. 1987).
thing is judicially attached while in the
depositary’s possession (CIVIL CODE, Art. 3. NOT TO DEPOSIT THE THING WITH A
1988, par. 2); THIRD PERSON UNLESS AUTHORIZED
BY EXPRESS STIPULATION (CIVIL CODE,
REASON: The property will be subject to judicial Art. 1973).
orders (5 PARAS, supra at 952).
REASON: Deposit is founded on trust and
2. The deposit cannot be returned upon demand if confidence (DE LEON, supra at 171).
the depositary has been notified of the
opposition of a third person to the return or The depositary is liable for the loss under the
removal of the thing deposited (CIVIL CODE, following instances:
Art. 1988, par. 2); 1. He transfers the deposit with a third person
without authority, although there is no
REASON: The oppositor may claim to be the negligence on his part and the third person;
owner (5 PARAS, supra at 952). 2. He deposits the thing with a third person who is
manifestly careless or unfit, although authorized,
NOTE: In this case of conflicting claims, the even in the absence of negligence; and
depositary is authorized to consign the thing in 3. The thing is lost through the negligence of his
court through an action of interpleader under employees whether the latter are manifestly
Rule 62 of the Rules of Court (DE LEON, supra careless or not (CIVIL CODE, Art. 1973).
at 199)
Exemption from Liability: The depositary is not
If the deposit is gratuitous, the depositary may responsible in case the thing is lost without
return the thing deposited notwithstanding that a negligence of the third person with whom he was
period has been fixed for the deposit if justifiable allowed to deposit the thing if such third person is not
reasons exist for its return. If the depositor “manifestly careless or unfit” (DE LEON, supra at
refuses to receive it, the depositary may secure 172).
its consignation from the court (CIVIL CODE, Art.
1989). NOTE: The depositary is responsible for the loss
through the fault of his employees under the
If the deposit is for a valuable consideration, principle of respondeat superior (Id.).
period must be followed even if the depositary
NOTE: If the depositary urgently needs to deposit If commingling is allowed, each depositor shall be
the thing and there is no more time to obtain entitled to each portion of the entire mass as the
consent, the depositary should be able to transfer amount deposited by him bears to the whole.
the deposit and should generally not be liable for the
transfer of the deposit (unless the third person is If the articles deposited, belonging to different
manifestly careless or unfit) (DE LEON, supra at depositors, are not of the same kind and quality, it is
172). the duty of the depositary to keep them separate or
at least identifiable (DE LEON, supra at 181).
4. TO CHANGE THE WAY OF THE DEPOSIT
IF UNDER THE CIRCUMSTANCES, THE 7. NOT TO MAKE USE OF THE THING
DEPOSITARY MAY REASONABLY DEPOSITED UNLESS AUTHORIZED
PRESUME THAT THE DEPOSITOR (CIVIL CODE, Art. 1977).
WOULD CONSENT TO THE CHANGE IF GENERAL RULE: Deposit is not for the use but for
HE KNEW OF THE FACTS OF THE the safekeeping of the subject matter. Unauthorized
use by the depositary would make him liable for
SITUATION, PROVIDED, THAT THE
damages (DE LEON, supra at 180).
FORMER NOTIFIES THE DEPOSITOR
THEREOF AND WAIT FOR HIS EXCEPTIONS:
DECISION, UNLESS DELAY WOULD 1. Even without the express permission of the
CAUSE DANGER (CIVIL CODE, Art. 1974). depositor when the preservation of the thing
deposited requires its use; or
5. IF THE THING DEPOSITED SHOULD
EARN INTEREST: NOTE: It must be used only for that purpose.
a. TO COLLECT INTEREST AND THE
CAPITAL ITSELF AS THEY FALL 2. When expressly permitted by the depositor
DUE; AND (CIVIL CODE, Art. 1977).
b. TO TAKE STEPS TO PRESERVE ITS
The permission to use is not presumed except when
VALUE AND RIGHTS WITH REGARD such use is necessary for the preservation of the
TO IT (CIVIL CODE, Art. 1975). thing deposited and the burden is on the depositary
to prove that permission has been given (CIVIL
If a promissory note has been dishonored by non- CODE, Art. 1978).
payment, the depositary must give notice of dishonor
to the indorsers so that the latter will not be Effect if Permission to Use is Given:
discharged from liability (DE LEON, supra at 174). 1. If the thing deposited is non-consumable:
Rule on Safety deposit Boxes The contract loses the character of a deposit and
A contract for the rent of safety deposit boxes is a acquires that of a commodatum.
special kind of deposit. It is not to be strictly
governed by the provisions on deposit. It cannot also EXCEPTION: If safekeeping is still the principal
be characterized as an ordinary contract of lease purpose of the contract.
because full and absolute control of the safety
deposit boxes was not given to the joint renters. The 2. If the thing deposited is money or other
relation between the bank and its customer is that of consumables:
a bailor and bailee, the bailment being for hire and
mutual benefit (CA Agro Industrial Development The permission to use it will result in its
Corp v. CA, G.R. No. 90027, March 3, 1993). consumption and converts the contract into a
simple loan or mutuum (DE LEON, supra at 181-
6. NOT TO COMMINGLE THINGS OF THE 182).
SAME KIND AND QUALITY DEPOSITED
IF SO STIPULATED (CIVIL CODE, Art. Prescription of Demand to Return
1976). Things received on deposit do not prescribe, for the
depositary cannot claim that ownership of the thing
EXCEPTION: Depositary can only commingle if the deposited was transferred to him, but simply the
articles are: custody thereof. The possession of the depositary
1. Of the same kind and quality; and is not adverse to that of the depositor (Delgado v.
2. There is no contrary stipulation. Bonnevie, G.R. No. 7097, October 23, 1912).
8. TO BE LIABLE FOR LOSS THROUGH interest as indemnity. The depositary owes interest
FORTUITOUS EVENT: (SUDA) on the sums he has applied to his own use from the
1. If Stipulated; day on which he did so, and those which he still owes
2. If he Uses the thing without the depositor's after the extinguishment of the deposit (Id. at 192).
permission;
3. If he Delays its return; and NOTE: Fixed, savings, and current deposits of
4. If he Allows others to use it, even though he money in banks and similar institutions shall be
himself may have been authorized to use the governed by the provisions concerning simple loan
same (CIVIL CODE, Art. 1979). (CIVIL CODE, Art. 1980).

9. LIABILITY WHEN THE THING Bank deposits, which are in the nature of a simple
DEPOSITED IS DELIVERED CLOSED loan or mutuum, must be paid upon demand by the
depositor (Philippine National Bank v. Bacani G.R.
AND SEALED: (RPS)
No. 194983, June 20, 2018).
1. To Return the thing deposited in the same
condition;
Irregular Deposit – if safekeeping is still the
2. To Pay for damages should the seal or lock be
principal purpose of the contract although there is a
broken through his fault, which is presumed
permission to use the consumable thing (5 PARAS,
unless proven otherwise; and
supra at 937).
3. To keep the Secret of the deposit when the seal
or lock is broken with or without his fault (CIVIL
Bank deposits are in the nature of irregular deposits.
CODE, Art. 1981).
These are really loans because they earn interest.
They are governed by the law on loans (Bank of the
REASON: Without the rule, irresponsible
Philippine Islands v. CA, G.R. No. 104612, May 10,
depositaries may violate their trusts with impunity
1994).
(DE LEON, supra at 193).
While the bank has the obligation to return the
The depositary is authorized to open the thing
amount deposited, it has however, no obligation to
deposited, which is closed and sealed, when there
return or deliver the same money that was deposited
is:
(Guingona, Jr. v. City Fiscal of Manila, G.R. No. L-
1. Presumed authority, such as if the key has been
60033, April 4, 1984).
delivered to him; or
2. Necessity to do so as when the instructions of
The relation between a depositor and a bank is that
the depositor as regards the deposit cannot be
of a creditor and a debtor. The depositor (creditor)
executed without opening the box or receptacle
lends the bank (debtor) money and the bank agrees
(CIVIL CODE, Art. 1982).
to pay the depositor on demand (Central Bank of the
Philippines v. Citytrust Banking Corp., G.R. No.
10. OBLIGATION TO RETURN PRODUCTS, 141835, February 4, 2009).
ACCESSORIES, AND ACCESSIONS
(CIVIL CODE, Art 1983). A bank can compensate or set off the deposit in its
hands for the payment of any indebtedness to it on
REASON: The depositor is the owner or at least the part of the depositor (Equitable PCI Bank v. Ng
represents the owner of the thing deposited. The Sheung Ngor, G.R. No. 171545, December 19,
products, accessions and accessories are 2007). In true deposit, such compensation or set-off
consequences of ownership (DE LEON, supra at is not allowed (CIVIL CODE, Art. 1287).
193).
IRREGULAR DEPOSIT V. MUTUUM
11. TO PAY INTEREST ON SUMS
CONVERTED TO PERSONAL USE FROM IRREGULAR DEPOSIT MUTUUM
THE DAY OF CONVERSION IF THE
As to Demand by the Depositor
DEPOSIT CONSISTS OF MONEY (CIVIL
CODE, Art. 1983 and 1896). The consumable thing The lender cannot
deposited may be demand restitution until
REASON: If what has been deposited is money, the demanded at will by the the time for payment,
depositary has no right to make use of it. Therefore, depositor. as provided in the
he is not liable to pay interest (DE LEON, supra at contract, has arisen.
194).
As to Accrual of Benefit
However, if the depositary be in delay or has used
the money without permission, he shall be liable for The only benefit is that Essential cause for the
 which accrues to the transaction is the OBLIGATION
DIVISIBILITY
depositor. necessity of the OF TWO OR
OF THING EFFECT
borrower. MORE
DEPOSITED
DEPOSITORS
As to Preference of Credit
be made to him
The irregular depositor Common creditors (CIVIL CODE,
has a preference over enjoy no preference in Art. 1214)
other creditors with the distribution of the
respect to the thing debtor’s property. Indivisible Solidary/not The same rule
deposited. solidary when the
obligation is
(DE LEON, supra at 183-184).
solidary,
regardless of
12. TO ADVISE THE TRUE OWNER THAT A divisibility.
DEPOSIT HAS BEEN MADE SHOULD HE
DISCOVER THAT THE THING (CIVIL CODE, Art. 1985).
DEPOSITED WAS STOLEN FROM THE
NOTE: If there is a stipulation that the thing should
OWNER (CIVIL CODE, Art. 1984).
be returned to one of the depositors, the depositary
shall return it only to the person designated (CIVIL
However, as a general rule, the depositary cannot
CODE, Art. 1985, par. 2).
demand that the depositor prove his ownership of
the thing deposited (CIVIL CODE, Art. 1984, par. 1).
DEPOSITARY’S RIGHT OF RETENTION
NOTE: If the owner, despite such information, does The depositary may retain the thing in pledge until
not claim it within the period of one (1) month, the full payment of what may be due him by reason of
depositary shall be relieved from all responsibility by the deposit (CIVIL CODE, Art. 1994). This article
returning the same to the depositor (CIVIL CODE, gives an example of pledge created by operation of
Art. 1984, par. 3). law (DE LEON, supra at 204).

If the depositary has reasonable grounds to believe RULE WHEN AN HEIR OF THE
that the thing has not been lawfully acquired by the DEPOSITOR SOLD THE THING
depositor, the former may return the same (CIVIL
DEPOSITED
CODE, Art. 1984, par. 4).
The depositor’s heir who in good faith may have sold
the thing which he did not know was deposited, shall
RULE WHEN THERE ARE TWO OR only be bound to return the price he may have
MORE DEPOSITORS received or to assign his right of action against the
OBLIGATION buyer in case the price has not been paid to him
DIVISIBILITY (CIVIL CODE, Art. 1991).
OF TWO OR
OF THING EFFECT
MORE
DEPOSITED REASON: Equity
DEPOSITORS

Divisible Not solidary Each one can If the heir acts in bad faith, he is liable for damages.
(Joint) demand only his The sale or appropriation of the thing deposited
share. constitutes estafa (DE LEON, supra at 201).

Regardless Solidary The depositary NOTE: Art. 1991 meant ‘depositary’s heir, as shown
of divisibility/ can return the in Article 1178 of the old Civil Code (5 TOLENTINO,
Indivisibility thing to any of supra at 468).
the depositors.
OBLIGATIONS OF THE DEPOSITOR
EXCEPT: When
there has been a 1. TO PAY EXPENSES FOR
demand judicial PRESERVATION IF THE DEPOSIT IS
or extrajudicial, GRATUITOUS (CIVIL CODE, Art. 1992)
for its return has (contemplates ordinary and extraordinary
been made by necessary expenses).
one of them,
payment should The law refers to necessary expenses. Useful
expenses or those for pure luxury or mere
 pleasure are not covered (DE LEON, supra at 2. In case of Gratuitous deposit, upon the Death of
203). either the depositor or the depositary (CIVIL
CODE, Art. 1995);
NOTE: If the deposit is for a valuable
consideration, expenses for preservation are REASON: Gratuitous deposits are personal in
borne by the depositary because they are nature (DE LEON, supra at 206).
deemed included in the compensation, unless
there is a contrary stipulation (Id. at 202). Deposit for Compensation
A deposit for compensation is not extinguished
2. TO PAY FOR LOSSES INCURRED BY by the death of either party unless the deposit is
THE DEPOSITARY DUE TO THE terminated by the heirs of the depositor. This is
CHARACTER OF THE THING different from the rule in gratuitous deposits
DEPOSITED (CIVIL CODE, Art. 1993). which are personal in nature (5 PARAS, supra
at 957).
GENERAL RULE: The depositor shall
reimburse the depositary for any loss arising 3. By the Return of the thing by the depositary
from the character of the thing deposited (DE (CIVIL CODE, Art. 1989);
LEON, supra at 204).
4. By the Conversion of a deposit into another
EXCEPTIONS: (AENA) contract if the depositor allows the depositary to
a. At the time of the deposit, the depositor was use the thing (CIVIL CODE, Art. 1978).
not Aware of the dangerous character of the
thing; NOTE: The causes mentioned in Article 1995 are
b. Depositor was not Expected to know the NOT exclusive (DE LEON, supra at 205).
dangerous character of the thing;
c. Depositor Notified the depositary of the NECESSARY DEPOSIT
same; and A deposit is necessary when:
d. The depositary was Aware of it without 1. Made in compliance with a legal obligation
advice from the depositor (CIVIL CODE, (CIVIL CODE, Art.1996 par. 1).
Art.1993).
Examples:
EXTINGUISHMENT OF VOLUNTARY a. Judicial deposit of a thing the possession of
DEPOSIT which is being disputed in a litigation by two
or more persons (CIVIL CODE, Art. 538);
The causes are similar to that of the extinguishment a. Deposit with a bank or public institution of
of obligations in Art. 1231 of the Civil Code: public bonds or instruments of credit
(PR-RAP-MNLF) payable to order or bearer given in usufruct
1. Payment or Performance; when the usufructuary does not give proper
2. Remission or Condonation; security for their conservation (CIVIL CODE,
3. Rescission; Art. 586);
4. Annulment; b. Deposit of a thing pledged when the creditor
5. Prescription; uses the same without the authority of the
6. Merger or Confusion; owner or misuses it in any other way (CIVIL
7. Novation; CODE, Art. 2104);
8. Loss of the thing due; and c. Deposits required in suits as provided in the
9. Fulfillment of a resolutory condition. Rules of Court; and
d. Deposits constituted to guarantee contracts
NOTE: Compensation as a mode of extinguishment with the government. The deposit arises
of obligations is not applicable to deposit (DE LEON, from an obligation of public or administrative
supra at 206). Compensation is not proper when one character (DE LEON, supra at 208);
of the debts arises from a deposit or from the
obligations of a depositary or of a bailee in NOTE: A deposit made in compliance with law is
commodatum (CIVIL CODE, Art. 1287). governed by the provisions of such law and, in
default thereof, by the rules on voluntary deposit
A DEPOSIT IS ALSO EXTINGUISHED: (CIVIL CODE, Art. 1997, par. 1).
(LDRC)
1. Upon the Loss or destruction of the thing 2. Made on the occasion of any calamity such as
deposited; fire, storm, flood, pillage, shipwreck or other
similar event (CIVIL CODE, Art. 1996 par. 2).
This is referred to as involuntary bailment or
 involuntary deposit. Another name is deposito this case, the hotel-keeper is apparently
miserable (DE LEON, supra at 207-208). negligent (CIVIL CODE, Arts. 2000 & 2001).

NOTE: There must be a causal relation between A Hotel-keeper is NOT liable in the following
the calamity and the constitution of the deposit instances:
(Id. at 207). When the loss or injury is caused by:
a. Force majeure, theft by a stranger with the
The deposit made on any of the said calamities use of arms or irresistible force (CIVIL
shall be regulated by the provisions concerning CODE, Art. 2000), unless he is guilty of fault
voluntary deposit and by Article 2168, i.e., when or negligence in failing to provide against the
during a calamity, property is saved from loss or injury from his cause (DE LEON,
destruction by another person without the supra at 213-214);
knowledge of the owner, the latter is bound to b. The acts of guests, his family, servants or
pay the former just compensation (CIVIL CODE, visitors; and
Art. 1997, Par. 2). c. The character of the things (e.g. it is
consumable) brought into the hotel (CIVIL
OTHER KINDS OF NECESSARY CODE, Art. 2002).
DEPOSITS:
Rule in the occurrence of theft or robbery
1. Deposits Made with Common Carriers: The act of a thief or robber, who has entered the
2. Deposit by Travelers in Hotels and Inns: hotel is not deemed force majeure, unless it is
done with the use of arms or through irresistible
The keepers of hotels or inns shall be force (CIVIL CODE, Art. 2001).
responsible as depositaries for the deposit of
effects made by travelers. REASON: The innkeeper is bound to keep his
house safe from the intrusion of thieves and if
Elements: (No-Pre) they are allowed to gain access to the house,
a. Notice was given to them or to their without the use of such force as will show its
employees of the effects brought by the marks upon the house, it is fairly presumable
guests; and that the innkeeper is at fault (5 PARAS, supra at
b. Guests take the Precautions which said 964).
hotel-keepers or their substitutes advised by
their relative to the care and vigilance of Exemption or Diminution of Liability
their effects (CIVIL CODE, Art. 1998). The hotel-keeper cannot free himself from the
responsibility by posting notices to the effect that
This also applies to the passenger’s baggage he is not liable for the articles brought by the
which is in his personal custody (CIVIL CODE, guest. Any stipulation to such effect shall be void
Art. 1754). (CIVIL CODE, Art. 2003).
“Travellers” and “guests” refer to transients who REASON: Public policy. The hotel business is
enter hotels or inns seeking lodging, and not to imbued with public interest (YHT Realty Corp. v.
boarders in dormitories and lodging houses who CA, G.R. No. 126780, February 17, 2005).
select their boarders usually for a contracted
period (DE LEON, supra at 211). NOTE: It is not necessary in order to hold an
inn-keeper liable that the effects of the guests be
Extent of liability actually delivered to him or his employees. It is
Not limited to baggage or articles ordinarily used enough that they are within the inn (De Los
by travelers. It also extends to vehicles, animals Santos v. Tan Khey, 58 O.G. No. 45-53; 29 Am.
and articles which have been introduced or Jur. 89-90, July 30, 1962).
placed in the annexes of the hotel (CIVIL CODE,
Art. 1999). Right of Retention by Hotel-keepers:
The hotel-keeper has a right to retain the things
A Hotel-keeper is liable in the following brought into the hotel by the guest, as a security
instances: for credits on account of lodging, and supplies
When the loss or injury is caused: usually furnished to hotel guests (CIVIL CODE,
a. By his servants or employees as well as by Art. 2004).
strangers provided that the notice has been
given and proper precautions taken; and REASON: The right is given to hotel-keepers to
b. By the act of a thief or robber done without compensate them for the liabilities imposed
the use of arms and irresistible force, for in upon them by law (DE LEON, supra at 217).
 NOTE: A safety deposit box in a hotel is a CHARACTERISTICS: (AF-NC)
contract of necessary deposit. The existing
1. Accessory
relationship is one of depositor and depositary
– it secures the performance of a principal
(YHT Realty Corp. vs CA, supra.).
obligation;
JUDICIAL DEPOSIT 2. Formal
Judicial deposit or sequestration takes place when – it must be in a specified form to be valid i.e. in
an attachment or seizure of property in litigation is writing (CIVIL CODE, Art. 2134).
ordered (CIVIL CODE, Art. 2005).
REASON: To forestall the use of antichresis for
Movable as well as immovable property may be the purposes of usury (DE LEON, supra at 572).
object of sequestration (CIVIL CODE, Art. 2006).
3. Nominate
The depositary of property or objects sequestrated – it has been given a specific name by the Civil
cannot be relieved of his responsibility until the Code; and
controversy which gave rise thereto has come to an
end, unless the court so orders (CIVIL CODE, Art. 4. Consensual
2007). – the Civil Code does not require delivery of the
immovable to the creditor (Id. at 572).
The depositary of property sequestrated is bound to
comply, with respect to the same, with all the
ANTICHRESIS INVOLVES AN EXPRESS
obligations of a good father of a family (CIVIL CODE,
Art. 2008). AGREEMENT BETWEEN PARTIES
WHEREBY:
As to matters not provided in the Civil Code, judicial 1. The creditor will have possession of the
sequestration shall be governed by the Rules of debtor’s real property given as a security;
Court (CIVIL CODE, Art. 2009). 2. Such creditor will then apply the fruits of the
said property to the interest owned by the
NATURE AND PURPOSE OF JUDICIAL debtor, if any, to the principal amount;
DEPOSIT 3. The creditor retains enjoyment of such property
until the debtor has totally paid what he owes;
The deposit is judicial because it is auxiliary to a
and
case pending in court.
4. Should the obligation be duly paid, then the
The purpose is to maintain the status quo during the contract is automatically extinguished
pendency of the litigation or to insure the right of the proceeding from the accessory character of the
parties to the property in case of favorable judgment agreement (Reyes v. Heirs of Benjamin
(DE LEON, supra at 220). Malance, G.R. No 219071, August 24, 2016).

CUSTODIA LEGIS SPECIAL REQUISITES:

This occurs when a thing is shown to have been and 1. It can cover only the fruits of an immovable
is subjected to the official custody of a judicial or property but not the immovable itself (DE LEON,
executive officer in pursuance of his execution of a supra at 600);
legal writ (Id. at 217).
NOTE: Article 1306 of the Civil Code gives parties
the freedom to stipulate otherwise. The
reduction of the amount of fruits available to the
ANTICHRESIS creditor does not vary the nature of the contract
(Id.).
ARTS. 2132-2139
2. Delivery of the immovable is necessary only for
the creditor to receive the fruits and not for the
contract to be binding (Id.);
CONTRACT OF ANTICHRESIS
A contract whereby the creditor acquires the right to 3. Amount of principal and interest must be
receive the fruits of an immovable property of the specified in writing, otherwise, the contract of
debtor, with the obligation to apply them to the antichresis shall be void (CIVIL CODE, Art.
payment of the interest, if owing, and thereafter to 2134); and
the principal of his credit (CIVIL CODE, Art. 2132).
4. Express agreement that the debtor will give Applicability of Other Articles
possession of the property to the creditor and The last paragraph of Article 2085, and Articles 2089
that the latter will apply the fruits to the interest, to 2091 of the Civil Code are applicable to this
if any, then to the principal of his credit (CIVIL contract (CIVIL CODE, Art. 2139).
CODE, Art. 2132).
An antichresis is also indivisible in nature (CIVIL
In the absence of this 4th requisite, the contract CODE, Art. 2090 & Art. 2139).
shall be deemed to be one of mortgage (Diego
v. Fernando, G.R. No. L-15128, August 25, ANTICHRESIS AS COMPARED TO
1960). REAL ESTATE MORTGAGE
Illustration: If a contract of loan with security ANTICHRESIS REAL MORTGAGE
provides for the delivery to the creditor by the
debtor of the property given as security, in order As to Delivery or Non-Delivery of the Property
that the latter may gather its fruits but without
Real Property is Debtor usually retains
stating that said fruits are to be applied to the
delivered to creditor. possession of the Real
payment of interest, if any, and afterwards that of
Property.
the principal, the contract is a mortgage and not
antichresis As to Right to the Fruits
NOTE: The obligation to pay interest is not the Creditor acquires only Creditor does not have
essence of the contract of antichresis, there the right to receive the any right to receive the
being nothing in the Code to show that fruits of the property; fruits; but the mortgage
antichresis is only applicable to securing the hence, it does not creates a real right over
payment of interest-bearing loans. On the produce a real right. the property.
contrary, antichresis is susceptible of
guaranteeing all kinds of obligations, whether However, antichresis
pure or conditional in nature (DE LEON, supra gives a real right if it is
at 569). registered in the
Registry of Property (12
MORTGAGEE IN POSSESSION Manresa 547-548).
One who has lawfully acquired actual or constructive
possession of the premises under an invalid As to the Obligation to Pay Taxes
foreclosure proceedings, standing upon his rights as
The creditor, unless The creditor has no
mortgagee and not claiming under another title for
there is stipulation to such obligation.
the purpose of enforcing his security upon such
the contrary, is obliged
property or making its income to pay his debt (Diego
to pay the taxes and
v. Fernando, G.R. No. L-15128, August 25, 1960).
charges upon the
estate.
His respective rights and obligations are similar to
the parties in a contract of antichresis, such that if As to the Obligation to Apply Fruits to the
the mortgagee acquires possession in any lawful Interest
manner he is entitled to retain such possession until
the indebtedness is satisfied and the property It is expressly stipulated There is no such
redeemed; that the non-payment of the debt within that the creditor given obligation on part of
the term agreed does not vest the ownership of the possession of the mortgagee.
property in the creditor; that the general duty of the property shall apply all
mortgagee in possession towards the premises is the fruits thereof to the
that of the ordinary prudent owner; that the payment of interest, if
mortgagee must account for the rents and profits of owing, and thereafter to
the land, any amount thus realized going towards the the principal.
discharge of the mortgage debt; that if the
mortgagee remains in the possession after the As to Subject Matter
mortgage debt has been satisfied, he becomes a
trustee for the mortgagor as to the excess of the The subject matter of both is real property.
rents and profits over such debt (Diaz v. Mendezona, (DE LEON, supra at 601-602).
et al., G.R. No. L-24824, January 30, 1926).
PROVISIONS INDICATIVE OF A v. Lichauco, G.R. Nos. L-21377 and L-21659,
CONTRACT OF MORTGAGE: October 8, 1924).
1. The agreement that the full amount of
indebtedness must be returned to the lenders OBLIGATIONS OF ANTICHRETIC
before the borrowers could demand the return of CREDITOR: (TABA)
the property, which is contrary to an antichretic 1. To pay Taxes and charges on the estate, if there
contact wherein the products of the land should has been no stipulation to the contrary, and to
be applied to the interest and then to principal; bear the expenses necessary for preservation
2. The use of the term “mortgage” in various parts and repair. The sums spent shall be deducted
of the contract; and from the fruits (CIVIL CODE, Art. 2135).
3. The agreement that the lenders are not to pay
rentals on the property in consideration of the NOTE: The creditor has to pay for the taxes and
fact that the borrowers do not pay interest on the charges, even if the fruits be insufficient (5
sum which they obtained as a loan (Id. at 603). PARAS, supra at 1145).
If he does not pay the taxes, he is, by law,
MEASURE OF APPLICATION OF FRUITS required to pay indemnity for damages to the
TO INTEREST AND PRINCIPAL debtor (Pando v. Gimenez, G.R. No. 31816,
February 15, 1930).
The actual market value of the fruits at the time of
application thereof to the interest and principal shall Creditor may avoid said obligation by compelling
be the measure of such application (CIVIL CODE, debtor to reacquire enjoyment of the property,
Art. 2133). unless there is a stipulation to the contrary
(CIVIL CODE, Art. 2136, par. 2).
NOTE: The use of ‘actual market value’ will forestall
the use of antichresis for purposes of usury. (5 If the debtor has paid for the taxes, which the
PARAS, supra at 1141). creditor should have paid, the amount is to be
applied to the payment of the debt, and the
RIGHTS OF ANTICHRETIC CREDITOR: debtor is entitled to the return of the property free
(FPS-R2) from all encumbrances if he, in effect, by
1. The right to the Fruits and income of the thing advancing the taxes, had already discharged the
(CIVIL CODE, Art. 2132); debt (Rosales v. Tanseco, G.R. No. L-4135,
November 29, 1951).
2. Preference to the proceeds of the sale of the
thing (5 TOLENTINO, supra at 567); 2. To Apply all the fruits, after receiving them, to
the payment of interest, if owing, and thereafter
3. To have the thing Sold upon non-payment at to the principal in accordance with the provisions
maturity (CIVIL CODE, Art. 2137, Par. 2); of Article 2133 or 2138 of the Civil Code (CIVIL
CODE, Art. 2132)
NOTE: In this case, the Rules of Court on the
foreclosure of mortgages shall apply. 3. To Bear the necessary expenses for its
preservation and repair (CIVIL CODE, Art.
4. To Retain the thing until the debt is paid (CIVIL 2135);
CODE, Art. 2136, Par. 1); and
4. To render an Account of the fruits to the debtor
NOTE: The property delivered stands as a (Nadal v. CA, G.R. No. L-46623, March 4, 1994).
security for the payment of the obligation of the
debtor in antichresis. (Macapinlac v. Repide, REMEDIES OF CREDITOR IN CASE OF
G.R. No. 18574, September 20, 1922). DEFAULT
If the debt is not paid, the creditor does not acquire
The antichretic debtor’s complaint for recovery ownership of the real estate, since what was
of possession of the real property given as transferred is not the ownership, but merely the right
security must be dismissed if debt has not been to receive fruits (CIVIL CODE, Art. 2137; DE LEON,
totally paid (Sps. Reyes v. Heirs of Malance, supra at 574).
G.R. No. 219071, August 24, 2016).
The remedies of the antichretic creditor are:
5. To be Reimbursed for his expense for 1. Action for specific performance; and
machinery and other improvements on the land, 2. Petition for the sale of the real property as in a
and for the sums paid as land taxes (Magdañgal foreclosure of mortgages under Rule 68 of the
Rules of Court (CIVIL CODE, Art. 2137).
 NOTE: The parties may agree on an 2. If one benefits, he must reimburse; and
extrajudicial foreclosure in the same manner as 3. Justice and equity (5 PARAS, supra at 1157).
they are allowed in contracts of mortgage and
pledge (Tavera v. El Hogar Filipino, Inc., G.R. TWO PRINCIPAL KINDS:
No. 45963, October 12, 1939). 1. Negotiorum gestio (unauthorized
management); and
PROHIBITION AGAINST PACTUM 2. Solutio indebiti (undue payment).
COMMISSORIUM
A stipulation authorizing the antichretic creditor to NOTE: The provisions for quasi-contracts do not
appropriate the property, upon the non-payment of exclude other quasi-contracts which may come
the debt, within the agreed period is void (CIVIL within the purview of Article 2142 of the Civil Code
CODE, Art. 2088). (CIVIL CODE, Art. 2143).

ACQUISITION BY PRESCRIPTION NEGOTIORUM GESTIO

GENERAL RULE: The creditor in antichresis and It arises when a person, without the express or
his successors-in-interest cannot ordinarily acquire implied authority of, or opposition from, the owner of
the property subject of the antichresis by prescription a business or property which is neglected or
(Cotoner-Zacarias v. Sps. Revilla, G.R. No. 190901, abandoned, takes charge of the agency or
November 12, 2014). management thereof (CIVIL CODE, Art. 2144).

EXCEPTION: He repudiates his status as an The ratification of the management by the owner of
antichretic creditor before he can claim ownership the business produces the effects of an express
(DE LEON, supra at 574). agency, even if the business may not have been
successful (CIVIL CODE, Art. 2149).
Possession of the antichretic creditor is not in the
concept of an owner, which is required for the Requisites of Negotiorum Gestio
purpose of acquisitive prescription. He is a mere 1. No meeting of the minds;
holder placed in the possession of the land by the 2. Taking charge of another’s business or property;
debtor-owner (Cotoner-Zacarias v. Sps. Revilla, 3. The property or business must have been
G.R. No. 190901, November 12, 2014). abandoned or neglected (otherwise, the rule on
unauthorized contracts would apply);
4. The officious manager must not have been
expressly or implicitly authorized (otherwise, the
QUASI-CONTRACTS rule on agency would apply); and
5. The officious manager (gestor) must have
ARTS. 2142-2176 voluntarily taken charge (that is, there must be
no vitiation of consent, such as error in thinking
that he owned the property or the business) (5
PARAS, supra at 1159)
QUASI-CONTRACT
It is a juridical relation resulting from a lawful, NEGOTIORUM GESTIO
voluntary, and unilateral act, and which has for its V. IMPLIED AGENCY
purpose the payment of indemnity to the end that no
one shall be unjustly enriched or benefited at the NEGOTIORUM IMPLIED AGENCY
expense of another (CIVIL CODE, Art. 2142). GESTIO

BASES FOR QUASI-CONTRACTS: As to Necessity of Authorization

1. No one must unjustly enrich himself at the
expense of another; Gestor should never The agent is actually
have been authorized in authorized to assume
NOTE: Two (2) conditions must generally any manner. the agency by virtue of
concur before the rule on unjust enrichment can the acts of the owner or
apply: by virtue of his silence,
inaction, or his failure to
a. A person is unjustly benefited; and repudiate the agency.
b. Such benefit is derived at another’s expense
or damage (MC Engineering, Inc., v. CA,
G.R. No. 104047, April 3, 2002).
 b. When the contract refers to things pertaining
NEGOTIORUM IMPLIED AGENCY
to the owner of the business (CIVIL CODE,
GESTIO
Art. 2152).

As to Necessity of Neglect or Abandonment NOTE: The responsibility of two or more

officious managers shall be solidary, unless the
Business or property Neglect or management was assumed to save the things or
should be neglected or abandonment is not business from imminent danger (CIVIL CODE,
abandoned. necessary. Art. 2146, par. 2); and
(5 PARAS, supra at 1159).
5. The officious manager shall be liable for any
NOTE: So long as the owner does not know that fortuitous event:
another is acting on his behalf without authority, a. If he undertakes risky operations which the
negotiorum gestio exists, but once he becomes owner was not accustomed to embark upon;
aware of such fact and still he does not repudiate the b. If he has preferred his own interest to that of
acts of the agent, the quasi-contract ceases to exist. the owner;
It has become an implied agency (5 PARAS, supra c. If he fails to return the property or business
at 1159). after demand by the owner;
d. If he assumed the management in bad faith
Officious Manager/Meddler (CIVIL CODE, Art. 2147);
A party who, in the absence of any contract e. Except when the management was
whatsoever, officiously undertakes to do a service assumed to save the property or business
with respect to the property of another (5 from imminent danger –
TOLENTINO, supra at 578) i. If he is manifestly unfit to carry the
management;
Responsibilities of the Officious Manager: ii. If by his intervention he prevented a
1. Continue taking charge of the agency or more competent person from taking up
management until the termination of the affairs the management (CIVIL CODE, Art.
and its incidents, but he may require the owner, 2148).
if the latter is in a position to do so, to substitute
the officious manager (CIVIL CODE, Art. 2144); Responsibilities of the Owner:
The owner of the property shall be liable for
2. Perform his duties with all the diligence of a good obligations incurred in his interest, and shall
father of a family, and pay the damages which reimburse the officious manager for the necessary
through his fault or negligence may be suffered and useful expenses and for damages, which the
by the owner of the property or business under latter may have suffered in the performance of his
management, but the courts may however, duties in the following instances:
increase or moderate the indemnity according to 1. When the owner of the property or business
the circumstances of each case (CIVIL CODE, enjoyed the advantages of the officious
Art. 2145); management although it may not have been
expressly ratified by him (CIVIL CODE, Art.
NOTE: A gestor is liable for the acts or 2150, Par. 1).
negligence of his employees (5 PARAS, supra 2. When the management has for its purpose the
at 1160). prevention of an imminent and manifest loss,
although no benefit may have been derived
3. Be liable for the acts of his delegate if he (CIVIL CODE, Art. 2150, Par. 2).
delegated to another person all or some of his 3. Even if there had been no benefit to the owner
duties, without prejudice to the direct obligation and there has been no imminent and manifest
of the delegate toward the owner of the business danger to the property of business provided:
(CIVIL CODE, Art. 2146, par. 1); a. The officious manager has acted in good
faith; and
4. Be personally liable for contracts which he has b. The property or business is intact, ready to
entered into with third persons, even though he be returned to the owner (CIVIL CODE, Art.
acted in the name of the owner, and there shall 2151).
be no right of action between the owner and third
persons except: NOTE: Even if the owner is a minor, he is still liable
a. When the owner has expressly or tacitly under Article 2150 of the Civil Code for he should not
ratified the management, or be unjustly enriched at another’s expense (5
PARAS, supra at 1162).
Liability for Contracts entered into by the Primary Responsibility of a Payee: To return what
Officious Manager he has received through error or mistake although
The owner shall be liable for contracts which the there is no right to demand it (5 Paras, supra at
officious manager has entered into with third 1164).
persons when:
1. Such owner has expressly or tacitly ratified the Liability of a Payee in Bad Faith:
management; or 1. Pay legal interest if the sum of money is
2. The contract refers to things pertaining to the involved; or
owner of the business (CIVIL CODE, Art. 2152). 2. Liable for fruits received or which should have
been received if the thing produces fruits (CIVIL
When is Management Extinguished: CODE, Art. 2159, par 1).
1. When the owner repudiates it or puts an end
thereto; REASON: The payee assumes all risks having
2. When the officious manager withdraws from the acted fraudulently though damages may be
management, subject to the provisions of Article mitigated under Art. 2215 of the Civil Code (5
2144 of the Civil Code; and PARAS, supra at 1168).
3. By the death, civil interdiction, insanity or
insolvency of the owner or officious manager 3. He shall furthermore be answerable for any loss
(CIVIL CODE, Art. 2153). or impairment of the thing from any cause and
for damages to the person who delivered the
SOLUTIO INDEBITI thing, until it is recovered (CIVIL CODE, Art.
This takes place when something is received when 2159, par. 2).
there is no right to demand it, and it was unduly
delivered thru mistake (CIVIL CODE, Art. 2154). Liability of Payee in Good Faith:
It is presumed that there was a mistake in the 1. In case of impairment or loss, liability is only to
payment if something which had never been due or the extent of benefit; and
had already been paid was delivered; but he from 2. In case of alienation, price is to be reimbursed,
whom the return is claimed may prove that the or in case of credit, the same should be assigned
delivery was made out of liberality or for any other (CIVIL CODE, Art. 2160).
just cause (CIVIL CODE, Art. 2163).
NOTE: The responsibility of two or more payees,
Payment by reason of a mistake in the construction when there has been payment of what is not due is
or application of a doubtful or difficult question of law solidary (CIVIL CODE, Art. 2157).
may come within the scope of solutio indebiti (CIVIL
CODE, Art. 2155). Exemption from Obligation to Restore
This exemption shall apply to a payee, believing
NOTE: Whether the question is “doubtful or difficult” good faith that the payment being made was for a
or not must be determined by the actual knowledge legitimate and subsisting claim, who:
of law of the person who made the payment. If the 1. Destroyed the document;
payer was in doubt whether the debt was due, he 2. Allowed the action to prescribe;
may recover if he proves that it was not due (CIVIL 3. Gave up pledges; or
CODE, Art. 2156). 4. Cancelled guaranties for his right (CIVIL CODE,
Art. 2162).
Requisites of Solutio Indebiti:
1. Receipt (not mere acknowledgment) of NOTE: He who paid unduly may proceed only
something (CIVIL CODE, Art. 2154); against the true debtor or the guarantor with whom
2. There was no right to demand it because the the action is still effective (CIVIL CODE, Art. 2162).
giver had no obligation (5 PARAS, supra at
1164); and Right of a Third Person
3. The undue delivery was because of mistake When the property delivered or money paid belongs
either of fact or of law, which may be doubtful or to a third person, the payee shall comply with the
difficult question of law (CIVIL CODE, Art. 2155). provisions of Article 1984 of the Civil Code (CIVIL
CODE, Art. 2158).
NOTE: Payment by a joint co-debtor for the benefit
of another co-debtor or co-surety is not solutio OTHER QUASI-CONTRACTS
indebiti but a payment by a person interested in the 1. When, without the knowledge of the person
fulfillment of the obligation under Article 1236 of the obliged to give support, the support was given
Civil Code (5 PARAS, supra at 1165). by a stranger, unless it appears that he gave it
out of piety and without intention of being repaid
(CIVIL CODE, Art. 2164);
 9. When a possessor in good faith has incurred
Requisites: necessary and useful expenses (CIVIL CODE,
a. Support has been furnished in favor of a Arts. 546 and 2172);
dependent of one bound to give support but
who fails to do so; 10. When a third person, without the knowledge of
b. The support was supplied by a stranger; the debtor, pays the debt (CIVIL CODE, Arts.
c. The same was given without the knowledge 1236, 1237 and 2173);
of the person charged with the duty; and
d. It must not have been given without the 11. When in a small community a majority of the
expectation of recovering it (Ramirez v. inhabitants of age decide upon a measure for
Redfern, G.R. No. 26062, December 31, protection against lawlessness, fire, flood, storm,
1926). or other calamity, anyone who objects to the plan
and refuses to contribute to the expenses but is
2. When funeral expenses are borne by a third benefited by the project as executed shall be
person, without the knowledge of the relatives liable to pay his share of said expenses (CIVIL
obliged to give support to the deceased (CIVIL CODE, Art. 2174); and
CODE, Art. 2165);
12. When a third person was constrained to pay the
3. When the person obliged to support an orphan, taxes of another (CIVIL CODE, Art. 2175).
or an insane or an indigent person unduly
refuses to give support to the latter, a third NOTE: The foregoing provisions are mere
person furnishes the support (CIVIL CODE, Art. illustrations of other specific cases of quasi-
2166); contracts; the enumeration has no preclusive effect
on possible other instances (5 PARAS, supra at
NOTE: As distinguished from Article 2164 of the 1176).
Civil Code, the obligor in the article unduly
refuses to support the persons referred to
therein (5 PARAS, supra at 1171).

4. When through an accident or cause, a person is

injured or becomes seriously ill, and he is treated
or helped while he is not in a condition to give
consent to a contract, he shall be liable to pay
for the services of the physician or other person
aiding him, unless the service has been
rendered out of pure generosity (CIVIL CODE,
Art. 2167);

5. When during a fire, flood, storm, or other

calamity, property is saved from destruction by
another person without the knowledge of the
owner (CIVIL CODE, Art. 2168);

6. When the government, upon failure of any

person to comply with health or safety
regulations concerning property, undertakes to
do the necessary work, even over his objection
(CIVIL CODE, Art. 2169);

7. When by accident or other fortuitous event,

movables separately pertaining to two or more
persons are commingled or confused, the rules
on co-ownership shall apply (CIVIL CODE, Art.
2170);

8. When a person has found a lost personal

property (CIVIL CODE, Arts. 719, 720, and
2171);
 LOAN AND DEPOSIT

COMMODATUM SIMPLE EXTRA-JUDICIAL DEPOSIT JUDICIAL

LOAN/MUTUUM DEPOSIT

As to Subject Matter

GENERAL RULE: Non- Money or other Only movable (corporeal) things Movable as well
consumable goods consumable goods (CIVIL CODE, Art.1966; DE LEON, as immovable
(CIVIL CODE, Art. 1933). supra at 218). property (CIVIL
EXCEPTION: CODE, Art.
Consumable goods if 2006; DE LEON,
purpose is not the supra at 218).
consumption of the object.

(CIVIL CODE, Arts. 1933

and 1936; DE LEON,
supra at 9, 13).

As to Consideration

Essentially gratuitous Gratuitous or Onerous, GENERAL RULE: Gratuitous Onerous (DE

(CIVIL CODE, Art. 1933; that is, with a stipulation LEON, supra at
DE LEON, supra at 13). to pay interest (CIVIL EXCEPTIONS: 218).
CODE, Art. 1933; DE 1. When there is an agreement to
NOTE: If onerous or LEON, Credit the contrary;
compensation is paid, then Transactions, supra at 2. Depositary is engaged in the
the contract may be Lease business of storing goods;
13).
(CIVIL CODE, Art. 1935). 3. Where property saved from
destruction without knowledge by
the owner (CIVIL CODE, Art.
1965; DE LEON, supra at 218).

As to Nature of the Contract

Real contract; However, an accepted promise to Real contract; Nonetheless, for Not a contract. It
deliver something by way of commodatum or simple voluntary deposit, an agreement to is auxiliary to a
loan is a consensual contract (CIVIL CODE, Art. 1934; constitute a deposit is a consensual case pending in
DE LEON, supra at 14 and 12). contract (DE LEON, supra at 152 court.
(DE LEON,
supra at 217).

As to Purpose

Use or temporary Consumption (DE LEON, Custody and safekeeping of the To guarantee
possession (DE LEON, supra at 13). thing deposited for the benefit of the the right of the
supra at 13). depositary (DE LEON, supra at plaintiff in case
218). of a favorable
judgment (DE
LEON, supra at
218).
 COMMODATUM SIMPLE EXTRA-JUDICIAL DEPOSIT JUDICIAL
LOAN/MUTUUM DEPOSIT

As to Ownership of the Thing

Retained by the bailor Transferred to the debtor Retained by the owner (Generally, No transfer of
(CIVIL CODE, Art. 1933; (CIVIL CODE, Art. 1933; depositor must be the owner, but it ownership.
DE LEON, supra at 13). DE LEON, supra at 13). may belong to a person other than
a depositor) (CIVIL CODE, Art.
1962; DE LEON, supra at 148).

As to Possession of the Thing

Bailee has possession of the thing (DE LEON, supra Depositary has possession (CIVIL CODE, Art. 1962).
at 4).

As to Time of Return

GENERAL RULE: After Upon expiration of the Upon demand of depositor (CIVIL Upon order of
the expiration of the period term (CIVIL CODE, Art. CODE, Art. 1988). the court or
stipulated, or after the 1946;). when litigation
accomplishment of the use has ended
for which the commodatum (CIVIL CODE,
has been constituted Art. 2007; DE
LEON).
EXCEPTION: Bailor may
demand return or its
temporary use if he should
have urgent need of the
thing, or if the bailee
commits any acts of
ingratitude.
(CIVIL CODE, Arts. 1946
and 1948;).

As to Modes of Extinguishment

Upon the death of either Upon payment or Upon the loss or destruction of the Upon
the bailee or bailor, unless performance, thing deposited, return of the thing, termination of
by stipulation the condonation or novation, merger, expiration of the litigation or upon
commodatum is remission, term, fulfillment of the resolutory order of the court
transmitted to the heirs of merger, compensation, condition, annulment, rescission (CIVIL CODE,
either or both parties novation, annulment, Art. 2007).
rescission, fulfillment of a In case of gratuitous deposit, upon
(CIVIL CODE, Art. 1939; ).
resolutory condition, the death of either the depositor or
prescription (CIVIL depositary (CIVIL CODE, Arts.
CODE, Art. 1231). 1995, and 1231).
 decision rendered thereon valid. (Vda. de Mejia V.
COMPROMISE Lohla & Lohla, G.R. No. L-9354, February 15, 1957)

ARTS. 2028-2041 LAW AND JURISPRUDENCE RECITE

THREE MINIMUM ELEMENTS FOR A
VALID CONTRACT: (COC)
1. Consent
COMPROMISE 2. Object certain which is the subject matter of the
A compromise is a contract whereby the parties, by contract
making reciprocal concessions, avoid litigation or 3. Cause of the Obligation which is established
put an end to one already commenced (CIVIL (CIVIL CODE, Art. 1318).
CODE, Art. 2028).
ADDITIONAL REQUIREMENTS IN
BASIC DUTY OF THE COURT CERTAIN CASES:
WHENEVER A SUIT IS FILED 1. Special powers of attorney are necessary in:
The court shall endeavor to persuade the litigants in (3) To compromise, to submit questions to
a civil case to agree upon some fair compromise arbitration, to renounce the right to appeal from
(CIVIL CODE, Art. 2029). a judgment, to waive objections to the venue of
an action or to abandon a prescription already
NATURE OF THE CONTRACT acquired (CIVIL CODE, Art. 1878).
A compromise is a consensual contract, and as
such, it is perfected upon the meeting of the minds NOTE: A special power to compromise does not
of the parties to the contract (2 ALBANO, Civil Law authorize submission to arbitration (CIVIL
Reviewer,(2020) p.1538). CODE, Art. 1880).

A compromise is an agreement between two or 2. Except when authorized by the other partners or
more persons who, for preventing or putting an end unless they have abandoned the business, one
to a lawsuit, adjust their respective positions by or more but less than all the partners have no
mutual consent in the way they feel they can live authority to: (5) Enter into a compromise
with. Reciprocal concessions are the very heart and concerning a partnership claim or liability (CIVIL
life of every compromise agreement, where each CODE, Art. 1818).
party approximates and concedes in the hope of
gaining balance by the danger of losing. It is, in BINDING EFFECT
essence, a contract (Clark Development A compromise has upon the parties the effect and
Corporation v. Mondragon Leisure and Resorts authority of res judicata; but there shall be no
Corporation et al, G.R. No. 150986, March 2, 2007). execution except in compliance with a judicial
compromise (CIVIL CODE, Art. 2037).
Consent could be given not only by the party himself
but also by anyone duly authorized and acting for If the compromise has the effect of a novation, the
and in his behalf (Id at p. 1540-1541). surety is released from liability. But if the
compromise is merely a reduction of the obligation,
GENERAL RULE: A contract entered into in the the surety is still liable for the subsisting part
name of another by one who has no authority or (Morales v. Fontanos, G.R. No. 43299, January 29,
legal representation, or who has acted beyond his 1937).
powers, shall be unenforceable. (CIVIL CODE, Art.
1317). JUDICIAL COMPROMISE
A compromise agreement that is intended to resolve
EXCEPTION: Unless it is ratified, expressly or a matter already under litigation is normally called a
impliedly, by the person on whose behalf it has been judicial compromise. Once it is stamped with
executed, before it is revoked by the other judicial imprimatur, it becomes more than a mere
contracting party (CIVIL CODE, Art. 1317). A contract binding upon the parties. Having the
compromise agreement, like any other contract, may sanction of the court and entered as its
be ratified. It has been held that although the determination of the controversy, it has the force
compromise agreement was signed by the husband and effect of any other judgment. Such agreement
alone and therefore did not bind the wife who claims has the force of law and is conclusive between the
the lot to be her paraphernal property, where the parties. It transcends its identity as a mere contract
wife actually had knowledge of the compromise and binding only upon the parties thereto, for it becomes
executed acts tacitly to ratify the same, the
compromise agreement is binding on her, and a
a judgment that is subject to execution in and request that a decision be rendered approving
accordance with the Rules. said agreement, it is only natural to presume that
such action constitutes an implicit, as undeniable as
Thus, a compromise agreement that has been made an express, waiver of the right to
and duly approved by the court attains the effect and appeal against said decision. Thus, a decision on
authority of res judicata, although no execution may a compromise agreement is final and executory, and
be issued unless the agreement receives the is conclusive between the parties (Unirock
approval of the court where the litigation is pending Corporation vs Carpio and Hardrock Aggregates
and compliance with the terms of the agreement is Inc., G.R. No. 213421, August 24, 2020).
decreed (Viesca v. Gilinsky, G.R. No. 171698, July
4, 2007). EARNEST EFFORT TO COMPROMISE
The courts may mitigate the damages to be paid by
Courts as a rule may not impose upon the parties a the losing party who has shown a sincere desire for
judgment different from their compromise a compromise (CIVIL CODE, Art. 2031).
agreement. It would be an abuse of discretion.
(Municipal Board v. Samahang Magsasaka, G.R.
COURT’S APPROVAL TO ENTER INTO
No. L-25818, February 25, 1975)
COMPROMISE IN CERTAIN CASES
CIRCUMSTANCES WHERE A The court's approval is necessary in compromises
entered into by: (GPAA)
PROCEEDING IN A CIVIL ACTION MAY a. Guardians,
BE SUSPENDED b. Parents,
a. If willingness to discuss a possible compromise c. Absentee's representatives,
is expressed by one or both parties; or d. Administrators or Executors of decedent's
b. If it appears that one of the parties, before the estates.
commencement of the action or proceeding,
offered to discuss a possible compromise but COMPROMISE WITHOUT THE
the other party refused the offer (CIVIL CODE,
LAWYER’S INTERVENTION
Art. 2030).
A client has an undoubted right to settle a suit
NOTE: The duration and terms of the suspension of without the intervention of his lawyer, for he is
the civil action or proceeding and similar matters generally conceded to have the exclusive control
shall be governed by such provisions of the rules of over the subject-matter of the litigation and may, at
court as the Supreme Court shall promulgate. Said any time before judgment, if acting in good faith,
rules of court shall likewise provide for the compromise, settle, and adjust his cause of action
appointment and duties of amicable out of court without his attorney's intervention,
compounders(CIVIL CODE, Art. 2030). knowledge, or consent, even though he has agreed
with his attorney not to do so. Hence, a claim for
attorney's fees does not void the compromise
REQUIREMENT IN ORDER THAT A agreement and is no obstacle to a court approval.
COMPROMISE MAY BE EXECUTED
The must be approval of the court (2 ALBANO, As the validity of a compromise agreement cannot
supra at p.1536). be prejudiced, so should not be the payment of a
lawyer's adequate and reasonable compensation for
COMPROMISE APPROVED BY THE his services should the suit end by reason of the
COURT IS NOT APPEALABLE settlement (Gubat v. National Power Corporation,
Adjective law governing judicial compromises G.R. No. 167415, February 26, 2010).
annunciates that once approved by the court, a
judicial compromise is not appealable and it thereby JURIDICAL PERSONS
becomes immediately executory but this rule must Juridical persons may compromise only in the form
be understood to refer and apply only to those who and with the requisites which may be necessary to
are bound by the compromise and, on the alienate their property.
assumption that they are the ONLY parties to the
case, the litigation comes to an end except only as COMPROMISE IN CIVIL CASES
regards to its compliance and fulfillment by the In civil cases, an offer of compromise is not an
parties of their respective obligations thereunder (Id admission of any liability, and is not admissible in
at p.1542). evidence against the offeror. Neither is evidence of
conduct nor statements made in compromise
REASON FOR THE RULE negotiations admissible, except evidence otherwise
The reason for the rule is that when both parties discoverable or offered for another purpose, such as
enter into an agreement to end a pending litigation
proving bias or prejudice of a witness, negativing a Code (People v. Magdaluyo, G.R. No. L-16235, April
contention of undue delay, or proving an eff ort to 20, 1961).
obstruct a criminal investigation or prosecution.
(REVISED RULES ON EVIDENCE, Sec 28). WHAT CANNOT BE COMPROMISED
No compromise upon the following questions shall
COMPROMISE IN CRIMINAL CASES be valid: (CVGSJL )
There may be a compromise upon the civil liability 1. The Civil status of persons;
arising from an offense; but such compromise shall 2. The Validity of a marriage or a legal separation;
not extinguish the public action for the imposition of 3. Any Ground for legal separation;
the legal penalty (CIVIL CODE, Art. 2036). 4. Future Support;
5. The Jurisdiction of courts;
In criminal cases, except those involving quasi- 6. Future Legitime (CIVIL CODE, Art. 2035).
offenses (criminal negligence) or those allowed by
law to be compromised, an offer of compromised by NOTE: The prohibitions in the Article 1490 and 1491
the accused may be received in evidence as an of the Civil Code are applicable to sales in legal
implied admission of guilt (REVISED RULES ON redemption, compromises and renunciations.
EVIDENCE, Sec 28).
SALE OF PROPERTY BETWEEN
COVERAGE OF COMPROMISE MARRIED SPOUSES
A compromise comprises only those objects which GENERAL RULE: Spouses cannot by compromise
are definitely stated therein, or which by necessary evade the prohibition on the sale of property to one
implication from its terms should be deemed to have another
been included in the same (CIVIL CODE, Art. 2036).
EXCEPTIONS: (SJ)
A general renunciation of rights is understood to
1. When a Separation of property was agreed upon
refer only to those that are connected with the
dispute which was the subject of the compromise in the marriage settlements; or
(CIVIL CODE, Art. 2036). 2. When there has been a Judicial separation of
property under article 191 (CIVIL CODE, Art.
Compromise agreement must be strictly interpreted 1490).
and must be understood as including only matters
specifically determined therein or which, by WHEN MAY A COMPROMISE
necessary inference from its wording, must be AGREEMENT MAY BE ANNULLED OR
deemed included. Hence, it has been held, that a RESCINDED: (MCNE)
compromise agreement abrogating the right of a a. A compromise in which there is Mistake, fraud,
party to retain possession of a property as a lessee, violence, intimidation, undue influence, or falsity
does not necessarily destroy her right of redemption of documents (CIVIL CODE, Art. 2038).
created by another contract (Dimatulac v. Coronel,
G.R. No. L-14132, January 22, 1920). NOTE: However, one of parties cannot set up a
mistake of fact as against the other if the latter,
GENERAL RULE: There may be a compromise by virtue of the compromise, has withdrawn
upon the civil liability arising from an offense; but from a litigation already commenced (CIVIL
such compromise shall not extinguish the public CODE, Art. 2038).
action for the imposition of the legal penalty (CIVIL
CODE, Art. 2034). Where the compromise is instituted and carried
through in good faith, the fact that there was a
REASON: Even where the offended party has mistake as to the law or as to the facts, EXCEPT
expressly waived indemnification, it is the duty of the in certain cases where the mistake was mutual
public prosecutor to bring criminal proceedings (U.S. and correctible as such in equity, cannot afford
v. Leaño, G.R. No. 2741, August 16, 1906). a basis for setting aside a compromise (Asong
vs IAC, G.R. No 74461, May 12, 1989)
EXCEPTION: The NIRC authorizes the
Commissioner of Internal Revenue to compromise It is a general rule in this country that
violations of the NIRC. Where the taxpayer’s compromise are to be favored, without regard to
violation of the Tax Code was compromised with the the nature of the controversy compromised, and
approval of the Commissioner of Internal Revenue that they cannot be set aside because the event
and the City Fiscal, before any information was filed shows all the gain to have been on one side,
in court, and the taxpayer paid the amount stated in and all the sacrifice on the other, if the parties
the compromise agreement, he cannot be have acted in good faith, and with a belief of the
prosecuted anymore for the said violation for the Tax

697
 actual existence of the rights which they have
respectively waived or abandoned (Id). If the motion is denied, he may, considering the
special finality feature of compromise agreement,
The law does not relieve a party from the effects albeit partial, and its susceptibility to execution, take
of an unwise, foolish or disastrous contract, an appeal from the order of denial under Rule 45 or
entered into with all the required legal even, when circumstances particularly warrant, the
formalities and with full awareness of what he extraordinary remedy prescribed in Rule 65, of the
was doing (Tanda v. Aldaya, G.R. No. L-3278, Rules of Court (Id at p. 1543)
July 23, 1951)
A PERSON WHO IS NOT A PARTY TO A
b. The discovery of documents referring to one or CONTRACT OR COMPROMISE MAY
more but not to all of the questions settled shall
not itself be a cause for annulment or rescission
NOT ENFORCE IT
of the compromise, unless said documents It is axiomatic that a contract cannot be binding upon
have been Concealed by one of the parties and cannot be enforced against one who is not a
(CIVIL CODE, Art. 2039). party to it, even if he is aware of such contract and
has acted with knowledge thereof (UP v. Philab
c. If it refers only to one thing to which one of the Industries Inc., G.R. No. 152411, September 29,
parties has no right, as shown by the Newly- 2004). A party person who is not a party to a
discovered documents (CIVIL CODE, Art. compromise agreement cannot be affected by it (2
2039). ALBANO, supra at p.1544).

d. If after a litigation has been decided by a final INAPPLICABILITY OF ARTICLE 151

judgment, a compromise should be agreed No suit between members of the same family shall
upon, either or both parties being unaware of prosper unless it should appear from the verified
the Existence of the final judgment, the complaint or petition that earnest efforts toward a
compromise may be rescinded (CIVIL CODE, compromise have been made, but that the same
Art. 2040)(AQUINO, Reviewer on Civil Law have failed. If it is shown that no such efforts were in
(2018), p. 807). fact made, the same case must be dismissed. This
rule shall not apply to cases which may not be
NOTE: Ignorance of a judgment which may be the subject of compromise under the Civil Code
revoked or set aside is not a valid ground for (FAMILY CODE, Art. 151).
attacking a compromise (Id).

REASON: A valid compromise can be based

only upon doubt as to the rights of the parties,
and this doubt is non-existent when there is
already a final judgment on the matter
compromised (Rovero v. Amparo, G.R. No. L-
5482, May 2, 1952).

REMEDY IN CASE OF BREACH

If one of the parties fails or refuses to abide by the
compromise, the other party may either:
a. Enforce the compromise; or
b. Regard it as rescinded and insist upon his
original demand (CIVIL CODE, Art. 2041).

REMEDY OF THE PARTIES WHO DID

NOT TAKE PART OF THE COMPROMISE
AGREEMENT
Where there are parties in a case who did not
participate in the compromise agreement, but who
are adversely affected, they should not be precluded
from invoking in the same proceedings an adequate
relief. A motion to set aside the judgment to the
extent he might feel aggrieved, or might justifiably
fear to be at risk, by acquiescence unless timely
invoked, is a remedy (2 ALBANO, supra at p.1543).
 TORTS CLASSIFICATION OF
TORTS

TORTS
An unlawful violation of a private right, not created by GENERAL CLASSES OF TORTS:
contract, and which gives rise to an action for 1. Property Torts
damages (AQUINO, Torts and Damages (2019), p.1 – Injuries and damages to real/personal property.
[hereinafter AQUINO, Torts and Damages]).
2. Personal Torts
“Tort" consists in the violation of a right given or the –Injuries to person, i.e., body, reputation,
omission of a duty imposed by law. Simply stated, character or feelings (DE LEON, Comments &
tort is a breach of a legal duty (Naguiat v. NLRC, G.R. Cases on Torts and Damages (2019), p.8
No. 116123, March 13, 1997). [hereinafter DE LEON, Torts and Damages]).

It is a “tortious liability” which arises from the breach KINDS OF TORT LIABILITIES:
of a duty primarily fixed by laws; such duty is toward
persons, generally, and its breach is redressible by
1. Negligent Tort (Negligence)
an action for unliquidated damages (ALBANO, Torts – Involves voluntary acts or omissions that result
in injury to others, without intending to cause the
and Damages (2016), p.1 [hereinafter ALBANO,
same. The actor fails to exercise due care in
Torts and Damages]).
performing such acts or omissions (AQUINO,
Torts and Damages, supra at 2).
BASIC PURPOSES OF TORTS LAW:
1. To provide a peaceful means for adjusting the 2. Intentional Tort
rights of the parties who might otherwise take the – Tort is intentional if an actor desires to cause
law into their own hands; the consequences of his act or he believes that
2. To deter wrongful conduct; the consequences of his acts are certain to cause
3. To encourage socially responsible behavior; and damage to another (ALBANO, Torts and
4. To restore injured parties to their original Damages supra at 3).
condition insofar as the law can do this
(ALBANO, Torts and Damages, supra at 10-11). It includes assault, battery, false imprisonment,
defamation, invasion of privacy, and interference
of property (AQUINO, Torts and Damages supra
at 3).

3. Strict Liability in Tort

– The person is made liable independent of fault
or negligence upon submission of proof of certain
facts. The conduct is generally not wrongful in
itself but the wrong consists in causing harm by

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA R. TAMPUS, Vice
Chairperson for Secretariat | ARVY KEITH N. CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice
Chairperson for Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. TIMOTEO B. AQUINO and Atty. JESUS ERICK F. STA. BARBARA

 engaging in certain types of risky activities (Id. at CONCURRENCE OF CAUSES OF
7). ACTION:
1. A single act or omission may give rise to two or
REMEDIES FOR TORTS: more causes of action, i.e., based on delict,
1. Compensatory quasi-delict and contract;
– actions for sum of money for damages suffered 2. Two persons may be liable for one act or
(AQUINO, Torts and Damages, supra at 33). omission that causes the injury; and
3. There may be a concurrence of actions even if
2. Preventive only one person is sought to be held liable.
– prayer for injunction, and a writ of preliminary (AQUINO, Torts and Damages supra at 49-50)
injunction and a temporary restraining order, to
enjoin the defendant from continuing the doing of Choice of remedy in concurrence of causes of action
the tortious conduct (Id.). pertains to procedural and jurisdictional issues of
action. The remedy may be based on a delict or
3. Restitution quasi-delict. A quasi-delict action may proceed
– to disgorge gains that the defendant wrongfully independently from the criminal action (Barredo v.
obtained by tort (DE LEON, Torts and Damages, Garcia, G.R. No. L-48006, July 8, 1942); but it is
supra at 15). subject to the proscription against double recovery
(CIVIL CODE, Art. 2177).

MATERIALITY OF MOTIVE
LEGAL INJURY Where motive is material under the circumstances of
the particular case, a bad motive, in connection with
conduct which violates plaintiff’s rights, has been held
to render the conduct tortuous (DE LEON, Torts and
No obligation will be recognized and enforced by our Damages, supra at 40).
courts unless the plaintiff can justify said obligation as
arising from one of the sources enumerated in Art. A bad motive is occasionally important in cases
1157 of the New Civil Code. Of these sources of involving certain economic torts, e.g., interference
obligations, only law, delict, and quasi delict may with business opportunity without physical threat or
be appropriately cited as sources of tort liability harm and claims for punitive damages (Id.).
(AQUINO, Torts and Damages, supra at 36-37).
MATERIALITY OF INTENT
CAUSE OF ACTION IN TORT Liability in tort for an injury is determined by conduct,
Test: Whether the defendant owed plaintiff any legal and can arise regardless of the mental state or intent
duty to do something which defendant wrongfully did to commit an unlawful act (Id. at 42).
not do, or not to do something which he wrongfully
did, in violation of plaintiff’s legal right or rights (DE PROSCRIPTION ON DOUBLE
LEON, Torts and Damages, supra at 29).
RECOVERY
ELEMENTS: (ROW) Although a single act or omission may give rise to two
different causes of action, the plaintiff cannot recover
1. A legal Right in favor of a person (plaintiff); damages twice for the same act or omission of the
2. A correlative legal Obligation on the part of defendant (CIVIL CODE, Art. 2177).
defendant to respect or not to violate such right;
and Inasmuch as civil liability co-exists with criminal
responsibility in negligence cases, the offended party
NOTE: Moral rights and duties – those duties has the option between an action for enforcement of
which are dictated merely by good morals or by civil liability based on culpa criminal under Article 100
humane considerations are not within the domain of the Revised Penal Code and an action for
of the law (Id. at 30). damages based on culpa aquiliana under Article
2177 of the Civil Code.
3. A Wrong, i.e., an act or omission in violation of
said legal right and duty with consequent injury or These two civil liabilities are distinct and independent
damage to the plaintiff (Id. at 29). of each other; the failure to recover in one will not
necessarily preclude recovery in the other (People v.
Billaber y Matbanua, G.R. No. 114967-68, January
26, 2004).
 CULPA
NEGLIGENCE AQUILIANA
OR CULPA
CULPA CULPA
EX-
CRIMINAL CONTRACTUAL
CONTRACTU
NEGLIGENCE (QUASI-
DELICT)
The fault or negligence of the obligor consists in the
omission of that diligence which is required by the performance
nature of the obligation and corresponds with the (CIVIL CODE,
circumstances of persons, place and time (CIVIL Art. 1173).
CODE, Art. 1173).
As to the Nature of Negligence
There is no hard and fast rule whereby such degree
of care and vigilance is calibrated; it is dependent Direct, Direct, Negligence is
upon the circumstances in which a person finds substantive substantive and merely incident
himself. All that the law requires is that it is and independent to the
perpetually compelling upon a person to use that care independent. (Huang v. performance of
and diligence expected of sensible men under Philippine an obligation
comparable circumstances (PNR v. CA, G.R. Hoteliers, Inc., already existing
No.157658, October 15, 2007). G.R. No. because of a
180440, contract (Huang
The existence of negligence in a given case is not December 5, v. Philippine
determined by reference to the personal judgment of 2012). Hoteliers, Inc.,
the actor in the situation before him. The law G.R. No. 180440,
considers what would be reckless, blameworthy, or December 5,
negligent in the man of ordinary intelligence and 2012).
prudence and determines liability by that (Picart v.
Smith, Jr., G.R. No. L-12219, March 15, 1918). As to the Proof Needed

Proof Preponderance Preponderance

MOTIVE NOT MATERIAL beyond of evidence of evidence
Motive is not material in negligence cases. The reasonable (RULES OF (RULES OF
defendant may still be held liable even if the act was doubt COURT, Rule COURT, Rule
meant to be a practical joke (AQUINO, Torts and (Barredo v. 133, Section 1, 133, Section 1,
Damages, supra at 61). Garcia, G.R. Casupanan v. Barredo v.
No. L-48006, Laroya, G.R. Garcia, G.R. No.
KINDS: July 8, No. 145391, L-48006, July 8,
1942). August 26, 1942).
2002).
CULPA CRIMINAL V. CULPA AQUILIANA
V. CULPA CONTRACTUAL
CULPA As to the Existence of Pre-Existing
AQUILIANA Contractual Obligation
OR CULPA
CULPA CULPA None. No pre-existing There is pre-
EX-
CRIMINAL CONTRACTUAL obligation existing
CONTRACTU
(except the duty obligation (a
(QUASI-
to be careful in contract, either
DELICT)
all human express or
As to the Basis of Liability actuations) implied) (Huang
(Huang v. v. Philippine
Existence of Fault or Obligation arises Philippine Hoteliers, Inc.,
a law clearly negligence from the breach Hoteliers, Inc., G.R. No. 180440,
punishing resulting in of the contract G.R. No. December 5,
the act damage or because of 180440, 2012).
(Nullum injury to another defendant’s December 5,
crimen sine (CIVIL CODE, failure to 2012).
lege). Art. 2176). exercise due
care in its
 CULPA CULPA
AQUILIANA AQUILIANA
OR CULPA OR CULPA
CULPA CULPA CULPA CULPA
EX- EX-
CRIMINAL CONTRACTUAL CRIMINAL CONTRACTUAL
CONTRACTU CONTRACTU
(QUASI- (QUASI-
DELICT) DELICT)

As to the Employer’s Defense of Exercising G.R. No. 141910,

the Diligence of “Good Father of a Family” in August 6, 2002).
the Selection and Supervision of his
Employees In culpa
contractual, the
Not a proper As a general Not a complete plaintiff only
defense. rule, a complete and proper needs to
(ALBANO, proper defense. defense establish the
Torts and existence of the
Damages, However, even contract and the
supra at 7). if the employer obligor’s failure
can prove the to perform his
diligence in the obligation
selection and (Torres-Madrid
supervision (the Brokerage, Inc.
latter aspect v. FEB Mitsui
has not been Marine Insurance
established Co. Inc., G.R. No.
herein) of the 194121, July 11,
employee, still if 2016).
he ratifies the
wrongful acts, As to the Nature of the Right Violated
or take no step
to avert further Public right. Private right. Private right.
damage, the
employer would As to the Governing Law
still be
Governed by Governed by Governed by
liable. (Spouses
Art. 365 of Art. 2176; Arts. Arts. 1170-1174
Fontanilla v.
the Revised 1172-1174 are of the CIVIL
Hon. Maliaman,
Penal Code. also applicable CODE.
G.R. No. L-
(CIVIL CODE,
55963
Art. 2178).
December 1,
1989).
DEGREES OF NEGLIGENCE:
As to the Presumption of Negligence
1. Simple Negligence
The No presumption The presumption – failure to observe for the protection of another
innocence of of negligence. of negligence person that degree of care, precaution, and
the accused Injured party in culpa vigilance which the circumstances justly demand,
is presumed must prove the contractual, whereby such other person suffers injury (Gaid v.
until the negligence of immediately People, G.R. No. 171636, April 7, 2009).
contrary is the defendant attaches by a
proven. (Cangco v. failure of the Elements:
Manila Railroad covenant or its (1) There is lack of precaution on the part of the
Company, G.R. tenor (FGU offender; and
No. L-12191, Insurance (2) The damage impending to be caused is not
October 14, Corporation v. immediate or the danger is not clearly
1918). G.P. Sarmiento manifest (St. Luke’s College of Medicine v.
Trucking Perez, G.R. No. 222740, September 28,
Corporation, 2016).
2. Gross Negligence contractual relation exists the obligor may break the
– one that is characterized by the want of even contract under such conditions that the same act
slight care, acting or omitting to act in a situation which constitutes the source of an extra-contractual
where there is a duty to act, not inadvertently but obligation had no contract existed between the
willfully and intentionally with a conscious parties (Cangco v. Manila Railroad, Co., G.R. No. L-
indifference to consequences insofar as other 12191, October 14, 1918).
persons may be affected (Baño vs. Bachelor
Express, GR No. 191703, March 12, 2012). STANDARD OF CARE: DILIGENCE OF A
GOOD FATHER OF A FAMILY (PATER
In quasi-delicts, exemplary damages may be
FAMILIAS) (CIVIL CODE, Art. 1173 in relation to
granted if the defendant acted with gross
Art. 2178).
negligence (CIVIL CODE, Art. 2231).
It is he who, in the performance of an act should
foresee the consequences of the same. If he does,
CULPA AQUILIANA OR QUASI-DELICT he is not negligent (ALBANO, Torts and Damages,
It is an act or omission which causes damage to supra at 34). What should be determined in
another, there being fault or negligence and there negligence cases is what is foreseeable to a good
being no pre-existing contractual relationship father of a family (AQUINO, Torts and Damages,
between the parties (CIVIL CODE, Art. 2176). supra at 81).
The concept of quasi-delict in Art. 2176 is broad; it A good father of a family is also referred to as the
includes not only injuries to persons but also damage reasonable man, man of ordinary intelligence and
to property (Cinco v. Canonoy, G.R. No. L-33171, prudence, or ordinary reasonable prudent man (Id. at
May 31, 1979). 82).
Requisites: (ANICC) The law requires a man to possess ordinary capacity
1. An Act or omission; to avoid harming his neighbors unless a clear and
2. The presence of fault or Negligence in the manifest incapacity is shown; but it does not generally
performance or non-performance of an act; hold him liable for unintentional injury unless,
3. Injury; possessing such capacity, he might and ought to
4. Causal connection between the negligent act and have foreseen the danger (Id. at 83).
the and the injury; and
5. No pre-existing Contractual relation (St. Martin
TESTS TO DETERMINE THE EXISTENCE
Polyclinic, Inc. v. LWV Construction Corporation,
G.R. No. 217426, December 4, 2017). OF NEGLIGENCE:
1. Did the defendant in doing the alleged negligent
NOTE: Even prior to the enactment of the New Civil act use reasonable care and caution which an
Code, the Supreme Court had already adopted, in ordinarily prudent person would have used in the
some of its decisions, a broad concept of torts using same situation? If not, there is negligence (Picart
Article 1902 of the old Civil Code. It is noteworthy that v. Smith, G.R. No. L-12219, March 15, 1918).
the same broad interpretation of quasi-delict had 2. Could a prudent man, in the case under
been given to Article 2176, the provision on quasi- consideration, foresee harm as a result of the
delict under the New Civil Code. The Supreme Court course pursued? If so, it was the duty of the actor
observed in a number of cases that Article 2176 to take precautions to guard against harm (Id.).
includes intentional acts (AQUINO, Torts and
Damages, supra at 8-9). Conduct is negligent when a prudent man in the
position of the tortfeasor would have foreseen that an
An action for quasi-delict can be maintained even if effect harmful to another was sufficiently probable to
there is an existing contractual relation between the warrant his disregard of the conduct or guarding
parties, provided that in all such cases, the elements against its consequences (Id.).
of quasi-delict are present and the existence of
contract is merely incidental (Id. at 31). “DILIGENCE BEFORE THE FACT”
The conduct that should be examined in negligence
REASON: The field of non- contractual obligation cases is conduct prior to the injury or the aggravation
[which includes quasi-delicts] is much broader than thereof (St. Francis High School v. CA, G.R. No.
that of contractual obligations, comprising, as it does, 82465, February 25, 1991).
the whole extent of juridical human relations. These
two fields, figuratively speaking, concentric; that is to NOTE: The state of mind of the actor is not important.
say, the mere fact that a person is bound to another Good faith or use of sound judgment is immaterial
by contract does not relieve him from extra- (Picart v Smith, supra).
contractual liability to such person. When such a
Only juridical fault is subject to liability and not moral CODE, Art. 1173), e.g., more prudence is
fault (AQUINO, Torts and Damages, supra at 53). required when driving at night (Id. supra at 72).

CIRCUMSTANCES THAT MAY AFFECT 5. Gravity of the harm to be avoided

THE DETERMINATION OF NEGLIGENCE: Even if the odds that an injury will result are not
high, harm may still be considered foreseeable if
(PEST-GAP)
the gravity of harm to be avoided is great (Id.
1. Person exposed to the risk supra at 75).
In proper cases, higher degree of diligence
required if a child is involved, even if a trespasser, 6. Alternative courses of action
because entry of children in vacant lot may be If the alternative presented to the actor is too
foreseeable, such that the law imposes a duty of costly, the harm that may result may still be
care towards children even if ordinarily there is no considered unforeseeable to a reasonable man.
duty under the same circumstance if the person More so if there is no alternative thereto (Id. at
involved is an adult with sufficient discretion. 76).
(AQUINO, Torts and Damages, supra at 78-79).
7. Place
2. Emergency The place where the actor is located may affect
Emergency Rule or Sudden Peril Doctrine the diligence required from him, e.g., ordinary or
GENERAL RULE: An individual who suddenly reasonable care in the operation of a motor
finds himself in a situation of danger and is vehicle at an intersection would naturally require
required to act without much time to consider the more precaution than is necessary when driving
best means that may be adopted to avoid the elsewhere in a street or highway (Caminos v.
impending danger is not guilty of negligence if he People, G.R. No. 147437, May 8, 2009).
fails to undertake what subsequently and upon
reflection may appear to be a better solution (Id.
at 73, Makati Auto Line Transport Corporation v.
CIRCUMSTANCES MATERIAL IN
People, G.R. No. 152040, March 31, 2006). DETERMINING NEGLIGENCE:
(WINE-PICK)
REASON: A person who is confronted with a 1. Women
sudden emergency may be left with no time for Whether the passenger acted prudently or
thought and must make a speedy decision largely recklessly – the age, sex, and physical condition
upon impulse or instinct (AQUINO, supra at 73). of the passenger are circumstances necessarily
affecting the safety of the passenger should be
EXCEPTION: The emergency rule cannot be considered (AQUINO, Torts and Damages, supra
invoked if the person invoking it found himself in at 112).
danger which he himself created through his own
negligence (Delsan Transport v. C and A A woman driving a vehicle suddenly crippled by
Construction, Inc., G.R. No. 156034, October 1, a flat tire on a rainy night will not be faulted for
2003). stopping at a point which is both convenient for
her to do so and which is not a hazard to other
3. Social value or utility of action motorists. However, it can also be reasonably
Any act subjecting an innocent person to argued that the same conclusion can be reached
unnecessary risk is a negligent act if the risk if it was a man who was in the position of the actor
outweighs the advantage accruing to the actor (Valenzuela v. CA, G.R. No. 115024, February 7,
and even to the innocent person himself 1996).
(AQUINO, Torts and Damages, supra at 76).
2. Intoxication
Illustration: GENERAL RULE: Mere intoxication is not
As has often been pointed out, if all the trains in negligence nor establishes want of ordinary care.
the country were restricted to a speed of five But it may be one of the circumstances to be
miles an hour, there would be fewer accidents, considered to prove negligence (Wright v. Manila
but our national life would be intolerably slowed Electric Railroad & Light Co., G.R. No. 7760,
down. The purpose to be served, if sufficiently October 1, 1914).
important, justifies the assumption of abnormal
risk (Id.). EXCEPTION: A person driving a motor vehicle is
presumed negligent if he is violating any traffic
4. The Time of the day may affect the regulation at the time of the mishap (CIVIL
diligence required of the actor (CIVIL CODE, Art. 108).
3. Nature of Activity not be exempted from civil liability (AQUINO,
When persons impose upon themselves certain Torts and Damages, supra at 111).
obligations, non-compliance therewith will be
considered negligence, e.g., railroad company on Under the Civil Code, the insanity of a person
having a gate at a railroad crossing (AQUINO, does not excuse him or his guardian from liability
Torts and Damages, supra at 107). based on quasi-delict (CIVIL CODE, Arts. 2180
and 2182).
Some activities by nature impose duties to
exercise higher degree of diligence; e.g. banks Bases for Holding an Insane Person Liable
are required to exercise the highest degree of for His Tort:
diligence in the conduct of its affairs (Prudential a. Between two innocent persons, the loss
Bank v. Rapanot, G.R. No. 191636, January 16, should be borne by the one who occasioned
2017) and common carriers, from the nature of it;
their business and for reasons of public policy, b. To induce those interested in the estate of
are bound to observe extraordinary diligence in the insane person to restrain and control him;
the vigilance over the goods and for the safety of and
the passengers transported by them, according c. The fear that insanity would lead to false
to all the circumstances of each case (CIVIL claims of insanity and avoid liability
CODE, Art. 1733). (AQUINO, Torts and Damages, supra at
100).
NOTE: Distribution utilities are public utilities
vested with public interest, and thus, are held to 7. Children
a higher degree of diligence (Manila Electric Co. The care and caution required of a child is
v. Nordec Philippines, G.R. No. 196020, April 18, according to his maturity and capacity only and
2018). this is to be determined in each case by the
circumstances of the case the question of
4. Experts and Professionals negligence necessarily depends on the ability of
An expert should exhibit the care and skill of one the minor to understand the character of his own
ordinarily skilled in the particular field that he is acts and their consequences (Taylor v. Meralco,
in. Those who undertake any work calling for G.R No. 4977, March 22,1910).
special skills are required not only exercise
reasonable care in what they do but also possess If the child is under nine years, it is no longer
a standard minimum of special knowledge and necessary to determine his maturity and capacity
ability (AQUINO, Torts and Damages, supra at because he is conclusively presumed to be
103). incapable of negligence. If the child is above nine
to fifteen, he is disputably presumed to be
The rule regarding experts is applicable not only incapable of negligence but the opposing party
to professionals, like doctors, lawyers, pilots and can prove that the child is at such stage of
others, who have undergone formal education maturity and capacity that he can already
(Id. at 106). determine what a reasonable man would do
under the same circumstances (Jarco Marketing
5. Physical Disability Corporation, et al. v. CA, supra).
GENERAL RULE: The weakness of a person will
not be an excuse in negligence cases. One If the child is legally incapable of discernment, the
should not undertake a task in which he knows or parents or any person exercising parental
ought to know, that his weakness may be a authority over him may still be liable if proper
danger to others (Id. at 99). diligence in supervising the child was not
observed. The actor himself is liable up to the
EXCEPTION: If the defect amounts to a real extent of his properties (AQUINO, Torts and
disability, the standard of conduct is that of a Damages, supra at 92).
reasonable person under like disability, e.g., the
standard of conduct for a blind person becomes 8. Knowledge and Experience of the Actor
that of a reasonable person who is blind There are matters which a prudent man is
(Francisco v. Chemical Bulk Carriers conclusively presumed to know based on
Incorporated, G.R. No. 193577, September 9, knowledge and experience, e.g., familiarity of the
2011). place means knowledge of the makeup of the
same area; or the basic laws of nature or physics
6. Insanity (Id. supra at 84).
Under the Revised Penal Code, an insane
person is exempt from criminal liability but may
OTHER FACTORS TO CONSIDER IN Foreseeability is the fundamental test of negligence.
DETERMINING THE PRESENCE OF In determining whether the actor was negligent, the
court will place itself in the actor’s position to see if a
NEGLIGENCE: prudent man could have foreseen the resulting harm
1. Violation of Rules and Statutes if the conduct is pursued (AQUINO, Torts and
a. Statutes and Ordinances Damages, supra at 55).
GENERAL RULE: Violation of a statutory
duty is negligence per se (Cipriano v. CA, Even if the particular injury was not foreseeable, the
G.R. No. 107968, October 30, 1996). The risk is still foreseeable if possibility of injury is
reason for this is that the statute or ordinance foreseeable (Id.).
becomes the standard of care or conduct to
which the reasonably prudent person is held. TESTS OF FORESEEABILITY:
EXCEPTIONS: (US) 1. Unreasonable or Undue Risks
i. When Unusual conditions occur and This risk is a danger which is apparent, or should
strict observance may defeat the be apparent, to one in the position of the actor. It
purpose of the rule that may even lead to is a risk that is reasonably foreseeable (Id. at 58).
adverse results; or
ii. When the Statute provides that the 2. Probability
violation merely establishes a There is negligence if a prudent man in the
presumption of negligence (AQUINO, position of the tortfeasor would have foreseen
Torts and Damages, supra at 127-128 that the harmful effect was sufficiently probable
citing Tedla v. Ellman, 280 N.Y. 124, 19 to warrant his conduct or guarding against its
N.E. 2D 987(1939)). consequence (Picart v. Smith, Jr., G.R. No. L-
12219, March 15, 1918). If there is a great
b. Administrative Rules probability and risk that damage will result, a
Violation of a rule promulgated by person is negligent if he did not exercise due
administrative agencies is not negligence per diligence in the face of such great probability
se, but may be evidence of negligence (AQUINO, Torts and Damages, supra at 59).
(Marinduque Iron Mines Agents, Inc. v. The
Workmen’s Compensation Commission, Even if there is a lesser degree of probability that
G.R. No. L-8110, June 30, 1956). damage will result, the damage may still be
considered foreseeable (Id. at 60).
c. Private rules of Conduct
Violation of rules imposed by private CALCULATION OF RISK:
individuals (e.g., employers) is merely a 1. Risk-Benefit Analysis
possible evidence of negligence – Balancing the risk, in light of the social value of
(AQUINO, Torts and Damages, supra at the interest threatened and the probability and
128). extent of the harm against the value of the
interest which the actor is seeking to protect, and
NOTE: the expedience of the course pursued.
Compliance/non-compliance with customs and
practices does not necessarily mean that the The following circumstances should therefore be
actor was negligent/not negligent (Id. at 134). considered:
a. Gravity of the harm to be avoided;
A practice which is dangerous to human life b. Utility of conduct or the social value it seeks
cannot ripen into a custom which will protect to advance; and
anyone who follows it (Yamada v. Manila c. Alternative course of action, dangers, and
Railroad, G.R. No. 10073, December 24, 1915). advantages to the person or property of the
actor himself and to others (Id. at 68).
TEST OF NEGLIGENCE
2. The Hand Test
– Reduced the risk benefit to a negligence
FORESEEABILITY
formula: If the probability be called P; the injury L;
To be negligent, a defendant must have acted or and the burden B; liability depends upon whether
failed to act in such a way that an ordinary reasonable B is less than L multiplied by P (Id. at 69).
man would have realized that certain interests of
certain persons were unreasonably subjected to a The rule in the Philippines is that the risk-benefit
general but definite class of risks (R Transport Corp. analysis and the hand test do not apply. Courts in this
v. Yu, G.R. No. 174161, February 18, 2015). jurisdiction do not use any formula in determining if
the defendant committed a negligent act or omission 2. Res Ipsa Loquitur
(Id. at 70). “The thing or transaction speaks for itself.”
The doctrine of res ipsa loquitur is simply a
BURDEN OF PROOF recognition of the postulate that, as a matter of
GENERAL RULE: The negligence or fault should be common knowledge and experience, the very
clearly established as it is the basis of the action. The nature of certain types of occurrences may justify
burden of proof is upon the plaintiff (St. Martin an inference of negligence on the part of the
Polyclinic, Inc. v. LWV Construction Corporation, person who controls the instrumentality causing
G.R. No. 217426, December 04, 2017). the injury in the absence of some explanation by
the accused-appellant who is charged with
EXCEPTIONS: When the rules or the law provide for negligence. It is grounded in the superior logic of
cases when negligence is presumed (AQUINO, Torts ordinary human experience and, on the basis of
and Damages, supra at 143). such experience or common knowledge,
negligence may be deduced from the mere
1. Disputable Presumptions of Negligence occurrence of the accident itself. Hence, res ipsa
a. Motor vehicle Mishaps – a driver is loquitur is applied in conjunction with the doctrine
presumed negligent if he: of common knowledge (Jarcia, Jr. v. People,
i. Was found guilty of reckless driving or G.R. No. 187926, February 15, 2012).
violating traffic regulations at least twice
within the preceding two (2) months The doctrine is not meant to and does not
(CIVIL CODE, Art. 2184, Par. 1); or dispense with the requirement of proof of
ii. Was violating any traffic regulation at the culpable negligence against the party charged,
time of the mishap (CIVIL CODE, Art. rather, it merely determines and regulates what
2185). shall be prima facie evidence thereof, and helps
the plaintiff in proving a breach of the duty
NOTE: R.A. 4136 (Land Transportation (Solidum v. People, G.R. No. 192123, March 10,
and Traffic Code) provides for instances 2014).
of traffic rules commonly violated by
drivers, such as exceeding registered The thing which caused the injury, without the
capacity and obstruction of traffic. fault of the injured, is under the exclusive control
of the defendant and the injury is such that it
b. Possession of dangerous weapons or would not have occurred if he, having such
substances, such as firearms and poison that control, used proper care (ALBANO, Civil Law
results in death or injury, except when the Reviewer, supra at 934).
possession or use thereof is indispensable in
his occupation or business (CIVIL CODE, The doctrine is an exception to the rule that in
Art. 2188). quasi-delict cases, the burden of proof lies in the
c. Common carriers are presumed to have plaintiff to show negligence of the defendant. It
been at fault or acted negligently in case of has been resorted to where no direct evidence
death or injuries to passengers, unless they can be presented as to prove the liability of a
prove that they observed extraordinary person (ALBANO, Torts and Damages, supra at
diligence prescribed in Articles 1733 and 57).
1755 (CIVIL CODE, Art. 1756, SANGCO,
Torts and Damages (1984), p. 108) Requisites: (ACE)
[hereinafter SANGCO, Torts and Damages]. a. The Accident is of a kind which ordinarily
does not occur in the absence of someone’s
There is No Liability Under Article 2176: negligence;
a. Where there was a pre-existing contractual b. It is caused by an instrumentality within the
relationship, except when the act of exclusive Control of the defendant or
breaching the contract is also tortious; defendants; and
b. When the action is already barred by c. The possibility of contributing conduct which
prescription i.e. the action for quasi-delict is would make the plaintiff responsible is
instituted after four (4) years from the accrual Eliminated (Tan v. Jam Transit, Inc., G.R. No.
of the cause of action; 183198, November 25, 2009).
c. The injury suffered by a person is the result
of a fortuitous event; and “Control of the Instrumentality” which caused
d. If there is no damage or injury caused to the damage is the fundamental element. Such
another party (PINEDA, Torts and Damages element of control must be shown to be within the
(2009), p. 16-17 [hereinafter PINEDA, Torts dominion of the defendant (AQUINO, Torts and
and Damages]). Damages, supra at 149).
 The doctrine is inapplicable when: ii. To render assistance to another whom
a. There is a direct proof of absence or one has accidentally wounded or injured;
presence of negligence (Huang v. Philippine iii. To deliver an abandoned child under
Hoteliers, Inc., supra); or seven years of age to the authorities or
b. When an unexplained accident may be his family or take him to a safe place;
attributable to one of several causes, for
some of which defendant could not be held b. No driver of a motor vehicle concerned in a
responsible (FGU Insurance Corporation v. vehicular accident shall leave the scene of
G.P. Sarmiento Trucking Corporation, the accident without aiding the victim unless
supra). he is excused from doing so (R.A. 4136,
Land Transportation and Traffic Code, Sec.
AFFIRMATIVE DUTIES AND 55);
MISCELLANEOUS ACTIVITIES: c. Individuals required by law to take care of
another person, e.g., parents to their children
GENERAL RULE: It is not part of the general duty of or guardians to their wards; and
care to perform a positive obligation; there is no d. The defendant in special relationships (e.g.,
affirmative duty to perform an act for the benefit of Common Carrier-passenger, innkeeper-
another (Cangco v. Manila Railroad Company, G.R. guest) (AQUINO, Torts and Damages, supra
No. 12191, October 14, 1918). at 171-173).

CLASSES: 3. DUTIES OF OWNERS, PROPRIETORS

1. DUTY TO THE RESCUER (GOOD AND POSSESSORS OF PROPERTY
SAMARITAN RULE) General Rule: The owner has no duty to take
One who was hurt trying to rescue another who reasonable care towards a trespasser for his
was injured through negligence may recover protection or even to protect him from concealed
damages from the person who originally caused danger (Id. at 173).
the injury (not the rescued person) (AQUINO,
Torts and Damages, supra at 166). EXCEPTIONS: (VATS)
a. Visitors;
Requisites to Make a Tortfeasor Liable to the Owners of buildings or premises owe a duty
Rescuer: (NICA) of care to visitors (Cabigao v. University of
a. The tortfeasor was Negligent to the person the East, CA-G.R. No. 33554-R; August 24,
rescued and such negligence caused the 1973). Common carriers may be held liable
peril or the appearance of peril to the person for negligence to persons who stay in their
rescued; premises even if they are not passengers (Id.
b. The peril or the appearance of peril was at 175).
Imminent;
c. A reasonable prudent person who would b. Doctrine of Attractive Nuisance (Torpedo
have Concluded such peril or appearance of or Turntable Doctrine);
peril existent; and An owner who maintains on his premises
d. The rescuer Acted with reasonable care in dangerous instrumentalities or appliances of
effectuating the rescue (Id. at 169). a character likely to attract children in play,
and fails to exercise ordinary care to prevent
2. DUTY TO RESCUE children from playing therewith or resorting
Even if the failure to help a victim of an accident thereto, is liable to a child of tender years
might be morally reprehensible, the person who who is injured thereby, even if the child is
abstain from helping the victim is not legally technically a trespasser in the premises
responsible. A person is bound to act with (Hidalgo Enterprises, Inc. v. Balandan, G.R.
prudence but not with charity (Id. at 171). No. L-3422, June 13, 1952).

EXCEPTIONS: NOTE: This is generally not applicable to

Limited duty to rescue artificial or natural bodies of water in the
a. In cases specified in Article 275 of the absence of some unusual condition or
Revised Penal Code: artificial feature other than the mere water
i. To render assistance to any wounded and its location (Id).
person or in danger of dying, found in an
uninhabited place, when assistance can c. Tolerated Possession
be rendered without danger to himself, The owner is still liable if the plaintiff is inside
unless such omission shall constitute a his property by tolerance or by implied
more serious offense;
 permission (AQUINO, Torts and Damages, If the engineer or architect supervises the
supra at 173). construction, he shall be solidarily liable with the
contractor (CIVIL CODE, Art. 1723 Par. 1).
d. State of Necessity (CIVIL CODE, Art. 432)
A situation of present danger to legally NOTE: Acceptance of the building, after
protected interests, where the only remedy is completion, does not imply waiver of any of the
injuring another’s also legally protected cause of action by reason of any defect
interest (ALBERT, Justifying and Exempting mentioned in the preceding paragraph. The
Circumstances under our Penal Code, action must be brought within ten (10) years
reprinted in AQUINO, Torts and Damages, following the collapse of the building (CIVIL
supra at 180). CODE, Art. 1723, Par. 2 & 3).

For the defense of state of necessity to be 5. DUTIES OF EMPLOYERS AND

availing, the greater injury feared should not EMPLOYEES
have been brought about by the negligence Employers
or imprudence, more so, the willful inaction of In common law, employees can claim
the actor (Ty v. People, G.R. No. 149275, compensation from their employers if the latter
September 27, 2004). committed tortious actions against them. Liability
may be due to the negligence of the employer in
4. DUTIES OF PROPRIETORS OF the maintenance of the workplace. In such cases,
BUILDINGS the employee will be saddled with the burden of
The proprietor of a building or structure is proving negligence on the part of the employer
responsible for the damages resulting from its (AQUINO, Torts and Damages, supra at 187).
total or partial collapse, if it should be due to the
lack of necessary repairs (CIVIL CODE, Art. Employees
2190). An employee is liable for a tort when he neglects
to perform his duties properly to the damage of
Proprietors shall also be responsible for the firm of which he was an officer. It is of no
damages caused: (EEFE) moment that he occupied a contractual position
a. By the Explosion of machinery which has not as the existence of contract between the parties
been taken care of with due diligence, and is not a bar to the commission of a tort and the
the inflammation of explosive substances consequent recovery of damages (Araneta v. De
which have not been kept in a safe and Joya, G.R. No. L-25172, May 24, 1974).
adequate place;
b. By Excessive smoke, which may be harmful Employees are bound to exercise due care in the
to persons or property; performance of their functions for the employers.
c. By the Falling of trees situated at or near Liability may be based on negligence committed
highways or lanes, if not caused by force while in the performance of the duties of the
majeure; and employee (AQUINO, Torts and Damages, supra
d. By Emanations from tubes, canals, sewers or at 188).
deposits of infectious matter, constructed
without precautions suitable to the place 6. DUTIES OF BANKS
(CIVIL CODE, Art. 2191). Banking is a business that is impressed with
public interest (Philippine National Bank v.
If damage referred to in the two preceding articles Santos, G.R. No. 208293, December 10, 2014).
should be the result of any defect in the Banks are expected to exercise the highest
construction mentioned in Art. 1723, the third degree of diligence in the selection and
person suffering damages may proceed only supervision of their employees, (Bank of the
against the engineer or architect or contractor in Philippine Islands v. CA, G.R. No. 102383,
accordance with said article, within the period November 26, 1992) as well as in the conduct of
therein fixed (CIVIL CODE, Art. 2192). its affairs (Prudential Bank v. Rapanot, G.R. No.
191636, January 16, 2017).
Liabilities of the Engineer and Contractor
The engineer or architect, or the contractor, shall 7. DUTIES OF COMMON CARRIERS
be responsible for damages if the building which Common carriers are required to exercise
they built shall, within fifteen (15) years from the extraordinary diligence in the vigilance over
completion of the structure, collapse for reasons their passengers and transported goods,
attributable to their negligence. according to all the circumstances of each case
(CIVIL CODE, Art. 1733).
 A contract to transport passengers is different in (AQUINO, Torts and Damages, supra at
kind and degree from any other contractual 191).
relation because of the relation which an air-
carrier sustains with the public. Its business is 2.) Elements of Medical Negligence: (D-BrIP)
mainly with the traveling public. It invites people a. Duty to use at least the same level of
to avail of the comforts and advantages it offers. care that any reasonably prudent doctor
The contract of air carriage generates a relation would use to treat a condition under the
attended with a public duty. Neglect or same circumstances;
malfeasance of the carrier's employees is a b. Breach of such professional duty or
ground for an action for damages (Air France v. improper performance thereof;
Carrascoso, G.R. No. L-21438, September 28, c. Injury is caused to the patient,
1966). constituting actionable malpractice; and
d. The doctor’s actions were the Proximate
An airline passenger was illegally ousted cause of the patient’s injury (Li v.
from his first-class accommodation despite Spouses Soliman, G.R. No. 165279,
his first-class ticket. He was compelled to June 7, 2011).
take a seat in a tourist compartment. Can the
airline be held liable for damages? 3.) Standard of Care:
a. General Practitioner
Yes, the wrongful expulsion of the passenger The standard of care demanded is
was a breach of a public duty by the air carrier. ordinary care and diligence in the
Although the relation between a passenger and a application of his knowledge and skill in
carrier is contractual both in origin and nature, the his practice of the profession. He ought
act that breaks a contract may also be a tort (Air to apply to his patient what other general
France v. Carrascoso, G.R. No. L-21438, practitioners will apply when confronted
September 28, 1966). with similar situation (AQUINO, Torts
and Damages, supra at 199).
8. DUTIES OF DOCTORS
Medical Malpractice b. Specialist
Is a particular form of negligence which consists The legal duty to the patient is generally
in the failure of a physician or surgeon to apply to considered to be that of an average
his practice of medicine that degree of care and specialist, not that of an average
skill which is ordinarily employed by the physician. A physician who holds himself
profession generally under similar conditions, out as having special knowledge and skill
and in like surrounding circumstances (AQUINO, in the treatment of a particular organ or
Torts and Damages, supra at 196). disease or injury is required to bring to
the discharge of his duty that special
Circumstances Considered in Medical degree of skill and care which
Malpractice: physicians, similarly situated who devote
special study and attention to the
1.) Doctor-Patient Relationship treatment of such organ, disease, or
The physician-patient relationship is usually injury ordinarily possess, regard being in
a contractual relationship. However, there the state of scientific knowledge at that
may be cases when there is no contract time (Id.).
between the doctor and the patient (Id. at
191). No contract is implied to make c. National Standards
compensation for personal services Each physician may with reason and
performed for another arises “unless the fairness be expected to possess or have
party furnishing the services then expected reasonable access to such medical
or had reason to expect the payment or knowledge as is commonly possessed or
compensation by the other party” (Aldaba v. reasonable available to competent
CA, G.R. No. 21676, February 28, 1969). physicians in the same specialty or
The liability of the doctor in these cases is general field of practice in the Philippines
based on culpa contractual. (Id. at 200).

The treatment of the patient may be a purely REASON: Nationalization of medical

voluntary act on the part of the doctor and the education and training. Common sense
patient may not be in a position to give his or and experience inform us that the laws of
her consent. In these cases, the liability of the medicine do not vary from state to state
doctor may be based on quasi-contract
 in anything like the manner our public law (AQUINO, Torts and Damages, supra at
does (Id.). 206).

d. Locality Rule In determining whether error of judgement is

The doctor must be aware of the negligent, the Supreme Court explained in
specialized services or facilities available Casumpang v. Cortejo, that:
in his area. Hence, to a certain extent, a. We do not decide the correctness of a
local medical custom and the facilities in doctor’s diagnosis, or the accuracy of the
the community may affect the duty of medical findings and treatment. Our duty
care of doctors but only in the sense that in medical malpractice cases is to decide
the content of the duty of care may be whether a breach of duty took place;
informed by local medical custom but b. A wrong diagnosis is not by itself medical
never subsumed by it (Id. at 201). malpractice; it becomes an evidence of
medical malpractice;
e. Neighborhood Rule c. Medicine is not exact science; and
In treating his patient, a physician is doctors or even specialists, are not
under a duty to the patient to exercise expected to give a 100% accurate
that degree of care, skill, and diligence diagnosis in treating patients who come
which physicians in the same general to their clinic for consultations (G.R. No.
neighborhood and in the same general 171127, March 11, 2015).
line of practice ordinarily possess and
exercises in like cases (Lucas v. Tuano, 6. Expert Witness
G.R. No. 171636, April 7, 2009). It is a matter of expert opinion whether a
physician or a surgeon has exercised the
One has to ask whether, as between the requisite degree of skill and care in the
alleged wrongdoer and the person who treatment of his patient (Cruz v. CA, G.R. No.
has suffered damage there is sufficient 122445, November 18, 1997).
relationship of proximity or neighborhood
such that, in the reasonable Courts defer to the expert opinion of qualified
contemplation of the former, physicians because the court’s realization
carelessness on his part may be likely to that the qualified physicians possess unusual
cause damage to the latter, in which technical skills which laymen in most
case a prima facie duty arises (AQUINO, instances are incapable of intelligently
Torts and Damages, supra at 202). evaluating (AQUINO, Torts and Damages,
supra at 208).
Two-Pronged Evidence:
a. Evidence as to the recognized Requisites to qualify as Expert Witness:
standards of the medical community a. Has the required professional
in the particular kind of case; and knowledge, learning and skill of the
b. A showing that the physician subject matter under inquiry sufficient to
negligently departed from this qualify him to speak with authority on the
standard in his treatment (Garcia- subject; and
Rueda v. Pascasio, G.R. No. b. Is familiar with the standard required of a
118141, September 5, 1997 citing physician under similar circumstances
Davis v. Virginian Railway Company, (Casumpang v. Cortejo, G.R. No.
361 US 354). 171127, March 11, 2015)

4. Doctors Are Not Warrantors of Cure Expert Witness Must Establish:

Physicians are not warrantors of cures or a. The standard of care that the defendant
insurers against personal injuries or death of was bound to observe under the
the patient (Cruz v. CA, G.R. No. 122425, circumstances;
November 18, 1997). The mere fact that the b. That the defendant’s conduct fell below
patient does not get well or that a bad result the acceptable standard; and
occurs does not in itself indicate failure to c. That the defendant’s failure to observe
exercise due care (Lucas v. Tuano, G.R. No. the industry standard caused the injury to
178763, April 21, 2009). his patient (Borromeo v. Family Care
Hospital, G.R. No. 191018, January 25,
5. Error of Judgement 2016).
Whether an error of judgement is negligent or
not depends on the nature of the error
7. Res ipsa loquitur applied: that he would have been better off with
a. In medical negligence, res ipsa loquitur adequate care. Because of the negligence,
allows the mere existence of an injury to this chance has been lost. Loss of chance is
justify a presumption of negligence on the lost opportunity for better result (Id, at
the part of the person who controls the 219).
instrument causing the injury (Cantre v.
Sps. Go, G.R. No. 160889, April 27, 9. Doctrine of Informed Consent
2007). Unless excused, the doctor must secure the
b. Medical malpractice can be established consent of his patient, express or implied, to
by res ipsa loquitur. It is limited to cases a particular treatment or an investigative
where the court, from its common procedure (Id.).
knowledge, can determine the standard
of care or where an ordinary layman can Elements essential in a malpractice
conclude that there was negligence on action based on the doctrine of informed
the part of the doctor (Solidum v. People, consent: (DFCI)
G.R. No. 192123, March 10, 2014). a. The physician has a Duty to disclose the
c. Although generally, expert medical material risks;
testimony is relied upon in malpractice b. The physician Failed to disclose or
suits to prove that a physician has done inadequately disclosed the risks;
a negligent act or that he has deviated c. As a direct and proximate result of the
from the standard medical procedure, failure to disclose, the patient Consented
when the doctrine of res ipsa loquitur is to treatment she otherwise would not
availed by the plaintiff, the need for have consented to; and
expert medical testimony is dispensed d. The plaintiff was Injured by the proposed
with because the injury itself provides the treatment (Li v. Spouses Soliman, G.R.
proof of negligence. The doctrine is not No. 165279, June 7, 2011).
available in a malpractice suit if the only
showing is that the desired result of an Cases When There Is No Duty to Disclose
operation or treatment was not (ETUT)
accomplished (Solidum v. People, G.R. a. Emergency situations;
No. 192123, March 10, 2014). b. Time is of the essence;
c. Where the patient is Unconscious or
In the case of Borromeo v. Family Care otherwise incapable of consenting and
Hospital, Inc. the Supreme Court explained harm from failure to treat is imminent and
that this doctrine of res ipsa loquitur is used outweighs any harm threatened by the
in conjunction with the doctrine of common proposed treatment; and
knowledge. Such doctrine has been applied d. Use of Therapeutic privilege. For
in the following cases involving medical instance, on some occasions a candid
practitioners: and thorough disclosure of information
a. Where a patient who was scheduled for will have an adverse effect on the
a cholecystectomy (removal of gall patient’s condition or health (AQUINO,
stones) but was otherwise healthy Torts and Damages, supra at 224).
suffered irreparable brain damage after
being administered anesthesia prior to The physician is not required to give the
the operation; patient a short medical education, the
b. Where after giving birth, a woman woke disclosure rule only requires of him a
up with a gaping burn wound close to her reasonable explanation, which mean
left armpit; generally informing the patient in
c. The removal of the wrong body part nontechnical terms as to what is at stake; the
during the operation; and, therapy alternatives open to him, the goals
d. Where an operating surgeon left a expectably to be achieved, and the risks that
foreign object (i.e., rubber gloves) inside may ensue from particular treatment or no
the body of the patient (G.R. No. 191018, treatment (Li v. Spouses Soliman, supra).
January 25, 2016; AQUINO Torts and
Damages, at 218). NOTE: In the case of Li v. Spouses Soliman,
The Separate Opinion of Justice Brion
8. Lost Chance Rule presents two standards:
When a plaintiff prays for damages for lost 1. Professional Disclosure Standard
chance, the essence of the plaintiff’s claim is A charge of failure to disclose should be
that prior to negligence, there was a chance judged by the standards of the
 reasonable medical practitioner. should conform as a corporation (Professional
2. Reasonableness Patient Standard Services, Inc., v. CA, G.R. No. 126297, February
The test for determining whether a 2, 2010).
particular peril must be divulged is its
materiality to the patient’s decision: all The corporate negligence doctrine imposes
risks potentially affecting the decision several duties on a hospital:
must be unmasked. 1. To use reasonable care in the maintenance
of safe and adequate facilities and
10. Captain of the Ship Doctrine equipment;
The operating surgeon is the person in 2. To select and retain only competent
complete charge of the surgery room and all physicians;
personnel connected with the operation. 3. To oversee as to patient care all persons who
Their duty is to obey his orders (Professional practice medicine within its walls;
Services, Inc. v. Agana, G.R. No. 126297, 4. To formulate, adopt, and enforce adequate
January 31, 2007). rules and policies to ensure quality care for
its patients (Professional Services, Inc. v.
Liability of Hospitals CA, G.R. No. 126297, January 31, 2007).
When There is Employer-Employee
Relationship Between the Hospital and the 9. DRUGGISTS/DRUGSTORE BUSINESS
Physician In the purchase and sale of drugs, the buyer and
Where employment relationship exists, the seller do not stand at arm’s length. There exists
hospital may be held vicariously liable under an imperative duty on the seller or the druggist to
Article 2176 in relation to Article 2180 of the Civil take precautions to prevent death or injury to any
Code or the principle of respondeat person who relies on one’s absolute honesty and
superior (Professional Services, Inc., v. CA, G.R. peculiar learning (Mercury Drug Corporation v.
No. 126297, February 2, 2010). De Leon, G.R. No. 165622, October 17, 2008).

When There is No Employer-Employee In Mercury Drug Corporation v. Baking, Baking

Relationship Between the Hospital and the was given a potent sleeping tablet, instead of
Physician medicines to stabilize his blood sugar. On the
When no employment relationship exists but it is third day of taking the wrong medicine, Baking
shown that the hospital holds out to the patient figured in a vehicular accident. He fell asleep
that the doctor is its agent, the hospital may be while driving. The proximate cause of the
vicariously liable under Art. 2176 in relation to Art. accident was the gross negligence of the
1431 and Art. 1869 of the Civil Code or the pharmacist who gave the wrong medicine to
principle of apparent authority (Professional Baking (Id.).
Services, Inc., v. CA, G.R. No. 126297, February
2, 2010). 10. DUTIES OF LAWYERS
An attorney is bound to exercise only a
NOTE: In assessing whether such employer- reasonable degree of care and skill, having
employee relationship in fact exists, the control reference to the business he undertakes to do
test is determining (Id.) In this regard, the SC, (Adarne v. Aldaba, A.C. No. 801, June 27 1978).
explained that:
“The control test essentially determines NOTE: The lawyer’s liability may not be based
whether an employment relationship exists solely on that fact that his client lost the case
between a physician and a hospital based (AQUINO, Torts and Damages, supra at 254).
on the exercise of control over the
physician as to details. Specifically, the 11. DUTIES OF EXPERTS
employer (or the hospital) must have the An expert should exhibit the care and skill of one
right to control both the means and the ordinarily skilled in the particular field that he is in
details of the process by which the employee (Culion Ice, Fish & Electric Co v. Philippine
(or the physician) is to accomplish his task.” Motors, G.R. No. 32611, November 3, 1930).
(Nogales v. Capitol Medical Center G.R. No.
142625, December 19, 2006).
Doctrine of Corporate Responsibility/
Corporate Negligence
Regardless of the hospital’s relationship with the
doctor, it may be held directly liable to the patient
for its own negligence or failure to follow
established standard of conduct to which it
 DEFENSES The defense of contributory negligence does not
apply in criminal cases committed through reckless
imprudence, since one cannot allege the negligence
of another to evade the effects of his own negligence
DOCTRINE OF CONTRIBUTORY (Manzanares v. People, G.R. Nos. 153760-61,
October 12, 2006).
NEGLIGENCE
If the negligence of the plaintiff cooperated with the The defendant may still be held liable for damages
negligence of the defendant in bringing about the even if the act was meant to be a practical joke
accident causing the injury complained of, such (AQUINO, Torts and Damages, supra at 61).
negligence of the plaintiff would be an absolute bar to
recovery. If the negligence of the plaintiff was merely As far as the act which caused the injury was
contributory to his injury, the immediate and concerned, it was an innocent prank not unusual
proximate cause of the accident causing the injury among children at play and which no parent, however
being the defendant's negligence, such negligence careful, would have any special reason to anticipate
would not be a bar to recovery, but the amount much less guard against (Cuadra v. Monfort, G.R.
recoverable shall be mitigated by the court (Phoenix No. L-24101, September 30, 1970).
Construction v. IAC, G.R. No. L-65295, March 10,
1987).
DOCTRINE OF COMPARATIVE
Contributory negligence is conduct on the part of the NEGLIGENCE
injured party, contributing as a legal cause to the The relative degree of negligence of the parties is
harm he has suffered, which falls below the standard considered in determining whether, and to what
to which he is required to conform for his own degree, either should be responsible for his
protection (Spouses Vergara v. Spouses Sonkin, negligence (apportionment of damages) (AQUINO,
G.R. No. 193659, June 15, 2015). Torts and Damages, supra at 290).

There is contributory negligence when the party's act The rules involve apportionment of damages. Under
showed lack of ordinary care and foresight that such the “pure” type of comparative negligence, the
act could cause him harm or put his life in danger plaintiff’s contributory negligence does not operate to
(Estacion v. Bernardo, G.R. No. 144723, February bar his recovery altogether but does serve to reduce
27, 2006). his damage in proportion to his fault (Id. at 266-267).

A collecting bank is guilty of contributory negligence IMPUTED CONTRIBUTORY

when it accepted for deposit a post-dated check NEGLIGENCE
notwithstanding that said check had been cleared by
Negligence is imputed if the actor is different from the
the drawee bank which failed to return the check
person who is being made liable (Id. at 301).
within the 24-hour reglementary period (Allied
Banking Corporation v. Bank of the Philippine
Since a master may be held for his servant’s wrongful
Islands, G.R. No. 188363, February 27, 2013).
act, the law imputes to the master the act of the
servant, and if that act is negligent or wrongful and
The underlying precept on contributory negligence is
proximately results in injury to a third person, the
that a plaintiff who is partly responsible for his own
negligence or wrongful conduct is the negligence or
injury should not be entitled to recover damages in
wrongful conduct of the master, for which he is liable
full but must bear the consequences of his own
(Phil. Commercial International Bank v. CA, G.R. No.
negligence. The defendant must therefore be held
121413, January 29, 2001).
liable only for the damages actually caused by his
negligence (Spouses Vergara v. Spouses Sonkin,
Effect: The defendant will be subject to mitigated
supra).
liability even if the plaintiff was not himself personally
negligent because the negligence of another is
In Ma-ao Sugar Central Co., Inc. v. CA, the Court
imputed to the plaintiff (REYES AND PUNO, Outline
ruled that the petitioner company cannot excuse itself
of the Phil. Civil Law, Vol. 6, p. 169) [hereinafter, 6
from its failure to properly maintain the wires by
REYES AND PUNO]).
attributing negligence to the victim. The responsibility
of maintaining the rails for the purpose of preventing
Applicability: If the negligence was on the part of the
derailment accidents belonged to the company. The
person for whom the plaintiff is responsible, and
company should not have been negligent in
especially, by negligence of an associate in the
ascertaining that the rails were fully connected than
transaction where he was injured (Id.).
to wait until a life was lost due to an accident (G.R.
No. 83491, August 27, 1990).
VIOLATION OF STATUTE BY THE VICTIM (Spouses Cruz v. Sun Holidays, Inc., G.R. No.
It is treated generally as negligence per se, except 186312, June 29, 2010).
when the law or rules specifically provide for a
different rule. The effect would depend on whether ACTS OF GOD – Events which are totally
the violation is: independent of the will of every human being (e.g.,
1. Merely contributory negligence – partial defense; earthquake, lightning, eruption of volcano) (DE
2. The proximate cause of the loss – complete LEON, Obligations and Contracts, supra at 71).
defense; or
3. Neither contributory nor the proximate cause of ACTS OF MAN – Events which are independent of
the loss – proof of causation required (AQUINO, the will of the obligor but not of other human wills e.g.,
Torts and Damages, supra at 304). war, fire, robbery, insurrection (Id.).

NOTE: Contributory negligence is conduct on the part For a person to be exempted from liability due to
of the injured party, contributing as a legal cause to fortuitous event, the latter must be the proximate and
the harm he has suffered, which falls below the only cause of the loss or damage. The act must be
standard to which he is required to conform for his one occasioned exclusively by the violence of nature
own protection. To hold a person as having and human agencies are to be excluded from
contributed to his injuries, it must be shown that he creating or entering into the cause of the mischief
performed an act that brought about his injuries in (ALBANO, Torts and Damages supra at 52).
disregard of warning or signs of an impending danger
to health and body. To prove contributory negligence, NOTE: A fortuitous event may either be an act of
it is still necessary to establish a causal link, although God, or natural occurrences such as floods or
not proximate, between the negligence of the party typhoons, or an act of man such as riots, strikes or
and the succeeding injury. In a legal sense, wars. However, when the loss is found to be partly
negligence is contributory only when it contributes the result of a person's participation — whether by
proximately to the injury, and not simply a condition active intervention, neglect or failure to act — the
for its occurrence (Dela Cruz v. Octaviano, G.R. No. whole occurrence is humanized and removed from
219649, July 26, 2017). the rules applicable to a fortuitous event (Asset
Privatization Trust v. T.J. Enterprises, G.R. No.
167195, May 8, 2009).
FORTUITOUS EVENT (CASO FORTUITO)
An event which could not be foreseen, or which Fire is not a natural calamity as it arises almost
though foreseen, was inevitable (CIVIL CODE, Art. invariably from some act of man or by human means.
1174). It does not fall within the so-called “Acts of God,”
GENERAL RULE: It is a complete defense and a except when caused by lightning (Eastern Shipping
person is not liable if the cause of the damage was a Lines, Inc. v. IAC, G.R. No. L-69044, May 29, 1987).
fortuitous event (CIVIL CODE, Art. 1174).
This Court will no longer delve on the issue of
EXCEPTION: whether or not the fire which caused the loss of
Partial Defense and/or damage to respondent's personal effects is a
If the fortuitous event is not the sole cause of the fortuitous event since both the trial court and the
injury and the courts may mitigate the damage if the Court of Appeals correctly ruled that the fire which
loss would have resulted in any event (CIVIL CODE, occurred in this case cannot be considered an act of
Art. 2215). God since the same was not caused by lightning or a
natural disaster or other calamity not attributable to
ESSENTIAL CHARACTERISTICS: (COFI) human agency (International Container Terminal
1. The Cause of the unforeseen and unexpected Services, Inc. v. Chua, G.R. No. 195031, March 26,
occurrence, or of the failure of the debtor to 2014).
comply with his obligation, must be independent
of the human will; ACCIDENT
2. The occurrence must be such as to render it An accident pertains to an unforeseen event in which
impossible for the debtor to fulfill his Obligation in no fault or negligence attaches to the defendant. It is
a normal manner; "a fortuitous circumstance, event or happening; an
3. The obligor must be Free from any participation event happening without any human agency, or if
in the aggravation of the injury resulting to the happening wholly or partly through human agency, an
creditor; and event which under the circumstances is unusual or
4. It must be Impossible to foresee the event which unexpected by the person to whom it happens” (Jarco
constitutes the caso fortuito or if it can be Marketing Corporation v. CA, G.R. No. 129792,
foreseen, it must be impossible to avoid December 21, 1999).
DOCTRINE OF ASSUMPTION OF RISK from the scene after the degree of danger increases,
A plaintiff who voluntarily assumes a risk of harm the defense of assumption of risk cannot be made
arising from the negligent or reckless conduct of the available (SANGCO, Torts and Damages, supra at
defendant cannot recover for such harm (SANGCO, 171).
Torts and Damages, supra at 170).
The defense of assumption of risk is not available to
Elements: (KUF) the employer in cases covered by the Workmen's
1. The plaintiff must Know that the risk is present; Compensation Act. Here, the burden of risk of
2. He must Understand its nature; and industrial accidents has been transferred by the law
3. His choice to incur it is Free and voluntary from the employee to the employer. Under the said
(AQUINO, Torts and Damages, supra at 306). act, the employer is liable for damages or
compensation to the employee for any injuries which
EXCEPTIONS: the employee may suffer from any accidents arising
The plaintiff is free from liability if: out of and in the course of his employment or other
1. An emergency is found to exist; or illness directly caused by such employment
2. The life or property of another is in peril when he (PINEDA, Torts and Damages, supra at 74).
seeks to rescue his endangered property (Ilocos
Norte Electric Co. v. CA, G.R. No. L-53401, KINDS:
November 6, 1989). 1. Express Waiver of the Right to Recover
(CIVIL CODE, Art. 6)
VOLENTI NON FIT INJURIA There is assumption of risk if the plaintiff in
“That which a person assents are not esteemed in advance has expressly waived his right to
law as injury.” One is not legally injured if he has recover damages for the negligent act of the
consented to the act complained of or was willing that defendant (AQUINO, Torts and Damages, supra
it should occur. When the defense of assumption of at 308).
risk is based on this maxim, it negates negligence or
liability on the part of the defendant, even though his Effects of Waiver to Recover Before/After
conduct would otherwise have constituted actionable Negligent Act:
negligence, and without regard to the fact that the a. Before – invalid as it is prohibited.
plaintiff may have acted in due care (SANGCO, Torts b. After – valid; condonation of obligation (Id.).
and Damages, supra at 172).
2. Implied Assumptions
Illustration: Petitioner’s discontinuance from a. Dangerous Conditions – A person who,
teaching was her own choice. While the respondents knowing that he is exposed to a dangerous
admittedly wanted her service terminated, they condition and, voluntarily assumes it may not
actually did nothing to physically prevent her from recover from the defendant who maintained
reassuming her post, as ordered by the school’s such dangerous conditions (Id. at 311).
Board of Directors. That the school principal and Fr.
Wiertz disagreed with the Board’s decision to retain Kinds of Dangerous Conditions:
her, and some teachers allegedly threatened to i. Those which are inherently dangerous.
resign en masse, even if true, did not make them ii. Those where a person places a thing
liable to her for damages. They were simply which is not dangerous in itself, in a
exercising their right of free speech or their right dangerous position.
to dissent from the Board’s decision. Their acts iii. Those involving products and other
were not contrary to law, morals, good customs things which are dangerous because
or public policy. They did not “illegally dismiss” her they are defective.
for the Board’s decision to retain her prevailed. She
was ordered to report for work on July 5, 1982, but Illustrations:
she did not comply with that order. Consequently, i. A house placed near a railroad track
whatever loss she may have incurred in the form of assumes the usual dangers attendant to
lost earnings was self-inflicted (Garciano v. CA, G.R. the operation of a locomotive.
No. 96126, August 10, 1992). ii. Spectators at sports event, customers at
amusement parks, and guest who find
It does NOT apply: dangerous conditions when they enter
Where one person created a danger and another business premises (Id. at 283-284).
person, with knowledge and appreciation of its
existence, voluntarily assumes the risk of such b. Contractual Relations – There may be
danger but is not injured by it even though he is implied assumption of risk if the plaintiff
injured in some other way in attempting to withdraw entered into a contractual relation with the
defendant (Id.).
 commission of an act or omission violative of the right
Illustrations: of the plaintiff.
i. The employees assume the ordinary
risks inherent in the industry in which he RELATIONS BACK DOCTRINE
is employed (Id. at 289). An act done at one time is considered by fiction of law
In abnormal risks arising from unusual to have been done at some antecedent period (Allied
conditions, it is a question of fact and Banking Corp v. CA, G.R. No. L-85868, October 13,
there must be cogent and convincing 1989). The prescriptive period should commence to
evidence of such consent (Id.). run only upon discovery of the injury (AQUINO, Torts
ii. When a passenger boards a common and Damages, supra at 326).
carrier, he takes the risks incidental to
the mode of travel he has taken (Yobido Illustration: A doctor negligently transfused blood to
v. CA, G.R. No. 113003, October 17, a patient that was contaminated with HIV. If the effect
1997). became apparent only after five (5) years, the 4-year
iii. In case the plaintiff was employed by the prescriptive period should commence only when it
defendants as caretaker of their was discovered (Id. at 327).
carabaos, he was gored to death by one
of these carabaos. The Court held that it
was the caretaker’s business to try to
INVOLUNTARINESS
prevent the animal from causing injury or It is a complete defense in quasi-delict cases and the
damage to anyone, including himself. defendant is therefore not liable if force was exerted
Being injured by the said animal was one on him (Id. at 328).
of the risks of the occupation, which he
had voluntarily assumed and for which Illustration: When the defendant was forced to drive
he must take the consequences (Afialda his vehicle by armed men who were escaping from
v. Hisole, G.R. No. L-2075, November the policemen, the defendant cannot be held liable if
29, 1949). a bystander is hit as a consequence (Id.).

c. Employment – Based on the implied Persons using violence or causing fear are primarily
consent of the servant to accept or continue liable for acts committed by third persons acting
in the employment after becoming aware of under irresistible force or uncontrollable fear. If there
the risk which resulted in his injury (AQUINO, be no such persons, those doing the act shall be
Torts and Damages, supra at 312). liable secondarily (REVISED PENAL CODE, Art.
101).
Exception: An employee cannot be said to
have assumed a risk which is not incident to STATE OF MOST SIGNIFICANT
his employment (Id.). RELATIONSHIP RULE
Where a tort is committed entirely or partly in another
d. Joining Sports Events – Where a person country. The tort case may be dismissed of the
voluntarily participates in a lawful fame or Philippines is not the State which has the most
contest, he assumes the ordinary risks of significant relationship (Saudi Arabian Airlines v. CA,
such game or contest so as to preclude G.R. No. 122191, October 8, 1998).
recovery from the promoter or operator of the
game or contest for injury or death resulting What is important here is the place where the over-all
therefrom (Abrogar v. Cosmos Bottling Co., harm or the totality of the alleged injury to the person,
G.R. No. 164746, March 15, 2017). reputation, social standing and human rights of
complainant, had lodged, according to the plaintiff
e. Defendant’s Negligence – When the (Id.).
plaintiff is aware of the risk created by the
defendant’s negligence, but he voluntarily
decided to proceed to encounter it, there is
an implied admission e.g., Plaintiff assumes
risk of using unsafe product if he knew it to THE TORTFEASOR
be unsafe (Id. supra at 314).

PRESCRIPTION
An action based on quasi-delict prescribes in four (4) TORTFEASOR
years from the date of the accident (CIVIL CODE, Art. Every person legally responsible is liable for a tort
1146) – to be counted from the last element of the committed by him provided it is the proximate cause
of an injury to another (DE LEON, Torts and Persons
Damages, supra at 16). Persons For Whose Nature
Vicariously Acts of Defenses
PERSONS WHO CAN SUE AND BE SUED Liable Liability Is Liability
FOR TORT: Imputed

1. Plaintiff NOTE: Article of a good

– natural or artificial persons injured by a tortious 221 of the father of a
act; can sue the tortfeasor and are entitled to Family code family to
damages (AQUINO, Torts and Damages, supra removes the prevent
at 29). alternative damage.
qualification
between
Except in cases where an injury to one person father and
operates as an injury to another, e.g., damages mother.
sustained by a parent arising from the injury
suffered by his/her child, an action for damages Guardians Minors or Direct and 1)Exercise
can only be maintained by the person directly (Art. 2180, incapacitate Primary of diligence
injured, and not by one alleging a collateral injury NCC) d persons of a good
(DE LEON, Torts and Damages, supra at 16). who are father of a
under their family to
authority and prevent
2. Defendant live in their damage.
– natural/artificial persons who may be held liable company
(Id. at 32).
School, A child who Direct, 1) The
DIRECT TORTFEASOR Administrators is: Principall activity is
, Teachers, (i) a Minor; y and not an
As a general rule, all persons or entities are liable for and Individual, (ii) under Solidary authorized
torts committed by them, or by their agents while Entity or their Liable activity;
acting within the scope of their duties (DE LEON, Institution supervision, (2012
Torts and Damages, supra at 16). Defendants in tort Engaged in instruction or Bar). 2) The child
cases can either be natural or artificial beings Child Care custody; is not under
(AQUINO, Torts and Damages, supra at 32). (Art. 218, (iii) overNOTE: their
Family Code) which they The supervision
exercise parents, ,
PERSONS MADE RESPONSIBLE FOR special guardians instruction,
OTHERS parental , or or custody;
The obligation imposed by Article 2176 of the Civil authority persons
(2005 Bar) exercising 3) Exercise
Code on quasi-delicts is demandable not only for
substitute of due
one’s own acts or omissions, but also for those of NOTE: The parental diligence.
persons for whom one is responsible (CIVIL CODE, responsibilit authority
Art. 2180). y applies to are
authorized subsidiary
The basis of liability is pater familias or the failure of activities liable.
the persons mentioned therein to exercise due care inside or
and vigilance over the acts of subordinates to prevent outside the
the damage (Filcar Transport Services v. Espinas, school.
G.R. No. 174156; June 20, 2012). Teachers or Pupils, Direct, 1) The
Heads of students, or Primary, student is
PERSONS VICARIOUSLY LIABLE Establishment apprentices and not in their
of Arts and so long as Solidary custody;
Persons
Trade they remain
Persons For Whose Nature
(Art. 2180, in custody – 2) Exercise
Vicariously Acts of Defenses
NCC) if they are no of due
Liable Liability Is Liability
longer diligence.
Imputed
NOTE: minors.
Schools and
Parents Acts of their Direct and 1) The child
Administrators (For minor
(Art. 2180, children up Primary is not living
are NOT children,
NCC, and to 21 years in their
liable. apply Arts.
Arts. 221 and of who live in company.
218 and 219
236 Family their
of the Family
Code) company 2) Exercise
Code)
(2005 Bar) of diligence
 Persons b. Court-appointed guardians (CIVIL CODE, Art
Persons For Whose Nature 2182).
Vicariously Acts of Defenses
Liable Liability Is Liability 3. Those exercising Substitute parental authority
Imputed a. Surviving grandparents (FAMILY CODE, Art.
214);
Employers Employees Direct, 1) The b. Oldest sibling, over 21 years old unless unfit
(Art. 2180, and Primary, employee or disqualified (FAMILY CODE, Art. 216, par.
NCC) household and is not
helpers – in Solidary performing
2); or
NOTE: It is the service with his c. Child’s actual custodian, over 21 years old
NOT or, on employee functions or unless unfit or disqualified (FAMILY CODE,
necessary that occasion of (1997 is acting Art. 216, par. 3);
they are their Bar) beyond the
engaged in functions or scope of Liability: Subsidiary
any business the scope of his REASON: They do not have the direct custody of
or industry their task. function; the child.
(2005 Bar)
2) Exercise
of due
4. Those exercising Special parental authority:
diligence in (SATI)
the a. School;
selection or b. Administrators;
supervision c. Teachers; or
of the d. Individual, entity or institution engaged in
employee child care (FAMILY CODE, Art. 218).
(1992,
1997, and
2003 Bar) PARENTS
The father and mother are civilly liable for any
The State Special Direct and 1) The damages that may be caused by the minor children
(Art. 2180, Agents Primary persons who live in their company. The provision with respect
NCC) - one who who to parents in the second paragraph of Article 2180 of
receives a directly
the Civil Code is modified by Article 221 of the Family
fixed order, caused the
foreign to the loss is not a Code by removing the alternative qualification of the
exercise of special liability of the father and the mother.
the duties of agent – the
the official official was REASON: The liability is a necessary consequence
performing of the parental authority they exercise over them.
the task (AQUINO, Torts and Damages, supra at 658).
that
properly To sustain the liability of the father or the mother
pertains to
in proper cases, it is necessary that: (BTL)
him.
1. The child is Below twenty-one (21) years;
A Head of Subordinate Direct and 1) He did Except: Deep Pocket Theory
Department of s that he has Primary not give a 2. The child committed a Tortious act to the damage
Government authorized written and prejudice of another person; and
or Superior by written order. 3. The child Lives in the company of the parent
Public Officer. order the concerned (Libi v. IAC, G.R. No. 70890,
(Sec. 38, specific act September 18, 1992).
Revised or
Administrative misconduct.
Code of 1987)
Under Article 221 of the Family Code, parents are
principally and primarily liable for acts or omissions of
their minor children resulting in injuries to others.
PERSONS LIABLE FOR ACTS However, for liability on the part of the parents to
COMMITTED BY MINORS: (POSS) attach, the minor child must be living in their company
1. Parents; (CIVIL CODE, Art. 2180, Par. 2) and under their parental authority (Libi v. IAC, G.R.
No. 70890, September 18, 1992).
2. Those exercising parental authority Other than
parents
a. Adopters; or
PERSONS EXERCISING PARENTAL OWNERS AND MANAGERS OF
AUTHORITY OTHER THAN PARENTS: ESTABLISHMENTS
1. Adopters They are liable for damages caused by their
The Court does not consider that retroactive employees in the service of the branches in which
effect may be given to the decree of adoption so they are employed, or on the occasion of their
as to impose a liability upon the adopting parents functions. It does not extend to acts of strangers who
(Tamargo v. CA, G.R. No. 85044, June 3, 1992). committed unauthorized acts and in doing so, caused
damages to others (CIVIL CODE, Art. 2180 Par. 4.).
2. Guardians
They are liable for damages caused by minors or “Manager” in Art. 2180 is used in the sense of an
incapacitated persons (even if they are already of employer. A managerial employee within the
age) under their authority and living in their contemplation of the Labor Code is not a manager
company. referred to in Art. 2180 because he himself may be
regarded as an employee or dependiente of the
The legal authority referred to in Article 2180 is employer (Philippine Rabbit Bus Lines, Inc. v. Phil.
legal authority over the person of the ward and American Forwarders, Inc., GR No. L-25142, March
not legal authority only with respect to the 25, 1975).
property of a person declared as incompetent
although of majority age (AQUINO, Torts and Co-employees are not liable even if they supervise
Damages, supra at 674). the employee (AQUINO, Torts and Damages, supra
at 691).
EXTENT OF SPECIAL PARENTAL
AUTHORITY EMPLOYERS
It can be exercised only over minors while under their Liable for damages caused by their employees and
supervision, instruction or custody, including while in household helpers acting within the scope of their
authorized activities whether inside or outside the assigned tasks even though the employer is not
school, entity or institution (Id.). engaged in any business or industry (CIVIL CODE,
Article 2180 Par. 5).
Custody – the protective and supervisory custody
that the school and its head and teachers exercise Although the employer is not the actual tortfeasor, the
over the pupils and students for as long as they are law makes him vicariously liable on the basis of the
in attendance in the school, including recess time civil law principle of pater familias for failure to
(Salvosa v. Intermediate Appellate Court, G.R. No. exercise due care and vigilance over the acts of one’s
70458, October 5, 1988). subordinates to prevent damage to another (Filcar
Transport Services v. Jose Espinas, G.R. No.
As long as it can be shown that the student is in the 174156, June 20, 2012).
school premises in pursuance of a legitimate student
objective, in the exercise of a legitimate right, and Requisites of Employer’s Vicarious Liability
even in the enjoyment of a legitimate student Under Article 2180 of the Civil Code:
privilege, the responsibility of the school authorities a. There is employer-employee relationship; and
over the student continues (Amadora v. CA, G.R. No. b. That the employee was acting within the scope of
L-47745, April 15, 1988). his assigned task when the tort complained of
was committed (Caravan Travel and Tours
Liability: They are principally and solidarily liable for International, Inc. v. Abejar, G.R. No. 179631,
damages caused by the acts or omissions of the February 10, 2016).
minor (FAMILY CODE, Art. 219).
DEFENSE OF EMPLOYER
LIABILITY FOR ACTS OF THOSE NO When the employee causes damage due to his own
LONGER MINORS negligence while performing his own duties, there
arises the juris tantum presumption that the employer
DEEP POCKET THEORY is negligent, rebuttable only by proof of observance
Young Filipinos aged 18-21 are usually not yet of the diligence of a good father of a family.
gainfully employed and without property. The law
allows the injured party to pursue actions against the To rebut the presumption of negligence, employer
tortfeasor’s parents (AQUINO, Torts and Damages, must prove two things:
supra, at 662). 1) That it had exercised due diligence in the
selection of employees (culpa in eligiendo); and
2) That after hiring employees, employer had liability. Both the primary civil liability of the accused-
exercised due diligence in supervising them employee and the subsidiary civil liability of the
(culpa vigilando). employer are carried in one single decision that has
become final and executory (Philippine Bus Rabbit
In order that the owner of a vehicle may be Lines, Inc. v. People of the Philippines, G.R. No.
considered as having exercised all diligence of a 147703, April 14, 2004).
good father of a family, he should not have been
satisfied with the mere possession of a professional LIABILITY OF THE STATE
driver's license; he should have carefully examined GENERAL RULE: The State is not vicariously liable.
the applicant for employment as to his qualifications,
his experience and record of service. REASON: It is a basic constitutional rule that the
State cannot be sued without its consent. Consent of
Due diligence in the supervision of employees, on the the State to be sued can be manifested through a
other hand, includes the formulation of suitable rules special law or general law allowing the State to be
and regulations for the guidance of employees and sued (AQUINO, Torts and Damages, supra at 6732).
the issuance of proper instructions intended for the
protection of the public and persons with whom the EXCEPTIONS:
employer has relations through his or its employees
1. Special Agent
and the imposition of necessary disciplinary
– one specifically commissioned to carry out the
measures upon employees in case of breach or as
acts complained of outside of such agent’s
may be warranted to ensure the performance of acts
regular duties (Republic v. Hon. Palacio, G.R.
indispensable to the business of and beneficial to
No. L-20322, May 29, 1968).
their employer. Actual implementation and monitoring
of consistent compliance with said rules should be the
The responsibility of the state is limited by Article
constant concern of the employer, acting through
1903 of the Civil Code to the case wherein it
dependable supervisors who should regularly report
acts through a special agent (and a special agent
on their supervisory functions (Reyes v. Doctolero,
is one who receives a definite and fixed order or
G.R. No. 185597, August 2, 2017).
commission, foreign to the exercise of the duties
of his office if he is a special official) so that in
RULE IN CASES INVOLVING CRIMINAL representation of the state and being bound to
NEGLIGENCE act as an agent thereof, he executes the trust
Article 103 of the Revised Penal Code governs the confided to him. This concept does not apply to
subsidiary liability of the employer for the criminal any executive agent who is an employee of the
negligence of his employee (AQUINO, Torts and acting administration and who on his own
Damages, supra at 722). responsibility performs the functions which are
inherent in and naturally pertain to his office and
Employee’s conviction of criminal negligence proven which are regulated by law and the regulations
in a criminal action is sine qua non for employer’s (Merritt v. Government of the Philippine Islands,
subsidiary liability to attach. Employee’s criminal G.R. No. 11154, March 21, 1916).
negligence conclusively binds the employer to be
subsidiary liable for the damages awarded (Fernando 2. Government Owned and Controlled
v. Franco, G.R. No. L-27786, January 30, 1971). The Corporations
defense that the employer exercised due diligence in – Not all government entities, whether corporate
the selection and supervision of the employee is not or non-corporate, are immune from suits.
available herein. Immunity is determined by the character of the
objects for which the entity was organized
REQUISITES OF VICARIOUS LIABILITY (Philippine National Railways v. IAC, G.R. No.
OF EMPLOYERS UNDER ARTICLE 103 70547, January 22, 1993).
OF THE REVISED PENAL CODE: (ICE)
The point is that when the government enters into
1. Employee is Insolvent; a commercial business it abandons its sovereign
2. Employee was Convicted of the offense capacity and is to be treated like any other private
committed in the discharge of his duties; and corporation (Id.).
3. Employer is Engaged in any kind of industry
(Philippine Rabbit Bus Lines, Inc. v. People, G.R. Two Aspects of Liability:
No. 147703, April 14, 2004). 1. Its public or governmental aspects where it is
liable for the tortious acts of the special
The employer cannot defeat the finality of the agents only.
judgment by filing a notice of appeal on its own behalf
in the guise of asking for a review of its subsidiary civil
 2. Its private or business aspects (as when it When an academic institution accepts students for
engages in private enterprise) where it enrollment, there is established a contract between
becomes liable as an ordinary employer. them, resulting in bilateral obligations which parties
are bound to comply with. For its part, the school
NOTE: The State’s agent, if a public official, must undertakes to provide the student with an education
not only be specially commissioned to a that would presumably suffice to equip him with the
particular task but that such task must be foreign necessary tools and skills to pursue higher education
to said officials’ usual governmental functions or a profession. On the other hand, the student
(Sps. Fontanilla v. Maliaman, G.R. No. 55693, covenants to abide by the school's academic
December 1, 1989). requirements and observe its rules and regulations
(St. Luke's College of Medicine-William H. Quasha
Liability of Other Public Corporations or Memorial Foundation v. Spouses Perez, G.R. No.
Officers 222740, September 28, 2016).
a. Municipal Corporations - Provinces, cities
and municipalities shall be liable for the death STATUTORY BASIS OF LIABILITY:
of, or injuries suffered, by any person by
1. Article 219 of the Family Code
reason of the defective condition of roads,
– applies if the student is a minor.
streets, bridges, public buildings and other
public works under their control or
Persons Liable:
supervision (CIVIL CODE, Art. 2189).
a. School, administrators, teachers or
individual, institution engaged in child care
b. Public Officers – A public officer is by law
(e.g., Day care center) – principally and
not immune from damages in his/her
solidarily liable.
personal capacity for acts done in bad faith
which, being outside the scope of his
NOTE: Proof of exercise of proper diligence
authority, are no longer protected by the
required under the particular circumstances
mantle of immunity for official actions
may be a defense.
(Vinzons – Chato v. Fortune Tobacco
Corporation, G.R. No. 141309, June 19,
b. Parents and those exercising substitute
2007).
parental authority – subsidiarily liable
(FAMILY CODE, Art. 219).
It is not necessary that the defendant
under Article 32 should have acted with
malice or bad faith, otherwise, it would
2. Art. 2180 of the Civil Code
defeat its main purpose, which is the – applies even if student is NO longer a minor
effective protection of individual rights. It (AQUINO, Torts and Damages, supra at 681).
suffices that there is a violation of the
constitutional right of the plaintiff (Silahis Persons liable:
International Hotel, Inc. v. Soluta, G.R. No. a. Teachers or heads of establishments of arts
163087, February 20, 2006). and trades – liable for damages caused by
their students so long as they remain in their
custody.
3. Judges
b. By way of exception, it is only the head of the
– not liable for damages for errors in deciding
school who is liable where the injury is
cases (Barroso v. Arche, A.C. No. 216-CFI,
caused in a school of arts and trade
September 30, 1975).
(Amadora v. CA, G.R. No. L-47745, April 15,
1988).
SCHOOLS, TEACHERS AND
ADMINISTRATORS 3. Article 103 of the Revised Penal Code
They are liable for damages caused by the pupils and – the subsidiary liability of the employer under
students or apprentices in their custody, instruction or Article 102 shall also apply to teachers for
supervision, whether academic or non-academic felonies committed by their pupils.
(AQUINO, Torts and Damages, supra at 674).
The phrase “so long as (the students) remain in
NOTE: Article 218 of the Family Code expressly their custody” means the protective and supervisory
provides that the responsibility and authority of the custody that the school and its heads and teachers
school and other persons exercising special parental exercise over the pupils and the students for as long
authority shall apply to all authorized activities as they are at attendance in the school, including
whether inside or outside the premises of the school, recess time. Nothing in the law requires that for such
entity, or institution (Id. at 632). liability to attach, the pupil-tortfeasor must live and
board in the school (Spouses Palisoc v. Brillantes, ACTUAL TORTFEASOR IS NOT EXEMPT
G.R. No. L-29025, October 4, 1971). FROM LIABILITY
While the custody requirement does not mean that The minor, ward, employee, special agent, pupil,
the student must be boarding with the school student and apprentice who actually committed the
authorities, it does signify that the student should be delictual acts are not exempted by the law from
within the control and under the influence of the personal responsibility. They may be sued and made
school authorities at the time of the occurrence of the liable alone as when the vicarious obligor proves that
injury. This does not necessarily mean that such, he exercised the diligence of a good father of a family
custody be co-terminus with the semester, beginning (DE LEON, Torts and Damages, supra at 396).
with the start of classes and ending upon the close
thereof, and excluding the time before or after such NATURE OF RESPONSIBILITY OF
period, such as the period of registration, and in the VICARIOUS OBLIGOR
case of graduating students, the period before the The liability of the vicarious obligor is primary and
commencement exercises. In the view of the Court, direct, not subsidiary. His responsibility is not
the student is in the custody of the school conditioned upon the insolvency or prior recourse
authorities as long as he is under the control and against the negligent tortfeasor (De Leon Brokerage
influence of the school and within its premises, Co. Inc. v. CA, G.R. No. L-15247, February 28, 1962).
whether the semester has not yet begun or has
already ended (Amadora v. CA, G.R. No. L-47745, PARTNERSHIP
April 15, 1988).
Liability is entirely imputed, and the partnership
cannot obviously invoke diligence in the selection and
As long as it can be shown that the student is in the
supervision of the partner (AQUINO, Torts and
school premises in pursuance of a legitimate student
Damages, supra at 729).
objective, in the exercise of a legitimate student right,
and even in the enjoyment of a legitimate student
right, and even in the enjoyment of a legitimate TEST OF LIABILITY
student privilege, the responsibility of the school Whether the wrong was committed in behalf of the
authorities over the student continues. Indeed, even partnership and within the reasonable scope of its
if the student should be doing nothing more than business, and if so, the partners are all liable as joint
relaxing in the campus in the company of his tortfeasors (Id.).
classmates and friends and enjoying the ambience
and atmosphere of the school, he is still within the SPOUSES
custody and subject to the discipline of the school a. Absolute community of property
authorities under the provisions of Article 2180 (Id.). It is answerable for liabilities incurred by either
spouse by reason of crime or quasi-delict in case
In one case, the Court ruled that it is only the teacher of absence or insufficiency of the exclusive
and not the head of an academic school, whether property of the debtor-spouse.
academic or non-academic, who should be
answerable for torts committed by their children Payments considered as advances to be
(Ylarde v. Aquino, G.R. No. L-33722, July 29, 1988). deducted from the share of the debtor-spouse
upon liquidation of the community (FAMILY
RULE ON ACTS COMMITTED OUTSIDE CODE, Art. 94, par. 9).
SCHOOL
There are instances where the school might be called b. Conjugal partnership of gains
upon to exercise its power over its student for acts GENERAL RULE: Pecuniary indemnities
committed outside the school premises and beyond imposed upon the husband or wife are not
school hours in the following: chargeable against the conjugal partnership but
1. In cases of violation of school policies or against the separate properties of the wrongdoer
regulations occurring in connection with school (AQUINO, Torts and Damages, supra at 731).
sponsored activity off-campus; or
2. In cases where the misconduct of the student EXCEPTIONS: Conjugal partnership should be
involves his status as a student or affects the made liable:
good name and reputation of the school (Angeles i. When the profits have inured to the benefit of
v. Sison, G.R. No. L-45551, February 16, 1982). the partnership; or
ii. If one of the spouses committed the tort while
performing a business or if the act was
supposed to benefit the partnership. (Id.).
c. Separation of Property Regime who can be held responsible in case of accident,
Each spouse is responsible for his/her separate damage or injury caused by the vehicle, so as not
obligation (Id.). to inconvenience or prejudice a third party injured
by one whose identity cannot be secured
MOTOR VEHICLE MISHAPS (Cadiente v. Macas, G.R. No. 161946, November
14, 2008).
SITUATION LIABILITY
NOTE: It is imperative to apply the registered-
The owner is inside the vehicle The owner is owner rule in a manner that harmonizes it with
at the time of the accident. He solidarily liable Articles 2176 and 2180 of the Civil Code. Rules
could have, by the use of with his driver. must be construed in a manner that will
diligence, prevented the harmonize them with other rules so as to form a
misfortune but did not do so RATIO: The uniform and consistent system of jurisprudence.
(PINEDA, Torts and Damages, owner’s own In light of this, the words used in Del Carmen are
supra at 126). omission is a particularly notable. There, this court stated that
concurring Article 2180 "should defer to" the registered-
proximate cause owner rule. It never stated that Article 2180
of the injury. should be totally abandoned (Caravan Travel and
The driver was found guilty of The driver is Tours International, Inc. v. Abejar, G.R. No.
reckless driving or violating disputably 170631, February 10, 2016).
traffic regulations at least twice presumed
within the next preceding two negligent. Therefore, the appropriate approach is that in
months before the accident. cases where both the registered-owner rule and
Article 2180 apply, the plaintiff must:
1. First establish that the employer is the
registered owner of the vehicle in question.
The owner was not in the Article 2180 2. Once the plaintiff successfully proves
motor vehicle at the time of the applies. ownership, there arises a disputable presumption
accident. that the requirements of Article 2180 have been
proven. (Id.).
(CIVIL CODE, Art. 2184).
NOTE: As a consequence, the burden of proof
NOTE: It refers to owners of vehicles who are not shifts to the defendant to show that no liability
included in the terms of Article 2180 as “owners of an under Article 2180 has arisen. (Id.).
establishment or enterprise.” It is intended to cover
owners of vehicles for private use (DE LEON, Torts
2. Leased Vehicles
and Damages, supra at 422).
The registered owner of any vehicle, even if not
for public service, is primarily liable to third
There is a rebuttable presumption that a driver of a
persons for deaths, injuries, and damages that it
motor vehicle has been negligent if at the time of the
caused. The rule applies even if the vehicle is
mishap, he was violating any traffic regulation (CIVIL
leased to third persons (BA Finance Corporation
CODE, Art. 2185).
v. CA, G.R. No. 94566, July 3, 1992).
REGISTERED OWNER RULE 3. Stolen Vehicles
1. Liability However, the registered owner is not liable when
The registered owner of a vehicle is primarily an accident was caused by the person who stole
responsible to the public for whatever damage or it (Duavit v. CA, G.R. No. 82318, May 18, 1989).
injury the vehicle may cause even if he had
already sold it to someone else (Erezo v. Jepte, 4. Kabit System
G.R. No. L-9605, September 30, 1957). The “registered owner” rule is applicable. The
registered owner who is sought to be liable for
Where the registered owner is allowed to evade quasi-delict cannot be allowed to prove the actual
responsibility by proving who the supposed operator of the vehicle involved in the accident
transferee or owner is, it would be easy for him, (Lim v. CA, G.R. No. 125817, January 16, 2002).
by collusion with others or otherwise, to escape
said responsibility by transferring the same to an
indefinite person who possesses no property with
which to respond financially for the damage or
injury done. The policy behind the vehicle
registration is the easy identification of the owner
RECOURSE OF THE REGISTERED Eastern Shipping v. CA, G.R. No. 179446, January
OWNER 10, 2011).
The liability is subject to his right of recourse against Although the employer is not the actual tortfeasor, the
the transferee or buyer (AQUINO, Torts and law makes him vicariously liable on the basis of the
Damages, supra at 710). civil law principle of pater familias for failure to
exercise due care and vigilance over the acts of one’s
NOTE: The policy cannot be applied if the plaintiff is subordinates to prevent damage to another. In the
the person who is allegedly involved in such system last paragraph of Article 2180 of the Civil Code, the
(Lim v. CA, CA, G.R. No. 125817, January 16, 2002). employer may invoke the defense that he observed
all the diligence of a good father of a family to prevent
EMPLOYER- EMPLOYEE RELATIONSHIP damage (Filcar Transport Services v. Jose Espinas,
The registered owner of the motor vehicle is G.R. No. 174156, June 20, 2012).
considered as the employer of the tortfeasor-driver ,
and is made primarily liable for the tort committed by SOLIDARY LIABILITY OF JOINT
the latter under Article 2176, in relation with Article TORTFEASORS
2180, of the Civil Code (Metro Manila Transit
Corporation v. Cuevas, G.R. No. 167797, June 15, The responsibility of two or more persons who are
2015).There must be an employer-employee liable for a quasi-delict is solidary (CIVIL CODE, Art.
relationship between the driver and the present 2194).
owner-buyer-lessee (who is deemed the registered
owner) and the driver must have caused the injury in Under Article 2194 of the Civil Code, joint tortfeasors
the performance of his functions (AQUINO, Torts and are solidarily liable for the resulting damage. In other
Damages, supra at 718). words, joint tortfeasors are each liable as principals,
to the same extent and in the same manner as if they
NOTE: Even if a sale has been executed before a had performed the wrongful act themselves (People
tortuous incident, the sale, if unregistered, has no v. Velasco, G.R. No. 195668, June 25, 2014).
effect as to the right of the public and third persons to
recover from the registered owner (PCI Leasing and There is no contribution between joint tortfeasors
Finance, Inc v. UCPB General Insurance, Inc., G.R. whose liability is solidary since both of them are liable
No. 162267, July 4, 2008). for the total damage. Where the concurrent or
successive negligent acts or omissions of two or
more persons, although acting independently, are in
JOINT TORTFEASORS combination the direct and proximate cause of a
Two (2) or more persons acting together in single injury to a third person, it is impossible to
committing a wrong, or contributing to its commission, determine in what proportion each contributed to the
or assisting or participating therein actively and with injury and either of them is responsible for the whole
common intent, so that injury results to a third person injury (People v. Velasco, G.R. No. 195668, June 25,
therefrom (DE LEON, Torts and Damages, supra at 2014).
18).
Joint tortfeasors are jointly and severally liable for the
Test: tort which they commit. The persons injured may sue
1. Whether plaintiff has a single cause of action all of them or any number less than all. Each is liable
against such tortfeasors; or for the whole damages caused by all, and all together
2. Whether plaintiff has several causes of action are jointly liable for the whole damage. It is no
against each of tortfeasors (Id. at 18-19). defense for one sued alone, that the others who
participated in the wrongful act are not joined with him
A payment in full for the damage done, by one of the as defendants; nor is it any excuse for him that his
joint tortfeasors, of course satisfies any claim which participation in the tort was insignificant as compared
might exist against the others. There can be but to that of the others (Sing v. Li Seng Giap & Sons Inc.,
satisfaction. The release of one of the joint tortfeasors G.R. No. 170596, November 28, 2008).
by agreement generally operates to discharge all
(Lafarge Cement Philippines, Inc. v. Continental CONCURRENT NEGLIGENCE
Cement Corporation, G.R. No. 155173, November
23, 2004). Where the concurrent or successive negligent acts or
omissions of two or more persons, although acting
No actor's negligence ceases to be a proximate independently, are, in combination, the direct and
cause merely because it does not exceed the proximate cause of a single injury to a third person
negligence of other actors. Each wrongdoer is and it is impossible to determine in what proportion
responsible for the entire result and is liable as each contributed to the injury, either is responsible for
though his acts were the sole cause of the injury (Far the whole injury, even though his act alone might not
have caused the entire injury, or the same damage responsible persons (Far Eastern Shipping Co., v.
might have resulted from the acts of the other CA, G.R. No. 130068, October 1, 1998).
tortfeasor (PNCC v. CA, G.R. No. 159270, August 22,
2005). The actor is liable even if the active and substantially
simultaneous operation of the effects of a third
In other words, where their concurring negligence person’s innocent, tortious or criminal act is also a
resulted in injury or damage to a third party, they substantial factor in bringing about the harm so long
become joint tortfeasors and are solidarily liable for as the effects of the actor’s negligent conduct actively
the resulting damage under article 2194 of the Civil and continuously operate to bring about harm to
Code (Loadmasters Customs Services, Inc. v. Glodel another (Africa v. Caltex. G.R. No. L-12986, March
Brokerage Corporation, G.R. No. 179446, January 31 1966).
10, 2011).
CAUSE-IN-FACT
In case of an injury to a passenger due to the In determining the proximate cause of the injury, it is
negligence of the driver of the bus on which he was first necessary to determine if defendant’s negligence
riding, and the driver of the other vehicle, the drivers was the cause-in-fact of the damage to the plaintiff. If
and owners of the two vehicles are jointly and defendant’s negligence was not a cause-in-fact, the
severally liable for damages (Construction Dev. Corp. inquiry stops; but if it is a cause-in-fact, the inquiry
of the Phils. v. Estrella, et. al., G.R. No. 147791, shifts to the question of limit of liability of the
September 8, 2006). defendant (AQUINO, Torts and Damages, supra at
341).
Where the obligation of the parties is solidary, either
of the parties is indispensable, and the other is not It is necessary that there is proof that defendant’s
even a necessary party because complete relief is conduct is a factor in causing plaintiff’s damage (Id.
available from either (Cerezo v. Tuazon, G.R. No. at 347-348).
141538, March 23, 2004).
NOTE: What needs to be determined is whether the
defendant’s act or omission is a casually relevant
factor (Id.).
PROXIMATE CAUSE
CAUSE-IN-FACT TESTS
1. Sine Qua Non Test (but-for test)
Defendant’s conduct is the cause in fact of the
PROXIMATE CAUSE injury under the “but-for-test” if the damage would
That cause which, in natural and continuous not have resulted had there been no negligence
sequence, unbroken by any efficient intervening on the part of the defendant. Conversely,
cause, produces the injury, without which the result defendant’s negligent conduct is not the cause in
would not have occurred (Dela Cruz v. Viano, G.R. fact of the plaintiff’s damage if the accident could
No. 219649, July 26, 2017). not have been avoided in the absence thereof
REMOTE CAUSE (Id.).
That cause which some independent force merely NOTE: The concept “where if the first object had
took advantage of to accomplish something not the not been, the second never had existed” is the
natural effect thereof (AQUINO, Torts and Damages, foundation of the “but-for-test” (Id.).
supra at 334).
2. Substantial Factor Test
NEAREST CAUSE Makes the negligent conduct the cause in fact of
That cause which is the last link in the chain of events; the damage if it was a substantial factor in
the nearest in point of time or relation (Id. at 336). producing the injuries (Id. at 349). The accident
would not have occurred had there been no
NOTE: Proximate cause is not necessarily the negligence of the part of the defendant, the
nearest cause (Id at 334.). defendant’s conduct is a substantial factor in
bringing about the damage or injury (Id.).
CONCURRENT CAUSES
Where several causes producing the injury are 3. Necessary element of Sufficient Set
concurrent and each is an efficient cause without (NESS Test)
which the injury would not have happened, the injury The negligent act or omission is a cause-in-fact
may be attributed to all or any of the causes and of the damage if it is a necessary element of a
recovery may be had against any or all of the sufficient set (NESS) (Id. at 350).
 EFFICIENT INTERVENING CAUSE
NOTE: Whether a particular condition qualifies One which destroys the causal connection between
as a casually relevant factor will depend on the negligent act and the injury and thereby negatives
whether it was necessary to complete a set of liability (novus actus interviens) (AQUINO, Torts
conditions jointly sufficient to account for the and Damages, supra at 370).
given occurrence (Id.).
It will be regarded as the proximate cause and the
Duplicative v. Pre-emptive Causation first cause as too remote, where the chain of events
Duplicative Causation occurs when two (or more) is so broken that they become independent and the
such sets operate simultaneously to produce the result cannot be said to be the consequence of the
effect; in other words, the effect is over- primary cause (Id.).
determined. Pre-emptive causation, by contrast,
occurs when one causal set ‘trumps’ another, There is no efficient intervening cause if the force
potential set lurking in the background (Id. at 351- created by the negligent act or omission have either:
352). 1. Remained active itself;
2. Created another force which remained active
Illustration: Suppose a man slips while running until it directly caused the result, or
down a slippery stair and two candidate causes 3. Created a new active risk of being acted upon by
can be seen because they are not normally the active force that caused the result (Id.).
present: (a) the man slipped simply because he
was running; and (b) the man slipped because
the stairs is slippery. There are at least four
TEST OF SUFFICIENCY:
possibilities here. 1. It must be new and independent and not under
the control of the wrongdoer, or one which by the
(a) The slippery stair is the only cause. The man exercise of reasonable foresight and diligence,
would have slipped even if he were not he should have anticipated and guarded against
running; it;
(b) The slippery stair is only one of the causes 2. It must break the continuity of the causal
simultaneously occurring. The fact that the connection between the original negligent act
man was running was sufficient for the injury, and omission; and
by the fact that the stairs was slippery was 3. The injury so that the former cannot be said to
equally sufficient. There are two overlapping have been the efficient cause of the latter (Id. at
causal sets. 370-371).
(c) The slippery stair was a member of a causal
set contributing to the effect. The slippery VIOLATION OF A STATUTE
stairs alone would not have been sufficient to The mere fact of violation of a statute is NOT
cause the injury and the fact that the man sufficient basis for an inference that such violation
was running was equally insufficient. The was the proximate cause of the injury complained.
injury was a cumulative effect of all the However, if the very injury has happened which was
causes. intended to be prevented by the statute, it has been
(d) The slippery stairs may not have caused the held that violation of the statute will be deemed to be
injury. One possibility is that the man’s the proximate cause of the injury (Teague v.
running may have been the only cause; it is Fernandez, G.R. No. L-29745. June 4, 1973).
part of a set that was necessary.
FORESEEABLE INTERVENING CAUSE
In these cases, the slippery stairs will be
This cannot be considered as a sufficient intervening
considered as a cause-in-fact of the injury
cause because there is an opportunity to guard
situations contemplated in (a), (b), and (c)
against it (AQUINO, Torts and Damages, supra at
and obviously not in situation (d) (Id. at 352-
373).
353).
NOTE: If the intervening cause is a recurrent feature
NOTE: According to AQUINO, there is no statutory
of the environment, it is not an efficient intervening
provision in this jurisdiction that mandates the use of
cause because it is foreseeable (Id. at 374).
a particular cause-in-fact test. But the primary test
in determining the cause-in-fact of the damage is
A tortfeasor is liable for the consequence of
the “but-for-test”. However, in cases involving
negligence, mistake or lack of skill of a physician or
duplicative causes, either the Substantial Factor Test
surgeon whose treatment aggravated the original
or the “NESS” Test can be applied (Id. at 359).
injury. The same is considered a normal and
foreseeable risk (Id.).
UNFORESEEN AND UNEXPECTED ACT 3. Humanitarian Negligence Doctrine (PINEDA,
OR CAUSE Torts and Damages, supra at 58).
The intervention of an unforeseen and unexpected Even though a person’s own acts may have placed
cause is not sufficient to relieve the wrongdoer from him in a position of peril, and an injury results, the
consequences of negligence if such negligence injured person is entitled to recovery (AQUINO, Torts
directly and proximately cooperates with the and Damages, supra at 384).
independent cause in the resulting injury (Africa v.
Caltex, G.R. No. L-12986, March 31 1966). Elements: (PoKLA)
1. Plaintiff was in a Position of danger and, by his
An unforeseen and unexpected act of a third person own negligence, became unable to escape from
may not be considered an efficient intervening cause such position by the use of ordinary care;
if it is duplicative in nature or if it merely aggravated 2. Defendant Knew that the plaintiff was in a
the injury that resulted because of the prior cause. position of danger or in the exercise of ordinary
The same conclusion can be reached if the third care should have known such;
person’s act is part of the causal set, together with the 3. Defendant had the Last clear chance to avoid the
defendant’s negligence, that operated to cause the accident by the exercise of ordinary care but
injury (AQUINO, Torts and Damages, supra at 375- failed to exercise such last clear chance; and
376). 4. The Accident occurred as a proximate result of
such failure (DE LEON, Torts and Damages,
CAUSE AS DISTINGUISHED FROM supra at 291).
CONDITION
The Supreme Court adopted the view that it is no In Philippine Bank of Commerce v. CA (G.R. No.
longer practicable to distinguish between cause and 97626, March 14, 1997), the doctrine of last clear
condition (Id. at 366). chance was applied to a banking institution. The
Supreme Court ruled that the bank, thru its teller, had
Many courts have sought to distinguish between the the last clear opportunity to avert the injury incurred
active "cause" of the harm and the existing by its client, simply by faithfully observing their self-
"conditions" upon which that cause operated. If the imposed validation procedure.
defendant has created only a passive static condition,
which made the damage possible, the defendant is Cases when the doctrine was held inapplicable:
said not to be liable. It is not the distinction between 1. If the plaintiff was not negligent;
"cause" and "condition" which is important but the 2. The defendant is required to act instantaneously,
nature of the risk and the character of the intervening and if the injury cannot be avoided by the
cause (Phoenix Construction v. IAC, G.R. No. L- application of all the means at hand after the peril
65295, March 10, 1987). is or should have been discovered;
3. If defendant’s negligence is a concurrent cause
DOCTRINE OF LAST CLEAR CHANCE and which was still in operation up to the time the
injury was inflicted;
This principle states that the contributory negligence 4. Where the plaintiff, a passenger, filed an action
of the person injured will not defeat the claim for against a carrier based on contract; and
damages if it is shown that the defendant might, by 5. If the actor, though negligent, was not aware of
the exercise of reasonable care and prudence, have the danger or risk brought about by the prior fraud
avoided the consequences of the negligence of the or negligent act (Bank of the Philippine Islands v.
injured party (ALBANO, Torts and Damages, supra at CA, G.R. No. 102383, November 26, 1992).
40).
Under the Doctrine of Last Clear Chance, the one
Under this doctrine, the negligent act emanates who has the last reasonable opportunity to avoid the
originally from the plaintiff but the defendant is aware impending harm and fails to do so is chargeable with
of that peril, to which the plaintiff has been exposed the consequences without reference to the prior
to, yet he does not perform an act to avoid the negligence of the other party (Glan People’s Lumber
accident. The defendant is liable for damages Hardware v. IAC, G.R. No. 70493, May 18, 1989).
because he has not exercised the required degree of
diligence (Id.). The Doctrine of Last Clear Chance cannot be
extended into the field of joint tortfeasors as a test of
Sometimes referred to as: whether only one of them should be held liable to the
1. Discovered Peril (AQUINO, Torts and Damages, injured person and it cannot be invoked as between
supra at 347); defendants concurrently negligent (Bustamante v.
2. Doctrine of Supervening Negligence (Sing v. Li CA, G.R. No. 89880, February 6, 1991).
Seng Giap & Sons, Inc., G.R. No. 170596,
November 28, 2008); or
 No. 175540, April 7, 2014 (J. Leonen, Concurring)
cited by AQUINO, Torts and Damages, supra at 393).
TORTS COVERED BY
Article 2176 covers situations where an injury
THE CIVIL CODE happens through an act or omission of the defendant.
PROVISIONS ON When it involves a positive act, the intention to
commit the outcome is irrelevant. The act itself must
HUMAN RELATIONS not be a breach of an existing law or a pre-
existing contractual obligation. What will be
considered is whether there is "fault or negligence”
attending the commission of the act which
CATCH ALL PROVISIONS (CIVIL CODE, necessarily leads to the outcome considered as
ARTS. 19-21) injurious by the plaintiff. The required degree of
Articles 19, 20, and 21 are provisions on human diligence will then be assessed in relation to the
relations that “were intended to expand the concept circumstances of each and every case (Alano v.
of torts in this jurisdiction by granting adequate legal Magud-Logmao, supra).
remedy for the untold number of moral wrongs which
is impossible for human foresight to specifically Thus, with respect to negligent acts or omissions, it
provide in the statutes.” (AQUINO, Torts and should therefore be discerned that Article 20 of the
Damages, supra at 392). Civil Code concerns "violations of existing law as
basis for an injury", whereas Article 2176 applies
when the negligent act causing damage to
CLASSES: another does not constitute "a breach of an
1. Abuse of Right existing law or a pre-existing contractual
2. Acts Contrary to Law obligation." (St. Martin Polyclinic, Inc. v. LWV
3. Acts Contrary to Morals or Acts Contra Bonus Construction Corporation, G.R. No. 217426, 4
Mores December 2017).

Justice Leonen aptly elaborated on the distinctive ABUSE OF RIGHT

applications of Articles 19, 20 and 21, which are
general provisions on human relations, vis-a-vis Standards in the exercise of one’s rights and in the
Article 2176, which particularly governs quasi-delicts: performance of one’s duties:
“Article 19 is the general rule which governs the 1. To act with justice;
conduct of human relations. By itself, it is not the 2. To give everyone his due; and
basis of an actionable tort. Article 19 describes the 3. To observe honesty and good faith (CIVIL CODE,
degree of care required so that an actionable tort may Art. 19).
arise when it is alleged together with Article 20 or
Article 21. A right, though by itself legal because it is recognized
or granted by law as such, may nevertheless become
Article 20 concerns violations of existing law as the source of some illegality (Ardiente v. Sps. Javier
basis for an injury. It allows recovery should the act and Ma. Theresa Pastorfide, G.R. No. 161921, July
have been willful or negligent. Willful may refer to the 17, 2013).
intention to do the act and the desire to achieve the
outcome which is considered by the plaintiff in tort When a right is exercised in a manner which does not
action as injurious. Negligence may refer to a conform to these standards and results in damage to
situation where the act was consciously done but another, a legal wrong is thereby committed for which
without intending the result which the plaintiff the wrongdoer must be held responsible (Ardiente v.
considers as injurious. Sps. Javier and Ma. Theresa Pastorfide, G.R. No.
161921, July 17, 2013).
Article 21, on the other hand, concerns injuries that
may be caused by acts which are not necessarily The following elements must concur: (LEP)
proscribed by law. This article requires that the act be 1. Existence of a Legal right or duty;
willful, that is, that there was an intention to do the act 2. Which is Exercised in bad faith;
and a desire to achieve the outcome. In cases under 3. For the sole intent of Prejudicing or injuring
Article 21, the legal issues revolve around whether another (Padillo v. Rural Bank of Nabunturan,
such outcome should be considered a legal injury on Inc., G.R. No. 199338, January 21, 2013).
the part of the plaintiff or whether the commission of
the act was done in violation of the standards of care Good Faith refers to the state of mind which is
required in Article 19 (Alano v. Magud-Logmao, G.R. manifested by the acts of the individual concerned. It
consists of the intention to abstain from taking an
unconscionable and unscrupulous advantage of
another (California Clothing Inc. v. Shirley G. NOTE: Damages are recoverable even if no positive
Quiñones, G.R. No. 175822, October 23, 2013). law was violated (DE LEON, Torts and Damages,
supra at 361).
Malice or Bad Faith implies a conscious and
intentional design to do a wrongful act for a dishonest Illustrative Cases (BAD-STAMPID)
purpose or moral obliquity (California Clothing Inc. v. 1. Breach of Promise to Marry
Shirley G. Quiñones, G.R. No. 175822, October 23, GENERAL RULE: Breach of promise to marry
2013). by itself is not actionable (AQUINO, Torts and
Damages, supra at 416).
ACTS CONTRARY TO LAW (CIVIL CODE,
ART. 20) EXCEPTIONS: In cases where there is an act
independent of the breach of promise to marry
This article speaks of the general sanction for all
which gives rise to liability:
other provisions of law, which do not especially
a. Cases where there was financial damage
provide for their own sanction (DE LEON, Torts and
(Id.).
Damages, supra at 79-80).
To formally set a wedding and go through
NOTE: Art. 20 does not distinguish; the act may be
and spend for all the wedding preparations
done willfully or negligently (Id.).
and publicity, only to walk out of it when the
matrimony was about to be solemnized, is
In the case of Bacolod-Murcia Milling Co. v. First
palpably and unjustifiably contrary to good
Farmers Milling Co. NIDC and PNB extended loans
customs for which the defendant is
to defendant sugar mills, which petitioner alleges that
answerable for damages (Wassmer v. Velez,
assists in the illegal creation and operation of said
G.R. No. L-20089, December 26, 1964).
mills, it therefore filed an action for injunction and
prohibition with damages against NIDC and PNB.
b. Social humiliation caused to one of the
The Supreme Court dismissed the petition and held
parties (Id.)
that, what appears from the record is that PNB and
NIDC came into the picture in the ordinary and usual
c. Where there was moral seduction (Id.).
course of its business after the borrowing entity had
established itself as capable of being treated as a
Moral seduction, although not punishable,
new milling district because it could already operate
connotes the idea of deceit, enticement,
and had its array of adhering partners (Bacolod-
superior power or abuse of confidence on the
Murcia Milling Co. v. First Farmers Milling Co., G.R.
part of the seducer to which the woman has
No. L-29041, March 24, 1981).
yielded (Baksh v. CA, G.R. No. 97336,
February 19, 1993).
RATIONALE: The doing of an act which is in itself
perfectly lawful will not render one liable as for a tort,
Breach of promise to marry per se is not an
simply because the unintended effect of such at is to
actionable wrong. But where a man's
enable or assist another person to do or accomplish
promise to marry is in fact the proximate
a wrong (Id.).
cause of the acceptance of his love by a
woman and his representation to fulfill that
ACTS CONTRARY TO MORALS OR ACTS promise thereafter becomes the proximate
CONTRA BONUS MORES (CIVIL CODE, cause of the giving of herself unto him in a
ART. 21) sexual congress, proof that he had, in reality,
This article is designed to fill in the “countless gaps no intention of marrying her and that the
in the statutes, which leave so many victims of moral promise was only a subtle scheme or
wrongs helpless, even though they have actually deceptive device to entice or inveigle her to
suffered material and moral injury” (DE LEON, Torts accept him and to obtain her consent to the
and Damages, supra at 80). sexual act, could justify the award of
damages pursuant to Article 21 not because
Elements: (LCD) of such promise to marry but because of the
1. Act which is Legal; fraud and deceit behind it and the willful injury
2. The act is Contrary to morals, good customs, to her honor and reputation which followed
public order or public policy; and thereafter. It is essential, however, that such
3. The act is Done with intent to injure (Mendoza v. injury should have been committed in a
Spouses Gomez, G.R. No. 160110, June 18, manner contrary to morals, good customs or
2014). public policy (Baksh v. CA, G.R. No. 97336,
February 19, 1993).
 No damages can be recovered under Art. 19 No action for damages is allowed where the
and 21 where the sexual intercourse is a builder, planter, or sower acted in good faith.
product of voluntariness and mutual desire The landowner is limited to the options
(Constantino v. Mendez, G.R. No. 57227, provided for under Article 448 (CIVIL CODE,
May 14, 1992). Art. 448, 456).

2. Sexual Assault A builder in good faith who acted negligently

Defendant is liable for all forms of sexual assault. may be held liable under Article 2176.
These include the crimes defined in the Revised
Penal Code such as rape, acts of lasciviousness, b. Trespass to or deprivation of personal
and seduction (AQUINO, Torts and Damages, property.
supra at 421).
Theft or robbery of personal property is
NOTE: Defendant is liable even if he satisfied his trespass.
lust without promising to marry the offended
party. It may not even matter that the plaintiff and In the field of tort, trespass extends to all
the defendant are of the same gender (Id.). cases where a person is deprived of his
personal property even in the absence of
3. Disconnection of Utilities criminal liability (AQUINO, Torts and
In case a person fails to pay 1 of 2 overdue bills Damages, supra at 424).
and consequently, his line gets disconnected
without prior notice, the SC ruled that the state NOTE: It may cover cases where the
may regulate, as it has done through Section 97 defendant was deprived of personal property
of the Revised Order No. 1 of the Public Service for the purpose of obtaining possession of
Commission, the conditions under which and the real property (Id.).
manner by which a public utility such as Meralco
may effect a disconnection of service to a Illustration:
delinquent customer. Among others, a prior 1. Petitioners, in the case of Magbanua v.
written notice to the customer is required before IAC, were denied irrigation water for their
disconnection of the service. Failure to give such farm lots in order to make them vacate
prior notice amounts to a tort (Meralco v. CA, their landholdings. The defendants
G.R. No. L-39019, January 22, 1988). violated the plaintiffs’ rights and caused
prejudice to the latter by the unjustified
4. Seduction Without Breach of Promise to diversion of the water. Thus, petitioners
Marry are entitled to damages. (Magbanua v.
Seduction, by itself, is also an act contrary to IAC, G.R. No. L-66870-72, June 29,
morals, good customs and public policy. 1985).
(AQUINO, Torts and Damages, supra at 421). 2. A group of drivers took over all jeepneys
of a transportation company as well as
The defendant is liable if he employed deceit, the operation of the service in the
enticement, superior power or abuse of company’s route without authority. The
confidence (DESA) in successfully having sexual Supreme Court declared that the act was
intercourse with another even if he satisfied his in violation of Article 21 (Cogeo – Cubao
lust without promising to marry the offended Operators and Drivers Association v. CA,
party. G.R No. 100727, March 18, 1992).

It may not even matter that the plaintiff and the 6. Abortion and Wrongful Death
defendant are of the same gender (Id.). Damages may be recovered by both spouses if:
a. The abortion was caused through the
5. Trespass and Deprivation of Property physician’s negligence; or
Kinds: b. Was done intentionally without their consent.
a. Trespass to and/or deprivation of real A doctor who performs an illegal abortion is
property. criminally liable under Article 259 of the
Revised Penal Code.
This is committed when a person unlawfully
invades the real property of another. Intent or The husband of a woman who voluntarily
bad faith is required for liability for damages procured her abortion may recover damages
under the Revised Penal Code and Article from the physician who caused the same on
451 of the Civil Code to attach (Id. at 422). account of distress and mental anguish
attendant to the loss of the unborn child and
 the disappointment of his parental Slander by Deed – similar acts punishable under
expectation (Geluz v. CA, G.R. No. L-16439, Art. 359 of the Revised Penal Code; committed
July 20, 1961). by one who performs an act of dishonor, discredit
or contempt upon the offended party in the
7. Malicious prosecution (see CIVIL CODE, presence of other person or persons (REVISED
Arts. 19-21, 26, 32, 33, 35, 2217, 2219, Par. PENAL CODE, Art. 359).
8)
An action for damages brought by one against 9. Illegal Dismissal
another, against whom a criminal prosecution, The right of the employer to dismiss an employee
civil suit, or other legal proceeding has been should not be confused with the manner in which
instituted maliciously and without probable the right is exercised and the effects flowing
cause, after the termination of such prosecution, therefrom (AQUINO, Torts and Damages, supra
suit or proceeding in favor of the defendant at 426).
therein (Magbanua v. Junsay, G.R. No. 132659,
February 12, 2007). If the dismissal was done oppressively or in a
manner contrary to morals, good customs and
It is for the mere purpose of vexation or injury public policy, the employer should be deemed to
(Drilon v. CA, G.R. No. 107019, March 20, 1997). have violated Art. 1701 of the Civil Code, which
prohibits acts of oppression by either capital or
Requisites: (FAW) labor against the other, and Article 21 of the Civil
1. The Fact of prosecution and the further fact Code (Id.).
that the defendant (respondent) was himself
the prosecutor, and that the action finally Illustrations:
terminated with an acquittal; a. False imputation of misdeed to justify
2. That the prosecutor was Actuated or dismissal (Quisaba v. Sta. Ines Melale-
impelled by legal malice, that is, by improper Veneer and Plywood Inc., G.R. No. L-38088,
or sinister motive; and August 30, 1974).
3. That in bringing the action, the prosecutor b. The ground relied upon is a figment of
acted Without probable cause (Diaz v. employer’s imagination (Globe Mackay and
Davao Light and Power Co., Inc., G.R. Radio Corp. v. CA, G.R. No. 81262, August
No.160959, April 4, 2007). 25, 1989).

Presence of probable cause signifies absence of 10. Desertion by A Spouse

malice (AQUINO, Torts and Damages, supra at A spouse has a legal obligation to live with his/her
428). spouse. If a spouse does not perform his or her
duty to the other, he may be held liable for
NOTE: Probable Cause is the existence of such damages for such omission because the same is
facts and circumstances as would excite the contrary to law, morals, and good customs
belief of the prosecutor that the person charged (AQUINO, Torts and Damages, supra at 421).
is guilty if the crime for which he is prosecuted
(Id.). TORTS AGAINST HUMAN DIGNITY (SEE
CIVIL CODE, ART. 26)
Absence of malice signifies good faith on the part
Torts against human dignity, personality, privacy and
of the defendant; good faith may even be based
peace of mind of his neighbors and other persons,
on mistake of law (Id.).
though they may not constitute a criminal offense,
shall produce a cause of action for damages,
Acquittal presupposes that criminal information is
prevention and other relief.
filed in court and final judgment rendered
dismissing the case; prior acquittal may include
dismissal by the prosecutor after preliminary
1. VIOLATION OF THE RIGHT OF PRIVACY
investigation (Globe Mackay and Radio Corp. v. The essence of privacy is the right to be left alone
CA, G.R. No. 81262, August 25, 1989). (Ople v. Torres, G.R. No. 127685, July 23, 1998).
Zones of privacy are recognized and protected in
our laws. Within these zones, any form of
8. Public Humiliation
intrusion is impermissible unless excused by law
Illustration: The defendant was held liable for
and in accordance with customary legal process
damages under Article 21 of the Civil Code for
(Sabio v. Gordon, G.R. No. 174340, October 17,
slapping the plaintiff (a priest) in public (Patricio
2006).
v. Hon. Oscar Leviste, G.R. No. L-51832, April
26, 1989).
Reasonableness of Expectation of Privacy invoked by a juridical entity (Bache & Co.
Two-Part Test: (Phils.), Inc. v. Ruiz, G.R. No. L-32409,
a. Whether by his conduct, the individual has February 27, 1971).
exhibited an expectation of privacy; and
b. Whether this expectation is one that the b. Right to privacy is purely personal in nature,
society recognizes as reasonable (Ople v. hence:
Torres, G.R. No. 127685, July 23, 1998). i. It can be invoked only by the person
whose privacy is claimed to have been
NOTE: Other factors, such as customs, physical violated.
surroundings, and practices of a particular ii. It can be subject to waiver of the person
activity, may serve to create or diminish this whose privacy is sought to be intruded
expectation (Id.). into.
iii. The right ceases upon the death of the
It is within the prerogative of educational person (AQUINO, Torts and Damages,
institutions to require, as a condition, for supra at 451).
admission, compliance with reasonable school
rules and regulations and policies (which EXCEPTION: A privilege may be given to the
includes mandatory, random, and suspicion less surviving relatives of a deceased person to
drug testing of students). However, the rule is protect his memory but the privilege exists for
different with respect to an accused who is the benefit of the living, to protect their
charged before the prosecutor’s office. Drug feelings and to prevent the violation of their
testing in this case would violate a persons’ right own rights in the character and memory of
to privacy (SJS v. Dangerous Drugs Board, G.R. the deceased (Id. at 451).
No. 157870, November 3, 2008).
Illustrations:
Facets of Privacy i. In some cases, the law allows the heirs
Privacy in the Constitutional sphere includes: of the deceased to enter into a licensing
a. Privacy in a physical sense agreement for the depiction of the life of
– denotes seclusion, solitude, security, or the deceased (Lagunzad v. Vda. De
bodily integrity. Gonzales, G.R. No. L-32066, August 6,
1979).
b. Privacy in an informational sense ii. Courts have allowed recovery of
– denotes confidentiality, secrecy, or damages for the unauthorized use of the
anonymity, especially with respect to name or picture of a deceased person for
correspondence, conversation, and records. advertising or trade purposes (AQUINO,
Torts and Damages, supra at 416).
c. Proprietary privacy
– limits the use of a person’s name, likeness, A corporation has no right of privacy in its
identity, or other attributes of identity and name since the entire basis of the right is an
exclusive possession. injury to the feelings and sensibilities of the
party and a corporation would have no such
d. Privacy in a decisional sense ground for relief (Valmonte v. Belmonte, G.R.
– denotes liberty, freedom, choice, or No. 74932, February 13, 1989).
autonomy in decision making about sex,
reproduction, marriage, family, and health Standard Used
care (AQUINO, Torts and Damages, supra at The standard to be applied in determining if there
446-447). was a violation of the right is that of a person of
ordinary sensibilities. It is relative to the customs
Who can invoke: of time and place, and is determined by the norm
a. The right to privacy can be invoked only by of an ordinary person (AQUINO, Torts and
natural persons. Juridical persons cannot Damages, supra at 458).
invoke such right because the entire basis of
right to privacy is an injury to the feelings and Four Types of Invasions of Privacy: (PIFA) (Id.
sensibilities of a party; a corporation would at 459)
have no such ground for relief (Valmonte v. a. Publication of Private Facts
Belmonte, G.R. No. 74930, February 13, Consists of a cause of action in publicity, of a
1989). highly objectionable kind, given to private
information about the plaintiff, even though it
EXCEPTION: The right against is true and no action would lie for defamation.
unreasonable searches and seizure can be
The interest sought to be protected is the and acting in, the discharge of public duties
right to be free from unwarranted publicity, (Id.).
from the wrongful publicizing of the private
affairs and activities of an individual which b. Intrusion
are outside the realm of legitimate public Protects a person’s sense of locational and
concern (Id. at 475). psychological privacy. The claim is not so
much one of total secrecy as it is of the right
Requisites: (PWI) to define one’s circle of intimacy – to choose
i. Publicity is given to any private or purely who shall see bequeath the quotidian mask
personal information about a person; (Id. at.459).
ii. Without the latter’s consent; and
iii. That the publication was made with Is not limited to cases where the defendant
Intent of gain or for commercial and physically trespassed into another’s
business purposes aggravates the property. It includes cases when the
violation of the right, regardless of defendant invaded one’s privacy by looking
whether or not such publicity constitutes from the outside (Id. at 460).
a criminal offense, like libel or
defamation (Id at 475.). The law protects everyone, whether the
plaintiff is popular or not (Id. at 462).
NOTE: Because of the interest they generate
and their newsworthiness, public figures, Intrusion in Public Places
most especially those holding responsible No invasion of right to privacy when a
positions in government enjoy a more limited journalist records, photographs or writes
right to privacy compared to ordinary about something that occurs in public places.
individuals. To be liable, the defendant must People in public places must assume that
be guilty of knowing and reckless disregard they might be photographed or recorded (Id.
of the truth (Ayer Productions v. Capulong, at 461).
G.R. No. 82380; April 29, 1988).
EXCEPTION: When the acts of the journalist
Kinds of Public Figures: is to such extent that it constitutes
1. Involuntary Public Figures harassment or overzealous shadowing (Id. at
– persons who become public figures 462).
through no purposeful actions of their
own; R.A. 4200 or the Anti-Wiretapping Law
It is illegal for any person not authorized by
2. Public Figures for All Purpose all the parties to any private communication
– persons who attain a status according to secretly record such communication by
to which they assumed roles of special means of a tape recorder (Ramirez v. CA,
prominence in the affairs of society; G.R. No. 93833, September 28, 1995).

3. Limited-Purpose Public Figures The use of a telephone extension for

– persons who have thrust themselves to purposes of overhearing a private
the forefront of particular public conversation without authorization does not
controversies in order to influence the violate R.A. 4200 as it cannot be placed in
resolution of the issues involved. the same category as a dictaphone,
(AQUINO, Torts and Damages, supra at dictagraph or the other devices enumerated
594-595). in Section 1 of RA No. 4200 thus the use
thereof cannot be considered as "tapping"
Rule on Publication of Official the wire or cable of a telephone line (Gaanan
Proceedings and Official Functions v. IAC, G.R. No. L-69809, October 16, 1986).
The publication of facts derived from the
records of official proceedings which are not Limitations on the Right to Information:
otherwise declared by law as confidential, Intrusion and Freedom of the Press
cannot be considered a tortious conduct (Id. The Constitution protects freedom of the
at 480). press. However, the Constitutional right has
never been construed to accord newsmen
The right to privacy belongs to the individual immunity from torts or crimes committed
acting in his private capacity and not to a during the course of newsgathering
governmental agency or officers tasked with, (AQUINO, Torts and Damages, supra at
462).
 TORT OF PUTTING
Intrusion in the Internet
ANOTHER IN FALSE DEFAMATION
There will be intrusion through the internet if
LIGHT
a person is engaged in what is known as
unlawful access contemplated under the statements tell something which the plaintiff is
Electronic Commerce Act, to wit: good about the plaintiff. held (Id. at 491).
“Access to an electronic file, or an electronic
signature of an electronic data message or
electronic document shall only be authorized d. Commercial Appropriation of Likeness
and enforced in favor of the individual or The tort of commercial appropriation of
entity having a legal right to the possession likeness has been held to protect various
or the use of plaintext, electronic signature or aspects of an individual’s identity from
file or solely for the authorized purposes. The commercial exploitation: name, likeness,
electronic key for identity or integrity shall not achievements, identifying characteristics,
be made available to any person or party actual performances and fictitious characters
without the consent of the individual or entity created by a performer (Id. at 491).
in lawful possession of that electronic key
(R.A. 8792, Sec. 31)”. With respect to celebrities, however, the right
of publicity is often treated as a separate right
c. Publicity which Places a Person in a False that overlaps by us distinct from the right of
Light in the Public Eye privacy. Celebrities who file actions to protect
What is protected is the interest of the their right to publicity do so to protect their
individual in not being made to appear before economic interest (Id. at 492).
the public in an objectionable false light or
false position (AQUINO, Torts and Damages, 2. INTERFERENCE WITH FAMILY AND
supra at 489). OTHER RELATIONS
It may be:
NOTE: In many cases, the publicity given to a. Alienation of affection of spouse
the plaintiff is defamatory, hence an action for b. Disturbing family relations (Id. at 493-494).
libel is also warranted; the action for invasion
of privacy will afford an alternative remedy Alienation of Affection
(Id. at 490). This consists of depriving one spouse of the
ort of Pu affection, society, companionship and comfort of
PUTTING ANOTHER IN FALSE LIGHT the other. It extends to all cases of wrongful
V. DEFAMATION interference in the family affairs of others
whereby one spouse is induced to leave the other
TORT OF PUTTING spouse or to conduct himself or herself in such a
ANOTHER IN FALSE DEFAMATION way that the comfort of married life is destroyed
LIGHT (Id. at 494).

As to Gravamen of Claim Alienation by In-laws

If the interference is by the parents of the spouse
Not the reputational harm Reputational harm. on the assumption that the wife was ill-treated, it
but rather the may be reasonably presumed that they have
embarrassment of a acted with commendable motives and a clear
person being made into case of want of justification may be justly shown
something he is not (Id. at before they should be held responsible (Id. at
490). 495).
As to Publication
Elements:
The statement should be Publication is 1. A valid marriage;
actually made in public. satisfied if a letter is 2. Wrongful conduct by the defendant with the
sent to a third person. plaintiff’s spouse;
3. Loss of affection or consortium; and
As to the Defamatory Character of the 4. A causal relation between the defendant’s
Statements conduct and the deprivation of affection.

Defendant may still be held What is published The requirement of malice is necessary if the
liable even if the lowers the esteem in defendant is not a relative of a spouse whose
 affection was said to have been alienated (Id. at
496). “EMOTIONAL DISTRESS” TORT ACTION
V. DEFAMATION
Disturbing Family Relations
A person may be held liable if he disturbs family “EMOTIONAL
relations (CIVIL CODE, Art. 26). DISTRESS” TORT DEFAMATION
ACTION
The law recognizes the right of the parent to
advise the son or daughter: As to the Controlling Principle
a. When the advice was given in good faith, and
Properly belongs to the Calls for the application
results in separation, the act does not give
reactive harm principle of the relational harm
the injured party the right of action.
(which includes injuries principle (which includes
to individual emotional harm to social
b. Malice must be established, and it must
tranquility) (AQUINO, relationships in the
appear that defendant’s acts were the
Torts and Damages, community in the form of
controlling cause of the loss of affection to
supra at 507). defamation) (Id.).
recover damages (Tenchavez v. Escano,
G.R. No. L-19671, November 29, 1965).
TORTS WITH INDEPENDENT CIVIL
3. VEXATION AND HUMILIATION ACTIONS (CIVIL CODE, ART. 32, 33 AND
Vexation
34)
This refers to an act of annoyance or irritation that
causes distress or agitation (MVRS Publications, Independent Civil Actions include: (VD-FIN)
Inc. v. Islamic Da’wah Council of the Philippines, 1. Violation of civil and political rights (Art. 32);
Inc., et. al., G.R. No. 135306, January 28, 2003). 2. Defamation (Art. 33);
3. Fraud (Art. 33);
May Consist of: 4. Physical Injuries (Art. 33); and
a. Humiliation on Account of Personal 5. Neglect of duty by public officers (Art. 34)
Condition
Vexing or humiliating another on account of Basis of Liability
his religious beliefs, lowly station in life, place Two views:
of birth, physical defect, or other personal 1. Tolentino
condition (Art. 26(4), Civil Code). – The civil action which the Civil Code provisions
allow to be filed (particularly Article 33) is ex-
b. Intentional Infliction of Emotional delicto, that is, civil liability arising from delict.
Distress
Requisites: (MICE) 2. Caguioa
i. Plaintiff’s Mental distress was extreme – The liability sought to be enforced in
and severe; independent civil actions granted under Articles
ii. Conduct of the defendant was Intentional 32, 33 and 34 is not the civil liability arising from
or in reckless disregard of the plaintiff; crime. The basis is said to be tortuous actions
iii. Causal connection between defendant’s more of the nature of culpa aquiliana and
conduct and plaintiff’s mental distress; therefore, separate and distinct from civil liability
and arising from crime.
iv. Conduct was Extreme and outrageous –
beyond all possible bounds of decency, It is believed that the latter view is the better view
regarded as atrocious, and utterly because even the Report of the Code Commission
intolerable in civilized society (MVRS cited in Madeja v. Caro refers to civil actions that are
Publication, Inc. v Islamic Da’wah absolutely separate and independent (G.R. No. L-
Council, G.R. No. 135306, January 28, 51183, December 21, 1983; AQUINO Torts and
2003). Damages, supra at 532).

Illustration: Emotional distress caused by 1. VIOLATION OF CIVIL AND POLITICAL

discrimination against a person because of RIGHTS (CIVIL CODE, ART. 32)
his physical defect.
REASON:
NOTE: Plaintiff cannot recover merely a. In most cases, the threat to freedom originates
because of hurt feelings (MVRS Publication, from the abuses of power by government officials
Inc. v Islamic Da’wah Council, G.R. No. and peace officers. But frequently, no criminal
135306, January 28, 2003). action is filed by the prosecuting attorney.
b. The requirement of proof beyond reasonable Art. 32 speaks of an officer or employee or person
doubt often prevented the appropriate "directly or indirectly" responsible for the violation of
punishment. An independent civil action would the constitutional rights and liberties of another. Thus,
afford the proper remedy by a preponderance of it is not the actor alone (i.e., the one directly
evidence. responsible) who must answer for damages under
c. Direct and open violations of the Revised Penal Art. 32; the person indirectly responsible has also to
Code trampling upon the freedom named are not answer for the damages or injury caused to the
so frequent as those subtle, clever and indirect aggrieved party (Aberca v. Ver, G.R. No. 69866, April
ways which do not come within the pale of the 15, 1988; Silahis International Hotel, Inc. v. Soluta,
penal law (AQUINO, Torts and Damages, supra G.R. No. 163087, February 20, 2006).
at 536).
Invalid Defenses:
Committed by: a. State Immunity
1. Public officer or employee; or, Reason: Officers do not act within the ambit of
2. Any private individual. their powers if they violate the constitutional
rights of persons (AQUINO, Torts and
Judges are not liable under this Article unless the act Damages, supra at 504);
or omission is a crime. This is because in the case of
a crime, it is well known that a person criminally liable b. Suspension of the writ of habeas corpus
is also civilly liable (PARAS, Persons and Family cannot be used as a defense in cases involving
Relations, at 202). Also, Commissioners may not be Article 32 of the Civil Code (Aberca v. Ver, G.R.
held liable under Art. 32 for they are in the same No. 69866, April 15, 1988).
category as a judge (Serrano v. Muñoz Motors, Inc.,
G.R. No. L-25547, November 27, 1967). ARTICLE 32 V. ADMINISTRATIVE CODE
NOTE: An individual can hold a public officer ARTICLE 32 ADMINISTRATIVE CODE
personally liable for damages on account of an act or
Liability of public Lays down the rule on the civil
omission that violates a constitutional right only if it
officers for liability of superior and
results in a particular wrong or injury (Vinzons-Chato
violation of rights subordinate public officers for
v. Fortune Tobacco Corporation, G.R. No. 141309,
and liberties of a acts don in the performance of
June 19, 2008).
person their duties
The failure to perform a public duty can constitute an Malice and bad Presence of malice and bad
individual wrong only when a person can show that, faith are not faith is necessary
in the public duty, a duty to himself as an individual is required
also involved, and that he has suffered a special and
peculiar injury by reason of its improper performance Covers specific Covers the general acts done in
or non-performance (Id.). acts that may the performance of official
give rise to an duties
Motive or Bad Faith is Not Necessary action for
It is not necessary that the defendant under this damages
Article (32) should have acted with malice or bad
faith, otherwise, it would defeat its main purpose, (Vinzons-Chato v. Fortune Tobacco Corporation,
which is the effective protection of individual rights. It supra, 2007)
suffices that there is a violation of the constitutional
right of the plaintiff (Vinzons-Chato v. Fortune In addition to the Bill of Rights provisions, Art. 32
Tobacco Corporation, G.R. No. 141309, June 19, refers to:
2007). 1. Freedom of Suffrage;
2. Freedom from being forced to confess guilt, or
Art. 32 also applies to military officials and officers. from being induced by a promise of immunity or
(Aberca v. Fabian Ver, G.R. No. 69866, April 15, reward to make such confession, except when
1988). the person confessing becomes a state witness
(PARAS, Persons and Family Relations, supra at
Art. 32 allows an independent civil action, whether or 196).
not a crime has been committed, with indemnification
for moral and exemplary damages in addition to other 2. DEFAMATION (CIVIL CODE, ART. 33)
damages ((PARAS, Persons and Family Relations, Defamation, which includes libel and slander,
supra at 204). means the offense of injuring a person’s
character, fame, or reputation through false and
malicious statements (MVRS Publications, Inc. v.
Islamic Da’wah Council of the Phils., Inc., G.R. Test in Determining the Defamatory Character
No. 135306, January 28, 2003). of the Words Used
A charge is sufficient if the words are calculated
It is that which tends to injure reputation or to induce hearers:
diminish the esteem, respect, good will, or a. To suppose and understand that the
confidence in the plaintiff or to excite derogatory person/s against whom they were uttered
feelings or opinions about the plaintiff (Id.). were guilty of a certain offense;
b. Are sufficient to impeach their honesty, virtue
Reason for liability: The desire to protect the or reputation; or
reputation of every individual (AQUINO, Torts c. To hold the person/s up to public ridicule
and Damages, supra at 549). (Sazon v. CA, G.R. No. 120715, March 29,
1996).
It is an invasion of a relational interest since it
involves the opinion which others in the NOTE: The judge must consider the allegedly
community may have, or tend to have, of the libelous passages in the context of the entire
plaintiff (Id.). article and evaluate the words as they are
commonly understood. Put another way, he must
Requisites for One to be Liable for put himself in the shoes of the ‘average reader’
Defamatory Imputations: (DIMP) and decide whether such a reader would interpret
a. It must be Defamatory; the message as libelous (AQUINO Torts and
The statement is defamatory as a matter of Damages, supra at 552).
law where imputation is the commission of a
crime; the defamation is so plain that the Illustrations:
charge is automatically deemed libelous. a. The fact that the language is offensive to the
plaintiff does not make it actionable by itself
If the statement is not defamatory as a matter (MVRS Publications, Inc., et al. v. Islamic
of law, the Court must then make a Da’wah Council of the Philippines, Inc., et al.,
determination on the defamatory capability of supra).
the statement (AQUINO, Torts and
Damages, supra at 551). b. Personal hurt or embarrassment or offense,
even if real, is not automatically equivalent to
b. The victim must be Identifiable; defamation. It is the community, not personal
He must establish that the defamatory standards, which is taken into account in
statement referred to him although it is not evaluating any allegations of libel and any
necessary that he be named. The plaintiffs claims for damages on account thereof. This
include both natural and juridical persons. is known as the community standard (GMA
Network and Vidal v. Bustos, G.R. No.
It is insufficient that the offended party 146846, October 17, 2006).
recognized himself as the person attacked or
defamed. It must be shown that at least a c. Alleged defamatory statements should be
third person could identify him as the object taken in their entirety and the statements
of the libelous publication (Id. at 566). should not be interpreted by taking the words
uttered one by one out of context and giving
c. It must be Malicious; and them twisted meanings (AQUINO Torts and
Existence of malice in fact may be shown by Damages, supra at 557).
extrinsic evidence that the defendant bears a
grudge against the offended party, or that d. Slight unintentional errors will be excused
there is rivalry or ill feeling between them (Id. (Flor v. People, G.R. No. 139987, March 31,
at 562). 2005).

d. It must be given Publicity. e. Mere assertion that a person failed or refused

It is not required that publication is made in to perform a contractual obligation does not,
the media publication. Dissemination to a in and on itself, injure the person’s business
number of people is, however, not required reputation or deprive him of public
and communication to a single individual is confidence (Insular Life Assurance Co., Ltd.
sufficient (Id. at 561). V. Serrano, G.R. No. 163255, June 22,
2007).

f. In civil action for damages, no liability will

result if the defamatory matter is not seen
 or heard by anyone except the defendant courageously and effectively perform their
and the plaintiff. Damages to character or important role in our democracy. In the
reputation of the plaintiff is the estimate preparation of stories, press reporters and
which others hold him and not what he [editors] usually have to race with their
himself thinks (People v. Silvela, G.R. No. L- deadlines; and consistently with good faith
10610, May 26,1958). and reasonable care, they should not be held
to account, to a point of suppression, for
Presumption of Malice honest mistakes or imperfection in the choice
GENERAL RULE: Malice in law as contemplated of words (Arafiles v. Philippine Journalists
in Article 354 of the Revised Penal Code every Inc., G.R. No. 150256, March 25, 2004).
defamatory imputation is presumed to be
malicious, even if it is true, if no good intention or Kinds of Malice:
justifiable motive for making it is shown (AQUINO a. Malice in Law is a presumption of law. It
Torts and Damages, supra at 565). dispenses with the proof of malice when
words that raise the presumption are shown
EXCEPTIONS: to have been uttered. It is also known as
a. A private communication made by any constructive malice, legal malice, or implied
person to another in the performance of any malice (AQUINO, Torts and Damages, supra
legal, moral or social duty; and at 564).
b. A fair and true report, made in good faith,
without any comments or remarks, of any b. Malice in Fact is a positive desire and
judicial, legislative or other official intention to annoy and injure. It is also called
proceedings which are not of confidential express malice, actual malice, real malice,
nature, or of any statement, report, or speech true malice, or particular malice (Yuchengco
delivered in said proceedings or of any other v. The Manila Chronicle Publishing
act performed by public officers in the Corporation, G.R. No. 184315, November
exercise of their functions (REVISED PENAL 25, 2009).
CODE, Art. 354).
CYBER LIBEL
Cases Unlawful or prohibited acts of libel as defined in
a. Once it is established that the article is of a Art. 355 of the Revised Penal Code, as amended,
privileged character, the onus of proving committed through a computer system or any
actual malice rests on the plaintiff who must other similar means which may be devised in the
then convince the court that the offender was future (Sec. 4(c)(4), R.A. No. 10175).
prompted by malice or ill will. When this is
accomplished the defense of privilege GROUP LIBEL
becomes unavailing (Santos v. Court of Requisites: (ABS)
Appeals, G.R. No. L-45031, October 21, a. Libel directed Against a fairly large group;
1991). b. Libel can reach Beyond the mere collectivity
to do damage to an individual group
b. To be considered malicious, the libelous member’s reputation; and
statement must be shown to have been c. The statement is so Sweeping and all-
written or published with knowledge that they embracing as to apply to every individual in
are false or in reckless disregard of whether that group or class so that he can bring the
they are false or not. Reckless disregard of action separately if necessary (Newsweek,
what is false or not means that the author Inc., v. IAC, G.R. No L-63559, May 30, 1986).
or publisher entertains serious doubt as to
the truth of the publication, or that he Declarations made about a large class of people
possesses a high degree of awareness of cannot be interpreted to advert to an identified or
their probable falsity (Villanueva v. Philippine identifiable individual. Absent circumstances
Daily Inquirer, et. al., G.R. No. 164437, May specifically pointing or alluding to a particular
15, 2009). member of a class, no member of such class has
a right of action without at all impairing the equally
c. Every citizen of course has the right to enjoy demanding right of free speech and expression,
a good name and reputation, but we do not as well as of the press, under the Bill of Rights
consider that the respondents, under the (MVRS Publications, Inc., et al. v. Islamic Da’wah
circumstances of this case, had violated said Council of the Philippines, Inc., et al., supra).
right or abused the freedom of the press.
Newspapers should be given such leeway An individual Muslim has a reputation that is
and tolerance as to enable them to personal, separate and distinct in the community.
Each reputation is personal in character to every judicial, legislative or other official
person. Together, the Muslims do not have a proceedings which are not of confidential
single common reputation that will give them a nature, or of any statement, report or
common or general interest in the subject matter speech delivered in said proceedings, or
of the controversy (Id.). of any other act performed by public
officers in the exercise of their functions;
If the defamatory statements were directed at a iii. Fair commentaries on matters of public
small, restricted group of persons, the applied to concern (Yuchengco v. The Manila
any member of the group, and an individual Chronicle Publishing Corporation, G.R.
member could maintain an action for defamation. No. 184315, November 25, 2009).
(Id.).
A complaint against public officials addressed
Deceased to proper authorities is qualifiedly privileged
Relatives of the deceased can file an action for (AQUINO, Torts and Damages, supra at 546).
damage to the reputation of the latter. Article 353
of the Revised Penal Code expressly provides Test: Good Faith
that defamatory statements include those which Even if the statement is untrue, the same may
tend to blacken the memory of one who is dead not be considered defamatory under the said
(AQUINO, Torts and Damages, supra at 573). test (Ponce v. Legaspi, G.R. No. 79184, May
6, 1992).
Corporation
Article 353 of the Revised Penal Code expressly 2. Private Communication (REVISED PENAL
recognizes that a juridical person can be a victim CODE, ART. 34)
of libel. Hence, a corporation can be a
complainant of a libel case. The corporate can file Requisites: (DAG)
a case if its reputation as an entity was defamed i. the person who made the
(Id.). communication had a legal, moral, or
societal Duty to make the
Defenses communication, or at least, had an
1. Privileged Statements interest to protect, which interest may
either be his own or of the one to whom
Two Kinds of Privileged Communication: it is made;
a. Absolutely Privileged – not actionable ii. the communication is Addressed to an
even if the author acted in bad faith officer or a board, or superior, having
(Manila Bulletin Publishing Corp. v. some interest or duty in the matter, and
Domingo, G.R. No. 170341, July 5, who has the power to furnish the
2017). protection sought; and
iii. the statements in the communication are
Illustrations: made in Good faith and without malice
i. Allegations and averments in pleadings (AQUINO, Torts and Damages, supra at
filed in court as long as relevant and 585).
pertinent to the issues;
ii. A member of the Congress is exempt 3. Doctrine of Fair Comment (REVISED
from liability for any speech or debate in PENAL CODE, ART. 34)
the Congress or any Committee thereof Fair commentaries on matters of public
(CONST. Art. VI, Sec. 11). interest are privileged and constitute a valid
defense in an action for libel or slander. The
b. Qualifiedly Privileged – not actionable discreditable imputation directed against a
unless found to have been made without public person in his public capacity, is not
good intention or justifiable motive necessarily actionable. In order that such
(Manila Bulletin Publishing Corp. v. discreditable imputation to a public official
Domingo, G.R. No. 170341, July 5, may be actionable, it must either be a false
2017). allegation of fact or a comment based on
false supposition (Borjal v. CA, G.R. No.
Classes: 126466, January 14, 1999).
i. A private communication made by any
person to another in the performance of The doctrine of fair comment means that
any legal, moral or social duty; while in general every discreditable
ii. A fair and true report, made in good faith imputation publicly made is deemed false,
without any comments or remarks, of any because every man is presumed innocent
 until his guilt is judicially proved, and every which is stated absolutely false (AQUINO, Torts
false imputation is deemed malicious, and Damages, supra at 602).
nevertheless, when the discreditable
imputation is directed against a public person 4. PHYSICAL INJURIES (CIVIL CODE, ART.
in his public capacity, it is not necessarily 33)
actionable. In order that such discreditable Battery – an intentional infliction of a harmful or
imputation to a public official may be offensive bodily contact (AQUINO, Torts and
actionable, it must either be a false allegation Damages, supra at 605).
of fact or a comment based on a false
supposition. If the comment is an expression Offensive Bodily Contact – offends a
of opinion, based on established facts, then reasonable person’s sense of dignity even
it is immaterial that the opinion happens to be though it is intended only as a joke or a
mistaken, as long as it might reasonably be compliment (Id.).
inferred from the facts (Manila Bulletin
Publishing Corp. v. Domingo, supra). Assault – intentional conduct by one person
directed at another placing the latter in
3. FRAUD (CIVIL CODE, ART. 33) apprehension of immediate bodily harm or
There is fraud when, through insidious words or offensive act. It includes bodily injuries causing
machinations of one of the contracting parties, death (Id.).
the other is induced to enter into a contract which,
without them, he would not have agreed to Physical injuries resulting from negligence or
(Tankeh v. Development Bank of the Philippines, imprudence is not included in Article 33; they are
G.R. No. 171428, November 11, 2013). already covered by Article 2176. Thus, the crime
of homicide due to reckless imprudence is not
Elements of Deceit: (FFKAIS) covered by Article 33, but by Article 2176 of the
a. Defendant made False representation to the Civil Code (Id. at 608).
plaintiff through:
i. Written or spoken words, or 5. NEGLECT OF DUTY BY POLICE
ii. Conduct; OFFICERS (CIVIL CODE, ART. 34)
b. The representation must be one of Fact; Intended to afford a remedy against police
REASON: The view that propositions of law officers “who connive with bad elements, are
are generally matters of public record to afraid of them or are simply indifferent to duty”
which the plaintiff and defendant have equal (AQUINO, Torts and Damages, supra at 608).
access.
c. Defendant Knows that the representation is Subsidiary Liability of Cities and
false or is reckless about whether it is false; Municipalities imposed so that they will
It is also enough that the defendant has no exercise:
sufficient basis of information to make a. Great care in selecting conscientious and
representation or what is known as scienter; duly qualified policemen; and
d. Plaintiff must have Acted on the false b. Supervision over them in the performance of
representation; their duties (Id. at 609).
e. Defendant must have Intended that the false
representation should be acted on; and
f. Plaintiff Suffered damage as a result of acting UNJUST ENRICHMENT
on the false representation (AQUINO, Torts Every Person who, through an act of performance by
and Damages, supra at 602). another, or any other means, acquires or comes into
possession of something at the expense of the latter
Rule on Opinion without just or legal ground, shall return the same to
GENERAL RULE: A mere matter of opinion does him (Art. 22, Civil Code) This provision contemplates
not signify fraud (Id. at 603). what is known as accion in rem verso (AQUINO,
Torts and Damages, supra at 757).
EXCEPTION: When made by an expert and the
other party relied on the former’s special An accion in rem verso is considered merely an
knowledge (CIVIL CODE, Art. 1341). auxiliary action, available only when there is no other
remedy on contract, quasi-contract, crime, and quasi-
Half-Truths delict. If there is an obtainable action under any other
It is actionable if it is such a partial and institution of positive law, that action must be resorted
fragmentary statement of fact, as that the to, and the principle of accion in rem verso will not lie
withholding of that which is not stated makes that (Shinryo [Philippines] Company, Inc., v. RRN
Incorporated, G.R. No. 172524, 20 October 2010).
 Civil Code as one of the reasons why there is civil
In order that accion in rem verso may prosper, the liability ex delicto if a special criminal law is violated
essential elements must be present: because it is clear from the said provision that “every
1. That the defendant has been enriched; person who, contrary to law, willfully or negligently
2. That the plaintiff has suffered a loss; causes damage to another, shall indemnify the latter
3. That the enrichment of the defendant is without for the same.”
just or legal ground; and
4. That the plaintiff has no other action based on Rule on proximate cause in quasi-delict cases is
contract, quasi-contract, crime or quasi-delict. applicable to cases involving civil liability arising from
delict (CIVIL CODE, Art. 2202).
Even when an act or event causing damage to
another’s property was not due to the fault or
NO CIVIL LIABILITY CIVILLY LIABLE BUT
negligence of the defendant, the latter shall be liable
FOR THE FOLLOWING NOT CRIMINALLY
for indemnity if through the act or even he was
OFFENSES: LIABLE
benefited (CIVIL CODE, Art. 23).
1. Violation of 1. Persons exempt
Illustration: A’s cattle was saved after having been ordinances, game from criminal liability
driven by flood to B’s cultivated highland. A should laws, and traffic (REVISED PENAL
indemnify B for the destruction of the latter’s crops. rules when no one is CODE, Art. 12);
hurt; and 2. Employees
2. Treason, rebellion, subsidiarily liable
espionage, piracy, under Articles 102
CIVIL LIABILITY contempt, gambling and 103 of the
ARISING FROM and betting, infidelity
in the custody of
Revised
Code;
Penal

DELICT prisoners, abortion 3. Relatives

practiced by the mentioned in Article
woman herself and 332 of the Revised
other similar crimes. Penal Code
CIVIL LIABILITY ARISING FROM DELICT involving theft,
BASIS: Every person criminally liable for felony is swindling or
also civilly liable (REVISED PENAL CODE, Art. 100). malicious mischief;
4. When accused is
GENERAL RULE: Crimes give rise to both criminal acquitted because
and civil liability (Dual Character of Crimes) of reasonable
a. Criminal Liability – An offense against the doubt;
State. 5. In cases of
b. Civil Liability – An offense against the private independent civil
person injured (DE LEON, Torts and Damages, actions (CIVIL
supra at 520). CODE, Art. 32, 33,
and 34);
6. In civil actions under
SPECIAL CRIMINAL LAWS Article 2177 of the
The dual character of crimes is present not only in Civil Code; and
felonies defined under the Revised Penal Code but 7. When acquitted in a
also in cases governed by special laws such as: criminal action but
a. R.A. 9262 – Anti-Violence Against Women and the court rendered a
Their Children Act 2004; civil liability.
b. B.P. 22 – Bouncing Checks Law; and
c. Rule 10 of A.M. No. 09-6-8-SC-Rules of
Procedure of Environmental Cases. NOTE: It should be pointed out that the presence of
civil liability in offenses is not determined by the fact
What gives rise to civil liability is the obligation to that the crime is public or private. In other words,
repair or to make whole the damage caused to there is civil liability even if the offense is a public
another by reason of his act or omission, whether offense, as in the case of bigamy (AQUINO, Torts
done intentionally or negligently and whether or not and Damages, supra at 613).
punishable by law (Nuguid v. Nicdao, G.R. No.
150785, September 15, 2006). In connection
therewith, the SC, in Banal v. Hon. Tadeo (G.R. No.
78911-25, December 11, 1987) cited Article 20 of the
PERSONS LIABLE damages in the criminal case can file another
a. Principal; case under Article 33 of the Civil Code (People v.
b. Accomplice; and Bayotas, G.R. No. 102007, September 2, 1994).
c. Accessories (REVISED PENAL CODE, Art. 108,
109 and 110). Illustration: In case of self-defense, the
defendant is privileged to respond with
Two or More Persons Civilly Liable for a Felony reasonable amount of force in self-defense. It is
If there are two or more persons civilly liable for a the objective reasonableness of his conduct that
felony, the court will determine the specific amount of relieves him from liability.
liability of each of these persons. The amount of
damages to be awarded must be apportioned ARTICLE 30 OF THE CIVIL CODE IN
according to their respective responsibilities to be RELATION TO RULE 111, SECTION 3 OF
paid by them solidarily within their respective class RULES OF COURT
and subsidiarily for the others of a different class
(Garces v. People, G.R. No. 173858, July 17, 2007). ACTION AND EFFECT
WHEN FILED
SEPARATE AND SUBSIDIARY LIABILITY When Civil Plaintiff is merely required to
The court may fix the amount for which the principal Action is filed prove his case by mere
is primarily liable and determine a separate amount ahead of preponderance of evidence.
of liability of the accessory. Each of them shall be Criminal Action
subsidiarily liable for the other’s share in case of the
latter’s insolvency (AQUINO, Torts and Damages, The pending civil action shall be
supra at 614). When Criminal suspended in whatever stage it
Action is may be found, until final
WHAT IS INCLUDED IN CIVIL LIABILITY: subsequently judgment in the criminal action
a. Restitution (REVISED PENAL CODE, Art. 105); commenced has been rendered.
b. Reparation (REVISED PENAL CODE, Art. 106);
and The evidence presented and
c. Indemnification (REVISED PENAL CODE, Art. admitted in the civil action shall
107). be deemed automatically
When
reproduced in the criminal
application for
EXTINCTION AND SURVIVAL OF action, without prejudice to the
consolidation
LIABILITY admission of the additional
is granted
evidence that any party may
Civil liability under the Revised Penal Code shall be
wish to present. The criminal
extinguished in the same manner as obligations in
and civil action shall be tried
accordance with Civil Law (REVISED PENAL CODE,
and decided jointly.
Art. 112).

EFFECT OF PARDON ART. 30 V. ART. 31

Pardon does not erase civil liability (Monsanto v. ARTICLE 30 ARTICLE 31
Factoran, G.R. No. 78239, February 9, 1989). It is not
one of grounds recognized under the Civil Code that This refers to a separate This refers to an
extinguishes civil liability (AQUINO, Torts and civil action which is independent civil action
Damages, supra at 626). based on the criminal based on an obligation
liability of the defendant. arising from other
EFFECT OF DEATH: sources such as law,
contracts, quasi-
a. Death after Final Judgment: contracts and quasi-
Extinguishes criminal liability of the person liable
delicts.
but will not extinguish the civil liability (Id. at 624).

b. Death before Final Judgment: VIOLATIONS COMMITTED BY PUBLIC

GENERAL RULE: Defendant is relieved from OFFICERS
criminal and civil liability arising from the offense
GENERAL RULE: A public officer is not liable for
(Id.).
damages which a person may suffer arising from the
just performance of his official duties and within the
EXCEPTIONS: The aggrieved party in a libel and scope of his assigned task.
physical injuries case who initially opted to claim
EXCEPTION: A public officer may be validly sued on It is not necessary for the defective road or street to
his/her private capacity for acts done in the course of belong to the province, city, or municipality for liability
the performance of the functions of the office, where to attach. The article only requires that either control
said public officer: or supervision is exercised over the defective road or
1. Acted with malice, bad faith, or negligence; or street (Guilatco v. City of Dagupan, G.R. No. 61516,
2. Violated a constitutional right of the plaintiff March 21, 1989).
(Vinzons-Chato v. Fortune Tobacco Corporation,
supra, 2007). The local government unit cannot escape liability by
claiming that its officials do not have knowledge of the
TWO-KINDS OF DUTY: existence of excavations on its road; the obligation to
1. Public Duty; and, make the road safe is a continuing obligation
2. Duty Owing to Particular Individuals. (Municipality of San Juan v. CA, G.R. No. 121920,
August 9, 2005) Under Sec. 149 of the LGC, the
When what is involved is a duty owing to the public in sangguiniang bayan shall regulate the drilling and
general, an individual cannot have a cause of action excavations of the ground (AQUINO, Torts and
for damages against the public officer, even if though Damages, supra at 738).
he may have been injured by the action or inaction of
the officer. In such a case, there is damage to the OWNER OF MOTOR VEHICLE (CIVIL
individual but no wrong to him (Vinzons-Chato v. CODE, ART. 2184)
Fortune Tobacco Corporation, supra, 2008). In Art. 2184, the New Civil Code, declares that in
motor vehicle mishaps, the owner is solidarily liable
EXCEPTION: When the complaining individual with his driver, if the former, who was in the vehicle,
suffers a particular or special injury on account of the could have, by the use of due diligence, prevented
improper or non-performance of the public duty (Id.). the misfortune xxx if the owner was not in the motor
vehicle, the provisions of Art. 2180 are applicable
An independent civil action may be filed for the (JURADO, Civil Law Reviewer, (2019) p. 1271
liability of city or municipal police force who refuses [hereinafter, JURADO, Civil Law Reviewer]).
or fails to render aid or protection. Primary liability is
against the member of the police force who refuses
or fails to render such protection. And subsidiary ART. 2184 ART. 2180
liability is imposed on the city or municipality
Owner of the vehicle Defense of due
concerned in case of insolvency (CIVIL CODE ART.
cannot avail himself of diligence and
34, PARAS, Persons and Family Relations, supra at
the defense of due supervision of his
223).
diligence in the selection employees is available
and supervision of his
This Article 34 does not grant to the government the
employees
defense of due diligence in the selection and
supervision of the policemen (Id.). Owner is solidarily liable Owner is not solidarily
with his driver. liable with his driver.
Since Art. 34 speaks merely of city or municipal
police, it would seem it does not apply to the He may, after payment, He can, after payment,
Philippine National Police Force and to the National demand reimbursement demand from the driver
Government (Id.). from the driver of ½ of reimbursement of the
the entire amount he has entire amount which he
PROVINCES, CITIES, AND paid (Art. 1217, NCC) has paid (Art. 1218,
MUNICIPALITIES (CIVIL CODE, ART. NCC
2189) (Id.).
The liability of public corporations for damages
arising from injuries suffered by pedestrians from the VIOLATIONS OF DATA PRIVACY
defective conditions of roads is expressed in (Art. 32) Having an expectation of informational privacy is not
the Civil Code (AQUINO, Torts and Damages, supra necessarily incompatible with engaging in
at 735). cyberspace activities, including those that occur in
online social network (Vivares v. St. Theresa’s
Relatedly, Sec. 24 of R.A. No. 7160 provides that College, G.R. No. 202666, September 29, 2014).
local government units and their officials are not
exempt from liability for death or injury to persons or It is through the availability of said privacy tools that
damage to property. many online social network users are said to have a
subjective expectation that only those to whom they
grant access to their profile will view the information
they post or upload thereto. Before one can have an 2. FALLING OBJECTS (CIVIL CODE, ART.
expectation of privacy in his or her OSN activity, it is 2193)
first necessary that said user manifest the intention to The head of a family that lives in a building or a
keep certain posts private, through the employment part thereof is responsible for damages caused
of measures to prevent access thereto or limit its by things thrown or falling from the same.
visibility. And this intention can materialize in
cyberspace through the utilization of the OSN’s Head of the family is not limited to the owner of
privacy tools (Id.) the building, and it may even include the lessee
thereof (Dingcong v. Kanaan, G.R. No. 47033,
There is no fundamental right to acquire another’s April 25, 1941).
personal data (Disini v. Secretary of Justice, G.R. No.
20333, February 11, 2014). This does not exempt cases involving force
majeure (AQUINO, Torts and Damages, supra at
745).

STRICT LIABILITY The head of the family may recover from the
person who caused the damage. The liability is
solidary (CIVIL CODE, Art. 2194).

There is strict liability if one is made liable 3. LIABILITY OF EMPLOYERS (CIVIL CODE,
independent of fault, negligence or intent after ART. 1711)
establishing certain facts specified by law. Strict GENERAL RULE: Owners of enterprises and
liability tort can be committed even if reasonable care other employers are liable to pay for the death or
was exercised regardless of the state of mind of the injuries to their employees, even if the cause is
actor at that time (AQUINO, Torts and Damages, purely accidental.
supra at 742).
EXCEPTION: If the mishap was due to the
TYPES: employee’s own notorious negligence, or
1. ANIMALS (CIVIL CODE, ART. 2183) voluntary act or drunkenness.
GENERAL RULE: The possessor of an animal
or whoever may make use of the same is EXCEPTION TO EXCEPTION: When the
responsible for the damages which it may cause employee’s lack of due care only contributed to
although it may escape or be lost. his death or injury, the employer shall be liable for
compensation but the same shall be equitably
EXCEPTIONS: When the damage was caused: reduced.
a. By force majeure; or
b. By the person who suffered the damage When the plaintiff's negligence was the
(AQUINO, Torts and Damages, supra at immediate and proximate cause of his injury, he
743). cannot recover damages. But if his negligence
was only contributory, the immediate and
NOTE: The law used the generic term animal. It proximate cause of the injury being the
covers all kinds of animals (PINEDA, Torts and defendant's lack of due care, the plaintiff may
Damages, supra at 122). recover damages, but the courts shall mitigate
the damages to be awarded (Travel & Tours
This is applicable whether the animal is domestic, Advisers, Inc. v. Cruz, Sr., G.R. No. 199282,
domesticated or wild (Vestil v. IAC, G.R. No. March 14, 2016).
74431, November 6, 1989).
Rules on Employer’s Liability for Injuries
NOTE: Wild animals are possessed only while caused by Fellow-worker:
they are under one’s control; domesticated or a. If the death or injury is due to the negligence
tame animals are considered domestic or tame, of a fellow-workman the latter and the
if they retain the habit of returning to the premises employer shall be solidarily liable for
of the possessor (CIVIL CODE, Art. 560). compensation; and
b. If a fellow-worker’s intentional or malicious
Possessor or user is still liable even if damage is act is the only cause of the death or injury,
caused by the negligence or fault of third person the employer shall not be answerable unless
unless equated with force majeure (AQUINO, it should be shown that the latter did not
Torts and Damages, supra at 743). exercise due diligence in the selection or
supervision of the plaintiff’s fellow-worker
(CIVIL CODE, Art. 1712).
 property started by a former owner or possessor
4. NUISANCE (CIVIL CODE, ART. 694) is liable therefore in the same manner as the one
Any act, omission, establishment, business, who created it (CIVIL CODE, Art. 696).
condition of property, or anything else which:
(ISA-HO) NOTE: An action to abate nuisance is
a. Injures or endangers the health or safety of imprescriptible (AQUINO, Torts and Damages,
others; supra at 754).
b. Shocks, defies or disregards decency or
morality; Any person injured by a private nuisance may
c. Annoys or offends the senses; abate it by removing, or if necessary, by
d. Hinders or impairs the user of property; or destroying the thing which constitutes the
e. Obstructs or interferes with the free passage nuisance, without committing a breach of the
of any public highway or street, or any body peace or doing unnecessary injury. However, it is
of water. indispensable that the procedure for extrajudicial
abatement of a public nuisance by a private
GENERAL RULE: Everyone is bound to bear the person be followed (CIVIL CODE, Art. 706).
habitual or customary inconveniences that result
from the proximity of others, and so long as this 5. PRODUCT LIABILITY BY
level is not surpassed, he may not complain MANUFACTURERS (CIVIL CODE, ART.
against them (Velasco v. Manila Electric Co., 2187)
G.R. No. L-18390, August 6, 1971). Manufacturers and processors of foodstuffs,
drinks, toilet articles and similar goods shall be
EXCEPTION: If the prejudice exceeds the liable for death or injuries caused by any noxious
inconveniences that such proximity habitually or harmful substances used, although no
brings, the neighbor who causes such contractual relation exists.
disturbance is held responsible for the resulting
damage, being guilty of causing nuisance (Id.). Requisites: (MUNIF)
a. The defendant is the Manufacturer or
Nuisance is either public or private. A public processor of foodstuff, drinks, toilet articles
nuisance affects a community or neighborhood or and similar goods involved;
any considerable number of persons, although b. Plaintiff Used or consumed such product
the extent of the annoyance, danger or damage unaware of the injurious condition of the
upon individuals may be unequal. A private product;
nuisance is one that is not included in the c. The defendant used Noxious or harmful
foregoing definition (CIVIL CODE, Art. 695). substances in the manufacturing or
processing of the foodstuff, drink or toilet
A private nuisance, or one "that is not included in articles and similar goods;
the foregoing definition" which, in jurisprudence, d. Plaintiff’s Injury or death was caused by the
is one which "violates only private rights and product used or consumed; and
produces damages to but one or a few persons e. The Forms or kinds of damages suffered and
(Cruz v. Pandacan Hiker's Club, Inc., G.R. No. the amount thereof (PINEDA, Torts and
188213, January 11, 2016). Damages, supra at 132).

A nuisance may also be classified as to whether Product and Service Liability

it is susceptible to a legal summary abatement, in Product Liability Law
which case, it may either be: (a) a nuisance per This governs the liability of manufacturers and sellers
se, when it affects the immediate safety of for damages resulting from defective products
persons and property, which may be summarily (AQUINO, Torts and Damages, supra at 760).
abated under the undefined law of necessity;
36or, (b) a nuisance per accidens, which Liability for defective products may be based on
"depends upon certain conditions and fraud, warranty, negligence or strict liability. The
circumstances, and its existence being a action is based on quasi-delict; therefore, it
question of fact, it cannot be abated without due prescribes in four years. The allegations in the
hearing thereon in a tribunal authorized to decide complaint makes a reference to the reckless and
whether such a thing does in law constitute a negligent manufacture of “adulterated food items
nuisance (Id.). intended to be sold for public consumption.” The
vendee’s remedies are not limited to those prescribed
Liability of Successive Owner or Possessor in Article 1567 of the Civil Code. The vendor could be
Every successive owner or possessor of property liable for quasi-delict under Article 2176, and an
who fails or refuses to abate a nuisance in that action based thereon may be brought by the vendee
(Coca-Cola Bottlers Phils. v. CA, G.R. No. 110295; d. State the warrantor will do in the event of a
October 18, 1993). defect, malfunction or failure to conform to
the written warranty and at whose expense;
CONSUMER ACT e. State what the consumer must do to avail od
A law that is meant to protect the consumers by the rights which accrue to the warranty; and
providing for certain safeguards when they purchase f. Stipulate the period within which, after notice
or use consumer products (R.A. No. 7394, Consumer of defect, malfunction or failure to conform
Act). with the written warranty, the warrantor will
perform any obligation under the warranty
Alternative theories that may be used to justify (R.A. No. 7394, Sec. 68).
product liability:
1. Fraud or Misrepresentation 3. Negligence
GENERAL RULE: Not all expressions of opinion It is considered negligence per se if it is an act or
or usual exaggerations in trade are actionable omission in violation of:
misrepresentations if they are established to be a. Those expressly prohibited by Product
inaccurate. Liability statutes;
b. Standards imposed by special laws, rules
EXCEPTION: An act or practice shall be deemed and regulations of proper government
deceptive whenever the producer, manufacturer, agencies with respect to Product Liability
supplier or seller, through concealment, false Law (AQUINO, Torts and Damages, supra at
representation or fraudulent manipulation, 770).
induces a consumer to enter into a sale or lease
transaction of any consumer product or service Liability attaches if due care of an ordinarily
(R.A. No. 7394, Art. 50). prudent man was not exercised in manufacturing,
packaging, marketing or distributing of the
product (Id. at 769).
2. Warranties
Enforcement of Warranty Rights – By
presentment of a claim. It is sufficient for the 4. Delict
purchaser to present to the immediate seller Basis of Liability:
either the warranty card or the official receipt a. Criminal negligence under the Revised Penal
along with the product to be serviced or returned Code; and
to the immediate seller (R.A. No. 7394, Art. 68). b. Violation of any special law, even in the
absence of intent (Id. at 771).
Subsidiary Liability of Retailer – Retailer is
subsidiarily liable under the warranty in case of
failure of both the manufacturer and distributor to 5. Strict Liability
honor the warranty (AQUINO, Torts and It is imposed on manufacturers under the
Damages, supra at 768). Consumer Act and privity of contract is not
required (Id. at 772).
Privity of contract is not necessary in successfully
pursuing an action for breach of warranty or in It does not preclude an action based on
enforcing the same under the Consumer Act (Id. negligence (quasi-delict) for the same act of
at 769). using noxious or harmful substances (Id.).

Governing Law: The provisions of the Civil Code Manufacturer

on conditions and warranties shall govern all a. Includes any person, who manufactures,
contracts of sale with conditions and warranties assembles or processes consumer products;
(R.A. No. 7394, Art. 67). and
b. Any person who attaches his own brand
Warranty Under the Consumer Act name to the consumer products,
In addition to the Civil Code provisions on sale manufactured, assembled, or processed for
with warranties, the following persons shall him (Id. at 780).
govern the sale of consumer products with
warranty: Defective Product or Service – when it does not
a. Set forth the terms of warranty in clear and offer the safety that the consumer may rightfully
readily understandable language and clearly expect of it (R.A. No. 7394, Art. 97, par. 1).
identify himself as the warrantor;
b. Identify the party to whom the warranty is Kinds of Defective Products: (MD-PA)
extended; 1. Manufacturing defect – resulting from
c. State the products or parts covered; manufacture, assembly and erection;
2. Design defect – resulting from design; Reasonable Alternative Design
3. Presentation defect – resulting from handling, The design shall be presumed safe unless, at the
making up, presentation or packing of the time the product left the control of the manufacturer,
products; or a practical and technically feasible design was
4. Absence of appropriate warning – resulting from available that would have prevented the harm without
the insufficient or inadequate information on the significantly impairing the usefulness, desirability, or
use and hazards of the products (AQUINO, Torts marketability of the product (Id. at 786).
and Damages, supra at 782).
Test under The Consumer Act
NOTE: Design defect cannot be identified by The Consumer Act adopts the “Consumer
comparing the injury producing product with the Expectation Test” in determining what is defective (Id.
manufacturers plans or other unit. It can be at 787).
established by comparing it with standards
established by law or government agencies (Id. at Defenses
783). 1. Manufacturer, builder, producer, or importer
shall not be liable when it proves:
Defect, which resulted because of the packaging and a. That it did not place the product on the
presentation of the product, can be included under market;
the broad concept of manufacturing defect or design b. That although it did place the product on the
defect (Id.). market such product has no defect; and
c. That the consumer or a third party is solely at
Liability for Defective Product or Service: fault (R.A. No. 7394, Art. 97).
1. Manufacturer
– liability shall be imposed upon manufacturers 2. Supplier of the services shall not be liable
independent of fault (R.A. No. 7394, Arts. 97 and when it is proven:
99). a. That there is no defect in the service
rendered; and
2. Tradesman or Seller b. That the consumer or a third party is solely at
– not generally liable for damages caused by fault (R.A. No. 7394, Art. 99).
defective products under the “Consumer Act” or
“R.A. 7394”. Requisites for Enforcing Liability against the
Defendant
EXCEPTIONS: The plaintiff should allege and prove that:
a. It is not possible to identify the manufacturer, 1. The product was defective;
builder, producer or importer; 2. The product was manufactured by the defendant;
b. The product is supplied, without clear and
identification of the manufacturer, producer, 3. The defective product was the cause in fact of his
builder or importer; injury (AQUINO, TORTS and DAMAGES, supra
c. He does not adequately preserve perishable at 794).
goods (R.A. No. 7394, Art. 98).
BUSINESS TORTS
Consumer Expectation Test Kinds:
Under the consumer expectation test a product may
1. Non-Possessory Invasion
be found defective in design, if the plaintiff
Elements:
demonstrates that the product failed to perform as
a. The other has property rights and privileges
safely as an ordinary consumer would expect when
with respect to the use or enjoyment
used in an intended or reasonably foreseeable
interfered with;
manner (Barker v. Lull Engineering, S.F. No. 23519,
b. The invasion is substantial;
January 16, 1978).
c. The defendant’s conduct is a legal cause of
invasion; and
Risk-Utility Test
d. The invasion is either intentional and
States that a product is defective in design when the
unreasonable or unintentional and actionable
foreseeable risks of harm posed by the product could
under general negligence rules (Id. at 797).
have been reduced or avoided by the adoption of
reasonable alternative design by the seller or other
distributor, or a predecessor in the commercial chain
2. Interference of Contracts
of distribution, and the omission of the alternative Statutory Basis: Any third person who induces
design renders the product not reasonably safe another to violate his contract shall be liable for
(AQUINO, Torts and Damages, supra at 785). damages to the other contracting party (CIVIL
CODE, Art. 1314).
GENERAL RULE: Only the parties to a contract party who was induced to break the contract
are bound by the terms of the contract and only a can be held liable; and
party can file an action for breach of contract or c. Rule under Articles 2201 and 2202 of the
for rescission or annulment thereof (CIVIL Civil Code
CODE, Art. 1312). If in bad faith: Defendant is liable for all
natural and probable consequences of his
EXCEPTIONS: act or omission, whether the same is
a. Stipulation in favor of third person; foreseen or unforeseen (Go v. Corderdo,
b. Contracts intended to defraud creditors G.R. No. 164703, May 4, 2010).
(CIVIL CODE, Art. 1313). If in good faith: Defendant is liable only for
consequences that can be foreseen.
It is tortuous because it violates the rights of the
contracting parties to fulfill the contract and to 3. Interference with Prospective Advantage
have it fulfilled, to reap the profits resulting It is a tort committed when there is no contract yet
therefrom, and to compel the performance by the and the defendant is only being sued for inducing
other party (AQUINO, Torts and Damages, supra another not to enter into a contract with the
at 797-798). plaintiff (AQUINO, Torts and Damages, supra at
808).
Elements: (EKI)
a. Existence of a valid contract; Illustrations:
a. Philip, with ill will, induced an employer not to
NOTE: No action can be maintained if hire James, the latter may hold Philip liable
contract is void (Id. at 801). for interfering with a prospective advantage
(Id.).
b. Knowledge on the part of the third person of b. Ernest, a wealthy banker and a man of
the existence of the contract; and considerable influence in the community. He
maliciously established a barber shop and
NOTE: Malice in the sense of ill-will or spite employed his influence to attract the
is not essential. customers of the plaintiff’s barber shop.
Ernest’s sole purpose in establishing his
c. Interference of the third person without legal shop was to ruin the plaintiff (Id.).
justification (Go v. Cordero, G.R. No.
164703, May 4, 2010).

NOTE: Breach must occur because of the 4. Unfair Competition

alleged act of interference (Bun v. CA, G.R. Unfair competition has been defined as the
No. 120554, September 21, 1999). passing off (or palming off) or attempting to pass
off upon the public the goods or business of one
Elements of Privilege to Interfere: person as the goods or business of another with
a. The defendant’s purpose is a justifiable one; the end and probable effect of deceiving the
and public (Co v. Spouses Yeung, G.R. No. 212705,
b. The actors do not employ means of fraud or September 10, 2014).
deception, which are regarded as unfair
(AQUINO, Torts and Damages, supra at True Test: Whether the acts of defendant are
805). such as are calculated to deceive the ordinary
buyer making his purchases under the ordinary
Extent of Liability: conditions which prevail in the particular trade to
a. The extent of the liability for the breach of a which the controversy relates (Alhambra Cigar &
contract must be determined in the light of Cigarette Manufacturing Co v. Mojica, G.R No.
the situation in existence at the time the 8937, March 21, 1914).
contract is made; and the damages ordinarily
recoverable are in all events limited to such Unfair competition in agricultural, commercial, or
as might be reasonable are in all events industrial enterprises, or in labor, through the use
limited to such as might be reasonably of force, intimidation, deceit, machination or any
foreseen in the light of the facts then known unjust or oppressive or highhanded method shall
to the contracting parties (Daywalt v. La give rise to a right of action by a person who
Corporacion, G.R. No. L-13505, February 4, thereby suffers damage (CIVIL CODE, Art. 28).
1919);
b. Defendant cannot be held liable for more
than the amount for which the contracting
 Cases included: (PIMM)
a. Passing off and disparagement of products;
b. Interference; DAMAGES
Unfair competition includes cases involving
the tort of interference with contractual (ARTS. 2195-2235)
relations and interference with prospective
advantage.
c. Misappropriation;
Unfair competition is likewise present if the The provisions on Damages found in Articles 2195 to
defendant committed fraudulent 2235 of the Civil Code are applicable to all kinds of
misappropriation against a competition. obligations (Art. 1157) whatever may be their sources
d. Monopolies and predatory pricing (R.A. No. (CIVIL CODE, Art. 2195).
8293, Sec. 168).
DAMAGE
Monopoly – any combination the tendency of This refers to the detriment, injury or loss which are
which is to prevent competition in the broad and occasioned by reason of fault of another in the
general sense, or to control prices to the property or person (AQUINO, Torts and Damages,
detriment of the public (Gokongwei, Jr. v. SEC, supra at 819).
G.R. No. L-45911, April 11, 1979).
The pecuniary compensation, recompense, or
In short, it is the concentration of business in the satisfaction for an injury sustained, or as otherwise
hands of a few. The material consideration in expressed, the pecuniary consequences which the
determining its existence is not that prices are law imposes for the breach of some duty or the
raised and competition actually excluded, but that violation of some rights (People v. Ballesteros, G.R.
power exists to raise prices or exclude No. 120921, January 29, 1998; People v. Oandasan,
competition when desired." (Agan, Jr. v. Jr., G.R. No. 194605, June 14, 2016).
Philippine International Air Terminals Co., Inc.,
G.R. Nos. 155001, 155547 & 155661, May 5, DAMAGE VS. INJURY
2003). Damage is the indemnity recoverable by a person
who has sustained an injury either in person, or
Predatory pricing - means selling or offering to relative rights through the act or default of another. It
sell any product at a price unreasonably below is the injury or loss for which compensation is sought
the industry average cost so as to attract (Bouviere’s Law Dictionary, 749-750 cited by
customers to the detriment of competitors (R.A. ALBANO, Torts and D amages, supra at 400).
No. 8180, An Act Deregulating the Downstream
Oil Industry, and for Other Purposes). Injury is the wrongful act or tort which causes harm to
Cartel – any combination of or agreement another. The word “injury” denotes the illegal act; the
between two (2) or more persons engaged in the term “damages” means the sum recoverable which
production, manufacture, processing, storage, amends for the wrong (Id. at 401).
supply, distribution, marketing, sale or disposition
of any basic necessity or prime commodity
designed to artificially and unreasonably increase DAMAGE V. INJURY V. DAMAGES
or manipulate its price (R.A. No. 7581, The Price Damage is the loss, hurt, or harm which results from
Act, Sec. 5). the injury; Injury is the legal invasion of a legal right;
and Damages are the recompense or compensation
5. Securities-Related Torts (R.A. No. 8799, awarded for the damage suffered (Far East Bank and
Securities Regulation Code); Trust Company v. Pacilan, Jr., G.R. No. 157314, July
29, 2005).
Kinds:
a. Fraudulent transactions (Securities NOTE: A complaint for damages is a personal action
Regulation Code / R.A. No. 8799, Sec. 26); (AQUINO, Torts and Damages, supra at 820).
b. Misstatements or omission of statement of a
material fact required to be stated (R.A. No. DAMAGES V. RESTITUTION V.
8799, Sec. 56 - 57). INJUNCTION
DAMAGES RESTITUTION INJUNCTION
Defendants are not liable if they can prove that
at the time of the acquisition, the plaintiff knew of Money Requires the Forbids
the untrue statement or if he was aware of the awarded to defendant to threatened
falsity. the person restore any gains actions, requires
 considering the situation of the defendant and the
injured by the he made in a the defendant to
evidence on hand (SUAREZ, Torts and Damages
tort of transaction, or by alter harmful
(2011), p.151 [hereinafter SUAREZ, Torts and
another (DE his act or conduct or
Damages]).
LEON, Torts omission (Id. at repair its
and 634). consequences
Damages, (Id.). KINDS OF DAMAGES: (MENTAL)
supra at 1. Moral;
633). 2. Exemplary or corrective;
3. Nominal;
4. Temperate or moderate;
NOTE: Both restitution and injunction are
5. Actual or Compensatory;
occasionally available in tort cases (Id.).
6. Liquidated (CIVIL CODE, Art. 2197).
AWARD MUST BE MONETARY ACTUAL OR COMPENSATORY
In actions for damages, courts should award an
DAMAGES
amount to the winning party and not its equivalent in
property. The money value of such damages must be Damages awarded to a person as compensation or
awarded (Id. at 820). indemnity for such pecuniary loss suffered by him as
he has duly proved (CIVIL CODE, Art. 2199-2215).
DAMNUM ABSQUE INJURIA (DAMAGE PURPOSE: To repair the wrong that has been done,
WITHOUT INJURY) to compensate for the injury inflicted and not to
Under this principle, the legitimate exercise of a impose penalty (PNOC Shipping and Transport Corp.
person's rights, even if it causes loss to another, does v. CA, G.R. No. 107518, October 8, 1998).
not automatically result in an actionable injury. The
law does not prescribe a remedy for the loss (Amonoy Restitutio in Integrum
v. Gutierrez, G.R. No. 140420, February 15, 2001). The amount to be awarded to the plaintiff should be
that sum of money which will put the party who has
Hence, in the case of Seferino v. FEBTC (G.R. No. been injured or who has suffered in the same position
171845; October 10, 2012), the Supreme Court ruled as he would have been if he had not sustained the
that in the absence of any positive duty of to an wrong for which he is now getting his compensation
adverse claimant, there could be no breach that or reparation (AQUINO, Torts and Damages, supra
entitles the latter to moral damages. at 827).

PECUNIARY LOSS The primary object of an award of a civil action, and

Loss of money or something by which money or the fundamental principle or theory on which it is
something of money value may be acquired (DE based, is just compensation, indemnity or reparation
LEON, TORTS, supra at 624). for the loss or injury (Id. at 827-828).

GENERAL RULE: Every judgment for damages, By way of exception, damages are measured by the
whether arising from breach of contract or the result benefit that has accrued to the defendant in certain
of some provision of law, must rest upon satisfactory cases (e.g., The Intellectual Property Code allows the
proof of the damages alleged to have been suffered recovery of the amount that was earned by the
(Id. at 625). defendant who infringed the right of the owner of the
mark) (Id. at 828).
NOTE: Credence can be given only to claims duly
supported by receipts (Comsavings Bank v. Sps. Plaintiff is entitled to an adequate
Capistrano, G.R. No. 170942, August 28, 2013). Art.
compensation only for pecuniary loss he
2199
suffered and which he has duly proved.
EXCEPTION: In case of moral, nominal, temperate,
liquidated or exemplary damages (CIVIL CODE, Art. Classifications of actual damages:
2216). Being incapable of exact pecuniary 1. Daño emergente or damnum
estimation, the assessment of such damages, except emergens – loss of what a person
for liquidated damages which the parties themselves Art. already possesses.
fix, is left to the sound discretion of the court (People 2200
v. Dianos, G.R. No. 119311, October 7, 1998). 2. Lucro cessante or ganacias
frustradas – failure to receive as a
Damages as and by way of compensation is based, benefit that which would have pertained
however, not only on what the plaintiff claims to be to him (CIVIL CODE, Art. 2205)
just, but also on what may be deemed conscionable
 a. Loss or impairment of earning Increase or Reduction of Damages in
capacity in cases of temporary or Crime
permanent personal injury; or The liability for damages may be
b. Injury to the plaintiff’s business Art. respectively increased or lessened
standing or commercial credit 2204 depending on the presence of mitigating or
aggravating circumstances.
NOTE: Restitutio in Integrum – Amount
should be that which would put plaintiff in Mitigation of Liability (CIVIL CODE, Arts.
the same position as he would have been if 2203, 2204, 2214, 2215).
he had not sustained the wrong for which he
is now getting his compensation or
reparation (AQUINO, Torts and Damages,
supra at 828). DOCTRINE OF AVOIDABLE
CONSEQUENCES V. CONTRIBUTORY
Speaks of damages in contracts and NEGLIGENCE
quasi-contracts:
1. Obligor in Good Faith
Liable for natural and probable DOCTRINE OF
CONTRIBUTORY
AVOIDABLE
consequences of the breach of the NEGLIGENCE
CONSEQUENCES
obligation and which the parties have
Art. foreseen or could have reasonably been
2201 foreseen at the time the obligation was As to When Act or Omission Occurs
constituted.
Acts of the plaintiff occur Plaintiff’s act or omission
after the act or omission occurs before or at the
2. Obligor in Bad Faith
of the defendant time of the act or
Liable for all damages which may be
(AQUINO, Torts and omission of the
reasonably attributed to the non-
Damages, supra at 869). defendant (Id.).
performance of the obligation.

Speaks of Damages in Crimes and As Pertaining to the Victim

Quasi-delicts
He is liable for all damages which are the Injured victim has a Contributed to causing
natural and probable consequences of the responsibility to act the accident responsible
Art. acts or omission complained of. It is NOT reasonably to limit or for the injury.
2202 necessary that such damages have been mitigate losses incurred
foreseen or could have reasonably been (Id.).
foreseen at the time the obligation was
constituted. There should be restitutio in GENERAL RULE: Actual damages must be proved
integrum. with a reasonable degree of certainty. A court cannot
rely on speculation, conjecture, or guesswork as to
Doctrine of Avoidable Consequences the fact and amount of damages but must depend on
Injured victims have a responsibility to act competent proof that they have suffered, and on
reasonably to limit or mitigate losses evidence of the actual amount thereof (Loadstar
incurred. Failure to mitigate the injury will Shipping Co., Inc. v. Malayan Insurance Co., Inc.,
not hold the defendant for incremental G.R. No. 185565, November 26, 2014).
losses that otherwise could have been
avoided. EXCEPTIONS: (PLL-FDI)
1. When a Penalty clause is agreed upon in the
Where as a consequence of the refusal of contract between the parties (CIVIL CODE, Art.
Art.
the injured to submit to an operation, a 1226);
2203
series of infections ensued and required 2. When the Liquidated damages have been
constant and expensive medical treatment agreed upon (CIVIL CODE, Art. 2226);
for several years, the defendant should not 3. When the Loss is presumed as when a child or
be charged with the expenses (Lasam v. spouse dies as a result of the act or omission of
Smith, G.R. No. 19495, February 2, 1924). a person (Manzanares v. Moreta, G.R. No. L-
12306, October 22, 1918);
A person who reasonably attempts to 4. Forfeiture of bonds in favor of the government for
minimize his damages can recover the the purpose of promoting public policy or interest
expenses that he incurred. (Far Eastern Surety and Insurance Co. v. CA,
G.R. No. L-12019, October 16, 1958);
5. “Damages for Death caused by a crime or delict” the award is the sum of money which plaintiff
which can be awarded forthwith to the heirs of the would have to pay in the market for identical or
victim by proof alone of such fact of death; and essentially, similar good, plus in proper cases,
6. Damages Implied by law (e.g., the complainant in damages for the loss of use during the period
libel cases is not required to introduce evidence before replacement (AQUINO, Torts and
of actual damages at least, when the amount of Damages, supra at 834).
the award is more or less nominal. The injury to
the reputation is a natural and probable 2. Damage to Real Property
consequence of the libel (Quemel v. CA, G.R. The measure of damage for a permanent injury
No. L-22794, January 16, 1968). is ordinarily the difference between the
reasonable market value of the property
Where, however, it is reasonably certain that injury immediately before and after the injury. In case
consisting of failure to realize otherwise reasonably of total loss, the value of the real property at the
expected profits had been incurred, uncertainty as to time and place of the loss must also be
the precise amount of such unrealized profits will assessed and such assessed value is the
NOT prevent recovery or the award of damages measure of the damage due to the plaintiff (Id.
(Talisay-Silay Milling Co. v. Asociacion de at 835).
Agricultores de Talisay-Silay, Inc., G.R. No. 91852,
August 15, 1995).

MORAL DAMAGES (CIVIL CODE, ARTS.

May Actual Damages be Recovered on the Basis 2217-2220)
of Mere Testimony?
No. The Supreme Court ruled in Fuentes v. CA (G.R Moral damages include: (BMW-F-PMS3)
No. 111692, February 9, 1996) that as there is no 1. Besmirched reputation;
tangible document upon which the actual damages is 2. Moral shock;
based, actual damages cannot be recovered on the 3. Wounded feelings;
basis of mere testimony. To seek recovery for actual 4. Fright;
damages, it is essential that the injured party proves 5. Physical suffering;
the actual amount of loss with reasonable degree 6. Mental anguish;
premised upon competent proof and on the best 7. Serious anxiety;
evidence available (JURADO, Civil Law Reviewer, 8. Social humiliation
supra at 1279). 9. Similar injury (CIVIL CODE, Art. 2217).

Doctrine of Foreseeable or Anticipated Article 2217 of the Civil Code states what are
Consequences included in moral damages while Article 2219
Only those injuries which could have been enumerates the cases where they may be recovered.
reasonably foreseen by the parties at the time the
contract was entered into are recoverable contract NOTE: The cases when moral damages may be
damages (SANGCO, Torts and Damages, supra at awarded are specific. Unless the case falls under the
952). enumeration as provided in Article 2219, which is
exclusive, and Article 2220 of the Civil Code, moral
If there was a stipulated date of delivery of goods, damages may not be awarded (Coca-Cola Bottlers
damages may come in the form of the difference Phils., Inc. vs. Meñez, G.R. No. 209906, November
between the value of the goods at the time they 22, 2017).
should have been delivered and at the time of actual
delivery (Uy Chaco v. Admiral Line, G.R. No. 22134, The award of moral damages is designed to
October 17, 1924); (ALBANO, Torts and Damages, compensate the claimants for actual injury and is not
supra at 419). meant to enrich the complainant at the expense of the
defendant. The grant of moral damages is based on
In a building contract, if there is a time frame within the ancient maxim “when there is a wrong there is a
which to complete the repairs of construction, in case remedy” (AQUINO, Torts and Damages, supra at
of delay, the contractor may be liable for damages (Id. 875).
at 420).
They are awarded only to enable the injured party to
Damage to Property obtain means, diversions or amusement that will
1. Damage to Personal Property serve to alleviate the moral suffering he has
Where goods were destroyed by the wrongful undergone by reason of the defendant’s culpable
act of the defendant, the plaintiff is entitled to action (Kierulf v. CA, G.R. No. 99301, March 13,
their value at the time of destruction. Normally, 1997).
In the case of Kierulf v. CA, petitioner spouses argue Company v. Jose, G.R. No. 152769, February 14,
that respondent court should have considered the 2007).
loss of their conjugal fellowship and the impairment
of destruction of their sexual life in computing the Factors in Determining Amount: (EPS)
moral damages to be awarded to them as a 1. Extent of Humiliation;
consequence of the disfigurement of the wife. 2. Pain and suffering;
Petitioners cited a California case “Rodriguez v. 3. Official, political, social and financial Standing;
Bethelem Steel Corp.” which ruled that when a and,
person is injured to the extent that he/she is no longer 4. Age. (AQUINO, Torts and Damages, supra at
capable of giving love, affection, comfort and sexual 886-890).
relations to his or her spouse, that spouse has
suffered a direct and real personal loss. The Supreme Proximate Result
Court ruled that whether the Rodrigeuz case may be Such damages must be the proximate result of a
cited as authority to support the award of damages wrongful act or omission the factual basis of which is
for loss of consortium cannot be properly considered; satisfactorily established by the aggrieved party (Lim
that petitioners claim is not supported by the evidence v. Gomez, G.R. No. 160110, June 18, 2014).
on record; that he had not testified that, in
consequence of the disfigurement, his right to marital GENERAL RULE: The plaintiff must allege and
consortium was affected (Id.). prove:
1. The factual basis for moral damages; and
NOTE: In the above case, the Supreme Court did not 2. Its causal relation to the defendant’s act
make a definite ruling that loss of marital consortium (AQUINO, Torts and Damages, supra at 878).
cannot be included in the computation of moral
damages. EXCEPTION: Moral damages may be awarded to the
victim in criminal proceedings without the need for
Among the factors that can be considered in pleading of proof of the basis thereof (Id.).
assessing moral damages is the standing of the
offended party in the community, on the one hand, Requisites for Award of Moral Damages:
and the financial capability of the offender, upon the 1. Injury whether physical, mental or psychological,
other hand, without either being preclusive of other clearly sustained by the claimant;
circumstances even perhaps more primordial, like the 2. Culpable act or omission;
gravity of injury and the wrong causing it, that may be 3. Such act or omission is the proximate cause of
attendant to each case (Former Mayor Brigido Simon the injury; and
Jr. v. Martinez, G.R. No. 156025, January 31, 2007). 4. Damages predicated on the cases cited in Art.
2219 of the Civil Code and analogous cases, to
Nature and Purpose wit:
Moral damages are not punitive and not intended to a. A criminal offense resulting in physical
enrich the complainant in order to punish the injuries;
defendant. They are for reparation of the spiritual b. Quasi-delicts causing physical injuries;
status quo ante; a means to assuage the moral c. Seduction, abduction, rape, or other
suffering of the complainant brought about by lascivious acts;
defendant’s culpable action (Manila Electric Co. v. d. Adultery or concubinage;
Spouses Ramos, G.R. No. 195145, February 10, e. Illegal or arbitrary detention or arrest;
2016). f. Illegal search;
g. Libel, slander or any other form of
Proof and Causation defamation;
No proof of pecuniary loss is necessary in order that h. Malicious prosecution; or
moral damages may be adjudicated. The i. Acts mentioned in Art. 309; Acts and actions
assessment of such damages is left to the discretion referred to in Art. 21, 26, 27, 28, 29, 30, 32,
of the court, according to the circumstances of each 34, and 35 (DE LEON, Torts and Damages,
case. However, there must be proof that defendant supra at 804).
caused physical suffering, mental anguish, fright,
serious anxiety, besmirched reputation, wounded Moral Damages in Culpa Contractual
feelings, moral shock, social humiliation, similar injury In culpa contractual, moral damages are recoverable
to the plaintiff (AQUINO, Torts and Damages, at 877- only if the defendant acted fraudulently or in bad faith,
878). or is found guilty of gross negligence amounting to
bad faith, or in wanton disregard of his contractual
Amount of Moral Damages to be Awarded obligations. The breach must be wanton, reckless,
It must be commensurate to the suffering or malicious or in bad faith, oppressive or abusive
proportionate to the wrong committed (Manila Electric
(Emmanuel B. Aznar v. Citibank, N.A., (Philippines), A slap on the face is an unlawful aggression. The face
G.R. No. 164273, March 28, 2007). personifies one’s dignity and slapping it is a serious
personal affront. It is a physical assault coupled with
A conscious or intentional design need not always be a willful disregard to the integrity of one’s person
present since negligence may occasionally be so (ALBANO, Torts and Damages, supra at 493).
gross as to amount to malice or bad faith. Bad faith in
the context of Article 2220 of the Civil Code includes Persons who may Recover Moral Damages
gross negligence (Bankard, Inc. v. Feliciano, G.R. GENERAL RULE: Only the victim can recover.
No. 141761, July 28, 2006).
EXCEPTION: The following relatives of the victim
In an action for breach of contract of carriage, moral may recover:
damages may be awarded only in case: 1. The spouse, legitimate and illegitimate
1. an accident results in the death of a passenger; or descendants and ascendants of the deceased
2. the carrier is guilty of fraud or bad faith (Darines v. (CIVIL CODE, Art. 2209).
Quinones, G.R. No. 206468, August 02, 2017). 2. The parents of a female seduced, abducted,
raped, or abused (CIVIL CODE, Art. 2219 par 3).
Moral damages in case of physical injuries are 3. The spouse, descendants, ascendants, and
recoverable only by the party injured (Manila Doctors brothers and sisters, in the order named, against
Hospital v. So Un Chua, G.R. No. 150355, July 31, any person who shows disrespect to the dead, or
2006). wrongfully interferes in the funeral of the
deceased.
Moral Damages in Quasi-delict
Moral damages may be aptly recovered: NOTE: They must also suffer mental anguish, serious
1. When an act or omission causes physical anxiety, wounded feelings, moral shock and other
injuries similar injuries (AQUINO, Torts and Damages, supra
2. Where the defendant is guilty of intentional at 893-894).
tort, (DE LEON, Torts and Damages, supra at
805). Note, however, that the right to claim damages by the
siblings (brothers and sisters) is limited only to the
NOTE: This rule also applies, as aforestated, to third enumeration. Hence, in the case of Sulpicio
contracts when breached by tort (Id.). Lines v. Curso, et al., the Supreme Court ruled that
the surviving siblings of a passenger during a voyage
Moral Damages in Crimes or Felonies may not claim moral damages in behalf of the
It could be lawfully due when the accused is found deceased (G.R No. 157000, March 17, 2010).
guilty of physical injuries, lascivious acts, adultery or
concubinage, illegal or arbitrary detention, illegal Award of Moral Damages to Corporations
arrest or search, defamation and malicious GENERAL RULE: A corporation may not be awarded
prosecution (Id.). moral damages, it being a juridical person; it cannot
suffer from wounded feelings, serious anxiety, mental
The award of civil indemnity is mandatory without anguish or moral shock (Manila Electric Co. v.
need of proof other than the commission of the crime T.E.A.M. Corporation, G.R. No. 131723, December
(People v. Credo, G.R. No. 197360, July 3, 2013). 13, 2007).

Though R.A. 9346 prohibits the imposition of death EXCEPTION: Libel, slander or any other form of
penalty, the civil indemnity is proper, because it is not defamation. But there must be evidence to prove it to
dependent on the actual imposition of the death justify the award (CIVIL CODE, Art. 2279 par. 7,
penalty but on the fact that qualifying circumstances Filipinas Broadcasting Network, Inc. v. Ago Medical
warranting the imposition of the death penalty and Educational Center – Bicol Christian College of
attended the commission of the offense (People v. Medicine, GR. No. 141994, January 17, 2005).
Credo, G.R. No. 197360, July 3, 2013).
NOTE: In Manila Electric Co. v. T.E.A.M. Corporation
May a Person Who Slapped Another on the Face (supra), the Court deemed it proper to delete the
be Held Liable for Damages? award of moral damages. TEC's claim was premised
Yes. The act of slapping another in the face is allegedly on the damage to its goodwill and
contrary to morals and good customs and under the reputation. It is essential to prove the existence of the
circumstances, could not but have caused the latter factual basis of the damage and its causal relation to
mental anguish, moral shock, wounded feelings and petitioner's acts. In the present case, the records are
social humiliation. bereft of any evidence that the name or reputation of
TEC/TPC has been debased as a result of
petitioner's acts. Besides, the trial court simply
awarded moral damages in the dispositive portion of However:
its decision without stating the basis thereof. 1. In cases where the resulting injury might be
continuing and possible future complications
NOMINAL DAMAGES (CIVIL CODE, ART. directly arising from the injury, while certain to
2221-2223) occur are difficult to predict, temperate damages
can and should be awarded on top of actual or
They are those recoverable where a legal right is compensatory damages. In such cases, there is
technically violated and must be vindicated against no incompatibility between actual and temperate
an invasion that has produced no actual present loss damages when both are provided; or,
of any kind, or where, from the nature of the case, 2. In cases of additional damages to cover
there has been some injury arising from a breach of estimated future cost of proper care where it
contract or legal duty the amount thereof has not would not be equitable for the victim to constantly
been or cannot be shown. (DE LEON, Torts and come to court and invoke their aid in seeking
Damages, supra at 837). adjustments to the compensatory damages
previously awarded, temperate damages are
Purpose: In order that a right of the plaintiff, which appropriate (Ramos v. CA, G.R. No. 124354,
has been violated or invaded by the defendant, may April 11, 2002).
be vindicated or recognized. It is not for the purpose
of indemnifying the plaintiff for any loss suffered by Heirs of the victim of murder are entitled to
him (CIVIL CODE, Art. 2221). Php50,000 as civil indemnity, which is mandatory and
granted without need of any evidence or proof of
However, an award of nominal damages precludes damages other than the commission of the crime
the recovery of actual, moral, and temperate (People v. Cabinan, G.R. No. 176158, March 27,
damages (DE LEON, Torts and Damages, supra at 2007).
845).
Temperate Damages in Lieu of Actual Damages
The law presumes damage although actual or Since the heirs undeniably incurred expenses for the
compensatory damages are not proven (Gonzales v. wake and burial, the Supreme Court awarded
People, G.R. No. 159950, February 12, 2007). temperate damages in the amount of P25,000
pursuant to prevailing jurisprudence, in lieu of actual
Nominal damages are recoverable where a legal right damages as it would be unfair to the victim’s heirs to
is technically violated and must be vindicated against get nothing, despite the death of their kin, for reason
an invasion that has produced no actual present loss alone that they cannot produce receipts (Philippine
of any kind or where there has been a breach of National Railways v. Ethel Brunty, G.R. No. 169891,
contract and no substantial injury or actual damages November 2, 2006).
whatsoever have been or can be shown (Cathay
Pacific Airways v. Reyes, G.R No. 185891, June 26, The court did not award actual damages due to lack
2013). of proof of actual expenses, but instead granted
temperate damages in the amount of P50,000.
TEMPERATE OR MODERATE DAMAGES Temperate damages may be recovered when
(SEE CIVIL CODE, ART. 2224 AND 2225) pecuniary loss has been suffered but its amount
Under Article 2224 of the Civil Code, temperate cannot be proved with certainty (People v. Berondo,
damages may be recovered when the court finds that G.R. No. 177827, March 30, 2009).
some pecuniary loss has been suffered but its
amount cannot, from the nature of the case, be When the crime is heinous, the Supreme Court
proved with certainty. increased the award for mandatory civil indemnity to
P75,000.00 to conform to recent jurisprudence
These are damages, which are more than nominal (People v. Vergara, G.R. No. 177763, July 3, 2013).
but less than compensatory, and may be allowed in
cases where from the nature of the case, definite LIQUIDATED DAMAGES (SEE CIVIL
proof of pecuniary loss cannot be adduced, although CODE, ART. 2226-2228)
the court is convinced that the aggrieved party Those agreed upon by the parties in a contract, to be
suffered some pecuniary loss (Adriano v. Lasala, paid in case of breach thereof.
G.R. No. 197842, October 9, 2013).
PURPOSE: To strengthen the coercive force of the
Temperate and actual damages are mutually obligation by the threat of greater responsibility or
exclusive in that both may not be awarded at the consequences in the event of breach (DE LEON,
same time (People v. Gutierrez, G.R. No. 188602, Torts and Damages, supra at 853).
February 4, 2010).
Liquidated damages, whether intended as an also be iniquitous by a supervening change of
indemnity or a penalty, shall be equitably reduced if circumstances, which makes the amount grossly
they are iniquitous or unconscionable (CIVIL CODE, disproportionate to the damage suffered by the
Art. 2227). creditor. In such cases, the court may reduce the
amount of penalty (ALBANO, Torts and Damages,
Liquidated damages are those agreed upon by the supra at 512).
parties. No proof is necessary. It is not subject to any
contingency or determination as it is already agreed EXEMPLARY OR CORRECTIVE
upon. The reason why there is no need for proof to DAMAGES (CIVIL CODE, ART. 2229-2235)
recover liquidated damages is because the
agreement is the law between the parties (ALBANO, Imposed by way of example or correction for the
Torts and Damages, supra at 512). public good, in addition to the moral, temperate,
liquidated or compensatory damages. It is required by
public policy to suppress wanton acts (AQUINO,
LIQUIDATED DAMAGES V. PENALTY Torts and Damages, supra at 916).
LIQUIDATED PENALTY
DAMAGES Requisites: (ANB)
1. Imposed, by way of example in Addition to
As to Purpose compensatory damages, only after the claimant’s
right to it has been established;
Sum inserted in a Sum inserted in a 2. Not recoverable as a matter of right, their
contract as a measure contract as a punishment determination depending upon the amount of
of compensation for its for default, or by way of compensatory damages that may be awarded;
breach (DE LEON, security for actual and
Torts and Damages, damages which may be 3. The act must be accompanied by Bad faith or
supra at 853). sustained because of done in wanton, fraudulent, oppressive or
non-performance (Id.). malevolent manner (Id. at 917).
As to Nature Exemplary Damages in Delict or Crime
Its essence is a An agreement to pay a Relative to the civil aspect of the case, an aggravating
genuine covenanted stipulated sum on breach circumstance, whether ordinary or qualifying, should
pre-estimate of of contract irrespective of entitle the offended party to an award of exemplary
damages (Id.). the damage sustained damages within the unbridled meaning of Article 2230
(Id.). of the Civil Code (People v. Vergara, G.R. No.
177763, July 3, 2013).
As to Legal Results
Exemplary Damages in Quasi-Delict
There are no difference as far as legal results are It may be awarded if the defendant acted with gross
concerned (Id). negligence (CIVIL CODE, Art. 2232).

As to Necessity of Proof of Damages Exemplary Damages in Contracts and Quasi-

Contracts
In either case, the injured party need not prove his It may be awarded if the defendant acted in a wanton,
damages in order that the sum stipulated may be fraudulent, reckless, oppressive, malevolent manner
demanded (Id.). (CIVIL CODE, Art. 2232).

As to Effect if Principal Obligation is Void ART. 2233 V. ART. 2234 V. ART 2235
Should the principal obligation be void, the ART. 2233 ART. 2234 ART. 2235
stipulation on liquidated damages will also be void;
both damages being accessory obligations to the Exemplary Although the Agreement
principal obligation (CIVIL CODE, Art. 1230). damages amount of to renounce
cannot be exemplary exemplary
recovered as a damages need damages in
The amount of penalty is not determined by the injury matter of right. not be proved, advance
suffered by the creditor, but by what has been agreed This may be plaintiff must show shall be null
upon by the parties who are free to determine such granted at the that he is entitled and void.
amount. The limits of good customs, however, should discretion of to moral,
not be infringed. A penalty would be contrary to good the court even temperate or
customs if it would occasion the economic ruin and if not expressly compensatory
represent an undue exploitation of the debtor. It may pleaded or damages.
 prayed for. LOSS OF EARNING CAPACITY (CIVIL
CODE, Art. 2205, par. 1)
Formula:
OTHER KINDS OF DAMAGES {2/3 x (80–age of death)} x monthly earnings x 12
ART. 2196 ART. 2216 2
(AQUINO, Torts and Damages, supra at 842).
Compensation for This covers damages
Workmen and other awarded when there is Variables considered are:
employees. This covers no proof of pecuniary 1. Life expectancy, computed as:
damages for workmen loss. This is left to the {2/3 x (80 – age at death)} (Id.); and
and other employees in discretion of the court, 2. Net income/earnings – the total of the earnings
case of death, injury or according to the less expenses necessary for the creation of such
illness under special law circumstances of each earnings and less living or other incidental
(e.g., indemnity for case (e.g., damages expenses (Id. at 843).
worker). arising from tort or
crime). The Court considered as an important element in
measuring the loss of earning capacity, the net
When May Exemplary Damages be Imposed? earnings of the deceased as well as the latter’s
1. In criminal offenses, it may be imposed when the potentiality and capacity to increase his future income
crime was committed with one or more (Villa Rey Transit v. CA, G.R. No. L-25499, February
aggravating circumstances; 18, 1970).
2. In quasi delicts, it may be imposed if the
defendant acted with gross negligence; The plaintiff is also entitled to damages for loss of
3. In contracts and quasi-contracts, it may be earning capacity when the defendant’s act or
imposed if defendant acted in wanton, fraudulent, omission resulted in his permanent incapacity. Thus,
reckless, oppressive, or malevolent manner in Borromeo v. Manila Electric Railroad & Light Co.
(JURADO, Civil Law Reviewer, supra at 1315). (G.R. No. 18345, December 5, 1922), the Supreme
Court awarded in favor of the plaintiff an amount for
his loss of earning capacity because he lost his left
DAMAGES IN CASE OF DEATH
foot, and because of such loss, he could no longer be
The amount of damages caused by a crime or quasi- employed as a marine engineer on any vessel
delict shall be at least Php 3,000.00, even though (AQUINO, Torts and Damages, supra at 839-840).
there may have been mitigating circumstances
(CIVIL CODE, Art. 2206; See Summary of Damages Illustration:
pursuant to People v. Jugueta, G.R. No. 202124, In People v. Galvez (G.R. No. 136790, March 26,
April 5, 2016 below). 2001), deceased died at the age of 21 and was
working as a construction worker with a monthly
When the death occurs due to a crime, the following income of P3,262.50.
may be awarded; (1) civil indemnity ex delicto for the
death of the victim; (2) actual or compensatory 2/3 x (80-21) (age of victim at time of death) = 39.33
damages; (3) moral damages; (4) exemplary
damages; (5) temperate damages (People v. Asis, et P3,262.50 x 12 = P39, 150.00 (Gross annual Salary)
al., G.R. No. 177573, July 7, 2010).
P39,150.00 x 0.50 (allocation of living expenses) =
In addition, the defendant shall be liable for: P19,575.00 (Net Income)
1. Loss of the earning capacity of the deceased,
to be paid to the heirs of the deceased; Loss of Earning Capacity
Exception: if the deceased had no earning = 39.33 x P19,575.00
capacity at the time of his death. = 769,884.75
2. The recipient of support who is not an heir called
to the decedent’s inheritance by the law of testate Ascertaining the Amount of Compensation:
or intestate succession, may demand support 1. Determination of the extent to which such
from the person causing the death, for a period capacity has been diminished;
not exceeding 5 years, the exact duration to be 2. Determination of the permanency of the
fixed by the court; and decrease in earning capacity; and
3. The spouse, legitimate and illegitimate 3. The fixing of the amount of money which will
descendants and ascendants of the deceased compensate for the determined extent and length
may demand moral damages (CIVIL CODE, Art. of impairment, including a reduction of the award
2206). to its present worth (DE LEON, Torts and
Damages, supra at 699).
It is not necessary for the plaintiff to be employed at Loss of Earning Capacity of Non-working Victims
the time of the injury for the court to be able to Earning capacity may be impaired even if no actual
compensate him both for the value of the time lost earning is lost in the meantime. In a number of cases,
after the injury and before the trial and the impairment the Supreme Court recognized the entitlement of the
to his capacity to earn money in the future (Id. at 702- heirs of the deceased for loss of earning capacity of
703). the deceased even if the said deceased was not
working at the time of the accident. What is important
Indemnification for loss of earning capacity must be is that there is proof of loss of earning capacity and
duly proven. It partakes the nature of actual not necessarily actual loss of income (Id. at 850).
damages. It refers to the net income, i.e., his total
income net of expenses (People v. Cuenco, G.R. No. Can the Court Award Indemnification for Loss of
143819, January 29, 2002). Earning Capacity Without Adequate Proof?
No. Well settled is the rule that the indemnification for
In computing the loss of earning capacity of the loss of earning capacity must be duly proven. Hence,
victim, several factors are considered besides the the bare testimony of the brother of the deceased is
mathematical computation of annual income times not sufficient proof. Indemnification for loss of earning
life expectancy. Allowances are made for capacity partakes of the nature of actual damages
circumstances which could reduce the computed life which must be duly proven. A self-serving statement,
expectancy of the victim, e.g., nature of the work, his being unreliable is not enough. But for the lost income
life style, age, and state of health prior to his death to be recovered, there must be likewise an unbiased
(ALBANO, Torts and Damages, supra at 430). proof of the deceased’s average, not just gross,
income (People v. Cuenco, G.R. No. 143819,
May the Financial Capacity of a Carrier-Defendant January 29, 2002).
be Considered in the Award of Damages?
Yes. The financial capacity of the carrier may not be LOSS OF PROFITS
necessary in determining whether or not it is liable, Determined by considering the average profit for the
but such financial capacity becomes relevant and preceding years multiplied by the number of years
necessary in determining a reasonable or equitable during which the business was affected by the
amount of compensation or damages that may be wrongful act or breach (Id. at 857) (Consolidated
awarded to the victims should the court be convinced Dairy Products et al. v. CA, G.R. No. 100401, August
that the carrier is liable (Id. at 433). 24, 1992).
GENERAL RULE: Documentary evidence should Injury to business standing
substantiate the claim for damages for loss of earning If a suit is filed by one against another in bad faith,
capacity (AQUINO, Torts and Damages, supra at resulting in besmirched reputation which affected the
846). latter’s business standing, an award of damages is
proper (ALBANO, Torts and Damages, supra at 424).
NOTE: Nothing in the Rules of Court requires that
only documentary evidence is allowed in civil cases.
All that is required is the satisfaction of the quantum
ATTORNEY’S FEES:
of evidence, that is, preponderance of evidence. In 1. Ordinary
addition, the Civil Code does not prohibit a claim for – the attorney’s fee is the reasonable
loss of earning capacity on the basis that it is not compensation paid to a lawyer by his client for
proven by documentary evidence. Testimonial the legal services he has rendered to the latter.
evidence, if not questioned for credibility, bears the
same weight as documentary evidence (Torreon v. BASIS: the fact of his employment by and his
Aparra, Jr., G.R. No. 188493, December 13, 2017). agreement with the client (Traders Royal Bank
Employees Union v. NLRC, G.R. No. 120592,
EXCEPTIONS: March 14, 1997).
1. The award of temperate damages for loss of
earning capacity in lieu of documentary evidence; 2. Extraordinary
2. Non-working victims; – the attorney’s fee is an indemnity for damages
3. The deceased is self-employed and earning less ordered by the court to be paid by the losing party
than the minimum wage under current labor laws; in a litigation to the prevailing party.
and
4. When testimonial evidence sufficiently Attorney’s fees may be awarded when a party is
establishes the loss (e.g., testimony of the compelled to litigate or incur expenses to protect its
corporate officers of employer or the widow of the interest, or when the court deems it just and equitable
victim) (AQUINO, Torts and Damages, supra at (Durban Apartments Corp. v. Pioneer Insurance and
847-848). Surety Corp., GR No. 179419, January 12, 2011).
An award of attorney’s fees is the exception rather 2208). The amount to be awarded is left to the
than the rule, as they are not always awarded every discretion of the courts (AQUINO, Torts and
time a party prevails in a suit because of the policy Damages, supra at 860).
that no premium shall be placed on the right to litigate
(Financial Building Corp v. Rudlin International Corp, Although the institution of a clearly unfounded civil
et al., G.R. No. 164186, October 4, 2010). suit can at times be a legal justification for an award
of attorney's fees, such filing, however, has almost
Payable not to the lawyer but to the client, unless they invariably been held not to be a ground for an award
have agreed that the award shall pertain to the lawyer of moral damages (Expertravel & Tours, Inc. v. Court
as additional compensation or as part thereof of Appeals, G.R. No. 130030, June 25, 1999).
(Benedicto v. Villaflores, G.R. No. 185020, October
6, 2010). Rationale: The law could not have meant to impose
a penalty on the right to litigate. The anguish suffered
The law allows parties to recover attorney’s fees by a person for having been made a defendant in a
under a written agreement. In Barons Marketing civil suit would be no different from the usual worry
Corp. v CA (G.R. No. 126486, February 9, 1998), the and anxiety suffered by anyone who is haled to court,
Court ruled that the attorney’s fees provided in the a situation that cannot by itself be a cogent reason for
contract are in the nature of liquidated damages and the award of moral damages; otherwise, moral
the stipulation therefor is aptly called a penal clause. damages must every time be awarded in favor of the
So long as such stipulation does not contravene law, prevailing defendant against an unsuccessful plaintiff
morals, or public order, it is strictly binding upon the (Id.).
defendant.
When Attorney’s fees may not be recovered:
Plaintiff must allege the basis of his claim for 1. When it is shown that the judgment creditor did
attorney’s fees in the complaint (AQUINO, Torts and not come to court with clean hands; and
Damages, supra at 861). 2. When there is no evidence of fraud and bad faith
on the part of the tortfeasor (Tac-an Danao v. CA,
Basis: Any of the cases provided by law where such GR no. 62251, July 29, 1985).
award can be made, such as those authorized in Art.
2208 of the Civil Code (Construction Development INTEREST (CIVIL CODE, ART. 2209, 2210
Corp. v. Estrella, G.R. No. 147791, September 8, AND 2212)
2006).
1. Breach of obligation consisting of
Grounds for claiming attorney’s fees: (SL UM- 2 payment of sum of money (e.g., a loan or
D2OW2G) forbearance of money):
1. In a Separate civil action to recover civil liability a. The interest due is that stipulated in writing
arising from a crime; and the interest due shall itself earn legal
2. When defendant's act or omission compelled the interest from the time it is judicially
plaintiff to Litigate with third persons or to incur demanded.
expenses to protect his interest;
3. In actions for Legal support; b. The rate of interest shall be 6% per annum,
4. In a clearly Unfounded civil action or proceeding in the absence of express contract as to such
against the plaintiff; rate of interest, including the rate allowed in
5. In criminal cases of Malicious prosecution judgments (BSP Cir. No, 799, series of 2013)
against the plaintiff; computed from default, i.e., from judicial or
6. When exemplary Damages are awarded; extra-judicial demand subject to Art. 1169 of
7. When at least Double judicial costs are awarded; the Civil Code.
8. In any Other case where the court deems it just
and equitable that attorney's fees and expenses 2. Breach of obligation not constituting a
of litigation should be recovered; loan or forbearance of money:
9. In actions for the recovery of Wages of household a. An interest on the amount of damages to be
helpers, laborers and skilled workers; awarded may be imposed at the discretion of
10. In actions for indemnity under Workmen's the court at the rate of six percent (6%) per
compensation and employer's liability laws; or annum.
11. Where defendant acted in Gross and evident bad
faith in refusing to satisfy the plaintiff's valid, just b. No interest shall be adjudged on unliquidated
and demandable claim (CIVIL CODE, Art. 2208). claims or damages, except when or until
demand can be established with reasonable
NOTE: In all cases, the attorney’s fees and expenses certainty.
of litigation must be reasonable (CIVIL CODE Art.
 c. Where the demand is established with
been suffered but its amount
reasonable certainty, the interest shall begin
cannot, from the nature of the
to run from the time the claim is made
case, be proved with certainty
judicially or extrajudicially (Bernal v. Villaflor,
while actual damages must be
G.R. No. 213617, April 18, 2018).
proved with a reasonable degree
of certainty.
Interest due shall earn interest not from default but
from the time of judicial demand (ALBANO, Torts and
Damages, supra at 452).

DAMAGES THAT CANNOT CO-EXIST

DAMAGES REASON
THAT
CANNOT CO-
EXIST

Nominal damages are

recoverable where a legal right
is technically violated and must
be vindicated against an
invasion that has produced no
Nominal actual present loss of any kind or
damages and where there has been a breach
Actual damages of contract and no substantial
injury or actual damages
whatsoever have been or can be
shown but actual damages must
be proved with a reasonable
degree of certainty.

In nominal damages, it is
recoverable where a legal right
is technically violated and must
be vindicated against an
invasion that has produced no
actual present loss of any kind or
Nominal where there has been a breach
damages and of contract and no substantial
Moral damages injury have been or can be
shown but in moral damages, it
must be shown that plaintiff
suffered mental anguish, serious
anxiety, wounded feelings,
moral shock and other similar
injuries.

In nominal damages, it is
recoverable where a legal right
is technically violated and must
Nominal be vindicated against an
damages and invasion that has produced no
Temperate actual present loss of any kind
damages but in temperate damages, it
may be recovered when the
court finds that some pecuniary
loss has been suffered.

Temperate Temperate damages may be

damages and recovered when the court finds
Actual damages that some pecuniary loss has
 In its broad sense, the term “jura regalia” refers to
LAND TITLES AND royal rights, or those rights which the King has by
virtue of his prerogatives (Id.).
DEEDS
CONSTITUTIONAL BASIS
All lands of the public domain, waters, minerals,
coal, petroleum, and other mineral oils, all forces of
LAND TITLE potential energy, fisheries, forests or timber, wildlife,
Is the evidence of the right of the owner or the extent flora and fauna, and other natural resources are
of his interest and by which means he can maintain owned by the State. With the exception of
control and as a rule, assert right to exclusive agricultural lands, all other natural resources shall
possession and enjoyment of the property (PEÑA, not be alienated. The exploration, development, and
Registration of Land Titles & Deeds Revised Edition utilization of natural resources shall be under the full
(2008), p 3 [hereinafter PEÑA, Land Titles and control and supervision of the State (CONST. Art.
Deeds]). XII, Sec. 2, Par. 1).

DEED Both the 1935 and the 1973 Constitutions prohibited

A deed refers to a written document executed in the alienation of all natural resources, except
accordance with law, wherein a person grants or agricultural lands of the public domain. The 1987
conveys to another a certain land, tenements, or Constitution readopted this policy. Indeed, all lands
hereditaments (PEÑA, supra at 4). of the public domain as well as all natural resources
enumerated in the Philippine Constitution belong to
the State (Collado v. CA, G.R. No. 107764, October
4, 2002).
REGALIAN DOCTRINE
Simply means that the State is the original proprietor
of all lands and, as such, is the general source of all
private titles (Republic v. Santos, G.R. No. 180027,
CONCEPT July 18, 2012).
Under the concept of jura regalia, private title to land
must be traced to some grant, express or implied, EFFECTS
from the Spanish Crown or its successors, the All lands of whatever classification and other natural
American Colonial Government, and thereafter, the resources not otherwise appearing to be clearly
Philippine Republic. The belief that the Spanish within private ownership are presumed to belong to
Crown is the origin of all land titles in the Philippines the State, which is the source of any asserted right
has persisted because title to land must emanate to ownership of land (Republic v. Sin, G.R. No.
from some source for it cannot issue forth from 157485, March 26, 2014).
nowhere (AGCAOILI, Property Registration Decree
(Land Titles and Deeds) Revised Edition (2018), p. Accordingly, public lands not shown to have been
3 [hereinafter AGCAOILI, Land Titles and Deeds]). reclassified or released as alienable land or
alienated to a private person by the State remain
part of the inalienable public domain (Republic v. Tri-

DOHN ALFRED E. AQUILIZAN, Over-All Chairperson | NICHOLE VANE B. SANTOS, Chairperson for Academics | RONALYN A.
GACULA, Ad Hoc Director for Bar Matters | MARIELLE CIELO B. BELGIRA, Vice Chairperson for Finance | JUAN IÑIGO S. MIGUEL,
Vice Chairperson for Operations | ALISSA MARIE D.C. DELOS SANTOS, Vice Chairperson for Audit | CORINA R. TAMPUS, Vice
Chairperson for Secretariat | ARVY KEITH N. CHUNG, Vice Chairperson for Logistics | ANTONIO JUN-JUN C. MANALIGOD IV, Vice
Chairperson for Membership | JORDAN N. CHAVEZ, Vice Chairperson for Electronic Data Processing

NOSLEN ANGINEB E. MENDOZA, Subject Chair | KING LAURENZ S. MASILUNGAN, Assistant Subject Chair | ALHEX ADREA M.
PERALTA, Subject Electronic Data Processing | SUBJECT HEADS: JOAN V. LAGRADILLA, Agency & Trusts | QUENNIE IRIS V.
BULATAO, Conflicts of Law | JESSU R. TRINIDAD, Loan and Deposit | SKY BLUE C. SAMSON, Obligations and Contracts |
CHRISTIENNE NATHALIE A. BEROÑA, Persons and Family Relations | KRISTOFFER MONICO S. NG, Property | JULEEN EVETTE
D. MALLARI, Land Titles and Deeds | MARISOL O. SISON, Sales | GEM EDWARD E. AQUINO, Torts | PATRICIA MAE R. FEDERIS,
Succession |

SAMANTHA YVES O. PLACIDO, QUENNIE IRIS V. BULATAO, JESSU R. TRINIDAD, PATRICIA MARIE G. CARLON,
CHARISMA T. CHAN, ROCKYLLE DOMINIQUE L. BALISONG, ROSELLE JUNE G. CEREÑO, MARIANNE HELENE P. REYEG,
VERONICA V. VELASQUEZ, ALYSSA AIMEE S. BATLE, MICHELLE L. DELOS SANTOS, SUSANNA MARTHA B. IBE, KARLA
MARIE C. SANTOS, YUMIKO ANGELIUS M. YOSHIY, MARY JOY B. DELA CRUZ, JESSA A. YALAO., KIEZLLE CAYNE D.
MANALILI, ANNA ROCHELLE D. PAYONGAYONG, MA. NICOLAI M. TORRES and MIKHAILA KLAUDINE A. ROSALES

Atty. JOSEPH FERDINAND DECHAVEZ

Plus Corporation, G.R. No. 150000, September 26, REGALIAN DOCTRINE DOES NOT
2006). NEGATE “NATIVE TITLE”
Applying the Regalian Doctrine, the State owns all When, as far back as testimony or memory goes, the
waters and lands of the public domain, including land has been held by individuals under a claim of
those physically reclaimed. As a general rule, private ownership, it will be presumed to have been
therefore, only the National Government can reclaim held in the same way before the Spanish conquest
foreshore lands and other submerged areas (Cariño v. Insular Government, 212 U.S. 449
(Republic v. Court of Appeals, G.R. No. 103882, (1909)).
November 25, 1998).

Property of the public domain is beyond the

commerce of man and not susceptible of private TITLE
appropriation acquisitive prescription. Occupation
thereof and in the concept of owner, no matter how
long, cannot ripen into ownership and be registered
as a title (Republic v. Candy Maker, Inc., G.R. No. TITLE
163766, June 22, 2006). The right of the owner or the extent of his interest
and by means of which he can maintain control, and
That land has been removed from the scope of the as a rule, assert his right to the exclusive possession
Regalian Doctrine and reclassified as part of the and enjoyment of the property (NOBLEJAS,
public domain's alienable and disposable portion Registration of Land Titles and Deeds, (2007) p. 6
cannot be assumed or implied. The prevailing rule is [hereinafter NOBLEJAS, Land Titles and Deeds]).
that the applicant must clearly establish the
existence of a positive act of the government CERTIFICATE OF TITLE
(Republic v. Jabson, G.R. No. 200223, June 6, A mere evidence of ownership. It is not a source of
2018). The burden of proof in overcoming the right but merely confirms or records a title already
presumption of State ownership of the lands of the existing and vested (Tiro v. Phil. Estates Corp., G.R.
public domain is on the person applying for No. 170528, August 26, 2008).
registration (or claiming ownership), who must prove
that the land subject of the application is alienable or
disposable. To overcome this presumption, TITLE V. CERTIFICATE OF TITLE
incontrovertible evidence must be established that TITLE CERTIFICATE OF
the land subject of the application (or claim) is TITLE
alienable or disposable (Diaz-Enriquez v. Director of
Lands, G.R. No. 168065, September 6, 2017). Constitutes a just Mere evidence of
cause of exclusive ownership; not the title to
Act No. 2874 (Second Public Land Act), possession of which is the land itself.
promulgated in 1919 and reproduced in Section 6 of the foundation of
CA No. 141 (Public Land Act of 1936), gave the ownership of property.
Executive Department, through the President, the (Castillo v. Escutin, G.R No. 171056, March 13,
exclusive prerogative to classify or reclassify public 2009).
lands into alienable or disposable, mineral or forest.
Since then, courts no longer had the authority,
whether express or implied, to determine the
MODES OF ACQUIRING TITLE: (PRADA-
classification of lands of the public domain VINE)
(Secretary of the DENR v. Yap, G.R. No. 167707, 1. Public Grant
October 8, 2008). – By administrative process, the government
transfers land to a private individual by the
EXCEPTION TO THE REGALIAN issuance of sales patent or special patent (CA
DOCTRINE No. 141, also known as The Public Land Act, as
amended).
It was ruled that any land under native title, or those
that should have been in the possession of an
Commonwealth Act No. 141 (CA 141), also
occupant and of his predecessors-in-interest since
known as the Public Land Act, remains to this
time immemorial is an exception to the Regalian
day the existing general law governing the
Doctrine. Such possession would justify the
classification and disposition of lands of the
presumption that the land had never been part of the
public domain, other than timber and mineral
public domain or that it had been private property
lands. Under the Regalian Doctrine embodied in
even before the Spanish conquest (Cariño v. Insular
our Constitution, land that has not been acquired
Government, 212 U.S. 449 (1909)).
 from the government, either by purchase, grant Prescription is concerned with lapse of time in
or any other mode recognized by law, belongs the manner and under conditions laid down by
to the State as part of the public domain. No law, namely, that the possession should be in
public land can be acquired by private persons the concept of an owner, public, peaceful,
through any other means, and it is indispensable uninterrupted, and adverse. Possession is open
that the person claiming title to public land when it is patent, visible, apparent, notorious
should show that his title was acquired through and not clandestine. It is continuous when
purchase or grant from the State, or through any uninterrupted, unbroken and not intermittent or
other mode of acquisition recognized by law occasional; exclusive when the adverse
(Republic v. Heirs of Juan Fabio, G.R. No. L- possessor can show exclusive dominion over
65818, May 13, 1991). the land and an appropriation of it to his own use
and benefit; and notorious when it is so
2. Reclamation conspicuous that it is generally known and
– It is the method of filling submerged land by talked of by the public or the people in the
deliberate acts and reclaiming title thereto neighborhood (Republic v. Northern Cement
(NOBLEJAS, supra at 42). Corp., G.R. No. 200256, April 11, 2018).

Under R.A. 1899, also known as An Act Just Title

Authorizing The Reclamation Of Foreshore It means “with color of title and good faith” or con
Lands By Chartered Cities And Municipalities justo titulo y buenafe (Alba v. CA, G.R. No.
June 22, 1957, the National Government 120066, September 9, 1999).
granted to all municipalities and chartered cities
the authority to undertake and carry out at their For purposes of prescription, there is just title
own expense the reclamation by dredging, when the adverse claimant came into
filling, or other means, of any foreshore lands possession of the property through one of the
bordering them. Any and all such land reclaimed recognized modes of acquisition of ownership or
will become property of the respective other real rights but the grantor was not the
municipalities or chartered cities; but the new owner or could not transmit any right (Imuan v.
foreshore along the reclaimed areas shall Cereno, G.R. No. 167995, September 11,
continue to become property of the National 2009).
Government.
The rule is well-settled that prescription does not
NOTE: Under R.A. 1899, foreshore lands should run against registered land. Thus, under Sec. 47
not be construed to include submerged areas. of P.D. 1529, otherwise known as the Property
(Republic v. CA and Republic Real Estate Corp., Registration Decree, it is specifically provided
G.R. No. 103882, November 25, 1988). that "no title to registered land in derogation of
that of the registered owner shall be acquired by
3. Acquisitive Prescription prescription or adverse possession" (Spouses
– Must be in the concept of an owner (CIVIL Ocampo v. Heirs of Dionisio, G.R. No. 191101,
CODE, Art. 525). A person acquires land title by October 1, 2014). A title, once registered, cannot
acquisitive prescription if he has been in open, be defeated even by adverse, open and
continuous, exclusive, and notorious possession notorious possession. The certificate of title
for a period prescribed by law. issued is an absolute and indefeasible evidence
of ownership of the property in favor of the
a. Ordinary Prescription – possession in person whose name appears therein. It is
good faith and with just title for ten (10) binding and conclusive upon the whole world. All
years (CIVIL CODE, Art. 1134) persons must take notice and no one can plead
b. Extraordinary Prescription – adverse ignorance of the registration (Dr. Rellin v.
possession without need of title or of good Belarmino, G.R. No. 153691, July 19, 2006).
faith for thirty (30) years (CIVIL CODE, Art.
1137) 4. Descent or Devise
a. By Descent – acquired by virtue of
Open, continuous, and exclusive possession of hereditary succession to the estate of a
land classified as alienable and disposable for at deceased owner; or
least thirty years segregates the land from the b. By Devise – succession need not be in favor
public domain and ipso jure converts the same of a relative (NOBLEJAS, supra at 42).
into private property (Buenaventura v. Republic,
G.R. No. 166865, March 2, 2007). 5. Accretion
– To the owners of lands adjoining the banks of
rivers belong the accretion which they gradually
 receive from the effects of the currents of the before the Spanish Conquest (IPRA, Sec. 3,
waters. (CIVIL CODE, Art. 457). par.1).

The alluvial property obtained due to accretion The rights of Indigenous Cultural
is not automatically covered by a Torrens title. Communities/Indigenous People to their
Ownership of a piece of land is one thing, and ancestral domains (which also include ancestral
registration under the Torrens system of that lands) by virtue of native title shall be recognized
ownership is quite another. To be covered by the and respected (IPRA, Sec. 11).
Torrens title, the alluvial property must be placed
under the operation of the registration laws The presumption of the land “never to have been
(Grande v. CA, G.R. No. L-17652, June 30, public land” arises when the title is held (a) as
1962). far back as testimony or memory went and (b)
under a claim of private ownership (Cruz v. Sec.
Accretion formed as a result of dumping of of Environmental and Natural Resources, G.R.
sawdust is part of public domain. The word No. 135385, December 6, 2000).
“current” indicates the participation of the body
of water in the ebb and flow of waters due to high 9. Emancipation Patent or Grant
and low tide (Vda. De Nazareno v. CA, G.R. No. – By virtue of Presidential Decree No. 27, tenant-
98405, June 26, 1996). farmers are deemed owners of the land they till.
This is for the purpose of ameliorating the said
6. Voluntary Transfer plight of tenant-farmers (PEÑA, supra at 41).
– The transfer is given by the voluntary
execution of a deed of conveyance in certain NOTE: P.D No. 27 has been superseded by the
prescribed form, completed by the recording or Comprehensive Agrarian Reform Law (CARL)
registration thereof because registration is the approved on June 10, 1998.
operative act that binds and affects third
persons. Nonetheless, the contract is binding
between parties, their heirs, assignees and
successors in interest (CIVIL CODE, Art. 1311). PAST AND PRESENT
Persons Bound Notwithstanding Lack of LEGISLATION ON LAND
Registration:
a. The grantor;
REGISTRATION
b. The grantor’s heirs and devisees; and
c. Third persons having actual notice or
knowledge thereof (PEÑA, supra at 48). ● When the Philippines was discovered and
conquered by Spain, the Law of the Indies was
NOTE: Although the cause is not stated in the passed ordering that all lands became the
contract, it is presumed that it exists and is exclusive patrimony and dominion of the Spanish
lawful, unless the debtor proves the contrary Crown.
(CIVIL CODE, Art. 1354). ● Subsequently, the Ley Hipotecaria or the
Mortgage Law of 1893, otherwise known as
7. Involuntary Alienation the “Spanish Mortgage Law” was established
– This does not require the consent or providing a more systematic and scientific mode
cooperation of the owner of the land and is of registering titles and deeds and other claims of
usually carried out against his will. Usual forms ownership.
of involuntary alienation are expropriation or ● In 1984, the Spanish Mortgage Law and the Law
condemnation proceedings. Other examples are of Indies were partly amended by the Royal
escheat, reversion, seizure based on tax Decree of 1894 otherwise known as the
delinquency, levy on attachment, and levy on “Maura Law” requiring that all agricultural lands
execution (NOBLEJAS, supra at 41). must be adjusted or registered otherwise the
same shall revert back to the State.
8. Native Title ● During the American regime, the system of land
– Refers to pre-conquest rights to lands and registration was simplified. The Philippine
domains which, as far back as memory reaches, Commission enacted Act No. 496 otherwise
have been held under a claim of private known as the “Land Registration Act of 1903”
ownership by Indigenous Cultural which was approved on November 6, 1902 and
Communities/Indigenous People, have never became effective on January 1, 1903 placing all
been public lands and are thus indisputably grants of public land under the coverage of the
presumed to have been held that way since Torrens System of Property Registration. It also
 created the “Court of Land Registration” which the two relates to the transitory provisions on the
had exclusive jurisdiction to hear, determine, rights of American citizens and corporations
adjudicate and execute applications for original during the Commonwealth period at par with
registration. Filipino citizens and corporations.
● On February 11, 1913, Act No. 2259 otherwise ● Under Sec 103 of PD No. 1529 or the Property
known as “Cadastral Act of 1913” was enacted Registration Decree, it is provided that whenever
as supplement of Act No 496. Section 5 of the public land is alienated, granted, or conveyed to
said Act provides that when, in the opinion of the any person by the government, the same shall be
President, the public interest requires that title to brought forthwith under the operation of the
any lands be settled adjudicated, he shall order Decree.
the Director of Lands to make a survey thereof,
with notice to all persons claiming an interest
therein. Thereafter, the Director of Lands,
represented by the Solicitor General, shall LAND REGISTRATION
institute registration proceedings by filing a
petition in the proper court against the holders,
claimants, possessors, or occupants of such
lands, stating that the interests require that the LAND REGISTRATION
titles to such lands be settled and adjudicated.
A judicial or administrative proceeding, whereby a
● On June 11, 1978, Presidential Decree No.
person’s claim of ownership over a particular land is
1529 now known as “Property Registration
determined and confirmed or recognized, so that
Decree” was approved and enacted to update
such land and the ownership thereof may be
Land Registration Act and to codify various laws
recorded in a public registry.
relative to registration of property and to facilitate
effective implementation of the said laws. It
supersedes all other laws relative to registration CONCEPT AND DEFINITION
of property (Director of Lands vs Santiago, G.R. To register is to record or annotate. American and
No. L-41278, April 15, 1988). Spanish authorities are unanimous on the meaning
● The Decree substantially incorporated both the of the term "to register" as "to enter in a register; to
substantive and procedural aspects of the Land record formally and distinctly; to enroll; to enter in a
Registration Act of 1902 and widened the horizon list."
of the coverage to include: Judicial confirmation
of imperfect or incomplete titles (Section 14 In general, registration refers to any entry made in
paragraph 1); Cadastral Proceedings (Section the books of the registry (now Electronic Primary
51-58); Voluntary and Involuntary (Section 51- Entry Book [EPEB]), including both registration in its
77); the Certificates of Land Transfer and ordinary and strict sense, and cancellation,
Emancipation Patents (Section 104-106, PD 27); annotation, and even the marginal notes. In strict
the Reconstitution of Lost or Destroyed Titles acceptation, it pertains to the entry made in the
(Section 110); and the consulta (Section 117, PD registry which records solemnly and permanently
1529) (MOGELLO, Guidelines and Procedures in the right of ownership and other real rights. Simply
Land Titles and Deeds, 2019 Edition). stated, registration is made for the purpose of
notification (Cabiling v. Fernandez, G.R. No.
LAND OF PUBLIC DOMAIN 183133, July 26, 2010).
● In 1903, the United States colonial government,
The mere presentation to the office of the Register
through the Philippine Commission, passed Act
of Deeds of a document on which acknowledgement
No. 926, the first Public Land Act. The law
of receipt is written is not equivalent to recording or
governed the disposition of lands of the public
registering the real property (Po Sun Tun v. Price
domain.
and The Provincial Government of Leyte, G.R. No.
● Act No. 926 was superseded in 1919 by Act No. 31346, December 28, 1929).
2874, the second Public Land Act. This new
law was passed under the Jones Law. It was
more comprehensive in scope but limited the
exploitation of agricultural lands to Filipinos and
Americans and citizens of other countries which
gave Filipinos the same privileges.
● After the passage of the 1935 Constitution, Act
No. 2874 was amended in 1936 by CA No. 141,
the present Public Land Act approved on
November 7, 1936, which is essentially the same
as Act No. 2874. The main difference between
 REGISTRATION OF TITLE V. LAWS IMPLEMENTING LAND
RECORDING OF EVIDENCE REGISTRATION
REGISTRATION OF RECORDING OF 1. Property Registration Decree (P.D. No. 1529, as
TITLE EVIDENCE amended);
2. Cadastral Act (Act N. 2259, as amended);
State provides a public Involves the recording of 3. Public Land Act (C.A. No. 141, as amended);
record of the title itself deeds of conveyance 4. Emancipation Patent or CARP of 1972 (P.D. No.
upon which a and other instruments, 27);
prospective purchaser without guaranteeing the 5. Comprehensive Agrarian Reform Law of 1988
or someone else title, leaving to the (R.A.6657, as amended); and
interested may rely prospective purchasers 6. Indigenous Peoples Rights Act or IPRA of 1997
or other persons (R.A. 8371).
interested to examine
the instruments in the NATURE OF LAND REGISTRATION
records and formulate Judicial proceedings for the registration of lands
their own conclusions as throughout the Philippines shall be in rem and shall
to their effect on the title. be based on the generally accepted principles
(PEÑA, supra at 7). underlying the Torrens system (P.D. 1529, Sec. 2,
Par. 1).
SYSTEMS OF REGISTRATION IN THE
Jurisdiction in rem cannot be acquired unless there
PHILIPPINES: (STU) be a constructive seizure of the land through
1. System under the Spanish Mortgage Law; publication and service of notice (Republic v. CA and
2. Torrens System; and Ribaya, G.R. No. 113549, July 5, 1996).
3. System of Recording for Unregistered Land
(PEÑA, supra at 4). PURPOSES OF LAND REGISTRATION
(QC-NHP-MEG)
REGISTRATION UNDER THE SPANISH
1. To Quiet title to land and stop forever any
MORTGAGE LAW DISCONTINUED question as to the legality of said title (Legarda
P.D. 892 was issued decreeing the discontinuance v. Saleeby, G.R. No. L-8936, October 2, 1915);
of the system of registration under the Spanish 2. To serve as a Constructive notice to all persons
Mortgage Law and the use of Spanish Title as from the time of such registering, filing or
evidence in land registration proceedings entering of every conveyance, mortgage, lease,
(AGCAOILI, Land Titles and Deeds (2018), p. 30). lien, attachment, order, judgment, instrument, or
entry affecting registered land (P.D. 1529, Sec.
NOTE: Lands granted under Spanish Mortgage 52);
Law, which are not yet covered by certificate of title 3. To Notify and protect the interests of strangers
under Torrens System are considered as to a given transaction, who may be ignorant
unregistered lands (P.D. 1529, Sec.3). thereof (Casica v. Villasoca, G.R. No. L-9590,
April 30, 1957);
Hereafter, all instruments affecting lands originally 4. To enable every registered owner and every
registered under the Spanish Mortgage Law may be subsequent purchaser of registered land taking
recorded under Section 113 of this Decree, until the a certificate of title for value and in good faith to
land shall have been brought under the operation of Hold the same free from all encumbrances,
the Torrens Title. except those registered (P.D. 1529, Sec. 44);
5. To Prevent fraudulent transactions. No voluntary
The books of registration for unregistered lands instrument shall be registered by the Register of
provided under Section 194 of the Revised Deeds, unless the owner's duplicate certificate
Administrative Code, as amended by Act No. 3344, is presented with such instrument (P.D. 1529,
shall continue to remain in force; provided, that all Sec. 53);
instruments dealing with unregistered lands shall 6. To enable the Register of Deeds to Maintain a
henceforth be registered under Sec 113 of this repository (Primary Entry Book) of all
Decree (MOGELLO, Guidelines and Procedures in instruments affecting registered land (P.D. 1529,
Land Titles and Deeds (2019), p. 10). Sec. 56);
7. To issue a certificate of title to the owner, which
shall be the best Evidence of his ownership of
the land described therein (Lee Tek Sheng v.
CA, G.R. No. 115402, July 15, 1998); and
8. To Guarantee the integrity of land titles and to BURDEN OF PROOF
protect their indefeasibility once the claim of The burden of proof in land registration cases rests
ownership is established and recognized on the applicant who must show clear, positive, and
(Traders Royal Bank v. CA. G.R. Nos. 114299 convincing evidence that his alleged possession and
and 118862. September 24, 1999). occupation were of the nature and duration required
by law. Bare allegations, without more, do not
NOTE: Registration does not vest title. It is not a amount to preponderant evidence that would shift
mode of acquiring ownership but is merely evidence the burden to the oppositor (Republic v. Enciso, G.R.
of such title over a particular property. It does not No. 160145, November 11, 2005).
give the holder any better right than what he actually
has, especially if the registration was done in bad
faith. The effect is that it is, as if, no registration was
made at all (Avila v. Tapucar, G.R. No. L-45947,
August 27, 1991). TORRENS SYSTEM
It is emphasized that the registration of a patent
under the Torrens System merely confirms the
registrant's title. It does not vest title where there is TORRENS SYSTEM
none because registration under this system is not a A system of registration of transaction with interest
mode of acquiring ownership (Heirs of Spouses De in land whose declared object is, under government
Guzman v. Heirs of Bandong, G.R. No. 215454, authority, to establish and certify to the ownership of
August 9, 2017). Registration does not give the an absolute and indefeasible title to realty, and to
registrant a better right than what he had prior to simplify its transfer (AGCAOILI, supra at p. 9-10).
registration (Duque-Rosario v. Banco Filipino
Savings and Mortgage Bank, G.R. No. 140528, Nature: It is judicial in nature (P.D. 1529, Sec. 2).
December 7, 2011).
HISTORY AND INTRODUCTION
Where a document so registered is invalid or legally It was devised and first introduced in South Australia
defective, registration will not in any way render it by Sir Robert Richard Torrens in 1857. It was
valid or cure its defect (Santos v. Robledo, G.R. No. introduced in the Philippines by Act No. 496, which
L-9197, October 22, 1914). took effect on January 1, 1903 (Sotto v. Sotto, G.R.
No. 17768, September 1, 1922).
EFFECTS OF REGISTRATION:
1. Registration in the public registry is notice to the It was later amended and superseded by P.D. 1529,
whole world; which took effect on June 11, 1978, otherwise known
2. The act of registration is the operative act to as the Property Registration Decree. Its object is
convey or affect the land insofar as third persons to do away with the delay, uncertainty, and expense
are concerned; and of the old conveyancing system. It updated the Land
3. While registration operates as a notice of the Registration Act and codified the various laws
deed, contract, or instrument to others, it does relative to registration (AGCAOILI, supra at 20).
not as to its validity nor converts an invalid
instrument into a valid one; neither does it ADVANTAGES OF THE TORRENS
recognize a valid and subsisting interest in the SYSTEM: (PRIMEA-MAKGITS)
land (AGCAOILI, supra at 44). 1. Protects against encumbrances not noted on the
Torrens certificate;
ADVANTAGES OF REGISTRATION: (SP- 2. Reduces records enormously;
SiR-B): 3. Instantly reveals ownership;
1. Secures title; 4. Makes fraud almost impossible;
2. Protects against fraud; 5. Eliminates repeated examination of titles;
3. Simplifies dealings; 6. Abolishes endless fees;
4. Restores the estates to its just value, whose 7. Makes possible the transfer of titles or of loans
depreciation is caused by some blur, technical within the compass of hours instead of a matter
defect; and of days and weeks;
5. Bars the recurrence of faults in the title (Legarda 8. Assures;
v. Saleeby, G.R. No. L-8936, October 2, 1915). 9. Keeps up the system without adding to the
burden of taxation (because the beneficiaries
pay the fees);
10. Gives practically eternal title as the state insures
perpetually (PEÑA, supra at 45);
11. It eliminates Tax titles; and 3. Title to the land becomes Imprescriptible; (P.D.
12. It furnishes State title insurance instead of 1529, Sec. 47);
private title insurance. 4. The land becomes Incontrovertible and
indefeasible (P.D. 1529, Sec. 32); and
The purpose of land registration is not the 5. The certificate of title is not subject to Collateral
acquisition of title but only the registration of title, attack. (P.D. 1529, Sec. 48).
which the applicant already possessed over the
land. Registration was never intended as a means of REGISTRATION UNDER ACT NO. 3344
acquiring ownership (Republic v. CA, G.R. No. L- INEFFECTIVE AGAINST THIRD
43105, August 31, 1984).
PERSONS
PURPOSES OF THE TORRENS Section 194 of the Revised Administrative Code, as
amended by Act No. 3344, provides for the
SYSTEM: (QUIPPERS) registration of deeds or instruments relating to lands
1. To Quiet title to land; to put a stop forever to any not registered under the Torrens system. If a parcel
question of the legality of the title, except claims of land covered by Torrens title is sold, but the sale
which were noted at the time of registration, in is registered under Act No. 3344 and not under the
the certificate, or which may arise subsequent Land Registration Act, the sale is not considered
thereto (Legarda v. Saleeby, G.R. No. L-8936, registered and the registration of the deed does not
October 2, 1915); operate as constructive notice to the whole world
2. To relieve the land of Unknown liens or claims, (Melencion v. CA, G.R. No. 148846, September 25,
just or unjust, against it except Statutory Liens 2007).
under Section 44 of P.D. 1529;
3. To create Indefeasible and imprescriptible title REGISTRATION UNDER THE TORRENS
binding the whole world (NOBLEJAS, supra at
3);
SYSTEM A PROCEEDING IN REM
4. To Prevent fraudulent claims; A proceeding in rem is when the object of the action
5. To provide means of Publication or notice to is to bar indifferently all who might be minded to
third persons; make an objection of any sort against the right
6. To Establish priority in right. – “First in Time, sought to be established, and if anyone in the world
Stronger in Right” (Primus Tempore, Potior has a right to be heard on the strength of alleging
Jure); facts which if true, shows an inconsistent interest
7. To facilitate transactions relative thereto by (AGCAOILI, supra at 22).
giving the public the right to Rely upon the face
of the Torrens certificate of title and to dispense A land registration is a proceeding in rem, and
with the need of inquiring further, except when jurisdiction in rem cannot be acquired unless there
the party concerned has actual knowledge of be constructive seizure of the land through
facts and circumstances that should imply a publication and service of notice (Republic v. CA,
reasonably cautious man to make such further G.R. No. 113549, July 5, 1996).
inquiry; and
8. To provide Stability to land titles (AGCAOILI, Registration under the Torrens System constitutes,
Land Titles and Deeds, supra at 10-12). at the very least, constructive notice to any boundary
owner of who is his neighbor (Francisco v. CA, G.R.
NOTE: Registration is not equivalent to legal No. L-35787, April 11, 1980).
title. (Wee v. Mardo, G.R. No. 202414, June 4,
2014) TORRENS TITLE
A Torrens title is the certificate of ownership issued
Under the Torrens system, registration only under the Torrens system of registration by the
gives validity to the transfer or creates a lien government, through the Register of Deeds, naming
upon the land. It merely confirms, but does not and declaring the owner in fee simple of the real
confer, ownership (Lu v. Manipon, G.R. No. property described therein, free from all liens and
147072, May 7, 2002). encumbrances except as may be expressly noted
thereon or otherwise reserved by law (ALBANO,
EFFECTS OF ISSUANCE OF TITLE: Civil Law Reviewer Revised Edition (2013), p. 798
(TRI-IC) [hereinafter ALBANO, Civil Law Reviewer]).
1. The land is placed under the operation of
Torrens System; (P.D. 1529, Sec. 3); Legally defined, a certificate of title is the transcript
2. Land is Relieved from all claims except those of decree of registration made by the Register of
noted thereon and provided by law; (P.D. 1529, Deeds (Manotok IV v. Heirs of Homer Barque, G.R.
Sec. 46);
Nos. 162335 and 162605, December 18, 2008, registration of title to lands, including improvements
citing PNB v. Tan Ong Zse). and interests therein, and over all petitions filed after
original registration of title, with power to hear and
Probative Value: Torrens Title may be received in determine all questions arising upon such
evidence in all courts of the Philippines, and shall be applications or petitions (MOGELLO, Guidelines and
conclusive as evidence with respect to the Procedures in Land Titles and Deeds (2019), p. 8).
ownership of the land described therein and other
matters which can be litigated and decided in land EXCEPTION: (Delegated Power)
registration proceedings (AGCAOILI, supra at 12). The Metropolitan Trial Courts (MeTCs); Municipal
Courts in Cities (MTCCs); Municipal Trial Courts
TWO TYPES OF TORRENS (MTCs); Municipal Circuit Trial Courts (MCTCs)
CERTIFICATE OF TITLE: have jurisdiction to hear and determine cadastral or
land registration cases by virtue of the delegated
1. Original Certificate of Title (OCT) jurisdiction granted by the Supreme Court (Section
– The first title issued in the name of the 34, B.P. Blg. 129 as amended by R.A. No. 7691)
registered owner by the Register of Deeds based on the following instances:
covering a parcel of land, which had been
registered under the Torrens System by virtue of 1. Where the lot sought to be registered is not
a judicial or administrative proceeding. the subject of controversy or opposition; or
2. Where the lot is contested but the value
It consists of one original copy filed in the thereof does not exceed P100,000.00, such
Register of Deeds, and the owner’s duplicate value to be ascertained by the affidavit of the
certificate delivered to the owner (P.D. 1529, claimant or by the agreement of the
Sec. 39). respective claimants, if there be more than
one, or from the corresponding tax
2. Transfer Certificate of Title (TCT) declaration of the real property.
– The title issued by the Register of Deeds in
favor of a transferee to whom the ownership of VENUE
a registered land has been transferred by any
legal mode of conveyance (e.g. sale, donation). Actions affecting title to or possession of real
It also consists of an original and an owner’s property, or interest therein shall be commenced and
duplicate certificate. (P.D. 1529, Sec. 43). tried in the proper court which has jurisdiction over
the area wherein the real property involved , or a
portion thereof, is situated (RULES OF COURT,
AGENCIES IMPLEMENTING LAND RULE 4, Sec. 1).
REGISTRATION PROCEEDINGS UNDER
THE TORRENS SYSTEM: HEARING
1. Courts (RTC acting as Land Registration Court); Applications for registration shall be heard in the
2. Department of Environment and Natural regional trial court or, in proper cases, in first level
Resources (DENR); courts, in the same manner and shall be subject to
3. Department of Justice (DOJ) through the Land the same procedure as established in the Property
Registration Authority (LRA) and its Register of Registration Decree (AGCAOILI, supra at 173).
Deeds (RD);
4. Department of Agrarian Reform (DAR); and NOTE: While a referee can receive evidence and
5. Department of Agriculture (DA). objections, it has no power to rule on the case. Its
main duty is to receive evidence and submit its
findings and recommendations to the court (P.D.
1529, Sec. 27).
JURISDICTION,
HEARING, JUDGMENT JUDGMENT
All conflicting claims of ownership and interest in the
IN ORDINARY LAND land subject of the application shall be determined
REGISTRATION by the court (P.D. 1529, Sec. 29).

The court is now authorized to hear and decide not

only non-controversial cases but even contentious
JURISDICTION issues which used to be beyond its competence
(Ligon v. CA, G.R. No. 107751, June 1, 1995).
GENERAL RULE: The Court of First Instance (now
the Regional Trial Courts) shall have exclusive
jurisdiction over all applications for original
P.D. 1529 eliminated the distinction between the Functions of the LRA: (SAC)
general jurisdiction vested in the Regional Trial a. Extend Speedy and effective assistance to
Court and the limited jurisdiction formerly conferred Department of Agrarian Reform, the Land
upon it when acting merely as cadastral court. Thus, Bank and other agencies in the
the court may resolve issues other than those strictly implementation of the land reform program;
pertaining to land registration in cases (ALBANO, b. Extend Assistance to courts in ordinary and
supra at 817). cadastral registration proceedings; and
c. Be the Central repository of records relative
DUTIES OF THE COURT: to original registration of lands titled under
1. Render judgment, declare the same final, and the Torrens System, including subdivision
cause the decision’s entry (P.D. 1529, Sec. 29); and consolidation plans of titled lands (P.D.
and 1529, Sec. 6 (2)).

2. Order the LRA to issue a decree of registration Functions of the LRA Administrator
(P.D. 1529, Sec. 30). (formerly Commissioner):
a. Issue decrees of registration pursuant to
Only claimed property or a portion thereof can be final judgments of the courts in land
adjudicated. If the applicant asserts ownership to registration proceedings and cause the
and submits evidence only for a portion of a lot, the issuance by the Registers of Deeds of the
inclusion of the portion not claimed by the applicant corresponding certificates of title;
is void and of no effect for a land registration court b. Exercise supervision and control over all
has no jurisdiction to decree a lot to a person who Registers of Deeds and other personnel of
puts no claim to it and who never asserted any right the Commission;
of ownership over it (Almarza v. Arguelles, G.R. No. c. Resolve cases elevated en consulta by or
L-49250, December 21, 1987). on appeal from the decision of the Register
of Deeds;
The court may reverse its decision even after the d. Exercise executive supervision over all
LRA has already issued the decree of registration clerks of court and personnel of the courts
(Gomez v. CA, G.R. No. 77770, December 15, with respect to the discharge of their duties
1988). and functions in relation to the registration of
lands;
The judgment becomes final upon the lapse of e. Implement all orders, decisions, and
fifteen (15) days counted from receipt of notice of the decrees promulgated relative to the
judgment (B.P. 129, Sec. 39; Heirs of Cornelio registration of lands and issue, subject to the
Labrada v. Monsanto, G.R. No. L-66242, August 31, approval of the Secretary of Justice, all
1984). However, notwithstanding the lapse of the 15- needful rules and regulations; and
day period from receipt of judgment by the parties, f. Verify and approve subdivision,
the court continues to retain control over the case consolidation, and consolidation-subdivision
until the expiration of one (1) year after the entry of survey plans of properties titled under Act
the decree of registration by the LRA (Republic v. No. 496 and P.D. 1529 except those
Associacion Benevola de Cebu, G.R. No. 77243, covered by P.D. 957; (P.D. 1529, Sec. 6);
October 26, 1989; P.D. 1529, Sec. 32). and
g. Act as Clerk of Court in land registration
proceedings.

LAND REGISTRATION NOTE: Recognizing the overlapping of

functions, P.D. 239, dated July 9, 1973, was
COMMISSION implemented stating that the LRA was no longer
authorized to approve original survey plans for
original registration. Thus, the Land
Management Bureau (LMB) is now authorized to
1. LAND REGISTRATION AUTHORITY verify and approve original survey plans
(LRA) (MOGELLO, Guidelines and Procedures in Land
Titles and Deeds (2019), p. 22).
Agency of the government charged with the
execution of laws relative to the registration of Ministerial Duty of LRA to Issue Decree of
lands and under executive supervision of the Registration
DOJ (P.D. 1529, Sec. 4). The duty of the LRA to issue a decree of
registration is ministerial only in the sense that
they act under the orders of the court, and the
 decree must be in conformity with the decision based on the name of the registered owner
of the court and with the date found in the record. (MOGELLO, Guidelines and Procedures in Land
Titles and Deeds (2019), p. 14).
However, if they are in doubt upon any point in
relation to the preparation and issuance of the MINISTERIAL DUTY OF THE RD TO
decree or if they have personal knowledge of the REGISTER
fact that the property subject of the decision is
already covered by a decree of registration, it is The function of the Register of Deeds with reference
their duty to refer the matter to the court. to the registration of deeds, encumbrances,
(AGCAOILI, supra at 41). instruments, and the like is ministerial in nature
(Baranda v. Gustilo, G.R. No. 81163, September 26,
NOTE: The issuance by the Land Registration 1988).
Authority Officials of a decree of registration is not
purely ministerial in cases where they find that such The Register of Deeds is entirely precluded from
would result to the double titling of the same parcel exercising his personal judgment and discretion
of land (MOGELLO, Guidelines and Procedures in when confronted with the problem of whether to
Land Titles and Deeds (2019), p. 14). register a deed or instrument on the ground that it is
invalid. The determination of whether a document is
valid or not is a function that belongs properly to a
2. REGISTER OF DEEDS (RD) court of competent jurisdiction (AQUINO, supra at
The public repository of records of instruments 11).
affecting registered or unregistered lands and
chattel mortgages in the province or city wherein The law on registration does not require that only
such office is located (P.D. 1529, Sec. 10). valid instruments shall be registered. If the purpose
of registration is merely to give notice, then
NOTE: There shall be at least one Register of questions regarding the effect or invalidity of
Deeds for each province and one for each city instruments are expected to be decided after, not
(P.D. 1529, Sec. 7). before registration. It must follow as a necessary
consequence that registration must first be allowed,
Functions and Duties of the Register of and its validity or effect is litigated afterwards
Deeds: (ISDAK) (Almirol v. The Register of Deeds of Agusan, G.R.
a. Immediately register an instrument No. L-22486, March 20, 1968).
presented for registration dealing with real
or personal property, which complies with all INSTANCES WHEN RD MAY DENY
the requisites for registration;
b. See to it that the instrument bears the proper
REGISTRATION: (NO³-MORE-CIV-PRE)
documentary and science stamps and that 1. When the document is Not verified and
the same are properly cancelled; acknowledged before a notary public or other
c. Deny registration, if the instrument is not public officer authorized by law to take
registrable (on its face), and inform the acknowledgment (Gallardo v. IAC, G.R. No. L-
presentor of such denial in writing, stating 67742, October 29, 1987);
the ground or reason therefor; 2. When the land involved is a Non-registrable
d. Advise the presentor (denied of registration) land;
of his right to appeal by consulta; and 3. Where required certificates or documents are
e. Prepare and Keep in every Registry an Not submitted;
index system which contains the names of 4. Where there is More than one (1) copy of the
all registered owners alphabetically owner’s duplicate certificate of title and not all
arranged, and all the lands respectively such copies are presented in the Register of
registered in their names (P.D. 1529, Sec. Deeds (i.e., when there are co-owner’s
10 and Sec. 12). duplicates of the same title);
5. Where the property is presumed to be Conjugal
The Registry of Deeds is the repository of titles, but the instrument of conveyance bears the
deeds, conveyances, court orders and other signature of only one spouse;
instruments used as basis in the subsequent 6. Where the voluntary instrument bears on its face
registration. Their duty includes the obligation to an Infirmity;
accept documents presented for registration; assign 7. Where the Validity of the instrument sought to be
the corresponding number based on the Electronic registered is in issue in a pending court suit
Primary Entry Book (EPEB), process, examine and (AGCAOILI, supra at 48-49);
release the said document within a reasonable 8. Where the adverse claim of ownership over a
period of time. Titles kept in the registry are arranged parcel of land is based on Prescription and
numerically (according to the title number) and not adverse possession (Estrella v. Register of
 Deeds of Rizal, G.R. No. L-12614, January 29,
1960); MODE OF
9. Where the cancellation of an adverse claim is
based on a mere Request and not upon the REGISTRATION
order of the court (Sajonas v. CA, G.R. No.
102377, July 5, 1996).

“EN CONSULTA” 1. Judicial Legalization

a. Judicial Confirmation of Imperfect or
When the Register of Deeds is in doubt with regard Incomplete Title (C.A. 141 as amended,
to the proper step to be taken or memorandum to be Sec. 48 (b));
made in pursuance of any deed, mortgage or other b. Voluntary or Ordinary Land Registration
instrument presented to him for registration, or (P.D. 1529); and
where any party in interest does not agree with the c. Cadastral Proceedings (P.D. 1529).
action taken by the Register of Deeds with reference
to any such instrument, the question shall be
2. Administrative Legalization
submitted to the Commissioner of Land Registration
a. Filing of application at CENRO/ PENRO;
by the Register of Deeds, or by the party in interest
b. Forwarded to the Registration Director
through the Register of Deeds (P.D. 1529, Sec.
and/or DENR for the issuance of patent and
117).
Register of Deeds for issuance of OCT; and
c. Through the NCIP – For native title over
A deed of sale executed in a place other than where
both ancestral lands and domains
the property is located does not affect the extrinsic
(AGCAOILI, supra at 123).
validity of the instrument as long as the notary public
concerned has authority to acknowledge the
document executed within his territorial jurisdiction.
Notarial acknowledgment attaches full faith and
credit to the document and also vests upon it the CITIZENSHIP
presumption of regularity (Sales v. CA, G.R. No. L-
40145, July 29, 1992).
REQUIREMENT

PROCEDURE FOR “EN CONSULTA”

1. Natural Persons:
GENERAL RULE: Only Filipino Citizens can
REGISTRANT acquire private or public agricultural lands.
(CONST., Art. XII, Sec. 7).
Register of Deeds
EXCEPTIONS:
(Sec. 117, P.D. No. 1529)
a. In case of hereditary succession, aliens may
be a transferee of private lands (CONST.,
Art XII, Sec. 7); and
b. A natural-born citizen of the Philippines, who
Land Registration Authority has lost his Philippine citizenship may be a
transferee of private lands, subject to
limitations provided by law (CONS., Art XII,
Sec. 8).

Court of Appeals Limitations:

(Rule 43, Rules of Court) a. Any natural-born citizen of the
Philippines who has lost his Philippine
citizenship and who has the legal capacity to
enter into a contract under Philippine laws
may be a transferee of a private land up to
Supreme Court a maximum area of one thousand (1,000)
(Rule 45, Rules of Court) square meters, in the case of urban land, or
one (1) hectare in the case of rural land, to
be used by him as his residence (B.P. Blg.
185, Sec. 2);
b. In the case of married couples, one of them
may avail of the privilege granted above;
provided, That if both shall avail of the same,
 the total area acquired shall not exceed the contract which is not forbidden by the
maximum authorized (B.P. Blg. 185, Sec. 2); Constitution. Should they desire to remain here
c. In case the transferee already owns urban forever and share our fortune and misfortune,
or rural lands for residential purposes, he Filipino citizenship is not impossible to acquire
shall still be entitled to be a transferee of (Philippine Banking Corporation v. Lui She, G.R.
additional urban or rural lands for residential No. L-17587, September 12, 1967, citing
purposes which, when added to those Krivenko v. Register of Deeds (1947)).
already owned by him, shall not exceed the
maximum areas herein authorized (B.P. Blg. The only instance where a contract of lease may
185, Sec. 2); be considered invalid is, if there are
d. A natural-born who has lost his circumstances attendant to its execution, which
Philippine citizenship and who has the are used as a scheme to circumvent the
legal capacity to enter into a contract under constitutional prohibition.
Philippine laws may be a transferee of a
private land up to a maximum area of If an alien is given not only a lease of, but also
five thousand (5,000) square meters in the an option to buy, a piece of land, by virtue of
case of urban land or three (3) hectares in which the Filipino owner cannot sell or otherwise
the case of rural land to be used by him for dispose of his property, this to last for 50 years,
business or other purposes (R.A. No. then it becomes clear that the arrangement is a
7042, Sec. 10, as amended by R.A. virtual transfer of ownership whereby the owner
No.8179); divests himself in stages not only of the right to
e. In the case of married couples, one of them enjoy the land (jus possidendi, jus utendi, jus
may avail of the privilege granted. But if both fruendi, and jus abutendi) — rights, the sum of
shall avail of the same, the total area which make up ownership. It is just as if today
acquired shall not exceed the maximum the possession is transferred, tomorrow the use,
fixed (R.A. No. 7042, Sec. 10, as amended the next day the disposition, and so on, until
by R.A. No. 8179); and ultimately all the rights of which ownership is
f. In case the transferee already owns made up are consolidated in an alien (Philippine
urban or rural land for business or other Banking Corporation v. Lui She, G.R. No. L-
purposes, he shall still be entitled to be a 17587, September 12, 1967; Llantino v. Co
transferee of additional urban or rural land, Liong Chong, G.R. No. L-29663, August
which when added to those already owned 20,1990).
by him, shall not exceed the maximum areas
authorized (R.A. No. 7042, Sec. 10, as Filipino Vendor Cannot Recover Land Sold
amended by R.A. No.8179). to an Alien (in pari delicto)
The question was answered in the negative in
NOTE: The acquisition by aliens of private lands the early case of Rellosa v. Gaw Chee Hun
in case of hereditary succession is not subject to because the Filipino vendor was in pari delicto
limitations (Republic v. CA and Sps. Lapiña, with the alien vendee (AGCAOILI, supra at 187;
G.R. No. 108998, August 24, 1994). Rellosa v. Gaw Chee Hun, G.R. No. L-1411,
September 29, 1953).
Aliens may lease Private Lands
While aliens are disqualified from acquiring Effect of Subsequent Naturalization of the
lands of public domain, they may however lease Transferee
private lands. (Id. at 191). If land is invalidly transferred to an alien who
subsequently becomes a Filipino citizen or
Citizens of the Philippines may lease not more transfers it to a Filipino, the flaw in the original
than five hundred (500) hectares, or acquire not transaction is considered cured and title of the
more than twelve (12) hectares thereof, by transferee is rendered valid (Borromeo v.
purchase, homestead, or grant (CONST., Art. Descallar, G.R. No. 159310, February 24,
XII, Sec. 3). 2009).

A lease to an alien for a reasonable period is Rationale: The ban on aliens is intended to
valid. So is an option giving an alien the right to preserve the nation’s land for future generations
buy real property on condition that he is granted of Filipinos (Muller v. Muller, G.R. No. 149615,
Philippine citizenship. Aliens are not completely August 29, 2006).
excluded by the Constitution from use of lands
for residential purposes. Since their residence in
the Philippines is temporary, they may be
granted temporary rights such as a lease
 Alienation in Favor of Foreign Government If the predecessors-in-interest of the corporation
to be Used as Chancery or Residence of have been in possession of the land in question
Diplomatic Representatives since June 12, 1945 or earlier, then it may
The prohibition in the Constitution against rightfully apply confirmation of title to the land.
alienation of lands in favor of aliens does not That vested right has to be respected (Director
apply to alienation of the same in favor of foreign of Lands v. IAC and Acme Plywood & Veneer
governments to be used as chancery and Co. Inc., G.R. No. 73002, December 29, 1986).
residence of its diplomatic representatives.
NOTE: Filipino corporations and
As part of its treaty obligation under International associations may acquire private land.
Law, the State shall either facilitate the
acquisition on its territory, the premises The prohibition does not apply to land no longer
necessary for the mission by a sending state, or public land and are thus private land (Director
assist the latter in obtaining accommodations in of Lands v. IAC and Acme Plywood & Veneer
the country (Vienna Convention on Diplomatic Co. Inc., G.R. No. 73002, December 29, 1986).
Relations, Art. 21).
Limitations:
The State shall also, when necessary, assist a. Private Lands
missions in obtaining accommodations for its i. At least 60% of whose capital is owned
members (Vienna Convention on Diplomatic by Filipino citizens to acquire private
Relations, Art. 21). land;
ii. Restricted as to the extent reasonably
Foreigners are Allowed to Purchase necessary to enable it to carry out
Condominium Units purpose which it was created;
Aliens may acquire condominium units and iii. If engaged in agricultural – restricted to
shares in condominium corporations up to no 1,024 hectares; and
more than 40% of the total and outstanding iv. Applicable to Filipino corporations only
capital stock of a Filipino-owned or controlled (CONST., Art. XII, Sec. 2).
corporation (R.A. 4726, The Condominium Act,
Sec. 5). NOTE: The purpose of the sixty per centum
(60%) requirement is obviously to ensure
Under this setup, the ownership of the land is that corporations or associations allowed to
legally separated from the unit itself, therefore acquire agricultural land or to exploit natural
the constitutional proscription against aliens resources shall be controlled by Filipinos;
owning real property does not apply (Hulst v. PR and the spirit of the Constitution demands
Builders, Inc., G.R. No. 156364, September 25, that in the absence of capital stock, the
2008). controlling membership should be
composed of Filipino citizens (Register of
2. Corporations Deeds of Rizal v. Ung Siu Si Temple, G.R.
GENERAL RULE: Private corporations or No. L-6776, May 21, 1955).
associations are not legally qualified to own
alienable lands of public domain except through b. Patrimonial Property of State
lease (CONST., Art. XII, Sec. 3). i. Lease for 25 years renewable;
ii. Limited to 1,000 hectares; and
EXCEPTION: By lease, for a period not iii. Applicable to both Filipino and foreign
exceeding twenty-five (25) years, renewable for companies (CONST., Art. XII, Sec. 3).
not more than twenty-five (25) years, and not to
exceed one thousand (1,000) hectares in area Foreign Corporation: It is disqualified to own
(CONST., Art. XII, Sec. 3). lands in the Philippines. It is also disqualified to
own rights to ownership to such lands.
EXCEPTION TO THE EXCEPTION: AGCAOILI, supra at 189).
Possessory claims to the property acquired
before the 1935 Constitution prohibited the Religious Association Controlled by Non-
alienation of all lands of the public domain, Filipinos: The Constitution makes no exception
except agricultural lands, subject to vested in favor of religious associations. To permit
rights existing at the time of its adoption (Atok- religious associations controlled by non-Filipinos
Big Wedge Mining Co. v. CA and Consi, G.R. to acquire agricultural lands would be to drive
No. 88883, January 18, 1991). the opening wedge to revive alien religious land-
holdings in the country (AGCAOILI, supra at
184).
 Corporation Sole: It may acquire and register Power to Classify Lands is an Executive
private agricultural land. It has “no nationality”, Prerogative
thus the constitutional proscription against The classification of public lands is an exclusive
private corporations acquiring agricultural lands prerogative of the executive department and not of
will not apply. (Roman Catholic Apostolic the courts (AGCAOILI, Property Registration Decree
Administrator of Davao, Inc. v. Land Registration and Related Laws (Land Titles and Deeds) (2018),
Commission, G.R. No. L-8451, December 20, p.193). The classification and reclassification of
1957). public lands into alienable or disposable, mineral or
forest land is the exclusive prerogative of the
Executive Department, and is exercised by the latter
through the President, or such other persons vested
CLASSIFICATION OF with authority to exercise the same on his behalf
(Republic v. Heirs of Cabrera, G.R. No. 218418,
LAND November 08, 2017).

The government, as the agent of the state, is

possessed with the plenary power as the persona in
1. Public or Private; law to determine who shall be the favored recipients
2. Alienable or Inalienable; of public lands, as well as under what terms they
3. Registered or Unregistered; and may be granted such privilege, not excluding the
4. Registrable or Non-registrable (AGCAOILI, placing of obstacles in the way of their exercise of
supra at 206). what otherwise would be ordinary acts of ownership
(Gonzaga v. CA, G.R. No. L-27455, June 28, 1973).
GOVERNMENT LANDS
Government land includes public land and also all In order to prove that the parcel of land is part of the
other lands of the government already reserved or disposable and alienable lands of the public domain,
devoted to public use or subject to private right a certification from the DENR-CENRO is
(Montano v. Insular Government, G.R. No. 3714, insufficient. What is required is the certification
January 26, 1909). from the DENR Secretary (Republic v. Josefino, G.R
No. 210341; July 1, 2015; Republic v. Spouses Go,
G.R. No. 197297, August 2, 2017).
PUBLIC LANDS
Certifications issued by the CENRO, or specialists of
Public land is equivalent to public domain. It does not
by any means include all lands of government the DENR, as well as Survey Plans prepared by the
ownership, but only so much of said lands as are DENR containing annotations that the subject lots
thrown open to private appropriation and settlement are alienable, do not constitute incontrovertible
by homestead and other like general laws (Montano evidence to overcome the presumption that the
property sought to be registered belongs to the
v. Insular Government, G.R. No. 3714, January 26,
inalienable public domain (Republic v. Mendiola,
1909).
G.R. No. 211144, December 13, 2017).
Land is considered of public dominion if it either: (a)
is intended for public use; or (b) belongs to the State, Neither does a survey plan. The fact that the land
has been privately surveyed is not sufficient to
without being for public use, and is intended for
prove its classification or alienable character. While
some public service or for the development of
national wealth. Land belonging to the State that is the conduct of a survey and the submission of the
not of such character, or although of such character original tracing cloth plan are mandatory
but no longer intended for public use or public requirements for applications for original registration
service forms part of the patrimonial property of the of land under P.D. 1529, they only serve to establish
the true identity of the land and to ensure that the
State.
property does not overlap with another one covered
by a previous registration. These documents do not,
PRIVATE LANDS by themselves, prove alienability and disposability of
Land that is other than part of the patrimonial the property (Republic v. Nicolas, G.R. No. 181435,
property of the State, provinces, cities, and October 2, 2017).
municipalities of private ownership if it belongs to a
private individual (AGCAOILI, supra at 195). The trial court must be given a certified true copy of
the classification made by the DENR Secretary or
the President because it is the only acceptable and
sufficient proof of the alienable and disposable
character of the land (Dumo v. Republic, G.R. No.
218269, June 6, 2018). Failure to present a certified b. Residential, commercial, industrial or for similar
true copy of the original classification approved by productive purposes;
the DENR secretary is fatal in securing registration c. Educational, charitable, or other similar
of title (Republic v. Rovency Realty and purposes; and
Development Corp., G.R. No. 190817, January 10, d. Reservations for town sites and for public and
2018). quasi-public use (C.A. 141, Sec. 9).

ALIENABLE AND INALIENABLE LANDS NOTE: Land so granted donated, or transferred to a

Whether or not land of public domain is alienable province, municipality, or branch or subdivision of
and disposable primarily rests on the classification the Government shall not be alienated, encumbered,
of public lands made under the Constitution. or otherwise disposed of in a manner affecting its
title, except when authorized by Congress (C.A. 141,
The 1987 Constitution adopted the classification Sec. 60).
under the 1935 Constitution into agricultural, forest
or timber, and mineral, but added national parks. NON-REGISTRABLE LANDS
The identification of lands according to their legal Those found in Civil Code provisions dealing with
classification is done exclusively by and through a non-registrable properties (e.g., property of public
positive act of the Executive Department. dominion) (CIVIL CODE, Art. 420).

Under Section 2 Article XII of the 1987 Constitution, SPECIFIC KINDS OF NON-
only agricultural lands of the public domain may be REGISTRABLE PROPERTIES OR
alienated; all other natural resources may not be.
(AGCAOILI, supra at 196).
LANDS: (F²LAWN-M³P²G)
1. Forest or timberland, public forest, &
REGISTRABLE LANDS forest reserve (AGCAOILI, supra at 213);
1. Alienable public agricultural lands (CONST., Art. Forest lands are inalienable and possession
XII, Sec. 2); and thereof, no matter how long, cannot convert
2. Private lands. (CIVIL CODE, Arts. 421, 425). the same into private property. Courts are
without jurisdiction to adjudicate lands within
NOTE: Alienable and disposable lands of the State the forest zone (Collado v. CA, G.R. No.
fall into two (2) categories, to wit: 107764, October 4, 2002).
a) Patrimonial lands of the State, or those
classified as lands of private ownership Timber licenses merely evidence a
under Article 425 of the Civil Code, without privilege granted by the State to qualified
limitation; and entities, and do not vest in the latter a
b) Lands of the public domain, or the public permanent or irrevocable right to the
lands as provided by the Constitution, but particular concession area and the forest
with the limitation that the lands must only products therein. They may be validly
be agricultural (AGCAOILI, supra at 196). amended, modified, replaced or rescinded
by the Chief Executive when national
Only Alienable and Disposable (A and D) Lands interests so require (Tan v. Director of
May be Subject to Disposition Forestry, G.R. No. L-24548, October 27,
The Court has time and again emphasized that there 1983).
must be a positive act of the government, such as
an official proclamation, declassifying inalienable A forested area classified as forest land of
public land into disposable land for agricultural or the public domain does not lose such
other purposes. In fact, Section 8 of CA No. 141 classification simply because loggers or
limits alienable or disposable lands only to those settlers have stripped it of its forest cover
lands which have been "officially delimited and (Amunategui v. Director of Forestry, G.R.
classified"(Secretary of DENR v. Yap, G.R. No. No. L-27873, November 23, 1983).
167707, October 8, 2008).
Without the official declaration that the
For the purpose of their administration and subject land is alienable and disposable or
disposition, the lands of the public domain alienable proof of its declassification into disposable
or open to disposition shall be classified, according agricultural land, the "unclassified public
to the use or purposes to which such lands are forest lands" legal classification of the
destined, as follows: subject land remains. Testimonial evidence
a. Agricultural; on the physical layout or condition of the
subject land — that it was planted with
coconut trees and beach houses had been
 constructed thereon — are not conclusive 9. Military Reservations
on the classification of the subject land as – The reservation made segregates it from the
alienable agricultural land. Rather, it is the public domain and no amount of time in
official proclamation releasing the land whatever nature of possession could have ripen
classified as public forest land to form part such possession into private ownership
of disposable agricultural lands of the public (Republic v. Marcos, G.R. No. L-32941, July 31,
domain that is definitive (Republic v. 1973);
Saromo, G.R. No. 189803, March 14, 2018).
10. Previously titled land;
2. Foreshore land & seashore
– Seashore, foreshore, and/or portions of 11. Protected Areas (R.A. 7586, also known as
territorial waters and beaches, cannot be NIPAS Act of 1992); and
registered (AQUINO, supra at 184);
12. Grazing land
3. Lakes – While the 1987 Constitution does not
– Are part of public domain (CIVIL CODE, Art. specifically prove that grazing lands are not
502(4)); disposable, yet if such lands are part of a forest
reserve, there can be no doubt that the same are
4. Alluvial deposit along river when man- incapable of registration (AQUINO, supra at
made (CIVIL CODE, Art. 420(1); Art. 502(1)); 184).

5. Watershed NOTE: Foreshore and submerged areas "shall not

– The Constitution expressly mandates the be alienated," unless they are classified as
conservation and utilization of natural resources, "agricultural lands" of the public domain. The mere
which includes the country’s watershed (Tan v. reclamation of foreshore areas does not convert
Director of Forestry, G.R. No. L-24548, October these inalienable natural resources of the State into
27, 1983); alienable or disposable lands of the public domain
(Chavez v. Public Estates Authority, G.R. No.
6. Navigable rivers, streams & creeks (Id.at 133250, July 9, 2002).
246);
There must be a law or presidential proclamation
NOTE: In Maneclang v. IAC (G.R. No. L-66575, officially classifying these reclaimed lands as
September 30, 1986), the Supreme Court, ruled alienable or disposable and open to disposition or
that a creek defined as a recess or arm concession. Moreover, these reclaimed lands
extending from a river and participating in the cannot be classified as alienable or disposable if the
ebb and flow of the sea is a property belonging law has reserved them for some public or quasi-
to the public domain. This recent case will erase public use (Chavez v. Public Estates Authority, G.R.
all doubts whether a stream or a creek will have No. 133250, July 9, 2002).
to be navigable to be of public ownership.
Streams and creeks, whether navigable or not,
are of public dominion (161 RODRIGUEZ,
PROPERTIES OF PUBLIC DOMINION (Under REGISTRATION
Art. 420 of the New Civil Code (1988), p. 480).

7. Mangrove swamps
– Mangrove swamps or mangrove should be REGISTRATION
understood as comprised within the public Registration means any entry made in the books of
forests of the Philippines as defined in Section the registry (now Electronic Primary Entry Book
1820, Administrative Code of 1917 (Director of [EPEB]), including both registration in its ordinary
Forestry v. Villareal, G.R. No. L-32266, February and strict sense, and cancellation, annotation, and
27, 1989); even marginal notes. In its strict acceptation, it is the
entry made on the registry which records solemnly
8. Mineral lands and permanently the right of ownership and other
– Both under the 1987 Constitution and Section real rights (Cheng v. Genato, G.R. 129760,
2 of the Public Land Act, mineral lands are not December 29, 1998).
alienable and disposable (Lepanto Consolidated
Mining Co. v. Dumyung, G.R. No. L-31666, April 1. Original Registration
30, 1979).; a. Voluntary
i. Property Registration Decree
 (P.D. 1529)
ii. Judicial Confirmation of Imperfect or
Incomplete Title (C.A. 141, Section 48) ORIGINAL
b. Involuntary REGISTRATION
i. Cadastral Proceedings

2. Registration under R.A. 8371 (Indigenous

Peoples Rights Act of 1997)

3. Subsequent Registration Parcel of Land

ORIGINAL V. SUBSEQUENT
REGISTRATION Survey of Parcel of Land
ORIGINAL SUBSEQUENT Payment of Realty Tax
REGISTRATION REGISTRATION

The right of ownership Proceeding where

or title to land is for the incidental matters after Approval of Survey Plan by the Department of
first time made of original registration may Environment and Natural Resources (DENR)
public record under be brought before the
any of the existing Land Registration Court
systems of registration by way of motion or
(PEÑA, supra at 11). petition filed by the Filing of Application for Original Registration
registered owner or a
party in interest (PEÑA,
supra at 12).

JUDICIAL ADMINISTRATIVE

Filed with the File with the DENR

Regional Trial Court (for issuance of
or Municipal Trial Patent Title)
Court

Land Registration
Authority

Issuance of Original Certificate of Title (OCT)

Register of Deeds

NATURE
Judicial proceedings for the registration of lands
throughout the Philippines shall be in rem and shall
be based on the generally accepted principles
underlying the Torrens system (P.D. No. 1529, Sec.
2).
JURISDICTION multiplicity of suits and to promote expeditious
GENERAL RULE: Courts of First Instance (now termination of cases, had eliminated the distinction
Regional Trial Court) shall have exclusive between the general jurisdiction vested in the
jurisdiction over all applications for original regional trial court and the latter's limited jurisdiction
registration of title to lands, including improvements when acting merely as a land registration court. Land
and interests therein, and over all petitions filed after registration courts, as such, can now hear and
original registration of title, with power to hear and decide even controversial and contentious cases, as
determine all questions arising upon such well as those involving substantial issues. Certainly,
applications or petitions. The court through its clerk thus, the courts a quo had jurisdiction to rule on all
of court shall furnish the Land Registration matters necessary for the determination of the issue
Commission with two certified copies of all of ownership, including the validity of the tax sale
pleadings, exhibits, orders, and decisions filed or (Solco v. Megaworld Corp., G.R. No. 213669, March
issued in applications or petitions for land 5, 2018).
registration, with the exception of stenographic
notes, within five days from the filing or issuance JURISDICTION IN CIVIL CASES INVOLVING
thereof (P.D. No. 1529, Sec. 2). TITLE TO PROPERTY
RTCs shall exercise exclusive original jurisdiction in
EXCEPTION: Delegated Jurisdiction to the all civil actions which involve the title to, or
Metropolitan Trial Courts (MeTCs); Municipal Trial possession of, real property or any interest therein:
Courts in Cities (MTCCs); Municipal Trial Courts 1. Outside Metropolitan Manila, where the
(MTCs); Municipal Circuit Trial Courts (MCTCs) by assessed value of the property exceeds
the Supreme Court in cadastral and land registration P20,000; or
cases if: 2. Within Metropolitan Manila, where the assessed
1. There is no controversy or opposition over the value of the property value exceeds P50,000
land; or (B.P. Blg. 129, Sec. 19).
2. Where the lot is contested but the value thereof
does not exceed P100,000.00 (B.P. 129, Sec.
34).
P.D. NO. 1529
VENUE
GENERAL RULE: Regional Trial Court of the
(PROPERTY
province, city or municipality where the property is REGISTRATION
situated.
DECREE)
NOTE: The decision of first-level courts shall be
appealable to the Court of Appeals (P.D. 1529, Sec.
33).
OVERVIEW OF THE REQUISITES (13
Registration Court Not divested of Jurisdiction STEPS) IN ORDINARY LAND
by Administrative Act for the Issuance of Patent REGISTRATION PROCEEDINGS (P.D.
A land registration court which has validly acquired 1529): (SAD-TP-SAH-PIEST)
jurisdiction over a parcel of land for registration of
1. Survey of the land by the Bureau of Lands (now
title cannot be divested of said jurisdiction by a
Land Management Bureau) or a duly licensed
subsequent administrative act consisting in the
private surveyor drawn on a tracing cloth plan;
issuance of a homestead patent covering the same
2. Filing of Application for registration by the
land (De los Angeles v. Santos, G.R. No. L-19615,
applicant at the RTC of the province, city or
December 24, 1964).
municipality where the property is situated;
3. Setting of Date for initial hearing by the court
Jurisdiction, as in ordinary actions, is acquired upon
which shall not be earlier than 45 days nor later
the filing in court of the application for registration,
than 90 days from the date of the order;
and is retained up to the end of the litigation
4. Transmittal of application and date of initial
(AGCAOILI, Property Registration Decree (2018), p.
hearing together with all documents or other
138).
evidence attached thereto by the Clerk of Court
to the Land Registration Authority;
Land Registration Courts Can Now Hear and
5. Publication of the notice of filing of application
Decide Controversial and Contentious Cases
and the date and place of hearing once in the
Such as Validity of a Tax Sale
Official Gazette and once in a newspaper of
The Supreme Court has declared that Presidential
general circulation in the Philippines;
Decree (P.D.) No. 1529, with the intention to avoid
6. Service by mailing of notice upon contiguous This again is the recognition of the concept of
owners, occupants and those known to have jura regalia where all lands and all other natural
interest in the property and posting by the sheriff resources are owned by the State, and a
of such notice in a conspicuous place on the recognition as well of the exclusive authority of
land and in the bulletin board of the municipal the Director of Lands in the administration,
building where the land is situated; management, survey, and disposition of lands of
7. Filing of Answer or Opposition to the application the public domain (AGCAOILI, Property
by any person whether named in the notice or Registration Decree (2018), p. 139).
not;
8. Hearing of the case by the court; 2. FILING OF APPLICATION
9. Promulgation of judgment by the court; Filing of application for registration by the
10. Issuance of decree or order by the court applicant at the RTC of the province, city, or
declaring the decision final and instructing the municipality where the property is situated. (P.D.
Land Registration Authority to issue a Decree of 1529, Sec. 17).
Confirmation and Registration;
11. Entry of decree in the Land Registration The applicant shall file together with the
Authority; application all original muniments of titles or
12. Sending of copy of the Decree to the copies thereof and a survey plan approved by
corresponding Register of Deeds; and the Bureau of Lands (P.D. 1529, Sec. 17;
13. Transcription of the Decree in the registration University of the Philippines v. Rosario, G.R. No.
book and issuance of the owner’s duplicate 136965, March 28, 2001).
Original Certificate of Title of the applicant by the
Register of Deeds upon payment of the Muniments of Title
prescribed fees. Instruments or written evidence that the
applicant holds or possesses to enable him to
NOTE: Failure to comply with the foregoing will substantiate and prove the title to his estate.
justify the court to deny the application for
registration (AGCAOILI, Property Registration Form of Application: (WS2)
Decree (2018), p. 132). a. In Writing;
b. Signed by the applicant or person duly
1. SURVEY authorized; and
Survey of the land by the Bureau of Lands or a c. Sworn to before authorized officer in the
duly licensed private surveyor drawn on a province or city where the application was
tracing cloth plan; actually signed

Section 17 shows that it is mandatory for the NOTE: If there is more than one (1) applicant,
applicant for original registration to submit to the they shall be signed and sworn to, by and on
trial court not only the original or duplicate copies behalf of each (P.D. 1529, Sec. 15).
of the muniments of title but also the copy of the
duly approved survey plan of the land sought to Pursuant to the Manual of Instructions to be
be registered. The survey plan is crucial Observed by the Clerks of Courts of the Regional
because it provides reference of the property’s Trial Courts in Ordinary and Cadastral Land
exact identity and location (AGCAOILI, Property Registration Cases issued by the Land
Registration Decree (2018), p. 138). Registration Authority on February 20, 1991, the
Application for Registration shall be filed in the
No plan or survey, whether it be original or Following Form:
subdivision, may be admitted in land registration a) That the application shall be in accordance
proceedings until approved by the Director of with the form prescribed in Section 15 of PD.
Lands (ADMINISTRATIVE CODE, Sec. 1858). No. 1528 and should state the full name of
the applicant, his civil status a, citizenship,
Recognizing the overlapping of functions, P.D. residence and postal address, and if a
239, dated July 9, 1973, was implemented minor, his age;
stating that the LRA was no longer authorized to b) That the application be subscribed by the
approve original survey plans for original applicant or the person duly authorized in
registration. Thus the Land Management his behalf and to sworn to before any officer
Bureau (LMB) is now authorized to verify and authorized to administer oaths for the
approve original survey plans (MOGELLO, province or city where the application was
Guidelines and Procedures in Land Titles and actually signed;
Deeds (2019), p. 22). c) That the application and its accompanying
papers be filed in triplicate which shall be
 distributed as follows: the original for the d. The original and two copies of the Geodetic
Clerk of Court, the duplicate for the LRA, Engineer’s certificate or, in lieu thereof, a
and the triplicate for the Solicitor General; certification from the Regional Technical
and Director as to its non-availability;
d) That prior to the filing of the application, the e. A certificate in triplicate of the provincial, city
applicant has furnished the director of Lands or municipal assessor of the assessed value
(now the Regional Executive Director of the of the land at its last assessment for taxation
DENR), with a copy of application and its or in the absence hereof, that of the next
annexes (P.D. No. 1529, Sec. 17). preceding year; and
f. All original muniments of title of the applicant
Contents: (DC-NAM2-CNOB) proving his ownership of the land. This
a. Full Description of the land as evidenced by requirement is not mandatory as long as the
duly approved survey plan; documents can be produced before the
b. Citizenship and civil status of the applicant court during hearing whenever required
whether single or married, and, if married, when necessary (AGCAOILI, supra at 135).
the name of the wife or husband, and, if the
marriage has been legally dissolved, when NOTE: Under LRA Circular 05-2000, the original
and how the marriage relation terminated; tracing cloth plan is no longer forwarded to the
c. Full Names and addresses of all occupants LRA; only a certified copy thereof needs to be
of the land and those of the adjoining forwarded. The original tracing cloth plan is now
owners if known, and, if not known, it shall simply attached to the original record and
state the extent of the search made to find retained by the court where it may then be
them; marked and formally offered in evidence during
d. Assessed value of the land and the proceeding (AGCAOILI, supra at 135-136).
buildings and improvements thereon;
e. Whether or not there are Mortgages or Fees Payable Upon Filing of Application
encumbrances of any kind affecting the Fees are payable to the clerk of court or his
land; deputies upon filing an application for
f. The Manner by which applicant has registration of land, on the basis of its assessed
acquired the land in accordance with Sec. value for the current year (P.D. 1529, Sec. 111).
14, P.D. 1529;
g. Whether or not the property is Conjugal, If the property has not been assessed for
paraphernal or exclusive property of the taxation, the fees payable shall be based on the
applicant; current market value. In this case, the applicant
h. Names of all occupants of the land; shall file with his application a sworn declaration
i. Original muniments of title; and of three (3) disinterested persons fixing such
j. If the land is Bounded by a public or private market value (P.D. 1529, Sec. 111).
way or road, there should be stated in this
paragraph whether or not the applicant NOTE: Application is endorsed to the MTC if
claims any and what land within the limits of there is no controversy or opposition over the
the way or road and whether the applicant land or where the lot is contested but the value
desires to have the line of the way or road thereof does not exceed P100,000.00 (B.P. Blg.
determined (P.D. 1529, Sec. 15) 129, Sec. 34).
(AGCAOILI, supra at 133)
Where Land is Situated Between Boundaries
Accompanying Documents: of Two Provinces
a. Original plan in tracing cloth or diazo If land is situated between boundaries of two
polyester film, duly approved by the provinces, application must be filed:
Regional Technical Director, Land a. Boundaries are Not Defined – In the RTC
Management Service of the DENR, a of the place where it is declared for taxation
certified copy of which shall be attached to purposes;
the duplicate records and forwarded to the
LRA (LRA Circular 05-2000); b. Boundaries are Defined – A separate plan
b. White or blue print copies of the plan; for each portion must be made by surveyor
c. The original and two copies of the technical and a separate application for each lot must
descriptions certified by the Regional be filed with appropriate RTC. (NOBLEJAS,
Technical Director or any authorized official supra at 123-124).
and not merely signed by the geodetic
engineer who prepared the plan;
Applicants in Ordinary Land Registration Land Applied for Registration by a Non-
Proceedings: Resident of the Philippines:
The following may file an Application for He shall file with his application:
Registration of Title to Land (OPAO): a. An instrument in due form;
a. Those who, by themselves or through b. Appointing a duly authorized representative
their predecessors-in-interest, have or attorney-in-fact, whose authority shall
been in Open, Continuous, Exclusive accompany the application;
and Notorious (OCEN) possession and c. Giving his full name and postal address; and
occupation of alienable and disposable d. Shall therein agree that the service of any
lands of the public domain under a bona legal process in the proceedings under or
fide claim of ownership since June 12, growing out of the application made upon
1945, or earlier; his agent or representative shall be of the
b. Those who have acquired ownership of same legal effect as if made upon the
private lands by Prescription under the applicant within the Philippines (P.D. 1529,
provisions of existing laws; Sec. 16).
c. Those who have acquired ownership of
private lands or abandoned river beds NOTE: If the agent or representative dies, or
by right of Accession or accretion; and leaves the Philippines, the applicant shall
d. Those who have acquired ownership of forthwith make another appointment for the
land in any Other manner provided for substitute, and, if he fails to do so the court may
by law (P.D. 1529, Sec. 14). dismiss the application (P.D. 1529, Sec. 16).

Land Owned in Common: All co-owners shall Lands Applied for by Minors or Persons
file the application for land registration jointly under Disability: Application should be done
where the land is owned in common (P.D. 1529, through their judicial guardian (NOBLEJAS,
Sec. 14, par. 3). supra at 89).

Land Sold under pacto de retro Lands Applied for by Married Woman
GENERAL RULE: Vendor a retro may file the without Including the Name of Husband: It is
application for land registration, provided that allowed only when the property relationship
he secures the written consent of the purchaser. between husband and wife is complete
If the latter refuses to give it, he must set forth in separation of property or when the property is a
the application the sale with right to repurchase, paraphernal property (Id. at 92; CIVIL CODE,
in order that the same may likewise be recorded Art. 214).
in the decree of registration (PEÑA, supra at 59).
Land Registration Application Covering Two
EXCEPTION: When the period for redemption or More Parcels: An application may include
expires during the pendency of the registration two or more parcels of land belonging to the
proceedings and ownership to the property is applicant/s provided they are situated within the
consolidated in the vendee a retro, the latter same province or city. The court may at any time
shall be substituted for the applicant and order an application to be amended by striking
continue the proceedings (P.D. 1529, Sec. 14, out one or more of the parcels or by a severance
Par. 3). of the application (P.D. 1529, Sec. 18).

Where the land has been sold under pacto de Who are Disqualified to Apply: (PAMP)
retro, the vendor a retro may file an application a. A Public land sales applicant insofar as the
for the original registration of the land, provided, land covered by his sales application is
however, that should the period for redemption concerned (Palawan Agricultural and
expire during the pendency of the registration Industrial Co., Inc. v. Director of Lands, G.R.
proceedings and ownership to the property No. L-25914, March 21, 1972).
consolidated in the vendee a retro, the latter
shall be substituted for the application and may REASON: He acknowledged that he is not
continue the proceedings (Orchard Realty and the owner of the land and that the same is
Development Corp. v. Republic, G.R. No. public land (Palawan Agricultural and
136280, August 30, 2001). Industrial Co., Inc. v. Director of Lands, G.R.
No. L-25914, March 21, 1972).
Land Subject of a Trust Agreement: Trustee
on behalf of the beneficiary may apply for b. An Antichretic creditor cannot also acquire
registration, unless prohibited by the instrument by prescription the land surrendered to him
creating the trust (P.D. 1529, Sec. 14, Par. 4).
 by the debtor (Ramirez v. CA, G.R. No. area of the land applied for, or which involve the
117247, April 12, 1996). inclusion of an additional land shall be subject to
the same requirements of publication and notice
REASON: His possession is not in the as in an original application (P.D. 1529, Sec. 19,
concept of an owner (Ramirez v. CA, G.R. Par. 2).
No. 117247, April 12, 1996).
NOTE: In case of substantial amendments,
c. A Mortgagee or his successor-in-interest to publication and notice as in an original
the mortgage, notwithstanding the lapse of application under Section 23 of P.D. 1529 are
the period for the mortgagor to pay the loan required.
secured to redeem it (Reyes v. Sierra, G.R.
No. L-28658, October 18, 1979). The purpose of the new publication is to give
notice to all persons concerned regarding the
REASON: Such act would amount to a amended application. Without a new
pactum commissorium, which is against publication, the registration court cannot
good morals and public policy (Reyes v. acquire jurisdiction over the area covered by
Sierra, G.R. No. L-28658, October 18, the original application, and the decision of the
1979). registration court would be a nullity insofar as the
decision concerns the newly included land. But
d. A person or entity whose claim of if the amendment consists in the exclusion of a
ownership to land had been Previously portion of the area covered by the original
denied in a reinvindicatory action (Kidpalos application and the original plan as
v. Baguio Mining Co., G.R. No. L- 19940, previously established, a new publication is
August 14, 1965). not necessary (Benin v. Tuason, G.R. No. L-
26127, June 28, 1974).
Amendments
Refers to the changes made in the allegations or An amendment due to change of name of the
contents in the application (P.D. 1529, Sec. 19). applicant does not require republication
(Director of Lands v. IAC, G.R. No. 73246,
Kinds of Amendments in the application March 2, 1993).
a. Formal Amendments
Refers to changes in the allegations In case of an amendment of application
concerning the applicants or the parties-in- involving two or more parcels of land, the court
interest. may at any time order an application to be
amended by striking out one or more of the
Kinds (JSD): parcels or by a severance of the application
i. Joinder – Inclusion of additional (P.D. No. 1529, Sec. 18).
applicants; amended by adding names
of new applicants; In case of reduction of the original area, no new
ii. Substitution – Replacement of the publication is required (AGCAOILI, supra at
original party by another; and 142).
iii. Discontinuance – Removal of names
of one or more applicants. 3. ISSUANCE BY THE COURT OF
ORDER SETTING THE DATE OF
Amendments to the application, including
joinder, substitution, or discontinuance as to INITIAL HEARING
parties may be allowed by the court at any Setting of date for initial hearing by the court,
stage of the proceedings upon just and publication, etc.
equitable terms. In such cases, publication
is not necessary (P.D. 1529, Sec. 19, par. The court shall, within five (5) days from filing of
1). the application, issue an order setting the date
and hour of the initial hearing which shall not be
b. Substantial Amendments: (SIA) earlier than forty-five (45) days nor later than
i. Substantial change in the boundaries; ninety (90) days from the date of the order (P.D.
ii. Increase in the area of the land; and 1529, Sec. 23).
iii. Inclusion of Additional land (P.D. 1529,
Sec. 19, par. 2). The public shall be given notice of initial hearing
by means of publication, mailing and posting.
Amendments which shall consist in substantial The requirement of giving notice by all three (3)
change in the boundaries, or an increase in the modes is mandatory.
 It may be asked why publication in a newspaper
NOTE: If the date of initial hearing was set of general circulation should be deemed
beyond the 90-day period, the Court will still mandatory when the law already requires notice
acquire jurisdiction. No fault is attributable to by publication in the Official Gazette as well as
such party if the trial court errs on matters within by mailing and posting, all of which have already
its sole power. It is unfair to punish an applicant been complied with in the case at hand. The
for an act or omission over which the applicant reason is due process and the reality that the
has neither responsibility nor control, especially Official Gazette is not as widely read and
if the applicant has complied with all the circulated as newspaper and is oftentimes
requirements of the law (Republic v. San delayed in its circulation, such that the notices
Lorenzo Dev’t, G.R. No. 170724, January 29, published therein may not reach the interested
2007). parties on time, if at all. Additionally, such parties
may not be owners of neighboring properties,
4. TRANSMITTAL and may in fact not own any other real estate. In
Transmittal of application and date of initial sum, the all-encompassing in rem nature of land
hearing together with all documents or other registration cases, the consequences of default
evidence attached thereto by the Clerk of Court orders issued against the whole world and the
to the Land Registration Authority (AGCAOILI, objective of disseminating the notice in as wide
supra at 132). a manner as possible demand a mandatory
construction of the requirements for publication,
mailing and posting (Republic v. Herbierto, G.R.
5. PUBLICATION No. 156117, May 26, 2005).
Upon receipt of the order of the court setting the
time for initial hearing, the Commissioner of NOTE: If the publication is made after the date
Land Registration shall cause notice of initial of the initial hearing, the entire proceeding will
hearing to be published once in the Official be null and void because publication must
Gazette and once in a newspaper of general precede the hearing. This is because the court
circulation in the Philippines (P.D. 1529, Sec. was not able to acquire jurisdiction over the
23). property (Republic v. CA, G.R. No. 100995,
September 14, 1994).
The law used the term “shall” in prescribing the
work to be done by the Commissioner of Land in Purpose and Effects:
setting the time for initial hearing to be published a. To confer jurisdiction over the land applied
once in the Official Gazette and once in a for the upon the court; and
newspaper of general circulation in the b. To charge the whole world of knowledge of
Philippines (Director of Lands v. CA, G.R. No. the application of the land involved, and
102858, July 28, 1997). invite them to take part in the case and
assent and prove their rights over the
Even as this Court concedes that the property subject thereof (AGCAOILI, supra
aforequoted Section 23(1) of the Property at 150).
Registration Decree expressly provides that
publication in the Official Gazette shall be 6. SERVICE OF NOTICE
sufficient to confer jurisdiction upon the land
registration court, it still affirms its declaration Service of notice upon adjoining owners,
in Director of Lands v. Court of Appeals that occupants and those known to have interest in
publication in a newspaper of general circulation the property by the sheriff (Id. at 182).
is mandatory for the land registration court to
validly confirm and register the title of the Modes of giving the public notice of Initial
applicant or applicants. Hearing: (Mandatory)
a. Publication;
That Section 23 of the Property Registration b. Mailing; or
Decree enumerated and described in detail the c. Posting (P.D. 1529, Sec. 23).
requirements of publication, mailing, and posting
of the Notice of Initial Hearing, then all such Said notice shall be addressed to all persons
requirements, including publication of the Notice appearing to have an interest in the land
in a newspaper of general circulation, is involved including:
essential and imperative, and must be strictly a. Adjoining owners so far as know; and
complied with. b. To all whom it may concern or those who
have interest in the property.
 Mailing NOTE: Interest may be in the character of:
Within 7 days after the publication of the said i. Legal owner;
notice, mailing of notice to: ii. Equitable owner; or
a. Every person named in the notice whose iii. Beneficiary of trust
address is known;
b. If the applicant requests to have the line of a c. Apply for the remedy desired; and
public way or road determined: Secretary of d. Signed and sworn to by him or by some
Public Highways, Provincial-Governor and other duly authorized person (P.D. No.
1529, Sec. 25).
the Mayor of the municipality or city, as the
case may be, in which the land lies. Order of Default
c. If the land borders on a river, navigable If no person appears and answers within the
stream or shore, or an arm of the sea where time allowed, the court shall, upon motion of the
a river or harbor line has been established, applicant, no reason to the contrary appearing,
or on a lake, or if it otherwise appears from order a general default to be recorded and
the application or the proceedings that a require the applicant to present evidence. By the
tenant-farmer or the national government description in the notice "To all Whom It May
may have a claim adverse to that of the Concern", all the world is made parties
applicant: Secretary of Agrarian Reform, defendant and shall be concluded by the default
Solicitor General, Directors of Land [now order (P.D. 1529, Section 26, Par. 1).
Director of Land Management Bureau],
Director of Public Works, Director of Forest Where an appearance has been entered and an
Development, Director of Mines, and answer filed, a special default order shall be
Director of Fisheries and Aquatic Resources entered against persons who did not appear and
(P.D. No. 1529, Sec. 23, par. 2). answer (P.D. 1529, Section 26, Par. 2).

Posting Kinds of Default

A duly attested copy of the notice of initial a. Order of General Default – Covers the
hearing to be posted by the sheriff of the whole world and covers persons who did not
province or city, as the case may be, or by his appear and file an answer (AGCAOILI,
deputy, in a conspicuous place on each parcel supra at 171).
of land included in the application, and also in a b. Order of Special Default – Covers persons
conspicuous place on the bulletin board of the who appeared and asked for an extension
municipal building of the municipality or city in of time to file answer or opposition yet they
which the land or portion thereof is situated, at were not able to file opposition within the
least fourteen (14) days before the date of initial given extension of time (Id. at 171).
hearing (P.D. No. 1529, Sec. 23, par. 3).
Effects of Default:
The court may also cause notice to be served to a. With respect to the Applicant – He has the
such other persons and in such manner as it right to present or adduce evidence ex parte
may deem proper. (NOBLEJAS, supra at 153).
b. With respect to those covered by the Default
7. ANSWER Order – They have no legal standing in the
Filing of answer or opposition to the application court. Therefore, they are no longer allowed
by any person whether named in the notice or to participate and no opportunity to present
not (AGCAOILI, supra at 132). evidence (Id at 153).

Who May File Remedies Available to Person/s Covered by

Any person claiming an interest, whether named Default:
in the notice or not, may appear and file an a. If Before Judgment – Motion, under oath to
opposition on or before the date of initial set aside the default order
hearing, or within such further time as may be Grounds: (FAME)
allowed by the court (P.D. 1529, Sec. 25). i. Fraud;
ii. Accident;
Requisites for Oppositions: iii. Mistake; or
a. Set forth objections to the application; iv. Excusable Negligence.
b. State the interest claimed by the opposition;
and In addition to the abovementioned grounds,
the person must also interpose that he has
a meritorious defense (Martinez v. Republic,
 G.R. No. 160895, October 30, 2006); it is not inconsistent with the provisions of P.D.
(RULES OF CIVIL PROCEDURE, Rule 9, 1529. It shall be applicable to land registration
Sec. 3(b)). and cadastral cases by analogy or in a
suppletory character and whenever practicable
b. If After Judgment but Before it is Final and convenient (P.D. 1529, Sec. 34).
and Executory
i. Motion for new trial (RULES OF Reference to a Referee
COURT, Rule 37) The trial court shall see to it that all registration
proceedings are disposed within ninety (90)
Grounds: FAME or Newly Discovered days from the date the case is submitted for
Evidence decision.

Must be filed within fifteen (15) days The Court, if it deems necessary, may refer the
after order of default is received case or any part thereof to a referee (clerk of
court) who shall hear the parties and their
ii. Motion for Reconsideration (RULES OF evidence.
COURT, Rule 37)
Grounds: Damages awarded are The referee shall submit his report thereon to the
excessive; Insufficiency of Evidence; Court within fifteen (15) days after the
Decision or Final Order is contrary to termination of such hearing.
law
Hearing before a referee may be held at any
iii. Appeal to the Court of Appeals convenient place within the province or city as
a. Ordinary Appeal (RULES OF may be fixed by him and after reasonable notice
COURT, Rule 41 [2a]) thereof shall have been served the parties
b. Petition for Review (RULES OF concerned (P.D. 1529, Sec. 27).
COURT, Rule 42)
The Court’s possible actions as regards the
iv. Appeal by Certiorari to the Supreme referee’s report: (MARS)
Court (RULES OF COURT, Rule 45) a. Modify the report;
In all cases where only questions of law b. Accept the same and use it as basis for
are raised or invoked. judgment;
Failure to file a motion for new trial, c. Recommit the case to the referee for further
reconsideration or appeal within the proceedings; and
reglementary period will render the d. Set aside the report in whole or part (P.D.
judgment final and executory. 1529, Sec. 27).

c. If judgment becomes final and executory Matters to be established: (I-PILA)

– Petition for relief from judgment under a. Issue of ownership;
Rule 38 of the Rules of Court. b. Possession and occupation of the land;
c. Identity and description of the land;
Ground: FAME d. Land is alienable and disposable of the
public domain; and
Must be filed within sixty (60) days from e. Applicant has acquired the land through any
knowledge of judgment but not beyond six other modes of acquiring ownership
(6) months from entry of judgment. (Heirs of Mario Malabanan v. Republic, G.R.
No. 179987, Nov. 10, 2014).
A party declared in default retains the right to appeal
on the ground that the plaintiff failed to prove the NOTE: Judgment refers to adjudication,
material allegations of the complaint, or that the determination and resolution of the question of
decision is contrary to law, even without the need of ownership.
prior filing of a motion to set aside the order of default
(Martinez v. Republic, G.R. No. 160895, October 30, Partial Judgment
2006). In a land registration proceeding where only a
portion of the land subject of registration is
8. HEARING contested, the court may render partial judgment
Hearing of the case by the court; provided that a subdivision plan showing the
contested and uncontested portions approved
Reception of evidence is governed by provisions by the Director of Lands is previously submitted
of P.D. 1529 and the Rules of Court, insofar as to said court (P.D. 1529, Sec. 28).
 Judgment Confirming Title 10. ENTRY OF DECREE
All conflicting claims of ownership and interest in Entry of decree in the Land Registration
the land subject of the application shall be Authority; This serves as the reckoning date to
determined by the court. If the court, after determine the 1-year period from which one can
considering the evidence and the reports of the impugn the validity of the registration (P.D.
Commissioner of Land Registration and the 1529, Sec. 32).
Director of Lands, finds that the applicant or the
oppositor has sufficient title proper for Contents of the Decree of Registration
registration, judgment shall be rendered a. Date, hour and minutes of the entry of the
confirming the title of the applicant, or the decree;
oppositor, to the land or portions thereof (P.D. b. Signature of administrator;
1529, Sec. 29). c. Civil status of the owner and if married, the
name of the husband or wife; if conjugal
The judgment rendered in a land registration property, the decree shall be issued in the
proceedings becomes final upon the expiration name of both spouses;
of thirty (30) days to be counted from the data of d. If the owner is under disability, his nature of
receipt of notice of the judgment. An appeal may disability;
be taken from the judgment of the court as in e. If the owner is a minor, his age;
ordinary civil cases (P.D. 1529, Sec. 30). f. Description of the land;
g. Estate of the owner;
Kinds of Dismissal of the Proceedings h. Relative priorities;
a. With prejudice (provided that judgment is i. Particular estates;
already final and executory) j. Mortgagees;
i. Principle of res judicata applies. The k. Easements;
party can no longer re-file the case. l. Liens;
b. Without prejudice m. Attachments;
i. The party may re-file the case. n. Other encumbrances; and
o. Rights of the tenant-farmer; and
Illustration: When dismissal is due to lack p. As well as any other matters properly to be
of evidence presented by the applicant determined in pursuance of this Decree.
(NOBLEJAS, supra at 78). (P.D. 1529, Sec. 31)
Remedies: NOTE: The decree of registration shall bind the
a. When order of dismissal is not yet final and land and quiet title thereto, subject only to such
executory – Motion for reconsideration to be exceptions or liens as may be provided by law.
filed fifteen (15) days from receipt of It shall be conclusive upon and against all
judgment (RULES OF COURT, Rule 37). persons, including the National Government and
b. When order of dismissal is final and all branches thereof, whether mentioned by
executory – File a new application for name in the application or notice, the same
registration (RULES OF COURT, Rule 37). being included in the general description “To All
Whom It May Concern” (P.D. 1529, Sec. 31).
9. DECREE OF CONFIRMATION AND
REGISTRATION GENERAL RULE: Registered owner receiving
Issuance of decree or order by the court a certificate of title in pursuance of a decree of
declaring the decision final and executory and registration, and every subsequent purchaser of
ordering the Land Registration Authority (LRA) registered land taking a certificate of title for
to issue a Decree of Confirmation and value and in good faith, shall hold the same free
Registration. from all encumbrances (P.D. 1529, Sec. 44).

It is not the court but the LRA who issues the Limitations: Statutory Liens
decree of confirmation and registration. This a. Liens, claims or rights arising or existing
duty to issue the decree of registration does under the laws and Constitution of the
not prescribe (Republic v. Nillas, G.R. No. Philippines which are not by law required to
159595, Jan. 23, 2007). appear of record in the Registry of Deeds in
order to be valid against subsequent
One (1) year after the issuance of the decree, it purchasers or encumbrancers of record;
becomes incontrovertible and amendments of b. Unpaid real estate taxes levied and
the same will not be allowed, except merely in assessed within two (2) years immediately
case of clerical errors (P.D. 1529, Sec. 32). preceding the acquisition of any right over
 the land by an innocent purchaser for value, Deeds upon payment of the prescribed
without prejudice to the right of the fees (P.D 1529, Sec. 39).
government to collect taxes payable before
that period from the delinquent taxpayer NOTE: In Judicial Confirmation of Imperfect
alone; or Incomplete title, the above mentioned steps
c. Any public highway or private way must also be complied with (C.A. 141 as
established or recognized by law, or any amended, Sec. 48(b)).
government irrigation or lateral thereof, if the
certificate of title does not state that the
boundaries of such highway or irrigation
canal or lateral thereof have been C.A. 141, SECTION 41
determined; and
d. Any disposition of the property or limitation (JUDICIAL
on the use thereof by virtue of, or pursuant
to, P.D. No. 27 or any other law or
CONFIRMATION OF
regulations on agrarian reform (P.D. 1529, IMPERFECT OR
Sec. 44).
INCOMPLETE TITLE)
Remedies of Parties Adversely Affected by
Judgment in the Registration Proceedings:
a. Motion for New trial on the grounds of
FAME; Motion for Reconsideration (RULES DISTINCTION BETWEEN P.D. 1529
OF COURT, Rule 37); AND C.A. NO. 141
b. Appeal to the CA or SC pursuant to Section PROPERTY
33 PD 1529; PUBLIC LAND ACT
REGISTRATION
c. Petition for Relief from judgment (RULES (C.A. NO. 141)
DECREE (P.D. 1529)
OF COURT, Rule 38) on the grounds of
FAME, filed sixty (60) days from receipt of Property Registration Public Land Act
notice of judgment, but not more than six (6) Decree presupposes presupposes that the
months; the existence of a title land subject of the
d. Action for Reconveyance, filed within ten which is to be confirmed application belongs to
(10) years but not available against innocent by the court the State, and that the
purchaser for value; occupants and
e. Action for damages against applicant or any possessors claim
persons who perpetrated fraud; interest only in the
f. Claim against the Assurance Fund; same by virtue of their
g. Cancellation of Title or Annulment of imperfect title or
Judgment (RULES OF COURT, Rule 47) continuous, open,
(e.g. foreshore land, published only in the notorious possession.
Official Gazette);
h. Petition to Reopen or Review the Decree of The court may dismiss The court has the power
Registration (P.D. 1529, Sec. 32), filed the application with or and jurisdiction to
within a year from entry of Decree of without prejudice adjudicate the land in
Registration on the ground of actual fraud; favor of any of the
and conflicting claimants
i. Criminal Action for Perjury against the party
who obtains registration through fraud The applicant runs the The applicant runs the
(People v. Cainglet, G.R. Nos. L-21493-94, risk of the possibility of risk of losing the land
April 29, 1966); and the denial of his subject of the
j. Action for Reversion (Sec 101, Ca No. 141). application application

While the goal at which the two laws finally arrive

11. SENDING AND TRANSCRIPTION OF is the same, namely, a Torrens title, which aims at
THE DECREE complete extinguishment once and for all of rights
a. Sending of copy of the Decree to the adverse to the record title, one law containing
corresponding Register of Deeds; and certain advantages not found in the other law, and
b. Transcription of the Decree in the similarly certain disadvantages, the two (2) laws
registration book and issuance of the provide different routes to travel to attain the
owner’s duplicate Original Certificate of ultimate goal.
Title of the applicant by the Register of
(AGCAOILI, supra at 542-543) (MOGELLO, supra at title (Republic v. Doldol, G.R. No. 132963,
237) September 10, 1998).

WHO MAY APPLY: Applicant Must Prove That:

1. Filipino citizens who by themselves or through 1. The land is alienable and disposable land of
their predecessors-in-interest have been in public domain; and
open, continuous, exclusive and notorious 2. They have been in open, continuous, exclusive,
possession and occupation of alienable and and notorious possession and occupation of the
disposable lands of public domain under a bona land for the length of time and in the manner and
fide claim of acquisition since June 12, 1945 or concept provided by law (Director of Lands v.
prior thereto or since time immemorial (C.A. 141, Buyco, G.R. No. 91189, November 27, 1992).
Sec. 48, as amended by P.D.1073, Sec. 4);
Extended Period for Application
2. Filipino citizens who by themselves or their R.A. 9176, Section 1 provides in part that “The time
predecessors-in-interest have been, prior to the to be fixed in the entire archipelago for the filing of
effectivity of P.D. 1073 on January 25, 1977, in applications under this chapter shall not extend
open, continuous, exclusive, and notorious beyond December 31, 2020, provided that the area
possession and occupation of agricultural lands applied for does not exceed twelve (12) hectares.”
of the public domain, under a bona fide claim of
acquisition of ownership, for at least thirty (30) FILING OF APPLICATION
years, or at least since January 24, 1947 (R.A. Extent of Jurisdiction
1942, Sec. 1; People v. CA, G.R. No. 116372, GENERAL RULE: Application shall be filed with the
January 18, 2001); RTC of the province or city where the land is situated
(P.D. 1529, Sec. 17).
3. Natural-born citizens of the Philippines who
have lost their citizenship and who has the EXCEPTION: Delegated jurisdiction of the MTC to
legal capacity to enter into a contract under hear and determine cadastral or land registration
Philippine laws may be a transferee of private cases covering lots where there is no controversy or
land up to a maximum area of 5,000m2, in case opposition, or contested lots, the value of which does
of urban land or three (3) hectares in case of not exceed P100,000.00 (B.P. 129, Sec. 34, as
rural land to be used by him for business or other amended by R.A. 7691).
purposes (R.A. 8179, Sec. 5);
NOTE: The Regional Trial Courts have the authority
4. Natural-born citizens of the Philippines who to act not only on original applications but also those
have lost their Philippine citizenship, who filed after original registration, with power to hear
have acquired disposable and alienable lands of and determine all questions arising upon such
the public domain from Filipino citizens who had applications or petitions (Averia v. Caguioa, G.R. No.
possessed the same in the same manner and L-6512, December 29, 1986; Ignacio v. CA, G.R. No.
for the length of time indicated in paragraphs 1 98920, July 14, 1995).
and 2 (CONST., ART XII, Sec. 8);
A person who seeks the registration of title to a piece
When the conditions set by law are complied of land on the basis of possession by himself and his
with, the possessor of the land, by operation of predecessors-in-interest must prove his claim by
law, acquires a right to a grant, a government clear and convincing evidence, that is, he must
grant, without the necessity of a certificate of title prove his title and should not rely on the absence or
being issued (Republic v. Doldol, G.R. No. weakness of evidence of the oppositors (Republic v.
132963, September 10, 1998); and Rayos, G.R. No. 211698, May 30, 2016).

5. Private domestic corporations or Contents of the Application; Annexes:

associations which had acquired lands from 1. Name of applicant, citizenship, civil status, name
Filipino citizens who had possessed the same in of spouse, and if marriage has been legally
the manner and for the length of time indicated dissolved, the manner of its termination;
in paragraphs 1 and 2 above. 2. Description of the land;
3. Verification;
Possession of Lands of the Public Domain Must 4. Application covering two or more parcels of land
be From June 12, 1945 or Earlier belonging to the applicants provided they are
The law, as presently phrased, requires that situated in the same province or city;
possession of lands of the public domain must be 5. Annexes;
from June 12, 1945 or earlier, for the same to be a. Survey plan of the land (P.D. 1529, Sec. 17);
acquired through judicial confirmation of imperfect b. Technical descriptions (P.D. 1529, Sec. 15);
 c. Certificate of the Geodetic Engineer; and Publication on Issue of Jurisdiction
d. Certificate regarding the last assessment for Compliance is mandatory and jurisdictional
taxation of the property. (Republic v. Marasigan, G.R. No. 85515, June
6. Amendments to the application including 6, 1991).
joinder, substitution, or discontinuance of parties
may be allowed by the court at any stage of the SEC. 9. x x x Thereupon, the court shall cause
proceedings upon just and reasonable terms a notice of the petition to be published, at the
(P.D. 1529, Sec. 19); expense of the petitioner, twice in successive
7. Additional requirements the court demands and issues of the Official Gazette, and to be posted
not inconsistent with law (P.D. 1529, Sec. 21); on the main entrance of the provincial building
and and of the municipal building of the municipality
8. Occupants and adjoining owners (P.D. 1529, or city in which the land lies, at least thirty days
Sec. 15). prior to the date of hearing, and after hearing,
shall determine the petition and render such
NOTE: Application shall state the full names and judgment as justice and equity may require. The
addresses of all occupants of the land and those of foregoing provisions, therefore, clearly require
the adjoining owners if known and if not known, it that (a) notice of the petition should be published
shall state the extent of the search made to find them in two (2) successive issues of the Official
(P.D. 1529, Sec. 15). Gazette; and (b) publication should be made at
least thirty (30) days prior to the date of hearing.
Section 15 of P.D. 1529 is explicit in requiring that in Substantial compliance with this jurisdictional
the application for registration of land titles, the requirement is not enough; it bears stressing
application "shall also state the full names and that the acquisition of jurisdiction over a
addresses of all occupants of the land and those of reconstitution case is hinged on a strict
the adjoining owners if known, and if not known, it compliance with the requirements of the law
shall state the extent of the search made to find (Republic v. de Asis, G.R. No. 193874, July 24,
them." As early as Francisco vs. Court of Appeals, 2013).
97 SCRA 22 [1980] we emphasized that a mere
statement of the lack of knowledge of the names of In case there is a discrepancy between the
the occupants and adjoining owners is not sufficient publication in the Official Gazette and the notice
but "what search has been made to find them is of initial hearing, it affects the jurisdiction of the
necessary (Francisco v. Rojas, G.R. No. 167120, court over land registration (Heirs of Regalado v.
April 23, 2014). Republic, G.R. No. 168155, February 15, 2007).

Publication, Mailing and Posting Publication shall precede the date of hearing.
The court shall, within five (5) days from filing of the Late publication of the notice defeats the
application, issue an order setting the date and hour purpose for its existence thereby reducing it to a
of the initial hearing which shall not be earlier than pro-forma notice (Republic v. CA, G.R. No.
forty-five (45) days nor later than ninety (90) days 100995, September 14, 1994).
from the date of the order (P.D. 1529, Sec. 23).
A land registration proceeding is one in rem and
REASON: To confer jurisdiction upon the court and notice thereof by publication binds the whole
to invite all parties concerned to appear in court to world, inclusive of those who may be adversely
show cause why the prayer of said application shall affected thereby, innocent factually as they
not be granted (P.D 1529, Sec. 23). might have been of such publication. Such a rule
could be the only way to give meaning to the
THE PUBLIC SHALL BE GIVEN NOTICE finality and indisputability of the Torrens title to
OF THE INITIAL HEARING OF THE be issued (Francisco v. CA, G.R. No. L-35787,
April 11, 1980).
APPLICATION FOR LAND
REGISTRATION BY: (PMP) Partial Nullity
1. Publication of notice of initial hearing If it is later shown that the decree of registration
had included land or lands not included in the
Frequency of Publication original application as published, then the
It shall be published once in the Official Gazette registration proceedings and the decree of
and once in the newspaper of general circulation registration must be declared null and void – but
(P.D. 1529, Sec. 23). only insofar as the land not included in the
publication is concerned. This is because the
court did not acquire jurisdiction over the land
not included in the publication- the publication
 being the basis of the jurisdiction of the court conclusive proof of such fact (P.D. 1529, Sec.
(Benin v. Tuason, G.R. No. L-26127, June 28, 24).
1974).
Service of notice upon contiguous owners is
Republication indispensable and lack of service thereof
If the amendment consists in the inclusion in the constitutes “extrinsic fraud.” (Adviento v. Heirs of
application for registration of an area or parcel of Miguel Alvarez, G.R. No. 150844, Aug. 20,
land not previously included in the original 2008).
application, as published, a new publication of
the amended application must be made. If the ANSWER OR OPPOSITION
amendment of the survey plan during the Oppositor to an application need not be named in the
registration proceedings does not involve an notice of initial hearing.
addition, but on the contrary, a reduction of the
original area that was published, no new Requirements of the answer or opposition:
publication is required (Republic v. CA, G.R. 1. It must be in writing and sworn to by the
Nos. L-43105, August 31, 1984). applicant or a representative in his behalf;
2. It must set forth the objection;
Technical corrections which do not appear to be 3. It must state the interest of the opposing party;
substantial do not need republication (Francisco and
v. CA, G.R. No. 130768, March 21, 2002). 4. It must state the remedy desired. (ALBANO,
Civil Law Reviewer, supra at 815).
2. Mailing of the notice of hearing
Administrator of Land Registration Authority Adverse claimants must set forth in their answer
shall cause a copy of the notice of initial hearing all their objections to the application and must
of the application to be mailed to the following: claim an interest to the property applied for,
a. Every person named in the notice whose based on a right of dominion or some other real
address is known – Within seven (7) days right independent of, and not at all subordinate,
after the publication of notice in the Official to the rights of the government (City of Baguio v.
Gazette; Marcos, G.R. No. L-26100, Feb. 28, 1969).
b. Secretary of DPWH, Provincial Governor,
and Mayor of the municipality or city, as the Oppositor does not have to show title in himself;
case may be, in which the land lies, if he should however appear to have an interest in
applicant requests to have the line of a the property. The opposition partakes of the
public way or road determined; nature of an answer with a counterclaim (Valisno
c. Secretary of DAR, Solicitor General, v. Plan, G.R. No. L-55152, August 19, 1986).
Director of Land Management, Director of
Mines and/or Director of Fisheries and The burden of proving that the property is an
Aquatic Resources, as the case may be, if alienable and disposable agricultural land of the
the land borders on a river, navigable public domain falls on the applicant, not the
stream or shore, or on an arm of the sea State. However, when the State has no effective
where a river or harbor line has been opposition, except for a pro forma opposition, to
established, or on a lake, or if it otherwise controvert an applicant's convincing evidence of
appears from the application that a tenant- possession and occupation, presumptions are
farmer or the national government may have tilted to this applicant's favor. Hence, when a
a claim adverse to the applicant; and land has been in the possession of the
d. Other persons the court may deem proper applicants and their predecessor-in-interest
(P.D. 1529, Sec. 23). since time immemorial and there is no manifest
indication that it is unregistrable, it is upon the
3. Posting State to demonstrate that the land is not
Posting of the copy of the notice of hearing is a alienable and disposable (Republic v. Spouses
duty of the sheriff which must be made at least Noval, G.R. No. 170316, September 18, 2017).
fourteen (14) days, or 2 weeks before the date
of initial hearing, in conspicuous places The Following may be Proper Oppositors:
(AGCAOILI, supra at 160). (FrAGH)
1. A purchaser of Friar land before the issuance of
Certification of the Administrator of LRA and of the patent to him;
the sheriff concerned to the effect that the notice 2. Persons who claim to be in possession of a tract
of initial hearing, as required by law, has been of public land and have Applied with the Bureau
complied with shall be filed in the case before of Lands for its purchase;
the date of initial hearing, and shall be
3. The Government relative to the right of
foreshore lessees of public land as the latter’s Additional Relief: The application of the Lina
rights are not based on dominion or real right Doctrine as applied in the case of Martinez v.
independent of the right of the government (De Republic (G.R. No. 160895, October 30, 2006)
Castro v. Marcos, G.R. No. L-26093, Jan. 27, states as follows:
1969); and 1. The defendant in default may, at any time after
4. A Homesteader who has not yet been issued discovery thereof and before judgment, file a
his title but who had fulfilled all the conditions motion, under oath, to set aside the order of
required by law to entitle him to a patent (Leyra default on the ground that his failure to answer
v. Jandoc, G.R. No. L-16965, February 28, was due to (FAME) Fraud, Accident, Mistake or
1962). Excusable neglect, and that he has meritorious
defenses (RULES OF COURT, RULE 18, Sec.
The opposition must state all the objections to 3);
the application and set forth the interest claimed 2. If the judgment has already been rendered when
by the oppositor, and duly sworn to by him or his the defendant discovered the default, but before
duly authorized representative. the same has become final and executory, he
may file a motion for new trial (RULES OF
The Rules of Court could be applied in land COURT, RULE 37, Sec. par. 1 (a));
registration proceedings in a suppletory 3. If the defendant discovered the default after the
character or whenever practicable or convenient judgment has become final and executory, he
(P.D. 1529, Sec. 24). may file a petition for relief from judgment
(RULES OF COURT, RULE 38, Sec. 2); and
Motion to intervene in a land registration case is 4. He may also appeal from the judgment rendered
not allowed. Secs. 14 and 15 of P.D. 1529 show against him as contrary to the evidence or to the
that the applicant and the oppositors are the only law, even if no petition to set aside the order of
parties in cases of original applications for land default has been presented by him (RULES OF
registration, unlike in ordinary civil actions where COURT, RULE 41, Sec. 2).
parties may include the plaintiff, defendant, third
party complainants, cross claimants and EVIDENCE
intervenors (Dolfo v. Register of Deeds for the The applicant must prove: (DIP)
Province of Cavite, G.R. No. 133465, 1. That the land applied for has been Declassified
September 25, 2000). and is a public agricultural land, is alienable and
disposable, or otherwise capable of registration
No Estoppel on the Part of the Government (AGCAOILI, supra at 236).
The government cannot be estopped from
questioning the validity of the certificates of title NOTE: Specific evidence:
which were granted without opposition from the a. Presidential proclamation;
government. The principle of estoppel does not b. Executive Order;
operate against the government for the acts of its c. Administrative Order issued by the
agents (Palomo v. CA, G.R. No. 95608, January 21, Secretary of DENR;
1997). d. Bureau of Forest Development Land
Classification Map;
DEFAULT e. Certification by the Director of Forestry;
Effect: If no person appears and answers within the f. Investigation reports of the Bureau of Lands
time allowed, the court shall, upon motion of the investigator; and
applicant, no reason to the contrary appearing, order g. Legislative act or by a statute (Id. at 247).
a default to be recorded and require the applicant to
present evidence. By the description in the notice 2. The Identity of the land
"To All Whom It May Concern", all the world is made
parties - defendant and shall be concluded by the NOTE: Proof of identity of land
default order. Where an appearance has been a. Survey plan in general;
entered and an answer filed, a default order shall be b. Tracing cloth plan and blueprint copies of
entered against persons who did not appear and plan;
answer (P.D. 1529, Sec. 25).
The submission of original tracing cloth plan
Remedy: A defaulted interested person may file as of the land approved by the Director of
a remedy motion to set aside the order of default in Lands is a statutory requirement of
accordance with Section 3(b) of Rule 9 of the Rules mandatory character which cannot be
of Court. (Cerezo v. Tuazon, G.R. No. 141538, waived either expressly or impliedly
March 23, 2004). (Director of Lands v. Heirs of Isabel
 Tesalona, G.R. No. 66130, September 8, as evidence of land ownership (Republic v. CA,
1994). G.R. No. L-56077, February 28, 1985).
It is merely an indicia of a claim of ownership
The Court has pointed out that although the (Camara v. Malabao, G.R. No. 154650, July 31,
best means to identify a piece of land for 2003) or that the holder has a claim of title over
registration purposes is the original tracing the property (Municipality of Antipolo v. Zapanta,
cloth plan approved by the Bureau of Lands G.R. No. L-65334, December 26, 1984).
(now the Lands Management Services of
the Department of Environment and Natural
Resources), other evidence could provide
sufficient identification (Republic v. Alba, 2. Tax declarations and Tax payments;
G.R. No. 169710, August 19, 2015). While tax declarations and real estate tax
receipts are not conclusive evidence of
c. Technical description of the land; ownership, if presented as documentary
d. Tax declarations (AGCAOILI, supra at 267); evidence coupled with proof of actual
and possession for the period required by law of the
e. Boundaries and area (Id. at 266). land, they are good evidence of ownership
(Heirs of Maningding v. CA, G.R. No. 121157,
3. Possession and occupation of the land for the July 31, 1997; Republic v. Metro Cebu Pacific
length of time and in the manner required by law Savings Bank, G.R. No. 205665, October 4,
(Ong v. Republic, G.R. No. 175746, March 12, 2017). Moreover, even if belatedly declared for
2008). taxation purposes, it does not negate
possession especially if there is no other
EFFECT OF POSSESSION claimant of the land (Republic v. CA and
GENERAL RULE: Open, exclusive, and undisputed Divinaflor, G.R. No. 116372, January 18, 2001).
possession of alienable public land for the period
prescribed by law creates the legal fiction whereby Where the taxes for 31 years, 1946 to 1976,
the land, upon completion of the requisite period ipso were paid only in 1976, a few months prior to
jure and without need of judicial or other sanctions, filing of the application, such payment does not
ceases to be public land and becomes private constitute sufficient proof that applicant has a
property (Director of Lands v. Manila Electric bona fide claim of ownership during those years
Company, G.R. No. L-57461, September 11, 1987). prior to the filing of the application (Republic v.
CA, G.R. No. L-61462, July 31, 1984).
The present possessor may complete the period
necessary for prescription by tacking his possession Mere failure of the owner of the land to pay the
to that of his grantor or predecessor-in-interest realty tax thereon does not warrant a conclusion
(CIVIL CODE, Art. 1138, par. 1). that there was abandonment of his right to the
property (Reyes v. Sierra. G.R. No. L-28658,
Tacking of possession is allowed only when there is October 18, 1979).
privity of contract or relationship between the
previous and present possessors (South City 3. Other kinds of proof; or
Homes, Inc. v. Republic, G.R. No. 76564. May 25, Testimonial evidence (i.e., accretion is on a land
1990). adjacent to a river). Any evidence that accretion
was formed through human intervention negates
PROOF OF PRIVATE OWNERSHIP: the claim (Binalay v. Manalo, G.R. No. 9216,
March 18, 1981).
(STOP)
1. Spanish title, in pending cases; 4. Presidential issuances and legislative
Spanish titles are now inadmissible and acts constitutive of a “fee simple” title or
ineffective as proof of ownership in land
absolute title in favor of the grantee
registration proceedings filed after August 16,
(Republic v. CA, G.R. No. L-40912, September
1976. All lands granted under the Spanish
30, 1976).
mortgage law system of registration, which are
not yet covered by a certificate of title issued
under the Torrens system, are deemed as INSUFFICIENT PROOF OF OWNERSHIP:
unregistered land (P.D. 1529, Sec. 3). (FiT²-COP)
1. Mere failure of Fiscal representing the State to
With the passage of P.D. 892, effective February cross-examine the applicant on the claimed
16, 1976, Spanish titles can no longer be used possession (Republic v. Lee, G.R. No. 64818,
May 13, 1991).
 and interest over the land and allocated portions
2. Tax declaration of land sought to be registered, thereof to each of them;
which is not in the name of the applicant but in
the name of the deceased parents of an NOTE: Assent of the Director of Lands and the
oppositor (Sunga v. De Guzman, G.R. No. L- Director of Forest Management to a compromise
25847, June 19, 1979); agreement did not and could not supply the
absence of evidence of title required of the
REASON: Possession of applicant is not applicant (Republic v. Sayo, G.R. No. 61565,
completely adverse or open, nor is it truly in the August 20, 1990).
concept of an owner (Sunga v. De Guzman, 2. A decision in an estate proceeding of a
G.R. No. L-25847, June 19, 1979). predecessor-in-interest of an applicant which
involves a property over which the decedent has
3. Holding of property by mere Tolerance of the no transmissible right, and in other cases where
owner (CIVIL CODE, Art. 537) issue of ownership was not definitely passed
upon (Director of Lands v. IAC, G.R. No. 70825,
REASON: The holder is not in the concept of an March 11, 1991);
owner, and does not perform possessory acts,
notwithstanding the length of the start of the 3. A survey plan of an inalienable land.
running of the period of prescription. Where
applicants tack their possession to that of their NOTE: Such plan does not convert such land
predecessor-in-interest, but they did not present into an alienable land, much less a private
him as witness or when no proof of what acts of property (Republic v. CA, G.R. No. L-56948,
ownership and cultivation were performed by the September 30, 1987).
predecessor, the holder likewise cannot be an
owner (Director of Lands v. Datu, G.R. No. L-
57573, July 5, 1982).
CADASTRAL
4. Mere Casual cultivation of portions of the land
by claimant (Republic v. Vera, G.R. No. L- PROCEEDINGS
35778, January 27, 1983; Director of Lands v.
Reyes, G.R. No. 102858, July 28, 1997;
Republic v. Science Park of the Philippines, Inc.,
G.R. No. 237714, November 12, 2018). Nature: An involuntary proceeding in rem, initiated
by the filing of petition for registration by the
REASON: Possession is not exclusive and government to adjudicate titles for all the land within
notorious so as to give rise to a presumptive a stated area, whether or not the people living within
grant from the State (Republic v. Vera, G.R. No. desire to have titles issued. Here, all claimants are
L-35778, January 27, 1983.). compelled to litigate against one another regarding
their respective claims of ownership (AGCAOILI,
5. Possession of Other persons in the land applied supra at 353).
for impugns the exclusive quality of the
applicant’s possession (Director of Lands v. CA, NOTE: The government initiates a cadastral case,
G.R. No. 50340, December 26, 1984). compelling all claimants in the municipality to litigate
against one another regarding their respective
6. Even if the petitioners can trace their deed of claims of ownership (Id. at 353)
sale back to Adam and Eve, fill in every square
inch of the land with agricultural tenants, have INVOLUNTARY PROCEEDING
residential houses built every few meters here Involuntary on the part of the claimants but they are
and there, pay the realty taxes religiously every compelled to substantiate their claim or interest
year and have an approved Bureau of Lands through an answer.
Survey yearly, they will not become the owners
if they will not follow the Procedure to obtain Purpose:
public agricultural land mandated by the Public 1. To serve the public interest by requiring that the
Land Act (C.A. No. 141) (Manalastas v. CA, G.R. titles to any unregistered lands be settled and
No. 97493, February 8, 1993). adjudicated (P.D. 1529, Sec. 35(a));
2. To settle all disputes over the land; and
PROOF INSUFFICIENT TO ESTABLISH 3. To remove all clouds over land titles, as far as
PRIVATE RIGHT OR OWNERSHIP: practicable, in a community (AGCAOILI, supra
at 353).
1. A compromise agreement among parties to a
land registration case where they have rights
Period of Filing 4. Names and addresses of the owners of
Extended up to December 31, 2020, as provided in the adjoining lots so far as known to the
R.A. 9176, Sec. 2 (2002). claimants
5. If the claimant is in possession of the
Limitation to Area Applied For lots claimed, the length of time he has
Maximum of twelve (12) hectares, as provided in held such possession and threat of his
R.A. 6940, Sec. 3 (1990). predecessors and the manner in which
it has been acquired;
PROCEDURE: (PreNo2S-P2AHDI) 6. If the claimant is not in possession or
1. Determination by the President that public occupation of the land, the interest
interest requires title to unregistered lands be claimed by him and the time and
settled and adjudicated; (P.D. 1529, Sec. 35 manner of his acquisition;
(a)); 7. The last assessed value of the lots/lots
8. The encumbrances, if any, affecting the
2. Notice of cadastral survey by the Director of lots and the names of adverse
Lands to persons claiming interest in the lands claimants, as far as known (AGCAOILI,
and to the general public; published once in the id at 356).
Official Gazette and posted in a conspicuous
place on the bulletin board of the municipal 8. Hearing of the case (P.D. 1529, Sec. 38);
building of the municipality in which the lands or
any portion thereof is situated; with copies 9. Decision (P.D. 1529, Sec. 38); and
furnished to the municipal mayor and barangay
captain, Sangguniang Panlalawigan and 10. Issuance of Decree and Certificate of Title (P.D.
Sangguniang Bayan (P.D. 1529, Sec. 35 (b)); 1529, Sec. 38).

3. Notice in advance of date of survey by Geodetic NOTE: In the absence of fraud, title to land in a
Engineers or other employees of the Bureau of cadastral proceeding is vested on the owner upon
Land Management and posting in bulletin board the expiration of the period to appeal from the
of the municipal building of the municipality or decision or adjudication by the cadastral court,
barrio, and shall mark the boundaries of the without such appeal being perfected; and from that
lands by monuments set up in proper places time the land becomes registered property which
thereon (P.D. 1529, Sec. 35 (c)); cannot be lost by adverse possession (AGCAOILI,
supra at 357).
4. Cadastral Survey (P.D. 1529, Sec. 35);
The rule is different in case of public land. Under
NOTE: Only unregistered lands may be the Section 103 of the Property Registration Decree, the
subject of a cadastral survey (AGCAOILI, supra property is not considered registered until the final
at 358). act or the entry in the registration book of the
Registry of Deeds has been accomplished.
5. Filing of Petition (P.D. 1529, Sec. 36);
When the lands have been surveyed or plotted, A decision in a cadastral proceeding declaring land
the Director of Lands, represented by the as public land does not preclude the claimant from
Solicitor General, shall institute original subsequently seeking a judicial confirmation of his
registration proceedings before the Regional title to the same land under Sec. 48, C.A. 141
Trial Court of the place where the land is (Director of Lands v. Court of Appeals and Pastor,
situated. (P.D. 1529, Sec. 36). G.R. No. L-47847, July 31, 1981).

6. Publication, mailing, and posting; Neither prescription nor laches may render
Publication of notice of initial hearing to be inefficacious a decision in a land registration case
published twice in successive issues of the (Republic v. Nillas, G.R. No. 159595, January 23,
Official Gazette, in English language (Act No. 2007). The failure on the part of the administrative
2259, Sec. 7); authorities to do their part in the issuance of the
decree of registration cannot oust the prevailing
7. Filing of Answer (P.D. 1529, Sec. 37); party from ownership of the land (De Luzuriaga, Jr.
The answer shall also contain: v. Republic, G.r. No. 169019, June 30, 2009)
1. Age of the claimant
2. Cadastral number of the lot or lots In Rodriguez vs Toreno and Abes vs Rodil, the
claimed cadastral court declared lands as private property
3. Name of the barrio and municipality in and the final judgment rendered therein was held to
which the lots are situated be res judicata. In Republic vs Vera, it was ruled that
while the land was declared public land by the ORDINARY REGISTRATION
cadastral court, respondents who apparently either PROCEEDING V.
did not file their answers or failed to substantiate
their claims were now precluded from re-litigating the CADASTRAL PROCEEDING
same issues already determined by final judgment ORDINARY
CADASTRAL
(AGCAOILI, supra at 367). REGISTRATION
PROCEEDING
PROCEEDING
JURISDICTION AND POWERS OF THE
CADASTRAL COURT IN CADASTRAL As to Nature of Registration
PROCEEDINGS: Voluntary. Compulsory.
1. Adjudicate title to any claimant entitled thereto;
2. Declare land as a public land; As to Applicant
3. Order the correction of the technical description;
4. Order the issuance of new title in place of the Landowner. The Government
title issued under voluntary registration (Director of Lands
proceedings; through the Solicitor
5. Determine the priority of overlapping title; and General).
6. Order the partition of the property (NOBLEJAS,
supra at 478-479). As to Lands Covered

Usually involves private All classes of lands are

ACTIONS TAKEN BY THE CADASTRAL land; it may also refer to included.
COURT AT THE TRIAL: public agricultural lands
1. Judgment or decision, which adjudicates if the object of the action
ownership of the land involved in favor of one or is confirmation of an
more claimants, or if there are no successful imperfect title.
claimants, declare such as a public land. This is
the decree of the court; As to Parties
2. Declaration by the court that the decree is final
and its order for the issuance of the Certificate Applicant and oppositor Landowners must
of Title by the LRA; and come to court as
3. Issuance of the decrees of registration pursuant claimants of their own
to final judgments of the court, registration of lands.
decree by the LRA and issuance of the
corresponding Certificate of Title (AGCAOILI, As to Purpose
supra at 357-358).
Petitioner comes to Government asks the
court to confirm his title court to settle and
NOTE: The Cadastral court is not limited to merely
and seeks the adjudicate the title of
adjudication of ownership in favor of one or more
registration of the land in the land.
claimants. If there are no successful claimants, the
his name.
property is declared public land. Additionally, while
the court has no jurisdiction to adjudicate lands As to Survey
already covered by a Certificate of Title, it is
nonetheless true that this rule only applies where Survey applied for is It is the Government
there exists no serious controversy as to the done at the instance and that undertakes the
certificate’s authenticity vis-à-vis the land covered for the account of the survey and advances
therein (Republic v. Vera, G.R. No. L-35778, applicant who is a the expenses incident
January 27, 1983; Widows and Orphans Ass’n., Inc. private person. thereto.
v. CA, G.R. No. 91797, August 28, 1991).
As to Effect of Judgment
Cadastral courts have no jurisdiction over a petition
for reconstitution. Where respondent heirs were in No adverse claim; if the If none of the
possession of the lots in question, unlawfully and applicant fails to prove applicants can prove
adversely, during the cadastral proceedings, they his title, his application that he is entitled to the
may be judicially evicted by means of a writ of may be dismissed land, the same shall be
possession, the issuance of which never prescribes without prejudice (no res declared public (res
(AGCAOILI, supra at 368). judicata). judicata).
(NOBLEJAS, supra at 77).
 INDIGENOUS CULTURAL
R.A. 8371 COMMUNITIES/INDIGENOUS PEOPLES
(INDIGENOUS PEOPLES (ICCS/IPS)
RIGHTS ACT OF 1997) 1. Group of people or homogenous societies
identified by self-ascription and ascription by
another, who
a. Have continuously lived as organized
community on communally bounded and
INDIGENOUS PEOPLES RIGHTS ACT defined territory; and
(IPRA) OF 1997 (R.A. 8731) b. Have, under claims of ownership since time
Allows indigenous people to register their ancestral immemorial, occupied, possessed customs,
lands under Judicial Confirmation of Imperfect Title tradition and other distinctive cultural traits;
or under Voluntary Land Registration Proceedings. or
c. Have, through resistance to political, social
The IPRA categorically declares ancestral lands and and cultural inroads of colonization, non-
domains held by native title as never to have been indigenous religions and culture, became
public land. Domains and lands held under native historically differentiated from the majority of
title are, therefore, indisputably presumed to have Filipinos (IPRA, Sec. 3, par. h).
never been public lands and are private (Cruz v.
Sec. of Environmental and Natural Resources, G.R. 2. People who are regarded as indigenous on
No. 135385, December 6, 2000, J. Puno’s Opinion). account of their descent from the populations
Ancestral lands remain as such even if possession which inhabited the country, at the time of
is interrupted by voluntary dealing (AGCAOILI, conquest or colonization, or at the time of
supra at 115). inroads of non-indigenous religions and
cultures, or the establishment of present state
NATIVE TITLE boundaries, who retain some or all of their own
social, economic, cultural and political
Refers to pre-conquest rights to lands and domains
institutions, but who may have been displaced
which, as far back as memory reaches, have been
from their traditional domains or who may have
held under a claim of private ownership by ICCs/IPs,
resettled outside their ancestral domains (IPRA,
have never been public lands and are thus
Sec. 3, par. h).
indisputably presumed to have been held that way
since before the Spanish Conquest (IPRA, Sec. 3,
par. l). ANCESTRAL DOMAINS
It refers to all areas generally belonging to ICCs/IPs
CONSTITUTIONAL BASIS OF THE IPRA comprising lands, inland waters, coastal areas and
natural resources therein which are:
The State, subject to the provisions of the
1. Held under a claim of ownership, occupied or
Constitution and national development policies and
possessed by ICCs/IPs, by themselves or
programs, shall protect the rights of indigenous
through their ancestors, communally or
cultural communities to their ancestral lands to
individually;
ensure their economic, social and cultural well-
2. Since time immemorial, continuously to the
being.
present except when interrupted by war, force
majeure or displacement by force, deceit or
The Congress may provide for the applicability of
stealth, or as a consequence of government
customary laws governing property rights or
projects or any other voluntary dealings entered
relations, in determining the ownership and extent of
into by the government and private
ancestral domain (CONSTI., Art XII, Sec. 5).
individuals/corporations; and
3. Which are necessary to ensure their economic,
The Supreme Court upheld the constitutionality of
social, and cultural welfare (IPRA, Sec. 3, par.
the IPRA, as it grants to ICCs/IPs a distinct kind of
a).
ownership over ancestral domains and ancestral
lands. It was to address the centuries-old neglect of
It also includes lands which may no longer be
the Philippine indigenous peoples that the Tenth
exclusively occupied by the ICCs/IPs but from which
Congress of the Philippines passed and approved
they traditionally had access to for their subsistence
R.A. 8371 (Cruz v. Secretary of DENR, G.R. No.
and traditional activities (IPRA, Sec. 3, par. a).
135385, December 6, 2000).

ANCESTRAL LANDS
Refers to land occupied, possessed and utilized by
individuals, families and clans who are members of
the ICCs/IPs since time immemorial, by themselves The IPRA connotes groups or communal
or through their predecessors-in-interest, under ownership
claims of individual or traditional group ownership, By virtue of the communal character of ownership,
continuously, to the present except when interrupted the property held in common is meant to benefit the
by war, force majeure or displacement by force, whole indigenous community and not merely the
deceit, stealth, or as a consequence of government individual member. This concept maintains the view
projects and other voluntary dealings entered into by that said domains are the ICCs/IPs’ private but
government and private individuals/corporations, community property. Communal rights are held in
including, but not limited to, residential lots, rice trust for all generations of the ICCs/IPs, past present
terraces or paddies, private forests, swidden farms and future.
and tree lot (IPRA, Sec. 3, par. b).
The domain cannot be transferred, sold, conveyed
ANCESTRAL DOMAIN V. ANCESTRAL to other persons by one person and belongs to the
LAND ICCs/IPs as a community (AGCAOILI, supra at 121-
122).
ANCESTRAL ANCESTRAL LAND
DOMAIN NATURAL RESOURCES WITHIN
As to Scope/Inclusion ANCESTRAL DOMAINS
The IPRA recognizes the existence of the
Includes all areas Only includes lands indigenous cultural communities or indigenous
generally belonging to which are occupied, peoples as a distinct sector in Philippine Society.
ICCs/IPs comprising possessed and utilized The ownership given is the indigeneous concept of
lands, inland waters, by individuals, families ownership under customary law which traces its
coastal areas and and clans who are origin to native title (AGCAOILI, supra at 121).
natural resources members of the However, it does not necessarily mean that the
therein. ICCs/IPs since time natural resources found therein belong to the
immemorial. ICCs/IPS as private property. Ownership over the
natural resources belong to the State (AGCAOILI,
May be found within supra at 122).
ancestral domains
(IPRA, Sec. 53). The ICCs/IPS shall have priority rights in the
harvesting, extraction, development or exploitation
As to Evidence of Native Title of any natural resources within the ancestral
domains (IPRA, Sec. 57).
Certificate of Ancestral Certificate of Ancestral
Domain Title (CADT) Land Title (CALT) under The ICCs/IPs rights over the natural resources take
under IPRA— Rule II Rule II [c], Rules the form of management or stewardship. The law
[c], Rules Regulations Regulations only grants the ICCs/Ips “priority” rights in the
Implementing the Implementing the IPRA. development or exploitation thereof (AGCAOILI,
IPRA. . supra at 123).
As to Modes of Acquisition
A non-member of the ICCs/IPs concerned may be
By native title (IPRA). By native title; or allowed to take part in the development and
Registration under utilization of the natural resources for a period of
C.A.141/P.D. 1529. not exceeding twenty-five (25) years renewable
for not more than twenty-five (25) years provided
that a formal and written agreement is entered
TIME IMMEMORIAL into with the ICCs/IPs concerned (IPRA, Sec. 57).
Refers to a period of time when as far back as
memory can go, certain Indigenous Cultural DELINEATION AND RECOGNITION OF
Communities/Indigenous People are known to have ANCESTRAL DOMAIN
occupied, possessed in the concept of owner, and Under RA No. 8371, self-delineation is the guiding
utilized a defined territory devolved to them, by principle in the identification and delineation of
operation of customary law or inherited from their ancestral domains. The SWORN statement of the
ancestors, in accordance with their customs and elders as to the scope of their territories and
traditions (IPRA, Sec. 3, par. p). agreements/pacts made with neighboring ICCs/IPs,
if any, will be essential to the determination of these
traditional territories (AGCAOILI, supra at 123).
TWO MODES OF ACQUIRING TRANSFER OF LAND AND PROPERTY
ANCESTRAL DOMAINS AND RIGHTS
ANCESTRAL LANDS: These lands may be transferred subject to the
1. By Native Title, over both ancestral lands and following limitations:
domains; and a. Only to the members of the same ICCs/IPs
2. By Torrens title under the Public Land Act and b. In accord with customary laws and traditions and
Property Registration Decree, with respect to c. Subject to the right of redemption of the
ancestral lands only (IPRA, Sec. 12). ICCs/IPs for a period of 15 years if the land was
transferred to a non-member of the ICCs/IPs,
NOTE: The option granted under Sec. 12 of the under the terms of the law (AGCAOILI, supra at
IPRA was allowed to be exercised within 20 years 126).
from the effectivity of the Act, or from October 29,
1997.

REQUISITES FOR REGISTRATION OF SUBSEQUENT

ANCESTRAL LANDS REGISTRATION
1. Applicant must be a member of the Indigenous
ICCs/Ips P.D. 1529
2. Possession of ancestral land must not be less
than 30 years immediately preceding the
approval of IPRA on October 29, 1997
3. By operation of law, the land is already classified
as alienable and disposable even with a slope of
18% or more. Hence, no need to submit a
separate certification that the land has been
classified as alienable and disposable (IPRA,
Sec.12).

CERTIFICATE OF ANCESTRAL LAND

TITLE: (CALT)
Refers to a title formally recognizing the rights of the
ICCs and IPs over their ancestral lands (IPRA, Sec.
3, par. d).

The allocation of ancestral lands within any ancestral

domains to individual or indigenous corporate
claimants shall be left to the ICCs/IPs concerned to
decide in accordance with customs and traditions. If
the NCIP finds such claim meritorious, it shall issue
a CALT, declaring and certifying the claim of each
individual or corporate claimant over ancestral
lands. (IPRA, Sec. 53(g)).

CERTIFICATE OF ANCESTRAL DOMAIN

TITLE
Refers to a title formally recognizing the right of
possession and ownership of ICCs and IPs over
their ancestral domains identified and delineated in
accordance with the law (IPRA, Sec. 3, par. c).

EFFECT OF REGISTRATION
A duly issued Torrens title covering ancestral lands
has the same efficiency, validity and indefeasibility
as any title issued through regular registration
proceedings (AGCAOILI, supra at 125).
SUBSEQUENT REGISTRATION acquired a right to the same land, his knowledge of
Refers to any transaction affecting an originally that prior unregistered interest has the effect of
registered land and which, if in order, is registered in registration as to such party (AGCAOILI, supra at
the Office of the Register of Deeds concerned, 430). Actual notice, however, is equivalent to
(PEÑA, supra at 12). registration (AGCAOILI, supra at 431).

Where incidental matters after original registration The non-registration of the Deed of Absolute Sale
may be brought before the land registration court by with the Registry of does not affect the sale’s validity
way of a motion or petition filed by the registered and effectivity. As ruled in Sapto v. Fabiana,
owner or a party in interest (Id at 12). between the parties to a sale, registration is not
necessary to make it valid and effective, for actual
All transactions affecting an originally registered notice is equivalent to registration (Miranda v. Sps.
land, whether voluntary or involuntary, shall be Ernesto, G.R. No. 218343, November. 28, 2018).
registered with the proper Register of Deeds. (P.D
1529, Sec. 10).
KINDS OF TRANSACTIONS AFFECTING
RULES AS TO THE NECESSITY AND LANDS ORIGINALLY REGISTERED
EFFECTS OF REGISTRATION, IN 1. Voluntary Dealings
GENERAL: 2. Involuntary Dealings
1. Except a will that purports to convey or affect a
registered land, the mere execution of deeds of VOLUNTARY DEALINGS V.
sale, mortgages, leases or other voluntary INVOLUNTARY DEALINGS
documents serves only two (2) purposes: (1) as VOLUNTARY INVOLUNTARY
a contract between the parties thereto; and (2) DEALINGS DEALINGS
as evidence of authority to the RD to register
such documents (P.D. 1529, Sec. 51, par. 1). As to Concept
2. It is only the act of registering the instrument in
the Register of Deeds of the province or city Refer to deeds, Refer to such writ, order
where the land lies which is the operative act instruments or or process issued by a
that conveys ownership or affects the land documents which are court of record affecting
insofar as third persons are concerned (P.D. results of the free and registered land which
1529, Sec. 51, par. 2). voluntary acts of the by law should be
3. The act of registration creates a constructive parties thereto registered to be
notice to the whole world of such voluntary or (AQUINO, supra at effective, and also to
involuntary instrument or court writ or process 184). such instruments which
(P.D. 1529, Sec. 52). are not the willful acts of
the registered owner
Registration of a document is ministerial on the part and which may have
of the Register of Deeds. The Register of Deeds is been executed even
precluded from exercising his personal judgment without his knowledge
and discretion when confronted with the problem of or against his consent
whether to register a deed or instrument on the (AQUINO, supra at
ground that it is invalid. This function belongs to a 184).
court of competent jurisdiction (Almirol v. Register of
Deeds of Agusan, G.R. No. L-22486, March 20, As to Kinds
1968).
1. Sale; 1. Attachment;
A deed or other voluntary instrument involving 2. Real property 2. Mandamus;
registered land shall not take effect as a conveyance mortgage; 3. Sale on execution of
or bind the land but shall operate as a contract 3. Lease; judgment or sales for
between the parties and as evidence of the authority 4. Pacto de retro sale; taxes;
of the Register of Deeds to make registration. The 5. Extra-judicial 4. Adverse claims;
act of registration shall be the operative act to settlement; 5. Notice of lis
convey or affect the land insofar as third persons are 6. Free patent/ pendens;
concerned (Marasigan v. Intermediate Appellate homestead; 6. Expropriation;
Court, G.R No. L-69303, July 23, 1987). 7. Powers of attorney; 7. Forfeiture; and
and 8. Auction sale on
Thus, where the party has knowledge of a prior 8. Trusts. foreclosure of
existing interest which is unregistered at the time he mortgage.
 VOLUNTARY INVOLUNTARY REQUIREMENTS IN THE PROCESS OF
DEALINGS DEALINGS REGISTRATION IN VOLUNTARY
DEALINGS: (SPF3)
Effects of Registration
1. Compliance with the form prescribed
An innocent purchaser Entry thereof in the day under P.D. 1529, Sec. 112;
for value of registered book of the Register of Deeds, conveyances, encumbrances,
land becomes the Deeds is sufficient discharges, powers of attorney and other
registered owner the notice to all persons voluntary instruments shall be in a public
moment he presents even if the owner’s instrument executed in accordance with law, viz:
and files a duly duplicate certificate of (SANS)
notarized and valid title is not presented to
deed of sale and the the Register of Deeds. a. Signed by the parties in the presence of at
same is entered in the least 2 witnesses who shall likewise sign
day book and at the thereon;
same time he b. Acknowledged to be the free act and deed
surrenders or presents of the parties before a notary public or other
the owner’s duplicate officer authorized by law to take
certificate of title acknowledgment;
covering the land sold. c. Where the instrument has for its object 2 or
more parcels of land, the Number thereof
As to Presentment of Certificate of Title shall also be stated in the acknowledgment.
d. Each page of the copy of the instrument,
Need to present title to No presentation except the page where the Signatures
record the deed in required – annotation in already appear at the foot of the instrument,
registry and to make entry book is sufficient. shall be: (1) signed on the left margin thereof
memorandum on title. by the parties and their witnesses, and (2)
sealed with the notarial seal. This fact as
well as the number of the pages shall be
stated in the acknowledgment.
VOLUNTARY DEALINGS 2. Presentation of owner’s duplicate
certificate (P.D. 1529, Sec. 53);
The production of the owner's duplicate
An owner of a registered land may convey, certificate of title serves as conclusive authority
mortgage, lease, charge or otherwise deal with the from the registered owner to the Register of
same in accordance with existing laws. He may use Deeds to enter a new certificate or to make a
such forms of deeds, mortgages, leases or other memorandum of registration in accordance with
voluntary instruments as are sufficient in law (P.D. the voluntary instrument presented (AGCAOILI,
1529, Sec. 51). supra at 433).

The act of registration shall be the operative act to Where a voluntary instrument cannot be
convey or affect the land insofar as third persons are registered by reason of the refusal or failure of
concerned (P.D. 1529, Sec. 51). the holder to surrender the owner's duplicate
certificate of title, the party in interest may file a
PHYSICAL DELIVERY NOT A petition in court to compel surrender of the same
to the Register of Deeds (P.D. 1529, Sec.107).
REQUISITE FOR A VALID
CONVEYANCE Upon filing of the petition, the court, after
Delivery as a mode of transmission of ownership hearing, may either:
may be actual or constructive. When the sale of real a. Order the registered owner or any person
property is made in a public instrument, the withholding the duplicate certificate to
execution thereof is equivalent to the delivery of the surrender the same and direct the entry of a
thing, object of the contract, absent any showing in new certificate or memorandum upon such
the deed to the contrary. In this case, there is surrender; or
constructive delivery (Philippine Suburban b. If the registered owner or any person
Development. Corp. v. Auditor General, G.R. No. L- withholding the duplicate certificate refuses
19545, April 18, 1975). to surrender the same or if for any reason
the outstanding owner’s duplicate certificate
cannot be delivered, order the annulment of
 the same as well as the issuance of a new 6. Sufficiently strong Indications to impel closer
certificate of title in lieu thereof (AGCAOILI, inquiry into the location, boundaries and
supra at 434). condition of the lot (Francisco v. CA, G.R. No. L-
30162, August 31, 1987); and
3. Full payment of required registration 7. Purchaser with full Knowledge of flaws and
fees and the requisite documentary defects in the title (Bernales v. IAC, G.R. Nos.
stamps; 71490-91, June 28, 1988; Lu v. Manipon, G.R.
No. 147072, May 7, 2002).
4. Evidence of Full payment of real estate
The presence of anything that excites or arouses
tax as may be due; and
suspicion should then prompt the vendee to look
beyond the vendor’s certificate and investigate the
5. Inclusion of one extra copy of any title appearing on the face of that certificate. A
document of transfer or alienation of real vendee who does not do so cannot be denominated
property, to be Furnished the city or either as an innocent purchaser for value or as a
provincial assessor (PEÑA, supra at 247). purchaser in good faith and hence, does not merit
the protection of the law (Sps. Domingo v. Reed,
MIRROR DOCTRINE G.R. No. 157701. Dec. 9, 2005).
All persons dealing with property covered by a
Torrens certificate of title are not required to go TIME OF EFFECTIVITY OF
beyond what appears on the face of the title. When REGISTRATION
there is nothing on the Certificate of Title which The Register of Deeds shall, as a preliminary
indicates the presence of any cloud or vice in the process in registration, note in such book the date,
ownership of the property, or any encumbrance hour and minute of reception of all instruments, in
thereon, the purchaser is not required to explore the order in which they were received. They shall be
further than what the Torrens Title upon its face regarded as registered from the time so noted, and
indicates in quest for any hidden defect or inchoate the memorandum of each instrument, when made
right that may subsequently defeat his right thereto on the certificate of title to which it refers, shall bear
(Centeno v. CA, G.R. No. L-40105, November 11, the same date (P.D. 1529, Sec. 56).
1985; Sigaya v. Mayuga, G.R. No. 143254, August
18, 2005; Calma v. Lachica, G.R.No.222031, The rule is that where two certificates of title are
November 22, 2017). issued to different persons covering the same parcel
of land in whole or in part, the earlier in date must
NOTE: The sanctity of the Torrens System must be prevail as between the original parties and, in case
preserved; otherwise, everyone dealing with the of successive registration where more than one
property registered under the system will have to certificate is issued over the land, the person holding
inquire in every instance s to whether the title had title under the prior certificate is entitled to the
been regularly issued, contrary to the evident property as against the person who relies on the
purpose of the law (Heirs of Gavino v. CA, G.R. No. second certificate (National Housing Authority v.
120154, June 29, 1998). Laurito, G.R. No. 191657, July 31, 2017).

EXCEPTIONS TO THE APPLICABILITY The rule that where two certificates purport to
OF THE MIRROR DOCTRINE: include the same land, the earlier in date prevails, is
(BF-BALIK) valid only absent any anomaly or irregularity tainting
the registration (Beatingo v. Gasis, G.R No. 179641,
1. Purchaser acted in Bad faith (Egao v. CA, G.R.
Feb. 9, 2011; Bangis v. Heirs of Adolfo, G.R. No.
No. 79787, June 29, 1989);
190875, June 13, 2012).
2. When the purchaser or mortgagee is a
Financing institution e.g. GSIS (Dela Merced v.
GSIS, G.R. No. 140398, September 11, 2001); DOUBLE SALE
3. Banks, as their business is one affected with Where the same registered owner sells the same
public interest (Omengan v. PNB, G.R. No. land to two different persons who are unaware of the
161319, January 23, 2007); flaw that lies in its title, the ownership of the land
4. Where a person buys land not from the passes to the vendee who first recorded it in the
registered owner but from one whose right to the Register of Deeds (CIVIL CODE, Art. 1544, par. 2).
land has been merely Annotated on the
Certificate of Title (Quiniano v. CA, G.R. No. L- Should there be no inscription, the ownership shall
23024, May 31, 1971); pertain to the first possessor in good faith and in the
5. Purchaser of land where the certificate of title absence thereof, to the one who, in good faith,
contains a notice of Lis pendens;
presents the oldest title (CIVIL CODE, Art. 1544, par. NOTE: The protection given to an innocent
3). purchaser for value extends to an innocent lessee,
mortgagee, or other encumbrancer for value (P.D.
FORGED OR FRAUDULENT DEED MAY 1529, Sec. 32).
BE THE ROOT OF A VALID TITLE
A fraudulent and forged document of sale may MEMORANDUM OF ENCUMBRANCES
become the root of a valid title if the certificate has It is not necessary to issue a new certificate on the
already been transferred from the name of the true basis of an instrument which does not divest the
owner to the name indicated by the forger (Duran v. ownership or title from the owner or from the
Intermediate Appellate Court, G.R. No. L-64159, transferee of the registered owner. A brief
September 10, 1985). memorandum of the nature of the instrument
entered into the certificate of title, signed by the
Requisites: (DTI) Register of Deeds, shall serve as notice to third
1. The registered owner Delivered or entrusted the parties of the instruments affecting the property
owner’s duplicate certificate of title to the forger; (AGCAOILI, supra at 444).
2. The certificate has already been Transferred All interests in registered land less than ownership
from the name of the true owner to the forger; shall be entered in the memorandum of
and encumbrances (P.D. 1529, Sec. 54).
3. The vendee or mortgagee is an Innocent
purchaser for value (AGCAOILI, supra at 438). CONVEYANCES AND TRANSFERS
Upon presentation by the owner who desires to
The established rule is that a forged deed is convey the land covered by his title of the proper
generally null and cannot convey title, the exception deed of conveyance and the owner's duplicate
thereto, pursuant to Section 55 of the Land certificate to the Register of Deeds, the latter shall:
Registration Act, denotes the registration of titles 1. Enter in the registration book the fact of
from the forger to the innocent purchaser for value. conveyance;
Thus, the qualifying point here is that there must be 2. Prepare a new certificate of title in the name of
a complete chain of registered titles. This means that the grantee; and
all the transfers starting from the original rightful 3. Cancel the original and owner's duplicate
owner to the innocent holder for value – and that certificate of the grantor (P.D. 1529, Sec. 57).
includes the transfer to the forger – must be duly
registered, and the title must be properly issued to IF A DEED OR CONVEYANCE IS FOR A
the transferee (Sps. Peralta v. Heirs of Abalon, G.R.
No. 183448, June 30, 2014).
PART ONLY OF THE LAND DESCRIBED
IN A CERTIFICATE OF TITLE
The above rule cannot be applied where the owner The Register of Deeds shall not enter any transfer
still holds a valid and existing certificate of title certificate to the grantee until a plan of such land
covering the same property because the law showing all the portions or lots into which it has been
protects the lawful holder of a registered title over the subdivided and the corresponding technical
transfer of a vendor, bereft of any transmissible right descriptions shall have been verified and approved
(Tomas v. Tomas, G.R. No. L-36897, June 26, pursuant to Section 50 of this Decree. Meanwhile,
1980). such deed may only be annotated by way of
memorandum upon the grantor's certificate of title,
INNOCENT PURCHASER FOR VALUE original and duplicate, said memorandum to serve
Where registration is procured by fraud, the owner as a notice to third persons of the fact that certain
may pursue all his legal and equitable remedies unsegregated portion of the land described therein
against the parties to such fraud without prejudice, has been conveyed, and every certificate with such
however, to the rights of any innocent holder for memorandum shall be effectual for the purpose of
value of a certificate of title (P.D. 1529, Sec. 53, par. showing the grantee's title to the portion conveyed to
3). him, pending the actual issuance of the
corresponding certificate in his name.
An innocent purchaser for value is one who buys the
property of another without notice that some other Upon the approval of the plan and technical
person has a right to or interest in that same descriptions, the original of the plan, together with a
property, and who pays a full and fair price at the certified copy of the technical descriptions shall be
time of the purchase and before receiving any notice filed with the Register of Deeds for annotation in the
of another person’s claim (Sps. Villamil v. Villarosa, corresponding certificate of title and thereupon said
G.R. No. 177187, April 7, 2009). officer shall issue a new certificate of title to the
grantee for the portion conveyed, and at the same
time cancel the grantor's certificate partially with
respect only to said portion conveyed, or, if the entering into a mortgage contract (PNB v.
grantor so desires, his certificate may be canceled Juamanoy, G.R No. 169901, Aug. 3, 2011).
totally and a new one issued to him describing Where the mortgagee is a bank, it cannot rely
therein the remaining portion: Provided, however, merely on the certificate of title offered by the
that pending approval of said plan, no further mortgagor in ascertaining the status of
registration or annotation of any subsequent deed or mortgaged properties. Since its business is
other voluntary instrument involving the impressed with public interest, the mortgagee-
unsegregated portion conveyed shall be effected by bank is duty-bound to be more cautious even in
the Register of Deeds, except where such dealing with registered lands. Indeed, the rule
unsegregated portion was purchased from the that a person dealing with registered lands can
Government or any of its instrumentalities (P.D. rely solely on the certificate of title does not
1529, Sec. 58). apply to banks (Heirs of Paz Macalalad v. Rural
Bank of Pola, Inc., G.R. 200899, June 20, 2018).
IF THE LAND HAS BEEN SUBDIVIDED
INTO SEVERAL LOTS, DESIGNATED BY The ascertainment of the status or condition of a
property offered to it as security for a loan must
NUMBERS OR LETTERS be a standard and indispensable part of its
The Register of Deeds may, if desired by the grantor, operations (Duque Rosario v. Banco Filipino
instead of canceling the latter's certificate and Savings and Mortgage Bank, G.R No. 140528,
issuing a new one to the same for the remaining December 7, 2011).
unconveyed lots, enter on said certificate and on its
owner's duplicate a memorandum of such deed of 2. Mortgagee does not directly deal with the
conveyance and of the issuance of the transfer unregistered owner of real property (Arguelles v.
certificate to the grantee for the lot or lots thus Malarayat Rural Bank, Inc., G.R No. 200468,
conveyed, and that the grantor's certificate is March 19, 2014).
canceled as to such lot or lots (P.D. 1529, Sec. 58).
UNRECORDED SALE OF A PRIOR DATE
CARRYING OVER OF ENCUMBRANCES VERSUS RECORDED MORTGAGE ON A
In conveyances of registered land, all subsisting LATER DATE
encumbrances or annotations appearing in the
registration book shall be carried over and stated on Between an unrecorded sale of a prior date and a
the new certificate of title, except where said recorded mortgage of a later date, the former is
encumbrances or annotations are simultaneously preferred to the later for reason that if the original
released or discharged (P.D. 1529, Sec. 59). owner had parted with his ownership of the thing
sold then he no longer had the ownership and free
disposal of that thing so as to be able to mortgage it
MORTGAGES AND LEASES again (AGCAOILI, supra at 457).
Mortgages and leases shall be registered by filing
with the Register of Deeds the instrument creating DISCHARGE OR CANCELLATION
the mortgage and by a brief memorandum thereof
made by the Register of Deeds (P.D. 1529, Sec. 60). A mortgage or lease on registered land may be
discharged or cancelled by means of an instrument
executed by the mortgagee or lessee in a form
MIRROR DOCTRINE APPLIES TO THE sufficient in law, which shall be filed with the Register
RIGHT OF A MORTGAGEE of Deeds who shall make the appropriate
GENERAL RULE: A mortgagee has a right to rely in memorandum upon the certificate of title (P.D. 1529,
good faith on the certificate of title of the mortgagor Sec. 62).
of the property offered as security, and in the
absence of any sign that might arouse suspicion, the POWER OF ATTORNEY
mortgagee has no obligation to undertake further Referred to as an authority to do some act in relation
investigation (Arguelles v. Malarayat Rural Bank, to lands, or the creation of estates therein, or of
Inc., G.R No. 200468, March 19, 2014) (AGCAOILI, charges thereon, which the owner, granting or
supra at 444). reserving such power, might himself perform (PEÑA,
supra at 439).
EXCEPTIONS:
1. Banking institutions Any person may, by power of attorney, convey or
Banks are expected to exercise greater care and otherwise deal with registered land and the same
prudence in their dealings, including those shall be registered with the Register of Deeds of the
involving registered lands. A banking institution province or city where the land lies. Any instrument
is expected to exercise due diligence before revoking such power of attorney shall be registered
in a like manner (P.D. 1529, Sec. 64).
 TYPE HOW REGISTERED
TRUST
Fiduciary relationship with respect to property which 2. A final judgment or
involves the existence of equitable duties imposed order of a court of
upon the holder of the title to the property to deal with competent
it for the benefit of another (AGCAOILI, supra at jurisdiction has
477). construed the
instrument in favor
RULES IN THE REGISTRATION OF of the power. (P.D.
1529, Sec. 66)
TRUSTS INVOLVING REGISTERED
LANDS
TYPE HOW REGISTERED

Whenever a deed or A note shall be made INVOLUNTARY

other instrument is filed upon the original DEALINGS
for the purpose of instrument creating or
transferring registered declaring the trust or
land in trust, or upon other equitable interest
any equitable condition a reference by number INVOLUNTARY DEALINGS AFFECTING
or limitation expressed to the:
therein, or for the 1. certificate of title to
REGISTERED LAND WHICH MUST BE
purpose of creating or which it relates; and REGISTERED: (ASAN)
declaring a trust or 2. to the volume and 1. Attachments (P.D. 1529, Sec. 69);
other equitable interest page in the 2. Sale on execution or levy for taxes or for any
in such land without registration book assessment (P.D. 1529, Sec. 74);
transfer. where it is registered 3. Adverse claim (P.D. 1529, Sec. 70); and
(P.D. 1529, Sec. 65). 4. Notice of lis pendens (P.D. 1529, Sec. 76).

Trusts with power of No instrument which SURRENDER OF CERTIFICATE IN

sale transfers, mortgages or
INVOLUNTARY DEALINGS
in any way deals with
registered land in trust If an attachment or other lien in the nature of an
shall be registered involuntary dealing in registered land is registered,
unless the enabling and the duplicate certificate is not presented at the
power is: time of registration, the Register of Deeds shall,
1. Expressly conferred within thirty-six hours, send notice by mail to the
in the trust registered owner requesting him to send or produce
instrument; or his duplicate certificate so that a memorandum of the
2. A final judgment or attachment or other lien may be made thereon.
order of a court of
competent If the owner neglects or refuses to comply within a
jurisdiction has reasonable time, the Register of Deeds shall report
construed the the matter to the court, and it shall, after notice, enter
instrument in favor of an order to the owner to produce his certificate at a
the power. (P.D. time and place named therein, and may enforce the
1529, Sec. 66) order by suitable process (P.D 1529, Sec. 71).

ATTACHMENT
Implied Trusts No instrument which Attachment is the legal process of seizing another's
transfers, mortgages or property in accordance with a writ or judicial order
in any way deals with for the purpose of securing satisfaction of a
registered land in trust judgment yet to be rendered (AGCAOILI, supra at
shall be registered 483).
unless the enabling
power is: An attachment, or a copy of any writ, order or
1. Expressly conferred process issued by a court of record, intended to
in the trust create of preserve any lien, status, right, or
instrument; or attachment upon registered land, shall be filed and
registered in the Registry of Deeds for the province said property that someone is claiming an interest
or city in which the land lies (P.D 1529, Sec. 69). on the same or a better right than that of the
registered owner thereof (Valderama v. Arguelles,
When an attachment has been levied upon property, G.R. No. 223660, April 02, 2018).
a purchaser thereof subsequent to the attachment
takes the property subject to the attachment. But in Claim or interest is adverse when:
determining priority between two attachments on 1. Claimant’s right or interest in registered land is
execution affecting the same property, it is not the adverse to the registered owner;
priority of the execution sales held that will determine 2. Such right arose subsequent to the date of
the preference, but the priority between the two original registration; and
attachments, that is, the attachment previously 3. No other provision is made in the Decree for the
registered is superior and preferred to a subsequent registration of such right or claim (P.D. 1529,
one (Cruz v. Sandoval, G.R. No. L-46701, June 17, Sec. 7, par. 1).
1940).
NOTE: An attachment levied on real estate not duly Formal Requisites of an Adverse Claim for
recorded in the Registry of Property is not an Purposes of Registration: (WNR)
encumbrance on the attached property, nor can 1. Adverse claimant must state the following in
such attachment serve as a ground for decreeing the Writing:
annulment of the sale of property, at the request of a. His alleged right or interest;
another creditor (Diez v. Delgado, G.R. No. L-11732, b. How and under whom such alleged right or
January 12, 1918). interest is acquired;
c. The description of the land in which the right
Discharge of Attachment or interest is claimed; and
An attachment may be discharged upon giving a d. The certificate of title number.
counterbond, or on the ground that the same was 2. Such statement must be signed and sworn to
improperly or irregularly issued or enforced, or that before a Notary public; and
the bond is insufficient (AGCAOILI, supra at 486). 3. Claimant shall state his Residence or place to
which all notices may be served upon him. (P.D.
SALE ON EXECUTION OR LEVY FOR 1529, Sec. 70)
TAXES OR FOR ANY ASSESSMENT
Non-compliance with the formal requisites
Whenever registered land is sold on execution, or renders such adverse claim non-registrable and
taken or sold for taxes or for any assessment or to ineffective (Lozano v. Ballesteros, G.R. NO.
enforce a lien of any character, or for any costs and 49470, April 8, 1991).
charges incident to such liens, any execution or copy
of execution, any officer's return, or any deed, Registration of Notice of Adverse Claim
demand, certificate, or affidavit, or other instrument An adverse claim is a type of involuntary dealing
made in the course of the proceedings to enforce designed to protect the interest of a person over a
such liens and required by law to be recorded, shall piece of real property by apprising third persons that
be filed with the Register of Deeds of the province or there is a controversy over the ownership of the land.
city where the land lies and registered in the It seeks to preserve and protect the right of the
registration book, and a memorandum made upon adverse claimant during the pendency of the
the proper certificate of title in each case as lien or controversy where registration of such interest or
encumbrance (P.D. 1529, Sec. 74). right is not otherwise provided for by the Property
Registration Decree. An adverse claim serves as a
ADVERSE CLAIM notice to third persons that any transaction regarding
An adverse claim is a notice to third persons that the disputed land is subject to the outcome of the
someone is claiming an interest on the property or dispute. Before a notice of adverse claim is
has a better right than the registered owner thereof, registered, it must be shown that there is no other
and that any transaction regarding the disputed land provision in law for the registration of the claimant's
is subject to the outcome of the dispute (Sajonas v. alleged right in the property (Logarta v. Mangahis,
CA, G.R. No. 102377, July 5, 1996). G.R. No. 213568, July 5, 2016).

The annotation of an adverse claim is a measure Effectivity of Adverse Claim

designed to protect the interest of a person over a The adverse claim shall be effective for a period of
piece of real property, where the registration of such thirty (30) days from the date of registration. After the
interest or right is not otherwise provided for by the lapse of said period, the annotation of adverse claim
Land Registration Act or Act No. 496 (now P.D. No. may be canceled upon filing of a verified petition
1529 or the Property Registration Decree), and therefore by the party in interest (P.D. 1529, Sec.
serves a warning to third parties dealing with 70).
 Notice of Lis Pendens; appropriate in the
No second adverse claim based on the same ground following cases: (RQ-COP)
shall be registered by the same claimant (P.D. 1529, 1. Action to Recover possession of real estate;
Sec. 70). 2. Action to Quiet title thereto;
3. Action to remove Clouds upon the title thereof;
An adverse claim is not ipso facto cancelled upon 4. Any Other proceeding of any kind in court
the lapse of thirty (30) days from its registration. directly affecting the title to the land or the use of
There must be a petition for the purpose to afford the occupation thereof or the building thereon; and
adverse claimant an opportunity to be heard 5. For Partition (AGCAOILI, supra at 504).
(Sajonas v. Court of Appeals, G.R No. 102377, July
5, 1996). Notice of Lis Pendens, when Inapplicable:
(PAPALF)
NOTICE OF LIS PENDENS 1. Proceedings for the recovery of money
The notice of lis pendens is ordinarily recorded judgments;
without the intervention of the court where the action 2. Preliminary Attachments;
is pending. The notice is but an incident in an action, 3. Proceedings on the probate of wills;
an extrajudicial one, to be sure. It does not affect the 4. Administration of the estate of deceased
merits thereof. It is intended merely to constructively persons;
advise, or warn, all people who deal with the 5. Levies on execution; and
property that they so deal with it at their own risk, 6. Foreclosure
and whatever rights they may acquire in the property
in any voluntary transaction are subject to the results CANCELLATION OF LIS PENDENS
of the action, and may well be inferior and GENERAL RULE: Notice of Lis Pendens cannot be
subordinate to those which may be finally cancelled while the action is pending (AGCAOILI,
determined and laid down therein (J Casim supra at 505).
Construction Supplies, Inc., v. Registrar of Deeds of
Las Pinas, G.R. No. 168655, July 02, 2010). EXCEPTIONS: (MEND-PC)
1. When it is shown that the notice is for the
The title obtained by the transferee pendente lite purpose of Molesting the adverse party;
(pending suit) affords him no special protection; he 2. Where the Evidence so far presented by the
cannot invoke the rights of a purchaser in good faith plaintiff does not bear out the main allegations of
and cannot acquire better rights than those of his the complaint;
predecessor-in-interest (Yu v. Court of Appeals, G.R 3. When it is shown that it is Not necessary to
No. 109078, December 26, 1995). protect the right of the party who caused the
registration thereof;
Effects of Filing Lis Pendens: 4. Where the continuances of the trial are
1. It keeps the subject matter of litigation within the unnecessarily Delaying the determination of the
power of the court until entry of the final case to the prejudice of the defendant;
judgment so as to prevent the defeat of the latter 5. Upon verified Petition of the party who caused
by successive alienations. the registration thereof; or
2. It binds a purchaser of the land subject of the 6. It is deemed Cancelled after final judgment in
litigation to the judgment or decree that will be favor of the defendant, or other disposition of the
promulgated thereon whether such a purchaser action such as to terminate all rights of the
is a bona fide purchaser or not; but it does not plaintiff to property involved (NOBLEJAS, supra
create a non-existent right or claim (Carrascoso at 438-439).
v. Court of Appeals, G.R. No. 123672,
December 14, 2005). Requisites (BOA-G):
1. Must be Before final judgment;
Annotation of Lis Pendens 2. Upon Order of the court;
To annotate a notice of lis pendens, the following 3. Upon Action by the Register of Deeds at the
elements must be present: (CJS) instance of the party caused the registration OR
a. The property must be of such Character as to be upon verified petition of the latter; and
subject to the rule; 4. Must be due to the Grounds mentioned (PEÑA,
b. The court must have Jurisdiction both over the supra at 485).
person and the res
c. The property or res involved must be Sufficiently NOTICE OF ADVERSE CLAIM AND
described in the pleadings (AGCAOILI, supra at NOTICE OF LIS PENDENS
502).
Both are different remedies which may be availed of
at the same time. The annotation of a notice of lis
pendens at the back of a certificate of title does not Registration under Sec. 113 cannot defeat a
preclude the subsequent registration on the same person with a better right
certificate of title of an adverse claim. In Paz Ty Sin REASON: Registration under Sec. 113 of Act 3344
Tei v. Jose Lee Dy Piao, the Court ruled that it would is not preceded by any investigation, whether
not only be unreasonable but also oppressive to hold judicial or administrative, as to the validity or the
that the subsequent institution of an ordinary civil efficacy of the title sought to be recorded.
action would work to divest the adverse claim of its
validity, for a notice of lis pendens may be cancelled “BETTER RIGHT”
even before the action is finally terminated for Refers to a right which must have been acquired by
causes which may not be attributable to the claimant a third party independently of the unregistered deed,
(Valderama v. Arguelles, G.R. No. 223660, April 2, such, for instance, as title by prescription, and that it
2018). has no reference to rights acquired under that
unregistered deed itself (PEÑA, supra at 600).

A registration of a deed of mortgage in the

DEALINGS WITH unregistered land register is without prejudice to
UNREGISTERED LANDS third parties with a better right (Rivera v. Moran, G.R.
No. L-24568, March 2, 1926).

EFFECTS OF TRANSACTIONS
RECORDING OF INSTRUMENTS COVERING UNREGISTERED LAND:
RELATING TO UNREGISTERED LANDS 1. Between the parties
No deed, conveyance, mortgage, lease, or other – even if the transaction is not registered, the
voluntary instrument affecting land not registered contract is valid and binding (Dadizon v. Court
under the Torrens system shall be valid, except as of Appeals, G.R. No. 159116, September 30,
between the parties thereto, unless such instrument 2009); and
shall have been recorded in the manner herein
prescribed in the office of the Register of Deeds for 2. As among third persons
the province or city where the land lies (P.D. 1529, – the law requires that in order for the
Sec. 113). transaction to be binding to third persons, the
same must be registered (Dadizon v. Court of
The provision cannot be interpreted to include Appeals, G.R. No. 159116, September 30,
conveyances made by ministerial officers, such as 2009).
sheriff’s deeds. It contemplates only such
instruments as may be created by agreement of the PROCEDURE FOR REGISTRATION:
parties. The provisions of Act No. 3344 do not apply 1. Presentment of instrument dealing in
to judicial sales (AGCAOILI, supra at 676). unregistered land; and

All instruments affecting lands originally registered 2. If found:

under the Spanish Mortgage Law may be recorded a. in order, register.
under Sec. 113 of the decree until the land shall b. defective, registration is refused, writing his
have been brought under the operation of the reason for refusal (REV. ADM. CODE, Sec.
Torrens system (Id. at 675). 194, as amended by Act No. 3344).

The books of registration of the Revised Registration creates constructive notice only to
Administrative Code, as amended by Act. No. 3344, future dealers in unregistered land
shall continue to be in force, provided that Registration under Act 3344 does not afford full
unregistered land shall be registered under Sec. 113 protection, and the title registered in accordance
(Id). therewith must yield to a prior and valid title, though
unregistered, for registration under said Act can only
Where registered land has been the subject of a affect rights or interests subsequent to the
transaction and this was recorded under Act no. registration. It is a notice only to future dealers of the
3344, such recording does not bind third persons land (PEÑA, supra at 602).
since registration thereunder refers to properties not
registered under the Land Registration Act, and As a matter of precaution, a would-be purchaser of
hence, not effective for purposes of Art 1544 of the an unregistered land should ascertain for himself
Civil Code on double sales (AGCAOILI, supra at whether the seller is, at the time of the transaction,
675). still the owner of the property, and the most practical
way of ascertaining such fact is to proceed to the
land to find out the persons in actual possession INVOLUNTARY DEALINGS WITH
thereof and to inquire from them in what capacity RESPECT TO UNREGISTERED LANDS
they possess and occupy the land. The rule that the
purchaser is not required to explore further than Tax sale, attachment and levy, notice of lis pendens,
what the record in the Registry indicates upon its adverse claim and other instruments in the nature of
face in quest of any hidden defect or inchoate right involuntary dealings with respect to unregistered
which may subsequently defeat his right thereto lands, if made in the form sufficient in law, shall
refers only to property registered under the Torrens likewise be admissible to record under this section
system (Id. at 603). (P.D. 1529, Sec. 113, par. b).
Unregistered donation propter nuptias does not
bind third persons I. VOLUNTARY TRANSACTIONS
Prior unregistered donation does not bind Sale, Donation, Settlement, Adjudication, Partition,
respondents, who are innocent purchasers for value. Mortgage, Exchange, Lease, Merger
Registration is not necessary for it to be considered
valid and effective. However, in order to bind third Common Requirements
persons, the donation must be registered in the 1. Original copy of the deed/instrument;
Registry of Property (now Registry of Land Titles and
Deeds). Although the non-registration of a deed of NOTE: If the original copy cannot be produced,
donation shall not affect its validity, the necessity of the duplicate original or certified true copy shall
registration donation shall not affect its validity, the be presented with a sworn affidavit executed by
necessity of registration comes into play when the the interested party stating why the original copy
rights of third persons are affected (Spouses Cano cannot be presented.
v. Spouses Cano, G.R. No. 188666, December 14,
2017). 2. Owner’s and co-owner’s copy of the certificate
of title for land registered;
Primary Entry Book and Registration Book
The Register of Deeds for each province or city shall 3. Tax Declaration for deed/instrument involving
keep a Primary Entry Book and a Registration Book. transfer of ownership; and
The Primary Entry Book shall contain, among other
particulars, the entry number, the names of the 4. DAR Clearance and Affidavit of Aggregate Land
parties, the nature of the document, the date, hour, Holding of the Transferee for land covered by
and minute it was presented and received. The CARP.
recording of the deed and other instruments relating
to unregistered lands shall be effected by any Specific Requirements
annotation on the space provided therefor in the 1. BIR certificate authorizing registration;
Registration Book, after the same shall have been
entered in the Primary Entry Book (P.D. 1529, Sec. NOTE: For payment of capital gains tax, estate
113, par. a). tax and donor’s tax, as the case may be

Primary Entry Book (Day Book) 2. Revenue tax receipts evidencing payment of
Provides spaces whereon to enter the names of the documentary stamp tax if the amount paid is
parties, the nature of the instrument or deed for P10.00 and above;
which registration is requested, the hour and minute,
date and month of the year when the instrument is NOTE: If the documentary stamp tax is less than
received (AGCAOILI, supra at 447). P10.00, documentary stamps shall be attached
to the document
Effect of Sufficiency of the Instrument
If, on the face of the instrument, it appears that it is 3. Real property tax clearance indicating the tax
sufficient in law, the Register of Deeds shall forthwith declaration number; and
record the instrument in the manner provided herein.
In case the Register of Deeds refuses its 4. Proof of the payment of the transfer tax.
administration to record, said official shall advise the
party in interest in writing of the ground or grounds EXCEPTION: If the document was executed before
for his refusal, and the latter may appeal the matter July 1, 1973.
to the Commissioner of Land Registration in
accordance with the provisions of Section 117 of NOTE: If the transferor or transferee is a
P.D. 1529. It shall be understood that any recording corporation:
made under this section shall be without prejudice to a) Secretary’s Certificate/Board Resolution to
a third party with a better right (P.D. 1529, Sec. 113, purchase/sell
par. b). b) Articles of Incorporation of transferee
 c) Certificate of the SEC that the articles of 10. For Subdivision and/or Consolidation Plan
incorporation has been registered. Without change or ownership
a. Letter-request
NOTE: If the land being transferred is covered by b. Tracing cloth of the plan duly
patent, the deed of sale is to be approved by the approved by the LRA or the LMB
Regional Executive Director of DENR. c. Blueprint of the plan
d. Original technical description
Additional Requirements: With change of ownership
1. For Extrajudicial Settlement/Adjudication 1) Agreement of partition
Affidavit of Publication of the publisher/editor 2) Real estate tax clearance
stating that the deed/instrument had been
published for three consecutive weeks. If the II. INVOLUNTARY TRANSACTIONS
deed includes personal property, a bond shall
be filed.
A. Lis Pendens
1. Notice containing the following:
2. Sale of Subdivision Lots License to Sell and/or a. Date of institution of the action;
Certificate of Registration by HLURB in case b. Court where the action is pending
of subdivision projects. 2. Copy of the complaint
3. Certificate of title number
3. Power of attorney or any deed/instrument
executed abroad How Cancelled?
– Certificate of Authentication by the nearest 1. Order of the court to cancel the notice;
Philippine Consulate 2. Certificate of the clerk of court stating
the manner of disposition;
4. Judicial Settlement of Estate 3. Sworn statement of the counsel for
a. Order approving the project of partition; plaintiff who caused the filing of the
b. Certificate of Finality of the notice
order/termination of special proceeding;
c. Letters of Administration – if the property B. Adverse Claim
is encumbered or sold during the Sworn statement stating the following:
settlement proceedings. 1. Alleged claim against the registered
owner of the property;
5. Mortgages and Lease 2. Certificate of title number and
a. Certificate of non-delinquency in the reference to volume and page
payment for real estate tax; number;
b. Documentary Stamp tax 3. Description of the land;
4. Address of the adverse claimant
6. Extrajudicial Foreclosure of Mortgage
a. Certificate of Sale by the sheriff; How Cancelled?
b. Approval of the RTC Executive Judge 1. Before the lapse of 30 days;
(except where the sale was conducted by 2. After the lapse of 30 days by verified
the notary public); petition before the RD by the party-in-
c. Documentary Stamp Tax interest;
3. By order of the court;
7. Consolidation of Ownership 4. By sworn petition before the RD, or
– Affidavit of Consolidation of the the claimant withdrawing his claim
purchase/deed of sale of the mortgage
C. Sale at Public Auction for Non-
8. Judicial Foreclosure of Mortgage Payment of Taxes
a. Court Order directing the sale by public 1. Certificate of Sale executed by the
auction; City Treasurer;
b. Certificate of sale issued by the sheriff 2. Final Bill of Sale if to be consolidated;
3. Common Requirements if title is not
9. Execution Sale available, order of the court for
a. Notice of Levy or Attachment must issuance of new owner’s copy and
first be annotated/accompanied with a annulment of previous owner’s copy.
writ of execution;
b. Certificate of Sale;
c. Final Deed of Sale.
 FINALITY OF THE DECREE
The decree becomes incontrovertible after one (1)
DECREE OF year from the date of its entry (P.D. 1529, Sec. 32).
REGISTRATION
PERIOD OF ISSUANCE OF THE DECREE

GENERAL RULE: The law does not limit the period

DECREE OF REGISTRATION within which the court may order the issuance of a
It is an order issued under the signature of the decree of registration.
Administrator of the Land Registration Authority, in
the name of the court, stating the land described EXCEPTION: Decree of Registration Cannot Be
therein is registered in the name of the applicant or Issued Pending Appeal
oppositor or claimant as the case may be In any event, it was held that execution pending
(AGCAOILI, supra at 370). appeal is not applicable to a land registration
proceeding. A Torrens title issued on the basis of a
As provided by law, if the court finds after hearing judgment that is not final is a nullity, as it is violative
that the applicant or adverse claimant has title as of the explicit provision of the Land Registration Act
stated in his application or adverse claim and proper which requires that a decree be issued only after the
for registration, a decree of confirmation and decision adjudicating the title becomes final and
registration shall be entered. (ACT NO. 3261, Sec. executory, and it is on the basis of said decree that
3). the Register of Deeds concerned issues the
corresponding certificate of title (Top Management
PURPOSE: The decree of registration binds the Programs Corporation v. Fajardo, G.R. No. 150462,
land, quiets title thereto, subject only to such June 15, 2011).
exceptions or liens as may be provided by law. It is
conclusive upon all persons including the national CONTENTS: (D³OM)
government and all branches thereof, whether 1. Date, hour and minute of its entry;
mentioned by name in the application or notice, the 2. If the owner is under a Disability, the nature of
same being included in the general description “To such disability; and if a minor, his age;
All Whom It May Concern.” (PEÑA, supra at 131). 3. Description of the land, estate of the owner, and,
in such manner as to show their relative
The duty of the land registration officials to issue the priorities, all particular estates, mortgages,
decree of registration is ministerial in the sense that easements, liens, attachments, and other
they act under the orders of the court and the decree encumbrances;
must be in conformity with the court judgment and 4. It shall state whether the owner is Married or
with the data found in the record. However, if they unmarried, and if married, the name of spouse.
are in doubt upon any point in relation to the If the land is conjugal property, the decree shall
preparation and issuance of the decree, they are be issued in the name of both spouses; and
duty-bound to refer the matter to the court. They act 5. Other matters to be determined in pursuance of
in this respect, as officials of the court. The law (P.D. 1529, Sec. 31).
administrator is thus not legally obligated to issue the
decree where, upon his verification, he finds that DISTINCTIONS BETWEEN A DECISION
subject land has already been decreed and titled in IN LAND REGISTRATION CASE
another’s name (Ramos v. Rodriguez, G.R. No.
94033, May 29, 1995). AND DECREE OF REGISTRATION
DECISION IN LAND
A decree of registration issued pursuant to the Land REGISTRATION DECREE OF
Registration Act only confirms ownership of the CASE REGISTRATION
applicant over the land subject of the application
(Torela v. Torela, G.R. No. L-27843, October 11,
1979). As to Manner of Issuance

By whom issued: Administrator of Land Rendered by the court Issued by the Land
Registration who signs the decree of registration and and signed by the Registration Authority
attests the date and hour or its issuance (P.D. 1529, judge. and signed by the Land
Sec. 31). Registration
Commissioner.
 that of ownership (Vencilao v. Vano, G.R. No. L-
DECISION IN LAND
25660, February 23, 1990).
REGISTRATION DECREE OF
CASE REGISTRATION
EXCEPTIONS:
1. A writ of possession does not lie in a land
As to Finality registration case against a person who entered
the property after the issuance of the final
Becomes final after 30 Becomes final after 1 decree and who had not been a party in the
days from issuance. year from issuance. case; and
2. A writ of possession cannot be issued in a
As to Grounds for Review petition for reconstitution of allegedly lost or
destroyed certificate of title (AGCAOILI, supra at
Found in Rules 37 and Fraud and must be filed 270-272).
38 of the Rules of Court. within one year from
issuance. The issuance of a writ of possession is only a matter
(ALBANO, supra at 816-817). of course if nothing in the past has been issued in
favor of the registered owner; there is no prescription
as to its issuance (Lucero v. Loot, G.R. No. L-16995,
October 28, 1968).
PARTIAL JUDGMENT Writ of Demolition
AND POST JUDGMENT A writ of demolition must, likewise, issue, especially
INCIDENTS IN considering that the said writ is but complement of a
writ of possession. Without such the latter shall be
ORDINARY LAND ineffective (AGCAOILI, supra at 270).
REGISTRATION
REMEDIES
PARTIAL JUDGMENT
In a land registration proceeding where only a
portion of the land subject of registration is REMEDIES OF AGGRIEVED PARTY IN
contested, the court may render partial judgment
provided that a subdivision plan showing the
REGISTRATION PROCEEDINGS:
contested and uncontested portions approved by the
Director of Lands is previously submitted to said 1. BEFORE JUDGMENT BECOMES
court (P.D. 1529, Sec. 28). FINAL:
When the law confers jurisdiction upon a court, the a. Motion for Reconsideration
latter is deemed to have all necessary powers to Grounds: (DED)
exercise such jurisdiction to make it effective (SM i. Damages awarded are excessive;
Prime Holdings, Inc. v. Madayag, G.R, No. 164687, ii. Evidence is insufficient to justify the
February 12, 2009). decision or final order;
iii. Decision or final order is contrary to law.
Court Retain Jurisdiction until after final entry of (RULES OF COURT, RULE 37, Sec. 1)
decree
While the judgment of the court becomes final 15 b. Motion for New Trial
days from receipt of notice of the judgment, the court Grounds: (FAN)
nevertheless retains jurisdiction over the case until i. Fraud, accident, mistake or excusable
after the expiration of one year from the issuance of negligence which ordinary prudence
the decree of registration by the Land Registration could not have guarded against and by
Authority (AGCAOILI, supra at 267). reason of which such aggrieved party
has probably been impaired in his
POST-JUDGMENT INCIDENTS rights;
Writ of Possession ii. Newly discovered evidence which with
GENERAL RULE: The judgment adjudicating reasonable diligence could have not
ownership to the successful applicant impliedly been discovered and produced at the
carries with it the delivery of possession if he is trial and which if presented would
deprived, since the right of possession is inherent in
 probably alter the result (RULES OF Must be filed within fifteen (15) days from
COURT, RULE 37, Sec. 1) receipt of the judgment or final order
appealed from (AGCAOILI, supra at 281).
Period of filing: Within the fifteen (15)-day
period for perfecting an appeal (B.P. 129, Sec. 3. AFTER ISSUANCE OF DECREE OF
39; Heirs of Labrada v. Monsanto, G.R. No. L- REGISTRATION:
66242, August 31, 1984).

2. AFTER JUDGMENT BECOMES FINAL a. Petition for Review of a Decree

This remedy is available only to an
BUT BEFORE ISSUANCE OF aggrieved party who has been deprived of
DECREE OF REGISTRATION: land or any estate or interest therein by
decree of registration, and the only ground
a. Annulment of Judgment that may be invoked for this purpose is
It may only be availed of when the ordinary actual fraud (PEÑA, supra at 164).
remedies of new trial, appeal, petition for
relief or other appropriate remedies are no When to file: Not later than one year from
longer available without the fault of and after the date of entry of such decree of
petitioners and is based on only two registration (P.D 1529, Sec. 32).
grounds: extrinsic fraud and lack of
jurisdiction(Linzag v. CA, G.R. No. 122181, However, it has been ruled that the petition
June 26, 1998). may be filed at any time after the rendition
of the court’s decision and before the
b. Petition for Relief from Judgment expiration of one (1) year from the entry of
Grounds: When a judgment or final order is the final decree of registration, for there can
rendered by any court in a case, and a party be no possible reason for requiring the
thereto, by fraud, accident, mistake or complaining party to wait until the final
excusable negligence, he may file a petition decree is entered before urging his claim of
in such court praying that the judgment, fraud (Rivera v. Moran, G.R No. 24568,
order or proceeding be set aside (RULES March 2, 1926).
OF COURT, RULE 38, Sec. 1).
Review of Judgment v. Review of the
This relief is applicable to land registration Decree
cases if the petition is filed within the time It is a petition for review of judgment when it
therein provided and the decree of is filed after rendition of the decision but
registration is not yet issued (PEÑA, supra before the entry of the decree of registration.
at 171). And it is a petition for review of the decree
of registration when it is filed not later than
Subsidiary Nature: Relief may not be one year from and after the date of the entry
availed of except when the decision of such decree of registration, but in no case
becomes final and executory, and only when shall such petition be entertained by the
a new trial is not available (AGCAOILI, court where an innocent purchaser for value
supra at 280). has acquired the land or an interest therein,
whose rights may be prejudiced.
Period of Filing: Within sixty (60) days after
the petitioner learns of the judgment, order, Intentional concealment and representation
or proceeding and not more than six (6) as possessor, occupant and claimant
months after such judgment or order was constitutes actual fraud justifying the
entered or such proceeding was taken (Id. reopening and review of the decree of
at 280). registration (Heirs of Manuel Roxas v. CA,
G.R. No. 118436, March 21, 1997).
c. Appeal from Judgment
Under P.D. 1529, judgments and orders in Grounds for Review of the Decree:
land registration cases are appealable to the Actual or Extrinsic Fraud – an intentional
Court of Appeals or to the Supreme Court in omission of fact required by law to be stated in
the same manner as ordinary actions (P.D. the application or a willful statement of a claim
1529, Sec. 33) against the truth. It must show some specific
acts intended to deceive and deprive another of
his right (Libudan v. Palma Gil, G.R No. L-
21163, May 17, 1972).
 Philippines, Inc. v. Garcia, G.R. No. 173289,
Instances of Actual or Extrinsic Fraud February 17, 2010).
Actual fraud proceeds from an intentional
deception practiced by means of the b. Action for Reconveyance
misrepresentation or concealment of a material A legal and equitable remedy granted to the
fact. Extrinsic fraud is employed to deprive rightful owner of land which has been wrongfully
parties of their day in court and thus prevent or erroneously registered in the name of another
them from asserting their right to the property for the purpose of compelling the latter to
registered in the name of the applicant transfer or reconvey the land to him (Narvasa v.
(Mendoza v. Valte, G.R. No. 172961, Imbornal, G.R. No. 182908, August 6, 2014).
September 07, 2015).
Extrinsic fraud is also actual fraud, but Requisites (NFN-F-4-10):
collateral to the transaction sued upon (Sps. Cal i. The action must be brought in the Name of
v. Zosa, G.R. No. 152518, July 31, 2006). a person claiming ownership or dominical
right over the land registered in the name of
ACTUAL FRAUD V. the defendant;
CONSTRUCTIVE FRAUD ii. The registration of the land in the name of
the defendant was procured through Fraud
ACTUAL CONSTRUCTIVE or other illegal means;
FRAUD FRAUD iii. The property has Not yet passed to an
innocent purchaser for value; and
Proceeds from an Act is not done or iv. The action is filed after the certificate of title
intentional deception committed with an had already become Final and
practiced by means of actual design to incontrovertible but within four (4) years
misrepresentation or commit positive fraud from the discovery of the fraud, or not later
concealment of a or injury upon other than ten (10) years in case of an implied
material fact. persons but is trust (AGCAOILI, supra at 295 citing Balbin
construed as fraud v. Medalla, G.R. No. L-16410, October 30,
because of its 1981, New Regent Sources, Inc. v.
detrimental effect upon Tanjuatco, G.R. No. 168800, April 16, 2009)
public interest and
public or private Reconveyance is available not only to the
confidence. legal owner of property, but also to the
person with a better right than the person
(NOBLEJAS, supra at 221).
under whose name said property was
erroneously registered (Pacete v. Asotigue,
EXTRINSIC FRAUD V. INTRINSIC G.R. No. 188575, December 10, 2012).
FRAUD
EXTRINSIC INTRINSIC FRAUD May be filed even after the lapse of one (1)
FRAUD year from entry of the decree of registration
as long as the property has not been
Prevents a party Where the fraudulent acts transferred or conveyed to an innocent
from having a trial pertain to an issue involved purchaser for value (NOBLEJAS, supra at
or from presenting in the original action, or 237).
his entire case to where the acts constituting
the court. the fraud were or could have An action for reconveyance does not aim or
been litigated therein. purport to reopen the registration
proceedings and set aside the decree of
(Id. at 223). registration but only to show that the person
who secured the registration of the
Requisites for Review of the Decree: questioned property is not the real owner
i. The petitioner must have an estate or thereof. The action, while respecting the
interest in the land; decree as incontrovertible, seeks to transfer
ii. He must show actual fraud in the or reconvey the land from the registered
procurement of the decree of registration; owner to the rightful owner. Reconveyance
iii. Petition is filed within one (1) year from is always available as long as the property
issuance of the decree by the LRA; and has not passed to an innocent third person
iv. The property has not yet passed to an for value (Hortizuela v. Tagufa, G.R. No.
innocent purchaser for value (Eland 205867, February 23, 2015).
 When Reconveyance Does Not Implied/constructive trusts are created in equity in
Prescribe: order to prevent unjust enrichment. They arise
i. If brought by registered owners or their contrary to intention against one who, by fraud,
children; duress or abuse of confidence, obtains or holds the
ii. A co-heir, who, through fraud, succeeds legal right to property which he ought not, in equity
in obtaining a certificate of title in his and good conscience, hold (Marquez v. CA, G.R.
name to the prejudice of his co-heirs, is No. 125715, December 29, 1998).
deemed to hold the land in trust for the
latter. The excluded heir’s action is c. Action for Damages
imprescriptible; or May be resorted to when a petition for
iii. Where the plaintiff in an action for review and an action for reconveyance is no
reconveyance, which is in effect an longer possible because the property has
action to quiet title, is in possession of passed to an innocent purchaser for value
the land in question (AGCAOILI, at and in good faith (NOBLEJAS, supra at
301).; or 342).
iv. Right of reversion or reconveyance to An ordinary action for damages prescribes
the state of public properties in ten (10) years after the issuance of the
fraudulently registered and which are Torrens title over the property (AGCAOILI.
not capable of private appropriation or at 314).
private acquisition (Martinez v. CA, G.R
No. L-31271, April 29, 1974). d. Cancellation Suits
Initiated by a private party usually in a case
GROUNDS FOR RECONVEYANCE AND where two certificates are issued to different
CORRESPONDING PERIOD OF persons covering the same land. When one
PRESCRIPTION of the two titles is held to be superior over
the other, one should be declared null and
GROUNDS PRESCRIPTIVE PERIOD void and ordered cancelled (AGCAOILI,
supra at 322).
Four (4) years from the discovery
of the fraud (deemed to have The judgment would direct the defeated
taken place from the issuance of party to vacate the land in question, and
Fraud the original certificate of title). No deliver possession thereof to the lawful
trust is created (Balbin v. owner of the land (Id. at 322).
Medalla, G.R. No. L-46410,
October 30, 1981). e. Criminal Action
The State may criminally prosecute for
Ten (10) years from the date of
perjury the party who obtains registration
the registration of the deed or the
date of issuance of the OCT or through fraud, such as by stating false
TCT. assertions in the sworn answer required of
applicants in cadastral proceedings (People
NOTE: The above rule does not v. Cainglet, G.R. Nos. L-21493-94, April 29,
Implied or 1966).
apply where the person enforcing
Constructive
the trust is in actual possession of
Trust f. Action for Compensation from
the property because he is in
effect seeking to quiet title to the Assurance Fund
same which is imprescriptible One who files an action for damages from
(D.B.T. Mar-Bay Construction, the party who allegedly registered the
Inc. v. Panes, G.R. No. 167232, property through fraud, and the latter,
July 31, 2009). becomes insolvent or is barred by
prescription, may file an action for recovery
Imprescriptible (Caezo v. Rojas, under the Assurance Fund within a period of
Express
G.R No. 148788, November 23, six (6) years from the time the right to bring
Trust
2007) the action accrues (P.D. 1529, Sec. 95).

Imprescriptible (Casipit v. CA, Requisites:

Void
G.R. No. 140457, January 19, i. The aggrieved party sustained loss or
Contract
2005) damage, or is deprived of land or any
estate or interest therein;
ii. Such loss, damage or deprivation:
 i. Was occasioned by the bringing of NOTE: The right of action herein provided
the land under the operation of the shall survive to the legal representative of
Torrens system; or the person sustaining loss or damage
ii. Arose after original registration of unless barred in his lifetime (P.D. 1529, Sec.
land; 102).
iii. The loss, damage or deprivation was
due to: Actions for compensation against the
1.) Fraud; or Assurance Fund grounded on fraud
2.) Any error, omission, mistake or Registration of the innocent purchaser for
misdescription in any certificate of value's title should only be considered as a
title or in any entry or memorandum condition sine qua non to file such an action
in the registration book; and not as a form of constructive notice for
iv. There was no negligence on his part; the purpose of reckoning prescription. This
v. He is barred or precluded under the is because the concept of registration as a
provisions of P.D. 1529 or under the form of constructive notice is essentially
provision of any law from bringing an premised on the policy of protecting the
action for the recovery of such land or innocent purchaser for value's title, which
the estate or interest therein; and consideration does not, however, obtain in
vi. The action has not prescribed Assurance Fund cases. The constructive
(AGCAOILI, supra at 324-325). notice rule on registration should not be
made to apply to title holders who have been
NOTE: It is a condition sine qua non that the unjustly deprived of their land without their
person who brings the action for damages negligence. The actual title holder cannot be
against the Assurance Fund be the deprived of his or her rights twice – first, by
registered owner and, as the holders of the fraudulent registration of the title in the name
TCT, that they be innocent purchasers in of the usurper and second, by operation of
good faith and for value (Eagle Realty the constructive notice rule upon registration
Corporation v. Republic, G.R. No. 151424, of the title in the name of the innocent
July 4, 2008). purchaser for value (Spouses Stilianopoulos
v. The Register of Deeds for Legazpi City
REASON: It is only after the registration of and the National Treasurer, G.R. No.
the innocent purchaser for value's title (and 224678, July 3, 2018).
not the usurper's title which constitutes a
breach of trust) can it be said that the g. Action for Reversion
claimant effectively "sustains loss or The objective of an action for reversion of
damage, or is deprived of land or any estate public land is the cancellation of the
or interest therein in consequence of the certificate of title and the resulting reversion
bringing of the land under the operation of of the land covered by the title to the State
the Torrens system.” (Spouses (AGCAOILI, at 314).
Stilianopoulos v. The Register of Deeds for
Legazpi City and the National Treasurer, Generally, an action for reversion may be
G.R. No. 224678, July 3, 2018). instituted by the government, through the
Solicitor General, in all cases where lands of
Limitation of Action the public domain and the improvements
GENERAL RULE: Must be instituted within thereon and all lands are held in violation of
a period of six (6) years from the time the the Constitution, or in cases of fraudulent or
right to bring such action first occurred which unlawful inclusion of land in patents or
is from the moment the plaintiff suffered loss certificate of title (Id at 315).
or damage or was deprived of his property
or interest therein. h. Quieting of Title
An action that is brought to remove clouds
EXCEPTION: The action may be instituted on the title to real property or any interest
at any time within two (2) years after such therein, by reason of any instrument, record,
disability has been removed, claim, encumbrance or proceeding which is
notwithstanding the expiration of the original apparently valid or effective but is in truth
period of six (6) years IF the person entitled and in fact invalid, ineffective, voidable, or
to bring such right of action was a minor or unenforceable, and may be prejudicial to
insane or imprisoned or otherwise under said title (CIVIL CODE, Art. 476). It is an
legal disability (P.D. 1529, Sec. 102). ordinary civil remedy (Sy, Sr. v. IAC, G.R.
No. L-66741, June 16, 1988).
 440, amending Sec. 44 of The Land Registration Act
and Sec. 49 of Property Registration Decree (PEÑA,
supra at 206).
CERTIFICATE OF TITLE
1. Splitting of Titles
– upon petition by a registered owner of two or
more parcels of land described in a certificate of
CERTIFICATE OF TITLE title, the Register of Deeds may cancel the
This is the true copy of the decree of registration or certificate and issue in lieu thereof several new
the transcription thereof and, similar to the decree, certificates each covering one or such number
shall also be signed by LRA Administrator (P.D. of parcels as the owner may desire, without the
1529, Sec. 39). necessity of obtaining a prior authority of the
The certificate, once issued, is the evidence of title court (R.A. 440, Sec. 1)
which the owner has. What appears on the face of 2. Consolidation of Titles
the title is controlling on the questions of ownership – a registered owner of several distinct parcel of
since the certificate of title is an absolute and land described in separate certificates of title
indefeasible evidence of ownership of the property may, if he desires, cause all his certificates be
in favor of the person whose name appears therein cancelled and in lieu thereof a single certificate
(Panganiban v. Dayrit, G.R. No. 151235, July 28, be issued for the different portions thereof, by
1995). direct application to the Register of Deeds (R.A.
440, Sec. 1).
The original certificate of title shall be a true copy of
the decree of registration. It takes effect upon the ATTRIBUTES AND LIMITATIONS ON
date of entry thereof, and the land covered thereby CERTIFICATES OF TITLE AND
becomes a registered land on that date (P.D. 1529, REGISTERED LANDS:
Sec. 40).
1. Free from Liens and Encumbrances (P.D.
Registration does not vest title. It is merely evidence 1529, Sec. 44)
of such title over a particular property. A Torrens
certificate is the best evidence of ownership over GENERAL RULE: Claims and liens of whatever
registered land (Villanueva v. CA, G.R. No. 84464, character existing against the land prior to the
June 21, 1991; Chavez v. PEA & Amari Coast Bay issuance of the certificate of title are cut off by
Dev’t. Corp., G.R. No. 133250, July 9, 2002). such certificate and the certificate so issued
binds the whole world, including the
However, simple possession of a certificate of title government.
does not necessarily make the holder thereof a true
owner of all the property described therein such as EXCEPTIONS: (CeNTPD)
when title includes by mistake or oversight, land a. Those noted on the Certificate;
which can no longer be registered under the Torrens b. Liens claims or rights arising or existing
system, as when the same land has already been under the laws and the Constitution, which
registered and an earlier certificate for the same land are Not by law, required to appear of record
is in existence (Caragay-Layno v. CA, G.R. No. L- in the Register of Deeds in order to be valid;
52064, December 26, 1984). c. Unpaid real estate Taxes levied and
assessed within two (2) years immediately
In determining whether a property belongs to the preceding the acquisition of the right over
conjugal partnership or paraphernal property of one the land by an innocent purchaser for value;
of the spouses, it is important to note in whose name d. Any Public highway, or private way
or names the title is registered. This is so because established or recognized by law, or any
the certificate of title does not establish the time of government irrigation canal or lateral
the acquisition of the property. It only confirms a thereof, if the certificate of title does not
preexisting title (Ponce de Leon v. Rehabilitation state the boundaries of such highway or
Finance Corp., G.R. No. L-24571, December 18, irrigation canal, or lateral thereof have been
1970). determined; and
e. Any Disposition of the property or limitation
on the use thereof pursuant to P.D. 27 or
SPLITTING OR CONSOLIDATION OF any other law or regulations on agrarian
TITLES reform (P.D. 1529, Section 44).
The former practice of securing the approval of the
court before a registered owner may split or
consolidate his title has been done away with R.A
2. Incontrovertible and Indefeasible any declaration that may have been made in an
GENERAL RULE: Upon the expiration of one accion publiciana cannot affect ownership over
(1) year from and after the entry of the decree of the property nor nullify a Torrens title, as the
registration in the LRA, the decree and the adjudication was only for the purpose of
corresponding certificate of title becomes resolving the issue of possession (Heirs of
incontrovertible and indefeasible (P.D. 1529, Amistoso v. Vallecer, G.R. No. 227124,
Sec. 32). December 06, 2017).

EXCEPTIONS: (PNF) Three (3) actions considered as collateral

a. If Previous valid title of the same land exists; attack:
(Hodges v. Dy Buncio, G.R. No. L-16096, a. Defendants filed an answer to the complaint
October 30, 1962); praying for cancellation of the TCT of
b. When the land covered is Not capable of plaintiff and for the award of damages by
registration (Palomo v. CA, G.R. No. 95608, counterclaim. The prayer for cancellation is
January 21, 1997); and a collateral attack and cannot be done
c. When the acquisition of certificate is (Cimafranca v. IAC, G.R. No. L-68687,
attended by Fraud. (Meneses v. CA, G.R. January 31, 1987).
No. 82220, July 14, 1995). b. Attack on the title of land presented in the
answer of defendant (Republic v. Samson-
3. Registered Land Not Subject to Tatad, G.R. No. 187677, April 1, 2013)
Prescription c. An action for reformation is considered a
No title to registered land in derogation of the collateral attack on Torrens Title when the
title of the registered owner shall be acquired by land in controversy lies within the
prescription or adverse possession (P.D. 1529, boundaries determined by such title.
Sec. 47). (Toyota Motors Philippines Corp. v. CA,
G.R. No. 102881, December 7, 1992).
Thus, even adverse, notorious and continuous
possession under a claim of ownership for the 5. Includes Improvements on Land
period fixed by law is ineffective against a GENERAL RULE: Torrens certificate of title
Torrens title (J.M. Tuason and Co., Inc. v. CA, covers the lands described therein, together with
G.R. No. L-23480, September 11, 1979). all the buildings and improvements existing
thereon.
The fact that title to the land was lost does not
mean that the land ceased to be a registered EXCEPTIONS: (RePNa)
land before the reconstitution of its title. It a. An express Reservation shall have been
cannot perforce be acquired by prescription annotated on the certificate;
(Rivera v. CA, G.R. No. 107903, May 22, 1995). b. Public thoroughfares as were already in
existence at the time title was acquired;
The defense of laches is an equitable one and c. Navigable streams within the registered
does not concern itself with the character of the property unless the boundaries or such
defendant's title, but only with whether or not by stream had been expressly delimited in the
reason of the plaintiff's long inaction or registration plan (PEÑA, supra at 226).
inexcusable neglect he should be barred from
asserting his claim at all because to allow him to GENERAL INCIDENTS OF REGISTERED
do so would be inequitable and unjust to LAND
defendant (Vda. de Tirona v. Encarnacion, G.R. Registered land shall be subject to such burdens
168902, September 28, 2007). and incidents as may arise by operation of law (P.D.
1529, Sec. 46).
4. Certificate of Title Not Subject to
Collateral Attack REGISTERED LAND OR THE OWNERS
A certificate of title shall not be subject to
collateral attack. It cannot be altered, modified,
THEREOF ARE NOT RELIEVED FROM
or cancelled except in a direct proceeding in THE FOLLOWING:
accordance with law (P.D. 1529, Sec. 48). 1. Any rights incident to the relation of husband
and wife or landlord and tenant;
Time and again, it has been held that a 2. Liability to attachment or levy on execution;
certificate of title shall not be subject to a 3. Liability to any lien of any description
collateral attack and that the issue of the validity established by law on the land and buildings
of title can only be assailed in an action thereon, or in the interest of the owner in such
expressly instituted for such purpose. Hence, land or building;
4. Any right or liability that may arise due to change Sufficient and proper to warrant reconstitution;
of the law of descent; 3. The petitioner is the Registered owner of the
5. The rights of partition between co-owners; property or had an interest therein;
6. The right of government to take the land by 4. The certificate of title was in Force at the time it
eminent domain; was lost or destroyed; and
7. Liability to be recovered by an assignee in 5. The description, area and boundaries of the
insolvency or trustee or bankruptcy under the property are Substantially the same as those
laws relative to preferences; and contained in the lost or destroyed certificate of
8. Any other rights or liabilities created by law and title (Republic v. Lorenzo, G.R. No. 172338,
applicable to unregistered land (P.D. 1529, Sec. December 10, 2012).
46).
When the owner's duplicate certificate of title
PERSONS ENTITLED TO A DUPLICATE has not been lost, but is, in fact, in the
CERTIFICATE OF TITLE: possession of another person, then the
reconstituted certificate is void
1. Registered owner; and The Court has held that when the owner's duplicate
2. Each co-owner (P.D. 1529, Sec. 41). certificate of title has not been lost, but is, in fact, in
the possession of another person, then the
reconstituted certificate is void, because the court
that rendered the decision had no jurisdiction (Dy v.
RECONSTITUTION OF Aldea, G.R. No. 219500, August 9, 2017).
CERTIFICATE OF TITLE In reconstitution proceedings, the Court has
repeatedly ruled that before jurisdiction over the
case can be validly acquired, it is a condition sine
RECONSTITUTION OF CERTIFICATE OF qua non that the certificate of title has not been
issued to another person (Sebastian v. Spouses
TITLE Cruz, G.R. No. 220940, March 20, 2017).
The reconstitution of a certificate of title denotes the
restoration in its original form and condition of a lost KINDS OF RECONSTITUTION:
or destroyed original or transfer certificate of title on
file in the office of the Register of Deeds (Paulino v. A. JUDICIAL RECONSTITUTION
CA, G.R. No. 205065, June 4, 2014). – partakes of the nature of a land registration
proceeding in rem.
PURPOSE: To have the same reproduced, after
proper proceedings, in the same form they were The judicial mode is the general mode which is
when the loss or destruction occurred (Heirs of applicable to all cases of reconstitution. It
Pedro Pinote v. Dulay, G.R. No. L-56694, July 2, requires filing a petition in the proper Regional
1990; Sebastian v. Spouses Cruz, G.R. No. 220940, Trial Court which shall state that the owner’s or
March 20, 2017). co-owner’s duplicate certificate of title had been
lost or destroyed, if such be the fact, the location,
Reconstitution denotes the restoration of the area and boundaries of the property, the names
certificate of title allegedly lost or destroyed in its and addresses of all persons who have a claim
original form and conditions; it does not pass upon or encumbrance on the property together with a
the question of ownership (Republic v. Santua, G.R statement of their claims, and a statement that
No. 155703, September 8, 2008). no deeds or other instruments affecting the
property have been registered (R.A. 26, Sec.
It partakes of a land registration proceeding. Thus, it 12).
must be granted only upon clear proof that the title
sought to be restored was indeed issued to the The notice of the petition must also be published
petitioner or his predecessor-in-interest, and such twice in successive issues in the Official
title was in force at the time it was lost or destroyed Gazette, posted on the main entrance of the
(Luriz v. Republic, G.R. No. 208948, February 24, provincial and municipal building in which the
2016). land is situated, and sent by registered mail or
otherwise to all persons named in the petition
For an order of reconstitution to issue, the following (R.A. 26, Sec. 13).
elements must be present: (LS-RFS)
1. The certificate of title has been Lost or Who shall file and where to file petition
destroyed; The petition for judicial reconstitution shall be
2. The documents presented by petitioner are filed by the registered owner, his assigns, or any
person having an interest in the property with the
 Regional Trial Court of the province or city where These are reliable documents of the kind described
the land lies (R.A. 26, Sec. 12). in the preceding enumerations. The documents
must come from official sources which recognize the
Sources for Judicial Reconstitution of Title ownership of the owner and his predecessors-in-
The petition for judicial reconstitution must also interest. Only if the petitioner for reconstitution fails
be supported by any of the following: to show that he had, in fact, sought to secure such
1. For OCT (in the following order): documents and failed to find them, can the
(OCCADA) presentation of “other document” as evidence in
a. Owner’s duplicate certificate of title; substitution be allowed (Republic v. Catarroja, G.R.
b. Co-owner’s, mortgagee’s or lessee’s No. 171774, February 12, 2010).
duplicate of said certificate;
c. Certified copy of such certificate, Publication, Mailing and Posting in Petitions for
previously issued by the Register of Reconstitution of Title
Deeds; Purpose of publication: To appraise the whole
d. Authenticated copy of the decree of world that such petition has been filed and that
registration or patent, as the case may whoever is minded to oppose it for good reasons or
be, which was the basis of the causes may do so within thirty (30) days before the
certificate of title; date set for hearing. Since the requirement of
e. Deed or mortgage, lease or publication was not complied with, the order is not
encumbrance containing description valid for lack of jurisdiction (ALBANO, supra at 799).
of property covered by the certificate
of title and on file with the Registry of Rules:
Deeds, or an authenticated copy 1. Notice thereof shall be published twice in
thereof; and successive issues of the Official Gazette;
f. Any other document, which, in the 2. Must be posted on the main entrance of the
judgment of the court, is sufficient and provincial building and of the municipal building
proper basis for reconstitution (R.A. of the municipality or city where the land is
26, Sec. 2). situated;
3. To be sent by registered mail to every person
2. For TCT: named in said notice (R.A. 26, Sec. 9).
a. Same as sources 1, 2, and 3 for
reconstitution of OCT; The requirements under R.A. No. 26 for
b. Deed of transfer or other document reconstitution are indispensable and must be
containing description of the property strictly complied with
covered by the transfer certificate of The requirements under R.A. No. 26 are
title and on file with the Registry of indispensable and must be strictly complied with. In
Deeds, or an authenticated copy a reconstitution proceeding, the petitioner is
thereof; and burdened to adduce in evidence the documents in
c. Same as sources 5 and 6 for the order stated in Section 3 of R.A. No. 26 as
reconstitution of OCT (R.A. 26, Sec. sources of the deed to be reconstituted, and likewise
3). burdened to prove the execution or existence of the
original copy of the title, which is the copy on file with
3. For Liens and Encumbrances: the Registry of Deeds, and the contents thereof.
a. Annotations or memoranda appearing (Dela Paz v. Republic, G.R. No. 195726, November
on the owner’s, co-owner’s, 20, 2017).
mortgagee’s or lessee’s duplicate;
b. Registered documents on file in the The above requirements are mandatory and
registry of deeds, or authenticated jurisdictional (Metropolitan Waterworks and
copies thereof showing that the Sewerage System v. Sison, G.R. No. L-40309,
originals thereof had been registered; August 31, 1983). Non-compliance with the
and prescribed procedure and requirements deprives the
c. Same as source 6 for reconstitution of trial court of jurisdiction over the subject matter or
OCT (R.A 26, Sec. 4) nature of the case and, consequently, all its
proceedings are rendered null and void. The
“Any other document” – refers to documents rationale underlying this rule concerns the nature of
similar to those previously enumerated therein, that the conferment in the trial court of the authority to
is, those mentioned in Sections (a) to (e) of RA No. undertake reconstitution proceedings. In all cases
26 (Republic v. IAC and Kiram, G.R No. 68303, where the authority to proceed is conferred by a
January 15, 1998). statute and the manner of obtaining jurisdiction is
mandatory, the same must be strictly complied with,
or the proceedings will be utterly void (Republic v. 5. The certificate of title is covered by a tax
Susi, G.R. No. 213209, January 16, 2017). declaration regularly issued by the Assessor’s
Office; and
B. ADMINISTRATIVE RECONSTITUTION 6. Real estate taxes have been fully paid up to at
– may be availed of only in case of: least two (2) years prior to the filing of the
a. Substantial loss or destruction of the original petition (R.A. No. 26, Sec. 5, as amended by
land titles due to fire, flood, or other force R.A. 6732).
majeure as determined by the Administrator
of the Land Registration Authority;
b. The number of certificates of title lost or
damaged should be at least ten percent OTHER PETITIONS/
(10%) of the total number in the possession
of the Office of the Register of Deeds; TRANSACTIONS AFTER
c. In no case shall the number of certificates of REGISTRATION
title lost or damaged be less than 500; and
d. Petitioner must have the duplicate copy of
the certificate of title (R.A. 6732, Sec. 1
amending Sec. 110 of P.D. 1529). WHERE TO FILE PETITIONS OR
The law provides for retroactive application thereof
MOTIONS AFTER ORIGINAL
to cases fifteen (15) years immediately preceding REGISTRATION
1989 (R.A. 6732, Sec. 14). All petitions or motions after original registration shall
be filed and entitled in the original case in which the
When the duplicate title of the landowner is lost, the decree of registration was entered (P.D. 1529, Sec.
proper petition is not reconstitution of title, but one 108).
filed with the court for issuance of new title in lieu of
the lost copy. AMENDMENT AND ALTERATION OF
CERTIFICATE OF TITLE
Reconstituted certificate is void if the original is not
really lost but only in the possession of another
GROUNDS FOR PETITION:
person (Strait Times, Inc. represented by Rafael M. 1. When registered interests of any description,
Iriarte v. CA, G.R. No. 126673, August 28, 1998). whether vested, contingent, or inchoate have
terminated and ceased;
Sources for Administrative Reconstitution of 2. When new interests have arisen or been created
Title: which do not appear upon the certificate;
1. Owner’s duplicate certificate of title; and if 3. When any error, omission, or mistake was made
absent, in entering a certificate or any memorandum
2. Co-owner’s, mortgagee’s, or lessee’s duplicate thereon or on any duplicate certificate;
of said certificate (NOBLEJAS, supra at 337- 4. When the name of any person on the certificate
338). has been changed;
5. When the registered owner has been married or
Requirements for administrative reconstitution: is registered as married, and the marriage has
1. No deed or other instrument affecting the terminated and no right or interest of heirs or
property has been presented for registration; creditors will thereby be affected;
6. When a corporation, which owned registered
If there be any, the nature thereof, the date of its land and has been dissolved, has not conveyed
presentation, the name of the parties, and the same within three (3) years after its
whether the registration of such deed or dissolution; or
instrument is still pending must be stated in the 7. When there is a reasonable ground for the
petition. amendment or alteration of title (P.D. 1529, Sec.
108).
2. Owner’s duplicate certificate or co-owner’s
duplicate is in due form without any apparent NOTE: The court has no jurisdiction or authority to
intentional alteration or erasures; reopen the judgment of registration or impair the title
3. The certificate of title is not subject of litigation or other interest of a purchaser holding a certificate
or investigation, judicial or administrative, for value and in good faith, or his heirs and assigns,
regarding its genuineness or due execution or without his or their written consent. After due
issuance; hearing, the court may only:
4. The certificate of title was in full force and effect 1. Order the entry or cancellation of a new
at the time it was lost or destroyed; certificate;
2. Order the entry or cancellation of a patent registered in accordance with the law. (Office
memorandum upon a certificate; or of the Court Administrator v. Matas, A.M. No. RTJ-
3. Grant any other relief upon such terms and 92-836, August 2, 1995)
conditions as it may consider proper (P.D. 1529,
Secs. 107 and 108). Notice to the Solicitor General by petitioner is not
imposed by law but it is the Register of Deeds who
GROUNDS FOR SURRENDER OF should request for representation by the Solicitor
WITHHELD DUPLICATE CERTIFICATE General (Republic v. CA, G.R. No. 128531, October
26, 1999).
OF TITLE:
1. When it is necessary to issue a new certificate A proceeding where the certificate of title was not in
of title pursuant to any involuntary instrument fact lost or destroyed is null and void for lack of
which divests the title of the registered owner jurisdiction and the newly issued duplicate is also
against his consent; null and void (New Durawood Co., Inc. v. CA, G.R.
2. Where a voluntary instrument cannot be No. 111732, February 20, 1996).
registered by reason of the refusal or failure of
the holder to surrender the owner’s duplicate GROUNDS FOR AMENDMENT OR
certificate of title; and
3. Where the owner’s duplicate certificate is not CORRECTION OF TITLE:
presented for amendment or alteration pursuant 1. That an error or omission was made therein;
to a court order (P.D. 1529, Sec. 107). 2. That a registered interest is terminated;
3. That new rights have arisen which do not appear
NOTE: A petition to surrender title may be filed as on the certificate (P.D. No. 1529, Sec. 108).
an incident in an action affecting said title (Ligon v.
CA, G.R. No. 107751, June 1, 1995)

Proceedings under Section 108 of P.D. 1529 LAND PATENTS

Pertaining to Amendment and Alteration of
Certificates is Not Applicable in Partition
Proceedings
Section 108 of P.D. 1529 is limited only to seven PUBLIC LANDS SUITABLE FOR
instances or situations. As held in Philippine AGRICULTURAL PURPOSES ARE
Veterans Bank v. Valenzuela, the prevailing rule is
DISPOSED AS FOLLOWS:
that proceedings under Section 108 of P.D. 1529 are
summary in nature, contemplating corrections or 1. Homestead settlement;
insertions of mistakes which are only clerical but 2. Sale;
certainly not controversial issues. Relief under said 3. Lease;
legal provision can only be granted if there is 4. Confirmation of imperfect title or incomplete
unanimity among the parties, or that there is no titles
adverse claim or serious objection on the part of any a. By judicial legalization; or
party in interest. Here, petitioner cannot avail of the b. By administrative legalization (free patent);
summary proceedings under Section 108 of P.D. and
1529 because the present controversy involves not 5. Free title (R.A. 63).
the amendment of the certificates of title issued in
favor of Rogelio and Orlando but the partition of the TITLE INDEFEASIBLE
estate of Maximino and Eligia who are both A certificate of title issued pursuant to a public land
deceased (Bagayas v. Bagayas, G.R. No. 187308, patent partakes the nature of a certificate of title
September 18, 2013). issued through a judicial proceeding. It becomes
inconvertible upon the expiration of one year from
REPLACEMENT OF LOST DUPLICATE the date of the order for the issuance of the patent,
CERTIFICATE OF TITLE hence, prescription cannot operate against the
registered owner (Heirs of Simplicio Santiago v.
Due notice under oath shall be sent by the owner or
Heirs of Mariano Santiago, G.R No. 151440, June
by someone in his behalf to the Register of Deeds of
17, 2003).
the province of the city where the land lies as soon
as the loss or theft is discovered (P.D. 1529, Sec.
When a free patent title is issued to an applicant and
109).
the seawater moves toward the estate of the
titleholder, the invaded property becomes part of the
Petition for replacement should be filed with the RTC
foreshore land. The land under the Torrens system
of the province or city where the land lies. This is true
reverts to the public domain and the title is annulled
even if the title was issued pursuant to a public land
(Republic v. CA, G.R. No. 100709, November 14,
STATUS OF LAND
1997).
APPLICANT OWNERSHIP
PATENTS DISTINGUISHED Special Patent
STATUS OF LAND
Non-Christian Filipinos Secretary of the DILG
APPLICANT OWNERSHIP
under Sec. 84 of the shall certify that the
Homestead Patent Public Land Act. majority of the non-
Christian inhabitants of
Any Filipino citizen over Does not own more any given reservation
the age of eighteen (18) than twenty-four (24) have advanced
years or head of a hectares of land in the sufficiently in
family. Philippines or has not civilization.
had the benefit of any
gratuitous allotment of
more than 24 hectares. Direct Sales

Filipino citizen of legal Not the owner of a

Must have resided
age. home lot in the
continuously for at least
municipality or city in
one (1) year in the
which he resides.
municipality where the
land is situated.
Have established in
good faith his residence
Must have cultivated at
on a parcel of public
least one-fifth (1/5) of
land which is NOT
the land applied for.
needed for public
service.
Free Patent
Have constructed his
Any-natural born citizen Does not own more house and actually
of the Philippines. than twelve (12) resided therein.
hectares of land.

Has continuously RESTRICTION ON

occupied and
cultivated, either by ALIENATION/ENCUMBRANCE OF
himself or his LANDS TITLED PURSUANT TO
predecessors-in- PATENTS:
interest tract/s of 1. The Public Land Act prohibits the alienation or
agricultural public land encumbrance of lands acquired under free
subject of disposition. patent or homestead patent, except in favor of
the Government or any of its branches, units, or
institutions, or legally constituted banking
Sales Patent corporations, from the date of the approval of the
application and for a term of five (5) years from
Citizens of the To have at least one-
and after the date of issuance of the patent or
Philippines of lawful age fifth (1/5) of the land
grant. (C.A. 141, Sec. 118).
or such citizens not of broken and cultivated
lawful age who is head within 5 years from the
of a family may date of the award. 2. Alienation, transfer or conveyance of any
purchase public homestead after five (5) years and before
twenty-five (25) years after issuance of title
agricultural land of not Shall have established
without the approval of the Secretary of DENR
more than twelve (12) actual occupancy,
(R.A. 10023, Sec. 9).
hectares. cultivation and
improvement of at least
1/5 of the land until the REASON: To preserve and keep in the family of
date of such final the public land grantee that portion of the public
domain which the State has gratuitously given to
payment.
him (Fontanilla, Sr. v. Fontanilla, G.R. No.
119341 November 29, 1999).
 corresponding certificate of title, with the result
Prohibition is mandatory, violation of which that the land covered thereby will again form part
renders the conveyance null and void ab initio; of the public domain (Sumail v. Judge of the CFI
thus, it cannot acquire validity through the of Cotabato, G.R No. L-8278, April 30, 1955;
passage of time. Narcise v. Valbuelco Inc., G.R. No. 196888, July
19, 2017).
3. Land covered by Free Patent – may not be sold Grounds for Reversion:
within five (5) years from the issuance of the a. Violation of Secs. 118, 120-122 of the Public
patent. Land Act (e.g. Alienation or sale of
homestead executed within the 5-year
LANDS GRANTED UNDER HOMESTEAD prohibitory period);
PATENT ARE EXEMPT FROM THE b. When land patented and titled is not capable
of registration;
COVERAGE OF THE CARL c. Failure of the grantee to comply with the
Lands granted under homestead patents are exempt conditions imposed by law to entitle him to a
from the coverage of the CARL. In order for the patent or grant;
homestead grantees or their direct compulsory heirs d. When area is an expanded area (Republic
to retain or keep their homestead, the following v. Heir of Villa Abrille, G.R. No. L-39248,
conditions must first be satisfied: May 7, 1976); or
(a) They must still be the owners of the original e. When the land is acquired in violation of the
homestead at the time of the CARL's effectivity; Constitution (e.g. Land acquired by an alien
and may be reverted to the State);
(b) They must continue to cultivate the homestead f. Grant of patent was made through mistake
land. (Almero, et. Al v. Heirs of Pacquing, G.R. or oversight (Republic v. Amor Hachero,
No. 199008, November 19, 2014). G.R. No. 200973, May 30, 2016).

Property Sold During the Prohibited Period May NOTE: Indefeasibility of title, prescription,
Be Recovered from The Vendee laches and estoppel do not bar reversion suits.
Jurisprudence supports the return of lands sold
pursuant to the declaration of a void sale for being in Declaration of Nullity of Free Patents/
violation of Sec. 118 of the Public Land Act. Because Certificates of Title v. Action for Reversion
the subject of the transaction is a piece of public The difference between them lies in the
land, public policy requires that an heir should not be allegations as to the character of ownership of
prevented from re-acquiring it because it was given the realty whose title is sought to be nullified. In
by law to his family for their home and cultivation. an action for reversion, the pertinent allegations
This is the policy on which the homestead law is in the complaint would admit ownership of the
predicated (Binayug v. Ugaddan, G.R No. 181623, State of the disputed land. On the other hand, a
December 5, 2012). cause of action for declaration of nullity of free
patent and certificate of title would require
ACTIONS AGAINST IMPROPER, allegations of the plaintiff’s ownership of the
ILLEGAL ISSUANCE OF PATENTS: contested lot prior to the issuance of such free
patent and certificate of title as well as the
(RCR)
defendant’s fraud or mistake, as the case may
1. Reversion Suits be, in successfully obtaining these documents of
The objective is the cancellation of the certificate title over the parcel of land claimed by plaintiff
of title and the consequential reversion of the (Baguilan v. CA, G.R. No. 165815, April 27,
land covered thereby to the State (Vicente 2007).
Cawis v. Antonio, G.R. No. 170207, April 19,
2010). 2. Cancellation of Certificate of Title
It is proper for a private party to file an action for
All actions for the reversion to the Government cancellation of certificate of title issued by virtue
of lands of the public domain or improvements of a public land patent as when he claims
thereon shall be instituted by the Solicitor ownership of the land as private property by
General or the officer acting in his stead, in the virtue of long period of possession.
name of the Republic of the Philippines (Public
Land Act, Sec. 101). If the land covered by a free patent was a private
land, the Director of Lands has no jurisdiction
A private party may not bring an action for over it. Such free patent and the subsequent
reversion or any action which would have the certificate of title issued pursuant thereto is a
effect of cancelling a public land patent and the nullity. The aggrieved party may initiate an
 action for cancellation of such title (Pabaus v. 2. Coverage
Yutiamco, G.R No. 164356, July 27, 2011). Lands that have been zoned as residential
areas, including townsites, those located inside
3. Action for Reconveyance delisted military reservations or abandoned
GENERAL RULE: Reconveyance is not a military camps, and those of local government
proper remedy in case the subject property is units or townsites which preceded R.A. 7586 or
public land. It is because a private person would the National Integrated Protected Areas System
have no right to recover the property. It would Law (R.A. 10023, Sec. 2).
simply revert to the public domain.
3. Special Patents
EXCEPTION: When a free patent was issued Aside from private residential lands, public lands
over private lands that are beyond the actually occupied and used for public schools,
jurisdiction of the Director of Lands/DENR to municipal halls, public plazas or parks and other
dispose of (De Leon v. De Leon-Reyes, G.R. No. government institutions for public use or
205711, May 30, 2016). purpose may also be issued special patents
under this law in the name of the national agency
RESIDENTIAL FREE PATENTS or LGU concerned, and all such public lands so
titled shall not be disposed of unless sanctioned
R.A. 10023 entitled “An Act Authorizing the Issuance
by Congress, if owned by an agency of the
of Free Patents to Residential Lands” was approved
national government, or sanctioned by the
on March 9, 2010 and became effective on April 3,
sanggunian concerned through an approved
2010.
ordinance, if owned by the LGU (R.A. 10023,
Sec. 4).
DENR Administrative Order (DAO) No. 2010-25,
approved on October 4, 2010, however amended
4. Application
Section 3 of DAO 2010-12 otherwise known as
a. Filed with the Community Environment and
“Rules and Regulations for the Issuance of Free
Natural Resources Office (CENRO) of the
Patents to Residential Lands under R.A. 10023.”
DENR immediately after the effectivity of the
Act
It especially provides that:
b. Supported by a map based on actual survey
“3.2 Actual occupation, actual residence and
conducted by a geodetic engineer approved
continuous possession and occupation of the parcel
by the DENR.
subject of the application, either by herself or himself
c. Supported by the affidavit of two (2)
or through her or his predecessor-in-interest, under
disinterested persons, who are residents of
a bona fide claim of acquisition of ownership, for at
the barangay of the city or municipality
least ten (10) years prior to the filing of the
where the land is located, attesting to the
application.”
occupation of the applicant (or
predecessors-in-interest) on the said land
The salient provisions are as follows:
(R.A. 10023, Sec. 3).
1. Qualifications (FLN)
a. Any Filipino Citizen who is an actual
5. Action on the Application
occupant of a residential land for at least ten
The CENRO is mandated to process the
(10) years.
application within one hundred and twenty (120)
days to include compliance with the required
This substantially reduced the previous
notices and other legal requirements, and
requirement of thirty (30) years of open and
forward this recommendation to the Provincial
continuous possession of land under C.A.
Environment and Natural Resources Office
141, as amended, or the Public Land Act
(PENRO), who shall have five (5) days to
and thus expedited the titling process.
approve or disapprove the patent.
b. Land applied for is not needed for public
In case of approval, a patent shall be issued; in
service or public use.
case of conflicting claims among different
c. The land should Not exceed:
claimants, the parties may seek the proper
i. In highly urbanized cities – 200sq.m
judicial remedies (R.A. 10023, Sec. 6).
ii. In other cities – 500sq.m
iii. 1st and 2nd class municipalities –
6. Removal of Restrictions
750sq.m
The restrictions regarding encumbrances,
iv. In all other municipalities – 1,000sq.m
conveyances, transfers or dispositions imposed
(R.A. 10023, Sec. 1)
in Secs. 118, 119,121, 122 and 123 of Chapter
 XII, Title VI of C.A. 141 as amended, shall not
apply to patents issued (R.A. 10023, Sec. 5).

AGRICULTURAL FREE PATENTS

R.A. 11231 entitled “An Act Removing the
Restrictions Imposed on the Registration,
Acquisition, Encumbrance, Alienation, Transfer and
Conveyance of Land Covered by Free Patents
Under Sections 118, 119 and 121 of Commonwealth
Act No. 141, Otherwise Known as "The Public Land
Act", as Amended” was approved on February 22,
2019.

Non-applicability of restrictions under Secs. 118,

119 and 121 of C.A. 141
Agricultural public lands alienated or disposed in
favor of qualified public land applicants under
Section 44 of Commonwealth Act No. 141, as
amended, shall not be subject to restrictions
imposed under Sections 118, 119 and 121 thereof
regarding acquisitions, encumbrances,
conveyances, transfers, or dispositions (R.A. 11231,
Sec. 3).

Agricultural free patent shall now be considered as

title in fee simple and shall not be subject to any
restriction on encumbrance or alienation (R.A.
11231, Sec. 3).

Retroactive effect of R.A. 10023 on agricultural

free patents issued before the effectivity of R.A.
10023
Sec. 4 provides that the law “have retroactive effect
and any restriction regarding acquisitions,
encumbrances, conveyances, transfers, or
dispositions imposed on agricultural free patents
issued under Section 44 of Commonwealth Act No.
141, as amended, before the effectivity of this Act
shall be removed and are hereby immediately lifted:
Provided, That nothing in this Act shall affect the
right of redemption under Section 119 of
Commonwealth Act No. 141, as amended, for
transactions made in good faith prior to the effectivity
of this Act.”

NOTE: (SEE DISCUSSIONS ON CONCEPT AND

REGISTRATION ON AGRARIAN TITLES IN
LABOR LAW MEMORY AID).