2007 BAR QUESTIONS AND ANSWERS Civil Law IL Distinguish the following concepts: 14. Occupation v. possession. (5%) Occupation is a mode of acquiring ownership which involves some form of holding (Articles 712 & 713, New Civil Code). Possession is the holding of a thing or the enjoyment of a right. (Article 532, NCC). Occupation can take place only with respect to property without an owner, while possession can refer to all kinds of property, whether with or without an owner. Occupation in itself, when proper, confers ownership; but possession does not by itself give rise to ownership. (II Tolentino, Civil Code, 1992 ed., p. 489). 2. Illegal and impossible conditions in a simple donation v. illegal and impossible conditions in an onerous donation. (5%) legal or imposable conditions in simple conditions are considered as not imposed, hence the donation is valid. (Art. 727, NCC). On the other hand, donations with an onerous cause shall be governed by the rules on contract (Art. 733, NCC). Under Art. 1183 Of the New Civil Code, “(I)mpossible conditions, those contrary to good customs or public policy and those prohibited by law shall annul the obligation which depends upon them.” Thus, the onerous donation is void. M (10%) Manila Petroleum Co. owned and operated a petroleum operation facility off the coast of Manila. The facility was located on a floating platform made of wood and metal, upon which was permanently attached the heavy equipment for the petroleum operations and living quarters of the crew. Thefloating platform likewise contained a garden area, where trees, plants and flowers were planted. The platform was tethered to a ship, the MV 101, which was anchored to the seabed. 1. Is the platform movable or immovable property? Alternative Answer: The platform is an immovable property by destination. It was intended by the owner to remain at a fixed place ona river or coast. Article 415(9) of the New Civil Code considers as a real property “docks and structures which, though, floating, are intended by their nature and object to remain at a fixed place on a river, lake or coast.” NOTA BENE: In Fels Energy, Inc. v. The Province of Batangas, et.al., G.R. No. 168557, February 16, 2007, the Court ruled that the power barges moored off the coast of Balayan, Batangas are real property under Article 415(9) of the Civil Code. This case is beyond the coverage of the 2007 Bar Exam. Alternative Answer: The platform is a movable property if it is not permanently attached or anchored to the ship or seabed. As a result, it may be brought from place to place for various purposes or may be towed or tethered to other vessels. 2. Are the equipment and living quarters movable or immovable property? Alternative Answer: With respect to the equipment, the same is real property under paragraph 5 of Article 415, NCC. It is intended to meet the needs of the industry being undertaken by Manila Petroleum Co. The equipment partakes of the nature of the immovable upon which it has been placed.The living quarters, if attached to the immovable platform with permanence, becomes an immovable as well. Permanence means they cannot be separated without destroying the platform or the quarters. (Art. 415[3], NCC). On the other hand, if the attachment is not permanent, or is merely superimposed on the platform, then the living quarters are movable property Alternative Answer: With respect to the equipment, the same is real property under paragraph 5 of Article 415. It is intended to meet the needs of industry being undertaken by Manila Petroleum Co. The equipment partakes of the nature of the immovable upon which it has been placed. If the platform is movable property, then the living quarters are movable property as well because they partake of the nature of the platform to which they are attached. 3. Are the trees, plants and flowers immovable or movable property? Alternative Answer: The trees, plants and flowers are also immovable, having been “planted” in the garden area under Art. 415(2) which provides that “Trees, plants, and growing fruits, while they are attached to the land or form an integral part of the immovable” are likewise immovable property. Alternative Answer: If the platform is movable property, then the trees, plants and flowers are movable because they are not attached to the land or form an integral part of any immovable. (par.2, Art. 415, NCC) Mm, Explain the following concepts and doctrines and give an example of each: 1. concept of trust de son tort (constructive trust) (5%)A constructive trust is a form of implied trust created by equity to meet the demands of justice. It arises contrary to intention against one who, by fraud, duress, or abuse of confidence, undue influence or mistake or breach of fiduciary duty or wrongful disposition of another's property, obtains or holds the legal right to property which he is not entitled to under the law. (Huang v. Court of Appeals, G.R. No. 108525, September 13, 1994). An example of constructive trust is when a property is acquired through mistake or fraud, the person obtaining it, is by force of law, considered a trustee of an implied trust for the benefit of the person from whom the property comes. (Art. 1456, NCC). 2. doctrine of discovered peril (last clear chance) (5%) The doctrine of discovered peril, is also known as the doctrine of last clear chance, applies in a situation where both parties are negligent so that the party who had the last clear chance or opportunity to avoid the accident by proper care, but failed to do s0, is considered solely responsible for the accident. (Picart v. Smith, G.R. No. L-12219, March 15, 1918). For example, if a truck driver saw an oncoming car that swerved and entered the truck’s lane to avoid running over a pedestrian, and the truck driver did not slow down or move to the side of the road and give way to the oncoming car, even though he could have done so to avoid a collision, then the truck driver shall be solely responsible for the accident. (Mckee v. IAC, G.R. No. L-68102, July 16, 1992). Vv. (10%) Bedrock Land & Property Development Corp. is a development company engaged in developing and selling subdivisions, condominium units and industrial estates. In order to replenish its inventories, it embarked on an aggressive land banking program. It employed "scouts" who roam all over the Philippines to look for and conduct investigations on prospective sites for acquisition and development, whether developed, semi- developed or raw land, The management of Bedrock asks you asthe company counsel to prepare a manual containing a summary of the pertinent laws and regulations relating to land registration and acquisition of title to land. The manual should include the following items: Supply this information. 1. What is the governing law? Depending on the transaction involved, one or more of the following will be the governing laws relating to land acquisition of title to land are as follows: 1. P.D. No. 1529 (Property Registration Decree) 2. Public Land Law (CA No. 141, as amended) 3. The Civil Code of the Philippines 4, Act No. 2259 (The Cadastral Act) 5. Section 194 of the Administrative Code as amended by Act No. 2837 and Act No. 3344 (System of Recording for Unregistered Real Estate) 6. P.D. No. 1073 (Extending the Period for Administrative and Judicial Legalization of Imperfect Title) 7. Article XIl of the 1987 Constitution 8. P.D. No. 957 (An Act Regulating the Sale of Subdivisions and Condominiums) 9. R.A. 4276 (An Act Amending P.D. No. 957) 10. Real Property Tax Code 2. What properties are not registrable? With respect to the land banking program of Bedrock, the following properties may not be registered under the Torrens System with any Register of Deeds: (a) inalienable lands of the public domain; and (b) those prohibited under the Constitution (such as national parks, mineral lands, forest or timber lands and agricultural lands not classified as alienable and disposable.) v. (10%)What are obligations without an agreement"? Give five examples of situations giving rise to this type of obligations? Obligations without an agreement are those which are not based on contract. Apart from contracts, obligations may arise from (1) law; (2) qausi-contract; (3) delict; and (4) quasi-delict. Examples of situations giving rise to “Obligations without an agreement” are as follows 1. A law was passed requiring the payment of a specific kind of tax. 2. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. (Article 2154, NCC) 3. When a person voluntarily takes charge of the agency or management of the business or property of anther, without any power from the latter, he is obliged to continue the same until the termination of the affair and its incidents, or to require the person concerned to substitute him, if the owner is in a position to do so. This juridical relation does not arise in either of these instances: a. When the property or business is not neglected or abandoned; b. if in fact the manager has been tacitly authorized by the owner (Article 2144, NCC) 4. A person, through negligence, caused damage or injury to another. 5. A person intentionally damaged a property of another. 6. The obligation by the recipient to return what has been paid or delivered to him by mistake, the recipient not having the right to demand it, is one that arises from quasi-contract (Article 2154, NCC) 7. The obligation of the culprit to pay actual damages for causing the death of a person is one which arises from delict or crime (Art. 2206, NCC)8. The obligation of the tortfeasor to pay damages for injuries or damages caused by him to another person due to his act or omission, characterized by fault or negligence, is one which arises from quasi-delict (Art. 2176, NCC) and 9. The obligation to pay reward for a certain act or accomplishment pursuant to a promise made to the general public is an obligation based on unilateral promise. vi. (10%) Clara, thinking of her mortality, drafted a will and asked Roberta, Hannah, Luisa and Benjamin to be witnesses. During the day of the signing of her will, Clara fell down the stairs and broke both her arms. Coming from the hospital, Clara insisted on signing her will by thumb mark and said that she can sign her full name later. While the will was being signed, Roberta experienced a stomach ache and kept going to the restroom for long periods of time. Hannah, while waiting for her turn to sign the will, was reading the 7th Harry Potter book on the couch, beside the table on which everyone was signing. Benjamin, aside from witnessing the will, also offered to notarize it. A week after, Clara was run over by a drunk driver while crossing the street in Greenbelt. May the will of Clara be admitted to probate? Give your reasons briefly. Yes, the will of Clara may be probated. A thumbmark has been considered by the Supreme Court as a valid signature if intended by the testator to be his signature. (Garcia v. La Cuesta, G.R. No. L-4067, November 29, 1951; De Gala v Gonzales, G.R. No. L-37756, November 28, 1933). The three witness rule required for the validity of an ordinary will is satisfied provided either of the two conditions exists: 1. Roberta could see Clara and the other witnesses sign the will atany time while she was in the toilet, had she wanted to. 2. If Roberta could not have seen Clara and the other witnesses sign the will, the same is valid if the will was acknowledged before a Notary Public other than Benjamin. It is not necessary that the testator or the witnesses should actually see the others subscribe their names to the instrument, provided that he is position to see them sign if he chooses (Nera v. Rimando, G.R. NO. 5971, February 27, 1911; Yap Tua v. Yap Ka Kuan, G.R. No. L-6845, September 1, 1914). Thus, the signing must be considered to be in the presence of Hannah, who was reading a book on the couch beside the table vu. Write "TRUE" if the statement is true or "FALSE" if the statement is false. If the statement is FALSE, state the reason. (2% each). 1. Roberta, a Filipino, 17 years of age, without the knowledge of his parents, can acquire a house in Austratia because Australian Laws allow aliens to acquire property from the age of 16. (2%) TRUE 2. If aman commits several acts of sexual infidelity, particularly in 2002, 2003, 2004, 2005, the prescriptive period to file for legal separation runs from 2002. (2%) FALSE. Every act of sexual infidelity committed by the man is a ground for legal separation under Article 55(8) of the Family Code (Tolentino, Civil Code, 1990 ed., 321) Hence, the prescriptive period begins to run upon the commission of each act of infidelity. 3. An individual, While single, purchases a house and lot in 1990 and borrows money in 1992 to repair it. In 1995, such individual gets married while the debt is still being paid. After the marriage, the debt is still the responsibility of such individual. (2%)Alternative Answer: FALSE. Under Article 94(7) of the Family Code, ante-nuptial debts of either spouse shall be considered as the liability of the absolute community property insofar as they have redounded to the benefit of the family. Alternative Answer: TRUE 4. The day after John and Marsha got married, John told her that he was impotent. Marsha continued to live with John for 2 years. Marsha is now estopped from filing an annulment case against John FALSE. Marsha is not estopped from filing an annulment case against John on the ground of impotency under Article 45(5) of the Family Code. Unlike the other grounds for annulment of voidable marriages which are subject to ratification by continued cohabitation, the law does not allow ratification under Article 45(5). 5. Amor gave birth to Thelma when she was 15 years old. Thereafter, Amor met David and they got married when she was 20 years old. David had a son, Julian, with his ex-girlfriend Sandra. Julian and Thelma can get married. Alternative Answer: TRUE Alternative Answer: FALSE. If the marriage was solemnized during the effectivity of the New Civil Code, the marriage between stepbrother and stepsister is void (Article 80[7]). However, under the Family Code, this marriage may be valid. (Article 38, FC) vill. (10%)In 1986, Jennifer and Brad were madly in love. In 1989, because a certain Picasso painting reminded Brad of her, Jennifer acquired it and placed it in his bedroom. In 1990, Brad and Jennifer broke up. While Brad was mending his broken heart, he met Angie and fell in love. Because the Picasso painting reminded Angie of him, Brad in his will bequeathed the painting to Angie. Brad died in 1995. Saddened by Brad’s death, Jennifer asked for the Picasso painting as a remembrance of him, Angie refused and claimed that Brad, in his will, bequeathed the painting to her. Is Angie correct? Why or why not? Angie is not correct. The painting is not a property of Brad which he can dispose by will. Even if the painting was bought while they were madly in love, there can be no valid donation of such a valuable painting because it was not reduced to writing as required by Article 748(3) of the New Civil Code. Therefore, this is a legacy of property not owned by the testator. If Brad knew that he did not own the painting, it may be considered as an instruction to acquire the painting from Angie However, if he erroneously believed he owned the painting, the legacy is void. x Multiple choice: Choose the right answer. (2% each) 1. The parties to a bailment are the: a. bailor; b. baile; ¢. comodatario; d. all the above; e. letters a and b2. A deposit made in compliance with a legal obligation is: a. an extrajudicial deposit; b. a voluntary deposit; c. anecessary deposit; d. a deposit with a warehouseman; e. letters a and b 3. A contract of antichresis is always: a. a written contract; b. a contract, with a stipulation that the debt will be paid through receipt of the fruits of an immovable; c. Involves the payment of interests, if owing; d. All of the above; e. Letters a and b D 4. An, assignee in a proceeding under the Insolvency Law does not have the duty of: a. suing to recover the properties of the state of the insolvent debtor; b. selling property of the insolvent debtor; c. ensuring that a debtor corporation operate the business efficiently and effectively while the proceedings are pending;d. collecting and discharging debts owed to the insolvent debtor. c 5. In order to obtain approval of the proposed settlement of the debtor in an insolvency proceeding. a. the court must initiate the proposal b. 2/3 of the number of creditors should agree to the settlement; c. 3/5 of the number of creditors should agree to the settlement; d. 1/3 of the total debts must be represented by the approving creditors; e. Letters a and b B x. (10%) For purposes of this question, assume all formalities and procedural requirements have been complied with.In 1970, Ramon and Dessa got married. Prior to their marriage, Ramon had a child, Anna. In 1971 and 1972,Ramon and Dessa legally adopted Cherry and Michelle,respectively. In 1973, Dessa died while giving birth to Larry.Anna had a child, Lia. Anna never married. Cherry, on the other hand, legally adopted Shelly. Larry had twins, Hans and Gretel, with his girlfriend, Fiona. In 2005, Anna, Larry,and Cherry died in a car accident. In 2007, Ramon died.Who may inherit from Ramon and who may not? Give your reasons briefly. Lia and Michele are the only possible heirs of Ramon. Lia succeeds by representation of Anna who, if she is an illegitimate child of Ramon, may be represented by her descendants. (Article 990, NCC). If Anna is a legitimate child, Lia may not inherit (Article 992, NCC)Michelle may inherit as an adopted child of Ramon, unless the word “respectively” means she was adopted only by Dessa. In the latter case, Michelle will not inherit from Ramon. Shelly cannot inherit from Ramon. She cannot represent Cherry in the inheritance of Ramon since filiation created by adoption is exclusively between the adopter and the adopted. The legal relationship does not extend to the children of the adopted. (Rabuya, Law on Persons and Family Relations, 2006 ed., Ill Tolentino, Civil Code, 1992 ed., 448-449) Hans and Gabriel, being illegitimate children of Larry, cannot inherit from Ramon ab intestato because of the barrier between the legitimate and the illegitimate. (Article 992, NCC) Dessa, Ana , Larry and Cherry will not inherit from Ramon because they predeceased Ramon. The law requires that one must be alive to be capacitated to inherit. (Article 1025, NCC)